Thursday
May 11, 1995
Part IV
Environmental
Protection Agency
40 CFR Part 9, et al.
Universal Waste Rule (Hazardous Waste
Management System; Modification of the
Hazardous Waste Recycling Regulatory
Program); Final Rule
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Federal Register / Vol. 60, No. 91
Thursday, May 11, 1995 / Rules and Regulations
ENVIRONMENTAL PROTECTION
40 CFR Parts 9, 260, 261, 262, 264, 265,
266,268,270, and 273
[FRL-5201-3]
RIN 2050-AD19
Universal Waste Rule (Hazardous
Waste Management System;
Modification of the Hazardous Waste
Recycling Regulatory Program)
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: On February 11,1993, the
Environmental Protection Agency
proposed new streamlined hazardous
waste management regulations
governing the collection and
management of certain widely generated
wastes (batteries, pesticides and
thermostats) known as universal wastes
(58 FR 9346). Additional information
was noticed for comment on June 20
1994 (59 FR 31568). Today's final rule
promulgates streamlined universal
waste management regulations which
are very similar to the February 11,1993
proposal.
The new streamlined hazardous waste
management regulations promulgated
today govern the collection and
management of certain widely generated
wastes identified as universal wastes.
This final rule will greatly facilitate the
environmentally-sound collection and
increase the proper recycling or
treatment of hazardous waste nickel
cadmium and other batteries, certain
hazardous waste pesticides, and
mercury-containing thermostats. The
current RCRA regulations have been a
major impediment to national collection
and recycling campaigns for these
wastes. This rule will greatly ease the
regulatory burden on retail stores and
others that wish to collect or generate
these wastes. It should greatly facilitate
programs developed to reduce the
quantity of these wastes going to
municipal solid waste landfills or
combustors. It will, also, assure that the
wastes subject to this system will go to
appropriate treatment or recycling
facilities pursuant to the full hazardous
waste regulatory controls. It also will
serve as a prototype system to which
EPA may add other similar wastes in the
future. A petition process is also
included through which additional
wastes could be added to the universal
waste regulations in the future. These
regulations are set forth in 40 CFR part
273. ^
EFFECTIVE DATE: This final rule is
effective on May 11,1995.
ADDRESSES: The official record for this
rulemaking is identified as Docket
Numbers F-93-SCSP-FFFFF and F-94-
SCSA-FFFFF and is in the EPA RCRA
Docket, located in Room M2616, U S
EPA (5305), 401 M Street SW.,
Washington, DC. 20460. The docket is
open from 9 a.m. to 4 p.m., Monday
through Friday, excluding Federal
holidays. To review docket materials,
the public must make an appointment
by calling (202) 260-9327. The public
may copy a maximum of 100 pages from
any regulatory docket at no cost.
Additional copies cost $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For
information concerning this final rule
contact the RCRA Hotline toll free at
(800) 424-9346. In the Washington, DC.
metropolitan area, call (703) 412-9810.
For further information regarding
specific aspects of this notice, contact
the Office of Solid Waste (5304), U.S
EPA, 401 M Street SW., Washington,
DC. 20460. Additional copies of this
rule and supporting documentation
(e.g., fact sheet and summary of
requirements) are available by mail by
calling the RCRA Hotline. A supporting
document containing the Agencies
response to comments is available for
review in the Docket for this rule.
SUPPLEMENTARY INFORMATION:
Outline
I. Background
II. Relationship to Other Agency Activities
A. Mercury-Containing Lamps
B. Redefinition of Solid Waste
C. Possible Revisions to the Hazardous
Waste Characteristics
III. Summary of Final Universal Waste
Regulations
A. Structure of Final Rule
B. Summary of Universal Waste
Requirements
1. Wastes Covered Under the Universal
Waste System
2. Requirements for Participants in the
Universal Waste System
£. Small and Large Quantity Handlers of
Universal Waste
b. Transporters of Universal Waste
c. Destination Facilities
3. Import Requirements
4. Petitions to Include Other Wastes under
part 273
IV. Detailed Discussion of Final Rule
A. Goals of Final Rule
B. Scope of Final Rule
1. Recycling Versus Recycling or Disposal
2. Wastes Included in Final Rule
a. Hazardous Waste Batteries
b. Lead-Acid Batteries
c. Hazardous Waste Pesticides
d. Hazardous Waste Thermostats
e. Other Wastes Suggested By Commenters
f. Used Mercury-Containing Equipment
g. Spent Antifreeze
3. Conditionally Exempt Small Quantity
Generator Waste
C. Adding Additional Wastes in the Future
1. Procedures For Adding New Wastes
2, Factors for Evaluating New Wastes
a. Final factor 40 CFR 273.81(a)
b. Final factor 40 CFR 273.81(b)
c. Final factor 40 CFR 273.81(c)
d, Final factor 40 CFR 273.81(d)
e. Final factor 40 CFR 273.81(e)
f. Final factor 40 CFR 273.81(f)
g. Final factor 40 CFR 273.81(g)
h. Final factor 40 CFR 273.81(h)
i. Proposed factors not included in the final
rule
D. Participants in the Universal Waste
System
1. Small and Large Quantity Handlers of
Universal Waste
2. Transporters
3. Destination Facilities
E. Universal Waste Handler Requirements
1. Prohibitions
a. Prohibition on Disposal
b. Prohibition on Treatment
c. Prohibition on Shipments of Universal
Wastes
2. Notification
3. Waste Management
a. Universal Waste Batteries
b. Universal Waste Pesticides
c. Universal Waste Thermostats
4. Labeling/Marking
5. Accumulation time requirements
6. Employee Training
7. Response to Releases
8. Off-site Shipments
9. Tracking Universal Waste Shipments
10. Exports
F. Transporter Requirements
G. Destination Facility Requirements
H. Imports of Universal Waste
I. Land Disposal Restrictions
J. Regenerated batteries
V. State Authority
A. Applicability of Rules in Authorized
States
B. Effect on State Authorization
C. Comments regarding the proposed rule
D. Universal Waste State Authorization
issues
1. Addition of New Universal Wastes to
State Programs
2. Authorization for individual universal
wastes
3. Interstate Transportation
VI. Executive Order 12866—Regulatory
Impacts
VII. Regulatory Flexibility Analysis
VIII. Paperwork Reduction Act
IX. Unfunded Mandates
I. Background
Under Subtitle C of the Resource
Conservation and Recovery Act (RCRA),
the Environmental Protection Agency
(EPA) has promulgated regulations
setting forth the framework of the,
nation's hazardous waste management
program. These regulations are found in
parts 260 through 279 of title 40 of the
Code of Federal Regulations. These
regulations first identify what wastes are
considered hazardous and thus are
subject to the hazardous waste
regulations. Requirements are then set
forth for hazardous waste generators,
transporters, and owners and operators
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Federal Register / Vol. 60, No. 91 / Thursday, May 11. 1995 / Rules and Regulations
of treatment, storage, and disposal
facilities (TSDs).
On February 11,1993, the
Environmental Protection Agency
proposed to add to the hazardous waste
regulations a set of streamlined
requirements for collecting certain
widely-dispersed hazardous wastes (58
FR 8102), which were called "universal
wastes." These wastes share several
characteristics:
—They are frequently generated in a
wide variety of settings other than the
industrial settings usually associated
with hazardous wastes;
— They are generated by a vast
community, the size of which poses
implementation difficulties for both
those who are regulated and the
regulatory agencies charged with
implementing the hazardous waste
program; and
— They may be present in significant
volumes in non-hazardous waste
management systems.
In the preamble to the proposal,
known as the "universal waste"
proposal, the Agency explained a
number of reasons why it believed that
a streamlined regulatory system was
appropriate for these wastes. See 58 FR
8102 for a detailed discussion.
230 comments were received on the
proposal from environmental groups,
companies involved in universal waste
management, state and local
environmental and agricultural
agencies, and trade associations.
Comments received on the proposed
rule were in general very supportive of
the basic concepts behind the proposed
regulations and of the proposed
regulatory approach. Commenters did
suggest numerous specific changes to
the regulatory requirements that they
believed would make them easier to
comply with and to implement, more
protective of the environment, and more
successful at achieving the goals of the
universal waste program.
Additional information on costs and
benefits of the proposal was made
available for public comment on June
20,1994 (59 FR 31568). Eleven
comments were received on this
additional information and the Agency's
responses to these comments are
available in the docket for this rule (See
Addresses section above). The Agency's
responses to each of the comments are
included here.
This rule finalizes the streamlined
universal waste management system
proposed on February 11,1993 (58 FR
8102). In general, the final rule is very
similar to the proposal. Although some
of the details of the regulatory structure
have changed, the basic approach
adopted in the final rule and the
majority of the particulars is the same as
that proposed. A summary of the final
rule is included in section III of this
preamble. The following sections of the.
preamble discuss in detail the major
comments received on each of the issues
raised in the proposed rule, any
differences between the proposal and
the final rule, and the Agency's reasons
for making the changes. The final
regulatory text is set forth at the end of
this notice. These regulatory changes
will be codified into the printed version
of Title 40 of the Code of Federal
Regulations in its next update, which
will be revised as of July 1,1995.
II. Relationship to Other Agency
Activities
II.A. Mercury-Containing Lamps
During development of the proposed
universal waste rule it was suggested
that spent fluorescent light bulbs
(known as fluorescent lamps) might be
appropriately managed under the
universal waste regulations. Mercury is
used in the production of fluorescent
lamps, and as a result, a relatively high
percentage of these lamps are hazardous
waste when spent because they exhibit
the toxicity characteristic for mercury.
At the time of the proposal, the Agency
decided that further investigation into
the issue of mercury-containing lamps
was necessary before proposing changes
to the regulations governing
management of these lamps. Thus, in
the February 11,1993 universal waste
proposal the Agency explained that it
was not proposing to include
fluorescent lamps in the universal waste
regulations but requested comment on
several issues (58 FR 8110). First, EPA
requested comment on the risks posed
by these lamps in landfills or municipal
waste combustors. Second, EPA
requested information on the risks of
current or developing mercury recovery
technology. .
A number of comments were received
addressing the mercury-containing
lamps issue. Many of the commenters
argued that these lamps should be
included in the universal waste final
rule. Several commenters also suggested
other regulatory alternatives for
regulating management of these lamps.
A number of comments also addressed
the questions that the Agency asked in
the proposal about the risks of various
management methods.
On July 27,1994, the Agency
published a proposed rule specifically
addressing the management of spent
mercury-containing lamps (59 FR
38288). Information received in
comments on the universal waste
proposal was used in developing the
proposal on lamp management.
Two options for changing the
regulations governing mercury-
containing lamps were included in the
July 27,1994 proposal. The Agency
requested comment on a number of
issues, including which of the two
options should be implemented. One
option was to conditionally exempt
these lamps from regulation as
hazardous waste. Under this option,
mercury-containing lamps would not be
considered hazardous waste provided
they are disposed of in municipal solid
waste landfills that meet certain
requirements, or are recycled at mercury
reclamation facilities that meet certain
requirements. In addition, generators
would be required to maintain
documentation identifying the disposal
or recycling facility to which the lamps
were sent.
The second option proposed was to
add mercury-containing lamps to the
universal waste regulations. Under this
option, mercury-containing lamps that
fail the toxicity characteristic would
continue to be regulated as hazardous
waste, but would be subject to the
streamlined universal waste regulations
promulgated today instead of the full
hazardous waste regulations. The July
27,1994, proposed regulatory text for
including mercury-containing lamps in
the universal waste regulations was
based on the February 11,1993,
proposed universal waste regulations. In
the July 27,1994, proposal the Agency
explained that it expected to promulgate
final universal waste regulations prior to
promulgating a final rule on mercury-
containing lamps. It was noted that if
the Agency selected the universal waste
option for management of mercury-
containing lamps, the final regulations
would be consistent with the final
universal waste rule (59 FR 38295).
Thus, if in the future final rule on
... 1 ,1 _ A -
illUbi 11 111 L11C 1ULU.J.O J.11AUJ. * ***v «"
mercury-containing lamps the Agency
decides to add them to the universal
waste regulations, the requirements
proposed on July 27,1994, would be
revised to be consistent with the
universal waste regulations promulgated
today. For example, instead of using the
terminology for universal waste
handlers from the proposed rule
(generators and consolidation points),
the terminology from today's final rule
would be used (small and large quantity
handlers of universal waste). The
concepts governing management of
mercury-containing lamps from the
proposed universal waste option (e.g.,
waste management controls, quantity
limits for notification), revised as
appropriate in response to comments,
would be incorporated into the
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25494 Federal Register / Vol. 60, No. 91 / Thursday, May 11. 1995 / Rules and Regulations
universal waste regulatory structure
promulgated today.
All of the comments submitted on the
universal waste proposal that addressed
the issue of how mercury-containing
lamps should be regulated and the
questions concerning the risks of
managing these wastes have been
included in the docket for the July 27,
1994, proposal on mercury-containing
lamps (docket number F-94-FLEP-
FFFFF). The Agency will respond to
those comments in the final rule on
mercury-containing lamps together with
comments submitted in response to the
July 27, 1994, proposal.
II.B. Redefinition of Solid Waste
Over the past several years EPA has
been exploring ways of clarifying the
"definition of solid waste" regulations,
which are the regulations that govern
hazardous waste recycling. The goals of
this effort are to eliminate disincentives
for hazardous waste recycling, ensure
that hazardous waste recycling is
environmentally protective, address »i<"
areas of underregulation, and simplify'
the definition of solid .waste regulations
to make them easier to comply with and
to implement. In mid-1992 the Agency
formed a Definition of Solid Waste Task
Force which met over the course of a
year with representatives of industry,
environmental groups, states, and EPA
regional offices to discuss possible
options. The Task Force has published
a final report recommending various
regulatory changes that could be made
to accomplish the goals of the project.
The report is entitled "Re-engineering
RCRA for Recycling: The Definition of
Solid Waste Task Force Report and
Recommendations," EPA publication
# EPA 530-R-94-016, and is available
by calling the RCRA Hotline listed
above in the For Further Information
section of this notice. It is expected that
the Agency will make decisions on how
to act on the Task Force's
recommendations within the next
several months.
Today's universal waste rule arises
out of some of the same past Agency
efforts as does the redefinition of solid
waste project, and has similar goals. The
two projects are not concurrent,
however, and each is now in a different
stage of development. While this is the
final rule setting up the structure of the
universal waste regulations, the
redefinition of solid waste is a longer
term project that has not yet reached the
point of regulatory revisions. Several
issues raised by the universal waste rule
and the redefinition project make it
important that the reader understand
the interaction between these two
projects.
First, the Universal Waste Rule is
designed to accomplish three general
goals. These goals consist of
encouraging resource conservation
while ensuring adequate protection of
human health and the environment,
improving implementation of the
current subtitle C hazardous waste
regulatory program, and providing
incentives for individuals and
organizations to collect the unregulated
portions of these universal waste
streams and manage them using the
same systems developed for the
regulated portion, thereby removing
these wastes from the municipal waste
stream. As discussed earlier, the goals of
the Redefinition of Solid Waste Force
include eliminating disincentives for
hazardous waste recycling, ensuring
that hazardous waste recycling is
environmentally protective, addressing
areas of underregulation, and
simplifying the definition of solid waste
regulations to make them easier to
comply with and to implement. In the
universal waste proposal the Agency
did not propose to make any changes to
the regulations governing facilities
recycling universal wastes (destination
facilities), and has not done so in this
final rule. Facilities recycling universal
wastes are thus subject to the same
regulations as any other hazardous
waste recycler. A number of
commenters suggested that the Agency
should lessen the regulatory
requirements for universal waste
recyclers to encourage recycling.
Although the Agency agrees that
encouraging safe recycling of these
wastes is an important objective, it
would be premature to make any
changes to the recycling regulations at
this time.
As part of the redefinition of solid
waste project, the Agency and other
interested parties have expended a great
deal of effort analyzing this issue and
discussing the best ways to accomplish
this goal. It would not make sense to
make any changes to the recycling
regulations now, since the final results
of the project are not available. Any
changes made now would not realize
the benefit of the efforts put into the
project. In addition, making changes
now could be very disruptive, since it
is likely that the recycling regulations
will be revised again shortly after the
universal waste regulations are in place
(i.e., incorporated into state regulations).
The Agency's goals for universal
waste recycling are the same as for all
other hazardous waste recycling. Thus,
when the Agency makes changes to the
recycling regulations as part of the
redefinition of solid waste project, these
changes will also be applied to
universal waste recycling.
Second, the Definition of Solid Waste
Task Force recommendations discuss a
category of recycling called "product
stewardship." Depending on the
direction taken by the Agency in this
area there may be some similarities to,
or overlap with, the universal waste
regulations. Any regulatory changes that
are made in this area as part of the
redefinition of solid waste will take into
account the status of the universal waste
regulations (e.g., what wastes have been
added, how many states have
implemented the regulations, and how
well the system is working). The Agency
will ensure that the product
stewardship portion of the redefinition
effort is coordinated with the universal
waste regulations as necessary and will
not disrupt existing programs.
II.C. Possible Revisions to the
Hazardous Waste Characteristics
EPA believes the approach in this
rulemaking is a useful new approach to
easing the burden while encouraging the
propei- management of wastes that pose
a hazard if mismanaged. There may be
certain hazardous wastes, however, for
which relief beyond that provided by
the universal waste rule may be
appropriate. One approach for doing so
is through reexamination of the existing
toxicity characteristic. EPA is going to
expeditiously investigate what sort of
effort would be involved in developing
modifications to the characteristics,
what sort of resources would be needed
to do that, and consider the benefits of
such an effort against the benefits of
other regulatory improvements EPA is
considering. A rulemaking to modify the
characteristics might potentially affect a
significant quantity of currently
regulated and currently unregulated
waste.
///. Summary of Final Universal Waste
Regulations
The part 273 regulations for managing
universal wastes promulgated today are
substantively very similar to those
proposed on February 11,1993. Thus,
the requirements that a person
managing universal wastes must follow
under this final rule are very similar to
those that they would have been
required to follow under the regulations
as proposed. However, in response to
comments from the public on the
proposal, the Agency has made a
number of changes to the regulations
that the Agency believes will improve
the environmental protectiveness of the
rule, make it easier for the regulated
community to comply with the
requirements, and make it easier for
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25495
implementing agencies to implement
Oie universal waste program.
JIM. Structure of the Final Rule
Although the final universal waste
rule requirements are substantively very
similar to those proposed, the final rule
may at first appear to be quite different
from the proposal because two major
structural changes have been made to
the universal waste regulations, 40 CFR
part 273. First, the terms used to refer
to some of the participants in the
universal waste system have been
changed in the final rule. To make the
final regulation easier to use and less
repetitive, the basic organization of the
regulation has also been changed from
the proposal.
The first major revision to the
structure of the regulation is that the
terms used to refer to some of the
participants in the universal waste
system have been changed. Specifically,
in the proposal there were four types of
regulated persons that manage universal
waste: Generators, consolidation points,
transporters, and destination facilities.
In the final rule there are also four types
of regulated persons. The transporter
and destination facility categories are
retained as they were proposed.
However, the persons who would have
been included in the proposed generator
and consolidation point categories will
now fit into either the category of small
quantity handlers of universal waste
(SQHUWs) or the category of large
quantity handlers of universal waste
(LQHUWs). Under the proposal, the
categories of generator and
consolidation point were distinguished
by the way wastes came to be at the
facility. Generators generated the waste
themselves on-site, and consolidation
points received the waste from off-site.
Under the final rule, the categories of
large and small handlers of universal
waste are distinguished by the amount
of waste accumulated on-site at any
time. LQHUWs accumulate 5,000
kilograms or more total of universal
wastes. SQHUWs accumulate less than
5,000 kilograms total.
The Agency decided to make this
change for several reasons. First,
numerous commenters suggested that
there should be a third category of
universal waste handler: front-line
collectors of universal waste who collect
small quantities of universal waste,
largely from consumers and small
businesses. These commenters pointed
out that such collectors would
frequently be retail-type operations (e.g.,
a department or specialty store that h—
a spent battery collection box)
participating in national or regional
collection programs. Such front-line
has
collectors would likely accumulate only
small quantities of universal waste
because only a minor portion of their
business is devoted to managing waste,
and because they would ship wastes
frequently using package shipping
services or similar systems set up by the
collection programs. Under the
proposal, these front-line collectors
would have been subject to the more
stringent consolidation point
requirements because they receive
wastes from off-site generators.
These commenters argued that front-
line collectors should be subject to less
stringent requirements than the
proposed consolidation point
requirements for several reasons. One
reason was that the universal waste they
would have on-site would pose limited
risk due to the small quantities
involved. Another reason was that some
of the requirements would inhibit the
participation of many retail-type
operations (such as the large retail
chains), thereby greatly limiting the
success of universal waste collection
programs in removing these wastes from
non-hazardous waste management
systems.
The Agency agrees with the concept
that the activities of persons such as
front-line collectors managing small
quantities of universal waste pose less
risk and require less stringent standards
than those managing larger quantities of
universal waste. Instead of adding an
additional category of front-line
collectors with less stringent standards,
however, the Agency decided to extend
this concept to all persons both
generating and collecting universal
waste. Thus, under the final rule,
persons accumulating large quantities of
universal waste (5,000 kg or more total
of universal waste accumulated on-site)
are called large quantity handlers of
universal waste, and are subject to more
stringent requirements than small
quantity handlers of universal wastes,
who are persons accumulating less than
5,000 kg total of universal waste. A
handler's designation as a large quantity
handler of universal waste is retained
through the end of the calendar year in
which 5,000 kilograms or more total of
universal waste is accumulated.
Another reason the Agency decided to
restructure the categories of persons
managing universal wastes was in
response to comments received on the
issue of recordkeeping for universal
waste shipments. The Agency had
proposed that a manifest be required for
shipments from final consolidation
points to destination facilities, based on
the concept that such shipments would
be larger shipments and thus require
closer tracking. In addition to other
issues, a number of commenters pointed
out that it is not necessarily true that
shipments from consolidation points to
destination facilities will be larger
shipments. For example, shipments
between consolidation points or
between generators and destination
facilities may also be large shipments.
The Agency agrees that it does not
necessarily make sense from a risk
perspective to require recordkeeping for
certain shipments based solely on the
type of universal waste management
activity conducted by the shipper and
receiver (i.e., whether the shipper
generates or collects universal waste or
whether the receiver collects or disposes
of universal waste) rather than on the
quantity of universal waste handled.
Thus, the Agency has decided to require
recordkeeping of LQHUWs but not
SQHUWs, and to define the categories
by the quantities of waste managed.
The second major change to the
structure of the rule is that it has been
reorganized. Part 273 of the proposed
rule included some general provisions
in the First subpart, and then each
subsequent subpart included the
regulations applicable to persons
managing each specific type of universal
waste. For example, subpart B covered
universal waste batteries, and included
requirements for generators,
transporters, consolidation points, and
destination facilities. Subpart C covered
universal waste pesticides, and also
included requirements for generators,
transporters, consolidation points, and
destination facilities.
A number of commenters pointed out
that this organization was unnecessarily
repetitive, particularly since the
majority of the requirements for each
type of participant in the universal
waste system was the same. In other
words, the requirements for generators
of batteries (or transporters,
consolidation points, or destination
facilities) were basically the same as the
requirements for generators of pesticides
(or transporters, consolidation points, or
destination facilities). These
commenters also noted that the rule
would become even more repetitive if
additional wastes were added in the
future, since a new subpart would have
to be added for each new universal
waste. These commenters suggested that
the rule would be easier to use if it were
structured such that general
requirements were presented together,
followed by specific differences for
persons managing particular universal
wastes.
The Agency agrees with these
commenters and has revised the final
rule accordingly. Subpart A of the final
rule includes general provisions such as
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25496 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
applicability and definitions. Subpart B
includes requirements applicable to
Small Quantity Handlers of Universal
Waste. Subpart C includes requirements
for Large Quantity Handlers of •! • •
Universal Waste. Subpart D covers the
requirements for transporters of '
universal waste. Subpart E sets forth
standards for destination facilities.
Subparts F and G, respectively, include
standards for imports of universal waste
and petitions to include other wastes
under Part 273.
Subparts B through E of the final rule
now include all of the requirements
applicable to one type of universal
waste manager, regardless of what type
of universal waste is being managed.
Thus, a universal waste manager who
may be handling more than one type of
universal waste need only read the one
section applicable to his or her
activities. Requirements that are .
different for particular waste types are
noted within the regulatory text. For
example, the waste management
sections for small and large handlers
each include a subsection setting forth
the requirements applicable to
management of a particular universal
waste. Subsection (c) addresses
batteries, subsection (d) pesticides, and
(e) thermostats.
The Agency believes reorganization
makes the final rule more user-friendly,
and thus will encourage participation in
universal waste collection programs.
The Agency also believes that the
regulatory sections within the subparts
are laid out simply and clearly, making
it easier to find any particular part of the
regulation.
Although this reorganization does
remove much of the redundancy of the
regulation (and will avoid adding
repetition in the future if new universal
wastes are added to the regulations),
readers may note that the small and
large quantity handler subparts of the
rule remain somewhat repetitive. This is
because, although these two groups
share many of the same requirements, in
three sections, the requirements are
different. These sections are
notification, tracking, and employee
training. One possibility would have
been to have only one handler subpart,
and specify the different requirements
for small and large quantity handlers
within each of these three sections.
However, the Agency believes that the
regulation will be easier for handlers to
follow if they determine once whether
they are small or large handlers, and
then read only the regulations
applicable to their category. Thus, the
Agency has decided to retain two
different subparts for small and large
quantity handlers.
Figure 1 illustrates the structure of the
final universal waste management
system.
BILLING CODE 6560-50-P
-------
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BASIC STRUCTURE OF THE UNIVERSAL WASTE SYSTEM
Small Quantity
Handler of
Universal Waste
(SQHUW)
273.6 • definition
Subpart B - requirements
U
273.6-definition
Subpart D - requirements
SQHUW
Subpart B
LQHUW
Subpart C
Subpart D
Destination
Facility
273.6
definition
Subpart E -
requirements
Large Quantity
Handler of
Universal Waste
(LQHUW)
273.6 - definition
Subpart C • requirements
O
273.6 - definition
Subpart D -requirements
SQHUW
Subpart B
LQHUW
Subpart C
U O
Subpart D
Destination
Facility
273.6 -
definition
Subpart E -
requirements
b8 r6JeCted a"d retumed t0 the Ori9inalin9 handler °f 'h« universal waste.
Requirements related to off-site shipments of these "rejected loads" are found in Part 273.18. 273.38. 273.55. and 273.61
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25498
Federal Register / Vol. 6LVNa 91 / Thursday, May 11, 1995 / Rules and Regulations
III.B. Summary of Universal Waste
Requirements
This section provides a summary of
the final universal waste regulations, 40
CFR part 273. Table 1 presents a
simplified overview of the types of
participants in the universal waste
system and the requirements applicable
to each type of participant. Each of the
universal waste requirements is
discussed in more detail in the later
sections of this preamble.
BILLING CODE 6560-50-P
-------
TABLE 1: OVERVIEW OF UNIVERSAL WASTE REGULATIONS1
Participants in
Universal Waste
System
Universal Waste
Requirements
Prohibitions
Notification
Waste Management
Requirements
Labeling/Marking
Storage Time Limits
Employee Training
Response to Releases
Off-Site Shipments
Tracking
Export Requirements
Small Quantity Handlers
of Universal Waste
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255QQ Federal Register / Vol. 60, No. 91 / Thursday. May 11. 1995 / Rales *n<\
III.B.l. Wastes Covered Under the
Universal Waste System
Three types of wastes are covered
under the universal waste regulations:
hazardous waste batteries, hazardous
waste pesticides that are either recalled
or collected in waste pesticide
collection programs, and hazardous
waste thermostats. Other wastes may be
added to the universal waste regulations
in the future, but at this time only these
three wastes are included.
III.B.2. Requirements for Participants in
the Universal Waste System
As illustrated in Table 1, there are
four types of participants in the
universal waste system: Small Quantity
Handlers of Universal Waste, Large
Quantity Handlers of Universal Waste,
Universal Waste; Transporters, and
Destination Facilities. Each of these
participants is described below.
Although there are ten basic universal
waste management requirements,
individual participants in the universal
waste system are not subject to all ten
requirements. Only those requirements
that have been determined to be
appropriate for a given type of
participant are included in the
regulations for that participant.
Throughout the universal waste
regulations, each of these ten basic
requirements is addressed in regulatory
sections using the same section
headings. For example, the same
requirements are addressed in the off-
site shipments section for SQHUWs as
are addressed in the off-site shipments
sections for LQHUWs, transporters, and
destination facilities. In some cases not
all issues within a section were
determined to be necessary for each
type of participant, so some sections do
not address every issue addressed in
other sections with the same heading.
III.B.2.a. Small and Large Quantity
Handlers of Universal Waste
There are two types of handlers of
universal waste. The first type of
handler is a person who generates, or
creates, universal waste. This is a
person who uses batteries, pesticides, or
thermostats and who eventually decides
that they are no longer usable and thus
are waste. Contractors or repair people
who decide that batteries or thermostats
are no longer usable and remove them
from service also generate universal
waste, and thus are handlers of
universal waste. The second type of
handler is a person who receives
universal waste from generators or other
handlers, consolidates the waste, and
then sends it on to other handlers,
recyclers, or treatment/disposal
facilities. Universal waste handlers
accumulate universal waste, but do not
treat, recycle, or dispose of the waste.
Each separate location (e.g., generating
location or collecting location) is
considered a separate universal waste
handler; Thus, if one company has
several locations at which universal
waste is generated or collected, each
location is a separate handler.
There are two sets of regulations for
handlers of universal waste. Subpart B
of part 273 sets forth the requirements
that small quantity handlers of universal
waste must follow. SQHUWs do not
accumulate 5,000 kilograms or more
total (all universal waste categories
combined) of universal waste at their
location at any time. Subpart C of part
273 sets forth the requirements that
large quantity handlers of universal
waste must follow. LQHUWs
accumulate 5,000 kilograms or more
total (all universal waste categories
combined) of universal waste at any
time. This designation as a large
quantity handler of universal waste is
retained through the end of the calendar
year in which 5,000 kilograms or more
total of universal waste is accumulated,
at any one time. The Agency realizes
that some handlers of universal waste
who would generally qualify as a small
quantity handler may have a one-time,
or infrequent, occasion to accumulate
5,000 kg of universal waste, at any one
time, on-site, thus requiring them to
comply with the large quantity handler
regulations in today's rule. The Agency
did not intend to require these handlers
to comply with the more stringent large
quantity handler requirements during
subsequent years in which they do not
accumulate 5,000 kilograms or greater.
The Agency clarifies in the definition of
large quantity handler of universal
waste, that this designation is retained
by the handler for the remainder of the
calendar year in which 5,000 kilograms
or more of universal waste was
accumulated. A handler may reevaluate
his status as a large quantity handler of
universal waste in the following
calendar year.
Subparts B and C each include eleven
sections (see Table 1; Note: the
"Applicability" section is not included
in this table). Because most of the
requirements are the same for SQHUWs
and LQHUWs, they are described
together. The first sections (40 CFR
273.10 and 273.30) are called
"applicability," and explain who the
subpart B and C requirements apply to.
The second sections, "prohibitions" (40
CFR 273.11 and 273.31), prohibit
handlers from disposing of, diluting, or
treating universal waste except in
certain circumstances. The third
sectiions, "notification," are different for
SQHUWs and LQHUWs. 40 CFR 273.12
notes that SQHUWs are not required to
notify EPA of their universal waste
activities and are not required to obtain
an EPA identification number. 40 CFR
273.32 requires LQHUWs to notify EPA
and to obtain an EPA identification
number.
The fourth sections, "waste
management" (40 CFR 273.13 and
273.33), explain the requirements
fSQHUWs and LQHUWs must follow
when handling universal waste. They
require that universal waste be managed
in a way that prevents releases to the
environment, specify packaging
requirements for universal wastes, and
set forth procedures that must be
followed when handling batteries (e.g.
? sorting battery types, mixing battery
^typesi, disassembling battery packs,
| removing electrolyte, etc.), and when
removing mercury-containing ampules
from thermostats. The next sections,
"labeling/marking" (40 CFR 273.14 and
273.314), require handlers to label or
mark universal wastes or containers of
universal waste to identify the type of
universal waste (e.g., used batteries,
pesticides). The "accumulation time
limit" sections (40 CFR 273.15 and
273.35) limit the time that handlers may
accumulate universal waste to one year
(with one exception), and require
handlers to be able to demonstrate that
wastes are not accumulated for more
than one year. The seventh sections,
"employee training" (40 CFR 273.16
and 273.36), are somewhat different for
SQHUWs and LQHUWs. SQHUWs must
distribute basic handling and emergency
information to employees handling
universal waste. LQHUWs must ensure
that employees are familiar with waste
handling and emergency procedures as
appropriate based on their
responsibilities.
The eighth sections are entitled
"response to releases" (40 CFR 273.17
and 273.37) and require handlers to
immediately contain any releases of
universal waste and to handle residues
appropriately. The "off-site shipments"
sections (40 CFR 273.18 and 273.38)
require handlers to send universal waste
only to persons within the universal
waste system and specify procedures to
be followed when a shipment is rejected
by the receiving facility. The ninth
sections, "tracking universal waste
shipments" (40 CFR 273.19 and 273.39),
are different for SQHUWs and
LQHUWs. SQHUWs do not have any
requirements. LQHUWs must maintain
basic records documenting shipments
received at the facility and shipments
sent from the facility. The last sections,
"exports" (40 CFR 273.20 and 273.40),
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Federal Register / Vol. 60. No. 91 / Thursday. May 11. 1995 / Rules and Regulations
specify notification procedures that
must be followed when handlers ship
universal wastes to foreign destinations.
IJLB.2.b. Transporters of Universal
Waste
The requirements for transporters of
universal waste are found in subpart D
of part 273. See Table 1. Transporters
are persons who transport universal
waste from handlers of universal waste
to other handlers, destination facilities,
or foreign destinations. A transporter
may be an independent shipper
contracted to transport the waste, or
may be a handler who self-transports
the waste. A universal waste handler
who self-transports his waste becomes a
transporter for those self-transportation
activities and is subject to the
requirements of subpart D of this rule.
The universal waste rule does include
some specific requirements for
transporters. However, the basic
approach to transportation under the
universal waste system is that no
hazardous waste manifests are required,
and transporters must comply with the
Department of Transportation (DOT)
requirements that would be applicable
to the waste if it were being transported
as a product. For example, if
transporting universal waste batteries,
the transporter must comply with the
appropriate DOT requirements, which
are based on whether the particular
battery type is a DOT hazardous
material, and if so, which DOT
hazardous material requirements apply
to the specific battery type.
The universal waste transporter
requirements consist of seven sections.
The first, "applicability" (40 CFR
273.50), explains to whom the
transporter requirements apply.
"Prohibitions" (40 CFR 273.51),
prohibits transporters from disposing of,
diluting, or treating universal waste.
The third section, "waste management"
(40 CFR 273.52), explains that
transporters must comply with
applicable DOT requirements if the
waste they are transporting is a
hazardous material under DOT
regulations. The fourth section, entitled
"accumulation time limits" (40 CFR
273.53), notes that transporters may
store waste for up to ten days at a
transfer facility during the course of
transportation. Transfer facilities are
transportation related facilities such as
loading docks, parking areas, and
storage areas. If a transporter stores
waste for more than ten days at one
location, the transporter must comply
with the appropriate universal waste
handler rules while storing the waste.
The fifth transporter section,
"response to releases" (40 CFR 273.54),
requires transporters to immediately
contain any releases of universal waste
and to handle residues appropriately.
"Off-site shipments" (40 CFR 273.55)
prohibits transporters from transporting
universal waste to any place other than
a universal waste handler, destination
facility, or foreign destination. Finally,
"exports" (40 CFR 273.56), requires
transporters to follow certain
requirements for exports of hazardous
waste.
III.B.2.C. Destination Facilities
The requirements for destination
facilities are found in subpart E of part
273. See Table 1. Destination facility
means a facility that treats, disposes of,
or recycles a particular category of
universal waste, except those
management activities described in
paragraphs (a) and (c) of §§ 273.13 and
273.33. A facility at which a particular
category of universal waste is only
accumulated, is not a destination
facility for purposes of managing that
category of universal waste.
The universal waste rules include
only two specific universal waste
requirements for destination facilities.
In general, however, these facilities are
subject to the same requirements that
are applicable to treatment, storage, and
disposal facilities under the full
hazardous waste regulations. This
includes permitting as well as general
facility standards and unit specific
requirements. In addition to the full
hazardous waste requirements, there are
three sections specifying universal
waste requirements for destination
facilities. For the most part these
requirements simply mirror universal
waste handler requirements for receipt
of universal waste, since destination
facilities also receive universal waste.
First, "standards for destination
facilities" (40 CFR 273.60) indicates
which of the full hazardous waste
regulations destination facilities must
follow. These are the same full
hazardous waste regulations these
facilities would be subject to if they
were handling non-universal hazardous
wastes. Specifically, facilities that treat,
dispose of, and recycle universal wastes,
except for those activities described in
paragraphs (a) and (c) of §§ 273.13 and
273.33, are subject to the permitting or
interim status requirements of 40 CFR
parts 264 or 265. Facilities that recycle
universal waste without accumulating
the waste before it is recycled are
subject to the recycling requirements of
40 CFR 261.6(c)(2).
Second, "off-site shipments (40 CFR
273.61) sets forth procedures for
rejecting a shipment of universal waste.
Finally, "tracking universal waste
shipments" (40 CFR 273.62) requires
destination facilities to retain the same
records for receipt of universal waste
shipments that LQHUWs are required to
retain. By documenting receipt of
universal waste shipments, these
records complete documentation of
shipments sent from handlers.
III.B.3. Import Requirements
Subpart F of the universal waste
regulations clarifies the requirements for
universal wastes that are imported. In
general, once universal waste enters the
United States it is subject to the same
universal waste requirements it would
be if it had been generated in the United
States.
1II.B.4. Petitions to Include Other Wastes
Under Part 273 .-,
Subpart G of part 2^3 includes two
sections setting forth the procedures to
be used to petition the Agency to add
additional wastes to the universal waste
regulations. Further requirements are
specified in 40 CFR 260.20 and 260.23.
