Wednesday
February 13, 1991
Part IV
Environmental
Protection Agency
40 CFR ParJ 261
Hazardous Waste Management System-
Identification and Listing of Hazardous
Waste; Toxicity Characteristic; Interim
Final Rule
Printed on Recycled Paper
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5910 Federal Register / Vol. 58, No. 30 / Wednesday. February 13, 1991 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[SWH-FRL-3904-5/EPA/OSW-FR-91-Q05]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Toxlcity
Characteristic
AGENCY: Environmental Protection
Agency.
ACTION: Interim final rule with request
for comments.
SUMMARY: On March 29,1990, the
Environmental Protection Agency (EPA)
promulgated revisions to the toxicity
characteristic, one of several
characteristics used to identify waste
regulated as hazardous under Subtitle C
of the Resource Conservation and
Recovery Act (RCRA). Since the
promulgation of the Toxicity
Characteristic (TC), the Agency has
received information that the rule's
immediate application may cause
certain used chlorofluorocarbon (CFG)
refrigerants to be subject to hazardous
waste regulations because they exhibit
the TC. EPA is concerned that
subjecting used CFG refrigerants to
Subtitle C regulations will promote
continued or increased venting,
increasing the levels of ozone-depleting
substances in the stratosphere. As a
result of this new information and to
allow time for gathering additional
information and giving all relevant facts
careful consideration, the Agency is
promulgating today's interim final rule
to suspend the TC rule for used
refrigerants which exhibit the toxicity
characteristic and which are recycled.
The exemption only applies if the
refrigerants are reclaimed for reuse. At
the same time, the Agency if) seeking
public comment on the merits of this
suspension.
DATES: Effective Date: February 5,1991.
Comment Date: Comments must be
submitted on or before April 1,1991.
ADDRESSES: The public must send an
original and two copies of their _
comments to: RCRA Docket Information
Center (OS-305), U.S. Environmental
Protection Agency, 401M Street SW.,
Washington, DC 20460.
Place the docket number F-91-CFIF-
Jr'JtWF on your comments. The EPA
RCRA docket is located at: EPA RCRA
Docket (room M2427), 401M Street SW.,
Washington, DC 20400.
The docket is open from 9 a.m. to 4
p.m., Monday through Friday, except for
Federal holidays. The public must make
an appointment to review docket
materials. Call (202) 475-9327 for
appointments. Copies of docket
materials cost $0.15/page.
FOR FURTHER INFORMATION CONTACTS .
For general information about this
notice, contact the RCRA/Superfund
Hotline at (800) 424-9346 toll free, or
(703) 920-9810 in the Washington, DC,
metropolitan area. For information on
specific aspects of this notice, contact
Becky Cuthbertson, Regulatory
Development Branch, Office of. Solid
Waste (OS-332), U.S. Environmental
Protection Agency, 401M Street SW-
Washington, DC 20460, (202) 475-8551.
SUPPLEMENTARY INFORMATION:
Outline of Today's Notice
I. Background
A. Refrigeration System Operation*
B. RCRA Applicability
C. Previous EPA Action* on Refrigerants
D. Regulations under the Clean'Air Act
D. Application of Existing Regulatory
Framework
A. Definition of Solid Waste
B. Refrigerant Handlers' RCRA
Requirements
IU. Issues Arising from the TC Rule
A. Impacts on Recycling Markets
B. Impacts on an Orderly CFG Phaseout
and Transition to CFG Substitates
C. Environmental Concerns
D. Time Considerations
IV. Suspension of TC Requirements
A. Eligible Refrigerants
B. Rationale for Suspension
V. State Authorization
A. Applicability of Rules in Authorized
States
B. Effect on State Authorizations
VI. Additional Information
A. Executive Order 12291—Regulatory
Impacts
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
Vn. References •
L Background
A Refrigeration System Operations
Vapor compression refrigeration . •
systems typically use CFG refrfgeranta
as the working fluid. The most common
refrigerants include CFC-11,12; 114, 502
and HCFC-22. These cycles are dosed
systems, relying on the ability to
continually compress and evaporate the'
refrigerants to provide the proper heat
transfer for cooling.
CFC-11 is typically a liquid at room
temperature, but because its boiling
point is around 75 °F, it volatilizes
easily. An infrequently used refrigerant,
CFC-113, also has a high boiling point
(117 °F). However, the other more
common refrigerants, such as CFC-12
and HCFC-22, have very low boiling
points (—21 and —41 degrees F
respectively), which cause them to
immediately .volatilize; therefore* they
are not likely to leach from wastes into
groundwater in any measurable
quantities.
