Wednesday
November 19, 1980
Part III
Protection Agency
Hazardous Waste Management System-
Mining and Cement Kiln Wastes
Exemptions; Small Quantity Generator
Standards; Generator Waste
Accumulation Amendment; Hazardous
Waste Spill Response Exemption, and
Clarification of Interim Status
Requirements
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;;ygg||'__ federal Register / Vol. 4ff, No. 225 / Wednesday, November 19, 1980 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40CFRPiirt261
{SWH-FRL 1675-1 j
Identification and Listing of Hazardous
Waste
AGENCY: Environmental Protection
Agency,
ACTION: Interim final amendment to rule
with request for comments.
SUMMARY: This regulation amends the
hazardous waste regulations (40 CFR
i 261.4(b)) to exclude from regulation
Under Subtitle C of the, Reso,prce
Conservation and Recovery Act (l) solid
waste from the extraction, beneficiation
and processing of ores and minerals
(including coal), including phosphate
rock and overburden from the mining of
uranium ore and (2) cement kiln dust
wastes, This notion is being taken to
bring the regulation into conformance
with Section 7 of the recently enacted
Solid Waste Disposal Act Amendments
of 19BQ, The Agency, for the time being,
is interpreting the scope of these
exclusions broadly but is unsure that
this interpretation is consistent with the
Jntqnt of the Congress. Therefore, over
the next 90 Says, it intends to carefully
examine the legislative history of the
statutory amendment and consider the
public comments being solicited by this .
action. Based on this r,gy|ew, the
Agency, in subsequent rulemaking
action, may further narrow the exclusion
being promulgated today.
DATE: Effective Date: November 19, 1980?
......
. promulgateS as an'interim Una! ruie.'The .....
Agency will accept comments on it until
January 19, 1981.
ADDRESSES: Comments on the
amendment should be sent to Pocket
Clerk (Docket No. 3001), Office of Solid
Waste (WH-565), U.S. Environmental
Protection Agency, 401 M Street S W.,
Washington, D.C. 20460.
FOR FURTHER INFORMATION CONTACT:
For general information, contact Alfred
W. Llndpey, Office of Solid Waste, U.S.
Environmental Protection Agency, 401 M
Street SW., Washington, D.C. 20460,
(202) 755-918S. For information on
Implementation, contact:*
Region it Dennis Huebner, Chief, Radiation,
Wqfte Management Branch, John F.
Kennedy Building, Boston, Massachusetts
02203, (617) 223-5777
Region II. Dr. Ernest Regna, Chief, Solid
Waste Branch, 28 Federal Plaza, New York,
New Vorli, 10007, (212) 264-0504/5
Region III. Robert L. Allen, Chief, Hazardous
Materials Branch, 6th and Walnut Streets,
Philadelphia, Pennsylvania 19106, (215)
597-0980
Region IV, James Scarbrough, Chief,
Residuals Management Branch, 345
Courtland Street NE., Atlanta, Georgia .
30365, (404) 881-3016
Region V, Karl J. Klepitsch, Jr., Chief, Waste
Management Branch, 230 South Dearborn
Street, Chicago, Illinois 60604, (312) 886-
6148 -,,
Region VI, R. Stan Jorgensen, Acting Chief,
Solid Waste Branch, 1201 Elm Street, First
International Building, Dallas, Texas 75270,
[214) 787-2645
Region VII, Robert L. Morby, Chief,
Hazardous Materials Branch, 324 E. lith
Street, Kansas City, Missouri 64106, (816)
374-3307
Region VIII, Lawrence P. Gazda, Chief,
Waste Management Branch, 1860 Lincoln
Street, Denver, Colorado 80203, (303) 837-
2221
Region IX, Arnold R. Den, Chief, Hazardous
Materials Branch, 215'Fremont Street, San
Francisco, California 94105, (415) 556-4606
Region X, Kenneth D. Feigner, Chief, Waste
Management Branch, 1200 Sixth Avenue,
Seattle, Washington 98101, (206) 442-1260
SUPPLEMENTARY INFORMATION:
I. Reason and Basis for Today's
Amendments
On May 19,1980, EPA promulgated
regulations implementing Subtitle C of
the Resource Conservation and
Recovery Act (RCRA). See 45 FR 33066-
33588. These regulations define solid
wastes and hazardous wastes and
establish requirements applicable to
generators, transporters, treaters, storers
and disposers of hazardous wastes.
These regulations also require owners
and operators of hazardous waste
treatment, storage and disposal facilities
to obtain ggjRA permits.
The definition of solid waste is
provided in § 261.2 of these regulations.
The definition of hazardous waste is
provided in § 261.3 of these regulations.
Both definitions are sufficiently broad to'
include many solid wastes generated in
the extraction, beneficiation and
processing of ores and minerals,
exclusive of mining overburden returned
to the mine site (see § 261.4(b)(3).)
Specifically, eight mining and mineral
processing wastes (EPA hazardous
waste Nos. FO13-FO15 and KO64-
KO68) were listed as hazardous wastes
in § § 261.31 and 261.32 of the May 19
regulations (see 45 FR 33123-33124). In
addition, other mining and mineral
processing wastes may be hazardous
wastes because th'ey exhibit one or
more of the characteristics of hazardous
wastes in Subpart C of Part 261. By
virtue of these definitions, -a number of
mining and mineral processing wastes
Will be subject to the regulations on
November 19,1980, the effective date of
the regulations.
Additionally, some cement kiln dust
waste could be hazardous waste under
the regulations, if it exhibits any of the
characteristics of hazardous waste in
Subpart C of Part 261. Thus, some
cement kiln dust waste may be subject
to the regulations on and after
November 19,1980.
, -In Section 7 of the recently enacted
Solid Waste Disposal Act Amendments
of 1980 (P.L. 94-482, October 21,1980),
the Congress amended Section 3001 of
RCRA to prohibit EPA from regulating
certain wastes under Subtitle C of
RCRA until after completion of Certain
studies and certain rulemaking. Among
these wastes are (1) "solid waste from
the extraction, beneficiation and
processing of ores and minerals,
including phosphate rock and
overburden from the mining of uranium
ore" and (2) "cement kiln dust waste."
Accordingly EPA is today amending its
regulations, at § 261.4, to incorporate
this statutory change.
Several trade associations,
representing the mining and cement
industries, have asked EPA to amend its
regulations by November 19,1980, the
effective date of these regulations, to
incorporate the 1980 amendments
concerning these wastes; In addition
these associations have sought a
clarification of the scope of the
exclusion, particularly regarding the
types of mining operations that are
excluded. The statutory exclusion of
mining wastes in Section 3001(b)(3) is
limited to "solid waste from the
extraction, beneficiation and processing
of ores and minerals." One mining trade
association has argued that this
exclusion covers wastes from the
exploration, mining, milling, smelting
and refining of ores and minerals
(including coal.)
In the interest of providing the mining
and cement industries clear guidance on
whether they are subject to the
regulations, EPA is amending the
regulations before the November 19
date. At the same time EPA questions
whether the Section 3001(b)(3) was to be
interpreted as broadly as the trade
• associations suggest. To resolve these
questions, the Agency will have to
examine carefully the legislative history
and consult with the mining and cement
industries and the public. The Agency
could not accompish this by November
19,1980, given the extremely large
workload with which it is burdened in
developing the Phase II regulations, in
responding to other requests for
regulatory amendments and
interpretations, and in responding to
petitions for judicial review of the
regulations.
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Federal Register / Vol. 45, No. 225 /Wednesday, November 19, 1.980 / Rules and -Regulations, 76619
Consequently, the Agency has
decided to provide an immediate but
temporary accommodation of the •
requests on this matter by promulgating
today interim final amendments to
§ 261.4(b) which provide the requested
exclusion using the language of the
statutory amendments. Until the Agency
takes further rulemaking .action on this
matter, it will interpret the language of
today's-amendments, with respect to the
mining and mineral processing waste
exclusion, to include solid waste from
the exploration, mining, milling, smelting
and refining of ores and minerals.
This exclusion does not, however,
apply to solid wastes, such as spent
solvents, pesticide wastes, and
discarded commercial chemical
products, that are not uniquely
associated with these mining and allied
processing operations, or cement kiln
operations. Therefore, should either
industry generate any of these non-
indigenous wastes and the waste is
identified or listed as hazardous jmder
Part 261 of the regulations, the Waste is
hazardous and must be managed in
conformance with the Subtitle C
regulations.
II. Intended Reconsideration of Todays
Amendments
The Agency fully intends to consider
the appropriate scope of the statutory
exclusion and may well take rulemaking
action to lessen the scope ,of the
exclusion being promulgated today. To
aid in this consideration, the Agency is
soliciting public comments on this
matter. In particular EPA questions
whether Congress intended to exclude
(1) wastes generated in the smelting,
refining and other processing of ores
and minerals that are further removed
from, the mining and beneficiation of
such ores and minerals, (2) wastes
generated during exploration for mineral
'deposits and (3) wastewater treatment
and air emission control sludges
generated by the mining and mineral
processing industry. EPA specifically
seeks comment on whether such wastes
should be part of the exclusion. EPA —
also seeks comment on how it might
distinguish between excluded and non-
excluded solid wastes.
If EPA narrows the scope,of. the
exclusion being promulgated today in
future rulemaking,. those who generate,
transport, 'store, treat or dispose of
wastes affected,by such a change will
have six months to prepare for
compliance with the regulations. This
•;, six month delay in the effective, date is
provided under authority of Section
3Q10(b) of RCRA. '-.,..
In addition to the consideration of the
scope of the exclusion discussed above,
the Agency will be considering
regulatory amendments to implement
other provisions of Seption 3001(b)(3).
Section 3ppl(b)(3j(B) recognizes EPA
authority to issue regulations under
Section 2002 of RCRA to place
requirements on owners and operators
of disposal sites for excluded wastes.
These requirements concern
identification and recording of
information on the location of disposal
sites as well as on the composition of
the wastes that are disposed. EPA also
invites public comment on how it should
formulate such, requirements.
III. Effect of Today's Amendments
Today's amendments relieve persons
who generate or manage hazardous
wastes produced in, and unique to, the
exploration, mining, milling, smelting or
refining of ores or minerals and persons-
who generate or manage a cement kiln
dust waste from having to comply with
EPA's regulations under Subtitle C of
RCRA with respect to these wastes.
Owners and operators of existing
treatment, storage and disposal facilities
do no t ha ve to submit a Part A, RCRA
permit application by November 19,
1980, or comply with the interim status
standards of Part 265 after November 19,
1980, with respect to _such wastes. Also,
owners and operators of new faciKti.es
for the treatment, storage or disposal of
'the subject wastes will not have to
apply for and obtain a RCRA permit
before constructing or operating such
facilities,. •"'/-"
Today's action does not relieve
persons who generate or manage those
wastes herein discussed from
, compliance with other Federal and State
regulations including State regulations
designed to implement Subtitle D of
RCRA and State regulations being
implemented in lieu of the Federal
Subtitle C regulations where the State
has interim or full authorization under
Section 3006 of RCRA.
IV. Relationship to Final Listing of
Certain Hazardous Waste in § § 261.31
and 261.32
On November 12,1980, in a separate
rulemaking action [see 45 PR 74884), the
Agency has finalized'the list of most of
the hazardous wastes listed in §§ 261.31
and 261.32. Included hi this action.was
firialization of seven of .the mining and
mineral processing: wastes mentioned
above (EPA hazardous waste nos. F014-
15 and K064--68). One of the wastes
previously mentioned (F013) was
deleted from the list of hazardous waste
(§, 261.31) in that separate action.
Because of the Agency's uncertainty .
with respect to the scope of the
statutory amendments, as discussed
above, it has gone ahead with the
finalizatibn of the aforementioned listed
wastes. Notwithstanding, the effect qf -
today's action is to suspend those final
listings of hazardous wastes, unless arid
until the Agency reduces the scope of
today's .exclusion in subsequent
rulemaking action. :
V. Coal Mining Waste -
The Solid Waste Disposal Act
Amendments of 1980 also included
special provisions (Sections 1006(c) and
3005(f)) designed to coordinate
regulation'of coal mining waste with the
requirements of tHe Surface Mining
Control and Reclamation Act, 30 U.S.C.
§ 1201 et seg. EPA believes that the3e,
provisions present problems of legal
interpretation which cannot be resolved
by November 19,1980. The Agency may
seek public, comment on its
interpretation of those provisions in . '
later rulemaking actions, This interim
final rule does not attempt to interpret
the scope of Sections 1006(c) and 3005(f).
However, since coal is arguably a
"mineral or ore" under Section .
3001(b}(3), wastes from "the extraction,
beneficiation arid processing of coal are
excluded from RCRA Subtitle C
regulation in today's amendment to
§ 26i;4(b). Until EPA'has had an
opportunity to analyze the intended
scope of the exclusion, the terms v
"extraction, beneficiation and
processing" will be interpreted broadly
to include coal exploration, mining,
cleaning, classification, and other
processing activities. As with other
elements of this exclusion, EPA will be:
examining this exclusion, particularly
the exclusions for classification, and
other processing activities', in more
detail later and may decide to narrow
its scope.
VI. Effective Date
Section 3010(b) of RCRA provides that
EPA's hazardous waste regulations and
• revisions thereto take effect six months
after their promulgation. The purpose of
this requirement is to allow persons
handling hazardous wastes sufficient
lead tune to prepare to comply with -
major new regulatory requirements. The
amendments promulgated today,
however, serve to put in regulatory form
what is already stated in statute. To
establish a deferred effective date
would only serve to confuse the
regulated community. Consequently, the
Agency is establishing an immediate,
effective date for this amendment.
VII. Request for Comments
*
The Agency invites comments on
these amendments and on the issues
discussed in this preamble and,
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76620 Federal Register / Vol. 45, No. 225 / Wednesday, November 19, 1980 / Rules and Regulations
HIM1
»
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therefore, is providing a 60-day comment
period.
Dwtcd; November 14,1980.
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Douglas M, Costle,
Title 40 of the Code of Federal '
Regulations is amended by adding the
following paragraphs to § 261.4(b):
5261.4 fAmended]
»'" * * # '" * ' "fc "'" """ "; :"
(b)
[GJ Solid waste from the extraction, .
beneficiation and processing of ores and
minerals (Including coal), including
phosphate rock and overburden from the
mlWng^ of uranium ore. .
"" {7J Cement "kiln dust waste.
Trhese amendments are issued under
the authority of Sections 1006, 2002(a)
and 3061 "of the Solid Waste Disposal
Act, as amended by the Resource
Conservation and Recovery Act of 1976
{RCRA), as amended, 42 U.S.C. 6905,
6§l?(a) and 6921,
!»* Dot '
40 CFR Parts 261 and 262
'f''';•' Hazaird'ousWaste Management
System: Identification and Listing of
;> Hazardous Waste Standards for
,i'1 i.r:,Gfneralorsip^,ftazardous Waste",_' ,"""
l .j ', 15', "-|"ll:; 11 iwii'is iii jii'Sl t'lfrjii > ft!!, ,11 BSi ;'i i* •:«till •'!. • "
AGENCY: Environmental Protection
Agency.