IV. Detailed Discussion of Final Rule
W.A. Goals of Final Rule
In the proposed part 273 regulations,
EPA proposed a set of special
requirements for universal hazardous
wastes which were designed to
accomplish three general goals. One
goal was to encourage resource
conservation, while ensuring adequate
protection of human health and the
environment. Another broad goal
defined in the proposal was to improve
implementation of the current subtitle C
hazardous waste regulatory program.
And, the final goal, by simplifying the
requirements and encouraging
collection of these hazardous wastes,
EPA hoped to provide incentives for
individuals and organizations to collect
the unregulated portions of these
universal waste streams (e.g., from
households or CESQGs) and manage
them using the same systems developed
for the regulated portion, thereby
removing these wastes from the
municipal waste stream and minimizing
their input of hazardous constituents to
municipal landfills, combustors, and
composting projects. Each of these goals
is discussed below.
The first goal for the universal waste
rule stated in the proposal was to
encourage resource conservation. EPA
believes that today's final rule serves to
stimulate achievement of this goal.
While today's final rule applies to both
universal wastes destined for recycling
and those destined for disposal, as
proposed, several features of the rule
remove major obstacles faced by persons
-------
_
desiring to recycle these wastes. Today's
nnal rule reduces the management
requirements for generators,
consolidation points (in the final rule
referred to as small and large quantity
handlers of universal waste), and
transporters. Destination facilities must
continue to meet all requirements,
except manifesting requirements, of the
subtitle C regulations. By relaxing the
standards for these handlers, collection
of universal waste is simplified, thereby
encouraging participation in collection
programs. The Agency believes that the
ability to access large quantities of
universal waste from central collection
centers may encourage the development
and use of safe and effective ways to
recycle these wastestreams. Conversely
limiting the rule to universal waste
destined for recycling only, may
discourage the use'and development of
recycling technolbgies as universal
waste handlers may be hesitant to
participate in a program that requires
knowledge that their universal waste is
recycled.
The second goal of today's final rule
is to improve implementation of the
hazardous waste program. EPA believes
that today's rule, as modified in
response to comments, will have
significant impacts on waste
management practices nationwide
Implementation of the hazardous waste
program will be improved by the
simplified set of requirements set forth
in the rule. The provisions are now
written such that they are more easily
understood by handlers of universal
wastes. The Agency believes that
today's final rule is protective of human
neaitn and the environment, will be
clear and easily understood by the
diverse community which is targeted in
this rule, and will not require expending
unreasonable amounts of time and effort
to understand the applicable
requirements. The final rule also allows
the part 273 regulations to be applied to
all universal wastes, regardless of
whether they are destined for recycling
or disposal. Thus, compliance and
enforcement procedures are easier to
implement. Finally, because the final
rule does not require that universal
waste handlers count those universal
wastes managed under part 273 toward
their monthly quantity determination
today's rule will greatly simplify the
procedures used to determine monthly
hazardous waste generation rates for
universal waste handlers, thus
facilitating the implementation of the
regulations.
The third goal of today's final rule is
to separate universal waste from the
municipal waste stream. Under the full
subtitle C regulations, the management
of waste differs based on the waste's
generation source. That is, waste
generated by consumers in their homes
is not regulated under RCRA Subtitle C
when discarded, because it is excluded
from the definition of hazardous waste
under 40 CFR 261.4(b)(l). Conversely,
tne same waste would be subject to
RCRA Subtitle C regulation if generated
by commercial establishments,
industries and other non-exempt
generators. Wastes covered under the
universal waste regulations (batteries
pesticides, and mercury thermostats) are
examples of wastes that are generated by
both groups. Because the waste itself is
the same, and therefore looks the same
to waste handlers, universal waste that
belongs in a hazardous waste system
may, °f, entering municipal solid waste
landfills or combustors instead. The
Agency believes that today's rule is
practicalenough that, as an
infrastructure develops for collecting
universal waste, all categories of
handlers will manage their universal
waste under the part 273 requirements.
Therefore, in the final rule, management
of universal waste is material-specific
rather than source-specific, therefore
universal waste, regardless of the source
ot generation, should be easily managed
under today's final rule. 8
IV. B. Scope of Final Rule
This section discusses the scope of
tne nnal universal waste rule. The first
section discusses the question raised in
the proposal of whether the universal
waste system should be limited to
wastes that are recycled, or should
include both wastes that are recycled
and wastes that are treated and
disposed The second section discusses
each of the wastes that have been
included in the final rule, and several
wastes that have not been included. The
third section addresses another question
raised in the proposal, whether
Conditionally Exempt Small Quantity
Generators (CESQGs) should be required
to manage their universal wastes under
the universal waste system or have the
option of managing the waste under the
existing CESQG exemption.
W-B.l. Recycling Versus Recycling or
Disposal 6
The Agency requested comment in
tne proposed universal waste rule on
whether the streamlined universal waste
rffPllljlHr^ne oli^nU „ . .1
.„» mv, oucaiiiiumu umversa
regulations should cover wastes that are"
to be either recycled or disposed of, or
whether they should be limited only to
wastes that are to be recycled. The
Agency discussed three options: (1)
Limiting the regulations to recycled
wastes only; (2) allowing management
of wastes that are to be either recycled
or disposed of; or (3) a hybrid of options
1 and 2 under which generators and
transporters could manage waste that
was to be either recycled or disposed of
under the streamlined universal waste
regulations, but the streamlined
regulations would be available only to
consolidation points that send wastes
on tor recycling.
The proposed regulatory text was
crafted following option 2: the
streamlined regulations would be
applicable to both recycled and
disposed of wastes. Although limiting
the regulations to recycled wastes might
encourage recycling, which the Agency
supports, the Agency explained that at
the time it believed that not limiting the
regulations was the best option for a
number of reasons. The vast majority of
commenters who addressed this issue
agreed that the universal waste
regulations should be available for both
wastes that are recycled and wastes that
are disposed of. Commenters generally
agreed with the Agency's basis for not
limiting the regulations and also
discussed additional supporting factors
Based on these comments, the Agency
has decided to include both recycled
and disposed of universal wastes under
the final universal waste regulations of
part 273. The main reasons that
commenters supported this approach
and that the Agency has chosen this
approach for the final rule are discussed
below.
Not limiting the universal waste
system to recycled waste makes the
regulations much less complex and
more user friendly, thus encouraging
participation in universal waste
collection programs. Persons are more
likely to be willing to participate in
collection programs if they are not
required to determine whether recycling
is available and cost effective,
particularly in situations where
recycling markets and capacity are
volatile. In these cases it may not
actually be possible to make such a
determination early in the collection
system, and the determination may vary
over timei, making compliance and
enforcement difficult. The Agency
believes, and commenters agreed, that
less complex regulations will increase
collection of universal wastes. Increased
collection under the universal waste
regulations will result in increased
environmentally protective management
of universal wastes at Subtitle C
hazardous waste facilities. The Agency
believes that the environmental benefits
to be obtained from improved
management of these wastes, whether it
is recycling or treatment and disposal
outweigh the possible increases in '
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Keri^r / V°l. 60- No. 9! / Thursday.
Rules and Regulations 25503
recycling that might occur if the
retaliations were limited.
Not limiting the regulations also
avoids one problem that the Agency and
the regulated community have had
difficulties with in the past. Regulations
that are based on the intent of a person
to do something in the future are very
difficult to enforce, and sometimes even
make it difficult for regulated persons to
know what regulations they should be
following. The Agency believes, and
commenters agreed, that the compliance
and implementation difficulties that are
inherent in requirements that vary
depending on a future action (e.g.,
recycling or disposal) make
distinguishing between wastes to be
recycled and wastes to be disposed ot
infeasible under the universal waste
regulations. . ,
Several commenters argued that
limiting the regulations to recycled
waste might, in fact, discourage
collection and recycling. Commenters
believed that persons are not likely to be
.... . i|o_k _..Miln*« Frty. nnfontml
DOHOVeu inai uoiouno <"v>».—. j_ --
willing to collect wastes for potential
recycling under the universal waste
regulations if they are vulnerable to
liability for full Subtitle C violations, if,
at a later time, they determine that
recycling is not available. Given the
volatility of recycling markets and
capacities, particularly for recycling
technologies that are under
development and not fully established,
this is a real concern. One commenter
also pointed out that some universal
wastes are likely to be collected in
mixtures of recyclable wastes and non-
recyclable wastes (e.g., mixed batteries).
Such wastes would have to be managed
under the full hazardous waste
regulations, thus nullifying the benefits
of the universal waste regulations,
inhibiting collection of even the
recyclable wastes, and ultimately
limiting recycling. The Agency agrees
with these commenters that the
difficulties inherent in having two
systems based on the ultimate
disposition of the waste is not practical
and may, in some cases, actually inhibit
re Several commenters argued that
providing streamlined regulations only
for recycled wastes would provide an
even greater incentive than already
exists for persons managing wastes to
claim that they are recycling, when their
operations may be sham rather than
legitimate recycling. This would make it
even more difficult for both persons
shipping wastes to recyclers and
regulating agencies to determine
whether persons claiming to be
recycling (or sending wastes to
recycling), are legitimately recycling.
The Agency's experience has been that
it is not an easy task to determine
whether an operation is a legitimate or
sham recycler. The added incentive for
sham recycling, and the increased
importance of distinguishing legitimate
from sham recycling would further
complicate a system limited to recycled
wastes, making it less effective in
accomplishing the goals of removing
waste from non-hazardous waste
management systems and improving
implementation of the hazardous waste
regulations.
Numerous commenters pointed out
that there may be a number of wastes for
which the universal waste system
would be successful in greatly
improving waste management practices,
but for which recycling is not available
because it is not either technologically
or economically feasible. Waste
pesticides are a good example.'
Recycling is rarely, if ever, an option
and incineration is frequently the only
management option available. If the
universal waste regulations were limited
to wastes that are recycled, waste
pesticides could not be included. This
would greatly limit the environmental
benefits to be obtained from collection
and proper management of pesticides,
and other similar wastes, under the
universal waste regulations. These
commenters, and the Agency, agree that
the benefits of encouraging proper
management for such wastes far
outweigh the possible increases in
recycling that might occur if the
regulations were limited.
Finally, the Agency notes that the
treatment standards of the land disposal
restrictions program specifically require
recycling for many wastes included in
the final universal waste rule, including
lead-containing batteries, cadmium-
containing batteries, and high
concentration mercury wastes such as
hieh-mercury batteries and thermostats.
Land disposal, and treatment followed
by land disposal, is not allowed for
these wastes. Under the final rule, all
universal wastes must go to a
destination facility for any treatment,
recycling, or disposal. The land disposal
restrictions, including the treatment
standards, are fully applicable to
destination facilities. Thus, for these
universal wastes recycling is actually
i . __ Ttl_ -. A nnnr+iT TfcC^tOC tVlflT 1TI
IV.B.2. Wastes Included in Final Rule
universal wastes reuyv,n"5 ^ «~ j
mandatory. The Agency notes that in
cases such as these the land disposal
restrictions program has been used to
require recycling for particular
hazardous wastes where it has been
determined to be the best demonstrated
available technology (BDAT). These
requirements continue to apply under
the universal waste regulations.
In the universal waste proposal,
hazardous waste batteries and
suspended and/or cancelled pesticides
that are recalled were included as
universal wastes in the proposed
regulatory text. In the preamble, the
Agency suggested several additional
waste types for which it believed
regulation under the universal waste
system might be appropriate. The waste
types discussed included spent
antifreeze, paint residues, used
thermometers, and used thermostats.
The Agency requested comment on
whether these wastes'should be
included in the universal waste system,
and on what requirements would be
appropriate to include in the regulations
to ensure that management under the
universal waste regulations was
protective of human health and the
environment. Specific waste
management requirements for.
thermostats were discussed in some
detail. The Agency has decided to
include three waste categories in the
final universal waste rule: hazardous
waste batteries, certain hazardous waste
pesticides, and hazardous waste
thermostats. These wastes are exempt
from 40 CFR parts 262—270, except as
specified in 40 CFR part 273. These
wastes are now subject to the new part
273 regulations and, therefore, are not
fully regulated under the current
hazardous waste regulations. The
universe of wastes included in each 01
these categories is discussed in detail in
the subsections below. Comments
received on each of the waste categories
and the Agency's responses to these
comments are also discussed. Also
discussed are several waste types lor
which a number of comments were
received, but that were not included in
the final universal waste rule.
IV.B.2M. Hazardous Waste Batteries
The Agency proposed to include all
batteries that are hazardous waste in the
universal waste regulations, to
encourage collection and proper
management of these wastes. The mam
reason for including all batteries was to
simplify the regulations and make them
easy to comply with. The Agency
requested comment on several issues,
including the proposed definition of
battery, whether the regulation should
distinguish between "wet" and "dry
batteries, whether the regulation should
distinguish between various sizes of
batteries, and how lead-acid batteries
should be addressed. This latter issue is
discussed in detail in the following
section of this preamble.
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The Agency has decided to generally
retain the proposed approach to
including batteries in the final rule.
Thus, all batteries that are hazardous
waste may be managed under the final
universal waste regulations. However,
based on comments received, the final
definition of battery has been revised
from the proposal. A number of
commenters raised questions
concerning the proposed definition and
suggested various ^revisions. Several
commenters also recommended using a
standard definition that is already in use
and accepted by major industry groups.
One commenter identified the American
National Standards Institute (ANSI)
standard definitions for battery and cell,
and recommended using a combination
of the two.
The Agency agrees that a recognized,
standard definition for battery is most
likely to properly identify the universe
of articles that should be covered by the
universal waste regulations. The
Agency's intent is to include those items
commonly understood to be batteries,
without inadvertently including other
items or excluding some particular type
of battery. A standard definition is most
likely to accomplish this. Thus, the
Agency has chosen to use a combination
of the American National Standards
Institute (ANSI) standard definitions for
battery and electrochemical cell to
define the term battery in the final rule.
(See "The New IEEE Standard
Dictionary of Electrical and Electronics
Terms," Fifth Edition, published by the
Institute of Electrical and Electronics
Engineers, Inc., IEEE Standard 1000-
1992.) The definition of battery in the
final rule is "a device consisting of one
or more electrically connected
electrochemical cells which is designed
to receive, store, and deliver electric
energy. An electrochemical cell is a
system consisting of an anode, cathode,
and an electrolyte, plus such
connections (electrical and mechanical)
as may be needed to allow the cell to
deliver or receive electrical energy. The
term battery also includes an intact,
unbroken battery from which the
electrolyte has been removed."
As suggested by commenters, the final
definition has been revised to specify
that a battery must store electrical
energy in addition to receiving and
delivering electrical energy. This
distinction is to ensure that gas-powered
or electric generators are not included.
The definition has also been expanded
to clarify that the definition of battery
does include batteries from which the
electrolyte has been removed. This was
clearly the intent of the proposal, which
specifically allowed removing
electrolyte from batteries. Commenters
did not object to electrolyte removal, but
were concerned that it be clear that
batteries may not be crushed or broken
to remove electrolyte. Note also that the
waste management requirements for
batteries prohibit breaking batteries
during electrolyte removal.
With respect to the question of
whether the universal waste regulations
should distinguish between "wet" and
"dry" batteries (batteries with a liquid
vs. non-liquid electrolyte), those
commenters who addressed this issue
agreed that no distinction should be
made. The Agency has decided to
include both types of batteries in the
regulation based on these comments and
the argument that including all
hazardous waste batteries greatly
simplifies the regulations, making them
easier to comply with and thus
encouraging collection and improved
management. Similarly, the Agency has
decided to include all sizes of batteries
in the final rule. Few commenters
addressed this question, and again the
Agency believes that not limiting the
universal waste system will result in
improved management of all batteries,
regardless of size.
Finally, a number of commenters
raised questions about which types of
batteries exhibit characteristics of
hazardous waste and therefore would be
covered under the universal waste
system. Several commenters requested
that the Agency specify which battery
types are hazardous. A few commenters
provided some data on various types of
batteries, but the Agency did not find
the data to be comprehensive enough to
make broad generalizations about
whether various battery types are
always or never hazardous. In addition,
the Agency found it was not possible to
commit the resources that would be
required to conduct sufficient testing of
numerous brands, sizes, and ages of
batteries to make any broad
generalizations. Furthermore, even if
resources were available, it would likely
not be possible to make definitive
determinations in any case.
As a result, the Agency has decided
to retain the proposed approach of using
the term "hazardous waste batteries" to
identify the universe of batteries that
may be managed under the universal
waste regulations. As is true under all
of the hazardous waste regulations, it
remains up to the generator (handler) of
batteries to determine whether they
must be managed under the hazardous
waste regulations at all. If so, then the
universal waste regulations apply.
However, the Agency continues to
believe that the universal waste
regulations are simple and basic enough
that it will be easier and more efficient
to manage all kinds of batteries, and
particularly mixed batteries, under the
universal waste system rather than
making individual determinations about
batteries or battery types.
Of course, where sufficient
information is available for a generator
(or other handler) to determine that a
particular battery is not hazardous, then
that battery need not be managed under
the universal waste regulations.
However, one of the Agency's goals for
the universal waste system has been to
reduce the complexity and burden of
complying with the hazardous waste
regulations for these wastes. One of the
major difficulties with the hazardous
waste regulations has been hazardous
waste determinations in cases where
wastes are generated in small quantities
by large numbers of people who are not
familijir with the specific composition
of the waste. Batteries are a classic
example of this problem. Thus, the
Agency hopes that the universal waste
regulations are sufficiently improved to
allow persons to manage batteries
within the universal waste system
without placing too much emphasis on
whether they are hazardous or not.
Obviously, in cases where it is known
that batteries are not hazardous this is
not necessary. But where it is not
known, it is hoped that resources will
be spent on improved management
rather than on extensive, initial
analytical work.
The Agency would like to note that
the Universal Waste Rule applies only
to hazardous waste batteries as defined
in 40 CFR 260.10 and 273.6, and not to
the unit or device in which the battery
is contained. There may be a situation
in which a regulated business is sending
a device containing a battery to a facility
to be repaired. At this point, the device
would not be considered a universal
waste as: (1) The device is still a
product:, and therefore not yet a solid
waste; and (2) the device does not fall
into any of the current categories of
universal waste (hazardous waste
batteries, thermostats, and certain
pesticides). If, however, the person
(either the original generator or the
repair facility) decides to dispose of the
device, he must determine if the entire
device is or is not a hazardous waste.
IV.B.2.b. Lead-Acid Batteries
In the proposed rule, EPA proposed to
maintain the current exemption for
lead-acid batteries under subpart G, part
266. Under these regulations, persons
who generate, transport, or collect spent
lead-acid batteries, or who store them
but do not reclaim them (other than
spent batteries that are to be
regenerated) are not subject to the
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25505
hazardous waste regulations. Persons
who accumulate spent lead-acid
batteries before reclaiming them (e.g.
cracking, and/or smelting the batteries)
must notify EPA and obtain a RCRA
permit for that storage. Under the
universal waste proposal, persons had
the option of continuing to manage lead-
acid batteries under the part 266,
subpart G exemption or under the part
273 requirements. The existing
recycling program for automotive lead-
acid batteries currently in place, which
operates under this exemption, has been
extremely successful, with recycling
rates in excess of 90% nationwide. By
retaining the part 266, subpart G
exemption, the Agency believes that this
program can continue to operate
without unnecessary modifications nor
an adverse effect on the environment.
Therefore, in today's final rule, the
subpart G, part 266 exemption has been
retained. Therefore, handlers of spent
lead-acid batteries are who are
managing them under the requirements
of § 266.80 are not subject to the
requirements under 40 CFR part 273.
However, handlers of spent lead-acid
batteries who are not managing them
under the § 266.80 requirements are
subject to the requirements under 40
CFR part 273.
In addition, 40 CFR 266.80 (a) and (b)
have been revised to clarify that lead-
acid batteries that are regenerated
remain exempt from the hazardous
waste regulations throughout the
management cycle. Since the final rule
retains the lead-acid battery provisions
of 40 CFR 266.80, it is most appropriate
to also include regenerated lead-acid
batteries so that all lead-acid batteries
may be managed similarly. However,
since the activities of a regeneration
facility are more similar to a facility that
accumulates waste than a facility that
processes a waste to recover a usable
product, batteries that are regenerated
have also been exempted from the
requirements for lead-acid battery
reclamation facilities (for further
discussion of regenerated batteries, see
section IV.J. of today's preamble).
Most commenters agreed that the
current exemption for lead-acid
batteries under subpart G of 40 CFR part
266 should be retained. Commenters
agreed that by maintaining this
exemption, the current recycling
program for automotive lead-acid
batteries can continue to operate
successfully.
A few commenters, however, argued
that EPA should consolidate all
requirements applicable to batteries into
one set of regulations to reduce
confusion on the part of handlers as to
which requirements must be complied
with for proper management. Some
commenters stated that extending the
part 266 exemption to all batteries
would be the most appropriate, while
others express a desire for all batteries
to be incorporated into part 273. Others
recommended a combination of the two
by incorporating the part 266 exemption
into the part 273 regulations.
The Agency believes that retaining the
exemption under part 266, subpart G
will not make the management of
hazardous waste batteries overly
confusing or complex. The part 266,
subpart G exemption is primarily used
for the reclamation of automotive lead-
acid batteries, which are easily
identifiable. As such, the Agency
believes separate management of this
waste stream is simple to accomplish
and therefore does not place a burden
on handlers managing these batteries.
It was noted by one commenter that
automotive batteries of various
formulations are currently under
development for use in electric vehicles,
and thus, in the future, the chemistry of
automotive batteries (eg., lead-acid
versus other formulations) may not be as
easily identifiable as it is at this time.
The Agency would like to clarify that
under the hazardous waste regulations
as revised by today's addition of part
273, if the handler believes a battery is
a hazardous waste but is not clear
whether the battery is lead-acid or
another chemical formulation, the
battery should be managed under part
273 regulations. The Agency believes,
however, that the final part 273
requirements are simple and
straightforward enough that
management of any mixed battery types,
including electric vehicle batteries, will
not be overly burdensome.
Another commenter expressed
concern regarding the management of
small (non-automotive) lead-acid
batteries. The Agency expects that
small, sealed dry cell lead-acid batteries
will likely be handled under the part
273 regulations along with other
hazardous waste batteries, therefore
eliminating the need for the handler to
separate these batteries from other
hazardous waste batteries. Managing
small sealed lead-acid batteries together
with other hazardous waste batteries
under part 273 is acceptable under the
final rule.
FV.B.2.C. Hazardous Waste Pesticides
Among the wastes proposed to be
included in the universal waste
regulations was a narrowly limited set
of hazardous waste pesticides.
Specifically, the proposed rule
established streamlined requirements
for the collection of unused pesticides
that are suspended or canceled under
section 6 of the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA)
and recalled, and that are collected for
discard. FIFRA regulates pesticides from
initial distribution by producers to
ultimate disposal. As proposed, to meet
the applicability criteria of part 273, the
pesticides were required to be: (a) Part
of a voluntary or mandatory recall under
FIFRA section 19(b); or (b) owned by a
registrant responsible for conducting a
recall under FIFRA section 19(b); or (c)
part of a registrant-conducted recall of a
canceled or suspended pesticide under
FIFRA section 6. A number of changes
have been made to the;universe of
pesticides covered in the universal
waste rule and in the corresponding
regulatory text, which.was proposed to
delineate which pesticides were or were
not subject to the requirements of part
273.
First, in the final rule, the Agency has
expanded and organized the
applicability section for pesticides into
four subsections, as follows: (1)
Pesticides covered under part 273; (2)
pesticides not covered under part 273;
(3) generation of hazardous waste
pesticides; and (4) pesticides that are
not wastes. The Agency decided to
restructure the pesticides applicability
section in this way because several
commenters stated that it was difficult
to determine which pesticides were
covered or which pesticides were not
covered under the proposed rule. For
example, the proposal § 273.20(a)
included §§ 273.20(a) (2) and (3) which
both described hazardous waste
pesticides not covered under part 273.
Similarly, § 273.21(a) included
§ 273.21(a)(2) which described recalled
pesticides that never become hazardous
wastes and thus are never generated.
The Agency agrees that these and other
sections could confuse readers
attempting to determine whether their
pesticides were covered under part 273.
The Agency believes that the
restructured applicability section for
pesticides, 40 CFR 273.3, will be much
more clear and less cumbersome in that
all of the provisions addressing which
pesticides are covered are now located
in one section and the section is clearly
organized to assist readers in making
this determination.
Second, the universe of pesticides
included under the final universal waste
regulations has been expanded. This
expansion is codified in § 273.3(a),
which describes the types of hazardous
waste pesticides that are considered
universal wastes and may be managed
under part 273. The first paragraph of
this § 273.3(a)(l) rewords, but
essentially retains, the proposed
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regulatory text from § 273.20(a)(l) that
described the recalled pesticides that
are subject to FIFRA recall procedures
and were proposed to be managed as
universal wastes. The second paragraph
of this § 273.3(a)(2), has been added to
the final rule and describes the universe
of pesticides that has been added to the
universal waste regulations in addition
to the recalled pesticides described
above. Specifically, the Agency has
broadened this section to include
unused pesticide products that are
collected and managed as part of a
waste pesticide collection program.
These unused pesticide products are
generally materials that are no longer
useful for their intended purpose.
Frequently, they are agricultural
pesticides that have been banned for use
on crops or are obsolete and have been
replaced by newer products. They may
also be pesticides that have become
damaged (e.g., exposed to temperature
extremes) or that are no longer needed
due to factors such as changes in
cropping patterns.
Ultimately, farmers nationwide have
accumulated these materials in their
sheds or barns for many years. To
encourage the removal of unused
pesticide products from long term
accumulation on the farm, a number of
state agricultural departments have
implemented programs to collect and
properly dispose of these materials. By
including unused pesticide products
under part 273, farmers will be able to
ship their universal waste pesticides to
the collection programs without needing
to meet the full requirements under 40
CFR parts 260 through 272.
Several factors prompted the Agency
to include unused pesticide products
that are collected and managed as part
of waste pesticide collection programs
into the part 273 universal waste
management standards. One factor for
including unused pesticide products
was that unused pesticide products are
generated by a wide variety of
generators and are present in large
amounts in the agricultural community.
Another factor was that potential risks
posed by the presence of unused
pesticide products during accumulation
and transport are similar to the risks
posed by recalled pesticides during
accumulation and transport. Finally, the
inclusion of unused pesticides under
part 273 will greatly facilitate
participation and implementation of
state programs that are currently
collecting the unused pesticide products
found on farms.
Most of the commenters addressing
pesticide related portions of the
proposed rule supported including such
unused pesticide products in the final
rule. These commenters specifically
argued that unused pesticides posed
risks similar to risks posed by pesticides
already included under the proposed
regulations. Some commenters, argued
that if the proposed pesticide
regulations for recalled pesticides could
be expanded to include stocks of
unused pesticide products, state
approved programs currently collecting
unused pesticide products could greatly
improve participation by farmers. These
commenters indicated that certain
current requirements under 40 CFR
parts 260 through 272 had deterred
many farmers from participating in, and
benefitting from, waste pesticide
collection programs, and that
streamlined requirements under part
273 would remove many such barriers
to participation.
Third, the Agency has developed a
subsection under the final rule which
describes the types of pesticides that are
not covered under part 273. Paragraph
273.3(b)(l) reiterates that qualifying
hazardous waste pesticides can be
regulated in compliance either with 40
CFR parts 260 through 272 or with part
273. For example, farmers managing
hazardous waste pesticides in
compliance with 40 CFR 262.70 are not
subject to the regulations of part 273.
Under § 273.3(b)(2) of the final rule,
hazardous waste pesticides that do not
meet the conditions described in
§ 273.3(a) are required to comply with
the full hazardous waste regulations in
40 CFR part 260 through 272. This
provision has been retained from
§ 273.20(a)(2) of the proposed rule.
Similarly, §§273.3(b) (3) and (4), which
describe recalled pesticides that are not
yet solid wastes and therefore are not
subject to the hazardous waste
regulations including part 273, have
also been retained from the proposed
regulatory text from § 273.21(a)(2).
Again, the Agency recodified these
paragraphs in one subsection of the final
rule to make it clearer to the reader
which types of hazardous wastes are not
covered under part 273 standards of the
final rule.
The text in the applicability section
for universal waste pesticides was
complex in the proposed rule. Part
273.21(a) ("Generation of Hazardous
Waste Pesticides), the Agency proposed
criteria to establish the date at which
waste pesticides are generated, but also
included criteria to distinguish when
pesticides are or are not solid wastes
and, therefore, not subject to the
hazardous waste regulations. To clarify
the applicability section of the final
rule, the final rule text separates these
criteria into two separate paragraphs
(§§273.3 (c) and (d)), as described
below.
Section 273.3(c) will help readers
determine the date at which a recalled
or unused pesticide becomes a waste.
Understanding this factor is important
since a pesticide that has not become a
waste also has not become a hazardous
waste and is not covered under part 273
(see also preamble discussion on
§§ 273.3 (b) and (d)). The text in
§ 273.3(c)(l) simplifies but retains the
meaning of text in § 273.21(a)(l) of the
proposed rule. Section 273.3(c)(l) states
that a recalled pesticide becomes a
waste on the first date on which two
conditions occur. These conditions are:
(1) Title generator of the recalled
pesticide agrees to participate in the
recall; and, (2) the person conducting
the recall decides to discard the
pesticide or burn the pesticide for
energy recovery. For example, if a
farmer decides to participate in a recall
and sends the recalled pesticide back to
the registrant for reclamation and
reformulation, the pesticide would be
considered an unused commercial
chemical product being reclaimed and
therefore would not be a solid waste (or
hazai'dous waste) under RCRA section
261.1. A recalled pesticide sent by a
recall, participant to the recall facility
does not become a waste until the
registrant makes a decision to discard
the pesticide (e.g., burn for energy
recovery). Once a decision to discard
the pesticide or burn the pesticide for
energy recovery is made, both
conditions of § 273.3{c)(l) have been
met and the registrant becomes the
generator of the universal waste. Section
273.3(c)(2), describing when an unused
pesticide products becomes a waste, has
been added to the final rule to
accommodate the changes mentioned
above to the proposed regulatory text
from § 273.20(a).
Section 273.3(d)(l) of the final rule
furtheir explains the decision-making
role played by the person conducting
the recall of a pesticide in determining
whether the pesticide becomes a waste.
The regulatory language established in
the final rule is retained from
§273.21(a)(2) in the proposed rule. The
final rule also adds § 273.3(d)(2)
describing the generator's role in
determining whether a pesticide is a
waste, This addition accommodates the
expansion of the applicability section at
§ 273.3(a)(2), mentioned earlier. This
decision-making process remains as
proposed and is specific to pesticides
involved in a recall. Recalled pesticides
are covered by procedures under FIFRA
section 19(b) and 6(g). Other situations
are covered generally under § 261.2.
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IV.B.2.d. Hazardous Waste Thermostats
In the proposed rule, the Agency
requested comment on whether used
mercury-containing thermostats should
be added to the universal waste
regulations. The Agency specifically
requested comment on whether used
mercury-containing thermostats fit the
factors proposed to be used to evaluate
whether new candidate wastes are
suitable for inclusion under part 273. In
addition, the Agency asked for comment
on whether the universal waste
requirements proposed for universal
waste batteries would be appropriate for
managing used mercury-containing
thermostats.
Commenters overwhelmingly
supported adding mercury-containing
thermostats to the universal waste
regulations. Commenters agreed that
mercury-containing thermostats are an
appropriate waste type to manage under
the universal waste system and that they
meet the criteria proposed for adding
wastes to the part 273 regulations.
Commenters argued that thermostats are
generated in a wide variety of settings
by a large number of generators, since
they can be generated at almost any
building, including commercial,
industrial, agricultural, community, and
household buildings. Commenters
asserted that thermostats are likely to be
managed in the municipal waste stream
because they are small, generated
infrequently, and usually generated by
persons not familiar with the hazardous
waste regulations or hazardous waste
management systems.
Several commenters described a
"reverse distribution" or "take back"
system that is under development by
one thermostat manufacturer. A trade
association representing manufacturers
of thermostats indicated that all of the
members intend to participate in this
collection system, thus making the
system industry-wide and allowing
collection of virtually all brands of
thermostats used in the United States.
The "take back" system will be used to
collect used mercury-containing
thermostats to recover the mercury arid
reuse it in the production of new
thermostats. The manufacturer
implementing the "take back" system
has developed packaging, marking, and
labeling procedures that will be
required for participation in the
program that will ensure that the waste
mercury thermostats are appropriately
handled. The information provided
indicated that the nation-wide waste
mercury thermostat collection and
recycling program would greatly reduce
the amount of mercury that is now being
managed in the municipal waste stream
across the United States.
Commenters further argued that
mercury-containing thermostats present
relatively low risk during accumulation
and transport because they are designed
to protect the ampules that contain
mercury from breakage. One commenter
explained that ampules are attached to
a bi-metal strip designed to absorb
shocks. The commenter further
explained that ampules are also
enclosed within plastic or metal outer
casings that protect them further from
breakage. This commenter described
experience with warrantee take back
programs and indicated that less than
.01% of new mercury thermostats
returned to them are returned due to
breakage of the ampules. Commenters
also stated that during accumulation,
waste mercury thermostats are not
subject to deterioration, therefore, the
risk of mercury release will not increase
as accumulation time increases. The
packaging, marking, and labeling
procedures that will be part of the
industry "take back" program provide
further evidence that the risks during
accumulation and transport will be low.
The Agency agrees with commenters
that used mercury-containing
thermostats meet the proposed (and
final) factors for adding new wastes to
the universal waste regulations and that
these wastes are appropriate to be
managed under the universal waste
system. The Agency recognizes that due
to the administrative burden, costs, and
stigma associated with managing these
wastes under the full hazardous waste
regulations, it is not likely that a "take
back" system such as that described by
commenters will be implemented if
compliance with the full hazardous
•waste regulations is required of
participants. Thus, the Agency has
included mercury-containing
thermostats in the final universal waste
regulations promulgated today. It
should be noted that universal wastes,
including mercury-containing
thermostats, are exempt from regulation
under both the 40 CFR 262-270 and 40
CFR part 273 if they are household
waste (see 40 CFR 261.4(b)(l)), therefore
the possible burden of compliance with
the current Subtitle C regulations lies
with generators, transporters and storage
facilities currently regulated under 40
CFR parts 262-270.
One commenter suggested a
regulatory definition to identify what
wastes are covered under the universal
waste regulations. The Agency agrees
that a definition is necessary, and has
included the following definition in 40
CFR 273.6 of the final rule: "thermostat
means a temperature control device that
contains metallic mercury in an ampule
attached to a bimetal sensing element,
and mercury-containing ampules that
have been removed from these
temperature control devices in
compliance with the requirements of 40
CFR 273.13(c)(2) or 273.33(c)(2)." This
definition differs slightly from the
definition that was recommended by the
commenter. The commenter suggested
limiting the definition to wall-mounted
thermostats, rather than extending the
definition to all temperature control
devices that contain metallic mercury in
ampules. The commentericxpressed
concern that difficultie^ may arise when
managing small wall-mounted
thermostats together with other mercury
thermostats. The Agency recognizes the
commenter's concerns, but points out
that universal waste handlers are not
required to accept any type of universal
waste that they are not prepared to
manage. Thus, if a collection program is
designed only to handle a certain type
of thermostat, only that type of
thermostat should be accepted by the
operators of the program. The Agency
does not want to limit the possibility
that other collection programs may be
developed for other types of
thermostats, or that different types of
thermostats could be managed
separately (i.e., transport and
accumulate wall-mounted and other
thermostats separately). Thus, the
definition has not been limited to wall-
mounted thermostats.
In addition, the definition suggested
by the commenter has been expanded in
the final rule to include mercury-
containing ampules that have been
removed from thermostats. As is
discussed in section IV.E.3.C of this
preamble, requirements for managing
thermostats under the universal waste
rule have been drafted to allow removal
of ampules as long as certain conditions
are met. In order to allow management
of the ampules under the universal
waste system once they have been
removed from the thermostat casing, it
was necessary to include them in the
definition of thermostat. The definition
specifies that the ampules must be
removed following the universal waste
handler waste management conditions
set forth in § 273.13(c)(2) or
§273.33(c)(2).
Finally, with the exception of the
issue of ampule removal, commenters
overwhelmingly supported applying the
requirements proposed for universal
waste batteries to used mercury-
containing thermostats. Thus, in the
final rule, persons managing universal
waste thermostats are subject to the
same basic requirements as persons
managing other universal wastes:
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requirements for small and large
quantity handlers, transporters, and
destination facilities. Specific waste
management requirements have been
added to the small and large quantity
handler sections to address the
commenter's concerns about ampule
removal. These requirements are
discussed in detail in section IV.E.S.c of
this preamble, entitled waste
management.
IV.B.2.e. Other Wastes Suggested by
Commenters
A number of commenters suggested
additional wastes that they believed
should be added to the universal waste
regulations. For example, wastes
suggested included electronic
components, photographic wastes,
aerosol cans, solvent contaminated rags
and wipers, treated wood, auto shredder
fluff, and a number of others. Several
wastes were suggested by numerous
commenters and merit further
discussion. These are spent lamps
(lighting waste), used mercury
containing equipment, and antifreeze.
Spent lamps are discussed in section
II. A, of this preamble, entitled mercury-
containing lamps. Used mercury-
containing equipment and spent
antifreeze are discussed in the following
sections of this preamble.
Although many of the wastes
suggested may be appropriate
candidates for the universal waste
system in the future, the Agency has
decided to include only three wastes in
this final rule: hazardous waste
batteries, thermostats, and certain
unused pesticides. This decision was
made because, first, with a few
exceptions discussed below,
commenters provided only very limited
information about the suggested
waste(s), current management of the
waste(s), and appropriate waste
management controls that could be used
to develop universal waste regulations
for the waste(s). Most commenters did
not evaluate how the suggested waste(s)
compared against the factors proposed
to add new wastes to the universal
waste regulations. For most suggested
wastes, the Agency did not feel that it
had sufficient information to consider
adding the waste to the universal waste
regulations at this time. Unlike unused
pesticide products and mercury-
containing thermostats on which we
have a body of information, adding
other suggested waste types would
require additional research to determine
appropriate waste management
practices and other issues related to
these wastes. Second, in this final rule
the factors used to evaluate candidate
wastes to determine whether they are
appropriate to be added to the universal
waste regulations have been revised
from those proposed.
Finally, the universal waste system is
a new program. The Agency believes it
is important to begin implementation
with a limited number of waste types,
and conduct at least an initial
assessment of how the program is
working before adding a great deal of
new wastes. Thus, due to resource
constraints, the Agency has decided to
add only the above-named wastes and
focus it's efforts on promulgating the
basic structure of the regulations, while
initially including only a few wastes in
the program. If determined necessary,
revisions to the regulatory structure
could be made at the same time that
new wastes are added.
