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PART 262 SUBPART A - GENERAL
DOC: 9451.02(80)
Key Words:
Regulations:
Subject:
Addressee:
Originator:
Source Ooc:
Dac >:
Summary:
Generator
40 CFR Part 262
Multiple Generator Liability
Julie R. Cooper, Attorney, Mobay Chemical Corporation Penn
Lincoln Parkway West, Pittsburg, Pennsylvania 15205
Gary N. Dietrich, Associate Deputy Assistant Administrator
for Solid Waste
#9451.02(80)
11-18-80
Where a company hires independent contractors who in turn hire subcontrac-
tors, all generating hazardous wastes, all parties will be considered generators
and are jointly and severally liable for complying with the generator standards
in Part 262. Although EPA reserves the right to hold all parties liable for
these responsibilities in any enforcement action, the Agency prefers and encour-
ages that, where two or more parties are involved, they should mutually agree
to have one party perform the generator duties.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9451.02 (8C
NOV 1 8 1980
Julia R. Cooper
Attorney
Mobay Chemical Corporation
Penn Lincoln Parkway West
Pittsburg, Pennsylvaina 1S20S
Dear Ma. Cooper
This ia in response to your letter of November 5, 1980, to
Ms. Filcmena Chau requesting an interpretation of our hazardous
waste management regulation.
You indicate that your company hires many independent contractus
and they, in turn, often hire subcontractors to perform various
service* including painting, janitolcal services* boiler cleaning
and construction. You indicate that these contractors and
subcontractors generate wastes and that acne of these wastes may
be hazardous wastes. You state that you normally require your
contractors to remove their waste* fron your premises and you indicate
that they aay or may not require waste removal by their subcontracted.
Pinally, you say that you would 11ka to continue the practice of
having contractors remove their waste but would like to have the
option of assuming this responsibility.
By i^licarion, you are asking who is the generator of hazardous
wast-, your company or your contractors (or hij a*ii»ctntxactor) EPA
contends that both parties or, as the case may be, all three parties
are generators and are jointly and severally liable for cemplying
with tho generator standards in Part 262 of our regulations"(see 45
Fed. Reg. 33140-33148). We do not object to and, in fa»>~«





¦











EPA Fum I32
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Consequently, either your company, your contractor or hia
subcontractor can assume responsibility for removing hazardous
wastes generated on your premises and further assume the responsibility
for complying with Part 262 of our regulation, as your company
prefers. But your company/ in any case, wil have liability for
proper performance of these responsibilities.
We will plan to issue this interpretation in a Regulatory
Interpretation Memorandum in the near future. Pending such issuance,
you can consider this letter to be an official interpretation on
this matter.
Sincerely ycurs
Gary N. Dietrich
Associate Deputy Assistant Administrator
for Solid Waste
bcc: Filamena Chau w/incoming
Mike Barclay w/incoming
Regional A&HM Division Directors w/incoming
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Mobay
Mobay
Chamfcal Corporation
November 5, 1980	Uneo"p,rtowv *"•
Htaowqn. pa 1S303
i. 412/777.2000
Ms. Filotnena Chau
Office of Solid 'Jaste HJH 5b2)
U.S. Environmental Protection Agency
401 M Street, S.V.
Washington, D.C. 20460
Re: Independent Contractor Generators
Dear Ms. Chau:
I have had several conversations with regional and headquarters'
staff regarding the regulatory status of independent contractors
who generate hazardous waste on sites owned or leased by us.
None of these persons has been able to point to specific
affirmative regulations that clearly bet forth the responsi-
bilities of the owner and the independent contractor under these
circumstances.
In the manufacture of chemicals and maintenance and construction
of plants, many independent contractors are used. These
contractors-and their subcontractors may generate hazardous
waste in the course of performance of their contracts. Examples
of contractors who might generate hazardous waste include
consulting engineers, painting contractors, janitorial services,
boiler cleaning services, industrial cleaners, construction
contractors and common carriers. In many of our contracts we
would oblige the contractor to remove waste from our premises.
These contractors may or may not contract in the same manner
with their subcontractors. We would like to be able to continue
Wmar s Direct Dial NumMr
412 - 777-2187
AgneuttunJ ChwncaJt • Dytttuffs • Fibtf* • industrial Chtmesis
names and Coalings « PoiyurainWs
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November 5, 1980
Ms. Filomena Chau
Page 2
Che practice of having Che contractors remove waste from our
premises, but we would also like to have the option of being
able to take the waste from cheat for disposal.
