United States
Environmental Protection
Agency
Office of Solid Waste
Washington, DC 20460
OSWEfi Direciva
9540.00-9A-1
October 1990
State Authorization Manual
Volume II: Appendices
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LIST OF APPENDICES
Appendix A:
Appendix B:
Appendix C:
Appendix D:
Appendix E:
Appendix F:
Appendix G:
Appendix H:
Appendix I:
Appendix J:
Appendix K:
Appendix L:
Appendix M:
Appendix N:
Appendix 0:
Appendix P:
Program Description Review Checklist
Memorandum of Agreement Model
Memorandum of Agreement Review Checklist
Model Consolidated Attorney General's Statement
Model Revision Attorney General's Statement
Attorney General's Statement Review Checklist
List of Revision Checklists by Cluster
Numerical Listing of Revision Checklists
and Corresponding Cluster
Cluster Rule
Revision Checklist Linkage Table
Incorporation by Reference Forms
Revision Checklists with Federal Register Notices
Consolidated Checklists
Capability Assessment Model Checklist
Model Federal Register Notices
Guidance for State Authorization Issues
- §3006(f) Authorization Guidance
- Mixed Waste Authorization Guidance
Guidance for Using WordPerfect Files
Guidance for CFR Files
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APPENDIX A
Program Description Review Checklist
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REVIEWER'S CHECKLIST FOR THE PROGRAM DESCRIPTION
Introduction
This checklist should be used to review Program Descriptions (PDs) in program revision
applications. The appendix, Base Program Requirements, addresses elements of a base
program application. It can also be used by the State to assist in development of the PD. It
is designed to ensure that the PD adequately describes the organization and management of
the State program, discusses the differences between the State and Federal programs,
describes how the State will administer and enforce its program, and demonstrates that the
State program meets the tests for final authorization.
Part I, Organization and Management of the State Program, covers the general structure
and operation of the State's program. Part II, Narrative Description of the Scope, Coverage,
and Processes of the State Program, covers the particular program elements for which the
State is applying for authorization.
Not all elements in this checklist are of equal importance. Reviewers are expected to use
their judgment in determining the level of detail appropriate to each element in the PD.
Part I: Organization and Management of the Stale Program (RCRA §§ 271.6(b) through
mil
This section must be completed for all program revision applications. The PD must
update the sections necessary to provide a description of the program as it would be if the
application were approved. The modification to the Program Description could be either in the
form of an addendum to the original PD, or updated page inserts. PD revisions are to be
reviewed in the context of the entire PD, and thus can be reviewed using this checklist.
1. Y N N/A Does the PD clearly indicate the sections of the original PD to be
deleted, modified, or expanded?
(see revised SCRAM, p. 3-5)
2. Y N Does the PD contain a description of the organization and structure
of the State agency or agencies which will have responsibility for
administering the program?
3. Y N N/A If more than one agency is responsible for administration of a program,
does each agency have statewide jurisdiction over a class of activities?
4. Y N N/A If more than one agency is responsible for administration of a program,
are the responsibilities of each agency clearly delineated?
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5. Y N N/A If more than one agency is responsible for administration of a program,
are their procedures for coordination set forth in the PD?
(see revised SCRAM, pp. 3-6 through 3-8 for questions 2 through 5, especially for program
revisions)
6. Y N N/A If more than one agency is responsible for administration of a program,
is a "lead agency" designated to facilitate communications between
EPA and the State?
(see revised SCRAM, p. 3-6 for question 6)
7. Y N N/A If the State is proposing to administer a program that is greater in
scope of coverage, does the PD Indicate which resources are
dedicated to the Federally required portion of the program?
8. Y N Does the PD contain a description of State agency staff who will carry
out the program?
9. Y N Does the staff description include the number of staff who will carry
out the program?
10. Y N Does the staff description specify the occupations and general duties
of those who will carry out the program?
11. Y N Does the PD itemize the costs of establishing and administering the
program for at least the first two years after program approval?
12. Y N Does the PD include an itemization of costs of personnel who will carry
out the program (costs of staff included in question number 9 of this
Part)?
13. Y N Does the PD include an itemization of costs of administrative support?
14. Y N Does the PD include an itemization of costs of technical support?
15. Y N Does the PD include an itemization of sources and amounts of funding,
including Federal grant money, available to the State Director to meet
the costs of establishing and administering the program for at least the
first two years after program approval?
16. Y N Does the PD also identify any restrictions or limitations upon the
funding specified in question 15 of this Part?
(see revised SCRAM, p. 3-6, for questions 7 through 16, especially for program revisions)
17. Y N Does the PD include a sufficiently detailed description of applicable
State joint permitting procedures?
Program Description Checklist
Page 2
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18. Y N Does the PD include a sufficiently detailed description of applicable
State appeals procedures?
(see revised SCRAM, p. 3-6 for questions 17 and 18)
19. Y N N/A If the State intends to employ standardized forms in its program, are
copies of the standardized forms included in the PD?
20. Y N Has the State included one of the following for the manifest form:
either a notation that the national form is to be used, or a copy of a
State form?
Does the PD contain a complete description of the State's compliance tracking and
enforcement procedures, including the following function areas:
21.
Y
N
inspections of all hazardous waste handlers,
22.
Y
N
identification and documentation of violations of RCRA requirements,
23.
Y
N
violation classification scheme,
24.
Y
N
types of enforcement actions against non-compliant handlers,
25.
Y
N
timeframes for enforcement actions,
26.
Y
N
follow-up, and
27.
Y
N N/A
implementation of policies agreed to in enforcement MOUs and other
agreements?
(see revised SCRAM pp. 3-6 through 3-8 for program revisions)
28. Y N N/A Does the PD contain a description of the State manifest tracking
system, and of the procedures the State will use to coordinate
information with other approved State programs and the Federal
program regarding interstate and international shipments?
Does the PD include an estimate of the number of each of the following hazardous waste
handlers:
29. Y
N
generators,
30. Y
N
transporters,
31. Y
N
on-site storage facilities,
32. Y
N
off-site storage facilities,
Program Description Checklist Page 3
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33. Y N on-site treatment facilities,
34. Y N off-site treatment facilities,
35. Y N on-site disposal facilities, and
36. Y N off-site disposal facilities?
(see revised SCRAM, pp. 3-6 through 3-8 for questions 29 through 36)
37. Y N N/A If the application is a program revision, does the PD address
hazardous waste handlers that have been added to the RCRA universe
since the original application was submitted?
(see revised SCRAM, pp. 3-6 through 3-8 for question 37)
If such information is available, does the PD contain an estimate of the annual quantities
of hazardous wastes that are:
38.
Y
N
N/A generated within the State,
39.
Y
N
N/A transported into the State,
40.
Y
N
N/A transported out of the State,
41.
Y
N
N/A stored on-site within the State,
42.
Y
N
N/A stored off-site within the State,
43.
Y
N
N/A treated on-site within the State,
44.
Y
N
N/A treated off-site within the State,
45.
Y
N
N/A disposed of on-site within the State, and
46.
Y
N
N/A disposed of off-site within the State?
(see
i revised SCRAM, p. 3-8 for questions 38 through 46)
Program Description Checklist
Page 4
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Part II: Narrative Description of the Scope. Structure. Coverage and Processes of the
State Program (RCRA S 271.6(a)!
The purpose of the Program Description (PD) is to describe program implementation and
any differences from the Federal program (including requirements that are more stringent than
the Federal program). The PD must include a narrative description of the scope, structure,
coverage and processes of each element of the RCRA program, however, a separate narrative
is not needed lor each provision. Individual elements of the checklist should be completed for
each program revision application as submitted. The PD must demonstrate that the following
statutory standards are met for State program revisions:
a) They must be "equivalent" to and not "less stringenf than the Federal program;
b) They must be "consistent" with the Federal program and other State programs;
c) They must follow specific procedures for public "notice and hearing" in the permitting
process;
d) They must "provide adequate enforcement;" and
e) They must provide for the public availability of information "in substantially the same
manner, and to the same degree" as the Federal program.
States also have other statutory options;
f) They may Impose requirements which are "more stringent" than those imposed by
Federal regulations
g) They may apply for interim authorization for HSWA provisions. States applying for
interim authorization must demonstrate that their programs are "substantially
equivalent" to the Federal program.
Below is a list of HSWA and non-HSWA program elements promulgated after January
1983. The elements are organized according to clusters; regulatory checklist numbers are
included to aid in cross referencing. A check in the "no" column requires a comment to the
State. A check in the "N/A" column for "differences described" is appropriate either where there
are no differences between the State and Federal programs for that requirement, or where such
differences are adequately described in the Attorney General's Statement. Note in the
"Comments" column any deficiencies in the narrative description, and any other problems with
the Program Description.
I. Non-HSWA Requirements through June 30. 1984: Comments:
A. Biennial Report (Checklists 1 and 30)
1. Y N program described
2. Y N N/A differences described
Program Description Checklist
Page 5
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B. Permit Rules - Settlement Agreement (Checklists 2 and 6)
1. Y N program described
2. Y N -N/A differences described
C. Interim Status Standards • Applicability (Checklists 3 and 10)
1. Y N program described
2. Y N N/A differences described
D. Chlorinated Aliphatic Hydrocarbon Listing (Checklist 4)
1. Y N program described
2. Y N N/A differences described
E. National Uniform Manifest (Checklists 5, 170, and 32))
1. Y N program described
2. Y N N/A differences described
F. [Optional] Listing of Warfarin and Zinc Phosphide (Checklist 7)
1. Y N program described
2. Y N N/A differences described
G. [Optional] Lime Stabilized Pickle Liquor Sludge (Checklist 8)
1. Y N program described
2. Y N N/A differences described
II. Non-HSWA Cluster I (July 1. 1984 through June 30. 19851:
A. State Availability of Information (Appendix D to SCRAM)
1. Y N program described
2. Y N N/A differences described
B. [Optional] Exclusion of Household Waste (Checklist 9)
1. Y N program described
2. Y N N/A differences described
Program Description Checklist 9
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C. Interim Status Standards - Applicability (Checklist 10)
1. Y N program described
2. Y N N/A differences described
0. Corrections to Test Methods Manual (Checklist 11)
1. Y N program described
2. Y N N/A differences described
E. [Optional] Satellite Accumulation (Checklist 12)
1. Y N program described
2. Y N N/A differences described
F. Redefinition of Solid Waste (Checklist 13)
1. Y N program described
2. Y N N/A differences described
G. Interim Status Standards for Landfills (Checklist 15)
1. Y N program described
2. Y N N/A differences described
IH. NorvHSWA Cluster II fJulv 1. 1985 through June 30. 1986):
A. Closure, Post-Closure and Financial Responsibility Requirements (Checklist 24)
1. Y N program described
2. Y N N/A differences described
B. [Optional] Listing ol Spent Pickle Liquor (Checklist 26)
1. Y N program described
2. Y N N/A differences described
Program Description Checklist
T*5qT7
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IV. Non-HSWA Cluster III (July 1. 1986 through June 30. 19871:
A. Radioactive Mixed Waste (See SPA #2)
1. Y N program described
2. Y N N/A differences described
B. [Optional] Liability Coverage - Corporate Guarantee (Checklist 27)
1. Y N program described
2. Y N N/A differences described
C. Hazardous Waste Tank Systems (Checklist 28)
1. Y N program described
2. Y N N/A differences described
0. Correction to Listing of Commercial Chemical Products and Appendix VIII Constituents
(Checklist 29)
1. Y N program described
2. Y N N/A differences described
V. Non-HSWA Cluster IV (July 1. 1987 through June 30. 19881:
A. List (Phase 1) of Hazardous Constituents for Ground-Water Monitoring (Checklist 40)
1. Y N program described
2. Y N N/A differences described
B. Identification and Listing of Hazardous Waste (Checklist 41)
1. Y N program described
2. Y N N/A differences described
C. Liability Requirements for Hazardous Waste Facilities; Corporate Guarantee (Checklist 43)
1. Y N program described
2. Y N N/A differences described
Program Description Checklist
Page 8
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D. Hazardous Waste Miscellaneous Units (Checklist 45)
1. Y N program described
2. Y N .N/A differences described
E. Technical Corrections; Identification and Listing of Hazardous Waste (Checklists 29 and
46)
1. Y N program described
2. Y N N/A differences described
VI. Non-HSWA Cluster V (July 1. 1988 through June 30. 19891:
A. Identification and Listing of Hazardous Waste (Checklists 49, 53, 56, and 57)
1. Y N program described
2. Y N N/A differences described
B. Standards for Hazardous Waste Storage and Treatment Tank Systems (checklist 52)
1. Y N program described
2. Y N N/A differences described
C. Permit Modifications for Hazardous Waste Management Facilities (checklist 54)
1. Y N program described
2. Y N N/A differences described
0. Statistical Methods for Evaluating Ground-water Monitoring Data from Hazardous Waste
Facilities (checklist 55)
1. Y N program described
2. Y N N/A differences described
E. Standards for Generators of Hazardous Waste (checklist 58)
1. Y N program described
2. Y N N/A differences described
Program Description Checklist
Page 9
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VII. HSWA Cluster I (November 8. 1984 through June 30. 19871:
A. Direct Action Against Insurers (RCRA §3004(t), no checklist)
1. Y N program described
2. Y N N/A differences described
B. Dioxin Listing and Management Standards (Checklist 14)
1. Y N program described
2. Y N N/A differences described
C. Paint Filter Test (Checklists 16 and 25)
1. Y N program described
2. Y N N/A differences described
D. Small Quantity Generators (Checklists 17A, 23, and 47)
1. Y N program described
2. Y N N/A differences described
E. Delisting (Checklist 17B)
1. Y N program described
2. Y N N/A differences described
F. Household Waste (Checklist 17C)
1. Y N program described
2. Y N N/A differences described
G. Waste Minimization (Checklists 17D and 32)
1. Y N program described
2. Y N N/A differences described
H. Location Standards for Salt Domes, Salt Beds, Underground Mines and Caves (Checklist
17E)
I. Y N program described
2. Y N N/A differences described
program Description Checklist Page 10
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I. Liquids in Landfills (Checklists 17F and 25)
1. Y N program described
2. Y N N/A differences described
J. Dust Suppression (Checklist 17G)
1. Y N program described
2. Y N N/A differences described
K. Double Liners (Checklist 17H)
1. Y N program described
2. Y N N/A differences described
L. Ground-water Monitoring (Checklist 171)
1. Y N program described
2. Y N N/A differences described
M. Cement Kilns (Checklist 17J)
1. Y N program described
2. Y N N/A differences described
N. Fuel Labeling (Checklist 17K)
1. Y N program described
2. Y N N/A differences described
0. Corrective Action (Checklist 17L)
1. Y N program described
2. Y N N/A differences described
P. Pre-construction Ban (Checklist 17M)
1. Y N program described
2. Y N N/A differences described
Program Description Checklist
Page 11
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Q. Permit Life (Checklist 17N)
1. Y N program described
2. Y N N/A differences described
R. Omnibus Provision (Checklist 170)
1. Y N program described
2. Y N N/A differences described
S. Interim Status (Checklist 17P)
1. Y N program described
2. Y N N/A differences described
T. Research and Development Permits (Checklist 17Q)
1. Y N program described
2. Y N N/A differences described
U. Hazardous Waste Exports (Checklists 17R and 31)
1. Y N program described
2. Y N N/A differences described
V. Exposure Information (Checklist 17S)
1. Y N program described
2. Y N N/A differences described
W. Listing of TDI, TDA, and DNT (Checklist 18)
1. Y N program described
2. Y N N/A differences described
X. Burning of Waste Fuel and Used Oil in Boilers and Industrial Furnaces (Checklist 19)
1. Y N program described
2. Y N N/A differences described
Program Description Checklist
Page 12
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Y. Spent Solvents Listing (Checklist 20)
1. Y N program described
2. Y N N/A differences described
Z. EDB Waste Listing (Checklist 21)
1. Y N program described
2. Y N N/A differences described
AA. Four Spent Solvents Listing (Checklist 22)
1. Y N program described
2. Y N N/A differences described
AB. Small Quantity Generators (Checklist 23)
1. Y N program described
2. Y N N/A differences described
AC. Paint Filter Test; Correction (Checklist 25)
1. Y N program described
2. Y N N/A differences described
AO. Biennial Reports; Correction (Checklist 30)
1. Y N program described
2. Y N N/A differences described
AE. Standards for Generators - Waste Minimization Certifications (Checklist 32)
1. Y N program described
2. Y N N/A differences described
AF. Listing of EBDC (Checklist 33)
1. Y N program described
2. Y N N/A differences described
Program Description Checklist
Page 13
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AG. Land Disposal Restrictions (Checklist 34)
1. Y N program described
2. Y N N/A differences described
(see revised SCRAM, pp. 3-6 and 3-9 for HSWA and other program elements)
Vlll. HSWA Cluster II fJulv 1.1987 through June 30. 19901:
A. Standards for Hazardous Waste Storage and Treatment Tanks (checklist 52)
1. Y N program described
2. Y N N/A differences described
B. California List Waste Restrictions (Checklists 34, 39, and 50)
1. Y N program described
2. Y N N/A differences described
C. Exception Reporting for Small Quantity Generators of Hazardous Waste (Checklist 42)
1. Y N program described
2. Y N N/A differences described
D. HSWA Codification Rule 2 (Checklist 44)
1. Y N program described
2. Y N N/A differences described
Program Description Checklist
Page 14
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APPENDIX
Base Program Requirements
This section must be completed for all base program applications. Each element of the
basic RCRA program is listed below. None of these elements is eligible for the HSWA interim
authorization option. For each program element, the State must show that the element meets
statutory requirements, describe the program to implement that element, and describe any
differences between the State and Federal programs.
A check in the "no" column requires a comment to the State. A check in the "N/A" column
for "differences described" is appropriate either where there are no differences between the
State and Federal programs for that requirement, or where such differences are adequately
described in the Attorney General's Statement. Note in the "Comments" column any
deficiencies in the narrative description, and any other problems with the Program Description.
I. Identification and Listing: Comments:
A. Definition of hazardous waste
1. Y N program described
2. Y N N/A differences described
B. Hazardous waste list and characteristics
1. Y N program described
2. Y N N/A differences described
II. Standards for Generators:
1. Y N program described
2. Y N N/A differences described
III. Standards for Transporters:
1. Y N program described
2. Y N N/A differences described
Program Description Checklist
Page 15
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P.nmmontc-
IV. Standards for Facilities:
A. Permit standards
1. Y N program described
2. Y N N/A differences described
B. Interim status requirements
1. Y N program described
2. Y N N/A differences described
V. Requirements tor Permits:
1. Y N program described
2. Y N N/A differences described
VI. Inspections:
1. Y N
2. Y N N/A
program described
differences described
VII. Enforcement Remedies:
A. Authority to restrain unauthorized entries
1. Y N program described
2. Y N N/A differences described
B. Authority to sue without revoking permit
1. Y N program described
2. Y N N/A differences described
Program Description Checklist
P«6> 18
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C. Authority to assess $10,000/day civil penalties
1. Y N program described
2. Y N N/A differences described
D. Authority to obtain $10,000/day criminal penalties
1. Y N program described
2. Y N N/A differences described
VIII. Public Participation in the State Enforcement Process:
A. Authority to allow intervention to obtain remedies
1. Y N program described
2. Y N N/A differences described
B. Assurances that State will investigate complaints, not oppose citizen intervention, and allow
for public comment on any proposed settlement of State enforcement action
1. Y N program described
2. Y N N/A differences described
IX. Authority to Share Information with EPA:
1. Y N program described
2. Y N N/A differences described
X. Authority Over Indian Lands:
1. Y N N/A program described
2. Y N N/A differences described
(see SCRAM, pp. 2.2-1 through 2.2-3, 2.3-8 through 3.3-11 for basic program requirements)
Program Description Checklist
T5§5"T7
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APPENDIX B
Memorandum of Agreement Model
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INTRODUCTION
The following model is written as a guide to meeting the requirements of §271.8 and*HSWA. The
model is a complete MOA and supersedes the model provided in the SCRAM. It can be used to
completely replace an existing final authorization MOA. The bold, bracketed type indicates where specific
language should be inserted. Bracketed italics indicates optional information that may be added to the
model, where the Region and the State may need or want to expand the basic MOA framework. The
Region and State should fashion the appropriate language themselves.
Many current final authorization MOAs contain State-specific provisions that have been negotiated
over several years. In such cases, the State and Region may prefer to amend the existing agreement
instead of replacing it. The underlined text in the model indicates the HSWA changes to the earlier model
in the SCRAM. Therefore, a State could simply address these HSWA aspects of the MOA by adding or
replacing portions of its existing MOA in an addendum.
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MEMORANDUM OF AGREEMENT BETWEEN
THE STATE OF [ ]
AND
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION [ ]
I. GENERAL
This Memorandum of Agreement (hereinafter 'Agreement*) establishes policies, responsibilities, and
procedures pursuant to 40 CFR 271.8 for the State of [State Name's] Hazardous Waste program
(hereinafter 'State Program') authorized under Section 3006 of the Resource Conservation and Recovery
Act (hereinafter 'RCRA or "the Act") of 1976 (42 USC 6901 et seq.), as amended (Public laws 94-580.96-
482. 98-6161 and the United States Environmental Protection Agency (hereinafter EPA) Regional Office
for Region [insert number]. This Agreement further sets forth the manner in which the State and EPA
will coordinate in the State's administration and enforcement of the State program and, pending State
authorization. EPA's administration of the provisions of the Hazardous and Solid Waste Amendments of
1984 (HSWAV For purposes of this Agreement, references to 'RCRA* Include HSWA.
This Agreement is entered into by the Director [or other title as appropriate] of [State Agency]
(hereinafter 'Director* or *the State*) and the Regional Administrator, EPA Region [insert number]
(hereinafter "Regional Administrator* or "EPA"). [Where State program responsibility is shared among two
or more agencies, each of the agencies is to be identified here as a party to the Agreement, the Director
of each is to sign the Agreement, and the Agreement must identify which of the agencies is responsible
for each provision of the Agreement.]
For administrative purposes, the [State Agency] will serve as lead agency to simplify coordination
and communication between the State and EPA. [This provision need not be included in the MOA where
there is only one responsible State Agency.]
Nothing in this Agreement shall be construed to restrict in any way EPA's authority to fulfill its
oversight and enforcement responsibilities under RCRA. Nothing in this Agreement shall be construed
to contravene any provision of 40 CFR Part 271.
The parties will review the Agreement jointly at least once a year (and other times as appropriate)
during preparation of the annuai State grant work program, in connection with grant funding under section
3011 of RCRA.
This Agreement fsupplants/amendsl the Agreement which was effective on [insert date of final
authorization! and any subsequent amendments or revisions. This Agreement may be modified upon
the initiative of either party in order to ensure consistency with State program modifications made or for
any other purpose mutually agreed upon. Any revisions or modifications to the Agreement must be in
writing and must be signed by the State and the Regional Administrator. This Agreement will remain in
effect until such time as State program authorization is withdrawn by or is voluntarily transferred to EPA
according to the criteria and procedures established in 40 CFR 271.22 and 40 CFR 271.23.
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This Agreement shall be executed by the State and the Regional Administrator and shall become
effective at the time the State's authorization takes effect, which shall be the date set out in the Federal
Register notice of the Regional Administrator's decision to grant authorization to the State.
II. POUCY STATEMENT
Each of the parties to this Agreement is responsible for ensuring that its obligations under RCRA
are met. Upon granting of final authorization by EPA, the State assumes primary responsibility for
implementing the authorized provisions of the RCRA hazardous waste program within its boundaries. EPA
retains its responsibility to ensure full and faithful execution of the requirements of RCRA, including direct
implementation of HSWA in the event the State is not authorized to act. The State and the Regional
Administrator agree to maintain a high level of cooperation and coordination between their respective
staffs in a partnership to assure successful and effective administration of the State program.
Section 3006(g) of RCRA provides that hazardous waste requirements and prohibitions
promulgated pursuant to HSWA are applicable in authorized States at the same time that thev are
applicable in unauthorized States with the exception of Section 3006ffl. Availability of Information, which
cannot be implemented bv EPA in authorized States. While EPA retains responsibility for the direct
implementation of those provisions of HSWA which the State is not authorized to implement, it is the
intention of EPA and the State to coordinate the implementation of such provisions to the greatest degree
possible.
EPA will oversee implementation of the authorized State program in order to ensure full execution
of the requirements of RCRA, to promote national consistency in implementation of the hazardous waste
program, to allow EPA to report to the President and Congress on the achievements of the hazardous
waste program, and to encourage States and EPA to agree on desirable technical support and targets
for joint efforts to prevent and mitigate environmental problems associated with the improper management
of hazardous wastes. Oversight will be accomplished by EPA through written reporting requirements,
permit overview, compliance and enforcement overview, and annual review of the State's programs.
III. STATE PROGRAM REVIEW
A. General
The Regional Administrator will assess the State administration and enforcement of the hazardous
waste program on a continuing basis for equivalence and consistency with RCRA, this Agreement, and
all applicable Federal requirements and policies, and for adequacy of enforcement This assessment will
be accomplished by EPA review of information submitted by the State in accordance with this Agreement
and the State grant work program, permit overview, compliance and enforcement overview, and annual
review of State program activities.
The Regional Administrator may also consider, as pait of this regular assessment, written
comments about the State's program administration and enforcement that are received from regulated
persons, the public, and Federal, State and local agencies. Copies of any such comments received by
the Regional Administrator will be provided to the State.
To ensure effective program review, the State agrees to allow EPA access to all files and other
information requested by the Regional Administrator or his or her designee and deemed necessary by
EPA for reviewing State program administration and enforcement.
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Review of [State Agency] files may be scheduled at quarterly intervals. Program review meetings
between the State and the Regional Administrator or their assignees will be scheduled at reasonable
intervals not less than annually to review specific operating procedures and schedules, to resolve
problems and to discuss mutual program concerns.
These meetings will be scheduled at least fifteen days in advance unless agreed to differently. A
tentative agenda for the meeting will be prepared by EPA.
B. Identification of Priority Activities
The State and EPA agree to develop, on an annual basis as a part of the State grant work program,
criteria for priority activities, including activities regarding handlers of hazardous waste. These criteria will
be based on guidance issued by EPA in the annual Agency Operating Year Guidance/RCRA
Implementation Plan and other guidance documents as may be appropriate, and will serve to identify
those activities which should receive the highest priority during the grant period.
Examples of activities which will be considered high priority will include, but not be limited to,
facilities to be inspected, facilities to be permitted, and enforcement against facilities with known or
suspected ground-water contamination.
IV. INFORMATION SHARING
A. General
As the national hazardous waste program matures, the respective roles and responsibilities in this
State/Federal partnership will become more dear. As the respective information needs of the State and
EPA evolve, changes to this section of the Agreement may be appropriate. During the annual review of
this Agreement the State and the Regional Administrator will carefully examine the following information
sharing provisions for needed revision.
B. EPA
1. EPA will keep the State informed of the content and meaning of Federal statutes, regulations,
guidelines, standards, policy decisions, directives, and any other factors that affect the State
program. EPA will also provide general technical guidance to the State. EPA will share with the
State any national reports developed by EPA from the data submitted through State reporting
requirements.
2. The State and EPA have agreed to a joint permitting process (see Section V.D of this Agreement.
Under this process the State and EPA have established policies and procedures bv which each
will pursue their respective and/or joint responsibilities under HSWA.
The State and EPA agree to the sharing of information as specified under 'V.D Joint Permitting
Process* and the annual State grant work program. Specifically included shall be the procedures
for sharing and coordinating the exchange of information on the following:
a Part A and Part B permit applications, whether received prior to the effective date of this
Agreement or subsequent to the effective date of this Agreement and whether first received
by the State or EPA;
b. Such other information necessary to support the foregoing information;
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c. Copies of draft permits, proposed permit modifications, public notices;
d. Copies of final permits and permit modifications; and
e. Notices of permit denials.
3. EPA agrees to make available to the State copies of any reports and data resulting from
compliance inspections within sixty days of completion of the inspections.
4. EPA agrees to provide the State with notification information from EPA Form 8700-12 obtained prior
to the effective date of this Agreement if such information has not already been provided to the
State. The Director and EPA shall agree on the format in which the information will be provided
and the information will be provided within thirty days of the effective date of this Agreement. EPA
will also forward, on a monthly basis, notification information (including newty assigned EPA
identification numbers) submitted by persons in the State who file such forms after the effective
date of this Agreement. This information will be submitted to the Director within 10 days of the end
of each month for the preceding month.
5. EPA agrees to assign EPA identification numbers to generators and transporters and to owners
and operators of hazardous waste treatment, storage and disposal facilities submitting notifications
after the effective date of this Agreement. rSuaaested language for States that receive
Notifications: Pursuant to section 3010 and according to agreements between EPA and the
State, the State to responsible for receiving, processing, and verifying information on
notification forma (Form 8700-121 and for forwarding such Information to EPA for the
assignment of EPA Identification numbere.1
6. EPA will make available to the State other relevant information as requested which the State needs
to implement its approved program. Information provided to the State will be subject to the terms
of 40 CFR Part 2.
[Optional: The Region may wish to insert a delisting agreement.!
[Optional: The State may wish to specify to whom information is to be sent.]
C. State
1. The State agrees to inform the Regional Administrator in advance of any proposed program
changes which would affect the State's ability to implement the authorized program. Program
changes of concern include modification of the State's legal authorities (i.e., statutes, regulations
and judicial or legislative actions affecting those authorities), modifications of Memoranda of
Agreement or Understanding with other agencies, and modifications of resource levels (i.e.,
available or budgeted personnel and funds). The State recognizes that program revisions must
be made in accordance with the provisions of 40 CFR 271.21, and that until approved bv EPA,
revisions are not authorized as RCRA Subtitle C requirements.
2. Annually, through development of the State grant work program, EPA and the State will agree on
the type and frequency of reports the State will make in order for EPA to maintain oversight of the
implementation of the State's authorized program. Such reporting shall include, but not be limited
to, the following: [Details regarding the type and frequency of reports may be insened here.)
a. Compliance monitoring and enforcement information;
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b. Information indicating the status of the State's permitting, closure, post-closure, and ground-
water monitoring and corrective action activities;
c. Various reports designed to accurately describe the status of the State's authorized program
including biennial reports summarizing the quantities and types of hazardous waste
generated, transported, treated, stored and disposed in the State; and
d. [If applicable: State decisions to grant variances, waivers, and delisting requests made
by hazardous waste handlers.]
3. The State agrees to provide EPA with a copy of any decisions regarding requests made bv
hazardous waste handlers to change their classifications (e.g.. requests to be deleted as
generators but to retain facility status) and facility requests to make on-site changes prior to permit
issuance (e.g.. requests to handle additional wastes not identified on the facility's original
notification and RCRA Part A Permit Application.)
4. The State agrees to provide EPA with copies of reports on data resulting from any compliance
inspection and subsequent enforcement actions, when EPA requests such copies.
5. The State agrees to provide any pertinent information requested bv the Regional Administrator or
his or her designee within a mutually agreed upon time frame, as necessary for EPA to carry out
its oversight responsibilities. Unless otherwise agreed upon, the above information shall be sent
to flnsert name and addressl.
6. [If applicable: The State agrees to provide EPA with a copy of each State decision regarding
variances, waivers, and delisting petitions at the time such requests are granted. The Regional
Administrator and State may negotiate a process for EPA's review of proposed variances, waivers,
or delisting petitions. Terms of this agreement should be specified in the MOA. The Region may
also want to insert language setting up a process by which the State would submit variance, waiver
or delisting requests to EPA for review prior to approval.]
D. Site Visits
EPA is responsible for maintaining reliable national data on hazardous waste management. This
data is used to report to the President and Congress on the achievements of the hazardous waste
program and to support EPA's regulatory development efforts. Whenever EPA determines thai it needs
to obtain certain information, EPA will first seek to gain this information from the States. The State of
[insert name] agrees to supply the Regional Administrator with this information if readily available and
as resources allow. If the State is unable to provide the information or if it is necessary to supplement
the State information, EPA may conduct a special survey or perform information collection site visits after
notifying the State. EPA will share with the State any national reports developed by EPA as a result or
such information collection.
E. Emergency Situations
Upon receipt of any information that the handling, storage, treatment, transportation, or disposal
of hazardous waste is endangering human health or the environment, the party in receipt of such
information shall immediately notify by telephone the other party Oes) to this Agreement of the existence
of such situation. [Include details here for information sharing, names and titles of individuals, telephone
numbers, etc.]
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F. Confidentiality
1. Any information obtained or used in the administration of the State program shall be available to
EPA upon request without restriction. If the information has been submitted to the State under a
claim of confidentiality, the State must submit that claim to EPA when providing information. Any
information obtained from a State and subject to a claim of confidentiality will be treated in
accordance with the regulations in 40 CFR Part 2.
2. EPA agrees to furnish to the State information in its files which is not submitted under a claim of
confidentiality and which the State needs to implement its program. Subject to the conditions in
40 CFR Pan 2, EPA will furnish the State information submitted to EPA under a claim of
confidentiality which the State needs to implement its program. All information EPA agrees to
transfer to the State will be transferred in accordance with the requirements of 40 CFR Part 2. EPA
will notify affected facilities when such information is sent to the State.
V. PERMIT ISSUANCE
A. EPA Permitting
Upon authorization of the State program EPA will suspend issuance of Federal permits for
hazardous waste treatment, storage, and disposal facilities for which the State is receiving authorization.
[Each Region should try to make special arrangements with the State for the State to assume responsibility
for issuing particular permits EPA has been working on. The State will need specific authority to assume
responsibility in the midst of the process, unless the proceedings have been joint, with both the same
Federal and State administrative procedures followed up to the time the State assumes full responsibility.]
Whenever EPA adds permitting standards for processes not currently covered fay Federal
regulations. EPA will process and enforce RCRA permits in the State in the new areas until the State
receives final authorization for them. At the time the State program is approved in the new areas. EPA
will suspend issuance of Federal permits in the State. EPA will also transfer any pending permit
applications, completed permits or pertinent file information to the State within thirty days of the approval
of the State program in conformance with the conditions of this Agreement.
The State and EPA have agreed to a joint permitting process (see section V.D of this Agreement)
for the joint processing and enforcement of permits for those provisions of HSWA for which the State does
not have authorization. As the State receives authorization for additional provisions of the HSWA. EPA
will suspend issuance of Federal permits in the State for those provisions.
B. EPA Overview of State Permits
While EPA may comment on any permit application or draft permit, EPA's overview function wifl
focus primarily on those facilities identified by the State and EPA in the State's Multi-Year Permit Strategy,
annual State Grant Work Program and the State's Program Description.
EPA may comment in writing on any draft permit or proposed permit modification, whether or not
EPA commented on the permit application, within forty-five days of its receipt [EPA should be aliowed
at least as long to comment as the public at large; this time period should be tied to each State's public
participation process.] Where EPA indicates in a comment that issuance, modification, ressuance,
termination or denial of the permit would be inconsistent with the approved State program, EPA shafl
include in the comment:
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a a statement of the reasons for the comment (including the section of the State law or
regulations that supports the comment), and
b. the. actions that should be taken by the State in order to address the comment (including
the conditions which the permit would include if it were issued by EPA).
EPA shall send a copy of its written comments to the permit applicant.
EPA shall withdraw such comments when satisfied that the State has met or refuted its concerns
and shall also provide the permit applicant with a copy of such withdrawal.
[Insert here any agreement the Region makes with the State regarding resolution of EPA comments
on draft permits before final permit issuance by the State, e.g., the State and the Regional Administrator
agree to meet or confer whenever necessary to resolve a disagreement between their staffs on the terms
of any RCRA permit to be issued by the State. The Region may want to add a specific time limit within
which the State and RA will meet.}
Under section 3008(a)(3) of RCRA, EPA may terminate a State-issued permit in accordance with
the procedures of 40 CFR Part 124, Subpart E, or bring an enforcement action in accordance with the
procedures of 40 CFR Part 22 in the case of a violation of a State program requirement In exercising
these authorities, EPA will observe the conditions established in 40 CFR 271.19(e).
C. State Permitting
The State is responsible for expeditiously drafting, circulating for public review and comment,
issuing, modifying, reissuing and terminating RCRA permits for those hazardous waste treatment, storage
and disposal facilities contained in the authorized provisions of the State's program and shall do so in a
manner consistent with RCRA as amended by HSWA, this Agreement, all applicable Federal requirements,
and the State's Program Description. [Insert here any agreement the State makes regarding: (1) its
assumption of permit issuance in ongoing EPA permit proceedings, and (2) its enforcement, adoption or
reissuance of EPA-issued RCRA permits or portions of permits. Note that the State must have specific
authority either to assume administration and enforcement of EPA-issued permits or portions of permits or
to adopt them as State permits; otherwise, the State must reissue the permits as State RCRA permits.] The
State agrees to issue, modify and reissue all permits contained in the authorized portions of the State's
program in accordance with [Insert citation to relevant State procedural environmental statutes and
regulations and administrative procedures act and regulations] and to include as permit conditions all
applicable provisions of [Insert citation to relevant State environmental regulations]. This agreement
also applies to permits issued after final authorization but for which the processing may have begun
before final authorization.
[Insert here any agreement the State makes that is necessary to carry out the permitting procedures
analogous to those at 40 CFR Parts 270 and 124.]
[Insert here any agreement the State makes regarding its use of any variance or waiver authority.]
The State agrees that any compliance schedules contained in permits it issues will require
compliance with applicable standards as soon as possible. [Insert here any agreement the State makes
regarding interim dates, reporting for such permittees, etc.]
The State agrees to consider all comments EPA makes on permit applications and draft permits.
The State will satisfy or refute EPA's concerns on a particular permit application, proposed permit
modification, or draft permit in writing before issuing the permit or making the modification.
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D. Joint Permitting Process
Pursuant to section 3006(01(1). and in accordance with the Hazardous and Solid Waste
Amendments of 1984. EPA has the authority to issue or deny permits or those portions of permits to
facilities in fName of State! for the requirements and prohibitions in or stemming from HSWA until the
State's program is amended to reflect those requirements and prohibitions and authorization is received
for the portion or portions of the program.
EPA and fName of State! hereby establish this joint permitting process for the issuance of RCRA
permits in fName of State!. This joint permitting process is established in accordance with section
3006(c) 13) of RCRA. The details of the joint permitting process shall be incorporated into the annual State
grant work program. The duties and responsibilities of EPA and the State for joint permitting shall also
be specified in the annual State grant work program.
The details of the joint permitting process as contained in the State Grant Work Program shall be
reviewed and revised as often as necessary, but no less often than annually to assure its continued
appropriateness.
Upon authorization of the State for any of the provisions of HSWA. the specifics of the Joint
Permitting Agreement as set in the annual State grant work program shall be amended to reflect the
authorization. Amendment of this Memorandum of Agreement or the execution of a separate
Memorandum of Agreement mav be required for authorization of £hv of the provisions of HSWA.
VI. PERMIT ADMINISTRATION
A. EPA
(If the State has authority to directly administer permits issued by the Federal government, this
section may be inapplicable and the Region should insert provisions for transferring responsibility for all
Federal permits to the State.}
EPA will administer the RCRA permits or portions of permits it has issued to facilities in the State
until they expire or are terminated. EPA will be responsible for enforcing the terms and conditions of the
Federal permits while they remain in force. When the State either incorporates the terms and conditions
of the Federal permits in State RCRA permits or issues State RCRA permits to those facilities, EPA will
terminate those permits pursuant to 40 CFR Part 270 and rely on the State to enforce those terms and
conditions subject to the terms of an acceptable State/EPA Enforcement Agreement. [Insert agreement
regarding State enforcement of the terms of EPA-issued permits or reference to the Joint Permitting
Agreement, as appropriate.!
B. State
The State agrees to review all hazardous waste permits which were issued under State law prior
to the effective date of this Agrement and to modify or revoke and reissue such permits as necessary to
require compliance with the amended State Program [Insert citation to relevant State environmental
statutes and regulations and administrative procedures act and regulations equivalent to the 40 CFR
Part 264 requirements] and [Insert citation to relevant State environmental regulations]. The State
agrees to modify or revoke and reissue these State permits as RCRA permits in accordance with the
following schedule. [EPA intends that the schedule in the MOA provide a reasonable time period lor the
review and upgrading of existing State permits, based on such factors as the number of State permits and
the additional permit terms and conditions needed to satisfy the requirements of 40 CFR Part 271.)
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VII. COMPLIANCE MONITORING AND ENFORCEMENT
A. EPA
Nothing in this Agreement shall restrict EPA's right to inspect any hazardous waste generator,
transporter or facility or bring enforcement action against any person believed to be in violation of the
State or Federal hazardous waste program or believed to have a release of hazardous waste or
constituent Before conducting an inspection of a generator, transporter or facility, the Regional
Administrator will normally give the State at least seven days notice of the intent to inspect in accordance
with 40 CFR 271.8(b)(3)(i). [The Regional Administrator and State may agree on a longer period of time
in order to allow the State opportunity to conduct the inspection.] If the State performs a compliance
inspection and submits to EPA a report and data relevant thereto within that time, no EPA inspection will
be made, unless the Regional Administrator deems the State report and data to be inadequate. In case
of an imminent hazard to human health and the environment, the Regional Administrator may shorten or
waive the notice period.
The frequency of EPA oversight and training inspections will be specified in the annual State grant
work program. EPA will negotiate on an annual basis with the State the number or percentage of the
State's compliance inspections on which EPA will accompany the State.
EPA may take enforcement action against any person determined to be in violation of RCRA in
accordance with section 3008(a)(2). EPA will take enforcement action upon determining that the State
has not taken timely and appropriate enforcement action or upon request by the State. Prior to issuing
a compliance order under section 3008(a) EPA will give notice to the State. EPA also retains its rights
to issue orders and bring actions under sections 3008(h), 3013 and 7003 of RCRA and any other
applicable Federal statute.
After notice to the State, EPA may take action under section 3008 of RCRA against a holder of a
State-issued permit on the grounds that the permittee Is not complying with a condition of that permit.
In addition, EPA may take action under section 3008 of RCRA against a holder of a State-issued permit
on the grounds that the permittee is not complying with a condition that the Regional Administrator, in
commenting on that permit application or draft permit, stated was necessary to implement approved State
program requirements, whether or not that condition was included in the final permit.
B. State
The State agrees to carry out a timely and effective program for monitoring compliance by
generators, transporters, and facilities with applicable program requirements (see 40 CFR 271.15). As
part of this program, the State will conduct inspections to assess compliance with generator and
transporter standards (including manifest requirements), facility standards, permit requirements,
compliance schedules, and all other program requirements. Compliance monitoring activities and
priorities will be specified in the State/EPA Enforcement Agreement and the annual State grant work
program and shall be consistent with all applicable Federal requirements and with the State's Program
Description.
[Insert any agreement the Region makes with the State regarding inspections at EPA-permitted
facilities. Individuals in the State program may be designated as EPA representatives under section 3007
of RCRA so that they can inspect facilities for violations of the terms and conditions of Federal permits.]
IInsert any agreement for EPA andlor State inspections of Federal facilities.1 The State agrees to
take timely and appropriate enforcement action as defined in the State/EPA Enforcement Agreement or
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annual State grant work program against all persons in violation of generator and transporter standards
(including manifest requirements), facility standards, permit requirements, compliance schedules, and all
other program requirements, including violations detected by State or Federal compliance inspections.
The State will maintain procedures for receiving and ensuring proper consideration or information about
violations submitted by the public. The State agrees to retain all records for at least three years unless
there is an enforcement action pending. In that case all records will be retained until such action is
resolved.
VIII. AVAILABILITY OF INFORMATION (section 3006(f))
A. General
Section 3006(f) of RCRA provides that States may be authorized by the Administrator under this
section if the State program provides for the public availability of information obtained by the State
regarding facilities and sites for treatment, storage and disposal of hazardous waste; and that such
information is available to the public in substantially the same manner, and to the same degree, as would
be the case if the Administrator were carrying out the provisions of this subtitle in the State.
B. Requests for Information
1. Pursuant to the Federal Freedom of Information Act (FOIA), 5 U.S.C. 552(a)(2), the State agrees
to make certain materials routinely available without a formal FOIA request. Examples of these
materials are final opinions or orders in case adjudication, State regulations, statements of Agency
policy, and administrative staff manuals affecting the public. In addition, records prepared for
routine public distribution will also be made available. Examples of such records are press
releases, copies of speeches, pamphlets, and educational materials.
2. The State Agency agrees to make reasonable efforts to assist a requestor in identifying records
being sought, and to help the requestor formulate his or her request
3. If a request for information is denied, the State agrees to provide the requestor the basis for the
denial and to notify the requestor of State judicial (or, if they exist, administrative) procedures,
including statutes of limitation.
4. The State agrees to make the fullest possible disclosure of records to the public, subject to any
of the exemptions under the Federal FOIA recognized by the State.
5. [The following shall be Included If the State charges a fee to provide copies of information:
A reduction or waiver of fees will be considered In connection with each request from a
representative of the press or other communication medium, or from a public Interest group.
The State agrees to reduce or waive the fee If it determines that a reduction or waiver of the
fee is In the public Interest because furnishing the Information can be considered as primarily
benefitting the general public.]
C. Confidentiality of Business Information
If a claim of confidentiality is asserted and cannot be resolved in the time period provided for an
agency response to a request, the State agrees to notify the requestor of the confidentiality claim within
the maximum 20-day time limit provided for an agency response. In addition, the requestor will be told
that the request was denied in order to resolve the business confidentiality claim.
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D. Oversight
1. The State agrees to keep a log of denials of requests for information (or a file containing copies
of denial letters sent to requestors) which will be made available to EPA during the State review.
2. The State agrees to keep EPA fully informed of any proposed modifications to its basic statutory
or regulatory authority, its forms, procedures, or priorities, as applied to section 3006(f).
STATE OF U.S. ENVIRONMENTAL PROTECTION AGENCY
AGENCY REGION
BY: BY: ;
DATE:
DATE:
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APPENDIX C
Memorandum of Agreement Review Checklist
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REVIEWER'S CHECKLIST FOR THE MEMORANDUM OF AGREEMENT
Introduction
This checklist should be used to help the reviewer review a draft MOA developed by a
State. In developing an MOA, the State and Region should cover all topics addressed in the
model MOA (see revised SCRAM, pp. 3-9 through 3-11). These topics are derived from the
required elements of an MOA contained in 40 CFR 271.8. However, the Region and State are
not required to follow the model verbatim. In fact, the Region and State are encouraged to
tailor the provisions of the MOA to address each Region's and State's unique relationship.
However, in doing so, the MOA must adhere to certain principles stated in 40 CFR 271.8:
• The MOA may not restrict EPA's statutory oversight responsibility;
• The MOA may not limit the number of compliance inspections EPA may conduct; and
• The MOA must allow EPA to routinely review State's records, reports and files.
The checklist Is designed to ensure that the regulatory requirements are covered in the MOA
and that the MOA does not violate these important principles, it is numbered to correspond
to the model MOA.
Yes No
I. General
1. Is the boilerplate language of the model MOA followed verbatim? If
yes, go to #8; if no, go to #2:
*
2. Are the legal authorities for the MOA identified?
3. Is there a statement reserving EPA's oversight and enforcement *
responsibilities?
4. Is there a procedure for reviewing the MOA at least annually? *
5. Is there a procedure tor modifying the MOA? *
6. Does the modification procedure require the signatures of both the *
RA and State Director?
* A response on this line requires a comment to the State.
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7. For HSWA authorization:
- Does the MOA specify which HSWA provisions the State is
authorized for?
- Does the MOA indicate whether it amends or supersedes the
previous MOA?
- Does the MOA indicate that its effective date is the date of
authorization?
8. is more than one State Agency responsible for implementing the
authorized State program? If no go to II. If yes:
- Are both agencies Identified?
- Are the responslbiltiea of each Agency identified?
- Old each Agency Director sign the MOA?
- is one Agency identified as the lead?
II. Policy Statement
1. Is the model MOA followed verbatim? tf yes, go to III. If no, go to #2.
2. Are there any statements Intended to limit EPA's role In the EPA«State
partnership?
3. Are there any statements intended to limit EPA's role in implementing
HSWA provisions for which the State is not authorized?
4. Are there any statements Intended to constrain EPA's oversight
activities?
III. State Program Review
A. General
1. Is the model MOA followed verbatim? If yes, go to B. If no, go to
#2.
* A response on this line requires a comment to the State.
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2. Does the MOA limit the scope of EPA oversight activities?
3. Does the MOA restrict the tools (i.e., information sources) EPA may
use for oversight?
4. Does the MOA restrict EPA's access to files or other information?
5. Does the MOA allow tor regularly scheduled reviews?
B. Identification of Priority Activities
1. is the model followed verbatim? If yes, go to IV. If no, go to #2.
2. Does the MOA establish a procedure to agree on priority activities?
IV. Information Sharing
B. EPA
1. Is the model followed verbatim? If yes, goto C. If no, go to #2.
2. Does the MOA impose unreasonable deadlines or other demands on
EPA's responsibility to share Information tor
- Joint permitting?
- Notification?
3. Does the MOA specify the documents tor which information sharing
procedures will be developed?
4. Does the MOA provide tor EPA to assign ID numbers?
5. if the State receives the notification forms, does the MOA provide for
forwarding the information to EPA?
C. State
1. Is the model followed verbatim? If yes, go to D. If no, go to #2.
2. Does the MOA require the State to inform EPA in advance of program
changee?
* A response on this line requires a comment to the Stfee.
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3. Does the MOA provide for reporting requirements to be specified in
the annual grant work program?
4. Does the MOA require the State to provide EPA with a copy of State
decisions on variances, waivers and delisting petitions at the time such
decisions are made?
5. Does the MOA require the State to submit to EPA copies of decisions
to change a handler's status or to allow facility changes during interim
status?
6. Does the MOA require the State to provide enforcement data when
requested by EPA?
7. Does the MOA require the State to provide EPA with any information
requested?
D. Site Visits
1. Does the MOA provide for EPA surveys or site visits to obtain
information not otherwise available from the Stats?
E. Emergency Situation
1. Does the MOA require each party to notify the other upon receipt of
information regarding an emergency situation?
F. Confidentiality
1. is the model followed verbatim? If yes, go to V. If no, go to #2.
2. Does the MOA provide that all information obtained or used in the
administration of the State program shall be available to EPA upon
request without restriction?
3. Does the MOA require s State to submit a confidentiality claim when
providing information?
4. Does the MOA state that information obtained from a Stats and subject
to a claim of confidentiality wfll be treated in acoordanos with 40 CFR
Part 2?
A response on this tine requires a comment to the State.
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5. Does the MOA provide that EPA will furnish the State information
submitted under a daJm of confidentiality subject to the conditions in
40 CFR Part 2?
6. Does the MOA provide tor EPA notification of affected facilities?
V. Permit Issuance
A. EPA Permitting
1. Is the model followed verbatim? if yes, go to B. If no, go to #2.
2. Does the MOA provide tor EPA to suspend issuing permits upon State
authorization for the base program and/or HSWA provisions?
3. Does the MOA provide sufficient time tor transferring permit information
from EPA to the State?
B. EPA Overview of 8tate Permits
1. is the model followed verbatim? If yes, goto C. If no, go to #2.
2. Does the MOA provide for EPA comment on any permit application or
draft permit?
3. Is the comment period provided tor EPA's review less than 45 days?
4. Is EPA required to provide Information other than that specified in 40
CFR 271.l9(bHd) when a comment indicates that the State permit
would be inconsistent with the approved State program?
5. Does the MOA restrict EPA's authorities under 40 CFR 271.19(e)?
C. State Permitting
1. Does the MOA allow the State to assume responsibility for ongoing
EPA permit proceedings? If no, go to #2. If yes:
- Have an permitting procedures been conducted jointly? If yes, go
to #2. If no:
- Does the AQ Statement cite State authority to assume this
responstottty?
* A response on this One requires a comment to the State.
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2. Dees the MOA provide tor State administration and enforcement of
EPA-issued RCRA permits? if no, go to #3. If yes, does the AG
Statement cite State authority to assume this responsibility?
3. Are citations to State statutes and regulations provided concerning the
issuance, modification and reissuance of EPA-issued permits?
4. Is the State using the MOA to satisfy permitting procedures not found
in State regulations (see AG Statement Review Checklist, Part 1, #5)?
If no, go to #5. if yes:
- Does the MOA contain an unequivocal commitment to apply the
procedures to each permit?
- Does the MOA commit the State to inform the public in each permit
public notice that procedures to be followed are derived from the
MOA as well as from State laws and regulations?
5. Does the State have variance or waiver authority broader than that in
the Federal program (see AG Statement Review Protocol, #6)? If no,
go to 6. If yes, does the State commit in the MOA not to we the
waiver or variance so that It would result in the imposition of any
requirement less stringent than comparable Federal program
requirements?
6. Is there any provision which would allow permit compliance schedules
to delay compliance with applicable standards?
7. Does the State agree to consider EPA's comments and to resolve
them prior to permit issuance?
D. Joint Permitting Process
1. Is the model followed verbatim? If yes, go to VI. If no, go to #2.
2. Is EPA's authority to issue HSWA permits acknowledged?
3. Does the MOA provide for negotiation of specific joint permitting
procedures and incorporation of those procedures in the annual State
grant work program?
4. Is there a provision for review of the procedures at least annually?
* A response on this line requires a comment to the State.
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5. Does the MOA acknowledge that HSWA authorization may require
amendment of the joint permitting agreement or MOA to reflect
authorization status?
VI. Permit Administration
A. EPA
1. Does the State have authority to directly administer EPA-issued
permits? if yes, go to VII. if no, go to #2.
2. Does the MOA restrict EPA's ability to administer and enforce the
permit?
3. Does the MOA require EPA to terminate permits prior to State
reissuance and/or without the permittee's consent?
B. Stat*
1. Does the MOA provide a reasonable schedule tor review and
modification, revocation or reissuance of EPA-issued permits?
vim. compliant* woniiflfiitQ ¦no cniofCitH>Hi
A. EPA
1. Is the model followed verbatim? If yea, go to B. If no, go to #2.
2. Does the MOA restrict EPA's right to inspect and bring enforcement
action against any hazardous waste handler?
3. Does the MOA require EPA to give the State unreasonable notice prior
to conducting an inspection?
4. Does the MOA allow EPA to waive or shorten the notice period in case
of an imminent hazard?
5. Does the MOA provide tor annual negotiation of the frequency of EPA
oversight and training inspections?
* A response on this line requires a comment to the Stats.
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6. Does the MOA restrict EPA's right to take enforcement action under
RCRA §§3008(a)(2), 3008(h), 3013, 7003, or any other applicable
statute?
7. Does the MOA provide for EPA enforcement against a State permittee
for noncompliance with the permit?
8. Does the MOA provide for EPA enforcement against a State permittee
for noncompliance with a condition that EPA stated was necessary to
implement the approved State program?
B. State
1. is the model followed verbatim? If yes, go to VIII. If no, go to #2.
2. Does the State agree to carry out an inspection program specified in
its State/EPA Enforcement Agreement and annual grant work program,
in accordance with its Program Description?
3. Does the MOA provide for State inspection at EPA-permitted facilities?
If no, go to #4. If yes, are State employees designated as EPA
representatives under RCRA $3007?
4. Does the MOA contain agreements regarding Federal facility
inspections? if no, go to #5. If yes, does the MOA restrict EPA's
ability to conduct inspections without the presence of State personnel?
5. Does the State agree to take timely and appropriate enforcement
actions?
6. Does the State agree to maintain procedures for receiving and
ensuring consideration of information about violations submitted by the
public?
7. Does the State agree to retain all records for at least three years, and
until pending enforcement actions are resolved?
VIII. Availability of Information
1. Is the model followed verbatim? If yes, you are finished. If no, go to
#2.
* A response on this line requires a comment to the State.
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2. Does the State agree to make certain materials (e.g., State regulations,
final opinions or orders, statements of Agency policy, public
information materials) available without a formal FOIA request?
3. Does the State agree to assist a requestor in identifying records being
sought?
4. If a request is denied, does the State agree to provide the requestor
the basis for the denial and to inform him or her of the appeal
procedures, including statutes of limitations?
5. Does the State charge a fee to provide copies of information? If no,
go to #6. If yes:
- Does the State agree to consider reducing or waiving the fee for
media representatives or public interest groups?
- Does the State agree to reduce or waive the fee H H determines
that a reduction or waiver is in the public interest?
6. Does the State agree to make the fullest possible disclosure of records
to the public, subject to any of the exemptions under the Federal FOIA
recognized by the State?
7. Does the State allow for confidentiality of business information? If no,
go to 8. If yes:
- Does the State agree to notify a requestor within 20 days that an
unresolved confidentiality daim is pending?
- Does the State agree to inform the requestor that the request was
denied in order to resolve the confidentiality daim?
8. Does the State agree to keep a log or file of denials of requests, and
to make this log or fDe available to EPA?
9. Does the State agree to keep EPA fully informed of any proposed
changes to Its legal authorities, forms, procedures or priorities, as
applied to RCRA $3006(f)?
A response on this line requires a comment to the State.
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APPENDIX D
Model Consolidated Attorney General's Statement
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BACKGROUND
A. Purpose and Use of Model: This appendix contains the Model Consolidated Attorney
General's Statement that is required when an unauthorized State applies for a RCRA
authorization. (The Model Revision Attorney General's Statement, found in Appendix E,
should be used if a State already has an authorized hazardous waste program and is
seeking authorization for revisions to it) The present Model Consolidated Attorney
General's Statement (hereafter referred to as the Model Consolidated AG Statement)
includes the initial RCRA program plus all changes affecting authorization through June 30,
1989. This Model Consolidated AG Statement and its companion Consolidated Checklists
C1 through C9 were developed to help States meet the requirements of RCRA §3006(b)
and 40 CFR 271.3(f) which require that a State applying for final authorization must
address all Federal Code provisions that were in effect one year prior to application
submission.
B. Updates to Model: The Model Consolidated AG Statement will be updated annually
through the State Program Advisory system.
C. Time Period Covered: Changes to the RCRA Program have been included in the
Model AG through the date given in the model's title.
D. Computer Version of Model: This Model Consolidated AG Statement is also
available as a WordPerfect 5.0 file. The instructions for obtaining and using this file can
be found in Appendix O.
INSTRUCTIONS FOR USING THE MODEL
CONSOLIDATED ATTORNEY GENERAL'S STATEMENT
A. Organization: While not formatted as discussed below, the Model Consolidated AG
Statement may be thought of as consisting of the following four parts:
1. An Introductory paragraph certifying that State law provides adequate authority to
carry out the program described in the Program Description. This paragraph
contains several blanks and bracketed inserts which must be completed specifying
1) the position of the person filling out the Statement 2) the State and the State
Agency submitting the Statement and 3) the effective dates of the State statutes or
regulations addressed by the Statement
2. Sections I through XV • As shown in Exhibit 1, the first seven sections address
the requirements of 40 CFR Parts 260-268, 270 and 124 including the modifications
to these parts represented by the revision checklists. Sections VIII through XV
address program components, outside the requirements in 40 CFR Parts 260-268,
270 and 124, that a State must have in order to obtain authorization for a
hazardous waste program. These program components address inspections,
enforcement remedies, public participation in the State enforcement process,
authority to share information with EPA, authority over Indian lands, exposure
assessments, radioactive mixed wastes and availability of information. Note that
under 40 CFR 271.3(f), States need only submit a hazardous waste program
reflecting Federal self-implementing statutory provisions and the regulations in 40
CFR Part 124, 260-266, 268, 270 and 271 that were in effect twelve months prior to
the State's submission of its official application. However, States are not precluded
from seeking authorization for requirements taking effect less than twelve months
prior to the State's submittal of its final application.
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Sections I through XV of the model consist of many subsections which briefly 1)
describe the specific requirements addressed by each checklist (both consolidated
and revision) or program component and 2) present the federal authority for these
requirements. At the end of each subsection are the following two headings:
"Citation of Laws and Regulations: Date of Enactment and Adoption" and "Remarks
of the Attorney General." The attorney completing the Attorney General's Statement
must provide appropriate Information under these headings. Guidance for
completing these sections is provided in more detail below.
3. Section XVI - Memorandum of Agreement (MOA) Certification - This section
must be completed if a State uses the MOA to satisfy Federal procedural
requirements. Listed in the model are three specific requirements which the
Attorney General must certify.
4. Signature and Seal of Office - In this section, the Attorney General completing
the Statement must include his or her Seal of Office, his or her signature, a typed
version of his or her name, his or her title and the date the Statement was signed.
This section serves to validate the certifications made by the Statement regarding
the State's statutes and regulations.
B. What a Consolidated Attorney General's Statement Must Contain: A Consolidated
Attorney General's Statement MUST contain Parts 1, 2, 3 and 4, as specified above, to be
complete. A common error is omission of the signature and seal of office portion of the
Statement. Without the signature and seal, the certifications made in the Statement are
not valid.
C. Completing Sections I Through XV: As discussed above, Sections I through XV
consist of many subsections which address specific requirements or program components.
Except for those optional requirements the States choose not to adopt, the attorney should
address the requirements outlined in each subsection included in the Model Consolidated
AG Statement Each subsection or "entry* consists of four necessary elements: 1) a brief
description of the regulatory/statutory requirements, 2) a statement of the Federal
authorities associated with these requirements, 3) a "Citation of Laws and Regulations;
Date of Enactment and Adoption" section, and 4) a "Remarks of the Attorney General"
section. Guidance for completing each of these elements is discussed in the following four
paragraphs labeled (1)-(4). Exhibit 2 shows how a completed entty for a checklist should
look. The example addresses Revision Checklist 42 requirements which are included in
Consolidated Checklist C3.
(1) Description of Federal Regulatory and Statutory Reoulrementa; The description of
the Federal requirements provided in the model can be used word-for-word as is shown in
the Exhibit 2 example. The one exception Is for optional requirements (e.g., see Section I
B of the model). In these cases, the following statement should be removed from the
description: "[OPTIONAL: This is a reduced requirement.]"
(2) Statement of Federal Authorities: The Federal authorities must be stated, and they
should be used word-for-word as they appear in the Model, as shown in the Exhibit 2
example.
(3) Citation of Laws and Regulations; Pate of Enactment and Adoption: As the
Exhibit 2 example shows, this portion of an entry must contain the following three pieces of
information: 1) citation of specific enabling authority (e.g., statutes, administrative
regulations, judicial decisions) relevant to the requirements addressed by the checklist or
requirement in question, 2) citation of specific State regulations covering these
requirements, and 3) dates of enactment and adoption for these citations. This last
3
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information is necessary because the cited statutes and regulations must be lawfully
adopted at the time the Consolidated Attorney General's Statement is signed and must be
fully effective by the time the program is approved.
(4) Remarks of the Attorney General: The remarks section should be used to explain
differences in the State program from the Federal program, including more stringent
provisions. However, provisions which are broader in scope are more appropriately
discussed in the Program Description. The remarks section should also be used if the
State's legal authorities (e.g., statutes and rules) do not appear equivalent to Federal
authorities, and the Attorney General wants to make an argument that they are equivalent.
In the Exhibit 2 example, the State adopted the appropriate Federal regulations verbatim,
and the State's legal authorities are equivalent to Federal authorities.
D. Incorporation bv Reference: In the case where a State incorporates by reference
portions or all of a checklist's requirements, an Attorney General must demonstrate in the
remarks portion for that checklist's entry that the State has the authority to adopt State
regulations in this manner. In the "Citation of Laws and Regulations; Date of Enactment
and Adoption" portion of the entry, the Attorney General must cite State statutes providing
this authority in addition to the other information typically included in this part of the entry.
Exhibit 3 is an example of how an incorporation by reference entry should look. In some
cases, a State may prospectively adopt Federal regulations by reference (i.e., adopt EPA
provisions that may occur in the future). A number of State Supreme Court cases (see
Chapter 3 for further explanation) hold that State statutes adopting prospective Federal
legislation or regulations constitute an unconstitutional delegation of legislative authority.
Therefore, the Attorney General must demonstrate and cite specific State authority both to
promulgate and enforce regulations in this manner.
E. Who Signs the Consolidated Attorney General's Statement: A Consolidated AG
Statement must be signed by one of the following individuals: 1) the State Attorney
General or an attorney in his or her office authorized to sign for the Attorney General, 2) a
Deputy or Assistant Attorney General If authorized to do so, or 3) the attorney for those
States or interstate agencies having independent legal counsel, provided the attorney has
the authorities specified in 40 CFR 271.7(a). "Authorization" in this context must be in
writing, case law or statute. Whenever an independent counsel signs a Consolidated AG
Statement, he or she MUST also provide a statement as part of the authorization package
explaining the scope of his or her authority. If more than one State Agency administers or
enforces a State's hazardous waste program and the independent legal counsel for one
participating Agency cannot certify legal authority for aspects of the program administered
or enforced by other agencies, either Independent counsel for each Agency or the State
Attorney General must sign the Statement
F. Radioactive Mixed Waste: Special guidance is available in Appendix N.
G. Common Errors: Listed below are some common errors made in Attorney General's
Statements submitted to the Agency:
omission of the signature and Seal of Office for the attorney completing the
Statement;
omission of date of enactment and adoption for those State statutes and
regulations addressed by the Statement;
inclusion of the phrase "[OPTIONAL: This is a reduced requirement)* when
a State is applying for an optional provision or change in the Federal
regulations; and
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no explanation in the Remarks of the Attorney General of a State provision
indicated on a consolidated checklist as being more stringent than its
corresponding Federal requirement.
5
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EXHIBIT 1. CONTENT OF SECTIONS l-XV OF THE MODEL
CONSOLIDATED ATTORNEY GENERAL'S STATEMENT
Section Title
I Definition of Terms, References and
Test Methods
II Identification and Listing
III Standards for Generators
IV Standards for Transporters
V Standards for Facilities
VI Land Disposal Restrictions
VII Requirements for Permits
VIII Inspections
IX Enforcement Remedies
X Public Participation in the State
Enforcement Process
XI Authority to Share Information With EPA
XII Authority Over Indian Lands
XIII Exposure Assessments
XIV Radioactive Mixed Wastes
XV Availability of Information
Requirements Addressed
or Federal Authority
40 CFR 260.10, 260.11, 260.21
40 CFR 260.20, 260.22, 260.30-
260.41, 261
40 CFR Part 262
40 CFR Part 263
40 CFR Parts 264, 265, 266
40 CFR Part 268
40 CFR Parts 124, 270
40 CFR 271.15
40 CFR 271.16(a)(1)-(3)
40 CFR 271.16(d)
40 CFR 271.17
40 CFR 271.7(b)
RCRA §3019(b)
RCRA §§1004(27) & 3001(b)
40 CFR 271.17(c)
6
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EXHIBIT 2. EXAMPLE OF HOW AN ENTRY SHOULD LOOK IN THE SECTIONS l-XV
PART OF A CONSOLIDATED ATTORNEY GENERAL'S STATEMENT
VII. NATIONAL UNIFORM MANIFEST SYSTEM AND RECORDKEEPING
B. Stats statutes and regulations require that generators, of between 100 and 1000
kg/mo of hazardous waste, file an exception report in those instances where the generator
does not receive confirmation of delivery of his hazardous waste to the designated facility as
Indicated in Revision Checklist 42 and included in Consolidated Checklist C3.
Federal Authority: RCRA §§3001 (d) and 3002(a)(5); 40 CFR Parts 262.42 and 262.44 as
amended September 23, 1967 (52 FR 35894).