ACTION: Irjterim ppal rules, and request
1 : for comments. ' •
SUMMARY; In regulations promulgated in
!v|ay, 1980, establishing a federal
program for the management of
hazardous wastes, EPA excluded from
full regufatipn persons handling
hazardous wastes generated in small
quantities (40 CFR 261.5.45 fR 33066,
33120 (May 1Q, 1980)). This amendment
clarifies the operation of the special
requirements for hazardous waste
generated by small quantity generators.
Part 202 of the regulations has also been
amended to ensure that these generators
determine wh'ether their wastes are
•• hazardous.
DATE: Effective Date: November 19,1980.
Comment Date: EPA will accept
public comments on this regulation until
January 19,1981.
ADDRESSES: Comments on this
regulation should be sent to the Docket
Clerk [Docket Number 3001], Office of
Solid Waste (WH-S62), U.S.
Environmental Protection Agency, 401M
Street, S.W., Washington, D.C. 20460.
The public docket for this regulation is
located in Room 2711, U.S.
Environmental Protection Agency, 401 M
Street, S.W., Washington, D.C. and is
available for viewing from 9 a.m. to 4
p.m. Monday through Friday, excluding
holidays. Among other, items, the docket
contains the background document for
this regulation which has been revised
to accommodate these amendments.
FOR FURTHER INFORMATION CONTACT:
Robert Holloway, Office of Solid Waste,
U.S. Environmental Protection Agency,
401 M Street, S.W., Washington, D.C.
20460, (202) 755-9200.
SUPPLEMENTARY INFORMATION:
I. Introduction
Pursuant to Subtitle C of the Resource
Conservation and Recovery Act of 1976,
as amended ("RCRA"), 42 U.S.C. § 6901
et seq., EPA recently promulgated
regulations establishing a
comprehensive regulatory program for
the management and control of
hazardous wastes (45 FR 33066 (May 19,
1980)). The regulations, among other
things, identify the characteristics of
ii hazardous wastes, list particular wa.stes
as hazardous, and establish standards
fpj genera tors and transporters of
hazardous waste and owners and '
operators of hazardous waste t
'management facilities. '
The regulations also define special
requirements for hazardous waste
generated by generators who produce
i" less than i.bbb kilograms of hazardous
waste during a calendar month. (See 40
CFR 261.5, 45 FR 33120). Hazardous
waste generated by a small quantity
generator is generally excluded from full
regulation provided the generator stores,
treats, or disposes of his hazardous
waste in facilities specified as
acceptable or ensures that his
hazardous waste is delivered to such
facilities. However, if a small quantity
generator generates or accumulates
acutely hazardous waste in quantities
greater than specified, or if he .
accumulates more than a total of 1,000
kilograms of hazardous waste at any , .
time, all quantities of hazardous wastes
for which an exclusion level is exceeded
are fully regulated.
Since the publication of the regulation,
members of the regulated community
have raised a number of questions *
concerning the operation of the small
quantity .exclusion. EPA has been
persuaded that, in certain respects, the \
regulation is ambiguous and does.not
clearly address certain situations. In
addition., the regulation contains certain
technical errors which would cause the
exclusion to operate in a manner not
intended by the Agency or contrary to
the manner explained in the preamble to
the regulation and the supporting
materials. This amendment to the
regulation is intended to clarify the
original regulation and to correct the
errors contained in it.
The revisions to the small quantity
generator exclusion, principally concern
five aspects of the regulation: the
determination of who is a small quantity
generator; the requirements applicable
to hazardous waste accumulated on-site;
the requirements applicable to acutely
hazardous wastes; the conditions
applicable to wastes excluded from full
regulation; and the requirements
applicable to mixtures. The changes to
the regulation are described in this
preamble. The underlying rationale and
basis for § 261.5 remain unchanged and
are set forth in the preamble to the May
regulation. (See 45 FR at 33102-33105.)
The background document supporting
the requirements for small quantity '
generators has been revised to explain
in greater detail the operation of § 261.5.
In addition to describing the-changes
made by today's amendments, the
background document provides
guidance on the operation of regulations
applicable to the small quantity
generator. '•
It should be noted that the Agency has
received a petition from the National
Solid Waste Management Association
("NSWMA") which requests the Agency
to make substantive revisions to § 261.5.
EPA has noticed and requested
comments on the petition. (45 68409
(October 15, I960).) The amendment to
§ 261.5 published today does not
constitute the Agency's response to' the
NSWMA petition. EPA's action with
regard to that petition will be the subject
to further notice and/or rulemakihg.
II. Amendments to the Regulation
A. Determination of Small Quantity
Generator Status.
Section 261.5(a) of the May regulation
set forth the general test for determining
who may qualify as a small quantity
generator:
* * * if a person generates, in a calendar
month, a total of less than 1,000 kilograms of
hazardous wastes, those wastes are not
subject to regulation * * *.
Since publication of the regulation,
persons have raised two questions basic
to the operation of this section: (a) .
should the section be keyed to
generators rather than persons; and (b)
what wastes should be counted in
determining the amount of waste
generated in a calendar month? The
regulation has been revised to resplve
both of these questions.
' ''' '
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^Federal Register ./.-Vol. 45, No. 225 / Wednesday, November 19, 1980 / Rules arid ReguIations^-^6621
Although it was EPA's intent to key
the exclusion levels established in
" §" 261.5 to individual generation sites, the
May 19,1980 regulation refers to
^persons" rather than "generators". As
1 these terms are defined in § 260.10 of
this Chapter, a corporation (i.e., &
person) may comprise numerous ,
facilities that generate hazardous waste,
(Le., generators). Read literally,
- therefore, § 261.5 makes the Subtitle C
• regulations and the notification
requirements of Section 3010 of RCRA
fully applicable to a company which :
: A ; generates, in; the aggregates- more than
the quantity exclusion level but each of .
whose facilities generates less than that
•"._,-• amount. The revisep!:regulatipn replaces
the prior reference, to "persons" with
,. ':.; "generators," making it clear that . ; ;
individual facilities which generate -.:
. hazardous waste in a quantity below the
:. exclusion levels may qualify as small
.quantity generators. . . ,
To provide further clarification, the
amended regulation defines a small
quantity generator as a generator who
generates less than 1000 kilograms of
hazardous waste in a calendar month...
Thus, this amended regulation makes ,
clear that a generator may be a small
quantity generator in one month and a
large quantity generator in another
: . month. The, recordkeeping and ^reporting
• requirements of Part 262 apply, however,
'••'• . .only-to those periods in whiqh the
' generator's hazardous; waste is subject ;
to full regulation under Part 262; Thus/,
•'• •' 'for example,; the annual report of a
"•' generator whb|e w'aste is subject to-full •;
regulation under Part 262 for three
months in a year would cover the .
generator's activity only for those three
: / months. ''.'.''.
'The second issue resolved.by the •
amended regulation concerns which
hazardous wastes should be counted in
determining,whether a generator
generates 1000 kilograms pf hazardous
waste in a calendar month. One
» - . question is'how the exclusionbf;
hazardous wastes that are used, re-used,
; . recycled or reclaimed under § 261.6
,,,4 ., relates.to .the. § 261.5 requirements.
i i ~ v- *,Appth^r se't ,bf questipns fecuses pri the .
,;.",f!'y generator'-wjjq rembves.wastei jirbm.on-
;|;.,-';/.' sitejstprage or whosb; pri-siti treatment. -,'
.",.." TliiB small quantitj/;geheratpr' ^ '' ' •-.'.'.
. ". requirements have been revised by the
addition pf a new paragraph, § 261.5(c),
tp.Glarify whiph hazardous, wastes that
•-,' ^ are bising used, re-used, recycled or
. reclaimed are .included in determining
small generator sjtatus. Sectipn 261.6(a)
;;! ..excludes frpni regulation wastes^ihat are
hazardous because they meet EPA
characteristics and that are beneficially :
used or re-used or legitimately recycled
or reclaimed. Wastes that are excluded
under § 261.6(a) are not included.in the.
quantity determination of § 261.5.
Section 261,6(b)i however, makes
sludges, listed hazardous wastes, and
hazardous wastes containing listed •
hazardous wastes subject to full
regulation during storage and ,
transportation prior to their use, re-use,
recycling or reclamation. Because these
wastes are subject to Subtitle C
regulation, the revised § 261.5 makes
clear that these wastes must.be included,
in the quantity determination and are\
subject to the other requirements of that;
section. Although, this is a result that a' •
. careful reading pf the May regulation
would support, the revised§ 261.5
sHould resolve any ambiguity on this- ;
issue. '.'..•'' .... .
A number of persons,stated that use
of the word "generates" in § 261.5 ,' "
creates some uncertainty about what
wastes should be counted in
determining .eligibility for small quantity
generator status. These commenters
believed that, without clarification, the
rule might lead to double-counting of
wastes when they are also treated or;
stored onTsite; If, for example, a .
generator's manufacturing process "
generated 600 kilograms of hazardous
• waste" in a mbnth, arid he'placed that • ;
waste in storage.-persbns were '' ;
: .uncer.tain whether, when that waste was
removed from storage, the 600 kilograms
: Was to be counted again in the 'quantity "•--:
determination. Counting this quantity a
second time would have the effect of
substantially lowering the exclusion
levels. A new paragraph, § 261.5(d), has
been added to make it clear that &••., -•.
..generator counts his hazardous waste
only when he first generates it. He is not
required to count the waste again when
he removes it from on-site accumulation ,
or storage * or when he produces a
hazardous waste from the ori-site .'.
treatment of his hazardous Waste. The
amendment is intended to avoid double-.,
counting of wastes and therefore
extends only to the on-site treatment or
storage of hazardous wastes generated , i
• by the,small quantity genera'tor. |f the,; ..
: generator.riaceives hazardous .waste. , ./ .•
from another person fqr treatment, the ;-•.
:-, hazardbu's .'lyaste^gerierated by thfe;,,, v--, •';<'
, .,treatinent prac'ess must be counted, in' v;.
the generator's quantity determination.:.;.
B: Requirements Applicable to • ,
Hazardous Waste Accumulated On-site.
1 Under the definition of generation, removal from'
otorage is not an act or process that produces a
hazardous waste, although it is an act which may
subject a waste to regulation. The Agency intends
,to publish regulations on this subjecHn the near •
future. T - - '. ' ' ' ' • ' * '• r
Section 261.5(b) of the May regulation '
states that if a generator accumulates
more than 1000. kilograms of hazardous .
waste, these wastes are subject to full
Subtitle C regulation. Acutely hazardous
wastes, when accumulated, are subject
to the lower exclusion limits specified in
§ 261.5(c) of the May 19,1980, regulation.
After the publication of the regulation,
persons questioned how the regulation
would apply, whether the generator
wpuld be able to use the provisions of
§262.34 allowing on-site storage without;
a permit for 90 days prior to shipment of
the wastes to treatment, .storage or
^disposal facilities; and, if,so, how the
provisions of that section .apply-to. small
i quantity genera tors. .» . •;.
A new paragraph, § 261.5[f), clarifies
the .manner in which hazardous wastes,
are regulated w,hen the aqcumulatiph
limit is exceeded. Because the regulation
allows indefinite, and unregulated ' ,
storage of wastes in quantities less than
1000 kilograms, the Agency believes it .
unreasonable to make this 90 day period
start at the time the waste was first
generated.' Such a result would place
generators who exceed the : .
accumulation levels but whose ;
accumulation began more -than 90 days .
prior to exceeding the 10,00 kilogram
.level immediately in violation of the .
regulatory requirements .by storiijg., .;
vvaste^ without a: permit or .without .- •
interim status under Section 3005(e) of
RCRA. The revised § 261.5(f) states that;
at the time the allowable, accumulation 2",
limit is exceeded, the waste becomes:
fully regulated and §"262.34 becomes.
applicable. Section 262.34 provides the
generator 90 days to remove the waste <
from on-site storage without the
necessity of having either a. permit or
interim status for thatstorage. To take
advantage of | 262.34, however, the;
generator, must satisfy the conditions of.
that section. This will ensure that the.
generator handles the waste in a
satisfactory manner while providing him
sorhe tiriie to arrange for proper
treatment, storage or disposal. ,
The revised regulation also clarifies
that, once the accumulated amounts
fexpe'ed \00p kilograms, all of thosie
^wa^tes^rid^ftiose subsequently added to
that accumulation axe fully-regulated
until all the waste js sent to a hazardous
waste treafinent, storage or disposal
facility, ffris nile means that those
wastes remain subject to full regulation
even if the quantity of wastes
accumulated or stored becomes less
than 1000 kilograms. In addition, those •
wastes remain fully regulated regardless
of when ft^wastes are removed from r
storage or accumulation and regardless •.
of whether the generator is a small ...t j.-;
-------
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76822 federal Register / Vol. 45, No. 225 / Wednesday, November19, 198(5 / Rules and Regulations
Quantity generator Jn the month they are
,, Htinbvfid frora storage, Certain persons ..
thought tlwt only the amount exceeding
ledd Kilograms was subject to
(: rfgul«ticm,,Thi® position was not,
however, supported by the language in
the May regulation which stated that, if
a person"aeeiiniulates more than 1000
kuoflrams, !*thoae accumulated wastes",,
would bg subject to full regulation. The
revised fanguage should resolve any
ambiguity mat may have been created
by the original language. The provisions
for acutely hazardous waste apply
similarly,
C. Requirements Applicable to
• Acutely tocuanfous Waste.
Section 281,5{c) of the May regulation
sels lower exclusion levels for acutely
hiJMrdotis discarded chemical products,
•. '. their off-specificattori variants',
containers and inner liners that held
these wastes, and residue and debris
rgsulting from spills of these wastes. The
revised regulation, § 26l.5(e), clarifies
two ambiguities ia the regulation: (a)
whether mfi exclusionjevelsapply to
1 the total" amount of acutely" Hazardous
waste generated and (b) whether the
exclusion levels apply only to small
quantity generators.
Wi& respect to the first question, the
language of the regulation has been
revised to state that the exclusion levels
ppply to the aggregate of all of the
kmlely hazardous wastes subject to a
particular exclusion. Thus, if a generator
discards In a calendar month 0.5
kilograms, of one commerical chemical
product listed in § 262.33{e) and 0.5
kilogram each of two other listed
commercial chemical products, the total
1.5 kilograms of acutely hazardous
Wastes would be subject to full Subtitle
C regulation. The exclusion thus applies
to acutely hazardous wastes in the same
manner as |t applies to other hazardous
'" pastes. The rationale for aggregating
wastes to determine the amount of
wastes generated applies with equal
force to acutely hazardous waste as to
other hazardous waste. The need for full
regulatory control of these wastes is the
same whether the total is comprised of
one listed substance or three such
substances.