The fact that the Agency has decided
not to add a commenter's suggested
waste to the universal waste regulations
at this time does not mean that the
Agency will not consider adding the
waste at some time in the future. In fact,
commenters are encouraged to assess
whether their suggested wastes fit the
final evaluation factors, and if so, to
submit a petition making that
demonstration and including suggested
waste management controls that could
be used to develop universal waste
regulations for the waste. Petitions
should follow the procedures set forth
in 40 CFR 260.20, 260.23, 273.80, and
273.81 as revised by this final rule.
IV.B.2.f. Used Mercury-Containing
Equipment
In addition to supporting the addition
of mercury-containing thermostats to
the universal waste regulations, a
number of commenters suggested
expanding the scope of this waste type
to be a category of wastes including
other mercury-containing equipment.
Commenters pointed out that
thermostats are a form of mercury
switch, and that there are many other
types of mercury switches that may
present issues similar to those for
thermostats. Other items commenters
identified as mercury-containing
equipment that should be included were
gauges, manometers, relays, and circuit
boards. Commenters also noted that
some of these items may contribute
substantial amounts of mercury to non-
hazardous waste management systems.
Although the Agency believes that
adding a broader category of mercury-
containing equipment to the universal
waste rule may ultimately be the best
way to approach this issue, at this time
only mercury-containing thermostats
have been included in the final rule. In
addition to the reasons discussed above
for limiting this final rule to batteries,
pesticides, and thermostats, the Agency
does not believe that it has sufficient
information at this time to add the
broader category to the universal waste
regulations. Specifically, the universe of
wastes that would fit into such a
category is not clearly identified. The
Agency does not know exactly what
typesi of wastes would be included if it
were to add such a category. For
example, it is not known how much
mercury might be in such equipment. It
is poissible that there are some pieces of
equipment that have very large amounts
of mercury that may be of more concern
for management under the universal
waste regulations than equipment with
small, amounts of mercury. It is also not
known how various types of mercury-
containing equipment are constructed,
and thus it is not known whether the
mercury is sufficiently contained to
provide some assurance that the
mercury would not be released during
management under the universal waste
system. Similarly, it is not known what
type of waste management controls
would be appropriate to include in the
universal waste regulations for the
broader category.
The Agency would welcome a
petition to add some form of broad
category of mercury-containing
equipment to the universal waste rule.
In developing such a broad category, the
Agency would be particularly interested
in several issues. First, suggestions on
how to define the category to limit it to
wastes appropriate for the universal
waste system would be useful. Second,
the Agency would need a listing of the
types of equipment that would be
included in the category, and general
information about the amounts of
mercury contained in each and how the
equipment is constructed to protect the
mercury from release. Third, it would be
helpful to know whether there is some
mercury quantity limit that might be
used to ensure that the risks of
managing the wastes under the
universal waste rule are low (relative to
other hazardous wastes), while at the
same time including as many of these
wastes as is appropriate. Fourth, the
Agency would appreciate suggested
waste management requirements that,
taking into account the construction of
the mercury-containing equipment,
would minimize the risks of managing
these wastes under the universal waste
regulations. Finally, any available
information about systems that are used
or could be used to collect these wastes
would be useful (e.g., reverse
distribution systems).
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IV.B.2.g. Spent Antifreeze
In the preamble to the universal waste
rule the Agency suggested that used
antifreeze might be a good candidate for
addition to the universal waste
regulations. Comment was requested on
whether spent antifreeze fit the factors
for addition to the universal waste rule,
and on what specific management
requirements would be appropriate if
spent antifreeze were added. Numerous
comments were received addressing this
issue, but commenters disagreed on
both whether used antifreeze should be
added to the universal waste system at
this time and on what requirements
would be appropriate.
A number of commenters argued that
spent antifreeze did fit the proposed
factors and should be added to the rule.
Several commenters addressed each of
the proposed factors in turn and
maintained that antifreeze fit them all.
A number of other commenters,
however, questioned how frequently
spent antifreeze actually fails the
toxicity test and is thus hazardous
waste. They noted that one of the factors
proposed to be used to evaluate new
wastes for addition to the universal
waste system was whether or how
frequently the waste was hazardous.
They argued that regulation under the
universal waste rule would imply a
S resumption that used antifreeze is
azardous, making management of that
portion of spent antifreeze that is not
hazardous more difficult. Several of
these commenters also predicted that
the lead levels in used vehicle antifreeze
will diminish over time as more and
more vehicles are produced with
cooling systems that have little or no
exposed lead solder. They thus believe
that less and less antifreeze will fail the
toxicity characteristic over time.
Commenters also recommended a
wide range of management requirements
forspent antifreeze if it were to be
added to the universal waste system.
Some commenters believed that the
requirements proposed for batteries and
pesticides were generally appropriate. A
number of commenters also maintained
that the antifreeze recycling pattern is
very different from the limited recycling
or treatment and disposal options
available for wastes such as batteries
and pesticides. They described
antifreeze recycling as requiring less
sophisticated technology and being
practiced at many dispersed locations
rather than a few centralized facilities.
They did not believe that the universal
waste regulatory structure was
appropriate to accommodate this type of
waste management pattern.
Several commenters argued that
because antifreeze is a high volume
liquid, the management requirements
should be somewhat different than
those included in the proposal. Some
commenters argued that requirements
for used antifreeze should be based on
the small quantity generator regulations.
Many others suggested requirements
similar to the used oil management
standards of 40 CFR part 279. Some
commenters suggested specific sets of
requirements that they believed were
appropriate for used antifreeze
management.
Spent antifreeze is not included in the
final universal waste rule. The Agency
made this decision for several reasons.
First, because the Agency did not
request specific comments on issues
related to spent antifreeze, the
comments received were not focussed
on any particular issues and provide
little clear direction for the Agency to
move forward with this issue at this
time. As suggested by several
commenters, the Agency does not
believe it would be wise to add spent
antifreeze to the universal waste
regulations without first proposing and
accepting comment on specific
management standards.
Second, commenters opinions on
whether spent antifreeze should be
added to the universal waste regulations
ranged so widely that it is clear that
more investigation into this issue is
necessary before promulgating final
regulations. Specifically, some
additional information on the frequency
with which used antifreeze exhibits the
toxicity characteristic may be available
and should be reviewed prior to making
a decision on how to address antifreeze.
In addition, the Agency should also
investigate further suggestions that
improved handling by generators (e.g.,
managing antifreeze only in dedicated
containers) could reduce the rate at
which antifreeze exhibits the toxicity
characteristic. Similarly, opinions on
appropriate management standards also
varied so greatly that the Agency
recognizes it would not be possible,
based on the information available at
this time, to develop management
requirements that adequately address
the issues raised by commenters.
Third, many commenters argued that
the question of how antifreeze recycling
is regulated is central to the
development of appropriate
management standards. As explained in
section II.B of this preamble, entitled
Redefinition of Solid Waste, the general
question of how recycling should be
regulated is being addressed in a larger
forum and is outside the scope of
today's final rule. The Agency believes
that it may be necessary to proceed
somewhat further with this effort before
it will be possible to determine how best
to address the issue of antifreeze
management.
Finally, for this initial final rule, the
Agency decided to focus its efforts and
available resources on wastes for which
commenters demonstrated more
agreement about the major issues of
whether to include the waste and
appropriate management requirements.
Once the basic structure of the universal
waste system is in place, it may be more
clear whether and how more
controversial wastes such as antifreeze
may fit into the system. Thus, spent
antifreeze has not been included in this
final rule/but the Agency has not ruled
out adding it in the future if it seems
appropriate and if it appears possible to
develop requirements that would
improve management of used antifreeze.
IV.B.3. Conditionally Exempt Small
Quantity Generator Waste
In the proposed part 273 regulations,
the Agency proposed to retain the 261.5
CESQG conditional exemption from the
hazardous waste regulations for
universal wastes. Under this approach,
CESQGs would have the option of
managing universal wastes under either
part 273 or § 261.5. Thus, CESQGs
would not be required to manage their
universal waste under part 273.
However, the Agency requested
comment on whether this approach
should be retained, or whether CESQGs
should be required to manage their
universal wastes under part 273. In the
final rule, the Agency has decided to
retain the approach proposed and is
allowing CESQGs the option of handling
their universal wastes under part 273 or
under the CESQG exemption in § 261.5.
Most commenters responding to this
request for comment argued that
CESQGs should be allowed flexibility in
managing their universal wastes.
Commenters stated that CESQGs should
have the option of managing these
wastes as universal wastes under part
273 if they so choose, or to continue to
handle these wastes in compliance with
the requirements of the CESQG
exemption under § 261.5. Commenters
argued that this option would allow
each CESQG the flexibility to select the
disposal method that is least costly and
best meets the needs of its business.
They also argued that CESQGs often do
not have ready access to new
information and markets for their wastes
and therefore should not be required to
manage their universal wastes under
part 273 to the exclusion of other
existing waste management options.
Many commenters pointed out that as
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25510 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
an infrastructure develops for the
universal waste collection systems,
CESQGs are likely to voluntarily
participate in such programs. Other
commenters stated that management
under part 273 should be mandatory in
order to reduce confusion related to
how these waste types should be
handled and to ensure protection of the
environment.
The Agency believes that allowing
individual CESQGs to choose the
regulatory option that best meets their
circumstances will aid in assuring
effective collection, management and
disposal of universal wastes. Requiring
compliance with part 273 would be an
added administrative and cost burden
for CESQGs, many of whom may be
small businesses and small
organizations. In addition, compliance
with some aspects of the program may
be difficult for these generators. The
Agency believes that as an infrastructure
develops for protectively handling these
wastes, CESQG waste is most likely to
be incorporated into the universal waste
system" through voluntary efforts, state
or local programs, and the availability of
convenient collection systems rather
than through additional regulatory
requirements. Therefore, in the final
rule, the Agency has retained the
opportunity for CESQGS to manage
their wastes under either the CESQG
exemption or under part 273. The
option for CESQGs to send their
universal wastes to a universal waste
handler or destination facility has been
added to 40 CFR 261.5(f)(3)(vi) and
261.5(g)(3)(vi) as was proposed. As was
proposed at 40 CFR 273.10{b)(l)(ii) and
40 CFR 273.20(b)(lKii), 40 CFR
273.5(a)(2) has been added to the final
rule to clarify that CESQGs may, at their
option, manage their universal wastes
under part 273.
Further, the Agency is retaining the
intent of the proposed requirement that
if universal wastes from CESQGs are
commingled with universal wastes from
larger, regulated hazardous waste
generators, and the commingled waste is
a hazardous waste under 40 CFR 261.3
(i.e., is listed or exhibits a
characteristic), the commingled waste
must be managed under the part 273
requirements. As explained in the
proposal, this provision is included to
clarify this point for persons managing
universal waste, but is actually merely
a restatement of existing hazardous
waste requirements.
In the proposed universal waste rule,
the Agency also proposed not to require
hazardous waste generators to count
those universal wastes managed under
the part 273 requirements toward the
monthly quantity calculation used to
determine generator regulatory status
(i.e., CESQG, SQG, LQG). Today's final
rule retains the approach as proposed.
Section 261.5 has been redrafted to
clarify this point.
One commenter was concerned that
this exclusion would cause more
hazardous waste to be sent to non-
subtitle C facilities because more
generators would be CESQGs if
universal wastes are not counted. The
remainder of the commenters agreed
with excluding universal wastes
managed under part 273 from the
generator's calculation of monthly
generation rates to determine generator
status.
The Agency does not believe that
excluding universal wastes from the
generator's calculation of monthly
generation rates will have a significant
impact on the amount of hazardous
waste sent to non-subtitle C facilities.
The volume of universal wastes
typically generated by any one generator
is not large. Thus, the Agency believes
that the number of generators that will
move from the regulated SQG category
to the conditionally exempt SQG
category will be small.
More importantly, the Agency
believes that on balance, encouraging
generators to manage their wastes under
part 273 by allowing generators not to
count those universal wastes managed
under part 273 will likely increase the
overall quantity of hazardous waste
recycled or disposed of at Subtitle C
facilities. Excluding universal
hazardous wastes that are managed
under part 273 from the generator's
monthly quantity determination will
encourage generators to manage wastes
under the universal waste rule, and
therefore maximize the benefits to the
environment by redirecting these
hazardous wastes from non-hazardous
waste management to more protective
management. The Agency strongly
believes that the benefits of capturing
these universal wastes for safe handling
outweighs the potential risks of small
quantities. Therefore today's final rule
retains this exclusion.
In addition, as other waste types are
considered for inclusion in part 273,
they will be evaluated according to the
criteria in § 273.81. Part 273.81(d) states
that "systems to be used for collecting
the waste (including packaging,
marking, and labeling practices) would
ensure close stewardship of the waste."
EPA believes that this criterion, the
other criteria included under
§ 273.81(a)-(h), and the petition and
rulemaking procedures for adding new
wastes to the universal waste system
will ensure that any wastes added in the
future will be managed in an
environmentally protective manner.
One commenter stated that it is not
clear that SQGs and LQGs should use
the same procedures for determining
generator status as that used by CESQGs
since the regulatory language explaining
the calculation is located in § 261.5,
which applies to CESQGs. Although the
language in § 261.5(c) makes it clear that
the counting procedures apply to all
generators ("the quantity determination
of this part and parts 262 through 266,
268, and 270"), the Agency agrees that
it might be easier for SQGs and LQGs to
find 'the counting procedures if they
were referenced in part 262. Thus, this
rule revises § 262.10 by adding a new
paragraph (b) to read "40 CFR 261.5 (c)
and (d) must be used to determine the
applicability of provisions of this part
that are dependent on calculations of
the quantity of hazardous waste
generated per month."
Finally, as proposed, the final rule
adds part 273 to the list of parts in
§ 262.11(d) where exclusions or
restrictions for hazardous waste
manaigement are found. In addition, to
clarify that § 261.5 provides additional
exclusions as discussed above, the final
rule also adds part 261 to this list. Thus,
§262.11(d) now reads "If the waste is
determined to be hazardous, the
generator must refer to parts 261, 264,
265, 266, 269, and 273 of this chapter
for possible exclusions or restrictions
perta ining to management of the
specific waste."
IV.C. Adding Additional Wastes in the
Future
The proposed universal waste rule
inclu'ded a process for adding additional
waste: types to the universal waste
system in the future. The process '
consisted of procedures for persons to
petition the Agency requesting the
addition of new waste types, procedures
for the Agency to use in responding to
petitions, and factors to be used to
evaluate whether a new waste type is
appropriate to be added to the system.
The final rule includes a similar
process, but based on the comments
addressing this issue some changes have
been made to both the procedures and
the factors. In addition, the Agency has
decided to allow states the flexibility to
add additional wastes to their state list
of universal wastes without requiring
the waste to be added at the federal
level. The following two sections
discuss changes made to the petition
procedures and the factors.
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1V.C.1. Procedures for Adding New
Wastes
In the proposed universal waste rule,
EPA proposed that any person may
petition to have additional hazardous
wastes added to the part 273 universal
\vasle regulations. Proposed regulations
governing the petition process were
found in §§ 260.20, 260.34, and 273.2.
Detailed procedures for submitting and
reviexving petitions, however, are set
forth in existing 40 CFR 260.20 and
were only referenced in the proposed
regulatory text. These procedures are
the same procedures that are used for
submitting and reviewing all petitions
for regulatory amendments to the
hazardous waste regulations.
The proposed rule indicated that in
order for a petitioner to be successful, it
must be demonstrated that regulation
under the universal waste system is
appropriate and that the part 273
requirements will improve waste
management practices for the waste.
This demonstration was to be made by
submitting information to support the
factors listed in § 273.2 (a) and (b).
In today's final rule, the procedures
for submitting petitions remain
substantially unchanged, although
several minor revisions have been made.
First, the requirements for petitions for
inclusion of other wastes under part 273
have been moved from § 273.2 in the
proposal to subpart G of part 273 in
today's final rule. The Agency believes
that putting the petition requirements in
a separate subpart makes them easier to
locate, and thus makes the entire
regulation easier to follow. In addition,
the proposed § 260.34, entitled
"Petitions to amend part 273 to include
additional hazardous wastes" has been
renumbered to be § 260.23 in the final
rule. This change has been made to keep
the sections of part 260 that discuss
regulatory amendments together.
Second, the petition procedures have
been revised to allow petitions to add
categories of waste as well as individual
wastes to the universal waste system.
This revision was made in response to
comments. It was suggested that the
term "waste" may be more limiting than
the Agency intended. Use of the term
"waste category" will allow petitioners
to submit a group of wastes such as
"hazardous waste batteries" instead of
petitioning for each type of hazardous
xvaste battery individually (hazardous
waste nickel-cadmium batteries,
hazardous waste lithium batteries, etc.).
One commenter also suggested that a
category of wastes such as unused
products in original packaging might be
appropriately managed under the
universal waste system. The Agency
agrees with these comments and has
incorporated this suggestion into the
final rule.
Third, to clarify the Agency's goals for
the universal waste program (which the
petition factors are designed to address)
and to clarify the standard that will be
used to make decisions on petitions, the
final rule has been revised to read: "the
decision will be based on the weight of
evidence showing that regulation under
part 273 is appropriate for the waste or
category of waste, will improve
management practices for the waste or
category of waste, and will improve
implementation of the hazardous waste
program." This language merely reflects
more closely the goals discussed in the
proposal for the universal waste system
than did the language in the proposed
rule.
Fourth, many commenters expressed
concern that petitions seeking a
regulatory amendment to add new
hazardous wastes to part 273 must
contain quantitative information on
each of the factors outlined in the
proposed rule under § 273.2 (found in
§ 273.81 in the final rule). Commenters
believed that the proposed rule was not
clear on whether or not information
must be submitted to address every one
of the factors or only some of the factors.
The Agency agrees that the proposal
was confusing on this point. As
suggested by several commenters, the
Agency also agrees that it may not be
possible or appropriate to address each
of the factors for any particular waste or
waste category. Thus, the petition
process regulations (found in both
§§ 273.80 and 260.23 of the final rule)
have been revised to clarify that: (1) A
petition should address as many of the
factors as are appropriate for the waste
or waste category addressed in the
petition; and (2) the decision to grant or
deny a petition will be based on the
weight of evidence showing that
regulation under part 273 is appropriate
for the waste or category of waste, will
improve management practices for the
waste or category of waste, and will
improve implementation of the
hazardous waste program.
Thus, the Agency clarifies in the final
rule that an individual waste would not
be disqualified from inclusion under
part 273 merely because every factor
was not addressed. Rather, the Agency
will consider the overall weight of the
evidence demonstrating that the goals of
the universal waste system would be
met by adding the particular waste or
waste category to the universal waste
system. Thus, a waste that several of the
factors demonstrate very strongly would
accomplish the Agency's goals may be
more likely to be added to the universal
waste system than a waste that all of the
factors weakly support.
In addition to concern about the
number of factors that must be
addressed, commenters also expressed
concern that the proposal was vague
with regard to the quality and quantity
of data that must be submitted regarding
each of the factors. In response, the
Agency reiterates that decisions will be
made based on the weight of the
evidence demonstrating, using the listed
factors, that the Agency's goals for the
universal waste system will be met.
Thus, the quantity of data submitted is
not as critical as how strongly the data
supports these goals. Of course, the
more complete the data are, the more
likely it is that they will demonstrate
that the Agency's goals would be met.
The Agency also notes that although
quantitative data are desirable, due to
the nature of the wastes likely to be
appropriate for the universal waste
system the Agency recognizes that
direct quantitative data about these
wastes and their management may not
be available. Thus, quantitative data are
not necessarily required for a successful
petition. Any information that can be
extrapolated from available related
quantitative data is recommended, as
would be any estimates that can be
developed based on available qualitative
information. In addition, as discussed in
the proposal, the Agency will take into
consideration the quality and
completeness of the data submitted by
the petitioner as a way to set priorities
among the many various waste streams
that may be suggested for this program.
If a petitioner's request is complete and
supporting data are adequate, EPA is
likely to evaluate the request and
determine whether to propose a
regulatory amendment sooner than if a
request has only minimal information.
Fifth, commenters expressed
confusion concerning the process for
submitting a petition. In § 273.80 of
today's final rule, the Agency more fully
details the process for submitting a
petition. The substance of the
requirements have not changed. Section
273.80(b) reiterates that the petitioner
must follow the requirements in
§ 260.20(b) (Subpart C—Rulemaking
Petitions), which sets forth general
requirements which apply to all such
rulemaking petitions. As proposed, the
regulatory language in § 260.20(a) also
has been amended to add reference to
the part 273 requirements. As discussed
above, § 273.80(b) also specifies that the
petition should address as many of the
factors listed in § 273.81 as are
appropriate for the waste or waste
category addressed in the petition. It
should also be noted that the procedures
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25512 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
for submitting petitions and for the
Agency's review of and response to
petitions for regulatory amendments are
described in detail in § 260.20.
In response to some confusion
expressed by commenters, § 273.80(c)
clarifies that the Administrator will
evaluate petitions using the factors
listed in 40 CFR 273.81 and that the
Administrator will grant or deny a
petition using these same factors. This
clarification reiterates the procedures
proposed in § 260.34 of the proposal
and included in § 260.23 of the final
rule. As discussed above, § 273.80(c)
also explains that the Administrator's
decision will be based on the weight of
evidence showing that regulation under
part 273 is appropriate for the waste or
category of waste, will improve
management practices for the waste or
category of waste, and will improve
implementation of the hazardous waste
program.
Sixth, petitioners expressed concern
about the length of time it may take for
the Agency to evaluate petitions. Many
commenters suggested that a time limit
be set for such evaluations and that, in
addition, petitions be released for public
comment. While the Agency agrees that
it is important for petitions to be
considered in a timely manner, the
Agency has decided to continue to
follow the general procedures for
responding to petitions for regulatory
amendments set forth in § 260.20 of the
hazardous waste regulations. As with all
petitions submitted under § 260.20, a
specific time limit is not defined for the
review process. Although the Agency
expects to review and respond to
petitions within a reasonable timeframe,
due to competing priorities and other
statutory and court ordered mandates
the Agency is not able to commit to a
definitive review schedule. Committing
to such a schedule would also not be
possible because the Agency has no
previous experience with this program
and is not able to predict the number
and depth of petitions that may be
submitted, and thus the workload that
will be required to respond to them.
With respect to public comment on
the Agency's response to petitions and
on proposals to add new wastes to the
universal wastes system, § 260.20
specifies that the Agency will make a
tentative decision to grant or deny a
petition and publish that determination
in the Federal Register for written
public comment. Any persons who have
additional information relevant to a
particular petition would be able to
submit the information for the Agency's
review. The Agency may also hold an
informal public hearing to consider oral
comments on the tentative decision.
For any waste or waste category that
the Agency tentatively decides to add to
the universal waste system, the Agency
will propose regulatory requirements
that would apply to management of the
waste under the universal waste system.
Comments would be solicited on the
tentative decision to add the waste or
waste category, and on the
appropriateness and practicality of the
requirements. After reviewing and
responding to any comments submitted,
the Agency would publish a final rule
amending the universal waste
regulations to include the new waste
unless the tentative decision was
reversed (in which case a denial would
be published). For any waste or waste
category the Agency tentatively decides
not to add to the universal waste
system, the Agency would publish a
tentative decision to deny the petition
and request comment. A public hearing
may be held. After reviewing and
responding to comments, the Agency
would publish a final denial, unless the
tentative decision was reversed (in
which case a subsequent proposal to
add the new waste would be required).
Finally, as is discussed in detail in
Section V of this preamble, entitled
"State Authority," it should be noted
that States may apply for and be granted
authorization to implement any part of
today's amendments to the hazardous
waste regulations. This includes the
petition process for inclusion of
additional wastes in the universal waste
program. Thus, in States authorized for
the universal waste regulations and the
petition process, petitions may be
submitted to the State agency to regulate
management of a waste or waste
category under the universal waste
regulations within that State. The State
agency would then grant or deny
petitions, using the criteria established
for evaluating wastestreams for
inclusion in the program. If a petition is
granted, the waste would be managed
under the streamlined universal waste
requirements within that state.
However, the full hazardous waste
regulations would apply once the waste
is transported out of the state in which
it is considered universal waste into
other states that have not included the
waste in their universal waste programs
(or states that are not authorized for or
do not have universal waste programs).
Thus, manifests and hazardous waste
transporters would be required for the
shipment out of the state, and all
subsequent management must be at
RCRA treatment, storage, and disposal
facilities.
IV.G.2. Factors for Evaluating New
Wastes
The proposed universal waste rule
included two sets of factors to be used
to evaluate whether candidate wastes
are appropriate to be added to the part
273 universal waste regulatory system.
The- first set of factors was designed to
determine whether the waste presents a
problem,to human health and the
environment due to its presence in the
municipal waste stream or due to other,
widespread management practices. The
second set of factors was designed to
determine whether the universal waste
system would satisfactorily address the
problem presented by the hazardous
waste.
In response to a number of issues
raised by commenters concerning the
proposed factors, the Agency has
substantially revised the factors for the
final rule. Major issues raised by
commenters and the changes made to
the factors are discussed below.
First, in the final rule, the two sets of
proposed factors have been consolidated
into one set of factors. This change was
made in response to several comments
pointing out that having two separate
sets of factors was potentially confusing,
particularly because the content of the
two sets seemed to overlap. The Agency
agrees with these commenters, and
believes that having only one set of
factors will eliminate possible
confusion, making it easier for the
regulated community and regulating
agencies to implement the evaluation
factors. In addition, as discussed further
below, the Agency has revised the
factors to focus more on a positive
showing that regulation under the
universal waste system would improve
waste management practices rather than
a negative showing that a waste is being
managed improperly. Combining the
two sets of factors assists with this
change of focus.
Second, the Agency has added text to
the general introduction to the final
petition factors (40 CFR 273.80) and
revised 40 CFR 260.34(b) to clarify that
not all of the factors must be either
addressed or demonstrated in a petition
in order for an individual waste to be
added to part 273. The text clarifies that
the Agency will consider the overall
weight of evidence presented in
determining whether regulation under
the universal waste system is
appropriate for the waste, and whether
the part 273 regulations will further the
Agency's goals of improving
management practices for the waste and
improving implementation of the
hazardous waste program.
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This change was made in response to
several commenters who indicated that
there was some confusion regarding
whether all factors must he addressed
for inclusion under part 273. In
addition, the text of proposed 40 CFR
260.34, which indicated that all factors
must be addressed, contradicted the
preamble which suggested that not all
factors must be addressed. The Agency
chose this approach because it does not
believe that each and every factor must
be mot in order for a waste to be
appropriate for the universal waste
system, and for regulation of the waste
under part 273 to improve waste
management and implementation. Thus,
the Agency will make decisions based
on the weight of evidence showing that
regulation of a particular waste under
part 273 will further the Agency's goals
for the program. It seems likely,
however, that the more factors a petition
addresses the more likely it is that there
will be a substantial amount of
supporting evidence.
The Agency notes, however, that
resources for making changes to the
hazardous waste regulations are limited,
and that these resources must be
focused on areas where the most
improvement can be made. In fact, the
Agency does not expect to have the
resources to add great numbers of
wastes to the universal waste system.
Therefore, the Agency will prioritize
addition of new wastes to the universal
\vasto system based on the strength of
the case made that addition of a
particular waste will further the goals
discussed above. For example, as
suggested by one commenter, the
Agency would give priority to a waste
that is generated in higher volumes
nationally, that a greater percentage of
the waste is hazardous, or that are
generated by a larger number of
generators. Priority would be given
because addition of such a waste to the
universal waste system is likely to
improve overall waste management and
implementation more than addition of a
waste that does not meet these factors.
In addition to adding to the strength of
such a case, the completeness and
quality of supporting data submitted by
a petitioner may also affect the Agency's
prioritization in that the Agency may
not itself be able to expend a great deal
of resources gathering additional data.
Third, the Agency notes that the final
rule has been revised to allow petitions
to add, and the addition of, categories of
waste to the universal waste system as
well as individual waste types (see 40
CFR 273.80, 273.81, 260.20, and
260.23). This change was made at the
suggestion of one commenter who
pointed out that there may be broad
categories of waste that could fit well
into the universal waste system but that
are identified by characteristics other
than a single waste classification. For
example, wastes that remain in their
original product packaging (e.g., unused
products) are easily identifiable, and
presumably the packaging provides
protection since it was designed to
protect the product during storage and
transportation. The Agency agrees with
the commenter that some categories of
waste may be appropriate for addition to
the universal waste system and thus has
made this change. It should be noted
that a petition to add any category of
waste would have to make the same
demonstration for the category that a
petition would have to make for an
individual waste type.
The following sections discuss each of
the factors included in the final rule and
any changes made from the proposal.
The final section discusses proposed
factors that are not included in the final
rule.
IV.C.2.a. Final Factor 40 CFR 273.81(a)
The Agency has revised proposed
§ 273.2(a)(l), which addressed the idea
that a waste should either be a listed
hazardous waste, or that a proportion of
the waste should exhibit one or more
characteristics of hazardous waste in
order to be considered for addition to
the universal waste system. In the final
rule, this factor, which is now
§ 273.81(a), has been revised by adding
a parenthetical statement discussing
wastes that are hazardous due only to
exhibiting characteristics. Numerous
commenters expressed concern that the
Agency would be adding wastes to the
universal waste system that are not
already hazardous. The Agency is
clarifying, and would like to emphasize,
that only wastes that are hazardous (i.e.,
are listed or exhibit one or more
characteristics of hazardous waste) are
subject to the universal waste
regulations. This is because the
universal waste regulations are part of
the RCRA hazardous waste regulations,
under which only wastes that are
hazardous are regulated. This has been
further clarified by adding a definition
of the term "universal waste" (see 40
CFR 273.6 and 260.10), specifically
identifying only hazardous wastes as
universal wastes (e.g., hazardous waste
batteries).
The Agency understands that this
may be confusing in cases where a
waste added to the universal waste
system is identified using a generic
name (e.g., battery, thermostat), but only
a portion of the waste stream actually
exhibits a characteristic and is thus
hazardous. For example, some battery
types exhibit one or more characteristics
and are hazardous, while others may
not. The Agency has used the generic
term hazardous waste battery in the
universal waste regulation for several
reasons. One reason is that, when
appropriate, the Agency wishes to
encourage persons to manage both
regulated waste and unregulated waste
in the same collection systems, to
eliminate duplication of collection
systems, and to eliminate excess effort
identifying, documenting, and keeping
separate regulated waste and
unregulated waste. As long as all
commingled waste is managed in a
system that meets the requirements of
the universal waste regulations, such
efforts are not necessary.
Another reason for using a generic
term is to make the system flexible, so
that the regulation does not have to be
revised every time a waste (such as a
particular battery type) either becomes
hazardous or is no longer hazardous due
to changes in manufacturing practices or
technology. A final reason is that the
Agency will likely not be able to make
across the board hazardous waste
determinations for entire categories of
waste and must leave that responsibility
to individual waste generators. For
'example, as the chemistry in a type of
battery changes over time and varies
from manufacturer to manufacturer,
some older batteries may exhibit
characteristics while some newer
batteries do not. Given such a situation,
it would not be possible for the Agency
to identify individually which batteries
are hazardous and which are not. Thus,
the Agency stresses that although
generic terms may be used in some
cases, the term will be modified with
the phrase "hazardous waste" and only
those wastes that are hazardous (are
listed or exhibit characteristics) are
subject to hazardous waste regulation,
including the universal waste rule.
IV.C.2.b. Final Factor 40 CFR 273.81(b)
To retain and expand on the concept
included in proposed § 273.2(a)(2) and
discussed in the proposal preamble that
universal wastes are typically generated
by a wide variety of types of generators,
the Agency has added another factor to
the final rule. Final § 273.81(b) indicates
that wastes that are good candidates for
the universal waste system would not be
exclusive to a specific industry or group
of industries, and would commonly be
generated by a wide variety of types of
establishments (including, for example,
households, retail and commercial
businesses, service businesses, office
complexes, conditionally exempt small
quantity generators, small businesses,
government organizations, as well as
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25514 Federal Register / Vol. 60. No. 91 / Thursday, May 11, 1995 / Rules and Regulations
large industrial facilities). This factor is
also similar to one proposed by a
commenter who suggested that positive
demonstrations, such as this one,
should be utilized in place of negative
showings that wastes are a "problem" or
pose risks because such negative factors
will inhibit persons from petitioning to
add their wastes or products. This factor
will assist petitioners and the Agency in
determining whether a waste is
appropriate to be added to the universal
waste system.
This new factor also addresses an
issue raised by several commenters;
whether industrial wastes could be
added to the universal waste system. AS
was discussed in the preamble to the
proposal, the Agency does not believe
that wastes that are generated primarily
in an industrial setting are appropriate
for the universal waste system. In this
context, the term industrial setting,
however, is used to describe locations
where large production-type operations
are conducted and where large
quantities of waste are generated. The
Agency believes that wastes that are
primarily generated in such settings can
be managed under the current
hazardous waste regulations because
such facilities are usually set up to
comply with the applicable
requirements. The new factor makes it
clear that wastes appropriate for
addition to the universal waste system
should be generated by a wide variety
of types of establishments, which could
include, but should not be exclusively,
large industrial operations. One of the
problems the universal waste rule is
designed to address is that a relatively
large portion of some waste types are
exempt from the hazardous waste
regulations (i.e., are generated by
households and CESQGs) and are
indistinguishable from the regulated
portion of the waste. This "look alike"
problem makes implementation of the
program for these wastes extremely
difficult. For example, batteries are
probably the classic example of a waste
type that is generated by all types of
establishments, including large
industrial operations. The Agency
points out that some wastes commenters
described as "industrial" might be
appropriate for the universal waste
system as indicated by the new factor.
For example, a large percentage of
antifreeze is generated by do-it-
yourselfer households, while other
portions are generated by CESQGs,
small businesses, service businesses,
government organizations, as well as
large industrial facilities. The Agency
envisions that most wastes that meet the
new factor would be post-user wastes
rather than residues from production or
other industrial operations.
IV.C.2.C. Final Factor 40 CFR 273.81(c)
The Agency has essentially retained
the proposed factor, § 273.2(a)(3), which
addressed the number of generators of a
candidate waste, as final factor
273.81(c). This factor will assist in
identifying wastes that are appropriate
for addition to the universal waste
system. The text of the factor has been
revised to indicate that universal wastes
should be generated by a large number
of generators, but that the number 1,000
is an example rather than a hard and
fast number. In fact, the Agency believes
that in general universal wastes should
be generated by many more than 1,000
generators. The goal of the universal
waste program is to capture wastes that
due to their widespread nature are
difficult to manage under the current
hazardous waste regulations. The
Agency believes that a waste must be
generated by a large number of
generators in order for regulation under
the universal waste system to contribute
largely to improving management
practices and to improving
implementation of the hazardous waste
program. Because of this, the Agency
does not anticipate adding wastes to the
universal waste system that are
generated by a small number of
generators (e.g., less than 1,000) in large
volumes, as was suggested by one
commenter.
In fact, to further assist in identifying
wastes that are appropriate for the
universal waste system, the Agency has
added a qualifier to the final factor
clarifying that wastes that are
appropriate to be added to the universal
waste system are frequently generated in
relatively small quantities by each
generator. This concept comes from
proposed §273.2(a)(4)(iv), which was
generally interpreted by commenters to
mean that only wastes generated by
small quantity hazardous waste
generators would be considered for
addition to the universal waste system.
The revised § 273.81(c) should clarify
that the Agency would consider wastes
that are generated in relatively small
quantities by each generator, regardless
of the total quantity of all hazardous
wastes generated by the generator. For
example, even a very large industrial
generator of large volumes of hazardous
waste may generate relatively small
quantities of batteries. It should be
clarified that this factor is intended only
as a gross indicator of quantities
generated. Specifically, the term
"relatively" is used to contrast small
quantities of universal wastes with the
quantities in which large volume
industrial hazardous wastes can
sometimes be generated, e.g., tens of
thousands of pounds or gallons per
month.
The Agency also confirms, as was
suggested by one commenter, that the
factor concerning number of generators
could be applied prospectively in cases
where newly developed products are
likely to be appropriate for the universal
waste system. Thus, if a newly
developed product (or redesigned
product) can be shown to be likely to be
produced and disposed of in such a way
as to be appropriate for the universal
waste system, a petition could be
submitted even before there are actually
a large number of generators of the
waste.
IV.C.2.d. Final Factor 40 CFR 273.81(d)
The final rule retains as § 273.81(d)
the factor proposed as § 273.2(b)(2)
which indicates that collection systems
that ensure close stewardship would
make a waste a more likely candidate
for addition to the universal waste
system. All of the comments addressing
this; factor were positive. The Agency
emphasizes, however, that this factor is
not intended to be biased toward
collection systems run by product
manufacturers. Although manufacturers
may have easy access to information
about products that may assist them in
developing collection programs, the goal
of this factor is to facilitate addition of
wastes to the universal waste system
that are most likely to be collected, and
to be collected in a manner that ensures
good management of the waste. Thus,
any collection system that would ensure
good stewardship would be a favorable
factor, regardless of what organizations
run the program. The Agency also notes
that the economics of collecting and
recycling or disposing of a waste can
provide some insight into the
stewardship that may be provided a
waste. For example, if a waste can be
recycled at profit, it may be more likely
that collectors will maintain close
stewardship of the waste.
IV.C.2.e. Final Factor 40 CFR 273.81(e)
Proposed factor 273.2(b)(l), which
addressed the risk posed by the waste
during accumulation and transport, has
been, retained largely as it was proposed.
The final factor, § 273.81(e), has been
revised to clarify that good candidate
wastes for the universal waste system
would pose relatively low risks
compared to other hazardous wastes
during accumulation and transport. This
revision should clarify that, although it
is possible that a candidate universal
waste may pose more risk than other
non-hazardous wastes during
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25515
accumulation and transport (since they
are identified as hazardous), wastes
appropriate for the universal waste
system should pose relatively less risk
than other hazardous wastes since the
universal waste accumulation and
transport requirements are relatively
less stringent than the existing
hazardous waste regulations. Examples
of reasons a waste might pose relatively
low risk during accumulation and
transport include the construction or
physical form of the product or waste,
packaging of the waste, chemical
characteristics of the waste, ease of
containment, and standard handling
procedures for the waste.
