Friday
May i, 1987
Part VIII r
Environmental
Protection Agency
40 CFR Part 262
Exception Reporting For Small Quantity
Generators of Hazardous Waste;
Proposed Rule
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 262 *
(SWH-fm.-3157-S)
Exception Reporting for SnwJ
Quantity Generators of Hazardous
Wast*
AGENCY: Environmental Protection
Agency.
ACTION: Proposed rule.
SUMMARY: On March 24.1986, the U.S.
Environmental Protection Agency (EPA)
promulgated final regulations for
generators of between 100 kg and 1000
kg of hazardous waste in a calendar
month (i.e., generators of 100-1000 kg/
mo) under the Resource Conservation
and Recovery Act (RCRA). as amended
by the Hazardous and Solid Waste
Amendments of 1984 (HSWA). In the
final regulations, the Agency exempted
these generators from the requirement to
Hie an exception report with EPA in
instances where the generator does not
receive confirmation of delivery of his
hazardous waste shipment to the
designated facility. As a result of a
lawsuit Hied by the Environmental
Defense Fund (EOF) on this issue, the
Agency has reconsidered this exemption
and is today proposing to reinstate die
exception reporting requirement in a
modified form.
OATC The Agency will accept public
comments on this proposal through Tune
1.1987.
ADOKttis: The public docket for tfaia
rulemaking is located in Room S-212-C
U.S. Environmental Protection Agency,
401M Street. SW.. Washington. DC
20460. The EPA RCRA Docket is open
from 9:30 a.m. to 3:30 p.m., Monday *
through Friday, excluding Federal
holidays. To review docket materials,
the public must make an appointment by
calling Mia Zmud at 1*1 iBTT or Kate
Blow at 382-4675. A OMSdSMm of SO
pages of material may ktt espied from
any regulatory docket din* cost
Additional copies cost OB/
_reue«M Kegister / Vol. 52. No. 84 / Friday. MayXi987 / Proposed RuU. ' '
RiHromuTMN CONTACT;
For general information, contact the
RCRA/Superfund Hotline. (800) 424-
9346. (in Washington, DC call 382-3000).
or the Small Business Hotline, (800) 368-
5888. For information on specific aspects
of today's notice, contact Mike Petruska,
(202) 382-4769. Office of Solid Waste
(WH-562B). U.S. Environmental
Protection Agency. 401M Street SW..
Washington. DC 20460.
SUPPtEMf NTAAY INFORMATION:
I. Background and Summary of Proposal
On August 1.1985. the U.S.
Environmental Protection Agency (EPA)
proposed regulation under the Resource
Conservation and Recovery Act
(RCRA). as amended by the Hazardous
and Solid Waste Amendments of 1984
(HSWA), that would be applicable to
generators of between 100 kg and 1000
kg of hazardous waste in a calendar
month ("100-1000 kg/mo generators").
Based in large measure on the existing
hazardous waste regulatory program.
the proposed rules represented the
Agency's efforts to balance the statutory
mandate to protect human health and
the environment with the statutory
directive to keep burdensome regulation
of small businesses to a minimum.
As a part of the proposed rules, EPA
would have exempted 100-1000 kg/mo
generators from the full hazardous
waste manifest system as well as the
requirement to file exception reports.
Under 40 CFR 262.42, generators
shipping waste off-site are required to
file reports with EPA if a signed copy of
the manifest is not received from the
designated facility within 45 days of
acceptance of waste shipment by the
initial transporter. Since under the
proposed rules there would have been
only a single copy of the manifest there
would be no manifest copies for return
to the generator, aid, hence, no basis for
exception report
In the final rule issued March 24,1886
(see 51FR10148), EPA determined that
the full, multiple-copy manifest system
was necessary to protect public health
and tiie environment and that it would
not impose a significant burden on 100-
1000 kg/mo generators. See 51 FR 10155-
1015*, The Agency also concluded that
the additional administrative burden
associated with the exception reporting
requirement outweighed the incremental
environmental benefits that may be
gained. 51 FR 10159-180.
On June 8,1966. the Environmental
Defense Fund (EOF) filed a petition in
the United States Court of Appeals for
the District of Columbia Circuit
(Environmental Defense Fund v.