Citation of Laws and Regulations: Date of Enactment and Adoption
State Hazardous Waste Act 448.765(a), amended April 10, 1987
State Hazardous Waste Regulations 17.02(a) and (c), adopted May 25, 1987
Remarks of the Attorney General
The State has adopted EPA's regulations at 40 CFR 262.42 and 262.44 verbatim. At
448.765(a) of the State Hazardous Waste Act, which enables the State to adopt these
regulations, statutory authorities are similar in scope to those provided at §§3001 (d) and
3002(a)(5) of RCRA and do not limit the requirements implied by the verbatim adoption of
262.42 and 262.44.
7
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EXHIBIT 3. INCORPORATION BY REFERENCE-EXAMPLE OF AN
ENTRY IN THE SECTIONS l-XV PORTION OF A
CONSOLIDATED ATTORNEY GENERAL'S STATEMENT
XXI. LAND DISPOSAL RESTRICTIONS
A. State statutes and regulations provide for the restrictions of the land disposal of
certain spent solvents and dioxin-containing hazardous wastes as Indicated in Revision
Checklists 34 and 50 and included in Consolidated Checklist C8.
Federal Authority: §3004(d)-(k) and (m); 40 CFR Parts 260, 261. 262, 263, 264, 265, 266 and
270 as amended on November 7, 1966 (51 FR 40572), June 4, 1987 (53 FR 21010), and
August 17, 1966 (53 FR 31136).
Citation of Laws and Regulations; Date of Enactment and Adoption
State Hazardous Waste Act 446.670 & 466.700, amended September 10, 1987
State Hazardous Waste Regulations 17.12(b), adopted September 30, 1986
Remarks of the Attorney General
The State incorporates by reference 40 CFR Part 266 at 17.12(b) of the hazardous waste
regulations inclusive of the land disposal restrictions promulgated at 51 FR 40572, 52 FR
21010, and 53 FR 31138. Section 448.700 of the State Hazardous Waste Act provides
authority for the~State to adopt Federal regulations by reference. Section 446.670 which
enables the State to restrict land disposal of hazardous waste has similar soope to that
provided at RCRA §3004(d)-(k) & (m).
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MODEL CONSOLIDATED
ATTORNEY GENERAL'S STATEMENT
FOR FINAL AUTHORIZATION.
INCLUDING CHANGES TO THE
FEDERAL RCRA PROGRAM
THROUGH JUNE 1989
I hereby certify, pursuant to my authority as and In accordance with
Section 3006(b) of the Resource Conservation and Recovery Act, as amended by the
Hazardous and Solid Waste Amendments of 1984, and 40 CFR 271 that in my opinion the
laws of the State [Commonwealth] of provide adequate authority to carry
out the program set forth in the "Program Description" submitted by the fState Agency].
The specific authorities provided are contained in statutes or regulations lawfully adopted at
the time this Statement is signed and which are in effect now [shall be fully effective by
], as specified below.
1. DEFINITION OF TERMS. REFERENCES AND TEST METHODS
A. State statutes and regulations contain definition of terms and a list of
publications (as in 40 CFR 260.11) which have applicability throughout the statutes and
regulations as indicated in Consolidated Checklist C1 which includes the revisions made by
Revision Checklists 5, 11, 13, 23, 24, 28, 34, 35, 39, 45, 49, and 52.
Federal Authority: RCRA §2002(a), 3001-3007, 3010, 3014, 3015, 3017-3019, 7004; 40
CFR 260.10 and 260.11, as amended March 20, 1984 (49 FR 10490), December 4, 1984
(49 FR 47390), January 4, 1985 (50 FR 614), March 24, 1986 (51 FR 10146), May 2.
1986 (51 FR 16422), July 14, 1986 (51 FR 25422), November 7, 1986 (51 FR 40572),
March 16, 1987 (52 FR 8072), July 8, 1987 (52 FR 25760), October 27, 1987 (52 FR
41295), December 10, 1987 (52 FR 46946), July 19, 1988 (53 FR 27290), and September
2, 1988 (53 FR 34079).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
* B. fOPTIONAL: This is a reduced requirement] State statutes and regulations allow
petitions for equivalent testing or analytical methods as specified in 40 CFR 260.21 and as
indicated in Consolidated Checklist CI which includes the requirements indicated in
Revision CheckOst 11.
Federal Authority: RCRA §2002(a), 3001, 3004; 40 CFR 260.21 as amended December 4,
1984 (49 FR 47390).
Citation of Laws and Regulations: Date of Enactment and Adoption
* The phrase "OPTIONAL: This is a reduced requirement" is used to indicate provisions
that either are less stringent or reduce the scope of the program. Any State which
adopts an "optional" requirement must ensure that it is at least as stringent as the
Federal requirement
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Remarks of the Attorney General
C. Specific provisions amending 40 CFR 260.10, 260.11 and 260.21 since
January 1, 1983, which are included in State statutes and regulations are listed below.
(1) State statutes and regulations amend the definition of "manifest" and
"manifest document number" as indicated in Revision Checklist 5 and
included in Consolidated Checklist C1.
Federal Authority: RCRA §§2002(a), 3001; 40 CFR 260.10 as amended March 20, 1984
(49 FR 10490).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(2) State statutes and regulations incorporate the most recent edition and update
to Test Methods for Evaluating Solid Waste, Physical/Chemical Methods"
(SW-846) as indicated in Revision Checklists 11 and 35 and included in
Consolidated Checklist C1.
Federal Authority: RCRA §§2002{a), 3001; 40 CFR 260.11 as amended December 4, 1984
(49 FR 47390) and March 16, 1987 (52 FR 8072).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney Genera)
(3) State statutes and regulations include definitions of "boiler" and "industrial
furnace" and revise definitions of "designated facility" and "incinerator* as
indicated in Revision Checklist 13 and included In Consolidated CheckBst C1.
Federal Authority: RCRA §2002(a), 3004; 40 CFR 260.10 as amended January 4, 1985
(50 FR 614).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney Genaral
(4) State statutes and regulations define "small quantity generator" as indicated
in Revision Checklist 23 and included in Consolidated Checklist CI.
Federal Authority: RCRA §2002(a), 3001, 3002; 40 CFR 260.10 as amended March 24,
1986 (51 FR 10146).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(5) State statutes and regulations define "active life," "finaf closure,* "ftazantous
waste management unit," and "partial closure" as indicated in Revision
Checklist 24 and included in Consolidated Checklist C1.
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Federal Authority: RCRA §2002(a), 3004; 40 CFR 260.10 as amended May 2, 1986 (51
FR 16422).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(6) State statutes and regulations define "above ground tank," "ancillary
equipment," "component," "corrosion expert," "existing tank system" or
existing component," "inground tank," "installation inspector," "leak-detection
system," "new tank system" or "new tank component," "onground tank,"
"sump," "tank system," "underground tank," "unfit-for-use tank system" and
"zone of engineering control" as indicated in Revision Checklist 28 and
included in Consolidated Checklist C1.
Federal Authority: RCRA §2002(a), 3004, 3005; 40 CFR 260.10 as amended July 14,
1986 (51 FR 25422).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(7) State statutes and regulations include the definitions at 40 CFR 260.10 and
the references at 260.11(a) as applying to the land disposal restrictions (40
CFR Part 268) as indicated in Revision Checklists 34 and 39 and included in
Consolidated Checklist C1.
Federal Authority: RCRA §2002(a), 3004; 40 CFR 260.10 and 260.11(a) as amended
November 7, 1986 (51 FR 40572), July 8, 1987 (52 FR 25760) and October 27, 1987 (52
FR 41295).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(8) State statutes and regulations include the definition of "miscellaneous unit"
and revise the definition of "landfill" as indicated in Revision Checklist 45 and
included in Consolidated Checklist C1.
Federal Authority: RCRA §2002(a), 3004, 3005; 40 CFR 260.10 as amended December
10, 1987 (52 FR 46946).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(9) State statutes and regulations define "treatability study" as indicated in
Revision Checklist 49 and included in Consolidated Checklist C1.
Federal Authority: RCRA §2002(a), 3001, 3004, 3005; 40 CFR 260.10 as amended July
19, 1988 (53 FR 27290).
Citation of Laws and Regulations: Date of Enactment and Adoption
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Remarks of the Attorney General
(10) State statutes and regulations revise the definitions of "elementary
neutralization unit" and "wastewater treatment unit" as indicated in Revision
Checklist 52 and included in Consolidated Checklist C1.
Federal Authority: RCRA §2002(a), 3001, 3004, 3005; 40 CFR 260.10 as amended
September 2, 1988 (53 FR 34079).
II. IDENTIFICATION AND LISTING
Federal Authority: Statutory Authorization RCRA §3001; 40 CFR 271.9 as amended
September 22, 1986 (51 FR 33712).
A. State statutes and regulations contain a list of hazardous wastes and
characteristics for identifying hazardous waste which encompass all wastes controlled under
40 CFR Part 261 as indicated in Consolidated Checklist C2 (formerly Checklists I B and I
C), which includes the changes made by Revision Checklists 4, 7, 13, 14, 17 J, 18, 20,
21, 22, 23, 26, 29, 33, 34, 37, 41, 46, 53, 56, and 57, the specific provisions of which are
detailed further in other subsections of this Attorney General's Statement.
Federal Authority: RCRA §3001 (b); 40 CFR 261.20 through 261.33 and applicable
appendices as amended February 10, 1984 (49 FR 5308), May 10, 1984 (49 FR 19922),
January 4, 1985 (50 FR 614), January 14, 1985 (50 FR 1978), April 11, 1985 (50 FR
14216), July 15, 1985 (50 FR 28702), October 23, 1985 (50 FR 42936), December 31,
1985 (50 FR 53315), February 13, 1986 (51 FR 5327), February 25, 1986 (51 FR 6537),
March 24, 1986 (51 FR 10146), May 28, 1986 (51 FR 19320), August 6, 1986 (51 FR
28296), October 24, 1986 (51 FR 37725), November 7, 1986 (51 FR 40572), June 5, 1987
(52 FR 21306), July 10, 1987 (52 FR 26012), April 22, 1988 (53 FR 13382), September
13, 1988 (53 FR 35412), October 31, 1988 (53 FR 43878), and October 31, 1988 (53 FR
43881).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. State statute and regulations define solid and hazardous waste so as to
control all hazardous waste controlled under 40 CFR Part 261, as indicated in Consolidated
Checklist C2 (formerly Checklist I A) which includes the changes made by Revision
Checklists 8, 9, 13, 17 C, 19, 23, 28. 34 and 49.
Federal Authority: RCRA §3001; 40 CFR 261.1 through 261.4 as amended June 5, 1984
(49 FR 23284), November 13, 1984 (49 FR 44978), January 4, 1985 (50 FR 614), April 11,
1985 (50 FR 14216), August 20, 1985 (50 FR 33541), July 15, 1985 (50 FR 28702),
November 29, 1985 (50 FR 49164), November 19, 1986 (51 FR 41900), April 13, 1987 (52
FR 11819), March 24, 1986 (51 FR 10146), July 14, 1986 (51 FR 25422), November 7,
1986 (51 FR 40572), and July 19, 1988 (53 FR 27290).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
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C. fOPTlONAL: This is a reduced requirement.] State statutes and regulations
provide: 1) exemption from regulations for hazardous waste as specified at 40 CFR 261.5,
261.6, 261.7, 260.40 and 260.41, 2) variance from classification as a solid waste as
specified at 260.30, 260.31 and 260.33, or 3) variance to be classified as a boiler as
specified at 260.32 and 260.33 as indicated in Consolidated Checklists C1 and C2
(formerly Checklist I A) which include the changes made by Revision Checklists 13, 14, 17
A, 17 J, 19, 23, 31, 34 and 47.
Federal Authority: RCRA §3001; 40 CFR 260.30-260.41 and 261.5 through 261.7 as
amended January 4, 1985 (50 FR 614), January 14, 1985 (50 FR 1978), April 11, 1985
(50 FR 14216), August 20, 1985 (50 FR 33541), July 15, 1985 (50 FR 28702), November
29, 1985 (50 FR 49164), March 24, 1986 (51 FR 10146), August 8, 1986 (51 FR 28664),
November 7, 1986 (51 FR 40572), November 19, 1986 (51 FR 41900), April 13, 1987 (52
FR 11819), and July 19, 1988 (53 FR 27162).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
D. fOPTlONAL: This is a reduced requirement.] State statutes and regulations
for delisting hazardous wastes including public notice and opportunity for comment before
requests are granted or denied as indicated in Consolidated Checklist C1 which includes
the changes made by Revision Checklists 17 B and 34. The specific provisions of these
revision checklists are detailed further in this Attorney General's Statement.
Federal Authority: RCRA §2002(a), 3001; 260.20 and 260.22 as amended July 15, 1985
(50 FR 28702), November 7, 1986 (51 FR 40572), and June 27, 1989 (54 FR 27114).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
E. Specific provisions amending 40 CFR Part 261 and relevant portions of 40
CFR Part 260 since January 1, 1983, that are included in State statutes and requirements
are as follows:
(1) State statutes and regulations contain lists of hazardous waste which
encompass all wastes controlled under the following Federal regulations as
indicated in the designated Revision Checklists and included In Consolidated
Checkflst C2:
(a) Chlorinated aliphatic hydrocarbons, 40 CFR 261.31, as amended
February 10, 1984 [49 FR 5308], Revision Checklist 4.
* If a State chooses not to adopt these provisions, its statutes and regulations must make
it clear that the wastes covered by 40 CFR 261.5, 261.6 and 261.7 are subject to fufl
regulation under that State's hazardous waste regulations. If a State chooses to adopt
these provisions, its requirements must be at least as stringent as the Federal
requirements of 261.5, 261.6 and 261.7.
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(b) rOPTIONAL: This is a reduced requirement.] Warfarin and zinc
phosphide listing, 40 CFR 261.33(e) and (f), as amended May 10,
1984 [49 FR 19923], Revision Checklist 7.
(c) Dioxin wastes are listed and otherwise identified as hazardous wastes
so as to encompass all such wastes controlled under 40 CFR
261.5(e), 261.7(b), 261.30(d), 261.31, and 261.33(f), as amended
January 14, 1985 [50 FR 1978], Revision Checklist 14.
(d) TDI, DNT and TDA wastes, 40 CFR 261.32 and 261.33(f), as
amended October 23, 1985 [50 FR 42936], Revision Checklist 18.
(e) Spent solvents, 40 CFR 261.31, as amended December 31, 1985 [50
FR 53319] and January 21, 1986 [51 FR 2702], Revision Checklist
20.
(f) ED8 wastes, 40 CFR 261.32, as amended February 13, 1986 [51 FR
5330], Revision Checklist 21.
(g) Four spent solvents, 40 CFR 261.31 and 261.33(f), as amended
February 25, 1986 [51 FR 6541], Revision Checklist 22.
(h) fOPTIONAL This is a reduced requirement] Listing of spent pickle
liquor from steel finishing operations, 40 CFR 261.32, as amended
May 28, 1986 [51 FR 19320] and September 22, 1986 [51 FR 33612],
Revision Checklist 26.
(i) Listing of commercial chemical products and Appendix VIII
constituents, 40 CFR 261.33 and Appendix VIII, as amended August
6, 1986 [51 FR 28296], Revision Checklist 29; as amended July 10,
1987 [52 FR 26012], Revision Checklist 41; and as amended April 22,
1988 [53 FR 13382], Revision Checklist 46.
(j) EBDC wastes, 40 CFR 261.32, as amended on October 24, 1986 [51
FR 37725], Revision Checklist 33.
(k) fOPTIONAL This is a reduced requirement.] Generic delisting of iron
dextran (CAS No. 9004-66-4), 40 CFR 261.33(f) and Appendix VIII, as
amended October 31, 1988 [53 FR 43878], Revision Checklist 56.
(I) fOPTIONAL: This is a reduced requirement.] Generic delisting of
strontium sulfide (CAS No. 1314-96-1), 40 CFR 261.33(e) and
Appendix VIII, as amended October 31, 1988 [53 FR 43881], Revision
Checklist 57.
Federal Authority: RCRA §3001 (b).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(2) fOPTIONAL This is a reduced requirement] State statutes and regulations
define hazardous waste so as to exclude waste pickle liquor sludge
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generated by lime stabilization, but only to the extent that such waste is
excluded by 40 CFR 261.3(c)(2) as indicated in Revision Checklist 8 and
included in Consolidated Checklist C2.
Federal Authority: RCRA §3001; 40 CFR 261.3(c) as amended June 5, 1984 (49 FR
23284).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(3) fOPTIONAL: This is a reduced requirement.] State statutes and regulations
define hazardous waste so as to not exclude household waste other than
those household wastes excluded in 40 CFR 261.4(b)(1) and as indicated in
Revision Checklists 9 and 17 C and included in Consolidated Checklist C2.
Federal Authority: RCRA §3001; 40 CFR 261.4(b)(1) as amended November 13, 1984 (49
FR 44980) and July 15, 1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(4) State statutes and regulations define hazardous waste standards so as to
control all the hazardous waste controlled under 40 CFR Part 261 as
indicated in Revision Checklists 13 and 37 and inpluded in Consolidated
Checklists C1.
Federal Authority: RCRA §3001; 40 CFR Part 261 as amended January 4, 1985 (50 FR
614), April 11, 1985 (50 FR 14216), August 20, 1985 (50 FR 33541) and June 5, 1987 (52
FR 21306).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(5) State statutes and regulations regulate the wastes of generators generating
100 kg or less per month of hazardous waste and 1 kg or less per month of
acutely hazardous waste as specified in 40 CFR 261.5 and as Indicated in
Revision Checklists 23 (supercedes prior amendments by Revision Checklist
17 A), 31 (amends Revision Checklist 23) and 47 (provides technical
corrections to Checklist 23). These requirements are included in
Consolidated Checklist C2.
Federal Authority: RCRA §3001 (d); 40 CFR 261.5 as amended March 24, 1986 (51 FR
10146), August 8, 1986 (51 FR 28664) and July 19, 1988 (53 FR 27162).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(6) [This requirement applies only if States have a delisting mechanism. This
requirement is NOT OPTIONAL for such States.] State statutes and
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regulations provide authority to delist hazardous waste as indicated in
Revision Checklist 17 B and included in Consolidated Checklist C1.
(a) State statutes and regulations require that before deciding to delist a
waste, the State must consider whether any listing factor (including
additional constituents) other than those for which the waste was
listed would cause the waste to be hazardous.
(b) State statutes and regulations require that there be no new temporary
delistings without prior notice and comment All temporary delistings
received before November 18, 1984, without the opportunity for public
comment and full consideration of such comment shall lapse if not
made final by November 8, 1986.
Federal Authority: RCRA §3001 (f)(1) & (2); 40 CFR 260.20(d) and 260.22 as amended
July 15, 1985 (50 FR 28702) and June 27, 1989 (54 FR 27114).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(7) State statutes and regulations include as hazardous wastes those materials
specified in 40 CFR Part 261.33 if and when they are discarded or intended
to be discarded, when they are mixed with waste oil or used oil or other
material and applied to the land for dust suppression or road treatment or
when, in lieu of their original intended use, they are otherwise applied to the
land, they are contained in products applied to the land, they are produced
for use as a (or component of) a fuel, distributed for use as a fuel, or burned
as a fuel as indicated in Revision Checklists 17 J and 37 and included in
Consolidated Checklist C2.
Federal Authority: RCRA §3001, 3014(a); 40 CFR 261.33 as amended July 15, 1985 (50
FR 28702) and June 5, 1987 (52 FR 21306).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(8) State statutes and regulations identify waste fuels and used oil fuels as solid
wastes so as to encompass all such wastes as controlled under 40 CFR
261.3, 261.5, and 261.6 as indicated in Revision Checklist 19 and included in
Consolidated Checklist C2.
Federal Authority: RCRA §§3001, 3014(a); 40 CFR Part 261 as amended November 29,
1985 (50 FR 49164), November 19, 1986 (51 FR 41900), and April 13, 1987 (52 FR
11819).
Citation of Laws and Reputations: Date of Enactment and Adoption
Remarks of the Attorney General
(9) fOPTIONAL: This is an optional requirement] State statutes and regulations
exclude from regulation secondary materials that are reclaimed and returned
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to the original process or processes in which they were generated where
they are reused in the production process provided they meet the
requirements specified at 40 CFR 261.4(a)(8)(i)-(iv) as indicated in Revision
Checklist 28 and included in Consolidated Checklist C2.
Federal Authority: RCRA §3001; 40 CFR 261.4 as amended July 14, 1986 (51 FR 25422).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(10) State statutes and regulations require that spent industrial ethyl alcohol,
which is exported for reclamation, must be either covered by an international
agreement specified in 262.58 or the person initiating its shipment and its
transporters are subject to the requirements specified in 261.6(a)(3)(i)(A) &
(B) as indicated in Revision Checklist 31 and included in Consolidated
Checklist C2.
Federal Authority: RCRA §3017; 40 CFR 261.6(a)(3)(i) as amended August 8, 1986 (51
FR 28664).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(11) State statutes and requirements include reference to the land disposal
restrictions (as specified at 40 CFR Part 268) so as to appropriately indicate
that the hazardous waste, identified and defined as specified in 40 CFR Part
261, is also subject to this restriction as specified in Revision Checklist 34
and included in Consolidated Checklist C2.
Federal Authority: 3004(d)-(k) & (m); 40 CFR Part 261 as amended November 7, 1986 (51
FR 40572).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(12) [OPTIONAL: This is a reduced requirement.] State statutes and regulations
exempt (with certain limitations) waste samples used in small scale
treatability studies from Subtitle C regulation as indicated in Revision
Checklist 49 and included in Consolidated Checklist C2.
Federal Authority: RCRA §3001; 40 CFR 261.4(e) & (0 as amended July 19, 1988 (53 FR
27290).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(13) State statutes and regulations provide for listing of these six wastes (K064,
K065, K066, K088, K090, and K091) as indicated in Revision Checklist 53.
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Federal Authority: RCRA §3001 (b); 40 CFR 261.4(b)(7) and 261.32 as amended
September 13, 1988 (53 FR 35412).
Citation of Laws and Reputations: Date of Enactment and Adoption
Remarks of the Attorney General
III. STANDARDS FOR GENERATORS
Federal Authority: RCRA §3002; 271.10 as amended on April 1, 1983 (48 FR 14146),
June 30, 1983 (48 FR 30113), March 20, 1984 (49 FR 10490), March 26, 1984 (49 FR
11180), August 8, 1986 (51 FR 28664), and September 22, 1986 (51 FR 33712).
A. State statutes and regulations provide coverage of all generators covered by
40 CFR Part 262 and include requirements for EPA identification number, reporting and
recordkeeping, accumulation of hazardous waste for short time periods, packaging, labeling,
marking, placarding, international shipments, manifesting of hazardous waste for off-site
shipment, notification procedures for interstate shipments as indicated in Consolidated
Checklist C3 (formerly Checklist II) which includes the revisions represented by Revision
Checklists 1, 5, 12, 17 D, 17 R, 23, 28, 31, 32, 34, 39, 42 and 48.
Federal Authority: RCRA §3002; 40 CFR Part 262 as amended January 28, 1983 (48 FR
3977), March 20, 1984 (49 FR 10490), December 20, 1984 (49 FR 49568), July 15, 1985
(50 FR 28702), March 24, 1986 (51 FR 10146), July 14, 1986 (51 FR 25422), August 8,
1986 (51 FR 28664), October 1, 1986 (51 FR 35190), November 7, 1986 (51 FR 40572),
July 8, 1987 (52 FR 25760), September 23, 1987 (52 FR 35894), and July 19, 1988 (53
FR 27164).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. Specific provisions amending 40 CFR Part 262 since January 1, 1983 that
are included in State statutes and requirements are as follows:
(1) State statutes and regulations require that generators submit a biennial report
and that the biennial report contain the information in 40 CFR 262.41 (a) as
indicated in Revision Checklist 1 and Included in Consolidated Checklist C3.
Federal Authority: RCRA §3002; 40 CFR Part 262 as amended January 28, 1983 (48 FR
3977).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(2) State statutes and regulations require generators to use the national uniform
manifest as indicated in Revision Checklists 5, 17 D and 32 and included in
Consolidated Checklist C3.
Federal Authority: RCRA §§2002, 3002, 3003; 40 CFR Part 262 as amended March 20,
1984 (49 FR 10490), July 15, 1985 (50 FR 28702), and October 1, 1986 (51 FR 35190).
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Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(3) fOPTIONAL: This is a reduced requirement.] State statutes and regulations
allow generators to accumulate at the site of generation, without a permit or
interim status, as much as 55 gallons of hazardous waste or one quart of
acutely hazardous waste provided that the generator complies with the
requirements specified in §262.34(c) as indicated in Revision Checklist 12
and included in Consolidated Checklist C3.
Federal Authority: RCRA §§2002, 3002, 3004, 3005; 40 CFR 262.34(c) as amended
December 20, 1984 (49 FR 49568).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(4) State statutes and regulations require generators to submit as part of a
Biennial Report a description and certification regarding efforts taken to
minimize the amounts and toxicity of wastes as indicated in Revision
Checklists 17 D and included in Consolidated Checklist C3.
Federal Authority: RCRA §3002(a)(6), (b); 40 CFR 262.41 (a)(6)-(8) as amended July 15,
1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(5) State statutes and regulations require generators (including small quantity
generators of between 100 and 1000 kg/mo) to certify to a good faith effort
to minimize hazardous waste as specified in Revision Checklists 17 D and
32 and included in Consolidated Checklist C3.
Federal Authority: RCRA §3002(a)(6), b; 40 CFR Part 282 Appendix • Uniform Hazardous
Waste Manifest Form as amended July 15, 1985 (50 FR 28702) and October 1, 1986 (51
FR 35190).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(6) State statutes and regulations require generators and transporters of
hazardous waste destined for export outside the United States to comply with
standards equivalent to those as indicated in Revision Checklists 17 R, 31,
and 48 (with the latter providing technical corrections to Checklist 31) and
included in Consolidated Checklists C3, C5, C6 and C9.
Federal Authority: RCRA §3017; 40 CFR 262.50, 264.1, 265.1, and 270.1(c)(2)(H) as
amended July 15, 1985 (50 FR 28702), August 8, 1986 (51 FR 28664), and July 19, 1988
(53 FR 27164).
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Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney Generai
(7) State statutes and regulations provide for special generator requirements for
hazardous waste produced by small quantity generators of between 100 and
1000 kilograms/month as indicated in Revision Checklist 23 and included in
Consolidated Checklist C3.
Federal Authority: RCRA §3001 (d); 40 CFR Part 262 as amended March 24, 1986 (51 FR
10146).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney Generai
(8) State statutes and regulations require that generators who accumulate
hazardous waste on site in containers or tanks must comply with certain
sections of 40 CFR Part 265 as indicated in Revision Checklist 28 and
included in Consolidated Checklist C3.
Federal Authority: RCRA §§1006, 2002, 3001, 3002, 3010; 40 CFR 262.34 as amended
on July 14, 1986 (51 FR 25422).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(9) State statutes and regulations require that, if a waste is determined to be
hazardous, the generator must refer to the requirements specified in 40 CFR
Parts 264, 265 and 268 for possible exclusions or restrictions pertaining to
management of his specific waste as indicated in Revision Checklist 34 and
included in Consolidated Checklist C3.
Federal Authority: §3004(d)-(k) and (m); 40 CFR 262.11(d) as amended on November 7,
1986 (51 FR 40572).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(10) rOPTtONAL This is a reduced requirement] State statutes and
requirements provide that a fanner disposing of waste pesticide from Ms own
use in accordance with the requirements specified at 40 CFR 262.70 is not
subject to the land disposal restrictions as indicated in Revision Checkist 39
and included in Consolidated Checklist C3.
Federal Authority: RCRA §3004(d)-(k) and (m); 40 CFR 262.70 as amended on Juty 8,
1987 (52 FR 25760) and July 19, 1988 (53 FR 27164).
Citation of Laws and Regulations: Date of Enactment and Adoption
20
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Remarks of the Attorney General
(11) State statutes and regulations require that generators, of between 100 and
1000 kg/mo of hazardous waste, file an exception report in those instances
where the generator does not receive confirmation of delivery of his
hazardous waste to the designated facility as indicated in Revision Checklist
42 and included in Consolidated Checklist C3.
Federal Authority: RCRA §§3001 (d) and 3002(a)(5); 40 CFR Parts 262.42 and 262.44 as
amended September 23, 1987 (52 FR 35894).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
IV. STANDARDS FOR TRANSPORTERS
Federal Authority: RCRA §3003; 40 CFR 271.11 as amended on April 1, 1983 (48 FR
14146), August 8, 1986 (51 FR 28664), and September 22, 1986 (51 FR 33712).
A. State statutes and regulations provide coverage of all the transporters
covered by 40 CFR Part 263 and include requirements for EPA identification number,
recordkeeping, manifesting, and actions regarding hazardous waste discharged during
transit, as indicated in Consolidated Checklist C4 (formerly Checklist III) which includes the
changes made by Revision Checklists 23, 31 and 34.
Federal Authority: RCRA §3003; 40 CFR Part 263 as amended on March 24, '1986 (51
FR 10146), August 8, 1986 (51 FR 28664), and November 7, 1986 (51 FR 40572).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. Specific provisions amending 40 CFR Part 263 since January 1, 1983 that
are included in State statutes and requirements are as follows:
(1) State statutes and regulations provide that transporters transporting
hazardous waste from a generator who generates greater than 100 kg but
less than 1000 kg of hazardous waste in a calendar month need not comply
with the manifest and recordkeeping system requirements specified in 40
CFR 263.20 and 263.22 provided the requirements specified in 40 CFR
263.20(h)(1)-(4) are complied with as indicated in Revision Checklist 23 and
included in Consolidated Checklist C4.
Federal Authority: RCRA §3001 (d); 40 CFR Part 263 as amended March 24, 1986 (51 FR
10146).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
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(2) State statutes and regulations prohibit transporters from accepting wastes
from an exporter unless an EPA Acknowledgement of Consent is attached to
the manifest (except for transport by rail and water which must comply with
the requirements specified at 263.20(e)(2) & (f)(2)). Both documents must
accompany the waste enroute. The transporter is required to deliver a copy
ot the manifest to a U.S. Customs Official at the point where the waste
leaves the U.S., and the transporter must refuse a waste for export if he
knows the waste does not conform to the Acknowledgement of Consent.
These requirements are indicated in Revision Checklist 31 and are included
in Consolidated Checklist C4.
Federal Authority: RCRA §3017; 40 CFR 263.20 as amended August 8, 1986 (51 FR
28664).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(3) State statutes and regulations exempt, from the land disposal requirements,
transporters who store hazardous waste shipments at transfer facilities,
meeting the requirements specified in 263.12, as indicated in Revision
Checklist 34 and included in Consolidated Checklist C4.
Federal Authority: 3004(d)-(k) and (m); 40 CFR 263.12 as amended November 7, 1986
(51 FR 40572).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
V. STANDARDS FOR FACILITIES
Federal Authority: §§3004, 3004(e); 40 CFR 271.12 and 271.13(a) as amended on April 1,
1983 (48 FR 14146), and September 22, 1986 (51 FR 33712).
A. State statutes and regulations provide standards for hazardous waste
management facilities equivalent to 40 CFR Parts 264 and 266 including: 1) technical
standards for tanks, containers, waste piles, incineration, chemical, physical and biological
treatment facilities, surface impoundments, landfills and land treatment facilities, 2) financial
responsibility during faclHty operation, 3) preparedness for and prevention of discharges or
releases of hazardous waste, 4) contingency plans and emergency procedures, 5) closure
and post-closure requirements, including financial requirements ensuring that money will be
available during these periods for monitoring and maintenance, 6) ground-water monitoring,
7) security to prevent unauthorized access to the facility, 8) facility personnel training, 9)
inspections, monitoring, recordkeeping and reporting; 10) manifest requirements, and 11)
other requirements to the extent they are included in 40 CFR Parts 264 and 266. These
standards for hazardous waste management facilities are as indicated in Consolidated
Checklists C5 (formerly Checklist IV A) and C7 which include the changes made by
Revision Checklists 1, 13, 14, 16, 17 D, 17 E, 17 F, 17 G, 17 H, 17 I, 17 J, 17 K, 17 L,
19, 24, 27, 28, 30, 34, 37, 39, 40, 43, 44 B, 45, 48, 50, 52, 54, and 55.
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Federal Authority: RCRA 3004; 40 CFR Parts 264 and 266 as amended January 28, 1983
(48 FR 3977), January 4, 1985 (50 FR 614), January 14, 1985 (50 FR 1978), April 11,
1985 (50 FR 14216), April 30, 1985 (50 FR 18370), July 15, 1985 (50 FR 28702), August
20, 1985 (50 FR 33541), November 29, 1985 (50 FR 49164), May 2, 1986 (51 FR 16422),
July 11, 1986 (51 FR 25350), July 14, 1986 (51 FR 25422), August 15, 1986 (51 FR
29430), August 8, 1986 (51 FR 28556), November 7, 1986 (51 FR 40572), November 19,
1986 (51 FR 41900), April 13, 1987 (52 FR 11819), June 4, 1987 (52 FR 21010), June 5,
1987 (52 FR 21306), July 8, 1987 (52 FR 25760), July 9, 1987 (52 FR 25942), November
18, 1987 (52 FR 44314), December 1, 1987 (52 FR 45788), December 10, 1987 (52 FR
46946), July 19, 1988 (53 FR 27164), August 17, 1988 (53 FR 31138), September 2, 1988
(53 FR 34079), September 28, 1988 (53 FR 37912), and October 11, 1988 (53 FR 39720).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
[Where a State provides for interim status for facilities, analysis of the State's authority
should be included here. Model language is presented in Section B below.]
B. State statutes and regulations provide for interim status and include interim
status standards for hazardous waste management facilities covered by 40 CFR Part 265
as indicated in Consolidated Checklist C6 (formerly Checklist IV B) which includes the
changes made by Revision Checklists 1,3, 10, 13, 14, 15, 16, 17 E, 17 F, 17 H, 19, 24,
25, 27, 28, 30, 34, 36, 39, 43, 44 C, 48, 50, 52 and 54. Specific requirements are as
follows:
(1) State statutes and regulations authorize owners and operators of hazardous
waste management facilities which would qualify for interim status under the
federal program to remain in operation until a final decision is made on the
permit application;
(2) State law and regulations authorize continued operation of hazardous waste
management facilities provided that owners and operators of such fadBtfes
comply with standards at least as stringent as EPA's interim status standards
at 40 CFR Part 265; and
(3) State law and regulations assure that any facility qualifying for State interim
status continues to qualify for Federal interim status.
Federal Authority: RCRA §3005(e); 40 CFR Part 265 as amended on January 28. 1983
(48 FR 3977), November 22, 1983 (48 FR 52718), November 21, 1984 (49 FR 46094).
January 4, 1985 (50 FR 614), January 14, 1985 (50 FR 1978), April 23, 1985 (50 FR
16044), April 30, 1985 (50 FR 18370), July 15, 1985 (50 FR 28702), November 29. 1985
(50 FR 49164), November 19, 1986 (51 FR 41900), May 2, 1986 (51 FR 16422), May 28.
1986 (51 FR 19176), July 11. 1986 (51 FR 25350), July 14. 1986 (51 FR 25422). August
15, 1986 (51 FR 29430), August 8, 1986 (51 FR 28556), November 7, 1986 (51 FR
40572), March 19, 1987 (52 FR 8704), July 8, 1987 (52 FR 25760), November 18. 1987
(52 FR 44314), December 1, 1987 (52 FR 45788), July 19, 1988 (53 FR 27164), August
17, 1988 (53 FR 31138), September 2, 1988 (53 FR 34079) and September 28, 1988 (53
FR 37912).
C. Specific provisions amending 40 CFR Parts 264, 265 and 266 since January
1, 1983 which are included in State statutes and requirements are listed below. Atoo
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included are specific State statutes and regulations regarding 1) third party direct action
against insurers or guarantor of an owner/operator's financial responsibilities under certain
circumstances, 2) criminal penalties for waste fuel and used oil fuel requirement violators,
and 3) exceptions to burning and blending of hazardous waste as specified in RCRA
§§3004(q)(2)(A) & 3004(r)(2) & (3). These latter provisions are not addressed by a
Revision Checklist.
(1) State statutes and requirements provide for the requirements regarding the
biennial report, unmanifested waste report and additional reporting as
indicated in Revision Checklist 1 and included in Consolidated Checklists C5
and C6. As also indicated in these same checklists, facilities must also
submit groundwater monitoring data annually to the State Director as
specified in 40 CFR 265.94.
Federal Authority: RCRA §3004; 40 CFR Parts 264 and 265 as amended January 28,
1983 (48 FR 3977).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(2) State statutes and regulations contain requirements in which interim status
standards apply to facilities identified in 40 CFR 265.1(b) and as specified in
265.1(a) as indicated in Revision Checklists 3 and 10 and included in
Consolidated Checklist C6.
Federal Authority: RCRA §3004; 40 CFR Part 265 as amended November 22, 1983 (48
FR 52718) and November 21, 1984 (49 FR 46095).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(3) State statutes and regulations define hazardous waste and impose
management standards so as to control all the hazardous waste controlled
under 40 CFR Parts 261, 264, 265 and 266 as indicated in Revision
Checklists 13 and 37 and included in Consolidated Checklists C5, C6 and
C7.
Federal Authority: RCRA §§3001, 3004; 40 CFR Parts 261, 264, 265 and 266 as
amended January 4, 1985 (50 FR 614), April 11, 1985 (50 FR 14216), August 20, 1985
(50 FR 33541) and June 5, 1987 (52 FR 21306).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(4) State statutes and regulations contain special management standards for
facilities managing dioxin wastes and prohibitions applicable to permitted and
interim status facilities as provided in 40 CFR Parts 264 and 265 and
indicated in Revision Checklist 14. These requirements are also included in
Consolidated Checklists C5 and C6.
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Federal Authority: RCRA §3004; 40 CFR Parts 264 and 265 as amended January 14,
1985 (50 FR 1978).
Citation of Laws and Reputations; Date of Enactment and Adoption
Remarks of the Attorney General
(5) State statutes and regulations require that closure and post-closure
requirements and special requirements for containers apply to interim status
landfills as indicated in Revision Checklist 15 and included in Consolidated
Checklist C6.
Federal Authority: RCRA §3004; 40 CFR 265.310 and 265.315 as amended April 23, 1985
(50 FR 16044).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(6) fOPTIONAL: This is a reduced requirement.] State statutes and regulations
allow a variance to the two-foot freeboard requirement for surface
impoundments, allow a variance for placement of ignitabie or reactive wastes
in surface impoundments and clarify the allowable treatment mechanisms at
land treatment units as indicated in Revision Checklist 15 and included in
Consolidated Checklist C6.
Federal Authority: RCRA §3004; 40 CFR 265.222, 265.229, and 265.272 as amended
April 23, 1985 (50 FR 16044).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(7) State statutes and regulations require the use of a paint filter test to
determine the absence or presence of free liquids in either a containerized or
bulk waste as indicated in Revision Checklists 16, 17 F and 25 and included
in Consolidated Checklists C5, C6 and C9.
Federal Authority: RCRA §§3004, 3005; 40 CFR Parts 264, 265, and 270 as amended
April 30. 1985 (50 FR 18370), July 15, 1985 (50 FR 28702) and May 28, 1986 (51 FR
19176).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(8) State statutes and regulations require that the permittee, no less often than
annually, certify in the operating record 1) the existence of a program to
minimize the amount and toxicity of the generated wastes and 2) that the
proposed method of treatment, storage, or disposal minimizes present and
future threat to human health and the environment as indicated in Revision
Checklist 17 D and included in Consolidated Checklist C5.
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Federal Authority: RCRA §§3004, 3005(h); 40 CFR 264.70 and 264.73 as amended July
15, 1985 (50 FR 28702).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of tha Attorney General
(9) State statutes and regulations prohibit the land disposal of hazardous waste
prohibited under 40 CFR Parts 264 and 265 as indicated in Revision
Checklist 17 E and included in Consolidated Checklists C5 and C6. Land
disposal includes, but is not limited to, placement in landfills, surface
impoundments, waste piles, deep injection wells, land treatment facilities, salt
dome and bed formations and underground mines or caves. Deep injection
well means a well used for the underground injection of hazardous wastes
other than a well to which §7010(a) of RCRA applies.
Federal Authority: RCRA §§3004(b)-(q); 40 CFR 264.18, 265.18 as amended July 15,
1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(10) Effective on November 8, 1984 State statutes and regulations prohibit the
placement of any non-containerized or bulk liquid hazardous waste in any
salt dome or salt bed formation, any underground mine or cave except as
provided in §264.18(c) and §265.18(c) as indicated in Revision Checklist 17
E and included in Consolidated Checklists C5 and C6. Furthermore, State
statutes and regulations prohibit the placement of any other hazardous waste
in such formations until a permit is issued.
Federal Authority: RCRA §3004(b); 40 CFR 264.18 and 265.18 as amended July 15, 1985
(50 FR 28702); 40 CFR 264.600 et seg.f December 10, 1987 (52 FR 46946).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(11) State statutes and regulations contain the following requirements regarding
liquids in landfills as indicated in Revision Checklists 17 F and 25.
(a) Effective May 8, 1985, there is a ban on the placement of bulk or
non-containerized liquid hazardous waste or hazardous waste
containing free liquids in any landfill pursuant to 40 CFR 264.314 and
265.314 as amended July 15, 1985 and May 28, 1986.
(b) Effective November 8, 1985, there is a ban on the placement of non-
hazardous liquids in landfills unless the owner or operator satisfies the
criteria set forth in 40 CFR 264.314(e), 265.314(e), as amended July
15, 1985 and May 28, 1986.
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(c) Bulk or non-containerized liquid wastes or wastes containing free
liquids may be placed in a landfill prior to May 8, 1985, only if the
requirements of 40 CFR 264.314(a) and 265.314(a) are met.
Federal Authority: §3004(c); 40 CFR 264.314, 265.314 and 270.21(h) as amended July 15,
1985 (50 FR 28702) and May 28, 1986 (51 FR 19176).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(12) State statutes and regulations prohibit the use of waste oil or other materials
contaminated with hazardous wastes (except ignitable wastes) as a dust
suppressant as indicated in Revision Checklist 17 G and as included in
Consolidated Checklist C7.
Federal Authority: RCRA §3004(1); 40 CFR 266.23 as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(13) State statutes and regulations require that new units, expansions, and
replacements of interim status waste piles meet the requirements for a single
liner and leachate collection system in regulations applicable to permitted
waste piles as indicated in the Revision Checklist 17 H and included in
Consolidated Checklist C6.
Federal Authority: RCRA §3015(a); CFR 265.254.
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(14) State statutes and regulations require that:
(a) New units, expansions, and replacement units at interim status
landfills and surface impoundments and permitted landfills and surface
impoundments meet the requirements for double liners and leachate
collection systems applicable to new permitted landfills and surface
impoundments in 40 CFR 264.221 and 264.301 and in 40 CFR
265.221 and 265.301 as indicated in Revision Checklist 17 H and
included in Consolidated Checklists C5 and C6.
(b) [OPTIONAL: This is a reduced requirement.] Facilities which comply
in good faith need not retrofit at permit issuance unless the liner is
leaking as provided in §§264.221, 264.301, 265.221 and 265.301 as
indicated in Revision Checklist 17 H and included in Consolidated
Checklist C6.
(c) fOPTlONAL: This is a reduced requirement.] Variances from the
above requirements are optional. However, the availability of such
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variances is restricted as provided in §§264.221, 264.301, 265.221
and 265.301 as indicated in Revision Checklist 17 H and included in
Consolidated Checklists C5 and C6.
Federal Authority: RCRA §3015(b); 40 CFR 264.221, 264.301, 265.221 and 265.301 as
amended July 15, 1985 (50 FR 28702).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(15) State statutes and regulations provide that the §3004 groundwater monitoring
requirements applicable to surface impoundments, waste piles, land treatment
units and landfills shall apply whether or not such units are located above
the seasonal high water table, have two liners and a leachate collection
system or have liners that are periodically inspected, as indicated in Revision
Checklist 17 I and included in Consolidated Checklist C5.
Federal Authority; RCRA §3004(p); 40 CFR 264.222, 264.252, 264.253, and 264.302 as
amended July 15, 1985 (50 FR 28702).*
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(16) fOPTIONAL: This is a reduced requirement.] State statutes and regulations
may allow variances from the ground-water monitoring requirements as
provided in §3004(p). However, those variances must be restricted as
provided in RCRA §3004(p) as indicated in Revision Checklist 17 I and
included in Consolidated Checklist C5.
Federal Authority: RCRA §3004(p); 40 CFR 264.90(b) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(17) State statutes and regulations provide the following requirements:
(a) The burning of fuel containing hazardous waste in a cement kiln is
prohibited except as specified in 40 CFR 266.31 and Revision
Checklist 17 J and included in Consolidated Checklist C7.
Federal Authority: RCRA §3004(q); 40 CFR 266.31 as amended July 15, 1985 (50 FR
28702).
* Note these sections of code were reserved by Revision Checklist 17 I. The cited
sections of 40 CFR Part 264 contained a series of exemptions from Subpart F
groundwater protection requirements.
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Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(b) Fuels containing hazardous waste and all persons who produce, distribute
and market fuel containing hazardous wastes must be regulated as indicated
in Revision Checklists 17 J and 17 K and included in Consolidated Checklist
C7.
Federal Authority: RCRA §§3004(q)-(s); 40 CFR 266.31, 266.34 as amended July 15,
1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(18) fOPTlONAL: This is a reduced requirement.] State statutes and regulations provide
exceptions to the burning and blending of hazardous waste as specified in
§§3004(q)(2)(A) and 3004(r)(2) and (3).
Federal Authority: RCRA §§3004(q)(2)(A) and 3004(r)(2) & (3).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(19) State statutes and regulations contain the following corrective action requirements as
indicated in Revision Checklist 17 L:
(a) Corrective action is required for releases of hazardous waste or constituents
from any solid waste management unit at a facility seeking a permit,
regardless of when the waste was placed in the unit, in all permits issued
after November 8, 1984.
Federal Authority: RCRA §3004(u); 40 CFR 264.90 and 264.101 as amended July 15,
1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(b) Corrective action is required beyond a facility's boundary, in accordance with
RCRA §3004(v). (States now may impose these requirements through a
permit or a corrective action order. Once EPA promulgates the regulations
required by RCRA §3004(v), States will need authority to impose corrective
action in a permit following the §3004(v) regulations.)
Federal Authority: RCRA §3004(v)(1).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
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(c) Corrective action is required beyond a facility's boundary in accordance with
§3004(v) for all landfills, surface impoundments and waste pile units
(including any new units, replacements of existing units or lateral expansions
of existing units) which receive hazardous waste after July 26, 1982.
Federal Authority: RCRA §3004(v)(2).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(d) There is evidence of financial responsibility for the completion of corrective
action on- and off-site.
Federal Authority: RCRA §§3004(a)(6); (u); 40 CFR 264.90 and 264.101 as amended July
15, 1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(20) State statutes and regulations require landfills, surface impoundments, land treatment
units, and waste piles that received waste after July 26, 1982 and which qualify for
interim status to comply with the groundwater monitoring, unsaturated zone
monitoring, and corrective action requirements applicable to new units at the time of
permitting as indicated in Revision Checklist 17 L
Federal Authority: RCRA §3005(i); 40 CFR 264.90(a) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(21) State statutes and regulations contain special management standards for generators,
transporters, marketers and burners of hazardous waste and used oil burned for
energy, recovery in boilers, and industrial furnaces, as provided in 40 CFR 264.340,
265.340, 266.30-35 and 266.40-45 as indicated in Revision Checklist 19 and
included in Consolidated Checklists C5, C6 and C7.
Federal Authority: RCRA §3001, 3004, 3014(a); 40 CFR Parts 264, 265 and 266 as
amended November 29, 1985 (50 FR 49164), November 19, 1986 (51 FR 41900) and April
13, 1987 (52 FR 11819).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(22) State statutes and regulations provide the authority to obtain criminal penalties for
violations of the waste fuel and used oil fuel requirements, as provided in 40 CFR
266.40-45.
Federal Authority: §3006(h), §3008(d), 3014; 40 CFR 271.16.
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Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(23) State statutes and regulations require compliance with closure/post-closure and
financial responsibility requirements applicable to owners and operators of hazardous
waste treatment, storage and disposal facilities, as indicated in Revision Checklists
24, 36, and 45 and included in Consolidated Checklists C5 and C6.
Federal Authority: RCRA §§3004 and 3005; 40 CFR Parts 264 and 265 as amended May
2, 1986 (51 FR 16422), March 19, 1987 (52 FR 8704) and December 10, 1987 (52 FR
46946).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(24) fOPTIONAL: This is a reduced requirement.] State statutes and regulations allow
qualified companies that treat, store or dispose of hazardous waste to use a
corporate guarantee to satisfy liability assurance requirements as indicated in
Revision Checklists 27 and 43 and included in Consolidated Checklists C5 and C6.
Federal Authority: RCRA §§2002, 3004, and 3005; 40 CFR 264.147, 264.151, and
265.147 as amended July 11, 1986 (51 FR 25350) and November 18, 1987 (52 FR
44314).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(25) State statutes and regulations require owners/operators of facilities that generate,
treat or store hazardous waste in tank systems to comply with tank system
standards equivalent to those indicated in Revision Checklists 28 and 52 and
included in Consolidated Checklists C5 and C6.
Federal Authority: RCRA §§1006, 2002, 3001-3007, 3010, 3014, 3017-3019 and 7004; 40
CFR Parts 264 and 265 as amended July 14, 1986 (51 FR 25422), August 15, 1986 (51
FR 29430) and September 2, 1988 (53 FR 34079).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(26) State statutes and regulations require facilities who generate waste to provide
information in their biennial reports regarding efforts taken to minimize the amount
and toxicity of wastes and the results of such efforts as specified in 40 CFR
264.75(h)-(J) and 265.75(h)-(J). These requirements are indicated in Revision
Checklist 30 and included in Consolidated Checklists C5 and C6.
Federal Authority: RCRA §3004; 40 CFR 264.75 and 265.75 as amended August 8, 1986
(51 FR 28556).
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Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(27) State statutes and regulations provide hazardous waste facility requirements
regarding land disposal restrictions as indicated in Revision Checklists 34, 39, and
50 and Included in Consolidated Checklists C5, C6 and C7.
Federal Authority: RCRA §3004(d)-(k) and (m); 40 CFR Parts 264, 265 and 266 as
amended on November 7, 1986 (51 FR 40572), June 4, 1987 (52 FR 21010), July 8, 1987
(52 FR 25760), and August 17, 1988 (53 FR 31138).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(28) State statutes and regulations provide that with regard to ground-water monitoring,
all land based hazardous waste treatment, storage, and disposal facilities analyze
for a specified core list (Part 264, Appendix IX) of chemicals plus those chemicals
specified by the Regional Administrator on a site-specific basis as indicated in
Revision Checklist 40 and included in Consolidated Checklists C5 and C9.
Federal Authority: RCRA §§1006, 2002(a), 3001, 3004, and 3005; 40 CFR Parts 264.98,
264.99 and Appendix IX of Part 264, and 270.14 as amended July 9, 1987 (52 FR 25942).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(29) State statutes and regulations require that owners and operators of hazardous waste
treatment storage and disposal facilities (including permit-by-rule facilities subject to
264.101) institute corrective action beyond the facility boundary to protect human
health and the environment unless the owner/operator is denied access to adjacent
lands despite the owner/operator's best efforts, as indicated in Revision Checklist 44
B and included in Consolidated Checklist C5.
Federal Authority: RCRA §3004(v); 40 CFR 264.100(e) and 264.101(c) as amended
December 1, 1987 (52 FR 45788).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(30) State statutes and regulations do not exempt underground injection wells from
interim status requirements if the only permit issued for these wells was a permit
issued under either the Safe Drinking Water Act or the Underground Injection
Control Program, as indicated in Revision Checklist 44 C and included in
Consolidated Checklist C9.
Federal Authority: RCRA §3004(u); 40 CFR 265.1(c)(2) as amended December 1, 1987
(52 FR 45788).
Citation of Laws and Regulations; Date of Enactment and Adoption
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Remarks of the Attorney General
(31) State statutes and regulations require that the following be recorded, as it becomes
available, and maintained in the operating record until facility closure, as indicated in
Revision Checklist 45: monitoring, testing or analytical data and corrective action
where required by Subpart F and §§264.226, 264.253, 264.254, 264.276, 264.278,
264.280, 264.303, 264.309, 264.347, and 264.602. These requirements are also
included in Consolidated Checklist C5.
Federal Authority: RCRA §§3004 and 3005; 40 CFR 264.73(b) as amended December 10,
1987 (52 FR 46946).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(32) State statutes and regulations require that miscellaneous units comply with Subpart
F regulations regarding releases from solid waste management units when
necessary to comply with §264.601 through 264.603 as indicated in Revision
Checklist 45 and included in Consolidated Checklist C5.
Federal Authority: RCRA 3004(u); 40 CFR 264.90(d) as amended December 10, 1987 (52
FR 46946).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(33) State statutes and regulations require environmental performance standards;
monitoring, testing, analytical data, inspection, response and reporting procedures;
and post-closure care for miscellaneous units as indicated in Revision Checklist 45
and included in Consolidated Checklist C5.
Federal Authority: RCRA §§3004 and 3005; 40 CFR 264.600, 264.601, 264.602, and
264.603 as amended December 10, 1987 (52 FR 46946).
Citation of Laws and Reputations: Date of Enactment and Adoption
Remarks of the Attorney General
(34) fOPTlONAL This is a reduced requirement.] State statutes and regulations include
changes to facility requirements regarding permit modifications relative to the
requirements specified in 264.54, 264.112(c), 264.118(a), 265.112(c) and 265.118(d)
as indicated in Revision Checklist 54 and included in Consolidated Checkfists C5
and C6.
Federal Authority: RCRA §§3004, 3005; 40 CFR 264.54, 264.112(c), 264.118(d),
265.112(c) and 265.118(d) as amended September 28, 1988 (53 FR 37912).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
33
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(35) State statutes and regulations specify statistical methods, sampling procedures, and
performance standards that can be used in groundwater monitoring procedures to
detect groundwater contamination at permitted hazardous waste facilities as
indicated in Revision Checklist 55 and included in Consolidated Checklist C5.
Federal Authority: RCRA §§1006, 2002(a), 3004 and 3005; 40 CFR 264.91, 264.92,
264.97, 264.98 and 264.99 as amended October 11, 1988 (53 FR 39720).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(36) State statutes and regulations allow direct action by third parties against the insurer
or guarantor of an owner/operator's financial responsibilities if an owner/operator is
in bankruptcy reorganization or arrangement or where (with reasonable diligence)
jurisdiction in any State or Federal Court cannot be obtained over an owner/operator
likely to be solvent at time of judgment.
Federal Authority: RCRA §3004(t).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
VI. LAND DISPOSAL RESTRICTIONS
Federal Authority: RCRA §§1006, 2002(a), 3001, 3004
A. State statutes and regulations restrict the land disposal of hazardous wastes as
specified in 40 CFR Part 268 and indicated in Consolidated Checklist C8 which includes
the provisions of Revision Checklists 34, 39, 50, 62 and 63.
Federal Authority: RCRA §3004(d)-(k) and (m); 40 CFR Part 268 as amended November
7, 1986 (51 FR 40572), June 4, 1987 (52 FR 21010), July 8, 1987 (52 FR 25760), October
27, 1987 (52 FR 41295), August 17, 1988 (53 FR 31138), February 27, 1989 (54 FR
8264), May 2, 1989 (54 FR 18836), and June 23, 1989 (54 FR 26594).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. Specific provisions affecting 40 CFR Part 268 which are included in State statutes
and regulations are listed beiow.
(1) State statutes and regulations provide for the restrictions of the land disposal of
certain spent solvents and dioxin-containing hazardous wastes as Indicated in
Revision Checklists 34, 39 and 50 and included in Consolidated Checklist C8.
Federal Authority: §3004(d)-(k) and (m); 40 CFR Part 268 as amended on November 7,
1986 (51 FR 40572), June 4, 1987 (52 FR 21010), July 8, 1987 (52 FR 25760), and
August 17, 1988 (53 FR 31138).
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Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(2) State statutes and regulations for restricting the disposal of certain California list
wastes, including liquid hazardous waste containing polychlorinated biphenyls (PCBs)
above specified concentrations, and hazardous waste containing halogenated organic
compounds (HOCs) above specified concentrations as indicated in Revision
Checklists 39 and 50 and included in Consolidated Checklist C8.
Federal Authority: RCRA §3004(d)-(k) and (m); 40 CFR Part 268 as amended on July 8,
1987 (52 FR 25760), October 27, 1987 (52 FR 41295) and August 17, 1988 (53 FR
31138).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(3) State statutes and regulations for specific treatment standards and effective dates
for certain wastes from the "First Third" of the schedule of restricted wastes listed in
40 CFR 268.10 as well as land disposal restrictions for those First Third wastes for
which a treatment standard is not established as indicated in Revision Checklists 50
and 62 and included in Consolidated Checklist C8.
Federal Authority: RCRA §3004 (d)-(k) and (m); 40 CFR Part 268 as amended on August
17, 1988 (53 FR 31138), February 27, 1989 (54 FR 8264) and May 2, 1989 (54 FR
18836).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(4) State statutes and regulations for certain treatment standards and prohibition
effective dates for certain Second Third wastes and for imposing the "soft hammer*
provisions of 40 CFR 268.8 on Second Third wastes for which the Agency is not
establishing treatment standards as indicated in Revision Checklist 63 and included
in Consolidated Checklist C8.
Federal Authority: RCRA §3004(d)-(k) and (m); 40 CFR Part 268 as amended June 23,
1989 (54 FR 26594).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(5) State statutes and standards for treatment standards and effective dates for certain
First Third "soft hammer" wastes as well as for certain wastes originally contained in
the Third Third of the Schedule as indicated in Revision Checklist 63.
Federal Authority: RCRA §3004(d)-(k) and (m); 40 CFR Part 268 as amended June 23,
1989 (54 FR 26594).
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Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
VII. REQUIREMENTS FOR PERMITS
Federal Authority: RCRA §§3005, 7004; 40 CFR 271.13 and 271.14 as amended April 1,
1983 (48 FR 14146), June 30, 1983 (48 FR 30113), September 22, 1986 (51 FR 33712).
A. State statutes and regulations provide permit requirements consistent with the
specifications of 271.13 and 271.14 as indicated in Consolidated Checklist C9 (formerly
Checklist V) which includes the amendments of Revision Checklists 1, 2, 6, 11, 14, 17 D,
17 F, 17 L, 17 M, 17 N, 17 O, 17 P, 17 Q, 17 S, 23, 24, 28, 34, 35, 38, 39, 40, 44 A, 44
C, 44 D, 44 E, 44 F, 44 G, 45, 48, 52, 54, 59, 60 and 61.
[Where there are no State regulations covering one or more of the procedural requirements
designated in Consolidated Checklist C9, and the State has agreed in the MOA to follow
equivalent requirements, the Attorney General's Statement must provide a discussion of the
State's authority (1) to enter into such an agreement and (2) to carry out the agreement.
This discussion should include an explanation of why (under any State administrative
procedure act) the particular requirements the State has agreed to follow in the issuance of
all hazardous waste permits need not be in the form of rules. Also, States need not use a
two-part permit application process. The State application process must, however, require
information in sufficient detail to satisfy the requirements of §§270.13 through 270.29.]
Federal Authority: RCRA §§3005, 7004; 40 CFR Parts 124 and 270 as amended January
28, 1983 (48 FR 3977), September 1, 1983 (48 FR 39611), April 24, 1984 (49 FR 17716),
December 4, 1984 (49 FR 47390), January 14, 1985 (50 FR 1978), July 15, 1985 (50 FR
28702), March 24, 1986 (51 FR 10146), May 2, 1986 (51 FR 16422), July 14, 1986 (51
FR 25422), August 15, 1986 (51 FR 29430), November 7, 1986 (51 FR 40572), March 16,
1987 (52 FR 8072), June 22, 1987 (52 FR 23447), September 9, 1987 (52 FR 33936),
July 8, 1987 (52 FR 25760), July 9, 1987 (52 FR 25942), December 1, 1987 (52 FR
45788), December 10, 1987 (52 FR 46946), July 19, 1988 (53 FR 27164), September 2,
1988 (53 FR 34079), September 28, 1988 (53 FR 37912), October 24, 1988 (53 FR
41649), January 9, 1989 (54 FR 615), January 30, 1989 (54 FR 4286), and March 7, 1989
(54 FR 9596).
B. Specific provisions amending 40 CFR since January 1, 1983 that are included in
State statutes and requirements as indicated below. Also included are requirements for
surface impoundments regarding RCRA 3005(j)(6)(A), 3005(j)(2)-(9) and 3005(j)(11). These
latter requirements are not covered by a checklist
(1) State statutes and regulations requiring 1) the Director to prepare on a biennial
basis summary information on the quantities and types of hazardous waste
generated, transported, treated, stored and disposed during the preceding odd
numbered year, and 2) that the biennial report must be submitted as specified in the
permit and must cover facility activities during odd-numbered calendar years. These
requirements are indicated in Revision Checklist 1 and included in Consolidated
Checklist C9.
Federal Authority: RCRA §§3002, 3004; 40 CFR 270.5 and 270.30 as amended January
28, 1983 (48 FR 3977).
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Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(2) State statutes and regulations require the permittee to take steps to minimize
releases to the environment in accordance with 40 CFR Part 270.30(d) as indicated
in Revision Checklist 2 and included In Consolidated Checklist C9.
Federal Authority: RCRA 3005(c); 40 CFR Part 270 as amended September 1, 1983 (48
FR 39611).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(3) fOPTIONAL: This is a reduced requirement.] Facility owners or operators are given
the opportunity to cure deficient Part A applications in accordance with 40 CFR
270.70(b) before failing to qualify for interim status as indicated in Revision Checklist
6 and included in Consolidated Checklist C9.
Federal Authority: RCRA §3005; 40 CFR Part 270 as amended April 24, 1984 (49 FR
17716).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(4) State statutes and regulations incorporating corrections to the EPA manual Test
Methods for Evaluating Solid Waste, Physical/Chemical Methods" as indicated by
Revision Checklists 11 and 35 and included in Consolidated Checklist C9.
Federal Authority: RCRA §§2002, 3001; 40 CFR 270.6(a) as amended December 4, 1984
(49 FR 47390) and March 16, 1987 (52 FR 8072).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(5) State statutes and regulations require special permitting standards for facilities
managing dioxin wastes as indicated In Revision Checklist 14 and included in
Consolidated Checklist C9.
Federal Authority: RCRA §§3001, 3005; 40 CFR 270.14, 270.16, 270.18, and 270.21 as
amended January 14, 1985 (50 FR 1978).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(6) State statutes and regulations 1) address record retention, 2) treat as having interim
status those existing facilities that become subject to RCRA due to a statutory or
regulatory change, and 3) restrict interim status from any facilities previously denied
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a hazardous waste permit or that had their authority to operate a facility under
RCRA terminated as indicated in Revision Checklist 17 D and included in
Consolidated Checklist C9.
Federal Authority: RCRA §3005; 40 CFR 270.30(j)(2) and 270.70(a) & (c) as amended
July 15, 1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(7) State statutes and regulations require that if bulk or non-containerized waste or
wastes containing free liquids is to be landfilled prior to May 8, 1985, an explanation
of how the requirements of 264.314(a) will be complied with will be submitted with
the Part B information as indicated in Revision Checklist 17 F and included in
Consolidated Checklist C9.
Federal Authority: RCRA §§3004, 3005; 40 CFR 270.21(h) as amended July 15, 1985 (50
FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(8) State statutes and regulations require that in regard to permits by rules UIC and
NPDES permits issued after November 8, 1984, must comply with the requirements
specified in 264.101 as specified in Revision Checklist 17 L and included in
Consolidated Checklist C9.
Federal Authority: RCRA §3004; 40 CFR 270.60 as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(9) rOPTIONAL: This is a reduced requirement.] State statutes and regulations allow a
facility (1) to construct an approved TSCA facility for burning PCBs without first
obtaining a RCRA permit and (2) to subsequently apply for a RCRA permit in
accordance with Revision Checklist 17 M and included in Consolidated Checklist C9.
Federal Authority: RCRA §3005(a); 40 CFR 270.10(f)(3) as amended July 15, 1985 (50
FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(10) State statutes and regulations require review of land disposal permits every five
years and modification of such permits as. necessary to assure compliance with the
requirements in Parts 124, 260 through 266, and 270, as indicated in Revision
Checklist 17 N and included in Consolidated Checklist C9.
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Federal Authority: RCRA §3005(c)(3); 40 CFR 270.41, 270.50 as amended July 15, 1985
(50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(11) State statutes and regulations require permits to contain any conditions necessary to
protect human health and the environment in addition to any conditions required by
regulations as indicated in Revision Checklist 17 O and included in Consolidated
Checklist C9.
Federal Authority: RCRA §3005(c)(3); 40 CFR 270.32(b) as amended July 15, 1985 (50
FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(12) State statutes and regulations require that:
(a) For land disposal facilities granted interim status prior to 11/8/84, interim
status terminates 11/8/85 unless a Part B application and certification of
compliance with applicable groundwater monitoring and financial responsibility
requirements are submitted by 11/8/85, as indicated in Revision Checklist 17
P and included in Consolidated Checklist C9.
Federal Authority: RCRA §3005(e); 40 CFR 270.73(c) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(b) For land disposal facilities in existence on the effective date of statutory or
regulatory changes under this Act that render the facility subject to the
requirement to have a permit and which is granted interim status, interim
status terminates 12 months after the date the facility first becomes subject
to such permit requirement unless a Part B application and certification of
compliance with applicable groundwater monitoring and financial responsibility
requirements are submitted by that date as indicated in Revision Checklist 17
P and included in Consolidated Checklist C9.
Federal Authority: RCRA §3005(e); 40 CFR 270.73(d) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(c) Interim status terminates for incinerator facilities by 11/8/89 unless the
owner/operator submits a Part B application by 11/8/86 as indicated in
Revision CheckHst 17 P and included in Consolidated Checklist C9.
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Federal Authority: RCRA §3005(c)(2)(C); 40 CFR 270.73(e) as amended July 15, 1985 (50
FR 28702).
Citation of Daws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(d) Interim status terminates for any facility other than a land disposal or an
incineration facility by 11/8/92 unless the owner/operator submits a Part 6
application by 11/8/88 as indicated in Revision Checklist 17 P and included
in Consolidated Checklist C9.
Federal Authority: RCRA §3005(c)(2)(C); 40 CFR 270.73(f) as amended July 15, 1985 (50
FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(13) rOPTIONAL: This is a reduced requirement.] State statutes and regulations allow
facilities to qualify for interim status if they (1) are in existence on the effective date
of statutory or regulatory changes that render the facility subject to the requirement
to have a permit and (2) comply with §270.70(a) as indicated in Revision Checklist
17 P and included in Consolidated Checklist C9.
Federal Authority: RCRA §3005(e); 40 CFR 270.70(a) as amended July 15, 1985 (50 FR
28702).
.Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(14) State statutes and regulations provide that facilities may not qualify for interim status
under the State's analogue to Section 3005(e) if they were previously denied a
Section 3005(c) permit or if authority to operate the facility has been terminated as
indicated in Revision Checklist 17 P and Consolidated Checklist C9. (Also see
Subsection VII B6.)