Refrigerants, as the working fluid of a
mechanical cooling process, are not
deliberately vented or removed from the
system,1 unless the systems are being
tested, serviced, maintained, retired, or
retrofitted to use new CFG alternatives.
In order to service the refrigeration
hardware, the closed refrigeration loop
must be opened. Because of the rapid
volatilization of CFG refrigerants when
they are released from the closed
refrigerant system, traditional service
and maintenance procedures involved
venting, the refrigerant However,
because of environmental concern
regarding ozone depletion, recent
international regulations phasing out
production of CFCs, (see London
Amendments to the Montreal Protocol)
and increased price and decreased CFC
availability, service technicians are
beginning to capture and reuse
refrigerant
B. RCRA Applicability
RCRA regulations apply to materials
that are solid wastes (including solids,
liquids, semi-solids, and contained
gases), as that term is denned in 40 CFR
261.2. Used Refrigerants are considered
spent materials, and if reclaimed, are
solid wastes under 40 CFR 261.2(c)(3).
However, a limited subset of used
refrigerant i-e., those which are used or
reused without prior reclamation, are
.not subject to regulation under the
RCRA hazardous waste program (see 40
CFR 261.2(e)(l)(ii)).
On March 29,1990 (55 FR11798), EPA
promulgated the Toxicity Characteristic
to replace the EP toxicity characteristic.
, (The TC went into effect September 25,
1990.) The Toxicity Characteristic is
used to identify solid wastes which are
identified as.hazardous based on the
presence of constituents that may leach
from the waste. The TC expanded the
range of wastes subject to subtitle C
, {hazardous waste) controls, because a
number of constituents not regulated
under the EP toxicity characteristic,
•which it replaced, were included in the
TC,
Two of the new TC constituents may
be present in certain used refrigerants
(e.g., those containing CFC-11) and are
likely to leach from the waste at levels
that may cause the used refrigerants to
be subject to the federal hazardous
waste regulations. The two constituents
which are of concern in CFC-11 are
carbon tetrachloride, which is present hi
used CFC-11 refrigerant at levels of 25-
115 mg/1, and chloroform, present hi
uted;CFC-ll refrigerant at levels of 6-52
mg/1. (The TC regulatory level for
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Federal Register / Vol. 56,
/ Wednesday,, February 13. .1991 / Rules and Regulations JSMJL
carbon tetrachloride is 0.5 mg/I, and for
chloroform, it is 6.0 mg/1.) These
contaminants are present in !ow levels
in tide manufacturing raw feedstock
required to produce CFG-11 and are left
over in used CFC-11 and remain aa
residuals in used CFC-U. Thus when
the refrigerant is removed from the
refrigeration system, it may contain -
carbon tetraehloride and/or chloroform
at levels that cause it to exhibit fee
characteristic of toxicity. See the data
provided in the August 29,1998 letter
from C.A. McCain of EJ.EtaPantde
Nemours and Co., to Ms. Lena Nirk of
EPA, available for public viewing in the
docket for this notice.
For the data oa CFC-11 provided in
the docket, there is no documentation of
the analytical methods or quality
control/quality assurance procedures
used. We also do not have data on other
CFCrefrigerants, e^, CFC-113. EPA
solicits comments on whether other data
are available that can, be used to
determine whether used CFC
refrigerants are TC hazardous. EPA also
solicits comment on whether the
suspension should be extended to
hydrofluorocarbon (HFC) refrigerants,
which are being used as refrigerants (for
example, in mobile air conditioning
systems); EPA has no data at all on
whether MFCs would exhibit any
hazardous waste characteristics when
removed from refrigeration systems.
C. Previous EPA Actions on
Refrigerants
The issue of RCRA applicability to
refrigerants being recycled ha* been
discussed previously; see the July 28,
1989 Federal Register notice (54 FR
31335) describing die status of recycled
refrigerants under the 1889 Federal
hazardous waste regulations. Under the
regulations in place from 1980 to 1990,
recycled refrigerants were unlikely to be
Federally regulated as hazardous
wastes because they would not have
exhibited any of the characteristics of
hazardous waste, nor did they fit any of
the hazardous waste Mating descriptions.