Please advise us of the proper procedures to follow in each
instance. If appropriate, ve wouid appreciate issuance of i
Regulatory Interpretation Memorandum.
Very truly yours,
Julie R. Cooper
Attorney
JRC:my
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NOV t 2 1980
Ma. Julie R. Cooper
Attorney
Mobay Cher.ical Corporation
Penn Lincoln Parkway '.'est
Pittsburgh, ?A 15203
Pear Ms. Cooper:
Thank ycu for your request of Novenber 5, 19R3. In that
request, you asked that EPA issue a Regulation Interpretation -
:;enorandun {RIM) concerning the regulatory status of indener.dent
contractors who generate hazardous wa3te on 3ites owned or
leased by you.
I have submitted your request to Mr. Gary Dietrich,
Associate Deputy Assistant Administrator for Solid Waste.
Mr. Dietrich is considering your request and, if appropriate,
will assign a member of the Solid Waste staff to draft a RIM
for this subject. Should ZT\ decide to issue a RIM for ycur
specific request, please be assured that we will indicate how
we intend to answer your request.
If I can be of further assistance, please let ;ne know.
Sincerely yours,
Filonena Chau
Environmental Protection Specialist
Office of Solid Waste (wh-562)
WH-562:F.Chau:cb:11/12/80
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72024	Federal Register / Vol. 45. No. 212 / Thursday. October 30. 1980 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260 and 261
tSW FRL 1M2-4]
Hazardous Waste Management
System; General and Identification and
Listing of Hazardous Waste
AQINCirc Environmental Protection
Agency. -
ACTION: Interim final amendment to rule
end request for comments.
SUMMMttThfo regulation amends 40
CFR 201.4 to provide that a hazardous
waste That la generated in a product or
raw material storage tank, transport
vehicle or vessel or in a manufacturing
process unit is not subject to regulation
under 40 CFR Parts 262 through 265 or
Parts 122 through 124 or the
requirements of Section 3010 of the
Resource Conservation and Recovery
Act (RCRA) until it is removed from the
unit in which it was generated, unless
the unit in which it Is generated is a
surface impoundment or unless the
hazardous waste remains in the unit for
more than 90 days after the unit ceases
lo be operated for the purpose of storing
or transporting product or raw materials
or manufacturing. This regulation also
amends 40 CFR 260.10 lo modify the
definition of "generator" so that It
clearly covers persons who remove
hazardous wastes from product or raw
material storage tanks, transport
vehicles or vessels, or manufacturing
process units in which the hazardous
waste is generated. Finally, 1 his
regulation amends 40 CFR 280.10 to add
definitions for "transport vehicle" and
"vessel." The purpose of this
requirement Is to allow persons handling
hazardous wastes sufficient lead time to
prepare to comply with major new
regulatory requirements. The effect of
these amendments is to reduce the
overall costs, economic impact and
reporting and recordkeeping impacts of
EPA's hazardous waste management
regulations.
DATC8: Effective Date: For the
amendment to 40 CFR 261.4 and the
definitions of "transport vehicle" and
"vessel." in 40 CFR 260.10, November 19.
1880.
For the amendment (o the definition of
"generator." in 40 CFR 260.10. Apnl 30.
1981.
Comment Date: This amendment is
promulgated as an interim final rule. The
Agency will accept comments on it until
December 29.1980.
aodrisses: Comments on the
amendment should be sent to Docket
Clerk {Docket No. 3001 J. Office of Solid
Waste (WH-505), U.S. Environmental
Protection Agency, 401 M Street, SW.,
Washington. D.C. 20460.
FOR FURTHER INFORMATION CONTACT:
For general information, contact Alfred
W. Lindsey. Office of Solid Waste. U.S.
Environmental Protection Agency. 401 M
Street SW.. Washington. D.C. 20460,
(202) 755-9165. For information on
implementation, contact:
Region I. Dennis Huebner, Chief,
Radiation, Waste Management
Branch. John F. Kennedy Building.
Boston. Massachusetts02303. [617)
223-5777
Region IL Dr. Ernest Regna. Chief. Solid
Waste Branch. 26 Federal Pla2a. New
York. New York 10007. (212) 264-0104/
5
Region III. Robert L Allen. Chief*
Hazardous Materials Branch. 6th and
Walnut Streets. Philadelphia.
Pennsylvania 19106. (215) 597-0960
Region IV, James Scarbrough. Chief,
Residuals Management Branch, 34$
Courtiand Street N.E.. Atlanta.
Georgia 30363. (404) 861-3016
Region V. KarlJ. Klepitsch, Jr.. Chief.