Federal Authority: RCRA §3005(c)(3); 40 CFR 270.70(c) as amended July 15. 1985 (50
FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(15) rOPTiONAL: This is a reduced requirement] State statutes and regulations aflow
the issuance of a one-year research, development and demonstration permit
(renewable 3 times) for any hazardous waste treatment facility which proposes an
innovative and experimental hazardous waste treatment technology or process not
yet regulated as indicated in Revision Checklist 17 Q and included in ConsoSdated
Checklist C9. If adopted, however, the State must require the facility to meet
RCRA's financial responsibility and public participation requirements and retain
40
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authority to terminate experimental activity if necessary to protect health or the
environment.
Federal Authority: RCRA §3005(g); 40 CFR 270.65 as amended July 15, 1985 (50 FR
28702)
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(16) State statutes and regulations require:
(a) Surface impoundments in existence on November 8, 1984 [or subsequently
becoming subject to RCRA pursuant to §3005(j)(6)(A) or (B)] to comply with
the double liner, leachate collection, and groundwater monitoring requirements
applicable to new units by November 8, 1988 [or the date specified in
§3005(j)(6)(A) or (B)] or to stop treating, receiving, or storing hazardous
waste, unless the surface impoundment qualifies for a special exemption
under §3005(j).
Federal Authority: RCRA §3005(j)(6)(A).
Citation of Laws and Regulations: Date of Enactment and Adoption
Rematks of the Attorney General
(b) Surface impoundments to comply with the double liner, leachate collection
and ground-water monitoring requirements if the Agency allows a hazardous
waste prohibited from land disposal under §3004(d), (e) or (g) to be placed
in such impoundments.
Federal Authority: RCRA §3005(j)(11).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(c) fOPTlONAL: This is a reduced requirement.] State statutes and regulations
may allow variances from the above requirements as provided in RCRA
§3005(j)(2-9) and (13). However, the availability of such variances must be
restricted as provided in RCRA §3005(j).
Federal Authority: RCRA §3005(j)(2-9).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(17) State statutes and regulations require permit applicants for landfills or surface
impoundments to submit exposure information as indicated in Revision Checklist 17
S and included in Consolidated Checklist C9.
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Federal Authority: RCRA §3019(a); 40 CFR 270.10(j) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(18) State statutes and regulations require that generators, generating greater than 100
kg but less than 1000 Kg of hazardous waste In a calendar month, who treat, store
or dispose of these wastes on-site must submit their Part A application no later than
March 24, 1987, as indicated in Revision Checklist 23 and included in Consolidated
Checklist C9.
Federal Authority: RCRA §3001 (d); 40 CFR Part 270 as amended March 24, 1986 (51 FR
10146).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(19) State statutes and regulations require the following as indicated in Revision
Checklist 24 and included In Consolidated Checklist C9. (Also see Subsection VII
B(35) and (36).)
(a) Documentation in the Part B application that the notice in the deed required
under §264.119 has been filed for facilities with hazardous waste disposal
units closed prior to the submission of the application.
(b) Demonstration of financial assurance must be Included with the submission of
the Part B application, or at least 60 days prior to the initial receipt of
hazardous waste, whichever is later.
(c) When there is a change in ownership or control of a facility, the new owner
or operator must demonstrate financial assurance within six months of the
ownership transfer. The old owner or operator is responsible for financial
assurance obligations if the new owner or operator fails to meet his
. obligations.
Federal Authority: RCRA §3005; 40 CFR 270.14(b)(14), (15) & (16), 270.42(d) and
270.72(a)(4) as amended May 2, 1986 (51 FR 16422).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(20) State statutes and regulations require general and specific Part B information
requirements as indicated in Revision Checklist 28 and included in Consolidated
Checklist C9. Additionally, as indicated in these checklists, changes, made solely to
comply with 265.193 for tanks and containers during interim status, do not constitute
reconstruction as specified in 270.72(e). (Also see Subsection VII B (35) and (36)).
Federal Authority: RCRA §3005; 40 CFR 270.14, 270.16 and 270.72 as amended July 14,
1986 (51 FR 25422) and August 15, 1986 (51 FR 29430).
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Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(21) State statutes and regulations make the following requirements: 1) a copy of the
notice of approval must be submitted in the Part B application for disposal facilities
subject to a case-by-case extension under 268.5 or a petition has been approved
under 268.6, and 2) allow, as a minor permit modification, treatment of hazardous
wastes not previously specified in the permit under four specified situations. These
requirements are indicated in Revision Checklist 34 and included in Consolidated
Checklist C9.
Federal Authority: RCRA §3004(d)-(k) and (m); 40 CFR Part 270 as amended November
7, 1986 (51 FR 40572).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(22) State statutes and regulations provide for additional information and engineering
feasibility plan requirements regarding groundwater contamination detected at the
time of Part B permit application as indicated in Checklist 38 and included in
Consolidated Checklist C9.
Federal Authority: RCRA §§3004, 3005; 40 CFR 270.14 as amended June 22, 1987 (52
FR 23447) and September 9, 1987 (52 FR 33936).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(23) fOPTIONAL: This is a reduced requirement.] State statutes and regulations allow
owners or operators to use the minor modification process for changes made to
treat or store restricted wastes in tanks or containers to comply with the 40 CFR
Part 268 land disposal restrictions provided the requirements of 270.42(o) and (p)
are met as indicated in Revision Checklist 39 and included in Checklist C9.
Federal Authority: RCRA §3004(d)-(k) and (m); 40 CFR 270.42(o) & (p) as amended July
8, 1987 (52 FR 25760).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(24) State statutes and regulations provide for changes during interim status to treat or
store in containers or tanks hazardous waste subject to land disposal restrictions
when specified conditions are met as indicated In Revision Checklist 39 and
included in Consolidated Checklist C9.
Federal Authority: RCRA §3004(d)-(k) and (m); 40 CFR 270.72(e) as amended Juty 8.
1987 (52 FR 25760).
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Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(25) State statutes and regulations require owners and operators of facilities seeking
permits to provide descriptive information on the solid waste management units and
all available information pertaining to any releases from the units as indicated in
Revision Checklist 44 A and included in Consolidated Checklist C9.
Federal Authority: RCRA §3004(u); 40 CFR 270.14 as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(26) State statutes and regulations require UIC facility owners/operators to submit
information related to corrective action with their UIC applications as indicated in
Revision Checklist 44 C and included in Consolidated Checklist C9.
Federal Authority: RCRA §3004(u); 40 CFR 270.60(b)(3) as amended December 1, 1987
(52 FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(27) State statutes and regulations allow the permit granting agency to initiate
modifications to a permit without first receiving a request from the permittee, in
cases where statutory changes or new or amended regulatory standards or judicial
decisions affect the basis of the permit as indicated in Revision Checklists 44 D and
54 and included in Consolidated Checklist C9.
Federal Authority: RCRA §3005(c); 40 CFR 270.41(a)(3) as amended December 1, 1987
(52 FR 45788) and September 28, 1988 (53 FR 37912).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(28) State statutes and regulations require that permittees must comply with new
requirements imposed by the land disposal restrictions promulgated under Part 268
even when there are contrary permit conditions, as indicated in Revision Checklist
44 E and included in Consolidated Checklist C9.
Federal Authority: RCRA §3006(g); 40 CFR 270.4(a) as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
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(29) State statutes and regulations require information from permit applicants concerning
permit conditions necessary to protect human health and the environment as
indicated in Revision Checklist 44 F and included in Consolidated Checklist C9.
Federal Authority: RCRA §3005(c); 40 CFR 270.10(k) as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(30) State statutes and regulations require post-closure permits for all landfills, surface
Impoundments, waste piles and land treatment units receiving hazardous waste after
July 26, 1982, unless closure by removal as provided under 270.1(c)(5) and (6) can
be demonstrated as indicated in Revision Checklist 44 G and included In
Consolidated Checklist C9.
Federal Authority: RCRA §3005(i); 40 CFR 270.1(c) as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(31) State statutes and regulations require that all owners and operators of units that
treat, store, or dispose of hazardous waste in miscellaneous units must comply with
the general application requirements (including Part A permit requirements), the Part
B general application requirements of §270.14, and specific Part B information
requirements for miscellaneous units as Indicated in Revision Checklists 45 and 59
and included in Consolidated Checklist C9.
Federal Authority: RCRA §§3004 and 3005; 40 CFR 264.600, 270.14 and 270.23 as
amended December 10, 1987 (52 FR 46946) and January 9, 1989 (54 FR 615).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(32) State statutes and regulations incorporate the revisions to the definition of
"elementary neutralization unit" and "wastewater treatment unit" as indicated in
Revision Checklist 52 and included in Consolidated Checklist C9.
Federal Authority: RCRA §3005; 40 CFR 270.2 as amended September 2, 1988 (53 FR
34079).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(33) fOPTIONAL; This is a reduced requirement] State statutes and regulations provide
owners and operators more flexibility to change specified permit conditions, to
expand public notification and participation opportunities, and to allow for expedited
approval if no public concern exists for a proposed permit modification.
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Owner/operator requested permit modifications are categorized into three classes
with administrative procedures for approving modifications established in each class.
These changes are as indicated in Revision Checklist 54 and included in
Consolidated Checklist C9.
Federal Authority: RCRA §§2002(a), 3004, 3005, and 3006; 40 CFR Parts 124 and 270 as
amended September 28, 1988 (53 FR 37912) and October 24, 1988 (53 FR 41649).
Citation of Laws and Reputations: Date of Enactment and Adoption
Remarks of the Attorney General
(34) State statutes and regulatipns require that existing incinerator facilities must either
conduct a trial bum or submit other information as specified in 270.19(a) or (c)
before a permit can be issued for that facility as indicated in Revision Checklist 60
and included in Consolidated Checklist C9.
Federal Authority: RCRA §3005; 40 CFR Part 270 as amended January 30, 1989 [54 FR
4286).
Citation of Laws and Reoulations: Date of Enactment and Adootipn
Remarks of the Attorney General
(35) fOPTIONAL: This is a reduced requirement.] State statutes and regulations allow
greater flexibility to interim status facilities to make changes during interim status
following Director approval, as indicated in Revision Checklist 61 and included in
Consolidated Checklist C9.
Federal Authority: RCRA §§2002(a), 3004, 3005, 3006; 40 CFR 270.72 as amended
March 7, 1989 (54 FR 9596).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(36) rOPTIONAL This is a reduced requirement.] State statutes and regulations lift the
reconstruction limit for changes to certain interim status units 1) necessary to
comply with Federal, State, or local requirements, 2) necessary to allow continued
handling of newly listed or identified hazardous waste, 3) made in accordance with
an approved closure plan, and 4) made pursuant to a corrective action order as
indicated in Revision Checklist 61 and included in Consolidated Checklist C9.
Federal Authority: RCRA §§2002(a), 3004, 3005, and 3006; 40 CFR 270.72 as amended
March 7, 1989 (54 FR 9596).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(37) fOPTIONAL: This is a reduced requirement.] State statutes and regulations provide
that a permit can be denied for the active life of a facility while a decision on post-
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closure permitting is pending as indicated in Revision Checklist 61 and included in
Consolidated Checklist C9.
Federal Authority: RCRA §§2002(a), 3004, 3005, and 3006; 40 CFR 124.1, 124.15,
124.19, 270.1, 270.10 and 270.29 as amended March 7, 1989 (54 FR 9596).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(38) rOPTIONAL: This is a reduced requirement.] State statutes and regulations classify
as Class 1 certain permit modifications requested by the owner/operator necessary
to enable permitted facilities to comply with the land disposal restrictions as
indicated in Revision Checklist 61 and included in Consolidated Checklist C9.
Specifically these modifications include 1) adding restricted wastes treated to meet
applicable 40 CFR Part 268 treatment standards or adding residues from treating
"soft hammer" wastes, 2) adding certain wastewater treatment residues and
incinerator ash, 3) adding new wastes for treatment in tanks or containers under
certain limited conditions, and 4) adding new treatment processes that are
necessary to treat restricted wastes to meet treatment standards as long as the
treatment processes are to take place in tanks or containers.
Federal Authority: RCRA §§2002(a), 3004, 3005 and 3006; 40 CFR 270.42 as amended
March 7, 1989 (54 FR 9596).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
VIII. INSPECTIONS
State law provides authority for officers engaged in compliance evaluation activities to enter
any conveyance, vehicle, facility or premises subject to regulation or in which records
relevant to program operation are kept in order to inspect, monitor, or otherwise investigate
compliance with the State program including compliance with permit terms and conditions
and other program requirements. (States whose law requires a search warrant prior to
entry conform with this requirement.)
Federal Authority: RCRA §3007; 40 CFR 271.15.
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
IX. ENFORCEMENT REMEDIES
State statutes and regulations provide the following:
A. Authority to restrain immediately by order or by suit in State court any person from
engaging in any unauthorized activity which is endangering or causing damage to public
health or the environment.
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Federal Authority: RCRA §3006; 40 CFR 271.16(a)(1).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. Authority to sue in courts of competent jurisdiction to enjoin any threatened or
continuing violation of any program requirement including permit conditions, without the
necessity of a prior revocation of the permit.
Federal Authority: RCRA §3006; 40 CFR 271.16(a)(2).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
C. Authority to assess or sue to recover in court civil penalties in at least the amount
of $10,000 per day for any program violation.
Federal Authority: RCRA §3006; 40 CFR 271.16(a)(3)(i).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
D. Authority to obtain criminal penalties in at least the amount of $10,000 per day for
each violation, and imprisonment for at least six months against any person who knowingly
transports any hazardous waste to an unpermitted facility; who treats, stores, or disposes
of hazardous waste without a permit; or who makes any false statement or representation
in any application, label, manifest, record, report, permit, or other document filed,
maintained, or used for the purposes of program compliance.
Federal Authority: RCRA §3006; 40 CFR 271.16(a)(3)(H).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
X. PUBLIC PARTICIPATION IN THE STATE ENFORCEMENT PROCESS
State laws and regulations provide for public participation in the State enforcement
process by providing either
A. Authority to allow intervention as of right in any civil or administrative action to
obtain the remedies specified in Section VII A, B and C above by any citizen having an
interest which Is or may be adversely affected; or
B. Assurances that the State agency or enforcement authority will:
(1) Investigate and provide written response to all citizen complaints duly submitted;
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(2) Not oppose intervention by any citizen where permissive intervention may be
authorized by statute, rule, or regulations; and
(3) Publish and provide at least 30 days for public comment on any proposed
settlement of a State enforcement action.
Federal Authority: RCRA §7004; 40 CFR 271.16(d).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XL AUTHORITY TO SHARE INFORMATION WITH EPA
State statutes and regulations provide authority for any information obtained or used in
the administration of the State program to be available to EPA upon request without
restriction.
Federal Authority: RCRA §3007(b); 40 CFR 271.17.
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XII. AUTHORITY OVER INDIAN LANDS
[Where a State seeks authority over Indian lands, appropriate analysis of the State's
authority should be included here.]
Federal Authority: 40 CFR 271.7(b).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
XIII. EXPOSURE ASSESSMENTS
A. State laws and regulations allow the State to make assessment information available
to the Agency for Toxic Substances and Disease Registry. (See CERCLA §104(1).]
Federal Authority: RCRA §3019(b).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
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XIV. RADIOACTIVE MIXED WASTES
A. State statutes and regulations define solid wastes to include the hazardous
components of radioactive mixed wastes, July 3, 1986 [51 FR 24504]. See State Program
Advisory (SPA) #2.
Federal Authority: RCRA §§1004(27) and 3001(b).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XV. AVAILABILITY OF INFORMATION
A. State statutes and regulations provide that:
(1) All records shall be available to the public unless they are exempt from the
disclosure requirements of the Federal FOIA, 5 U.S.C. 552;
(2) All nonexempt records will be available to the public upon request regardless of
whether any justification or need for such records has been shown by the requestor;
(3) The same types of records would be available to the public from the State as would
be available from EPA. [In making this certification, the Attorney General should be
aware of the types of documents EPA generally releases under the FOIA, subject to
claims of business confidentiality: permit applications; biennial reports from facilities;
closure plans; notification of a facility closure; contingency plan incident reports;
delisting petitions; financial responsibility instruments; ground-water monitoring data
(note that exemptions 5 U.S.C. 552(b)(9) of the FOIA applies to such wells as oil
and gas, rather than to ground-water wells); transporter spill reports; international
shipment reports; manifest exception, discrepancy and unmanifested waste reports;
facility EPA identification numbers; withdrawal requests; enforcement orders; and
insporton reports]; and,
(4) Information is provided to the public in substantially the same manner as EPA as
indicated in 40 CFR Part 2 and the Revision Checklist in Appendix N of the State
Authorization Manual. fOPTIONAL Where the State agrees to implement selected
provisions through the use of a Memorandum of Agreement (MOA) the Attorney
General must certify that: "The State has the authority to enter into and carry out
the MOA provisions and there are no State statutes (e.g., State Administrative
Procedures Acts) which require notice and comment or promulgation of regulations
for the MOA procedures to be binding.]
(5) fOPTIONAL: The State statutes and regulations protect Confidential Business
Information (CBI) to the same degree as indicated in 40 CFR 2 and the Revision
Checklist In Appendix N of the State Authorization Manual. Note that States do not
have to protect CBI to satisfy 3006(f). However, if a State does extend protection
to CBI, then It cannot restrict the release of information that EPA would require to
be disclosed.]
Federal Authority: RCRA §3006(f); 40 CFR §271.17(c).
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Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
XVI. MEMORANDUM OF AGREEMENT (MOA)
[If the State uses the MOA to satisfy Federal procedural requirements, the Attorney
General must certify the following:
(1) The State has the authority to enter into the agreement,
(2) The State has the authority to carry out the agreement, and
(3) No applicable State statute (including the State Administrative Procedure Act)
requires that the procedure be promulgated as a rule in order to be binding.]
Seal of Office
Signature
Name (Type or Print)
Title
Date
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APPENDIX E
Model Revision Attorney General's Statement
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BACKGROUND
A. Purpose and Use of Model: This appendix contains the Model Revision Attorney
General's Statement that should be used to develop a Revision Attorney General's
Statement, required as part of an authorization package addressing changes to a State's
RCRA program.. (An unauthorized State should submit the Consolidated Model Attorney
General's Statement found in Appendix 0.) Each time a State submits a revision
authorization package, a new Revision Attorney General's Statement must be developed
which specifically addresses the program changes in the application. The Attorney
General's Statement provides certification by the Attorney General (or the attorney for those
States or interstate agencies which have Independent counsel) that State laws and
regulations are in place and provide adequate authority for the State to enforce the revised
State hazardous waste program.
Most program revisions requiring a Revision Attorney General's Statement are covered by
the revision checklists. Exhibit 1 lists other aspects of the RCRA program requiring use of
a Revision Attorney General's Statement Included are such provisions as State availability
of information, authority to regulate the hazardous component of radioactive mixed waste,
and criminal penalties against violators of the waste fuel and used oil fuel requirements.
Specific guidance on how a Revision Attorney General's Statement fits into an overall
authorization package, and the general philosophy of developing and reviewing a Revision
Attorney General's Statement is found in Chapter 3 of Volume I.
B. indices for Model: The model contained in this appendix is followed by two indices.
The first indicates which subsections of the model address each of the revision checklists.
The second index deals with entries in the model addressing the "non-checklist" items
found in Exhibit 1. These indices are provided to aid in locating appropriate parts of the
model.
C. Updates to Model: This Model Revision Attorney General's Statement and its
accompanying indices will be updated semiannually through the State Program Advisories
(SPAs) that present new checklists.
D. Time Period Covered; The model's title indicates the time period covered by the
model.
E. Computer Version of Model: This Model Revision Attorney General's Statement is
also available as a WordPerfect 5.0 file. The instructions for obtaining and using this file
can be found in Appendix O.
INSTRUCTIONS FOR USING THE MODEL
REVISION ATTORNEY GENERAL'S STATEMENT
A. Organization: While not formatted as discussed below, the Model Revision Attorney
General's Statement may be thought of as consisting of the following five parts:
1. An Introductory paragraph certifying that State law provides adequate authority to
cany out the revised program described In the revised Program Description. This
paragraph contains several blanks and bracketed inserts which must be completed
specifying 1) the position of the person filling out the Statement 2) the State and
the State Agency submitting the Statement 3) the effective dates of the State
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statutes or regulations addressed by the Statement and 4) the date(s) of previously
submitted Revision Attorney General's Statements.
2. An explanation of how the Revision Attorney General's Statement currently being
submitted relates to previous Revision Attorney General's Statements submitted by
the State and the original Statement submitted with the first authorization application.
This explanation must be written by the attorney filling out the model. Its placement
is indicated on the model by the bracketed statement immediately following the
introductory paragraph.
3. Sections I through XXI consist of many subsections which briefly 1) describe the
requirements addressed by each revision checklist or "non-checklist" item listed in
Exhibit 1, and 2) present the Federal authority for these requirements. At the end
of each subsection are the following two headings: "Citation of Laws and
Regulations: Date of Enactment and Adoption" and "Remarks of the Attorney
General." The attorney completing the Attorney General's Statement must provide
the appropriate information under these headings. (Completing this portion of the
model is discussed in more detail below). Only those portions of Sections I through
XXI addressing the program revisions made by the authorization application
submitted need to be included as part of the actual Revision Attorney General's
Statement. For example, if only Checklists 1, 2, 3 and 6 are included in the
application, then only subsections VIII A, XV E, V A and XVI J need to be used
from Sections I through XXI of the model. However, the numbering (i.e., VIII A, XV
E, V A and XVI J) utilized in the model must be retained and the subsections
should appear in the order they appear in the model. Also, section headings
appropriate to the subsections used should be included as well.
States should note that under 271.3(f), they need only apply for Federal self-
implementing statutory provisions and regulatory changes to 40 CFR Part 124, 260-
266, 268, 270 and 271 in effect twelve months prior to the State's submission of its
official application. However, States are not precluded from seeking authorization
for requirements taking effect less than twelve months prior to the State's submittal
of its final application.
4. Section XXIi • Memorandum of Agreement (MOA) Certification • This must be
completed if 1) a State uses the MOA to satisfy Federal procedural requirements or
2) the new provisions addressed by the Revision Attorney General's Statement
change the procedures agreed to in the original Memorandum of Agreement Listed
in the model are three specific requirements which the Attorney General must
certify.
5. Signature and Seal of Office - In this section, the Attorney General completing
the Statement must include his or her Seal of Office, his or her signature, a typed
version of his or her name, his or her title and the date the Statement was signed.
This section serves to validate the certifications made by the Statement regarding
the State's statutes and regulations.
B. What a Revision Attorney General's Statement Must Contain: A Revision Attorney
General's Statement MUST contain at least Parts 1, 2, 3 and 5, as specified above, to be
complete. A common error is omission of the signature and seal of office portion of the
Statement. Without the signature and seal, the certifications made in the Statement are
not valid. Part 4-the MOA Certification-must also be included in a Revision Attorney
General's Statement if any of the procedures agreed to in the original Memorandum of
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Agreement are changed (because of a provision adopted as part of the submitted revision
package or any other reason).
C. Completing Sections I Through XXI: The indices to the Model can be used to
determine which subsections of Sections I through XXI are appropriate to include in a
Revision Attorney General's Statement There should be at least one subsection or "entry"
in the Statement for each revision checklist or Exhibit 1 Item for which a State is applying.
As the indices to the model indicate, there can be several subsections which need to be
included for certain checklists. An example is Revision Checklist 32 that has four model
subsections (I B, VIII A, IX A(1), IX A(2)j which must be included to cover all of this
checklist's requirements. As was discussed earlier, each subsection or "entry" consists of
four necessary elements: 1) a brief description of the Federal regulatory or statutory
requirements, 2) a statement of the Federal authorities associated with these requirements,
3) a "Citation of Laws and Regulations; Date of Enactment and Adoption" section, and 4) a
"Remarks of the Attorney General" section. Guidance for completing each of these
elements is provided in the following four paragraphs labeled (1)-(4). Exhibit 2 shows how
a completed entry for a checklist should look, in this example, the State is applying for
Revision Checklist 42.
(1) Description of Federal Regulatory and Statutory Reoulrementa; The description of
Federal requirements provided in the model can be used word-for-word as is shown in the
Exhibit 2 example. The one exception is for optional requirements (e.g., see Section I D of
the model). In these cases, the following statement should be removed from the
description: "(OPTIONAL: This is a reduced requirement.]"
(2) Statement of Federal Authorities: The Federal authorities must be stated, and they
should be used word-for-word as they appear in the Model, as shown in the Exhibit 2
example.
(3) Citation of Laws and Regulations: Date ot Enactment and Adoption: As the
Exhibit 2 example shows, this portion of an entry must contain the following three pieces of
information: 1) citation of specific enabling authority (e.g.f statutes, administrative
regulations, Judicial decisions) relevant to the requirements addressed by the checklist or
requirement in question, 2) citation of specific State regulations covering these
requirements, and 3) dates of enactment and adoption for these citations. This last
information is necessary because the cited statutes and regulations must be lawfully
adopted at the time the Revision Attorney General's Statement is signed and must be fully
effective by the time the program is approved.
(4) Remarks of the Attorney General: The remarks section should be used to explain
differences in the State program from the Federal program, including more stringent
provisions. However, provisions which are broader in scope are more appropriately
discussed in the Program Description. The remarks section should also be used if the
State's legal authorities (e.g., statutes and rules) do not appear equivalent to Federal
authorities, and the Attorney General wants to make an argument that they are equivalent
In the Exhibit 2 example, the State adopted the appropriate Federal regulations verbatim
and the State's legal authorities are equivalent to Federal authorities.
D. Incorporation by Reference: In the case where a State incorporates by reference
portions or all of a checklist's requirements, an Attorney General must demonstrate In the
remarks portion for that checklist's entry that the State has the authority to adopt State
regulations in this manner. In the "Citation of Laws and Regulations; Date of Enactment
and Adoption" portion of the entry, the Attorney General must cite State statutes providing
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this authority in addition to the other information typically included in this part of the entiy
as in C(3) above. Exhibit 3 is an example of how an incorporation by reference entry
should look. In some cases, a State may prospectively adopt Federal regulations by
reference (i.e., adopt EPA provisions that may occur in the future). A number of State
Supreme Court cases (see Chapter 3 for further explanation) hold that State statutes
adopting prospective Federal legislation or regulations constitute an unconstitutional
delegation of legislative authority. Therefore, the Attorney General must demonstrate and
cite State authority both to promulgate and enforce regulations in this manner.
E. Radioactive Mixed Wastes: See the guidance in Appendix N.
F. Who Signs a Revision Attorney General's Statement: A Revision Attorney General's
Statement must be signed by one of the following individuals: 1) the State Attorney
General or an attorney in his or her office authorized to sign for the Attorney General, 2) a
Deputy or Assistant Attorney General if authorized to do so, or 3) the attorney for those
States or interstate agencies having independent legal counsel, provided the attorney has
the authorities specified in 40 CFR 271.7(a). "Authorization" in this context must be in
writing, case law or statute. Whenever an independent counsel signs a Revision Attorney
General's Statement, he or she MUST also provide a statement as part of the authorization
package explaining the scope of his or her authority. If more than one State Agency
administers or enforces a State's hazardous waste program and the independent legal
counsel for one participating Agency cannot certify legal authority for aspects of the
program administered or enforced by other agencies, either independent counsel for each
Agency or the State Attorney General must sign the Statement
G. Common Errors: Listed below are some common errors made in Revision Attorney
General's Statements submitted to the Agency:
omission of the signature and Seal of Office for the attorney completing the
Statement;
lack of entries in the Statement for aH of the revision checklists or Exhibit 1
items being applied for by a State;
omission of date of enactment and adoption for those State statutes and
regulations addressed by the Statement;
inclusion of the phrase "[OPTIONAL: This is a reduced requirement]" when
a State is applying for an optional provision or change in the Federal
regulations; and
no explanation In the Remarks of the Attorney General of a State provision
indicated on a revision checklist as being more stringent than its
corresponding Federal requirement
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EXHIBIT 1. "NON-CHECKLIST" ASPECTS OF THE RCRA PROGRAM
REQUIRING USE OF A REVISION ATTORNEY GENERAL'S STATEMENT
1. Authority to allow the State to make assessment Information available to the Agency
for Toxic Substances and Disease Registry. (RCRA §3019(b))
2. Exceptions to the burning and blending of hazardous waste as specified in RCRA
§§3004(q)(2)(A) and 3004(r)(2) & (3).
3. Criminal penalties for violation of the waste fuel and used oil fuel requirements.
(RCRA §§3006(h), 3008(d), 3014; 40 CFR 271.16)
4. State availability of information. (RCRA §3006(f); 40 CFR 271.17(c))
5. Statutory authority over the hazardous component of radioactive mixed waste.
(RCRA §§1004(27) & 3001(b))
6. Allowance of third party direct action against insurers or granters of an
owner/operator's financial responsibility when the owner/operator is in bankruptcy
reorganization or arrangement or where (with reasonable diligence) jurisdiction in
any State or Federal Court cannot be obtained over an owner/operator likely to be
solvent at time of judgement (RCRA §3004(t))
7. Surface impoundment requirements:
a compliance with new unit requirements or stop hazardous waste activity by
November 8r 1988, for units in existence prior to November 8, 1988 [or
subsequently becoming subject to RCRA pursuant to §3005(j)(6)(A) or (B)]
b. disposal of waste prohibited from land disposal under RCRA §3004(d), (e) or
(9)
c. variance under RCRA §30050(2-9) and (13) for requirements specified in a
& b above
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EXHIBIT 2. EXAMPLE OF HOW AN ENTRY SHOULD LOOK IN THE SECTIONS l-XXl
PART OF A REVISION ATTORNEY GENERAL'S STATEMENT
VII. NATIONAL UNIFORM MANIFEST SYSTEM AND RECORDKEEPING
B. State statutes and regulations require that generators, of between 100 and 1000
kg/mo of hazardous waste, file an exception report in those instances where the generator
does not receive confirmation of delivery of his hazardous waste to the designated facility as
indicated in Revision Checklist 42.
Federal Authority: RCRA §§3001(d)and 3002(a)(5); 40 CFR Parts 262.42 and 262.44 as
amended September 23, 1987 (52 FR 35894).
Citation of Laws and Regulations: Date of Enactment and Adoption
State Hazardous Waste Act 448.765(a), amended April 10, 1987
State Hazardous Waste Regulations 17.02(a) and (c), adopted May 25, 1987
Remarks of the Attorney General
The State has adopted EPA's regulations at 40 CFR 262.42 and 262.44 verbatim. At
446.765(a) of the State Hazardous Waste Act, which enables the State to adopt these
regulations, statutory authorities are similar in scope to those provided at §§3001 (d) and
3002(a)(5) of RCRA and do not Hmit the requirements implied by the verbatim adoption of
262.42 and 262.44.
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EXHIBIT 3. INCORPORATION BY REFERENCE-EXAMPLE OF AN
ENTRY IN THE SECTIONS l-XXl PART OF A
REVISION ATTORNEY GENERAL'S STATEMENT
XXI. LAND DISPOSAL RESTRICTIONS
A. State statutes and regulations provide for the restrictions of the land disposal of
certain spent solvents and dioxfn-containing hazardous wastes as indicated in Revision
Checklists 34 and SO.
Federal Authority: §3004
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MODEL REVISION ATTORNEY GENERAL'S STATEMENT FOR FINAL
AUTHORIZATION FOR CHANGES TO THE FEDERAL
RCRA PROGRAM FROM JANUARY 1983 THROUGH
JUNE 1989
I hereby certify, pursuant to my authority as and in accordance with
Section 3006(b) of the Resource Conservation and Recovery Act, as amended by the
Hazardous and Solid Waste Amendments of 1984 (42 USC 6901 et seg.)f and 40 CFR
271 that in my opinion the laws of the State [Commonwealth] of provide
adequate authority to carry out the revised program set forth in the revised "Program
Description" submitted by the fState Aaencvl. The specific authorities provided are
contained in statutes or regulations lawfully adopted at the time this Statement is signed
and which are in effect now [shall be fully effective by ], as specified
below. These authorities and this certification supplement [or supercede (and indicate how
supercede)] the previously certified authorities described in my [or my predecessors]
certification(s) of (date or dates).
Please add an explanation of how the Revision Attorney General's Statement you are
submitting relates to any prior Attorney General's Statements you have submitted.
I. IDENTIFICATION AND LISTING
A. State statutes and regulations contain Hsts of hazardous waste which
encompass ail wastes controlled under the following Federal regulations as indicated in the
designated Revision Checklists:
(1) Chlorinated aliphatic hydrocarbons, 40 CFR 261.31, Part 261 Appendices VII
and VIII as amended February 10, 1984 [49 FR 5308], Revision Checklist 4.
(2) fOPTIONAL: This is a reduced requirement.] Warfarin and zinc phosphide
listing, 40 CFR 261.33(e) and (f), as amended May 10, 1984 [49 FR 19923],
Revision Checklist 7.
(3) TDI, DNT and TDA wastes, 40 CFR 261.32, 261.33(f), and Pail 261
Appendices III, VII and VIII as amended October 23, 1985 [50 FR 42936],
Revision Checklist 18.
(4) Spent solvents, 40 CFR 261.31, as amended December 31, 1985 [50 FR
53319] and January 21, 1986 [51 FR 2702], Revision Checklist 20.
(5) EDB wastes, 40 CFR 261.32 and Part 261 Appendices II, III and VIII. as
amended February 13, 1986 [51 FR 5330], Revision Checkflst 21.
* The phrase 'OPTIONAL: This is a reduced requirement" Is used to indicate provisions
that either are less stringent or reduce the scope of the program. Any State which
adopts an "optional" requirement must ensure that it is at least as stringent as the
Federal requirement
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(6) Four spent solvents, 40 CFR 261.31, 261.33(f), and Part 261 Appendices III,
VII and VIII as amended February 25, 1986 [51 FR 6541], Revision Checklist
22.
(7) fOPTIONAL: This is a reduced requirement.] Listing of spent pickle liquor
from steel finishing operations, 40 CFR 261.32, as amended May 28, 1986
[51 FR 19320] and September 22, 1986 [51 FR 33612], Revision Checklist
26.
(8) Listing of commercial chemical products and Appendix VIII constituents, 40
CFR 261.33 and Appendix VIII, as amended August 6, 1986 [51 FR 28296],
Revision Checklist 29; as amended July 10, 1987 [52 FR 26012], Revision
Checklist 41; and as amended April 22, 1988 [53 FR 13382], Revision
Checklist 46.
(9) EBDC wastes, 40 CFR 261.32 and Part 261 Appendices III and VII, as
amended on October 24, 1986 [51 FR 37725], Revision Checklist 33.
(10) fOPTIONAL: This Is a reduced requirement.] Generic delisting of iron
dextran (CAS No. 9004-66-4), 40 CFR 261.33(f) and Appendix VIII, as
amended October 31, 1988 [53 FR 43878], Revision Checklist 56.
(11) rOPTfONAL: This is a reduced requirement] Generic delisting of strontium
sulfide (CAS No. 1314-96-1), 40 CFR 261.33(e) and Appendix VIII, as
amended October 31, 1988 [53 FR 43881], Revision Checklist 57.
Federal Authority: RCRA §3001 (b).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. State statutes and regulations define hazardous waste so as to control the
generation, transportation, treatment, storage and disposal of hazardous waste produced by
small quantity generators of between 100 and 1000 kilograms/month as indicated in
Revision Checklist 23 (which supercedes prior amendments by Revision Checklist 17 A)
and Revision Checklist 47 (providing technical corrections to Checklist 23). State statutes
and regulations also require small quantity generators to certify good faith efforts to
minimize waste generation and to select the best available and affordable treatment,
storage or disposal alternatives, 40 CFR Part 262 as amended October 1, 1986 [51 FR
35190], Revision Checkflst 32 (see item IX below).
Federal Authority: RCRA §3001 (d); 40 CFR Parts 260-263 and 270 as amended March
24, 1986 (51 FR 10146), October 1, 1986 (51 FR 35190), and July 19, 1988 (53 FR
27162).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
C. [This requirement applies only if States have a delisting mechanism. This
requirement is NOT OPTIONAL for such States.] State statutes and regulations provide
authority to delist hazardous waste as indicated in Revision Checklist 17 B.
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(1) State statutes and regulations require that before deciding to delist a waste,
the State must consider whether any listing factor (including additional
constituents) other than those for which the waste was listed would cause
the waste to be hazardous.
Federal Authority: RCRA §3001 (f)(1); 40 CFR 260.22 as amended July 15, 1986 (50 FR
28702) and June 27, 1989 (54 FR 27114).
(2) State statutes and regulations require that there be no new temporary delistings
without prior notice and comment All temporary delistings received before November 18,
1984 without the opportunity for public comment and full consideration of such comment
shall lapse if not made final by November 8, 1986.
Federal Authority: RCRA §3001 (f)(2); 40 CFR 260.20(d) as amended July 15, 1985 (50
FR 28702).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
D. fOPTlONAL: This is a reduced requirement.] State statutes and regulations
define hazardous waste so as to exclude waste pickle liquor sludge generated by lime
stabilization, but only to the extent that such waste is excluded by 40 CFR 261.3(c)(2), as
indicated in Revision Checklist 8.
Federal Authority: RCRA §3001; 40 CFR 261.3(c) as amended June 5, 1984 (49 FR
23284).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
E. fOPTlONAL: This is a reduced requirement] State statutes and regulations
define hazardous waste so as to not exclude household waste other than those household
wastes excluded in 40 CFR 261.4(b)(1), as indicated in Revision Checklists 9 and 17 C.
Federal Authority: RCRA §3001; 40 CFR 261.4(b)(1) as amended November 13, 1984 (49
FR 44980) and July 15, 1985 (50 FR 28702).
Citation of Laws and Reputations: Date of Enactment and Adoption
Remarks of the Attorney General
F. State statutes and regulations incorporate the most recent edition and updates to
"Test Methods for Evaluating SoDd Waste, Physical/Chemical Methods" (SW-846) as
indicated in Revision Checklists 11 and 35.
Federal Authority: RCRA §§2002, 3001; 40 CFR 260.11, 260.21 and 270.6(a) as amended
December 4, 1984 (49 FR 47390) and March 16, 1987 (52 FR 8072).
Citation of Laws and Regulations: Date of Enactment and Adoption
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Remarks of the Attorney General
Q. State statutes and regulations define solid wastes to include the hazardous
components of radioactive mixed wastes, July 3, 1986 [51 FR 24504], See State Program
Advisory (SPA) #2.
Federal Authority: RCRA §§1004(27) and 3001(b).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
H. rOPTIONAL: This is a reduced requirement.] State statutes and regulations
exempt (with certain limitations) waste samples used in small scale treatability studies from
Subtitle C regulation as indicated in Revision Checklist 49.
Federal Authority: RCRA §3001; 40 CFR 260.10 and 261.4(e)&(f) as amended July 19,
1988 (53 FR 27290).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
I. State statutes and regulations provide for Osting of six wastes (K064, K065,
K066, K088, K090, and K091) as indicated in Revision Checklist 53.
Federal Authority: RCRA §3001 (b); 40 CFR 261.32 and Part 261 Appendix VII as
amended September 13, 1988 (53 FR 35412).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
II. DEFINITION OF SOUP WASTE
A. State statutes and regulations define hazardous waste and Impose management
standards so as to control all the hazardous waste controlled under 40 CFR Parts 261,
264, 265 and 266 as indicated in Revision Checklists 13 and 37.
Federal Authority: RCRA §§3001, 3004; 40 CFR Parts 260, 261, 264, 265, and 266 as
amended January 4, 1985 (50 FR 614), April 11, 1985 (50 FR 14216), August 20, 1985
(50 FR 33541) and June 5, 1987 (52 FR 21306).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
III. MANAGEMENT OF PIOXIN WASTES
A. State statutes and regulations contain the following requirements regarding
dioxin wastes as indicated in Revision Checklist 14:
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(1) Dloxln wastes are listed and otherwise identified as hazardous wastes so as to
encompass all such wastes controlled under 40 CFR 261.5(e), 261.7(b), 261.30(d), 261.31,
261.33(f), and Part 261 Appendix X.
(2) Special management and permitting standards for facilities managing dioxin
wastes and prohibitions applicable to permitted and interim status facilities, as provided in
40 CFR Parts 264, 265, and 270.
Federal Authority: §§3001, 3004; 40 CFR Parts 261, 264, 265 and 270 as amended
January 14, 1985 (50 FR 1978).
Citation of Laws and Regulations; Pate of Enactment and Adoption
Remarks of the Attorney General
IV. SATELLITE ACCUMULATION
A. fOPTIONAL: This is a reduced requirement] State statutes and regulations
allow generators to accumulate at the site of generation, without a permit or interim status,
as much as 55 gallons of hazardous waste or one quart of acutely hazardous waste
provided that the generator complies with the requirements specified in §262.34(c) as
indicated in Revision Checklist 12.
Federal Authority: RCRA §§2002, 3002, 3004, 3005; 40 CFR 262.34(c) as amended
December 20, 1984 (49 FR 49571).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
V. APPLICABILITY OF INTERIM STATUS STANDARDS
A. State statutes and regulations contain the following requirements regarding
interim status standards as indicated in Revision Checklists 3 and 10:
(1) interim status standards apply to facilities identified In 40 CFR 265.1(b).
Federal Authority: RCRA §3004; 40 CFR Part 265 as amended November 22, 1983 (48
FR 52718) and November 21, 1984 (49 FR 46095).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
VI. PAINT FILTER TEST
A. State statutes and regulations require the use of a paint filter test to determine
the absence or presence of free liquids in either a containerized or bulk waste as indicated
In Revision Checklists 16, 17 F and 25.
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Federal Authority: RCRA §§3004, 3005; 40 CFR Parts 260, 264, 265, and 270 as
amended April 30, 1985 (50 FR 18370), July 15, 1985 (50 FR 28702) and May 28, 1986
(51 £R 19176).
Citation of Laws- and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
VII. NATIONAL UNIFORM MANIFEST SYSTEM AND RECORDKEEPING
A. State statutes and regulations require generators to use the national uniform
manifest as indicated in Revision Checklists 5 and 32.
Federal Authority: RCRA §§2002, 3002, 3003; 40 CFR Parts 260 and 262 as amended
March 20, 1984 (49 FR 10490) and October 1, 1986 (51 FR 35190).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. State statutes and regulations require that generators, of between 100 and 1000
kg/mo of hazardous waste, file an exception report in those instances where the generator
does not receive confirmation of delivery of his hazardous waste to the designated facility
as indicated in Revision Checklist 42.
Federal Authority: RCRA §§3001 (d) and 3002(a)(5); 40 CFR Parts 262.42 and 262.44 as
amended September 23, 1987 (52 FR 35894).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
C. State statutes and regulations require that the following be recorded, as It
becomes available, and maintained in the operating record, until faciRty closure, as
indicated in Revision Checklist 45: monitoring, testing or analytical data, corrective action
where required by Subpart F and §§264.226, 264.253, 264.254, 264.276, 264.278, 264.280,
264.303, 264.309, 264.347, and 264.602.
Federal Authority: RCRA §§3004 and 3005; 40 CFR 264.73(b) as amended December
10, 1987 (52 FR 46946).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
D. [OPTIONAL: This is a reduced requirement] State statutes and regulations
include a burden disclosure statement with each uniform manifest form and renew the use
of this form as indicated in Revision Checklist 58.
Federal Authority: RCRA §§2002, 3002, and 3003; 40 CFR 262.20 and 262 Appendix as
amended November 8, 1988 (53 FR 45089).
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Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
VIII. BIENNIAL REPORT
A. State statutes and regulations contain the following reporting requirements as
Indicated in Revision Checklists 1 and 30.
(1) The biennial report contains the information indicated in 40 CFR 262.41(a),
264.75 and 265.75.
(2) Facilities must submit groundwater monitoring data annually to the State
Director as indicated in 40 CFR 265.94.
Federal Authority: RCRA §§3002, 3004; 40 CFR Parts 262, 264 and 265 as amended
January 28, 1983 (48 FR 3977) and August 8, 1986 (51 FR 28566).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
IX. WASTE MINIMIZATION
A. State statutes and regulations contain the following requirements regarding
waste minimization as indicated in Revision Checklists 17 D, 30 and 32 (see Item I 6
above).
(1) Generators must submit report and manifest certifications regarding efforts taken
to minimize the amounts and toxicity of wastes.
Federal Authority: RCRA §3002(a)(6), (b); 40 CFR 262.41, 264.75 and 265.75 as
amended July 15, 1985 (50 FR 28702), August 8, 1986 (51 FR 28556) and October 1,
1986 (51 FR 35190).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(2) RCRA permits for the treatment, storage, or disposal of hazardous waste on the
premises where the waste was generated must contain a certification by the permittee
regarding efforts taken to minimize the amount and toxicity of the generated wastes.
Federal Authority: RCRA §3005(h); 40 CFR 264.70, 264.73 and 270.30(j)(2) as amended
July 15, 1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
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X. LIQUIDS IN LANDFILLS
A. State statutes and regulations contain the following requirements regarding
liquids in landfills as indicated in Revision Checklists 17 F and 25.
(1) Effective May 8, 1985, there is a ban on the placement of bulk or
non-containerized liquid hazardous waste or hazardous waste containing free liquids in any
landfill pursuant to 40 CFR 264.314 and 265.314 as amended July 15, 1985 and May 28,
1986.
(2) Effective November 8, 1985, there is a ban on the placement of non-hazardous
liquids in landfills unless the owner or operator satisfies the criteria set forth in 40 CFR
264.314(e) and 265.314(f), as amended July 15, 1985 and May 28, 1986.
(3) For bulk or non-containerized liquid wastes or wastes containing free liquids
they may be placed in a landfill prior to May 8, 1985, only if the requirements of 40 CFR
264.314(a) and 265.314(a) are met.
Federal Authority: §3004(c); 40 CFR 264.314, 265.314 and 270.21(h) as amended July 15,
1985 (50 FR 28702) and May 28, 1986 (51 FR 19176).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XI. QROUNP-WATER MONITORING
A. State statutes and regulations provide that the §3004 groundwater monitoring
requirements applicable to surface impoundments, waste piles, land treatment units and
landfills shall apply whether or not such units are located above the seasonal high water
table, have two liners and a leachate collection system or have liners that are periodically
inspected, as indicated in Revision Checklist 17 I.
Federal Authority: RCRA §3004(p); 40 CFR 264.222, 264.252, 264.253, and 264.302 as
amended July 15, 1985 (50 FR 28702).*
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. fOPTIONAL: This is a reduced requirement] State statutes and regulations
may allow variances from the ground-water monitoring requirements as provided in
§3004(p). However, those variances must be restricted as provided in RCRA §3004(p) as
indicated in Revision Checklist 17 I.
* Note that Revision Checkflst 17 I reserved the cited sections of 40 CFR Part 264. Prior
to Revision Checklist 17 1, these sections of code addressed exemptions from the
Subpart F groundwater monitoring requirements.Federal Authority: RCRA §3004(p); 40
CFR 264.90(b) as amended July 15, 1985 (50 FR 28702).
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Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
C. State statutes and regulations provide that with regard to ground-water
monitoring, all land based hazardous waste treatment, storage, and disposal facilities
analyze for a specified core list (Part 264, Appendix IX) of chemicals plus those chemicals
specified by the Regional Administrator on a site-specific basis as indicated In Revision
Checklist 40.
Federal Authority: RCRA §§1006, 2002(a), 3001, 3004, and 3005; 40 CFR Parts 264.98,
264.99, Appendix IX of Part 264, and 270.14 as amended July 9, 1987 (52 FR 25942).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
D. State statutes and regulations specify statistical methods, sampling procedures,
and performance standards that can be used in groundwater monitoring procedures to
detect groundwater contamination at permitted hazardous waste facilities as indicated in
Revision Checklist 55.
Federal Authority: RCRA §§1006, 2002(a), 3004 and 3005; 40 CFR 264.91, 264.92,
264.97, 264.98 and 264.99 as amended October 11,1988 (53 FR 39720).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XII. BURNING AND BLENDING OF HAZARDOUS WASTES
A. State statutes and regulations provide the following requirements:
(1) The burning of fuel containing hazardous waste in a cement kiln is prohibited
as specified in 40 CFR 266.31 and Revision Checklist 17 J.
Federal Authority: RCRA §3004(q); 40 CFR 266.31 as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
(2) Fuels containing hazardous waste and all persons who produce, distribute and
market fuel containing hazardous wastes must be regulated as indicated in Revision
Checklists 17 J, 17 K, and 19.
Federal Authority: RCRA §§3004(q)-(s); 40 CFR 261.31; 266.34 as amended July 15,
1985 (50 FR 28702), November 29, 1985 (50 FR 49164), and November 19, 1986 (51 FR
41900).
Citation of Laws and Regulations: Date of Enactment and Adoption
17
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Remarks of the Attorney General
B. fOPTIONAL: This is a reduced requirement] State statutes and regulations
provide exceptions to the burning and blending of hazardous waste as specified in
§§3004(q)(2)(A) and 3004{r)(2) & (3).
Federal Authority: RCRA §§3004(q)2(A) and 3004{r)(2) & (3).
citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
XIII. CORRECTIVE ACTION
A. State statutes and regulations contain the following corrective action
requirements as indicated in Revision Checklist 17 L:
(1) Corrective action is required for releases of hazardous waste or constituents
from any solid waste management unit at a facility seeking a permit, regardless of when
the waste was placed In the unit, in all permits issued after November 8, 1984.
Federal Authority: RCRA §3004(u); 40 CFR 264.90; 264.101; 270.60 as amended July 15,
1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(2) Corrective action is required beyond a facility's boundary, in accordance with
RCRA §3004(v). (States now may impose these requirements through a permit or a
corrective action order. Once EPA promulgates the regulations required by RCRA
§3004(v), States will need authority to impose corrective action In a permit following the
§3004(v) regulations.)
Federal Authority: RCRA §3004(v)(1).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(3) Corrective action is required beyond a facility's boundary in accordance wfth
§3004(v) for all landfills, surface Impoundments and waste pile units (including any new
units, replacements of existing units or lateral expansions of existing units) which receive
hazardous waste after July 26, 1982.
Federal Authority: RCRA §3004(v)(2).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(4) There Is evidence of financial responsibility for the competlon of correcft*
action on- and off-site.
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Federal Authority: RCRA §§3004(a)(6); (u); 40 CFR 264.90; 264.101 as amended July 15,
1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the .Attorney General
B. State statutes and regulations provide for additional information and engineering
feasibility plan requirements regarding groundwater contamination detected at the time of
Part B permit application as indicated in Checklist 38.
Federal Authority: RCRA §§3004, 3005; 40 CFR 270.14 as amended June 22, 1987 (52
FR 23447) and September 9, 1987 (52 FR 33936).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
C. State statutes and regulations require owners and operators of facilities seeking
permits to provide descriptive information on the solid waste management units themselves
and all available information pertaining to any releases from the units as indicated in
Revision Checklist 44 A.
Federal Authority: RCRA §3004(u); 40 CFR 270.14 as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
D. State statutes and regulations require that owners and operators of hazardous
waste treatment, storage and disposal facilities (including permit-by-mle facilities subject to
264.101) institute corrective action beyond the facility boundary to protect human health
and the environment, unless the owner/operator is denied access to adjacent lands despite
the owner/operator's best efforts, as indicated in Revision Checklist 44 B.
Federal Authority: RCRA §3004(v); 40 CFR 264.100(e) and 264.101(c), as amended
December 1, 1987 (52 FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
E. State statutes and regulations contain the following corrective action
requirements for injection wells as indicated in Revision Checklist 44 C.
(1) Hazardous waste injection wells now operating under RCRA interim status may
retain interim status after issuance of a UIC permit Until a RCRA permit or a RCRA
"rider" to a UIC permit, which addresses Section 3004(u) corrective action, is issued, tfw
well must comply with applicable Interim status requirements imposed by §265.430, Part*
144.146 and 147, and any UIC permit requirements.
19
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Federal Authority: RCRA §3004(u); 40 CFR 144.1(h) as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(2) As part of the UIC permit process, available information regarding operating
history and condition of the injection well must be submitted as well as any available
information on known releases from the well or injection zone.
Federal Authority: RCRA §3004(u); 40 CFR 144.31(g) as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(3) UIC facility owners/operators must submit certain information related to
corrective action with their UIC applications.
Federal Authority: RCRA §3004(u); 40 CFR 270.60(b)(3) as amended December 1, 1987
(52 FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
F. State statutes and regulations require that miscellaneous unit comply with
regulations (Subpart F) regarding releases from solid waste management units when
necessary to comply with §264.601 through 264.603 as indicated in Revision Checklist 45.
Federal Authority: RCRA 3004(u); 40 CFR 264.90(d) as amended December 10, 1987 (52
FR 46946).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XIV. HAZARDOUS WASTE EXPORTS
A. State statutes and regulations require generators and transporters of hazardous
waste destined for export outside the United States to comply with standards equivalent to
those as indicated in Revision Checklists 17 R, 31, and 48 (with the latter providing
technical corrections to Checkflst 31).
Federal Authority: RCRA §3017; 40 CFR 262.50 as amended July 15, 1985 (50 FR
28702), August 6, 1986 (51 FR 28664), and July 19, 1988 (53 FR 27164).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
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XV. STANDARDS FOR FACILITIES*
A. State statutes and regulations prohibit the land disposal of hazardous waste
prohibited under 40 CFR Parts 264 and 265 as indicated in Revision Checklist 17 E. Land
disposal includes, but is not limited to, placement in landfills, surface impoundments, waste
piles, deep Injection wells, land treatment facilities, salt dome and bed formations and
underground mines or caves. Deep injection well means a well used for the underground
injection of hazardous wastes other than a well to which §7010(a) of RCRA applies.
Federal Authority: RCRA §§3004(b)-(q); 40 CFR 264.18, 265.18 as amended July 15,
1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remains of the Attorney General
B. Effective on November 8, 1984 State statutes and regulations prohibit the
placement of any non-containerized or bulk liquid hazardous waste in any salt dome or salt
bed formation any underground mine or cave except as provided in §264.18(c) and
§265.18(c) as indicated in Revision Checklist 17 E. Furthermore, State statutes and
regulations prohibit the placement of any other hazardous waste in such formations until a
permit is issued.
Federal Authority: RCRA §3004(b); 40 CFR 264.18 and 265.18 as amended July 15, 1985
(50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
C. State statutes and regulations prohibit the use of waste oil or other materials
contaminated with hazardous wastes (except ignitible wastes) as a dust suppressant as
indicated in Revision Checklist 17 G.
Federal Authority: RCRA §3004(1); 40 CFR 266.23 as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
D. State statutes and regulations allow direct action by third parties against the
insurer or guarantor of an owner/operator's financial responsibilities if an owner/operator is
in bankruptcy reorganization or arrangement or where (with reasonable diligence)
jurisdiction in any State or Federal Court cannot be obtained over an owner/operator likely
to be solvent at time of judgment
* This section contains all changes to the Federal RCRA program concerning facility
standards except for those specifically related to groundwater monitoring. This latter
group of facility standard changes are addressed by Section XI.
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Federal Authority: RCRA §3004(t).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
E. State statutes and regulations require the permittee to take steps to minimize
releases to the environment in accordance with 40 CFR Part 270.30(d) as indicated in
Revision Checklist 2.
Federal Authority: RCRA §3005(c); 40 CFR Part 270 as amended September 1, 1983 (48
FR 39622).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
F. State statutes and regulations require that closure and post-closure requirements
and special requirements for containers apply to interim status landfills as indicated in
Revision Checklist 15.
Federal Authority: RCRA §3004; 40 CFR 265.310, 265.315 as amended April 23, 1985 (50
FR 16044).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
G. State statutes and regulations require compliance with closure/post-closure and
financial responsibility requirements applicable to owners and operators of hazardous waste
treatment storage and disposal facilities, as indicated in Revision Checklists 24, 36, and
45.
Federal Authority: RCRA §§3004 and 3005; 40 CFR Parts 260, 264, 265, and 270 as
amended May 2, 1986 (51 FR 16422), March 19, 1987 (52 FR 8704) and December 10,
1987 (52 FR 46946).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
H. fOPTlONAL: This is a reduced requirement.] State statutes and regulations
allow qualified companies that treat, store or dispose of hazardous waste to use a
corporate guarantee to satisfy liability assurance requirements as indicated in Revision
Checklists 27 and 43.
Federal Authority: RCRA §§2002, 3004, and 3005; 40 CFR 264.147, 264.151, and
265.147 as amended July 11, 1986 (51 FR 25350) and November 18, 1987 (52 FR
44314).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
22
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I. State statutes and regulations require companies that generate, treat or store
hazardous waste in tanks to comply with tank standards equivalent to those indicated in
Revision Checklists 28 and 52.
Federal Authority: RCRA §§1006, 2002, 3001 - 3007, 3010, 3014, 3017 - 3019 and 7004;
40 CFR Parts 260, 261, 262, 264, 265, and 270 as amended July 14, 1986 (51 FR
25422), August 15, 1986 (51 FR 29430) and September 2, 1988 (53 FR 34079).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
J. State statutes and regulations require environmental performance standards;
monitoring, testing, analytical data, inspection, response and reporting procedures; and
post-closure care for miscellaneous units as indicated in Revision Checklist 45.
Federal Authority: RCRA §§3004 and 3005; 40 CFR 264.600, 264.601, 264.602, and
264.603 as amended December 10, 1987 (52 FR 46946).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XVI. REQUIREMENTS FOR PERMITS
A. fOPTIONAL: This is a reduced requirement] State statutes and regulations
allow a facility (1) to construct an approved TSCA facility for burning PCBs without first
obtaining a RCRA permit and (2) to subsequently apply for a RCRA permit in accordance
with Revision Checklist 17 M.
Federal Authority: RCRA §3005(a); 40 CFR 270.10(f)(3) as amended July 15, 1985 (50
FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. State statutes and regulations require review of land disposal permits every five
years and modification of such permits as necessary to assure compliance with the
requirements in Parts 124, 260 through 266, and 270, as indicated in Revision Checklist 17
N.
Federal Authority: RCRA §3005(c)(3); 40 CFR 270.41(a)(6), 270.50(d) as amended July
15, 1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
23
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C. State statutes and regulations require permits to contain any conditions
necessary to protect human health and the environment in addition to any conditions
required by regulations as Indicated in Revision Checklist 17 O.
Federal Authority: RCRA §3005(c)(3); 40 CFR 270.32(b) as amended July 15, 1985 (50
FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
D. State statutes and regulations require that:
(1) For land disposal facilities granted interim status prior to 11/8/84, interim status
terminates 11/8/85; unless a Part B application and certification of compliance with
applicable groundwater monitoring and financial responsibility requirements are submitted by
11/8/85, as indicated in Revision Checklist 17 P.
Federal Authority: RCRA §3005(e); 40 CFR 270.73(c) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Reputations; Date of Enactment and Adoption
Remarks of the Attorney General
(2) For land disposal facilities in existence on the effective date of statutory or
regulatory changes under this Act that render the facility subject to the requirement to have
a permit and which is granted interim status, interim status terminates 12 months after the
date the facility first becomes subject to such permit requirement unless a Part B
application and certification of compliance with applicable groundwater monitoring and
financial responsibility requirements are submitted by that date as indicated in Revision
Checklist 17 P.
Federal Authority: RCRA §3005(e); 40 CFR 270.73(d) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(3) Interim status terminates for incinerator facilities on 11/8/89 unless the
owner/operator submits a Part B application by 11/8/86 as indicated in Revision Checklist
17 P.
Federal Authority: RCRA §3005(c)(2)(C); 40 CFR 270.73(e) as amended July 15, 1985 (50
FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
24
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(4) Interim status terminates for any facility other than a land disposal or an
incineration facility on 11/8/92 unless the owner/operator submits a Part B application by
11/8/88 as indicated in Revision Checklist 17 P.
Federal Authority: RCRA §3005(c)(2)(C); 40 CFR 270.73(f) as amended July 15, 1985 (50
FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
E. fOPTlONAL: This is a reduced requirement] State statutes and regulations
allow facilities to qualify for interim status if they (1) are in existence on the effective date
of statutory or regulatory changes that render the facility subject to the requirement to have
a permit and (2) comply with §270.70(a) as indicated in Revision Checklist 17 P.
Federal Authority: RCRA §3005(e); 40 CFR 270.70(a) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
F. State statutes and regulations provide that facilities may not qualify for Interim
status under the State's analogue to Section 3005(e) if they were previously denied a
Section 3005(c) permit or if authority to operate the facility has been terminated as
indicated in Revision Checklist 17 P.
Federal Authority: RCRA §3005(c)(3); 40 CFR 270.70(c) as amended July 15, 1985 (50
FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
G. fOPTlONAL: This is a reduced requirement] State statutes and regulations
allow the issuance of a one-year research, development, and demonstration permit
(renewable each year, but not for a period longer than three years) for any hazardous
waste treatment facility which proposes an innovative and experimental hazardous waste
treatment technology or process not yet regulated as indicated in Revision Checklist 17 Q.
If adopted, however, the State must require the facility to meet RCRA's financial
responsibility and public participation requirements and retain authority to terminate
experimental activity if necessary to protect health or the environment
Federal Authority: RCRA §3005(g); 40 CFR 270.65 as amended July 15, 1985 (50 FR
28702)
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
H. State statutes and regulations require landfills, surface impoundments, land
treatment units, and waste piles that received waste after July 26, 1982 and which qualify
25
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for interim status to comply with the groundwater monitoring, unsaturated zone monitoring,
and corrective action requirements applicable to new units at the time of permitting as
indicated in Revision Checklist 17 L.
Federal Authority: RCRA §30050); 40 CFR 264.90(a) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remarks of the Attorney General
I. State statutes and regulations require:
(1) Surface impoundments In existence on November 8, 1984 [or subsequently
becoming subject to RCRA pursuant to §3005(j)(6)(A) or (B)] to comply with the double
liner, leachate collection, and groundwater monitoring requirements applicable to new units
by November 8, 1988 [or the date specified in §3005(j)(6)(A) or (B)] or to stop treating,
receiving, or storing hazardous waste, unless the surface impoundment qualifies for a
special exemption under §3005(j).
Federal Authority: RCRA §3005(j)(6)(A).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(2) Surface impoundments to comply with the double liner, leachate collection and
ground-water monitoring requirements if the Agency allows a hazardous waste prohibited
from land disposal under §3004(d), (e) or (g) to be placed in such impoundments.
Federal Authority: RCRA §3005(j)(11).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
(3) rOPTIONAL: This is a reduced requirement] State statutes and regulations
may allow variances from the above requirements as provided in RCRA §3005(j)(2-9) and
(13). However, the availability of such variances must be restricted as provided in RCRA
§30050).
Federal Authority: RCRA §3005(j)(2-9).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
J. rOPTIONAL: This is a reduced requirement] Facility owners or operators are
given the opportunity to cure deficient Part A applications in accordance with 40 CFR
270.70(b) before failing to qualify for Interim status as indicated in Revision Checklist 6.
Federal Authority: RCRA §3005; 40 CFR Part 270 as amended April 24, 1984 (49 FR
17716).
26
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Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
K. State statutes and regulations allow the permit granting agency to initiate
modifications to'a permit without first receiving a request from the permittee, in cases
where statutory changes, new or amended regulatory standards or judicial decisions affect
the basis of the permit as indicated in Revision Checklist 44 D.
Federal Authority: RCRA §3005(c); 40 CFR 270.41(a)(3) as amended December 1, 1987
(52 FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
L. State statutes and regulations require that permittees must comply with new
requirements imposed by the land disposal restrictions promulgated under Part 268 even
when there are contrary permit conditions, as indicated in Revision Checklist 44 E.
Federal Authority: RCRA §3006(g); 40 CFR 270.4(a) as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
M. State statutes and regulations require information from permit applicants
concerning permit conditions necessary to protect human health and the environment as
indicated in Revision Checklist 44 F.
Federal Authority: RCRA §3005(c); 40 CFR 270.10 as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
N. State statutes and regulations require post-closure permits for all landfills,
surface impoundments, waste piles and land treatment units receiving hazardous waste
after July 26, 1982 as indicated in Revision Checklist 44 G.
Federal Authority: RCRA §3005(i); 40 CFR 270.1(c) as amended December 1, 1987 (52
FR 45788).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
O. State statutes and regulations require that ail owners and operators of units that
treat, store, or dispose of hazardous waste in miscellaneous units must comply with the
general application requirements (Including Part A permit requirements), the Part B general
27
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application requirements of §270.14, and specific Part B information requirements for
miscellaneous units as indicated in Revision Checklist 45 and Revision Checklist 59.
Federal Authority: RCRA §§3004 and 3005; 40 CFR 264.600, 270.14 and 270.23 as
amended December 10, 1987 (52 FR 46946) and January 9, 1989 (54 FR 615).
Citation of Laws'and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
P. fOPTIONAL: This is a reduced requirement] State statutes and regulations
provide owners and operators more flexibility to change specified permit conditions, to
expand public notification and participation opportunities, and allow for expedited approval if
no public concern exists for a proposed permit modification. Owner/operator permit
modifications are categorized into three classes with administrative procedures for approving
modifications established in each class. These changes are as indicated in Revision
Checklist 54.
Federal Authority: RCRA §§2002(a), 3004, 3005, and 3006; 40 CFR Parts 124, 264, 265,
and 270 as amended September 28, 1988 (53 FR 37912) and October 24, 1988 (53 FR
41649).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
Q. State statutes and regulations make it clear that existing incinerator facilities
must either conduct a trial bum or submit other information as specified in 270.19(a) or (c)
before a permit can be issued for that facility as indicated in Revision Checklist 60.
Federal Authority: RCRA §3005(b); 40 CFR Part 270 as amended January 30, 1989 [54
FR 4286).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
R. fOPTIONAL This is a reduced requirement] State statutes and regulations
allow greater flexibility to interim status facinties to make changes during interim status
following director approval as indicated in Revision CheckHst 61.
Federal Authority: RCRA §§2002(a), 3004, 3005, 3006; 40 CFR 270.72 as amended
March 7, 1989 (54 FR 9596).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
S. fOPTIONAL: This is a reduced requirement] State statutes and regulations Oft
the reconstruction limit for changes: 1) to certain interim status units necessary to comply
with Federal, State, or local requirements, 2) necessary to allow continued handing of
newly listed or identified hazardous waste, 3) made in accordance with an approved
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closure plan, and 4) made pursuant to a corrective action order as indicated in Revision
Checklist 61.
Federal Authority: RCRA §§2002(a), 3004, 3005, and 3006; 40 CFR 270.72 as amended
March 7, 1989 (54 FR 9596).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
T. fOPTIONAL: This is a reduced requirement.] State statutes and regulations
that clarify that a permit can be denied for the active life of a facility while a decision on
post closure permitting is pending as indicated in Revision Checklist 61.
Federal Authority: RCRA §§2002(a), 3004, 3005, and 3006; 40 CFR 124.1, 124.15,
124.19, 270.1, 270.10 and 270.29 as amended March 7, 1989 (54 FR 9596).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
U. fOPTIONAL: This is a reduced requirement.] State statutes and regulations
that classify as Class 1 certain permit modifications requested by owners/operators
necessary to enable permitted facilities to comply with the land disposal restrictions as
indicated in Revision Checklist 61. Specifically these modifications include 1) adding
restricted wastes treated to meet applicable 40 CFR Part 268 treatment standards or
adding residues from treating "soft hammer" wastes, 2) adding certain wastewater treatment
residues and incinerator ash, 3) adding new wastes for treatment in tanks or containers
under certain limited conditions, and 4) adding new treatment processes, necessary to treat
restricted wastes to meet treatment standards, that take place in tanks or containers.