However, as discussed above, the TC
regulation promulgated on March 29,
1990, which added new constituents to
the Toxicity Characteristic, may change
the RCRA regulatory status of those
recycled refrigerants containing carbon
tetrachloride or other Toxicity
Characteristic constituents.
No commenters OH the original
Toxicity Characteristic proposal raised
the issue of possible negative impacts
on recycling of used refrigerants if they
were to become regulated as hazardous
wastes. One reason this may have
occurred is that at the time of the
original TC proposal (June 13,1988; see
51 FR 21648) most refrigerants were
being vented and recycling was not
feasible.
EPA has taken a related action under
the Clean Ah- Act by issuing an
Advanced Notice of Proposed
Rulemaking fANPRM) on May 1,1990
(55 FR 18258} to develop a national CFC
and baton recycling program. Some
commenters on that notice raised
concerns about RCRA applicability to
recycled refrigerants and described
potential disruption of recycling markets
if refrigerant is managed as a hazardous
waste under RCRA. However, the
commentere did not specifically mention
the Toxicity Characteristic.
D. Regulations under the Clean Air Act •
The recently enacted amendments to
the Clean Afar Act require EPA, by 1992.
to issue regulations regarding the use
and disposal of certain CFCs m
appliances and industrial process
refrigeration units. The regnlations must
include requirements to maximize
recapture and,recycling and ensure safe
disposal. The amendments, as a general
rule, also prohibit venting of certain
CFCs to the environment.
The new Clean Air Act authority is
the Agency's best available tool to limit
CFC emissions. The Clean Air Act
authority enables the Agency to regulate
the handling, recycling, reuse and
disposal of CFCs by refrigerant
recydters, service technicians and
equipment owners and manufacturers.
When EPA proposes and finalizes a
prohibitioa on venting
chlorofiuosoearbons under the Clean Air
Act, and the prohibition becomes
effective, the Agency will reconsider the
issue of RCRA applicability to used CFC
refrigerants being recycled.
II. Application of Existing Regulatory
Framework
A. Definition of Solid Waste
One of the first questions that arises
in determining RCRA applicability to
refrigeration system maintenance and
repair is whether a material is a solid
waste. The hazardous waste regulations
of RCRA Subtitle C apply to materials '
that, are "solid wastes," which are
defined in RCRA section 1004f27) as
* * * discarded material including solid,
liquid, semi-solid, or contained gaseons
material resulting from industrial,
commercial, mining, and agricHltaral
operations, and from community activities
* * *
Contained gases thus clearly are solid
wastes under RCRA, whereas
uncontained gases not associated with
EtoSd waste management units are
outside of RCRA.
As stated in tide July 28,19B9 Federal
Register (54 FR 31336), EPA's regulations
classify the used refrigerants as spent
materials that are solid wastes when
reclaimed. (The refrigerants must be
collected as a contained gas under this
scenario.) See 4O CFR 261.2{c)(3). If the
waste also exhibits a characteristic of a
hazardous .waste, it is a hazardous
waste in addition to being a solid waste.
Thus, the equipment servtcerwho must
remove the chlorofluorocarbon
refrigerants hi order to service the
equipment must decide whether to vent
them (and thus avoid hazardous waste
regulatory requirements) or collect them
and possibly be required to manage
them as hazardous wastes. EPA is
concerned that, if the refrigerants are
regulated as hazardous wastes, most
servicers will vent the material rather
than collect it for recycling.
B. Refrigerant Handlers' RCRA
RequiremeBts
This section presents the hazardous
waste requirements for handlers of used
CFC refrigerants being reclaimed, if .
those used CFC refrigerants were to be
classified as hazardous wastes because
they exhibit the Toxicity Characteristic.
The requirements described here are
suspended by today's action (discussed
further in section IV of this notice).
Currently, fee owners of refrigeration
equipment using CFC refrigerant as the
heat transfer fluid are coasidtered
hazardous waste generator* if the used
CFC refrigerant exhibits the
characteristic of Toxfeity, and if they
collect the used CFC refrigerant for
reclamation or disposal. In addifios,
' parties who repair or maintain the
^refrigeration equipment under contract
wife the equipment owners would be
"co-generators" if then- actions produced
hazardous waste, or caused it to be .
subject to regulation (see 45 FR 72026,
October 30,1990). Parties co-generating
hazardous waste must arrange among
themselves who is to take responsibility
for managing the hazardous waste,
although all parties remain potentially
liable for hazardous waste
mismanagement
As of September 25,199O, generators
who generate more than 1000 kg of
hazardous waste per month must
manage their TC hazardous wastes
according to the requirements in 40 CFR
parts 261 and 262 and other relevant
parts of the hazardous waste
regulations. For generators of 100-1000
kg of hazardous waste per month, the
effective date for managing TC
hazardous wastes according to the
hazardous waste requirements is March
29,1991. (Generators; of Jess than 100 kg
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30 / Wednesday, Febrdary 13, 1991 / Rules' and Regulations
hazardous waste per month are
conditionally exempt from hazardous
\vaste management standards.)
