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l 2 4 -T 0 '!
INTRODUCTION
The final Part 260 rules include all of the "definitions"
pertaining to activities subject to control under Sections 3001
through 3004 of RCRA. In addition to these definitions. Part
260 also contains other provisions which are generally applicable
to these activities. These provisions include: (l) regulations
concerning the designation and handling of confidential information
submitted to the Agency in accordance with the RCRA Sections
3001 through 3004 standards, (2) general procedures which the
Agency will follow when acting on petitions to amend these stan-
dards, (3) special procedures applicable to petitions for the
approval of equivalent testing and analytical methods and peti-
tions to amend the Section 3001 standards, and (4) rules of
grammatical construction which are generally applicable to the
Sections 3001 through 3004 standards.
In issuing its proposed rules for hazardous waste in
accordance with Sections 3001 through 3004 of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery
Act (RCRA) of 1976, the Environmental Protection Agency (EPA)
published four discrete sets of rules corresponding to each of
the four sections of RCRA. It was the Agency's intent that each
of these sets of rules be self-contained so that people conducting
activities regulated under one of these sections of RCRA need
only look at one set of rules to determine which standards apply
to his activities. In EPA's proposed regulations, each regulation
had its own set of definitions (see §§250.11, 250.21, 250.31,
and 250.41). To eliminate the unnecessary repetition this produced,
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the Agency has placed them xn Part 260.
Except for the definitions and the provisions for confid-
entiality, the Part 260 rules are self-explanatory, and require
no further description other than that contained in the preamble
which accompanies these rules. For this reason, this background
document deals with only two aspects of the Part 260 rules: the
definitions contained in Subpart B, and the provisions for confid-
entiality contained in §260.2 of Subpart A.
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PART I
§260.10 DEFINITIONS
Proposed definitions of key terms used in the Section
3003 rules were published in the Federal Register on April 28,
1978 (43 FR 18510-1). The proposed definitions of key terms used
in the Sections 3001, 3002, and 3004 rules were published in
the Federal Register on December 18, 1978 (43 FR 58955, 58976-7,
and 58996-9). Collectively, the Sections 3001 through 3004 rules
contained 130 proposed definitions.
In response to comments received on the proposed defin-
itions, and because of changes made to the regulations themselves,
many of the final definitions have been modified considerably
from their proposed form. Others have remained substantively the
same. Still others have been deleted from the final rules. Some
new definitions are now also required.
The Agency is deferring discussion of some of these 130
definitions until the regulations in which they are used are
promulgated in either the Phase II or III final rules. For
example, the definitions used in the proposed §250.43-1 "General
Site Selection" standards will not be discussed until the back-
ground document supporting the final Phase II site selection
standards is issued.
Table I of this document summarizes the status of the 130
proposed definitions and the 32 definitions which have been
added to the final rules. For each definition, the table indi-
cates whether (1) the definition is deleted from the final rules,
or (2) discussion of the definition is deferred until the Phase II
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or III rules are promulgated, or (3) the definition is being
promulgated in the Phase I final rules. The table also identifies
where each definition is discussed. Some of them are discussed
in preamble sections and background documents related to the
sections of the final rules where they are used. Definitions of
more general interest are discussed in this document.
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TABLE I
Proposed and New Subtitle C Definitions
Please note: New definitions are underlined.
"h.w." means hazardous waste.
Term Deleted
Act or RCRA
Active fault zone
Active portion
Administrator
Annular space X
Aquifer
Authorized repre-
sentative
Attenuation
Basin X
Cell X
Chemical fixation
Close-out X
Closed portion
Closing date X
Closure X
Closure procedures X
Coastal high hazard
area
Combustion zone
Common code
Confined aquifer
Promul-
Deferred gated
X
X
X
X
X
Background Document
and/or preamble in
Which the term is
discussed
260/B
260/B
260/B
265/F
265/F
45 FR 12722
265/M
265/J
265/N
265/G
265/G
260/B
265/G
265/G
260/B; 262/A-5
122/A
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Term
TABLE I (cont.)
Promul-
Deleted Deferred gated
Background Document
and/or preamble in
which the term is
discussed
Constituent or
h.w. consti-
tuent X
Container X
Contamination X
Contingency plan X
Cover material X
Delivery document X
Designated facility X
Dike X
Direct contact X
260/B
265/1
260/B
264(5)/D
265/N
260/B
260/B
265/K
Discharge or h.w.
discharge
Disposal
Disposal facility
Endangerment
EPA
EPA hazardous waste
number
EPA identification
number
EPA Region
Equivalent method
Existing h.w. manage-
ment facility or
existing facility
X
X
X
X
X
X
X
263/M (45 FR 12723)
260/B
260/B
265/F
260/B
261/D
260/B
260/B
260/B
260/B
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8
Term
Facility
Farm
Farmer
Federal agency
Fertilizer
Final cover
Five-hundred-year
flood
Flash point
Food-chain crops
Floodplain
Freeboard
Free liquids
Fugitive emissions
Generator
Ground water
Hazardous material
Hazardous waste
Hazardous waste
facility personnel
Hazardous waste
landfill
Hazardous waste
management
Household refuse
Hydraulic gradient
TABLE I (cont.)
Deleted Deferred
X
X
X
X
X
X
Promul-
gated
X
X
X
X
Background Document
and/or preamble in
which the term is
discussed
260/B
260/B
260/B
260/B
265/M
265/N
X
X
265/M
260/B
265/N
260/B
265/F
260/B
261/A (§261.3)
264(5)/B (§264(5).16)
265/N
260/B
261/A (§261.2)
265/F
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TABLE I (cont.)
Background Document
and/or preamble in
Term Deleted
Identification code X
Inactive portion
Incinerator
Incompatible waste
Individual generation
site
In operation
Injection well
Inner liner
International ship-
Promul-
Def erred gated
X
X
X
X
X
X
X
X
which the term is
discussed
260/B
260/B
265/0
260/B
261/B
260/B
122/A
265/J
260/B
ment
Interregional ship-
ment
Intraregional ship-
ment
Land farming of a
waste
Landfill
Landfill cell
Land treatment
facility
Leachate
Leachate collection
and removal system
Leachate detection
system
Leachate detection
and removal system
Leachate monitoring
system
X
X
X
X
265/M
265/N
265/N
265/M
265/N
265/F
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TABLE I (cont.)
Term
Liner
Management or h.w.
management
Manifest
Manifest document
number
Mining overburden
returned to the
mine site
Mode
Monitoring
Monitoring well
Motor vehicle
Movement
Navigable waters
New h.w. management
facility or new
facility
On-site
Open burning
Open dump
Operator
Owner
Owner/operator
Package or outside
package
Packaging
Deleted
X
X
X
X
X
X
Background Document
and/or preamble in
Promul-
Deferred gated
X
X
X
X
X
X
X
which the term is
discussed
265/N
260/B
260/B (45 FR 12723
260/B
261/A (§261.4)
260/B
260/B
265/F
260/B
264/(5)/B (§264(5) .13)
X
X
X
X
260/B
262/J (45 FR 12723)
265/P
260/B
260/B
260/B
260/B
260/B
260/B
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TABLE I (cont.)
Term
Partial closure
Partial closure
procedures
Permitted h.w.
management facil-
ity or permitted
facility
Person
Personnel or
facility personnel
Pile
Point source
Post-closure care
Publicly owned treat-
ment works or POTW
Reactive hazardous
waste
Recharge zone
Regional Administrator
Regulatory floodway
Reporting quarter
Reporting year
Representative sample
Retailer
Retention time
Run-off
Run-on
Deleted
X
X
X
X
X
Promul-
Deferred gated
X
X
X
X
X
X
Background Document
and/or preamble in
which the term is
discussed
265/G
265/G
260/B
260/B (45 FR 12723)
264(5)/B (§264(5).16)
265/L
260/B
265/G
260/B
260/B
260/B
260/B
260/B
260/B
261/A (§261.2)
265/0
265/N
265/N
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TABLE I (cont.)
Term
Sanitary landfill
Saturated zone (zone
of saturation)
Scavenging
Secondary container
Sludge
Spill
Soil barrier
Soil conditioner
Sole source aquifers
Solid waste
Solid waste manage-
ment
Solid waste manage-
ment facility
State
Storage
Storage facility
Storage tank
Surface impoundment
Tank
Thermal treatment
Totally enclosed
treatment facility
Training
Transportation
Deleted Deferred
X
X
X
X
X
Promul-
gated
X
X
X
X
X
Background Document
and/or preamble in
which the term is
discussed
260/B
265/F
260/B
260/B
261/A (§261.2)
263/M (45 FR 12723)
265/M
261/A (§261.2)
260/B
260/B
260/B
265/1
260/B
265/J
265/K
265/J
265/P
265/J
264(5)/B (§264(5).16)
260/B (45 FR 12722)
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TABLE I (cont.)
Term
Transporter
Transport vehicle
Treated area of a
landfarm
Treatment
Treatment facility
Triple rinsed
True vapor pressure
24-hour, 25-year storm
Underground injection
Unsaturated zone
(zone of aeration)
United States
Underground drinking
water source (UDWS)
Underground non-
drinking water
source
Vapor recovery system
Volatile waste
Water (bulk shipment)
Water table
Well
Well injection
Wetlands
Zone of incorporation
Deleted
Deferred
X
X
X
X
X
X
Promul-
gated
X
X
X
X
X
X
Background Document
and/or preamble in
which the term is
discussed
260/B
260/B
265/M
265/J
260/B
261/D (§261.33)
122/A
265/F
260/B
260/B (45 FR 12723)
265/F
122/A
122/A
265/M
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The Proposed Definitions
The proposed definitions that have not been deferred or
discussed in other background documents or preamble sections
are presented next. The presentation will generally consist
of:
(1) the proposed definition(s),
(2) the Section(s) of the proposed rules in which the definition
was issued,
(3) a summary of the substantive comments (if any) received on
the proposed definition,
(4) a response to comments (except in those cases where a proposed
term has been deleted from the final rules and responding
to the particular points raised by the commenters would be
irrelevant),
(5) the rationale for modifications made to the proposed defi-
nition resulting from changes made either in the proposed
rules or in a related EPA policy, and
(6) the final definition or other information concerning the
final disposition of the definition.
