8Z
Wednesday
August 18, 1982
Part ii
Hazardous Waste Management System;
Identification and Listing of Hazardous
Waste
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36092 Federal Register / Vol. 47, No. 160 /"Wednesday. August 18, 1982 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY ,
40 CFR Part 261
ISWH-FRL2109-4]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste
AGENCY: Environmental Protection
Agency. •
ACTION: Final rule.
SUMMARY: The Environmental Protection
Agency is today finalizing an
amendment to the hazardous waste
management regulations under the
Resource Conservation and Recovery
Act that defines when a container which
has held a hazardous waste is
considered "empty." On November 25,
1880 the Agency published an interim
final amendment which defined "empty
container." Today, after reviewing the
public comments on the interim final
rule, the Agency is finalizing that rule
with one change. The change allows the
use of a weight measurement as an
alternative to a depth measurement in
determining whether a container is
empty.
DATES: Final rule effective August 18,
1962.
ADDRESSES: The public docket for this
final rule is located in Room 2637, U.S.
Environmental Protection Agency, 401M
Street, S.W., Washington, B.C. 20460.
The public docket is available for
viewing from 9:00 a.m. to 4:00 p.m.
Monday through Friday, except on legal
holidays.
FOR FURTHER INFORMATION CONTACT:
RCRA Hotline, toll free at (800J 424-
9348, or at (202) 382-3000. For technical
Information contact Claire Welty, Office
of Solid Waste (WH-585), U.S.
Environmental Protection Agency, 401M
Street, S.W., Washington, B.C. 20460.
(202)755-9187.
SUPPLEMENTARY INFORMATION:
I, Background
On February 26 and May 19,1980,
EPA promulgated the first phase of
regulations implementing the hazardous
waste management system under
Subtitle C of the Resource Conservation
and Recovery Act of 1976, as amended
(RClRAJ. These regulations are published
in Title 40 of the Code of Federal
negulations (CFR) in Parts 260 to 267
and 122 to 124. Among other things,
these regulations define when a solid
waste, becomes a hazardous waste and
Is therefore subject to RCRA controls
and, additionally, when a hazardous
waste ceases to be a hazardous waste
and therefore is no longer subject to
RCRA Subtitle C requirements. The
Agency received numerous comments
and questions concerning these
provisions. In particular, the Agency
received many questions on how the
regulations applied to containers which
had formerly held hazardous waste: for
example, whether an emptied container
which previously held hazardous waste
was subject to RCRA control, and at
What point a container was considered
"empty."
In response to these questions, EPA
clarified these issues in the form of a
preamble discussion, and specifically
amended Part 261 to address regulation
of so-called "empty" containers (see 45
FR 78524, November 25,1980). In the
interim final amendment, EPA provided
a definition of "empty container" (see 40
CFR 261.7) and clearly specified that the
hazardous waste remaining in an
"empty" container was not subject to
the hazardous waste regulations.
The definition of empty container in
the November 25,1980 Federal Register
notice was divided into three parts and
was keyed to the type of'waste in the
container. The three categories of :
"empty" containers were as follows:
(1) Containers that have held
hazardous wastes other than gases and
acutely hazardous materials. An empty
container or an empty inner liner of a
container is one from which all wastes
or other materials have been removed
that can be removed using the practices
commonly employed to remove the
specific materials from that type of
container, e.g., pouring, pumping, or
•aspirating, but in no case can more than
2.5 centimeters (1 inch) remain on the
bottom of the container; or, in the case
of a lined container, an empty container
is one which has had the inner liner
removed.
(2) Containers that have held acutely
hazardous materials. An empty
container is one that has been triple
rinsed with'an appropriate solvent, or
cleaned using another method shown to
achieve equivalent removal; or, in the
case,of a .lined,container, has hadthe
inner liner removed.
(3) Compressed gas containers—An
empty container is one which has been
opened to atmospheric pressure.
In the same Federal Register notice,
EPA also indicated that although it
believed that the small amount of
hazardous waste residue that remains in
individual empty, unrinsed containers
does not pose a substantial hazard to
human health or the environment while
in the containers, the Agency was
concerned that drum reconditioners and
other facilities that clean or otherwise
handle large numbers of "empty"
containers may accumulate and treat or
dispose of significant amounts of
unregulated residue. EPA, therefore,
offered three options for control of these
residues and also requested public
comment on these options. Specifically,
the options which EPA outlined for
control of these residues were as
follows:
1. Triple rinsing for all containers.
2. Regulation of the residue when it is
removed from the container.