Federal Authority: RCRA §§2002(a), 3004, 3005 and 3006; 40 CFR 270.42 as amended
March 7, 1989 (54 FR 9596).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XVII. MINIMUM TECHNOLOGICAL REQUIREMENTS
A. State statutes and regulations require that new units, expansions, and
replacements of interim status waste piles meet the requirements for a single liner and
leachate collection system in regulations applicable to permitted waste piles as indicated in
the Revision Checklist 17 H.
Federal Authority: RCRA §3015(a); CFR 265.254 as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
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B. State statutes and regulation require that:
(1) New units, expansions, and replacement units at interim status landfills and
surface impoundments and permitted landfills and surface impoundments meet the
requirements for double liners and leachate collection systems applicable to new permitted
landfills and surface impoundments in 40 CFR 264.221 and 264.301 and 265.221 and
265.301 as indicated in Revision Checklist 17 H.
(2) fOPTIONAL: This is a reduced requirement.] Facilities which comply in good
faith need not retrofit at permit issuance unless the liner is leaking as provided in
§§265.221 (e) and 265.301(e) as indicated in Revision Checklist 17 H.
(3) fOPTIONAL: This is a reduced requirement.] Variances from the above
requirements are optional. However, the availability of such variances is restricted as
provided in §§264.221 (d) and (e), 264.301(d) and (e), 265.221(c) and (d), and 265.301(c)
and (d) as indicated in Revision Checklist 17 H.
Federal Authority: RCRA §3015(b); 40 CFR 264.221, 265.221 and 265.301 as amended
July 15, 1985 (50 FR 28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XVIII. EXPOSURE ASSESSMENTS
A. State laws and regulations require permit applicants for landfills or surface
impoundments to submit exposure information as indicated in Revision Checklist 17 S.
Federal Authority: RCRA §3019(a); 40 CFR 270.10(j) as amended July 15, 1985 (50 FR
28702).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. State laws and regulations allow the State to make assessment Information
available to the Agency for Toxic Substances and Disease Registry. (See CERCLA
§104(1).]
Federal Authority: RCRA §3019(b).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XIX. AVAILABILITY OF INFORMATION
A. State statutes and regulations provide that:
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(1) All records shall be available to the public unless they are exempt from the
disclosure requirements of the Federal FOIA, 5 U.S.C. 552;
(2) All nonexempt records will be available to the public upon request regardless of
whether any justification or need for such records has been shown by the requestor;
(3) The same types of records would be available to the public from the State as
would be available from EPA. [In making this certification, the Attorney General should be
aware of the types of documents EPA generally releases under the FOIA, subject to claims
of business confidentiality: permit applications; biennial reports from facilities; closure plans;
notification of a facility closure; contingency plan incident reports; delisting petitions;
financial responsibility instruments; ground-water monitoring data (note that exemptions 5
U.S.C.552(b)(9) of the FOIA applies to such wells as oil and gas, rather than to
ground-water wells); transporter spill reports; international shipment reports; manifest
exception, discrepancy and unmanifested waste reports; facility EPA identification numbers;
withdrawal requests; enforcement orders; and, inspection reports]; and,
(4) Information is provided to the public in substantially the same manner as EPA
as Indicated in 40 CFR Part 2 and the Revision Checklist in Appendix N of the State
Authorization Manual. fOPTIONAL: Where the State agrees to implement selected
provisions through the use of a Memorandum of Agreement (MOA) the Attorney General
must certify that: "The State has the authority to enter into and carry out the MOA
provisions and there are no State statutes (e.g., State Administrative Procedures Acts)
which require notice and comment or promulgation of regulations for the MOA procedures
to be binding.]
(5) rOPTIONAL: The State statutes and regulations protect Confidential Business
Information (CBI) to the same degree as indicated in 40 CFR 2 and the Revision Checklist
in Appendix N of the State Authorization Manual. Note, that States do not have to protect
CBI, to satisfy 3006(f). However, if a State does extend protection to CBI then it cannot
restrict the release of information that EPA would require to be disclosed.]
Federal Authority: RCRA §3006(f); 40 CFR §271.17(c).
Citation of Laws and Regulations; Date of Enactment and Adoption
Remaps of the Attorney General
XX BURNING OF WASTE FUEL AND USED OIL FUEL IN BOILERS AND
INDUSTRIAL FURNACES
A. State statutes and regulations contain the following requirements regarding the
burning of waste fuel and used oil fuel for energy recovery in boilers and industrial
furnaces as indicated in Revision Checklist 19:
(1) Waste fuels and used oil fuels are identified as solid wastes so as to
encompass all such wastes controlled under 40 CFR 261.3, 261.5 and 261.6.
(2) Special management standards for generators, transporters, marketers and
burners of hazardous waste and used oil burned for energy, as set forth In 40 CFR
264.340, 265.340, 266.30-35 and 266.40-44.
31
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Federal Authority: RCRA §§3001, 3004, 3014(a); 40 CFR Parts 261, 264, 265 and 266 as
amended November 29, 1985 (50 FR 49164), November 19, 1986 (51 FR 41900) and April
13, 1987 (52 FR 11819).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. State statutes and regulations provide the authority to obtain criminal penalties
for violations of the waste fuel and used oil fuel requirements, as set forth in 40 CFR
266.40-44.
Federal Authority: RCRA §§3006(h), 3008(d), 3014; 40 CFR 271.16.
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XXI. LAND DISPOSAL RESTRICTIONS
A. State statutes and regulations provide for the restrictions of the land disposal of
certain spent solvents and dioxin-containing hazardous wastes as indicated in Revision
Checklists 34, 39, and 50.
Federal Authority: §3004(d)-(k) and (m); 40 CFR Parts 260, 261, 262, 263, 264, 265, 268
and 270 as amended on November 7, 1986 (51 FR 40572), June 4, 1987 (52 FR 21010),
July 8, 1987 (52 FR 25760), and August 17, 1988 (53 FR 31138).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
B. State statutes and regulations for restricting the disposal of certain California list
wastes, including liquid hazardous waste containing polychlorinated biphenyls (PCBs) above
specified concentrations, and hazardous waste containing halogenated organic compounds
(HOCs) above specified concentrations as indicated in Revision Checklists 39 and 50.
Federal Authority: RCRA §3004(d)-(k) and (m); 40 CFR Parts 262, 264, 265, 268 and 270
as amended on July 8, 1987 (52 FR 25760), October 27, 1987 (52 FR 41295) and August
17, 1988 (53 FR 31138).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
C. State statutes and regulations for specific treatment standards and effective
dates for certain wastes from the "First Third" of the schedule of restricted wastes listed in
40 CFR 268.10 as well as land disposal restrictions for those First Third wastes for which
a treatment standard is not established as indicated in Revision Checklists 50 and 62.
32
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Federal Authority: RCRA §3004 (d)-(k) and (m); 40 CFR Parts 264, 265, and 268 as
amended on August 17, 1988 (53 FR 31138), February 27, 1989 (54 FR 8264) and May 2,
1989 (54 FR 18836).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
D. State statutes and regulations for certain treatment standards and prohibition
effective dates for certain Second Third wastes and for imposing the "soft hammer
provisions of 40 CFR 268.8 on Second Third wastes for which the Agency is not
establishing treatment standards as indicated in Revision Checklist 63.
Federal Authority: RCRA §3004(d)-(k) and (m); 40 CFR Part 268 as amended June 23,
1989 (54 FR 26594).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remaps of the Attorney General
E. State statutes and standards for treatment standards and effective dates for
certain First Third "soft hammer" wastes as well as for certain wastes originally contained
in the Third Third of the Schedule as indicated in Revision Checklist 63.
Federal Authority: RCRA §3004(d)-(k) and (m); 40 CFR Parts 264, 265 and 268 as
amended June 23, 1989 (54 FR 26594).
Citation of Laws and Regulations: Date of Enactment and Adoption
Remarks of the Attorney General
XXII. MEMORANDUM OF AGREEMENT (MOA)
[If the State uses the MOA to satisfy Federal procedural requirements, the Attorney
General must certify the following:
(1) The State has the authority to enter into the agreement,
(2) The State has the authority to carry out the agreement, and
(3) No applicable State statute (including the State Administrative Procedure Act)
requires that the procedure be promulgated as a rule in order to be binding.]
33
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Seal of Office
Signature
Name (Type or Print)
Title
Date
34
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I. Index to the checklist entries found In the
Model Revision Attorney General's Statement
Revision checklist number/name
Subsections pertaining to checklist
1. Biennial Report
2. Permit Rule: Settlement
Agreement
3. interim Status Standards
10.
11.
12.
13.
14.
15.
16.
17 A.
17 B.
17 C.
17 D.
17 E.
17 F.
17 Q.
17 H.
17 I.
17 J.
17 K.
Definition of Solid Wastes
Dioxin Listing and Management
Standards
interim Status Standards for
Treatment Storage, and Disposal
Facilities
Paint Filter Test
Small Quantity Generators
(Superceded: See Checklist 23)
Delisting
Household Waste
Waste Minimization
Location Standards for Salt
Domes, Salt Beds, Underground
Mines, and Caves
Liquids in Landfills
Dust Suppression
Double Liners
Ground-water Monitoring
Cement Kilns
Fuel Labeling
VIII A
XV E
V A
4. Chlorinated Aliphatic Hydrocarbons I A(1)
5. National Uniform Manifests VII A
6. Permit Rule - Deficient Part A
Applications XVIJ
7. Listing Warfarin & Zinc Phosphide I A(2)
8. Lime Stabilized Pickle Liquor Sludge I D
9. Exclusion of Household Waste I E
interim Status Standards -
Applicability V A
Corrections to Test Methods Manual I F
Satellite Accumulation Standards IV A
II A
III A
XV F
VI
I B
I C(1)&(2)
I E
IX A(1)&(2)
XV A & B
VI A; X A
XV C
XVII A; XVII B(1),(2)&(3)
XI A & B
XII A(1)&(2)
XII A(2)
Continued.
35
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I. Index to the checklist entries found In the
Model Revision Attorney General's Statement (cont'd)
Revision checklist number/name
Subsections pertaining to checklist
17 L Corrective Action
17 M. Pre-constnjction Ban
17 N. Permit Ufe
17 0. Omnibus Provision
17 P. Interim Status
17 Q. Research & Development Permits
17 R. Hazardous Waste Exports
17 S. Exposure Information
18. Listing of TDI, TDA, DNT
19. Burning of Waste Fuel and Used Oil
20. Spent Solvents Listing
21. EDB Waste Listing
22. Four Spent Solvents Listing
23. Small Quantity Generators
24. Financial Responsibility:
Settlement Agreement
25. Paint Filter Test - Correction
26. Listing of Spent Pickle Liquor
27. Corporate Guarantee • Liability
Coverage
28. Hazardous Waste Storage and Tank
Systems
29. Correction - Commercial Chemical
Products and Appendix VIII
30. Biennial Reports; Correction
31. Exports of Hazardous Wastes
32. Standards for Generators - Waste
Minimization Certifications
33. Listing of EBDC
34. Land Disposal Restrictions
35. Revised Manual SW-846; Amended
Incorporation by Refersnoe
36. Closure/Post-closure Care for
Interim Status Surface Impoundments
XIII A(1),(2)>(3)&(4); XVI H
XVI A
XVI B
XVI C
XVI D(1),(2),(3)&(4); XVI E & F
XVI G
XIV A
XVIII A
I A(3)
XX A
I A(4)
I A(5)
I A(6)
I B
XV G
VI; X A
I A(7)
XV H
XV I
I A(8)
VIII A; IX A
XIV A
I B; VII A; IX A(1)&(2)
I A(9)
XXI A
I F
XV G
36
Continued...
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I. Index to the checklist entries found In the
Model Revision Attorney General's Statement (cont'd)
Revision checklist number/name
Subsections pertaining to checklist
37. Definition of Solid Wastes;
Technical Corrections
38. Amendments, Part B - Information
Requirements for Disposal Facilities
39. California List Waste Restrictions
40. List (Phase I) of Hazardous
Constituents for Ground-water
Monitoring
41. Identification and Listing of
Hazardous Waste
42. Exception Reporting for Small
Quantity Generators
43. Liability Requirements; Corporate
Guarantee
44 A. Permit Application Requirements
Regarding Corrective Action
44 B. Corrective Action Beyond Facility
Boundary
44 C. Corrective Action for Injection Wells
44 D. Permit Modification
44 E. Permit as Shield Provision
44 F. Permit Conditions to Protect Human
Health and the Environment
44 G. Post-closure Permits
45. Hazardous Waste Miscellaneous
Units
46. Technical Correction - Identification
and Listing of Hazardous Waste
47. Small Quantity Generators;
Technical Correction
48. Farmer Exemption; Technical
Correction
49. Treatability Studies Sample
Exemption
50. Land Disposal Restrictions
for First Third Scheduled Wastes
II A
XIII B
XXI B
XI C
I A(8)
VII B
XV H
XIII C
XIII D
XIII E(1 ),{2)&(3)
XVI K
XVI L
XVI M
XVI N
VII C; XIII F; XV G; XV J; XVI O
I A(8)
I B
XIV A
I H
XXI A, B & C
37
Continued..
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I. Index to the checklist entries found In the
Model Revision Attorney General's Statement (cont'd)
Revision checklist number/name
Subsections pertaining to checklist
51. Liability Coverage for Owners/
Operators of Treatment, Storage,
and Disposal Facilities
52. Standards for Hazardous Waste
Storage and Treatment Tank
Systems
53. Identification and Listing of
Hazardous Waste; and Designation,
Reportable Quantities and
Notification
54. Permit Modifications for Waste
Management Facilities
55. Statistical Methods for Evaluating
Ground-Water Monitoring Data from
Hazardous Waste Facilities
56. Removal of Iron Dextran from the
Lists of Hazardous Wastes
57. Removal of Strontium Sulfide from
the Lists of Hazardous Wastes
58. Standards for Generators of
Hazardous Waste; Manifest
Renewal
59. Hazardous Waste Miscellaneous
Units; Standards Applicable to
Owners and Operators
60. Amendment to Requirements for
Hazardous Waste Incinerator Permits
61. Changes to Interim Status Facilities
for Hazardous Waste Management
Permits;
Modifications of Hazardous Waste
Management Permits;
Procedures for Post-Closure
Permitting
62. Land Disposal Restrictions
Amendments to First Third
Scheduled Wastes
63. Land Disposal Restrictions for
Second Third Scheduled Wastes
Withheld, no entry as yet
XV I
I I
XVI P
XI D
I A(10)
I A(11)
VII D
XVI O
XVI Q
XVI R & S
XVI U
XVI T
XXI C
XXI D & E
38
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II. Index to the non-checklist entries found In the
Model Revision Attorney General's Statement
Description
Pertinent subsections
Agency for Toxic Substances and Disease
Registry, making assessment information
available to XVIII B
Availability of Information XIX A(1)-(5)
Burning and blending of hazardous waste,
RCRA §§3004(q)(2)(A) & 3004(r)(2) & (3)
exceptions XII B
Criminal penalties for waste fuel and
used oil fuel requirement violations XX B
Radioactive mixed wastes, hazardous
components of I G
Surface Impoundments:
1. compliance with new unit require-
ments by November 8, 1988 or
stop hazardous waste activity for
units existing prior to November 8,
1984 or becoming subject to RCRA
pursuant to §3005(j)(6)(A) or (B) XVI 1(1)
2. disposal of waste prohibited from
land disposal under RCRA §3004(d),
(e) or (g) XVI 1(2)
3. variance under RCRA §3005(j)(2-9)
and (13) XVI l(3)
Third party direct action against financial
responsibility insurer or granter XV D
39
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APPENDIX F
Attorney General's Statement Review Checklist
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REVIEWER'S CHECKLIST FOR THE ATTORNEY GENERAL'S STATEMENT
Introduction
This checklist should be used to review the Attorney General's Statement (AG Statement),
ft Is designed to ensure that the AG Statement adequately describes the State's legal
authorities, discusses how those authorities might differ from the Federal regulations, and
contains the appropriate citations and certifications.
Part I, General Review Requirements, should be completed for ail applications. It covers
procedural issues that need to be reviewed in both base and program revision applications.
Part II, Review by Cluster, is organized by cluster and addresses program revisions: The
appendix, Basic Program Reviews, addresses elements of a base program application.
Part I: General Review Requirements
Questions 1-3 must be answered for all AG Statements; questions 4-6 must be answered
as appropriate. A check in the ¦no" column requires a comment to the State.
1. Y N Is the Attorney General's Statement (AG Statement) signed by one of
the following persons:
a) the State Attorney General or an attorney in his/her office who is
authorized to sign for the Attorney General,
b) a Deputy or Assistant Attorney General, or
c) independent legal counsel?
(see revised SCRAM, p. 3-2)
2. Y N N/A If the person signing the AG Statement in question #1 of this checklist
is either a Deputy or Assistant Attorney General, or independent legal
counsel, does that person have one of the following:
a) tor a Deputy or Assistant Attorney General, authorization in writing,
case law or statute that he/she is authorized to sign for the Attorney
General, or
b) for independent legal counsel, lull authority to independently
represent the State Agency in court on ail matters pertaining to the
State program?
(see revised SCRAM, p. 3-2)
-------
3. Y N Does the AG Statement contain a general statement certifying that
State law provides adequate authority to carry out the program as
defined by the program description and checklists?
(see revised SCRAM, p. 3-2)
4. Y N N/A If the State has incorporated by reference any Federal regulation,
does the AG Statement demonstrate' the authority to adopt State
regulations in this manner?
(see revised SCRAM, p. 3-3)
5. If the State uses the Memorandum of Agreement (MOA) with EPA to satisfy Federal
procedural requirements (see Reviewer's Checklist for the MOA, Section V.C.4.) the State
must commit in the MOA to follow equivalent procedures. If the MOA contains such
agreements, does the AG Statement certify:
a. Y N N/A The State has the authority to enter into the agreement,
b. Y N N/A the State has authority to carry out the agreement and
c. Y N N/A no applicable State statute (including the State Administrative
Procedure Act) requires that the procedure be promulgated as a rule
in order to be binding?
(see revised SCRAM, pp. 3-3, and 3-0 through 3-11)
if the State authorities provide for waivers or variances that are broader
in scope than the Federal regulations, the State must commit in the
MOA not to impose any requirements that would render the State's
program less stringent than the Pectoral program (see Reviewer's
Checklist tor the MOA, Section V.C.S.). If such waivers or variances
exist, does the AG Statement certify:
The State has the authority to enter into the agreement,
the State has authority to carry out the agreement and
no applicable State statute (including the State Administrative
Procedure Act) requires that the procedure be promulgated as a rule
in order to be binding?
(see revised SCRAM, pp. 3-3, and 3-8 through 3-11)
6. Y N N/A
a. Y N N/A.
b. Y N N/A
c. Y N N/A
AG Statement uneckiist
Page 2
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Part 11: Review bv Cluster
Each component of the AG Statement must be reviewed for the following elements:
(a) statutory and regulatory citations, (b) dates of enactment, and (c) remarks of the Attorney
General. This part is an explanation of how to review each component of the AG Statement,
and how the checklists are organized. The checklists are attached and are organized by
cluster in chronological order. The AG Statement must include the following information for
each program element included in the application, in order to be complete:
a) Statutory and Regulatory Citations: For each RCRA citation, the reviewer must:
• check for the presence of appropriate citations
- analogous State statutory authority
- analogous State regulatory authority
- case law that is referenced in the narrative analysis
• ensure that the citations in the AG Statement match those on the Regulatory
Checklist
• ensure that the citations reference the correct statutory and regulatory authorities
b) Dates of Enactment: For each citation, the reviewer must:
• check for the presence of dates of enactment of laws and adoption of regulations
• ensure that all laws and regulations are or will be in effect prior to the date the AG
Statement is signed
• check that the dates referenced match the statutes and regulations in the
application
c) Remarks of the Attorney General: For each instance where the State s regulations
differ from EPA regulations, the AG Statement must provide a narrative analysis. The
reviewer must
• check to see whether the differences identified on the Regulatory Checklist are
explained in a narrative analysis
• ensure that the narrative analysis adequately explains whether, why, and how the
cited authority provides the requisite authority for the program requirements
AG statement Checklist
page 3
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Note below whether each provision within the cluster contains the required information
elements. "N/A" for remarks of the Attorney General means that the State requirements are
identical to the Federal requirements, and thus need no narrative explanation. Note, also, in
the "Comments" column, any inconsistencies between the AG Statement and the Regulatory
Checklist, any-deficiencies in the remarks of the Attorney General, and any other problems with
the AG Statement A check in the "no' column requires a comment to the State. Similiar
comments may be combined as appropriate.
I. Non-HSWA Requirements through June 30.1984: Comments:
A. Biennial Report (Checklists 1 and 30)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
B. Permit Rules • Settlement Agreement (Checklists 2 and 6)
1.
Y
N
statutory and regulatory citations
2.
Y
N
dates of enactment
¦
3.
Y
N N/A
remarks of the Attorney General
C. Interim Status Standards - Applicability (Checklists 3 and 10)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
D. Chlorinated Aliphatic Hydrocarbon Listing (Checklist 4)
1.
Y
N
statutory and regulatory citations
2.
Y
N
dates of enactment
3.
Y
N N/A
remarks of the Attorney General
E. National Uniform Manifest (Checklists 5,170, and 32)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AG statement Checklist Page 4
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F. [Optional] Listing of Warfarin and Zinc Phosphide (Checklist 7)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
G. [Optional] Lime Stabilized Pickle Liquor Sludge (Checklist 8)
1. Y N statutory and regulatory citations
2. Y N_ dates of enactment
3. Y N N/A remarks of the Attorney General
II. Non-HSWA Cluster I (July 1. 1984 through June 30. 1985):
A. State Availability of Information (Appendix 0 to SCRAM)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
B. [Optional] Exclusion of Household Waste (Checklist 9)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
C. Interim Status Standards - Applicability (Checklist 10)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
D. Corrections to Test Methods Manual (Checklist 11)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
ACa statement u
irraiEi
Page 5
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E. [Optional] Satellite Accumulation (Checklist 12)
1. Y N statutory and regulatory citations
2. Y N dates ot enactment
3. Y N N/A remarks of the Attorney General
F. Redefinition of Solid Waste (Checklist 13)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
G. Interim Status Standards for Landfills (Checklist 15)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
III. Non-HSWA Cluster II fJulv 1.1985 through June 30.19861:
A. Closure, Post-Closure and Financial Responsibility Requirements (Checklist 24)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
B. [Optional] Listing of Spent Pickle Liquor (Checklist 26)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AG statement Checklist
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IV. Non-HSWA Cluster HI (July 1. 1986 throuoh June 30. 1987^:
A. Radioactive Mixed Waste (See SPA #2)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
B. [Optional] Liability Coverage • Corporate Guarantee (Checklist 27)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
C. Hazardous Waste Tank Systems (Checklist 28)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
D. Correction to Listing of Commercial Chemical Products and Appendix VIII Constituents
(Checklist 29)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
V. Non-HSWA Clurtar IV /JiHv 1. 1987 throuoh June 30.19881:
A. List (Phase 1) of Hazardous Constituents for Ground-Water Monitoring (Checklist 40)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AG Statement Checklist
pegF7
-------
B. Identification and Listing of Hazardous Waste (Checklist 41)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
C. Liability Requirements for Hazardous Waste Facilities; Corporate Guarantee (Checklist 43)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
D. Hazardous Waste Miscellaneous Units (Checklist 45)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
E. Technical Corrections; Identification and Listing of Hazardous Waste (Checklists 29 and
46)
1. Y N statutory and regulatory citations
Z Y N dates of enactment
3. Y N N/A remarks of the Attorney General
VI. NorvHSWA Cluster V fJutv 1.1988 through June 30.1989):
A. Identification and Listing of Hazardous Waste (Checklists 49, 53, 56, and 57)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AG Statement Checklist
Page 6
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B. Standards for Hazardous Waste Storage and Treatment Tank Systems (checklist 52)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
C. Permit Modifcations for Hazardous Waste Management Facilities (checklist 54)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
D. Statistical Methods for Evaluating Ground-water Monitoring Data from Hazardous Waste
Facilities (checklist 55)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
E. Standards for Generators of Hazardous Waste (checklist 58)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
VII. HSWA Cluster I ^November 8.1984 through June 30.1987):
A. Direct Action Against Insurers (RCRA §3004(t), no checklist)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AG statement Checklist
Page 9
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B. Dioxin Listing and Management Standards (Checklist 14)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
C. Paint Filter Test (Checklists 16 and 25)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
0. Small Quantity Generators (Checklists 17A and 23, and 47)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
E. Delisting (Checklist 17B)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
F. Household Waste (Checklist 17C)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
G. Waste Minimization (Checklists 17D and 32)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AG statement Checklist
Page 10
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H. Location Standards for Salt Domes, Salt Beds, Underground Mines and Caves (Checklist
17E)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
I. Liquids in Landfills (Checklists 17F and 25)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
J. Dust Suppression (Checklist 17G)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
K. Double Liners (Checklist 17H)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
L Ground-water Monitoring (Checklist 171)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
M. Cement Kilns (Checklist 17J)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AG statement unecKiist
Page 11
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N. Fuel Labeling (Checklist 17K)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
0. Corrective Action (Checklist 17L)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
P. Pre-construction Ban (Checklist 17M)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
Q. Permit Ufe (Checklist 17N)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
R. Omnibus Provision (Checklist 170)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
S. Interim Status (Checklist 17P)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AG statement Checklist
Page 12
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T. Research and Development Permits (Checklist 17Q)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
U. Hazardous Waste Exports (Checklists 17R, 31, and 48)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
V. Exposure Information (Checklist 17S)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
W. Listing of TDI, TDA, and DNT (Checklist 16)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
X. Burning of Waste Fuel and Used Oil in Boilers and Industrial Furnaces (Checklist 19)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
Y. Spent Solvents Listing (Checklist 20)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AG Statement Checklist
Page 13
-------
Z. EDB Waste Listing (Checklist 21)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AA. Four Spent Solvents Listing (Checklist 22)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AB. Small Quantity Generators (Checklist 23)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AC. Paint Filter Test; Correction (Checklist 25)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AO. Biennial Reports; Correction (Checklist 30)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AE Standards tor Generators - Waste Minimization Certifications (Checklist 32)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
A(a Statement Checklist
page 14
-------
AF. Listing of EBOC (Checklist 33)—
1. Y N statutory and regulatory citations
2. Y -N dales of enactment
3. Y N N/A remarks of the Attorney General
AG. Land Disposal Restrictions (Checklist 34)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
(see revised SCRAM, pp. 3-2 through 3-5)
VII. HSWA Cluster II fJutv 1.1987 through June 30. 1990);
A. Standards for Hazardous Waste Storage and Treatment Tank Systems (checklist 52)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
B. California List Waste Restrictions (Checklists 34, 39, and 50)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
C. Exception Reporting for Small Quantity Generators of Hazardous Waste (Checklist 42)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AG Statement Checklist
page 15
-------
D. HSWA Codification Rule 2 (Checklist 44)
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AG Statement Checklist
PIP IB
-------
APPENDIX
BASE PROGRAM REVIEWS
Basic Program Requirements
This protocol should be completed for initial authorization applications only. For each
element that is part of the base program, the AG Statement must contain the following items:
a) Statutory and Regulators/ Citations: For each RCRA citation, the reviewer must:
• check for the presence of appropriate citations
analogous State statutory authority
analogous State regulatory authority
case law that is referenced in the narrative analysis
• ensure that the citations in the AG Statement match those on the Regulatory
Checklist
• ensure that the citations reference the correct statutory and regulatory authorities
b) Remarks of the Attorney General: For each instance where the State's regulations
differ from EPA regulations, the AG Statement must provide a narrative analysis. The
reviewer must:
• check to see whether the differences identified on the Regulatory Checklist are
explained in a narrative analysis
• ensure that the narrative analysis adequately explains whether, whv. and how the
cited authority provides the requisite authority for the program requirements
c) Dates of Enactment: For each citation, the reviewer must
• check for the presence of dates of enactment of laws and adoption of regulations
• ensure that all laws and regulations are or will be in effect prior to the date the AG
Statement is signed
• check that the dates referenced match the statutes and regulations in the
application
Below, note whether each program element contains each of the required pieces of
information. aN/A" for demonstration of authority means that the State requirements are
identical to the Federal requirements, and thus need no narrative explanation. A check m the
"no" column requires a comment to the State. Comments regarding more than one program
element can be combined where appropriate. Note, also, in the "Comments" column, any
inconsistencies between the AG Statement and the Regulatory Checklist any defldenoes in
the remarks of the Attorney General, and any other problems with the AG Statement
AQ Statement Checklist
17
-------
I. Identification and Listing:
Comments:
A. Definition of hazardous waste
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
B. Hazardous waste list and characteristics
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
II. Standards for Generators:
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
III. Standards for Transporters:
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
IV. Standards tor Facilities:
A. Permit standards
1. Y N statutory and regulatory citations
2. Y . N dates of enactment
3. Y N N/A remarks of the Attorney General
AG Statement Checklist
page is
-------
r-n mmantg-
B. Interim status requirements
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
V. Requirements for Permits:
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
VI. Inspections:
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
VII. Enforcement Remedies:
A. Authority to restrain unauthorized entries
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
B. Authority to sue without revoking permit
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
au statement unectost
Page 19
-------
Dnmmpnts-
C. Authority to assess $10,000/day civil penalties
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
D. Authority to obtain $l0,000/day criminal penalties
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
VIII. Public Participation in the State Enforcement Process:
A. Authority to allow intervention to obtain remedies
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
B. Assurances that the State will investigate complaints, not oppose citizen intervention, and
allow for public comment on any proposed settlement of State enforcement action
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
IX. Authority to Share Information with EPA:
1. Y N statutory and regulatory citations
2. Y N dates of enactment
3. Y N N/A remarks of the Attorney General
AG statement Uheckitst
jEE1
page 20
-------
nnmmpintR-
X. Authority Over Indian Lands:
1. Y N N/A statutory and regulatory citations
2. Y N N/A dates of enactment
3. Y N N/A remarks of the Attorney General
(see SCRAM, pp. 2.3-3 through 2.3-5, 2.3-7, 2.3-8 through 2.3-11)
Ati statement Checklist
Page 21
-------
APPENDIX Q
Table G-1. List of Revision Checklists by Cluster
Table G-2. Numerical Listing of Revision Checklists
and Corresponding Cluster
Cluster Rule 51 FR 33712 (September 22, 1986)
-------
TABLE G-1. UST OF REVISION CHECKLISTS BY CLUSTER
Purpose of Table Q-1: This table Hsts revision checklists by cluster and Includes the
Federal Register reference and date for each checklist as well as the due date for each
cluster. States should use this table for guidance on the timeframes for submitting the
program revisions represented by each checklist For specific guidance on how the overall
cluster system works, States should refer to the requirements Incorporated as part of the
Cluster Rule at 51 FR 33712 (September 22, 1986). For convenience, this rule has been
included at the end of this appendix.
"Non-Checklist" Entries: In addition to the checklists, Table Q-1 contains two types of
entries:
- unbracketed, unnumbered entries-Many of these are "non-checklist" requirements
which States must adopt These are also organized by cluster and Include: State
availability of information, direct action (third party) against insurers, and radioactive
mixed waste. The rest of the "unbracketed, unnumbered" entiles are HSWA
provisions that were subsequently dealt with by Revision Checklist 17-the HSWA
Codification Rule. These have a reference to Revision CheckHsts 17 A - 17 S.
• bracketed, unnumbered entries-These typically are corrections to a final rule that
were incorporated Into the checklist for that final rule. A reference Is given to the
appropriate checklist. These corrections to final rules are listed in the table to keep
track of which checklist they are associated with.
"Optional" Checklists are denoted by the "f" which precedes the checklist number. In an
optional checklist aH changes represented by the checklist are less stringent then existing
Federal code. Thus, States are not required to adopt these regulatory changes. However,
H a State chooses to adopt similar provisions, they must be at least as stringent as the
Federal requirements. Note that, in most cases, It will make sense for a State that adopts
part of an optional checklist to adopt aH of the provisions in that checklist. In regard to
checklists that contain both required and optional provisions, the State need not adopt the
less stringent requirements. For a further discussion of optional provisions, see the
discussion in Appencflx J, p. 4.
Updates: Table Q-1 will be updated semiannually by the State Program Advisories
providing new revision checklists.
TABLE G-2. NUMERICAL USTINQ OF REVISION CHECKLISTS
AND CORRESPONDING CLUSTER
Purpose of Table Q-2: This table lists the revision checklists numerically. Also fisted Is
the cluster for each checklist This table was developed as a quick reference for
determining which cluster a checkHst Is in. Previously, a table similar to Table Q-1 listing
the revision checklists by cluster was used for this Information. However, as the number of
revision checklists has grown, that table has become too lengthy to use efficiently for this
information.
Placement of Checklists In Each Cluster: For information on how a checkHst Is placed
In a cluster, see the discussion above for Table Q-1.
Optional Checklists: See the discussion for Table Q-1.
2
-------
Updates: Table G-2 will be updated semiannually by the State Program Advisories
providing new revision checklists.
3
-------
TABLE G-1. UST OF REVISION CHECKLISTS BY CLUSTER
Revision
Checklist
Number
Federal Reauirement
HSWA or FR
Reference
Promulga-
tion or
HSWA Date
Non-HSWA Reauirements Drior to non-HSWA Cluster 1 (January 26. 1983 -
June 30. 1984; Due Date • one vear after the Dromulaatlon date of the final
rule1)
1
Biennial Report [See Revision Checklist
30]
48 FR 3977
1/28/83
2
Permit Rules - Settlement Agreement
48 FR 39611
9/1/83
3
interim Status Standards - Applicability
[See Revision Checklist 10 in non-HSWA
Cluster I]
48 FR 52718
11/22/83
4
Chlorinated Aliphatic Hydrocarbon Listing
(F024)
49 FR 5308
2/10/84
5
National Uniform Manifest [See Revision
Checklists 17 D & 32 in HSWA Cluster I]
49 FR 10490
3/20/84
t®
Permit Rules: Settlement Agreement
49 FR 17716
4/24/84
V
Warfarin & Zinc Phosphide Listing
49 FR 19922
5/10/84
t8
Lime Stabilized Pickle Liquor Sludge
49 FR 23284
6/5/84
Non-HSWA Cluster 1 (Julv 1. 1984 - June 30 1985: Due Date -
Julv 1. 1986')
State Availability of information
HSWA §3006(0
11/8/84
t9
Household Waste
49 FR 44978
11/13/84
10
Interim Status Standards - Applicability
49 FR 46094
11/21/84
11
Corrections to Test Methods Manual
49 FR 47390
12/4/84
1-12
Satellite Accumulation
49 FR 49568
12/20/84
13
Definition of Solid Waste
50 FR 614
1/4/85
[Definition of Solid Waste; Correction (see
Revision Checklist 13 In non-HSWA
Cluster I)]
50 FR 14216
4/11/85
4
Continued .
-------
TABLE 0-1. LIST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Revision
Checklist
Number
15
Federal Requirement
Non-HSWA Cluster I (cont'd)
Interim Status Standards for Treatment,
Storage, and Disposal Facilities
[Definition of Solid Waste; Correction (see
Revision Checklist 13 in non-HSWA
Cluster I)]
HSWA or FR
Reference
50 FR 16044
50 FR 33541
Promulga-
tion or
HSWA Date
4/23/85
8/20/85
Non-HSWA Cluster II (July 1. 1985 - June 30. 1986: Due Date - July 1.
T987t)
24 Financial Responsibility: Settlement
Agreement
1*26 Listing of Spent Pickle Liquor (K062)
51 FR 16422
51 FR 19320
5/2/86
5/28/86
Non-HSWA CtustBr Hi (July 1. 1986 - June 30. 1987: Due Date - July 1.
1988*1
Radioactive Mixed Waste (See SPA 2)
f27 Liability Coverage - Corporate Guarantee
[See Revision CheckHst 43 In non-HSWA
Cluster IV]
28 Standards for Hazardous Waste Storage
and Treatment Tar* Systems [Certain
sections superseded by 53 FR 34079, see
Revision CheckHst 52 In non-HSWA
Cluster V; also see HSWA Cluster I]
29 Correction to Listing of Commercial
Chemical Products and AppencHx VIII
Constituents [Completely superseded by
53 FR 13382; use Revision Checklist 46 In
non-HSWA Cluster IV to replace this
checklist]
51 FR 24504
51 FR 25350
51 FR 25422
51 FR 28296
7/3/86
7/11/86
7/14/86
8/6/86
5
Continued .
-------
TABLE G-1. UST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Revision
Checklist
Number
35
36
37
38
Federal Requirement
Non-HSWA Cluster III (cont'd)
[Standards for Hazardous Waste Storage
and Treatment Tank Systems; Correction
(see Revision Checklist 28 in non-HSWA
Cluster III)]
t [Listing of Spent Pickle Liquor; Correction
(see Revision Checklist 26 in non-HSWA
Cluster II)]
Revised Manual SW-846; Amended
Incorporation by Reference
Closure/Post-closure Care for Interim
Status Surface Impoundments
Definition of Solid Waste; Technical
Corrections
Amendments to Part B Information
Requirements for Land Disposal Facilities
HSWA or FR
Reference
51 FR 29430
51 FR 33612
52 FR 8072
52 FR 8704
52 FR 21306
52 FR 23447
Promulga-
tion or
HSWA Date
8/15/86
9/22/86
3/16/87
3/19/87
6/5/87
6/22/87
Non-HSWA Cluster IV (July 1. 1987 - June 30. 1988: Due Date - July 1.
1989')
40 List (Phase I) of Hazardous Constituents
for Ground-Water Monitoring
41 Identification and Listing of Hazardous
Waste
[Listing of Spent Pickle Liquor; Clarification
(see Revision CheckHst 26 In non-HSWA
Cluster II)]
[Development of Corrective Action
Programs After Permitting Hazardous
Waste Land Disposal Facilities; Corrections
(see Revision CheckHst 38 in non-HSWA
Cluster III)]
52 FR 25942
52 FR 26012
52 FR 28697
52 FR 33936
7/9/87
7/10/87
8/3/87
9/9/87
6
ConSnued
-------
TABLE G-1. UST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Revision
Checklist
Number
1*43
45
46
Federal Requirement
Non-HSWA Cluster IV (cont'd)
Liability Requirements for Hazardous
Waste Facilities; Corporate Guarantee
[See Revision Checklist 27 in non-HSWA
Cluster III]*
Hazardous Waste Miscellaneous Units
[See Revision Checklist 59 in non-HSWA
V for technical corrections]
[Standards Applicable to Owners and
Operators of Hazardous Waste Treatment,
Storage, and Disposal Facilities;
Closure/Post-Closure and Financial
Responsibility Requirements (see Revision
Checklist 24 in non-HSWA Cluster II)]
Technical Correction; Identification and
Listing of Hazardous Waste (Entirely
supersedes Revision Checklist 29 In non-
HSWA Cluster III)
HSWA or FR
Reference
52 FR 44314
52 FR 46946
53 FR 7740
53 FR 13382
Promulga-
tion or
HSWA Date
11/18/87
12/10/87
3/10/88
4/22/88
Non-HSWA Cluster V (July 1. 1988 - June 30. 1989: Due Date - July 1.
1990^
f49 Identification and Listing of Hazardous
Waste; Treatability Studies Sample
Exemption
51 Standards Applicable to Owners and
Operators of Hazardous Waste Treatment,
Storage and Disposal Facilities; Liability
Coverage [withheld; EPA is responding to
the settlement of Btlgation surrounding this
rule]
52 Hazardous Waste Management System;
Standards for Hazardous Waste Storage
and Treatment Tank Systems [See
Revision CheckHst 28 in non-HSWA
Cluster III; also see HSWA Cluster II]
53 FR 27290
53 FR 33938
7/19/88
9/1/88
53 FR 34079
9/2/88
7
Continued .
-------
TABLE 0-1. LIST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Revision
Checklist
Number
53
Federal Requirement
t54
55
f56
t57
1*58
59
60
|61
Non-HSWA Cluster V (cont'd)
Identification and Listing of Hazardous
Waste; and Designation, Reportable
Quantities, and Notification
Permit Modifications for Hazardous Waste
Management Facilities
Statistical Methods for Evaluating Ground-
Water Monitoring Data from Hazardous
Waste Facilities
[Permit Modifications for Hazardous Waste
Management Facilities (see Revision
Checklist 54 in non-HSWA Cluster V)]
Identification and Listing of Hazardous
Waste; Removal of Iron Dextran from the
List of Hazardous Wastes
Identification and Listing of Hazardous
Waste; Removal of Strontium Sulfide from
the List of Hazardous Wastes
Standards for Generators of Hazardous
Waste; Manifest Renewal
Hazardous Waste Miscellaneous Units;
Standards Applicable to Owners and
Operators (Technical correction to Revision
Checklist 45 in non-HSWA Cluster IV)
Amendment to Requirements for
Hazardous Waste Incinerator Permits
Changes to Interim Status Facilities for
Hazardous Waste Management Permits;
Modifications of Hazardous Waste
Management Permits; Procedures for
Post-Closure Permitting
HSWA or FR
Reference
53 FR 35412
53 FR 37912
53 FR 39720
53 FR 41649
53 FR 43878
53 FR 43881
53 FR 45089
54 FR 615
54 FR 4286
54 FR 9596
Promulga-
tion or
HSWA Date
9/13/88
9/28/88
10/11/88
10/24/88
10/31/88
10/31/88
11/8/88
1/9/89
1/30/89
3/7/89
Continued . . .
8
-------
TABLE G-1. UST OF REVISION CHECKUSTS BY CLUSTER (cont'd)
Revision
Checklist
Number
14
16
Federal Requirement
HSWA or FR
Reference
Promulga-
tion or
HSWA Date
HSWA Cluster I (November 8. 1984 - June 30. 1987: Due Date - July 1.
19881)
Surface Impoundment Requirements
Exceptions to the Burning and Blending of
Hazardous Waste
Hazardous and Used Oil Fuel Criminal
Penalties
HSWA Date of Enactment Provisions [See
Revision Checklists 17 A - S in HSWA
Cluster I]
Direct Action Against Insurers
Dioxin Waste Listing and Management
Standards
Fuel Labeling [See Revision Checklist 17
K in HSWA Cluster I]
Paint Filter Test [See Revision Checklist
25 in HSWA Cluster I]
Prohibition of Liquids in Landfills [See
Revision Checkflst 17 F In HSWA Cluster
I]
Expansions During Interim Status • Waste
Piles [See Revision Checklist 17 P In
HSWA Cluster Q
Expansions During Interim Status -
Landfills and Surface Impoundments [See
Revision Checklist 17 P in HSWA Cluster
I]
HSWA §30050)
§3004(d)
UCIA/A
§3004(q)(2)(A)
§3004(r)(2)&(3)
HSWA
§3006(h)
§3008(d)
§3014
Numerous
HSWA §3004(t)
50 FR 1978
HSWA §3004
(r)(1)
50 FR 18370
HSWA
§3004(c)
HSWA
§3015(a)
HSWA
§3015(b)
11/8/84
11/8/84
1/14/85
2/7/85
4/30/85
5/8/85
5/8/85
5/8/85
9
Continued .
-------
TABLE G-1. UST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Revision
Checklist
Number
17
Federal Requirement
HSWA Cluster I (cont'd)
Sharing of Information With the Agency for
Toxic Substances and Disease Registiy
HSWA Codification Rule [See Revision
Checklist 44 In HSWA Cluster II]
HSWA or FR
Reference
HSWA
§3019(b)
50 FR 28702
Promulga-
tion or
HSWA Date
7/15/85
7/15/85
17 A - Small Quantity Generators
[Superseded by 51 FR 10146, see
Revision Checklist 23 in HSWA
Cluster I]
t 17 B - Delisting
t 17 C - Household Waste
17 D - Waste Minimization [See Revision
Checklist 32 In HSWA Cluster I]
17 E - Location Standards for Salt Domes,
Salt Beds, Underground Mines and
Caves
17 F - Liquids in Landfills [See Revision
Checklist 25 In HSWA Cluster I]
17 Q - Dust Suppression
17 H - Double Uners
17 I - Ground-Water Monitoring
17 J - Cement Kilns
17 K - Fuel Labeling [Superseded by 51
FR 49164, see Revision Checkflst
19 In HSWA Cluster i]
17 L • Corrective Action
17 M - P re-const ruction Ban
17 N • Permit Ufe
17 0- Omnibus Provision
17 P - Interim Status
t 17 Q - Research and Development Permits
17 R - Hazardous Waste Exports
[Superseded by 51 FR 28644, see
Revision Checklist 31 in HSWA
Cluster I]
17 S - Exposure Information
18 Listing of TDI, TDA, DNT 50 FR 42936 10/23/85
19 Burning of Waste Fuel and Used Oil Fuel 50 FR 49164 11/29/85
in Boilers and industrial Furnaces
Continued . ..
10
-------
TABLE 0-1. LIST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Revision
Checklist
Number
20
Federal Requirement
21
22
23
25
28
30
31
32
33
34
HSWA Cluster I (cont'd)
Listing of Spent Solvents
[Listing of Spent Solvents; Correction (see
Revision Checklist 20)]
Listing of EDB Waste
Listing of Four Spent Solvents
Generators of 100 to 1000 kg Hazardous
Waste [See Revision Checklists 42 and 47
in HSWA Cluster II]
Codification Rule, Technical Correction
(Paint Filter Test)
Standards for Hazardous Waste Storage
and Treatment Tank Systems [Certain
sections superseded by 53 FR 34079, see
Revision Checklist 52 in HSWA Cluster ll;
also see Non-HSWA Cluster III]
Biennial Report; Correction
Exports of Hazardous Waste [See Revision
Checklist 48 in HSWA Cluster II]
[Hazardous Waste Storage and Tank
Systems; Corrections (see Revision
Checklist 28 in HSWA Cluster I)]
Standards for Generators - Waste
Minimization Certifications
Listing of EBDC
Land Disposal Restrictions [Certain
sections superseded by 52 FR 25760 and
53 FR 31138, see Revision Checklists 39
& 50 in HSWA Cluster II, and SPAs 4 &
6]
HSWA or FR
Reference
50 FR 53315
51 FR 2702
51 FR 5327
51 FR 6537
51 FR 10146
51 FR 19176
51 FR 25422
51 FR 26556
51 FR 28664
51 FR 29430
51 FR 35190
51 FR 37725
51 FR 40572
Promulga-
tion or
HSWA Date
12/31/85
1/21/86
2/13/86
2/25/86
3/24/86
5/28/86
7/14/86
6/8/66
8/8/86
8/15/86
10/1/86
10/24/86
11/7/86
Continued . . .
11
-------
TABLE G-1. UST OF REVISION CHECKUSTS BY CLUSTER (cont'd)
Revision
Checklist
Number
Federal Requirement
HSWA Cluster I (cont'd)
[Used Oil: Decision Not to Adopt
Proposed Rule; Tentative Schedule to
Address Issues Still Outstanding (see
Revision Checklist 19 In HSWA Cluster I)]
[Burning of Waste Fuel and Used Oil Fuel
in Boilers and Industrial Furnaces;
Technical Corrections (see Revision
Checklist 19 In HSWA Cluster I)]
HSWA or FR
Reference
51 FR 41900
52 FR 11819
Promulga-
tion or
HSWA Date
11/19/86
4/13/87
[Land Disposal Restrictions; Corrections 52 FR 21010 6/4/B7
(see Revision Checklist 34 in HSWA
Cluster I)]
HSWA Cluster II /July 1. 1987 - June 30. 1990: Due Date • July 1. 1991 ^
39 California List Waste Restrictions [See 52 FR 25760 7/8/87
Revision Checklist 34 and SPA 4; certain
sections superseded by 53 FR 31138, see
Revision Checklist 50, In HSWA Cluster II,
and SPA 6]
42 Exception Reporting for Small Quantity
Generators of Hazardous Waste [See
Checklist 23 In HSWA Cluster I]
[California List Waste Restrictions;
Technical Corrections (see Revision
Checklist 39 in HSWA Cluster II)]
44 HSWA Codification Rule 2 [See Revision
Checklist 17 in HSWA Cluster I]
52 FR 35894
52 FR 41295
52 FR 45788
9/23/87
10/27/87
12/1/87
44 A - Permit Application Requirements
Regarding Corrective Action
44 B - Corrective Action Beyond Facility
Boundary
44 C - Corrective Action for Injection Wells
44 D - Permit Modification
44 E - Permit as a Shield Provision
12
Continued .
-------
TABLE G-1. LIST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Revision
Checklist
Number
47
48
50
52
Federal Requirement
HSWA Cluster ll (cont'd)
44 F - Permit Conditions to Protect Human
Health and the Environment
44 G - Post-Closure Permits
Identification and Listing of Hazardous
Waste; Technical Correction (corrects
Revision Checklist 23 in HSWA Cluster I)
Farmer Exemptions; Technical Corrections
(corrects Revision Checklist 31 in HSWA
Cluster I)
Land Disposal Restrictions for First Third
Scheduled Wastes [see Revision Checklist
62 in HSWA Cluster I]
Hazardous Waste Management System;
Standards for Hazardous Waste Storage
and Treatment Tank Systems [Supersedes
certain portions of Revision Checklist 28 in
HSWA Cluster I; also see non-HSWA
Cluster V]
[Identification and Listing of Hazardous
Waste; Land Disposal Restrictions-
Administrative Stay (see Revision Checklist
50 in HSWA Cluster II)]
[Land Disposal Restrictions (see Revision
Checklist 50 In HSWA Cluster II)]
HSWA or FR
Reference
Promulga-
tion or
HSWA Date
53 FR 27162
53 FR 27164
53 FR 31138
53 FR 34079
7/19/88
7/19/88
8/17/88
9/2/88
54 FR 4021
1/27/89
54 FR 8264
2/27/89
62 Land Disposal Restriction Amendments to 54 FR 18836 5/2/89
First Third Scheduled Wastes [amends
portions of Revision Checklist 50 In HSWA
Cluster II]
63 Land Disposal Restrictions for Second 54 FR 26594 8/23/89
Third Scheduled Wastes
13
Conflmed
-------
TABLE G-1. LIST OF REVISION CHECKLISTS BY CLUSTER (cont'd)
Revision
Checklist
Number
Federal Requirement
HSWA Cluster II (cont'd)
[Hazardous Waste Management System:
Requirements of Rulemaking Petitions (see
Revision Checklist 17 B In HSWA Cluster
«)]
HSWA or FR
Reference
54 FR 27114
Promulga-
tion or
HSWA Date
6/27/89
1 States have an additional year if statutory changes are required,
t Optional.
While Revision Checklists 27 and 43 are optional, States which have adopted or
choose to adopt the changes addressed by Revision Checklist 27 must adopt
Revision Checklist 43's changes.
14
-------
TABLE G-2. NUMERICAL LISTING OF REVISION CHECKLISTS
AND CORRESPONDING CLUSTER
Revision
Checklist
Number
5
te
t7
t8
Federal Requirement
State Availability of Information [See
Appendix N]
Radioactive Mixed Waste (See SPA
2 and Appendix N)
Direct Action Against insurers
Surface Impoundment Requirements
Sharing of Information With the
Agency for Toxic Substances and
Disease Registry
Exceptions to the Burning and
Blending of Hazardous Waste
Hazardous and Used Oil Fuel
Criminal Penalties
Biennial Report
Permit Rules - Settlement Agreement
Interim Status Standards -
Applicability
Chlorinated Aliphatic Hydrocarbon
Listing (F024)
National Uniform Manifest
Permit Rules: Settlement Agreement
Warfarin & Zinc Phosphide Listing
Lime Stabilized Pickle Liquor Sludge
Cluster
Non-HSWA Cluster I
Non-HSWA Cluster III
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
Non-HSWA Requirements Prior to
Non-HSWA Cluster I
Non-HSWA Requirements Prior to
Non-HSWA Cluster i
Non-HSWA Requirements Prior to
Non-HSWA Cluster I
Non-HSWA Requirements Prior to
Non-HSWA Cluster I
Non-HSWA Requirements Prior to
Non-HSWA Cluster I
Non-HSWA Requirements Prior to
Non-HSWA Cluster I
Non-HSWA Requirements Prior to
Non-HSWA Cluster I
Non-HSWA Requirements Prior to
Non-HSWA Cluster I
15
-------
TABLE G-2. NUMERICAL LISTING OF REVISION CHECKLISTS
AND CORRESPONDING CLUSTER (cont'd)
Revision
Checklist
Number
t9
10
11
1*12
13
14
15
16
17
Federal Requirement
Household Waste
Interim Status Standards -
Applicability
Corrections to Test Methods Manual
Satellite Accumulation
Definition of Solid Waste
Dioxin Waste Listing and
Management Standards
Interim Status Standards for
Treatment, Storage, and Disposal
Facilities
Paint Filter Test
HSWA Codification Rule
Cluster
Non-HSWA Cluster I
Non-HSWA Cluster I
Non-HSWA Cluster I
Non-HSWA Cluster I
Non-HSWA Cluster I
HSWA Cluster I
Non-HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
t
t
17 A
17 B
17 C
17 D
17 E
17 F -
17 G ¦
17 H ¦
17 I -
17 J -
17 K -
17 L -
17 M
17 N -
17 O ¦
17 P -
17 Q ¦
17 R -
17 S -
Small Quantity Generators
Delisting
Household Waste
Waste Minimization
Location Standards for Salt
Domes, Salt Beds, Underground
Mines and Caves
Liquids in Landfills
Dust Suppression
Double Liners
Ground-Water Monitoring
Cement Kilns
Fuel Labeling
Corrective Action
Pro-construction Ban
Permit Life
Omnibus Provision
Interim Status
Research and Development
Permits
Hazardous Waste Exports
Exposure Information
Continued
16
-------
18
19
20
21
22
23
24
25
t26
•|27
28
29
30
31
32
33
TABLE G-2. NUMERICAL LISTING OF REVISION CHECKLISTS
AND CORRESPONDING CLUSTER (cont'd)
Federal Requirement
Cluster
Listing of TDI, TDA, DNT
Burning of Waste Fuel and Used Oil
Fuel in Boilers and Industrial
Furnaces
Listing of Spent Solvents
Listing of EDB Waste
Listing of Four Spent Solvents
Generators of 100 to 1000 kg
Hazardous Waste
Financial Responsibility: Settlement
Agreement
Codification Rule, Technical
Correction (Paint Filter Test)
Listing of Spent Pickle Liquor (K062)
Liability Coverage - Corporate
Guarantee
Standards for Hazardous Waste
Storage and Treatment Tank
Systems
Correction to Listing of Commercial
Chemical Products and Appendix VIII
Constituents
Biennial Report; Correction
Exports of Hazardous Waste
Standards for Generators - Waste
Minimization Certifications
Listing of EBDC
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
Non-HSWA Cluster II
HSWA Cluster I
Non-HSWA Cluster II
Non-HSWA Cluster III
Non-HSWA Cluster III and HSWA
Cluster I
Non-HSWA Cluster III
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
HSWA Cluster I
Continued
17
-------
TABLE G-2. NUMERICAL USTINQ OF REVISION CHECKLISTS
AND CORRESPONDING CLUSTER (cont'd)
Revision
Checklist
Number
34
35
36
37
38
39
40
41
42
*f43
Federal Requirement
Land Disposal Restrictions
Revised Manual SW-846; Amended
Incorporation by Reference
Closure/Post-closure Care for Interim
Status Surface Impoundments
Definition of Solid Waste; Technical
Corrections
Amendments to Part B Information
Requirements for Land Disposal
Facilities
California List Waste Restrictions
List (Phase I) of Hazardous
Constituents for Ground-Water
Monitoring
Identification and Listing of
Hazardous Waste
Exception Repotting for Small
Quantity Generators of Hazardous
Waste
Liability Requirements for Hazardous
Waste Facilities; Corporate
Guarantee
Cluster
HSWA Cluster I
Non-HSWA Cluster III
Non-HSWA Cluster III
Non-HSWA Cluster III
Non-HSWA Cluster III
HSWA Cluster II
Non-HSWA Cluster IV
Non-HSWA Cluster IV
HSWA Cluster II
Non-HSWA Cluster IV
18
Continued .
-------
TABLE G-2. NUMERICAL LISTING OF REVISION CHECKUSTS
AND CORRESPONDING CLUSTER (cont'd)
Revision
Checklist
Number Federal Requirement Cluster
44 HSWA Codification Rule 2 HSWA Cluster II
44 A -
Permit Application
Requirements Regarding
Corrective Action
44 B -
Corrective Action Beyond
Facility Boundary
44 C -
Corrective Action for
Injection Wells
44 D -
Permit Modification
44 E -
Permit as a Shield
Provision
44 F -
Permit Conditions to Protect
Human Health and the
Environment
44 G -
Post-Closure Permits
45 Hazardous Waste Miscellaneous
Units
46 Technical Correction; Identification
and Listing of Hazardous Waste
47 identification and Listing of
Hazardous Waste; Technical
Correction
48 Farmer Exemptions; Technical
Corrections
t49 Identification and Listing of
Hazardous Waste; Treatability
Studies Sample Exemption
50 Land Disposal Restrictions for First
Third Scheduled Wastes
51 Standards Applicable to Owners and
Operators of Hazardous Waste
Treatment, Storage and Disposal
Facilities; Liability Coverage
[withheld; EPA is responding to the
settlement of litigation surrounding
this rule]
Non-HSWA Cluster IV
Non-HSWA Cluster IV
HSWA Cluster II
HSWA Cluster II
Non-HSWA Cluster V
HSWA Cluster II
Non-HSWA Cluster V
Continued . . .
19
-------
TABLE G-2. NUMERICAL LISTING OF REVISION CHECKLISTS
AND CORRESPONDING CLUSTER (cont'd)
Revision
Checklist
Number Federal Requirement Cluster
52 Hazardous Waste Management
System; Standards for Hazardous
Waste Storage and Treatment Tank
Systems
53 Identification and Listing of
Hazardous Waste; and Designation,
Reportable Quantities, and
Notification
f54 Permit Modifications for Hazardous
Waste Management Facilities
55 Statistical Methods for Evaluating
Ground-Water Monitoring Data from
Hazardous Waste Facilities
t56 identification and Listing of
Hazardous Waste; Removal of Iron
Dextran from the List of Hazardous
Wastes
t57 Identification and Listing of
Hazardous Waste; Removal of
Strontium Sulfide from the List of
Hazardous Wastes
f58 Standards for Generators of
Hazardous Waste; Manifest Renewal
59 Hazardous Waste Miscellaneous
Units; Standards Applicable to
Owners and Operators
60 Amendment to Requirements for
Hazardous Waste Incinerator Permits
f61 Changes to Interim Status Facilities
for Hazardous Waste Management
Permits; Modifications of Hazardous
Waste Management Permits;
Procedures for Post-Closure
Permitting
Non-HSWA Cluster V and HSWA
Cluster II
Non-HSWA Cluster V
Non-HSWA Cluster V
Non-HSWA Cluster V
Non-HSWA Cluster V
Non-HSWA Cluster V
Non-HSWA Cluster V
Non-HSWA Cluster V
Non-HSWA Cluster V
Non-HSWA Cluster V
Continued
20
-------
TABLE G-2. NUMERICAL LISTING OF REVISION CHECKLISTS
AND CORRESPONDING CLUSTER (cont'd)
Revision
Checklist
Number
Federal Requirement
Cluster
62 Land Disposal Restriction
Amendments to First Third
Scheduled Wastes
HSWA Cluster II
63 Land Disposal Restrictions for
Second Third Scheduled Wastes
HSWA Cluster II
t Optional.
While Revision Checklists 27 and 43 are optional, States which have adopted or
choose to adopt the changes addressed by Revision Checklist 27, must adopt
Revision Checklist 43's changes.
21
Continued .
-------
33712 Fedaral Register / Vol. SI, No. 183 /• Monday, September 22, 1986 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 271
[FRL 9042-7]
oiiii ninraoMi wmv noywn
Requirements
AOKNCY: Environmental Protection
Agency.
action: Final rule.
summary: The Environmental Protection
Agency is today promulgating
amendments to the requirements for
State hazardous waste programs. The
final rule specifies deadlines for State
program modifications and makes other
changes to the existing regulations to
implement the State authorization
provisions of the Hazardous and Solid
Waste Amendments of 1984 (HSWA).
This is the first of a set of companion
rules to EPA's final codification rule,
published July 15.1085 (50 FR 28702),
which codified in regulations those
requirements specified by HSWA which
took effect immediately or shortly after
enactment
date These regulations become
effective September 22,1988.
PON FURTHER INFORMATION CONTACT.
The RCRA Hotline, toll-free (800) 424-
9348 or in Washington, DC at (202) 382-
3000. or Marty Madison, State Programs
Branch. U.S. Environmental Protection
Agency, 401M Street SW., Washington,
DC. 20480. Telephone: (202) 382-2210.
8UPPLCM8MTARV MPORMATtOfC
PiMabla Outline
I. Authority
II. Background
III. DiacuMion
A. General Requirement! for final au-
thorization
1. Table of HSWA Regulations
and Self-Implementing Provi-
sions
2. Termination of Interim Status
3. Delisting
4. Initial Applications
B. Cluster*
1. Cluster Period
2. Non-HSWA Cluaten
3. HSWA Ousters
4. State Availability of Informa-
tion
5. State Schedules of CoanpH-
ance
6. Use of Promulgation Dates to
Define Clutters
7. Self-Implementing Statutoiy
Proviaiona
8. State Equivalence for Rrri-
•iona
9. State Submiaaion of Program
Modifications
10. Revisions for Program
Changes Occurring During the
Authorization Process
11. Effect of Ouster Rule on Re-
cently Promulgated Tank
Standards
C Interim Authorization
1. Expiration of HSWA Interim
Authorization
2. Application Procedures for
HSWA Interim Authorization
D. Administrative Compliance Order
and Penalty Authorities
IV. Response to Comments
V. Effective Date
VL Regulatory Analysis
A. Regulatory Impact Analysis
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
I. Authority
These regulations are issued under
authority of sections 1008,2002(a), and
3008. of the Solid Waste Disposal Act
as amended by the Resource
Conservation and Recovery Act as
amended, 42 U.S.C. 8905.8912(a), and
8928.
O. Background
On November 8,1984, the President
signed into law the hazardous and Solid
Waste Amendments of 1984 [HSWA).
This statute makes many changes to
EPA's existing hazardous waste
management program. The statute
further provides that State programs
may receive interim or final
authorization to cany out the HSWA
provisions in lieu of EPA. Interim
authorization is a temporary
authorization which is granted if EPA
determines that the State program is
"substantially equivalent" to the Federal
program. On the other hand,
authorization is granted permanently to
a State by EPA if the Agency finds that
the State program: (1) Is "equivalent" to
the Federal program, (2) is consistent
with the Federal program and other
State programs, and (3) provides for
adequate enforcement
On )uly 15,1985, EPA published a
final rule that amended EPA's
hazardous waste regulations to reflect
those statutory provisions that have
immediate or short-term effects on the
regulated community and States (50 FR
28702-28755). That rule is referred to
hereafter as the "final codification rule".
Hie preamble to the final codification
rule provides in detail the background
end purpose of EPA's efforts to
incorporate into the existing Subtitle C
regulations a set of requirements from
the HSWA. Briefly, the final rule simply
adds the statutory language to the
existing Subtitle C regulations, with a
preamble that provides our legal
interpretations of that language. The
rale also makes changes to provide for
HSWA interim and final authorization.
He preamble to the final codification
role discusses the impact of HSWA on
State authorization (see 50 FR 28728 to
28733).
On January 8,1988, EPA proposed
changes to the Subtitle C regulations
that were more than mere transpositions
of the statutory provisions which take
effect immediately or shortly after
enactment (see 51 FR 498-504). The
proposal dealt with State authorization
issues that were logical outgrowths of
the new Amendments, rather than
matters mandated for immediate
implementation by the statute. In
particular, the notice proposed changes
to the Part 271 State authorization
regulations in four areas: (1) The
requirements States must meet to obtain
and retain final authorization. (2) the
deadlines by which States must revise
their programs to reflect changes in the
Federal program. (3) the expiration date
for interim authorization under section
3008(g) of RCRA. as amended by
HSWA, and (4) application procedures
for section 3008(g) interim authorization.
The proposed rule was the first of a few
companion rules to the final codification
rule (see also 51 FR 10708-10723, March
28,1988, regarding liners and corrective
action).
The Agency received a number of
comments on these proposed changes to
Part 271. We have evaluated these
comments carefully, and, where
appropriate, have modified the
regulations accordingly. This notice
-------
F
1 Register / Vol 51, No. 183 / Monday. September 22. 1986 / Rules and Regulations 33713
promulgates in final form the regulation
that was proposed on January 6.1088.
and provides EPA's response to the
comments received on that proposal.
This preamble also provides a detailed
discussion of the provisions of the final
rule.
"t ™
This section of the preamble discusses
the provisions of the final rale being
promulgated today. Any dlfhiemjes
from the January ft, 1868 proposal ace
described in detail. This section also
responds to many of the comments
received on the proposal. EPA's
response to the remaining comments can
be found in Section IV, Response to
Comments.
A Genera] Requirements for Final
Authorization
l. Table of HSWA Regulations and Self*
Implementing Provisions
In the July 15 final codification rule,
the Agency added new f 271A(|) to
identify the Federal program
requirements and prohibitions that are
promulgated or take effect pursuant to
HSWA. These requirements included
the regulations implementing HSWA as
specified in the table accompanying
S 27l.l(J) and any self-implementing
HSWA provisions. In the January 8
proposal, the Agency proposed to add a
statement to 8 27l.l(J)|2) specifying that
the table in 1271.1(j) indicates the
promulgation date of the regulation
which may differ from the effective data.
Several commentors suggested that the
table include the effective date as well
as the promulgation data. We agree with
this suggestion, and have modified
Table 1 accordingly. In today's
rulemaking we are reprinting the anient
table in its entirety for ease of the user.
Future HSWA rules will bs added to the
table in chronological order of
promulgation data.
In the preamble to the proposal we
also discussed the possibility of
a second table to 1271.1U) that would
identify the HSWA self-implementing
statutory provisions that take effect
independent of any rulemaking action. A
co mm enter supported this idea and the
Agency believes that such a table would
provide useful information regarding the
self-Implementing statutory provisions.
Accordingly, today we are adding a new
table to the regulations. Table Zlists
each HSWA self-implementing
provision, indicates the effective date of
the provision, and provides the
appropriate statutory citation. Since
some of the self-implementing
provisions have been incorporated into
the EPA regulations, the last column in
the table references the appropriate
regulation where applicable. Statutory
requirements that are not yet effective
are included in this table for future
reference.
2. Termination of Interim Status
The Agency proposed to amend
1271.13(a) to provide that States may
authorize owners and operators of
facilities with interim status to remain in
operation until interim status terminates
pursuant to 40 CFR127073(cHQ»
Commanters did not object to the
proposed amendment The amendment
to 8 271.13(a) is necessary to assure that
State programs conform to the HSWA
requirements concerning automatie
termination of interim statu if Part B
permit applications and certifications of
compliance an not submitted within
specific time frames. Therefore, the
Agency is promulgating the amendment
to 8 27113(a) aa proposed. Under tWe
new requirement States most provide
foe termination of the State analogue to
Federal interim status for those fadlMee
that would lose interim status pursuant
to 8 27O.73(cH0-
Delisting
In the final codification rule, the
Agency amended 8 280.22 to include die
specific criteria and procedurea for
delisting aa set forth in HSWA. hi die
January 8 proposal the Agency
proposed to amend 8 271.9 by providing
that a State is not required to have a
delisting mechanism; however. States
with daiuHwg mechanisms must act
consistently with the Federal delisting
procedures set forth in 8 718027 The
purpose of this proposed amendment
was to clearly define the State
authorization requirements under
HSWA for States adopting delisting
provisions.