Thomas. No. 86-1334} for review of
EPA's decision to exempt 100-1000 kg/
mo generators from the exception
reporting requirement. On December 17,
1986, EPA and EDF agreed to defer the
litigation pending EPA's reconsideration
of the decision made in die final rale
and additional rulemaking on the
exception reporting exemption.
As a result of EPA's reconsideration
of this issue, the Agency is proposing, to
reinstate the exception reporting
requirement for 100-1000 kg/mo
generators, but in a modified form. The
Agency is also requesting comment on a
number of other alternative
modifications to the existing exception
^porting requirement that were not
considered in EPA's previous
ruiemaking.
IL Basis for Reconsideration
m the March 24,1986 final rule. EPA
«*mined the burden that might be
imposed by retaining the full exception
reporting requirement for small quantity
generators. The Agency reasoned that
compliance with the reporting provision
would require a number of steps to be
taken by generators:
(1) Determining within 45 days that a
copy of the manifest signed by the
freatment, storage or disposal (TSD)
facdity had not been returned:
(2) Contacting the transporter and
TSD facility to determine the status or
location of the waste and manifest:
(3) If unsuccessful, filing a report with
•copy of the manifest and a cover letter
describing his efforts to locate the waste
and the results of his efforts.
EPA also considered the extent to
which such reporting is necessary to
protect health and the environment
While the Agency deemed exception
reporting to be an important link in the
manifest system because it is essential
to alert EPA and states to lost jr
shipments, the Agency concluded that
the multiple copy manifest system
would provide sufficient assurance that
waste shipments reached their proper
destination. It based this conclusion in
large part on the fact that very few
exception reports are received. In
addition. EPA judged that the smaller
quantities of waste involved did not
require the same degree of double-
checking as that required for large
generators. Thus, the Agency concluded
that the incremental environmental
benefits to be gained from the reporting
requirement were outweighed by the
additional administrative burdens.
EDF has raised several agruments in
its challenge to this decision that have
convinced the Agency to reconsider its
condasions regarding the need for
exception reports from these generators.
First the risks posed by a shipment of
hazardous waste generated by one or
several small quantity generators may
be the same as that posed by a large
quantity generator's shipment for two
resons: (1) Small generators may
consolidate their wastes in fairly large
quantities (6000 kg) before shipping
oflsfte. and (2) transporters performing
"milk runs" will aggregate wastes from
multiple small quantity generators into
one shipment to utilize their trucks
efficiently. Thus. EPA is concerned that
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the risks posed by any illegally diverted
waste shipments may be substantial In
addition, even though the Agency
believes that the round-trip manifest
system by itself wifl operate to prevent
mismanagement in most cases, the times
when a manifest is not returned to the
generator is when some type of
notification to EPA or State enforcement
authorities is needed the most
With regard to the administrative
burdens imposed by the reporting
requirement. EPA had not previously
considered whether the reporting
requirement could be modified in such a
way that the associated burdens could
oe reduced while retaining the
underlying purpose of the exception
report Upon reconsideration of this
issue, the Agency believes that it may
be possible to retain the value of the
reporting requirement in terms of
protecting health and the environment
while at the same time reducing any
administrative burden imposed or small
quantity generators. In particular, if the
Agency were to modify the requirement
n such a way that the paperwork and
internal tracking burdens were reduced,
the benefits gained from such reporting
would not necessarily be outweighed by
the burdens associated with it
EPA is considering several
modifications to the existing exception
reporting approach. These alternative
approaches, and the Agency's
"*"•»"«?»of each, are discussed
below. EPA is interested in receiving
comments on these alternatives. asweU
as any suggested alternative options.
May i. 1987 / Proposed Rule7
ItlSi
quantity generators is circumscribed by
the mandate that the variation still
protect human health and the
IIL Proposed Modifications to Exception
Kepotting
fnrlZ^SKS'f 7 *>fUPamia8 to reinstate,
for 100-1000 kg/mo generators, the
exception reporting requirement but in
a modified form designed to reduce any
burdens associated with the
requirement as it is presently applicable
to large quantity generators.
There are a number of ways that the
administrative burdens of an exception
reporting requirement amid be reduced.