3. Limitation on the amount of
unregulated residue (regulation only of
those persons who handle large amounts
of hazardous waste residue in, or
removed from, empty containers).
Although the amendment published
on November 25,1980 was written in
direct response to public comment on
the May 19,1980 regulations, EPA
believed that it was appropriate to
request comments on the provisions set
forth in §§ 261.7 and 261.33(c) and the
three options for regulating residues in
empty containers. The remainder of this
preamble discusses the comments
received on the interim final rule and
EPA's response to those comments. (See
the preamble to the November 25,
Federal Register for details on EPA's
basis for defining empty container and
the options, for regulating residues (45
FR 78526-78527).)
II. Comments on Interim Final Rule and
EPA Response
EPA received approximately 30
comments on the §§ 261.7 and 261.33(c)
provisions concerning empty containers.
The majority of the commenters
appeared to favor these amendments,
pointing out that a definition of "empty"
was necessary to make it clear that
containers which have previously held
hazardous waste and meet the definition
of "empty" no longer contain residues'
subject to regulation under RCRA.
Commenters suggested two major
changes to the definition of empty
container: (1) A weight alternative to the
"one-inch rule" and (2) special rules for
ignitable liquids. In addition, they
requested the folowing: (1) A •
clarification of the provisions governing
disposal of gas residues; (2) an
explanation for the more stringent
regulation of empty containers that have
held materials listed in § 261.33(e); (3) a
clarification of whether triple rinsing
constitutes "treatment" as defined by
RCRA; (4) instructions on manifesting
non-empty tank trucks back to a
generator which is not a treatment,
storage, or disposal facility (TSDF); and
(5) information on the impact of the
amendment on small businesses.
Finally, many of the commenters
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Federal Register / Vol. 47, No. 160 / Wednesday, August 18, 1982 / Rules and Regulations: 36093
addressed the three options which EPA
had outlined for regulation of residues in
empty containers.
A. Amendment and Clarification of the
"One-inch Rule" •
Under § 261.7(b)(l) an empty
container for most hazardous wastes is
defined as one that is empty if:
(i) All wastes have been removed that
can be removed using the practices
commonly employed to remove
materials from that type of container,
e.g., pouring, pumping, and aspirating,
and
(ii) No more than 2.5 centimeters (one
inch) of residue remain on the bottom of
the container or inner liner.
EPA received a few comments which
requested that EPA provide an
equivalent weight alternative to this
"one-inch" rule, namely 3 percent of the
total weight of the contents of the
container. The commenters pointed out
that the residue in the bottom of a "
container is often difficult or even
impossible to measure due to the shape
of the container (e.g., rounded bottoms)
or dug to the position of the opening of' '
the container. They indicated that a
weight alternative would be-more
reasonable because large containers
(e.g., cargo tanks) of commercial
chemicals are regularly weighed both for
determining tare weight and for
determining how, much material has
been used before the containers are
discarded. ' '
EPA agrees that a weight alternative
to the one-inch rule is Workable in cases
when a container is routinely weighed.
There is nothing in the § 261.7 rule,
however, that precludes substituting an
equivalent weight measurement for the
one-inch measurement to determine the
amount of waste remaining in a
container. For example, the weight of 3
percent of the contents of a flat-
bottomed 55-gallon drum standing on
end (36 inches high and 22.5 inches in •
diameter) is equivalent to one inch of
residue in that drum. The percentage
weight remaining in a container which is .
equivalent to one inch will, of course,
vary depending on the configuration of
the container. For example, hi a 5,000
gallon cargo tank (400 inches long and
58 inches in diameter) one inch of
residue is equivalent to approximately
0.56 percent (28 gallons) of the volume of
the tank. ' '
In answer to the commenters' request
for a 3 percent weight alternative to the
one-inch rule, EPA agrees that a 3
percent weight alternative is acceptable
for drum-like containers less than 110
gallons in size (usually 15 gallons to 85
gallclns in size) because 3 percent is
approximately equivalent to one, inch in
a 55-gallon drum. Deciding how to deal
with a weight alternative for larger-size
containers has, however, raised several
issues.