The final factor (§ 273.81(e)) also
addresses, as did the proposed version,
the concept that waste management
requirements appropriate for the
universal waste regulations can be used
to mitigate risks posed by accumulation
and transport of the waste. This part of
the factor has been clarified to indicate
that petitioners should suggest or
reference waste management
requirements specific for the candidate
waste that could be added to the
universal waste regulations (or that are
independently applicable, e.g., DOT
requirements) that would protect human
health and the environment from risks
posed by the waste during accumulation
and transport. Such waste management
requirements may include volume
reduction incident to collection
activities. The activities should be
designed to ensure that these
management practices do not dilute the
hazardous constituents or release them
to the environment. For example, if
mercury-containing lamps were
considered for addition to the universal
waste system, crushing might be
allowed as appropriate management if
the crushing process was performed in
a controlled unit which did not allow
any releases of mercury or other
hazardous constituents to the
environment.
JV.C.2J. Final Factor 40 CFR 273.81(f)
The Agency has revised and
combined proposed § 273.2(b)(3) and
part of proposed § 273.2(a)(2), which
addressed, respectively, whether
addition to the universal waste system
would facilitate removal of the waste
from the municipal waste stream and
the presence of the waste in the
municipal waste stream. The revised
factor, § 273.80(f), addresses whether
"regulation of the waste under part 273
wilt increase the likelihood that the
waste will be diverted from non-
hazardous waste management systems
(e.g., the municipal waste stream, non-
hazardous commercial or industrial
waste stream, municipal sewer or
stormwater systems) to recycling,
treatment, or disposal in compliance
with Subtitle C of RCRA."
The Agency combined the two
proposed factors to reduce the
duplication that several commenters
pointed out existed in the two sets of
factors. The revised factor encompasses
the concepts included in both the
proposed factors, in that it would be
necessary to show that some portion of
a waste is being managed in non-
hazardous waste management systems
in order to argue that regulation under
part 273 would increase the likelihood
of diversion from these systems.
The revised final factor also addresses
diversion of waste from non-hazardous
waste management systems generally,
rather than specifically from the
municipal waste stream. This revision
was made in response to a number of
commenters who pointed out that the
goal of the universal waste system
should be to improve management of
wastes that are managed in any type of
non-hazardous waste system, such as,
for example, disposal through
municipal sewer systems. These
commenters suggested that the term
implied that the only waste
management system the agency was
interested in removing hazardous
wastes from was the municipal solid
waste stream. The Agency agrees that
the term "municipal waste stream" was
too specific and could have been
interpreted to prevent addition of
wastes to the universal waste system
that may be primarily managed in non-
hazardous waste systems other than the
municipal solid waste system. This was
not the Agency's intent. Thus, the
revised factor uses the term "non-
hazardous waste management systems"
and provides some examples to clarify
this point.
In addition, the revised factor focuses
more on a positive showing that
regulation under the universal waste
system will improve waste management,
rather than a negative showing that the
waste is being managed improperly.
Several commenters argued that
requiring such a negative showing
would discourage potential petitioners
from seeking the benefits of the
universal waste system. For example,
commenters argued that manufacturers
and generators would not want to
develop and submit data that
demonstrate that their used products or
wastes are "problem" wastes that are
managed illegally and pose significant
risks to human health or the
environment. Requiring submission of
such data would force petitioners to
stigmatize their wastes, and could
potentially subject them to significant
liabilities in the future. ,
It should also be noted that diversion
of unregulated portions of a waste, such
as household waste and CESQG waste,
from non-hazardous waste management
systems could be a reason to add a
waste to the universal waste system. For
example, in some cases it may be likely
that facilitating the collection of
commingled regulated and unregulated
waste would encourage development of
collection systems that could divert
significant quantities of the waste,
including unregulated waste, from non-
hazardous waste management systems.
Such a showing would not require
petitioners to focus on management of
regulated waste in non-hazardous waste
management systems.
IV.C.2.g. Final Factor 40 CFR 273.81(g)
Proposed factor 273.2(b)(5) addressing
improved implementation of the
hazardous waste program has been
essentially retained in the final rule as
§ 273.81(g). Commenters supported the
factor as proposed. The final factor has
been revised only to clarify that
improving compliance with the
hazardous waste program is an
important facet of improving
implementation of the program. Thus,
the final factor specifies that if
regulation of a waste under the
universal waste system is likely to
improve both implementation and
compliance, a waste would be a stronger
candidate for addition to the system.
IV.C.2.h. Final Factor 40 CFR 273.81(h)
Finally, one commenter requested
additional guidance on what other
factors might be addressed under the
proposed factors that discussed "other
appropriate information" and "such
other factors as may be appropriate"
(proposed §§ 273.2(a)(6) and
273.2(b)(6)). These factors have been
combined in the final rule as
§ 273.81(h), which addresses "such
other factors as may be appropriate." In
response, there is no list of specific
subjects that the Agency expects might
be addressed under this factor. The
Agency retained this factor because it
believes that it is likely that for any
particular waste or waste category there
may be unique factors which would
demonstrate that regulation under the
universal waste system is: Appropriate
for the waste or category of waste; will
improve management practices for the
waste or category of waste; and will
improve implementation of the
hazardous waste program. These unique
factors might result from physical or
chemical characteristics of the waste,
characteristics of waste generators (e.g.,
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25516 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
organization or distribution of
generators), characteristics of collection
programs, or other aspects of the waste
or its management. The Agency does not
mean to imply that petitioners must - •
address other factors, but believes that
it is important to be able to take unique
factors into account if such factors exist.
TV.C.2A. Proposed Factors Not Included
in the Final Rule
First, the proposed factor 273.2(a)(4),
which addressed typical generation
sites, is not included in the final rule.
Commenters overwhelmingly argued
that the proposed factor would
unintentionally limit universal wastes
because there are few wastes generated
at such locations, and would limit
universal wastes to wastes generated by
small businesses, many of which would
be CESQGs anyway. The Agency had
intended that this factor would assist in
identifying wastes that are generated in
situations that make them more difficult
to manage and thus the universal waste
system could improve management.
However, the Agency agrees that the
proposed factor was overly restrictive,
and that many wastes appropriate for
the universal waste system may not be
generated primarily at the types of
locations described. The Agency
recognizes that although universal
wastes may frequently be generated by
large organizations, due to the small
quantity and type of waste generated at
any one location, regulation under the
universal waste system may be
appropriate if the goals of the system
would be advanced. Thus, the Agency
decided to delete this factor. However,
as discussed above, one concept from
the proposed factor has been clarified
and added to another final factor.
Specifically, the idea that universal
wastes are frequently generated in
relatively small quantities by any one
generator has been added to final
§273.81(c).
Second, the proposed factor
273.2(a)(5), which addressed the risk
posed by management of the waste in
the municipal waste stream (e.g.,
municipal waste combustors or
landfills), is also not included in the
final rule. The Agency agrees with
numerous commenters who pointed out
that any waste that has been identified
as hazardous waste (i.e., is either listed
or exhibits one or more characteristics),
by definition could pose a risk to human
health or the environment under non-
hazardous waste management scenarios.
The purpose of identifying wastes as
hazardous waste is to identify those that
pose such risks. Since only hazardous
wastes are eligible for the universal
waste system, the Agency decided it is
not necessary to require any additional
demonstration of risk for typical
management scenarios. The Agency also
agrees with commenters who argued
that requiring such a demonstration of
risk would inhibit petitioners because
they would be unwilling to stigmatize
their products or wastes or increase
future liabilities by highlighting the
risks posed by the products or wastes in
non-hazardous management systems.
Third, the proposed factor 273.2(b)(4),
which addressed the availability of
recycling technologies, is also not
included in the final rule. Commenters
were divided on this issue, but the
Agency agrees with several points made
by commenters opposing the use of this
factor. Several commenters argued that
recycling technology is quickly
developing and that the availability of
volumes of input material is a major
factor in driving this development.
Thus, using the prior existence of
recycling technology as a factor for
adding wastes to the universal waste
system may inhibit collection of
volumes of potentially recyclable wastes
and thus may actually inhibit
development of technologies for
recycling. The Agency thus believes it is
appropriate to evaluate wastes for
addition to the universal waste system
based on other factors, such as whether
waste management practices for a waste
will be improved, regardless of whether
the waste is recycled or treated and
disposed of under existing Subtitle C
requirements.
Other commenters argued that the
environmental benefits of removing
hazardous wastes from non-hazardous
waste management systems should not
be lost only because a recycling
technology has not yet been developed
for a particular waste type. Although the
Agency encourages environmentally
protective recycling of hazardous
wastes, this argument is convincing.
The Agency would prefer to get
hazardous wastes out of non-hazardous
waste management systems as soon as
possible, rather than waiting for a
recycling technology to develop, which
in some cases may be technologically or
economically unlikely.
IV.D. Participants in the Universal
Waste System
The following three sections describe
the four regulatory categories of
participants in the final universal waste
management system: Small quantity
handlers of universal waste, large
quantity handlers of universal waste,
transporters, and destination facilities.
The differences between these
categories and the proposed categories
of generators, consolidation points,
transporters, and destination facilities
are also described.
TV.D.l. Small and Large Quantity
Handlers of Universal Waste
In the proposed rule, regulated
persons managing universal waste were
categorized into four categories:
Generators, consolidation points,
transporters, and destination facilities.
In the final rule there are also four types
of reg;ulated persons. The transporter
and destination facility categories are
retained essentially as they were
proposed. The persons who would have
been included in the proposed generator
and consolidation point categories will
now fit into either the category of small
quantity handlers of universal waste
(SQHUWs) or the category of large
quantity handlers of universal waste
(LQHUWs).
Under 40 CFR 273.6 of the final rule,
a Universal Waste Handler is defined to
mean a generator of universal waste or
the o'wner or operator of a facility,
including all contiguous property, that
receives universal waste from other
universal waste handlers, accumulates
universal waste, and sends universal
waste to another universal waste
handler, to a destination facility, or a
foreign destination. The Agency further
clarifies the definition of Universal
Waste Handler by stating that a
Universal Waste Handler does not
mean: (1) A person who treats (except
under the provisions of § 273.13 (a) or
(c), o;r 273.33 (a) or (c)), disposes of, or
recycles universal waste; or (2) a person
engaged in the off-site transportation of
universal waste by air, rail, highway, or
water, including a universal waste
transfer facility (see preamble
discussion under sections IV.E.8 of
today's rule).
In 1:he final rule, the term Universal
Waste Handler is subdivided into two
categories: Small Quantity Handler of
Universal Waste (SQHUW) and Large
Quantity Handler of Universal Waste
(LQHUW). Part 273.6 defines a Small
Quantity Handler of Universal Waste to
mean a universal waste handler, as
defined above, who does not
accumulate 5,000 kilograms or more
total of universal waste (batteries,
pesticides, or thermostats, calculated
collectively) at any time. A Large
Quantity Handler of Universal Waste is
defined in § 273.6 to mean a universal
wastes handler (as defined above) who
accumulates 5,000 kilograms or more
total of waste (batteries, pesticides, or
thermostats, calculated collectively) at
any time. The 5,000 kg accumulation
cut-off level does not refer to any one
category of universal waste, calculated
separately but refers to the total quantity
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Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25517
of "universal waste accumulated on-site.
Thus, a universal waste handler who
accumulates one or more categories of
universal waste (batteries, pesticides, or
thermostats) must determine their status
as a small or large quantity handler of
universal wastety calculating the total
quantity of all universal waste
categories accumulated on-site.
The Agency decided to make this
change for several reasons. First,
numerous commenters suggested that
there should be a third category of
universal waste handler: front-line
collectors of universal waste who collect
small quantities of universal waste,
largely from consumers and small
businesses. These commenters pointed
out that such collectors would
frequently be retail-type operations (e.g.,
a department or specialty store that has
a spent battery collection box)
participating in national or regional
collection programs. Such front-line
collectors would likely accumulate only
small quantities of universal waste
because they are not principally in the
business of managing waste and because
they would ship wastes frequently using
package shipping services or similar
systems set up by the collection
programs.
These commenters argued that front-
line collectors should be subject to less
stringent requirements than the
proposed consolidation point
requirements for several reasons. One
reason was that the universal waste they
would have on-site would pose limited
risk due to the small quantities
involved. Another reason was that some
of the requirements would inhibit the
participation of many retail-type
operations (such as the large retail
chains) which would greatly limit the
success of universal waste collection
programs in removing these wastes from
the solid waste stream.
The Agency agrees with the concept
that the activities of persons such as
front-line collectors managing small
quantities of universal waste pose less
risk and require less stringent standards
than those managing larger quantities of
universal waste. Therefore, instead of
adding an additional category of front-
line collectors with less stringent
standards, the Agency decided to extend
this concept to all persons both
generating and collecting universal
waste. Thus, under the final rule,
persons accumulating large quantities of
universal waste (5,000 kilograms or
more accumulated on-site) are subject to
more stringent requirements than
persons accumulating small quantities.
The second reason the Agency
decided to restructure the categories of
persons managing universal wastes was
in response to comments received on
the issue of recordkeeping for universal
waste shipments. The Agency had
proposed that a manifest be required for
shipments from final consolidation
points to destination facilities, based on
the concept that such shipments would
be larger shipments and thus require
closer tracking. In addition to other
issues, a number of commenters pointed
out that it is not necessarily true that
shipments from consolidation points to
destination facilities will be larger
shipments. For example, shipments
between consolidation points or
between generators and destination
facilities may also be large shipments.
The Agency agrees that it does not
necessarily make sense from a risk
perspective to require recordkeeping for
certain shipments based solely on the
type of universal waste management
activity conducted by the shipper and
receiver (i.e., whether the shipper
generates or collects universal waste or
whether the receiver collects or disposes
of universal waste). The Agency
believes that the appropriate variable for
applying more stringent requirements is
the quantity of waste managed, not
whether waste is generated or received
from off-site. Therefore, under the final
rule the level of requirements applied to
any handler (i.e., small or large quantity
handler requirements) is based purely
on how much universal waste is
managed at the location. Requirements
for SQHUWs and LQHUWs, including
notification requirements are found in
subparts B and C, respectively, of
today's final rule. These requirements
are discussed in detail in this preamble
under section IV.E., Universal Waste
Handler Requirements.
IV.D.2. Transporters
In the final rule, transporter is defined
as "a person engaged in the off-site
transportation of universal waste by air,
rail, highway, or water." This definition
remains substantially unchanged from
the proposed definition, except that the
term "universal waste" has replaced the
term "hazardous waste." Persons
meeting the definition of transporter are
subject to the universal waste
transporter requirements of subpart D of
part 273. Using the term "universal
waste" merely clarifies that the part 273
transporter requirements apply only to
shipments of universal waste.
The universe of persons covered by
the transporter definition is the same as
that covered by the proposed definition,
and includes those persons who
transport wastes from one universal
waste handler to another, to a
destination facility, or to a foreign
destination. In response to several
commenters' questions about self-
transportation of universal waste by
generators, the final rule also clarifies in
40 CFR 273.18(b) and 273.38(b) that any
handler who self-transports universal
waste from his facility to another
handler, a destination facility, or a
foreign destination, becomes a universal
waste transporter for those self-
transportation activities and is subject to
the requirements of subpart D of this
rule. The purpose of this language is
simply to clarify, for any handlers who
might be unsure, that a handler
transporting his or her own universal
waste off-site is regulated the same as
anyone else would be transporting that
universal waste off-site.
IV.D.3. Destination Facilities
In the proposed part 273 regulations,
a destination facility was defined as "a
hazardous waste treatment, storage,
recycling, or disposal facility which: (1)
Has received a permit (or interim status)
in accordance with the requirements of
parts 270 and 124 of this chapter, (2) has
received a permit (or interim status)
from a state authorized in accordance
with part 271 of this chapter, or (3) is
a recycler regulated under 40 CFR 261.6
(c)(2). If a waste is destined for a facility
in an authorized state which has not yet
obtained authorization to regulate that
particular waste as hazardous, then the
designated facility must be a facility
allowed by the receiving state to accept
such waste."
Many commenters argued that this
definition should be revised to include
only facilities that are actually recycling
or disposing of universal wastes. For
example, they argue that a facility that
only receives shipments of used
hazardous waste batteries, consolidates
them, and then ships them to a
recycling facility should not be defined
to be a "destination facility" just
because it is already a RCRA permitted
or interim status facility due to other
activities conducted at the facility.
Commenters pointed out that non-
permitted facilities conducting the exact
same universal waste management
activities would, under the proposed
rule, be defined as consolidation points
and would be subject to the less
stringent consolidation point
requirements. Commenters argued that
it does not make sense to regulate
facilities differently that are conducting
the same universal waste management
activities.
Commenters further noted that
defining a destination facility in terms
of whether or not it has a RCRA permit
would require any facility operating
under a RCRA Part B permit to manage
this waste under the full Subtitle C
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25518 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
regulations instead of the less stringent
requirements contained in the proposed
part 273 regulations, whether or not
they are actually treating or recycling
the universal waste. Commenters also
pointed out that this definition would
provide an incentive for managing
universal waste at unpermitted facilities
with less experience in hazardous waste
management and would inhibit
management at permitted facilities that
have hazardous waste management
experience as well as oversight from
regulating agencies. Commenters stated
that although the proposed rule
provided flexibility for most managers
of universal waste, the proposed
definition of destination facility would
restrict the ability of permitted facilities
to manage universal wastes.
The Agency agrees with these
commenters and did not intend for the
destination facility requirements under
part 273 to apply to permitted
hazardous waste facilities serving solely
as consolidation areas for a particular
category of universal waste. The Agency
agrees that the more stringent
destination facility requirements should
apply only to those facilities that
actually treat, recycle and/or dispose of
a particular category of universal waste.
Permitted facilities that only consolidate
a particular category of universal waste,
but do not treat, recycle, and/or dispose
of this particular category of waste,
should be subject to the small or large
quantity handler of universal waste
requirements under part 273, as
appropriate. Thus these facilities would
be subject to the same requirements as
any other facility that conducts the same
universal waste management activities.
Thus, in today's Final Rule, the
definition of destination facility has
been revised to clarify this point. In
§ 273.6 of the final rule, destination
facility is defined as "* * *a facility
that treats, disposes of, or recycles a
particular category of universal waste
except those management activities
described in paragraphs (a) and (c) of
§§ 273.13 and 273.33. A facility at
which a particular category of universal
waste is only accumulated, is not a
destination facility for purposes of
managing that category of universal
waste." By defining a destination
facility based on the universal waste
management activity conducted at the
facility rather than by whether the
facility has a RCRA permit for other
waste management activities, the final
rule indicates that only facilities that
actually treat, dispose of, or recycle a
particular category of universal waste
must comply with the destination
facility requirements at § 273.60. The
universal waste handler definition
(§ 273.6) has also been structured to
conform to this change and includes all
facilities that accumulate a particular
category of universal waste but do not
treat, dispose of, or recycle them. Thus,
such facilities must comply with only
the appropriate universal waste handler
requirements for managing that
particular category of universal waste
regardless of whether they have a permit
for management of other hazardous
wastes or other categories of universal
waste which they do treat, recycle, and/
or dispose. Therefore, a facility which
only accumulates a particular category
of universal waste is a universal waste
handler for that particular category of
universal waste. However, if this facility
also treats, recycles, and/or disposes of
another category of universal waste, that
facility is a destination facility for that
particular category of universal waste
and must comply with the destination
facility requirements for that category of
waste.
IV.E. Universal Waste Handler
Requirements
As described in Section III, Summary
of Final Universal Regulations, subparts
B and C of part 273 set forth the final
requirements for small and large
quantity handlers of universal waste.
Each of these subparts consists of ten
sections. All but three of the sections
include requirements that are the same
for both small and large quantity
handlers of universal waste. However,
the notification and tracking sections for
LQHUWs include regulatory
requirements, while these same sections
for SQHUWs merely explain that small
quantity handlers are not subject to
notification and tracking requirements.
Also, the employee training section for
large quantity handlers of universal
waste includes more extensive
requirements than does the employee
training section for small quantity
handlers of universal waste.
The requirements included in the
final rule for each of the ten universal
waste handler sections are discussed in
detail in the following subsections of
this preamble. Any changes made from
the proposed rule, comments received
on the proposed requirements, and the
Agency's responses to these comments
are also discussed.
IV.E.1. Prohibitions
In the proposed rule, the Agency
proposed three prohibitions that were
applicable to generators, transporters,
and consolidation points managing
universal waste. First, these handlers
were prohibited from diluting or
disposing of universal waste, except that
the existing § 262.70 provision allowing
farmers to dispose of waste pesticides
from their own use on their own farms
was retained. Second, handlers were
prohibited from treating waste, except
by removing electrolytes from batteries
or responding to releases. Third,
handlers were prohibited from sending
or taking universal waste to a place
other than a consolidation point,
destination facility, or foreign
destination. In the final rule, the three
prohibitions have been revised in
response to comment as discussed
below, and are applied to small quantity
handlers of universal waste, large
quantity handlers of universal waste,
and transporters of universal waste. The
final prohibitions for small and large
quantity handlers of universal waste are
found, respectively, in §§ 273.11 and
273.31 of this final rule. The handlers to
which the prohibitions apply under the
final rule are the same as under the
proposal since the universe of small and
large quantity handlers of universal
waste under the final rule is the same
as the universe of generators and
consolidation points under the
proposal. (See section IV.D.l of today's
preamble for a full discussion of
universal waste handlers).
TV.E.l.a. Prohibition on Disposal
The first proposed prohibition is
related to dilution and disposal of
universal waste and has essentially been
retained in the final rule, although
dilution has been moved and included
in the second prohibition concerning
treatment. Thus, the first prohibition
now simply prohibits handlers from
disposing of universal waste. In the
proposal, farmers disposing of waste
pesticides from their own use on their
own faims, in compliance with 40 CFR
262.70 were exempted from the part 273
management standards. In the final rule,
management under 40 CFR 262.70 is
still permissible, however it is not
written as an exemption. Part
273.3(b)(l) states that farmers using this
exemption are not covered under part
273. As proposed, the 40 CFR 262.70
provision allowing farmers to dispose of
waste piesticides from their own use on
their own farms has been retained.
Commemters generally did not disagree
with the prohibition on disposal. A
numbeir of commenters added that the
proposed prohibition on disposal is
reasonable. Thus the Agency has
retained the prohibition essentially as
proposed at §§ 273.11 and 273.31 of
today's final rule.
IV.E.l.b. Prohibition on Treatment
The siecond proposed prohibition on
treatment of universal waste has been
retained in the final rule, but several
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25519
revisions have been made. As
mentioned above, the dilution
prohibition was moved from the first
prohibition and combined with the
second treatment prohibition. This
change clearly separates disposal
activities from treatment activities, since
dilution is a form of treatment. Further,
by combining the treatment and dilution
prohibitions into the same provision it
is further clarified that exceptions
identified to the treatment prohibition
also apply to the dilution prohibition.
Also, the proposed treatment
prohibition included one exception
allowing the removal of electrolyte from
batteries as long as certain requirements
were met. (See proposed §§ 273.11(d)(2)
and 273.11(e)(lj). Commenters generally
supported the exception on electrolyte
removal. Thus, the substance of this
exception has been retained. In the final
rule, however, the electrolyte removal
exception has been made part of a more
general exception for routine battery
management activities, which has been
added for small and large quantity
handlers of universal waste under
sections 273.13(a)(2)(vii) and
273.33(a)(2)(vii). This more general
exception allows handlers of universal
waste batteries to conduct routine
battery management activities as long as
the casing of each individual battery is
not breached and remains closed and
intact.
Routine battery management activities
include sorting batteries by type, mixing
battery types in one container,
discharging batteries, regenerating used
batteries, disassembling battery packs,
removing batteries from discarded
consumer products, or removing
electrolyte from batteries. The types of
battery management activities that are
allowed under the exception and the
requirements that must be met are
referenced in the prohibitions section
and detailed in the waste management
section. (See, for example, 40 CFR
273.11(b), 273.13(a)(2) and (3), and
273.33(a)(2) and (3) of the final rule.)
The requirements for battery
management are discussed further in
section IV.E.3.a of the preamble, waste
management.
Numerous commenters argued that
the treatment prohibition could be
construed to preclude persons collecting
batteries from performing activities that
are necessary and essential to battery
collection and management. Second,
commenters believed that such
management activities do not pose an
appreciable risk to the environment
because the battery casings remain
intact and thus there is no increase risk
of exposure or release of battery
contents to the environment. Finally,
commenters argued that these activities
are necessary to facilitate proper
recycling. Therefore, the Agency has
added text to the prohibitions section
under § 273.11(b) which prohibits
treatment of universal waste batteries
except in response to releases or
management of batteries as provided in
§§ 273.13(a)(2) and 273.33(a)(2). These
sections allow certain battery
management activities provided that the
casing of each individual battery is not
breached and the battery remains closed
and intact.
In response to comment, another
exception to the treatment prohibition
has been added to the final rule that
allows certain thermostat management
activities. This exception allows
handlers to remove mercury-containing
ampules from thermostats. As with the
battery management exception, these
activities must meet certain
requirements referenced in the
prohibitions section and detailed in the
waste management section. (See, for
example, 40 CFR 273.11(b), 273.13(c)(2)
and (3), and 273.33(c)(2) and (3). The
requirements for ampule removal are
discussed further in section, IV.E.S.c,
waste management, of today's preamble.
This exception for ampule removal
has been added to the final rule in
response to a comment. The commenter
argued that all the mercury is located
within the ampule not the entire
thermostat and, therefore, only the
mercury ampule, not the entire used
mercury containing thermostat, should
be regulated. The commenter also
argued that removal of used mercury
ampules from the thermostats will be
done by trained personnel in a setting
where appropriate health and safety
measures have been instituted. The
Agency agrees with the commenter and
has included a thermostat management
exception for small and large quantity
handlers of universal waste, 40 CFR
273.13(c) and 40 CFR 273.33(c), who
conduct mercury ampule removal
activities, provided that they meet the
regulatory provisions of part 273 for
mercury ampule removal. For further
discussion regarding mercury ampule
removal, please refer to section IV.E.S.c,
waste management.
Finally, some commenters were
concerned that the proposed treatment
prohibition, for all universal waste
types, unfairly limited universal waste
management activities of generators.
These commenters stated that under full
Subtitle C regulation, generators are
allowed to treat hazardous waste in
accumulation containers (§ 262.34(a)
and (d)), therefore, compliance with full
Subtitle C requirements is less
restrictive for generators than the
streamlined part 273 standards. The
Agency disagrees with the commenters
and revises the prohibition provisions of
today's final rule with the modifications
mentioned above. The Agency points
out that the existing accumulation
provisions are available only to
regulated generators who have EPA
identification numbers and are
complying with the full part 262
requirements including 90- or 180-day
accumulation time limits (and
permitting for exceeding these limits),
40 CFR 262.34 accumulation unit
standards, biennial reports, and
manifests. The Agency does not believe
it is appropriate to allow a similar
provision for generators who are not
required to comply with the part 262
controls, but are instead following the
streamlined requirements of the
universal waste regulations.
IV.E.l.c. Prohibition on Shipments of
Universal Wastes
The third proposed prohibition on
sending or taking universal waste to a
place other than specifically identified
locations (e.g., generators could take
their universal waste only to a
consolidation point, destination facility,
or foreign destination) has been
substantially retained in the final rule,
with minor modifications. In the final
rule, this prohibition has been moved to
new sections entitled off-site shipments.
(See 40 CFR 273.18(a) and 273.38(a).) In
the final rule, this provision has been
revised to fit the categories of universal
waste handlers used in the final rule.
(See section IV.D.l of today's preamble
for a full discussion on universal waste
handlers). The prohibition has been
substantially retained in the final rule,
but has been modified to allow
shipment to any universal waste
handler. The off-site shipment
prohibition is discussed in detail in
section IV.E.8 of this preamble entitled
off-site shipments.
IV.E.2. Notification
In the proposed rule, the Agency
required generators and consolidation
points accumulating more than 20,000
kg of hazardous waste batteries at any
time to notify EPA of their waste
management activities. EPA requested
comment on the proposed approach not
to require generators of universal waste
pesticides to notify, and the proposed
notification quantity limits.
The notification requirement in the
proposed rule consisted of a letter to the
EPA Regional Administrator identifying
the generator's facility. Specifically,
generators and consolidation points
accumulating more than 20,000 kg of
hazardous waste batteries at any one
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25520 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
time were required to send a one-time
written notification to the EPA Regional
Administrator describing their
hazardous waste battery accumulation
activities. EPA would then assign an
EPA identification number. Information
required in the written notification
included: (1) The generator's or
consolidation point's name and mailing
address; (2) the name and business
telephone number of the person at the
generator's or consolidation point's site
who should be contacted regarding the
battery accumulation activity; (3) the
address or physical location of the
battery accumulation activity; and (4) a
statement indicating that the generator
or consolidation point accumulates
more than 20,000 kilograms of
hazardous waste batteries. Alternately, a
generator or consolidation point could
apply to the EPA Regional
Administrator using EPA Form 8700-
12, "Notification of Regulated Waste
Activity," and checking the appropriate
box indicating that they are a hazardous
waste generator or consolidation point.
The Agency did not propose
notification requirements for generators
and consolidation points handling only
hazardous waste pesticides that are
suspended and/or canceled and
recalled. As discussed in the preamble
to the proposed rule (58 FR 8121),,the
Agency considered the requirements for
identifying recall participants and
recordkeeping, authorized by FIFRA
section 19(b), to provide sufficient
information concerning the identity and
location of persons managing these
pesticides. In addition, FIFRA section
6(g) requires notice to EPA and
appropriate state and local officials of
the location, quantities, and possession
of pesticides that are suspended or
canceled under FIFRA section 6.
Based on commenters' support for the
Agency's decision not to require the part
273 notification requirements for
generators or consolidation points
accumulating recalled pesticides, the
Agency has decided to retain this
exemption. Thus, under the final rule a
person who handles only (e.g., does not
manage other universal waste) recalled
universal waste pesticides as described
in 40 CFR 273.3(a)(l) and who has sent
notification to EPA as required under
FIFRA section 19(b) and 6(g) is not
required to notify under § 273.32 of
today's rule.
In the final rule, the Agency has also
decided to retain the notification
provisions for hazardous waste batteries
found in the proposed rule, with some
minor revisions. In the final rule, the
notification requirements have been
modified by: (1) Expanding the
notification requirements to
accommodate additions to the
applicability section of the rule; (2)
incorporating the revisions made in the
final rule regarding the categorization of
generators and consolidation points; (3)
reducing the 20,000 kilogram cut-off
level for notification; and (4) clarifying
that cut-off for the notification
requirements apply on a "site-by-site"
basis. These modifications are discussed
below.
First, the Agency has broadened the
applicability of the final rule to include,
along with hazardous waste batteries, ,
unused pesticide products and used
mercury-containing thermostats. Thus,
in the final rule, notification
requirements previously required only
for hazardous waste batteries also apply
to unused pesticide products and used
mercury-containing thermostats under
§§273.3 and 273.4 respectively. A full
discussion regarding the expansion of
the universal waste rule to unused
pesticides products and used mercury-
containing thermostats can be found in
sections IV.E.S.b and IV.E.3.C,
respectively, of today's preamble.
Second, the final rule has been
revised from the proposed rule such that
generators and consolidation points are
now designated as universal waste
handlers. The persons who would have
been included in the proposed generator
and consolidation point categories will
now fit into either the category of small
quantity handlers of universal waste
(defined in § 273.6 as a universal waste
handler who accumulates less than
5,000 kilograms total of universal waste
(batteries, pesticides, or thermostats,
calculated collectively) at any time) or
the category of large quantity handlers
of universal waste (defined as in § 273.6
as a universal waste handler who
accumulates 5,000 kilograms or more
total of universal waste (batteries,
pesticides, or thermostats, calculated
collectively) at any time). Thus, under
the final rule, universal waste handlers
accumulating large quantities of
universal waste are subject to more
stringent requirements than persons
accumulating small quantities.
The Agency believes that the
appropriate variable for applying more
stringent requirements is the quantity of
waste managed, not whether the waste
is generated or collected. The Agency
selected 5,000 kilograms of accumulated
waste as the cutoff for this notification
requirement (i.e., as the cut-off between
small and large quantity handlers of
universal waste) because the universal
waste rule is designed for wastes that
present a relatively low risk during
collection (compared to other hazardous
waste), and thus it is appropriate to
have a higher cut off limit for this
notification requirement than applies
under the full hazardous waste
regulations (i.e., the conditionally
exempt small quantity generator limit of
1,000 kg). Further information regarding
small and large quantity handlers of
universal waste, can be found in section
IV.D.l of the preamble.
A third modification made to the
notification requirements reduces the
notification cut-off level from 20,000
kilograms to 5,000 kilograms total of
universal waste. In the. proposal, as
stated above, generators or
consolidation points accumulating more
than 20,000 kilograms of universal
wastei batteries would have been
required to notify EPA. Under today's
final rule, the applicability of part 273
has been expanded to also include
unused pesticide products and
thermostats. Thus, under the final rule,
universal waste handlers accumulating
5,000 kilograms or more total of
universal waste (batteries, pesticides, or
thermostats) at any one time are
required to notify EPA of this activity.
Therefore, a universal waste handler
who accumulates 5,000 kilograms or
more total of universal waste at any one
time is designated a large quantity
handler of universal waste and is
subject to the notification requirements
of 40 CFR 273.32. However, a universal
waste1 handler who does not accumulate
5,000 kilograms total of universal waste
(e.g., batteries, pesticides, or
thermostats, calculated collectively, at
any one time) is designated a small
quantity handler of universal waste and
is not subject to any notification
requirements under part 273. The
Agency points out that since the
universe for generators and
consolidation points and universal
waste handlers are the same, the only
difference between the proposed
notification requirements and the
notification requirements of this final
rule is the cut-off level. Thus, the
notification provisions in today's rule
have not changed substantially. In
addition, as explained previously,
hand] ers of recalled pesticides only
need notify if they have not already
notified under FIFRA.
The Agency's decision to reduce the
cut-off level was based on
recommendations by a number of
commenters. Although some
commenters generally supported the
20,000 kilogram cut-off level, several
commenters recommended that EPA
reduce the level because the 20,000
kilogram cut-off was excessive and that
most generators or consolidation points
would not accumulate such large
amounts of universal waste. These
commenters suggested reducing the
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Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25521
notification quantity limit to 1,000
kilograms. Another commenter
recommended reducing the 20,000
kilogram notification limit to 5,000
kilograms total because the reduction
eliminates the small one-time
collections and average size generators
while ensuring that regulatory agencies
are aware of the larger generators and
more permanent consolidation points.
The Agency agrees with the commenter
and believes that such a quantity level
is appropriate. EPA believes that the
amount of universal waste that a facility
is accumulating is a good indicator of
the quantities of waste that the facility
is handling, is easily verified by
regulating agencies through an
inspection of the facility, and is a good
indicator of the risk posed by
management of universal waste at the
facility.
The Agency also believes that the
5,000 kilogram quantity limit will not
obstruct people managing universal
waste from participating in the
universal waste collection program
because the recordkeeping requirements
for large quantity handlers of universal
waste is basic enough to be fulfilled by
standard business records. Thus,
handlers will arrange universal waste
management activities to achieve
efficiency rather than to avoid
regulatory requirements. To achieve
efficiency, those facilities handling large
quantities in short periods of time will
naturally accumulate these large
quantities in order to take advantage of
the economies of scale available from
making fewer large shipments of
universal waste, as opposed to
numerous small shipments. The
Agency, however, would like to
emphasize that all handlers who
anticipate accumulating 5,000 kilograms
or more total of universal hazardous
waste at any one time must send written
notification to the Regional
Administrator, and receive an EPA
Identification Number before exceeding
the 5,000 kg quantity limit.
Finally, the Agency has clarified in
the final rule that the notification
requirement is a one-time notification
for facilities accumulating 5,000
kilograms or more total of universal
waste, calculated collectively on-site.
The Agency believes clarification is
necessary because a number of
commenters raised the question of
whether or not notification is necessary
only when a particular site exceeds the
cut-off limit or if notification is required
if an entire company accumulates
greater than the cut-off limit at all of its
sites combined. Commenters
specifically recommended that the cut-
off figure apply on a location, or "site-
by-site" basis and not on a company-
wide basis. The Agency agrees with
commenters' recommendation to require
notification on a "site-by-site" basis
only. The Agency believes the
notification requirement in the
proposed rule, and in today's final rule,
already addresses this concern. In
addition, the Agency clarifies that
renotification is not required for large
quantity handlers who have previously
notified. This means that if a large
quantity handler of universal waste has
already notified EPA of his hazardous
waste management activities and has
received an EPA identification number,
he is not required to re-notify under 40
CFR 273.32.
The final rule maintains the
notification requirements of the
proposal, but has reduced the 20,000
kilogram cut-off level to 5,000 kilograms
as discussed previously. The
notification requirements of § 273.32
recognize that a person may own several
non-contiguous properties which
accumulate universal waste
independently of each other. The
notification requirement under § 273.32
does not require a company owning
non-contiguous properties to add
together the total quantity of universal
waste accumulated at each non-
contiguous property and subsequently
notify EPA if the total quantity of
universal waste for all non-contiguous
properties equals or exceeds 5,000
kilograms.
As written, the 5,000 kilogram cut-off
level applies only to the total amount of
all categories of universal waste
accumulated at one site. Non-
contiguous property is viewed as a
separate site. Thus, a person who owns
or operates two or more universal waste
management facilities located on pieces
of property which are non-contiguous
should not add together the quantities of
all universal waste accumulated at all of
his facilities to determine if he exceeds
the 5000 kilogram cut-off level. Owners
or operators should consider each
facility separately and is responsible for
calculating the quantity of universal
waste at each facility separately. If the
5,000 kg cut-off level is exceeded for the
universal waste accumulated at one
facility, he would be required to notify
EPA of his universal waste activities. If
the quantity of universal waste at this
facility is less than the 5,000 kg cut-off,
notification would not be necessary. In
other words, the owner or operator of a
facility, including all contiguous
property, that accumulates 5,000
kilograms or more total of universal
waste, is subject to the notification
requirements of § 273.32.
On the other hand, non-contiguous
properties owned by the same person
but connected by a right-of-way which
he controls and to which the public
does not have access, are considered on-
site property. Thus, a person who owns
or operates two or more universal waste
management facilities located on pieces
of property which are connected by a
right-of-way which he controls and to
which the public does not have access,
should add together the quantities of all
universal waste accumulated at these
facilities to determine if he exceeds the
5000 kilogram cut-off level. If the
quantity of universal waste at his on-site
facilities is greater than the 5,000 kg cut-
off, notification would be necessary, if
the owner has not already notified. The
Agency believes that this clarification
will redress any further confusion
caused by the proposed notification
requirements.