Second, the regulation is revised to
clarify that the lower exclusion levels
for acutely hazardous waste apply only
to generators who otherwise are deemed
small quantity generators. The Agency
believes that a generator who produces
more than 1000 kilograms of hazardous
waste a month and is therefore subject
to full regulation should handle his
acutely hazardous wastes in the same
manner a"s his other wastes. The basis
For the exclusion levels is the
administrative Impossibility of EPA
regulating all generators of hazardous
waste. If a generator is subject to
regulation on the basis of generating
more than 1000 kilograms of hazardous
waste, there is no reason to exclude
from regulation his small quantities of
those wastes which the Agency has
identified as acutely hazardous. There
will be no additional drain in the
administrative demands placed on the
Agency and the protection of human
health and the environment will be
significantly increased.
A final change to 1j 261.5 has been
made with respect to acutely hazardous
wastes. Section 261.5(c) of the May
regulation established exclusion levels
for containers and inner liners that held
acutely hazardous waste. A new
section, 261.7, has been added to the
regulations under separate rulemaking
that excludes "empty" containers from
regulation. If a container or inner liner
that has held acutely hazardous waste is
empty, it is not subject to regulation and
not subject to the exclusion levels set in
§ 261.5. The residues of acutely
hazardous waste in nonempty
containers or inner liners are subject to
the exclusion levels of § 261.5(g) and the
requirements of the'section. The
reference to containers and inner liners
that appeared in § 261.5(c) of the May
regulations is deleted.
D. Conditions Applicable to Waste •
Excluded from Full Regulation.
Section 261.5(d) of the May regulation
specified the facilities in which
hazardous waste excluded from full
regulation could be managed. The
Agency inadvertently omitted facilities
that beneficially use or re-use, or
legitimately recycle or reclaim waste
from the list of acceptable facilities. The
Congressional policy of promoting
resource recovery, as implemented by
the Subtitle C regulatory program in
§ 261.6, would not be served by denying
to small quantity generators the same
opportunity to use, re-use, recyle or
reclaim their waste which is provided to
other generators. Accordingly, the
regulation is revised to allow small
quantity generators to treat or dispose of
their waste in such facilities. The
regulation is also redesignated
§261.5(g).
Section 261.5(g) has also been revised
to state that hazardous waste must be
stored on-site in accordance with
§ 261.5(f). This latter paragraph, as
described above, covers the
accumulation and storage of wastes pn-
site. This revision merely reiterates that
storing or accumulating wastes on-site
under § 261.5(f) is allowed.
Today's amendments make one
additional technical correction to the
May regulations. Section 261.6(d)
'iii i|iiiiiii!!in; mi1 I,IHIII|III|IIIII ii i ii|ii:' mini; mi; 11, in;1 ,111 ^«;;,, ir i ii'ini > w," ,n' niiniiri ?' I\KK\H :,,i 'iiiiiiniiiKii vmt 1inn "is ii|iiiiiiiiniii|in
required generators, as a condition of
the exclusion from full regulation, to
determine under § 262.11 whether their
wastes were hazardous. Section
262.11(a), however, stated that, if a
generator determined that he was
subject only to § 261.5, he did not have
to determine whether his waste was
hazardous. The Agency has corrected
this inconsistency by deleting the
reference to § 261.5 in § 262.11. The
generator of solid waste" must determine
whether his waste is hazardous before
determining whether his waste is
conditionally excluded under § 261.5
from full regulation. Without such a
determination the generator of
hazardous wastes would not know
whether any of the Subtitle C
requirements, including the reduced
requirements, apply to the waste nor
whether, if the exclusion levels were
exceeded, the full requirements would
apply.
. E. Requirements Applicable to
Mixtures.
Section 261.5(e) of the May regulation
.established a special mixture provision
for hazardous wastes which were
excluded from full regulation by § 261.5.
This provision is redesignated as
§ 261.5(h) and has not been revised.
A new paragraph, § 261.5(i), is added
to make clear that mixtures of solid
waste and hazardous wastes which
have exceeded an exclusion level are
subject to full Subtitle C regulation.
Pursuant to § 261.3(a)(3)(ii), a mixture of
solid waste and hazardous wastes is a
hazardous waste. Members of the
regulated community have asked what
exclusion level applies to the mixture;
for example, whether a mixture
containing an acutely hazardous waste
that has exceeded an exclusion level
remains subject to the lower exclusion
levels applicable to that waste. This
new paragraph clarifies that the lower
exclusion level applies. A contrary
result would encourage generators to
mix acutely hazardous wastes subject to
full regulation (i.e., because they are
generated or accumulated in quantities
greater than one kilogram) with other
hazardous excluded wastes [e.g., those
generated in quantities of less than 1000
kilograms a month) and thus escape the
regulatory controls which the Agency
has determined are essential for the safe
handling and management of hazardous
wastes.
III. Effective Date
Section 3010(b) of RCRA provides that
EPA's hazardous waste regulations and
revisions thereto take effect six months
after their promulgation. The purpose of
this requirement is to allow persons
handling hazardous wastes sufficient
I iii
-------
Federal Register /. VoL 45, No. 225 / Wednesday, November 19, 1980 / Rules and Regulations 76623
lead time to prepare to comply with
major new regulatory requirements. For
the amendment to _§ ,261.5 promulgated
today, however, the Agency believes
that an effective date six months after
promulgation would cause substantial -
and unnecessary disruption in the
implementation .of the .regulations and
would be contrary to the interests ,of the
regulated community and the public.
The amended Jegulation is an integral
part of a regulatory program that
becomes effective on November 19,
1980. In addition, the principal revisions
to the regulation simply clarify and
make technical corrections to the
regulation. The revisions also allow
greater flexibility in the manner in ,
which small quantity generators .handle
their hazardous waste.
The Agency believes it makes little
sense to allow the small quantity
generator requirements promulgated on
May 19,1980, to become effective on
November 19,1980, and then to have
them substantially revised on a
subsequent date by this amendment.
Clarification of regulatory requirements
and increasing their flexibility are not
the types of regulation revision that
Congress had in mind when it provided
a six month delay between the
promulgation and the effective .date ;of
revisions to regulations. Consequently,
the Agency is setting an effective date of
November 19,1980, lor the amendments
to §§ 261.5 and 262,11 promulgated in
this rulemaking action.
IV. Promulgation in Interim Final Form
, These amendments to § 261.5 are
designed principally to clarify the
manner in which the regulations
published in May of 1980 are to operate.
EPA has received many questions on the
regulation. These questions indicated
that there is substantial confusion on the
part-of the regulated community alxmt
the exclusion of generators of small
quantifies of hazardous waste. Absent
immediate effectuation pf these
clarifying amendments, EPA believes
that this confusion will persist after the
effective date of the Subtitle C
regulations, November 19,1980. This
confusion will lead, EPA believes, to
real and substantial hardship for
persons subject to the reduced
requirements of § 261.5. If uncertain •
about the rule's application or operation,
many responsible generators ;of
hazardous waste .mayunnecessarily
comply with the full Subtitle C
regulations. Immediate implementation •
of the amendment smalt quantity
generator requirements is necessary in
order to avoid inadvertantlylmposing
substantial burdens on literally
thousands of generators who are
uncertain whether they are excluded
from full regulation under § 261.5. Given
the real and substantial :cost that delay
might create, the Agency finds good
cause to promulgate these rules without
prior notice and opportunity for
comment.
V, Request for Comments
The Agency invites comments on all
aspects of these amendments to the
regulations and on all issues discussed
in this preamble. EPA is hopeful that the
regulations as revised are reasonable,
understandable, and workable. The
Agency will be receptive to comments
which would improve the regulation.
VI. Regulatory Impacts
The effect of these amendments is to
reduce the overall costs, economic
impact and reporting and recordkeeping
impacts of EPA's hazardous waste
management regulations. This is y ' '
achieved by clarifying the operation of
the regulations and increasing their
flexibility. The Agency is unable to
estimate these reductions.
Dated: November 14,1980. .
Douglas M. Costle,
Administrator. •
Title 40,of the Code of .Federal
Regulations is amended as follows:
1. Section 261.5 is revised to read as
follows:
§'261.5 Special requirements for
hazardous waste generated by small
quantity generators.
(a) A generator is a small quantity
generator in a calendar month if he
generates less than 1000 kilograms of
hazardous waste in that month.
(bj Except for those wastes identified
in paragraphs Je) and (f) of this section,
a small quantity genera tor's ^hazardous '
wastes are not subject to regulation
under Parts 262 through 265 and Parts
122 and 124 of this chapter, and'the
notification requirements of Section 3010
of RCRA, provided the generator
complies with the requirements of
paragraph (g) of this section.
(c) Hazardous waste that is
beneficially used or re-used or
legitimately recycled or reclaimed and
that Is excluded from regulation 'by
§ 261.6(a] is not included in the quantity
determinations of this section, and is.not»
subject to any requirements of this
section. Hazardous waste that is .subject
to the special requirements of § 261,'6(b)
is included in the quantity
determinations,.of this section and is «
subject to the requirements .of this
section.
(d) In determining the quantity of •
"hazardous waste he generates, a -
generator need not include:
.'(I-) His hazardous waste whenit is
• removed from on-'site storage; or
(2) Hazardous .waste produced by on-
site treatment of his hazardous waste.
(e)lf a small quantity generator
generates acutely hazardous waste in a
calendar month in quantities greater
than set forth below, all quantities ,of
that acutely hazardous waste are
subject to regulation under Parts 262 -
through 265 and Parts 122 and 124 of this
chapter, and the notification
requirements of Section 3010 of RCRA:
(1) A total of .one Idlogram of a
commercial chemical products and
manufacturing chemical intermediates
having the generic names listed in
§ '261.33(eJ, and off-specification
commercial chemical products and
manufacturing chemical intermediates
which, if they'met specifications, would
have the generic names listed in
§ 261.33(e); or
(2) A total of 100 kilograms of any
residue or contaminated soil, water or
other debris resulting from the clean-up
of a spill, into or on any land or water,
of any commercial chemical products or
manufacturing chemical intermediates
having the generic names listed in
§261.33(e).
(f) A small quantity generator may,
accumulate hazardous waste on-site. Jf
he accumulates at any time more than a
total of 1000 kilograms of his hazardous
waste, or his acutely hazardous wastes
in quantities greater than 'set forth in
paragraphs (e}(l) or (e)(2) of this section,
all of those accumulated wastes for
which the accumulation limit was
exceeded are subject to regulation under
Parts 262 through 265 and Parts 122 and
124 of this chapter, and the notification
requirements of Section 3010 of RCRA.
The time period of § 262.34 for
accumulation of wastes on-site begins
for a small quantity generator when the
accumulated wastes exceed the
applicable exclusion level.
(g) In order for hazardous waste
generated by a small quantity generator
to be excluded fromJull regulation
under this section, the generator must:
(1) Comply with § 262.11 of this
chapter;
(2) If he stores'his hazardous waste
on-site, store it in compliance with the
requirements of paragraph (f) of this
section; and
•(3] Either treat or dispose of his
hazardous waste:in an on-site facility, or
ensure delivery to an off-site storage',
treatment or disposal facility, ;either of
which is;
:{i) Permitted under Part 122 of this
chapter;
(ii) In interim status under Parts 122
and 265 of this chapter; ,
-------
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1 II II
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ii \
76624 Federal Register / Vol. 45, No. 225 / Wednesday, November 19, 1980 / Rules and Regulations
Illl'1 ill ,11!"
ill! "
(iii} Authorized to manage hazardous
waste by a State with a hazardous
'-''' feasie management program approved
under Part 123 of this chapter;
(lv) Permitted, licensed or registered
by a State to manage municipal or
Industrial solid waste; or
M A facility which:
(A) Beneficially uses or re-uses, or
legitimately recycles or reclaims his
waste; or
(B) Treats his waste prior to beneficial
use or refuse, or legitimate recycling or
reclamaiion. '" '
(h) Hazardous waste subject to the
reduced requirements of this section
may be mixed with non-hazardous
wafte and remain subject to these
reduced requirements even though the
resultant mixture exceeds the quantity
limitations identified in this section,
unless the mixture meets any of the
characteristics of hazardous wastes
identified in Subpart C.
(i) If a small quantity generator mixes
a solid waste with a hazardous waste
that exceeds a quantity exclusion level
of this section, the mixture is subject to
full regulation,
"€. Section 282.11(a) is revised to read
as follows:
ill', I"
ill
1262.11 Hazardous waste determination,
fa) He should first determine if the
waste is excluded from regulation under
^ t •;„ iililli, ,1 N I! '•,'::„ ill,: U>
These amendments are issued under
the authority of Sections 1006, 2002(a)
and 3002 of the Solid Waste Disposal
Act, as amended by the Resource
Conservation and Recovery Act of 1976
(RCRA), as amended, 42 U.S.C. 6905,
6812(a), and 6922.
IKRtte: (10 :01MF.'cdll-lS 80, 640.im]
BIU.1NC CODE 65W-30-M
! "'Ill 'III i ^ i ' 'i I i 'I
40 CFR Part 262
(SWH-FRC 1675-4]
Hazardous Waste Management
System; Standards Applicable to
Generators of Hazardous Waste
45 FR 33066, 33143 (May 19,1980)]. One
of these requirements was that a
generator ship all accumulated waste
off-site in 90 days or less. This
amendment eliminates the distinction
between accumulation for on-site and
off-site treatment, storage or disposal,
provided that, within 90 days, the waste
is sent to a hazardous waste
management facility that is either
permitted or in interim status. The other
requirements of § 262.34 are not changed
by this rule.
DATES: Effective Date: This requirement
is effective on November 19,1980.
Comment date: Comments are due
January 19, 1981.
ADDRESSES: Comments should be
addressed to the Docket Clerk (Docket
3002), Office of Solid Waste (WH-562),
U.S. Environmental Protection Agency,
401 M Street SW., Washington, D.C.
20460.
FOR FURTHER INFORMATION CONTACT:
Rolf Hill, Office of Solid Waste, (WH-
563), U.S. Environmental Protection
Agency, 401 M Street SW., Washington,
D.C. 20460, (202) 755-9145.
SUPPLEMENTARY INFORMATION:
I. Introduction
In regulations promulgated in
February and May, 1980, EPA
established standards applicable to
generators of hazardous waste. 40 CFR
Part 263,"'45"FR'12722"[February 26, 1980)i"
££-££ 3 jj4o""[May" 19," 1980); These
standards, among other things, require
generators to initiate a manifest to track
the movement of hazardous waste,
maintain records, and provide proper
containers, labels and placards for the
transportation of hazardous waste. Most
of these requirements apply only to
generators who send their hazardous
wagteg gffjhe site, p| generation fpr,,
treatment, storage or disposal. Some of
these requirements, however, apply to
generaforS"who treat, store,or dispose of
their wastes on the site of generation.
AGENCY: Environmental Protection
Agency.