Waste Management Branch. 230 South
Dearborn Street, Chicago. Illinois
60604. (312) 686-6146
Region VI. R. Starf Jorgensen, Acting
Chief. Solid Waste Branch, 1201 Elm
Street. First International Building.
Dallas. Texos 75270, (214) 737-2645
Region VII, Robert L Morby, Chief.
Hazardous Materials Branch. 324 E.
11th Street, Kansas City, Missouri
94IOa (019) 374-5307
Region VIII. Lawrence P. Gazda. Chief.
Waste Management Branch. 1860
Lincoln Street. Denver. Colorado
80203. (303) 837-2221
Region DC Arnold R. Den, Chief.
Hazardous Matenals Branch, 213
Fremont Street, San Francisco.
California 94105, (415) 556-4606
Region X. Kenneth D. Feigner. Chief.
Waste Management Branch. 1200
Sixth Avenue. Seattle, Washington
98101, (206) 442-1260.
SUPPLEMENTARY INFORMATION?
I. Amendment to 40 CFR 261.4
On February 26 and May 19.1960.
EPA promulgated hazardous waste
regulations in 40 CFR Parts 260 through
265 (45 FR 12721 et seq. and 45 FR 33066
et seq.) and on May 19.1960.
promulgated consolidated permit
regulations in 40 CFR Parts 122 through
124 (45 FR 33289 et seq.). Section 261.2 of
these regulations provides that a solid
waste is any garbage, refuse or sludge,
or any other waste matenal which is (l)
discarded or is being accumulated,
stored or physically, chemically or
biologica/ly treated prior to being
discarded: or (2) has served its original
intended use and sometimes is
discarded: or (3) is a manufacturing or
mining by-product and sometimes is
discarded. Section 261.3 provides that a
solid waste becomes a hazardous waste
when (1) il first meets any of the listing
descriptions set forth in Part 261,
Subpart D; or (2) it first becomes a
mixture containing a hazardous waste
listed in Part 261. Subpart D: or [3) il
first exhibits one or more of the
characteristics ot hazardous waste
identified in Part 261. Subpart C. Section
261.1 provides that hazardous wastes
identified in Pari 261 are subject lo
regulation under Paris 262 through 265
and Parts 122 through 124. The effect of
these provisions, particularly J 261.3(b).
is to make hazardous wastes subject to
regulation at the point where they are
generated. The point of generation,
however, may be a product or raw
material storage tank, transport vehicle
or vessel, or a manufacturing process
unit. A literal application of the Part 261
regulations would mean that such units
are hazardous waste storage facilities,
and that their owners and operators
must comply with the notification
requirements of Section 3010 of RCRA.
submit applications for and obtain
permits under Part 122 and comply with
the Interim Status Standards of Part 265
until a permit is issued or denied. An
exception to these requirements is
provided in $ 262.34 which states that
hazardous waste may be accumulated
on the site of its generation without a
permit for 90 days or less before it is
removed and transported off-site for
treatment, storage or disposal. For such
accumulation, the owner and operator of
the unit must notify under Section 3010
and comply with } 262.34. including
requirements for containerization.
labelling, marking. Inspection and
personnel training.
Many members of the regulated
community have questioned the
Agency's'intent and wisdom in
regulating those units in which
hazardous wastes are first generated.
These people claim that such units only
incidentally hold or treat hazardous
wastes and thus should not be subject to
the regulations. They contend that such
hazardous wastes do not pose a hazard
fo human health or the environment
while they remain in these units.
Commenters on this issue provided
several examples of units in which
hazardous wastes are generated which
currently appear to be. perhaps
unnecessarily, subject to the regulations.
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Federal Register / Vol. 45. No, 212 / Thursday. October 30. 1980 / Rules and Regulations 72025
The bulk storage of crude oil and even
refined petroleum products, such as
gasoline, frequently produces a sludge
or sediment that periodically must be
removed. These sludges and sediments
are solid wastes under S 281.2 and
frequently may be hazardous wastes
either because they are listed (see EPA
Hazardous Waste Number K052 in
I 281.32) or because they exhibit one or
more of the characteristics of hazardous
wastes identified in Part 281. Subpart C
The generation of sludges and residues
that are hazardous wastes also can
occur in the storage of other products
and raw materials.
Similarly, sludges and residues are
frequently produced in tank trucks, rail
tank cars and the tanks or holds of ships
and barges that have carried products or
raw materials (which are not hazardous
wastes). These sludges and residues are
periodically removed through washing
of the tanks of these transport vehicles
and vessels. They are solid wastes and
occasionally are hazardous wastes for
the same reasons stated above. Where
these sludges and residues are
hazardous wastes, these vehicles and
vessels technically are hazardous waste
storage facilities subject to regulation
prior to the removal of the hazardous
waste.