One way would be tsxHdWs) the ^^
- — fw*»4itg AGlJUlAOUH
One way would be tsxndace the
frequency of reports* Another would
,.
conduct to attempt to tnck down the
lost shipment A third way would be to
change the method of reporting. Each of
the alternatives discussed below meets
one or more of these criteria: however.
the Agency must also consider the
extent to which any modification
reduces protection to human health and
the environment EPA's authority to
vary the requirements in effect for large
A. Biannual Reporting
If EPA had failed to promulgate by
March 30.1966 final regulations for 100-
IfSSlS!*0 S*16"10". RCRA section
3001(d)(9) would have required these
generators to file exception reports on a
biannual basis (i.e.. twice a year).
Arguably. Congress believed that
exception reporting was an important
part of the manifest system, and that
biannual reporting would be sufficient to
protect health and the environment and
not impose undue burden on these
generators.
EPA is not proposing to adopt
biannual exception reporting. Pint it is
not dear that Congress A^^td
biannual reporting to be sufficient to
protect health and tha environment
»nce it was required only as aa interim
measure until EPA adopted final
regulations. Moreover, in EPA's view, it
would not make sense to adopt an
exception reporting requirement that
would allow six months to elapse from
the time a shipment in sent to the time a
report on its loss must be filed The
further removed in time that the
notification is made, the less likely it is
that the generator or enforcement
authorities could track down the tost
shipment In view of the United utility of
such reporting. EPA deems the harden
imposed on generators to go tarousjk me
steps necessary for the report to be
unnecessary. Thus, while the biannual
reporting scheme may have served some
limited purpose as an interim
requirement EPA believes that He
benefits in terms of protecting health
and the environment are outweiflhed bv
its burden. —•—~ t
B. Reporting by Telephone
In order to reduce the paperwork
associated with exception reporting, the
requirement could be modified to allow
generators to phone in the report rather
than mailing in a copy of the unreturaed
manifest with a cover letter. This would
save the generator the need to write a
cover letter describing his efforts to
track down the waste or the need to
photocopy and mail in a copy of the
manifest
EPA is not proposing to adopt such a
modification for several reasons. First it
is important for enforcement authorities
to obtain a copy of the manifest in order
to determine the types and quantities ef
waste involved, the name and ID
number of the transporter, and other
information which is essential to
tracking down the waste shipment
Relaying this information by telephone
could lead to many errors, and the time
it would take to describe the necessary
details could become more burdensome
than that needed to mail in a manifest
copy. In addition, the cost of long-
distance telephone calls could become
prohibitive, thereby discouraging
generators from reporting.
C. Requiring Only Submission of
Manifest Copy
In view of the importance of EPA or
the state receiving timely notification, in
writing, that the generator has not
received his return copy of the manifest
EPA believes that the basic outline of
the exception reporting provision should
be retained. The generator should be
required to send in a copy of the
manifest within a reasonable time
period after he ships his waste offsite.
However, it appears that the other tasks
associated with the reporting
requirement could be modified or
eliminated without compromising the
underlying purpose of the requirement
For example, if small quantity
generators were not specifically
required to take certain actions to locate
potentially lost shipments and to
document and report on those efforts,
the total burden would be significantly
reduced. '
The Agency is proposing to limit the
regulatory obligation of these generators
to notifying the Agency of potentially
tost shipments. Specifically, generators
of 100-1000 kg/mo would be required to
mail In a copy of the unreturned
manifest accompanied by a note (either
typed or handwritten on the manifest
copy itself or on an attached piece of
paper) stating that the return copy was
not received from the TSD facility.
Under this proposal, the generator
would not be required to take any other
specific action with respect to exception
reporting. Nevertheless, the Agency
would strongly encourage generators to
attempt to locate a missing manifest or
waste shipment on their own so as to
minimize any potential long term
liability as well as to avoid the need to
file an exception report
To ensure that EPA or the State have
a realistic opportunity to track down the
lost shipment the generators would be
required to mail the manifest copy if the
return copy is not received within 60
days. This would allow small quantity
generators an additional 15 days to
notify the enforcement authorities, but
would also allow rapid follow-up action
by EPA or the States.