After considering the proposed
language, the Agency has decided to
additional to
8 271A Today's rule still provides that
States are not required to have a
delisting mechanism in order to receive
or maintain authorization. If a State
does have a delisting mechanism and
wishes to be authorised for in
lieu of EPA. then the State must have
regulations equivalent to 88 28020(b)
end 28022. The Agency slightly
modified die proposed language by
referring to 8 280200)} in addition to
8 280 22 and requiring States provide for
public notice and opportunity for
comment before granting or denying
delisting requests.
The modified language in today's rule
is intended to avoid any confusion that
may have been created under the
proposal. Aa discussed previously, the
proposal specified that State progrema
must be equivalent to 8 280.22. Section
280.22 provides that any person issuing
to exclude s waste may use the
procedures in 8 28020. The Agency
intended that only 8 28020(b) should be
necessary for State authorization, not
8 28020(cHe). The State must be
equivalent to 8 28020(b) since this
provision specifies information that
must be submitted by the petitioner.
Sections 28020 (c), (d). and (e) define
EPA's procedures for processing
delisting requests. The State does not
have to use the same procedures aa does
EPA as long as the State provides for
notice and opportunity for comment
when granting or denying delisting
requests. Therefore, the Agency changed
the language in today's rulemaking to
specifically indicate that the delisting
authorization requirements include
provisions equivalent to 88 28022 and
28020(b). as well as provisions for
public notice and opportunity for
comment
One commentor suggested that 8 271.9
specify that a State may delist wastes
that are controlled under the State
program but are not considered
hazardous wastes by the Federal
program. Section 271.8 does not prohibit
a State from delisting such wastes. Since
these State-controlled wastes are
beyond the scope of the Federal
program, any activities associated with
those wastes are not e part of the
"authorised" State program and are
therefore not addressed by 8 271JL
Another commentor requested that
8 271.9 specify that EPA may grant a
dplunnfl even if the State does not have
a rf»n«Hwg mechanism. Although EPA
could take such an action, the S>A
delisting would relieve the petitioner
only from the applicable Federal
requirements. If the State regulates s
waste that has been delisted by EPA.
then obviously the waste is still subject
to State control while managed within
the State. While this is a factual
representation of the potential
interrelationship of the Federal and
State delisting mechanisms, it is not an
issue appropriate for a State
authorization regulation.
4. Initial Applications
The Agency proposed an amendment
to 8 271.3(f) providing that State
applications for final authorization may
be reviewed on the basis of Federal self-
implementing statutory provisions or
regulations in effect 12 months prior to
the State's submission of its official
application. The Agency used the term
"may" in the proposed amendments to
indicate that States are not precluded
-------
33714 Federal Regbtar / Vol SI. No. 183 / Monday, September 22. 1986 I Rules and Regulations
from seeking authorization for
requirements taking effect less than 12
months prior to die State's submittal of
its final authorisation application. In
order to clarify i 271.3(f), the Agency is
today amending the provision by
providing that States may be authorised
for requirements taking effect less than
12 months before a State submits its
official application. However, the basic
requirement of this section remains
unchanged in today's rule—State
applications must at a minimum, reflect
the Federal requirements in effect 12
months prior to application submittal.
Initial applications that do not address
all such requirements will not be
sufficient
B. Clusters
Under S 271.21(e)(2) as currently
promulgated. States with final
authorization are required to modify
their programs to adopt new Federal
requirements within a one- or two-year
time frame from the promulgation date
of a regulation or the effective date of a
self-implementing statutory amendment
(one year if only regulatory changes are
needed and two years If statutory
changes are necessary).
In the )anuary 8 proposal EPA
proposed to amend the existing
deadlines in 1271.21 by which States
must revise their programs to reflect
changes to the Federal program. Under
the proposal the Agency chose an
annual deadline for groups ("dusters")
of Federal program changes occurring
after June 1984. The cluster deadlines
varied for HSWA and non-HSWA
requirements. Non-HSWA changes were
grouped in annual clusters and the State
modifications for all such provisions
contained in a cluster would be due one
year after the cluster end date (or two
years if State statutory changes are
needed). For HSWA provisions, the
proposal contained a one-time multi-
year cluster to encompass the HSWA
changes that occur on or before June 30.
1987, with the exception of the
availability of information provision in
{ 3006(f) of HSWA. States would be
required to adopt these HSWA
provisions by July 1.1988 (or July 1,1989
for the provisions that necessitate State
statutory changes). The Agency required
States to pick up i 3006(f) by July 1,1986
(or July 1.1987 if a statutory change iB
required).
in general, commentors voiced strong
support for the clustering approach but
in several instances suggested
modifications. The following sections
describe the final cluster rule, including
any modifications to the rule, and
respond to the comments received on
the cluster proposal
1. Ouster Period
As discussed above, the Agency
proposed to amend S 271.21(e)(2) to
cluster Federal program changes
occurring after June 1984. The cluster
dates varied somewhat depending on
whether the program revisions
concerned HSWA or non-HSWA
requirements. However, the common
factor for all program revisions was that
the Agency proposed June 30 as the end
date tor all clusters. Commenters
supported the June 30 date. As discussed
in the preamble to the proposal the
Agency chose this date to facilitate
submission of statutory amendments to
State legislatures. The Agency is today
promulgating amendments to
{ 271.21(e)(2) which establish June 30 as
the end date for all clusters.
2. Non-HSWA Ousters
Under the proposaL the Agency
created an annual cluster for Federal
non-HSWA program changes occurring
after June 1984. The non-HSWA annual
cluster, encompasses all Federal
requirements promulgated in a twelve-
month period running from July 1 of one
year to June 30 of the next year. The one
year/two year dock in § 271.21(e)(2)
starts simultaneously for all
requirements on July 1 immediately
following the annual duster end-date.
For example, a regulation published by
EPA in October 1984 would be in the
first duster covering the time period
from July 1.1984 to June 30,1985. The
program modification dock would start
on July 1,1985, and no State would have
to complete program modifications for
the regulation until July 1.1988 (or July 1.
1987, where the State has to change its
statute).
Almost every commentor expressed
strong support for a duster approach for
the non-HSWA regulations. Indeed,
many States remarked that without such
an approach they would find it nearly
impossible to adopt the required
changes within the current deadlines.
Several States commented that at a
minimum, they needed the flexibility
offered by the proposed S 271.21(e)(2)(ii)
deadlines because they were required to
submit their regulations for legislative
review. In some of these States, the
legislature only meets once a year and
the regulations must be submitted
several months prior to the legislative
session. In addition to these legislative
constraints. States noted that they have
detailed and prolonged administrative
procedures to follow prior to regulatory
adoption. However, one commentor
opposed the dustering approach for
non-HSWA requirements, noting that by
giving States more time to adopt
program changes, such an approach
would delay implementation of non-
HSWA requirements.
While the dustering approach may
entail some implementation delay, the
Agency believes that the flexibility in
the proposed fi 271.21(e)(2](ii) deadlines
is. as suggested by the commentors,
necessary to facilitate submission of
proposed legislative or regulatory
amendments to State legislatures.
Furthermore, the Agency believes that
any delay in regulatory implementation
would be mitigated for those Federal
regulations which had an effective date
six months subsequent to the
promulgation date. As discussed
elsewhere in this preamble, the time
docks for program revision run from the
promulgation date as opposed to the
effective date of a regulatory
amendment Therefore, any delay in the
State's implementation of regulatory
amendments as a result of the duster
rule would be less severe for those
Federal rules with a delayed effective
date. Accordingly, the Agency is
adopting the proposed amendment to
1271.21(e)(2)(H) as a final rule.
3. HSWA Clusters
The proposal contained a one-time
multi-year duster to encompass the
HSWA provisions that occur between
the date of enactment (November 8,
1984) and June 30,1987. States would be
required to adopt these HSWA
provisions by July 1,1988 if only State
regulatory changes are needed or July 1.
1989 for any specific HSWA provisions
that necessitate State statutory changes.
In the preamble to the proposal we
explained that the June 1987 date was
chosen because we expect the bulk of
the HSWA changes to the Federal
program to occur prior to that date.
Under the proposal any HSWA changes
occurring after June 30,1987 would be
induded in annual dusters. In the
preamble to the proposal we solicited
comments from State agendas regarding
these deadlines for HSWA revisions.
Nine States commented that they are
extremely concerned about being able to
modify their program for HSWA by July
1988 (or July 1989 if statutory
amendments are required). The primary
reasons for their concern stemmed from
the volume and complexity of HSWA
changes. In addition, the commentors
dted lengthy legislative and
administrative procedures as an
impediment to adopting regulations
within the proposed time frames. A few
States noted that their timeframes for
regulatory development exceeded six
months without taking into account any
redrafting necessitated by EPA
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Federal Ragfatar / Vol. 51. No. 183 / Monday. September 22, 1980 / Rules and Regulations 33715
comment!. Many oommentors requested
a delay of the HSWA clatter date,
noting the difficulty in obtaining
piecemeal atatutory amendments from a
legislature. Given these factor!, the
States are doubtful that the requisite
amendments could be made in a timely
fashion.
The States also opposed adopting the
Federal program before it is fully
developed, saying that it would be
preferable to require States to pick up
the HSWA program only after all the
components of the Federal program
were in place. The States remarked that
it would be better to use their resources
to assist EPA in the implementation of
HSWA rather than making extensive
changes to their program and preparing
authorization applications. These
commenton suggested that the revision
deadline far the HSWA duster be
extended until 1B90 or later.
In response to these comments, the
Agency reevaluated the HSWA duster
deadlines. As a result of this
reevaluation. the Agency is modifying
the proposed rule in two aspects. First
we are leaving the special HSWA
duster period as proposed (November 8,
1984 to June 30.1987), but the deadline
for these revisions has been changed
from July 1,1988 to July 1.1989. In
addition, we are creating a second
multi-year HSWA duster for HSWA
provisions that are promulgated during
the period of July 1,1987 to June 3a 199a
States must modify their programs for
changes in the second duster by July 1.
1991 (or 1992 if a statutory change is
needed). Any HSWA changes occurring
after June 3a 1990 will be induded in
the annual cluster*.
The Agency believes that these two
changes taken together provide the
States with needed additional time to
pick up the HSWA changes while still
encouraging State assumption of the
hazardous waste program. The first
HSWA duster should indude the
majority of the antidpated facility
standards. (See the schedule of HSWA
program changes in the preamble to the
January 8 proposal, page 498.) Since this
cluster contains the major components
of the HSWA program the Agency
believes that it is appropriate to extend
the deadline for adopting these
components by one year in order to
allow States more time to make the
requisite legislative and regulatory
amendments. Since the HSWA
provisions are automatically in effect in
these States, we do not believe that
extending the by one year will
have adverse environmental effects.
Although the concept of developing a
second HSWA duster was not
specifically proposed, it was one of the
alternatives discussed in the preamble.
One commentor specifically
recommended the second HSWA duster
in addition to the proposed HSWA
duster. The Agency is today
promulgating a second HSWA duster
for HSWA provisions that are
promulgated between July 1,1987 and
June 3a 1990 in order to ease the State's
administrative and legislative burdens
in making program modifications. Since
many of the HSWA self-implementing
land disposal bans occur during this
period, the Agency believes that as an
administrative matter, it makes sense to
duster those requirements together.
Under the proposal the HSWA
provisions effective after July 1987 were
part of the annual dusters. Accordingly,
the Federal land disposal bans would
have spanned three different annual
dusters and authorized States would
have been required to undertake three
separate rulemaking actions. Under
today's rulemaking the States will be
able to wait until all of the land disposal
bans take effect during this duster
period before they modify their program.
The Agency believes that this approach
is much more manageable for the States.
Several commenton had questions
about how the application of the HSWA
dusters would affect the availability of
authorization. Sections 271.21(e)(2) (iii)
and (iv) set forth duster deadlines by
which authorized States must modify
their programs to pick up particular
HSWA provisions. However, a State
may apply for authorization for one or
more of the available HSWA provisions
prior to the duster deadlines, and EPA
encourages States to apply for
authorization as soon as they can
qualify. (HSWA provisions that are
available for State authorization indude -
self-implementing statutory provisions
that have taken effect or regulations that
have been promulgated.) Further, a State
may satisfy the deadlines by seeking
either interim or final authorization for
such HSWA provisions. However, as
discussed elsewhere in this notice,
interim authorization will expire on
January 1,1993. Therefore, States are
urged to seek final authorization instead
of interim authorization whenever
possible.
4. State Availability of Information
As discussed in detail in the final
codification rule. 1271.17 was amended
to require State programs to provide for
public availability of information. This
provision requires that information
obtained by authorized States regarding
hazardous waste facilities and sites
must be made available to the public in
substantially the same
the same degree as would be the case IT
EPA were carrying out the RCRA
program in the State. Although this
requirement stems from HSWA (sectior
3006(f)), unlike other HSWA
requirements it does not take immediate
effect in euthorized States. Therefore,
authorized State programs need to be
revised before this requirement will be
effective. On January 8 we proposed
that this provision be picked up by
States by July 1.1988 (or July 1987 if a
statutory change is required). State
program revisions for the public
availability of information provision
would thus be accomplished in
accordance with the first duster of non-
HSWA requirements.
One commentor stated that the
proposed duster deadline was
inappropriate because it delayed
implementation of the provision. This
cc -nentor suggested that the deadline
be ovember 8,1985 (or November 1988
for statutory changes). In contrast three
commenton argued that the proposed
duster deadline did not provide States
with enough time to develop equivalent
requirements. One of these commenton
specifically requested that the
availability of information requirement
be placed in the HSWA duster absent
specific language in HSWA to treat it
differently from other HSWA
requirements.
As described above, the operation of
this provision is different from the other
HSWA provisions since it does not take
effect until the State revises its program.
Consequently, the Agency believes that
section 3008(f) should be treated
differently than the self-implementing
HSWA provisions. Accordingly, the
Agency believes that it is inappropriate
to indude this provision in the HSWA
duster deadline. On the other hand,
there is no compelling reason to treat
this requirement any differently than the
non-HSWA requirements which also
require State revisions before becoming
effective. Given the legislative and
administrative constraints that States
experience when making program
modifications, the Agency believes that
it is reasonable to require States to pick
up this requirement pursuant to the
timetable for the non-HSWA duster.
Therefore, today's final rule
promulgating 1271.17(c) is unchanged
from the proposal
The Agency recognizes that th,s,™5n
establishes e deadline for section 3006(0
changes that has already passed Quly 1.
1986?However. States may qualify for
an extension of time to meet the
modification deadline. Moreover, as
discussed below, where appropriate the
Agency may chose to place some States
on a schedule of compliance to adopt
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33716 Federal Register / Vol. 51. No. 183 / Monday. September 22. 1986 / Rules and Regulations
the program revision in an expedited
manner.
5. State Schedules of Compliance
As indicated earlier, the majority of
commentors indicated that they would
have difficulty meeting the proposed
§ 271.21(e) duster dates for changes to
the HSWA. non-HSWA and section
3008(f) requirements. The above sections
describe how today's final rule attempts
to accommodate the concerns expressed
by commentors regarding the proposed
cluster deadlines. As discussed
previously, today's nile extends the
cluster deadlines for HSWA
requirements and creates a new HSWA
duster in order to provide States with
additional time to make programmatic
changes. Also, die rule has a provision
allowing a six-month extension where
the State is unable to meet the deadline
for HSWA, non-HSWA and section
3008(f) revisions. However, even with
these provisions the Agency recognizes
that States may still be unable to
comply with some of the deadlines in
1271.21(e). Under the current
regulations, failure to meet the deadlines
would be grounds for the Administrator
to initiate program withdrawal
procedures. Such a result is somewhat
draconian, given the inability of States
to adopt the requisite statutory and
regulatory amendments due to
legislative and administrative
constraints. On the other hand, the
Agency does not want to extend the
duster deadlines in all circumstances
because it wishes to encourage States to
expeditiously adopt program revisions.
In order to provide maximum flexibility
for the States and EPA while ensuring
that program revisions are expeditiously
adopted, the Agency is today
promulgating an amendment to S 271.21
allowing the Administrator to place
States which fail to meet the revision
deadlines on schedules of compliance
on a case-by-case basis. (See the new
1271.21(g).) The use of schedules of
compliance would be limited by the
specific factors described below.
First as a prerequisite to being placed
on a schedule of compliance the State
must have made a good faith effort to
meet the deadlines, have been granted
an extension pursuant to 127L21(e)(3)
and made diligent efforts to revise its
program during the 1271.21(e)(3)
extension. Section 271.21(e)(3) currently
allows the Regional Administrator to
grant up to six months extension for the
program modification deadlines if the
State adequately demonstrates that in
spite of its good faith efforts, it is unable
to meet these deadlines due to
legislative or rulemaking impediments.
States which are not granted this
extension are preduded from being
placed on a schedule of compliance
because they have not made a good
faith effort to meet the deadlines. States
must also demonstrate that they have
made a diligent effort to revise their
programs during the period of time for
which they are granted an extension
under 1271.21(e)(3). A diligent effort
would, at a minimum, indude the
initiation of rulemaking and/or statutory
amendments by the State.
Second, the State must demonstrate
that it is making suffident progress in
adopting these changes. State progress
will be evaluated by the Regional
Administrator on a case-by-case basis.
This evaluation will be based on such
factors as the State's historical,
performance in adopting program
changes end the impediments
encountered for this particular
modification. By definition, to
demonstrate progress in making the
requisite revisions, the State must
indicate that it has gone beyond the
initial good faith effort to qualify for an
extension under 1271.21(e)(3).
Third, die State must submit a
proposed timetable of statutory and/or
regulatory modifications by the
S 271.21(e)(3) extended deadline. This
timetable must set forth interim
milestones for achieving the
modification within one year.
Fourth, schedules of compliance are
limited to a duration of one year from
the S 271.21(e)(3) extended deadline.
This is to prevent States from unduly
delaying implementation of the
regulatory and statutory revisions. The
Agency chose e year as the duration
period because many State commentors
requested an additional year to
implement the HSWA changes due to
the complexity and number of changes
required The Agency believes that this
time period is also appropriate for the
non-HSWA and section 3006(f) revisions
since the duster scheme will aggregate
numerous and often unrelated
rulemakings and require simultaneous
State modifications for these
requirements.
Fifth, any schedule of compliance
must be published in the Federal
Register. Ideally, the schedule would be
included in a Federal Register notice
indicating the Administrator's tentative
or final decision concerning approval of
other parts of the State's program. For
example, if e State successfully modifies
its program for all but one rule in a
duster, then the Federal Register
announcing the approval of the State
revision could also contain the State
schedule of compliance for the one
remaining rule to be picked up. If.
however, the Agency needs to place a
State on a schedule of compliance
independent of the approval process, the
Agency would publish a separate
Federal Register notice apprising the
public of that fact
Sixth, if a State fails to comply with
its schedule of compliance, the
Administrator may initiate program
withdrawal pursuant to SS 271.22 and
271.23. This is to prevent any further
delay of implementation of the
necessary regulatory and/or statutory
provisions.
Given the above limitations, the
Agency believes that a schedule of
compliance is an appropriate vehide to
ensure implementation of the necessary
regulatory/statutory amendments while
addressing commentors' concerns about
the need for additional time to
implement program revisions. We
recognize that the use of schedules of
compliance may delay implementation
of non-HSWA and section 3006(f)
requirements in some States. However,
any such delay will be offset by
maintaining State authorization
continuity for States that have made
reasonable progress toward adopting
revisions. The goals of the RCRA
program would not be furthered if the
Agency withdrew the program
authorization from such States.
Although we expect to use schedules of
compliance infrequently, we believe that
it is an important mechanism to allow
State flexibility in adopting program
changes and to prevent premature
program withdrawals.
An example of when schedules of
compliance could be appropriate is for
the RCRA section 3006(f) availability of
information requirement This provision
is induded in the non-HSWA cluster for
which modifications are due by July 1,
1968 (see the previous discussion in the
preamble.) Due to the complexity of this
provision. EPA informed the States that
it was developing detailed guidance to
define the State provisions that are
needed in order to meet the section
3006(f) requirement The EPA guidance
was not available until August 1986,
which obviously did not allow enough
time for States to make program changes
by the duster due date. Even if the
Regional Administrator extends the
deadline to (anuary 1,1987 pursuant to
§ 271.21(e)(3), the Agency expects that
some States will not have their program
modifications in place by then despite
their best efforts. Therefore, if a State
meets all the criteria in 8 271.21(g)(1). it
should be able to qualify for a schedule
of compliance for picking up the section
3006(f) provisions.
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Federal Register / Vol 51. No. 183 / Monday, September 22. 1986 / Rules and Regulations 33717
However, State schedules of
compliance should not be used to
postpone State program revisions if the
State is reluctant to make program
changes In a timely manner or if it does
not make diligent efforts to make these
changes. In such a case, EPA will not
provide the State with a schedule of
compliance, but will instead initiate
program withdrawal procedures
pursuant to Si 271.22 and 271.23.
6. Use of Promulgation Dates to Define
Clusters
Under the proposal the deadlines in
S 271.21(e) ran from the date that
Federal regulations are promulgated.
(See | 271.21(e)(2).) Ten States
requested that the clusters be
determined by Federal regulations that
take effect during the cluster period
instead of merely being promulgated.
The reasons provided for this suggested
approach were: (1) States should not be
required to make changes pursuant to
Federal rules that haven't yet taken
effect (2) EPA sometimes issues
"interim final" rules that subsequently
change; (3) the States would have mora
time to complete their regulatory
development process by the cluster
deadlines if "effective dates" defined
the cluster deadline: and (4) since
"effective dates" are used to determine
which Federal requirements must be
addressed in initial authorization
applications, there would be less
confusion if "effective dates" were also
used for program revisions. Although
these State comments have some merit,
the Agency believes that the
modifications to the clustering scheme
contained in today's rule would
significantly ease these problems. As
discussed previously, today's
rulemaking extends the HSWA duster
deadline, creates a second HSWA
cluster, and allows schedules of
compliance. These changes provide for
greater flexibility in the final rule than
was contained in the proposal which
should mitigate many of the "timing"
concerns expressed by the commentors
regarding the use of the "promulgation
date".
Furthermore, we believe that using
effective dates in defining clusters as
suggested by the commentors could
result in an unwarranted delay in
adopting program revisions. As an
example, the definition of solid waste
was promulgated on January 4,1985,
and became effective on July 5,1885.
Absent any extensions, the cluster
schedule being promulgated today
requires a State modification by July
1986, However, if the effective date was
used to determine the cluster, then the
State modification would be due July
1987. There would be a two and one-half
year delay between the Federal program
change ami the State modification, and
if a statutory change were needed there
could be up to a three and one-half year
delay. Except where a State has made
diligent, good faith efforts to revise its
program, we feel that such a delay is
unreasonable.
As noted above, the States objected to
making changes to their programs before
the Federal rules take effect and further'
pointed out that an EPA Interim final
rule may change before coming
effective. Since the cluster scheme
requires a State to change its program
less frequently (i.e„ annually at most), in
practice most of the Federal regulations
will be effective before the State has
formally initiated its changes. Finally,
the Agency now rarely promulgates
interim final RCRA rules. Since January
1983, of the 30 final RCRA rules, only
one was an "Interim final" rule.
Therefore, we believe this concern is
unwarranted.
The final objection regarding the use
of "promulgation" dates for clusters was
that it would create confusion since the
"effective date" is used to determine
what rules must be included in a State's
initial application for final authorization.
As discussed in section A.4 above, the
requirement for using the effective date
for initial applications is specified in the
RCRA statute. (See RCRA section
3006(b).) Section 271.3(f) merely
Incorporates the statutory language.
Since there is no such statutory
requirement with regard to authorization
of program modifications, the agency
has devised a system for State revisions
that makes the most sense for purposes
of implementing the RCRA program in a
timely fashion. Moreover, the Agency
believes using effective dates to define
clusters would lead to far greater
confusion since some rules have
numerous effective dates. For example,
the used oil rule promulgated on
November 29,1985 has effective dates of
December 9,1985. March 31,1988 and
May 29,1988 for its various provisions.
State revision deadlines could become
very confusing if a rule like the used oil
rule happened to fall into separate
clusters.
For these reasons we have maintained
the use of the promulgation date to
determine the composition of dusters.
The Agency believes that the
modifications to 1271.21(e)(2) being
promulgated today will minimize
commentors' concerns about the use of
the promulgation date to define duster
periods.
7. Self-Implementing Statutory
Provisions
The Agency proposed an amendment
to 1271.21(e) providing that States have
to modify their programs pursuant to
either a self-implementing HSWA
requirement or an implementing
regulation that has been previously
promulgated. The purpose of the
amendment was to alleviate any
confusion which may have arisen as to
whether the duster deadlines in
{ 271.21(e) were determined by the rules
codifying the self-implementing
amendments into the RCRA regulations
or the self-implementing provisions
themselves. As discussed in the
proposal, the revision "dock" starts on
the earlier of these dates. That is, if a
HSWA requirement takes effect before
EPA has published any implementing
regulations, then that date determines
the appropriate duster for the
requirement If, however, EPA
promulgates a revision incorporating a
statutory provision before the provision
takes effect, then the date of the
regulation determines the appropriate
duster, not the effective date of the
statutory provisions.
A few commentors criticized the
amendment to 8 271.21(e) stating that a
HSWA provision should not be indud' '
in a duster pursuant to the effective
statutory date if the Agency plans to
issue subsequent regulations
Implementing the statutory provision.
The commentors were concerned that
States would be in the midst of
rulemaking proceedings when the
Agency would issue mora extensive
regulations which the State would be
required to adopt The commentors
requested that the i 271.21(e) deadlines
be established by the issuance of the
implementing regulations instead.
The Agency appreciates the
commentors' concerns but feels that
these concerns have been mitigated by
the Agency's decision to sdopt two
HSWA duster periods spanning a
period of several years. By adopting this
approach, the Agency believes that it is
likely that the self-implementing
statutory provisions and the regulations
implementing these provisions will be in
the same duster, minlmlrtng the
likelihood that States will be required to
adopt more than one regulatory
amendment for a specific area.
If an instance occurs where the
regulations codifying the self-
implementing provisions and the self-
implementing statutory provisions ar
not in the same HSWA duster, the
Agency believes that it is appropriate
that States adopt the provision first
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33718 Federal Repster ,/ Vol. 51, No. 183 / Monday. September 22. 1986 / Roles and Regulations
taking effect The States will have at
least 12 months' notice before they
would be required to adopt any new
Federal requirement TTie Agency
believes that amount offline is sufficient
notice. Furthermore, if States are unable
to mert the { 27121{e) deadline end
they have demonstrated a good faith
effort to make the program changes,
they would qualify for e tix-moufh
extension and. if necessary, they may
subsequently be placed on a sohedcle of
comoliance which wwM allow
additional time for regulatory adoption.
Given these factors, the Agency is today
promulgating the amendment to
§ 271.21(e) as proposed.
8. State Equivalence Tor Revisions
In the preamble to the proposal, the
Agency stated that it planned to add
language to Part 271 clarifying that
States must adopt analogues to all
requirements in Parts 260-268 and all
self-implementing statutory provisions
unless otherwise provided in Part 271.
The purpose of the preamble language
wa9 to ensure that there was a
continuing obligation for a State
program to remain equivalent to EPA's
program by requiring States to adopt the
appropriate revisions to thefederaJ
program. Today's rulemaking contains
such language in several difierent
regulatory amendments.
The Agency has amended (§ 271.10
and ZTi.n to require that unless
otncrwise provided in Part 271. State
programs shall nave standards for
generators and transporters which are at
least as stringent as any revisions EPA
promu sates after July i. 1984 to the
generator and transporter standards at
40 CF& Parts 262 and 283. The Agency
chos? the July 1.1984 date because it
wii* the f.rst annual cluster date set
fur'.*. i:> § 271.21 and all revisions to the
ponerdiur and transporter standards
promulgated prior to that date have
already been incorporated in the Part
271 regulations. As a result of today's
amendments to 5} 271.10 and 271.11.
States have a continuing obligation to
reme-.r. equivalent to EPA's generator
and transporter requirements under
Parts 262 and 263 unless otherwise
specif.csllv provided in Part 271.
Under the existing Part 271
regulations. States already have an
obligation to remain equivalent to the
Parts 261. 2M. 265 and 286 regulations.
(See 271.8.271.l2(j). and 271.13(a).)
Accordingly, the Agency is not
promulgating Part 271 amendments in
today's rulemaking with respect to theBe
EPA requirements.
The Agency considered whether or
not it would need to promulgate
amendments requiring States to adopt
iacahty standards equivalent to aU
revisions to the Part 124 and Pert 270
standards. Section 271.14 requires States
to be equivalent to some speiafic
provisions in Part 124 and Part 270.
Since States are not required to adopt
all of the Part 124 and Part 270
regulations (for example, appeal
procedures, stays of permits. R&D
permits and permits by rule are not
required to be adopted by States), it ,
-wonld be inappropriate to promulgate
language requiring States to adopt all
revisions to Parts 124 and 27a
Therefore, the Agency is not
promntgating amendments to ( 271.14 in
today's rulemaking. If the Agency in the
future proposes to amend Part 124 and
Part 270 and such proposed amendments
are not appropriately reflected in
S 271.14. the Agency will initiate
rulemaking proceedings for } 271 J*.
In some cases the self-implementing
HSWA requirements have not been
codified in the Federal regulations.
Therefore, since Part 271 is currently
structured to require States to adopt
analogues to specific regulatory
provisions, it does not address the
HSWA requirements that are imposed
only by statute. Therefore, in today's
rulemaking the Agency is adding a new
\ 271.25 to clarify that authorized States
are required to adopt standards at Least
as stringent as the selfomplementing
HSWA requirements and prohibitions.
Section 271.21(e)(2) already provides
dates by which a State program must
adopt the HSWA self-implementing
provisions.
9. State Submission of Program
Modifications
One aspect of the revision process
that received significant attention from
the commentors was the timeframe for
submission of authorization documents
subsequent to the completion of a State
program modification. The current
requirements provide that within 30
days of a State modification the State
must submit the appropriate
authorization documents (S 271.21(e)(4)).
We did not propose to change this
requirement. However, a number of
commentors requested that this
provision be amended to reflect the
cluster changes being made in the rule.
Several States remarked that 30 days
is not enough to prepare a modified
program description. Attorney General's
Statement. Memorandum of Agreement
and other documentation as required by
S 271.21(b)(1). Some States suggested
that 90 days or more should be allowed
for submittal of those documents. The
States also pointed out that by
clustering the Federal changes there will
be many more changes contained in the
State revision packages than was
envisioned when f 27L21(e)(4) wes
initially promulgated, and that therefore,
additional time far submittal of the
documents is appropriate. A number of
States also suggested that they may in
some cases have a couple of separate
rulemaking actions over a year, and that
they would prefer to prepare a single
authorization application to cover all the
changes.
The Agency agrees with the
suggestions that the current regulations
do not provide adequate time to submit
the necessary documentation, and is
therefore amending S 271.21(e)(4) to
bring it into conformance with the
cluster scheme. Under today's rule, after
any State modification is completed the
9tate must notify EPA of the change
within 30 days. The State notification
would typically include a copy of the
program change (i.e* amended statute or
regulation), and a letter indicating when
the change takes effect and a proposed
schedule for State submission of its
authorization docoments. This
notification will allow the Agency to
remain informed of State program
changes and to know how they affect
the authorized program. If EPA
determines that the program
modification is not in conformance with
State authorization requirements, then
the Agency may initiate program
withdrawal proceedings.
Under today's rulemaking the Slate
authorization documents would be due
60 days after the State mocLficaUon
cluster deadline, including any
appropriate extensions. For example, if
a State makes a non-HSWA charge in
March of 1987 for a cluster provision
that is due on July 1.1987. then the
authorization application must be
submitted by September 1.1W87 (00 days
after the July 1 deadlinel. As another
example, if a provision from the first
HSWA cluster is adopted by a State,
then the authorize uon documents must
be submitted no later than September L
1989 (60 days after the July 1.1989
HSWA cluster deadline). Of course.
States may apply for authorization in
advance of these dates if they prefer.
We feel that the 80-day period ts a
sufficient cmount of use to submit the
necessary documentation for States that
complete their modifications Mar the
deadl.ne. Futhermor*. w* expect that
many of the States «rili complete the
clus-er modifications prior to the
deadlines, and Mil) ihmrtart have more
than 60 days to develop the appropriate
authorization document*. This approach
will also allow States to ntaam «
consolidated autfcoraatna ap^icauoa
for EPA approval of all iwwmm mi>—
-------
Federal Register / Vol 51, No. 183 / Monday, September 22. 1986 / Rules and Regulations 33719
a clutter rather than piecemeal
applications. This approach will not
only be a more efficient way to approve
State revisions, it will also give EPA a
more comprehensive view of the State's
ability to modUly its program to remain
equivalent to the Federal program
changes.
Although today's changes to
8 271.21(e)(4) were not presented in the
proposal, numerous commentors
suggested that this provision be
amended to reflect the clustering
scheme. EPA believes that today's
amendments are necessary to provide
the flexibility and administrative
simplicity that was intended by the
clustering scheme.
10. Revisions for Program Changes
Occurring During the Authorization
Process
As discussed earlier in this preamble,
initial State authorization applications
must at a minimum, reflect the Federal
requirements in effect 12 months prior to
application submittal (See 1271.3(f).)
However, States are not precluded from
seeking authorization for requirements
taking effect less than 12 months prior to
the State's submittal of its application.
The Federal program changes that occur
during this period that are not addressed
in the State's initial application must
subsequently be picked up in a State
program revision along with any
additional Federal requirements which
occur during the final authorization
approval progress. These State
modifications must be completed by the
cluster deadlines in 1271.21(e) or by the
date of final authorization, whichever is
later. (See 9 271.21(f).) Note that the six*
month extension in 1271.21(e)(3) and
the 1271.21(g) schedule of compliance
may be applied to these deadlines when
appropriate.
The proposal reorganized this
requirement by moving it from
8 271.21(e)(l)(iii) to 1271.21(f). The
wording was also modified to conform
to the cluster scheme. One commentor
stated that some confusion might arise
when comparing the operation of
1271.21(f) to 8 2713(f). In today's nile
we have slightly modified 8 271.21(f) by
specifically exempting changes that a
State has received authorization for
under 8 271.31(f) from the requirement to
seek program modification.
11. Effect of Ouster Rule on Recently
Promulgated Tank Standards
Some questions have arisen regarding
the operation of the cluster deadlines on
the recently promulgated amendments
to the RCRA standards for the storage
and treatment of hazardous waste in
tank systems (see 51FR 25422-25488;
July 14,1886). As discussed in the
preamble to that rule, some of the
provisions of the rule stem from HSWA,
while other provisions are considered
non-HSWA (see 81 FR 25463). This
places the tank rule under two different
dusters. Under today's cluster scheme,
States will need to modify their
programs to pick up the non-HSWA
tank standards by July 1,1988, and the
HSWA tank standards by July 1,1989 (if
only State regulatoiy changes are
needed). However, from a programatic
and administrative standpoint it would
be much more practical for States to
adopt both the HSWA and non-HSWA
tank standards simultaneously.
Therefore, EPA encourages State
programs to adopt all program
modifications with regard to these tank
standards by the non-HSWA revision
deadline (July 1,1988], or sooner if
possible.
C Interim Authorization
1. Expiration of HSWA Interim
Authorization
Section 3008(c)(2) requires EPA to
establish a deadline for the expiration of
HSWA interim authorization. A State
will need to obtain final authorization
by that date for those requirements for
which it holds HSWA interim
authorization. Otherwise, the interim
authorization portions of the State
program will revert to EPA for
implementation. Furthermore, the State's
find authorization for the base RCRA
program may be withdrawn by EPA if
the State fails to revise its program to
obtain final authorization by the
deadlines in 8 271.21. See 8 271.22. The
proposed rule provided that HSWA
interim authorization expire July 1,1991.
This date was selected since it is the
due date for State program
modifications for the last scheduled
HSWA self-implementing provision.
(See the cluster discussion above.)
Four commentors suggested that the
date be changed to July 1992 or beyond
to allow sufficient time for States to
make the necessary program changes. In
consideration of the comments received
and the changes to the HSWA cluster
deadlines being promulgated today, the
Agency has decided to change the
proposed expiration date from July 1991
to January 1993. The Agency believes
that the July 1991 date is inappropriate
because it does not fully take into
account the time allowed for State
modifications for the second HSWA
cluster. The deadline for State program
modifications for the second (SWA
cluster is July 1992 for the provisions
requiring State staturory amendments,
plus the Regional Administrator may
extend this deadline for an additional
six months (January 1993) pursuant to
8 271.21(e)(3). This could result in State
modifications occurring as late as
January 1993 without violating the
revision deadlines for the second
HSWA cluster. Therefore, the Agency
has decided that HSWA interim
authorization should expire on January
1.1993, one and a half years later than
the proposed date. To set a date earlier
than January 1993 would needlessly risk
authorization reversion and program
disruption in those States that have
interim authorization.
2. Application Procedures for HSWA
Interim Authorization
Section 271.24(b) of the proposal
specified that the 8 271.21(b) program
revision procedures be used for
approving State applications for HSWA
interim authorization. The 8 271.21(b)
procedures are more abbreviated than
those for initial submission of an
authorization application, requiring
submission of whatever documentation
EPA determines to be necessary. State
public hearings are not required prior to
submission of the State's application. No
comments were received on this
provision. Section 271.24(b) is being
promulgated in final form today without
change from the proposal
D. Administrative Compliance Order
and Penalty Authorities
In the January 8 proposal, EPA
requested comments on the concept of
requiring States to have administrative
compliance order and/or penalty
authorities (see 51 FR 502). Several
options were outlined and a series of
questions were presented in order to
assist in the careful analysis of the
issue. The Agency received numerous
responses on these authorization
options. The Agency will take these
comments into account as it considers
proposing changes to the State
authorization requirements. If such
changes are proposed, a detailed
analysis of the comments will be
presented. If interested parties wish to
submit additional comments or
information, please see the January 6.
1986 Federal Register for a more
detailed discussion of the issues and
send comments to: David Levenstein,
Office of Waste Programs Enforcement,
401M Street SW (WH-527),
Washington, DC 2048a
IV. Response to Comments
The discussion section in today's
gives EPA's reasons for accepting o.
rejecting many of the comments on the
-------
33720 Federal Raster ./ Vel. 51. Ma 283 !l Monday, Septen&er 2Z 1986 / Hulas and Regulations
proposed rule. The Uhnrang an
response* to the ranasning comments.
Section 271£l[e)|2)(*j provideaan
additional year for State* to modify
their program* for any provision that
necessitates a State statutoiy
amendment One commentar cequested
that EPA clarify whether the deadline
for statutory amendment* applies io
every element in the cluster or only to
the element that must be supported -by
statutory amendments. This .provision
only establishes a later deadline lor the
specific portion of the cluster (hat
requires the statutoiy-change. not for the
entire cluster. For example. If a
particular cluster is comprised of five
EPA rulemakings and the State needs 1o
amend its statute in order to be
authorized Tot one vl those -rales, then
the additional year wallowed-for "that
one rule only; the remaining four Tales
must be picked op according to-(he
normal duster deadlines.
A few commentors atfked lor
clarification asio whether States can be
authorized for HSWA statutory
provisions. These commenton
expressed concern that it they waited
far regulations to be adopted which
incorporated the HSWA amendments, it
would delay authorization. A State need
not wait for implementing regulations to
be promulgated by EPA but may be
authorized for any effective HSWA
requirement, including those imposed by
statute. Indeed, as discussed earlier,
S 271.25 being promulgated today
provides that authorized State programs
be required to develop standards at
least as stringent as the HSWA self-
implementing requirements.
V. Effective Date
This rule will become effective
immediately. Section 3010(b] of RCRA
provides that requirements applicable to
the generation, transportation,
treatment, storage or disposal of
hazardous waste become effective in six
months. Since today's regulation is
procedural, the requirements of section
3010(b) does not apply. There is good
cause for making this rule effective
immediately under the Administrative
Procedures Act because this rule only
affects the deadlines and procedures far
States to revise their program.
VL Register? Asatyns
A. Megulaiary Impact Analysis
Under Executive -Order 12291 {46 PR
12193. Febroaiy 19.1981). EPA-must
Judge whether a Tegulefran is ''major"
and therefore -subject to the requirement
of a Regulatory Impact Analysis.
Today's regulation is not major because
it wfll mrtneult in an annual effect on
4he-ecoitoiny«TS10O-iniUton-or-more, nor
will it result in an increase to cotfts or
prices to industry. There will be no
adverse impact-on file ability of the
U.S.-based enterprises to compete-with
foreign-based enterprises in domestic or
export markets. The regulation merely
modifies the procedures and deadlines
for approving State RCRA program
authorization applications and
revisions. This rulemaking has been
submitted to the Office of Management
and Budget for Executive Order 12291
review.
B. Regulatory flexibility Act
Pursuant to the Regulatory Flexibility
Act 5 U.S.C. 601 el seq, EPA is -required
to determine whether a regulation will
have a significant impact on a
substantial number of small entities so
as to require a regulatory -flexibility
analysis. No regulatory flexibility
analysis is required where the head of
an agency certifies that the rule will not
have a significant economic impact on a
substantial number of small entities.
The amendments adopted here merely
modify the-procedures and deadlines for
approving State hazardous waste
program authorization applications and
revisions and do not affect the
compliance burdens of the regulated
community. Therefore, pursuant 1o 15
U.S.C. 001(b). I certify that this
regulation will not have a significant
economic impact on a substantial
number of small entities.
C Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1980.44 U.S.C. 3501 et seq.. EPA must
estimate the paperwork burden created
by any information collection request
contained in a proposed or final rule.
Because there are no information
collection activities created by this
rulemaking, the requirements of the
Paperwork Reduction Act do not apply.
information collection requirements
contained elsewhere in 40CFR Pert 273
have been approved by the Office of
Management and Budget (OMB) under
the provisions of (he Paperwork
Reduction Act and have been assigned
OMB control number 2050-0041.
list of Subjects in 40CFR Part 271
Administrative practice and
procedure. Confidential business
information. Hazardous materials
transportation, Hazardous waste. Indian
lands. Intergovernmental relations.
Penalties, Reporting and recordkeeping
requirements, Water pollution control
Water supply.
Dated: September & 1986.
Lee M. Thomas,
Administrator.
For the reasons set out -in the
preamble. 40 CFR Part 271 is revised as
iollows:
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
1. The authority citation for Part 271
continues to read as follows:
Authority: Sect. 1006. 2002(a). and 3006.
Solid Waste Disposal Act as amended by the
Resource Conservation and Recovery Act as
amended (42 U.S.C. 6905.6912(a). and 6928).
2. Section 271.1 is amended by
revising paragraph (j) to read as follows:
S 171.1 Purpose and scope.
• • • * •
(j) Requirements and prohibitions
which are applicable to the generation,
transportatioa treatment, storage, or
disposal of hazardous waste and which
are imposed pursuant to the Hazardous
and Solid Waste Amendments of 1984
(HSWA) include any requirement or
prohibition which has taken effect under
HSWA. such as:
(1) All regulations specified in Table
1. and
(2) The self-implementing statutory
provisions specified in Table 2 that have
taken effect
N'ote—See {{ 284.1(f),'3). 263.1(c)(4)(ii).
2n.3(t)|. 271.21(e)(2) and 271.121(c)(3) for
applicability.
Table 1.—Regulations Implementino the Hazardous and Souo Waste Amendments of 1984
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-------
Federal Register / Vol. 51. No. 183 / Monday, September 22, 1986 / Rules and Regulations 33721
Table 1.—Regulations implementing the Hazardous ano Souo Waste Amenoments of 1984—Continued
Promagaaon <
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Table 2.—Self-Implementing Provisions of the Hazardous and Souo Waste Amendments of 1964
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3. Section 271.3 is amended by
redesignating paragraphs (a) through (d)
as (b) through (e) and by adding new
paragraphs (a) and (f) as follows. Newly
redesignated paragraph (d) is amended
b> changing the reference now reading
"paragraph (b) of this section" to read
"paragraph (c) of this section".
§ 271.3 Availability of final authorization.
(a) Where a State program meets the
requirements of section 3006 of RCRA
and this subpart it may receive
authorization for any provision of its
program corresponding to a Federal
provision in effect on the date of the
State's authorization.
« • • « •
(f) Official State applications for final
authorization may be reviewed on the
basis of Federal self-implementing
statutory provisions that were in effect
12 months prior to the State's
submission of its official application (if
no implementing regulations have
previously been promulgated) and the
regulations in 40 CFR Parts 124.260-266.
268,270 and 271 that were in effect 12
months prior to the State's submission of
its official application. To meet this
requirement the State may demonstrate
that its program qualifies for final
authorization pursuant to this subpart or
interim authorization under 1271.24.
States are not precluded from seeking
authorization for requirements taking
effect less than 12 months pnor to the
State's submittal of its final application.
4. Section 271.9 is revised to read as
follows:
{ 271.9 Requirements tar XnBHcsUan
and Hating of hazardous wsrtBB
(a) The State program must control all
the hazardous wasteg controlled under
40 CFR Part 261 and biui adopt a list of
hazardous wastes and set of
characteristics for identifying hazardous
wastes equivalent to thoae under 40 CFR
Part 261.
(b) The State ia sot required to have a
delisting mechanism. A State say
receive authorization for ddiatim If tfca
State regulations for dsiisoog decisions
-------
33722 Federal Register / Vol. 51. No. 183 / Monday, September 22. 1986 / Rules and Kegulations
are equivalent to S 260.20(b) and
t 260.22. and the State provides public
notice and opportunity for comment
before granting or denying delisting
requests.
5. Section 271.10 is amended by
adding new paragraph (i) as follows:
§271.10 Requirements tor generators of
hazardous wilt*.
e • • • •
(i) Unless otherwise provided in Part
271. the State program shall have
standards for generators which are at
least as stringent as any amendment to
40 CFR Part 202 which is promulgated
after July 1,1984.
6. Section 271.11 is amended by
adding new paragraph (e) as follows:
§ 271.11 Requirements for transporters of
hazardous wastes.
• e • • •
(e) Unless otherwise provided in Part
271. the State program shall have
standards for transporters which are at
least as stringent as any amendment to
40 CFR Part 263 which is promulgated
after July 1.1984.
7. Section 271.13 is amended by
revising paragraph (a) to read as
follows:
§271.13 Requirements wtth respect to
permits and permit applications.
fa) State law must require permits for
owr:ers and operators of all hazardous
wa9te management facilities required to
obtain a permit under 40 CFR Part 270
and prohibit the operation of any
hazardous waste management facility
without such a permit except that
States may. if adequate legal authority
exists, authorize owners and operators
of ar.y facility which would qualify for
interim status under the Federal
p-egram to remain in operation until a
fir.al decision is made on the permit
application, or until interim status
terminates pursuant to 40 CFR 270.73(b)
through (f). When State law authorizes
such continued operation it shall require
compliance by owners and operators of
such facilities with standards at least as
str.ngent as EPA's interim status
standards at 40 CFR Part 285.
• • e • •
8. Section 271.17(c) is revised to read
as follows:
S 271.17 Sharing of Information.
(c) (1) The State program must provide
for the public availability of information
obtained by the State regarding facilities
and sites for the treatment storage, and
disposal of hazardous waste. Such
information must be made available to
the public in substantially the same
manner, and to the same degree, as
would be the case if the Administrator
was carrying out the provisions of
Subtitle C of RCRA in the State.
(2) A State must revise its program to
comply with this section in accordance
with S 271.21(e)(2)(ii). Interim
authorization under { 271.24 is not
available to demonstrate compliance
with this section.
9. Section 271.21 is amended by
revising paragraph (e) and adding
paragraphs (f) and (g) to read as follows:
S 271.21 Procedure* for revision of State
programs.
• e e e •
(e) (1) As the Federal program
changes, authorized State programs
must be revised to remain in compliance
with this subpart.
(2) Federal program changes are
defined for purposes of this section as
promulgated amendments to 40 CFR
Parts 124. 270, 260-268. or 288 and any
self-implementing statutory provisions
(i.e.. those taking effect without prior
implementing regulations) which are
listed as State program requirements in
this subpart. States must modify their
programs to reflect Federal program
charges and must subsequently submit
the modifications to EPA for approval.
(i) For Federal program changes
occurring before July 1.1984, the State
program must be modified within one
year of the date of the Federal program
change.
(ii) Except as provided in paragraph
(e) (iii) and (iv) of this section, for
Federal program changes occurring on
or after July 1.1984. the State program
must be modified by July 1 of each year
to reflect all changes to the Federal
program occurring during the 12 months
preceding the previous July 1. (For
example. States must modify their
programs by July 1.1986 to reflect all
changes from Jul) 1.1984 to June 30,
1985.)
(ii<) For Federal program changes
identified in { 2ri.l(j) that occur
between November 8.1984 and June 30.
1987 (inclusive), the State program must
be modified by July 1.1989.
(iv) For Federal program changes
identified in } 271.1 (j) that occur
between July 1.1987 and June 30.1990
(inclusive), the State program must be
modified by July 1.1991.
(v) States may have an additional
year to modify their programs for those
changes to the Federal program
identified in paragraphs (e) (i), (ii), (iii),
and (iv) of this section which necessitate
a State statutory amendment
(3) The deadlines in paragraphs
(e)(2)(i) through (v) may be extended by
the Regional Administrator upon an
adequate demonstration by a State that
it has made a good faith effort to meet
these deadlines and that its legislative
or rulemaking procedures render the
State unable to do so. No such extension
shall exceed six months.
(4) (i) Within 30 days of the
completion of the State program
modification the State must submit to
EPA a copy of the program change and a
schedule indicating when the State
intends to seek approval of the change.
Such schedule shall not exceed the
dates provided for in paragraph
(e)(4)(ii).
(ii) Within 60 days of the appropriate
deadline in paragraphs [el. (0. and (g) of
this section, the State must submit to
EPA the documentation described in
paragraph (b) of this section to revise its
program.
(0 A State must modify its program to
comply with any Federal program
changes which occur prior to the day
that final authorization is received,
except for those changes that the State
has already received authorization for
pursuant to { 271.3(f). Such State
program modifications must be
completed and submitted by the
deadlines specified in paragraph (e) of
this section or by the date of final
authorization, whichever is later.
(g) (1) States that are unable to modify
their programs by the deadlines in
paragraph (e) may be placed on a
schedule of compliance to adopt the
program revision(s) provided that:
(1) The State has received an
extension of the program modification
deadline under paragraph (e)(3) and has
made diligent efforts to revise its
program during that period of time.
(ii) The State has made progress in
adopting the program modifications,
(iii) The State submits a proposed
timetable for the requisite regulatory
and/or statutory revisions by the
deadline granted under paragraph (e)(3).
(iv) The schedule of compliance for
program revisions does not exceed one
year from the extended program
modification deadline under paragraph
(e)(3). and
(v) The schedule of compliance is
published in the Federal Register.
(2) If a State fails to comply with the
schedule of compliance, the
Administrator may initiate program
withdrawal procedures pursuant to
(S 271.22 and 271.23.
10. Section 271.24 is revised to read as
follows:
i 271.24 Interim authorisation under
section 3006(g) of RCRA.
(a) Any State which is applying for or
haB been granted final authorization
pursuant to section 3006(b) of RCRA
-------
Federal Register / Vol. 51. No. 183 / Monday. September 22, 1986 / Rules and Regulations 33723
may submit to the Administrator
evidence that its program contains (or
has been amended to include) any
requirement which is substantially
equivalent to a requirement identified in
S 271.l(j) of this chapter. Such a State
may request interim authorization under
section 3006(g) of RCRA to carry out the
State requirement in lieu of the
Administrator carrying out the Federal
requirement.
(b) The applications shall be governed
by the procedures for program revisions
In i 271.21(b) of this chapter.
(c) Interim authorization pursuant to
this section expires on January 1.1093.
11. Part 271 is amended by adding a
new 8 271.25 to Subpart A to read as
follows:
§ 271.26 HSWA requirements.
Unless otherwise provided in Part 271.
the State program shall have standards '
at least as stringent as the requirements
and prohibitions that have taken effect
under the Hazardous and Solid Waste
Amendments of 1984 (HSWA).
8 271.121 [Amended]
12. In 8 271.121 paragraph (1) is
redesignated as paragraph (ij.
[FR Doc 86-21250 Filed 9-19-46; 8:45 am]
mxMO eoee wao-w-M
-------
APPENDIX H
Revision Checklist Linkage Table
-------
A. Background/Purpose: This appendix contains the Revision Checklist Linkage Table
developed to show which checklists affect similar sections of code. For example, Revision
Checklists 34, 39, 50, 62 and 63 all deal with the land disposal restrictions and are
indicated on the table as being "link checklists." Similarly, Revision Checklists 5, 17 A, 32
and 58 all address changes to the National Uniform Manifest Requirements and are, thus,
"linked." States may find this table useful when revising their code. For example, rather
than just making the regulatory changes regarding land disposal addressed by Revision
Checklist 34, States might find It more efficient to make the changes encompassing all or
most of the checklists affecting land disposal restrictions.
B. Symbols Used on the Table: Dashes in the column headed "Linked Checklists"
indicates that the listed checklist is the only checklist affecting the "topic" or major sections
of code affected by that checklist. An " *" on the left margin indicates that the checklist
affects the lists of hazardous waste found in 40 CFR 261, Subpart D. Such checklists are
considered "linked" only if they affected similar listings such as is the case for Revision
Checklists 29 and 46.
C. Relationship to FEDTRAK: The Checklist Linkage Table indicates checklists that are
related because they address similar regulatory "topics" or major sections of codes. If you
are interested in all the checklists which affected a particular paragraph of code (e.g.,
261.2(a)), FEDTRAK Report 3, "Citation Change History," should be used instead. (Similar
information can be found on the Consolidated Checklists in the column labeled, "Checklist
Reference."} The FEDTRAK data base tracks changes to each paragraph of the CFR
made by those final rules addressed by revision checklists. This data base is updated
semiannually when the SPAs containing new revision checklists are released. Contact Paul
Nowak of EPA's State Programs Branch (202-362-2210) to obtain a copy of FEDTRAK
Report 3.
D. Updates: This table will be updated semiannually with the State Program Advisories
providing new Revision Checklists.
2
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Revision Checklist Linkage Table
as of June 30, 1989
Revision Linked
Checklist Number Checklists Topic or Explanation
1 17 D, 30 Biennial Report
2 — Permit - Settlement Agreement1
3 10 Interim Status - Applicability
4 — Chlorinated Aliphatic Hydrocarbon Listing
5 17 D,32,58 National Uniform Manifest Requirements
6 — Permit - Settlement Agreement1
7 — Warfarin & Zinc Phosphate Listing
8 — Lime Stabilized Pickle Liquor Sludge
9 17 C Household Waste Exclusion
10 3 Interim Status - Applicability
11 35 Corrections to Test Methods Manual
12 — Satellite Accumulation
13 37 Definition of Solid Waste
14 — Dioxin Waste Listing and Management
Standards
15 — Landfill Interim Status
16 25 Paint Filter Test
17 A2 23,42,47 Small Quantity Generators
17 B — Delisting
17 C 9 Household Waste Exclusion
17 D 1,5,30,32,58 Biennial Report/National Uniform Manifest
17 E — Salt Domes, Salt Beds, Underground
Mines and Caves Standards
17 F — Liquids in Landfills
17 G — Dust Suppression
17 H — Double Liners
17 I — Ground-Water Monitoring
17 J — Cement Kilns
17 K1 — Fuel Labeling
17 L — Corrective Action
17 M — Pre-construction Ban
17 N — Permit Life
Continued...
3
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Revision Checklist Linkage Table (Cont'd)
Revision Linked
Checklist Number Checklists Topic or Explanation
17 O — Omnibus Provision
17 p ~ Interim Status
17 Q — Research and Development Permits
17 R4 31,48 Hazardous Waste Exports
17 S --- Exposure Information
18 — TDI, TDA, & DNT Listing
19 — Waste Fuel/Used Oil Fuel
20 22 Spent Solvents Listing
21 — EDB Waste Listing
22 20 Four Spent Solvents Listing
23 17 A,42,47 Small Quantity Generators
24 — Financial Responsibility - Settlement
Agreement
25 16 Paint Filter Test
26 — Spent Pickle Liquor Listing
27 43 Corporate Guarantee
28s 52 Hazardous Waste Tank Systems
29* 46 Listings - 261.33(e)&(f) and Associated
Appendices
30 1,17 0 Biennial Report
31 17 R,48 Exports of Hazardous Waste
32 5,17 Dt58 National Uniform Hazardous Waste
Manifest
33 — EDBC Listing
34 39,50,62,63 Land Disposal Restrictions
35 11 Corrections - Test Methods Manual
36 — Surface Impoundments: Closure/Post
Closure Care
37 13 Definition of Solid Waste
38 — Part B Information Requirements
Amendment
39 34,50,62,63 Land Disposal Restrictions
40 — List of Hazardous Constituents for
Ground-Water Monitoring
41 — Container/Liner Residues
Continued...
4
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Revision Checklist Linkage Table (Cont'd)
Revision Unked
Checklist Number Checklists Topic or Explanation
42 17 A.23,47 Small Quantity Generators
43 27 Corporate Guarantee
44 A — Permits/Corrective Action
44 B — Corrective Action Beyond Facility
Boundary
44 C — Corrective Action for Injection Wells
44 D 54 Permit Modification
44 E — Permit as a Shield Provision
44 F — Permit Conditions/Health-Environment
44 Q — Post-Closure Permits, Scope of
Requirement
45 59 Miscellaneous Units
46 29 Listings 261.33(e),(f) and Associated
Appendices
47 17 A,23,42 Small Quantity Generators
48 17 R,31 Hazardous Waste Exports
49 — Sample Exemption
50 34,39,62,63 Land Disposal Restrictions
51 — Liability Coverage
52 28 Hazardous Waste Tank Systems
53 — Smelting Waste Listing
54 44 D Permit Modification
55 — Ground-Water Monitoring Statistical
Methods
56 — Iron Dextran Listing Removal
57 — Strontium Sulfide Listing Removal
58 5,17 D,32 National Uniform Manifest
59 45 Miscellaneous Units
60 — Incinerator Permits
61 — Changes to interim Status Facilities
Reconstruction Limits
54 Modifications to Hazardous Waste
Management Permits
Procedures for Post-closure Permitting
62 34,39,50,63 Land Disposal Restrictions
Continued...
5
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Revision Checklist Linkage Table (Cont'd)
Revision
Checklist Number
Linked
Checklists
Topic or Explanation
63
34,39,50,62 Land Disposal Restriction
* These are checklists affecting the lists of hazardous waste in 40 CFR 261, Subpart D.
1 While Revision Checklists 2 and 6 address similar topics, they affect different sections of
code.
2 Superseded by Revision Checklist 23.
3 Superseded by Revision Checklist 19.
4 Superseded by Revision Checklist 31.
s Contains sections superseded by Revision Checklist 52.
4 Superseded by Revision Checklist 46.
6
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APPENDIX I
Incorporation by Reference Forms
-------
BACKGROUND
This appendix contains the Incorporation by Reference Forms. Form 1 should be used
when a State is submitting a revision authorization package. Form 2 is provided for
unauthorized States applying for authorization or authorized States using the consolidated
checklists.
States should remember that in order to incorporate Federal requirements by reference, the
State must have the authority to adopt State regulations in this manner. Also, a number of
Supreme Court cases (see Chapter 3) hold that prospective incorporation by reference (i.e.,
adoption of EPA provisions which may occur in the future) may constitute an
unconstitutional delegation of legislative authority.
INSTRUCTIONS FOR USING THE INCORPORATION
BY REFERENCE FORMS
Form 1: In the blanks provided at the top of the form, place the number and cluster of
the Revision Checklist to which the incorporation by reference applies. In the main body of
the form, several lines have been provided in case more than one part, subpart or section
of the Federal code has been incorporated by reference. Place the appropriate Federal
citation (e.g., 261; 261, Subpart D; 261.20-261.33) in the first column. In the second
column place the citation for the State code which incorporates by reference the indicated
Federal requirements. If a State places restrictions on this incorporation or adds additional
requirements that make the Federal requirements more stringent or broader in scope, this
should be indicated by placing an "X" in the appropriate subcolumn of the third and final
column of the form. Otherwise, an "X" should be placed in the subcolumn labeled
"equivalent."
If only portions of the Federal code addressed by a Revision Checklist are incorporated by
reference, a completed Form 1 covering these incorporations should be attached to the
appropriate Revision Checklist and the checklist itself should be used to cover those
requirements which are not incorporated by reference.
A comments section is provided on the form in case there is anything relative to the
incorporation by reference which needs explanation.
Form 2. The procedure for filling out this form is similar to that described for Form 1
except the cluster number is of course not appropriate. Also, Form 2 can be used to
cover several consolidated checklists. For example, if a State incorporates by reference 40
CFR Parts 260, 261, 262 and 263, a separate line on one form could be used for each
incorporation by reference covering Consolidated Checklists C1, C2, C3, and C4. The
checklists covered would Just need to be indicated in the space provided at the top of the
form for the checklist number.
-------
Incorporation by Reference Form 1
RCRA Revision Checklist
Cluster
FEDERAL RCRA CITATION
STATE CITATION
INCORPORATING BY REFERENCE
sYt
\TE ANALOG IS:
EQUIVALENT
MORE
STRINGENT
BROADER
IN SCOPE
Comments:
-------
Incorporation by Reference Form 2
Consolidated Checklist(s)
FEDERAL RCRA CITATION
STATE CITATION
INCORPORATING BY REFERENCE
STATE ANALOG IS:
EQUIVALENT
MORE
STRINGENT
BROADER
IN SCOPE
Comments:
-------
APPENDIX J
Revision Checklists and
Federal Register Notices
-------
BACKGROUND
A. Purpose/Use of Checklists: This appendix contains the revision checklists developed
to help States apply for changes to the RCRA regulations since January 1, 1983. If an
unauthorized State is applying for authorization, the Consolidated Checklists found in
Appendix K should be used instead. (Authorized States may find the consolidated
checklists useful during codification and in tracking their own program as it corresponds to
Federal code. The consolidated checklist that incorporates 40 CFR Part 268 Is particularly
useful in adopting all changes to the Land Disposal Restriction (LOR) regulations through
the "Second Thirds" (54 FR 26S94, June 23, 1989). See the instructions to Appendix K for
more details.)
In those cases where a State adopts or incorporates all or portions of the Federal
regulations by reference, the Incorporation By Reference Form 1 (see Appendix I) should
be used to replace all or portions of those checklists affected by the adoption by reference.
To incorporate by reference, a State must have the authority to adopt State regulations in
this manner, and this authority must be demonstrated in the Revision Attorney General's
Statement associated with the submitted revision checklists. (See discussion on
incorporation by reference in Volume I of the State Authorization Manual.)
B. New Checklists: New revision checklists should be added to this present appendix as
they are provided through State Program Advisories. Typically, new checklists will be
added twice a year. The first set will cover the period January 1 through June 30, and the
second set July 1 through December 31.
C. Computer Version of Checklists: A WordPerfect 5.0 version of all the Revision
Checklists is available to aid States in filling out checklists. The instructions for obtaining
and using this version of the checklists are found in Appendix O.
D. Other Useful Information: The time frames for submitting specific revision checklists
are outlined in Appendix Q. Also of use is the Checklist Linkage Table (Appendix H) that
shows which revision checklists affect similar sections of code (e.g., Revision Checklist 32,
39, 50, 62 and 63 all affect the land disposal restrictions). To determine which checklists
affect a specific paragraph of code, FEDTRAK Report 3 can be used. The FEDTRAK data
base tracks changes to each paragraph of the CFR made by those final rules addressed
by revision checklists. This data base Is updated semiannually when the SPAs containing
new revision checklists are released. Contact Paul Nowak of EPA's State Programs
Branch (202-382-2210) to obtain a copy of FEDTRAK Report 3.
INSTRUCTIONS FOR USING THE REVISION CHECKLISTS
A. Completing a Checklist: A checklist consists of four major columns. The first column
describes the Federal requirement and often is a brief statement of the change made to
the RCRA regulation section cited in the second column. Columns three and four are left
blank for the State to complete. The third column is where a State must indicate the
section or sections of its code which are analogous to the cited Federal code. States
should be very specific in this citation. Citations which are not specific make review of
State code difficult and can lead to misinterpretations of the State code.
The fourth column consists of three subcofumns that should be used by States to indicate
if their code is equivalent, more stringent, or broader in scope than the Federal provision.
An "x" or check should be placed in the appropriate siAcofumn. If a State indicates that a
2
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provision is more stringent, this must be explained in the Revision Attorney General's
Statement, i.e., in the "Remarks of the Attorney General" section for the appropriate
revision checklist The indices to the Model Revision Attorney General's Statement
(Appendix E) can be used to locate those sections of the model which are appropriate for
a given checklist. The Attorney General should be very specific about which portions of
the checklist are more stringent, because the checklist requirement descriptions are often
very general.
B. Adoption of Entire Checklist: A State must adopt a checklist in its entirety.
Exceptions are 1) optional changes/provisions, 2) situations where not adopting a provision
makes a State's program more stringent, and 3) situations where a State program does not
allow a particular action (e.g., a State prohibits land treatment). When a State does not
adopt a provision, the Attorney General's Statement must carefully explain how this non-
adoption makes the State's regulation more stringent. In the case where a State does not
allow a particular hazardous waste activity, the section of code prohibiting this activity
should be cited on the checklist next to the provision the State is not adopting. States will
sometimes use "N/A," "not applicable" or "not adopting" in this situation. This type of entry
should not be used because it is difficult for reviewers of the application to distinguish
between the following two situations: 1) the State has left out a provision, and its code is
thus less stringent than the Federal requirements, or 2) the State does not allow the
activity and is thus more stringent than the Federal requirements. Citing the section of
code prohibiting an activity avoids this confusion.
C. Federal Register References/Cluster Designation: The first page of each revision
checklist references the final rule and any amendments to the rule addressed by the
checklist For convenience, a copy of the Federal Registers associated with each checklist
have been placed in back of each checklist
The duster in which a checklist appears Is also listed at the top of the checklist Some
checklists (e.g., 28 and 52) are in more than one cluster because they implement both
HSWA and non-HSWA provisions.
D. "Notes": Notes are sometimes provided at the beginning of checklists. These are
used to advise States about issues concerning a specific checklist Examples where these
notes have been used are Revision Checklists 32, 39, and 50 deaffng with the land
disposal restrictions.
E. Footnotes: Numbers placed in the checklist's left margin are used to denote
footnotes. The actual footnotes appear at the end of the checkflst and are numbered
consecutively from the beginning of a checkflst to the end. Footnotes serve several
purposes:
They indicate where technical corrections, included in a checklist have
affected specific provisions.
They help eliminate potential confusion concerning a citation or a checklist.
For example, Revision Checkflst 13 Introduced 266.36 regarding a conditional
exemption for spent materials and by-products exhibiting a characteristic of a
hazardous waste. Revision 19 completely removed this section of code.