Other examples occur in a great many
manufacturing processes, where
hazardous wastes are generated in
process units, such as distillation
columns, dotation units, and discharge
trays of screens and in associated non-
waste-treatment process units such as
cooling towers. Many of these
hazardous wastes are listed in B S 281.31
and 281.32 (e.g.. EPA Hazardous Waste
Numbers K009 and K010 in { 281.32).
Others are hazardous wastes because
they exhibit one or more characteristics
of hazardous wastes (see 40 CFR Part
281. Subpart C). These hazardous
wastes reside in these process units for
some period of time—sometimes only
minutes, other times for hours or day»—
and technically cause these units to be
hazardous waste storage facilities
subject to regulation.
Except for surface impoundments, and
non-operating units, EPA did not intend
to regulate product and raw material
storage tanks, transport vehicles and
vessels or manufacturing process units
In which hazardous wastes are
generated. As represented by the above
examples, most of these units are tanks
or tank-like units (e.g., distillation units)
which are designed and operated to hold
valuable products or raw materials in
storage or transportation or during
manufacturing. Because of their design
and operation, these units are capable of
holding, and are typically operated to
hold, the hazardous wastes which are
generated in them, until the wastes are
purposefully removed. Thus, these
hazardous wastes are contained against
release into the environment (except, of
course, when abnormal circumstances
such as firs or explosion occur) and the
risks they pose to human health or the
environment are very low and are only
incidental to the risks posed by the
valuable product or raw material with
which they are associated. Based on
these conclusions, EPA believes it is not
necessary, except as noted below, to
require owners and operators of these
units to obtain permits for these units or
to comply with the requirements of
S 282.34 or Parts 284 or 285 with respect
to these units.
Except where the unit is a surface
impoundment or is not operating, as
discussed below, the Agency believes
that the hazardous waste generated in
such a unit should only be subject to
regulation when it is removed from the
unit. In most cases, it is only after the
removal of hazardous wastes from these
units that the wastes have the potential
for releasing hazardous constituents into
the environment and posing a
substantial hazard to human health or
the environment.
As one exception to the foregoing.
EPA does not Believe that surface
impoundments in which hazardous
wastes are generated should be
exempted from the regulations. These
units, by definition (see 40 CFR 280.10).
are formed in or constructed of earthen
materials and often may not be lined
with impermeable materials capable of
preventing leaching. Any hazardous
wastes generated and accumulated or
stored in these units will have a much
greater potential to leach, leak or
otherwise escape from these units into
the environment than those hazardous
wastes generated and contained in the
tanks and tank-like units discussed
above. Because of this greater potential
for release into the environment, the
Agency believes that the hazardous
wastes generated in surface
impoundments may pose a substantial
hazard to human health or the
environment and therefore warrant
regulation even while they remain in the
impoundment. Such regulation will
ensure that the impoundment is properly
constructed, lined. Inspected and
operated, and that groundwater
monitoring is performed.
As a second exception to the
foregoing, EPA does not believe that
hazardous wastes generated in
manufacturing process units, or product
or raw material storage tanks, transport
vehicles or vessels should ?e exempted
from regulation when these wastes
remain in the units after they have
ceased to be operated for the primary
purpose of manufacturing or product or
raw materials storage or transportation.
EPA believes that when operation
ceases, the incentive to maintain the
integrity of the unit to prevent leaks or
other unintended release of products,
raw materials or manufacturing
intermediates into the environment Is
substantially reduced. Consequently, the
incentive to maintain the unit to prevent
leaks or release of hazardous wastes
which may remain in the unit after
cessation of operation would also be
substantially reduced. As stated above,
the rationale for exempting hazardous
waste from regulation while it remains
in the unit in which It was generated is
that the unit will have structural
integrity against releases and will be
operated to prevent such releases. The
Agency believes that this rationale does
not hold after cessation of operation.
EPA recognizes that manufacturing
units and product and raw material
storage tanks, transport vehicles and
vessels are occasionally taken out of
operation for temporary periods that
may range from days, to months, and
sometimes years, because of temporary
declines in business or other business
reasons. Units may also be taken out of
operation for maintenance or repair.
During these temporary shutdowns,
hazardous wastes may remain In these
units. The Agency also recognizes that
these units may be permanently taken
out of operation and hazardous wastes
may remain in them for some penod of
time after shutdown. For both temporary
and permanent shutdowns, the Agency <
will allow & reasonable time to remove
any hazardous wastes that remain in the
unit after operation ceases. Given the
presumption thBt the unit has integrity
before cessation of operation, the
Agency believes that a reasonable time
Is 90 days. This time also is consistent
with the 90-day accumulation penod
allowed under g 262.34. If hazardous
wastes remain in these units more than
90 days after cessation of operation.