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For the following 18 proposed definitions, no
presentation is necessary for the reasons indicated below:
A. No substantative comments were received on the following
definitions issued in the proposed Section 3004 rules. The
Agency is deleting these terms because they are not used
in the final rules:
Closing date
Common code
Open dump
Reporting quarter
Reporting year
Sanitary landfill
Scavenging
Secondary container
Solid waste management
Solid waste management
facility
B. No comments were received on the following definitions
issued in the proposed Subtitle C rules. They have not been
changed in the final rules and, therefore, are defined in
Part 260 in their proposed form.
Act
EPA Region
Equivalent Method
Federal Agency
Management or hazardous
waste management
Mode
State
United States
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ACTIVE PORTION
A. Proposed Definition [Section 3004]:
"Active portion" means that portion of a facility
where treatment, storage, or disposal operations are
being conducted. It includes the treated area of a
landfarm and the active face of a landfill, but does
not include those portions of a facility which have
been closed in accordance with the facility closure
plan and all applicable closure standards.
B. Summary of Comments;
1. The definition should be reworded to make it clear
that portions of facilities including those
portions not closed in accordance with the proposed
closure requirements closed prior to the effective
date of the regulations are not active:
to clarify that previously closed portions will
not have to be closed again in accordance with
the closure requirements. Otherwise, owners or
operators may close their entire facilities to
avoid the cost of upgrading those portions of
their facilities which have already been closed.
- because the proposed definition is inconsistent
with Congress' intent to apply RCRA regulations
only to the future treatment, storage, or disposal
of hazardous waste.
2. The definition of "active portion" is inappropriate for
facilities which dispose of utility waste in strip mines
because the Office of Surface Mining's closure requirements
would then be inconsistent with those of EPA for these
facilities.
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C. Analysis of and Response to Comments;
1. The following statement in the Preamble to the
proposed regulations stated the Agency's intent not
to regulate portions of facilities closed before
the effective date of the regulations:
"RCRA is written in the present tense and its
regulatory scheme is organized in a way which
seems to contemplate coverage only of those
facilities which continue to operate after the
effective date of the regulation's. The Subpart
D Standards and Subpart E permitting procedures
are not directed at inactive facilities."
(43 PR 58984)
The Agency's intent might have been more clearly
stated if the words "or inactive portions of active
facilities" had been added to the above sentence. The
Agency's intent is not to regulate under Subtitle C
portions of facilities closed before the effective date
of the regulations. The only exception to this is that
owners and operator of facilities which continue to
operate after the effective date of the regulations must
ensure that portion of facilities closed before the
effective date of these rules do not interfere with the
monitoring or control of active portions. This requirement
regulates the facility which operates under the RCRA
regulations, although it may require the owner or operator,
before he receives a permit, or as a permit condition,
to take certain measures on portions of his facility
closed before the effective date of these regulations.
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2. The conunenter' s concern regarding the disposal of
utility waste in strip mines stems from a discontent
with the inclusion of these activities under the
proposed Subtitle C regulations, rather than from a
semantic objection to the proposed definition of
"active portion." Presumably, the conunenter is
suggesting that where utility waste is placed in
strip mines for reclamation purposes, this activity
should not be regulated under RCRA as a disposal
facility, because this would be inconsistent with
the Office of Surface Mining's regulations requiring
reclamation of strip mined land. The background
document entitled " Closure and Post-Closure" explains
EPA's policy regarding regulation, under Section 3004
of"RCRA, of hazardous waste disposal in surface mines.
D. Final Definition;
"Active Portion" means that portion of a facility
where treatment, storage, or disposal operations are
being or have been conducted after the effective date
of Part 261 of this Chapter and which is not a closed
portion. (See also "closed portion" and "inactive
portion".)
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ADMINISTRATOR
A. Proposed Definition [Sections 3001/2/4]:
"Administrator" means the Administrator of the
Environmental Protection Agency.
The proposed definition was adopted from Section 1004(1)
of RCRA.
B. Summary of Comments;
(
No comments were received on the proposed definition.
C. Rationale for Modifications Made to the Proposed Definition;
The definition has been modified to indicate that
a person designated by the Administrator to perform his
duties is included in the definition.
D. Final Definition;
"Administrator" means the Administrator of the
Environmental Protection Agency, or his designee.
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CONSTITUENT OR HAZARDOUS WASTE CONSTITUENT
A. New Definition;
"Constituent" or "hazardous waste constituent" means
a constituent which caused the Administrator to list the
hazardous waste in Part 261, Subpart D, of this Chapter,
or a constituent listed in Table 1 of §261.24 of this
Chapter.
(
B. Rationale for the Definition;
This term is defined in the final rules to provide a
concise way of referring to those constituents described more
fully in the definition. The definition is limited in this way
in order to make it clear that it is the hazardous attributes
of a waste upon which EPA wishes to focus.
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CONTAMINATION
A. Proposed Definition [Section 3004]:
"Contamination" means the degradation of naturally
occuring water, air, or soil quality either directly
or indirectly as a result of man's activities.
B. Summary of Comments;
1. The word "degradation" should be replaced by the
phase "lowering of the quality", because the word
"degradation'1 could be interpreted to mean a slight
increase in the level of a pollutant.
2. The phrase "beyond allowable levels set forth in
these regulations" should be added to the end of the
definition.
C. Deletion of Proposed Definition;
The Agency believes that any degradation is contamina-
tion and, therefore, wrote the proposed definition to
reflect this belief. However, EPA recognizes the commenters
concerns that the release of insignificant levels of pollu-
tants from a facility to the environment might cause an
owner or operator to be in violation of these regulations.
Because EPA is not ready to establish allowable levels of
pollutants to make the definition specific, it is deleting
the definition from the final rules. When the word "con-
tamination" is used in the final rules (e.g., in the
Subpart F ground-water monitoring standards), its meaning
is clear from the context of the standard in which it is
used.
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DELIVERY DOCUMENT
A. Proposed Definition [Sections 3002/3/4]:
"Delivery Document" means a shipping paper (bill
of lading, waybill, dangerous cargo manifest, or other
shipping document) used in lieu of the original manifest
to fulfill the recordkeeping requirements of §250.33.
B. Summary of Comments;
It is unclear when the "delivery document" would
be used.
C. Deletion of Proposed Definition;
The delivery document was intended to be used as a
record of delivery when a manifest did not accompany a
movement of hazardous waste transported by rail or in
bulk quantities by water (e.g., on a barge). The Agency
is deleting this definition from the final rules because
provisions other than a delivery document have been made
in the final Section 3003 rules for the transportation
of hazardous waste by rail or (in bulk) by water.
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DESIGNATED FACILITY
A. New Definition;
"Designated facility" means a hazardous waste treat-
ment, storage, or disposal facility which has received
an EPA permit (or a facility with interim status) in
accordance with the requirements of 40 CFR Parts 1?2 and
124 of this Chapter, or a permit from a State authorized
in accordance with Part 123 of this Chapter, that has
been designated on the manifest by the generator pur-
suant to §262.20.
B. Rationale for the Definition:
Sections 3002 requires the use of a manifest system
to ensure that all hazardous waste transported off-site
is destined for a permitted treatment, storage, or disposal
facility. Section 3003 of RCRA requires transporters of
hazardous waste to comply with the manifest system developed
under Section 3002.
The final Part 262 rules (which correspond to Section
3002 of RCRA) require that generators designate the permit-
ted facility to which their waste is destined. A definition
of "designated facility" has been added to the final rules
to provide a special term to refer to when describing the
permitted facility to which the waste is to be transported.
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DISPOSAL
A. Proposed Definition [Sections 3001/2/4]:
"Disposal" means the discharge, deposit, injection,
dumping, spilling, leaking, or placing of any solid
waste or hazardous waste into or on any land or water
so that such solid waste or hazardous waste or any
constituent thereof may enter the environment or be
emitted into the air or discharged into any waters,
including ground waters.
This definition is adopted from Section 1004 of the
Resource Conservation and Recovery Act (P.L. 94-580) of
1976.
B. Summary of Comments:
1. The definition should be reworded to clarify that
an unplanned release or discharge of hazardous waste
does not constitute "disposal". Otherwise, accidental
i
discharges will have to be permitted before they are
allowed to occur
2. The proposed definition is inappropriate because it
is dependent upon a "leaking test" and, therefore,
is inconsistent with common usage of the word "disposal"
The definition should be reworded as follows: disposal
means to abandon, deposit, enter, or otherwise discard
waste as a final action.
C. Analysis of and Response to Comments;
1. Regardless of whether a discharge of hazardous waste
is intentional or not, the human health and environ-
mental effects of both types of discharges are the
same. Thus, the Agency believes that intentional
and unintentional discharges should be included in
the definition of disposal.
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However, the Agency agrees that permits should only
be required for intentional disposal of hazardous waste.
Therefore, the definition of "disposal facility" has
been modified to indicate that the term "disposal facility"
does not apply to sites involving the accidental discharge
of hazardous waste.
2. Congress, in defining "disposal" as including "leaking",
clearly meant to make the definition all-encompassing.
The Agency believes that the leakage of hazardous waste
can pose a threat to human health and the environment
and, therefore, sees no reason to modify the statutory
definition of "disposal".
D. Final Definition;
Same as proposed.
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DISPOSAL FACILITY
A. Proposed Definition [Section 3004]:
"Disposal facility" means any facility which disposes
of hazardous waste.