. The first issue is whether a 3 percent
weight alternative is acceptable for
larger size containers, i.e.7 portable
tanks, cargo tanks, and tank car tanks
(>110 gallons). EPA thinks not, based
on environmental health and safety
grounds, because of the excessive
amount of waste which this alternative
would allow to remain in the container
(if it could not be removed by normal
means). For example,-in a 5,000 gallon
cargo tank, 3 percent of the contents of
the tank would measure-approximately
five inches in depth (150 gallons). Based
on the typical large size container (>110
gallons) which is used to transport
hazardous waste, EPA believes that a
0.3 percent weight alternative to the
one-inch measurement is suitable for
these containers. Three-tenths of one
percent (30 gallons) is approximately
equivalent to one inch in a 10,000 gallon
tank car; thus, EPA will accept this
weight alternative for any size container
over 110 gallons.1 Typically, if
hazardous wastes are transported in
containers over 110 gallons hi size, they
are transported in tank-like containers
of at least 5,000 gallons in size. Three-'
tenths of one percent amounts to 15
gallons for a 5,000 gallon cargo tank, 24
gallons for an 8,000 gallon tank car, and
30 gallons for a 10,000 gallon tank car.
The Agency believes that if all wastes
are removed using the practices
commonly employed to remove
materials from that type of container,
then no more than 0.3 .percent of the
tank-like container's volume should
remain. .
Because it apparently is not obvious
to the regulated community that an
equivalent weight measurement may be
substituted for a depth measurement .
under § 261.7, EPA is amending § 261.7
to make it clear that this practice is
acceptable. Based on the reasons
outlined above, a weight alternative of 3
percent is allowed for containers less .
than or equal to 110 gallons in size, and
0.3 percent for containers greater tharf
110 gallons.
The second issue is whether one inch
of residue is indeed environmentally
acceptable in defining an empty
container that is as large as a tank car,
1 EPA has chosen the point of 110 gallons to
distinguish between drums and tank-like containers,
to conform with DOT definitions. For example, DOT
defines portable tank as any'packaging over 110
U.S. gallons which is designed primarly to be loaded
into, or on, or temporarily attached to, a transport
vehicle or ship, and equipped with skids, mounting,
or accessories to facilitate handling of the tank by
mechanical means (49 CFR 171.8).
portable tank or cargo tank. One inch of
residue amounts to approximately 30
gallons in a 10,000 gallon tank car and 50
gallons hi a 20,000 gallon tank car. EPA
believes that this amount may be too
high and that more waste can be
removed by normal means. Upon further
analysis, the Agency may propose
reducing the 1 inch (0.3 percent) limit in
defining a largersize empty container.
In addition to the request for a change
: to the "one inch" rule, EPA has received
numerous telephone requests for
clarification of the existing provisions of
the rule. First, commenters have asked
EPA to clarify how to measure one inch
on the bottom of a container with a -
rounded or cone shaped bottom. The
answer is that the inch should be
measured from the deepest point of the
bottom of the container.
Secondly, apparently many
individuals are reading the "and" at the
end of paragraph § 261.7(b)(l)(i) as "or"
and therefore believe that .the practice of
leaving one inch of residue in a
, container qualifies the container as
being empty, whether or not the
container has been emptied of all of its
contents by methods commonly
employed to remove materials from that
type of container, as specified in
§ 261.7(b)(l)(i). EPA emphatically states
that this is not the case. When the two
paragraphs § 261.7(b)(l) 0) and (ii) are
properly read together, it should be clear
that one .inch of waste material is an
overriding constraint and may remain, in
an empty container only if it cannot be -
removed by no normal means. The
rationale for this provision is that there
are certain tars and other extremely
viscous materials that will remain in the
container even after the container is
emptied by normal means. Rather than
requiring the complete removal of these
materials by extraordinary means, EPA
is allowing up to an inch of such ,
material to remain in a container. On the
other hand, if extraordinary means are
necessary to remove the waste to lower .
the contents of the container down to a
depth of one inch, then they must be
employed.
Finally, EPA also wants to remind
persons who handle hazardous waste
that there are certain DOT requirements
for shipment of empty-containers which
have held hazardous materials. Under
49 CFR 173.29, a container which has
held a hazardous material must be
cleaned and purged of its contents
before the hazardous material label can
be removed.