ACTION: Interim final rule and request
for Comments. "h
SUMMARY: In regulations promulgated in
May, 1080, establishing a federal
program for the management of
nasjardou.jwastes^EPA placed
requiremeriis on generators of
hazardous waste that accumulated their
waste on the site of generation prior to
shipment to off-site hazardous waste
management facilities [40 CFR § 262.34,
wasletoan off-site hazardous waste
management facility, EPA set special -
requirements in § 262.34 which, if met by
ihe generator, would allow him to
accumulate the waste on-site without
having to obtain a RCRA permit for a
storage facility under Part 122 of the
regulations or comply with "the
applicable standards under Parts 264
and 265 of the regulations. :
, The basis, and rationale for, these
special 90-day accumulation rules
appear in the preambles to, and the
background documents supporting, the
'idll IP'li JiilliliT' «' "Ij'hililill Viilill
i"'1"1 ;„,,", ,.i!!|f'li|i''',,'ij!'ii ,'';''";'". J HJI|j' "IS'1 ,»""'iii'Hij n .' ''' Hi.'.: '"1'i.l'il, »."'t i; iiK Jlllli+IW
generator regulations first published in
Feburary, 1980, and then revised in May,
1980. See 45 FR 12722, ^2730 (February
26,1980) and 45 FR 33140, 33141 (May 19,
1980). By allowing short-term
accumulation without a permit, the
regulation reflects the congressional
intent that the RCRA program not
interfere with the manufacturing
process. See H.R. Rep. No. 94-1491, 94th
Cong: 2d Sess. 26 (Sept. 9,1976).
Generation of hazardous waste
necessarily requires some accumulation
of that waste prior to taking it to a ^"
hazardous waste management facility.
On the basis of information received in
the comment period, the Agency
selected ninety days as a period that
provided sufficient time for such
accumulation to occur in all reasonable ,
situations.
Holding hazardous waste for a short
period, however, entails many of the
same risks to human health and
environment as long-term storage, and
therefore the Agency imposed specific
requirements for short-term
accumulation. The special requirements
•of § 262.34 require the generator to (1)
ship the wastes off-site within 90 days;
[2] place the waste in containers or
tanks meeting specified technical.
standards; (3) mark the date
accumulation began on the container or
tank; (4) properly label and mark the
containers; and, (5) comply with the Part
265 regulations concerning preparedness
and prevention, contingency plans and
emergency procedures. These
requirements are designed to ensure that
short-term accumulation of hazardous
wastes will be done in a manner that
ensures protection of human health and
the environment.
Since the publication of the
regulations, members of the regulated
community have raised two questions
that are basic to the application and
operation of this regulation. First, these
persons have stated that the distinction
between accumulation of hazardous
waste prior to off-site shipment and
accumulation prior to on-site treatment,
storage or disposal is arbitrary and that
the 90-day accumulation provision
should apply to both types'of
accumulation. Second, these persons
have stated that although the special 90-
day accumulation requirements of '
§ 262.34 may be appropriate for the
more centralized areas and facilities
where hazardous wastes are
accumulated prior to off-site transport or
ultimate on-site disposition, they are
more stringent than necessary for the'
accumulation and very short-term
storage of wastes at areas where the
wastes are generated and initially
• I
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SBi'l • -i!,;,
-------
Federal Register / Vol. 45, No. 225 / Wednesday,. .November.. 19, 1980 /Rules and Regulations. 76S25>
accumulated—often in small
containers—prior to movement to the
more centralized on-site accumulation
and storage areas.
The .amendment being promulgated
today responds to the first of these .
concerns. For reasons:dis.cussed below,
however, EPA believes that more
information is necessary prior to
ascertaining the need for amending the
regulations to respond to the second
concern. . -
II. Onrsite Accumulation Prior to On-site
Treatment, Storage or Disposal '
The effect of the current regulations is
to allow one class .of generators {Le.,
those who ship" their wastes off-site) to
"accumulate" their waste lor up to 90-
days without having a permit .or interim
status and to require all other generators
(i.e., those who treat", store and dispose
of the wastes on-site) to obtain a RCRA
permit or interim status for the same
activity. The standards applicable to
both classes, however, are, similar.
Generators who accumulate waste on-
site under § 262.34 .would have to .store
their wastes incompliance with
virtually .all .of the technical
requirements of Part 265 and also satisTy
many of the general requirements of that
Part, e.g., prepare contingency plans ^and
emergency procedures/The principal
difference ..the Agency had discerned
between'these two classes of generators
. that was that the areas used for-.
accumulation by the generator who
performed such activities on-site would
be included in their permit covering the
other on-site treatment,, storage and
disposal facilities. In addition, certain
provisions of the Part 265 regulations
apply to the accumulation areas of
generators who manage their wastes on-
site; these include security, financial
responsibility, closure and post-closure
requirements.
EPA now believes, however, that the
regulations as .currently written impose
substantially different requirements for
generators who .ship .their wastes off-site
as opposed to those who do not. These
differences do not.appear warranted.
The most important of these differences
concerns eligibility for interim .status if
short-term accumulation is considered
storage for generators who treat, store
or dispose of their wastes on-site! To
obtain interim status a storage facility
must be "in existence" on November 19,
1980. Section 3005(e), 42 U.S.C. § 6925(e)
as amended by the Solid Waste
Disposal Act Amendments of 1980, P.L.
96-482 (October .21,1980). A generator
who sends his wastes off-site would be
able to construct a new loading dock or
storage .shed for .short-term
accumulation; ,a generator who does not
send his wastes off-site could not
construct a new'loading dock (Le., a new
storage facility) without obtaining a
RCRA permit. Second, although ""\;
applying for a permit for these
accumulation areas may:noi entail
significant increased burden, the terms
, and conditions .of the permit could
impose requirements'beyond those
required for generators who ship their
wastes off-siterln addition, orffler
differences between on-~site
accumulation and on-isite storage may
emerge as the regulations are
interpreted and applied.
EPA believes that there is no basis for
the distinction and accordingly has
amended the requirement of
§ 262.34(a)(l) that accumulated wastes
be shipped off-site within 90 days. The
requirements of § 262.34 are designed to
ensure protection of human health and
the environment during short-term
accumulation. The destination of the
waste does not change the protection *
that this rule ensures. Section 262.34
requires that wastes that are
accumulated orPsite still must, within 90
days, go to treatment, storage or
disposal facilities which are permitted
or in interim status. The regulation now
provides that such facilitiesTnay be on-
site as well as off-site; the manner TO?
regulation and the degree of ,
environmental control is the same for
these facilities. .
The selection of a'90-day period in the
original rule reflected the maximum
accumulation time that the Agency
thought was necessary prior to
transporting wastes off-site. The
generator does not wholly control the
timing of the transportation because
arrangements have to be made with the ,
transporter and the hazardous waste
management facility. The .situation is
obviously different if. the generator is
sending his waste to a treatment,
storage or disposal facility located on
the site of generation. In this: situation,
the generator has greater control over
the handling of the waste and the timing
of its shipment. The Agency solicits
information on whether given this
difference whether a shorter period, say
30 days, should be provided for
generators who subsequently .send their .
wastes to an on-site treatment, storage
or disposal facility,
III. Application of Requirements to All
Accumulation Areas
1 In promulgating the regulations
establishing the requirements for .on-site
accumulation, EPA assumed that
accumulation .generally would occur in
discrete areas in the manufacturing
complex where wastes would be held
prior to shipment to a treatment, storage
or disposal facility. Technical standards
for tanks or-containers, the preparation
of contingencyjplans and similar
requirements are appropriate lor loading
docks, storage buildings and sheds, and
other areas in la manufacturing complex
where hazardous wastes are collected '
and accumulated.
Members of the regulated community,.
however, have pointed xmt that, within a
manufacturing complex, there may be
dozens of places where hazardous
wastes are collected during daily
operations prior to taking ;a container
containing-hazardous waste to the
loading dock or other accumulation
area. These commentersifaave
questioned the appropriateness of
applying the Tequirements of § 262.34 to
each place "where hazardous wastes
may be initially collected.
EPA believes, however, that the
requirments of § 262.34 are^appropriate
for both centralized.and satellite-
accumulation areas. The Agency,
however, is soliciting'information.on
whether, in some situations, .different
requirements should govern these
accumulation activities.
Whether at satellite nr centralized
accumulation areas, Jhe hazardous
waste requires proper management in
order to minimize the threat to .human
health and the :environment. The
requirements of J 262;34 are designed to
provide such protection. Containers that
meet DQT specifications and tanks A.ai
meet Part 265 design and operating
requirements appear necessary and
appropriate for the accumulation of •
hazardous waste regardless of whether
the accumulation occurs at a centralized
facility or in different places within a
plant. The othier requirements of §'262.34
similarly appear appropriate to :all
accumulation .activities on the site:of
generation; these include marking and'
labeling containers; weekly inspections
of containers; locating of containers
holding ignitable and reactive wastes
away from the property line;
requirements concerning preparedness
and prevention, contingency plans and
• emergency response and personnel
training. The protection that these
requirements ensure appear appropriate
and necessary wherever hazardous ,
wastes are accumulated.
The Agency recognizes that there may
be. certain situations in which "the
requirements of § 262.34 might not work
well for the initial collection and *
accumulation of hazardous waste. For
example, the Agency,does not expect a
company to engage in major
reconstruction of a facility simply to be
able,to fit a DOT container beneath a
, hard-to-reach leaky pipe. The Agency
does, however, want to ensure that all
-------
76826 Federal Register / Vol. 45, No. 225 /Wednesday, November 19, 1980 / Rules and Regulations
i III "I
i waste, once generated, are
iafgly and properly handled. The
Agency requests comments on situations
in which the requirements of § 262.34
may be inappropriate and on the
manner in which EPA should handle
such situations.
IV. Effective Date
Section 30io(b) of RCRA provides that
EPA's hazardous waste regulations and
revisions thereto take effect six months
after their promulgation. The purpose of
this requirement is to allow persons
handling hazardous wastes sufficient
lead time to prepare to comply with
major new regulatory requirements. For
the amendments to § 262.34 promulgated
today, however, the Agency believes
that an effective date six months after
promulgation would cause substantial
and unnecessary disruption in the
implementation of the regulations and
would be contrary to the interests of the
regulated community and the public.
The regulatory provision that this
amendment modifies takes effect on
November 19,1980. In the absence of the
immediate effectuation of this
amendment, generators who accumulate
Wastes for on-site treatment, storage or
disposal must prepare to operate these
facilities as fully regulated hazardous
waste storage facilities on and after
November 19,1980. This would include
preparation and submission of a Part A
permit application covering the
accumulation area.
The Agency believes it makes little
sense to allow the requirements
promulgated on May 19,1980, to become
effective on November 19,1980, and
then: hays: them substantially modified
on a subsequent date, i.e., the six-month
teffecttve date, for the.se., amendments.
Leasing of regulatory requirements is
Sot the type of revision to regulations for
which Congress intended a six-month
delay occur between its promulgation
Mid effective date. Consequently, the
Agency is setting an effective date of
November 19,1980, for the amendment
to § 262.34 promulgated in this
rulcmaking action.
V. Interim Final Promulgation
jThis regulation is being promulgated
in Interim final form. The reasons for
taking this exceptional procedure are
similar to those supporting the
Immediate effective date. The delay
involved in Initiating ribrmaTrulemaking
would cause substantial hardship on
generators who treat, store or dispose of
their hazardous wastes pn-site. During
the pendency of rulemaking^these
generators would not be able to
CdnSlrucf'peyir accumulation areas in
their manufacturing facilities without
obtaining a RCRA permit. Because such
areas are intimately tied to the
manufacturing process itself, such a
delay might in effect create'a prohibition
of'redesign and reconstruction of these
manufacturing units. ".
Although the Agency does not adopt
this procedure lightly, the circumstances
indicate that the use .of interim final
promulgation is appropriate. As one
court has noted "[i]t is an appropriate
safety valve to be used where delay
would do real harm." U.S. Steel Corp. v."
EPA, 595 F.2d:207, 214 [5th Cir., 1979).
EPA believes that the effect of delaying
promulgation of this amendment would
cause substantial, and unnecessary,
hardship on a large number of
manufacturing operations. In this
situation, the use of advance notice and
comment procedures would be contrary
to the public interest and therefore good
cause exists for adopting this
amendment in interim final fprm. See 5
U.S.C. § 553(b)(B).
VII. Request for Comments
The Agency invites comments on all
aspects of this amendment to the
regulation and on all the issues
discussed in this preamble. The Agency
has recently requested comments of one
aspect of § 262.34, its applicability to
product storage tanks. 45 CFR 72024
(October 30,1980). The Agency will
consider all comments received on
§ 262.34 prior to promulgating this rule
in final form. EPA desires to formulate
sound and sensible regulations
concerning the proper handling of
hazardous waste. The requirements of
§ 262.34 are. an important aspect of this
broader concern, and, if commenters
have suggestions on ways to improve
this regulation, the Agency would be
receptive to their suggestions.
VIII. Regulatory Impacts
The effect of this amendment is to
reduce the overall costs, economic
impact and reporting and recordkeeping
impacts of EPA's hazardous waste
management regulations. This is
achieved by removing accumulation
areas of generators who send
accumulated wastes to on-site disposal
facilities from full regulation as storage
facilities. The Agency is unable to
estimate these cost' and impact
reductions because it does not have an
estimate of the number of.siich ;areas
that otherwise would be fully regulated.
For the reasons already discussed,
notwithstanding these cost and impact
reductipns, the Agency believes that :
human health and environmental
protection will not be reduced by this
action.
Dated: November 14,1980.
Douglas M. Costle,
Administrator.
• Title 40r of the Code .of Federal
Regulations is amended as follow.s:
§262.34 [Amended]
1. In § 262.34, paragraph (a)(l) is
revised to read as follows.
(a) A generator may accumulate
hazardous waste on-site without a
permit or without having interim status,
provided that:
(1) All such waste is,.within 90 days,
shipped off-site to a designated facility
or placed in an on-site facility that is
permitted under Part 122 of this Chapter,
.has interim status under Parts 122 of this
Chapter, or is authorized to manage
hazardous waste by a State with a
hazardous waste management program
approved under Part 123 of this Chapter.
* • * *. * * •.
These amendments are issued under
the authority of Sections 1006, 2002(a),
3002, 3003, 3004 and 3005 of the Solid
Waste Disposal Act, as amended by the
Resource Conservation and Recovery
Act of 1976 (RCRA), as amended, 42
U.S.C. 6905, 6912(a), 6922, 6923, 6924 and
6925. .
[FR Doc. 80-36131 Filed 11-18-80; 8:45 am]
BILLING CODE 6560-30-M
40 CFR Parts 122, 260, 264 and 265
[SWH-FRL 1675-5]
Hazardous Waste Management
System
AGENCY: Environmental Protection
Agency. . .
ACTION: Interim final rule and request
for comments! .'. .