The footnote to 266.36 explains what happened to this section of code.
They indicate the HSWA provisions of Revision Checklists 28 and 52.
3
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They indicate typographical errors in a Federal Register notice.
Note, only confusing supersedures or changes made by later checklists are footnoted on
the checklists. The consolidated checklists in Appendix K can be used to determine which
checklists have .affected a given section or subsection of code for those supersedures or
changes which are not footnoted. Table G-1 of Appendix Q is useful for determining those
checklists that have been superseded by other checklists.
F. Optional Provisions/Changes: The T placed in the left margin of the checklist
denotes optional provisions. These are changes that make the existing Federal code less
stringent; therefore, States are not required to make these changes. However, any State
which chooses to adopt an optional requirement must be sure that its analog is at least as
stringent as the Federal requirement. Often all of the subparagraphs or requirements
contained within an optional provision must be adopted if a State chooses to adopt that
provision. Without each requirement within an optional provision, a State's requirements
may be less stringent than the Federal requirements, because these conditions often set
certain standards which must be met before a variance or exclusion is granted or a
reduced set of requirements may be followed. For example, 264.193(g) provides a
variance from the 264.193 requirements and is, therefore, marked with a T as an optional
provision. The requirements at 264.193(g)(1)-(g)(4) outline what must be considered to
grant this variance. None of these provisions have a "f, because if a State chooses to
adopt 264.193(g), it must adopt all of the requirements at 264.193(g)(1)-(g)(4) to be at least
as stringent as the Federal requirements. None can be excluded. Thus, while 264.193(g)
is optional, the requirements contained within ft are rot optional.
Checklists that have all of their requirements designated as optional are considered
"optional" checklists. These checklists are specifically noted on Table G-1, found in
Appendix G, listing revision checklists by cluster. States are not required to apply for the
changes represented by these checklists, and authorization for these checklists is not
required to be authorized for a cluster containing an "optional" checklist. Note that, in
general, if a State chooses to adopt an optional checklist, all of that checklist's provisions
should be adopted.
G. Complete Versions of Regulations; States should always submit a complete version
of their hazardous waste regulations with any revision checklists. States will sometimes
only submit the amendments addressing the submitted checklists. Often the amendments
are incomplete, and it is difficult for the reviewer to gain an adequate understanding of the
State's code. Also, references made within the code to other portions of the regulations
cannot be adequately checked.
H. Guidance for Specific Checklists:
I. Revision Checklist 31-Exports of Hazardous Waste
States cannot assume the authority for the following aspects of regulating hazardous
waste exports:
receive notifications of intent to export
• transmit information, regardng intent to export, to foreign countries
through the Department of State, and
4
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• transmit acknowledgements of consent to the exporter.
EPA feels that foreign policy interests and exporters' interest in expeditious
processing are better served by the Agency retaining the above listed functions.
The Department of State would have only a single point of contact in administering
the export program, allowing for uniformity and expeditious transmission of
information between the United States and foreign countries. For a discussion of
these issues, see 51 FR 28678, August 8, 1986.
States must include the requirement that for exports, a transporter may not accept a
waste for export if he knows it does not conform to the Acknowledgement of
Consent and the transporter must deliver a copy of the manifest to the U.S.
Customs official at the point the waste leaves the United States.
These requirements and restrictions of State authority have implications when a
State adopts the provisions at 262.50 through 262.57. For example, the "EPA
Acknowledgement of Consent" is the cable sent to EPA from the U.S. Embassy in a
receiving country that acknowledges the written consent of the receiving country to
accept the hazardous waste and describes the terms and conditions of the receiving
country's consent to the shipment. Because only EPA can receive this cable, the
reference to "EPA" in the definition of this term at 40 CFR 262.51 should remain
"EPA" and all references to this cable should be "EPA Acknowledgement of
Consent" States should not substitute their environmental agency's name or
remove "EPA." States incorporating by reference must exclude the above two uses
of "EPA" from their blanket substitution of "EPA" with their environmental agency's
name. Other instances where States should not substitute "EPA" or "Administrator"
with their State analogs are as follows:
40 CFR 262.53 addresses notification of intent to export. The references to
"EPA" at 40 CFR 262.53(a) and 262.5(c) through (f), should remain "EPA".
At 40 CFR 262.53(b), the notification to export must be sent to EPA's Office
of International Activities. States should not substitute a State agency for
this office. States may request that a copy also be sent to them.
At 40 CFR 262.54(g)(1), the notification of a change in the original
notification allowing shipment to a new consignee must be sent to EPA.
States may request that a copy of the notification also be sent to them.
At 40 CFR 262.54(1), the additional copy of the manifest must be delivered to
the U.S. customs official at the point the hazardous material leaves the U.S.
A State Agency or official cannot be substituted for the "U.S. Customs
Official." States can request that a copy also be sent to them.
• At 40 CFR 265.55, exception reports must be filed with the EPA
Administrator. States should not substitute the head of their State
environmental agency. States may request that a copy also be sent to them.
The annual reports addressed by 262.56(a) should be filed with the EPA
Administrator (262.56(a)) through the Office of international Activities as
specified at 262.56(b). States may request that a copy also be sent to them.
5
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At 40 CFR 262.57(b), the reference to the EPA Administrator should remain
"EPA Administrator."
At 40 CFR 263.20(g)(4) transporters must give a copy of the manifest to a
US. customs official at the point of departure from the U.S. A State official
or agency cannot be substituted for the "U.S. Customs Official." States may
request that a copy also be sent to them.
The notification required at 264.12(a) must be sent to the "Regional Administrator." Thus,
States should not substitute the title for the head of their environmental agency. Revision
Checklist 31 did not address this section of code, but to be consistent with the other
requirements made by the final rule addressed by that checklist this substitution should not
be made. A State can, however, require that notification must also be sent to it
2. Revision Checklists 34, 39, 50, 62 and 63-Land Disposal Restrictions
The following sections of 40 CFR Part 268 are not delegable to States (see 52 FR
25783, July 8, 1987):
• 268.5 Procedures for case-by-case extensions to an effective
date
268.6 Petitions to allow land disposal of a waste prohibited
under Subpart C of Part 268 ("no migration" petitions)
268.42(b) Alternate to treatment standards specified in 268.42(a).
• 268.44 Variance from a treatment standard
40 CFR 268.5 is not delegable to the States because EPA is solely responsible for
granting extensions to a land disposal restriction effective date, and such extensions
must be determined on a national basis. RCRA Section 3004(h)(3) intends for the
EPA Administrator to grant case-by-case extension to an effective date after
consulting the affected States, on the basis of national concerns. Such concerns
can only be adequately addressed by the administrator of a Federal rather than a
State agency. Consideration of national impacts is the reason that 40 CFR
268.42(b) and 268.44 are not delegable to States. Under these sections, the
Agency may grant a waste-specific variance from a treatment standard. The result
of such an action would be the establishment of a new waste treatability group, an
action for which the Agency is solely responsible. Wastes meeting the criteria of
this newly established waste treatability group may also be eligible for the variance,
possibly resulting in nationwide impacts that need to be assessed by a Federal
rather than a State agency.
Under 40 CFR 268.6, EPA may grant petitions of specific duration to allow land
disposal of certain hazardous waste where appHcants can demonstrate that there
will be "no migration" of hazardous constituents. States that have the authority to
impose land disposal prohibition may be authorized under RCRA Section 3006 to
grant petitions for such exemptions, because such decisions do not require a
national perspective as is required to grant the extensions under 268.5 or the
6
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variances under 268.42(b) and 268.44. However, EPA is currently requiring that the
"no migration" petitions be handled by EPA, though States may be authorized to
grant these petitions in the future. The Agency has had few opportunities to
implement the land disposal restrictions and expects to gain valuable experience
and information from reviewing "no-migration" petitions. This experience and
information may affect future land disposal restrictions rulemaking. Additionally, EPA
is retaining the authority for "no-migration" petitions because it expects few such
petitions.
To properly address the non-delegability of the above-listed portions of 40 CFR Part
268, States are advised to do the following when adopting these provisions:
Incorporation by Reference • either 1) exclude these sections of code from
the Part 268 Incorporation or 2) exclude these sections of code from the
State's replacement of the terms "Administrator" and "Federal Register" with
the State's analogous terms. An example of the first alternative would be for
the State's adoption of 40 CFR Part 268 to read as follows: "40 CFR Part
268 and its appendices, as of July 1, 1989, are incorporated by reference
except for 40 CFR 268.5, 268.6, 268.42(b) and 268.44. The authority for
implementing these excluded CFR sections remains with the U. S.
Environmental Protection Agency." An example for the second alternative Is
as follows: "40 CFR Part 268 and Its appendices, as of July 1, 1989, are
incorporated by reference. Any references to "Administrator" or "Regional
Administrator" are replaced with "Director' except for 40 CFR 268.5, 268.6,
268.42(b) and 268.44. The Administrator of the U. S. Environmental
Protection Agency is responsible for carrying out these excluded sections of
40 CFR Part 268. Reference to Federal Register in 40 CFR 268.5, 268.6,
268.42(b) and 268.44 ImpBes the Federal Register pubBshed by the U. S.
government."
Verbatim Adoption - either 1) do not include these sections of code or 2) if
these sections of code are Included, retain the use of the word
"Administrator" and "Federal Register" in the States analogs to 40 CFR
268.5, 268.6, 268.42(b) and 266.44. For the former approach, the State
must be sure to cite the Federal sections of code any place within their code
which references any of the non-delegable sections of code. For the latter
approach, the State must define "Administrator" as meaning the
"Administrator" of the Environment Protection Agency.
7
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RCRA REVISION CHECKLIST 1
Biennial Report
48 FR 3977-3983
January 28, 1983
(Non-HSWA Requirements Prior to Non-HSWA Cluster I)
STATE ANXEG315:
ANALOGOUS
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
PART 262 - STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
SUBPART D - RECORDKEEPING AND REPORTING
T RECORDKEEPING
record
retention period
262.40(b)
information submitted
on biennial report
262.41 (a)
generators who treat,
store or dispose
on-site
262.41 (b)
PART 264 - STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART E - MANIFEST SYSTEM, RECORDKEEPING AND REPORTING
t BIENNIAL REPORT
introductory paragraph 264.75
UNMANIFESTED WAS1
fE REPORT
introductory paragraph
264.76
t ADDITIONAL REPORTS
introductory paragraph
264.77
PART 265 • INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART E - MANIFEST SYSTEM, RECORDKEEPING AND REPORTING
January 28, 1983 - Page 1 of 2
-------
RCRA REVISION CHECKLIST 1: Biennial Report (cont'd)
STATE ANALOG IS.
ANALOGOUS
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
t BIENNIAL REPORT
Introductory paragraph 265.75
UNMANIFESTED WAS!
fE REPORT
introductory paragraph
265.76
t ADDITIONAL REPORTS
Introductory paragraph 265.77
SUBPART F - GROUNDWATER MONITORING
t RECORDKEEPING AND REPORTING
annual reouirement
265.94(a)(2)
annual report
265.94(b)(2)
PART 122 - PERMITTING REQUIREMENTS
NONCOMPLIANCE AND PROGRAM REPORTI
NG BY THE DIRECTOR
program report
122.18(c)(3)
270.5(b)(2)
t ADDITIONAL CONDITIONS APPLICABLE TO ALL RCRA PERMITS
biennial report
122.28(e)(3)
270.30ffl(9)
1
While the requirement to submit a biennial report rather than an annual report is less stringent,
the information requirement has been expanded.
January 28, 1983 - Page 2 of 2
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Federal Register / Vol. 48. ~ No. 20 / Friday, January 28. 1983 / Rules and Regulations 3977
1681 or the Act of 1005 which have not
been published under & 12(c) of the Act
of 1946. or on any ground specified in
$ 14 (c) or (e) of the Act of 1946. In all
other cases the petition and the required
fee must be filed within five years from
the date of registration of the mark •
under the Act of 1946 or from the date of
publication under S 12(c) of the Act of
1946.
(c)(1) The petition must be
accompanied by the required fee for
each class in the registration for which
cancellation is sought (see S§ 2.6(1) and
2.85(e)). If the fees submitted are
insufficient for a cancellation against all
oi the classes in the registration, and the
particular class or classes against which
the cancellation is filed are not
specified, the Office will issue a written
notice allowing petitioner until a set
time in which to submit the required
fee(s) (provided that the five-year
period, if applicable, has not expired) or
to specify the class or classes sought to
be cancelled. If the required fee(s) is not
submitted, or the specification made,
within the time set in the notice, the
cancellation will be presumed to be
against the class or classes in ascending
order, beginning with the lowest
numbered class, and including the-
number of classes in the registration for
which the fees submitted are sufficient
to pay the fee due for each class.
(2) If persons are joined as party
petitioners, each must submit a fee for
each class for which cancellation is
sought. If the feet submitted are
insufficient for each named party
petitioner, the Office will issue a written
notice allowing the named party
petitioners until a set time in which to
submit the required fee(s) (provided that
the five-year period, if applicable, has
not expired) or to specify the
petitioners) to which the submitted fee*
apply. If the required fee(s) Is not
submitted, or the specification made,
within the time set in the notice, the first
named party will be presumed to be the
party petitioner and additional parties
will be deemed to be party petitioners to
the extent that the fees submitted are
sufficient to pay the fee due for each
party petitioner. If persons are joined as
party petitioners against a registration '
sought to be cancelled In more than one
class, the fees submitted are insufficient
and no specification of parties and
classes is made within the time set in
the written notice issued by the Office,
the fees submitted will be applied first
on behalf of the first-named petitioner
against as many of the classes in the
registration as the submitted fees are
sufficient to pay, and any excess will be
applied on behalf of the second-named
party to the petition against the classes
in the registration in ascending order.
(3) The filing date of the petition is the
date of receipt in the Patent and
Trademark Office of the petition
together with the required fee. If the
amount of the fee filed with the petition
is sufficient to pay for at least one
person to petition to cancel one class of
goods or services but is less than the
required amount because multiple party
petitioners and/or multiple classes in
the registration for which cancellation is
sought are involved, and the required
additional amount of the fee is filed
within the time limit set in the
notification of the defect by the Office,
the filing date of the petition with
respect to the additional party
petitioners and/or classes is the date of
receipt in the Patent and Trademark
Office of the additional fees.
5. Section 2.112 is revised to read as
follows:
$2,112 Contents of petition lor
cancellation.
(a) The petition to cancel must set
forth a short and plain statement
showing how the petitioner is or will be
damaged by the registration, state the
grounds for cancellation, and indicate
the respondent party to whom
notification shall be sent A duplicate ¦
copy of the petition, including exhibits,
shall be filed with the petition.
(b) Petitions to cancel different
registrations owned by the same party
may be |oined in a consolidated petition
when appropriate, but the required fee
must be included for each party Joined
as petitioner for each class sought to be
cancelled in each registration against
which the petition to cancel is filed.
6. Section 2.161 is revised to read as
follows:
S 2-161 Cancellation lor failure to ftte -
affidavit or declaration during sixth year.
Any registration under the provisions
of the Act of 1946 and any registration
published under the provisions of
section 12(c) of the Act (9 2.153) shall be
cancelled as to any class in the
registration at the end of six years
following the date of registration or the
date of such publication, unless within
one year next preceding the expiration
of such six years the registrant shall file
in the Patent and Trademark Office an
affidavit or declaration in accordance
with } ZJO showing that said mark la-in
use in commerce as to such class or
showing that its nonuse as to such class
is due to special circumstances which
excuse such nonuse and Is not due to
any intention to abandon the mark.
7. Section 2.162 is amended by
revising paragraphs (e). (f) and (g) to
read:
J 2.142 Requirements for affidavit or
declaration during sixth year.
e • » • •
(e) State that the registered mark is in
use in commerce and specify the nature
of such commerce (except under
paragraph (f) of this section). The
statement must be supported by
evidence which shows that the mark is
in use. and normally such evidence
consists of a specimen or a facsimile
specimen which is currently in use. or a
statement of facts concerning use. The
supporting evidence should be
submitted with the affidavit or
declaration, but if it is not or if the
evidence submitted is found to be
deficient, the evidence, or further
evidence, may be submitted and
considered even though filed after the
sixth year has expired:
(f) If the registered mark is not in use
ui commerce, recite facts to show that
nonuse is due to special circumstances
which excuse such nonuse and is not
due to any intention to abandon the
mark. If the facts recited are found not
to be sufficient further evidence or
explanation may be submitted and
considered even though filed after the
sixth year has expired and
(g) Contain the statement of use in
commerce or statement as to nonuse
and appropriate evidence, as required in
paragraphs (e) and (f) of this section, for
each class to which the affidavit or
declaration pertains in this registration.
(Sees. B and ». Pub. L 97-247(96 Stat. 320))
Dated: (anuary 19.1983.
Donald J. Quigg,
Deputy Commissioner of Patents and
Trademarks.
im Doc imw r.i*t *
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3978
Federal Register "/ Vol. 48. No. 20 / Friday, January 28. 1983 / Rules and Regulations
summary: The Environmental Protection
Agency is today issuing final
amendments to its hazardous waste
regulations under Subtitle C of the
Resource Conservation and Recovery
Act (RCRA) which change the reporting
requirements for hazardous waste
generators and owners or operators of
hazardous waste treatment storage, and
disposal (TSD) facilities. These
amendments will reduce the paperwork
burdens on the regulated community
and will allow EPA to obtain needed
data on hazardous waste management
The amendments increase the interval
between required reports from annual to
biennial and require the biennial report
to be submitted by March 1 of even
numbered years describing hazardous
waste activities during the previous
calendar year. Under today s
amendments, hazardous waste
generators and TSD facilities are not
required to submit an annual report for
1982.
EFFECTIVE DATE: February 28.1983.
addresses: The public docket for this
rulemaking is available at Room S-269.
Environmental Protection Agency. 401 M
Street. SW., Washington, D.C. 20460.
and is available for viewing from 9:00
a.m. to 4:00 p.m. Monday through Friday,
excluding holidays.
FOR FURTHER INFORMATION CONTACT
RCRA/Superfund Hotline at (800) 424-
9348 (Toll-free) or in Washington. D.C
(202) 382-300O.
For technical information, contact
Robert B. Axelrad, Office of Solid Waste
fWH-582). U.S. Environmental
Protection Agency, 401 M Street SW..
Washington. D.G. 20480, (202) 382-5218.
SUPPLEMENTARY INFORMATION:
Preamble Outline
L General Authority
U. Background of Annual Report Requirement
in. Summary of Survey Proposal
IV. Discussion of Comments
A Burden Reduction Potential of the
Proposed Rule
B. Elimination of Reporting by all
Generator* and TSD Facilities
V. Revised Approach
VI. Status of 1882 Annual Reports
VII. Specific Amendments
Vin. Executive Order 12291
IX. Paperwork Reduction Act
X. Regulatory Flexibility Act
L General Authority
Today's amendments are issued
primarily under the authority of Sections
3002 and 3004 of the Solid Waste
Disposal Act as amended by Subtitle C
of the Resource Conservation and
Recovery Act of 1978 (RCRA), as
amended. 42 U.S.C. 8901 et seq.
Section 3002(8) requires generators of
hazardous waste to submit reports at
such'times as the Administrator deems
necessary, setting out the quantities of
hazardous waste generated and their
disposition. Section 3004(2) of RCRA
requires EPA to establish reporting
requirements respecting satisfactory
reporting from hazardous waste TSD
facilities.
II. Background of the Annual Report
Requirement
In February and May of 1980. EPA
promulgated regulations establishing the
reporting requirements authorized by
Sections 3002(8) and 3004(2) of RCRA.
Under 40 CFR 262.41. generators who
ship hazardous wastes off-site are
required to submit reports annually by
March 1 for the reporting year ending -
the previous December 31. The reports
are to specify, among other things, the
amount of each type of hazardous waste
shipped to each TSD facility during the.
reporting year, as well as the names,
addresses, and EPA identification
numbers of all transporters utilized in
such shipments. Under 40 CFR 264.79
and 265.75. the owners or operators of
hazardous waste TSD facilities must
submit annual reports specifying, among
other things, the amount of each type of
hazardous waste received from each
generator from which the facility
received hazardous waste during the
reporting year.
In 1981. EPA began to reevaluate this
reporting requirement in light of EPA's
current and future information needs.
This review led EPA to tentatively
conclude that conducting periodic
surveys of a representative sample of all
generators and TSD facilities might be
preferable to requiring annual reports
only from handlers is unauthorized
States.1
On October 12,1982, EPA published a
notice of proposed rulemaking (47 FR
44932) requesting comment on the
Agency's intention to replace the annual
report requirement with a requirement
that hazardous waste handlers respond
to a biennial sample survey. As a result
of comments received on that proposal,
EPA has reconsidered the biennial
survey approach and is today issuing
amendments that will require reporting
by all generators and TSD facilities in
unauthorized States on a biennial basis.
m. Summary of the Survey Proposal
The biennial survey proposal was
Intended to permit EPA to obtain better .
and more reliable national data on
hazardous waste management than is
' EPA's annual upon wqulrenant app&es oaly to
generators and TSD fadUlitt located in States that
bava not ncalved Phase I Interim Authorisation or
Final Authorization to opart ta their own haiardiws
wute programs.
currently available through the existing
annual reporting system. EPA proposed
to survey approximately 10% of the
regulated community in all fifty States
once every two years, using a statistical,
stratified sampling technique. EPA
explained in the October 12,1982 notice
that the survey would: (1) Provide more
detailed information, (2) provide better
national data, and (3) reduce paperwork
burdens.
The biennial survey proposal sought
public comment on a variety of issues
including: (1) Whether a 10% survey of
hazardous waste handlers in all fifty
States was preferable to the existing
annual report required of generators and
TSD facilities in unauthorized States: (2)
whether surveys should be conducted
biennially or at some other frequency;
(3) the size and scope of the surveys: (4)
mechanisms for cooperation with States
to minimize the reporting burden and
maximize sharing of information
obtained; and (5) the Agency's intention
to make the amendments effective
immediately to relieve hazardous waste
handlers in the unauthorized States from
having to submit 1982 annual reports to
EPA.1
IV. Discussion of Comments
EPA received 44 comments on the
biennial survey proposal from a cross
section of the regulated community,
State and Federal government agencie
and environmental organizations. The
comments covered a wide range of
issues. The major issues raised by
commenters were: (A) The degree of
burden reduction that would be
achieved through the proposed
amendments; and (B) whether it is
appropriate to rescind the requirement
that all generators and TSD facilities
report to EPA on their hazardous waste
activities.
A. Burden Reduction Potential of the
Proposed Rule
la the October 12.1982 Federal
Register notice. EPA explained that the
biennial survey proposal would
substantially reduce the paperwork
burden on the regulated community by
requiring only 10% of hazardous waste
handlers to respond to s survey to be
conducted every two years. However,
while some commenters agreed that the
biennial survey would result in a
significant decrease in reporting burden,
the majority of commenters disagreed.
These commenters believed that the
proposed biennial survey would result
in a substantial Increase in reporting
'1SS2 Annual Raporls would be dna on Mart.
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Federal Register / Vol. 46. No. 20 / Friday, january 28. 1983 / Rules and Regulations
3979
burden for most hazardous waste
handlers since it would add an
additional information requirement in
many States rather than eliminating a
reporting burden. In particular,
commenters expressed concern that
States which have independent
reporting requirements would probably
retain those requirements even if EPA
rescinds its annual report. Firms would
therefore be required to comply with
Slate annual [or more frequent)
reporting requirements as well as
respond to EPA surveys. Many
commenters argued that EPA's inability
to preempt State requirements3 would
result in a multi-layered set of reporting
requirements under which: (1) Many
States would continue to require their
own version of reports. (2) other States
which are prevented by State legislation
From establishing more stringent
requirements than EPA's would develop
their own survey programs to remain
consistent with EPA requirements, and
[3) handlers in all States would be
subject to EPA surveys, these
commenters felt that such a system of
duplicative and overlapping
requirements would substantially
increase the recordkeeping and
reporting burdens, particularly for firms
that operate interstate or have a large
number of installations and must
comply with multiple State ai well as
EPA reporting requirements.
Virtually aU of the commenters
strongly recommended (hat EPA obtain
whatever information it needed from the
authorized Slate agencies themselves
rather than impose a new requirement
or duplicate reporting requirements in
the authorized States. Comments from
State hazardous waste management
agencies also supported this approach.
In proposing the biennial survey. EPA
believed that the variations among Stale
reporting requirements would prohibit
EPA from obtaining usable nationwide
information. EPA was also concerned
that the limited nature of the
report data would not be sufficient to
meet the Agency's information needs.
However. EPA finds the arguments
presented by commenters to be
persuasive. Q>A agrees that the ust o!
existing data wherever possible to
minimize reporting burden is a desirable
approach and that further efforts to
utilize existing State data should be
made prior to imposing a new or
potentially duplicative reporting
requirement on installations that must
submit annual or more frequent reports
to Slate agencies.
• RGKA doas d* pnhlMt SUM* boa
proautgatinf man itnnjtat nqoinatat* Hub du
f«4ml mfialaitoea.
The Agency now believes that much
of the information needed for general
management purposes (e.g. determining
who is generating, treating, storing or
disposing of hazardous waste as well as
where and how such wastes are being
handled) can be gleaned from existing
State reporting systems. In order to
obtain the necessary management
information directly from Slate agencies.
EPA intends lo modify the Slate/EPA
Memoranda of Agreement as necessary
to provide for (he transfer of such
information.
EPA is still convinced, however, that
it will periodically require more detailed
information for specific rulemaking
purposes than is available from the
existing report forms, regardless of
frequency of reporting or whether the
reports are submitted to EPA or to State
agencies. A number of commenters
argued that Section 3007 of RCRA could
not be construed lo authorize a national
survey in authorized Stales since
Section 3007 focuses on site-by-siie
inspections and should not be used to
circumvent restrictions on reporting
embodied in Section 3006 (which states
that once a State receives program
approval, "such State is authorized to
carry out such program in lieu of the
Federal program } and Section
3002(6), which commenters argue limits
submission of reports to "* * * State
Agency In any case in which such State
carries out an authorized permit
program* *
EPA does not agree that Sections 3002
and 3006 restrict the Agency's authority
under Section 3007 to obtain information
it deems necessary for rulemaking or
enforcement purposes. In addition,
many commenters agreed that EPA
would occasionally need additional data .
and that such data could properly be
collected through the use of small
statistically valid samples. The Agency
wilL therefor#, periodically conduct
special surveys of small samples of the
regulated community on an as needed
basis for specific rulemaking activities.
However, in light of the large number
of comments indicating that the biennial
survey would increase rather than
decrease reporting burden if conducted
in authorized States, and because the
Agency now believes it can obtain the
necessary information directly from the
States. EPA has decided not to impose
any additional routine reporting
requirements on handlers in States with
interim or final authorization.
B. Elimination of Reporting by Ail
Generators and TSD Facilities
A high percentage of commenters
strongly objected to EPA's proposal to
eliminate (he requirement that ail
generators and TSD facilities report on
their hazardous waste activities on a
regular basis- Many commenters felt
that: (1) Reporting at regular intervals
was essential to the development of a
strong national data base on hazardous
waste activities: (2) across-the-board
reporting was important as a
compliance incentive and enforcement
mechanism as well as to improve public
confidence in the hazardous waste
regulatory program: and (3) the current
reporting requirement was the least
burdensome reporting mechanism since
the annual report forms request easily
accessible information in a format
compatible with existing recorrixeeping
systems.
The Agency is not convinced :hat a
carefully designed 10 percent survey
conducted every two years would
provide EPA with insufficient data to
characterize hazardous waste activity
and trends. However. EPA does
recognize that the implementation of the
program would benefit from a sound
data base on all facilities.
Also. EPA does find some merit to the
arguments presented by commtenters
that requiring reports from all generators
and TSD facilities provides stronger
incentives for fines to maintain proper
and complete records than would a
random and occasional sampling
system. The Agency also agrees rtiat the
development and maintenance of public
confidence in the hazardous waste
management program is an important
goal and thai the elimination of publicly
accessible information on all hazardous
waste handlers might reduce confidence
in EPA's ability to protect the public
from future hazardous waste incidents.
EPA found die comments of several
ma|or associations representing a large
portion of the hazardous waste
management industry to be of particular
interest. These commenten. although
generally supportive of EPA efforts to
reduce regulatory burden, nevertheless
felt that EPA should have information
on the activities of all hazardous waste
generators and TSD Facilities and that
the current annual report was the least
burdensome reporting system for two
reasons: (1) The required report is of
minimal length and requests information
that is easily accessible using current
recordkeeping procedures; and (2) the
least burdensome requirements are
those that an known and consistent,
characteristics that these commenters
felt wen not embodied in the biennial
survey proposal.
V. JUvised Approach
As a result at the comments received
on its October 12.1982 proposal. EPA
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3980
Federal Register / Vol. 48. No. 20 / Friday. January 28. 1983 / Rules and Regulations
has reconsidered the biennial survey
approach and instead is implementing
minor modifications to its existing
reporting requirements to increase the
interval between reports from one year
to two years and to bring all of EPA's
existing regulations into conformance
with this amendment. EPA believes that
these modifications address the
comments received and will achieve
real and substantial reductions in
burden while permitting EPA to obtain
the information it needs to update and
refine the regulatory program.
This approach incorporates the
following features:
(1) Retention of the requirement that
all generators and TSD facilities in the
unauthorized States submit reports to
EPA on their hazardous waste activities.
The majority of commenters indicated
that EPA should not collect information
directly from handlers located in
authorized States since a majority of
States intend to retain requirements that
all handlers submit annual or more
frequent reports on their activities. As
stated previously. EPA may not prevent
States from adopting more stringent
requirements than the Federal
regulations. In addition, many States
currently require reports to be submitted
in a format similar or identical to EPA's
existing annual report. Retaining across*
the-board reporting by all generators
and TSD facilities in States where EPA
operates the hazardous waste program
will therefore serve to maintain a
maximum degree of consistency
between State and Federal requirements
and maximize the potential for EPA to
obtain uniform information from both
authorized and unauthorized States.
This approach also responds to
comments indicating that the existing
reporting requirement is the least
burdensome reporting system and
necessary to establish a sound data
base, promote confidence in the
hazardous waste management system,
and support enforcement of the
regulatory program.
(2) Amending { 9 28241,26175. and
289.75 to require such reports to be
submitted biennially instead of
annually. The reports will cover only
hazardous waste generated and/or
treated, stored or disposed of in odd
numbered years and will be required to
be submitted by March 1 of each even
numbered year.
As stated in the biennial survey
proposal. EPA believes that requiring
reporting every year is unnecessarily
burdensome and that biennial reporting
is adequate to characterize hazardous
waste activity, update the data base,
and ensure compliance with .
recordkeeping requirements and other
provisions of RCRA. A large majority of
commenters support reducing the .
frequency of required reports.
(3) Modification of existing State
authorization requirements to require
States to require, at a minimum, biennial
reports, and to submit certain data to
EPA by the authorized States on a
biennial basis.
As discussed above. EPA needs
certain information on hazardous waste
activity in order to refine and update its
hazardous waste regulations. In
response to comments on the biennial
survey proposal. EPA intends to obtain
as much of the data the Agency requires
as possible from the State agencies in
the authorized States. Summary
information on the quantities and types
of hazardous waste generated,
transported, stored, treated, or disposed
of is currendy required to be submitted
to EPA by the States on an annual basis
(40 CFR S 122.18). Under today's
amendments, these summaries will be
required biennially to conform to the
biennial report schedule. EPA is now in
the process of exploring whether
modifications to the Memoranda of
Agreement should be made to more
precisely specify the form and content of
these summaries.
VI. Status of 1982 Annual Reports
Under the existing regulations,
generators of hazardous waste and
owners or operators of treatment
storage and disposal facilities are
required to submit reports on their 1982
activities by March 1.1983.
Since the Summer of 1982. EPA has
collected substantial quantities of data
through the R1A survey process and
submission of 1981 annual reports and
the Agency is now in the process of
collating and evaluating this
information. This should provide EPA
sufficient data to characterize current
hazardous waste management activities.
For this reason, the Agency does not
intend to collect a 1982 annual report
EPA will eliminate the requirement to
submit a 1982 annual report by making
today's amendments effective before
March 1.1983. the date the 1982 report is
currently due. Thus, the next generator
and TSD facility report will be due on
March 1.1984. covering the 1983
calendar year.
Section 3010(b) of RCRA requires that
revisions to RCRA Subtitle C regulations
take effect six months after date of
publication. The purpose of this
provision is to allow the regulated
community adequate lead time to
prepare to comply with major new
regulatory requirements. Because the
amendments promulgated today reduce
reporting requirements for hazardous
waste handlers. EPA does not believe
that making them effective less than s>'
months after date of publication wou
be contrary to the purposes of Section
3010(b).
EPA also believes that relieving
hazardous waste handlers of the
obligation to file 1982 annual reports is
consistent with both the comments
received on the proposed ruie and the
shift from annual to biennial reports.
VII. Specific Amendments
EPA is today finalizing the following
amendments to bring all of EPA's
existing RCRA regulations into
conformance with the shift to a biennial
report requirement
1. 40 CFR 262.40 and 282.41 have been
revised to reflect the shift to biennial
reports and to bring the regulatory
language of Part 262 into conformance
with that in 40 CFR Parts 284 and 263. In
addition, the annual report forms (EPA
Forms 8700-13 and 870O-13A) and their
associated instructions are being
deleted from the Appendix to Part 282.
EPA is now making clarifying
modifications to the generator report
instructions and will publish revised
forms and instructions in the Federal
Register as soon as-possible, subject to
OMB approval. These revisions will not
substantively alter the information
required to be submitted. For
recordkeeping purposes, it should be
noted that the DOT Hazard Class code
numbers which appeared in the 1981
Generator Annual Report instructions
will not be further revised.
2.40 CFR Parts 284 and 285 are being
revised to reflect the shift to a biennial
reporting period.
The annual report forms contained in
Appendix D to the TSD facility
regulations at 40 CFR Parts 284 and 28S
(EPA Forms 8700-13 and 8700-13B] will
also be deleted. EPA is now in the
process of making clarifying
modifications to the facility report forms
and instructions and will publish revised
forms in the Federal Register as soon as
possible, subject to OMB clearance.
These modifications will correct
inconsistencies in the handling codes
between the biennial report and Part A
permit applications and will permit the
revised form 8700-13B to also serve as
the Unmanifested Waste Report forms,
requited for use by facility owners and
operators under 40 CFR 284.78 and
28176. Firms may continue to use the
Unmanifested Waste report forms and
instructions which appeared in the May
19.1980 Federal Register (4S FR 33239V
until EPA publishes the revised form^
and instructions. The revisions to the
facility report form and instructions will
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Federal Register / Vol. 48. No. 20 / Friday. January 28. 1963 / Rules and Regulations
3981
not alter the information required to be
submitted.
3.40 CFR 265.94 (Ground-water
Monitoring Reporting).
Section 285.94 currently requires
owners and operators of surface
impoundments, landfills, and land
treatment facilities to submit annual
ground-water monitoring data and
analyses as part of. or attached to. their
annual reports to EPA's Regional
Administrators. Because today's
amendments require owners and
operators to report on their hazardous
waste activities on a biennial basis, and
because the Agency is still requiring
ground-water information on an annual
basis. EPA is amending 3 265.94 to
require this annual ground-water
monitoring data to be submitted
independently to Regional
Administrators by March 1 of each year.
This amendment does not affect the
nature or frequency of the data required
to be submitted.
4. 40 CFR 122.18 is being revised to
require States to provide certain
summary information to EPA biennially
instead of annually.
5.40 CFR 122.26 and 122.28 are being
revised slightly to bring them into
conformance with the shift to biennial
reports.
Today's amendments apply only to
generators and TSD facilities in States
that do not have interim or final
authorization to operate their own
hazardous waste program. However,
authorized States must comply with the
provisions for interim or final
authorization specified in 40 CFR Part
123. including requirements that States
have reporting requirements
substantially equivalent or equivalent
to those specified in Parts 262.284, and
285. States with interim or final
authorization must therefore require, at
a minimum, reporting by all generators
and TSD facilities on a biennial basis.
VUL Executive Order 12291
In accordance with Executive Order
12291. EPA has determined that today's
revisions of the RCRA regulations will
not result in: an annual effect on the.
economy of $100 million or more: a
major increase in costs or prices for
consumers, individual Industries,
Federal State, or local government
agencies, or geographic regions: or
significant adverse effects on
competition, employment investment
prodoctivity. innovation, or on the
ability of United States-based
enterprises to compete with foreign-
based enterprises in domestic or export
markets. Therefore, today's amendment*
are not subject to the major rule
provisions of the Executive Order and
no regulatory impact analysis is
required.
These amendments have been
submitted to the Office of Management
and Budget (OMB) for review as
required by Executive Order 12291.
OMB's comments, and EPA's responses
will be made available for public
inspection at the Office of Solid Waste
Public Docket (see addresses, above, for
location and public hours).
IX. Paperwork Reduction Act
The Paperwork Reduction Act of 1980,
44 U.S.C. 3501 et seq.. authorizes the
Office of Management and Budget
(OMB) to review information collection
requirements in Federal regulations.
EPA will shortly submit to OMB
information necessary for approval of
the amended reporting requirements
promulgated today.
X. Regulatory Flexibility Act
Under the Regulatory Flexibility Act 5
U.S.C. 601 et seq.. Federal Agencies
must prepare regulatory flexibility
analyses for all rules to assess their
impact on small entities. No regulatory
analysis is required, however, where the
head of the Agency certifies that the rule
will not have a significant economic
impact on a substantial number of small
entities.
The economic impact of this
regulation will be to reduce the costs of
complying with EPA's hazardous waste
management regulations for generators
of hazardous waste and owners and
operators of hazardous waste treatment
storage, and disposal facilities, including
small entities. Accordingly. 1 hereby
certify, pursuant to 3 U.S.C. 601(b). that
this rule will not have a significant
economic impact on a substantial
number of small entities.
List of Subjects
40 CFR Part 122
Administrative practice and
procedure, Air pollution control
Hazardous materials. Reporting
requirements, Waste treatment and
disposaL Water pollution control
Confidential business information.
40 CFR Part 282
Hazardous materials. Labeling,
Packaging and containers. Reporting
requirements. Waste treatment and
disposal
40 CFR Part 264
Hazardous materials. Packaging and
containers. Reporting requirements.
Security measures. Surety bonds. Waste
treatment and disposaL
40 CFR Part 285
Hazardous materials. Packaging and_
containers. Reporting requirements.
Security measures. Surety bonds. Waste
treatment and disposal. Water supply.
Dated: January 21.1983.
Anne M. Gotsuch.
Administrator.
For the reasons set out in the
preamble. Title 40 of the Code of Federal
Regulations is amended as follows:
PART 262—STANDARDS FOR
GENERATORS OF HAZARDOUS
WASTE
1. The authority citation for Part 262
reads as follows:
Authority; Sees. 1006. 3002. 3002. 3003. 3004.
and 3005. Solid Waste Disposal Act. as
amended by the Resource Conservation-and
Recovery Act of 1978. as amended. IRCRA).
(42 U.S.C 6903. 6912. 6922. 6923. 6924. 5925).
2. 40 CFR 282.40(b) is revised to read
as follows:
J 262.40 Recordkeeping.
• • • • •
(b) A generator must keep a copy of
each Biennial Report and Exception
Report for a period of at least three
years from the due date of the report.
• • • • •
3.40 CFR 282.41 is revised to read as
follows:
9 262.41 Biennial report
(a) A generator who ships his
hazardous waste off-site must prepare
and submit a single copy of a biennial
report to the Regional Administrator by
March 1 of each even numbered year.
The biennial report must be submitted
on EPA Form 8700-13 A and must cover
generator activities during the previous
calendar year, and must include the
following information:
(1) The EPA identification number,
name, and address of the generator:
(2) The calendar year covered by the
report
(3) The EPA identification number,
name, and address for each off-site
treatment storage, or disposal facility to
which waste waa shipped during the
year: for exported shipments, the report
must give the name and address of the
foreign facility.
(4) The name and EPA identification
number of each transporter used during
the reporting year.
(5) A description. EPA hazardous
waste number (from 40 CFR Part 281.
Subpart C or D), DOT hazard class, and
quantity of each hazardous waste
shipped off-site. This information must
be listed by EPA Identification number
-------
3982 Federal Register / Vol. 48. No. 20 / Friday. January 28, 1983 / Rules and Regulations
of each off-site facility to which waste
was shipped.
(6) The certification signed by the
generator or his authorized
representative.
(b) Any generator who treats, stores,
or disposes of hazardous waste on-site
must submit a biennial report covering
those wastes in accordance with the
provisions of 40 CFR Parts 122, 264, 265,
and 266.
Appendix [Removed]
4. The Appendix to 40 CFR Part 282.
entitled Appendix—Form—Annual.
Report (EPA Form 8700-13). and the
associated section entitled General
Instructions. Hazardous Waste Report
[EPA Form 6700-13), are removed from
the Code of Federal Regulations.
PART 264—STANDARDS APPLICABLE
FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
5. The authority citation for Part 264
reads as follows:
Authority; Sees. 1006. 2002(a), and 3004 of
the Solid Waste Disposal Act as amended by
the Resource Conservation and Recovery Act
of 1976. as amended (42 U.S.C. 6905. 6912(a)
and 6924).
8. The introductory text of 40 CFR
264.75 is revised to read as follows:
{ 264.75 Biennial report
The owner or operator must prepare
and submit a single copy of a biennial
report to the Regional Administrator by
March 1 of each even numbered year.
The biennial report must be submitted
on EPA form 8700-13B. The report must
cover facility activitiea during the
previous calendar year and must
include:
• • • • «
7. Section 264.78 is amended by
revising the first paragraph to read as
follows:
§ 264.76 Unmanifested waste report
If a facility accepts for treatment
storage, or disposal any hazardous
waste from an off-site source without an
accompanying manifest or without an
accompanying shipping paper as
described in S 283.20(e)(2) of this
Chapter, and if the waste is not
excluded from the manifest requirement
by 8 281.5 of this Chapter, then the
owner or operator must prepare and •
submit a single copy of a report to the
Regional Administrator within fifteen
days after receiving the waste. The
unmanifested waste report must be
submitted on EPA form 8700-13B. Such
report must be designated
'Unmanifested Waste Report' and
include the following information:
• • • • *
8. The introductory text of 40 CFR
264.77 is revised to read as follows:
J 264.77 Additional reports.
In addition to submitting the biennial
reports and unmanifested waste reports
described in SS 264.75 and 264.76, the
owner or operator must also report to
the Regional Administrator
* * • • ~
Appendix II [Removed]
9. Appendix II to 40 CFR Part 284
entitled Appendix II—EPA Report Form
and Instructions is removed from the
Code of Federal Regulations.
PART 265—INTERIM STATUS
STANDARDS APPLICABLE FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
10. The authority citation for Part 285
reads as follows:
Authority: Sees. 1006.2002(a). and 3004.
Solid Waste Disposal Act as amended by the
Resource Conservation and Recovery Act of
1976. as amended (42 U.S.C 6905.6912(a),
and 6924).
11. The introductory text of 40 CFR
265.75 is revised to read as follows;
S 26175 Biennial report
The owner or operator must prepare
and submit a single copy of a biennial
report to the Regional Administrator by
March l of each even numbered year.
The biennial report must be submitted
on EPA Form 8700-13B. The report must
cover facility activities during the
previous calendar year and must include
the following information:
• * « t •
12.40 CFR 285.78 is amended by
revising the introductory paragraph to
read as follows:
9 266.76 Unmanifested waste report
If a facility accepts for treatment
storage, or disposal any hazardous
waste from an off-site source without an
accompanying manifest or without an
accompanying shipping paper as
described in S 283.20(e)(2) of this
Chapter, and if the waste is not
excluded from the manifest requirement
by S 281.5 of this Chapter, then the
owner or operator must prepare and
submit a single copy of a report to the
Regional Administrator within fifteen
days after receiving the waste. The
unmanifested waste report must be
submitted on EPA form 8700-13B. Such
report must be designated
'Unmanifested Waste Report' and
include the following information:
• • • • •
13.40 CFR 285.77 is amended by
revising the introductory paragraph to
read as follows:
3265.77 Additional reports.
In addition to submitting the biennial
report and unmanifested waste reports
described in SS 265.75 and 265.76. the
owner or operator must also report to
the Regional Administrator
• • • • •
Appendix II [Removed]
14. Appendix ~ to 40 CFR Part 265.
entitled Appendix Q—EPA Report Form .
and Instructions is removed from the
Code of Federal Regulations.
15.40 CFR 265.94 is amended by
revising paragraphs (a)(2) (ii) and (iii)
and (b)(2) to read as follows:
S 26544 Recordkeeping and reporting.
(a) * * *
(2) • ' *
(ii) Annually: Concentrations or
values of the parameters listed in
S 285.92(b)(3) for each ground-water
monitoring welL along with the require^
evaluations for these parameters under
S 285.93(b). The owner or operator must
separately identify any significant
differences from initial background
found in the upgradient wells, in
accordance with S 285.93(c)(1). During
the active life of the facility, this
information must be submitted no later
than March 1 following each calendar
year.
(ill) No later than March 1 following
each calendar yean Results of the
evaluations of ground-water surface
elevations under i 285.83(f), and a
description of the response to that
evaluation, where applicable.
Cb| • * •
(2) Annually, until final closure of the
facility, submit to the Regional
Administrator a report containing the
results of his or her ground-water
quality assessment program which
includes, but is not limited to, the
calculated (or measured) rate of
migration of hazardous waste or
hazardous waste constituents in the
ground water during the reporting
period. This information must be
submitted no later than March 1
following each calendar year.
• • • • •
-------
Federal Register / Vol. 48, No. 20 / Friday, ]anuary 28. 1983 / Rules and Regulations
3983
PART 123—EPA ADMINISTERED
PERMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM; THE
HAZARDOUS WASTE PERMIT
PROGRAM; AND THE UNDERGROUND
INJECTION CONTROL PROGRAM
16. The authority citation for Part 122
reads as follows:
Authority: Resource Conservation and
Recovery Act 42 (J.S.C. 6901 et seq.: Safe
Drinking Water Act. 42 U.S.C. 3007 et seq.:
and Clean Water Act 33 U.S.C. 1251 et seq.
16. 40 CFR 122.18(c)(3) is revised to
read as follows:
§ 122.18 Non-compliance and program
reporting by the Director.
• • • * •
(c) * * *
(3) For RCRA only, in addition to the
annual non-compliance report, the
Director shall prepare a "program
report" which contains information (in a
manner and form prescribed by the
Administrator] on generators and
transporters and the permit status of
regulated facilities. The Director shall
also include, on a biennial basis,
summary information on the quantities
and types of hazardous wastes
generated, transported, treated, stored,
and disposed during the preceding odd
numbered year. This summary
information shall be reported in a
manner and form prescribed by the
Administrator and shall be reported
according to EPA characteristics and
lists of hazardous wastes at 40 CFR Part
261.
• • • * •
17.40 CFR 122.26(a)(3) (v) and
(c)(3)(v) and (vi) are revised to read as
follows:
9 122.26 Permit! by rule.
(a) * * *
(3) * * *
(v) 40 CFR 264.73. Biennial report and
(vi) * * *
(b) • * *
(c) * * •
(3) • * •
(v) 40 CFR 284.75, Biennial report
(vi) 40 CFR 264.78, Unmanifested
waste report and
• • • • +
18.40 CFR 122.28 is amended by _
revising paragraph (e)(3) to read as'
follows:
9 12128 Additional conditions applicable
to all RCRA penntte.
(e) * ' •
(3) Biennial report A biennial report
must be submitted covering facility
activities during odd numbered calendar
years. (See 40 CFR 284.75.)
• • * • »
|Fit Doc U-2JJ4 Pilad fe«S «m|
eiixiNQ code uw-se-M
40 CFR Part 123
[HW-4-FRL 2294-3]
Hazardous Waste Management
Programs; Kentucky; Authorization for
Interim Authorization Phase II,
Components A and B
agency: Environmental Protection
Agency.
action: Approval of State Hazardous
Waste Management Program.
summary: The Commonwealth of
Kentucky has applied for Interim
Authorization. Phase ~. Components A
and B. which would allow the State,
rather than EPA. to issue or deny
permits regulating the operation of
facilities that treat and story hazardous
waste. EPA has reviewed Kentucky's
application and has determined that
Kentucky's hazardous waste program is
substantially equivalent to the Federal
program. Therefore. EPA is granting the
Commonwealth of Kentucky Interim
Authorization for Phase 0. Components
A and B.
effective datc Interim Authorization
Phase IL Components A and B. for
Kentucky is effective on January 28,
1983.
FOR FURTHER INFORMATION CONTACT.
lames H. Scarbrough. Chief, Residuals
Management Branch. Environmental
Protection Agency/ 345 Courtland Street,
N.E.. Atlanta, Georgia 30385, Telephone
(404) 881-3018.
SUPPLEMENTARY INFORMATION:
Background
In the May 19.198a Federal Register
(45 FR 33083) the Environmental
Protection Agency (EPA) promulgated
relations, pursuant to Subtitle C of the
Resource Conservation and Recovery
Act of 1978, as amended (RCRA), to
protect human health and the
environment from the improper
management of hazardous waste. The
Act (RCRA) includes provisions
whereby 8 State agency may be
authorized by EPA to administer the
hazardous waste program in that State
in lieu of a Federally administered
program. For a State program to receive
final authorization, its hazardous waste
program must be fully equivalent to and
consistent with the Federal program
under RCRA. In order to expedite the
authorization of State programs. RCRA
allows EPA to grant a State agency
Interim Authorization if its program is
substantially equivalent to the Federal
program. During Interim Authorization,
a State can make whatever legislative or
regulatory changes that may be needed
for the State's hazardous waste program
to become fully equivalent to the
Federal program. The Interim
Authorization program is being
implemented in two phases
corresponding to the two stages in
which the underlying Federal program
takes effect.
Phase I regulations were published on
May 19.1980. and became effective on
November 19.1980. The Phase I
regulations include the identification
and listing of hazardous wastes,
standards for generators and
transporters of hazardous waste. •
standards for owners and operators of
treatment, storage and disposal
facilities, and requirements for State
Programs. The Phase II regulations cover
the procedures for issuing permits under
RCRA and the standards that will be
applied to treatment storage, and
disposal facilities in preparing permits.
In the January 28.1981. Federal Register
(48 FR 7985). the Environmental
Protection Agency announced that
States could apply for Components A
and B of Phase II of Interim
Authorization. Component A. analogous
to Federal regulations published in the
Federal Register January 12.1981 (46 FR
2802). contains standards for permitting
containers, tanks, surface
impoundments, and waste piles.
Component & analogous to Federal
regulations published in the Federal
Register January 23.1982 (48 FR 7668).
contains standards for permitting
hazardous waste incinerators.
A full description of the requirements
and procedures for State Interim
Authorization is Included in 40 CFR Part
123. Subpart F. as amended at 47 FR
32373 (July 28.1982).
The Commonwealth of Kentucky
received Interim Authorization for Phase
I on April 1.1981.
Draft Application
The Commonwealth of Kentucky
submitted its draft application for Phase
II Interim Authorization. Components A
and E on December a. 19M. After
detailed review. EPA Identified several
areas of major mm era and transmitted
comments to the SUM lor tts
consideration.
Major issues raised dimag EPA's
review of the draft epptlceaon were.
-------
RCRA REVISION CHECKLIST 2
Permit Rules: Settlement Agreement
48 FR 39611 -39623
September 1, 1983
(Non-HSWA Requirements Prior to Non-HSWA Cluster I)
STATE ANALOG IS:
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PART 270 - EPA ADMINISTERED PERMIT PROGRAMS:
HAZARDOUS WASTE PERMIT PROGRAM
THE
SUBPART B - PERMIT APPLICATION
SIGNATURES TO PER
MIT APPLICATIONS AN
D REPORTS
for a corporation
270.11(a)(1)
for a
municipality, etc.
270.11(a)(3)
certification
270.11(d)
SUBPART C - PERMIT CONDITIONS
CONDITIONS APPLICABLE TO ALL PERMITS
event of I
noncompliance I 270.30(d)
1 Note: Only those portions of this final rule relevant to RCRA, i.e., Part 270, are included in this
checklist
September 1, 1983 - Page 1 of 1
-------
Federal Register / Vol. 48, No. 171 / Thursday, September 1. 1983 / Rules and Regulations 39611
October 1.1983 at the rates indicated in
the table below.
List of Subjects in 39 CFR Part 10
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A transmittal letter making these
changes in the pages of the International
Mail Manual will be published in the
Federal Register as provided in 39 CFR
10.3 and will be transmitted to
subscribers automatically.
(39 U.S.C. 401.404.407)
Frad Egglaatoo.
Assistant General Counsel. Legislative
Division.
(Fit Doc 8M40II FlUd 1-11-O; K45 «m|
BOUNO COOC 7710-liMI
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122,123,124,144,145,
233,270, and 271
[OW-rm.-2372-6]
Permit Regulations; Revision In
.Accordance with Settlement
aokncv; Environmental Protection
Agency (EPA).
action; Final rulemaking.
SUMMARY: EPA Is today promulgating
revisions to regulations governing the
following EPA permit programs: the
National Pollutant Discharge
Elimination System (NPDES) under the
Gean Water Act (CWA). Underground
Injection Control (UIC) under the Safe
Drinking Water Act (SDWA], the State
.-"dredge or fill" (404).program under
Section 404 of the CWA. and the
Hazardous Waste Management (HWM)
permit program under the Resource
Conservation and Recovery Act
(RCRA). The rules promulgated today
cover a number of issues affecting these
permit programs and are the result of a
settlement agreement between EPA and
industry petitioners.
On November 18.1981. EPA entered
into a settlement agreement with
numerous industry petitioners in the
consolidated pemit regulations litigation
[NRDC v. EPA and consolidated cases.
No. 80-1807 ID.C. Cir- filed June 2.
1980]]. On June 14.1982, EPA published
proposed niles which implemented the .
settlement agreement concerning the
"common issues" affecting the NPDES.
UIC 404, and RCRA permit programs as
well as several proposed niles affecting
the NPDES permit program only (47 FR
25848). The final rules promulgated
today address the concerns of the
commentera to the proposed rules.
-------
39612 Federal Register / Vol. 48, No. 171 / Thursday. September 1. 1983 / Rules and Regulations
date: These regulations shall become
eff'.*ctive September 1.1983. For
purposes of judicial review under the
Clean Water Act, these regulations will
be considered issued at 1:00 p.m. eastern
time on September IS. 1983; see 45 FR
26894. April 22,1980. In order to assist
EPA to correct typographical errors,
incorrect cross-references, and similar
technical errors, comments of a
technical and nonsubstantive nature on
'he final regulations may be submitted
on or before November 1.1983. The
effective date of these regulations will
not be delayed by consideration of such
comments.
address: Comments of a technical and
nonsubstantive nature should be
addressed to: Cathy O'Connell. Permits
Division (EN-336), Office of Water
Enforcement and Permits. U.S.
Environmental Protection Agency.
Washington, D. C. 20460.
FOR FURTHER INFORMATION CONTACT
Cathy O'Connell. Permits Division (EN-
338). Office of Water Enforcement and
Permits. U.S. Environmental Protection
Agency. Washington. D. C 20460. (202]
426-2970.
SUPPLEMENTARY INFORMATION:
I. Introduction
On June 7,1979, EPA published final
regulations establishing program
requirements and procedures for the
NPDES permit program. Shortly
thereafter, on ]une 14.1979. a number of
petitioners representing major industrial
trade associations, several of thfeir
member companies, and the Natural
Resources Defense Council (NRDC) filed
petitions for review of the regulations.
Also on June 14.1979. EPA published
proposed regulations consolidating the
requirements and procedures for five
EPA permit programs, including the
NPDES program under the Qean Water
Act (CWA), the UIC program under the
Safe Drinking Water Act (SDWA), State
"dredge or fill" programs under Section
404 of the CWA. the Hazardous Waste
Management program under the
Resource Conservation and Recovery
Act (RCRA). and the Prevention of
Significant Deterioration (PSD] program
under the Qean Air Act (CAA). Final
Consolidated Permit Regulations were
published on May 19,1980. Again, these
regulations were challenged in court
Petitions for review were filed in several
Courts of Appeal and subsequently
consolidated in the District of Columbia
Circuit (NRDC v. EPA. and consolidated
cases [No. 80-1607]). EPA held extensive
discussions on all issues raised in the
petitions and subsequently signed four
separate settlement agreements with
industry litigants. One covered only the
UIC program, one all issues affecting the
RCRA program, one the NPDES
program, and the fourth covered issues
which were common to at least two of
the three programs involved in the
litigation and issues which affect the
definition of "new discharger" and its
relationship to mobile drilling rigs under
the NPDES program. Under the terms of
the fourth agreement, referred to as the
"Common Issues" settlement agreement,
EPA published proposed rules on lune
14,1982. The final rules promulgated
today reflect the intent of the "Common
Issues" settlement agreement and
address public comments received
concerning the June 14,1982, proposed
revisions.
Several of the comments made on the
proposed regulations were received
from companies or organizations who
were signatories to either the "Common
Issues" settlement agreement or one of
the settlement agreements specific to an
EPA permit program.
Signatories to those settlement
agreements generally agreed that to the
extent EPA promulgated final
regulations and preamble language
which were substantially the same as
and did not alter the meaning of
language agreed to in the settlement
agreements, the parties would drop their
challenges to the regulations.
Nonetheless, EPA did'receive comments
from signatories to the settlement
agreement which requested further
changes to the regulations than those
agreed upon in the settlement
agreements. In responding to the
comments made. EPA in no way waives
its right to require that signatories to the
settlement agreements be held to those
agreements, and in fact, expects good
faith adherence to their terms.
Following the common preamble are
five separate sections of regulatory
language: Parts 122 and 123 covering the
NPOES program: Parts 144 and 148
covering the UIC program: Part 233
covering the State "dredge or fill"
programs under Section 404 of the CWA.
Parts 270 and 271 coveringthe
hazardous waste program under RCRA:
and. Part 124, which covers the
procedures for issuing, denying,
modifying, revoking and reissuing, or
terminating EPA-issued NPDES. UIC.
401 RCRA. and PSD permits.
The revisions implementing the
"Common Issues" settlement agreement
are presented in this manner to reflect
the deconsolidation of these programs
undertaken as part of the regulatory
reform efforts of the President's Task
Force on Regulatory Relief. In a final
rale published in the Federal Register un
April 1.1983.47 FR 14146, EPA
"deconsolidated" what was formerly
referred to as the Consolidated Permit
Regulations, In that rule the Agency
reorganized its presentation of several
permit program requirements. While the
rulemaking made no substantive
changes to any of the regulations of the
affected programs, it did result in a
renumbering of several sections. Section
numbers used in today's rulemaking are
the new numbers published in that
deconsolidation rulemaking. In the
preamble each major section heading is
followed by the section references for
the NPDES, UIC, 404. and RCRA permit
programs in that order. A separate
section covering only NPDES issues is
also included.
II. Common Issues
A. Signatories To Permit Applications
and Reports (§ 12Z22. § 144.32. §233.6.
§270.11)
The May 19,1980 permit regulations
required permit applications submitted
by corporations to be signed by a
"principal executive officer of at least
the level of vice president" Further, the
regulations required that such officer
had to personally examine the
application and certify its truth,
accuracy, and completeness based on •
an inquiry of those individuals who
gathered the permit information.
1. Level of Signer
Today's revision, which is identical to
the June 14,1982 proposal, changes this
requirement to allow permit applications
to be signed by "a responsible corporate
officer." This definition incorporates
into the regulation EPA's interpretation
of "executive officer of the level of vice
president" adopted in a previously
published policy statement (45 FR
562149. August 6.1980). That statement
clarified that an officer performing
"policy-making functions" similar to
those performed by a corporate vice-
president could sign permit applications.
The revision also allows the manager of
one or more manufacturing, production,
or operating facilities of a corporation to
qualify aa "a responsible corporate
officer" if the facilities employ more
than 290 persons or have gross national
sales or expenditures exceeding S25
million, as long as the manager has been
delegated the authority to sign permit
applications in accordance with
corporate procedures.
Several commenters questioned the
rationale which EPA used to arrive at
the 250 persons or S25 million criteria.
These commenters argued that the
criteria could be lowered (for example
one commenter advocated a 100 persons
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Federal Register / Vol. 48. No. 171 / Thursday. September 1. 1963 / Rules and Regulations 39613
or $10 million criteria] without adversely
affecting the company's concern and
responsibility for compliance with
environmental laws. Other commenters
advocated language which would allow
the corporation's "environmental
officer" to sign permit applications
without the restrictions on the size of
the work force or the monetary
transactions of the corporation.
EPA's goal in establishing the
"signatory" requirement was to ensure
high level corporate knowledge of a
corporation's pollution control
operations. In revising the signatory
requirement in accordance with the
language promulgated in today's rule.
EPA recognized that some relief could
be granted without compromising that
goal. The intent of today's change is to
provide relief from the economic and
administrative burdens of having a
corporation's top executive officers
personally sign and be familiar with
¦numerous permit applications for all its
operations. Such problems are generally
experienced by large corporations with
facilities and operations spanning wide
geographic areas. The cut-off criteria
chosen by EPA will ensure that those
plant managers who are authorized to
sign pennit applications have sufficient
authority to direct the affairs of their
facilities.
EPA does not agree with the comment
which suggests that any "environmental
manager" of a corporation be allowed to
sign permit applications. It is not the
intent of EPA's signatory requirement to
designate field supervisors or facility
operators to sign permit applications
simply because they are located at or
near the facility. They may have no
ability to direct the activities of the
corporation so as to ensure that
necessary systems are established or
actions taken to gather complete and
accurate information. Rather, the
signatory provision, as explained above,
ensures involvement in the pennit
process by individuals authorized to
make management decisions which
govern the operation of the regulated
facility. An "environmental manager"
may not have sufficient responsibility
and authority to direct corporate
activities which guarantee that all
necessary actions are taken to prepare a
complete and accurate application. Of
.course, in cases where an
"environmental officer" is an
environmental vice president or
comparable "responsible corporate
officer" within the definition of today's
rule, he would be authorized to sign
pennit applications.
2. Certification
The revisions also change the
certification language which required
the signer of the form to have personally
examined and be familiar with all the
information submitted with the pennit
application. Under the new certification
language promulgated today, the person
signing the form (the signer) must have
some form of direction or supervision
over the persons gathering the data and
preparing the form (the preparers),
although the signer need not personally
nor directly supervise these activities.
The signer need not be in the same
corporate line of authority as the
preparers, nor do the persons gathering
the data and preparing the form need to
be company employees (e.g.. outside
contractors can be used). It is sufficient
that the signer has authority to assure
that the necessary actions are taken to
prepare a complete and accurate
application form.
None of the comments received
objected to the proposed change in the
certification language; thus, it is
unchanged from the proposed language.
EPA believes this change will assure an
adequate level of corporate involvement
and responsibility in the permit
application process while eliminating
the requirement of personal examination
by the signer of all information
submitted with the permit application.
The immediate implementation of
today's certification language in pennit
application and reporting forms is
infeasible. Because many States and
EPA regional offices have large supplies
of existing'forms which contain the old
certification language, it is both
administratively and economically
impractical to immediately convert to
forms containing today's certification
language. Therefore, permit application
and reporting forms which contain the
old signatory language will continue to
be used until all have been used up or
until provision can be made to replace
the forms with new ones containing
today's signatory language. However, in
order to allow permittees to use the new
certification language prior to
publication of new forms, the signer may
cross out the old language and insert
today's language. States and regional
offices may also wish to. prepare an
addendum to pennit application and
reporting forms which contains the new
signatory language.
It should be noted that the HWM
program has proposed amendments to
S 270.11(d) (formerly {122.8(d)) which
contain additional procedures for
owners and operators of HWM facilities
(see 47 FR15304. April 8.1982 and 47 FR
32038. July 23.1982).
3. Governmental Agencies
Under the )une 14 proposal EPA
solicited comments on whether the
signatory requirement for public
agencies should be amended. The U.S.
Departments of the Interior and
Agriculture objected to the retention of
this signatory provision for Federal
agencies, arguing that they are situated
similarly to large private corporations
and should be allowed the same "relief
as private corporations.
EPA believes that Federal officials
responsible for agency operations
covering widespread geographical or
organizational units (similar to the
Federal Regional Offices of many
agencies) do experience problems
similar to those of large pnvate
corporations and thus should also be
entitled to relief. Where a Federal
official has policy or decisionmaking
authority for facilities under his
widespread jurisdiction comparable to
that of a "responsible corporate officer."
that official would be authorized to sign
permit applications.
Thus, under today's change a
principal executive officer authorized to
sign permit applications for a-Federal
agency will include the agency's chief
executive officer and any senior
executive officer having responsibility
for the overall operations of a major
geographic unit of the agency.
The intent of this change is to
authorize senior agency officials
comparable to EPA's own Regional
Administrators to sign permit
applications. Considering the
information submitted by the two
Federal agencies which commented on
this regulatioa EPA recognizes the State
Directors of the Bureau of Land
Management as the requisite level of
authority intended ia the federal
signatory provision. In the case of the
Forest Senrice. the Regional Forester
would be the appropriate level for
signatory authority. EPA does not
consider the 122 Forest Supervisor* of
the Forest Service to hew the required
level of authority intended by today s
change.
EPA does not believe that public
notice and comment need be extended
on the issue of the appropriate signatory
level for Federal agenoea. Comments
wen specifically solicited ea the issue
of providing relief to Fedenl agencies
similar to that provided to private
corporation*. The comments received
convinced EPA that sad) a change for
Federal agendes ia wawaoMd.
EPA does not beM—e that (he problem
dted by industry pedOoaere aad Federal
agendes. namely tfce latnanianrs of
having a corporadoa's vtee president or
Federal agency head pereea«Qy sign
and be familiar wok aadI end every
pennit appliceOaa aaienng e
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3S614 Federal Register / Vol. 46, No. 171 / Thursday, September 1. 1983 / Rules and Regulations
corporation's or agency's numerous, far-
flung operations across the country, is
analogous to municipal and State
operations. In the case of cities, even
large cities, there are a limited number
of permitted operations for which a
"principal executive officer or ranking
elected official" would need to be
personally responsible. States also
would have far fewer permit
applications to deal with than a large
corporation or Federal agency.
B. Duty To Mitigate (§ 122.41(d),
§ 233.7(d), §270.30(d))
The May 19,1980 permit regulations
included a standard permit condition
which required permittees to "take all
reasonable steps to minimize or correct
any adverse impact on the environment
resulting from noncompliance" with
NPDES, UIC, 404 or RCRA permits.
Industry petitioners feared this language
could be interpreted to imply that this
provision imposed an obligation to
assume liability for medical costs for
persons harmed by the results of
¦ noncompliance. EPA made clear in the
preamble to the proposed revisions
published on June 14,1982 that this was
not the intent of this provision. In
addition. EPA proposed that the
regulatory language be amended. In the
case of NPDES and State 404 "dredge or
fill" permits, the June 14 proposal
focused on the permittee's obligations to
"minimize or prevent" noncomplying
discharges which have "a reasonable
likelihood of adversely affecting human
health or the environment" Under the
proposed revisions. RCRA permittees
would be required in the event of
noncompliance to "take all reasonable
steps to minimize releases to the
environment" and to "carry out such
measures as are reasonable to prevent
significant adverse impacts on human
health or the environment" No change
to the May 19.1980, provision was
proposed for UIC permittees.