In a scenario in which the .
refrigeration equipment servicer collects
the CFG refrigerant and transports it
from a large quantity generator's site for
recycling, that servicer acts as a
transporter (in addition to being a co-
generator) and must comply with the
requirements in 40 CFR part 263 if the
used CFG refrigerant exhibits a
hazardous waste characteristic.
Transporters may hold hazardous
wastes at "transfer facilities" for up to
ten days, consistent with activities
undertaken in the normal course of
transportation, without needing a RCRA
storage permit.
As of September 25,1990, the
recycling facility accepting CFC
refrigerants that are hazardous wastes
from large quantity generators (greater
than 1000 kg/month) must meet the
definition of a "designated facility,"
which requires that the facility either
has a permit or interim status, or meets
certain other conditions as a recycling •
facility (see 40 CFR 260.10 for the '
definition of designated facility).
III. Issues Arising From the TC Rule
A. Impacts on Recycling Markets
EPAhas^received information since
promulgation of the TC indicating that
certain companies currently recycling
CFC refrigerants may stop doing so if
they must manage the CFC refrigerants
as hazardous wastes. See Items No. 2-7
in the public docket for this notice.
These companies and other groups
generally cite the cost and complexity of
the hazardous waste regulations, along
with specific RCRA requirements such
as manifesting, and other requirements
that may be imposed at the local level
as a result of the hazardous waste
requirements (i.e., rezoning refrigerant.
distribution centers as hazardous waste
transfer stations), as reasons that
recycling will diminish or cease.
Although EPA Is still evaluating the
merits of the arguments presented by
the parties submitting this information,
EPA is concerned that some of the
results suggested may cause serious
environmental harm, the nature and
significance of which EPA did not
explore during the TC rulemaking. EPA
is concerned that the increased
requirements associated with regulating
refrigerants as hazardous wastes will
result in increased venting. EPA has not
considered the feasibility of
administrative options to reduce the
impacts on recycling of these materials
under current RCRA regulations.
Therefore, EPA is suspending
application of the rule in order to have
time to evaluate these issues.
In order to evaluate these issues, EPA
is soliciting public comment on whether
handling used CFC refrigerants as a
hazardous waste is causing or will cause
a decrease in current recycling rates,
and whether the decrease (if any) is or
will be occurring for the reasons these
parties put forward, or for other reasons.
To assess the potential impacts of the
hazardous waste regulations on used
CFC refrigerant recycling, EPA will
consider information on the universe of
used CFC refrigerant handlers (numbers
of facilities reclaiming, number of
facilities that use the CFC-11 and other
refrigerants and would be classified as
generators if the CFC refrigerants were
hazardous wastes, and how many
transporters there are currently). Finally,
EPA is soliciting comment on whether
the concerns can be redressed by
phased compliance rather than
exemption, and on whether alternative
approaches (such as streamlined
permitting, or reduced manifesting
requirements) could be used to reduce
any adverse recycling impact of RCRA
regulations.
Under RCRA, there is a requirement
to obtain a permit prior to beginning
construction of a hew hazardous waste
management facility (if the facility did
not manage hazardous wastes prior to
the effective date of regulations for
those hazardous wastes—see 40 CFR
270.10(fJ). This requirement exists for
facilities that intend to treat, store, or
dispose of hazardous wastes from
generators other than conditionally
exempt small quantity generators. (In
the case of used CFC refrigerants, if
such facilities had begun storing and .
reclaiming used CFC refrigerants prior
to September 25,1990, and met certain
other requirements, they would be able
to obtain "interim status" and would
have been able to continue storing and
reclaiming after September 25. However,
it appears that few parties were aware
of the TC's potential application to used
CFC refrigerants.) EPA believes that this
requirement may act as a deterrent to
firms contemplating entering the CFC
reclamation market after the effective
date of the TC rules. FJPA notes that the
preceding discussion applies only to the
facilities actually conducting the
reclamation or reprocessing of the
refrigerants, and not to all refrigeration
equipment owners who have used
refrigerants that can be reclaimed.