B. Summary of Comments;
The proposed definition should be reworded to make it
clear that the land on which an accidental discharge of
waste has occurred (e.g., where a railroad tank car con-
aining hazardous waste has overturned in a collision and
spilled its cargo) is not considered to be a "disposal
facility."
C. Analysis of and Response to Comments;
The Agency agrees with this comment and has therefore
changed the definition of "disposal facility" to indicate
that disposal facilities only include those operations
at which hazardous waste is intentionally placed into or
on the land or water -
In addition, the definition has been further modified
to indicate that only facilities at which hazardous waste
is to remain after closure are, for purposes of these
regulations, disposal facilities. Thus, for example, a
surface impoundment used for waste treatment from which
the emplaced waste is to be removed before or during
closure of the impoundment, is not both a treatment and
a disposal facility, but rather, only a treatment facility.
That doesn't mean it might not be "disposing" of wastes
within the meaning of that term in Section 1004(3) of
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RCRA. It merely means that EPA, for the purposes of
reference in these regulations, will call it a "treatment
facility".
D. Final Definition:
"Disposal Facility" means a facility or part of a
facility at which hazardous waste is intentionally
placed into or on any land or water, and at which waste
will remain after closure.
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EPA [Sections 3002/4]
A. Proposed Definitions:
"EPA" means the U.S. Environmental Protection Agency.
B. Summary of Comments;
No comments were received on the proposed definitions
C. Deletion of the Proposed Definition;
The Agency has deleted this definition from the final
rules because its meanings will be obvious to most people
and, therefore, defining it is unnecessary.
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EPA IDENTIFICATION NUMBER
(IDENTIFICATION CODE)
A. Proposed Definition [Section 3002/3/4]
"Identification code" means the unique code assigned
by EPA to each generator, transporter, and treatment,
storage, or disposal facility, pursuant to regulations
published in §250.24, .32, and .40(c) and Subpart G.
"Identification code" was defined in the proposed
Sections 3002, 3003, and 3004 rules. These definitions were
essentially the same, except that they were tailored to
either generators, transporters, or owners/operators of
treatment, storage or disposal facility. The definition
in the Section 3003 rules did, however, contain an additional
provision .which would have allowed States, as well as EPA,
to issue identification codes.
B. Summary of Comments;
If both States and EPA issue identification codes, it is
possible that more than one identification code could be
issued to the same generator, transporter, or owner/operator.
C. Analysis of and Response to Comments;
When the Section 3003 rules were proposed, they spec-
ified that States could be allowed to issue identification
codes. Since that time, the Agency has determined that
allowing States to conduct the EPA notification program
[Section 3010] wherein EPA identification codes are
issued is not authorized by RCRA. The only parties
authorized in RCRA to issue EPA identification codes are
the Administrator of EPA and States that have authorized
hazardous waste permit programs.
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Sectxon 3010 of RCRA requires that each person who
handles hazardous waste to notify the Agency within 90
days after the Part 261 rules are initially promulgated.
By so notifying, these people will obtain an EPA identifi-
cation number- However, no States will be issuing these
numbers because it will take longer than 90 days for States
to be authorized to administer the hazardous waste program
(
(see the final Parts 122 & 124 rules). Accordingly, the
final definition has been revised to reflect this fact.
The Agency has replaced the proposed term with "EPA
identification number" because people who notify in accord-
ance with Section 3010 of RCRA are assigned numbers.
The Agency is re-promulgating the definition of "EPA
identification number" which appeared in the Part 260 rules
issued on February 26, 1980 (45 FR 12724). The word "unique"
has been deleted from that definition because it is obvious
that the number which will be assigned to people complying
with the Section 3010 notification requirements will be
unique.
D. Final Definition;
"EPA Identification number" means the number assigned
by EPA to each generator, transporter, and treatment,"
storage, or disposal facility.
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EXISTING FACILITY
A. Summary of Comments;
1. The definition of "facility" should distinguish
between new and existing facilities.
2. The term "in operation" should be defined because
correct interpretation of several standards (e.g.,
proposed §250.43-2(b)) in which the term is used is
necessary for owners or operators to determine whether
they should comply with these standards. "In
operation" should be defined as follows: "In operation1
means, when applied to hazardous waste management
facilities, that the facility is actively treating,
storing, or receiving hazardous waste for disposal.
B. Analysisof and Response to Comments;
1. Definitions for new and existing facilities were con-
tained in the proposed Consolidated Permit Regulations
(44 FR 34269), which are the standards with which
owners or operators must comply to obtain a permit
for their facilities.
However, to minimize the need to refer to the Con-
solidated Permit Regulations to understand the Parts
264 and 265 standards, the Agency has published def-
initions of "new facility" and "existing facility"
in Part 260 of the final rules.
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2. The proposed Consolidated Permit Regulations also
contained a definition of "in operation". It too has
been included in the list of terms defined in Part
260 in order to:
1. promote the understanding of the term "existing
facility" (in which the term "in operation" is
used). and
2. respond to the commenters' request for a definition
of the term. The definition in Part 260 is
comparable to that suggested by the commenter.
* * *
See the preamble discussion accompanying the Part 260
rules for the Agency's rationale for altering the definition
of "existing facility" contained in the proposed Consolidated
Permit Regulations.
C. Final Definitions;
"Existing hazardous waste management facility" or
11 existing facility" means a facility which was in operation,
or for which construction had commenced, on or before
October 21, 1976. Construction had commenced if:
(1) The owner or operator has obtained all necessary
Federal, State, and local preconstruction approvals
or permits; and either
(2a) A continuous physical, on-site construction program
has begun, or
(2b) The owner or operator has entered into contractual
obligations which cannot be cancelled or modified
without substantial loss for construction of the
facility to be completed within a reasonable time.
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FACILITY
A. Proposed Definition [Section 3004]:
"Facility" means any land and appurtenances, there-
on and thereto, used for the treatment, storage, and/or
disposal of hazardous waste.
B. Summary of Comments;
1. The definition should distinguish between facilities
on the generator's property for his own use, and
facilities to which generators send their waste for
treatment, storage, or disposal.
2. It should be made clear that multiple separate treat-
ment, storage and/or disposal sites at one industrial
complex constitute a single facility. To this end, the
word "any" should be changed to "all" in the definition.
3. The word "facility" is used ambiguously throughout
the regulations because sometimes it refers to land-
fills, sometimes to storage facilities, sometimes to
all types of hazardous waste facilities, and sometimes
even to non-hazardous waste facilities. The Agency
should be more careful in its use of the term, and
should designate, where appropriate, the specific
type of facility affected by each standard.
4. The regulations refer to both hazardous and solid
waste facilities. To preclude any confusion that
may arise from using the term "facility", §250.41(b)
should include a definition of "hazardous waste
facility," rather than "facility"; the term "facility"
should not be used in the Section 3004 standards to
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refer to hazardous waste facilities.
5. The phrase: "but does not include a steam electric
generating plant which is fueled wholly or partially
by refuse - derived fuel" should be added to the end of
the definition of "disposal facility". The reason
for this is to clarify that a utility boiler fueled
wholly or partially by waste oil is not required to
be licensed as a solid waste disposal facility and,
therefore, is not included in the definition of
"facility".
Analysis of and Response to Comments;
1. For the most part, the standards applicable to fac-
ilities on a generator's property (on-site facilities)
also apply to facilities to which generators send
their waste for treatment, storage, or disposal
(off-site facilities). Thus, it is unnecessary to
differentiate, in most of the standards, between
the two types of facilities. In those few standards
which are applicable to only one type of facility,
the scope of the standard is indicated by placing
"off-site" or "on-site" before the term "facility-"
Therefore, there is no need to differentiate in the
definition of "facility" between generator-operated
facilities and facilities to which generators send
their waste for management.
2. The Agency agrees that the final rules should make
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it clear that a facility may consist of several
storage, treatment, and/or operational units.
To this end, the Agency has substituted the' word
"all" for "any" in the revised definition, and has
added the following sentence to the definition:
"A facility may consist of several treatment,
storage, and/or disposal operational units, (e.g.,
one or more landfills, surface impoundments, or
combinations of them)."
3 & 4. The Agency uses the term "facility" to refer to
any one of a number of types of hazardous waste
facilities, or combinations of them, because it
is cumbersome to list the individual types of
facilities to which a standard pertains. The
Agency believes that the context in which the term
is used makes its meaning sufficiently clear to
avoid ambiguity.
The Agency recognizes that the use of the term
"facility" in Section 3004 to refer to hazardous
waste management facilities, and in Section 4004
to refer to solid waste management facilities, may
be somewhat confusing when comparing the two sets
of regulations. However, the Agency has been care-
ful to use the unmodified word "facility" in the
final Section 3004 standards only when speaking
about hazardous waste facilities. Solid waste
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facilities are always prefaced by an adjective
which connotes solid, as opposed to hazardous,
waste: (e.g., sanitary landfill). Likewise, in
the final Section 4004 standards, the unmodified
word "facility" is used only to describe solid
waste facilities.
The Agency believes that using the term
"hazardous waste facility", in lieu of the word
"facility", throughout the Section 3004 standards
would be unnecessarily cumbersome.
5. Resource recovery operations excluded from regulation
under the Phase I rules have been specified in
§261.3, Definition of Hazardous Waste. The purpose
of the suggested amendment to the definition regarding
waste oil-fired boilers has been achieved in this
fashion rather than by revising the definition of
"facility".
D. Final Definition;
"Facility" means all contiguous land, and structures,
other appurtenances, and improvements on the land, used for
treating, storing, or disposing of hazardous waste. A
facility may consist of several treatment, storage, or
disposal operational units (e.g., one or more landfills,
surface impoundments, or combinations of them).
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FARM
FARMER
A. Proposed Definitions [Section 3002]:
"Farm" means a piece of land on which crops or animals
are raised.
"Farmer" means a person whose principal business is
operating a farm.