IV.E.3. Waste Management
The final waste management
requirements for small and large
handlers of universal waste are found in
§§ 273.13 and 273.33 of this final rule.
The subsections of §§273.13 and 273.33
address waste management issues
specific to each waste category.
Subsection (a) consists of requirements
for universal waste battery management,
subsection (b) consists of requirements
for universal waste pesticide
management, and subsection (c) consists
of requirements for universal waste
thermostat management. The three
waste category-specific provisions are
discussed in the following three
subsections of this preamble.
Each of the subsections set forth a
general performance standard requiring
that handlers "manage universal waste
in a way that prevents releases of any
universal waste or component of a
universal waste to the environment."
The universal waste proposal included
a similar provision, which was
proposed for management of universal
waste batteries. The proposed provision,
however, required that persons manage
batteries "in a way that minimizes
releases* * •*" Several commenters
argued that the requirement to minimize
releases was too lax and in essence
allowed releases. They pointed out that
such a standard implied that releases
could occur, as long as the handler
attempted to minimize them. These
commenters suggested that the standard
should be changed to require
management in such a way that prevents
releases. The Agency agrees with this
point, and stresses that releases of
universal waste or universal waste
components to the environment are not
allowed under the universal waste
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25522 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
regulations. For example, management
in a container that has signs of visible
leakage would unquestionably be out of
compliance. The standard of
performance for universal waste
management is to prevent any release
and therefore, leakages that are not
visible are also not permissible. Thus,
the Agency has revised the text of the
provision to clarify that universal waste
batteries, pesticides and thermostats are
to be managed in such a way as to
prevent releases.
In the final rule, this performance
standard is applied to all universal
waste rather than only to batteries.
Thermostats are included because the
Agency had discussed applying the
proposed requirements for battery
management to thermostats and
commenters generally supported this
approach. Pesticides are included
simply to make it clear that releases are
to be prevented, although this
requirement is actually redundant.
IV.E.S.a. Universal Waste Batteries
Subsection (a) of the small and large
quantity handlers of universal waste
management sections sets forth
requirements for the management of
universal waste batteries. Three
provisions are included.
The first provision of §§ 273.13(a)(l)
and 273.33(a)(l) address containment of
leaking or damaged batteries. The
Agency added this provision to the final
rule after reviewing comments on the
issue of waste management
requirements for batteries. Commenters
disagreed on this subject. A number of
commenters argued that the
management requirements proposed for
batteries were sufficient to ensure that
universal waste battery management
will be protective of human health and
the environment. They believed that the
general performance standard
concerning releases and the prohibitions
were sufficient and urged the Agency
not to impose additional waste
management requirements. In fact,
several commenters argued that
batteries should be subject to
regulations like those of subpart G of 40
CFR part 266, which includes no
requirements for handlers other than
recyclers.
Several other commenters, however,
argued that more stringent controls
should be imposed on battery waste
management. They believed that the
proposed general performance standard
and other requirements were inadequate
to protect against environmental
damage. These commenters
recommended various additional
requirements including accumulation of
batteries on surfaces that can contain
releases, detailed employee training,
financial assurance, temperature and
ventilation controls, water run-on and
run-off controls, fire/explosion and
security precautions.
In response to these comments the
Agency has decided to add to the final
rule a containment provision requiring
that handlers "contain any universal
waste battery that shows evidence of
leakage, spillage, or damage that could
cause leakage under reasonably
foreseeable conditions in a container.
The container must be closed,
structurally sound, compatible with the
contents of the battery, and must lack
evidence of leakage, spillage, or damage
that could cause leakage under
reasonably foreseeable conditions." This
means that the containers must be in
good condition (no severe rusting,
apparent structural defects, or
deterioration). The Agency believes that
this requirement will ensure that any
potential releases to the environment
from universal waste batteries are
prevented. The Agency further believes
that this requirement is specific enough
to provide clear direction to handlers of
universal waste batteries on how to
prevent releases. Because the
requirement is not technically difficult
to follow, the Agency is confident that
universal waste handlers will be able to
comply. Although the Agency has
added this new containment
requirement for batteries, the Agency is
sensitive to concerns that overly
burdensome requirements will
discourage participation in the universal
waste system, resulting in decreased
quantities of these wastes being
collected for proper management. The
Agency is confident that this
requirement is rigorous enough to
protect human health and the
environment from the risks of battery
management, but at the same time will
not present a barrier to participation in
universal waste collection programs.
The second provision of the waste
management section for batteries,
§§ 273.13(a)(2) and 273.33(a)(2),
specifies conditions that must be met by
handlers conducting these activities.
This provision also identifies certain
battery management activities that may
be conducted by handlers. This
provision was added in response to
numerous commenters who all argued
that certain activities that might be
considered treatment, and thus banned
under the prohibition on treatment of
universal waste, are necessary to quality
battery management and pose no
increased health or environmental risks.
Commenters mentioned the following
activities: sorting batteries by type;
mixing battery types in one container;
discharging batteries so as to remove the
electric charge; disassembling batteries
or battery packs into individual batteries
or cells; and removing batteries from
discarded consumer products.
According to these commenters, these
activities are,essential to effective
battery management. For example,
batter}' types are mixed in containers at
collection points to avoid the
complexity of requiring those dropping
off batteries to identify and manage
batter}' types separately. Collected
mixed batteries must be sorted by type
in order to send them to the appropriate
destination facilities for proper
recycling or treatment. Batteries must be
removed from discarded consumer
products to make shipping and handling
economical. Discharging batteries may
be conducted as a safety precaution
prior to accumulation or shipping.
The Agency agrees with commenters
that these activities are an important
part of battery management arid should
be allowed under the universal waste
regulations. The Agency also agrees
with commenters' point that as long as
the metal or plastic casing of each
individual battery or cell is not
breached and remains closed and intact,
the risk of releases to the environment
is not increased by these activities.
Thus, the Agency has added this new
provision to the final rule specifying
that handlers may conduct the battery
management activities listed above as
long as; the battery or cell casings are not
breached and remain closed and intact;
The Agency notes that it has removed
the 40 CFR 261.6 exemption for used
batteries that are to be regenerated and
has added a provision specifying that
facilities regenerating used batteries are
subject to the part 273 standards for
small or large quantity handlers of
universal waste. The Agency believes
that regeneration of batteries is a
management activity that should also be
exempted from the treatment
prohibitions. Thus, regeneration of used
batteries has also been included as part
of the management activities mentioned
above for universal waste batteries (For
further discussion regarding regenerated
batteries, please refer to section IV.J of
the preamble). To resolve commenters'
concerns that these activities'might be
banned under the general prohibition on
treatment, in the final rule the Agency
has also revised the treatment
prohibition to specifically exempt these
activities. Removing electrolyte, which
was allowed under the proposed rule
and not opposed by commenters, has
also been included in this provision as
an allowable activity.
The 1:hird provision of the waste
management section for batteries
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Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25523
273.13(a)(3) and 273.33(a)(3), has been
expanded from a proposed provision
discussing how electrolyte removed
from batteries is regulated (see, for
example, proposed 40 CFR 273.11(e)(l)).
The final provision has been expanded
to address not only electrolyte, but any
non-universal waste generated in the
process of managing universal wastes.
These non-universal wastes could
include any solid waste generated in the
battery management activities discussed
above (e.g., plastic or metal battery pack
construction materials or consumer
electronics hulks from which batteries
have been removed). The provision has
been expanded to address these other
wastes because commenters raised the
issue of battery management activities
and the same issues arise with wastes
generated in these activities as with
electrolyte.
In addition, this provision has been
expanded to address the question raised
by commenters of how electrolyte (and
other generated non-universal wastes)
would fit into the hazardous waste
regulations. Under the final rule the
handler who generates hazardous waste
electrolyte or other hazardous wastes
are subject to the generator requirements
of 40 CFR part 262. Compliance with
the generator regulations of part 262 is
appropriate because a generator begins
the hazardous waste management
procedures (e.g., manifesting, shipping
to regulated facilities), which is what
would be required for a non-universal
waste generated as a result of universal
waste management which must be
moved into the full hazardous waste
regulatory system.
Finally, this provision has also been
expanded to clarify that if electrolyte or
any other generated non-universal
wastes are not hazardous wastes, they
may be managed under applicable solid
waste management regulations. This is
always true under the hazardous waste
regulations, but the Agency believes that
restating this will make the regulations
more clear and user friendly for battery
handlers.
IV.E.3.b. Universal Waste Pesticides
In the proposed universal waste rule,
the Agency proposed that suspended
and/or canceled and recalled pesticides
managed under the universal waste
regulations must be packaged to meet
one of the following four conditions: (1)
The pesticide must oe packaged in the
original packaging (container or tank)
used to contain the pesticide when it
was being distributed or sold, which
must be kept closed and not leaking; (2)
the pesticide must be packaged in the
original packaging and overpacked in a
larger container that is closed and non-
leaking; (3) the pesticides must be
contained in a tank that meets the
hazardous waste tank requirements; or
(4) the pesticides must be contained in
a non-leaking transport vehicle or
vessel. The Agency also requested
comment on whether the regulations
should allow handlers of recalled
pesticides to repackage universal waste
pesticides from original packaging into
other containers (i.e., physically transfer
the pesticide from its original packaging
into a different container).
In the final rule, the first, second, and
fourth options for packaging have been
substantially revised in response to
comments. The third option, on which
very little comment was received, has
been retained as proposed. In addition,
because the universe of pesticides
included in the final rule has been
expanded (see discussion in section
IV.B.2.C. of this preamble), the
packaging requirements in the final rule
are applicable to unused pesticide
products collected in collection
programs as well as to suspended and/
or canceled and recalled pesticides.
The first and second proposed
packaging options (which were the only
available options if a pesticide was to be
managed in containers or portable tanks
rather than tanks or transport vehicles),
essentially required that the pesticide
remain in the original packaging used
when it was distributed or sold. If the
original packaging was leaking, the
second option required that it be
overpacked in a larger, non-leaking
container. However, both options
required that original packaging be
used. (See proposed 40 CFR
273.22(a)(l)(i) and 273.23(a)(l)(i).)
In the final rule, these packaging
options have been substantially revised
to allow management of pesticides in
containers other than original
packaging, as long as certain conditions
are met. Specifically, the first revised
option allows pesticides to be managed
in "a container that remains closed, is
structurally sound, compatible with the
pesticide, and that lacks evidence of
leakage, spillage, or damage that could
cause leakage under reasonably
foreseeable conditions." See 40 CFR
273.13(b)(l) and 273.33(b)(l) of the final
rule. The second revised option requires
that a pesticide managed in a container
not meeting the conditions of the first
option be overpacked in a container that
does meet the requirements of the first
option. See 40 CFR 273.13(b)(2) and
273.33(b)(2) of the final rule.
The result of these revisions is that
any universal waste pesticide that is
managed in a container must be
managed in a container that is in good
condition (no severe rusting, apparent
structural defects, or deterioration). The
good-condition container may be the
primary container (under the first
option), or if the primary container is
not acceptable, a good-condition
container may be used to overpack the
primary container (i.e., the primary
container is placed into a good-
condition overpack container). It should
be noted that although original
packaging is no longer required under
these revisions, original packaging may
be used to contain pesticides as long as
the original packaging meets the
conditions set forth in the options.
The Agency's decision to allow the
use of packaging other than original
packaging was based on a couple of
factors. First, a number of commenters
pointed out that a significant portion of
waste pesticides found on farms (both
recalled pesticides, and unused
pesticide products collected in "clean
sweep" programs) are in containers
other than the original container. In
most cases, the original containers for
these pesticides are no longer available.
Commenters argued that limiting the
universal waste rule to those pesticides
for which the original container is
available would severely limit the
quantities of waste that could be
managed under the universal waste
system. In turn, this would decrease the
amounts of pesticides collected from
farmers and others for proper
management. Commenters argued that
the risks of releases of these pesticides
are likely to be less under the universal
waste regulations than under conditions
of long term accumulation on farms,
particularly if the regulations ensure
management in good-condition, non-
leaking containers.
The Agency notes that its intent in
requiring original packaging was to
ensure that pesticides were managed in
appropriate containers. The Agency
believed that original packaging was
most likely to remain in good condition
since it was designed to store the
pesticide during its product life.
However, based on the comments
received, the Agency now believes that
requiring original packaging would
unnecessarily limit the pesticides that
can be managed under the universal
waste system, and, at the same time,
would not necessarily ensure adequate
containment. Thus, the Agency has
developed revised packaging
requirements for containers that ensure
that pesticides are managed in
containers that are protective of human
health and the environment, and that
pesticides are not prohibited from
management under the universal waste
system merely because the original
packaging is no longer available. The
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25524 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
Agency agrees with commenters' points
and believes that the revised packaging
requirements for containers are
environmentally protective, but flexible
enough to accommodate pesticides
collected under recalls as well as waste
pesticide collection programs ("clean
sweeps").
Second, a number of other
commenters argued that the proposed
requirements to keep pesticides in
original containers that are closed and
non-leaking were not sufficiently
protective. These commenters pointed
out that cancellation may sometimes
follow suspension by a considerable
period of time, and that pesticide
containers may not be properly
maintained over this time period.
Similarly, pesticides collected in "clean
sweep" programs have frequently been
accumulated for long periods of time.
As a result, such containers may
deteriorate or be damaged. These
commenters believed that the proposed
packaging provisions requiring that
pesticides be kept in closed and non-
leaking containers could be construed to
allow the use of original containers that
are damaged, but not yet actually
leaking. Although the Agency did not
intend to allow the use of damaged
containers, the Agency agrees that the
.proposed language could have been
interpreted to allow such containers. To
resolve this problem, under the final
rule universal waste pesticides must be
contained in containers (or overpack
containers) that remain closed, are
structurally sound, compatible with the
pesticides, and that lack evidence of
leakage, spillage, or damage that could
cause leakage under reasonably
foreseeable conditions. The Agency
believes that this requirement provides
sufficient insurance that pesticide
containers will be protective of human
health and the environment.
The same conditions have also been
added to the fourth packaging option,
which as proposed, allowed the used of
"non-leaking transport vehicles or
vessels." This provision has been
revised in the same way as the first two
options since the "non-leaking"
condition raises the same issue as the
proposed non-leaking container
requirements. To resolve the concern
that damaged, but not yet leaking
transport vehicles or vessels could be
used to contain pesticides, the final rule
requires that handlers use a transport
vehicle or vessel that is "closed,
structurally sound, compatible with the
pesticide, and that lacks evidence of
leakage, spillage, or damage that could
cause leakage under reasonably
foreseeable conditions."
The final rule has also been revised to
clarify when overpacking is required for
pesticide containers in response to
confusion cited by some commenters
regarding these requirements in the
proposal. The Agency believes that the
wording of the second revised
packaging option makes it clear that
overpacking is required when the
primary container does not meet the
good-condition requirements found in
the first revised packaging condition.
The Agency believes that this regulatory
structure will be more clear to the
reader than the proposed regulatory
structure.
Several commenters addressed the
question of whether the universal waste
regulations should allow universal
waste handlers to repackage pesticides
(i.e., to transfer pesticides from one
container to another). Most of these
commenters supported allowing
repackaging. The Agency generally
prefers that handlers overpack leaking
or damaged containers rather than
transfer the pesticide to another
container because the risk of spillage is
likely to be less when overpacking.
However, the Agency recognizes that in
some cases, for example if no overpack
materials are available, it may be
preferable to repackage pesticides than
to wait until overpacking is possible. In
addition, there are other controls that
will ensure that any repackaging of
universal waste pesticides is conducted
in an environmentally protective
manner. For recalled pesticides, the
recall procedures under FIFRA section
19b addresses repackaging. For
example, under proposed regulations at
40 CFR part 165 (58 FR 26857; May 5,
1993) pesticide recallers would submit
a recall plan for approval by the Agency.
Part of the plan would include a
description of the responsibilities of the
recaller and pesticide holders with
respect to interim storage, preparation
for transportation, and transportation of
the pesticide.
For unused pesticide products
managed in collection programs, the
pesticide management procedures
required by the collection program will
generally address repackaging and, if
allowed, will specify precautions to be
taken during repackaging. Because
repackaging may be an important
method of cost control for collection
programs (e.g., consolidation of small
containers of the same pesticide), the
Agency does not wish to interfere with
these practices. The Agency believes
that waste pesticide collection programs
will develop responsible procedures
and would like to leave the decision of
whether to allow repackaging, and what
requirements to impose, to the
collection programs or States.
Based on these factors, the Agency
has decided not to prohibit repackaging
in the final universal waste regulations.
The Agency points out, of course, that
any spillage of universal waste pesticide
is required to be cleaned up
immediately and managed appropriately
under the universal waste release
response provisions. The /Agency also
notes that any spillage that is not
cleaned up would be considered illegal
disposal under the hazardous waste
regulations.
IV.E.3.C. Universal Waste Thermostats
IB the proposed rule, the Agency
requested comment on whether the
waste management requirements
proposed for universal waste batteries
would be appropriate for managing
mercury-containing thermostats. The
Agency also requested comment on any
additional requirements necessary to
ensure that thermostats are collected in
a manner that is protective of human
health and the environment.
With the exception of one issue
concerning mercury-containing ampule
removal, commenters overwhelmingly
supjported applying the requirements
proposed for universal waste batteries to
used mercury-containing thermostats.
These commenters agreed that the
proposed part 273 requirements would
facilitate collection and recycling of the
mercury contained in the thermostats.
Thus, in the final rule, persons
managing universal waste thermostats
are subject to the same basic
requirements as persons managing other
universal wastes: Requirements for
small and large quantity handlers,
transporters, and destination facilities.
Specific waste management
requirements have been added to the
small and large quantity handler
sections to address one commenter's
concerns about ampule removal.
A manufacturer of thermostats who is
developing a "take back" program for
mercury-containing thermostats did
suggest that some modifications to the
waste management requirements
proposed for batteries were necessary to
refleict differences between the proposed
waste mercury thermostat recycling
program and procedures envisioned for
battery recycling programs. The
commenter expressed concerns as to
whether the waste management
provisions proposed for universal waste
batteries would be sufficiently
protective of human health and the
environment if applied to the
management of mercury-containing
thermostats. Commenters recommended
that for safety reasons, such removal
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Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25525
should only be performed by trained
personnel in a setting where appropriate
health and safety measures have been
instituted.
Paragraph (c) of §§ 273.13 and 273.33
include requirements applicable to
handlers of used mercury-containing
thermostats. Subsection (c)(l) requires a
universal waste handler to contain any
universal waste thermostat that is
leaking in a non-leaking container.
Subsection (c)(2) sets forth requirements
for universal waste handlers who
remove mercury-containing ampules
from thermostats. These requirements,
based on controls suggested by the
commenter, are designed to ensure that
ampule removal is conducted in a safe
ana environmentally protective manner.
First, the handler must remove the
ampules in a manner designed to
prevent breakage of the ampules.
Second, he must remove the ampules
only over or in a containment device
(e.g., tray or pan sufficient to contain
any mercury released from an ampule in
case of breakage). Third, he must ensure
that a mercury clean-up system is
readily available to immediately transfer
any mercury resulting from spills or
leaks from broken ampules, from the
containment device to a container that
meets the requirements of 40 CFR
262.34. Fourth, he must immediately
transfer any mercury resulting from
spills or leaks from broken ampules
from the containment device to a
container that meets the requirements of
40 CFR 262.34. Fifth, he must ensure
that the area in which ampules are
removed is well ventilated and
monitored to ensure compliance with
applicable OSHA exposure levels for
mercury. Sixth, he must ensure that
employees removing ampules are
thoroughly familiar with proper waste
mercury handling and emergency
procedures, including transfer of
mercury from containment devices to
appropriate containers. Seventh, he
must accumulate removed ampules in
closed, non-leaking containers that are
in good condition (no severe rusting,
apparent structural defects, or
deterioration); and finally, eighth, he
must pack removed ampules in the
container with packing materials
adequate to prevent breakage during
accumulation, handling, and
transportation. Handlers not complying
with these requirements for ampule
removal are not managing universal
waste, and are not subject to part 273.
They are subject to the full hazardous
waste requirement of parts 262 through
270. The Agency believes that these
procedures ensure that the handler is
removing the mercury ampule from the
thermostat casing in a manner designed
to prevent breakage of the ampules and
to ensure proper containment of any
spilled or leaked mercury.
The Agency recognizes that in some
cases, spills or leaks resulting from
ampule removal may occur. Thus, the
Agency has added paragraph (c)(3) in
§§ 273.13 and 273.33 to address
concerns related to mercury residuals
generated as a result of removal of
mercury ampules from the thermostats.
If spillage or leakage of mercury from a
broken ampule or during ampule
removal occurs, the handler must
contain any universal waste thermostat
that is leaking in a non-leaking
container. A universal waste handler
must determine whether such spillage
or leakage exhibits a characteristic of
hazardous waste. If the waste does
exhibit a characteristic of hazardous
waste, the handler is considered the
generator of the mercury resulting from
spills or leaks and is subject to all
applicable requirements of 40 CFR parts
260 through 272, including 40 CFR part
262.
Similar to the battery waste
management requirements, the handler
must also determine whether or not any
other solid waste (e.g., thermostat
casing) generated during management
activities exhibits a characteristic of
hazardous waste. If the generated waste
does exhibit a characteristic of
hazardous waste, it must be managed
under the hazardous waste management
requirements mentioned above. If,
however, the generated waste does not
exhibit a characteristic of hazardous
waste, it is not subject to the hazardous
waste requirements, nor is it subject to
the requirements of part 273. This waste
is, however, required to be handled in
compliance with applicable solid waste
regulations and the handler may manage
the waste in any way that is in
compliance with applicable federal,
state or local solid waste regulations.
The Agency believes the specific
requirements for ampule removal
address the commenter's concerns
regarding the improper removal of used
mercury-containing ampules and ensure
that such activities are safe and
environmentally protective.
The Agency clarifies that if a handler
determines that some waste he or she is
managing as universal waste is actually
not hazardous waste (and thus by
definition is not universal waste), and it
is therefore not required to be managed
under the hazardous waste regulations,
including the universal waste
regulations. For example, a handler who
receives shipments of mixed battery
types may sort the batteries to separate
the various battery chemistries. If one of
the sorted battery types does not exhibit
any characteristics of hazardous waste,
it is not a hazardous waste and the
handler may wish to manage it outside
of the hazardous waste regulations.
1V.E.4. Labeling/Marking
In response to suggestions from
commenters that the Agency include
marking and labeling requirements in
the part 273 regulations, the Agency has
decided to implement marking and
labeling requirements that were not
proposed. Although commenters agreed
that some form of labeling and marking
requirement be required, commenters'
recommendations on methods used to
identify the materials contained within
the tanks or containers differed. For
example, one commenter suggested that
EPA should require that all tanks or
containers be marked with the words
"hazardous waste", "hazardous
material" or "waste destined for
recycling". Another recommended that
if the intent of the universal waste rule
is to divert wastes into the recycle
stream, the waste should not be labelled
"universal hazardous waste", but
simply "Universal Waste."
Under the final rule, labeling and
marking requirements for universal
waste have been included to identify the
types of universal waste being managed.
The Agency has added labeling and
marking requirements for universal
waste batteries, universal waste
mercury-containing thermostats, and
universal waste pesticides. The labeling
requirements vary depending on the
type of waste. These requirements are
found in §§ 273.14 and 273.34 of the
final rule. Paragraph (a) of these sections
discusses the marking and labeling
requirements for universal waste
batteries. Under the final rule, a
universal handler managing batteries at
his facility is required to label each
individual universal waste item or
container holding the universal waste
with the words "Universal Waste—
Battery(ies)", or "Waste Battery(ies)", or
"Used Battery(ies)." Similarly, a
universal waste handler managing used
mercury-containing thermostats under
part 273 must label each universal waste
item or container holding these
universal wastes, with the words
"Universal Waste—Mercury
Thermostat(s)" or "Waste Mercury
Thermostat(s)" or "Used Mercury
Thermostat(s)." These requirements are
in paragraph (d) of §§ 273.14 and 273.34
of the final rule.
Labeling and marking requirements
similar to those described above for
universal waste batteries and
thermostats apply also to universal
waste pesticides. Thus, a person
managing universal pesticides must
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mark or label his containers with the
words "Universal Waste—Pesticide(s)"
or "Waste—Pesticide(s)." Refer to
§273.14(c)(2) or§273.34(c)(2).
However, because.there are many types
of pesticides posing different
management issues, the Agency has
decided to require more specific
labeling for pesticides in addition to the
more general label discussed above. Due
to differences in management practices
between universal waste pesticides that
are a part of a recall and pesticides that
are a part of a state approved collection
program, the requirements for each type
of pesticide are different. Universal
waste handlers managing recalled
pesticides are required to mark or label
tanks or containers holding the recalled
pesticide with the original FIFRA label
that would be required under FIFRA if
the pesticide were a product (refer to
§273.14(b)(l)). While pesticides in a
recall may be located at the individual
user level, a larger volume is likely to
be recalled from the dealer/retailer
level. Pesticides shipped to dealers by
producers are often sent in multiple
container package units. For example,
individual containers may be shipped
grouped together in cartons and/or
palleted and shrink-wrapped in plastic.
This extra packaging (e.g., shrink-wrap,
carton) typically is removed only at the
time of sale. In the recall process, these
multiple container package units would
normally be shipped back intact. To
require pesticide containers to be
individually labeled as waste pesticides
would require the dealer to break open
such multiple package units to access
the individual containers. EPA believes
it is unnecessary to require that such
multiple container package units be
individually labeled merely for the
purpose of being shipped to another
universal waste handler as part of a
recall. Accordingly, 40 CFR 273.14(b)
permits the required label or marking to
be placed on the outer packaging of
multiple container packaged units.
On the other hand, unused pesticides
that are universal wastes are typically
products whose registration has been
cancelled, which are no longer
marketed, or no longer used by the
farmer. Existing stocks often remain at
the user level for extended times,
sometimes years, because there is no
formal recall in these circumstances.
State collection programs are intended
to collect and properly dispose of such
wastes from the user level and rarely
collect from the retail level as with a
recall. Thus, the initial universal waste
handler is a user typically having only
single containers of pesticides whose
labels may not be available or may have
deteriorated due to adverse conditions
or over time.
Universal waste handlers managing
unused pesticide products that are
collected and managed as part of a
waste pesticide collection program have
several options for labeling tanks and
containers. The first option is to label
the pesticide tank or container with a
label that was on the accompanied
product as sold or distributed, if still
legible. Refer to §§ 273.14(c)(l)(i) or
273.34(c)(l)(i).
The Agency notes that this is the ideal
labeling option for unused pesticide
products, but the Agency also
recognizes that the FIFRA label for the
unused pesticide products may not be a
realistic option because such a label
may not be available. As an alternative,
the Agency has developed additional
labeling options under
§§ 273.14(c)(l)(ii) and (iii) and
273.34(c)(l)(ii) and (iii).
The second option requires that
handlers mark or label the container or
containing unit with a label required by
the Department of Transportation under
49 CFR part 172. If neither of these
options are possible, the final option is
to use another label that is approved in
advance by the collection program. The
Agency believes that these labeling and
marking requirements will provide
sufficient information to ensure that
universal waste pesticides can be
managed in a safe and environmentally
protective manner, yet provides
sufficient flexibility for universal
handlers who are users or dealers,
without requiring undue cost or burden
of labeling.
IV.E.5. Accumulation Time
Requirements
The final accumulation time
requirements for small and large
quantity handlers of universal waste are
found in §§ 273.15 and 273.35 of this
final rule. In the proposed universal
waste rule, generators and consolidation
points were prohibited from
accumulating universal waste for longer
than one year from the date the
universal waste was generated, or
received from another facility.
Generators and consolidation points
were also required to document that
universal wastes were not accumulated
for longer than this time. See proposed
§§ 273.11(b) and 273.21(c). This
accumulation time limitation was
designed to implement, for universal
wastes, a statutory prohibition that is
part of the 1984 Hazardous and Solid
Waste Amendments to RCRA (section
3004J). Pursuant to the Land Disposal
Restrictions (LDR) provisions of the
Hazardous and Solid Waste
Amendments of 1984 (HSWA), all
hazardous wastes listed or identified in
accordance with RCRA section 3001 are
Erohibited, on specified timetables,
•om land disposal. The regulations for
the LDR program in 40 CFR part 268
apply to persons who generate or
transport hazardous waste and owners
and operators of hazardous waste
treatment, storage, and disposal
facilities, unless they are specifically
excluded from regulation in parts 261 or
268. In addition, the statutory provision
prohibits the storage of restricted
hazardous, unless the restricted
hazardous wastes are being accumulated
for the purpose of accumulating
quantities necessary for proper recovery,
treatment, or disposal. This prohibition
is currently codified for restricted
hazardous wastes in 40 CFR 268.50. For
universal wastes, the Agency proposed
to simplify this prohibition by simply
prohibiting accumulation for more than
one year. The simplified provision was
based on the assumption that the sole
reason for accumulating universal waste
for up to one year was to accumulate the
quantities necessary for proper recovery,
treatment, or disposal.
In the final rule, the Agency has
retained the proposed one year
accumulation limit, but has added an
additional provision allowing
accumulation for more than one year if
such accumulation is solely for
accumulating such quantities of
universal waste as are necessary to
facilitate proper recovery, treatment, or
disposal. See §§ 273.15(b) and 273.35(b)
of'the final rule. For any accumulation
longer than one year, the handler must
bei able to prove that such accumulation
is solely for accumulating quantities
nescessary to facilitate proper recovery,
treatment, or disposal. Thus, under the
final rule it is assumed that any
accumulation up to one year is for this
purpose, but for any accumulation
beyond one year the handler bears the
burden of proving that accumulation is
solely for this purpose. This approach to
implementing the statutory prohibition
is taken directly from existing 40 CFR
268.50(c) (This approach has been held
to be consistent with section 3004(j).
Hazardous Waste Treatment Council v.
EPA, 886 F.2d 355, 366-68 (D.C. Circuit
Court, 1989)). The Agency believes that
this provision will ensure that any
universal waste accumulation will meet
the statutory LDR storage prohibition.
For further discussion on the LDR
program regarding its applicability to
universal waste, see Section I V.I. of the
preamble.
The Agency's decision to revise the
accumulation prohibition is based on
numerous commenters' arguments that
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25527
tho one year accumulation limitation
was too restrictive and would not
provide enough time to accumulate
sufficient quantities of waste to facilitate
proper recovery, treatment, or disposal.
Because universal wastes are likely
generated and managed in relatively
small quantities (compared with other
industrial hazardous wastes), the
Agency recognizes that an absolute one
year accumulation limit may not be
enough time for some handlers to
accumulate sufficient quantities of
universal waste to properly recover,
treat, or dispose of the waste. The
Agency believes that the revised
accumulation time limit discussed
above will allow additional time for
accumulation when it is truly needed,
while retaining the simplified approach
to accumulation (as proposed) for the
first year.
A number of other commenters
argued that the proposed part 273
provisions should provide a provision
analogous to § 262.34(c), known as the
generator satellite accumulation
provision. Under this provision, a
generator may accumulate small
quantities of hazardous waste at or near
the point of generation before moving it
to the generator accumulation area
whore accumulation time is limited to
90/180/270 days. Accumulation time is
unlimited at satellite accumulation
points. Commenters argued that
universal waste handlers should also be
allowed unlimited accumulation time
for small quantities of waste at points of
generation, and that the one year
accumulation time limit would make
the universal waste rules more
restrictive than the existing hazardous
waste generator regulations.
The Agency has decided not to add a
provision analogous to the satellite
accumulation provision to the universal
waste regulations for several reasons.
First, under the universal waste final
rule, handlers may already manage their
xvastos very similarly to management
under the satellite accumulation
provision. For example, the proposed
and final universal waste regulations do
not limit the location, or number of
locations, at which a handler of
universal waste may accumulate
universal wastes. Thus a handler may
continue to accumulate universal wastes
at points of generation. A handler may
accumulate these wastes for up to one
year (which is two or four times longer
than the 90 or 180 days allowed under
the existing hazardous waste generator
regulations), and under the revised final
regulation a handler may accumulate
universal waste for longer than one year
if certain conditions are met. Further,
the quantity of universal waste that can
be accumulated at a point of generation
is not limited to 55 gallons (a handler
of universal waste must notify, however,
if the total quantity of universal wastes
accumulated on-site equals or exceeds
the 5,000 kilogram notification limit).
The only substantive additional
requirement under the universal waste
rule will be to mark or label the
container (or use an alternate method) to
document the earliest date any universal
waste accumulated at the location
became a waste.
Second, although the time limit may
appear to be a constraint when
compared to the satellite accumulation
provision, with the revision discussed
above, handlers of universal waste who
need to accumulate wastes for more
than one year to facilitate proper
recovery, treatment, or disposal will
have the option to do so. The handler,
however, bears the burden of proving
that such activity is solely for the
purpose of accumulation of such
quantities of universal waste as
necessary to facilitate proper recovery,
treatment, or disposal. In addition, the
Agency points out that the existing
satellite accumulation provisions are
available only to regulated generators
who have EPA identification numbers
and are complying with the full part 262
requirements including 90- or 180-day
accumulation time limits 40 CFR 262.34
accumulation unit standards, biennial
reports, and manifests. The Agency does
not believe it would be appropriate to
allow unlimited accumulation time for
handlers of universal waste who are not
required to comply with the part 262
controls, but are instead following the
streamlined requirements of the
universal waste regulations.
Third, the Agency points out that one
of its major goals in developing the
universal waste regulations is to make
the regulation clear and easy to work
with for both the regulated community
and implementing agencies. The Agency
believes that having one consistent time
limit for all universal waste managed at
one site is important to this goal. The
Agency also notes that handlers of
universal waste who generate extremely
small quantities of hazardous waste
(<100 kg per month) would, under the
final rule, still have the option to
manage their wastes under the
Conditionally Exempt Small Quantity
Generator provisions of 40 CFR 261.5
rather than the universal waste
regulations (or the full Subtitle C
regulations).
IV.E.6. Employee Training
The final employee training
requirements for small and large
handlers of universal waste are found in
§§ 273.16 and 273.36 of this final rule.
In the proposed rule, the Agency
proposed to require that generators and
consolidation points provide basic
training on waste handling and
emergency response procedures. The
Agency requested comment on whether
these requirements should be further
reduced or eliminated.
The Agency has decided to retain
these training requirements in the final
rule for all large quantity handlers of
hazardous waste. Thus, large quantity
handlers of universal waste must ensure
that all employees are thoroughly
familiar with proper waste handling and
emergency procedures related to their
responsibilities during normal facility
operations and emergencies. Small
quantity handlers of universal waste,
however, are subject to a less
burdensome requirement. Small
quantity handlers of universal waste
must inform all employees that handle
or have responsibilities for managing
universal waste. The information must
include proper handling and emergency
procedures appropriate to the type(s) of
universal waste managed at the facility.
Although most commenters supported
EPA's proposed requirements for basic
training of personnel regarding potential
safety hazards posed by universal waste,
a number of commenters recommended
that the Agency adopt a two-tier
approach for training requirements.
These commenters argued that
dissemination of safety instructions
would be sufficient training for
employees at front-line collection
centers, and the more comprehensive
training requirements should apply only
to larger consolidation points, because
the consolidation point will be handling
large quantities of universal waste while
small front-line collectors will manage
only small quantities, often in a retail
setting.
The Agency believes the final rule
mirrors the commenter's
recommendations in that the level of
training required for small quantity
handlers of universal waste is less
stringent than that for large quantity
handlers of universal waste. The Agency
agrees with commenters that the level of
training should be greater for people
who handle larger quantities of
universal waste.
Other commenters argued that the
cost of implementing a training program
as proposed would be unduly
burdensome. Although the Agency
recognizes these commenter's concerns,
the Agency believes that the employee
training requirements in the final rule
will not be too costly or burdensome for
universal waste handlers. First, in
response to these concerns, the Agency
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25528 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
has reduced the training required for
small quantity handlers of universal
waste. A small quantity handler of
universal waste must inform all
employees that handle or have
responsibility for managing universal
waste. The information must include
proper handling and emergency
procedures appropriate to the type or
types of universal waste handled at the
facility. Although providing the
information through oral
communication would be allowed, the
Agency expects that brochures or
documents providing such information
have already been or will be developed
by trade associations and the
organizations running centralized
collections programs (e.g., battery
manufacturers, thermostat
manufacturers, and pesticide
registrants). Thus, small quantity
handlers of universal waste
participating in these collection
programs will be able to distribute
information of higher quality than they
would be able to produce individually
with little or no development costs.
Second, the Agency further believes
that the training requirements as
proposed will not be unduly
burdensome for large quantity handlers
of universal wastes. The Agency points
out that the employee training
requirement as proposed, and as
retained in the final rule for large
quantity handlers of universal waste,
does not require that any records be
kept for training provided to employees,
requires only that employees that have
responsibilities for managing universal
waste or for responding to emergencies
be trained, and requires only that these
employees be trained as is appropriate
for their universal waste management
responsibilities. Thus, employees who
only minimally handle universal waste
need only be trained to properly carry
out that activity and to carry out their
responsibilities, if any, in case of an
emergency. These requirements are
analogous to those currently required
for hazardous waste small quantity
generators. They basically require that
the large quantity handler of universal
waste provide sufficient training to
ensure that employees are familiar with
proper handling procedures and that
employees who would have
responsibilities during emergencies are
familiar with emergency procedures.
Finally, a number of commenters
maintained that an employee training
requirement is not necessary because
training required under other programs
provides adequate assurance that
employees will be sufficiently trained to
properly manage universal waste (e.g.,
OSHA, worker right-to-know, pesticide
licensing, etc.). The Agency continues to
believe that a basic employee training
requirement is necessary to ensure that
employees are specifically familiar with
waste handling procedures, including, if
appropriate, RCRA requirements. The
Agency notes that any training provided
under other programs that would meet
any or all of the part 273 training
requirements may be used to fulfill the
RCRA requirements. As long as the
substantive standards of the training
provisions are met, the handler has
fulfilled the training requirement. There
is no requirement that training provided
to meet the RCRA requirements be
separate from other training given to
employees.