Many commenters expressed
dissatisfaction with the revised
language as written, citing the difficulty
to enforce the provisions because the
language is broad. In addition,
commenters expressed dissatisfaction
because the proposed language does not
explicitly note that liability for medical
costs for persons harmed as a result of
noncompliance is not intended by these
provisions.
EPA does not agree that the language
of the provisions is so broad as to be
unenforceable. The provisions dearly
establish the principle that every
permittee is responsible for compliance
with his permit and is required to take
mitigation measures when
noncompliance with the permit presents
a risk of environmental harm. EPA also
disagrees that the issue of liability for
medical costs need be explicitly
incorporated in the regulatory language
covering a permittee's duty to mitigate.
The fact that medical liability is not
intended by this provision has been
noted several times in the rulemaking
proposals and EPA believes that this
explanation is sufficient
A few commenters objected to the
retention of the requirement "to
minimize or correct any adverse impact
resulting from noncompliance" for UIC
permittees. They argued that the UIC
program should be consistent with the
duty to mitigate provisions adopted for
the NPDES, State 404 "dredge or fill"
and RCRA programs.
The June 14,1982 rulemaking proposal
on the "Duty to Mitigate" provision
explained that EPA was not proposing
to change this provision for purposes of
the UIC program and, therefore, was not
opening it up to public comment
Industry UIC petitioners withdrew their
challenge to 8 122.7(d) as part of the UIC
settlement agreement Accordingly, as
EPA is adopting the proposed
amendments to the NPDES, 404, and
HWM programs in final form, the
existing text of that section has been
redesignated as S 144.51(d), applicable
to UIC only.
C. Other Federal Statutes (§ 12249,
§144.4. §2703)
The May 19,1980 permit regulations
listed a number of Federal statutes
which may be applicable to the issuance
of NPDES, UIC, or RCRA permits. The
introductory paragraph to this provision
stated that permit* would be issued in a
manner and contain conditions ¦
consistent with the requirements of the
applicable Federal laws. In the proposed
revision to this provision. EPA rewrote
the introductory paragraph to make it
clear that the Agency does not intend to
condition or deny permits based on
those statutes when such action is not
appropriate under the statutes. Today's
rule promulgates this introductory
language unchanged from the proposal.
Those individuals and organizations
which submitted comments on the
rewritten introductory paragraph either
interpreted it to mean that no permits
would ever be conditioned or denied
under the National Environmental Policy
Act (NEPA) or other Federal statutes or
that all permits must be conditioned by
these Federal statutes. Neither of these
results is intended by this provision. The
principal purpose of this provision as
promulgated today is to notify permit
issuers of requirements that already
exist and which may be applicable to
particular permits. If other Federal
statutes require action on the part of
EPA in issuing permits. EPA will comply
with the requirements of these statutes
and will condition or deny permits
accordingly.
Of course, in deciding to condition or
deny a permit on the basis of an
applicable Federal statute, it is not
necessary that the Federal Statute
expliciUy require the condition or
denial. For example, NEPA does not
mandate that EPA deny an NPDES
permit under the CWA in any particular
circumstance, nor does it state how a
permit must be conditioned.
Nonetheless, EPA, in carrying out its
responsibilities under NEPA for a
comprehensive evaluation of a proposed
action, may determine that denial of a
permit in a given case is appropriate or
that conditioning the permittee's
discharge in some way is justified by the
findings in an environmental impact
statement (EIS). Today's rule does not
¦alter EPA's responsibilities under other
Federal statutes.
D. Continuation of Expired Federal
Permits in Approved States (§270.51)
The May 19.1980 permit regulations
provide that if an EPA-issued permit
expires in a State that has been
approved as the permit-issuing
authority, the permit does not continue
in force unless State law explicitly
authorizes such a continuation. If no
such State provision exists, the facility
is considered to be operating without a
permit and is subject to enforcement
action. Where EPA is the permit issuing
agency, the Administrative procedure
Act [5 U.S.C. 358(c)] automatically
extends the permit until EPA acts on the
permit renewal application if the
applicant has submitted a timely and
'complete application prior to the
expiration of the permit
Industry petitioners requested that the
regulations be amended to allow an
EPA-issued permit which expires in a
State approved to administer the NPDES
or RCRA program, to continue in force,
irrespective of the provisions of State
law, until the State reissues or denies
the permit
In the June 14.1982 proposal EPA
stated that although it cannot provide
for the automatic continuation of
Federally-issued NPDES permits upon
approval of a State program, the Agency
would adopt the following policy. IT a
State NPDES program has been
approved, expired Federally Issued
permits do not remain in effect unless
continued under State law. However..
the discharger, owner, or operator has
submitted a timely and complete
application for a renewal permit to the
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Federal Register / Vol. 48. No. 171 / Thursday, September 1. 1983 / Rules and Regulations 39615
State, and the State has not acted. EPA
would refrain from initiating an
enforcement action based on the
applicant's failure to have a permit if the
applicant continues to comply with the
terms of the expired permit, unless the
permitted activity presents an imminent
and substantial endangerment to the
environment or human health.
EPA recognized that this NPDES
policy would not, nor could it. provide
certain protection from citizen suits
against facilities without required
permits. However, in these
circumstances, EPA would not expect a
court to assess penalties if delays in
permit reissuance were not due to
failure of the facility owner or operator
to submit required information. No
adverse comments were received on this
policy, thus today s policy is adopted as
proposed.
In addition to the above policy. EPA
proposed revisions to allow for the
continuation of RCRA permits should
the need arise. The proposed revision
provided for automatic extension of
EPA-issued RCRA permits, even after
approval of State permit-issuing
authority. No objections were raised to
this change in the RCRA permit
program, thus today's rule is
promulgated as proposed.
Several commenters felt that an
Agency enforcement policy similar to
that provided for NPDES should be
extended to the UIC program. The need
for this policy has not been
demonstrated with respect to the UIC
program because no Federal program
has been established as yet and. thus,
no Federally-issued permits exist UIC
permits generally will be issued for a
term of 10 years for Class 1 and V wells,
and for the life of the facility for Class II
and III wells. Given the anticipated
duration of UIC permits, and the
absence of a Federal UIC program. EPA
does not feel it is necessary to extend
this policy to the UIC program.
E. State Adoption of EPA Civil Penalty
Policy (§ 123-27, $ 143.13. §23338.
§271.18)
The May 19.1980 permit regulations
required that States adopt specific
methods for calculating civil penalties.
EPA proposed that the regulation delete
specification of the methods for
calculating penalties and require only
that any civil penalty agreed upon by
the State Director be "appropriate to the
violation." A note explained that to the
extent the penalties assessed by the
State are in amounts substantially
inadequate in comparison to amounts
EPA would have sought under certain
facts, EPA may exercise its authority,
when authorized by applicable statute.
to initiate its own action for assessment
of penalities. No objections to this
proposal were received, thus today's
rale is promulgated as proposed.
Two commenters. both parties to the
Common Issues settlement agreement,
noted that the proposed change to the
note explaining the requirement for
State adoption of EPA's Civil Penalty
Policy did not contain the entire text of
the language agreed to in the settlement
agreement. The language referred to by
these commenters was part of the
existing regulation and explains various
enforcement options available to the
States. These enforcement remedies are
not mandatory but are highly
recommended. The omission of this
language was unintentional. The note
now contains the entire text
F. Commencement of Operations
Pending Hearing on Appeal (§ 124.60.
§ 124.119)
Section 124.60 governed the
circumstances under which a new
source, a new discharger, or a
recommencing discharger, whose initial
permit has been challenged in a formal
hearing, may begin operations pending
the outcome of the hearing. The
proposed revision established more
flexible measures by which the
Presiding Officer might grant an "early
operation order" which, nonetheless,
maintains an adequate degree of
environmental protection pending "final
agency action" on a permit Under the
proposal the Presiding Officer would be
authorized, when granting an early
operation order, to impose conditions, in
lieu of the conditions set by EPA. to
maintain an adequate degree of
environmental protection. These
conditions could be permit conditions
under administrative review, or could be
more or less stringent requirements. In
addition. • new section, applicable only
to NPDES permittees, was proposed
which would extend the same
procedures for "early operation orders"
to non-adversary panel hearings for
sources covered by an individual permit
Another section, also applicable to
NPDES permittees only, was proposed
which would establish a special
procedure applicable to mobile drilling
rigs excluded from the "new discharger"
classification.
The modification to these sections
apply to RCRA permits in very limited
circumstances. These sections apply to a
RCRA permit only to the extent it has
been consolidated with an NPDES
permit in a formal hearing. No early
operation or construction orders an
allowed for RCRA permits that an not
consolidated with a NPDES permit
Formal hearings are only available for
the termination of RCRA permits unless
the RCRA permit has been consolidated
with an NPDES permit
Some commenters objected to the
language stating that the early operation
order must be granted if "no party
opposes." These commenters argued
that the granting of an early operation
order should be discretionary, not
mandatory, especially in circumstances
where the public is not a party to the
proceedings and thus cannot object.
EPA believes it is appropriate to
require an "early operation order" to be
granted if no party objects to the order,
particularly since permit appeals may
create significant delays in final permit
issuance. It should be noted that in any
hearing. EPA itself is a party which can
oppose the granting of an early .
operation order. Thus, the lack of a third
party to the hearing does not guarantee
that such orders will automatically be
granted in cases in which only the
permittee has challenged the permit
An early operation order can be
granted if the source or facility makes a
three-part showing, that it is likely to
receive a permit to operate, that the
environment will not be irreparably
harmed, and that discharge or operation
-pending final agepcy action is in the
public interest One commenter urged
EPA to clarify the demonstrations
necessary for orders authorizing
construction of RCRA facilities saying
that the demonstrations listed seemed to
apply only to the NPDES program. All
demonstrations required for an early
operation order must be met by both
NPDES and RCRA permittees prior to
the issuance of such an order, whether
the order is authorizing discharge in the
case of NPDES or construction or
operation in the case of RCRA permits.
The words "construct/construction"
have been added to 1124.60(a)(2)(i>—{iii)
to make clear that such orders may
authorize either construction or
operation in the case of RCRA permits.
In connection with this. EPA has
dropped the last sentence of proposed
f 124.60(a)(3). That sentence merely
explained that where no party has
challenged a construction-related permit
tens or condition of a RCRA permit the
Presiding Officer shall follow the
requirements of 1124.60(a)(2) in granting
an order authorizing construction. Since
the language "construction/
construction" has been added to
i 124.80(a)(2) the second sentence to
124.60(a)(3) is redundant and no lots®
necessary. Of course, no order may
authorize construction if a constru<
related RCRA permit condition has been
challenged.
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39616 Federal Register / Vol. 48. No. 171 / Thursday. September 1. 1983 / Rules and Regulations
In the case of non-adversary panel
hearings, it was argued that permittees
covered by general permits should be
allowed the same opportunity to obtain
an "early operation order" as those
provided for permittees covered by
individual permits.
EPA feels that "early operation
orders" are not appropriate in the case
of general permits. Because general
permits can authorize entire classes or
categories of discharge. EPA believes
that full administrative action, including
the issuance of a final permit, should be
completed before an early operation
order is allowed.
One commenter argued that any
contested conditions of a permit
undergoing administrative review
should be unenforceable. Another
commenter objected to the proposal
which would allow contested conditions
to be unenforceable pending the
outcome of the hearing or subsequent
appeal: this commenter believed that all
conditions of the permit including
contested conditions, should be
enforceable while the permit is
undergoing review.
EPA has previously explained its
position for staying contested permit
conditions pending the completion of
agency administrative review. 45 FR
33414. In order tp grant some relief to
dischargers who are without a permit
pending final Agency action, "early
operation orders" under this section
were authorized. Authorizing an early
operation is thus a special privilege.
Since the Presiding Officer must assure
that any order granted provides
adequate protection of the environment
during the administrative review
process, he needs broad discretion to
impose appropriate conditions (even
more stringent than the proposed permit,
if necessary).
IU. NPDES Issues
A. Need To Halt, or Reduce Activity Not
a Defense (§ 122.41(c))
Under the May 19.1980 permit
regulations a permittee's obligation to
halt or reduce activity in order to
maintain compliance with the conditions
of its permit was addressed in two
separate provisions. Section 122.7(c) of
these regulations explained that it was
not a defense to an enforcement action
that it W8s necessary to halt or reduce
the permitted activity to maintain
compliance. In addition. S 122.60(b)
required that upon reduction, loss, or
failure of the treatment facility, a
permittee, in order to maintain
compliance with its permit limitations,
must control production on all
discharges or both until treatment is
restored.
Industry litigants argued that, in some
cases, a mandatory obligation to cease'
or reduce operation or discharges would
be unreasonable. For example, the
requirement to halt production was
particularly troublesome to the electric
utilities industry, which is required
under some State laws to provide a
continuous reliable supply of electric
power. EPA agreed that the
appropriateness of controlling
production or discharge may vary with
the situation and thus, is more suitably
dealt with as a question of defense to
liability in enforcement proceedings.
In order to carry out this intent EPA
made changes to both of the provisions
cited above. On April 5.1982. 47 FR
15304. in a technical amendment to the
regulations. EPA revised the caption of
5 122.7(c) "Duty to Halt or Reduce
Activity" to "Need to Halt or Reduce not
a Defense." to clarify the intent of that
section that a permittee will not be
allowed to defend its noncompliance in
an enforcement action on the ground
that it would have had to halt or reduce
its regulated activity.
In addition, the Agency determined
that S 122.7(c) adequately addressed its
intent with respect to this issue and that
§ 122.60(b) was therefore redundant and
unnecessary. On June 14,1982.47 FR
25550, the Agency proposed to delete
section 122.60(b) in its entirety.
Following the technical amendment of
§ 122.7(c) and the proposed deletion of
S 122.00(b), the Agency on April 1.1983
deconsolldated the May 19,1980
regulations. 47 FR 14146. In
deconsolidating the May 19,1980
regulations the Agency made no
substantive changes: it merely
reformatted and renumbered the
regulations. In this process then existing
|{ 122.7(c) and 12260(b) were combined
and renumbered 8122.41(c). The
combination of these sections did not
affect EPA's June 14.1982 proposal to
delete then S 122.60(b), currently found
in the second and third sentences-of
9122.41(c) of the April 1.1983
regulations. Having received no
comments adverse to deleting this
provision, today's rule makes final the
proposed deletion.
One commenter did point out what
appeared to be e discrepancy between
the preamble of the June 14.1982
proposed revisions and the proposed
amendment io } 122.60(b). The preamble
stated that S 122.60(b) was to be deleted
in its entirety. Yet the proposed
rulemaking included a {122.60(b) which
concerned a permittee's duty to mitigate
adverse impacts resulting from permit
violations. In the June 14.1982
rulemaking EPA did in fact propose to
delete then § 122.60(b) of the May 19.
1980 regulations. Because deletion of
this section left an opening at
§ 122.60(b). EPA then proposed to move
S 122.7(d) the Duty to Mitigate provision
of the May.19.1980 regulations, to this
section, renumbering it new { 122.60(b).
That section was subsequently
redesignated S 122.41(d) by the April 1.
1983 deconsolidation rulemaking.
Consistent with the proposed regulation
changes, today's final rules delete the
second and third sentence of S 122.41(c)
of the April 1.1983 regulations. The first
sentence of this section remains in
effect. Final rules affecting § 122.41(d)
are explained elsewhere in today's
rulemaking.
B. Neiv Discharger Issues (§§ 122.2.
12228)
Determining Date
Today's rules make two changes to
the definition of "new discharger." The
first would change the determining date
for the application of the "new
discharger" classification. Under the
present definition, a "new discharger" is
any source which is not a "new source."
and which discharges pollutants on or
after October 18.1972 from a site for
which it has never received a finally
effective NPDES permit The
determining date of October 18.1972
was tied to the date of enactment of the
Federal Water Pollution Control Act
Amendments of 1972 (Pub. L 92-300).
Industry petitioners argued that with
the creation of the "new discharger"
category on June 7.1979. a new
classification potentially subject to more
stringent requirements was applied to
many sources that had been in operation
for years, but had not as yet received
NPDES permits, though applications had
been filed. In order to prevent this result
the Agency proposed to revise the
definition to change the triggering date
to August 13.1979. the effective date of
the first NPDES regulations defining the
"new discharger" classification EPA
received no comments opposed to this
change: thus today's rale is promulgsted
as proposed.
Mobile Drilling /Uge
The definition at "new discharger" in
then existing 112U (currently 1122-2)
specifically included mobile drilling ngs.
Thus, each time a mobile drilling ng
moved to a new unpermitted site, for
which it is required to appfr for e oe«^
NPDES permit II wee sefafrcted oace^p
again to the new discharger
requirements. The fuae 14. tW
rulemaking proposed mm m*tm «feaagee
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Federal Register / Vol. 48. No. 171 / Thursday. September 1. 1983 I Rules and Regulations 39617
lo the regulations to address this
problem. First the proposed regulatory
amendments established a general
permitting scheme for oil and gas
operations within the Outer Continental
Shelf (OCS). The Agency's experience
with the issuance of general permits for
drilling operations in OCS lease sale
areas in the Gulf of Mexico and off the
coast of Southern California has been
favorable and the use of general permits
appears appropriate for other OCS
areas. Therefore, section 122.28 (§ 122.59
of the May 19.1980 regulations) was
proposed to be amended to require EPA
Regional Administrators to issue general
permits for most discharges from oil and
gas exploration and production facilities
unless the use of a general permit is
demonstrated to be clearly
inappropriate. Second, because it will
take some time before EPA can issue
general permits for oil and gas facilities
in all OCS lease sale areas, and because
NPDES-approved States are not
required to issue permits to oil and gas
facilities in all OGS lease sale areas.
EPA proposed to exclude mobile drilling
rigs from the definition of "new
discharger." The proposed exclusion
covered all mobile exploratory drilling
rigs operating in both offshore and
coastal areas, and mobile
developmental rigs operating in coastal
areas. Mobile developmental rigs
operating in any offshore area would
continue to be included in the "new
discharger" category.
Several commenters argued that
developmental drilling rigs operating in
offshore areas should not be included in
the "new discharger" categocy. EPA has
substantial reasons for treating
developmental rigs operating offshore
differently. Developmental rigs generally
remain at a given site for longer periods
of time than do exploratory rigs and
have more advance notice before
moving to new sites. Thus, the burdens
of obtaining a new permit prior to
moving to a new site are not as great aa
for exploratory rigs.
More importantly, developmental rigs
pose more risk of harm to die marine
environment than exploratory rigs. Ilia
volume of pollutants dischargedby a
developmental rig can be far greater
than that from exploratory rigs, and
movement to a new site could Indeed
constitute a significant new
environmental harm. Although this is
-true for developmental activities in both
coastal and offshore areas. EPA has an
added responsibility under guidelines
issued pursuant to section 403(c) of the
Clean Water Act to consider the impact
of discharges from offshore facilities on
the marine environment. Section 403(c)
is not applicable to discharges into
coastal areas. In light of the increased
volume of pollutants potentially
discharged during developmental
operations. EPA must often perform
complex analyses pursuant to section
403(c) to develop adequate permit
limitations and conditions to prevent
unreasonable degradation of the marine
environment. Due to this. EPA has
decided that it is appropriate to continue
to apply the potentially more stringent
procedural requirements which
acompany the "new discharger"
classification to mobile developmental
rigs operating in offshore areas. Thus
developmental rigs discharging into
offshore waters will continue to be
included in the "new discharger"
definition.
All mobile oil and gas drilling rigs
operating in environmentally sensitive
areas will continue to be considered
"new dischargers" if they otherwise fit
the definition. EPA believes that the
commencement of operations in these
environmentally sensitive areas (i.e.,
areas of biological concern) should be
carefully examined before imposing
appropriate permit limitations.
One commenter suggested that
instead of EPA independently
developing criteria to identify
environmentally sensitive areas of
concern on the OCS. these criteria
should be subject to the ongoing
development of a Memorandum of
Understanding (MOU) between the
Department of the Interior (DOI) and
EPA. U is intended that this MOU will
provide the mechanism for coordination
of NPDES permit issuance and lease
sale activities. EPA will most certainly
consult with all interested parties,
including DOI, in developing appropriate
criteria to determine areas of biological
concern on the OCS. However, the
Agency does not believe it is necessary
to include the development of this
criteria in ongoing negotiations with
DOI on the MOU in order to ensure DOI
input in the process.
EPA proposed to revise 1122.28
(previously S122J9) to require Regional
Administrators to issue general permits,
where appropriate, for most discharges
from oil and gas exploration and
production facilities. General permits
will be used for oil and gas facilities in
existing lease sale areas, as well as
future lease sale areas established by
the Minerals Management Service
(MMS), the office within the DOI
responsible for offshore leasing
activities. The use of a general permit
will eliminate the post-lease delay in
permit issuance because sufficient
information should be available to
determine permit conditions without
application information from individual
operators. With sufficient information to
determine permit conditions, general
NPDES permits may be issued for entire
tracts or groups of tracts offered in OCS
lease sales.
Four commenters objected to the
issuance of general permits either prior
to or at the time of the lease sale. The
objections ranged from opposition
because no general uniformity exists in
OCS marine life to a concern that public
input in the development of permit
conditions would be bypassed. All of
the commenters opposed to the concept
of general permits feared that such
permits would be issued without the
accumulation of adequate information.
EPA is committed to the issuance of
all permits when, and only when, an
adequate amount of information has
been gathered with which to determine
permit conditions. The use of general
permits is an administrative mechanism
designed to minimize or eliminate
administrative delays in those instances
where no useful purpose would be
served by issuing individual permits. In
each and every case, where a permit,
whether individual or general, is issued.
EPA will ensure that all necessary and
proper public participation measures are
taken prior to the issuance of a permit.
Several of EPA's own Regional
Offices were concerned about the timing
for.issuance of geQeral permits. The
proposed regulations provided that
when petitioned to issue a general
permit the Regional Administrator
should issue a project decision schedule
"providing for the issuance of the final
Ceral permit no later than the date of
il notice of lease sale or six months
after the date of the request EPA's
Regional Offices responsible for the
issuance of the general permits pointed
out that for some areas, sufficient
information to determine appropriate
permit limitations may not be available
even though an EIS has been completed
on the lease sale area. For other areas,
final notices of lease sale have been
issued by the Department of the Interior
(DOI) prior to proposal of these
regulations. In addition. DOI has
approved significant revisions in its
OCS oil and gas leasing program since
the time of the proposal of changes to
the NPDES regulations in June 1983
which could affect EPA actions. The
new leasing program now offers lease
sales in whole planning areas which
may include ten to over 100 million
acrea. The new program processes a
lease sale under an accelerated,
streamlined timeframe. Resources may
also be a problem where numerous lease
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39818 Federal Register / Vol. 48, No. 171 / Thursday. September 1, 1983 / Rules and Regulations
sales are issued by DOL In all these
cases, it may be impossible for EPA to
issue general permits within the
timeframes proposed in the regulations.
EPA has, through this regulation,
recognized the importance of prompt
processing of OCS permitting activities.
As pointed out in the preamble to the
proposal, the Regional Administrator
should strive to meet all deadlines
projected in project decision schedules.
However, such decision schedules do
not impose binding deadlines upon EPA.
There may be situations in which
factors beyond the control of EPA (e.g..
the situations mentioned above by EPA
Regional Offices) will delay issuance of
final permits beyond the dates projected
in the regulation. Because the regulation
does not impose binding deadlines and
is flexible enough to allow EPA to
address such problem situations, EPA
has not changed the proposed language
in this final rule. Regional
Administrators should work to ensure
that permitting is tied, to the maximum
extent possible, to lease sale actions.
Finally, although EPA's proposal
committed the Agency to issue general
permits for offshore oil and gas
facilities. EPA's Regional Offices have
pointed out that individual permits may
be a more practicable option for
permitting continental offshore .
stratigraphic test wells (COST wells).
Stratigraphic test wells are drilled to
collect seismic and scientific
information on the underlying geological
strata in a lease sale area. Such wells
must generally be drilled at least 60
days prior to die lease sale; usually only
one well is drilled per lease area. In
Alaska, where the drilling seasons are
severely restricted by the weather, a
COST well is often drilled at least a
year in advance of the lease sale. The
Environmental Impact Statement
developed for the lease sale area is not
available that far in advance of the sale.
It is generally feasible and often less
time-consuming under these
circumstances to develop an individual
permit that clearly restricts discharges
to a single COST welL Since the intent
of this regulation is to expedite the
issuance of NPDES permits for offshore
oil and gas activities, in circumstances
where an individual permit can be
issued for a COST well more
expeditiously than a general permit a
Region may choose this option.
EPA has determined that each of the
above discussed comments can
adequately be addressed within the
context of the proposed regulations and
therefore has promulgated final rules
which are identical to the proposed
rules.
C. Modification of NPDES Permits
(§ 122.62)
A new modification provision was
proposed to allow NPDES permits which
became final after August 19.1981, to be
modified to conform to the final rules
adopted under the settlement agreement
for. 11227(c) and 122.60(b) of the May
19,1980 regulations (these sections
correspond to S 122.41 (c) and (d) of the
deconsolidated NPDES regulations). The
cut-off date will prevent unnecessary
modifications which could place an
unreasonable strain on Agency or State
resources. No adverse comments were
received on this proposal; thus, the
regulation is promulgated unchanged
from the proposal
IV. Effective Date
Section 553(d) of the Administrative
Procedure Act (APA) requires
publication of a substantive rule not less
than 30 days before its effective date. In
addition, 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 these
requirements is to allow permittees
sufficient lead time to prepare to comply
with new regulatory requirements. For
the amendments proposed today,
however, EPA believes that an effective
date 30 days to six months after
promulgation would cause unnecessary
disruption in the implementation of the
regulations and would be contrary to the
public interest Section 553(d)(1) of the
APA provides an exemption from the
requirement to delay the effective date
of a promulgated regulation for 30 days
in instances where the regulation will
relieve restrictions on the regulated
community. These amendments relieve
restrictions on permittees under the
NPDES. UIC. 401 and RCRA programs
by providing greater flexibility in
meeting the requirements of the
programs. EPA believes that these are
not the type of regulations that Congress
had in mind when it provided a delay
between the promulgation and the
effective date of revisions to regulations.
Therefore, EPA is making these rules
effective today,
V. Executive Order 12291
Under Executive Order 12291, EPA
must judge whether a regulation is major
and therefore subject to the requirement
of a Regulatory Impact Analysis. These
amendments clarify the meaning of
several generic permit requirements and
generally make the regulations more
flexible and less burdensome for
affected permittees. They do not satisfy
and of the criteria specified in section
1(b) of the Executive Order and. as such,
do not constitute major rulemaking. This
is not a major regulation. This regulator
was submitted to the Office of
Management and Budget (OMB) for
review.
VI. Regulatory Flexibility Act
Under the Regulatory Flexibility Act.
U.S.C. 601 et seq., EPA is required to
prepare a Regulatory Flexibility
Analysis to assess the impact of rules on
small entities. No regulatory flexibility
analysis is required, however, where the
head of the agency certifies that the rule
will not have a significant economic
impact on a substantial number of
entities. Today's amendments to the
regulations clarify the meaning of
several generic permit requirements and
otherwise make the regulations more
flexible and less burdensome for all
permittees. Accordingly I hereby certify,
pursuant to 5 U.S.C 605(b) that these
amendments will not have a significant
impact on a substantial number of small
entities.
list of Subjects
40 CFR Part 122
Administrative practice and
procedure. Reporting and recordkeeping
requirements. Water pollution control.
Confidential business information.
40 CFR Part 123
Indians—lands. Reporting and
recordkeeping requirements. Water
pollution control. Intergovernmental
relations, Penalties, Confidential
business information.
40 CFR Part 124
Administrative practice and
procedure. Air pollution control.
Hazardous materials, Waste treatment
and disposal Water pollution control.
Water supply, Indians—lands.
40 CFR Pari 144
Administrative practice and
procedure. Reporting and recordkeeping
requirements. Confidential business
information. Water supply.
40 CFR Part 145
Indians lands. Reporting end
recordkeeping requirements.
Intergovernmental relations. Penalties.
Confidential business information.
Water supply.
40 CFR Part 233
Administrative practice and
procedure. Reporting and recordke
requirements. Confidential business
Information. Water supply. Indians—
lands. Intergovernmental relations.
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Federal Register / Vol. 48. No. 171 / Thursday, September 1. 1983 / Rules and Regulations 39619
Penalties. Confidential business
information.
40 CFR Part 270
Administrative practice and
procedure. Reporting and recordkeeping
requirements. Hazardous materials.
Waste treatments and disposal. Water
pollution control. Water supply.
Confidential business information.
40 CFR Port 271
Hazardous materials. Reporting and
recordkeeping requirements, Waste
treatment and disposal, Water pollution
control. Water supply.
Intergovernmental relations. Penalties.
Confidential business information.
Dated: August 22.1983.
Alvin L. Aim.
Deputy A dmmistrator.
Authorities: felean Water Act (33 U.S.G
1251 et seq.). Safe Drinking Water Act (42
U.S.C. 300f et seq.). Clean Air Act (42 U.S.C
7401 et seq.}. Resource Conservation and
Recovery Act (42 U.S.C. 6901 et seq.).
40 CFR Parts 122,123,124.144.145.
233.270. and 271 are amended as
follows:
PART 122—NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
40 CFR Part 122 is amended as
• follows:
1. Section \22JZ is amended by
revising the definition of "New
discharger" as follows:
§ 122.2 Definition*.
• • t • •
"New discharger" means any building,
structure, facility, or installation:
(a) From which there is or may be a
"discharge of pollutants:"
(b) That did not commence the
"discharge of pollutants" at a particular
"site" prior to August 13.1979;
(c) Which is not a "new sourer." and
(d) Which has never received a finally
effective NDPES permit for discharges at
that "site."
This definition includes an "indirect
discharger" which commences
discharging into "waters of the United
States" after August 13.1879. It also
includes any existing mobile point
source (other than an offshore or coastal
oil and gas exploratory drilling rig or a
coastal oil and gas developmental
drilling rig) such as a seafood processing
rig. seafood processing vessel or
aggregate plant that begins discharging
at a "site" for which it does not have a
permit: and any offshore or coastal
mobile oil and gas exploratory drilling •
rig or coastal mobile oil and gas
developmental drilling rig that
commences the discharge of pollutants
after August 13.1979, at a "site" under
EPA's permitting jurisdiction for which it
is not covered by an individual or
general permit and which is located in
an area determined by the Regional
Administrator in the issuance of a final
permit to be an area or biological
concern. In determining whether an area
is an area of biological concern, the
Regional Administrator shall consider
the factors specified in 40 CFR
125.122(a) (1) through (10).
An offshore or coastal mobile
exploratoiy drilling rig or coastal mobile
developmental drilling rig will be
considered a "new discharger" only for
the duration of its discharge in an area '
of biological concern.
• t • • s
2. Section 122.22 is amended by-
revising paragraphs (a)(1), (a)(3), and -
(d). and adding a note following (a)(1) as
follows:
J 122.22 Signatories to permit applications
and reports.
(a) * • •
(1) For a corporation: by a responsible
corporate officer/For the purpose of this
section, a responsible corporate officer
means: (i) A president secretary,
treasurer, or vice-president of the
corporation in charge of a principal
business function, or any other person
who perfoms similar policy- or decision-
making functions for the corporation, or -
(ii) the manager of one or more
manufacturing, production, or operating
facilities employing mora than 250
persons or having gross annual sales or
expenditures exceeding S25 million (in
second-quarter 1980 dollars), if authority
to sign documents has been assigned or
delegated to the manager in accordance
with corporate procedures.
Note EPA does not require specific
assignments or delegations of authority to
responsible corporate officsis Identified in
1122J2(a)(l)(i). The Agency will presume
that these responsible corporate officer* have
the requisite authority to sign permit
applications unless the corporation has
notified the Director to the contrary.
Corporate procedures governing authority to
sign permit applications may provide for
assignment or delegation to applicable
corporate positions under 1122£2(a)(l)(il)
rather than to specific individuals.
(2) * * *
(3) For a municipality, State. Federal
or other public agency: by either a
principal executive officer or ranking
elected official. For purposes of this
section, a principal executive officer of a
Federal agency includes: (i) Hie chief
executive officer of the agency, or (ii) a
senior executive officer having
responsibility for the overall operations
of a principal geographic unit of the
agency (e.g^Regional Administrators of
EPA).
• • • • •
(d) Certification. Any person signing a
document under paragraphs (a) or (b) of
this section shall make the following
certification:
I certify under penalty of law that this
document and ail attachments were'prepared
under the direction or supervision in
accordance with a system designed to assure
that qualified personnel properly gather and
evaluate the information submitted. Based on
my inquiry of the person or persons who
manage the system, or those persons directly
responsible for gathering the information, the
information submitted is. to the best of my
knowledge and belief true, accurate, and
complete. 1 am aware that there are
significant penalties for submitting false
information, including the possibility of fine
and imprisonment for knowing violations.
3. Section 122^8 is amended by
adding a new paragraph (c) as follows:
J12228 General permits (applicable to
State NPOES programa, see S123-25).
• * • • •
(c) Offshore Oil and Gas Facilities
(Not applicable to State programs.) (1)
The Regional Administrator shall,
except as provided below, issue general
permits covering discharges from
offshore oil and gas exploration and
production facilities within the Region's
jurisdiction. Where the offshore area
includes areas, such as areas of
biological concern, for which separate
permit conditions are required, the
Regional Administrator may issue
separate general permits, individual
permits, or both. The reason for separate
general permits or individual permits
shall be set forth in the appropriate fact
sheets or statements of basis. Any
statement of basis or fact sheet for a
draft permit shall include the Regional
Administrator's tentative determination
as to whether the permit applies to "new
sources." "new dischargers." or existing
sources and die reasons for this
determination, and the Regional
Administrator's proposals as to areas of
biological concern subiect either to
separate individual or general permits.
For Federally leased lands, the general
permit area should generally be no less
extensive than the lease sale area
defined by the Department of the
Interior.
(2) Any interested person, including
any prospective permittee, may petition
the Regional Administrator to issue a
general permit Unless the Regional
Administrator determines under
paragraph (c)(1) that no general permit
is appropriate, he shall promptly provide
a project decision schedule covering the
issuance of the general permit or permits
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39620 Federal Register / Vol. 48, No. 171 / Thursday, September 1, 1983 / Rules and Regulations
for any lease sale area for which the
Department of the Interior Has published
a draft environmental impact statement
The project decision schedule shall meet
the requirements of 9 124.3(g), and shall
include a schedule providing for the
issuance of the final general permit or
permits not later than the date of the
final notice of sale projected by the
Department of the Interior or six months
after the date of the request whichever
is later. The Regional Administrator
may. at his discretion, issue a project
decision schedule for offshore oil and
gas facilities in the territorial seas.
(3) Nothing in this paragraph (c) shall
affect the authority of the Regional
Administrator to require an individual
permit under S 122^8(b)(2)(i)(A) through
(F).
4. Section 122.41 is amended by
revising paragraphs (c) and (d) as
follows:
9 122.44 Conditions sppOcable to ail
permits (applicable to State programs, see
9123JS)
• • * • •
(c) Need to Halt or Reduce not a
Defense. It shall not be a defense for a
permittee in an enforcement action that
it would have been necessary to halt or
reduce the permitted activity in order to
maintain compliance with the conditions
of this permit
(d) Duty to Mitigate. The permittee
shall take all reasonable steps to
minimize or prevent any discharge in
violation of this permit which has a
reasonable likelihood of adversely
affecting human health or the
environment
• • • • •
5. Section 122.49 is amended by
revising the introductory paragraph as
follows:
9122.49 Considerations under Federal law.
The following is a list .of Federal laws
that may apply to the issuance of
permits under these rules. When any of
these laws is applicable. Its procedures
must be followed. When the applicable
law requires consideration or adoption
of particular permit or
requires the denial of a permit those
requirements also must be followed.
8. Section 122.02 is amended by
adding a new paragraph (a)(18) as
follows:
912T62 Modification or revocation and
reissuance of permits (applicable to State
programs, see 912&2S).
(a) * * *
(19) When the permit becomes final
and effective on or after August 19,1981,
if the permittee shows good causa for
the modification, to conform to changes
respecting the following regulations
issued under the Settlement Agreement
dated November 16,1981, in connection
with Natural Resources Defense
Council v. EPA. No. 80-1607 and
consolidated cases: 9122.41(c) and (d).
PART 123—STATE PROGRAM
REQUIREMENTS
40 CFR Part 123 is amended as
follows:
1. Section 123.27 is amended by
revising paragraph (c) and adding a new
paragraph to the beginning of the note
following paragraph (c) as follows:
9 123J7 Requirements (or Enforcement
Authority.
• « • • •
(c) A civil penalty assessed, sought or
agreed upon by the State Director under
paragraph (a)(3) of this section shall be
appropriate to the violation.
Note^To the extant that State judgments
or settlement* provide penalties in amounts
which EPA believes to be substantially
inadequate in comparison to the amounta
which EPA would require under similar facta.
EPA. when authorised by the applicable
statute, may aeparate actiona for
penalties.
• • t • •
PART 124—PROCEDURES FOR
DECISIOM-MAKINQ
40 CFR Part 124 is amended as
follows:
1. Amend paragraph (g) of |1244 by
removing the word Mor" before the
words "major NPDES new discharger."
end by adding the phrase "or a permit to
be issued under provisions of
112248(c)" after the words "new
discharger," and before the words "the
Regional Administrator shall * *
2. Section 12440 is amended by
revising paragraph (a)(2) and adding
new paragraphs (a)(3) and (c)(7) as
foUowK
119440 Issuance and effective dste and
slays of NPD8S pemlta.
(•)# * *
(2) Whenever a source or fsdlity
subject to this paragraph or to
paragraph (c)(7) of this section has
received a final permit under 1124.18
which is the subject of a hearing request
under 112474 or a formal hearing under
S12475, the Presiding Officer, on motion
by the source or facility, may issue en
order authorising it to begin discharges
(or in the case of RCRA permits,
construction or operations) if it complies
with all uncontested emutiHqm of the
final permit and all other appropriate
conditions imposed by the Presiding
Officer during the period until final
agency sction. The motion shall be
granted if no party opposes it, or if the
source or facility demonstrates that:
(i) It is likely to receive a permit to
discharge (or in the case of RCRA
permits, to operate or construct) at that
site:
(ii) The environment will not be
irreparably harmed if the source or
facility is allowed to begin discharging
(or in the case of RCRA. to begin
operating or construction) in compliance
with the conditions of the Presiding
Officer's order pending final agency
action: and
(iii) Its discharge (or in the case of
RCRA, its operation or construction)
pending final agency ection is in the
public interest
(3) For RCRA only, no order under
paragraph (a)(2) may authorize a facility
to commence construction if any party
has challenged a construction-related
permit term or condition.
• • • • *
(c)* * *
(7) If for any offshore or coastal
mobile exploratory drilling rig or coastal
mobile developmental drilling rig which
has never received a finally effective
permit to discharge at a "site," but
which is not a "new discharger" or a
"new source," the Regional
Administrator finds'that compliance
with certain permit conditions may be
necessary to avoid irreparable
environmental harm during the
administrative review, he may specify in
the statement of basis or fact sheet thet
those conditions, even if contested, shall
remain enforceable obligations of the
discharger during administrative review
unless otherwise modified by die
Presiding Officer under paragraph (a)(2)
of this section.
' 3. Section 124119 is amended by
adding new paragraphs (c) and (d) as
follows:
1124.119 Piesldtag Officer.
(c) Whenever a panel hearing will be
held on an individual draft NPDES
permit for a source which does not have
an existing permit the Presiding Officer,
on motion by the source, may issue a'
order authorising H to begin discharging
if it complies with all conditions of the
draft permit or such other conditions as
may be imposed by the Presiding Officet
in consultation with the panel The
motion shall be granted if no party
opposes it or if the source demonstrates
that
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Federal Register / Vol. 48. No. 171 / Thursday, September 1. 1983 / Rules and Regulations 39621
(1) It is likely to receive a permit to ¦
discharge at that site:
(2) The environment will not be
irreparably harmed if the source is
allowed to begin discharging in
compliance with the conditions of the
Presiding Officer's order pending final
agency action; and ~
(3) Its discharge pending final agency
action is in the public interest.
(d) If for any offshore or coastal
mobile exploratory drilling rig or coastal
mobile developmental drilling rig which
has never received a finally effective
permit to discharge at a "site." but
which is not a "new discharger" or "new
source." the Regional Administrator
finds that compliance with certain
permit conditions may be necessary to
avoid irreparable environmental harm
during the nonadversary panel
procedures, he may specify in the
statement of basis or fact sheet that
those conditions, even if contested, shall
remain enforceable obligations of the
discharger during administrative review
unless otherwise modified by the
Presiding Officer under paragraph (c) of
this section.
PART 144— REQUIREMENTS FOR
UNDERGROUND INJECTION
CONTROL PROGRAMS UNDER THE
SAFE DRINKING WATER ACT
40 CFR Part 144 is amended as
follows:
1. Section 144.4 is amended by
revising the introductory paragraph as
follows:
9 144.4 Considerations under Federal law.
The following is a list of Federal laws
that may apply to the issuance of
permits under these rules. When any of
these laws is applicable, its procedures
must be followed. When the applicable
law requires consideration or adoption
of particular permit conditions or
requires the denial of a permit those
requirements also must be followed.
• • • • •
2. Section 144.32 is amended by
revising paragraph (a)(1); adding a new
note following paragraph (a)(1): revising
paragraph (a)(3); and adding a new
paragraph (d) as follows:
{144.32 Signatories to permit appflcattona
and reports.
(a) * * *
(1) For a corporation: by a responsible
corporate officer. For the purpose of this
section, a responsible corporate officer
means: (i) A president, secretary,
treasurer, or vice president of the
corporation in charge of a principal -
business function, or any other person
who performs similar policy- or
decisionmaking functions for the
corporation, or (ii) the manager of one or
more manufacturing, production, or
operating facilities employing more than
250 persons or having gross annual sales
or expenditures exceeding S25 million
(in second-quarter 1980 dollars), if
authority to sign documents has been
assigned or delegated to the manager in
accordance with corporate procedures.
Note.—EPA does not require specific
assignments or delegations of authority to
responsible corporate officers identified in
S 144.32(a|(l)(i). The Agency will presume
that these responsible corporate officers have
the requisite authonty to sign permit
applications unless the corporation has
notified the Director to the contrary.
Corporate procedures governing authority to
sign permit applications may provide for
assignment or delegation to applicable
corporate positions under} 144.32(a)(l)(ii)
rather than to specific individuals.
(2) * * *
(3) For a municipality. State. Federal,
or other public agency: by either a
principal executive officer or ranking
elected official. For purposes of this
section, a principal executive officer of a
Federal agency includes: (i) The chief
executive officer of the agency, or (ii) a
senior executive officer having
responsibility for the overall operations
of a principal geographic unit of the
agency (e.g.. Regional Administrators of
EPA).
• ••>««
(d) Certification. Any person signing a
document under paragraphs (a) or (b) of
this section shall make the following
certification:
I certify under penalty of law that this
document and all attachments wen prepared
under my direction or supervision in
accordance with a system designed to assure
that qualified personnel propeny gather and
evaluate the information submitted. Based oa
my inquiry of the person or persons who
manage the system, or those persons directly
responsible for gathering the information, the
information submitted is. to the best of my
knowledge and belief, true, accurate, and "
complete. 1 am aware that there are
significant penalties for submitting false
information, including the possibility of fine
and imprisonment for knowing violations.
PART 145—REQUIREMENTS FOR
UNDERGROUND INJECTION
CONTROL PROGRAMS UNDER THE
SAFE DRINKING WATER ACT
40 CFR Part 145 is amended aa
follows:
1. Section 14S.13 is amended by
revising paragraph (c) and adding a new
paragraph to the beginning of the note
following paragraph (c) aa followa:
5145.13 Requirementa lor enforcement
authority.
(c) A civil penalty assessed, sought, or
agreed upon by the State Director under
paragraph (a)(3) of this section shall be
appropriate to the violation.
Note.—To the extent that State judgments
or settlements provide penalties in amounis
which EPA believes to be substanually
inadequate in comparison to the amounts
which EPA would require under similar facts.
EPA when authorized by the applicable
statute, may commence separate actions for
penalties.
# * • • •
PART 233—DREDGE OR FILL (404)
PROGRAM UNDER SECTION 404 OF
THE CLEAN WATER ACT
40 CFR Part 233 is amended as
follows:
1. Section 233.6 is amended by -
revising paragraphs (a)(1). (a)(3). and (d)
and adding a new note following (a)(1)
as follows:
S 2334 Signatories to permit applications
and reports.
(a) * * *
(1) For a corporation: by a responsible
corporate officer. For the purpose of this
section, a responsible corporate officer
means: (i) A president secretary,
treasurer, or vice president of the
corporation in charge of a principal
business function, or any other person
who performs similar policy—or
decisionmaking functions for the
corporation, or (ii) the manager of one or
more manufacturing, production or
operating facilities employing more than'
250 persons or having gross annual sales
or expenditures exceeding $25 million
(in second-quarter 1980 dollars), if
authority to sign documents has been
assigned or delegated to the manager in
accordance with corporate procedures.
Note. CPA does not require specific
assignments or delegations of authority to
responsible corporate officers identified in
I 233J(a)(l)(t). The Agency will presume that
these responsible corporate officers have the
requisite authority to sign permit applications
unless the corporation has notified the
Director to the contrary. Corporate
procedures governing euthonty to sign permit
applications may provide for assignment or
delegation to applicable corporate positions
under 1233J(e)(l)(U) rather than to specific
Individuals.
(2) * * *
(3) For a municipality, State. Federal,
or other public agency: by either a
principal executive officer or ranking
elected official. For purposes of this
section, a principal executive officer of a
Federal agency includes: (i) The chief
executive officer of the agency, or (ii) a
senior executive officer having -
responsibility for the overall operations
-------
39622 Federal Register / Vol. 48. No. 171 / Thursday. September 1. 1983 / Rules and Regulations
of a principal geographic unit of the
agency (e.g.. Regional Administrators of
EPA).
» • • • •
(d) Certification. Any person signing a
document under paragraphs (a) or (b) of
this section shall make the following
certification:
I certify under penalty of law that this 1
document and all attachments were prepared
under my direction or supervision in
accordance with a system designed to assure
that qualified personnel properly gather and
evaluate the information submitted. Based on
my inquiry of the person or persons who
manage the system, or those persons directly
responsible for gathering the information, the
information submitted is. to the best of my
knowledge and belief, true, accurate, and
complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of Tine
and imprisonment for knowing violations.
2. Section 233.7 is amended by
revising paragraph (d) as follows:
S 233.7 Conditions applicable to all
permita.
• • • • •
(d) The permittee shall take all
reasonable steps to minimize or prevent
any discharge in violation of this permit
which has a reasonable likelihood of
adversely affecting human health or the
environment.
3. Section 233.28 is amended by
revising paragraph (c) and adding a new
paragraph to the beginning of note
following paragraph (c) as follows:
S 233.28 Requirements (or enforcement
authority.
• • « • «
(c) A civil penalty assessed sought or
agreed upon by the State Director under
paragraph (a)(3) of this section shail be
appropriate to the violation.
Note.—To the extent that State judgments
or settlements provide penalties in amounts
which EPA believe* to be substantially
inadequate in comparison to the amounts
which EPA would require under similar bets.
EPA when authorized by the applicable
statute, may-commence separate actions for
penalties.
PART 270—£PA-ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
40 CFR Part 270 is amended as
follows:
1. Section 270.3 is amended by
revising the introductory paragraph as
follows:
9 27QJ Considerations under Federal law.
The following is a list of Federal laws
that may apply to the issuance of
permits under these rules. When any of
these laws is applicable, its procedures
must be followed. When the applicable
law requires consideration or adoption
of particular permit conditions or
requires the denial of a permit, those
requirements also must be followed.
• « • • •
2. Section 270.11 is amended by
revising paragraph (a)(1). (a)(3). and (d)
and adding a new note following (a)(1)
as follows:
} 270.11 Signatories to permit applications
and reports.
(a) * * *
(1) For a corporation: by a responsible
corporate officer. For the purpose of this
section, a responsible corporate officer
means (i) A president, secretary,
treasurer, or vice-president of the'
corporation in charge of a principal
business function, or any other person
who performs similar policy- or
decisionmaking functions for the
corporation, or (ii) the manager of one or
more manufacturing, production or
operating facilities employing more than
250 persons or having gross annual sales
or expenditures exceeding $25 million
(in second-quarter 1980 dollars), if
authority to sign documents has been
assigned or delegated to the manager in
accordance with corporate procedures.
Note.—EPA does not require specific
assignments or delegations of authority to
responsible corporate officers identified in
8 270.11(a)(1)(f). The Agency will presume
that these responsible corporate officers have
the requisite authority to sign permit
applications unless the corporaUon has
notified the Director to the contrary.
Corporate procedures governing authority to
sign permit applications may provide for
assignment or delegation to applicable
corporate positions under |270.11(a)(l)(U)
rather than to specific individuals.
(2)* * '
(3) For a municipality. State. Federal,
orjither public agency: by either a
principal executive officer or ranking
elected official. For purposes of this
section, a principal executive officer of a
Federal agency includes: (i) The chief
executive officer of the agency, or (ii) a
senior executive officer having
responsibility for the overall operations
of a principal geographic unit of the
agency (e.g^ Regional Administrators of
EPA).
• • • • •
(d) Certification. Any person signing e
document under paragraphs (a) or (b) of
this section shall make the following
certification: - 1
I certify under penalty of law that this
document end all attachments were prepared
under my direction or supervision in
accordance with a system designed to assure
that qualified personnel properly gather and
evaluate the information submitted. Based on
my inquiry of the person or persons who
manage the system, or those persons directly
responsible for gathering the information, the
information submitted is. to be the best of my
knowledge and belief, true, accurate, and
complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of fine
and imprisonment for knowing violations.
3. Section 270.30 is amended by
revising paragraph (d) as follows:
9 270.30 Conditions applicable to all
permits.
• • e • •
(d) In the event of noncompliance
with the permit, the permittee shall take
all reasonable steps to minimize
releases to the environment, and shall
carry out such measures as are
reasonable tq prevent significant
adverse impacts on human health or the
environment
• • ~ • *
4. Section 270.51 is amended by
revising a new paragraph (d) as follows:
S 270.31 Continuation of expiring permits.
• • • « •
(d) State Continuation. In a State with
an hazardous waste program authorized
under 40 CFR Part 271. if a permittee ha?
submitted a timely and complete
application under applicable State law
and regulations, the terms and
conditions of an EPA-issued RCRA
permit continue in force beyond the
expiration date of the permit but only
until the effective date of the State's
issuance or denial of a State RCRA
permit
PART 271— EPA-ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
40 CFR Part 271 is amended as
follows:
1. Section 271.16 is amended by
revising paragraph (c) and adding a new
¦i* paragraph to the beginning of the note
following paragraph (c) as follows:
S 271.10 nei|uhoiiioiils tor enforcement
authority.
(c) A civil penalty assessed, sought or
agreed upon by the State Director under
paragraph (a)(3) of this section shall be
appropriate to the violation.
Not*—'To the extent the State judgments
or settlements provide penalties in amount
which EPA believes to be substantially .
Inadequate In comparison to the amounts
which EPA would require under similar facta.
EPA when authorised by the applicable
-------
Federal Register / Vol. 48, No. 171 / Thursday, September 1. 1983 / Rules and Regulations 39623
statute, may commence separate actions for
penalties.
« • • • •
|FR Doc. 0-0730 FlMt-m-Cfcfctt *m|
RUINO COOt IMMMI
40 CFR Part 271
[SW-«-FRL 2427-2]
Hazardous Waste Management
Programs, Texas; Interim
Authorization Phase II, Component C
agency: Environmental Protection
Agency.
action: Approval of State Hazardous
Waste Management Program.
summary: The State of Texas has
applied for Interim Authorization. Phase
II. Component C. permitting program for
land disposal facilities. EPA has
reviewed Texas' application for Phase
II. Interim Authorization. Component C,
and has determined that Texas'
hazardous waste program is
substantially equivalent to the Federal
program covered in Component C. The
State of Texas is hereby granted Interim
Authorization for Phase IL Component
C. to operate the State's hazardous
waste program covered by Component C
in lieu of the Federal program in the
State of Texas.
EFFECTIVE DATK Interim Authorization
for Phase II. Component C for Texas
shall become effective September 1,
1983.
' FOR FURTHER INFORMATION CONTACT
H. J. Parr. Hazardous Materials Branch,
Air and Waste Management Division.
Environmental Protection Agency. 1201
Elm St.. Dallas. Texas 75270. Telephone
. (214) 707-2645.
SUPPLEMENTARY INFORMATION:
Background
In the May 19.1980. Federal Register
(45 FR 33063) the Environmental.
Protection Agency (EPA) promulgated
regulations, pursuant to Subtitle C of the
Resource Conservation and Recovery
Act of 1976. as amended (RCRA), to
protect human health and the
environment from the improper
management of hazardous waste. RCRA
includes provisions whereby a State
agency may be authorized by EPA to
administer the hazardous waste .
program in that State in lieu of a
Federally administered program. For a
State program to receive Final
Authorization, its hazardous waste
program must be fully equivalent to and
consistent with the Federal program
under RCRA. In order to expedite the
authorization of State programs, RCRA
allows EPA to grant a State Interim
Authorization if its program is
substantially equivalent to the Federal
program. During Interim Authorization,
a State can make whatever legislative or
regulatory changes that may be needed
for the State's hazardous waste program
to become fully equivalent to the
Federal program. The Interim
Authorization program is being
implemented in two phases
corresponding to the two stages in
which the underlying Federal program
takes effect.
Phase I regulations were published on
May 19.1980. and became effective on
November 19,1980. The Phase I
regulations include the identification
and listing of hazardous wastes,
standards for generators and
transporters of hazardous waste,
standards for owners and operators of
treatment storage and disposal
facilities, and requirements for State
Programs. The Phase 11 regulations cover
the procedures for issuing permits under
RCRA and the standards that will be
applied to treatment, storage, and
disposal facilities in preparing permits.
In the July 26.1982, Federal Register (47
FR 32373), the Environmental Protection
Agency announced that States could
apply for Component C of Phase IL
Interim Authorization. Component C.
published in the Federal Register July 26.
1982 (47 FR 32274), contains standards
for permitting facilities that dispose
hazardous waste in waste piles, surface
impoundments, land treatment and
landfills.
The State of Texas received Interim
Authorization for Phase 1 on December
24.1980. and Interim Authorization for
Phase IL Components A & B. on March
23.1982.
Draft Application
The State of Texas submitted its draft
application for Phase IL Component C,
Interim Authorization, on January 4.
1983. After detailed review, EPA
transmitted comments to the State on
February 2.1983.
Three major issues were identified
which the State was required to correct
before being authorized. These issues
involved the substantial equivalence of
the State's requirements with EPA's
program requirements in the following
areas: (1) The construction of a new
facility prior to the issuance of s permit;
(2) TDWR's requirements for
groundwater monitoring: and (3)
necessary additions to the Memorandum
of Agreement
Each of these issues was resolved at
the time of submittal of the complete
application. Specifically, the Texas
Legislature amended the statute so that
the state could require permits for
construction related elements of all
hazardous waste management facilities:
TDWR amended its groundwater
monitoring requirements to align with
those of EPA: and a Memorandum of
Agreement was submitted.
On May 16.1983. Texas submitted to
EPA an official application for Phase IL
Component C. An EPA review team
consisting of both Headquarters and
Regional personnel made a detailed
analysis of Texas' hazardous waste
management program.
EPA comments were forwarded to the
State on June 30.1983. No major
questions ware raised in the comments:
however, some minor clarifications were
requested. By letter dated fuly 13,1983.
the State responded to all the issues
raised by EPA.
I conclude that the Texas application
for Interim Authorization to operate the
RCRA Phase U. Component C program
meets all of the statutory and regulatory
requirements and as such I approve this
authorization.
Public Hearing and Comment Period
As noticed in the Federal Register on
May 27.1983. EPA gave the public until
July 7,1983. to comment on the State's
application. EPA also issued a public
notice for a heanng to be held in Austin.
Texas on July 14.1983. if significant
public interest was expressed. EPA
received requests to hold the heanng
from seven (7) public interest groups and
one (1) individual.
EPA found that there was significant
public interest in holding a heanng on
the Texas application for Phase U.
Component C. Interim Authonzation.
Consequently on the evening of July 14.
1983. in Austin. Texas. EPA held such a
public hearing and four presentations
were made at that time. In addition.
Region VI received eleven (11) wntten
comments on the Texas application.
Because of the interest exhibited, the
comment period was extended by the
hearing officer until |uly 21.1983.
All comments whether presented at
the hearing or in writing, were
considered before reaching a decision
on the Texas application for Phase II
Interim Authorization for Component C
None of the commentere opposed
granting the stats of Texas
authorization. Eight (8) coalmen ters
specifically supported the authorization
and urged EPA to expeditiously grant
the authorization. Sta (0) coamenters
made comments whicfc were not specific
to the authorisation daemon and one
commenter supported (fee concept of
authorization both ta general and (or
-------
RCRA REVISION CHECKLIST 3
Interim Status Standards Applicability
48 FR 52718-52720
November 22, 1983
(Non-HSWA Requirements Prior to Non-HSWA Cluster I)
ANALOGOUS
STATE ANALOG IS:
fcOUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
PART 265 - INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART A - GENERAL
PURPOSE. SCOPE AND APPLICABILITY
persons to whom I
regulations apply I 265.1(b)
November 22, 1983 - Page 1 of 1
-------
52718 Federal Register / Vol. 48. No. 226 / Tuesday. November 22. 1963 / Rules and Regulations
Response: EPA agrees with the above
comment However, during times of low
production, overall emissions will be
limited to 36000 lbs./day. Thus, during
periods of low production, overall
emissions will be 33% lower than during
normal operations.
Comment: The PaDER has stated the
actual three year emission average for
the plant was 0.568 Ib./MMBtu.
Therefore, there may be no decrease in
SO> levels if the 0.6 Ib./MMBtu limit is
adopted.
Response: EPA agrees that the
production based limit of 0.6 Ib./MMBtu
is essentially equivalent to the three
year average emission rate. However,
by also imposing a daily pounds of SOi
limitation, this will result in a decrease
in SOi compared to the facility's
maximum actual emissions.
Comment Emission reduction credit is
obtained by burning 0.5% sulfur fuel in
the power plant instead of 2.5% sulfur
fuel. Since 0.5% sulfur oil is the emission
standard, there should be no credit for
burning such fuel. 2.5% sulfur oil is not
permitted.
Response: The 0.5% sulfur in fuel
limitation contained in the existing
Pennsylvania regulations does not apply
to the power boilers. The boilers are
exempt from this rule because they fire
non-commercial fuels such as coke oven
gas or blast furnace gas (in addition to
oil) whose heat value exceeds 50% of the
heat input In this case. 25 PA. Code
Section 123.22(e)(3) established a
limitation of 0.6 Ib./MMBtu. Historically,
the power boilers could burn a fuel oil of
2.5% sulfur and comply with the 0.6 lb.
SO]/MMBtu emission standard.
Therefore, burning 0.5% sulfur oil will
result in reducing SO» emissions.
Comment' Allowing the emission rate
to increase with reduced production
levels without defining "permanent
shutdown" which would make the
bubble null and void appears to give
bubble credit for shutdowns.
Response: Pennsylvania defines
"permanent shutdown" as a source
which has been out of operation or
production for a period of one year or
more. Reactivation of such a source is
prohibited unless the company receives
approval by the PaDER and is issued a
permit to operate. This requirement is
contained in 25 PA. Code Section 127.11.
In addition, the bubble regulation
includes a sunset date of December.
1985. At this time, the PaDER must
review the bubble regulation to assess
its effectiveness and impact on air
quality.
EPA Action
EPA is today approving this bubble
plan as a SIP revision since it has met
the requirements of the April 7.1962
Emissions.Trading Policy (47 FR 15076).
In addition. 40 CFR 522020
(Identification of Plan) is amended to
reflect the inclusion of this bubble plan
in the State Implementation plan for
Pennsylvania.
The Office of Management and Budget
has exempted this rule from
requirements of Section 3 of Executive
Order 12291.
Under 5 U.S.C. 605(b) the
Administrator has certified thai SIP
approvals do not have a significant
economic impact on a substantial
number of small entities. See 46 FR 8709
(January 27.1981).
Under Section 307(b)(1) of the Act
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by (60 days from today). This
action may not be challenged later in
proceeding to enforce its requirements.
(See 307(b)(2).)
List of Subjects in 40 CFR Part 52
Air pollution control. Ozone. Sulfur
oxides. Nitrogen dioxide. Lead.
Particulate matter. Carbon monoxide.
Hydrocarbons. Intergovernmental
relations.
Authority: 42 U.S.C. 7401-7642.
Dated: November 15.1983.
WUliam D. Ruckalshaus.
Administrator.
Note.—Incorporation by reference of the
State Implementation Plan for the State of
Pennsylvania was approved by the Director
of the Federal Register on July 1.1982.
PART 62—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
Title 4a Part 52. Subpart NN of the
Code of Federal Regulations is amended
as follows:
Subpart NN—Pennsylvania
SS2J020 I Amended I
In § 52 2020 Identification of plan. .
(c)(55) is added totead as follows:
(c) The plan nviaion listed below was
submitted on the date specified * * *
(55) Regulations and supporting
documents implementing an SOi bubble
plan for U.S. Steel Corporation's Fairlesa
Works in Fairless Hills. PA was
submitted by the Secretary of the
Pennsylvania Department of
Environmental-Re sources on ]uly 7.
1983.
int Dn. 0-naa ru n-a-ek m» *m|
0UJMO COOS MMM
40 CFR Part 265
(SW-FflL 244S-2I
Hazardous Waate Management
System: interim Status Standards for
Owners and Operators of Hazardous
Waste. Treatment, Storage and
Disposal Facilities
aqency: Environmental Protection
Agency.
action: Final amendment.
summary: The Environmental Protection
Agency (EPA) is today amending the
regulations for hazardous waste
management under the Resource
Conservation and Recovery Act to
clarify the scope and applicability of the
interim status standards to hazardous
waste management facilities. It is
amending the provision that explains
who is subject to the interim status
regulations to clarify that these
regulations apply to alLhazardous waste
management facilities in existence on
November 19.1980. including those
facilities which have failed tq qualify
fully for interim status.
EFFECTIVE oate: December 22.1963.
FOR FURTHER INFORMATION CONTACT
The RCRA Hotline at (800) 424-9346. or
in Washington. D.C. 382-3000: or
Deborah Wolpe. Office of Solid Waste.
U.S. Environmental Protection Agency.
.Washingtoa D.C 20460. (202) 382-2222.
SUPPLEMENTARY INFORMATION:
I. Introduction
EPA has promulgated regulations
implementing Subtitle C of the Solid
Waste Disposal Act as amended by the
Resource Conservation and Recovery
Act of 1076. as amended (RCRA). 42
U.S.C 6901 et teq„ establishing a
comprehensive program for the handling
and management of Jtazardous waste (40
CFR Parts 260-263,270.271.124). The
regulations, among other things, require
facilities which treat store, or dispose of
hazardous waste'to obtain a permit from
EPA or an authorized state1 and require
that hazardous wastes be designated
for. delivered to. and treated, stored, or
disposed or only in these permitted
facilities.
Recognizing that EPA would be able
to issue permits to all hazardous waste
management (HWM) facilities at once.
Section 3005(e) of RCRA provides that a
hazardous waste management facility
* Section 300S of RCRApivridei itui tfc*
Administrator of EPA ihaB inthorin rate
hasardoua waate aMtagemot programi which stei
mkuaum EPAfnidaliaea moderate a their iiwm
laitai of the Ftdaral Sm 40 CTR Pari 271.
Subpart A end 8.
-------
Federal Register / Vol. 4a No. 226 / Tuesday, November 22. 19B3 / Rules and Regulations 52719
that meets certain requirements will be
treated as having been issued a permit
until final administrative action is taken
on its permit application. This statutory
authorization to operate a HWM facility
between the effective date of the
Subtitle C program (November 19,1980)
and the issuance or denial of a final
permit is known as "interim status".
Facilities operating under interim status
are subject only to the operating
standards in 40 CFR Part 265, which are
known as. the "interim status
standards". These standards do not
contain the full set of technical design
and operating standards contained in 40
CFR Part 264. the standards to be used
v.'hcn issuing permits to such facilities.
Interim status is conferred directly by
Section 3005(e) upon a person who:
(1) Owns or operates a facility which
is required to have a permit under
Section 3005 and is in existence on
November 19,1980;
(2) Has complied with the
requirements of Section 3010(a) of
RCRA. regarding notification of
hazardous waste activity; and,
(3) Has made an application for a
permit, under Section 3005 of RCRA.
Interim status cannot be granted or
conferred by EPA. Therefore, if an
owner or operator of a facility failed to
meet one or more of the statutory
requirements for interim status, EPA
cannot, under a literal construction of
Section 3005(e) consider the facility as
having achieved interim status. Any
person treating, storing or disposing of
hazardous waste without a permit or
without having achieved interim status
may be ordered by the Agency to cease
that operation and may be subject to
civil penalties and/or subject to fine and
imprisonment
As EPA indicated in a Federal
Register notice on November 19,1980 (45
FR 76630), such a literal construction of
Section 3005(e) may have the effect of
preventing owners or operators of
certain well-managed facilities from
qualifying for interim status and require
that they cease operations until such
time as they receive a RCRA permit
Accordingly, the Agency has adopted a
policy that allows certain facilities in
existence on November 19. I960, that
have failed to achieve interim status to
continue operation if continued
operation is in the public interest and
the facility owner or operator complies
with the appropriate RCRA performance
standards. See 45 FR 76630-36
(November 19.1980). Under this policy,
EPA may, by compliance order issued
under Section 3008 of RCRA, extend the
date by which the owner or operator of
an existing facility may submit Part A of
its permit application, thereby allowing
the facility to obtain interim status, if
that is the only requirement Tor interim
status that the facility fails to meet. See
40 CFR 270.10(e)(3). An existing facility
which has failed to notify as required by
Section 3010(a) of RCRA, however, can
never achieve interim status but may be
allowed to continue operation through
the issuance of either a compliance
order under Section 3098 or an Interim
Status Compliance Letter (ISCL). See 45
FR 76630-36 (November 19,1980). As a
part of this enforcement policy EPA will
require facilities operating under
compliance orders or ISCL's to comply
with appropriate management practices
as a condition of continued operation. It
has been EPA policy that existing
facilities operating without interim
status or a permit should, at a minimum,
comply with the Part 265 interim status
standards.
IL Amendment to and Clarification of
Application of Interim Status
Regulations
Section 3004 of RCRA requires EPA to
promulgate performance standards
which apply to owners and operators of
facilities that treat store, or dispose of
hazardous wastes. These Section 3004
standards are independently
enforceable national standards which
are separable from the Section 3005
permitting requirements. See 45 FR
33158 (May 19.1980).