B. Summary of Comments;
A comment was received on the proposed definitions,
suggesting that the definition of farmer should not be
restricted to those persons whose "principal" occupation
was farming.
C Deletion of Proposed Definitions;
EPA has decided that the dictionary definitions of
"farm" and "farmer" adequately define these terms and,
therefore, has chosen to delete these definitions from
the final rules.
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FREEBOARD
A. Proposed Definition [Section 3004]:
"Freeboard" means the vertical distance between
the average maximum level of the surface of waste in
a surface impoundment, basin, open tank, or other con-
tainment and the top of the dike or sides of an impound-
ment , basin, open tank, or other containment.
B. Summary of Comments:
The word "average" or "average maximum" should be deleted
from the proposed definition because using the term
"average maximum level":
Will enable operators to comply with freeboard
restrictions without maintaining adequate
freeboard at all times;
Will render freeboard requirements in permits
legally ineffective and unenforceable;
- Is meaningless without a reference to time
(e.g., 24 hours).
C. Analysis of and Response to Comments:
The Agency's intent in including the words "average
maximum" in the proposed definition was to convey the
idea that, even in closely monitored facilities, the
level of waste in a containment device fluctuates
somewhat from day to day. The Agency believed that this
tendency for unavoidable fluctuation should be reflected
in the definition of freeboard to assure owners or operators
that EPA will not subject them to penalties if they are
unable to maintain the exact vertical distance (e.g., 2
feet) specified in the standards.
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As the comment suggests, the proposed definition poses
the problem that it could permit operation for at least
some period of time with less than 2 feet of freeboard.
If an emergency occured at this time, (e.g., a malfunction
in the treatment process, or a severe storm), then the
freeboard might have been inadequate to prevent the
impounded waste from overflowing - It is just this sort
of problem that the freeboard requirement is intended to
avoid. The phrase "average maximum" has therefore been
deleted from the definition, and it is intended that
owners and operators manage their facilities so that
they maintain at least 2 feet of freeboard at all times
during normal operations. The Agency now believes that
the appropriate place to address unavoidable fluctu-
ations in freeboard is in the enforcement process, or
in the facility's permit, and not in the definition of
"freeboard."
D. Final Definition;
"Freeboard" means the vertical distance between
the top of a tank or surface impoundment dike, and the
surface of the waste contained therein.
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GENERATOR
A. Proposed Definition [Section 3002/3/4]:
"Generator" means any person or Federal Agency whose
act or process produces hazardous waste identified or
listed under Subpart A? provided, however, that certain
producers may or may not be generators depending on
whether they meet the criteria specified in §250.29 of
this Subpart.
B. Rationale for the Definition;
§1004(6) of RCRA defines "hazardous waste generation"
as "the act or process of producing hazardous waste". EPA
used this language as the basis for its proposed definition
of "generator11.
C. Summary of Comments;
1. The definition should exclude:
a. people who do not intentionally produce hazardous waste
(e.g., manufacturers of hazardous materials who spill
some of their product at their plant).
b. waste oil haulers. The preamble to the proposed Section
3002 rules states that the reason why accumulation of
hazardous waste is considered to be generation is be-
cause "the process of accumulation results in a hazardous
waste disposal problem". However, this is not the case
with people who only accumulate hazardous waste in order
to transport it.
c. owners and operators of treatment facilities who produce
hazardous residues (and, therefore, hazardous waste) as
a result of treating hazardous waste. Otherwise, these
facilities will have to send manifests to themselves.
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2. In the drilling industry, sub-contractors are often
hired to supply drilling mud, and to dispose of it after
it is used. Even though the sub-contractor is hired to
dispose of the mud, the regulations should make it clear
that the company who obtained the right to drill off-shore
is the generator of the mud and, hence, is responsible
for disposing of it.
3. The definition should specify that for corporations which
have plants in several locations,:
a. each plant is considered to be a separate entity
for the purpose of determining whether it is a
generator;
b. the corporate headquarters is the generator. This
will reduce the number of manifests and records that
must be maintained.
4. The definition of generator is insufficient because it
fails to say that States may be generators.
5. People may not know they are generators because of the
broad, encompassing definition of "hazardous waste".
D. Analysis of and Response to Comments;
la. People who spill a hazardous material either while it
is being transported, or while at the manufacturing plant
are subject to the Subtitle C rules only if the material is
listed in §261.33.
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§263.30 provides that people who spill these listed
materials while they are being transported, may be exempted
from the requirements to (1) obtain an EPA Identification
Number, and (2) initiate a manifest for the spilled material
if they are acting under the authority or instruction of the
on-scene coordinator.
If a person spills one of these materials while at a
manufacturing plant, the spilled material is a hazardous waste
and the person who spills it is a generator. There are
presently no exemptions from any of the Subtitle C rules for
this type of hazardous waste generation.
Ib. The Agency is deferring regulation of non-listed
wastes associated with reuse or recycling until the second
phase of the Part 261 rules are issued. Because virtually
all waste oil haulers collect waste oil in order that it can
be reused or recycled, they will not be generators of hazar-
dous waste when the Part 261 rules are initially promulgated.
In deciding how waste oil should be regulated when the
Phase II Part 261 rules are issued, the Agency will be assessing
the adminstrative impact of subjecting waste oil haulers to the
Subtitle C rules. However, since this decision will not be made
for several months, the Agency is deferring response to this
comment until these subsequent rules are promulgated.
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Ic. Owners and operators of treatment facilities which
produce hazardous residues should not be excluded from the
definition of "generator". Such residues, if hazardous,
require the same careful treatment as other hazardous waste.
The final Part 261 rules specify that all residues generated
from hazardous waste treatment facilities are hazardous
wastes (unless the owner or operator can demonstrate in
accordance with §261.39 that the residue is not a hazardous
waste). Therefore, the owners and operators of these facili-
ties are generators.
However, owners and operators are not required to fill
out manifests for waste generated and managed on the site of
generation. Thus, if an owner or operator manages the residue
which he generates and does not transport it off-site, he is
not required to fill out a manifest. He is required to fill
out a manifest only if the residue he generates is transported
off-site for treatment, storage, or disposal.
2. If a company sub-contracts another firm to perform any
of its duties required under the Subtitle C regulations, it
is the company who is responsible for complying with the
regulations, and it is the company who is the generator -
Thus, if the sub-contractor fails to perform its contracted
duties, EPA may bring enforcement actions against the generator.
The generator may, in turn, sue the sub-contractor for failing
to carry out the terms of the contract.
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The Agency believes that it is inappropriate to include
provisions in the regulations concerning assumptions of
duties contracts. Contract law already provides an adequate
mechanism for third parties to assure the performance of a
principal's responsibility.
3. The Agency agrees that the regulations should make it
clear that for corporations which have plants in several
locations, if their plants generate hazardous waste, each is
a generator- This is necesary because RCRA directs the Agency
to monitor and.control the movement of hazardous waste. The
only way that the Agency can do so is to know the source of
the waste. If the reports EPA received on hazardous waste
identified the corporate headquarters as the generator, EPA
would not know which of the corporation's plants produced
the waste and, thus, would be unable to monitor the waste's
movement. For this reason, the final definition has been
modified to make it clear that the plant, and not the parent
company, is the generator. However, corporate headquarters
may prepare and submit separate reports for each of the
corporation's facilities.
4. The regulations define a "generator" as any person ...
(emphasis added). Section 1004(15) of RCRA states that "the
term 'person' means an individual, trust ... State ..."
(emphasis added). Because the definition of "generator"
includes the term person, it includes States.
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5. The Agency agrees that the defxnition of "hazardous waste1
gxven in Section 1004(5) of RCRA is broad. For this reason,
the Agency has included a definition of "hazardous waste" in
§261.3 of the final rules which provides specificity to the
statutory definition of the term.
In addition, the Agency has included an Appendix in the
final Part 260 rules which diagrams the definition in §261.3.
This diagram was designed to help people unfamiliar with the
RCRA rules to determine if they are generators of hazardous
waste.
D. Final Definition;
"Generator" means any person, by site, whose act
or processs produces hazardous waste identified
or listed in Part 261 of this Chapter-
Note: The proposed definition excluded certain producers
(i.e., farmers and small generators) from the definition of
"generator". Because these exclusions were specifically
dealt with in the proposed regulations, it was unnecessary to
attempt to include the substance of these regulations in the
definition of "generator".
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HAZARDOUS MATERIAL
A. Proposed Definition [Section 3003]:
"Hazardous material" means a substance or material
which has been determined by the Secretary of Transport-
ation to be capable of posing an unreasonable risk to
health/ safety, and property when transported in commerce,
and which has been so designated under 49 CPR 171.8 and
173.
B. Summary of Comments;
No comments were received on the proposed definition.
C- Deletion of Proposed Definition;
The proposed definition was adopted from the Depart-
ment of Transportation's (DOT's) regulations for the
transportation of hazardous materials (Title 49 CFR 171.8),
The Agency now believes that it was unnecessary to include
this definition in the proposed RCRA rules because anyone
interested in knowing how DOT uses the term can look at
its definition in DOT's regulations. Therefore, it has
been deleted from the final RCRA rules.
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INACTIVE PORTION
A. New Definition:
"Inactive portion" means that portion of a facility
which is not operated after the effective date of Part
261 of this Chapter. (See also "active portion" and
"closed portion".)
B. Rationale for the Definition;
This definition has been added to the final Part 260
rules to emphasize that "inactive portions" of facilities
will be regulated differently than "active portions1' of
facilities. See the discussion of the definition of
"active portion" for a synopsis of the ceminenters' con-
cerns regarding "inactive portions" of facilities.