SUMMARY: In regulations promulgated in
May of 1980, the Environmental
Protection Agency ("EPA") established
a comprehensive program for'the
handling and management of hazardous
wastes, 45 FR 33066 (May 19,1980): The
regulations, among other things, set forth
substantive requirements for the
treatment and storage of hazardous
wastes and require owners and
operators of treatment and storage
facilities to have Resource Conservation
and Recovery Act (RCRA) permits or
interim status pursuant to Parts 265 and
122 of the regulations. Certain activities
which persons may take in response to
spills of hazardous wastes or materials
which, when spilled, become' hazardous
waste might be considered treatment •
(e.g., absorption, neutralization) or
storage (e.g.-, diking, containment). In •
. this action EPA makes clear that the
requirements for treatment and storage
are not applicable to actions taken to
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fcfcii&ifo j;^^^ i:: as.to*if 'ti &M-, :^fe^i 'jAflifflfe Il
-------
Federal Register'/ Vol. 45,; No. 225 / .Wednesday,-November 19, 1980 /-Rules and Regulations ' 76627
immediately contain and treat spills of
hazardous wastes and-materials which,
when spilled, become hazardous waste.
This action also adds a definition of spill
in §§260.10 and 122.3. '
DATES: Effective date: These
amendments become effective on . ,
November 19,1980. . ...".'
, Comment Date: The Agency will
accept comments on these amendments
until January 19,1981.
ADDRESS: Comments oh these
amendments should, be. addressed to the
Docket Clerk (Docket 3004, Office of
Solid Waste (WH-562), U.S. ,
Environmental Protection Agency, 401M
Street,-S.W., Washington, D.Cy 20460. .
FOR FURTHER INFORMATION CONTACT: >••
For general hiformation, contact Amy
Mills, Office of Solid Waste (WH-563),
U.S. Environmental Protection Agency,
401 M Street, S.W., Washington, D.C.
> 20460. For .information on . - • •
implementation, contact:
Region I, Dennis Hueb.er, Chief,
Radiation,"Waste Management
Branch, John F. Kennedy Building,
Boston, Massachusetts 02203, (617)
;223-5777
Region II, Dr. Ernest Regna, Chief, Solid
Waste Branch, 26 Federal Plaza, New -
; York, New York 10007, {212] 264-0504/
• 5 •:•- ' ' '••-".'-.
Region III, Robert L. Allen, Chief,
Hazardous Materials Branch, 6th and
Walnut Streets, Philadelphia,'
Pennsylvania 19106, (215) 597-C980
Region IV, James Scarbrough, Chief,
Residuals Management Branch, 345
Courtland Street, fi.E., Atlanta, -
Georgia 30365, (404) 881-3016
Region V, Karl J. Klepitsch, Jr., Chief,
: - ' Waste Management Branch, 230 South
' Dearborn Street, Chicago, Illinois
60604, (312) 886-6148
Region VI, R. Stan Jprgensen, Acting
; Chief, Solid Waste Branch, 1201 Elm
Street, First International Building,
, Dallas, Texas 75270, (214) 787-2645
Region VII, Robert L-Mprby, Chief, , , .
^Hazardous' Materials.Branc\324 E. •
! llth Street Kansas City, Klis'souri, -.
'' ' " "*;
CHUUO, ^O-lpJ o*s/—o«jy/ . . _ ^ _^ .
'Region VIHltawrence P. Gazda.Ch'iif,- J"
•':"'"'' •'Vy'aste Mjanag^rnent Branch, 1660 '"• . ~
"'; Linco'iri Street, Dienver,.;5o]oradp ..;•
*" 80203,^03)837-2221 L ,.
RegiPn IX, Arnold R. Den, C^iet, ;
Hazardous Materials Branch,ti5 / ^
v'. Fremont Street, SanFranciscoi1' •'.
'• 'California 94105, (415) 55^1606' ... ;
Region X, Kenneth ID. Feig||f* Chief; ',
; .? Waste Man.aigeinent Brangh, 1200" "'",
, •.'».«Sixth Avenue, .Seattle, ^shipgtpn '." '
98101, (206) 442-1260 "
SUPPLEMENTARY INFORMATIONS
I. Introduction - ' ' .''•
In May of 1980, EPA promulgated
regulations implementing Subtitle C of '•
the Resource Conservation and
Recovery Act of 1976, as amended
{"RCRA"). These regulations, among
other things, identify and list hazardous
wastes (Part 261), establish standards
for generators arid transporters of
hazardous waste (Parts 262 and 263),
and set standards and permit ',
requirements for owners and operators :
of facilities that treat, store or. dispose of
hazardous waste (Parts 264 and 265 and :
Parts 122 and 124). 45 FR 33066 (May 19, ;
1980). These regulations are designed to
; ensure the proper handling and
management of hazardous wastes from '
their generation through their ultimate
disposition. " • :
Because wastes may be produced,"
handled and disposed of in a large'
number of ways, the regulations . :
necessarily are cast in broad terms. A'
generator is anyone whose act or *
process produces a hazardous waste or
•whose action first causes a hazardous
waste to become subject'to regulation.' '
Section 260.10(a), 45 FR 72024 (October '
30,1980). This acf or process may be the
manufacture of goods or materials, • '
service operations such as cleaning with
chemical solvents listed in § 261.31, or .--•
the discajd of commercial ^chemical
products listed § 261.33. Storage is r ,
.defined as "the holding of hazardous
waste fora temporary period ,J. .",.and.
treatment as "any method, technique, or
process, including neutralization, : . \
designed to change the physical,
chemical, or biological character or
composition of any hazardous waste so .
as to neutralize such waste, or so as to
render such waste nohhazardpus, or less
hazardous; safer to transport, store or
dispose of; or amenable for recpvefy,
amenable for storage, or reduced in
volume." Section 260.10(a). .
This action concerns how the
; regulations apply to hazardous wastes
that are created by spills of hazardous
waste or materials which, when spilled,
become hazardous,waste. For reasons
dis.cuslaed below,;the word "spill" is ;.
.defined in the amendments published > ,
• today as, "-the accidental spilling,; ;.. ,,,
leaking, pumping, pouring, emitting, '!_'. ,;
emptying, or dumpingtpf hazardous , •'..-. ;
waste or material which, whe'n spilledf-i-i
becomes hazardous w.as.te into or on ,.:
any land or water.".This definition.. . ,
obviously covers spills of those .:.; , •
hazardplis,waste listed, in §§261,31and ;
261.32 and those solid, wa'steis-that;'' ,,
^exhibit any-ofthe/charapterisyc^s ,ot, ..
hazardous .wastes defined in Subpart G>
of Part 261i This, definition also covers^--'
spills of the commercial chemical
products and manufacturing chemical • •-•
intermediates listed in § 261.33 (e) and,
(f). The Agency interprets spills of these
materials to constitute discarding of •-
such materials (see definitions in § 261.2
(c) and (d)J. These materials, when
discarded, are hazardous waste (see
§ 261.33). In addition, other materials,
when spilled, are considered solid waste
because spilling constitutes discarding.
and may exhibit the characteristic of
hazardpus waste defined in Subpart C of
Part 261. . . ...
Members of the regulated, community ,
have ask'ed whethercertain'activiiies '.•"
taken in immediate response to such :
spills constitute treatment (e.g., '
' neutralizing the'hazardpiis waste) or ;
'storage (e.g., containing the waste in -
. order to prevent its spread). Thesis' : •
questibns have significant practical
implications. Treatment and storage of
hazardous wastes, under the
regulations, must be carried out in
facilities that have interim status under ••'
Section 3005(e) of RCRA .and 40 CFR
Part 122 or'that have a storage pt '
treatment permit from EPA or a State
authorized to run a hazardous waste
ipfbgrani under Sectipn 3006.] Spills are :
sudden, unplanned events. In many
cases,'the treatment or storage ,: -.
necessary to respond to spills will not. •
be-covered by a RGRA permit or interim
statusi This is particularly true for '.
generators who do not treat, store or . '
dispose of hazardpus waste and
transporters who would have neither a
"pefmit nor jntferim status. It also;inay be;
' true for owners arid operators of.
treatment, storage or disposal facilities
where their permit or interim status may,
not cover the types of treatment or \
storage performed in responding to a '•••
particular spill. Persons responding to
the spills would be placed in the-
iincomfortable position of taking actions
necessary to protect human health and
the environment while being in violation
of RCRA.2 . '
,* '
' In addition, Parts 264 and 265 set forth
the manner in which persons may treat
; ? Under'§ ,122.27 die RegTon'a! Administrator iW ","
• authorized to issue emergency^jjerinits if tSere is an':
imminent and substantial endongermertt to human- >
; health or the.environment id allow the treatmeril, j •
storage or disposal of hazardous waste for.a :•.''.• ..
nonpermitteB facility or activities noS covered b^ a :
". permit/1122127 set fortfi procedures gdverriing the
• issuance oi emergency permits. EPA'is presently rJ"
developing giiidance'for the issuance of these >v ; *
•' permits. . •...,"• , :.--,.'; . .,'---.'• ',
, . * Hazardpus, wastes produced .in small quantities
are .excluded from full Subtitle G regulation upder 4
. 1,261.5. A.conditioh of that exclusion, however, Is- „
-.ihat^wastes subject;to § 261.5 niust be managed in, "
, Subtitle 'e/fagiUfie's, facilities approved by the State, •;
{oriuse, refuse, recycling-or reclamation facilites.'-.'•',
•f- Thus, byeil for spills by small quantity .generators,
the same dilemma is posed for persons whose
response might constitute treatment or storage.
-------
I
7gg28Fe|eral[ jRogister / Vol. 45, No. 225/Wednesday,.November 19, 1980 / Rules and" Regulations
, ,or 8;tora liassardqus, wa,S|e§.,,With, respect
to chemical physical'; and biological
; tjresttTitirit, for example, the regulations
prescribe such things as general
jopertlng requirements, waste analysis
and trail tests, inspections, and! closure
.requirements. See 40 CFR 265 Subpart
Q. 1ft for example, reagents are used to
ttbsoib or neutralize a chemical product
Hated in § 281,33 which has spilled in a
plant, the treatment requirements
specified in the regulations would
technically govern the response tot the
spill.
This amendment is designed tq allow
ttpprepriaif responses to spills of
hazardous wastes without being limited
by the treatment and storage standards
and the permit and Interim status
requirements' of the regulations. It
should be.nqted that EPA is developing
fcjpilaUons which will acldress in more
comprehensive fashion the application
of the RCJRA regulations to spill
rtpponsd activities. That rulemaking will
clarify, among other things, relationship
of RCRA and other Federal statutes,
particularly the Clean Water Act and
.•• th* ^azardous Materiajs Transportation
Act, which concern spill activities. ,
II, What Those Amendments Do
The amendments published today add
thf ee new, elements tp the .regulations
pitbltstied in May, 1880: they add a
definition of spill; exempt immediate
containment jmd treatment activities
from the Part 264 and 265 regulations
governing treatment and storage; and,
amend Part 122 to indicate that such
activities do not have to be covered by a
RCRA permit or interim status.
The definition of "spill" is the same as
the definition of "discharge" In
§ 260.10(a), except that the word
"intentional" has been deleted from the
definition of spill and the phrase
"material which, when spilled, becomes
hazardous waste" has beengd.ded. The
(tetcfusion from regulation provided in
today's amendments is designed to
allow persons to respond immediately to
sudden, unplanned occurrences, i.e.,
accidents, which release materials or
wastes into the environment There does
not appear to be any basis to extend
today's action to intentional releases
which might occur. Releases which
occur from burst pipes and ruptured
containers would be considered spills;
releases., wh|phrputinely occur from, for
example, scheduled maintenance of
machinery would not be. The Agency
specifically requests comment on
Whether the deRnitipn 9f, spills provides
appropriate scope for the substantive
amendments published today. For
purposes of the RCRA portions of the
consolidated permit regulations, a
corresponding definition of spill has
been added to § 122.3.
The amendments to Parts 264 and 265
state that treatment and.containmenjt
actions taken in immediate response to
spills are not considered treatment or
storage of.hazardous waste. These
response activities are not subject:
therefore, to the detailed requirements
of those parts governing treatment and
storage. The amendment to § 122.21
indicates that these activities do not
have to be covered by a RCRA permit.
The amendments only, cower activities
during the immediate response to a spill..
As. discussed below, once this response
is accomplished, other regulatory
provisiona apply. Section IV of thus
preamble provides examples of how
these amendments and the other '
regulatory provisions apply to spill
situations. These amendments are
designed to allow persons to respond
immediately to spills which may pose
dangers to human health, and the
environment. If the Agency believes that
anyone is abusing this provision, it will.
not hesitate to bring enforcement
actions, including, under appropriate
circumstances, criminal prosecutions.
IH. Regula tions not Affected by This
Amendment
The pucno.se of today's, amendments is
to allow persons to treat and contain.
spills without" having engaged in
treatment and storage activities and to
recognize that spills occur atplaces
which might otherwise not be treatment
and storage facilities. These
amendments do not affect whether the
spilled substance, residue or debris is a
hazardous waste or not; Part 261 will
govern. They do not affect in an way the
application of the generator and
transporter requirements; Parts 262 and
263 will govern these activities. After
the immediate response activities are
completed, the hazardous waste is"
subject to all tte requirements for
transportation, treatment, storage, or
disposal.
The regulations promulgated in May,
1980, explicitly place specific
requirements for certain spills of
hazardous waste—discharges occurring
during transportation and releases
occurring at on-site accumulation areas
and in treatment, storage and disposal
facilities. These regulations, described
briefly below, are unaffected by the
amendments published today. These
amendments complement the
regulations by clarifying that actions
taken in response to spills and in
compliance with those regulations are
not subject to the treatment and storage
regulations and do not have to be
carried out at a treatment or storage
facility with a RCRA permit or in interim
status.
Discharges of hazardous waste during
transportation are subject to the
provisions of Part 263 concerning
immediate action, reporting, and
cleanup. 40 CFR 263.30 and 263.31, 45 PR
12744 (February 26,1980), repubfished at
45 FR 33152 (May 19,1980). Discharges
of hazardous materials during
transportation are also subject to the
reporting provisions of DOT regulations
under the Hazardous Materials
Transportation Act.49 CFR 171.15,
171.16. These regulations will apply to
spills during transportation and these
requirements are not affected by today's
amendment.
The Part 264 and 265 regulations
contain extensive requirements for
hazardous waste management facilities
concerning preparedness and
prevention, and conHngency plans and
emergency procedures. 40 CFR Part 265,
Subparts C and D, 45 FR 33236, 33237
(May 19,1980). To ensure proper
response to explosions, fires, and other
releasesjof hazardous waste, these
provisions require owners and operators
of regulated facilities to have safety
equipment and systems, arrangements
with relevant local authorities," a
contingency plan and emergency
procedures covering response activities.