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36094 Federal Register / Vol. 47, No. 160 / Wednesday, August 18, 1982 / Rules and Regulations
JB. tgnilgble Liquid Residues in
Containers _ _ / __
One cpmmenter was concerned with
the one-inch rule as applied to residues
In empty containers that are hazardous
solely because they are ignitable liquids.
The comraenter argued that the fluidity •
coupled with the flash point of liquid
ignitable residues should be of more
important regulatory concern to EPA
than the quantity of liquid ignitable
residue remaining in an empty
container.
Specifically, the commenter pointed
out that many liquid ignitable wastes
have low fluidity and therefore do not
drain well, and that more than one inch
of such materials may remain in a
container despite efforts to drain the
container. The commenter believed that
the residues in such regulated
containers are actually of low concern
in landfills because they are not mobile
liquids. EPA disagrees with the
commenter. EPA is concerned with such
wastes because they pose a fire hazard
(unless the containers are handled in
such a way as to prevent ignition), and
not necessarily because they may leach
Into groundwater, especially if these
wastes are not also toxic. In fact,
containers holding greater than one inch
of extremely viscous ignitable material
may pose a greater hazard than the
same amount of a very fluid ignitable
material because the waste will not tend
to run out of the container and mix with
other wastes and be diluted.
The same commenter stated that the
specific flash point of a material within
the "broad" EPA ignitabUity definition
(flashpoint <140SF) may be a more
important factor than the one-inch
residue limitation in defining whether
the residue in a container is hazardous
and ought to be subject to regulation.
The commenter believed that the flash
characteristic as well as the flash point
is important in determining the hazard
jpoSdd by an ignitable liquid waste to
human health and the environment, and
that, for example, container residues
{irrespective of quantity) which flash
below 140T but do not support
combustion, are less hazardous and
should not be treated as hazardous
wastes.
In this comment letter, the writer was
not so much questioning the one-inch
rule as he was questioning EPA's
definition of ignitable liquid. EPA
previously explained its rationale for
setting a flash point limit of 140°F in.
defining an ignitable liquid. (See 45 FR
331Q8-33109, May 19,1980, and
"Background Document: § 261.21—
Characteristic of Ignitability," May 2,
3980, p. 25.) EPA has previously
recognized that wastes classified by one
hazardous waste characteristic may
pose various degrees of hazard based on
other properties of the waste; for
example, EPA has recognized that
certain materials that flash will not
support combustion, and thus EPA
excluded aqueous solutions which
contain less than 24 percent alcohol by
volume from the definition of ignitable
liquid.
The Agency has received other
comments on degree of hazard issues
and is continuing to resolve them.
Recently, the Agency has received a
petition from National Paint and
Coatings Association (NPCA) on the ,
same issue of ignitable liquids discussed
above. As a result, the Agency is
considering amending the definition of
ignitable liquid and will consider the
concerns of the commenter when
addressing NPCA's petition. The Agency
is therefore not changing the definition
of the one-inch rule for ignitable liquids
at this time. s
C, Gas Residues
In § 261.7(b)(2), EPA defines an empty
compressed gas container as one in
which the pressure approaches
atomspheric. Several commenters
expressed concern that users of gas
cylinders might try to use extraordinary
means to reach atomospheric pressure
before returning gas cylinders to the gas
suppliers who own them.
The commenters suggested
substituting the words ". . . reaches the
pressure of the users' internal
distribution manifold" for "approaches
atmospheric." EPA does not agree with
this comment because this change could
result in a significant amount of material
remaining in the cylinder. EPA defined
an empty gas cylinder as one in which
the pressure approaches atmospheric,
because the Agency is concerned with
the hazards posed by the residual gas,
which, if improperly managed, may pose
a substantial hazard to'human health
and the environment. EPA believes,
however, that this comment largely
resulted from confusion over when a
compressed gas cylinder becomes
subject to RCRA control.
On November 3,1980, in a letter to
Lawrence W. Bierlein of the
Compressed Gas Association, John P.
Lehman of EPA clarified the
• applicability of the RCRA hazardous
waste regulations to users of
compressed gas. The letter stated that
the return of the used cylinder to the
supplier was not generation of waste
under RCRA. This letter was widely
distributed to users of compressed gas
cylinders and, at the request of many
compressed gas users, an edited version
of the information contained in the letter
is printed below for the reader's
convenience. (The Compressed Gas
Association provided the information on
the use and disposal of compressed gas
• cylinders to EPA.)