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The Agency believes that this
approach would tat meet both goais of
protecting human h**lth and the
environment and radncmg burdens on
these generators. The Agency is
therefore proposing Hut 40 CFR 282.42
be amended to reflect this modified
requirement However, the Agency will
consider adopting an alternative
approach based on comments received
from interested persons.
IV. Executive Order 12291—Regulatory
Impact
Under Executive Order 12291. EPA
must judge whether a regulation is
"major" and. therefore, subject to the
requirement to perform a Regulatory
Impact Analysis. Today's proposal
would require that generators of 100-
1000 kg/mo report potentially lost
shipments of hazardous waste to EPA or
the appropriate State authority.
However, because of the infrequent
need to file such a report and the very
low costs involved. I have determined
that this proposed rule would not
constitute a major rule subject to the
Regulatory Impact Analysis
requirements of Executive Order 12291.
V. Paperwork Reduction Act
Under the Paperwork Reduction Act
44 U.S.C. 3501 et seq.. EPA must
consider the paperwork burden imposed
by any information collection request in
a proposed or final rule. This proposal
reflects the Agency's evaluation of the
paperwork burden which would be
imposed on generators of 100-1000 kg/
mo and reduces such burden to the
minimum deemed necessary to protect
human health and the environment. The
exception report is not routinely
required, and in fact will never be
required of most generators, nor does
the Agency require that an additional '
form be utilized for exception reporting.
VI. Regulatory Flexibility Act
Under the Regulatory Flexibility Act 5
U.S.C. 601 et seq., EPA must prepare a
regulatory flexibility analysis for all
rules unless the Administrator certifies
that the rule will not have a significant
impact on a substantial number of small
entities. Today's proposed rule will
affect approximately 100.000 small
businesses, but will not result in
significantly increased compliance costs
for these businesses. This is because an
exception report costing less than $19/
report may only be required, on
average, once every ten years.
Therefore, I hereby certify, pursuant
to 5 U.S.C. eoi(b). that this final rule will
not have a significant impact on a
substantial number of small entities.
List of Subjects in 40 CFR Part 282
Hazardous materials transportation.
Hazardous waste, Imports, Labeling,
Packaging and containers, Reporting
and recordkeeping requirements. Waste
minimization.
Dated: April 24.1987.
Ue M. Thoani,
Administrator.
PART 262-C AMENDED]
For the reasons set forth in the
preamble, it is proposed to amend the
Code of Federal Regulations as follows:
1. The authority citation for Part 282
continues to read as follows:
Authority: Sees. 1008.2002.3002,3003,3004,
3006. and 3017 of the Solid Waste Disposal
Act as amended by me Resource
Conservation and Recovery Act of 1900, as
amended (42 U&C 6006.6012.6022.6923.
6824,6025. and 6937).
2. Section 262.42 is amended by
revising paragraph (a) and adding a new
paragraph (c), to read as follows:
Exception reporting.
(a) A generator of greater than 1000
kilograms of hazardous waste in a
calendar month who does not receive a
copy of the manifest with the
handwritten signature of the owner or
operator of the designated facility
within 35 days of the date the waste was
accepted by the initial transporter must
contact the transporter and/or the
owner or operator of the designated
facility to determine the status of the
hazardous waste.
(b)' • •
(c) A generator who generates greater
than 100 kilograms but less than 1000
kilograms of hazardous waste in a
calendar month who does not receive a
copy of the manifest with the
handwritten signature of the owner or
operator of the designated facility
within 60 days of the date the waste was
accepted by the initial transporter must
submit a legible copy of the manifest
with some indication mat the generator
has not received confirmation of
delivery, to the EPA Regional
Administrator for the Region in which
the generator is located.
3. Section 262.44 is revised to read as
follows:
124X44
i for
100 and 1000 kg/
A generator who generates greater
than 100 kilograms but less than 1000
kilograms of hazardous waste in a
calendar month is exempt from the
requirements of this Subpart except for
the recordkeeping requirements in
paragraphs (a), (c). and (d) in i 262.40
and the requirements of f i 262.42 and
262.43.
(FR Doc. 87-0900 Filed 4-30-87; 8:45 ami
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