These regulations continue to apply to
releases at hazardous waste
management facilities which present
dangers to. human health and the
environment. For example, § § 264.56
and 265.56, concerning emergency
procedures, have not been exempted.
The emergencj coordinator must follow
the procedures set forth in those
sections. Today's amendment simply
means that actions taken, for example,
under § 265.56(e), are not subject to the
treatment and storage requirements of
Part 265.
Regulations promulgated under other
Federal, state or local laws may apply to
spills of hazardous* waste and other
materials. On the Federal leva!; twa
examples are Section 311 of the Clean
Water Act and the Hazardous Materials
Transportation Act. Under Section 311.
of the Clean Water Act, discharges of
oils and, hazardous substances (which
may also be hazardous wastes) are
subject to regulation. Hazardous
materials, as regulated by DOT under
the Hazardous.Materials Transportation
Act, include hazardous wastes. See 45
FR 3451 (May 22,1980). The
amendments published today concern
only RCRA requirements and in no way
affect a person's obligations or
responsibilities under any other
applicable Federal,, state or local law.
in n in in in i mi Hi i|ii|ii n i|i|iii||iiiiiiiii||ii|ii
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Federal Register / Vol. 45, No. 225 / Wednesday, November 19, 1980 / Rules and Regulations 76629
IV. Examples of How These
Amendments Operate
The following examples illustrate the
manner in which the amendments
published today operate and tie. in with
the other RCRA regulations.
1. A manufacturer spills a comiSercial
chemical product listed In § 261.33(e) on
the floor of his plant. He immediately
. uses a reagent to absorb or neutralize
the spill, whose residue amounts to
more than 100 kilograms. He places the
residue in containers for subsequent
transportation off-site. What regulations
apply? . - .
The manufacturer is a generator of a
hazardous waste—the spilled chemical
as well as the resulting residue. He is
not a small quantity generator because
•he has generated more than 100
kilograms of § 261.33(e) residue. See 40 ,
CFR § 261.5(e)(2). His use of the reagent
is not subject to treatment regulations of
Parts 264 and 265 and this use does not
have to be covered by a RCRA permit or .
interim status. Once the immediate
response is over, however, he becomes
subject to the generator requirements of
Part 262. These include requirements for
accumulation on-site, use of EPA .
identification numbers prior to
transporting the residue off-site,
initiation of the manifest, and use of
appropriate packaging, labelling,
marking and placarding.3 Manufacturers
who anticipate such spills may, as a
precautionary measure, make necessary
arrangements to" comply with the Part
262 regulations in advance. And, the
transportation and subsequent
treatment, storage or disposal of the
spill residue is subject to the
requirements of Parts 263, 264, 265 and
122. . • '
2. A tank used to accumulate
hazardous waste (under the
requirements of § 262.34) ruptures and
the wastes spill on to the ground.
Because the tank does not have a
secondary containment system, the
generator immediately builds an
emergency dike to contain the spilled
waste. He subsequently pumps the
spilled waste into drums and, after
3 EPA recognizes that certain persons, including
manufacturers and transporters of hazardous
materials, may not have EPA identification numbers
prior to a spill which creates hazardous waste. At
this time EPA has decided not to exempt discharges
from the requirement of having an EPA ID number.
• Generators do not need an EPA ID number at the
time of generation but rather at the time of treating,
storing or disposing of the waste or transporting or
offering the waste for transportation. Generators
will have an opportunity to obtain an EPA ID
number after the spill. And, persons who anticipate.
that they may generate hazardous waste in the
future may obtain an EPA ID number in'advance.
For these reasons, EPA believes that at this time
there is no reason to exempt these generators from
this requirement.
several weeks, ships those drums off-
site to an incinerator. - ...
The design, construction and
operation of the emergency containment
dike is not subject to the RCRA Subtitle
C regulations (however, the overall
response to the spill is subject to the
requirements of Subparts C and D of
Part 265 which apply by reference
through § 262.34). The storage of the
cleaned-up wastes in drums is subject to
the accumulation requirements of
§ 262.34 if storage in the drums is for
less than 90-days before off-site
shipment or in a on-site. If storage in the
drums exceeds 90-days, then this must
be covered by a RCRA permit (an
existing permit, a new permit, or an
emergency permit) or be covered by
interim status, and must be carried out
in compliance with the applicable .'
requirements of Parts 264 or 265. The
incinerator that the drummed wastes -
shipped to, must have a RCRA permit or
interim status.
If, as part of the immediate clean-up
action, the containment soil of the diked
containment area is treated (e.g.,
decontamination of the soil in a mobile
treatment unit) or the spilled waste is
treated, such activity also would not be
subject to regulation. However, if such
treatment extends beyond the
immediate-clean-up action, EPA will
require an emergency RCRA permit to
be obtained. If contaminated soil is left
in place, this constitutes disposal and
will require a RCRA permit.
3. A spill of hazardous waste material
listed in § 261.33(e) occurs in
transportation. What must the
transporter do?
Under § 263.30(a), the transporter
must take appropriate immediate action
to protect human health and the
environment. The spill containment or
treatment action taken in immediate
response is exempt from the treatment
and storage requirements of Parts 264
and 265 and the transporter is not
required to have a RCRA permit or
interim status for such action. If he has
generated hazardous waste, he must
comply with Part 262 when the
immediate actions are over. If he
transports the spill residue from the spill
site, he must comply with the
transporter requirements of Part 263 and
transport the residue to a facility with a
RCRA permit or interim status.
If required by DOT regulations (see 49
- CFR 171.15) or other federal regulations
(see, e.g., 40 CFR 117.21 and 33 CFR
153.201), the transporter must notify the
National Response Center. If an on-
scene coordinator or other official
arrives, that official-may undertake
response activities which are exempted
by today's amendments from the RCRA
standards and permit requirements for
treatment and storage. Under the |
present regulations, § 263.30(b), these |
officials may authorize the removal of '$
the waste by transporters without EPA
identification numbers and without the .
preparation of a manifest. The
hazardous waste residue must be sent to
a hazardous waste management facility
with a RCRA permit or interim status. If
long-term containment or treatment
occurs at the spill site, the site must
have a full RCRA permit, interim status,
or an emergency permit.
4. A spill occurs on the site of disposal
facility which is in interim status. The
operator of the facility undertakes
immediate containment and clean up.
He subsequently disposes of the waste
at his facility. ,
The immediate containment and clean
up activities are exempted from the
requirements of Part 264 and storage
and treatment. The owners and
operators of the facility must, ;however,
carry out the provisions of the
contingency plan under § 265.51 and
follow the emergency procedures
§ 265.56. The disposal of the hazardous
waste is subject to the disposal
requirements of Part 265. If the disposal
facility is unable to dispose of the spill
residue, the owner or operator of the
facility, if he has generated a hazardous
waste, may accumulate the waste on- •
site under the provisions of § 262.34, and
must comply with all -the Part 262
requirements applicable to generators of
hazardous waste.
V. Effective Date
Section 3010(b) of RCRA provides that
EPA's hazardous waste regulations and
revisions thereto take effect six months
after their promulgation. The purpose of
this requirement is to allow persons
handling hazardous wastes sufficient
lead time to prepare to comply with
major new regulatory requirements. For
the amendments promulgated today,
however, the Agency believes that an
effective' date six months after
promulgation would cause substantial
and unnecessary disruption in the
implementation of the regulations and
would be contrary to the public interest.
The amendments make clear that
persons responding to spills are not
engaging in treatment and storage
. activities and that such activities do not
have to be done in facilities with a
RCRA permit or in interim status. The
effect.of the amendments will be to
relieve these persons of having to
comply with a number of impractical
requirements with respect to spills
response actions. The Agency believes
that this is not the type of regulation
revision that Congress had in mind
-------
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76630 jFedergl Register / Vol. 45,- No. 225 / Wedneisday, November 19, 1980 / Rules and Regulations
when it provided a six month delay
between the promulgation and the
effective date of revisions to regulations.
Consequently, the Agency is setting an
effective date of November 19,1980, for
these amendments.
VI, Promulgation in Interim Final Form
These amendments operate as a
clarification of the hazardous waste
regulations published in May of 1980.45
FR 33Q66 (May 19,1980). With certain
exceptions, those regulations did not
address containment and treatment, of
spills of hazardous wastes or materials
Which, when spilled, become hazardous
wlstes. A literal interpretation of the
May regulations, however, would mean
that such actions constitute storage and
disposal fully subject to regulation.
These amendments conform the
regulations to their original intent The
Agency believes that good cause exists
for promulgation of this rule in final
form. §pq Si U,S.p. 553(b}(B}.
Delaying the application of these rules
to allow opportunity for public notice
and comment would work substantial
hardship on persons handling hazardous
waste. The regulatory program goes into
effect on November 19,1980, Spills are
everyday occurrences In the real world.
Without immediate clarification of the
regulations, all persons who might in the
future spill a hazardous material or
hazardous waste wou,ld have tp the
prepared to be in full compliance with
the feari 265 regulations governing
treatment and storage. Without these
clarifying amendments substantial
hardship would be imposed, without
appreciable benefit, on the regulated
community.
VII. Requests for Comments
lire Agency is soliciting comments on
all aspects of the amendments and pn
all issues discussed in this preamble. In
addition, tlje Agency may initiate more
Comprehensive rulemaking in the near
future on RCRA's application to spill
responses. The amendments published
today will be subject to reconsideration
at that time. The public may accordingly
be provided additional opportunity to
cbmfJicfll on th^ Agency's regulation of
spills.
VIII. Regulatory Impacts
The effecf tof these amendments is to
; ] !''itduje iJie.oyerall^cQsts, economic,
I Impact and reporting and recorSkeeping
impacts of EPA's hazardous waste
management regulations. The Agency is
,, unable tg estimate these reductions.
Dated: November 14,1980.
Douglas M. Costle,
Administrator. •
Title 40 of the code of Federal
Regulations is amended as follows:
§260.10 [Amended]
1. Add the following definition to
§ 260.10{a)(64a):
"Spill" means the accidental spilling,
leaking, pumping, pouring, emitting, or
dumping of hazardous wastes or
materials which, when spilled, become •
hazardous wastes into or on any land or
water. . .
§122.3 [Amended] '
2. Add the following definition to
§122.3:
"Spill" fRCRA] means the accidental
spilling, leaking, pumping, emitting,
emptying, or dumping of hazardous
wastes or materials which, when spilled,
become hazardous wastes into or on
any land or water.
§264.1 [Amended]
3. Add the following paragraph (g)(8) .
to I 264.1:
* * * ft 4
(g)***
(8) Persons with respect to those
activities which are carried out to
immediately contain or'treat a spill of
hazardous waste or material which,
when spilled, becomes a hazardous
waste, except that, with respect to such
activities, the appropriate requirements
of Subpart C and D of this Part are
applicable to owners and operators of
treatment, storage and disposal facilities
otherwise subject to this Part.
• [Comment: This paragraph only applies
to activities taken in immediate
response to a spill. After the immediate
response activities are completed, the
applicable regulations of this Chapter
apply fully to the management of any
spill residue or debris jwhich is a
hazardous waste under Part 261.]
§ 265.1 [Amended]
4. Add the following paragraph (c)(ll)
to § 265.1:
*****
(el*'** . .... , . ' . ...
(11) Persons with respect to those .. • •, .
activities which are carried out to •
immediately contain or treat a'spill of '-..
hazardous waste or nlaterial which,'-.'/
when spilled, becomes a hazardous', .. ',i;
waste, except that, with respect to such
activities, the appropriate requirements '
of Subpart C and D of this Part are
applicable to owners and operators of
treatment, storage and disposal facilities
otherwise subject to this Part. .
[Comment: This paragraph only applies ;
to'activities taken in immediate
"response to a spill. After the immediate1
response activities are completed, the
regulations of this Chapter apply fully to
the management of any spill residue or
debris which is a hazardous waste
under Part 261.]
§ 122.21 [Amended]
5. Add the following paragraph (d)(3)
to § 122.21:
(3) Further exclusions. A person is not
required to obtain a RCRA permit for
those activities he carries out to
.immediately contain or treat a spill of
hazardous waste or material which,
when spilled, becomes a hazardous •
.waste. [Comments: This exclusion is
intended to relieve persons of the
necessity of obtaining a RCRA permit
where the treatment or storage of
hazardous waste is undertaken as part
of an immediate response to a spill. Any
treatment, storage or disposal of spilled
material or spill residue or debris that is
undertaken must be covered by a RCRA
permit, an emergency RCRA permit or
.interim status.]
These amendments are issued under
the authority of Sections 1006, 2002(a),
3004 and 3005 of the Solid Waste
Disposal Act, as amended by the
Resource Conservation and Recovery
Act of 1976 (RCRA), as amended, 42
U.S.C. 69dS, 6912(a), 6924 and 6925.
!PR Doc. 80-36132 Filed 11-18-80; 8:45 am]
BILLING CODE 6560-30-M
40 CFR Part 122
[SWH-FRL 1675-2]
Hazardous Waste Management
System: General and EPA
Administered Permit Programs: The
Hazardous Waste Permit Program
AGENCY: United States Environmental
Protection Agency.
ACTION: Interim final rule and request
for Comments.
SUMMARY: The Environmental Protection
.Agency ("EPA") is today amending its
hazardous waste permit regulations to •
•clarify the circumstances under which
hazardous waste management facilities
may qualify for interim status, interim
status'is the.-condition under which
'certain facilities would be treated as :
having been issued a permit until such
time as final administrative action was
..taken on their permit application. Thestj
amendments have been, prompted by
questions from States and the regulated
community concerning the, eligibility of
various' types of facilities for interim
status.
i Ji iiL
.lull
] li'.Ji
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Federal Register / Vol. 45, No. 225 / Wednesday, November 19, 1980 / Rules and-Regulations 76631
This notice also solicits comment on
enforcement and regulatpry policies
whichjEPA is considering adopfing to ...
deal w,ith, facilities .which; miss ,the .._.." ;
notice and application filjng deadlines ,
for interim status. •
DATES: Effective date: November'19,
. 1980. Comment Date: 'Comments on'the
amendments and policies discussed in
this notice are due February 17,1981.
FOR FURTHER INFORMATION CONTACT:
...John H. Skinner, Director, State
Programs and Resource Recovery :
Division (WH-564), U.S. Environmental
Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460, 202/755-9107.
ADDRESSES: Comments should be sent
to Docket Clerk, Office of Solid Waste
(WH-562), 401 M Street, S.W.,
Washjngton,'D.C. The comments should
refer to'"Docket 3005-4nterim status": • .
SUPPLEMENTARY INFORMATION:
I. Introduction . '•-'?'. ,
; Subtitle C of the Resource
Conservation and Recovery Act of 1976,
as amended ("RCRA"), 42 U.S.C. :
§§ 6921-6933, requires EPA td establish •
a comprehensive Federal'regulatory
program to assure the proper :. ': , '
management of hazardous waste.' One of
the most important features of this:
program is the'rquirement that facilities *
which treat, store or.dispose of "
hazardous,waste obtain a permit from
EPA (or a State authorized by EPA to
conduct a hazardous waste program)
and that hazardous wastes only be
designated for, delivered to and treated,
stored or disposed of in these permitted
facilities (Sections 3002, 3003, 3004 and ,
3005). Indeed, after the effective date of.