In addition to potential requirements .
on reclaimed refrigerants, other factors .
may be influencing the reclamation/
reprocessing, firms' decision to enter the,
CFC refrigerant recycling market.
Because of the ease with which
equipment servicers can vent, as
opposed to collect, used CFC
refrigerants, and the low cost and ready
availability of refrigerant, recycling has
not been common in the past.
(Equipment design, including the ability
to attach devices to collect the
refrigerant, may also influence the
equipment servicer's decision.) In order
to increase recycling rates, the
refrigeration industry must contend with
both the need to change the equipment
servicers' behavior, and the need to
change some equipment design.
.However, the recent (July 1989)
implementation of Phase I of the
Montreal Protocol reduces CFC supplies
by over 20%, resulting in price increases.
In addition, a tax on chemicals that
deplete the ozone layer further increases
the price and provides incentives to
collect used CFC for recycling; this tax
is scheduled to increase yearly.1 The
current price of CFCs are at the margin
at which reeycling becomes
economically feasible. If used
refrigerant is regulated as a RCRA
hazardous waste, the cost of recycling is
likely to increase enough to make
recycling economically less attractive.
Since venting is not currently prohibited,
venting is likely to continue to occur
until the economics of recycling
improve, or regulations prohibiting the
. venting go into effect.
B. Impacts on an Orderly CFCPhaseout
and Transition to CFC Substitutes
The Agency is concerned that if
recycling is not practiced due to the
increased costs of recycling that results
from handling the used CFC refrigerants
as RCRA hazardous wastes, industry
may begin using other, more
environmentally costly practices. These
practices could include premature
retirement of CFC-using equipment or
retrofitting that equipment to work with
alternatives. A premature retrofit to an
alternative that has not yet been
completely evaluated may result in the
wrong refrigerant choice, leading to
negative environmental impacts. The
Agency is currently evaluating the
toxicity, global wanning potential,
energy efficiency, safety, flammability,
ozone depletion and materials
compatibility of various alternative
refrigerants. Many of the results will not
be available until 1991-1994, and thus,
information is not currently available to
completely identify alternatives which
1 EPA analysis indicates that the cost of recycling
is approximately $2 per weighted kilogram of CFC
(see the Advance Notice of Proposed Rulemaking
dated May 1,1990.55 PR 18259).
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3931 / Salfe^
SPSS'
satisfy all environmental, health, and
safety concerns. For instance, a
premature selection, of an alternative
that is less energy efficient would result
in increases in carbon dioxide and other
air pollutants which may cause
increases in global warming.
Recycling CFCs provides the
opportunity for industry to postpone or
even avoid entirely the need to retire
prematurely or retrofit equipment The
Agency estimates that a recycling
program in the major air conditioning
and refrigeration sectors, fufiy
implemented by the early 1990*8, could
result in a net saving of over 159,008
metric tons of CFCs by the year 2000.
Complymg with RCRA regulations may
increase venting of GFC refrigerants,
and thus increase the cost of the
Agency's CFC phaseout regulations. The
Agency discussed the potential for
increasing me costs of a recycling
program if there are delays in its
implementation- in an advance notice of
proposed rulemaking published on May
1,1990(55 PR 18256).
C. Environmental Concerns
In the ANPRM of May 1,1990 fSS PR
18256), the Agency described the human
health and environmental risks of CFCs.
An EPA analysis shows that chlorine
levels wiB continue to increase from
current levels of 3.0 to about 4.0 parts
per billioa fppbj despite a pfeaseoatfe
production erf controlled substances by
the year 2000. The Antarctic ozone hole
was discovered at chlorine levels of
approximately 2.5 ppb; natural chlorine
• levels are ;7 ppb. Earlier reductions in
CFCs before 200& would reduce the
environmental risks fdescribed below)
even as chlorine levels continue to
increase over the next decade.
The largest environmental impact
from emissions of CFCs comes from the
chlorine's ability to deplete the ozone
layer, and thereby increasing the
amount of ultraviolet radiation reaching
the earth's surface. EPA believes that an
increase in UV radiation wiH result in
increased deaths from skin cancer,
increased incidence of cataracts,
reduction in the function of the body's
immune system, and damage to crops.