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INCOMPATIBLE WASTE
A. Proposed Definition [Section 3004]:
"Incompatible waste" means a waste unsuitable for
commingling with another waste or material, because the
commingling might result in:
(i) Generation of extreme heat or pressure,
(ii) Fire,
(in) Explosion or violent reaction,
(iv) Formation of substances which are shock
sensitive, friction-sensitive, or otherwise
have the potential of reacting violently,
(v) Formation of toxic (as defined in Subpart A)
dusts, mists, fumes, gases, or other chemicals,
and
(vi) Volatilization of ignitable or toxic chemicals
due to heat generation, in such a manner that
the likelihood of contamination of groundwater,
or escape of the substances into the environment,
is increased, or
(vii) Any other reactions which might result in not
meeting the Air Human Health and Environmental
Standard. (See Appendix I for more details) .
B. Summary of Comments:
1. The key to incompatibility, as set forth in Appendix
I is that a waste "can potentially produce adverse
human health and environmental effects through means
such as the following: (1) heat generation..."
To be consistent with Appendix I, this phrase should
be substituted for the introductory language in
the proposed definition.
2. Since "incompatible wastes" are prohibited in basins,
landfills and surface impoundments, the phrase "or
other chemicals" should be deleted from part (v) of
the definition because the mixing of hazardous waste
for the purpose of treatment almost always generates
toxic chemicals, such that the proposed definition
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will prevent the treatment of most hazardous waste.
3. The definition should be reworded to indicate that
only hazardous waste unsuitable for commingling with
another hazardous waste... is included in the
category of "incompatible waste."
4. Because a waste cannot be incompatible with "another
waste or materials" unless that waste is specifically
named, the definition should be reworded as follows:
"Incompatible Waste" means any one of the pairs
of waste listed in Appendix I.
B. Analysis of and Response to Comments
1. The definition, the Appendix (now Appendix V to
Part 265) and the substantive regulations have
been coordinated in the final rules, largely along
the lines of the proposed Appendix.
2. The Agency agrees that the phrase "or other chemical"
in paragraph (v) of the definition, should be deleted.
The concern of paragraph (v) was with toxic materials
that were likely to escape as gases, dusts, mists,
or fumes; other chemicals which do not escape into
the air were not the focus of this paragraph.
3. The Agency does not agree that the definition of
"incompatible waste" should be restricted to the
commingling of hazardous waste with another hazardous
waste. The commingling of hazardous waste with a
non-hazardous waste or material can produce hazardous
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situations (e.g., excessive heat, fire, explosion, etc.)
and, thus, this commingling should also be included
in the category of incompatible waste.
4. Because of the numerous types of wastes and the many
new types of chemicals produced each year, it is
impossible for EPA to compile, and to keep up-to-
date, an exhaustive list of all incompatible waste.
The proposed Appendix I (now Appendix V) was only
intended to serve as a guide to alert owners or
operators that special precautions should be taken
when mixing the listed wastes or materials. How-
ever, because Appendix I could not contain all
incompatible wastes, the Agency specified in the
definition and the regulations, the characteristic
outcomes of mixing waste and/or materials which are
incompatible. The burden is on owners and operators
to know the wastes they are handling well enough to
avoid these outcomes.
Rationale for the Final Definition;
Example (iv) of the proposed definition "Formation
of substances which are shock sensitive, friction-senstive,
or otherwise have the potential of reacting violently"
has been deleted from the definition. This has been done
because reactive substances are adequately covered in the
sections of the final rules dealing directly with them,
and there are few or no damage incidents resulting from
the production of such substances from non-reactive wastes.
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Example (vi) of the proposed definition "Volatili-
zation of ignitable or' toxic chemicals due to heat gener-
ation, in such a manner that the likelihood of contamination
of groundwater, or escape of the substances into the environ-
ment, is increased" has in part been deleted from the
final Phase I definition of "incompatible waste", because
the Agency is deferring regulation of the emission of
volatile waste to the environment. It has in part been
subsumed in other examples of incompatible wastes which
involve emissions of toxic or flammable waste to the air.
Example (vii) of the proposed defintion "Any
other reactions which might result in not meeting
the Air Human Health and Environmental Standard"
has been deleted from the final definition of "incom-
patible waste" because the proposed Air Human Health
and Environmental Standard has been deleted from the
final rules (see the Parts 264/265 preamble discussion
entitled "Performance vs. Operating and Design Standards").
However, a related requirement now appears in §264/5.17(b);
it is discussed in the preamble section on "Ignitable,
Reactive, and Incompatible Wastes."
A new provision has been added to the final defin-
ition. It specifies that wastes are incompatible if,
when mixed and placed in a containment device or facility,
they would cause corrosion or decay of the construction
materials of the device or facility (e.g./ container
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inner liners or tank walls). The Agency added this
provision to the definition because many of the final
Section 3004 standards are intended to prevent the
rapid deterioration of a facility due to adverse reactions
between wastes and the materials which contain them.
D. Final Defintion
"Incompatible waste" means a hazardous waste which
is unsuitable for:
(i) Placement in a particular device or facility be-
cause it may cause corrosion or decay of contain-
ment materials (e.g., container inner liners or
tank walls); or
(li) Commingling with another waste or material under
uncontrolled conditions because the commingling
might produce heat or pressure, fire or explosion,
violent reaction, toxic dusts, mists, fumes, or
gases, or flammable fumes or gases.
(See Part 265, Appendix V, of this Chapter for examples.)
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IN OPERATION
A. New Definition:
"In operation" refers to a facility which is treating,
storing, or disposing of hazardous waste.
B. Rationale for the Definition:
See the discussion on the definition of "Existing Facility"
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INTERNATIONAL SHIPMENT
A. Proposed Definition [Section 3002]:
"International shipment" means the transportation
of hazardous waste between a generator located in the
United States and a treatment, storage, or disposal
facility located outside the jurisdiction of the United
States.
B. Summary of Comments;
No significant comments were received on the
proposed definition.
C. Rationale for Modifications Made to the Proposed
Definition:
The proposed definition only applied to generators
in the United States shipping hazardous waste to a
foreign country for treatment, storage, or disposal.
The Agency had also intended for the term to encompass
the shipment of hazardous waste from foreign generators
to facilities in the United States. The final definition
of the term has been revised to better reflect the
Agency's original intent.
D. Final Definition;
"International shipment1' means the transportation
of hazardous waste into or out of the jurisdiction of
the United States.
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MANIFEST
A. Proposed Definition [Sections 3002/3/4]:
Sections 3002 and 3004 - The proposed definitions of
"manifest" in these Sections were substantively the same;
the Section 3002 regulation stated:
"Manifest" has the meaning given in Section 1004(12)
of the Act as further defined and specified in
§250.22 herein.
Section 3003 - The proposed definition in this Section
incorporated the text of the statutory definition of the
term given in Section 1004(12) of RCRA, rather than referencing
it, as was done in the Sections 3002 and 3004 defintions
of the term.
"Manifest" means the form used for identifying the
quantity, composition, and the origin, routing and
destination of hazardous waste as specified in regu-
lations under §250.22, Subpart B of this Part.
B. Summary of Comments;
No substantive comments were received on any of the
proposed definitions.
C. Rationale for Modifications Made to the Proposed Definition:
The Agency has simplified the final RCRA definition of
"manifest" by deleting the reference to the statutory
definition of that term. Only the substance of the statu-
tory definition has been incorporated into the RCRA defini-
tion, as was done in the proposed Section 3003 version of
the term.
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D. Final Definition:
"Manifest" means the shipping document originated
and signed by the generator which contains the
information required by Part 262, Subpart B, of
this Chapter.
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MANIFEST DOCUMENT NUMBER
A. Proposed Definition [Sections 3002/4]:
"Manifest document number" means the serially in-
creasing number assigned to the manifest by the generator
for recordlceeping and reporting purposes. [3004]
The definition in the proposed Section 3002 rules
also included the words "or delivery document" to indicate
that a serially increasing number could also be assigned
to a delivery document if one was used instead of a manifest
B. Sumary of Comments;
No comments were received on the proposed definition.
C. Rationale for Modifications Made to the Proposed Definition
The final definition is the same as that proposed in
the Section 3004 rules. The phrase "or delivery document"
has not been included in the final definition because the
term "delivery document" is no longer used in the RCRA
regulations. (See "DELIVERY DOCUMENT" on page 22 of
this document.)
D. Final Definition;
"Manifest document number" means the serially in-
creasing number assigned to the manifest by the generator
for recording and reporting purposes.
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MONITORING
A. Proposed Definition [Section 3004]:
"Monitoring" means all procedures used to system-
atically inspect and collect data on operational parameters
of the facility or on the quality of the air, groundwater,
surface water, or soils.
B. Summary of Comments;
No comments were received on the proposed definition.
C. Deletion of the Proposed Definition;
The definition has been deleted from the final rules
because the proposed meaning of the term was not unique to
these regulations. The term was used as it is normally
used in everyday language and, therefore, a definition of
it was unnecessary. Where "monitoring" is used, the regu-
lations give a reasonable indication of what "monitoring"
means. It is not used as a term of art.
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MOTOR VEHICLE
A. Proposed Definition [Section 3003]:
"Motor vehicle" means a vehicle, machine, tractor,
trailer, or semi-trailer, or any combination thereof,
propelled or drawn by mechanical power and used upon
the highways in transportation. It does not include
a vehicle, locomotive, or car operated exclusively
on a rail or rails.
B. Summary of Comments;
No comments were received on the proposed definition.
C. Deletion of Proposed Definition;
The term "motor vehicle" was used in the proposed
Section 3003 rules in the context of marking requirements
for these vehicles. The proposed RCRA marking requirements
t
have been replaced in the final RCRA rules by DOT's
marking requirements. Because "motor vehicle" is defined
in DOT's regulations (49 CFR 171.8), it is unnecessary
to define the term in the RCRA rules.
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NEW FACILITY
New Definition;
"New hazardous waste management facility" or "new
facility" means a facility which began operation, or
for which construction commenced after October 21, 1976.
(See also "Existing hazardous waste management facility".)
B. Rationale for the Definition;
See the discussion on the definition of "Existing
Facility".