EPA's regulations identifying hazardous
wastes, it is'a felony to transport those
wastes to an unpermitted facility or to ,
treat, store or dispose'of them at an
unpermifted facility (Sections 3008(d)(l)
and (2)):., ..
Recognizing that EPA and authorized .
States would not be able to issue
permits'to all hazardous waste
management facilities before the
Subtitle G program became effective,
Congress provided in Section 3005(e) of
RCRA that certain facilities would be
treated as having been issued a permit
until such time as final administrative
action was taken on their permit
application. This statutory permit—
commonly referred ,to. as "interim
status", the title of Section 3005(e)—is
conditioned.on a facility's meeting the
following three requirements:
lr The facility must have been in ...
existence on November 19, 1980.2 : :
2. The. facility must have "complied .
with the requirements of section
3010(aj" of RCRA (notification of
hazardous waste activity).
3. The facility must have filed an
application for a permit under Section
3005. - -
On May 19,198Q, EPA published
regulations defining when a hazardous'
waste management facility may qualify
for interim status. See 40. CFR
§§ 122.22(a) and 122.23(a), 45 FR 33433-
33434 (May 19,1980).Those regulations
provide that interim status may only be
obtained by an existing facility (defined
in § 122.3) which has "[n]otified,the .
Administrator within 90 days from the ,
promulgatiph or revision of Part 261 as
required by Section 3010 of RCRA" "','
(§ 122V23[a)(l)) and submitted aii
application within "six months after the
first promulgation of regulations in 40 ,
CFR Part 261 listing and identifying
hazardous wastes"—i.e., November
19,1980 (§ 122.22(a)). ' '
EPA has received numerous questions
about these provisions since their
publication. .Most have focused on two
major issues: whether facilities can
qualify for interim status after
November 19,1980, and whether
facilities which missed statutory or
regulatory filing deadlines can qualify
for iterirn status. We have examined
these issues carefully and have
concluded that § § 122.22(a) and 122.23
need to be amended to better define the
universe of hazardous waste
management facilities which are eligible
for interim status under Section 3005(e).
We have also decided that the Agency .
needs to establish enforcement and
regulatory policies to deal with facilities
which have failed to meet applicable
deadlines for filing notifications and
permit applications. These amendments,
and policies are discussed below in the
context .of the three .sta'tutory
prerequisites for interim status.
II. Requirement That Facilities "Comply
With the Requirements of Section
3010(a)"
Section 3005(e)(2) of RCRA conditions
interim status on a facility's having
"complied with the requirements of
Section 3010(a)." Section. 3010(a) in turn
requires that:
1 Throughout this notice. EPA will use the term
"facility" to .refer to the owner'and operator of a
hazardous' waste management facility as welt as the
facility itself. Thus where, for example, the notice
speaks of a "facility" being issued a_permit, that.. .
term should be understood to mean the owner and
operator of the facility. ,'
" When RCRA was originally enacted, Section
3005(e) provided that a facility had to be in .
existence as of "the date of enactment of this
Act"—i.e., October :21,1976: Recent amendments tb
RCRA have changed this date.to November 19,1980:
See Section 10 df the Solid Waste..Disposai Act
Amendments of 1980. P.L. 96-482 (October 21,1980).
Not later than ninety days after
promulgation pf regulations under section
3001 identifying * * * or listing any '
substance, as a hazardous waste . . .any
person generating or transporting such •
substance .or owning or operating a facility -•.
for the treatment, storage or disposal of .such;:
substance shall file with the Administrator
(or with States having authorized hazardpus
waste permit programs * * *) a notification
stating the location and general description of
the activity and the identified or listed
hazardous wastes handled by-such person.
Three major questions have been
raised concerning the interrelationship
between Sections 3005(e)(2) and 3010(a).
A. Requirement to notify.
A number of facilities have pointed
out to EPA that they were not required
to notify under Section,3010(a). They •.-.
have asked whether a facility which is
not required to notify under Section
3010(a) (and therefore did hot.submit a .
timely notification) would be eligible for
interim status.
These facilities are correct in their
observation that Section 3010(a) does
not require all hazardous waste
management facilities to notify. The
notification requirements of Section 3010
are triggered only by the publication of
"regulations under Section 3001 "identify
by its characteristics or listing any ...
substance as hazardous waste subject to
... subtitle [C]" and apply only to ,
person's who are handling those
substances at the time the regulations
are published. See also 45 FR 12747-
12748 (February 26,1980). Moreover,
EPA has, by regulation, exempted
several classes of facilities which would
otherwise be required to notify under
Section 3Q10 from having to comply with
any notification requirements (e.g., on-
site storage facilities operated by small
quantity generators (see § 261.5) and
recycling facilities (see § 261.6)).
If a facility is not required to file a
Section 3010 notification, it is EPA's
opinion that it has "complied with the
requirements of Section 3010(a)" and.
has met that prerequisite for interim
status. A contrary construction of
Section 3005(e)(2)—which would have
eligibility for interim status turn on
whether a,facility had filed a "
notification, irrespective of whether it
was required to—would condition
interim status on a facility's meeting.a
requirement which was not dictated by
either statute or regulation. Indeed, in
some cases—e.g., where a facility did
not begin handling hazardous waste
until after the ninety-day notification
deadline—it would condition interim
status on a facility's meeting a '
requirement with which 'it could not, as
a practical matter; comply. ' '• • • •••-•.• •
. EPA's;Mayil9,'1980, regulations •
defining when a facility may obtain
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|i ^jiiiijiyi^iiiyiii
Vol. 45, No. 225 / Wednesday, November 19, 1980 / Rules and Regulations
interim status did not reflect the
distinction between filing a notification
and being required to file a notification
under Section 3010. To correct this error,
EPA is today amending § 122.23(a)(l) to
make It dear that a facility which is not
required to notify under Section 3010
may obtain interim status without filing
a notification if it meets the remaining
two prerequisites set forth in Section
B, Ninety day filing deadline.
A number of facilities which were
required to file a notification as a result
of the publication of EPA's May 19,1980,
regulations have advised the Agency
that they did not file a notification
within ninety days. These facilities have
asked whether they will be eligible for .
interim status if they file a late
notification, i
As noted above, Section 3oio(a)
requires facilities handling wastes listed
In EPA's May 19, I960, regulations not
only lo file a notification, but to file the
notification within ninety days (i.e., by
August 18, I960). It js EPA's opinion that
a facility which was required to notify
as a result of the publication of EPA's
May 19,1980, regulations and did not
file a npUficiition by August 18,1980,
has not ''complied with the requirements
6f section 3010{a)" and is not eligible for
interim status. A contrary interpretation
of Section 3010(a) would essentially
Mad ijip ninety-day deadline out of the
statute.
EPA recognizes that this literal
construction may have the effect of
preventing some well-managed facilities
from ever qualifying for interim status.
We have developed two policies to
provide relief in these situations. The
first deals with facilities whose failure
to notify is attributable to ambiguities in
EPA's regulations; the second with
facilities whose failure to notify is their
own fault. In our opinion, these policies
will preserve the integrity of the ninety-
day deadline in Section 3010 while at
the same time providing the
administrative flexibility necessary to
deal with late filings on a case-by-case
basis., .. . '\
i. Revised notification requirements.
Since the publication of EPA's May 19,
1980, regulations, members of the
regulated community, States and
environmental groups have brought to
EPA's attention a number of provisions
in the regulations which were not clear,
or, as applied to specific waste
management situations, did not make
sense. In an August 19,1980, Federal
::> • ^Facilities which nave not submitted a
I;!;*"'; , , no(ltIe h L 'ink H.i'ill'Ullr L'll'jlfluillll, ihlPjIiili'iilii1 llliliii
' If an amendment deals with the issue whether a
material is a hazardous waste, EPA may at the
same time "trigger a new opportunity far notification
under Section 3010..
I i 1-nliiUI i s'ji1;1; I";1!; ,i; :.'; i i II » n IN I i
II | III | „»'!,, , i I i I |lli , | | II | Illllllln Ill I II | I lull
clerical errors, oversight or other factors.
Some may be well-managed facilities
whose continued operation is in the
public interest.
Although EPA cannot grant interim
status to facilities which failed to file a
timely Section 3010 notification, we are
prepared to exercise our enforcement
discretion to allow such facilities to
continue operating after November 19,
where their continued operation would
be in the public interest. To provide
formal assurances to these facilities that
they will not be prosecuted for operating
without a permit, EPA is considering
issuing Interim Status Compliance
Letters ("ISCLs") to qualifying facilities ,
stating that the Government will not
prosecute them for operating without a
permit if they file a permit application
and comply with all applicable Part 265
standards. The ISCL would contain
similar provisions shielding generators
and transporters using these facilities
from Federal prosecution for sending
wastes to an unpermitted facility.
Compliance orders issued under Section
3008 of RCRA (with or without a civil
penalty assessment) could also be used
to achieve essentially the same result.
Although a facility operating under an
ISCL or compliance order and complying
with EPA's Part 265 regulations would
not be immune from citizen suits under
Section 7002 of RCRA because it was
technically operating without a permit,
we doubt that such suits would ever be
successful. Federal courts sitting in
equity are not likely to close down
facilities which have failed to submit a
timely notification under Section 3010 if
they are otherwise fully complying with
all applicable.substantive
environmental standards.
An ISCL or compliance order would
also assist facilities which must file
under Section 13 of the Securities and
Exchange Act of 1934, as amended, in
making a full disclosure of the extent of
their potential liability under RCRA. As
noted above, for a facility which is
complying with its ISCL or compliance
order, potential liability under Section
3008 or 7002 should be negligible.
EPA expressly solicits comment on
these approaches. A similar
enforcement policy was successfully
used by EPA under the Clean Water Act
("CWA") to deal with an inflexible
statutory deadline much like the ninety-
day deadline in Section 3010.5 The main
"Section 301(b) of the Clean Water Act, 33 U.S.C.'
§ 1331(b), requires all point source dischargers to
practicable control technology by July 1,1977. When
it became apparent that some dischargers would not
be able to meet July 1,1977 deadline, EPA began
issuing letters and orders to these facilities stating,
Footnotes continued on next page
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Federal Register / Vol. 45, No. "225 / Wednesday, November 19, 1980 / Rules and Regulations 76633
difference between the CWA policy and
the policy announced above is that
under the latter EPA would generally
not extend deadlines for complying with
applicable regulatory requirements. In
this respect, we think it is an even more
judicious and e'nvionmentally sound .
exercise of EPA's enforcement
discretion.
3. A Caveat.
Facilities should not construe the
announcement of the foregoing policies
(or the amendments discussed in
Section III, below) as an invitation to
miss applicable statutory or regulatory
filing deadlines. These policies are
designed to address situations where
facilities have acted reasonably and in
good faith or where well-operated
facilities have through clerical error or
oversight failed to submit a timely
notification date. They are not intended
for facilities which have made little or
no effort to comply with-EPA's
regulations. _
C. 1980 Amendments to Section
3010(a).
The Solid Waste Disposal Act
Amendments of 1980, P.L. 96-482
(October 21,1980), amend Section
3010(a) of RCRA to make notifications
triggered by amendments to EPA's
Section 3001 regulations after October
21,1980, discretionary'with the
Administrator. EPA has been asked —
what effect these amendments will have
on facilities' eligibility for interim status.
We see two important consequences
for interim status flowing from the
enactment of,these amendments. First,
facilities which handle wastes listed or
identified as hazardous wastes by EPA
after October.21,1980, are no longer
automatically required to notify under
Section 3010. Only if EPA expressly
requires facilities to notify will
notification under Section 301p(a).be
required.
Second, there is no longer any
statutory deadline for filing
. notifications. In the future, all
notification deadlines will be -set by
regulation. This will give EPA the same
administrative flexibility to deal with -••
late notifications that it currently has
with respect to late permit applications,
See Section III, below. " •
III. Requirement that a Facility Have
"Filed an Application Under this
Section" , '
A second statutory prerequisite of
interim status is that the owner and
operator of a facility have "filed an
Footnotes continued from last page
that the Agency would not prosecute them for
failing to meet the July 1,1977, date if they met an
alternative deadline and accompanying compliance
schedule set forth in the letter or order.
application under * * * section [3005]".
Section 3005(e)(3) EPA's regulations
implementing Section 3005 condition
eligibility for interim status on a
facility's having "complied with the
requirements of § 122.22(a) * * *
governing submissions of Part A '
applications." See § 122.23[a}(2). Section
122.22(a)(2) in turn requires that a Part A
application be submitted by November
19,1980.
• EPA has been asked whether, in light
of these requirements, an existing
hazardous waste management fa'cility
which is not now subject to EPA's'
hazardous waste regulations will be
able to obtain interim status by filing an
application after November 19,1980, if
EPA amends its regulations to bring ,
them into the hazardous waste
management system. The answer to this
question is yes, if the owner and
operator of the facility file a permit
application within six months of the
amendment to EPA's regulations which
first subjects the facility to the
requirements of Part 265 or 266. EPA is
today amending § 122.23(a) to clarify ,
this point. As noted in the "comment" to
this amendment, EPA will make every
effort to identify permit filing deadlines
in the Federal Register publications
announcing amendments to its
regulations to avoid future confusion
about when Part A permit applications
must be submitted. See, e.g., 45 FR 47832
(July 16,1980], 45 FR 74884-74885
(November 12,1980).
EPA is also adding a paragraph to
§ 122.22(a) to make it clear that a facility
which submits a permit application by a
revised filing deadline announced by
EPA in a Federal Register notice
, clarifying its regulations (see discussion
in Section II.B.l, above) has met the
prerequisites of Section 3005(e){3) and is
eligible for interim status.
Some existing hazardous waste
management facilities may need to-
qualify for interim status in the future,
not as a result of EPA regulatory action,
but because of changes in their own
operations. For example, a small
quantity generator may start generating
over 1,000 kg of hazardous waste a
month and need to obtain interim status
for an exisitng on-site treatment, storage
or disposal facility. Or a facility which
properly determmed_on August 1,1980,
that the solid waste it was treating did
not exhibit any of the characteristics of
hazardous waste may retest it after
November 19,1980, and find that it
exhibits the characteristic of extraction
procedure toxicity; We have been asked
whether the facilities will be able to
qualify for interim status if they do not
submit a permit application by
November 19,1980.
• EPA believes these facilities should be
eligible for interim status if they
promptly file a permit application.
Accordingly, we are today amending
§ 122.22(a) to allow these facilities to
qualify for interim status if they file a
permit application within 30 days after'
they lose their regulatory exemption or
begin handling hazardous waste.