IV.E. 7. Response to Releases
The final response, to releases
requirements for small and large
quantity handlers of universal waste are
found in §§273.17 and 273.37 of this
final rule. Under the proposed rule,
basic release response requirements
were imposed on universal waste
generators, transporters, and
consolidation points. These universal
waste collectors were required to
immediately contain all releases of or
from universal wastes, and to
appropriately manage any materials
resulting from a release (e.g., cleanup
equipment, contaminated soils, etc.).
Specifically, they were required to
determine if any of the resulting
materials were hazardous wastes, and if
so, manage them under the full
hazardous waste regulations.
In the final rule, these release
response requirements have been
retained essentially as proposed for all
collectors of universal waste. Since the
categories of collectors have been
changed in the final rule, these
requirements are now imposed on small
and large quantity handlers of universal
wastes and universal waste transporters.
Commenters who addressed this issue
overwhelmingly supported the release
response requirements as proposed.
They agreed that the requirements to
immediately contain releases and
properly manage residues were
sufficient to protect human health and
the environment from any releases of
universal waste that might occur and
that facility-wide corrective action is not
necessary for universal waste
management.
Under the final rule, as under the
proposal, destination facilities are
subject to the full hazardous waste
regulations applicable to treatment,
storage, disposal, and recycling
facilities. These regulations include
extensive release response
requirements.
One commenter argued that collectors
should be allowed to send residues from
cleanups along with universal waste to
destination facilities. The Agency
disagrees for several reasons and has not
revised the final regulation to allow this.
First, cleanup residues are .likely to be
quite different in form and composition
from the universal waste they come
from. The universal waste regulations
are designed specifically for universal
wastes, and are not designed to address
the varied risks that may be posed by
cleeinup residues. Thus, it is not
appropriate that subsequent collectors
manage such residues under the
universal waste regulations. Second, the
destination facility to which universal
waste is sent may not be able to, or
permitted to, treat or dispose of cleanup
residues. It is not unlikely that universal
wasite destination facilities' processes
are designed to handle universal wastes
but are not designed to handle residues
that may have very different
compositions. Thus, the final rule
retains the requirement that collectors
determine whether any residues are
hazardous waste, and if so, manage
them under the full hazardous waste
regulations.
In the preamble to the proposed rule,
the Agency noted that under the
existing hazardous waste regulations
haz.ardous waste facilities are subject to
facility-wide corrective action. The
Agency requested comment on whether
some form of corrective action should
be imposed on universal waste
collection facilities, which were called
consolidation points in the proposal.
The majority of commenters addressing
this issue argued that facility-wide
corrective action requirements should
not be imposed on universal waste
collectors. They contended that facility-
wide corrective action is currently one
of the biggest barriers to participation in
waste management systems, and that if
these requirements are imposed on
uni.versal waste collectors it will
prevent many people from participating
in universal waste collection systems.
The hazardous waste corrective action
requirements could thus impede
development of collection systems and
uniiermine the goals of the universal
waste regulations. Commenters also
pointed out that, due to the relatively
low risk nature of wastes identified as
universal wastes, as well as the release
response requirements discussed above,
corrective action for universal waste
handlers would be unnecessarily
burdensome.
Commenters also agreed that the
existing imminent hazard provisions of
RCRA section 7003 provide the Agency
sufficient authority to compel
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immediate action in response to releases
if necessary. The Agency also notes that
any releases of universal waste not
cleaned up would constitute illegal
disposal, further allowing action under
RCRA. In addition, any releases of
hazardous substances above reportable
quantity (RQ) thresholds must be
reported under the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA), also known as Superfund.
Since universal wastes are hazardous
wastes, and thus hazardous substances
under CERCLA, reporting for universal
waste releases is required (if over RQs).
Such reports provide notification to the
Agency concerning releases and would
thus allow the Agency to take action, if
necessary, under either RCRA or
CERCLA.
Although several commenters did
argue that facility-wide corrective action
should be imposed on universal waste
collectors, the Agency decided not to do
so in the final rule. The Agency agrees
with the commenters' points discussed
above, and believes that on balance,
given the desire to encourage
participation in the universal waste
program, and the availability of
response to release requirements in
today's rule (as well as additional
authorities available to impel cleanup if
necessary), the risks of impeding the
development of universal waste
collection systems outweigh the risks of
not including facility-wide corrective
action requirements. It should be noted
that under the final rule (as under the
proposal), full facility-wide corrective
action does apply to destination
facilities as part of the treatment,
storage, and disposal facility
regulations.
W.E.8. Off-Site Shipments
The Agency has added new sections
in the final rule for small and large
quantity handlers of universal waste
and destination facilities, entitled off-
site shipments. It was clear from the
comments that off-site shipments
present various issues, thus warranting
separate sections covering these issues.
The Agency has included the
requirements for off-site shipments in
subpart B (standards for small quantity
handlers of universal waste), subpart C
(standards for large quantity handlers of
universal waste], and subpart E
(destination facilities). Including these
provisions in separate off-site shipments
sections for each category of person
managing universal waste makes the
provision easy to locate, and thus makes
the entire regulation easier to follow.
The off-site shipments sections for
handlers, found at §§273.18 and 273.38,
address one issue discussed in the
proposal, as well as a new issue raised
by commenters. The off-site shipments
section for destination facilities, 40 CFR
273.62, addresses only the new issue
raised by commenters. These two issues
are discussed below.
First, in the proposed rule,
requirements concerning off-site
shipments of universal waste were
found in the prohibitions section of
each of the universal waste handler
categories (generator, transporter, and
consolidation point). Generators were
allowed to send universal waste only to
consolidation points, destination
facilities, or foreign destinations.
Transporters were allowed to transport
universal waste only to consolidation
points, destination facilities, or foreign
destinations. Consolidation points were
allowed to send universal waste only to
other consolidation points, destination
facilities, or foreign destinations. The
prohibitions concerning off-site
shipments, in today's final rule, have
been moved into paragraphs (a) of 40
CFR 273.18 and 273.38, the new off-site
shipments sections, and, except as
discussed below are substantially
retained as proposed.
This off-site shipment provision has
also been revised to fit the new
categories of universal waste handlers
used in the final rule. Handlers of both
small and large quantities of universal
waste are prohibited from sending or
taking universal waste to a place other
than another universal waste handler, a
destination facility, or a foreign
destination. This change results in one
substantive difference from the
proposed prohibition. Under the
proposal, generators were prohibited
from sending universal waste to other
generators, and consolidation points
were prohibited from sending universal
waste to generators. Under the final
rule, universal waste handlers (which
include both generators and
consolidation points, classified by
quantity of waste managed rather than
by whether wastes are generated or
collected) may send waste to any other
universal waste handler.
The Agency has decided to make this
change in response to several
commenters who argued that companies
or organizations that generate universal
waste at numerous locations should not
be penalized by being categorized as
consolidation points merely because
they centralize their waste by bringing-
it to one location to facilitate better
management (e.g., bringing waste from
unstaffed locations to staffed locations
where waste can be better monitored).
Under the proposed prohibition, such
consolidation could only be conducted
if the central location was categorized as
a consolidation point, which was based
only on the fact that universal waste
was transported to the location. As
discussed earlier in the section of this
preamble entitled "Universal Waste
Handlers (section IV.D.l)—Small and
Large Quantity Handlers of Universal
Waste", the Agency believes that the
appropriate variable for applying more
stringent requirements is the quantity of
waste managed, not whether waste is
generated on-site or received from off-
site. Thus, the prohibition in the final
rule allows shipment to any universal
waste handler, and the level of
requirements applicable to any handler
(i.e., small or large quantity handler
requirements) is based purely on how
much universal waste is accumulated at
the location.
In addition, a provision has been
added to the small and large quantity
handler off-site shipments sections of
the final rule, 40 CFR 273.18(b) and
273.38(b), to clarify the language of the
proposed off-site shipment prohibition.
Several commenters exhibited some
confusion about the language "sending
or taking" universal waste. This
language was intended to indicate that
handlers could either contract with
someone else to transport their
universal waste or transport it
themselves. The language was not
intended to imply that handlers who
transport their own universal waste are
not subject to the transporter
requirements. In fact, the proposed
definition of transporter (which is
retained in the final rule) clearly stated
that anyone engaged in off-site
transportation of universal waste is
considered a transporter, and the
transporter requirements (proposed and
final) make it clear that any universal
waste transporter is subject to the
universal waste transporter
requirements. To clarify this point, a
paragraph (b) has been added to the off-
site shipments sections of the final rule
clarifying that a handler who self-
transports universal wastes off-site
becomes a universal waste transporter
for those self-transportation activities
and must comply with the universal
waste transporter requirements while
transporting the waste. (See 40 CFR
273.18(b) and 273.38(b)). Paragraph (c)
of §§ 273.18 and 273.38 have been
added to clarify that if a universal waste
being offered for off-site transportation
meets the definition of hazardous
materials under 49 CFR 171-180, the
handler of universal waste must
package, label, mark, and placard the
shipment in accordance with the
applicable Department of
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25530 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
Transportation regulations under 49
CFR parts 172-180 and must prepare
the proper shipping papers. Because
persons who offer for transportation or
who transport a hazardous material
must do so in conformance with
requirements specified in the
Department of Transportation's
Hazardous Materials Regulations, these
revisions to the regulatory text do not
constitute new requirements. Rather,
paragraph (c) serves to communicate
more clearly that applicable DOT
requirements still apply to all persons
managing universal waste.
Second, in the final rule, paragraphs
(d) through (h) have been added to the
small and large quantity handler off-site
shipments sections, and 40 CFR
273.61(a) through (d) have been added
to the destination facility requirements,
addressing a new issue raised by
commenters. Specifically, commenters
argued that consolidation points (in the
final rule referred to as either small or
large quantity handlers) should be
allowed to return shipments of
universal waste to generators (in the
final rule referred to as either small or
large quantity handlers) in cases where
generators (shipping handlers) send
materials that the collection facility
(receiving handler) is not able or
prepared to manage. The Agency agrees
with this point and reiterates that
nothing in the universal waste rule is
intended to imply that universal waste
handlers are required to accept any
particular type of universal waste, any
universal waste that they are not willing
or able to handle, or any particular
shipment of universal waste. It should
be noted, however, that there may be
other regulations that do require
handlers to accept such waste. For
example, under FIFRA regulations,
pesticide recallers are not allowed to
return pesticides that are part of a recall.
On the contrary, although persons who
choose to manage universal wastes are
subject to the applicable requirements of
part 273, no one is required to manage
any universal waste.
In response to these concerns, the
Agency has added provisions to part
273 addressing this issue of rejected
shipments. Under the final rule, both
the shipper (a small or large quantity
handler of universal waste who is
shipping universal waste to another
handler or destination facility) and the
receiving facility (a small or large
quantity handler of universal waste, or
destination facility, receiving a
shipment of universal waste from
another universal waste handler) share
certain responsibilities for the protective
handling of the universal wastes being
shipped.
In order to prevent or limit rejected
shipments, §§ 273.18(d) and 273.38(d)
of the final rule specify that a shipper
sending universal waste to a receiving
facility must ensure, before the
shipment is sent, that the receiving
facility agrees to receive the load. In
addition, §§273.18(e) and 273.38(e) of
the final rule specify that if the shipper
sends universal waste to another
handler or destination facility and the
shipment is rejected, the shipping
handler must receive the waste back or
agree with the receiving facility on a
destination facility to which the
shipment will be sent.
Sections 273.18(f), 273.38(f), and
273.61(b) require that if an unsuitable
shipment containing universal waste is
received, the receiving facility, in turn,
may reject the full shipment or a portion
of the shipment. Examples of unsuitable
shipments include, but are not limited
to: Universal waste that the facility is
not willing to handle (e.g., a load of
universal waste batteries that also
contains "junk rechargeable items"; or,
universal waste that the facility is not
able to handle (e.g., universal waste
thermostats sent to a battery reclamation
facility). In such a scenario, the
receiving facility must notify the
shipper of the rejection and discuss
reshipment of the load. The receiving
facility may send the shipment back to
the original shipper or send the
shipment to a mutually agreed upon
destination facility. Finally, a handler of
universal waste who receives a
shipment of non-hazardous, non-
universal waste may handle the waste in
any way that is in compliance with
applicable federal or state solid waste
regulations.
Commenters were also concerned
about procedures to follow if a handler
receives a shipment of hazardous waste
that is not a universal waste. Sections
273.18(g), 273.38(g), and 273.61(c) have
been added to the final rule to address
this scenario. These procedures are
actually not specific to universal waste
handlers but merely clarify what anyone
should do if they receive an illegal
shipment of hazardous waste.
Specifically, these subsections state that
should such a shipment be received, the
receiving facility must immediately
notify the appropriate regional EPA
office of the illegal shipment, and
provide the name, address, and phone
number of the shipper. The EPA
regional office will provide instructions
for managing the hazardous waste.
IV.E.9. Tracking Universal Waste
Shipments
Under the proposed universal waste
rule the use of a hazardous waste
manifest was required for some
shipiments of universal wastes, but not
others. Those shipments that required
manifests also required the use of a
transporter with an EPA transporter
identification number.
More specifically, manifests were
required for shipments from
consolidation points to destination
facilities, but were not required for
shipments from generators to either
destination facilities or consolidation
points or for shipments from one
consolidation point to another. The
reasioning behind requiring manifests
only for shipments from consolidation
points to destination facilities was that
it was believed that shipments from
these "last" consolidation points would
be relatively larger shipments and thus
warranted a higher level of tracking and
control.
The tracking requirements in the final
rulei have been substantially revised
from the proposal in response to
comments. In general, under the final
rules, manifests are not required for any
shipments of universal waste, but a
basiic recordkeeping requirement has
been added to track waste shipments
arriving at and leaving from handlers of
largte quantities of universal waste. In
addition, a similar provision has been
added to the destination facility
requirements to require retention of
basiic documentation of universal waste
shipments arriving at destination
facilities. This basic tracking
requirement is found in §§ 273.39 and
273.62 of the final rule. The required
records may take the form of a log,
invoice, manifest, bill of lading, or other
shipping document, and are to be
maintained for three years. No specific
form is required for maintaining these
records, and the Agency believes that
standard business records that would
normally be kept by any business will
fulfill this requirement.
For each shipment of universal waste
received at or by a large quantity
handler, the record must include the
name and address of the universal waste
handler or foreign shipper from whom
the universal waste was sent; the
quantity of each type of universal waste
received (e.g., batteries, pesticides,
thermostats); and the date of receipt of
the shipment of universal waste. For
each shipment sent from a large
quantity handler, the record must
include the name and address of the
universal waste handler, destination
facility, or foreign destination to whom
the universal waste was sent; the
quantity of each type of universal waste
sent (e.g., batteries, pesticides,
thermostats); and the date the shipment
of universal waste left the facility.
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It should also be noted that under the
proposal, the owner or operator of a
destination facility would have been
required to keep, for three years,
manifests documenting receipt of
shipments of universal wastes from
consolidation points. (See proposed 40
CFR 273.14(a) and 273.24(a), and
existing 40 CFR 264.71(b)(5) and
265.71(b)(5)). Records of shipments
received from generators, without
manifests, would have been required as
part of the operating record (see existing
40 CFR 2e4.73(b)(l) and 265.73(b)(l))
and biennial report (see existing 40 CFR
264.75(c) and (d) and 265.75(c) and (d)}.
Since no manifests will be used for
shipments received by destination
facilities, the final rule requires that the
owner or operator of a destination
facility keep the same records for receipt
of universal waste shipments as those
kept by handlers of large quantities of
universal wastes. This will complete the
record of universal waste shipments,
providing documentation of receipt and
allowing comparison of outgoing
shipments from handlers against
received shipments at destination
facilities.
The Agency decided to make these
changes in the tracking requirements
based on comment received on the
issue. First, a number of commenters
opposed requiring manifests and
hazardous waste transporters for any
shipments of universal wastes, arguing
that the increased costs and
administrative burden of using
manifests and hazardous waste
transporters would be a disincentive for
collection of universal waste and would
inhibit removal of these wastes from the
municipal waste stream. Many
commenters, however, including some
of those opposing manifests, did
support some form of tracking
requirement to document transport of
universal wastes. These commenters
argued that a less burdensome tracking
requirement would not inhibit
participation, but could be used to
reduce the liability of persons managing
universal waste, increase enforceability
of the universal waste system, and
decrease potential abuses of the
streamlined universal waste
requirements. The Agency found these
arguments compelling and thus has
revised the final rule to include a basic
recordkeeping requirement for tracking,
but not to require use of manifests for
any universal waste shipments.
A number of commenters also pointed
out that the proposed approach of
requiring manifests for some shipments
but not others, based on the type of
facility originating and receiving the
shipment, was overly complex and
would be confusing to participants.
Commenters also pointed out that it is
not necessarily true that the shipments
for which manifests would have been
required would actually be larger
shipments than those for which
manifests were not required. In fact, the
requirement that manifests and
hazardous waste transporters be used
for shipments from consolidation points
to destination facilities might increase
the administrative burden and cost for
such a transportation pattern such that
more universal waste would actually be
sent directly from generators to
destination facilities, for which no
manifest would be required. It was not
the Agency's intent to make the tracking
requirement complicated or confusing,
or to discourage the use of centralized
facilities to consolidate universal waste
if that is the most efficient way to
manage these wastes.
To address this concern about
complexity, in the final rule, the Agency
has decided to require tracking for all
shipments received by and shipped
from handlers of large quantities of
universal waste, and not to require any
tracking for handlers of small quantities
of universal wastes. The Agency
believes that this tracking requirement
is less complex than the proposed
approach because handlers generating
universal wastes will know generally
the rates at which they generate and the
procedures used for snipping these
wastes, and so will know whether they
are handlers of large or small quantities
(i.e., whether they will be accumulating
5,000 kilograms or more total of
universal waste). Similarly, handlers
collecting universal wastes will know,
based on the types of universal waste
accepted and the procedures used for
shipping these wastes, whether they are
handlers of large or small quantities.
Thus, those persons who know they are
handlers of large quantities will keep
records for all shipments received and
sent off-site, regardless of where the
shipments come from or are sent to. In
comparison, those persons who know
they are handlers of small quantities
will not be required to keep records of
any shipments, although they may, of
course, maintain any records they
believe are appropriate based on their
individual circumstances.
As discussed elsewhere in this
preamble, the Agency has decided to
require tracking (and other requirements
such as notification and more in-depth
training) only for handlers of large
quantities of universal waste. This
decision was made in order to impose
these more protective requirements only
in cases where facilities are handling
larger quantities of universal waste and
thus the risks from management of these
wastes are greater. The Agency has
decided not to impose these
requirements on handlers of small
quantities of universal waste based on
numerous commenters' argument that
the administrative burden of tracking
would be such a strong disincentive that
retail establishments, service centers,
and other "front line" collectors
managing small quantities would not
participate in collection programs, thus
undermining the goal of the universal
waste program. In addition, because
these operations accumulate smaller
quantities of universal wastes, if
managed properly, they will pose less
risk than the accumulation of larger
quantities. The Agency believes that the
risk associated with management of
small quantities of universal waste is
lower than the management of larger
quantities due to the reduced amount of
waste handling involved and the lesser
chance of mismanagement
opportunities.
The Agency selected 5,000 kilograms
of accumulated waste as the cutoff for
this tracking requirement (i.e., as the
cutoff between small and large
handlers), because the universal waste
rule is designed for wastes that present
a relatively low risk during collection
(compared to other hazardous wastes),
and thus it is appropriate to have a
higher cut off limit for the tracking
requirement than applies under the full
hazardous waste regulations (i.e., the
conditionally exempt small quantity
generator accumulation limit of 1,000
kg).
Finally, in commenting on the
tracking requirements a number of
commenters suggested that the biggest
barrier to farmer's participation in
programs to collect and properly
manage unused pesticides products is
their unwillingness to sign manifests for
the wastes. Several of these commenters
suggested that collection sites should be
identified as the generator for waste
pesticides, thus removing any
requirement that farmers act as the
generator and sign manifests. The
Agency notes that the issue of when a
material becomes a waste, and thus
potentially subject to regulation, is a
general concept that applies
consistently to all materials potentially
subject to the hazardous waste program
and is much broader than just the
universal waste rule. The Agency does
not believe it is appropriate or
defensible to try to alter that concept for
specific wastes. The final rule explains
the concept that waste pesticides
become wastes at the point the generator
decides to discard them (see §261.33),
but this provision merely clarifies how
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25532 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
the point of generation concept
imbedded in the entire hazardous waste
regulatory program applies specifically
to waste pesticides.
In response to these commenters,
however, the Agency notes that under
the final rule, manifests are not required
for universal waste shipments. Thus, the
major barrier identified to farmers'
participation in waste pesticide
collection programs has been removed.
Farmers who decide to discard
universal waste pesticides would be
considered universal waste handlers
and would be required to comply with
the small or large quantity handler
regulations, depending on the amount of
waste pesticides that they accumulate.
IV.E.10. Exports
The final export requirements for
small and large handlers of universal
waste are found in §§ 273.20 and 273.40
of this final rule. In the universal waste
proposed rule, the Agency proposed
export requirements for generators and
consolidation points managing
hazardous waste under part 273. As
proposed, a generator sending universal
waste to a foreign destination, without
first sending the waste to a
consolidation point or destination
facility, would be subject to
requirements equivalent to the existing
hazardous waste export requirements,
subpart E of part 262, even though a
manifest would not have been required.
(See proposed 40 CFR 273.15 and 40
CFR 273.25.) These requirements
included advance notification to the
receiving country and prior consent by
the receiving country before the
shipment could occur.
The Agency also proposed export
requirements for consolidation points.
However, depending upon the type of
foreign facility receiving the exported
hazardous waste (e.g., consolidation
point or destination facility), a manifest
may or may not have been required for
each shipment. Shipments from
consolidation points requiring a
manifest would have followed the
existing subpart E of part 262 export
requirements. Shipments from
consolidation points not requiring a
manifest would have followed the
export procedures for generators, which
required notification and consent
independent of a manifest.
Commenters generally supported
EPA's proposal to adopt existing
notification and consent requirements
for exports. Thus, in the final rule,
notification and consent requirements
have been retained for all exports,
although the proposed provisions have
been revised somewhat. The revisions
are discussed below.
First, the export provisions have been
revised to apply to the new categories of
universal waste managers used in the
final rule. Generators and consolidation
points are now designated as universal
waste handlers, who are classified by
quantity of waste managed rather than
by whether wastes are generated or
collected. In addition, the export
provision applicable to each type of
participant in the universal waste
system has been moved into the
subparts of part 273 applicable to each
participant. For example, the export
requirements for handlers of small
quantities of universal waste are now
located in subpart B, which contains all
of the requirements for handlers of
small quantities.
Second, under the final rule,
manifests are not required for any
universal waste shipments (see tracking
section of preamble for more detailed
discussion). Thus, under the final rule,
all universal waste shipments will
follow procedures for notification and
consent which, as proposed, are
independent of the manifest procedures.
The Agency also notes that under the
tracking requirements of the final rule,
large quantity handlers of universal
waste are required to keep records of
where they send waste, and from where
they receive universal waste, including
foreign destinations or shippers.
In addition, commenters raised
several other issues related to exports of
universal waste. First, one commenter
noted that the proposed export
requirements did not conform to the
Organization for Economic Cooperation
and Development (OECD) Council
Decision on waste exports. The Agency
agrees, and notes that it will shortly
promulgate a rule which will revise the
relevant hazardous waste export
requirements to conform to the OECD
Council Decision. All pertinent
revisions to the universal waste final
regulations for shipments of universal
waste to and from OECD countries
pursuant to the OECD Council Decision
will be made in that rule.
Third, the Agency explained in the
proposal that it does not have the
authority under RCRA to regulate
registrants exporting suspended or
canceled and recalled pesticides to a
foreign country for use as a product. See
proposed 40 CFR 273.25(e). One
commenter argued that commercial
chemical products (e.g., recalled
pesticides exported to foreign countries)
that have been banned for use in the
United States should not be exported to
foreign countries because they will
invariably find their way back into the
United States. The commenter further
argued that if there are health or
environmental reasons for banning a
chemical in the United States, it would
undoubtedly pose an identical health or
environmental problem elsewhere.
The Agency sympathizes with the
commenter's concerns, but reiterates
that it does not have statutory authority
under RCRA to regulate materials which
are products and not wastes. In cases
where the registrant decides to export a
suspended or canceled pesticide for use
as a product, the RCRA hazardous waste
regulations, including the export
requirements, do not apply because the
pesticide would not be a solid or
hazardous waste. To make this clear, the
final rule retains language explaining
the non-waste status of pesticides that
are to be used as products. In the final
rule, however, this language is no longer
in the export section, but has been
moved to the applicability section for
pesticides (see 40 CFR 273.3(b)(4)). This
section explains that pesticides that are
to be used, reused, or reclaimed are not
solid wastes and thus are not subject to
hazardous waste regulations, including
part. 273.
The Agency notes, however, that the
requirements of FIFRA section 17 (a) do
apply in such situations. These
requirements include providing notice
to the foreign purchaser that the product
is not registered for use in the United
States and cannot be sold in the United
Stat.es. The foreign purchaser must sign
a purchaser acknowledgement statement
indicating that he is aware of that fact.
A copy of the acknowledgement
statement is to be submitted to EPA and
thereafter is transmitted to an
appropriate official of the importing
country. The product to be exported
must also be packaged according to the
specifications of the foreign purchaser.
IV.F. Transporter Requirements
In the proposed part 273 regulations,
the Agency proposed five provisions
addressing requirements for transporters
of universal waste. These five
provisions included requirements for
condition of the waste, prohibitions,
waste management, storage, and
experts. The Agency requested
comment on the application and
adequacy of the transporter
requirements proposed in part 273, the
in-transit ten-day storage limit, and the
adequacy of DOT shipping requirements
and/or the need for supplemental RCRA
requirements for the transport of
universal wastes.
Today's final rule includes
requirements for transporters in subpart
D of part 273. The standards include six
substantive sections: prohibitions, waste
management, storage time limits,
response to releases, off-site shipments,
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and exports (§§273.50 through 273.56
of the final rule). Each section of subpart
D is discussed below.
The prohibitions for transporters are
found in § 273.51 in today's final rule
and are essentially the same as those
presented in the proposed rule, with
one minor modification regarding off-
site shipments of universal waste. In the
proposed rule, the prohibitions section
for each of the universal waste handler
categories contained requirements
concerning off-site shipments of
universal waste. This provision, in
today's final rule, has been moved into
a new off-site shipments section
(§ 273.55); however, the requirements
have been substantially retained.
Waste management standards for
transporters are found in § 273.52 in
today's final rule. Section 273.52
specifies that transporters must manage
universal wastes in compliance with all
applicable U.S. Department of
Transportation (DOT) regulations. In the
final rule, new text has been added in
response to comments which indicated
a lack of clarity regarding which DOT
requirements were being referenced. In
the final rule, the Agency has clarified
this matter in § 273.52 by explicitly
directing the reader to the applicable
DOT regulations at 49 CFR parts 171
through 180. In addition, the Agency
also provides the pertinent references
for the Department of Transportation's
definition of hazardous materials (49
CFR 171.8) and the Hazardous Materials
Table (49 CFR 172.101). Adding new
text to the waste management section
for transporters clarifies the
requirements of the proposed standard
but does not add any additional
requirements.
Tho Agency notes that the Hazardous
Materials Regulations (HMR, 49 CFR
parts 171—180) define a hazardous waste
as any material that is subject to the
Uniform Hazardous Waste Manifest
Requirements of the U.S. Environmental
Protection Agency specified in 40 CFR
part 262. As shipments of universal
waste do not require this manifest, it is
not considered a "hazardous waste" by
the DOT. However, such material may
still be regulated under the defining
criteria for one or more of the DOT
hazard classes. Therefore, for any
universal waste shipments, transporters
of universal waste must decide if the
waste falls under any of the other DOT
hazard classes in order to determine if
compliance with the DOT requirements
under 49 CFR parts 171 through 180 is
required. (A discussion of the manifest
is found in the tracking section of
today's preamble at IV.E.9.).
If the waste material does not meet
the definition in the HMR for hazardous
waste or any other type of hazardous
material, its shipping description on
shipping papers may not include a
hazard class or identification number
shown in the HMR.
Storage time limits for transporters are
found in § 273.53 of today's final rule.
Under the proposed rule, transporters
could only store universal waste at a
transfer facility for ten days or less. This
requirement remains the same in today's
final rule. Comments revealed some
confusion about the status of the person
handling the waste if the waste is stored
for greater than 10 days. In § 273.53(b),
the Agency has added text clarifying
that if the waste is stored for greater
than 10 days, the transporter becomes a
small or large quantity handler of
universal waste and is subject to the
applicable regulations under subparts B
or C of part 273 while storing the
universal waste.
Several commenters expressed
agreement with the 10 day in-transit
storage time limit. One commenter
argued that a longer period for storage
should be allowed, while another
commenter stated that the focus of the
rule should be on the total time for the
universal waste to reach its final
destination, not the time it is stored in-
transit. Commenters, however, provided
little information to justify a longer in-
transit storage time limit. EPA believes
that, while the total time period
required for a shipment of universal
waste to reach its specified destination
is important, the transportation phase
requires more handling of the universal
waste and presents certain exposure
scenarios not likely when only storage
of the universal waste is required.
Transportation increases handling and
movement of the waste, increased risk
of spills and releases, and a greater
likelihood of public exposure. For these
reasons, EPA is continuing to require a
ten-day storage limitation for
transporters of universal waste. As
stated above, the text in § 273.53(b) has
been revised in order to clarify that if a
transporter stores universal waste for
greater than 10 days, the transporter
becomes a small or large quantity
handler of universal waste. Under this
circumstance, the small or large
quantity handler requirements apply,
which allow for up to one year
accumulation.
The fourth section of Subpart D
contains the response to release
standards for transporters. In the final
rule, these requirements remain
essentially unaltered from those in the
proposed rule. These response to release
requirements are found in § 273.54 of
today's rule. Section IV.E.7. of today's
preamble contains a full discussion of
this subject.
The off-site shipment provision for
transporters is found in § 273.55 of
today's final rule. This requirement was
located with other prohibitions in the
"Transporter Requirements" section of
the proposed rule. In the final rule, the
Agency has moved the requirement to a
new off-site shipments section, § 273.55,
under Subpart D. This modification
makes the provision easier to locate, and
thus makes the entire regulation easier
to follow. Although the Agency has
shifted the placement of this provision,
the requirement has been substantially
retained.
Additionally, in the proposed rule,
transporters were only authorized to
transport universal waste to
consolidation points or destination
facilities. In today's final rule, the terms
generator and consolidation point have
been redefined and replaced with small
quantity handler of universal waste and
large quantity handler of universal
waste. In today's final rule, a transporter
may transport a shipment of universal
waste to a small quantity handler, large
quantity handler, or destination facility.
The final section of subpart D
contains the export requirements for
transporters shipping universal waste to
a foreign destination. These
requirements have been moved from the
"Export Requirements" section of the
proposed rule and are now found in
§ 273.56 of today's final rule. This
modification makes it easier for
transporters shipping universal waste to
a foreign destination to locate the
requirements. A full discussion of this
topic is found in section IV.E.10. of this
preamble. Again, although the Agency
has relocated this provision, the
requirement has been substantially
retained.
IV.G. Destination Facility Requirements
Under the proposed part 273
regulations, destination facilities were
referred to the current parts 264, 265,
and 270 and § 261.6(c)(2) requirements
applicable to permitted or interim status
hazardous waste treatment, storage, and
disposal (TSD) facilities, or recycling
facilities that do not store hazardous
waste prior to recycling. These sections
include notification requirements,
general facility standards, unit-specific
management standards, and permitting
requirements.
In the final rule, the requirements for
destination facilities remain
substantially unchanged, with two
minor modifications and added
provisions related to off-site shipments
and recordkeeping. The destination
facility requirements are found in
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25534 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
subpart E of today's final rule. The first
modification revises the language of
§ 273.60(a) to correlate with the revised
definition of destination facility in the
final rule. (In response to comments,
EPA has redefined destination facility to
mean "a facility that treats, disposes of,
or recycles a particular category of
universal waste, except those,
management activities described in
paragraphs (a) and (c) of §§ 273.13 and
273.33. A facility at which a particular
category of universal waste is only
accumulated, is not a destination
facility for purposes of managing that
category of universal waste." A full
discussion of this revision can be found
at section IV.D.3 of today's preamble
under Universal Waste Handlers -
Destination Facilities). The second
modification is that the export
requirements applicable to destination
facilities have been moved into subpart
E, § 273.63, to make them easier for
destination facility owners and
operators to locate (see III.F.10 of this
preamble for a discussion of issues
related to Exports).
In addition to these modifications,
two additional provisions have been
added to part 273, subpart E. The first
new provision, 40 CFR 273.61, was
added in response to several
commenters who expressed concern
regarding the authority of destination
facilities to reject shipments of universal
waste and the appropriate measures to
be taken if a shipment is rejected. This
new requirement is discussed in detail
in the section of this preamble entitled
"Off-site Shipments."
The second provision added to
subpart E of part 273, 40 CFR 273.62,
requires that the owner or operator of a
destination facility keep basic
documentation tracking universal waste
shipments that arrive at the destination
facility. Under the proposal, owners and
operators of destination facilities would
have been required to keep, for three
years, manifests documenting receipt of
shipments of universal wastes from
consolidation points. (See proposed 40
CFR 273.14(a) and 273.24(a), and
existing 40 CFR 264.71(b)(5) and
265.71(b)(5)). Records of shipments
received from generators, without
manifests, would have been required as
part of the operating record (see existing
40 CFR 264.73(b)(l) and (d) and
265.75(c) and (d)).
In the final rule, no manifests will be
used for shipments received by
destination facilities (see IV.E.9 of this
preamble for a discussion of tracking
issues). Therefore, in §273.62 of today's
final rule, owners and operators of
destination facilities must keep the
same records for receipt of universal
waste shipments as those kept by
handlers of large quantities of universal
wastes. Section 273.62(a) requires the
owner or operator of a destination
facility to keep a record of universal
waste received at the facility. The record
must include information on the name
and address of the universal waste
handler or foreign shipper from whom
the universal waste was sent; the
quantity of each type of universal waste
received; and the date of receipt of the
shipment of universal waste. Section
273.62(b) requires that these records be
retained for at least three years from the
date of receipt of a shipment of
universal waste. This provision will
complete the record of universal waste-
shipments, providing documentation of
receipt and allowing comparison of
outgoing shipments from handlers
against received shipments at
destination facilities. No specific form is
required for maintaining these records,
and the Agency believes that standard
business records that would normally be
kept by any business will fulfill this
requirement.
Several commenters requested that
EPA relax the destination facility
requirements for recycling facilities in
order to stimulate recycling efforts.
Commenters argued that obtaining a
RCRA Permit is time consuming and
cost prohibitive and, in most cases
unprofitable for the recycling facilities.
They stated, also, that the requirement
for obtaining a RCRA part B permit is
a disincentive for recycling facilities to
accept the wastes and assume the
associated liabilities. In addition, one
commenter believed that lack of
reclamation capacity is one of the
factors limiting recycling efforts, and
that one of the principal causes of this
lack of capacity is subtitle C
requirements applicable to reclamation
facilities.
While EPA supports recycling, a
change to the requirements for
destination facilities that recycle
universal waste is beyond the scope of
this regulation which is intended to
focus on the collection phase of
universal waste management rather than
the final treatment, disposal, or
recycling phase. As discussed in the
background section of this preamble
entitled "Definition of Solid Waste Task
Force," the Agency has an ongoing
effort to broadly address the question of
how hazardous waste recycling should
be regulated. Any modification of
regulatory requirements for recyclers,
including universal waste recyclers, will
be a part of this broader effort.
Therefore, in today's final rule, the
Agency is maintaining the requirements
proposed for destination facilities that
recycle waste.
IV.H. Imports of Universal Waste
Several commenters pointed out that
the Agency did not address the issue of
imports in the proposed universal waste
rule. This was an oversight^Jhe Agency
intended that once universal waste
entered the country it would be subject
to the same universal waste rules as any
other universal waste. To clarify this,
the final rule includes import
requirements in 40 CFR 273.70, which
is Subpart F of Part 273. Section 273.70
clarifies that universal waste that is
imported from another country must be
managed, upon entry into the country,
in compliance with the appropriate
universal waste requirements for
transporters, handlers, or destination
facilities, depending on the universal
waste management activities conducted
within the United States.
For example, if a person imports
universal waste into the United States
and only transports the imported waste
to £i facility owned and operated by
someone else, he is subject to the
transporter requirements of subpart D of
part 273. However, if a person imports
universal waste into the United States
and subsequently transports the
universal waste to his own facility, the
universal waste handler is subject to the
transporter requirements for transport of
the universal waste, and to the small or
large handler requirements of subparts B
or C for management at the receiving
facility. To determine whether the
handler is a small or large quantity
handler, universal waste imported from
a foreign country is counted toward the
quantity of waste accumulated as any
other universal waste would be. If the
handler is a large quantity handler of
universal waste, he must also comply
with the tracking requirements for
receipt of shipments at 40 CFR
273.39(a). If a person imports the waste
into the United States and subsequently
transports the universal waste to his
own destination facility, he is subject to
the destination facility Subpart E
requirements for management at the
receiving facility.
IV.I. Land Disposal Restrictions
Pursuant to the Land Disposal
Restrictions (LDR) provisions of the
Hazardous and Solid Waste
Amendments of 1984 (HSWA), all
hazardous wastes listed or identified in
accordance with RCRA section 3001
require treatment prior to land disposal,
on specified timetables, from land
disposal. The regulations for the LDR
prpgram in 40 CFR part 268 apply to
persons who generate or transport
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hazardous waste and owners and
operators of hazardous waste treatment,
storage, and disposal facilities, unless
they are specifically excluded from
regulation in parts 261 or 268.
To address the LDR program for
universal wastes, the proposed
universal waste rule required that
generators, transporters, and
consolidation points managing
universal waste comply with all of the
substantive land disposal restrictions
requirements, but not the administrative
requirements. These substantive
requirements included: (1) A
prohibition on accumulating prohibited
wastes directly on the land (land
disposal); (2) a requirement to treat
wastes to meet treatment standards prior
to land disposal; (3) a prohibition on
dilution; and (4) a prohibition on waste
accumulation except for purposes of
accumulating quantities sufficient for
proper recovery, treatment or disposal.
See Universal Waste proposed rule at 58
FR 812 and 8124 for a detailed
discussion of how each of these
substantive requirements were to be
implemented for universal wastes.
Under the proposal, destination
facilities remained subject to all of the
part 268 land disposal restrictions.