CFG* are also suspected greenhouse
gases.
Recycling provides, an opportunity to
delay or reduce the increase in chlorine
levels. Indeed, estimates based on .
preliminary EPA analysis of a proposed
recycling program indicate that OB*-
third of all CFCs could be recycled by
the turn of the ceatvujy, RecyeJing may
reduce the peak rate of chlorine- loading
to the stratosphere, ' ' •
The Agency is ratrently investigating
the impact that recycled CFCs may have
on the ozone layer. Since these
chemicals are difficak to destroy it is
likely that they wffl be eventually
released although at a later point in
time,1 EPA is investigating the impact of
their eventual release onpeakcMorine
concentrations. Recent scientific
evidence ssggests feat a redaction of the
peak cMotine concentrations may more
than proportionally reduce ozone
depletion.8 It is lately that delayed or
reduced release of CFCs. due to
recycling ewer the next 30 to 4Q years
will lower the peak of chlorine
concentration.
The Agency is psonnslgating- today'*
interim final rule with the belief feat UBS
action wiB encourage used refr^scant
recycling. EPA is interested in hearing
from commentHrs who have evidence on
the effect of this exemption. EPA is also
interested in evidence of harmful
environmental or health effects other
than those discussed: in this rolemaking,
Because EPA la attempting to balance
the potential environmental harm
refrigerant recycling markets against foe
potential envnonmentai harm caused by
re:
subtitle C regulatory content EPA is
asking for commenterg to provide any
available infarmation to aid in .
evaluating die human, health and
environmental effects of these actions,
D. Time Considerations
Of paramount concern to the Agency
is Ruiigating. the potential for signiftcaat
adverse health and environmental
impacts, as discussed above, while
investigating these issae* further. Under
the Clean Air Act amendments, a
prohibition on venting must become
effective by July 1,1992. Thus because of
the potential seriousness of the risks .
posed by CSC refrigerant venting, EPA
believes that immediate action, to
temporarily postpone the RCRA
regulation of these materials pending
further investigation is warranted to
mitigate the potential health and
environmental effects. EPA is exercising
its authority under the good cause
exemptions in sections 553{bJ(3J and
553(d)C3J of the Administrative
Procedure Act to immediately suspend!
the requirements imposed as a result of
the TC for CFC refrigerants being
recycled, EPA believer that, wiftoMt the. •
immediate suspensica, recycling trf CPC
refrigera^ainay decrease wfcstawtialfy,
with potential aerioiui aiQHKtf «n
stratospheric oaoMe levels' *•« are
contrary to the pofeiicV best taterert.
IV. Suspension of TC Raqidiamante
A. Eligible Refrigerants
The refrigeEants thsrt are e^giUe Set
this exemption axe those
chteEofluoEocarbon» that «» recycled
and that were used as the heat hrans&i
fluid in a refrigeration cycle in totally
enclosed heat transfer equipment. Tftese
chtoroflaoracarbans indine CFC-ll,
CFC-113, and the other
chlorofkioiocaibon refrigerants,
including HCFCa. Examples of the
equipmeat in which, these
chlorpfluorocarbon* may be naed
include mobile air coriditioning systems
(e.g-4 those used in mass transit
vehicfes). mobile refrigeration
(refrigerated trucks and rail cars), and .
commercial and industrial ait
conditioning and refrigeration gy*tesas,
The requirements imposed by the TC are
suspended foe such refrigerants- by
today'* feiterfa* final actiajt Tte spent
CFCs that are beiagKclaiHwd. will not
be regulated as a Federal haaardsma
waste a* a result of today's- action
(unless a futaxedetermiaatiaa to da so
is made}. Thus, the baaawkws wa»ta
regulatory reQtarenieBts for geneE*ters,
tranaporfers, and reeycki» of used
chloroflaorocarbeaB that ate beiQf
reclaimed (discuwed in s«cMo* IL& of
this notice] ar e Btapended, effective..