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NON-POINT SOURCE
A. Proposed Definition [Section 3004]:
"Non-point source" means a source from which pollutants
emanate in an unconfined and unchannelled manner, in-
cluding, but not limited to, the following:
(i) For non-point sources of water effluent,
this includes those sources which are not con-
trollable through permits issued pursuant to
Sections 301 and 402 of the Clean Water Act.
Non-point source water pollutants are not
traceable to a discrete identifiable origin,
but result from natural processes, such as
nonchannelled run-off, precipitation, drainage,
or seepage.
(ii) For non-point sources of air contaminant
emissions, this normally includes any landfills,
landfarms, surface impoundments, and basins.
B. Summary of Comments:
1. This definition should not be limited to non-channelled
run-off, precipitation, drainage, and seepage.
2. The reference to "nonchannelled run-off" should .be
deleted to be consistent with the Federal Water
Pollution Control Act (FWPCA).
C. Deletion of Proposed Definition;
The Agency has deleted the definition from the final
rules to be consistent with its decision not to define the
term in any of its regulations prescribed under other Acts
(e.g., the Clean Water Act (CWA), the Clean Air Act, etc.).
Non-point sources are generally understood to be sources
of pollution other than point sources. The term is only
used in the RCRA rules when referring to non-point source
controls under the CWA. Accordingly, in the RCRA rules,
the term has the same meaning as that term has under the
CWA programs.
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OWNER OR OPERATOR
A. Proposed Definition [Section 3004]:
"Owner/operator" means the person who owns the land
on which a facility is located and/or the person who is
responsible for the overall operations of the facility.
B. Summary of Comments;
1. The definitions and responsibilities of owners and
of operators should be distinguished and delineated
separately because:
- the complexities of some ownership and operator
relationships may make it difficult or contract-
ually impossible for both the owner and the operator
to jointly comply with all of the requirements.
- the owner of the facility, or the land on which
the facility is built, often has nothing to do
with the operation of the facility, and therefore,
should not be subject to the regulations.
2. The person owning the land should not be included
in the definition of owner/operator because the Act
specifically indicates that the permit requirements
of Section 3005(a) of RCRA apply to persons owning
or operating a facility, not the land on which the
facility is located. The proposed definition is
inappropriate because it indicates that an absentee
owner of land, who has leased the land to a person
who constructs and operates a facility, could be
held responsible for the operation of the facility
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despite a legally binding contractural agreement to
the contrary.
3. Because the owner or operator may not be physically
on-site at all times, the language "owner/operator"
of some of the standards (e.g., the visual inspection
requirements) should be changed to "owner/operator
or responsible designee(s)".
4. The Section 3002 definition of "generator" should
be combined with the Section 3004 definition of
"owner/operator".
C. Analysis of and Response to Comments
1. The Agency agrees that the definitions of "owner" and
"operator" should be separate, but not for the reasons
given by the commenters.
Although for most of the proposed and final requirements,
the tasks that must be carried out can be performed by
either the owner or the operator, there are a few
standards with which only the owner can comply (e.g.,
recording certain information in the deed to the facility
property). In the final rules, responsibility for
complying with these standards has been assigned to the
owner, and a definition has been added to Part 260
which describes who are owners of facilities.
Responsibility for complying with most of the final
standards has been assigned to the "owner or operator".
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(A definition has also been added to Part 260 which
describes who are operators of facilities.) Owners
and operators are jointly and severally responsible
for complying with the requirements of these standards.
(RCRA's legislative history indicates that this was
Congress1 intent*.) They are free to decide among
themselves who will perform these tasks and, they
can draw up a contract which describes the agreed-upon
division of labor- If a task is not performed, the
Agency may bring enforcement actions against the
owner, the operator, or both. If a contract between
the owner and operator exists, one of the parties is
then free to bring an action against the other for not
complying with the terms of the contract.
The Agency rejects the argument that because facility
owners often have nothing to do with facility operations
they should not be subject to the regulations. The
Agency believes that unless facility owners are held
accountable for environmental damage resulting from
their facilities, unscrupulous facility owners may
lease their property to people who will run the
facility, for a retainer, in an environmentally
unsound manner, reap a quick profit, and abandon
the operation. If this were to occur, EPA would have
no means to obtain funds from either the owner or
the operator to clean up the site. To preclude this
H.R. Rep. No. 94-1491, 2d. Sess . , at 28 (1976).
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type of incident, the Agency believes that absentee
land owners should be subject to the regulations.
Owners must also be subject to RCRA because enforce-
ment actions for equitable relief will necessarily
involve the owners.
2. The Agency agrees that the phrase "the person owning
the land" should be excluded from the final definition
of "owner", but not for the reason given by the
commenter- The definition of "facility" includes
the la-nd on which the waste management operation
(e.g., incinerator) is located, so that the owner(s)
of the facility includes the owner of the land.
Thus, it is unnecessary to list both types of owners
in the definition.
The Act gives EPA the authority to define "facility"
as it deems necessary. Because EPA includes the
land on which the waste management operation is
located in the definition of "facility", the commenter's
statement regarding the Section 3005(a) permitting
requirements is irrelevant.
3. The Agency believes that it is obvious that owners or
operators are not required to personally perform most of
the tasks assigned to them, and that they may designate
their employees to carry out these tasks. The situation
is comparable to requiring people to file tax returns.
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Although each person is responsible to file a return,
it is generally understood that people may hire tax
specialists to file the return for them, even though
this is not explicitly stated in the regulations.
Similarly, it should be obvious that, although owners
or operators are responsible for complying with the
regulations, they can assign employees to perform
i
these tasks for them. Therefore, the Agency has not
amended the regulations as the commenter suggested.
4. The definitions of "generator" and "owner" or "operator"
have not been combined in the final rules because the
"owner" or "operator" may not always be the "generator".
For example, at a disposal facility, the "operator"
is the "disposer", not the "generator".
D. Final Definition;
"Owner" means the person who owns a facility or part
of a facility.
"Operator" means the person responsible for the
overall operation of a facility.
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PACKAGING
PACKAGE or OUTSIDE PACKAGE
A. Proposed Definitions [Section 3002]:
"Packaging" means the assembly of one or more
containers and any other components necessary to assure
compliance with the minimum packaging requirements under
49 CFR 173, 178, and 179 and includes containers (other
than freight containers or over-packs), portable tanks,
cargo tanks, tank cars and multi-unit tank car tanks.
" Package" or "outside package" means a packaging
plus its contents.
B. Summary of Comments;
No comments were received on the proposed definitions.
C. Deletion of Proposed Definition;
The proposed definitions of the above terms have been
deleted from the final RCRA rules because they are defined
in DOT's Transportation Regulations (49 CFR 171.8). Because
all transporters of hazardous waste are subject to these
DOT regulations, they will already be familiar with DOT's
definitions of these terms. Therefore, the Agency believes
that it is unnecessary to repeat them in the final RCRA
Subtitle C rules.
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PERMITTED HAZARDOUS WASTE MANAGEMENT FACILITY
or PERMITTED FACILITY
A. Proposed Definition [Sections 3002/3/4]:
"Permitted hazardous waste management facility" or
"permitted facility" means a hazardous waste treatment,
storage, or disposal facility that has received an EPA
permit in accordance with the requirements of Subpart E
of this Part or a permit from a State agency authorized
in accordance with Subpart F of this Part. [3002]
The definitions in the proposed Sections 3002, 3003,
and 3004 rules were substantively the same.
B. Summary of Comments;
The following underscored changes were suggested by
the commenters:
"Permitted hazardous waste management facility" or
"permitted facility" means a hazardous waste treatment,
storage, and/or disposal facility that has received an EPA
permit in accordance with the requirements of Subpart E of
this Part or a permit or other specific written authorization
from a State agency authorized in accordance with Subpart F
of this Part.
C. Deletion of Proposed Definition;
The Agency has deleted the definition from the final
rules because, under this definition, a "permitted facility"
is merely a facility that has received a permit under these
regulations. Thus, the term is self-explanatory to those
familiar with the final Parts 122 and 123 rules.
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PERSON
A. Proposed Definition [Sections 3001/2/4]:
"Person" means an individual, trust, firm, joint
stock company, corporation (including a. government cor-
poration), partnership, association, state, municipality,
commission, political subdivision of a state, or any
interstate body.
This definition was adopted from Section 1004(15) of
the Resource Conservation and Recovery Act of 1976, as
amended (Pub.L. 94-580).
B. Summary of Comments;
The meaning of "person" and "Federal Agency" in RCRA,
and the use of these terms in the Subtitle C regulations
should be clarified. Because they are defined separately in
t
RCRA, and because the definition of "person" does not include
Federal Agencies, it would appear that the two terms are not
intended to be used interchangeably.
C. Analysis of an Response to Comments;
The Agency included "Federal Agency" in the definition
of "person" issued on February 26, 1980 (45 FR 12724)
because this allows EPA to refer to 'any person1 rather
than the cumbersome term 'any person or Federal Agency'
when speaking of a requirement applicable to everyone.
The Agency is re-promulgating that definition to restore
the proposed phrase: "(including a government corporation)".
The Agency mistakenly deleted the phrase from the definition
in the February rule.
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D. Final Definition;
"Person" means an individual, trust, firm, joint stock
company. Federal Agency, corporation (including a government
corporation), partnership, association, State, municipality,
commission, political subdivision of a State, or any inter-
state body.
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7/
POINT SOURCE
A. Proposed Definition [Section 3004]:
"Point source" means any discernible, confined, and
discrete conveyance, including, but not limited to,
the following:
(i) For point sources of water effluent, any pipe,
ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated
feeding operation, vessel, or other floating craft
from which pollutants are or may be discharged; and
(ii) For point sources of air contaminant emissions,
any stack, duct, or vent from which pollutants are
or may be discharged.