EPA believes that these wastes should
be hilly regulated and that the units
should be regulated as hazardous waste
storage facilities. Thus, at that point, the
owner and operator of the Unit would
have to have interim status and comply
with the Interim Status Standards of
Part 289 or have a permit under Part 122
and comply with permit conditions.
Based on the foregoing assessment,
EPA. in this rulemaking action, is
amending the regulations by adding an
exclusion provision to ( 281 4 which
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72026 Federal Register / Vol. 45. No 212 / Thursday. October 30. 1900 / Rules and Regulations
provides that a hazardous waste which
is generated in a manufacturing process
unit or an associated non-waste
treatment unit, or in 8 product or raw
material storage tank, transport vehicle
or vessel is m>t subject to regulation
under Parts 262 through 265 or Parts 122
through 124 or the notification
requirement of Section 3010 of RCRA
until it is removed from the unit in which
it is generated, unless the unit is a
surface impoundment or unless the
hazardous waste remains in the unit for
more than 90 days after the unit ceases
to be operated for the purpose of
manufacturing, or storing or transporting
product or raw materials.
II. Definition of Transport Vehicle and
Vessel
As indicated in the above discussion,
this amendment deals with hazardous
wastes that are generated in product or
raw material transport vehicles and
vessels, as well as those generated in
manufacturing units and product or raw
material storage tanks. Because the
terms "transport vehicle" and "vessel"
are not currently defined in 8 260.10,
definitions of these terms are Included
in this amendment These definitions are
Ihe same as those in the Department of
Transportation regulations governing
the transportation of hazardous
materials (Bee 49 CFR 171.8).
ni. Generator Responsibilities and
Amendment to 40 CFR 260.10
Many members of the regulated
community also have asked the
question: Who is the generator of
hazardous wastes that are generated in
manufacturing process units or in
product or raw material storage tanks,
transport vehicles or vessels? These
persons point out that with respect to
stationary product and raw material
storage tariks. it is quite common for one
person to own and operate the storage
tank, a second person to own the
product or raw material being stored,
and a third person (usually under
contract to either the first or second
person) to remove and dispose of
sludges, sediments and residues that
may have been formed in the tank, ft
also is common for the owner and
operator of the tank to also own the
stored product or raw material, but to
hire another person to remove and
dispose of sediments and residues
formed in the tanks. There are
situations, o#course, where the three
parties are one person, or where more
than three parties are involved.
The same scenarios occur with
respect to tank trucks, rail cars, and
ships and barges. However, these
scenarios are commonly complicated by
two additional practices. Oftentimes
these transport vehicles or vessels are
taken to a central facility for removal of
sediment and residues and attendant
tank washing or cleaning. Frequently,
this central facility is owned or operated
by a person other than the owner or
operator of the vehicle or vessel and.
even more frequently. other than the
owner of the product or raw material
that produced the sediment or residue.
Secondly, the residue or sediment
cleaned end removed from a vehicle or
vessel may have been produced by (wo
or more products, thus bringing into the
picture additional parties—the owners
of two or more products. This situation
can"also occur, but is less common, with
stationary storage tanks.
With respect to manufacturing units,
the situation typically is not
complicated. Usually, the same person
owns and operates the unit, owns the
manufacturing materials thai may
generate a hazardous waste and
removes any hazardous wastes
generated in the uniL However, there
are situations where two or more parties
are involved. One such situation is
where a second party is periodically
retained to clean a unit Another
situation is where the hazardous waste
is produced by the processing of
materials that are owned by two or
more persons. This occurs in the
reclaiming of spent solvents and spent
catalysts where the reclaimer custom-
processes batches of spent material
without taking ownership of the
material.
The definition of "generator" in
i 260.10 is "any person, by site, whose
act or process produces hazardous
waste identified or listed in Part
261 * * '."This definition suggests that
the operator of a manufacturing process
unit or a product or raw material storage
tank, transport vehicle or vessel is a
generator of a hazardous waste because
it is his "act" of storage or
transportation or his "process" of
manufacturing that produces the
hazardous waste. In tjie case of storage
or transportation, the act of holding the
product or raw material enables settling
of heavy fractions of material to create
hazardous waste sludges or sediments
and enables hazardous waste residues
to adhere to the tank. In the case of
manufacturing processes, the process of
manufacturing produces the hazardous
wastes.