All compressed gas cylinders are owned by
or are under equivalent control of the. gas
supplier. When the customer has completed
his use of the gas, the cylinder is returned to
the supplier. As a matter of safety, there is
residual pressure in the cylinder when it is
returned. (The return transportation is
extensively regulated under the Federal
Hazardous Materials Regulation, 49 CFR170-
189). The customer's purpose in making the
shipment is to return the supplier's property,
not to discard the remaining contents of the
cylinder. The general practice is to return
cylinders for refilling. The customer does not
make the decision on the final disposition of
theTesidue in the cylinder; this is the
exclusive prerogative of the gas supplier.
Further, the decision whether or not to
discard the contents of the container is not
made until the container is returned to the
supplier.
Under these circumstances, the customer is
not generating a waste by merely returning
the cylinder and neither the returned
container nor the contained residue is a
"solid waste" as that term is defined by the
Resource Conservation and Recovery Act
and 40 CFR Part 261. Because the residue
gases are not discarded by the customer and
the used compressed gas cylinder is returned
to the supplier, the dpcision that renders the
cylinder (and contained gas) to be a waste is
made by the supplier. The customer's return
of the supplier's cylinder that may hold some
residue does not constitute the shipment of a
solid (or hazardous) waste. The cited DOT
requirements apply, however, and the
containers may have to be transported as a
hazardous material.
D. Regulation of Residues of Wastes
Listed in § 261.33(e)
Under § 261.7 and § 261.33(c), residues
in containers which held acutely
hazardous wastes are not excluded from
regulation unless the container which
had previously held a waste listed in •
§ 261.33(e) is triple rinsed or cleaned by
an equivalent method. One commenter
took issue with this provision, stating
that the amounts of acutely hazardous
wastes remaining in containers which
are emptied according to §261.7{b)(l) are
de minimis and pose no significant
threat to human health and the
environment. The commenter further
stated that the resulting rinsate would .
require increased handling and exposure
of the waste to humans, and that such
small amounts of residue do not justify
this increased handling and exposure.
EPA disagrees with the commenter
that quantities of acutelyjiazardous
waste'remaining in a container which
has been emptied according to § 261.7(b)
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Federal Register / Vol. 47. No. 160 /
1982 "-/ Rules and
(1)! are de minimis and pose little threat
to human health and the environment.
The chemicals listed in, § 261.33 (e) pose
an extreme hazard to human health and
the environment. For example,
chemicals listed for acute oral toxicity "
have been found to either be fatal to
humans in low doses, or to have an oral
LD50 toxicity to rats of less than 50
milligrams per kilogram. Such chemicals
are extremely powerful poisons;
ingestion of less than a teaspoonful of
these chemicals could be fatal to an
adult. Lesser amounts can be expected
to cause illness or even death to
children and to more sensitive members
of the population.
Additionally, chemicals listed in
§ £61.33(e) for acute inhalation toxicity
have an inhalation LC50 of less than 2
milligrams per liter. These are also
' extremely effective poisons. Less than
0.2 ounces of such a material are
sufficient to lethally contaminate the air
of an average size (12'x 12' x 8') room.
Indiscriminate disposal of small
quantities of such chemicals could be
highly dangerous. EPA, therefore, was
' ccincerned that the residue remaining in
a container that had held a § 261.33(e)
material may be lethal in quantities
remaining after the container has been
emptied according to § 261.7(b)(l).. •
Accordingly, EPA is not changing the
interim-final provisions of § 261.7(b)(3)
and § 261,33(c) which require triple
rinsing or an equivalent method of
removal of a § 261.33(e) waste from a
container for the container to be
considered empty, and is issuing these
provisions in final form.
E.. Triple Rinsing
1. Rinsates from Containers Which
Have Been Triple Rinsed. One
• commenter was particularly concerned
with the EPA requirements for the
management of rinsate from containers
which have been triple rinsed. Under
§ 261.7(b)(3), a container or inner liner
which has held a waste listed in
§ 261.33(e) can be considered empty if it
has been triple rinsed or cleaned by an
equivalent method. The rinsate is a
hazardous waste if it meets one of the
characteristics in Part 261, Subpart C, or
it it'contains any amount of a listed
hazardous waste and therefore remains
subject to the regulations via the
"mixture rule" (§ 261.3(b)). The
commenter expressed concern over ,
rinsates being hazardous via the mixture
rule.