Readers should note that the'se
facilities will technically be operating
without a permit until they submit their
permit application. EPA will not initiate
any enforcement action against them,
however, if they contact their EPA
Regional Office immediately and file an
application within the thirty-day period.
EPA believes these amendments will
cover most situations where facilities
which are eligible for interim status
under Sections 3005(e) (1) and (2) must
file a permit application. In the event
. they do not, and in the event some
facilities inadvertently miss the filing
deadlines set forth in § 122.23(a), EPA is
adding another new provision to that
section which allows a facility to obtain
interim status if it files a permit
application by the deadline set forth in a
compliance order issued by EPA under
Section 3008. .
IV. Requirement that a Facility Be "in
Existence on November 19,1980"
The final statutory prerequisite for
obtaining interim status is that a facility
have been "in existence on November
19,1980". EPA regulations define
"existing facility" as a "facility in
operation," (i.e., 'a facility "receiving
hazardous waste for treatment, storage
or disposal") or "facility for which
construction has commenced." 40 CFR
§ 122.3 (definitions of "existing HWM '
facility" and "in .operation"). EPA has
been asked if a facility which was
handling a solid waste on November 19,
1980, that was not identified or listed as
a hazardous waste in EPA's Part 261:
regulations prior to November 19,1980, •
but was identified or listed in a
subsequent amendment to those
regulations could qualify as an existing
hazardous waste management facility
for purposes of obtaining interim status.
In EPA's opinion, if a facility was
receiving for treatment, storage or
disposal on ofbefore November 19,
1980, a solid waste which is
subsequently listed or identified as a
hazardous waste by EPA, the facility
was "in existence on November 19, ..
1980" and is eligible for interim status if
it files a timely permit application and
Section 3010 notification (if required).
Limiting eligibility for interim status
only to those facilities which were
-------
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B634 Federal Register / Vol. 45. No. 225 / Wednesday, November 19, 1980 / Rules and Regulations
handling a solid waste on November 19,
19J5Q, that had beenlisted or identified
as a hazardous waste prior to that date,
would attach too much regulatory
significance to the order in which EPA
promulgates its hazardous waste
listings. It would also prevent any
facility which was handling a solid
waste ROW Jemporarfly exempted from
Subtitle C controls as a "special waste"
from ever obtaining interim status.*
Readers should note, however, that
for a facility to qualify as an "existing'
facility" in this situation, the solid waste
which the facility was handling on or
before November 19,1980, must be the
same waste which is later identified or
listed in EPA's hazardous waste
regulations. A facility which is handling
frash on November 19,1980, for
example, would not qualify as an
existing facility simply because after
November 19,1980, it began handling a
solid waste which was subsequently
listed as a hazardous waste m EPA's
Part 2G1 regulations.
EPA recognizes that it may be difficult
for some facilities to establish a precise
correlation between solid wastes
handled prior to and after November 19,
1980, because of changes in
manufacturing processes, wastewater
treatment processes, air emission
controls, raw materials or other similar
Components of the manufacturing and
waste treatment process. The Agency
solicits comment on what types of
guidelines it should follow in these
situations to determine if the wastes
being handled prior to and after
November 19, I960, are the "same
waste." p| "" ,.' ~ .r,i!'i ,. ,'^
II ii I mill,: „ i1 „ in. ;' :.| nib . IIP" \ i.'iuil: , .h ">i,.: nil'. .,
V. Practical application
To assist readers hi understanding the
amendments and policies which have
been oiitlined aboyeA EPA believes it
would be useful to discuss hpw they
would apply in concrete factual
situations.
1. The ABQ Company completed
construction of a hazardous waste
" incineratorjin October 1,^9,80. On
October 2,1980, the facility begins
incinerating a number of hazardous
wastes listed in EPA's May 19,1980
regulations. The facility submitted a
permit application on November 1,1980,
but did not notify on August 18,1980.
Docs the facility have interim status?
Yos. The facility was not required to
file a Section 3010 notification because
it was not handling hazardous waste at
the lime of promulgation of EPA's May
19,1880, regulations. Thus, although it
has not jpOfied, it has nevertheless
"complied with section 3010(aj" within
the meaning of Section 3005(e).
The facility also meets the other two
prerequisites for interim status.
2. The ABC Company owns a landfill
which, since 1978, has been used
continuously and exclusively for the
disposal of sludges from the treatment of
wastewater from widgit production. On
January 1,1982, EPA adds wastewater
treatment sludge from the production of
widgits to its hazardous waste list, The
preamble to the Federal Register
publication announcing the new listing
does not expressly require facilities
handling wastewater treatment sludges
from widgit production to notify. It does
state, however, that such facilities must
file a permit application and begin
complying with all applicable iterim
status standards by July 1,1982. The
ABC Company files a complete permit
application by July 1,1982. Does it have
interim status?
Yes. Section 3010(a) Of RCRA was
amended by the Solid Waste Disposal
Act Amendments of 1980 on October 21,
1980, to make Section"3010(3)
notifications based on revisions .to
EPA's hazardous waste list and
characteristics discretionary with the
Agency. Thus, in the absence of an
explicit EPA directive to notify, a
company handling a hazardous waste
listed in a revision to EPA's Part 261
regulations which was published after
October 21,1980, would not be required
to submit a new Section 3010
notification.
The ABC Company landfill also meets
the two remaining prerequisites for
interim status. Because it was handling
a solid waste on November 19,1980,
which was subsequently listed as a
hazardous waste by EPA, it was a
hazardous waste management facility
which was "in existence on November
•Tim same masoning applies to facilities which
bommirteed con«traetion by November 19,1980.
'19,1980." If also filed a timely permit"
application.
3. The ABC Company owns an on-site
landfill which was handling garbage on
November 19,1980. On January 1,1981,
the company goes into the widgit
production business and begins using
the landfill to dispose of sludges from
'the treatment of wastewater generated
by the widgit production process. On
January 1,1982, EPA lists wastewater
treatment sludges from the production of
widgits as a hazardous waste. The
preamble to the Federal Register
publication announcing the new listing
requires facilities handling widgit
wastewater treatment sludges to notify
by March 30,1982, and submit a permit
application by July 1,1982. The ABC
Company files a timely notification and
permit application. Does its landfill have
interim status?
No. On."November 19,1980, the landfTll
was not handling a hazardous waste (as
defined by EPA in its May 19, or July 16,
1980, regulations) or a solid waste which
was subsequently identified or listed as
a hazardous waste by EPA. It was
therefore not "in existence" as a
hazardous waste management facility
on November 19,1980, and cannot
qualify for interim status.
4. The ABC Company generates 500 kg
per month of a waste listed in EPA's
May 19,1980, regulations. Since 1975,
the company has disposed of this waste
in an unlicensed on-site landfill. Starting
on November 19,1980, the company
starts sending its waste to a state
approved industrial landfill in order to
take advantage of EPA's small quantity
generator, regulations. Later, EPA lowers
the small quantity generator exemption
to 100 kg per monthrThe ABC Company
cannot find a nearby hazardous waste
management facility to take its waste
and would like to reactivate its on-site
landfill. Is the landfill eligible for interim
status?
Yes. The landfill can meet all three
prerequisites for interim status if it
submits complete permit application
within six months after EPA amends
Part 261 to lower the small quantity
generator exemption.
5. The ABC Company treats a waste
which it believes is exempted as
hazardous waste under § 261.4 of EPA's
May 19,1980, regulations. It does not
notify on August 18,1980, or submit a
permit application by November 19,
1980. On March 1,1981, EPA issues an
interpretation of § 261.4 which makes it
clear that the waste treated by the
company is not exempt.'The company
tests the waste against the
characteristics of hazardous waste
identifed in Subpart C of Part 261 and
the waste exhibits several of the
characteristics. Can the company's
treatment facility qualify.for interim
status?
This will depend on the content of the
Federal Register notice announcing
EPA's regulatory interpretation. If the
Agency decides that the exemption in
i.§ 261.4 was so vague or ambiguous that
facilities in the position of the ABC
Company could not reasonably have
been expected to know that they were
required to notify and submit a permit
application, it will (1) include as part of
its interpretation a formal Agency
determination that those facilities were
not required to notify and (2) set a new
deadline by which those facilities must
submit a complete permit application if
they wish to qualify for interim status.
Thus, if the ABC Company submits a
complete application by the.new
.Z;!";::!
-------
Federal Register / Vol. 45, No. 225 ./ Wednesday, November 19. Ig80 /
deadline, Its treatment facility will have
qualified for interim status.
On the other hand, if EPA decides that
the regulation was not vague or
ambiguous or that Agency's resolution
of ambiguities in the regulation does not
affect facilities in the position of the
ABC Company, it will not modify
existing filing and compliance dates for
those facilities. In this situation, the
treatment facility cannot'qualify for
interim status because it has not
submitted a timely notification and
permit application.
VI. Miscellaneous Issues
A. Protective filings.
We have been advised that a number
of facilities which are riot now subject to
EPA's hazardous-waste regulations have'
filed "protective" notifications and
permit applications to comply with
EPA's May 19,1980, Part 122 regulations
and thus assure that they will be able to
obtain interim status in the future (if
necessary). Many of these filings may
not be necessary under today's revised
regulations.
. We urge facilities which have filed
unnecessary notifications or permit
applications to advise the EPA Regional
Office. This will help assure that our list
of existing hazardous waste
management facilities is accurate for
enforcement and other purposes.
B. Units within existing facilities.
Section 122.3 of EPA's May 19,1980, \
regulations defines the term "hazardous
waste management facility" to include
sites consisting of several operational
units which handle hazardous waste. A
• facility, for example, may consist of two
hazardous waste storage facilities, a
hazardous waste landfill and a
hazardous waste incinerator.
Section 122.23(c) restricts the
modifications which may be made
during interim status to the design
capacity of an existing facility and to
the processes used by the facility to
treat, store or dispose of hazardous
waste. EPA has been asked whether,
when an individual unit in an interim .
status facility later qualifies for interim
status, that constitutes a "change" in
existing design capacity or processes
and, if so, whether that change would be
subject to the restrictions set forth in
§122.23(c).
The restrictions on modifications in
§ 123.23(c) are intended to prevent
interim status facilities from making
major changes in their existing
operations which either would be
tantamount to the construction of a new
facility or should ideally be made after
an individual permit is issued. See 45 FR
33324 (May 19,1980). They are not
intended to restrict the number of
individual units,within those facilities ,
which can qualify for interim status.
Thus, EPA would not consider the fact •
that an individual unit within a facility
has independently qualified for interim
status (or is operating under an ISCL or
compliance order, as discussed above)
to be a "change" to the facility subject
to the restrictions of § 122.23(c). The
individual unit-would, of course, be
subject to those restrictions if the
facility sought to enlarge the design
capacity of the unit or modify the
processes used by the unit to handle
hazardous waste.'
VIL Interim Final Regulations and
Effective Date
A. Interim final regulations.
EPA has determined under Section
553 of the Administrative Procedure Act,
5 U.S.C. § 553, that there is good cause
for promulgating these amendments
without prior notice and comment. As
discussed above, EPA's regulations
defining when a facility can obtain
interim status have erroneoulsy led
many facilities to believe that unless
they file a permit application by
November 19,1980, they will-never be
able to obtain interim status. We think it
is essential to correct this error before
November 19,1980, or else a significant
number of facilities will be filing
unnecessary permit applications on
November 19,1980. Readers will have
ample opportunity (ninety days) to
comment on these amendments before
they are issued in "JFinal final" form.
B. Effective date.
Section 3010(b) of RCRA requires that
revisions to "regulations * * *
respecting * * * requirements [for]
permits * * * shall take effect on the
date six months after the date of * * *
revision." We do not think a literal
application of this requirement would
make sense in this case. The purpose of
Section 3010(b) is to allow persons
handling hazardous waste sufficient
lead time to prepare to comply with
major new regulatory requirements.
Delaying the effective date of
amendments which reduce existing
regulatory requirements is not necessary
to carry out this objective. Furthermore,
for the reasons stated above, EPA
believes an effective date of six months
after promulgation would be
counterproductive since much of the
unnecessary regulatory burden which
these amendments seek to avert will
already have been imposed. We are
therefore making these amendments
effective on November 19,1980, the
effective date of the remainder of EPA's
May 19,1980, hazardous waste
regulations.
Dated: November 14,1980.
Douglas M. Costle,
Administrator.
Title 40 of the Code of Federal -
Regulations is amended as follows:
1. Section 122.22 is amended by
redesignating paragraphs (a)(2) and
(a)(3) as paragraphs (a)(4) and (a)(5)
respectively, and revising paragraph ,
(a)(l) and adding new paragraphs (a)(2)
and (a)(3) to read as follows:
§122.22 Application for a permit.
* * * * * .
(a) Existing HWMfacilities. (1)
Owners and operators of existing
hazardous waste management facilities.
must submit Part A of their permit .
application to the Regional
Administrator no later than (i) six
months after the date of publication of
regulations which first require them to
comply with the standards set forth in
40 CFR Parts 265 or 266, or (ii) thirty
days after the date they first become
subject to the standards set forth in 40
CFR Parts 265 or 266, whichever first
occurs. [Comment: For facilities which
must comply with Part 265 because they
handle a waste listed in EPA's May 19,
1980, Part 261 regulations (45 FR 33006 et
seq.), the deadline for submitting an
application is November 19,1980. Where
other existing facilities must begin
complying with Parts 265 or 266 at a
later, date because of revisions to Parts
260, 261, 265, or 266, the Administrator
will specify in the preamble to those
revisions when those facilities must
submit a permit application.]
(2) The Administrator may by
publication in the Federal Register
• extend the date by which owners'
• operators of specified classes of existing
hazardous waste management facilities
must submit Part A of their permit
application if he finds that (i) there has
been substantial confusion as to
whether the owners and operators of
such facilites were required to file a
permit application and (ii) such
confusion is attributable to ambiguities
in EPA's Parts 260, 261, 265, or 266
regulations. ,
(3) The Administrator may by
compliance order issued under Section
3008 of RCRA extend the date by which
the owner and operator or an existing
hazardous waste management facility
must submit Part A of their permit
application.
* * * * *
2. Section 122.23 is amended by
revising paragraph (a)(l) to read as
follows: '
-------
l" III"
I II
76636 Federal Register /.Vol. 45, No. 225 / Wednesday, November 19, 1980 / Rules and Regulations
§122.23 Interim status.
(a)*** •
(1) Complied with the requirements of
Section 3010(a) of RCRA pertaining to
notification of hazardous waste activity.
[Comment: Some existing facilities may
not be required to file a notification
under Section 3010(a) of RCRA. These
facilities may qualify for interim status
by meeting paragraph (a)(2) of this
Section.}
* » *
These amendments are issued under
the authority of Sections 1006,2002(a)
and 3005 of the Solid Waste Disposal
Act, as amended by the Resource
Conservation and Recovery Act of 1976
(RCRA), as amended, 42 U.S.C. 6905,
6912(a) and 8925.
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