The owner of the product or raw
material being stored or transported and
the owner of the materials being
manufactured also fit the definition of
"generator" of the hazardous waste
because their "acts" cause the product
or metenal to be stored, transported or
manufactured which leads to the
generation of the hazardous wastes
Additionally, it is constituents in their
product or material that "produce" a
hazardous waste.
The definition of generator,
particularly when read in conjunction
with the amendment discussed above,
also fits the person removing the
hazardous waste from a manufacturing
process unit ot a product or raw
material storage tank, transport vehicle
or vessel. Although often it is not his
"act or process" that produces the
hazardous waste, it is his act that
causes the hazardous waste to become
subject to regulation (except where it is
generated in a surface impoundment or
remains in a non-operating unit for more
than 90 days after cessation of
operation).
The definition of generator, depending
on the particular factual situation, can
include all of the parties discussed
above. Both the operator of a
manufacturing process unit or a product
or raw material storage tank, transport
vehicle or vessel and the owner of the
product or raw material act jointly to
produce the hazardous waste generated
therein, and Ihe person who removes the
hazardous waste from a tank, vehicle,
vessel or manufacturing process unit
subjects it to regulation. All three
parties are involved and EPA believes
that all three (and any others who fit the
definition of "generator") have the
responsibilities of a generator.
Because all three parties contribute to
the generation of a hazardous waste and
because none of the parties stands out
in all cases as the predominant
contributor, the Agency has concluded
that the three parties should be jointly
and severally liable as generators. The
Agency will, of course, be satisfied if
one of the three parties assumes and
performs the duties of the generator on
behalf of all of the parties. In fact, the
Agency prefers and encourages such
action and recommends that, where two
or more parties are involved, they
should mutually agree to have one party
perform the generator duties. Where this
is done, the Agency will look to that
designated party to perform the
generator responsibilities. Nevertheless.
EPA reserves the nght to enforce against
any and all persons who fit the
definition of "generator" in a particular
case if the requirements of Part 262 are
not adequately met providing such
enforcement is equitable and in the
public interest.
Given this conclusion, the Agency
believes it has an obligation to give
guidance to the regulated community on
who it prefers to assume the generator
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Federal Register / Vol. 45. No, 212 / Thursday. October 30. I960 / Rules and Regulations 72027
responsibilities and to whom it will
initially look to perform the generator
duties where more than one party is
involved and where EPA does not know
which party, by mutual agreement, is
appointed to carry out the generator
duties, or where no party has been so
designated. In the case of hazardous
waste* generated in a stationary
produfl or raw material storage tank.
EPA mil initially look to (he optialor of
the lank to perform the generator
responsibilities. CPA believes that this
party It tn the best position to perform
the generator responsibilities. The
operator typically is on-site and can
determine when a tank contains sludges
or residues that may be hazardous
wastes. He certainly knowa or ought to
know when these sludges and residues
are being removed and. therefore, when
they become subject to regulation, if
they are a hazardous waste. Because he
Is typically on-site, he is In a good
position to carry out those duties of a
generator which practically must be
performed on-site. These include
determining whether a hazardous waste
exists (3 282.11), initiating a manifest for
off-site shipment (Part 282. Subpart B)
and performing the pre-transportation
requirements of packaging, labeling and
marking (Part 282, Subpart C].
For hazardous wastes generated in a
manufacturing process unit. EPA will
initially look to the operator of the unit
to fulfill the generator duties for the
same reasons described above.
For hazardous wastes generated in a
product or raw material transport
vehicle or vessel which ore removed al a
central facility which is operated1 to
remove sediments and residues from
such vehicles or vessels, the Agency will
initially look to the operator of the
central facility to perform the generator
duties. Following the reasoning outlined
above, the Agency believes that the
operator of a central facility is the party
best able to perform the generator
duties. Where hazardous wastes
generated in product or raw material
transport vehicles or vessels are not
removed at a central facility, the Agency
will look to the operator of the vehicle
or vessel to perform the generator
duties.
As discussed above, the person who
removes hazardous waste (ram a
manufacturing process unit or a product
or raw materials storage tank, transport
vehicle ok vessel will be jointly and
severally liable, along with the owner
end operator ol tha tank, vehicle, vessel
or unit and the owner of the product or
raw material, as a generator. To clarify
that such persons are included in the
definition of generator, the Agency, in
this rulemaking action, is amending the
definition of "generator" in { 260.10 by
adding a final clause so that the
definition reads	any person, by
site, whose act or process produces a
hazardous waste identified or listed in
Part 261 of this Chapter or whose act
first causes a hazardous waste to
become subject to regulation."