This issue is only one of several that
have surfaced concerning the mixture
rule. EPA is in the process of studying
these issues and if necessary will
prepare additional amendments to the
hazardous waste regulations to address
these concerns. For example, on
Noyember.17,1981, the Agency
promulgated an interim final rule which
exempted certain categories of mixtures
of solid wastes and hazardous waste
from the "presumption of hazard"
provisions of the hazardous waste
regulations (see 46 FR 56582-56589).
2. Triple Rinsing Is Not Treatment. On
November 25,1980, in the preamble
discussion, EPA stated that triple rinsing
. does not constitute "treatment" as
defined by § 260.10'(45 FR 78528). One
commenter disagreed with EPA, stating
, that EPA had failed to quote the entire
definition of treatment and that the act
of triple rinsing does" indeed meet the
latter half of the § 260.10 definition of
"treatment". Specifically, the commenter
said that triple rinsing.meets the
definition of treatment because triple
rinsing of containers "reduces the waste -
'in volume" .and makes a container
"more amenable for storage."
EPA disagrees with the commenter
and maintains its original position that
triple rinsing is not treatment. Most
commenters have agreed with the"
Agency on this point. Therefore, the
regulated community should continue to
consider that triple rinsing does not
constitute treatment, as previously set
forth. .
F. Dedicated Tank Cars and Tank
Trucks '•
One commenter asked that EPA
consider a special exemption for tank-
like containers which are in "dedicated
service," that is, containers which are
used to transport manifested wastes to
designated treatment, storage .or
disposal facilities and returned to the
' generator to pick up the same waste.
When .these containers are not unloaded
completely they do not meet EPA's
definition s/L empty container. A
manifest must then accompany the
Unloaded (but not "empty") container on
its return trip to the*generator. The
commenter pointed out that the
requirement that a manifest accompany
an unloaded but not empty container
presents a dilemma, because a manifest
must indicate a designated treatment,
" storage or disposal facility, but the
generator is.often not a permitted
treatment, storage, or disposal facility.
EPA believes that exemption of
dedicated containers that are not empty
from the manifest requirements is not an
environmentally acceptable solution to
this problem. The fact .that a container
~that is not empty is in dedicated service
makes its contents no less hazardous to
the environment than other hazardous
wastes. EPA believes that wastes in
dedicated containers that are not empty
should be accompanied by a manifest
on the return trip to the generator.
EPA, however, agrees with the
commenter that the Part 262 standards
technically preclude the option of
naming the generator of a hazardous
waste as the "designated facility" on the
manifest which must be originated by
the TSDF when returning a container
that is not empty to the generator (if the
generator is not also TSDF). Therefore,
because there are cases where it may be
necessary and environmentally sound to
return containers that are not empty to a
generator, EPA is considering several
alternatives to amend the 40 CFR Part
262 standards to allow the TSDF to
name the generator as the designated
facility on the manifest. EPA will .
publish any necessary amendments to
Part 262 separately.
G. Impact of Amendment on Small
Businesses ' .
One commenter stated that the empty
container amendment is overly
restrictive, not necessary on technical or
public safety grounds, and must be
weighed against its economic •
consequences. The commenter is .an ,
industry trade association which
represents a substantial number of small
businesses, and insists that this
amendment will impose a cost burden of
millions of dollars on this industry.
EPA disagrees that the amendment is
"over restrictive" and "not necessary-on
technical or public grounds." In
paragraph D above, the Agency
explained its rationale for requiring
Mple rinsing of containers which
previously held acutely hazardous
waste listed in § 261.33(e). As far as
. regulating containers which previously
held other hazardous wastes is
concerned, the Agency contends that
these containers are dangerous and pose
a hazard to human health and the
environment. The Agency has therefore
set forth § 261.7 as a means of defining
when containers are considered to be :
empty.
EPA further disagrees that the rule is
a cost burden; in fact it was industry
. representatives who requested that EPA
define when a container is considered •
"empty." It was argued that unless the
term "empty container" was defined, it
could cost industry millions of dollars to
handle all containers which previously
held hazardous wastes as hazardous
wastes. EPA responded to this concern .
by defining when a container is
considered "empty" and sees the
amendment as a tremendous cost
savings to industry. Most of the
commenters agreed that the amendment
was, in fact, reasonable. • :: .