Commenters overwhelmingly
supported the proposed approach of
requiring collectors of universal waste
to comply with the substantive LDR
requirements but not the LDR
administrative requirements (e.g.,
notification to all handlers of applicable
treatment standards). They agreed that
the procedural land disposal restrictions
requirements would be a significant
disincentive to persons managing
universal waste under Part 273.
Commenters also agreed that due to the
unique nature of universal wastes (i.e.,
easily identifiable, treatment standards
easily identifiable, contained), the
substantive requirements proposed
would be sufficient to ensure that the
goals of the land disposal restrictions
program are met for universal waste
managed under part 273.
Based on these comments, the final
rule generally retains the proposed
approach to ensuring that collectors of
universal waste (small and large
handlers and transporters) manage the
waste in compliance with the
substantive requirements of the LDR
program. Each of the proposed
requirements, comments received on the
proposed requirements, and any
changes made in the final rule are
discussed in detail in the sections of
this preamble addressing the specific
requirements. As in the proposal, under
the final rule, destination facilities are
required to comply with all of the Part
268 LDR requirements for universal
waste, including both the substantive
and administrative requirements. Thus,
all universal waste will be treated or
disposed of in compliance with LDR
treatment standards and the appropriate
documentation regarding such
compliance will be maintained by
destination facilities.
A number of commenters did,
however, raise specific concerns about
the proposed approach to implementing
the LDR requirements for universal
waste. These comments and changes
made to the final rule to address them
are discussed in detail in the section
IV.E.5 of this preamble, entitled
"accumulation time limits."
IV. J. Regenerated Batteries
In the proposed rule, the Agency
requested comment on whether the
existing 40 CFR 261.6(a)(3)(ii)
exemption from regulation for used
batteries that are returned to a battery
manufacturer for regeneration should be
retained, or changed to correspond with
the changes proposed for management
of other batteries (58 FR 81250).
Although the Agency expressed concern
that having multiple special provisions
for batteries would be confusing for
regulated parties and implementing
agencies, EPA proposed to retain the
exemption to avoid disrupting the
regeneration of used batteries.
The final rule removes the 40 CFR
261.6 exemption for used batteries that
are to be regenerated, and adds a
provision at § 273.13(a) and 273.33(a)
such that facilities regenerating used
batteries are now subject to the part 273
standards for small or large quantity
handlers of universal waste, depending
on the quantity of batteries they
accumulate. In effect, this change results
in the management of batteries that are
to be regenerated together with all other
batteries under part 273 during
collection, and subjects the regeneration
facility to the same requirements as
other facilities receiving batteries but
not breaking open battery casings.
40 CFR 266.80(a) and (b) have also
been revised to clarify that lead-acid
batteries that are regenerated remain
exempt from the hazardous waste
regulations throughout the management
cycle. Since the final rule retains the
lead-acid battery provisions of 40 CFR
266.80, it is most appropriate to also
include regenerated lead-acid batteries
so that all lead-acid batteries may be
managed similarly. However, since the
activities of a regeneration facility are
more similar to a facility that
accumulates waste than a facility that
processes a waste to recover a usable
product, batteries that are regenerated
have also been exempted from the
requirements for lead-acid battery
reclamation facilities.
The Agency decided to include
regenerated batteries under part 273 for
several reasons. First, although a
number of commenters supported
retaining the exemption, several
commenters documented the confusion
that already exists concerning
applicability of the current exemption,
and several expressed concern about the
additional confusion that would be
added by having multiple provisions for
battery management. Regulating all used
batteries under the same provisions will
eliminate this confusion, making it
easier for the regulated community and
regulating agencies to implement the
battery management regulations. In
addition, regulating all hazardous waste
batteries under the same provisions will
eliminate the confusion expressed by
several commenters about how the
exemption applies in situations where
those handling the battery do not know
whether the battery is regenerable, and
thus do not know whether the battery
will be regenerated or recycled. The
applicable requirements will be the
same whether the battery is determined
to be regenerable, or is sent on for
reclamation at another facility.
Second, because the risks of
accumulating and transporting used
batteries that are to be regenerated (and
particularly those that may or may not
be regenerated) are similar to the risks
of managing any other used battery, the
two should be regulated similarly.
Because the Agency believes that the
risks are low relative to other hazardous
wastes because the battery casings
remain intact, both battery types should
be subject to the same basic
management standards included in Part
273.
Third, the Agency does not believe
that compliance with part 273
requirements will be overly burdensome
for persons managing batteries that are
to be regenerated. As discussed
previously, the requirements for
generators, transporters, and
consolidation points (which would be
applicable to regenerators) generally
consist of basic good management
practices and only require notification
or recordkeeping if large quantities of
batteries are managed. In addition, these
requirements would be applicable in
any case if a battery is determined not
to be regenerable and thus is otherwise
recycled.
Finally, the Agency decided to subject
regeneration facilities to the
requirements for small or large quantity
handlers of universal waste, depending
on the quantity accumulated) because
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25536 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
the activities conducted by such
facilities are basically the same and thus
the risks are basically the same. Both
facilities accumulate batteries, but do
not damage the integrity of the battery
casings. Thus, the Agency believes that
the regulations applicable to such
facilities should be the same.
V. State Authority
A. Applicability of Rules in Authorized
States
Under section 3006 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. Following
authorization, EPA retains enforcement
authority under sections 3008, 3013,
and 7003 of RCRA, although authorized
States have priniary enforcement
responsibility. The standards and
requirements for authorization 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. The federal
requirements no longer applied in the
authorized State, and EPA could not
issue permits for any facilities in that
State, since only the State was
authorized to issue RCRA permits.
When new, more stringent federal
requirements were promulgated or
enacted, the State was obliged to enact
equivalent authorities within specified
time frames. However, the new federal
requirements did not take effect in an
authorized State until the State adopted
the federal requirements as State law.
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. EPA is directed by
statute to implement these requirements
and prohibitions in authorized States,
including the issuance of permits, .until
the State is granted authorization to do
so. While States must still adopt HSWA
related provisions as State law to retain
final authorization, the HSWA
provisions are implemented by EPA in
authorized States in the interim.
B. Effect on State Authorization
Today's amendments to the hazardous
waste regulations are not effective in
authorized States since the requirements
are not being promulgated pursuant to
HSWA. Thus, the universal waste
standards are applicable as part of the
RCRA program upon the effective date
only in those States that do not have
final RCRA authorization. In authorized
States, the amendments will not be
applicable until the State revises its
program to adopt equivalent
requirements under State law and is
authorized by EPA for the amendments.
It should be noted that authorized
States are only required to modify their
programs when EPA promulgates
Federal standards that are more
stringent or broader in scope than the
existing Federal standards. Section 3009
of RCRA allows States to impose
standards more stringent than, or in
addition to those in the Federal
program. The amendments in today's
rule are not considered to be more
stringent than the existing Federal
requirements. Therefore, authorized
States are not required to modify their
programs to adopt requirements
equivalent to the provisions contained
in today's rule.
Even though States are not required to
adopt today's rule, EPA strongly
encourages them to do so. In addition to
the expected benefits of the universal
waste program discussed in the
proposed and final rules, EPA also
believes that the new streamlined
approach to management of universal
wastes will contribute to more efficient
and effective State programs. For these
reasons, States are therefore urged to
adopt today's rule and submit to EPA
the program modification for approval
in advance of, or according to, the
schedule that applies to mandatory
program revisions pursuant to 40 CFR
271.21(e).
C. Comments Regarding the Proposed
Rule
A number of commenters disagreed
with the Agency's conclusion that the
universal waste regulations are based on
pre-HSWA authorities in RCRA.
Commenters argued that because the
universal waste regulations will further
many of the broad goals outlined in
HSWA, EPA could consider the
regulation to be part of HSWA authority.
In addition, several commenters stated
that the varying effective dates from
State to State will make participation in
multi-state universal waste collection
programs more difficult. These
commenters urged the Agency to
promulgate the rule as a HSWA rule in
order to ease these difficulties and
speed realization of the benefits of the
rule.
Several commenters suggested
specific changes to the proposed
universal waste regulations that they
argued would be more stringent than the
current hazardous waste program and
would allow the Agency to require
authorized states to adopt the universal
waste program. A number of
commenters also urged the Agency to
promulgate the existing proposed rule
as a more stringent rule ensure that
authorized States would be required to
adopt the rule, thus ensuring that it
would be effective in all States. They
again noted that having the rule
effective in some States but not others
would result in implementation
difficulties. The commenters also note
that the full benefits which could be
realized from a national universal waste
program may not be achieved if the
program is not implemented in all
States across the country.
The Agency agrees with the aim of
thosie commenters who wish to achieve
the uniform application of the universal
waste rule that would be possible if the
rule! were to be promulgated under
HSWA authority. However, EPA
believes that the authority to promulgate
today's amendments is not sufficiently
linked to HSWA provisions to be a rule
implementing HSWA. Thus, the Agency
beli eves that the appropriate authority
for promulgation of this rule is non-
HSWA.
The Agency agrees with the
commenters that because the
promulgated rule is less stringent than
the current RCRA program, difficulties
may arise if the universal waste
regulations are not adopted by all States.
However, the changes necessary to make
the universal waste rule more stringent
would significantly diminish the
benefits to be gained from this rule.
Thus, because today's rule is less
stringent than the existing requirements
for managing hazardous wastes,
authorized States are not required to
adopt the universal waste regulations.
The Agency is encouraged however,
by comments on the proposed rule
received from program offices in 28
different States. The overwhelming
response from these State agencies
demonstrates strong support for the
universal waste program. The Agency
believes that many States will modify
their current State programs to include
the' provisions of the final rule, and
strongly encourages States to adopt the
universal waste regulations.
As an incentive to encourage States to
adopt the universal waste regulations,
and become authorized for them, EPA is
planning to use a streamlined
application procedure. This procedure
will reduce in scope several program
revision application components. In
addition, EPA will make electronic
versions of this rule and its associated
authorization checklists available on the
State Authorization Bulletin Board
system. The Agency believes that these
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efforts, together with the
aforementioned benefits to be gained
from adopting the universal waste
regulations, will help encourage most, if
not all, States to adopt the universal
waste regulations within a reasonable
period of time.
D. Universal Waste State Authorization
Issues
1, Addition of New Universal Wastes to
State Programs
The Agency notes that States, if they
so choose, may seek authorization for
the portions of § 260.20 that address
petitions to add new universal wastes,
and for 40 CFR 260.23 and subpart G of
part 273, which address the petition
process and include the factors to be
used to evaluate petitions. The
authorization of States for the petition
process is similar in many respects to
the authorization of States for the
delisting program (see 40 CFR 260.20
and 260.22) or the variance from
classification as a solid waste (see 40
CFR 260.31).
States authorized for the petition
process would use evaluation factors
analogous to those in § 273.81 to review
petitions and make decisions as to
whether to add hazardous wastes to the
State universal waste regulations.
Management standards for these wastes
would also be developed by the State
using the criteria in subpart G of part
273. The individual wastes and
management standards would not be
subject to the authorization revision
provisions in 40 CFR 271.21, since the
State would already be authorized for
the universal waste regulations and the
regulation of hazardous wastes.
Moreover, the State rulemaking
procedures, including those addressing
public participation, are equivalent to
the rulemaking procedures EPA
employs. Of course, a State could not
approve a petition for a waste it is not
authorized to regulate as hazardous. For
example, a State could not approve a
petition for a waste that is hazardous
due to the Toxicity Characteristic (TC)
if the State is not authorized for the TC.
Although such a petition would
properly be directed to EPA for a
decision, the Agency does not expect
this situation to occur frequently.
If an authorized State adds new
hazardous wastes to its universal waste
program, management of that waste
under the universal waste regulations
would only be allowed within that State
or other States that have added the
wastes to their universal waste
regulations. Thus, the waste could be
collected and consolidated within a
State that has added a waste, but
shipments to a State where the universal
waste standards do not apply to that
waste would have to comply with the
full hazardous waste requirements (e.g.,
for transportation, manifests, interim
storage). It should be noted that States
are not required to apply for or obtain
authorization to receive and review
petitions to add new wastes. If they so
choose, States may apply for and obtain
authorization to implement the part 273
universal waste regulations other than
subpart G. These States would still have
the ability to adopt wastes that EPA
adds to its universal waste program.
2. Authorization for Individual
Universal Wastes
In order to aid expedited adoption
and authorization of as much of today's
rule as possible, States will not be
required to apply for and obtain j
authorization to implement the
universal waste program for all wastes
covered under the federal program. For
example, a State could choose to
include in its authorized program
batteries and pesticides, but not
thermostats. EPA believes that this
approach will aid quick adoption for
those States that may need to make
statutory changes to be able to
implement a universal waste program
for a particular wastestream.
To ensure that all the relevant waste
management and transportation
standards apply to a particular universal
waste, to obtain authorization for the
universal waste rule, EPA will require
States to adopt all the applicable general
standards even if they are applying for
authorization for only one universal
waste. EPA believes that this is a
rational approach to this type of
adoption, and that it will not be a
significant barrier to authorization. This
authorization policy will be reflected in
EPA's authorization guidance on this
rule.
3. Interstate Transportation
Several commenters noted that
interstate transportation of universal
wastes will be complicated if some
States have adopted the universal waste
regulations and some have not. Similar
complications will arise if some states
add new wastes to their universal waste
regulations but other states do not add
the same wastes. The Agency believes it
is important to explain how the
regulations will apply because interstate
transportation will be necessary for
many universal wastes since there may
be only a few destination facilities that
accept and manage these wastes.
First, a waste which is subject to the
universal waste regulations may be sent
to a state where it is not a universal
waste, but it would be subject to the full
hazardous waste regulations in states
where it is not regulated as a universal
waste. In this scenario, for the portion
of the trip through the originating state,
and any other states where the waste is
a universal waste, a transporter with an
EPA identification number per 263.11
(hazardous waste transporter), or a
manifest would not be required.
However, for the portion of the trip
through the receiving state, and any
other states that do not consider the
waste to be a universal waste, a manifest
is required, and the waste must be
moved by a transporter in compliance
with 40 CFR part 263. In'order for the
final transporter and the receiving
facility to fulfill their requirements
concerning the manifest;(40 CFR 263.20,
263.21, 263.22, 264.71, Z64.72, and
264.76 or 265.71, 265.72, and 265.76),
the initiating facility should complete a
manifest and forward it to the first
transporter to travel in a state where the
waste is not a universal waste. The
receiving facility would sign the
manifest and send a copy to the
initiating facility. EPA recommends that
the initiating facility note in block 15 of
the manifest (Special Handling
Instructions and Additional
Information) that the waste is covered
under universal waste regulations in the
initiating state but not in the receiving
facility's state.
Second, a hazardous waste generated
in a state which does not regulate it as
a universal waste may be sent to a state
where it is a universal waste. In this
scenario, the waste must be moved by
a hazardous waste transporter while the
waste is in the generator's state, or any
other states where it is not a universal
waste. The initiating facility would
complete a manifest and give copies to
the transporter as required under 40
CFR 262.23(a). Transportation within
the receiving state and any other states
that regulate the waste as a universal
waste would not require a manifest or
be conducted by a hazardous waste
transporter. However, it is the initiating
facility's responsibility to ensure that
the manifest is forwarded to the
receiving facility by any non-hazardous
waste transporter and sent back to the
initiating facility by the receiving
facility. See 40 CFR 262.23 and 262.42.
EPA recommends that the generator
note in block 15 of the manifest (Special
Handling Instructions and Additional
Information) that the waste is covered
under universal waste regulations in the
receiving facility's state but not in the
generator's state.
Third, a waste may be transported
across a state in which it is subject to
the full hazardous waste regulations
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although other portions of the trip may
be from, through, and to states in which
it is covered under universal waste
regulations. Transport through the state
must be conducted in a hazardous waste
transporter andjmust be accompanied
by a manifest. In order for the
transporter to fulfill its requirements
concerning the manifest (subpart B of
part 263), the initiating facility would
complete a manifest as required under
the manifest procedures and forward it
to the first transporter to travel in a state
where the waste is not a universal
waste. The transporter would deliver
the manifest tOjjand obtain the signature
of either the next transporter or the
receiving facility.
As noted previously, States are not
required to adppt today's rule. However,
EPA strongly encourages them to do so.
As more states adopt the program, not
only will this assist in achieving the
most benefits of the universal waste
program, it will also reduce the
complexity of interstate transport of
these universal wastes. In the interim,
while states are in the process of
adopting today's rule, the Agency plans
to discuss with the states, an approach
for coordinating an interim
implementation strategy.
VI. Executive Order 12866—Regulatory
Impacts
Under Executive Order 12866 (58 FR
51735, October 4,1993), the Agency
must determine whether a regulatory
action is "significant" and therefore
subject to review by the Office of
Management and Budget (OMB) and the
requirements of the Executive Order.
The Order defines "significant
regulatory action" as one that is likely
to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
set forth in the Executive Order."
Pursuant to the terms of the Executive
Order 12866, it has been determined
that this rule is a "significant regulatory
action" because it raises novel legal or
policy issues arising out of legal
mandates, the President's priorities, or
the principles set forth in the Executive
Order. Changes made in response to
OMB suggestions or recommendations
will be documented in the public
record.
This section of the preamble
summarizes the costs (savings) and the
cost analysis of the final universal waste
regulations. Based upon the cost
analysis, the Agency's best estimate is
that the universal waste regulations may
result in nationwide annualized savings
of approximately $76 million.
For the cost analysis, EPA estimated
the incremental cost differences
between compliance with the full RCRA
Subtitle C requirements (parts 260-272)
and the part 273 standards for universal
waste management. The universal
wastes' examined for this analysis are:
vented nickel-cadmium batteries, sealed
nickel-cadmium batteries, mercuric-
oxide batteries, used mercury-
containing thermostats, cancelled and/
or suspended pesticides that are
recalled, and unused pesticide products
collected in a waste pesticide collection
program.
For recalled pesticides only, EPA
assumed that a national pesticide recall
producing hazardous waste would occur
once every five years. All other
universal wastes were assumed to be
generated and disposed of annually.
For each of these types of waste, the
Agency identified and estimated the
costs of all the requirements that should
result in an incremental cost difference
between the existing full RCRA Subtitle
C regulations and the part 273 Rule.
EPA reviewed how wastes would move
through the RCRA system from the
generator to the final treatment or
disposal facility under each regulatory
structure, and identified the areas where
compliance costs would differ from the
existing RCRA Subtitle C requirement
costs.
The Subtitle C requirements that
differ from those required under part
273 (and therefore produce an
incremental savings) include: Employee
training; maintenance costs for a
contingency plan; filing hazardous
waste biennial reports; manifest
completion and recordkeeping per
shipment; and Land Disposal
Restriction Notification. In addition,
shipping and disposal costs were
reduced for some of the universal
wastes because common carriers could
be used instead hazardous waste
transporters, and the one-year storage
limit under part 273 would allow
handlers to ship less often than under
the current Subtitle C and therefore take
advantage of economies of scale.
The Agency considered the annual
compliance costs that would result from
fouir different compliance options under
thei part 273 Rule for handlers of each
type of battery and for thermostats
covered in this analysis: Shipment of
wastes by common carriers (trucks) to a
collection facility; shipping wastes
directly to a reclamation facility via
common carriers (trucks); shipment of
wastes via a parcel carrier (i.e., UPS);
and, for thermostats only, a reverse
distribution system where handlers ship
their used thermostats to Honeywell
Corporation, that then has the mercury-
containing component (ampule) of the
thermostat reclaimed by a commercial
facility.
For each type of waste handler, the
Agency identified the least-cost method
of compliance with part 273 in order to
determine the savings that would result
from handlers no longer subject to the
requirements of 40 CFR parts 262-270.
The least-cost method of compliance
with part 273 yielded annual national
cost estimates (of those elements
expected to vary between the current
RCRA Subtitle C requirements and the
part 273 requirements) of $0.3 million
foir vented nickel-cadmium batteries,
$10.3 million for sealed nickel-cadmium
batteries, $1.6 million for mercuric-
oxide batteries, and $1.2 million for
used mercury-containing thermostats,
for an annual cost of $13.4 million for
battery and thermostat waste. Subtitle C
national annual costs (of those elements
expected to vary between the current
RCRA Subtitle C requirements and the
part 273 requirements) for battery and
thermostat waste are estimated to be
$46.2 million, resulting in an annual
savings of $32.9 million per year for
baittery and thermostat waste.
For recalled pesticides, part 273 costs
(of those elements expected to vary
beitween the current RCRA Subtitle C
requirements and the part 273
requirements) are estimated to be $15.5
million per recall, while Subtitle C
requirement costs (of those elements
expected to vary between the full RCRA
Subtitle C requirements and the part 273
requirements) are estimated to be $230.0
million per recall, resulting in a savings
of $214.5 million per recall. Assuming
one recall every five years, and a seven
percent discount rate, the annualized
sa.vings for recalled pesticides is $42.7
million per year.
For unused pesticide products
collected in a waste pesticide collection
program, part 273 annual costs (of those
elements expected to vary between the
current RCRA Subtitle C requirements
and the part 273 requirements) are
estimated to be $130,000, while Subtitle
C requirement costs (of those elements
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Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25539
expected to vary between the full RCRA
SuDtitle C requirements and the part 273
requirements) are estimated to be
$360,000, resulting in an annual savings
of $230,000 per year for unused
pesticide products collected under
waste pesticide collection programs.
Summing up the savings from the
various universal wastes, the Agency's
best estimate of the total annuafized
savings of today's rule is $76 million. A
complete discussion of the cost analysis
is available in the regulatory docket for
today's rule.
VII. Paperwork Reduction Act
The Information collection
requirements in this rule have been
approved by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.
and have been assigned control number
2050-0145.
This collection of information has a
reporting burden per response of 0
hours for Small Quantity Handlers of
Universal Waste, 4 minutes for Large
Quantity Handlers of Universal Waste,
and 12 hours for Destination Facilities;
and an estimated annual recordkeeping
burden averaging 1.6 hours per
respondent. These estimates include
time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewing
the collection of information.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing this burden to
Chief, Information Policy Branch; EPA;
401 M St., SW. (Mail Code 2136);
Washington, DC 20460; and to the
Office of Information and Regulatory
Affairs, Office of Management and
Budget, Washington, DC 20503, marked
"Attention: Desk Officer for EPA."
Display of OMB Control Numbers
EPA is also amending the table of
currently approved information
collection request (ICR) control numbers
issued by OMB for various regulations.
This amendment updates the table to
accurately display those information
requirements contained in this final
rule. This display of the OMB control
number and its subsequent codification
in the Code of Federal Regulations
satisfies the requirements of the
Paperwork Reduction Act (44 U.S.C.
3501 et seq.) and OMB's implementing
regulations at 5 CFR part 1320.
The ICR was previously subject to
public notice and comment prior to
OMB approval. As a result, EPA finds
that there is "good cause" under section
553(b)(B) of the Administrative
Procedure Act (5 U.S.C. 553(b)(B)) to
amend this table without prior notice
and comment. Due to the technical
nature of the table, further notice and
comment would be unnecessary. For the
same reasons, EPA also finds that there
is good cause under 5 U.S.C. 553(d)(3).
VHI. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
of 1980, 5 U.S.C. 601 et seq., requires
federal agencies to consider "small
entities" throughout the regulatory
process. Section 603 of the RFA requires
an initial screening analysis to be
performed to determine whether small
entities will be affected by the
regulation. If affected small entities are
identified, regulatory alternatives must
be considered to mitigate the potential
impacts. Small entities as described in
the Act are only those "businesses,
organizations and governmental
jurisdictions subject to regulation."
The only entities directly subject to
today's final rule are small and large
quantity handlers of universal waste
batteries, pesticides, and thermostats
(who generate more than 100 kilograms
of hazardous waste), and transporters
and collectors of universal waste
batteries, pesticides, and thermostats.
Conditionally exempt small quantity
generators (who generate less than 100
kilograms of hazardous waste) are not
directly subject to today's rule. It is
likely that some small and large
quantity generators, transporters, and
collectors of universal waste would
meet the definition of "small business"
as defined by the RFA. However, the
Agency does not have an estimate of the
number of such "small entities."
However, the universal waste
regulations are expected to result in net
savings to any regulated entities because
it reduces requirements overall for these
entities. Thus, since the impacts are
positive for all regulated entities,
including "small entities," EPA has
determined that small regulated entities
will not be adversely impacted.
Accordingly, I hereby certify, pursuant
to 5 U.S.C. 601(b), that this rule will not
have a significant impact on a
substantial number of small entities.
IX. Unfunded Mandates
Under section 202 of the Unfunded
Mandates Reform Act of 1995, signed
into law on March 22,1995, EPA must
prepare a statement to accompany any
rule where the estimated costs to State,
local, or tribal governments in the
aggregate, or to the private sector, will
be $100 million or more in any one year.
Under section 205, EPA must select the
most cost-effective and least
burdensome alternative that achieves
the objective of the rule and is
consistent with statutory requirements.
Section 203 requires EPA to establish a
plan for informing and advising any
small governments that may be
significantly impacted by the rule.
EPA has determined that this rule
does not include a Federal mandate that
may result in estimated costs of $100
million or more to either State, local or
tribal governments in the aggregate, or
to the private sector.
List of Subjects
40 CFR Part 260
Administrative practice and
procedure, Confidential business
information, Hazardous materials,
Recycling, Reporting and recordkeeping,
Waste treatment or disposal.
40 CFR Part 261
Hazardous materials, Recycling,
Waste treatment and disposal.
40 CFR Part 262
Administrative practice and
procedure, Hazardous materials,
Reporting and recordkeeping.
40 CFR Parts 264 and 265
Hazardous materials, Packaging and
containers, Reporting and recordkeeping
requirements, Security measures, Surety
bonds, Waste treatment and disposal.
40 CFR Part 266
Hazardous waste, Management, Spent
lead-acid batteries.
40 CFR Part 268
Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 270
Hazardous materials, Packaging and
containers, Reporting and recordkeeping
requirements, Waste treatment and
disposal.
40 CFR Part 273
Hazardous materials, Packaging and
containers.
Dated: April 25,1995.
Carol M. Browner,
Administrator.
For the reasons set out in the
preamble, title 40 of the Code of Federal
Regulations is amended as follows:
PART 9—[AMENDED]
1. In Part 9:
a. The authority citation for part 9
continues to read as follows:
Authority: 7 U.S.C. 135 etseq., 136-136y;
15 U.S.C. 2001, 2003, 2005, 2006, 2601-2671;
21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311,1313d, 1314,1321,
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25540 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
1326,1330,1344,1345 (d) and (e), 1361; E.O.
11735, 38 FR 21243, 3 CFR, 1971-1975
Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246,
300f, 300g, 300g-l, 300g-2, 300g-3, 300g-4,
300g-5, 300g-6, 300J-1, 300J-2, 300J-3, 300J-
4, 300J-9,1857 et seq., 6901-6992k, 7401-
7671q, 7542, 9601-9657,11023,11048.
b. Section 9.1 is amended by adding
a new center heading and new entries
to the table to read as follows:
§ 9.1 OMB approvals under the Paperwork
Reduction Act.
40 CFR citation
OMB con-
trol No.
Hazardous Waste Management
System:
General .a
260.23
Standards for Universal Waste
Management:
273.14
273.15
273.18
273.32
273.34
273.35
273.38
273.39
273.61
273.62
273.80
2050-0145
2050-0145
2050-0145
2050-0145
2050-0145
2050-0145
2050-0145
2050-0145
2050-0145
2050-0145
2050-0145
2050-0145
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
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.
Subpart B—Definitions
2. Section 260.10 is amended by
revising the introductory text and
adding, in alphabetical order,
definitions for "battery," "destination
facility," "pesticide," "thermostat,"
"universal waste," "universal waste
handler," and "universal waste
transporter" to read as follows:
§260.10 Definitions.
When used in parts 260 through 266,
268, and 270 through 273 of this
chapter, the following terms have the
meanings given below:
* * *, * *
Battery means a device consisting of
one or more electrically connected
electrochemical cells which is designed
to receive, store, and deliver electric
energy. An electrochemical cell is a
system consisting of an anode, cathode,
and an electrolyte, plus such
connections (electrical and mechanical)
as may be needed to allow the cell to
deliver or receive electrical energy. The
term battery also includes an intact,
unbroken battery from which the
electrolyte has been removed. , ,
*****
Destination facility means a facility
that treats, disposes of, or recycles a
particular category of universal waste,
except those management activities
described in paragraphs (a) and (c) of-
§§ 273.13 and 273.33 of this chapter. A
facility at which a particular category of
universal waste is only accumulated, is
not a destination facility for purposes of
managing that category of universal
waste. Cl
**_*** .
Pesticide means any substance or
mixture of substances intended for
preventing, destroying, repelling, or
mitigating any pest, or intended for use
as a plant regulator, defoliant, or
desiccant, other than any article that: .
(1) Is a new animal drug under
FFDCA section 201(w), or
(2) Is an animal drug that has been
determined by regulation of the
Secretary of Health and Human Services
not to be a new animal drug, or
(3) Is an animal feed under FFDCA
section 201(x) that bears or contains any
substances described by paragraph (1) or
(2) of this definition.
*****
Thermostat means a temperature
control device that contains metallic
mercury in an ampule attached to a
bimetal sensing element, and mercury-
containing ampules that have been
removed from these temperature control
devices in compliance with the
requirements of 40 CFR 273.13(c)(2) or
273.33(c)(2).
***** •
Universal Waste means any of the
following hazardous wastes that are
managed under the universal waste
requirements of 40 CFR part 273:
(1) Batteries as described in 40 CFR
273.2;
(2) Pesticides as described in 40 CFR
273.3; and
(3) Thermostats as described in 40
CFR 273.4.
*****
Universal Waste Handler:
(I) Means:
(i) A generator (as defined in this
section) of universal waste; or
(ii) The owner or operator of a facility,
including all contiguous property, that
receives universal waste from other
universal waste handlers, accumulates
universal waste, and sends universal
waste to another universal waste
handler, to a destination facility, or to
a foreign destination.
(2) Does not mean:
(i) A person who treats (except under
the provisions of 40 CFR 273.13 (a) or
(c), or 273.33 (a) or (c)), disposes of, or
recycles universal waste; or
(ii) A person engaged in the off-site
transportation of universal waste by air,
rail, highway, or water, including a
universal waste transfer facility.
*****
Universal Waste Transporter means a
person engaged in the off-site
transportation of universal waste by air,
rB.il, highway, or water.
Subpart C—Rulemaking Petitions
3. Section 260.20 paragraph (a) is
revised to read as follows:
§260.20 General.
(a) Any person may petition the
Administrator to modify or revoke any
provision in parts 260 through 266, 268
and 273 of this chapter. This section
sots forth general requirements which
apply to all such petitions. Section
260.21 sets forth additional
requirements for petitions to add a
testing or analytical method to part 261,
264 or 265 of this chapter. Section
260.22 sets forth additional
requirements for petitions to exclude a
waste or waste-derived material at a
particular facility from § 261.3 of this
chapter or the lists of hazardous wastes
in subpart D of part 261 of this chapter.
Election 260.23 sets forth additional
requirements for petitions to amend part
2173 of this chapter to include additional
hazardous wastes or categories of
hazardous waste as universal waste.
4; . * * * *
4. Section 260.23 is added to read as
follows:
f) 260.23 Petitions to amend 40 CFR part
5173 to include additional hazardous wastes.
(a) Any person seeking to add a
hazardous waste or a category of
hazardous waste to the universal waste
regulations of part 273 of this chapter
may petition for a regulatory
amendment under this section, 40 CFR
IJ60.20, and subpart G of 40 CFR part
273.
(b) To be successful, the petitioner
must demonstrate to the satisfaction of
the Administrator that regulation under
the universal waste regulations of 40
CFR part 273: Is appropriate for the
waste or category of waste; will improve
management practices for the waste or
category of waste; and will improve
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Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25541
implementation of the hazardous waste
program. The petition must include the
information required by 40 CFR
260.20(b). The petition should also
address as many of the factors listed in
40 CFR 273.81 as are appropriate for the
waste or category of waste addressed in
the petition.
(cj The Administrator will grant or
deny a petition using the factors listed
in 40 CFR 273.81. The decision will be
based on the weight of evidence
showing that regulation under 40 CFR
part 273 is appropriate for the waste or
category of waste, will improve
management practices for the waste or
category of waste, and will improve
implementation of the hazardous waste
program.
(d) The Administrator may request
additional information needed to
evaluate the merits of the petition.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
5. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6022, and 6938.
Subpart A—General
6. Section 261.5 is amended by
revising paragraphs (c), (f)(3), and (g)(3)
to read as follows:
§261.5 Special requirements for
hazardous waste generated by conditionally
exempt small quantity generators.
*****
(c) When making the quantity
determinations of this part and 40 CFR
part 262, 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)(l), or 261.8; or
(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; or
(3) Is recycled, without prior storage
or accumulation, only in an on-site
process subject to regulation under 40
CFR 261.6(c)(2); or
(4) Is used oil managed under the
requirements of 40 CFR 261.6(a)(4) and
40 CFR part 279; or
(5) Is spent lead-acid batteries
managed under the requirements of 40
CFR part 266, subpart G; or
(6) Is universal waste managed under
40 CFR 261.9 and 40 CFR part 273.
*****
(f)* * *
(3) A conditionally exempt small
quantity generator may either treat or
dispose of his acute 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 or
industrial solid waste;
(v) 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; or
(vi) 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.
*****
(g) * * *
(3) A conditionally exempt small
quantity generator may either treat or
dispose of his 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 or
industrial solid waste;
(v) 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; or
(vi) 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.
*****
7. Section 261.6 is amended by
removing paragraph (a)(3)(ii) and
redesignating paragraphs (a)(3)(iii)
through (a)(3)(vii) as paragraphs
(a)(3)(ii) through (a)(3)(vi).
8. Section 261.9 is added to subpart
read as follows:
§ 261.9 Requirements for Universal Waste.
The wastes listed in this section are
exempt from regulation under parts 262
through 270 of this chapter except as
specified in part 273 of this chapter and,
therefore are not fully regulated as
hazardous waste. The wastes listed in
this section are subject to regulation
under 40 CFR part 273:
(a) Batteries as described in 40 CFR
273.2;
(b) Pesticides as described in 40 CFR
273.3; and
(c) Thermostats as described in 40
CFR 273.4.
PART 262—STANDARDS APPLICABLE
TO GENERATORS OF HAZARDOUS
WASTE
9. The authority citation for part 262
continues to read as follows:
Authority: 42 U.S.C. 6906,'6912(a), 6922,
6923, 6924, 6925, 6937 and 6938.
Subpart A—General
10. Section 262.10 is amended by
redesignating existing paragraphs (b)
through (f) as (c) through (g).
11. Section 262.10 is amended by
adding a new paragraph (b) to read as
follows:
§ 262.10 Purpose, scope and applicability.
*****
(b) 40 CFR 261.5(c) and (d) must be
used to determine the applicability of
provisions of this part that are
dependent on calculations of the
quantity of hazardous waste generated
per month.
12. Section 262.11 is amended by
revising paragraph (d) to read as
follows:
§ 262.11 Hazardous waste determination.
*****
(d) If the waste is determined to be
hazardous, the generator must refer to
parts 261, 264, 265, 266, 268, and 273
of this chapter for possible exclusions or
restrictions pertaining to management of
the specific waste.
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
13. The authority citation for part 264
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924,
and 6925.
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25542 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
Subpart A—General
14. Section 264.1 is amended by
adding a new paragraph (g)(ll) as
follows:
§ 264.1 Purpose, scope and applicability.
*****
(g)***
(11) Universal waste handlers and
universal waste transporters (as defined
in 40 CFR 260.10) handling the wastes
listed below. These handlers are subject
to regulation under 40 CFR part 273,
when handling the below listed
universal wastes.
(i) Batteries as described in 40 CFR
273.2;
(ii) Pesticides as described in 40 CFR
273.3; and
(iii) Thermostats as described in 40
CFR 273.4.
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE AND
DISPOSAL FACILITIES
15. The authority citation for part 265
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924,
6925, 6935 and 6936.
Subpart A—General
16. Section 265.1 is amended by
adding a new paragraph (c)(14) to read
as follows:
Recovery Act of 1976, as amended (42 U.S.C.
6905, 6912(a), 6924, and 6934.
Subpart G—Spent Lead Acid Batteries
Being Reclaimed
18. Section 266.80 is amended by
revising paragraphs (a) and (b) to read
as follows:
§ 266.80 Applicability and requirements.
(a) The regulations of this subpart
apply to persons who reclaim (including
regeneration) spent lead-acid batteries
that are recyclable materials ("spent
batteries"). Persons who generate,
transport, or collect spent batteries, who
regenerate spent batteries, or who store
spent batteries but do not reclaim them
(other than spent batteries that are to be
regenerated) are not subject to
regulation under parts 262 through 266
or part 270 or 124 of this chapter, and
also are not subject to the requirements
of section 3010 of RCRA.
(b) Owners or operators of facilities
that store spent lead acid batteries
before reclaiming (other than spent
batteries that are to be regenerated) them
are subject to the following
requirements.
PART 268—LAND DISPOSAL
RESTRICTIONS
19. The authority citation for part 268
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
and 6924.
§265.1 Purpose, scope and applicability. Subpart A—General
(c)***
(14) Universal waste handlers and
universal waste transporters (as defined
in 40 CFR 260.10) handling the wastes
listed below. These handlers are subject
to regulation under 40 CFR part 273,
when handling the below listed
universal wastes.
(i) Batteries as described in 40 CFR
273.2;
(ii) Pesticides as described in 40 CFR
273.3; and
(iii) Thermostats as described in 40
CFR 273.4.
PART 266—STANDARDS FOR THE
MANAGEMENT OF SPECIFIC
HAZARDOUS WASTES AND SPECIFIC
TYPES OF HAZARDOUS WASTE
MANAGEMENT FACILITIES
17. The authority citation for part 266
continues to read as follows:
Authority: Sees. 1006, 2002(a), 3004, and
3014 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and
20. Section 268.1 is amended by
adding paragraph (f) to read as follows:
§ 268.1 Purpose, scope and applicability.
*****
(f) Universal waste handlers and
universal waste transporters (as defined
in 40 CFR 260.10) are exempt from 40
CFR 268.7 and 268.50 for the hazardous
wastes listed below. These handlers are
subject to regulation under 40 CFR part
273.
(1) Batteries as described in 40 CFR
273.2;
(2) Pesticides as described in 40 CFR
273.3; and
(3) Thermostats as described in 40
CFR 273.4.