B. Summary of Comments;
The definition should be deleted because it is already
defined in the Clean Water Act (CWA).
C. Analysis of and Response to Comments;
The Agency agrees that the definition should be the
same as that prescribed in the CWA. That definition has
been repeated in the RCRA rules to reduce the need to
refer to the regulations under the CWA.
D. Final Definition;
"Point source" means any discernible, confined, and
discrete conveyance, including, but not limited to
any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock, concen-
trated animal feeding operation, or vessel or other
floating craft, from which pollutants are or may
be discharged. This term does not include return
flows from irrigated agriculture.
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PUBLICLY OWNED TREATMENT WORKS or POTW
A. Proposed Definition [Sections 3001(4)J:
"Publicly Owned Treatment Works" or "POTW" means
a treatment works as defined in Section 212 of the Clean
Water Act (CWA), which is owned by a State or municipality
(as defined by Section 502(4) of the CWA). This defin-
ition includes any sewers that convey wastewater to such
a treatment works, but does not include pipes, sewers,
or other conveyances not connected to a facility providing
treatment. This term also means the municipality as de-
fined in Section 502(4) of the CWA, which has jurisdiction
over the indirect discharges to, and the discharges from,
such a treatment works.
B. Summary of Comments;
1. The definition should include any "pipes, sewers, or
other conveyances not connected to the facility providing
treatment". This should be done because, under Section 212
of the CWA, a POTW includes "interceptor sewers, outfall
sewers, sewage collection systems, pumping, power and
other equipment and their appurtenances".
2. The definition should include privately-owned treatment
works which treat municipal waste.
3. The definition should be reworded to eliminate the
implied discrimination against privately-owned treatment
works.
4. The definition of POTW should be expanded to include
municipally-owned facilities other than municipally-owned
treatment works (e.g., municipal hazardous waste landfills
and incinerators). This will allow these other facilities
to be exempted from the financial liability requirements.
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C. Response to Comments;
1-4. Under these regulations, the term "publicly-owned
treatment works" is only used in the exclusion
(§261.4(a)(1)) of wastes mixed with domestic
sewage from regulation as solid waste. Mixtures of
domestic sewage with other wastes that pass through
a sewer system to a publicly-owned treatment works
(POTW) for treatment are excluded from regulation
as solid wastes under these regulations. The exclu-
sion is based on the legislative history of the
Solid Waste Disposal Act, which indicated that such
waste streams were adequately regulated under the
Federal Water Pollution Control Act's construction
program for treating municipal sewage. In its
current form, the Agency's construction grants pro-
gram makes grants to publicly-owned treatment works.
Because the exclusion of "domestic sewage"
under RCRA is based on the Agency's capacity to
address the environmental problems presented by
such wastes through its grant program for POTWs,
it is appropriate to rely on the definition of POTW
used in regulations issued under the CWA to define
the term. This definition is meant to cover all
devices and systems included under the CWA §212
definition of "treatment works" and which are part
of a system for the treatment of waste or the
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conveyance of waste to a point of treatment. Thus, RCRA
maintains the limitation built into the last sentence of
the CWA definition. Conveyances which do not lead to treatment
are not parts of the defined POTW and, thus, they do not
qualify for exclusion from RCRA.
The CWA does not include privately-owned treatment
works, municipal landfills, or municipal incinerators within
the construction grant program. Thus, it would be inappropriate
to include such facilities within the RCRA definition of POTW.
D. Final Definition;
"Publicly owned treatment works" or "POTW" means
any device or system used in the treatment (including
recycling and reclamation) of municipal sewage or
industrial wastes of a liquid nature which is owned by
a "State" or "municipality" (as defined by Section
502(4) of the CWA). This definition includes sewers,
pipes, or other conveyances only if they convey waste-
water to a POTW providing treatment.
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REACTIVE HAZARDOUS WASTE
A. Proposed Definition [Section 3004]:
"Reactive hazardous waste" means hazardous waste
defined by §250.13(c)(1) of Subpart A.
B. Summary of Comments:
No comments were received on the proposed definition.
C. Deletion of the Proposed Definition;
The definition is unnecessary because the Subpart C
Part 261 rules characterize reactive hazardous waste.
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REGIONAL ADMINISTRATOR
A. Proposed Definition [Sections 3002/4]:
"Regional Administrator" means the Regional Admin-
istrator for the Environmental Protection Agency Region in
which the facility concerned is located, or his designee.
B. Summary of Comments;
No comments were received on the proposed definition.
C. Rationale for Modifications Made to the Proposed Definition;
The word "concerned" is extraneous and, therefore, it has
been deleted from the final definition.
D. Final Definition;
"Regional Administrator" means the Regional Administrator
for the EPA Region in which the facility is located, or
his designee.
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REPRESENTATIVE SAMPLE
The Agency provided two different definitions of the
term "representative sample" in the proposed rules, one in the
Section 3001 rules, and the other in the Section 3004 rules.
The proposed Section 3001 definition will be discussed first.
A. Proposed Definition [Sections 3001]:
"Representative sample" means any sample of the waste
which is statistically equivalent to the total waste in
composition, and in physical and chemical properties.
Representative samples may be generated using the methods
set out in Appendix I of this Subpart.
B. Summary of Comments;
1. The aspect of the definition requiring that the sample
be "statistically equivalent" to the total waste would
be very difficult and expensive to obtain because
statistical equivalence implies a legal standard of
mathmatical proof. In order to determine if a sample
is statistically equivalent to the total waste, the
entire waste stream would have to be sampled, or a
statistical data base would have have to be established
for it, in order to ensure that every constituent of
the waste stream was known to some level of accuracy
and precision. Requiring this kind of sampling would
be particularly inappropriate for people handling
heterogeneous waste.
2. The phrase "statistical equivalence" should be quan-
tified (e.g., number of samples to be taken, allowable
deviation, etc.).
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3. Strict statistical equivalence should not be re-
quired of "representative samples". The term should
be redefined to mean a sample of combined randomly
selected portions of the total waste which can reason-
ably be expected to exhibit the physical and chemical
properties of the waste.
4. The definition of "representative sample" should be
related to the method of sampling.
5. Obtaining representative samples of certain hetero-
geneous wastes can be prohibitively expensive and
extremely difficult. While industry personnel are
skilled at obtaining representative samples of such
heterogeneous wastes, EPA personnel may be less
skilled. Accordingly a provision should be placed in
the regulations which would provide for joint sampling,
or for appeals in those cases where there is a discrep-
ancy between the sampling results of the generator
and the EPA. Such a provision would help defray the
generator's expenses.
C. Analysis of and Response to Comments;
1-3. The Agency agrees that requiring a representative sample
to be statistically equivalent to the waste is currently
infeasible for most waste streams. This is particularly
true for "composite" or heterogeneous wastes. The Agency
may, in the future, develop practical procedures for
obtaining statistically equivalent representative samples
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of hazardous waste. However, until they are developed,
the Agency agrees that the definition of "representative
sample" should not require that the samples be statistic-
ally equivalent to the total waste. Therefore, the defin-
ition has been changed to require that the representative
samples exhibit the average properties of the universe
or whole (e.g., waste or ground water).
4. The Agency sees no reason why the definition should be
different depending on the type of sampling method used.
Regardless of the method being used, the end result must
be the same; i.e., that the sample exhibit the average
properties of the whole.
5. The final §261.29 rules state that:
a representative sample may be obtained using
either the appropriate sampling method specified
in Appendix I of Part 261, or another method
which has been demonstrated to provide an equally
representative sample (as defined in Part 260).
This demonstration is the responsibility of the
generator, or the owner or operator of the treat-
ment, storage, or disposal facility.
If a person obtains his sample in accordance with the
above provision, the Agency will consider the sample to
be representative of the total waste. In most cases,
the Agency will not be checking individual samples to
determine if they are indeed "representative samples".
Rather, EPA will concentrate its resources in evaluating
the alternate sampling methods proposed by petitioners
under §260.21, in order to ensure that these methods
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provide equally representative samples to those provided
by the corresponding methods specified in Appendix I.
The Agency recognizes that the procurement of a
representative sample can be expensive. However, it is
the obligation of the generator, or owner or operator, to
fund the sampling procedures as a cost of doina business
safely. The Agency is not required to defray these costs.
The generator, or owner or operator, are free to allocate
such costs among themselves as they choose.
Most EPA sampling will be done in an enforcement
context. If a generator, or owner or operator, disagrees
with EPA's sampling results, appropriate measures may be
pursued in courts.
D. Final Definition;
"Representative sample" means a sample of a universe
or whole (e.g., waste pile, lagoon, ground water) which
can be expected to exhibit the average properties of
the universe or whole.
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81
A. Proposed Definition [Section 3004]:
"Representative sample" means a sample having averaae
characteristics of all groundwater in the aquifer beneath
the facility.
B. Summary of Comments;
1. The definition should be expanded to include all
gas, liquid, semi-solid, or solid hazardous waste.
2. The following underscored words should be added to
the definition:
"Representative sample" means a sample having average
characteristics of all groundwater in the uppermost
continuous aquifer directly beneath the facility.
The commenters provided the following reasons for
these additions:
- To clarify that only continuous aquifers are of
concern, and not perched water tables.
- In situations where there are successive aquifers,
only the uppermost aquifer will be affected bv
leachate from a disposal site.
C. Deletion of Proposed Definition [Section 30041:
The Agency agrees that the definition of "representative
sample" should not be restricted to ground water samples.
The Agency has restructured the final ground-water monitoring
regulations so that a definition of "representative sample"
specific to ground water is no longer needed. It has there-
fore been deleted from the final rules. The revised definition
of "representative sample" originally proposed in Section
3001 is now uniformly used throughout these rules.
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STORAGE FACILITY
A. Proposed Definition [Section 3004]:
"Storage facility" means any facility which stores
hazardous waste, except for generators who store their own
waste on-site for less than 90 days for subseguent transport
off-site, in accordance with regulations in Subpart R.