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36096
Federal Register / Vol. 47, No. 160 / Wednesday. August 18, 1982 / Rules and Regulations
EPA previously addressed the issue of
the impact of the hazardous waste
regulations on small quantity generators
of hazardous waste in the preamble to
the regulations issued on May 19,1980
(see 45 FR 33102-33105]. Under § 261.5,
EPA conditionally excluded from
regulation those persons who generate
less than 1000 kg/mo of hazardous
waste or 1 kg/mo of acutely hazardous
waste. Under this exclusion, small
quantity generators need not comply
with the empty container rule. The
Agency believes that this exclusion has
minimized the impact on small
businesses without compromising
environmental protection, and therefore
,does not agree with the commenter that
the rule poses a burden on small
businesses.
H. Regulation of Hazardous Waste
Residues in Empty Containers
As indicated previously, the Agency is
concerned with those facilities that
clean or otherwise handle large numbers
of empty containers (e.g., drum and
barrel reconditioners and tank cleaning
operations) because they may
accumulate, store, treat or dispose of
significant quantities of unregulated
residues. Therefore, the Agency
specifically solicited comments and data
on whether residues left unregulated by
§ 281.7 may pose a substantial hazard to
human health and the environment. The
Agency discussed three options for
regulation of residues in "empty"
containers (see 45 FR 78526-78527).
In response, the Agency received a
number of comments regarding the three
alternatives. The vast majority of
commenters favored regulation of the
residues when they are removed from
the containers, because this alternative
would place the minimal regulatory
burden on those who handle "empty
containers." The commenters argued
that this is the most reasonable option
because of the smaller quantity of waste
to be managed than would be generated
by triple rinsing. They further stated that
someone handling empty containers
would know the composition of the
residue from the label on the container
because the Department of
Transportation (DOT) regulations
require that a label remain on hazardous
material containers until they are
cleaned and purged of their contents.2
"DOT requirements pertain to (a) hazardous
•waste subject to 40 CFR Part SSZ manifest
requirement and (b) unmanifesled hazardous
wastes (e,g., small quantities of hazardous waste or
laboratory samples) that meet the DOT definition of
hazardous material.
Commenters also believe that adopting
this option will insure that empty
containers will be sent to reclamation
centers.
Many of these same commenters also
argued that another option, triple
rinsing, would be an undesirable
alternative for two main reasons. First,
they argued that triple rinsing would
generate additional hazardous waste
which would require special handling
and, thus, would be a more costly
procedure. Second, the commenters
stated that such a requirement would
require persons handling empty
containers to duplicate services already
provided by those who reclaim them.
One commenter, however, favored triple
rinsing. This commenter claimed that it
is impractical for & sanitary landfill
operator to determine whether a
container he receives is "empty" by
measuring the residues, and that the
landfill operator could be exposed to
hazardous residues when crushing these
containers with bulldozer-type
equipment. This commenter, therefore,
favored triple rinsing and marking of
rinsed containers as "non-hazardous" so
that a landfill operator could know that
the containers are safe.
Most commenters felt that the third
option—limiting the amount of
unregulated residue a person could
manage during a particular period
without becoming subject to RCRA
controls—was unworkable. One
commenter in particular thought that
any limitation which the Agency would
set would, of necessity, be arbitrary.
In evaluating these comments, the
Agency generally agrees with the
majority of commenters who indicated
that control of the residue in empty
containers after it is removed is most
desirable. The Agency favors this option
based on many of the same arguments
made'by the commenters, i.e., it appears
to be the most reasonable and cost-
effective way to manage these residues. •
EPA, however, is not at this time
amending the regulations to specifically
cover these activities. EPA does not plan
to do this until it has studied the ;H>^
problem and has expanded the Agency's
data base on the quantities and
concentrations of the residues~which are
generated. EPA has recently completed
a study to assess barrel and drum
reconditioning processes. This study
includes a two-part report, "Barrel and
Drum Reconditioning Industry Status
Profile," and "Drum Reconditioning
Process Optimization," EPA Contract
No. 68-03-2905 (available from NTIS as
PB 82-113382 and PB 82-113374,
respectively). EPA would like to
supplement these studies with
additional sampling and analysis
information and, if appropriate, a
Regulatory Impact Analysis. Upon
completing these studies, the Agency
will be in a better position to propose
amending the regulations to ensure
environmentally sound management of .
these residues. An amendment, if
appropriate, might include a specific
listing of wastes from these containers.
