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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 "non—channelled 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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