B. Summary of Comments;
Virtually all of the comments received on this definition
concerned the 90 day exemption for on-site storage. The
commenters recommended extending the time period to 120, IPO,
and 270 days.
C. Analysis of and Response to Comments;
The maximum period of time for which waste is allowed
to remain on-site, without the generator's facility being
classified as a "storage facility", is called "accumulation
time". The "accumulation time" issue is discussed in the
background documents supporting the Part 262 rules promul-
gated on February 26, 1980.
D. Deletion of Proposed Definition;
"Storage facility" has been deleted from the final
definitions because the first part of the proposed definition
is obvious, and the remainder of that definition is a
substantive regulatory provision which belongs in the
text of the regulations rather than in the definitions.
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TRANSPORTATION
A. New Definition;
"Transportation" means the movement of hazardous waste
by air, rail, highway, or water.
B. Rationale for the Definition;
The definition of "transportation" was promulgated on
February 26, 1980 (45 FR 12724) to make it clear that the
act of conveying waste through a pipeline is not "trans-
portion" .
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TRANSPORTER
A. Proposed Definition [Section 3003/4]:
"Transporter" means a person or Federal agency engaged
in the transportation of hazardous waste by air, rail,
highway, or water -
B. Summary of Comments
No comments were received on the proposed definition.
C. Rationale for Modifications Made to the Proposed Definition
I. The phrase "Federal agency" has been deleted from the
final definition because Federal agencies are included
in the revised definition of "Person".
2. "Off-site" has been added to the final definition to
make it clear that the term "transporter" includes only
people engaged in off-site transportation of hazardous
waste .
D. Final Definition;
"Transporter" means a person engaged in the off-site
transportation of hazardous waste by air, rail, highway,
or water.
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TRANSPORT VEHICLE
A. Proposed Definition [Section 3003]:
"Transport vehicle" means a motor vehicle, rail freight
car, freight container, cargo tank, portable tank, or
vessel (as defined in 49 CFR 171.8) used for the trans-
portation of hazardous waste.
B. Summary of Comments;
The EPA definition of transport vehicle includes more
vehicles than does the DOT definition of the term (49 CFR
171.8) . Because of this discrepancy, EPA should adopt the
DOT definition.
D. Deletion of Proposed Definition;
The term "transport vehicle" was only used in one pro-
posed regulation (§250.36, 43 FR 18511). This phrase has
been deleted from the final rules. Therefore, the term
need no longer be defined in the Subtitle C rules.
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TREATMENT FACILITY
A. Proposed Definition [Section 3004]:
"Treatment facility" means any facility which treats
hazardous waste.
B. Summary of Comments;
No substantive comments were received on the proposed
defintion.
C. Deletion of Proposed Definition;
The definition has been deleted from the final defin-
itions because its meaning is obvious.
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WATER (BULK SHIPMENT)
A. New Definition:
"Water (bulk shipment)" means the bulk transportation
of hazardous waste which is loaded or carried on board a
vessel without containers or labels.
B. Rationale forNew Definition;
The proposed Section 3003 rules did not specify
special manifest requirements for hazardous waste trans-
ported by water in bulk (i.e., as opposed to it being
transported by water in individual containers). However,
the final rules do and, therefore, a definition of "water
(bulk shipment)" has been added' to the final rules in
order to differentiate between the two types of shipments
of hazardous waste transported by water-
(See the background document supporting the final Part
263 rules for the Agency's rationale for issuing special
manifest requirements for hazardous waste transported by
water in bulk.)
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PART II
§260.2 CONFIDENTIALITY
A. Summary of the Proposed Regulation
The Agency expressed its basic stance towards confidentiality
in §250.27 of the proposed rules, which stated that all information
obtained under Subtitle C would be made available to any person
to the extent and in the manner authorized by Section 3007(b) of
the Act, by the Freedom of Information Act (FOIA, 5 U.S.C. Section
552), and by the EPA regulations adopted to implement FOIA (40
CFR Part 2). This general provision applied also to the record-
keeping and reporting systems under Section 3004 of the proposed
regulations because they were designed to use information supplied
on the manifest as the data base to be compiled.
B. Rationale for Proposed Regulation
The Agency included this statement on confidentiality in
the proposed rules in response to suggestions (made during public
review of earlier drafts of the regulations) that the confiden-
tiality issue should be addressed in the regulations. Section
250.27 is essentially a restatement of Congressional intent, as
expressed in RCRA Section 3007(b) and the Freedom of Information
Act, and of established EPA policy, as expressed in 40 CFR Part 2,
regarding public disclosure of information. A similar provision
was not included in the Section 3004 regulations because the
Agency belived it would be redundant, since the same data base
was involved in both cases.
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C. Summary of Comments;
Comments concerning confidentiality were received regarding
both the proposed Sections 3002 and 3004 rules. The summary of,
and response to, comments on confidentiality regarding the proposed
Section 3004 rules are contained in the background documents
corresponding to the particular Section 3004 standard addressed
in each comment. For example, comments concerning the confiden-
tiality of the training records required in §250.43-4 of the
proposed rules, are addressed in the background document which
supports the final Part 264/265 personnel training standards.
On the other hand, the comments received on confidentiality
regarding the proposed Sectxon 3002 rules are analyzed and re-
sponded to below. The Agency did not respond to these comments
in the background documents which support the final Section 3002
rules because the proposed standards on confidentiality have
been transferred from the Section 3002 standards to the Part 260
standards. Because the Part 260 standards are being issued two
months later than the final Section 3002 standards (were issued
February 26, 1980), it would have been inappropriate to respond to
these comments until the commenters could see the final standards.
Accordingly, a summary of these comments follows:
1. All RCRA reports and information should be made available
to the public because public involvement and scrutiny
would ensure better implementation of the Act and the
regulations.
2. The regulations should provide broader availability
for treating information as confidential because:
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much of the information required in the RCRA reports
will warrant confidential treatment;
- detailed information on the chemical composition
of wastes and associated volumes could reveal both
secret products and processes, whose disclosure
would substantially impair the competitive position
of a company.
3. Section 3007(ta) expands the scope of confidential treat-
ment provided in RCRA.
4. Contractual secrecy agreements should be allowed, and
a- mechanism should be provided which allows the generator
to provide management facilities with waste analyses.
5. EPA should adopt from the regulations prescribed under
the Toxic Substances Control Act (TSCA):
- the check-off format used for asserting claims of
confidentiality;
- the use of generic names to mask the identity of
chemical substances.
Analysis of and Response to Comments;
1-2. EPA is inclined to provide the public the greatest
amount of information that it can, consistent with the
obligation to provide protection to proprietary infor-
mation whose disclosure would harm a person's competitive
position. EPA's general regulations, set forth in 40
CPR Part 2, reflect this position, and provide for public
disclosure in all cases, except those in which the regu-
lated party can provide the required substantiation. To
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the extent that the regulated party can satisfactorily
comply with this burden, EPA believes that protection of
that information is warranted. (See also the background
document supporting the final Parts 264/265 Subpart E
standards for Manifest, Reccrdkeeping and Reporting,
for a further response to a similar comment received
on the proposed Section 3004 standards.)
3. Section 3007(b) does not extend the ambit of confidential
protection potentially available to the regulated com-
munity, but rather simply recognizes that such claims
may be made. It says they shall be honored if "entitled
to protection under Section 1905 of title 1R of the
United States Code"; the same standard that already
underlies 40 CPR Part 2.
4. Contractual secrecy agreements are not forbidden.
Indeed, if a party wants to maintain the secrecy of
information that is transmitted to other parties, such
agreements may be necessary to preserve the right to
claim confidentiality subsequently (see 40 CPR $2.208).
Such agreements, however, do not relieve a person from
reporting information covered by such agreements to ^PA.
For example, a generator may provide waste analvsis
to a permitted facility, subject to a contractual secrecy
agreement. Such agreements do not, however, prevent
submission of that information to EPA. (See the back-
ground document supporting the final Parts 264/P65.13
General Waste Analysis standards, for a further response
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to a similar comment received on the proposed Section
3004 standards).
EPA determined that the TSCA provisions were unnecessary
for the proper functioning of the assertion and pro-
tection of confidential information. The RCRA reports
do not require specific check-off boxes to ensure that
the claims of confidentiality are properly directed.
If a claim is attached to a report, the entire report
will be handled as if confidential until a FOIA request
is received, at which time the submitter will be
required to substantiate the claim. If the claim cannot
be supported the information will be released.
The use of generic names to mask the identity of
substances also seemed unwarranted. If the name of the
substance deserves confidential treatment, i.e. its
disclosure would cause substantial harm to the compe-
titive position of a company and satisfies the other
criteria listed in 40 CFR §2.208, it will be accorded
confidential treatment and will not be disclosed.
There is, accordingly, no reason to provide for the
use of generic names. Identification of chemical
substances will help the Agency in evaluating incom-
patibility, contingency response, waste analysis
plans, permit applications, and other important
functions.
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E. Final Regulation;
The final rule remains essentially unchanged from the proposed
rule:
§260.2 Availability of information; confidentiality of information
(a) Any information provided to EPA under Parts 260 through
265 of thxs Chapter will be made available to the public to the
extent and in the manner authorized by the Freedom of Information
Act, 5 U.S.C. §552, and EPA regulations implementing the Freedom
of Information Act, Part 2 of this Chapter.
(b) Any person who submits information to EPA in accordance
with Parts 260 through 265 of this Chapter may assert a claim of
business confidentiality covering part or all of that information
by following the procedures set forth in §2.203(b) of this Chapter.
Information covered by such a claim will be disclosed by EPA only
to the extent, and by means of the procedures set forth in Part 2,
Subpart 3, of .this Chapter. However, if no such claim accompanies
the information when it is received by EPA, it may be made available
to the public without further notice to the person submitting it.
GPO 969-090
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