IV.	Accumulation el Hazardous Wastes
A number of questions have been
asked about whether the hazardous
wastes removed from product or raw
material storage tanks, transport
vehicles or vessels or manufacturing
process units can be accumulated on-
site without a permit for up to 90 days
after removal and prior to off-site
transport in accordance with { 312.34.
Because today's amendment to S261.4
subjects such hazardous wastes to
regulation only after they are removed
from such tanks, vehicles, vessels or
units and because (here often will be a
need to accumulate the removed wastes
until a sufficient quantity can be
obtained for off-site transport the
Agency believes that the 90-day
accumulation provisions of 1282.34
should J)e available to the generators of
these hazardous wastes, except where
these wastes are generated in a surface
impoundment or the wastes remain in
the unit more than 90 days following
cessation of operation of the unit
This allowance of 90-day
accumulation without a permit is
available to any of the persons who are
generators, even though the parly
accumulating the waste on-site may not
own or operate the site. This allowance
only applies where the accumulation
occurs on the site where the removal of
hazardous waste from tha tank, vehicle,
vessel or unit lakes place: all of the
other conditions and requirements of
3 282.34 must, of course, be met. The 90-
day accumulation period starts when
the hazardous waste is removed from
the tank, vehicle, vessel or unit, except
In the case where a tank, vehicle, vessel
or unit ceases to be operated far its
primary purpose, tn which case the
period starts when operation ceases.
V.	Notification and EPA Identification
Number Requirements
A number of questions have been
asked about how the notification
requirements of Section 3010 of RCRA
and the EPA Identification Number
requirements of {282.12 apply to
generators of hazardous wastes
generated in manufacturing process
units or product or raw material storage
tanks, transport vehicles or vessels.
Today's amendment to (261 4 provides
that such wastes (notincluding those
generated in surface impoundments or
retained for more than 00 days in non-
operating units) are not subject to
regulation, including section 3010
notification, until they exit the units in
which they are generated. Thus, only
those wastes that are removed during a
future notification penod are subject to
notification.
Section 262.12. though, requires that a
generator must nol treat, store, dispose
of. transport or offer for transportation a
hazardous waste without having an EPA
Identification Number. Section 260.10
defines a "generator" to be a person "by
site" who generates wastes. Therefore a
generator must have a separate EPA
Identification Number for each site at
which he generates hazardous wastes.
Where two or more persons are
generators, as discussed above, the
person who performs the duties of a
generator must have and use an EPA
Identification Number for the site at
which hazardous wastes are removed
from a tank, vehicle, vessel or unit
Thus, if the operator of the tank, vehicle,
vessel or unit performs the generator
duties, he must have an EPA
Identification Number for the facility
and can use thai number with respect t®
the management of all of his hazardoue
waste generated at that facility. If the
owner of the product or raw material
performs the duties of the generator, he
must have and use an EPA Identification
Number for the site at which the
hazardous waste is generated: if he
owns products being stored or
processed at several sites, he must have
and use a separate EPA Identification
Number for each site. If the person who
removes hazardous wastes from tanks
or units performs the generator duties,
he must have a separate EPA
Identification Number for each site at
which he performs these duties.
VI. Effective Date
Section 3010(b) of RCRA provides that
EPA's hazardous waste regulations and
revisions thereto take effect six months
after their promulgation. The purpose of
this requirement is to allow persons
handling hazardous wastes sufficient
lead time to prepare to comply with
major new regulatory requirements. For
the amendment to J 281.4 promulgated
today, however, the Agency believes,
that an effective data six months after
promulgation would cause substantial
and unnecessary disruption in the
implementation of the regulations and
would be oounterproducuve for the
regulated community and ihe public
The regulatory provisions that these
amendments modify take effect on
November 19, 1980. In the absence of the
effectuation of these amendments,
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72026 Federal Register / Vol. 45, No. 212 / Thursday. October 30. 1980 / Rules and Regulations
operators of a large number of product
and raw material storage tanks.
Imnsport vehicles and vessels, and
manufacturing process units in which
hazardous wastes are generated would
have to prepare to operate these
facilities as hazardous waste storage
facilities on and after November 19.
19B0. Tim wsuJd involve preparation
and submission of a Part A permit
application, preparation of a
contingency plan and implementation of
a number of tdministrative and
operational practices required by Part
26S for hazardous waste storage
facilities. The Agency believes it makes
little sense to allow these requirements
promulgated on May 19 to become
effective on November 19, I960, and
then have Ihem substantially modified
on a subsequent date. i.e.. the six-month
effective date tor these amendments.