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
21. The authority citation for part 270
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912, 6924,
6925, 6927, 6939, and 6974.
Subpart A—General Information
22. Section 270.1 is amended by
adding a new paragraph (c)(2)(viii) to
rea.d as follows:
§ 270.1 Purpose and scope of these
regulations.
*****
(c) * * *
(2) * * *
(viii) Universal waste handlers and
universal waste transporters (as defined
in 40 CFR 260.10) managing the wastes
listed below. These handlers are subject
to regulation under 40 part CFR 273.
(A) Batteries as described in 40 CFR
273.2;
(B) Pesticides as described in 40 CFR
273.3; and
(C) Thermostats as described in 40
CFR 273.4.
*****
23. Title 40 of the Code of Federal
Regulations is amended by adding part
273 to read as follows:
PART 273—STANDARDS FOR
UNIVERSAL WASTE MANAGEMENT
Subpart A—General
273.1 Scope.
273.2 Applicability—batteries.
273.3 Applicability—pesticides.
273.4 Applicability—thermostats.
273.5 Applicability—household and
conditionally exempt small quantity
generator waste.
273.6 Definitions.
Suibpant B—Standards for Small Quantity
Handlers of Universal Waste
273.10 Applicability.
273.11 Prohibitions.
273.12 Notification.
273.13 Waste management.
273.14 Labeling/marking.
273.15 Accumulation time limits.
273.16 Employee training.
273.17 Response to releases.
273.18 Off-site shipments.
273.19 Tracking universal waste shipments.
273.20 Exports.
Subpart C—Standards for Large Quantity
Handlers of Universal Waste
273.30 Applicability.
273.31 Prohibitions.
273.32 Notification.
273.33 Waste management.
273.34 Labeling/marking.
273.35 Accumulation time limits.
273.36 Employee training.
273.37 Response to releases.
273.38 Off-site shipments.
2713.39 Tracking universal waste shipments.
27'3.40 Exports.
Subpart D—Standards for Universal Waste
Transporters
27:3.50 Applicability.
273.51 Prohibitions.
27'3.52 Waste management.
273.53 Accumulation time limits.
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Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25543
273.54 Response to releases.
273.55 Off-site shipments.
273.56 Exports.
Subpart E—Standards (or Destination
facilities
273.60 Applicability.
273.61 Off-site shipments.
273.62 Tracking universal waste shipments.
Subpart F—Import requirements
273.70 Imports.
Subpart G—Petitions to Include Other
Wastes Under 40 CFR Part 273
273.80 General.
273.81 Factors for Petitions to Include
Other Wastes under 40 CFR Part 273.
Authority: 42 U.S.C. 6922, 6923,6924,
6925,6930, and 6937.
Subpart A—General
§273.1 Scope.
(a) This part establishes requirements ,
for managing the following:
(1) Batteries as described in 40 CFR
273.2;
(2) Pesticides as described in 40 CFR
273.3; and
(3) Thermostats as described in 40
CFR 273.4.
(b) This part provides an alternative
sot of management standards in lieu of
regulation under 40 CFR parts 260
through 272.
§273.2 Applicability—batteries.
(a) Batteries covered under 40 CFR
part 273. (1) The requirements of this
part apply to persons managing
batteries, as described in § 273.6, except
those listed in paragraph (b) of this
section.
(2) Spent lead-acid batteries which are
not managed under 40 CFR part 266,
subpart G, are subject to management
under this part.
(b) Batteries not covered under 40
CFR part 273. The requirements of this
part do not apply to persons managing
the following batteries:
(1) Spent lead-acid batteries that are
managed under 40 CFR part 266,
subpart G.
(2) Batteries, as described in § 273.6,
that are not yet wastes under part 261
of this chapter, including those that do
not meet the criteria for waste
generation in paragraph (c) of this
section.
(3) Batteries, as described in § 273.6,
that are not hazardous waste. A battery
is a hazardous waste if it exhibits one
or more of the characteristics identified
in 40 CFR part 261, subpart C.
(c) Generation of waste batteries, (l) A
used battery becomes a waste on the
date it is discarded (e.g., when sent for
reclamation).
(2) An unused battery becomes a
waste on the date the handler decides to
discard it.
§273.3 Applicability—pesticides.
(a) Pesticides covered under 40 CFR
part 273. The requirements of this part
apply to persons managing pesticides,
as described in § 273.6, meeting the
following conditions, except those listed
in paragraph (b) of this section:
(1) Recalled pesticides that are:
(i) Stocks of a suspended and
canceled pesticide that are part of a
voluntary or mandatory recall under
FIFRA Section 19(b), including, but not
limited to those owned by the registrant
responsible for conducting the recall; or
(ii) Stocks of a suspended or cancelled
pesticide, or a pesticide that is not in
compliance with FIFRA, that are part of
a voluntary recall by the registrant.
(2) Stocks of other unused pesticide
products that are collected and managed
as part of a waste pesticide collection
program.
(D) Pesticides not covered under 40
CFR part 273. The requirements of this
part do not apply to persons managing
the following pesticides:
(l) Recalled pesticides described in
paragraph (a)(l) of this section, and
unused pesticide products described in
paragraph (a)(2) of this section, that are
managed by farmers in compliance with
40 CFR 262.70. (40 CFR 262.70
addresses pesticides disposed of on the
farmer's own farm in a manner
consistent with the disposal instructions
on the pesticide label, providing the
container is triple rinsed in accordance
with 40 CFR 261.7(b)(3));
(2) Pesticides not meeting the
conditions set forth in paragraph (a) of
this section. These pesticides must be
managed in compliance with the
hazardous waste regulations in 40 CFR
parts 260 through 272;
(3) Pesticides that are not wastes
under part 261 of this chapter, including
those that do not meet the criteria for
waste generation in paragraph (c) of this
section or those that are not wastes as
described in paragraph (d) of this
section; and
(4) Pesticides that are not hazardous
waste. A pesticide is a hazardous waste
if it is listed in 40 CFR part 261, subpart
D or if it exhibits one or more of the
characteristics identified in 40 CFR part
261, subpart C.
(c) When a pesticide becomes a waste.
(1) A recalled pesticide described in
paragraph (a)(l) of this section becomes
a waste on the first date on which both
of the following conditions apply:
(i) The generator of the recalled
pesticide agrees to participate in the
recall; and
(ii) The person conducting the recall
decides to discard (e.g., burn the
pesticide for energy recovery).
(2) An unused pesticide product
described in paragraph (a)(2) of this
section becomes a waste on the date the
generator decides to discard it.
(d) Pesticides that are not wastes. The
following pesticides are not wastes:
(1) Recalled pesticides described in
paragraph (a)(l) of this section,
provided that the person conducting the
recall:
(i) Has not made a decision to discard
(e.g., burn for energy recovery) the
pesticide. Until such a decision is made,
the pesticide does not meet the
definition of "solid waste" under 40
CFR 261.2; thus the pesticide is not a
hazardous waste and is not subject to
hazardous waste requirements,
including this part 273,. This pesticide
remains subject to the requirements of
FIFRA; or
(ii) Has made a decision to use a
management option that, under 40 CFR
261.2, does not cause the pesticide to be
a solid waste (i.e., the selected option is
use (other than use constituting
disposal) or reuse (other than burning
for energy recovery), or reclamation).
Such a pesticide is not a solid waste and
therefore is not a hazardous waste, and
is not subject to the hazardous waste
requirements including this part 273.
This pesticide, including a recalled
pesticide that is exported to a foreign
destination for use or reuse, remains
subject to the requirements of FIFRA.
(2) Unused pesticide products
described in paragraph (aj(2) of this
section, if the generator of the unused
pesticide product has not decided to
discard (e.g., burn for energy recovery)
them. These pesticides remain subject to
the requirements of FIFRA.
§273.4 Applicability—mercury
thermostats.
(a) Thermostats covered under 40 CFR
part 273. The requirements of this part
apply to persons managing thermostats,
as described in § 273.6, except those
listed in paragraph (b) of this section.
(b) Thermostats not covered under 40
CFR part 273. The requirements of this
part do not apply to persons managing
the following thermostats:
(1) Thermostats that are not yet wastes
under part 261 of this chapter.
Paragraph (c) of this section describes
when thermostats become wastes.
(2) Thermostats that are not hazardous
waste. A thermostat is a hazardous
waste if it exhibits one or more of the
characteristics identified in 40 CFR part
261, subpart C.
(c) Generation of waste thermostats.
(1) A used thermostat becomes a waste
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25544 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
on the date it is discarded (e.g., sent for
reclamation).
(2) An unused thermostat becomes a
waste on the date the handler decides to
discard it.
§273.5 Applicability—household and
conditionally exempt small quantity
generator waste.
(a) Persons managing the wastes listed
below may, at their option, manage
them under the requirements of this
part:
(1) Household wastes that are exempt
under 40 CFR 261.4(b)(l) and are also of
the same type as the universal wastes
defined at 40 CFR 273.6; and/or
(2) Conditionally exempt small
quantity generator wastes that are
exempt under 40 CFR 261.5 and are also
of the same type as the universal wastes
defined at 40 CFR 273.6.
(b) Persons who commingle the
wastes described in paragraphs (a)(l)
and (a)(2) of this section together with
universal waste regulated under this
part must manage the commingledl:|:
waste under the requirements of mi's
part.
§273.6 Definitions.
Battery means a device consisting of
one or more electrically connected
electrochemical cells which is designed
to receive, store, and deliver electric
energy. An electrochemical cell is a
system consisting of an anode, cathode,
and an electrolyte, plus such
connections (electrical and mechanical)
as may be needed to allow the cell to
deliver or receive electrical energy. The
term battery also includes an intact,
unbroken battery from which the
electrolyte has been removed.
Destination facility means a facility
that treats, disposes of, or recycles a
particular category of universal waste,
except those management activities
described in § 273.13 (a) and (c) and
§ 273.33 (a) and (c). A facility at which
a particular category of universal waste
is only accumulated, is not a destination
facility for purposes of managing that
category of universal waste.
FIFRA means the Federal Insecticide,
Fungicide, and Rodenticide Act (7
U.S.C. 136-136y).
Generator means any person, by site,
whose act or process produces
hazardous waste identified or listed in
part 261 of this chapter or whose act
first causes a hazardous waste to
become subject to regulation.
Large Quantity Handler of Universal
Waste means a universal waste handler
(as defined in this section) who
accumulates 5,000 kilograms or more
total of universal waste (batteries,
pesticides, or thermostats, calculated
collectively) at any time. This
designation as a large quantity handler
of universal waste is retained through
the end of the calendar year in which
5,000 kilograms or more total of
universal waste is accumulated.
On-site means the same or
geographically contiguous property
which may be divided by public or
private right-of-way, provided that the
entrance and exit between the
properties is at a cross-roads
intersection, and access is by crossing as
opposed to going along the right of way.
Non-contiguous properties owned by
the same person but connected by a
right-of-way which he controls and to
which the public does not have access,
are also considered on-site property.
Pesticide means any substance or
mixture of substances intended for
preventing, destroying, repelling, or
mitigating any pest, or intended for use
as a plant regulator, defoliant, or
desiccant, other than any article that:
(a) Is a new animal drug under
FFDCA section 201(w), or
(b) Is an animal drug that has been
determined by regulation of the
Secretary of Health and Human Services
not to be a new animal drug, or
(c) Is an animal feed under FFDCA
section 201(x) that bears or contains any
substances described by paragraph (a) or
(b) of this section.
Small Quantity Handler of Universal
Waste means a universal waste handler
(as defined in this section) who does not
accumulate more than 5,000 kilograms
total of universal waste (batteries,
pesticides, or thermostats, calculated
collectively) at any time.
Thermostat means a temperature
control device that contains metallic
mercury in an ampule attached to a
bimetal sensing element, and mercury-
containing ampules that have been
removed from these temperature control
devices in compliance with the
requirements of 40 CFR 273.13(c)(2) or
273.33(c)(2).
Universal Waste means any of the
following hazardous wastes that are
subject to the universal waste
requirements of 40 CFR part 273:
(a) Batteries as described in 40 CFR
273.2;
(b) Pesticides as described in 40 CFR
273.3; and
(c) Thermostats as described in 40
CFR 273.4.
Universal Waste Handler:
(a) Means:
(1) A generator (as defined in this
section) of universal waste; or
(2) The owner or operator of a facility,
including all contiguous property, that
receives universal waste from other
universal waste handlers, accumulates
universal waste, and sends universal
waste to another universal waste
handler, to a destination facility, or to
a foreign destination.
(b) Does not mean:
(1) A person who treats (except under
the provisions of 40 CFR 273.13 (a) or
(c), or 273.33 (a) or (c)), disposes of, or
recycles universal waste; or
(2) A person engaged in the off-site
transportation of universal waste by air,
rail, highway, or water, including a
universal waste transfer- facility.
Universal Waste Transfer Facility
means any transportation-related facility
including loading docks, parking areas,
storage areas and other similar areas
where shipments of universal waste are
held during the normal course of
transportation for ten days or less.
Universal Waste Transporter means a
person engaged in the off-site
transportation of universal waste by air,
rail,, highway, or water.
Subpart B—Standards for Small
Quantity Handlers of Universal Waste
§273.10 Applicability.
This subpart applies to small quantity
handlers of universal waste (as defined
in 40 CFR 273.6).
§273.11 Prohibitions.
A small quantity handler of universal
waste is:
(a) Prohibited from disposing of
universal waste; and
(b) Prohibited from diluting or
treating universal waste, except by
responding to releases as provided in 40
CFR 273.17; or by managing specific
wa.stes as provided in 40 CFR 273.13.
§273.12 Notification.
A small quantity handler of universal
waste is not required to notify EPA of
universal waste handling activities.
§ 273.13 Waste management
(a) Universal waste batteries. A small
quantity handler of universal waste
must manage universal waste batteries
in a way that prevents releases of any
universal waste or component of a
universal waste to the environment, as
follows:
(1) A small quantity handler of
universal waste must contain any
universal waste battery that shows
evidence of leakage, spillage, or damage
that could cause leakage under
reasonably foreseeable conditions in a
container. The container must be closed,
structurally sound, compatible with the
ccintents of the battery, and must lack
evidence of leakage, spillage, or damage
that could cause leakage under
reasonably foreseeable conditions.
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Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25545
(2) A small quantity handler of
universal waste may conduct the
following activities as long as the casing
of each individual battery cell is not
broached and remains intact and closed
(except that cells may be opened to
remove electrolyte but must be
immediately closed after removal):
(i) Sorting batteries by type;
(ii) Mixing battery types in one
container;
(iii) Discharging batteries so as to
remove the electric charge;
(iv) Regenerating used batteries;
(v) Disassembling batteries or battery
packs into individual batteries or cells;
(vi) Removing batteries from
consumer products; or
(vii) Removing electrolyte from
batteries.
(3) A small quantity handler of
universal waste who removes electrolyte
from batteries, or who generates other
solid waste (e.g., battery pack materials,
discarded consumer products) as a
result of the activities listed above, must
determine whether the electrolyte and/
or other solid waste exhibit a
characteristic of hazardous waste
identified in 40 CFR part 261, subpart
C.
(i) If the electrolyte and/or other solid
waste exhibit a characteristic of
hazardous waste, it is subject to all
applicable requirements of 40 CFR parts
260 through 272. The handler is
considered the generator of the
hazardous electrolyte and/or other
waste and is subject to 40 CFR part 262.
(ii) If the electrolyte or other solid
waste is not hazardous, the handler may
manage the waste in any way that is in
compliance with applicable federal,
state or local solid waste regulations.
(b) Universal waste pesticides. A
small quantity handler of universal
waste must manage universal waste
pesticides in a way that prevent releases
of any universal waste or component of
a universal waste to the environment.
The universal waste pesticides must be
contained in one or more of the
following:
(1) A container that remains closed,
structurally sound, compatible with the
pesticide, and that lacks evidence of
leakage, spillage, or damage that could
cause leakage under reasonably
foreseeable conditions; or
(2) A container that does not meet the
requirements of paragraph (b)(l) of this
Section, provided that the unacceptable
container is overpacked in a container
that does meet the requirements of
paragraph (b)(l) of this Section; or
(3) A tank that meets the requirements
of 40 CFR part 265 subpart J, except for
40 CFR 265.197(c), 265.200, and
265.201; or
(4) A transport vehicle or vessel that
is closed, structurally sound, compatible
with the pesticide, and that lacks
evidence of leakage, spillage, or damage
that could cause leakage under
reasonably foreseeable conditions.
(c) Universal waste thermostats. A
small quantity handler of universal
waste must manage universal waste
thermostats in a way that prevents .
releases of any universal waste or
component of a universal waste to the
environment, as follows:
(1) A small quantity handler of
universal waste must contain any
universal waste thermostat that shows
evidence of leakage, spillage, or damage
that could cause leakage under
reasonably foreseeable conditions in a
container. The container must be closed,
structurally sound, compatible with the
contents of the thermostat, and must
lack evidence of leakage, spillage, or
damage that could cause leakage under
reasonably foreseeable conditions.
(2) A small quantity handler of
universal waste may remove mercury-
containing ampules from universal
waste thermostats provided the handler:
(i) Removes the ampules in a manner
designed to prevent breakage of the
ampules;
(ii) Removes ampules only over or in
a containment device (e.g., tray or pan
sufficient to collect and contain any
mercury released from an ampule in
case of breakage);
(iii) Ensures that a mercury clean-up
system is readily available to
immediately transfer any mercury
resulting from spills or leaks from
broken ampules, from the containment
device to a container that meets the
requirements of 40 CFR 262.34;
(iv) Immediately transfers any
mercury resulting from spills or leaks
from broken ampules from the
containment device to a container that
meets the requirements of 40 CFR
262.34;
(v) Ensures that the area in which
ampules are removed is well ventilated
and monitored to ensure compliance
with applicable OSHA exposure levels
for mercury;
(vi) Ensures that employees removing
ampules are thoroughly familiar with
proper waste mercury handling and
emergency procedures, including
transfer of mercury from containment
devices to appropriate containers;
(vii) Stores removed ampules in
closed, non-leaking containers that are
in good condition;
(viii) Packs removed ampules in the
container with packing materials
adequate to prevent breakage during
storage, handling, and transportation;
and
(3)(i) A small quantity handler of
universal waste who removes mercury-
containing ampules from thermostats
must determine whether the following
exhibit a characteristic of hazardous
waste identified in 40 CFR part 261,
subpart C:
(A) Mercury or clean-up residues
resulting from spills or leaks; and/or
(B) Other solid waste generated as a
result of the removal of mercury-
containing ampules (e.g., remaining
thermostat units).
(ii) If the mercury, residues, and/or
other solid waste exhibit a characteristic
of hazardous waste, it must be managed
in compliance with all applicable
requirements of 40 CFR parts 260
through 272. The handler is considered
the generator of the mercury, residues,
and/or other waste and must manage it
is subject to 40 CFR part 262.
(iii) If the mercury, residues, and/or
other solid waste is not hazardous, the
handler may manage the waste in any
way,that is in compliance with
applicable federal, state or local solid
waste regulations.
§ 273.14 Labeling/marking.
A small quantity handler of universal
waste must label or mark the universal
waste to identify the type of universal
waste as specified below:
(a) Universal waste batteries (i.e., each
battery), or a container in which the
batteries are contained, must be labeled
or marked clearly with any one of the
following phrases: "Universal Waste—
Battery(ies), or "Waste Battery(ies)," or
"Used Battery(ies);"
(b) A container, (or multiple container
package unit), tank, transport vehicle or
vessel in which recalled universal waste
pesticides as described in 40 CFR
273.3(a)(l) are contained must be
labeled or marked clearly with:
(1) The label that was on or
accompanied the product as sold or
distributed; and
(2) The words "Universal Waste-
Pesticide(s)" or "Waste-Pesticide(s);"
(c) A container, tank, or transport
vehicle or vessel in which unused
pesticide products as described in 40
CFR 273.3(a)(2) are contained must be
labeled or marked clearly with:
(l)(i) The label that was on the
product when purchased, if still legible;
(ii) If using the labels described in
paragraph (c)(l)(i) of this section is not
feasible, the appropriate label as
required under the Department of
Transportation regulation 49 CFR part
172;
(iii) If using the labels described in
paragraphs (c)(l) (i) and (ii) of this
section is not feasible, another label
prescribed or designated by the waste
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25546 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
pesticide collection program
administered or recognized by a state;
and
(2) The words "Universal Waste-
Pesticide(s)" or "Waste-Pesticide(s)."
(d) Universal waste thermostats (i.e.,
each thermostat), or a container in
which the thermostats are contained,
must be labeled or marked clearly with
any one of the following phrases:
"Universal Waste—Mercury
Thermostat(s)," or "Waste Mercury
Thermostat(s)," or "Used Mercury
Thermostat(s)".
§273.15 Accumulation time limits.
(a) A small quantity handler of
universal waste may accumulate
universal waste for no longer than one
year from the date the universal waste
is generated, or received from another
handler, unless the requirements of
paragraph (b) of this section are met.
(b) A small quantity handler of
universal waste may accumulate
universal waste for longer than onetyear
from the date the universal waste'is
generated, or received from another
handler, if such activity is solely for the
purpose of accumulation of such
quantities of universal waste as
necessary to facilitate proper recovery,
treatment, or disposal. However, the
handler bears the burden of proving that
such activity is solely for the purpose of
accumulation of such quantities of
universal waste as necessary to facilitate
proper recovery, treatment, or disposal.
(c) A small quantity handler of
universal waste who accumulates
universal waste must be able to
demonstrate the length of time that the
universal waste has been accumulated
from the date it becomes a waste or is
received. The handler may make this
demonstration by:
(1) Placing the universal waste in a
container and marking or labeling the
container with the earliest date that any
universal waste in the container became
a waste or was received;
(2) Marking or labeling each
individual item of universal waste (e.g.,
each battery or thermostat) with the date
it became a waste or was received;
(3) Maintaining an inventory system
on-site that identifies the date each
universal waste became a waste or was
received;
(4) Maintaining an inventory system
on-site that identifies the earliest date
that any universal waste in a group of
universal waste items or a group of
containers of universal waste became a
waste or was received;
(5) Placing the universal waste in a
specific accumulation area and
identifying the earliest date that any
universal waste in the area became a
waste or was received; or
(6) Any other method which clearly
demonstrates the length of time that the
universal waste has been accumulated
from the date it becomes a waste or is
received.
§ 273.16 Employee training.
A small quantity handler of universal
waste must inform all employees who
handle or have responsibility for
managing universal waste. The
information must describe proper
handling and emergency procedures
appropriate to the type(s) of universal
waste handled at the facility.
§ 273.17 Response to releases.
(a) A small quantity handler of
universal waste must immediately
contain all releases of universal wastes
and other residues from universal
wastes.
(b) A small quantity handler of
universal waste must determine
whether any material resulting from the
release is hazardous waste, and if so,
must manage the hazardous waste in
compliance with all applicable
requirements of 40 CFR parts 260
through 272. The handler is considered
the generator of the material resulting
from the release, and must manage it in
compliance with 40 CFR part 262.
§ 273.18 Off-site shipments.
(a) A small quantity handler of
universal waste is prohibited from
sending or taking universal waste to a
place other than another universal waste
handler, a destination facility, or a
foreign destination.
(b) If a small quantity handler of
universal waste self-transports universal
waste off-site, the handler becomes a
universal waste transporter for those
self-transportation activities and must
comply with the transporter
requirements of subpart D of this part
while transporting the universal waste.
(c) If a universal waste being offered
for off-site transportation meets the
definition of hazardous materials under
49 CFR parts 171 through 180, a small
quantity handler of universal waste
must package, label, mark and placard
the shipment, and prepare the proper
shipping papers in accordance with the
applicable Department of
Transportation regulations under 49
CFR parts 172 through 180;
(d) Prior to sending a shipment of
universal waste to another universal
waste handler, the originating handler
must ensure that the receiving handler
agrees to receive the shipment.
(e) If a small quantity handler of
universal waste sends a shipment of
universal waste to another handler or to
a destination facility and the shipment
is rejected by the receiving handler or
destination facility, the originating
handler must either:
(1) Receive the waste back when
notified that the shipment has been
rejected, or
(2) Agree with the receiving handler
on a destination facility to which the
shipment will be sent.
(f) A small quantity handler of
universal waste may reject a shipment
containing universal waste, or a portion
of a shipment containing universal
wa.ste that he has received from another
handler. If a handler rejects a shipment
or a portion of a shipment, he must
contact the originating handler to notify
him of the rejection and to discuss
reshiprnent of the load. The handler
must:
(1) Send the shipment back to the
originating handler, or
l[2) If agreed to by both the originating
and receiving handler, send the
shipment to a destination facility.
(g) If a small quantity handler of
universal waste receives a shipment
containing hazardous waste that is not
a universal waste, the handler must
immediately notify the appropriate
regional EPA office of the illegal
shipment, and provide the name,
address, and phone number of the
originating shipper. The EPA regional
office will provide instructions for
managing the hazardous waste.
(h) If a small quantity handler of
universal waste receives a shipment of
non-hazardous, non-universal waste, the
handler may manage the waste in any
way that is in compliance with
applicable federal, state or local solid
waste regulations.
§273.19 Tracking universal waste
shipments.
A small quantity handler of universal
waste is not required to keep records of
shipments of universal waste.
§273.20 Exports.
A small quantity handler of universal
waste who sends universal waste to a
foreign destination must:
(a) Comply with the requirements
applicable to a primary exporter in 40
CFR 262.53, 262.56(a) (1) through (4),
(6), and (b) and 262.57;
(b) Export such universal waste only
upon consent of the receiving country
and in conformance with the EPA
Acknowledgement of Consent as
defined in subpart E of part 262 of this
chapter; and
(c) Provide a copy of the EPA
Acknowledgment of Consent for the
shipment to the transporter transporting
the shipment for export.
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Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25549
quantity handler of universal waste
must package, label, mark and placard
the shipment, and prepare the proper
shipping papers in accordance with the
applicable Department of
Transportation regulations under 49
CFR parts 172 through 180;
(d) Prior to sending a shipment of
universal waste to another universal
waste handler, the originating handler
must ensure that the receiving handler
agrees to receive the shipment.
(e) If a large quantity handler of
universal waste sends a shipment of
universal waste to another handler or to
a destination facility and the shipment
is rejected by the receiving handler or
destination facility, the originating
handler must either:
(1) Receive the waste back when
notified that the shipment has been
rejected, or
(2) Agree with the receiving handler
on a destination facility to which the
shipment will be sent.
(f) A large quantity handler of
universal waste may reject a shipment
containing universal waste, or a portion
of a shipment containing universal
waste that he has received from another
handler. If a handler rejects a shipment
or a portion of a shipment, he must
contact the originating handler to notify
him of the rejection and to discuss
reshipment of the load. The handler
must:
(1) Send the shipment back to the
originating handler, or
(2) If agreed to by both the originating
and receiving handler, send the
shipment to a destination facility.
(g) If a large quantity handler of
universal waste receives a shipment
containing hazardous waste that is not
a universal waste, the handler must
immediately notify the appropriate
regional EPA office of the illegal
shipment, and provide the name,
address, and phone number of the
originating shipper. The EPA regional
office will provide instructions for
managing the hazardous waste.
(h) If a large quantity handler of
universal waste receives a shipment of
non-hazardous, non-universal waste, the
handler may manage the waste in any
way that is in compliance with
applicable federal, state or local solid
waste regulations.
§ 273.39 Tracking universal waste
shipments.
(a) Receipt of shipments. A large
quantity handler of universal waste
must keep a record of each shipment of
universal waste received at the facility.
The record may take the form of a log,
invoice, manifest, bill of lading, or other
shipping document. The record for each
shipment of universal waste received
must include the following information:
(1) The name and address of the
originating universal waste handler or
foreign shipper from whom the
universal waste was sent;
(2) The quantity of each type of
universal waste received (e.g., batteries,
pesticides, thermostats);
(3) The date of receipt of the shipment
of universal waste.
(b) Shipments off-site. A large
quantity handler of universal waste
must keep a record of each shipment of
universal waste sent from the handler to
other facilities. The record may take the
form of a log, invoice, manifest, bill of
lading or other shipping document. The
record for each shipment of universal
waste sent must include the following
information:
(1) The name and address of the
universal waste handler, destination
facility, or foreign destination to whom
the universal waste was sent;
(2) The quantity of each type of
universal waste sent [e.g., batteries,
pesticides, thermostats);
(3) The date the shipment of universal
waste left the facility.
(c) Record retention. (1) A large
quantity handler of universal waste
must retain the records described in
paragraph (a) of this section for at least
three years from the date of receipt of
a shipment of universal waste.
(2) A large quantity handler of
universal waste must retain the records
described in paragraph (b) of this
section for at least three years from the
date a shipment of universal waste left
the facility.
§273.40 Exports.
A large quantity handler of universal
waste who sends universal waste to a
foreign destination must:
(a) Comply with the requirements
applicable to a primary exporter in 40
CFR 262.53, 262.56(a)(l) through (4),
(6), and (b) and 262.57;
(b) Export such universal waste only
upon consent of the receiving country
and in conformance with the EPA
Acknowledgement of Consent as
defined in subpart E of part 262 of this
chapter; and
(c) Provide a copy of the EPA
Acknowledgement of Consent for the
shipment to the transporter transporting
the shipment for export.
Subpart D—Standards for Universal
Waste Transporters
§273.50 Applicability.
This subpart applies to universal
waste transporters (as defined in 40 CFR
273.6).
§273.51 Prohibitions.
A universal waste transporter is:
(a) Prohibited from disposing of
universal waste; and
(b) Prohibited from_diluting or
treating universal waste, except by
responding to releases as provided in 40
CFR 273.54.
§273.52 Waste management.
(a) A universal waste transporter must
comply with all applicable U.S.
Department of Transportation
regulations in 49 CFR part 171 through
180 for transport of any universal waste
that meets the definition of hazardous
material in 49 CFR 171.8. For purposes
of the Department of Transportation
regulations, a material is considered a
hazardous waste if it is subject to the
Hazardous Waste Manifest
Requirements of the U.S. Environmental
Protection Agency specified in 40 CFR
part 262. Because universal waste does
not require a hazardous waste manifest,
it is not considered hazardous waste
under the Department of Transportation
regulations.
(b) Some universal waste materials are
regulated by the Department of
Transportation as hazardous materials
because they meet the criteria for one or
more hazard classes specified in 49 CFR
173.2. As universal waste shipments do
not require a manifest under 40 CFR
262, they may not be described by the
DOT proper shipping name "hazardous
waste, (1) or (s), n.o.s.", nor may the
hazardous material's proper shipping
name be modified by adding the word
"waste".
§273.53 Storage time limits.
(a) A universal waste transporter may
only store the universal waste at a
universal waste transfer facility for ten
days or less.
(b) If a universal waste transporter
stores universal waste for more than ten
days, the transporter becomes a
universal waste handler and must
comply with the applicable
requirements of subparts B or C of this
part while storing the universal waste.
§ 273.54 Response to releases.
(a) A universal waste transporter must
immediately contain all releases of
universal wastes and other residues
from universal wastes.
(b) A universal waste transporter must
determine whether any material
resulting from the release is hazardous
waste, and if so, it is subject to all
applicable requirements of 40 CFR parts
260 through 272. If the waste is
determined to be a hazardous waste, the
transporter is subject to 40 CFR part
262.
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25550 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations
§273.55 Off-site shipments.
(a) A universal waste transporter is
prohibited from transporting the
universal waste to a place other than a
universal waste handler, a destination
facility, or a foreign destination.
(b) If the universal waste being
shipped off-site meets the Department of
Transportation's definition of hazardous
materials under 49 CFR 171.8, the
shipment must be properly described on
a shipping paper in accordance with the
applicable Department of
Transportation regulations under 49
CFR part 172.
§273.56 Exports.
A universal waste transporter
transporting a shipment of universal
waste to a foreign destination may not
accept a shipment if the transporter
knows the shipment does not conform
to the EPA Acknowledgment of
Consent. In addition the transporter
must ensure that:
(a) A copy of the EPA
Acknowledgment of Consent (. as,
accompanies the shipment; and
(b) The shipment is delivered to the
facility designated by the person
initiating the shipment.
Subpart E—Standards for Destination
Facilities
§273.60 Applicability.
(a) The owner or operator of a
destination facility (as defined in 40
CFR 273.6) is subject to all applicable
requirements of parts 264, 265, 266, 268,
270, and 124 of this chapter, and the
notification requirement under section
SOlOofRCRA:
(b) The owner or operator of a
destination facility that recycles a
particular universal waste without
storing that universal waste before it is
recycled must comply with 40 CFR
261.6(c)(2).
§273.61 Off-site shipments.
(a) The owner or operator of a
destination facility is prohibited from
sending or taking universal waste to a
place other than a universal waste
handler, another destination facility or
foreign destination.
(b) The owner or operator of a
destination facility may reject a
shipment containing universal waste, or
a portion of a shipment containing
universal waste; If the owner or operator
of the destination facility rejects a
shipment or a portion of a shipment, he
must contact the shipper to notify him
of the rejection and to discuss
reshipment of the load. The owner or
operator of the destination facility must:
(1) Send the shipment back to the
original shipper, or
(2) If agreed to by both the shipper
and the owner or operator of the
destination facility, send the shipment
to another destination facility.
(c) If the a owner or operator of a
destination facility receives a shipment
containing hazardous waste that is not
a universal waste, the owner or operator
of the destination facility must
immediately notify the appropriate
regional EPA office of the illegal
shipment, and provide the name,
address, and phone number of the
shipper. The EPA regional office will
provide instructions for managing the
hazardous waste.
(d) If the owner or operator of a
destination facility receives a shipment
of non-hazardous, non-universal waste,
the owner or operator may manage the
waste in any way that is in compliance
with applicable federal or state solid
waste regulations.
§273.62 Tracking universal waste
shipments.
(a) The owner or operator of a
destination facility must keep a record
of each shipment of universal waste
received at the facility. The record may
take the form of a log, invoice, manifest,
bill of lading, or other shipping
document. The record for each
shipment of universal waste received
must include the following information:
(1) The name and address of the
universal waste handler, destination
facility, or foreign shipper from whom
the universal waste was sent;
(2) The quantity of each type of
universal waste received (e.g., batteries,
pesticides, thermostats);
(3) The date of receipt of the shipment
of universal waste.
(b) The owner or operator of a
destination facility must retain the
records described in paragraph (a) of
this section for at least three years from
the date of receipt of a shipment of
universal waste.
Subpart F—Import Requirements
§273.70 Imports.
Persons managing universal waste
that is imported from a foreign country
into the United States are subject to the
applicable requirements of this part,
immediately after the waste enters the
United States, as indicated below:
(a) A universal waste transporter is
subject to the universal waste
transporter requirements of subpart D of
this part.
(b) A universal waste handler is
subject to the small or large quantity
handler of universal waste requirements
of subparts B or C, as applicable.
(c) An owner or operator of a
destination facility is subject to the
destination facility requirements of
subpart E of this part.
Subpart G—Petitions to Include Other
Wastes Under 40 CFR Part 273
§273.80 General.
(a) Any person seeking to add a
hazardous waste or a category of
hazardous waste to this part may
petition for a regulatory amendment
under this subpart and 40 CFR 260.20
and 260.23.
(b] To be successful, the petitioner
musl: demonstrate to the satisfaction of
the Administrator that regulation under
the universal waste regulations of 40
CFR part 273 is: appropriate for the
waste or category of waste; will improve
management practices for the waste or
category of waste; and will improve
implementation of the hazardous waste
program. The petition must include the
information .required by 40 CFR
260.20(b). The petition should also
address as many of the factors listed in
40 CFR 273.81 as are appropriate for the
waste or waste category addressed in the
petition.
(c) The Administrator will evaluate
petitions using the factors listed in 40
CFR 273.81. The Administrator will
grant or deny a petition using the factors
listed in 40 CFR 273.81. The decision
will be based on the weight of evidence
showing that regulation under 40 CFR
part 273 is appropriate for the waste or
category of waste, will improve
management practices for the waste or
category of waste, and will improve
implementation of the hazardous waste
program.
§ 273.81 Factors for petitions to include
other wastes under 40 CFR part 273.
(a) The waste or category of waste, as
generated by a wide variety of
generators, is listed in subpart'D of part
261 of this chapter, or (if not listed) a
proportion of the waste stream exhibits
one or more characteristics of hazardous
waste identified in subpart C of part 261
of this chapter. (When a characteristic
waste is added to the universal waste
regulations of 40 CFR part 273 by using
a generic name to identify the waste
category (e.g., batteries), the definition
of universal waste in 40 CFR 260.10 and
273.6 will be amended to include only
the hazardous waste portion of the
waste category (e.g., hazardous waste
batteries).) Thus, only the portion of the
waste stream that does exhibit one or
more characteristics (i.e., is hazardous
waste) is subject to the universal waste
regulations of 40 CFR part 273;
(b) The waste or category of waste is
not exclusive to a specific industry or
group of industries, is commonly
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Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25551
generated by a wide variety of types of
establishments (including, for example,
households, retail and commercial
businesses, office complexes,
conditionally exempt small quantity
generators, small businesses,
government organizations, as well as
large industrial facilities);
(c) The waste or category of waste is
generated by a large number of
generators (e.g., more than 1,000
nationally) and is frequently generated
in relatively small quantities by each
generator;
(d) Systems to be used for collecting
the waste or category of waste
(including packaging, marking, and
labeling practices) would ensure close
stewardship of the waste;
(e) The risk posed by the waste or
category of waste during accumulation
and transport is relatively low compared
to other hazardous wastes, and specific
management standards proposed or
referenced by the petitioner (e.g., waste
management requirements appropriate
to be added to 40 CFR 273.13, 273.33,
and 273.52; and/or applicable
Department of Transportation
requirements) would be protective of
human health and the environment
during accumulation and transport;
(f) Regulation of the waste or category
of waste under 40 CFR part 273 will
increase the likelihood that the waste
will be diverted from non-hazardous
waste management systems (e.g., the
municipal waste stream, non-hazardous
industrial or commercial waste stream,
municipal sewer or stormwater systems)
to recycling, treatment, or disposal in
compliance with Subtitle C of RCRA.
(g) Regulation of the waste or category
of waste under 40 CFR part 273 will
improve implementation of and
compliance with the hazardous waste
regulatory program; and/or
(h) Such other factors as may be
appropriate.
[FR Doc. 95-11143 Filed 5-10-95; 8:45 am]
BILLING CODE 6560-50-P
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