Ftsbruary 5> 188L . ', •. ,•
B. Rationale for Sjaspensloa
As a resell of die new iii&auMuHat
provided in tfaiB ndicR and to aflow
adegnate time to colled additkraal data
and ^give cweM coosaciepaSoB So *fli*K
relevant issues and repdatocy opdawoy
the Agency!* today praaurigainig an
1 Tia Agency iff aeaetmng the poesttrfiaj; that
such chemicals could sillier be destroyed or
transformed into other cfieniical» at a later date,
thus difflimsktog thehr evsrrtuaf iBipmrtonfte oajnfr
layer; ' • ...... . • ...,-. . • •
rule for handkr* of used CPG
refrigHraTits being reef eied-T&e
suspension wittttBowtese far
individual* to m^stmt cmuuento OK tile
varioias isaires raised to dri« proyagat,
"Analysis of Eaviroameatal.lBjpUcatioBfl of tba
Future Growth & Demand for Partially Halogenatei
cajorinatodf Compoiindtr.
1990. < . • - •
consider att infiinaimton
th«ae operaaera. Hod the Agency beett
aware of flds isaaedHdng die comamil
period oo &»TCpt^o»al, ft* Agwicy
would have carefully considered the
impacts and consequences af the TC -
and determined the appropriate action
at fsaf time. Paced- wlttv
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S914 Federal Register / Veil. '56,'No. 30 / Wednesday, February 13, 1991 / Rules and Regulations
the rule as applied to CFG refrigerants
against the potential public health
consequences of applying the rule to
CFG refrigerants in the interim while
EPA considers the new information. In
this case, due to the environmental and
health consequences from ozone
depletion, EPA believes that the public
interest may be better served by
suspending the rule to evaluate the
consequences. EPA solicits public
comment on its decision to suspend the
TO regulation for used CFC refrigerants
being reclaimed.
V. State Authorization
A. Applicability of Rules in Authorized
States
Under section 3006 of RCRA, EPA
may authorize qualified States to
aciminister and enforce the RCRA
program within the State. Following
authorization, EPA retains enforcement
authority under sections 3008,3013, and
7003 of RCRA, although authorized
States have primary enforcement
responsibility. The standards and
requirements for authorization are found
in 40 CFR part 271.
Prior to the Hazardous and Solid
Waste Amendments of 1984 (HSWA), a
State with final authorization
administered its hazardous waste
program in lieu of EPA administering the
Federal program in that State. The
Federal requirements no longer applied
in the authorized State, and EPA could
not issue permits for any facilities that
the State was authorized to permit.
When new, more stringent Federal
requirements were promulgated or
enacted, the State was obliged to enact
equivalent authority within specified
time frames. New Federal requirements1.
did not take effect in an authorized
State until the State adopted the
requirements as State law. In contrast,
under RCRA section 3006(g) (42 U.S.C.
8926{g}), new requirements and
prohibitions imposed by HSWA take
effect in authorized States at the same
time that they take effect in ,
nonauth6rized States. EPA is directed to
carry out these requirements and
prohibitions in authorized States,
including the issuance of permits, until
the State is granted authorization to do
so. While States must still adopt
HSWA-related provisions as State law
to retain final authorization, H,SWA
applies in authorized States in the
interim.
B, Effect on State Authorizations
EPA considers this rule to be part of
the TC rule, and thus also a HSWA rule.
As a result, EPA will implement the
provisions of today's rule in authorized
States until their programs are modified
to adopt the final toxicity characteristic
and the modification is approved by
EPA. Implementation of today's rule
beyond the date of a State's receiving
final authorization for the toxicity
characteristic depends upon actions
taken by the;State, as discussed below.
EPA will implement the provisions of
today's rule in unauthorized States.
Today's rule suspends the
requirements imposed in the final
Toxicity Characteristic regulation (see
55 FR11798, March 29,1990) for certain
CFC refrigerants being recycled. The
Toxicity Characteristic was
promulgated pursuant to a HSWA -
provision and must be adopted by
States which intend to retain final
authorization. However, today's rule
provides for a standard which is
narrower in scope than would be
imposed in the final Toxicity
Characteristic for certain CFC
refrigerants which may fail the
characteristic and are recycled. In order
to promote recycling operations, today's
rule provides that these wastes would
not be hazardous wastes under the
Federal regulations, and States would
not be required to mandate their
management as such in order to retain
their RCRA authorization. However,
Section 3009 of RCRA provides that
, States may impose requirements that
are broader in scope or more stringent
than those imposed under Federal
regulations. States, whether using RCRA
authorities (e.g., authorities under State
law where States have received final
authorization to implement the toxicity
characteristic provisions in lieu of their
implementation by EPA), or other State
authorities under other statutes, may
impose hazardous waste requirements
on such operations, or may require other
more stringent conditions upon
management of these wastes.