HI. Today's Amendment
In response to the comments, received
on the interim final regulation, EPA is
amending § 261.7(b)(l) by adding a
weight alternative to the "one-inch
rule." Because this change is being made
directly in response to public comments,
the change is promulgated as a final
rule. Also being published as final rules
are the unchanged interim final
provisions of paragraphs (a), (b)(2), and
(b)(3) of § 261.7 and paragraph (c) of
§ 261.33. '
IV. Effective Date
- Section 3010(b) of RCRA provides that
EPA's hazardous waste regulations and
revisions thereto take effect 6 months
after their promulgation. In addition,
section 553(d) of the Administrative
Procedure Act (APA) requires
publication of a substantive rule not less
than 30 days before its effective date.
The purpose of these requirements is to
allow persons handling hazardous
waste sufficient lead time to prepare to
comply with major new regulatory -
requirements.
The interim final amendments
published on November 25,1980 that are
being finalized today'were previously
made effective on the following dates:
§ 261.7—November 19,1980;
§ 261.33(c)—May 25,1981. Because the
one change to § 261.7 being made today
(a weight alternative to the one-inch
rule) is merely a clarification of the
previous version of § 261.7, for EPA not
to make this change effective
immediately would cause confusion and
serve no useful purpose. EPA therefore
believes that the RCRA Section 3010(b)
requirement and the APA 553(d)
requirement for publication before
effective date are inappropriate as
applied to the change to § 261.7.
V. Regulatory Impacts
Under Executive Order 12291, EPA
must judge whether a regulation is
"major" and therefore subject to the
requirement of a Regulatory Impact
Analysis. This interim final regulation is
not major because it will not result' •>«_.
effect on the economy of $100 million o,J
more, nor will it result in an increase in
costs or prices to industry. There will be
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Federal Register / Vol. 47, No. 160 / Wednesday, August 18, 1982 / Rules and Regulations 36097
no adverse impact on the ability of U.S.-
based enterprises to compete with
foreign-based enterprises in domestic or
export markets. In fact, this final
amendment will reduce regulatory
requirements imposed by the hazardous
w/iaste regulations that were initially
issued on May 19,1980. Because this
amendment is not a major regulation, no
Regulatory Impact Analysis is being -
conducted.
This amendment was submitted to the
Office of Management and Budget
(OMB) for review as required by
Executive Order 12291. ' "
List of Subjects in 40 CFR Part 26l ,
Hazardous materials, Waste
treatment and disposal, Recycling.
.'• Dated: August 10,1982. .
John W. Hernandez, Jr.,
Apting Administrator.
For the reasons set out in the
preamble, Title 40 of the Code of Federal
Regulations is amended as follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 261
reads as follows: :
Authority: Sees. 1006, 2002(a), 3001, and
3002 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and
Recovery-Aqt of 1976, as amended [42 U.S.G.
6905, 6912(aj, 6921 and 6922).
2. Section 261.7 is amended by
revising paragraphs (b)(l) (i) and (ii) and
by adding paragraph (iii) to read as ,
follows: , '
§ 261.7 Residues of hazardous waste in
empty containers.
*****
(b)(l) A container or an inner liner
removed from a container that has held
any hazardous waste, except a waste,
that is a compressed gas or that is
identified in § 261.33(c) of this Chapter,
is empty if: .
(i) AlLwastes have been removed that
. can be removed using the practices
commonly employed to remove
materials from that type of container,
e.g., pouring, pumping, and aspirating,
and
(ii).No more than 2.5 centimeters (one
inch] of residue remain on the bottom of
the container or inner liner, or
(iii) (A) No more than 3 percent by
weight of the total capacity of the
container remains in the container or -
, inner liner if the container is less than or
equal to 110 gallons in size, or
(B) No more than 0.3 percent by
weight of the total capacity of the
container remains in the container or
inner liner if the container is greater
than 110 gallons in size.
* *' * * • * •
[FR Doc. 82-22330 Filed 8-17-82; 8:45 am]
BILLING CODE 6560-50-M - '
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