The amendment to 9 281.4 in effect
suspends regulation of certain facilities
by clarifying when certain hazardous
wastes are first subject to the hazardous
waste regulations. This lessening of
regulatory requirements surely is not the
type of revision to regulations that
Congress had in mind when it provided
a six-month delay between the
promulgation and the effective date of
revisions to regulations. Consequently,
the Agency is setting an effective date pf
November 19.1980. for the amendment
to 9 261.4 promulgated in this
rulemaking action.
The definitions of "transport vehicle"
and "vessel" are necessary for en
understanding of the amendment to
{ 261.4 and consequently they too have
an effective date of November 19,1980.
EPA is making the anfendment to the
definition of "generator" effective six
months after promulgation, as provided
in Section 3010(b) of RCRA. Although
many persons who remove hazardous
wastes from manufacturing units or from
product or raw material storage tanks,
vehicles or vessels, recognized that in
certain situations they fell within the
May 19,1980. definition of generators,
the amendment to the definition will
probably make some additional persons
generators. These people undoubtedly
deserve the six month lead time that
Congress provided in Section 3010(b).
All persons who fit the May 19
definition of "generator" must comply
with aU applicable generator
requirements on November 19,1980.
Only those persons who are made
generators by today's amendmentto the
definition have an additional six months
before they must comply with Part 252
requirements.
VII. Regulatory Impacts
The effect of these amendments is to
reduce the overall costs, economic
impact and reporting and recordkeeping
impacts of EPA's hazardous waste
management regulations. This is
achieved by removing from regulation as
storage facilities product and raw
materials storage tanks, transport
vehicles and vessels, and manufacturing
process units that generate hazardous
waste. The Agency is unable to estimate
these cost and impact reductions
because it does not have an estimate of
the number of such tanks and units that
otherwise would be regulated. For the
reasons already discussed,
notwithstanding these cost and impact
reductions, the Agency believes that
human health and environmental
protection will not be reduced by this
action.
Vllk Request for Comments
The Agency invites comments on all
aspects of these amendments and on all
of the issues discussed in this preamble,
including the interpretation of
"generator," the allowance of 90-day
accumulation to all generators, and the
notification and EPA Identification
Number requirements. EPA Is providing
a 60-day comment period.
The Agency also invites comments on
whether the amendment should atso
apply to hazardous wastes generated in
product or raw material containers other
than transportation vehicles and vessels
(see S 260.10 for definition of the term
"containers"). The Agency has not
applied this amendment to such
hazardous wastes because it is not
aware that significant amounts of
hazardous wastes are generated in
product or raw material containers
(exclusive of transportation vehicles or
vessels).
The Agency recognizes that a wide
variety of situations exist in the real
world, and it is anxious to make its
regulations and regulatory
interpretations reasonable,
understandable, and capable of
implementation. The Agency can only
do this by learning of situations where
the regulations do not work well.
Dated: October 24.1980.
Douglas M. Cost!*,
Administrator.
Title 40 of the Code of Federal
Regulations is amended as follows:
I. Add the following paragraph (c) to
9 261.4:
S 261.4 Exclusions.
f	•	I	I	t
(c) Hazardous wastes which are
exempted from certain regulations A
hazardous waste which is generated in a
product or raw matenat storage tank, a
product or raw material transport
vehicle or vessel, or in a manufacturing
process unit or an associated non-
waste-treatment manufacturing unit, is
not subject to regulation under Parts 262
through 265 and Parts 122 through 124 of
this chapter or to the notification
requirements of Section 3010 of RCRA
until it exits the unit in which it was
generated, unless the unit is a surface
impoundment, or untesg the hazardous
waste remains in the unit more than 90
days after the unit ceases to be operated
for manufacturing, or for storage or
transportation or product or raw
materials.
9260.10 [Amended)
2.	Amend the definition of
"Generator" in J 26U 10 to rear as
hUows:
t	I	•	t	«
Generator means any person, by site,
whose act or process produces
hazardous waste identified or listedin
Part 261 of this chapter or whose act
first causes a hazardous waste to
become subject to regulation.
o	•	o	•	•
3.	Add the following definitions to
| 280.10:
• » » • •
'Transport vehicle'' means a motor
vehicle or rail car used for the
transportation of cargo by any mode.
Each cargo-carrying body (trailer,
railroad freight car. etc.] is a separate
transport vehicle. "Vessel" includes
every description of watercraft. used or
capable of being used as a means of
transportation on the water.
(F* Doc- ao-ans FHad l»-S>-Nt ¦ 43 am)
•HUM COOC
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