VI. Additional Information
**
A. Executive Order 12291—Regulatory
Impacts
Under Executive Order 12291, EPA
must determine whether a regulation is
"major," and|therefore subject to the
requirement of a Regulatory Impact
Analysis. The overall effect of today's
rule would be to suspend requirements
imposed by the final Toxicity
Characteristic rule for certain CFC
refrigerant recycling operations. There
are no'sampling or analysis
requirements in today's rule. The net
effect of this rule is to extend cost
savings to certain-segments of the
potentially regulated community.
Consequently, no regulatory impact
analysis is required.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601-612, whenever an
agency is required to publish a General
Notice of Rulemaking for any proposed
or final rule, it must prepare and make .
available for public comment a
regulatory flexibility analysis that
describes the impact of the rule on small
.entities (i.e., small businesses, small
organizations, and small governmental
jurisdictions). No regulatory flexibility
analysis is required, however, if the
head of the Agency certifies that the rule
will not have a significant impact on a
substantial number of small entities.
The suspension of the Toxicity
Characteristic requirements for certain
limited CFC recycling activities in this
rule is deregulatory in nature and thus
will only provide beneficial
opportunities for entities that may be
affected by the rule. Accordingly, I
hereby certify that this regulation will
not have a significant economic impact
on a substantial number of small
entities. This regulation, therefore, does
not require a regulatory flexibility
analysis.
C. Paperwork Reduction Act
There are no reporting, notification, or
recordkeeping (information) provisions
in this rule. Such provisions, were they
included, would be submitted for
approval to the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq,
VII. References
Copies of the following documents are
available for viewing only in the OSW
docket room:
1. August 29,1990 letter from C.A.
McCain of E.I. du Pont de Nemours &
Company to Lena Nirk of EPA.
2. September 24,1990 letter from
Kevin J. Fay of the Alliance for
Responsible CFC Policy to Sylvia
Lowrance of EPA.
3. September 24,1990 letter from
Gerald Hapka of du Pont to Steve
CochranofEPA.
4. September 4,1990 letter from
Lorraine Segala-Long of Omega
Recovery Services to Steve Seidel and
Jean Lupinacci of EPA.
5. September 4,1990 letter from
William Chaisson of the Air
Conditioning Contractors of America to
Sylvia Lowrance of EPA.
6. September 24,1990 letter from
James Patrick Leonard of National
Refrigerants to Sylvia Lowrance of EPA.
7. September 24,1990 letter from
James Patrick Leonard of United
Refrigeration Inc. to Sylvia Lowranqe of
EPA.
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8. Properties—du Pont Freon1?
Refrigerants (August 1986).
9. Scientific Assessment of
.Stratospheric Ozone: 1989 (July 14,1989).
10. Status of Used Refrigerants under
40 CFR 261.2—Memorandum to the
Docket from Michael Petruska, Acting
Chief, Waste Characterization Branph
(October 18,1990).
11. October 12,1990 letter from Harold
J. See of C.F.C. Inc. to EPA's Asbestos
and Small Business Ombudsman.
12. September 7,1990 information
from du Pont on Used CFC Refrigerants.
13. U.S. Environmental Protection
Agency. "Analysis of Environmental
Implications of the Future Growth in
Demand for Partially Halogenated
Chlorinated Compounds." EPA 400/
190001, January, 1990. -
List of Subjects in 40 CFR Part 261
Administrative practice, and
procedure, Air pollution control.
Hazardous materials transportation,
Hazardous substances. Hazardous
waste. Natural resources, Penalties,
Recycling, Waste treatment and
disposal.
Dated: February 5,1991.
WaEamK.Reilly.
Administrator.
For the reasons set forth in the
preamble, titl^ 40. chapter 1 of the Code
of Federal Regulations is amended as
follows:.
PART 281—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905,6912(a), ,6921,
6922, and 6938.
2. Section 261.4 is amended by adding
paragraph.(b)(12) to read as follows:
§261.4 Exclusions.
**'*•'*
(b)
(12) Used chlorofluorocarbon
refrigerants from totally enclosed heat
transfer, equipment, including mobile air
conditioning systems, mobile
refrigeration, and commercial and
industrial air conditioning and
refrigeration systems that use
chlorofluorocarbons as the heat transfer
fluid in a refrigeration cycle, provided
the refrigerant is reclaimed for, further
use.
* » * * *
[F£ DOG. 91-3449 Filed 2-12-91; 8:45 am]
BH.UJM CODE 6560-50
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