EPA promulgated both the Part 264
general permitting standards and the
Part 265 interim status standards under
the authority of Section 3004. EPA has,
by regulation, limited the requirements
for facilities with interim status to those
found in 40 CFR Part 265. See 40 CFR
270.71(b). The language of 40 CFR
265.1(b), which defines the general
application of die interim status
standards provides that u[t]he standards
in this Part apply to owners and
operators of facilities which treat store,
or dispose of hazardous waste who have
fully complied with the requirements for
interim status. . .". This regulatory
language has created some uncertainty
as to whether the Part 265 standards
apply to existing facilities which have
failed to qualify for interim status. EPA
believes that this language does not
preclude application of the interim
status standards to non-interim status
facilities given that 1265.1(b) does not
expressly limit the application of the
Part 265 standards to only interim status
facilities. Therefore. EPA has both the
statutory and regulatory authority to
apply either the Part 204 general -
permitting standards or the Part 285
interim status standards to existing.
facilities which have failed to qualify for
interim status.
As indicated abeve. EPA has
announced its intent to exercise
prosecutorial discretion where
appropriate to allow continued
operation of existing facilities that did
not qualify for interim status if such
facilities complied with applicable EPA
Part 265 regulations.
The interim status regulations, for the
most part consist of general
administrative and non-technical
operating standards. These standards
were designed to be self-implementing,
without need for substantial
interpretation by. or negotiation with.
EPA. These same considerations suggest
that the Part 265 regulations are the
most appropriate standards to apply to
all existing unpermitted facilities,
including those facilities which have
failed to qualify for interim status. EPA
also believes that in order to ensure
consistent application of the RCRA
regulations, the Agency should apply the
same set of RCRA performance
standards to all existing unpermitted
facilities.
As stated above. EPA believes that it
has authority to apply the Part 2B5
standards to these facilities that have
not fully qualified for interim status.
However, to avoid any possible
confusion on this point EPA is today
amending 40 CFR 265.1(b) in order to
provide dear notice to owners or -
operators of existing facilities without
interim status or a permit that they must
comply with the Part 265 regulations
until such time as final administrative
disposition of their permit application is
made.
ITT- r/imimntl
The Agency received five comments
on the proposed amendment which was
published in the Federal Register on
January 19,1983, at 48 FR 2514. Two of
the comments favored the proposed
amendment two opposed the change
and one suggested conditions for the
change.
The comments opposing the proposed
amendment focussed on the language in
the preamble that certain existing
facilities not meeting the technical
requirements of interim status be
allowed to continue operation "if
continued operation is in the public
interest". The commenten are objecting
to the potential broad application of this
policy. One comment suggested limiting
the policy to facilities which could
demonstrate certain findings, such as
good cause for failure to provide timely
notification.
These comments are directed to
exercise of its enforcement policy, mr
not at the regulatory changes
-------
52720 Federal Register / Vol. 48. No. 226 / Tuesday. November 22. 1983 / Rules and Regulations
promulgated today. Today's
amendments simply explain that those
facilities without interim status can be
sued for violation of Part 264 or 285. EPA
intends to exercise, its enforcement
policy of allowing facilities to continue
if continued operation is in the public
interest very carefully. Although the
policy appears to have broad
implications, it will be administered
quite narrowly. Certainly EPA will
consider such factors as good cause for
failure to notify in deciding whether to
apply the policy to particular facilities.
EPA proposed the amendment
promulgated today to clarify that HWM
facilities failing to achieve interim status
do not thereby escape liability under
Part 265. The Agency may still enforce
against facilities which are operating
improperly by ordering them either
administratively or judicially, to cease
operations.
IV. Regulatory Impacts
A. Executive Order 12291
Under Executive Order 12291. EPA
must judge whether a regulation is
"major" and therefore subject to the
requirement of a Regulatory Impact
Analysis (RIA). A major rule is one
which results in (1) an annual effect on
the economy of $100 million or more: (2)
a major increase in costs or prices to
industry, consumers. Federal. State or
local government agencies or geographic
regions; or (3) causes significant adverse
effects on competition, employment. **-
investment, productivity, innovation, or
the ability of the United States-based
enterprises to compete with foreign-
based enterprises in domestic or export
markets. The Agency does not
anticipate that today's amendment will
have any of the effects which
characterize a rule as "major" under the
Executive Order. It merely clarifies how
the existing regulations apply to existing
facilities which have failed to achieve
interim status.
This amendment was submitted to the
Office of Management and Budget as
required by Executive Order 12291. Any
comments from OMB and any EPA
response to those comments are
available at the Office of Solid Waste
Docket Room S-212, U.S. EPA.
Washington. O.C 20460.
B. Paperwork Reduction Act
Under the Paperwork Reduction Act
44 U.S.C. 3901 et seq.. Federal agencies
must estimate the paperwork burden
created by any information collection
requests in a proposed or final rule.
Because there would be no information
collection activities created by this
amendment, the requirements of the
Paperwork Reduction Act do not apply.
C. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act. 5 U.S.C. 601 et seq.. whenever an
agency is required to publish general
notice of rulemaking for any proposed or
final rule, it must prepare and make
available for public comment a
regulatory flexibility analysis which
describes the impact of the proposed or
final rule on small entities (i.e.. small
businesses, small organizations, and
small governmental entities). The
Administrator may certify, however,
that the rule will not have a significant
impact on a substantial number of small
entities.
This amendment will generally have
no economic impact on small entities. It
merely clarifies already existing
responsibilities. Accordingly. I hereby
certify that this regulation would not
have a significant economic impact on a
substantial number of small entities.
This regulation therefore does not
require a regulatory flexibility analysis.
V. List of Subjects in 40 CFR Part 265
Hazardous materials. Packaging and
and containers. Reporting and
recordkeeping requirements. Security
measures. Surety bonds. Waste
treatment and disposal, Water supply.
Dated: November 15.1983.
William D. Ruckelihaus.
Administrator.
PART 265—(AMENDED)
Title 40 of the Code of Federal
Regulations is amended as follows:
1. The Authority for Part 269 reads as
follows:
Authority: Sees. 1006.2002(a). and 3004 of
the Solid Waste Disposal Act as amended by
the Resource Conservation ind Recovery Act
of 1976 (RCRA). at amended (42 U.S.C. 8609.
6912. and 6924).
2. Section 289.1(b) is revised to read
as follows:
S 265.1 Purpose, scope and applicability.
• • • • •
(b) The standards in this Part apply to
owners and operators of facilities which
treat store, or dispose of hazardous
waste who have fully complied with the
requirements for interim status under
Section 3005(e) of RCRA and § 270.10 of
this Chapter, until final administrative
disposition of their permit application is
made, and to those owners and
operators of facilities in existence on
November 19.1980. who have failed to
provide timely notification as required
by Section 3010(a) of RCRA, and/or
failed to file Part A of the Permit
, Application as required by 40 CFR
S 270.10 (e) and (g). These standards
apply to all treatment, storage, or
disposal of hazardous waste at these
facilities after the effective date of these
regulations, except as specifically
provided otherwise in this Part or Hart
261 of this Chapter. [Comment: As
stated in Section 3005(a) of RCRA. after
the effective date of regulations under
that Section. i.e., Parts 270 and 124 of
this Chapter, the treatment, storage, or
disposal of hazardous waste is*
prohibited except in accordance with a
permit. Section 3005(e) of RCRA
provides for the continued operation of
an existing facility which meets certain
conditions until final administrative
disposition of the owner s and
operator's permit application is made.|
• • » • •
|KR Doc. UOIIU F1M ll-21-aa; *43 ami
SJLUNO COOS Mtt-M-H
40 CFR Part 271
[SW-3-PPL 2475-J1
District of Columbia; Phase I and II,
Components A and B, Interim
Authorization of the State Hazardous
Waste Management program
aobncy: Environmental Protection
Agency.
action: Approval of State Program.
summary: Pursuant to the Resource
Conservation and Recovery Act of 1976
(RCRA) provisions, the District of
Columbia has applied for Interim
Authorization Phase I and Phase ~,
Components A and B. The
Environmental Protection Agency (EPA)
has reviewed the District's application
for Phases I and ~. Components A and
B. Interim Authorization, and has
determined that the District's hazardous
waste program is substantially
equivalent to the Federal program
covered by Phases I and II. Components
A and B.
The District of Columbia is hereby
granted Interim Authorization for
Phases.I and IL Components A and B to
operate the District's hazardous waste
program in lieu of the Federal program.
imCTtvi DATE November 22.1983.
ran putrmin information contact:
Anthony |. Donatoni. Chief. State
Programs Section, Waste Management
Branch. U.S. EPA Region ID. 6th and
Walnut Streets, Philadelphia. PA 19106
(215) 597-7937.
-------
RCRA REVISION CHECKLIST 4
Chlorinated Aliphatic Hydrocarbon Listing (F024)
49 FR 5308-5312
February 10, 1984
(Non-HSWA Requirements Prior to Non-HSWA Cluster I)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
8TATE CITATION
STATE ANALOG IS:
EOUFV- IXBBr—| BBOADEB
ALE NT STRINQgNT I IN SCOPE
PART 261 ¦ IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
SUBPART D - LISTS OF HAZARDOUS WASTE
HAZARDOUS WASTE FROM NONSPECIFIC SOURCES
list of "P wastes
261.31 I
§261.31 Hazardous waste from nonspecific sources
EPA Hazardous
Waste No.
Hazardous Waste
Hazard
Code
F024 Wastes, including but not limited to, dstillation residues, heavy ends, (T)
tars, and reactor clean-out wastes from the production of chlorinated
aliphatic hydrocarbons, having carbon content from one to five, utJBzing
free radical catalyzed processes. (This listing does not Include light
ends, spent filters and filter aids, spent desiccants, wastewater,
wastewater treatment sludges, spent catalysts, and wastes listed in
§261.32.)
APPENDIX VII TO PART 261
hazardous
constituents
Aooendix VII
APPENDIX VII • Basis for Listing Hazardous Waste
EPA Hazardous
Waste No.
Hazardous constituents for
which listed
F024 Chtoromethane, dlchloromethane, trlchloromethane, carbon tetrachloride,
chioroethylene, 1,1-dlchloroethane, 1,2-dtchtoroethane, trans-1 -2-
-------
RCRA REVISION CHECKUST 4: Chlorinated Aliphatic
Hydrocarbon Listing (F024) (cont'd)
STATE ANALOG IS:
ANALOGOUS
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
EPA Hazardous Hazardous constituents for
Waste No. which listed
F024. dichloropropane, dichloropropene, 2-chloro-1,3-butadiene, hexachloro-1,3-butadiene,
hexachiorocyclopentadiene, hexachlorocyciohexane, benzene, chioro-benzene,
dichlorobenzenes, 1,2,4-trichlorobenzene, tetrachlorobenzene, pentachlorobenzene,
hexachiorobenzene, toluene, naphthalene.
APPENDIX VIII OF PART 261
add 3-Chloropropene
(altvl chloride)
Appendix VIII
add
2-Chioro-1,3-butadiene
fchloroprene)
Appendix VIII
February 10, 1984 - Page 2 of 2
-------
5308
Federal Register / Vol. 49. No. 29 / Friday, February 10,1984 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[SWH-fRL 2442-3(a)]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste
agency: Environmental Protection
Agency.
action: Interim final rule and request
for comments.
summary: The Environmental Protection
Agency (EPA) is today promulgating an
interim final regulation under the
Resource Conservation and Recovery
Act (RCRA). This regulation lists as
hazardous a group of wastes of a
generic category generated during the
manufacture of chlorinated aliphatic
hydrocarbons by free radical catalyzed
processes, having a carbon content
ranging from one to five, with varying
amounts and positions of chlorine
substitution. EPA originally proposed
this action in August 1979. The effect of
this interim final regulation is that all of
these wastes will be subject to the
hazardous waste management
standards contained in 40 CFR Parts
262-266 and the permitting requirements
of Parts 270, 271, and 124. This action,
however, does not apply to wastes
generated during the production of
chlorinated aliphatic hydrocarbons that
are already listed as hazardous.
DATES: Comment Date: EPA will accept
public comment on this amendment until
April 10.1984.
Effective Date: August 10,1984.
Notification Data: The Agency has
decided not to require persona who
generate, transport, treat store, or
dispose of these hazardous wastes to
notify the Agency within 90 days of
promulgation that they are managing
these wastes. Hie Agency views the
notification requirement to be
unnecessary in this case since we
believe that most if not alL persons who
manage these wastes have already
notified EPA and received an EPA LD.
number.
Aooiiusis: Comments should be sent
to Docket Clerk (Docket 281-83-2],
Office of Solid Waste (WH-662). US.
Environmental Protection Agency, 401M
Street SW.. Washington. D.C 2048a
Communications should identify the
regulatory docket "Section 3001/Generic
Chlorinated Aliphatic."
Public Docket: Hie public docket
containing the Background Document
and all other supporting documentation
for this regulation is located in Room S-
212. U.S. Environmental Protection
Agency. 401M Street SW„ Washington.
D.C 20480, and is available for viewing
from 9:00 a.m. to 4.-00 p.m. Monday thru
Friday, excluding holidays.
POH FURTHER INFORMATION CONTACT:
RCRA Hotline, toll free at (800) 424-9348
or at (202) 382-3000. For technical
information contact Dr. Cate Jenkins.
Office of Solid Waste (WH-565B),
Environmental Protection Agency, 401M
Street SW.. Washington. D.C 20460,
(202) 382-4788.
SUPPLEMENTARY INFORMATION:
I. Background
As part of its regulations
implementing Section 3001 of RCRA.
EPA published a list of hazardous
wastes which include hazardous wastes
generated from non-specific sources.
This list has been amended several
times, and is published in { 281.31 of
Title 40 of the Code of the Federal
Regulations. In today's action. EPA is
amending this section to add a
particular generic category of residual
wastes generated during the
manufacture of chlorinated aliphatic
hydrocarbons by free radical catalyzed
processes having carbon chain lengths
ranging from one to five ("Ci-CO-1
These wastes include distillation
residues, heavy ends, tars, and reactor
clean-out wastes. In addition, in another
section of today's Federal Register, EPA
is also proposing to list as hazardous
light ends, spent filter and filter aids,
and dessicant wastes from these same
free radical catalyzed manufacturing
processes. Neither the interim final nor
proposed listing, however, include
process wastewaters, wastewater
treatment sludges, or spent catalysts.*
These listings also do not include
wastes from those processes listed •
individually in 40 CFR 261.32, as they
are already listed. (Phrased another
way. after promulgation of the interim
final and the proposed listings, virtually
all solid wastes from these processes
that are not typically treated in plant
wastewater treatment systems will be
subject to RCRA control)
¦Tba Agency hu ltnitad Ihii luting to C<-0
chlorinated aliphatic hydrocarbons fat two Mm
Pint Cr-C« chlorinated aliphatic hydrocarbon* art
not produced in siyiiflcant quantity tn the U.S. by
tha gurtr ehmicml reaction proceaaaa addreaead
by thtM liattnga. Second. and acre Importantly, the
higher raloniiiar might chlorinated paraffin
manufacturing pi maim typically do not pwdnae
organic fosldaala.
•The Agency la not lachtdlni wastewater
wastewater tieattwnt atode*. and ipet eatalyete
aa part af today's Hating since tha Apncy has «a
IniuWriteit ennnnl af data to datamlaa the
hsisrrtnamsM of thaaa wastes en a fade basta.
Iluwa—. as oar data haaa ha was mora cumulate*,
wa will la aialuala llnaa Ilalliiga in ilateiailiw
WMtMr (My IDMM U90 M QNMI»
On August 22.1979, the Agency
proposed, among other things, to list as
hazardous, by generic description, a
number of waste streams from the
production of chlorinated aliphatic
hydrocarbons (see 44 FR 49402). This
proposal covers all of the wastes listed
in today's interim final regulation (and
some which are not at this time, being
promulgated as final rules).' In addition,
the Agency is proposing to list several
new waste streams from the production
of these same chlorinated aliphatic
hydrocarbons under a separate action
described in another section of today's
Federal Register.
The hazardous constituents in these
wastes, both in the interim final and
proposed listings, include a wide range
of carcinogenic and other toxic
chlorinated and non-chlorinated organic
compounds. One or more of these
toxicants typically are present in high
concentrations in each waste (although
each waste does not contain all of the
individual toxic constituents of
concern). These wastes consequently
are of particular environmental concern.
EPA has evaluated these wastes against
the criteria for listing hazardous wastes
(40 CFR 281.11(a)(3)). and has
determined that they typically contain
high concentrations of toxicants, the
toxicants are mobile and persistent the
wastes are generated in large volumes
and have been mismanaged in the past
and many of the toxicants in the wastes
are regulated by other EPA regulations
as well as under regulations of other
governmental agencies. The Agency
believes, therefore, that these wastes
are capable of posing a substantial
present or potential threat to human
health or the environment when
improperly treated, stored, transported,
disposed of. or otherwise managed, and
thus an hazardous wastes.
IL Summary of the Regulation
As stated, this Interim final regulation
lists as hazardous certain wastes
generated during free radical catalyzed
manufacturing processes of chlorinated
•Tha Usdofi pnpoaad an Aa«aai a. ««
tartiirtod wastes tea tea pMdeeaaa af chlorinated
allphaWr hjitiia aibf, chtemoaed eyefle ahphane
end ahlartnated pelyea*. On eeeean w the weata
oovarad by toasts aaeafe tea aMnd
aliphatic hydnoaAanft
-------
Federal Register / Vol. 49. No. 29 / Friday. February -10. 1984 / Rules aad Regulations
5309
aliphatic hydrocarbons 4 having carbon
chain lengths ranging from one to five.
This listing does not apply to those
wastes from chlorinated aliphatic
hydrocarbon production already listed
in 9 261.32—namely EPA Hazardous
Wastes K016. K018. K019. K020. K028.
K029. X030. K095, and X096. These
wastes were listed on May 19.1980. and
the listings are final for purposes of
rulemaking and of judicial review.
The residual wastes covered by this
interim final regulation include
distillation residues, heavy ends. tars,
and reactor clean-out wastes. The Ci-
Ctchlorinated aliphatic hydrocarbon
generic product category includes those
chemicals currently produced in the U.S.
and also any new commercial products
which would also be part of this
category. The major commercial
products for which the associated
organic residual wastes are covered by
this interim final regulation as well as
the accompanying proposed regulation
include the following:
Carbon tetrachloride
1-Chlcrobutane (n-Butyl chloride)
Chloroethane (Ethyl chloride)
Chloroform (Trichlorometliane)
2-ChJoro-l.Vbutadiene (Chloroprene)
Chioromethane (Methyl chloride)
2-Chloro-2-methylpropane ({-Butyl chloride)
3-Chloro-2-mathylpropene (Methallyl
chloride)
3-Chloropropene (Allyl .chloride)
Dichlorobutadiene
Dichlorobutenea
1,4-Dichlorobutyne
1.2-Dichloroe thane (Ethylene dichloridel
Dichloromethane (Methylene dichloride)
lj-Dichloropropane
1.3-Oichloropropene
Hexachiorocyclopentadiene
Tetrachloroethylene (Perchloroethylene)
l.f.l-Trichloroethane
l.lJ-Trichloroethane
Trichloroethyiene (1.1.2-Trichloroethenel
1^3-Trichlorapropane
1.Z3-Trichioro pro pane
Vinyl chloride (Chioroethen*)
Vinylidene chloride (l.l-Dichloroethene)
According to the VS. International
Trade Commission, over 21 billion
pounds (9 J million metric tons) of these
commercial chemicals are produced
annually by approximately 29 domestic
companies. Available information in the
Section 3007 RCRA Industry Studies
'"Chlorinated aliphatic hyripenboaa" cete* to a
daa* of organic compound!, "Hyilmuaitea'm
wgaoic compouada (aoiaculaa) oompoaad aolaljr of
Iba atoaa hjidiaien and carbon. "Aliphatic"
dcaignatM thai tha rhamtral betwaaa
caftan atoaa art staffe doable, or triple covatest
bonda. (not aromatic bonda). (Cydle aliphatic .
hydrocarbon an tndnded la thii daaa.)
"Chlorinated" meana that the hydrogen atoaa in the
"aliphatic hydrocarbon" have baan chamicalljr
replaced with chlorine attm. at difiaraat poaiUana
and alao in multiple poaittaaa.
data base indicates that approximately
168 million pounds (75.000 metric tons)
per year of new wastes are covered by
this action while 63 million pounds
(29.000 metric tons) of new wastes
would be covered by the accompanying
proposed regulation. Approximately 3.3
biilion pounds (1.509.000 metric tons) of
wastes associated with these
manufacturing processes are already
regulated under $ 281.32, as discussed
above.
The wastes covered by these
regulations are formed as residuals at
several points in an integrated series of
chemical reactors and associated
purification units employed to produce a
range of desired chlorinated aliphatic
hydrocarbons. Our decision to list these
wastes by means of a generic process,
rather than by individual processes, is
based on the similarity of chemical
reactions and by-product formation
within these Ci-Ce free radical catalyzed
chemical conversion processes.
Although plants differ in process design,
size, and specific products
manufactured, a common factor is the
utilization of one or more general
chemical reaction types in a series of
unit processes to generate higher
degrees of chlorinated compounds.
Usually at least one of these chemical
conversions in an integrated process is
catalyzed by "free radicals", which
generally require high reactor
temperatures. These free radical
catalyzed reactions are not totally
specific in producing the desired
chemical product thus, reactor
conditions can only be arranged to
maximize the desired products.
Therefore, for any given G-C* process, a
range of by-products will be formed
having both higher and lower carbon
atoms and higher and lower amounts of
chlorine substitution. It ia possible to
predict many of the different chemical
species that will be formed in the course
of these free radical catalyzed
processes, and that will, in turn, be
found in the listed wastes. The Agency's
sampling program confirms these
predictions. The listing Background
Document and the sources cited therein
describe in detail the process, reaction
similarities, and chemical reaction
theory justifying the Agency's generic
approach.
The Agency also predicted and haa
confirmed with sampling data that
processes employing only low
temperature add catalyzed reactor units
do not generate the toxic wastes found
from integrated free radical catalyzed
processes. Consequently, the listing
descriptions apply only to wastes
generated by free radical catalyzed
integrated processes. (Phrased another
way, this listing does not include those
wastes generated from processes that
only use low temperature acid cataly
reactor units.) This listing and
accompanying proposed listing are
intended to cover the described wastes
from all sources within an integrated
process utilizing free radical catalyzed
conversions, whether or not the
integrated process utilizes free radical
catalyzed conversions solely or in
conjunction with other types of
chemically catalyzed conversions. This
is because there is carry-over of toxic
by-products as well as intrinsically taxic
intermediates and products ferried
during the free radical catalyzed
conversion process into all of the wastes
from these processed.
The wastes, described in this listing
as well as the accompanying proposal,
typically will contain significant
aggregate concentrations of one or more
of the following contaminants of
concern:
Chloromethace (Methyl cholride)**
Dichloromethane (Methylene chloride)**
Trichloromethane (Chloroform)* •
Carbon tetrachloride*
Vinyl chloride (Chloroethane)*
1.1-Dtchloroe thane (Ethylidene dichloride)
1.2-Dichloroethana (Ethylene dichloride)*
IranM-l ,2-Dichloroetheae
1.1-Dichloroethene (Vinylidene chloride)'
1.1.1-Trichloroethane"
1.1.2-Trichlotoethane *
Trichloroe these (Trichloroethyiene) *
1.1.U-Tetra chloroethane
l.lil-Tetrachloroethane *
Tetrachloroethene (Perchloroethylene) *
Pen ta chloroethane
Hexa chloroethane *
3-Chlorupropene (Ally) chloride)
Eptehlorahydita (l-Chloro-2.3-
eyoxypiopane)*
Dichloropropaoe
Dichloropropene**
2-Chlon>-1.3-fautadiene (Chloroprene)
Hexachloro-l>bntadiene*
Hexachlorocydopentadiene **
o/p/ra-Hexachlorocydohexane *
Aeto-HexacUorocydohexane*
goamto-Hexachlofocyclohexane *
rfe/te-Hexachiorocydohexane * *
Benzaae*
Chi oro benzene**
Dichloro benzenes' *
lXt-Trichlorobenxeoe
Tetrachtorobenxene**
Pentachiofobeniwr.e"
Hexachlorobemeae *
Toluene*'
Naphthalene
*lndlcat«t enmpntwds that have been
determined by the U.S. EPA's Carcinogen
Assessment Group (CAG) as having evidence
of carcinogenicity. The weight of evidence for
' carcinogenicity varies. Some of the cheajcala
have human evidence (epidemiology
while others have only animal evidenc^^
-------
Federal Register / Vol. 49. No. 55 / Tuesday. March 20. 1964 / Rules and Regulations 10499
Handling Instructions and Additional
Information area of the proposed
Uniform Manifest form to allow for
"certain information about the type and
nature of the waste." EPA and DOT are
aware that many States want to request
additional information not required by
EPA or DOT as part oT the proper
shipping description from the generator
concerning hazardous waste listings. In
response to these suggestions, an
"Additional Description for Wastes
Listed Above" space has been included
on the Uniform Manifest form. This
space may only be used for data that
describe the waste, such as chemical
names, constituent percentages, and
physical state and mnv be used by a
generator for additional waste
descriptions even if a generator State or
consignment State does not require it.
Handling Codes—This space is
provided for either EPA or State
handling codes indicating the relevant
treatment, storage, or disposal process.
Other information—Several State
commenters suggested that the form
contain space for emergency response
telephone numbers and for the name,
address, telephone number, and logo of
the State Agency. Although States may
not require generators to provide any
information other than in the optional
State information space, the top margin
has been expanded to provide room for
the State to preprint such information.
Section V.C. of this preamble.
Modifications to the Form, discusses
more completely the additional
information that may appear on the
form.
B. Form Design
The forms required by this
promulgation retain the vertical 8Vfc" by
11" size proposed on March 4.1982 (see
47 FR 9336). despite the addition of new
information items. This is possible
because the available space is used
more efficiently.
The required federal information
items are generally on the left and
middle portions of the form. The
optional State information itemsjre on
the upper right except for the T
"Additional Description for Wans
Listed Above" space. The optional State
information items are shaded and °
headed by letters rather than numbers,
to set them apart
The form has been revised in response
to other comments in the following
manner. (1) It was redesigned to be
readily adaptable to automated data
processing (ADP) equipment (2) It is
suitable for either manual or typewritten
entry. The marks shown in the proposed
rule in certain data entry spaces (e.g^
"Container Number and Type") have
been de-emphasized because.
commenters stated that they interfered
with preparation of the forms by
typewriter. They have been replaced by
lighter, less conspicuous dots. (3) The
information items on the form are
numbered or lettered to make it easier
for users to follow instructions and
reference a specific item in the "Special
Handling Instructions and Additional
Information" space. (4) The form
contains an "Additional Description for
Waste Listed Above" space that
provides the generator with room to
clearly enter useful information. (S) The
final Uniform Manifest form (EPA form
8700-22) has only four waste listing
spaces, as suggested by some
commenters. in order to provide
additional space for other information.
(6) The Manifest document is designed
to include a Continuation Sheet (EPA
Form 8700-22A) on which the generator
may list both additional hazardous
wastes and transporters, if necessary.
This eliminates the need for users with
many different waste streams, notably
laboratories, to prepare many separate
manifests for one shipmenL
C Modifications to the Form
States may add information to the
form in the margin or on the back of the
form, and only information or
instructions that do not require
generators, transporters, or owners or
operators of hazardous waste
management facilities to supply new,
different or additional information.
Information or instructions States may
preprint include:
1. A unique State manifest document
number (items A and L);
2. State emergency telephone numbers
(in the margin or on the back):
3. State Agency name, address,
telephone number, and State logo (in the
margin or on the back);
4. Copy distribution information (in
the margin or on the back);
5. State forms inventory control
numbers (in the margin or on the back);
6. Organizational marks such as light
lines, line identifiers, etc to facilitate
information entry and data processing
(anywhere on the form);
7. A hazardous materials (HM)
column in items 11 and 28 (see DOT
regulations at 49 CFR17&201);
8. A reference to State laws or
regulations following the federal
identification (in item 16); and
9. Abbreviations for headings in State
optional information spaces (items A-H
and L-Q).
States may also print instructions
which may be distributed with the
forms.
Title 40 CFR 271.6 has been revised to
require use of EPA form 8700-22 and
870O-22A for authorized States. States
seeking final authonzation are required
to submit a copy of the Uniform
Manifest form with their application if
they preprint any information on the
form.
In cases where generators print their
own uniform manifest forms, they may
preprint the following information:
1. Any information requirements, with
the exception of the certification
signature and acceptance signatures;
2. Transporter safety information,
treatment storage or disposal
information, and Bill of Lading
information (in the "Special Handling
Instructions and Additional
Information" space or. if necessary, on
the back);
3. Copy distribution and other general
company information (in the margin or
on the back);
4. A hazardous materials (HM)
column in items 11 and 28 (see DOT
regulations at 49 CFR 172.201); and
5. Organizational marks such as light
lines, line identifiers, etc. to facilitate
proper character placement of
information (anywhere on the form).
Generators may also print instructions
and distribute them with the.form. But.
the form must be completed and
consistent with federal requirements.
Instructions for filling out the Uniform
Hazardous Waste Manifest form are
included in today's Federal Register.
EPA is not requiring that the instructions
be included with copies of the form. The
form must however, be completed and
consistent with these instructions.
D. Copies of the Forms
EPA is not printing copies or sets-of
the Manifest form for public use.
Generators and others desiring copies of
the form should first contact their State
office to determine if their State will be
printing the forms. If their Stale is not
printing the forms, camera-ready copies
of the form for printing purposes can be
obtained from die State, or the EPA
Regional Office or EPA Headquarters.
VL Effective Date
These regulations will take effect on
September 2a 1984. as required by
Section 3010(b) of RCRA. Further
discussion of the appropriateness of this
period of time for the Uniform Manifest
is provided above, Section IILE.
Implementation Date.
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10498 federal Register / Vol. 49. No. 55 / Tuesday. March 20. 1984 / Rules and Regulations
enter the total quantity and unit of
measure (volume or weight) of the
shipment Many commenters requested
clarification as to whether the weight is
a measurement of the net or gross
quantity (i.e.. whether the weight of the
container should be included in the
measurement). EPA and DOT have
determined that the measurement must
be gross weight when the waste
container is to be discarded (e.g.. a drum
containing waste) and net weight when
it is not discarded (e.g.. bulk shipments
by tank, truck). Another issue centering
on weight or volume classification is the
requirement of various States that .
hazardous waste shipments be
determined by a specific measurement,
either weight or volume. The joint
HMAC and ASTSWMO proposal
suggests that the Uniform Manifest be
designed to allow the generator to
include both weight and volume. Thus,
while today's rule does not require that
two units of measure be specified for
any waste listing, the Uniform Manifest
form provides space for both weight and
volume.
One commenter asked if fractions
could be used in the quantity description
(see EPA Form 8700-22, Item 13). EPA
does not believe that the quantity
description should include fractions.
Rather, the Agency believes that the
quantity description should be the most
accurate possible without using
fractions or decimals. For example, if a
shipment weighs 18.500 pounds, the
correct quantity description would be
18.500 pounds, not 9.25 tons nor 9V« tons.
Special Handling Instructions and
Additional Information—As proposed,
this section may be used by the
generator for a number of purposes.
Some commenters have advocated that
the ICC Bill of Lading and/or DOT
placarding information be allowed on
the Uniform Manifest form. The Special
Handling Instructions space (or the
reverse side of the form) may be used
for this information, emergency
response telephone numbers, or any
other information the generator wishes
to include about the shipment If
alternate facility information (Le, name,
address, and EPA ID number) or the
conditions for international shipments
(i.e.. point of departure, date of
departure, and transporter's signature)
are included, they must appear in this
space. However. States are not
permitted to require any information
within this space or on the back of the
form as a condition of transportation. In
accordance with a joint
recommendation by ASTSWMO and .
HMAC certain information needs of the
States can be accommodated in the
State information spaces discussed
below.
Generator Certification—The
generator is required to read and yign
the certification statement at the •
initiation of each waste shipment. The
wording of the certification statement
has been changed to ensure its
applicability for use with all modes of
transportation (i.e.. highway, railroad,
water, and air) and for national and
international shipments. DOT supplied
EPA with the new wording as a result of
changes they have made based on the
recommendations of a United Nations
committee of experts on the transport of
dangerous goods. States seeking final
authorization must submit supplemental
wording they propose to add to this
certification (e.g.,* "* and the laws/
regulations of the State regulations of
the State of (name of State)" as part of
their application for authorization for
approval by EPA.
InternationaI Shipments—Generators
are required to list for each export
shipment the point of departure from the
United States. This information must be
placed in the item labeled "Special
Handling Instructions and Additional
Information" on EPA Form 8700-22 (first
page).
(b) Transporter Requirements:
Acknowledgment of Acceptance—A
transporter is required to acknowledge
on the Manifest the acceptance of the
waste shipment by signing the Manifest
and recording the date of acceptance.
International Shipments—
Transporters who take waste identified
on the Manifest out of the jurisdiction of
the United States must enter the date
that the waste was exported and sign
the Manifest indicating that the waste
left the United States on that date. This
information must be placed in the item
labeled "Special Handling Instructions
and Additional Information" on EPA
form 8700-22.
. (c) Treatment Storage and Disposal
Facility Requirements:
Discrepancy Indication Space—As
proposed, the Discrepancy Indication
Space must be used for recording
significant discrepancies between the
waste described on the Manifest and the
waste actually received by the
designated facility. (See 40 CFR | 284.72
and 8 285.72.) Several commenters
requested clarification of where to send
discrepancy reports. EPA regulations
require owners and operators of TSD
facilities located in States where EPA
administers the hazardous waste
program to send reports to the
appropriate EPA Regional
Administrator. Owners and operators of
TSD facilities located in States with
interim or final authorization are
advised that individual State programs
require discrepancy reports and that
they should review the specific State
regulations on this subject for further
information.
Acknowledgment of Acceptance—The
owner or operator of the TSD facility is
required to acknowledge the acceptance
of the waste shipment by signing the
manifest and recording die date of
acceptance.
2. Optional State Information
Requirements.—As previously
discussed, the Uniform Manifest form
includes optional information spaces to
substantially meet basic requirements of
the States. This should eliminate or
reduce the need for additional State
reporting requirements. The optional
State information items on the Uniform
Manifest form were selected on the
basis of comments received, including
the recommendations of the HMAC and
ASTSWMO joint task group. The
specifically identified items are
generally those used most frequently by
the States. Many members of the
regulated community joined the* task
group in recommending that certain of
these additional items be included on
the font.
This section describes the optional
State/required information items
included on the Uniform Manifest for^B
State Manifest Document Number-^W
response to comments, space has been
provided for a State manifest document
number used by some States to track
waate shipments. Typically, this number
will be preprinted by the State issuing
the manifest and. therefore, is not an
information burden on generators.
State Identification Numbers—These
spaces are provided for generators',
transporters', and treatment storage and
disposal facilities' State identification
numbers. These numbers may include
registration, permit disposal plan. or
other State identification numbers.
Telephone Numbers—Space has been
provided for the telephone numbers of
two transporter! and the TSD facility.
(The generator's telephone number is a
federally-required information item, as
mentioned above.)
Waste Numbers—This space is
provided for the entry of either EPA or
State hazardous waste numbers. (Space
for waste numbers was included as an
optional item on the Manifest form
proposed on March 4.1982.)
Additional Waste Description
Space—Some industry commenters
requested additional space in whicv
list additional information about l'
wastes. HMAC and ASTSWMO
suggested expanding the Special
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Federal Register / VoL 49. No. 55 / Tuesday. March 20. 1984 / Rules and Regulations
10497
Uniform Hazardous Waste Manifest
form. If the consignment State does not
distribute the form, a Uniform Manifest
form obtained from any source may be
used.
V. The Uniform Hazardous Waste
Manifest
EPA. with DOTs agreement has
designed the Uniform Hazardous Waste
Manifest form and system with the
following features:
A. Information Requirements
EPA received divergent comments on
the inclusion of many information items
on the manifest form. The primary
comments are discussed in the following
section of this preamble and the other
comments are discussed in the ¦
Bank ground Documents for this rule-
making.
The information items contained on
the Uniform Hazardous Waste Manifest
form (EPA form 8700-22 and the
Continuation Sheet, form 8700-22A) can
be categorized into federally-required
information and optional State-required
information. The federal requirements
are examined first.
1. Federal Information Requirements.
EPA is not increasing its information
reporting requirements in this final
rulemaking. All federally-requited
information on the Uniform Manifest
form is currently required by EPA's
hazardous waste regulations. On March
4.1982, the Agency proposed the
inclusion of one new federal information
requirement the telephone number of
the treatment, storage, or disposal
facility. The Agency decided not to .
include that requirement in this final
rule. EPA believes-that transporters can
obtain that information during the
course of shipment by contacting the
dispatcher or the waste generator. The
Agency believes emergency response
information, should be obtained from
the generator—not the TSD facility:
.Therefore, while the generator's
telephone number remains a federal
requirement, the TSD facility's
telephone number is not a required item.
(As discussed below. States maytequire
the facility's telephone number is an
optional item on the form.)
In order to clarify the required federal
information items on the manifest form
and to discuss comments received on
those items, this section presents a
review of those items. ,
(a) Generator Requirements:
Manifest Document Number—'The
manifest document number consists of
the generator's U.S. EPA twelve digit
identification number pliils a unique five
digit number, allowing each generating
site to manifest up to 100,000 shipments
a year without repeating a document
number. In the proposed rule, EPA
defined the five digit number as a
"sequentially increasing number." The
definition has been changed in this final
rule in order to dispel the impression
that generators would have to use
manifests in a sequential manner.
However, the generator must ensure the
uniqueness of the document number for
each shipment from each site during a
. calendar year.
Page Number—Genera tors are
required to identify on the first page of a
manifest the total number of pages in
that manifest i.e* the first page (EPA
Form 8700-22) plus the number of
Continuation Sheets (EPA Form 8700-
22A). if any. For example, if the manifest
consists of only one page (EPA Form
8700-22). and there is no Continuation
Sheet (EPA Form 870O-22A), then the
correct entry would be "Page 1 of 1." If
the manifest consists of one front page
(EPA Form 8700-22). and one
Continuation Sheet (EPA Form 8700-
22A), then the correct entry would be
"Page i of 2."
Generator Name and Address—The
address remains the mailing address of
the generator since the TSD facility must
return a completed copy of the manifest
promptly to die generator. Comments -
were received suggesting that the
address reflect the site of waste
generation. EPA does not believe it is
necessary to include a site address on
the manifest form because the EPA
identification number provides this
information. The generator, then, must
enter the mailing address of the location
that will administer the returning
manifest forms (e-g., billing office,
corporate headquarters, or the site of
generation).
Generator's Telephone Number—This
must be the number of a person who can
provide information about the shipment
in the event of an emergency.
Transporter *1 Company Name and
US EPA ID Number—The name and
U.S. EPA twelve digit identification
number of the initial transporter of the
waste must be entered.
Transporter #2 Company Name and
U.S. EPA ID Number^-The name and
U.S. EPA twelve digit identification
number of the second transporter, if
applicable, must be entered. Space for
additional transporters is provided on
the Continuation Sheet for entry in the
order they are used. _
Designated Facility Name. Site
Address, and US EPA ID Number*—The
generator must enter the TSD facility
name and site address plus the facility's
U.S. EPA twelve digit identification
number. The site address is required to
inform the transporter where the
shipment must be delivered.
Alternate Facility—A number of
commenters suggested that the form
should provide space for generators to
list an alternate fatility name and
address, as allowed in 40 CFR 262.20.
Since this item is not required of
generators, the Agency has decided not
to provide a specifically designated
space for it if an alternate facility is
designated, it must be identified in the
item marked "Special Handling
Instructions and Additional
Information."
Container Number and Type—The
generator must indicate the number of
containers and using the abbreviations
in Table 1 of the form instructions, the
type of containers for each waste
shipped. This final rule corrects the
abbreviation for Cargo Tanks/Tank
Trucks (TT) and Tank Cars (TC). The
abbreviation for Portable Tanks (TP) is
also changed. In response to comments,
a new abbreviation (DT) has been
added for dump trucks. Some
commenters suggested adding an
abbreviation for metal boxes such as
roll-offs or dumpsters. The abbcpviation
CM was included in the proposed rule
for metal boxes, cartons, cases, and is
intended to include roll-offs or
dumpsters. This has been clarified in the
form instructions.
US. DOT Description (Including:
Proper Shipping Name. Hazard Class,
and ID Number}—The generator must
complete this section consistent with
DOT'S regulations at 49 CFR Part
17Z2UI. As allowed by those
regulations, a Hazardous Materials
(HM) column may be added by the
generator or the State to distinguish
hazardous materials as defined by
federal regulations from other wastes
(see Part IV. Response to Comments.
Issue 3 above). This permits the
generator to list materials which are
non-hazardous, or hazardous by State
definition only, in the DOT Description
space as long as the HM column is
cheeked only for federally-regulated
hazardous materials (including
federally-regulated hazardous waste).
In response to comments, the heading
for the Proper U.& DOT Description has
also been modified to include the DOT
Identification Number as part of the
shipping description. The generator must
enter the assigned DOT Identification
Number consisting of a four digit
number preceded by the UN (United
Nations) or NA (North America)
designation as appropriate for each
federally regulated hazardous material
or waste listed. (See 49 CFR I72.iui
and 172.102.) The generator must ulso
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10496
Federal Register / Vol. 4ft No. 55 / Tuesday, March 20. 1984 / Rules and Regulations
generator State if that State printed and
supplied the form.
The Agency, however, received a
number of comments on a different but
related issue that affects the decision on
what acquisition hierarchy should be
established. This issue involved the
desire of several Stales to ensure that
they receive copies of completed
manifests from all generators that
dispose of wastes in their State,
especially from those generators located
out-of-State. These States have systems
for tracking the movement of hazardous
waste that rely on receipt from
generators of copies of each manifest
prepared. They expressed the concern
that the Uniform Manifest requirements
would preclude them from requiring out-
of-State generators to submit copies of
the Manifest for each shipment into that
State, and requested that EPA alter its
regulations to impose such a
requirement.
After careful consideration of these
comments and concerns. EPA has
determined that it is not necessary to
impose a Federal requirement that
generators submit copies of each
completed manifest form to States or to
EPA. EPA believes that the current
federal manifest reporting system, which
requires submission of Exception
Reports by generators and Discrepancy
Reports by TSD facility operators is
adequate and effective to track
hazardous waste shipments.
States are free, however, to impose a
more stringent system that could involve
the submission by generators of copies
of every completed manifest form. This
authority is reserved to the States by
Section 3009 of RCRA. which permits
any State to impose more stringent
requirements, as long as those
requirements meet the standard set forth
in Section 3006 that they not be
"inconsistent" with the Federal
requirements. EPA does not believe that
sudi requirements would be
inconsistent with the Federal manifest
system.
In addition, it is well settled that a
State can assert jurisdiction over
persons not residing in that State if such
persons maintain "minimum contacts'*
with that State. See International Shoe
Co. v. Washington. 326 U.S. 310 (194S).
The fact that a generator disposes of a
waste in that State would appear to
satisfy this requirement of "minimal
contacts." States can enact and most
States currently have among their laws,
"long-arm" statutes by which they can
assert such jurisdiction and impose such
requirements.
Finally, promulgation of the Uniform
Hazardous Waste Manifest system
requirements does not affect this
independent State authority. The
Uniform Manifest regulation simply
requires that the manifest information
already required by EPA regulations be
provided on a nationally uniform form
and describes that form. It does not
speak to or affect the reporting
requirements placed by States on
generators under the manifest system. In
the face of the independent State
authority discussed above. EPA does
not believe it is necessary for the
Federal government to impose or
enforce the requirements of those States
that wish to receive manifest copies
from out-of-State generators.
EPA has. however, considered the
legitimate interest of some States in
imposing a different reporting system,
that may require submission of copies of
completed manifests. As a practical
matter. States need to be able to inform
out-of-State generators of the existence
of manifest copy submission
requirements. Although, this could be
accomplished by other means, a
convenient method would be to print a
notice of such reqirements on the actual
manifest form to be used by generators.
For this method to be effective,
generators must be required to obtain
the manifest forms they use from the
State that will be receiving the waste
(the consignment State).
In developing the final acquisition
hierarchy promulgated today, EPA
considered all the comments described
above, and evaluated the advantages
and disadvantages of alternative
approaches. Requiring generators to
-obtain the form from the generator State
would probably be convenient for the
generators. This approach might make it
more difficult however, for States to
which the wastes are being delivered to
track the waste shipments from the
point of generation to the treatment
storage, or disposal site than if those
consignment States could supply the
form with their own unique State
tracking numbers and reporting
instructions.
Conversely, a system that required
acquisition of the form from
consignment States would make it
easier for those States to implement and
enforce their own tracking and reporting
systems. Requiring form acquisition
from the consignment State would
enable States that wish to require
submission of copies of all completed
manifests to inform out-of-State
generators of this requirement by
printing the information on the form. In
addition, as permitted by 1271.10(h)(1).
the consignment State can print on each
form a State manifest document number
that may be helpful in tracking the
manifest in the State s own tracking
system.
In choosing between these two
approaches. EPA gave great weight to
RCRA's emphasis on the role of the
States in implementing the hazardous
waste program. Both Sections 3006 and
3009 recognize the right of the States to
impose requirements more stringent
than the Federal requirements. EPA
believes, therefore, that it is appropriate
to consider the States' interest in
designing their own unique procedures
beyond the Federal requirements when
establishing regulations. In this case.
EPA believes that a State's interest in
devising a regulatory program to assure
proper treatment, storage and disposal
of waste within its borders outweighs
the advantages to generators in
obtaining blank manifest forms from a
single source.
Therefore. EPA is promulgating a form
acquisition hierarchy that requires
generators to obtain the blank manifest
form from the consignment State if that
State supplies the form and requires its
use: if not then from the generator State
if that State supplies the form and
requires its use: and if not. the generator
may obtain the form from any source.
While this rule establishes a
procedure for the acquisition of blank
manifest forms, it does not limit the
ability of the generator State or the
consignment State to require submission
of completed forms by the generator or
facility owner or operators. For
example, generators may be required by
regulations of both the generator State
and the consignment State to submit
completed copies of the Manifest for
each shipment
Further, aa discussed in Issue 2. both
the generator State and the consignment
State may establish specific
informational requirement* in the
optional State section of the Manifest
¦ form. For example, a generator who
obtains copy of the blank Manifest form
from the consignment State may still be
¦ required to comply with his State's
manifest informational requirements.
For international shipments, the
regulations promulgated today require
the manifest form of the generator's
State to accompany export shipments of
hazardous waste if that State supplies
the form and requires its use. In the
event the generator's State does not
supply the form, the export shipment
may be accompanied by a Uniform
Manifest form obtained from any source.
This same logic also applies to import
shipments—manifest forma obtained
from the consignment State must
accompany the shipment if that.State
supplies and requires the use of its own
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Federal Register / Vol. 49. No. 55 / Tuesday, March 20. 1984 / Rules and Regulations 10495
items that may be included on the
Uniform Manifest are discussed in detail
in Part V.A.2. Optional State
Information Requirements, of this
preamble.
Although none of the items included
aa optional State-requiredinformation
are required by federal law. State law
may require that some or all of these
specific items be reported on the
Manifest and sent directly by the
generator or the owner or operator of a
TSD facility to that State. However, as
discussed above. States may not require
that any information other than the
federally-required items accompany
shipments of hazardous waste. It is
permissible for the forms carried by the
transporter to include such optional
information, but States may not impose
enforcement sanctions against
transporters if the Manifest fails to
include these items. Further. States
through which hazardous waste
shipments pass are not allowed to place
additional information requirements on
the transporter as a condition of
transportation.
In some instances, both the State in
which the waste is generated and the
State in which the TSD facility is
located may require the completion of
specific information items included in
the optional State section of the
Manifest. In these instances, the
generator may be required to comply
with both requirements, including the
use of both States' identification
numbers. The space provided in the
optional State section should be
adequate to fulfill such requirements.
EPA does not anticipate that this
situation will occur very often and urges
the States to coordinate their
information needs. A State through
which hazardous waste passes,
however, may not require information to
be entered in these spaces as a
condition of transportation through that
State.
The addition of optional. State-
required information items on the form
enables States to obtain necessary data
but retains the basic uniformity of the
Manifest Since Individual State
requirements for the regulated
community will remain in place,
generators, transporters, and TSD
facility operators must continue to
comply with them. For example,
generators must still know individual
State requirements for treatment,
storage, and disposal sites located in
other States. A Uniform Hazardous
Waste Manifest form containing space
for required State information should
enable States to ensure compliance with
its information requirements, without
having to develop a whole series of new
State reporting forms. The Agency
expects that the final result will be that
generators in general will be required to
complete only one document: the
Uniform Hazardous Waste Manifest..
Issue 3. How will the Uniform Manifest
system final rule apply to
generators who ship State-regulated
hazardous wastes that are not
regulated under Federal law?
EPA received comments requesting an
explicit clarification in this rule on the
effect of the Uniform Hazardous Waste
Manifest form and system on wastes
defined as hazardous by either the
generator's State or the consignment
State, but not defined as hazardous by
EPA or DOT. A similar situation arises
when States require generators to
manifest shipments of hazardous waste
that qualify for a federal small quantity
exemption or wastes that are destined
to be recycled, for which federal
regulations do not require a manifest.
The Uniform Hazardous Waste
Manifest form has been designed to
allow the listing of both federally-
regulated wastes and wastes regulated
solely by the States. In order to
distinguish between federally-regulated
wastes and other wastes, as required by
DOT regulations (49 CFR 172^01(a)(l)).
generators can add (or States may
overprint on the form) a hazardous
materials (HM) column in the space for
U.S. DOT Description. When a waste
shipment consists of both federally-
regulated materials and State-regulated
wastes, the HM column, if added, must
be checked or marked for only those line
entries which are regulated under
federal law as hazardous wastes or
hazardous materials.
In addition to being used for
shipments of RCRA hazardous waste,
the Uniform Manifest may also be used
for shipments of DOT regulated
hazardous materials, or shipments of
State-regulated wastes, or any
combination of these regulated
substances. This rulemaking does not
preclude generators from adding a HM
column or complying with any of the
other DOT requirements for shipping
papers found in 49 CFR 172^01.
Istfiie 4. Should States have the right to
require generators to use only a
Uniform Manifest form printed by a
State?
EPA also solicited comments, on the
ASTSWMO recommendation that the
States be allowed to require generators
to use specific State forms. (See 47 FR
9339. March 4.1982.) ASTSWMO
advocated expansion of the top margin
of the Uniform Manifest form to provide
room for States to print their name and
State-assigned document number. The
State organization asserted that State
document numbers are necessary for the
effective use of any automated tracking
system.
Some commenters (in particular,
members of the regulated community)
objected to this recommendation, stating
that it is more cost-effective and
efficient for generators to print their
own manifest forms. In addition,
commenters were concerned that the
implementation of such a regulation
might require generators to complete
multiple manifests for interstate
shipments.
EPA and DOT recognize the merit of
both positions, and this rule establishes
a scheme for determining who supplies
the Uniform Manifest form. The top
margin of the first page of the form has
been enlarged to allow for pre-printing
of information, ki order to retain the
advantages of a uniform manifest,
however. EPA must ensure that only one
uniform manifest is required for each
shipment and. therefore, has established
a hierarchy for acquisition of blank'
manifest forms. This acquisition
hierarchy is discussed in the section
below.
Issue 5. From what source should
generators obtain copies of the
blank Uniform Manifest form (the
copy acquisition hierarchy)?
Although the Agency is prescribing
the use of the Uniform Hazardous
Waste Manifest form. EPA does not
intend to print and supply the form. This
allows States, if they wish, to print and
supply the form, in which case the
States can print their own unique
numbers on the form to aid in tracking
the hazardous waste shipments. For
generators located in one State but
disposing of wastes in another, it is
necessary to determine from which
State they must obtain the Uniform
Manifest form. Accordingly. EPA is
specifying a hierarchy for acquisition of
blank manifest forms in these
regulations.
In its March 4.1962. proposal EPA
indicated that it intendisd to allow
States to print and supply the Manifest
form and requested comments on how
this could effectively be arranged. EPA
received relatively few comments as to
what acquisition hierarchy would be
preferable. One commentes stated that
the generator should be required to
obtain the form from the consignment
(receiving) State if that State printed
and supplied the form. A few other
commenters stated thai the generator
should obtain the bra boa the
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10494
Federal Register / Vol. 49. No. 55 / Tuesday. March 20. 1984 / "Rules and Regulations
According to commentera. the
proliferation of State-required manifests
has caused considerable confusion and
an inefficient utilization of resources for
muitistate corporations. Industry
commenters stated that one of the
greatest impediments to compliance
with complex regulatory requirements is
the difficulty of assuring that operating
personnel are adequately trained. The
requirement to complete different State-
required manifest forms complicates
shipping procedures for these personnel
which, in some instances, has led to
technical noncompliance with the
various State manifest requirements.
Muitistate corporations also believed
they were prevented from easily
implementing corporate-wide hazardous
waste data management systems due to
the lack of a standard document. This
problem also besets State hazardous
waste programs that desire to track and
collect waste shipment data using other
States' manifest forms.
EPA and DOT believe that the
proliferation of manifest requirements
has caused an unnecessary burden on
generators and transporters. The EPA-
DOT Uniform Hazardous Waste
Manifest system as outlined in this final
rule will ameliorate this situation in the.
following ways:
First and foremost. DOTs authority
will be used to preempt all State
manifest requirements so that-under no
circumstances will more than one
manifest be required per shipment The
Uniform Hazardous Waste Manifest
system precludes a variety of complex
and inconsistent forms now in use and,
therefore, reduces unnecessary and
duplicative administrative costs for
generators. At the same time, the
uniform Hazardous Waste Manifest
system pennits all the information
requirements of a DOT shipping paper
to be satisfied, thereby eliminating the
need to prepare a separate shipping
paper.
Second, eliminating conflicting
manifest requirements aids muitistate
corporations by standardizing form
completion procedures and by
simplifying data entry for hazardous
waste information management systems.
For transporters, the Uniform Manifest
system preempts laws requiring them to
carry «ach particular Stale's manifest
form. State Agencies will no longer have
to use complicated data systems to
handle a variety of manifest forms.
Finally, from a transportation safety and
enforcement viewpoint this rule
provides a single document to enhance
uniform tracking and enforcement
Several commenters suggested that
the Uniform Manifest also be designed
to be used as a Bill of Lading which they
believed was required by the Interstate
Commerce Commission (ICC) to
accompany most commercial shipments.
Prior to July 1962. the ICC had indicated
that all waste shipments would require a
Bill of Lading. Since that time, the ICC
has ruled that hazardous waste
of no economic value destined for
disposal (other than nuclear or
radioactive waste) do not constitute
'property' within the meaning of 49
U.S.C. 10521. Accordingly, the
Commission does not have jurisdiction
over the for-hire transportation by motor
carriers of such wastes" (47 FR 29403.
July 8.1982). Therefore, the Agency does
not expect that ICC Bill of Lading
requirements will apply to hazardous
waste shipments destined for treatment,
storage or disposal facilities. In the
event a shipment must be accompanied
by the Manifest and a Bill of Lading and
if the requirements of both documents
cannot be met by the required or
optional information on the Uniform
Manifest, then it would be necessary for
two separate documents to accompany
the shipment.
Issue 2. Should the Uniform Manifest
form contain space for additional
State Information?
The Uniform Hazardous Waste
Manifest form provides space for all
information needed to satisfy CPA and
DOT manifest requirements. In the
proposed rule. EPA solicited comments
on whether the Uniform Manifest form
should also contain space for additional
State-required information beyond the
federally-required items. (See 47 FR
9338, March 4.1982.) State commenters
were overwhelmingly in favor of this
suggestion. In fact EPA was informed
that in the event specific State optional -
infonnational items were not included
on the final Uniform Hazardous Waste
Manifest form, some Stales Mould
require generators and facilities fesend
detailed information regarding each
individual waste shipment to the State
under separate cover on the State's own
form. Much of this information could
repeat In a different format information
already supplied on the Uniform
Hazardous Waste Manifest form. EPA
has taken these concerns into account
aad provided for certain additional
State-required information on the form.
The Agency believes that States will not
need to require additional hazardous
waste reports from generators relative
to waste shipments.
As previously discussed. States are
not precluded from setting up another
system of forms to solidt information
not included on the UniformManifest
form, as long as the system does not
interfere with the actual shipment of
wastes. While transporters would not be
required to carry these forms, generators
and treatment storage and disposal
facility operators could still be required
to use them. Some commenters
suggested that EPA prohibit States from
requiring additional information in this
manner. However. Section 3009 of
RCRA (discussed earlier in this
preamble) clearly allows States to
impose requirements which are more
stringent than the federal requirements
unless the requirements would interfere
with the consistency of State programs
required by 8 3008. At this time. EPA
does not believe that allowing States to
require additional information in this
manner will interfere with the
consistency among programs.
The possibility that States may
require additional reporting prompted
one commenter to suggest that while the
proposal may provide relief to the
transporter, unless EPA were willing to
modify the form to substantially meet
the needs of the various State Agencies,
there would be no relief for generators
and treatment storage, and disposal
facility operators. In fact increased cost
and confusion could result in his
opinion, as various States imposed
additional requirements which could not
be met through the proposed Uniform
Federal Manifest system. The
commenter suggested that it would be
less confusing and less costly to have
optional informs tian spaces included on
the Uniform National Manifest form.
Some eommenters objected to the
mandatory reporting of any information
on the form other than federally
required information as a violation of
the "uniform manifest" concept
However, when the possibility of
separate State-required reports was
raised with these commenters. they
generally agreed that would be
preferable to allow States to require
certain, limited information to be added,
if that would preclude the need for
States to require separate reports as
long as only one document is required
for any shipment
EPA, in consultation with DOT. has
worked to develop a Uniform Manifest
form that substantially meets the
information needs suggested by the
States through the inclusion of entries
for particular Hems of information that
may be required at the option of a State.
A few commenters stated (hat the
inclusioa of an optional information
space would give States a "blank check"
to soDdt information from generators. In
response to these comments. EPA
designed the form to restrict the optional
information States may require. The •
specific State-required information
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Federal Register / Vol. 49. No. 55 / Tuesday. March 20. 1984./ Rules and Regulations
10493
requirements would not be
"inconsistent" for purposes of the
HMTA. as long as they: (a) Did not
conflict with federal requirements or
otherwise unduly burden commerce; and
(b) as long as such requirements were
not so numerous that their cumulative
effect was to burden commerce. The
optional State information items on the
Uniform Manifest form, it is hoped, will
reduce the need for such additional
State reporting. Further discussion of
DOTs authority to preempt inconsistent
State regulations is provided in the
preamble to the DOT regulations.
E. Implementation Date
Use of the Uniform Hazardous Waste .
Manifest form will be required for all
transportation of hazardous waste in all
States after September 20.1984. Based
upon the comments received. EPA and
DOT believe that this time frame will
allow States and the regulated
. community sufficient time to implement
the Uniform Manifest form. Members of
the regulated community who ship
hazardous waste only in States that
currently do not require the use of a
specific manifest form may use the
Uniform Manifest forms immediately.
As mentioned, the Uniform Hazardous
Waste Manifest system requirements
are applicable in all States on
September 20.1984. regardless of the
State's authorization status under
. RCRA. The Agency believes that a
uniform effective date is an important
part of the Uniform Manifest system. In
States receiving final authorization after
the effective date of this rule and in EPA
administered States without interim
authorization, this is achieved by EPA's
regulations. In States with interim
authorization and States that receive
final authorization prior to the effective
date of this rule, this is achieved by
DOTs regulations. Today's amendments
to the DOTs Hazardous Materials
Regulations reference the EPA Uniform
Hazardous Waste Manifest form and
require its use for all regulated off-site
transportation of hazardous waste.
IV. Response to Comments
Five major issues were raised in the
comment letters received by the Agency
on the March 4.1982. proposal. These
issues are:
1. Should EPA and DOT finalize the
Uniform Manifest system proposal?
2. Should the Uniform Manifest form
contain space for additional State
information?
3. How will the Uniform Manifest final
rule apply to generators who are
shipping State-regulated hazardous
waste that i» not regulated under federal
law?
4. Should States have the right to
require generators to use only a Uniform
Manifest form printed by the State?
5. From what source should
generators obtain copies of the blank
Uniform Manifest form (copy acquisition
hierarchy)?
Other issues raised by commenters
are addressed in the "Background
Document—Uniform Hazardous Waste
Manifest."
Issue 1. Should EPA and DOT finalize
the Uniform Manifest system
proposal?
Almost all commenters supported the
concept of a Uniform Manifest system.
The main point of contention among the
commenters was how the concept
should be implemented. EPA's position
on comments associated with
implementation is discussed in issues 2
through 5.
The Agency's rulemaking docket for
the March 4.1982. proposal includes a
small number of letters opposing a
Uniform Manifest form. Industry
commenters against the proposed
Uniform Manifest form typically were
those whose who use their own
company-designed form, since they
operate only in States that do not
require a specific manifest form. They
argue that the EPA and DOT proposals
for a Uniform Manifest form limit the
ability of the generator to voluntarily
include additional information useful to
their waste management programs. They
suggested that generators should have
the option of using a form of their own
design, provided it contains all required
information.
A State commenter proposed ihat the
Uniform Manifest form only be required
for interstate shipments, thereby
allowing States to require use of their
existing manifest form for intrastate
shipments. The commenter suggested
that this would save the State the
expense of redesigning its data
management system and would ensure
that State-required information is filed
for intrastate shipments.
In response to these comments, the"
Agency points out that the final Uniform
Hazardous Waste Manifest form
contains additional space that
generators and States may use to record
useful information. (Refer to Issue 2 of
this part of the preamble for a more
complete discussion of the use of this
space.) Furthermore, a Uniform Manifest
form is needed for both interstate and
intrastate shipments since the
hazardous waste program is a national
effort to effectively manage all waste*
determined to be hazardous under
RCRA. Both RCRA and HMTA call for
consistency among federal and State
programs, with special emphasis on the
transportation of wastes. Finally,
national applicability is necessary to
deal with the problems discussed in this
preamble. The many different State
manifest forms have contributed to the
current lack of standardized
administrative and data management
systems among generators and State
programs and hamper enforcement
programs. Additional discussion of the
applicability of DOTs regulations
involving inter- and intrastate shipments
is contained in the DOT rulemaking
published elsewhere in today's Federal
Register.
While EPA and DOT recognize the
cost factors associated with changing
data management systems to comply
with the new federal form, it is expected
that this one-time changeover cost is far
outweighed by the benefits of using the
Uniform Manifest form. An Agency
economic analysis (see the Docket on
RCRA Section 3002 Uniform Manifest)
indicates that the Nation should realize
net cost benefits if 15.000 or two percent
or more of the shipments are interstate.
At this point the annual cost of this
rulemaking equals the annual savings.
Although one State indicated that only
two percent of their waste moved
interstate, other States indicated most or
all of their hazardous waste moved
interstate. EPA estimates that more than
two percent of the nation's hazardous
waste shipments move interstate. Thus,
the fact that there is a cost reduction
favors the use of the Uniform Manifest
system.
A problem which generators and
transporters viewed as more serious is
the multiple State manifest requirements
when shipping wastes interstate. The
Docket on the Uniform Hazardous
Waste Manifest contains accounts of
generators who complained of being
required to complete as many as twelve
manifests to transport one interstate
shipment of hazardous waste to its
destination.
Waste generators felt that when they
must prepare several State-required
forms for multistate movements and
truck drivers must determine if the
State-required forms are completed
properly, shipping hazardous wastes
becomes extremely complicated without
a related improvement in environmental
protection. Several generators
complained of having to include their
own DOT shipping paper along with the
shipment because certain State-
required forms do not satisfy DOT
requirements. These administratively
burdensome and duplicative
requirements are costly to generators.
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10492 Federal Register / Vol. 49. No. 55 / Tuesday. Match 20. 1984 / Rules and Regulations
State Director must submit a letter to the
Regional Administrator describing those
changes. When statutory or regulatory
modifications have been made, copies of
those modifications must also be
submitted. Copies of the Uniform
Hazardous Waste Manifest form need
only be submitted when, the State
preprints information on the form.
c. In States With Interim Authorization
In the case of States with interim
authorization, the Uniform Manifest will
not be required by EPA authority but
rather by DOT authority. As we noted
previously, States with interim
authorization are not required to amend
their regulations to be consistent with
this Final rulemaking. However, prior to
receiving final authorization, these
States will need to demonstrate
compliance with the requirements of the
amendments to 40 CFR 271 published
today. In order to give States a definite
and unchanging body of regulations to
meet for the relatively short period of
interim authorization, EPA requires
States applying for interim authorization
to meet only those requirements
promulgated before the announcement
date of the final component of the Phase
II. interim authorization requirements
(see 40 CFR 271.122(d)(2)). Since the
final component (Component C) was
announced on )uly 29.1982. and these
Uniform Manifest regulations will be
promulgated after that date, the Uniform
Manifest regulations will not be
applicable in States with interim
authorization as a result of EPA
jurisdiction. [DOT will have jurisdiction
in EPA interim authorized States (see
below).) This situation is temporary,
however, since all interim
authorizations will expire in January
1985. At that time. States with interim
authorization must meet the
requirements for final authorization or
lose their authorization altogether, with
EPA taking over the implementation of
their hazardous waste program*.
In any case, the absence of an EPA
requirement in States with interim
authorization will have no practical
effect since DOTs regulation* impose
the identical requirements and apply
universally. DOT is today amending its
regulations to require all shippers and
carriers of hazardous waste to use the
Uniform Manifest system. These DOT
amendments operate independently of
RCRA requirements and will be
applicable in all States; regardless of
State authorization status.
DOTs authority to require use of the
Uniform Manifest steins primarily from
the Hazardous Materials Transportation
Act (HMTA). which regulates the
movement of hazardous materials, 49
U.S.C. 1801 etseq. DOTs implementing
regulations are found in 49 CFR Parts
171 and 172. As proposed. DOT is
amending its Hazardous Materials
Regulations to require that shippers and
carriers of hazardous waste, both intra-
and interstate, comply with EPA's
amendments <»nceming the use of the
Uniform Hazardous Waste Manifest
form.
2. Restrictions on additional State
manif^t or information requirements.
Under limited circumstances, States
may impose their own manifest
information or management
requirements. EPA's authority 1o allow
or restrict such additional State
requirements in authorized States
involves the coordination of two
statutory provisions: Section 3008, which
requires approved State programs to be
"consistent" with the federal program,
and Section 3009. which reserves to
States the latitude to be more stringent
In balancing these two provisions, EPA
allows a State to impose more stringent
requirements, except in those cases
where the Agency has determined that
consistency requires thai State programs
conform precisely to the federal
requirement. Consequently, EPA's
regulations promulgated today do not
prohibit authorized States from
imposing requirements that provide
more rigorous or comprehensive control
of hazardous waste activities than do
EPA's regulations, such as requirements
that handlers of hazardous waste send
copies of completed manifests to State
Agencies for tracking purposes. Based
on the need for consistency, however.
States with final authorization must use
the Uniform Manifest form, and may not
require any additional information to
accompany the waste shipment
EPA's regulations do not prohibit
States without final authorization (either
interim authorized States or
unauthorized States) from imposing
more stringent manifest requirements.
However, under the authority of Section
112 of the HMTA (49 U.S.C. 1811(a)),
DOTs regulations will prohibit those
States from requiring separate State
manifests or other information to
accompany waste shipments. Section
112 of the HMTA expressly preempts
any State or local requirement which is
inconsistent with that Act or HMTA
regulations. This provision is fully
supported by Article L Section 8 of the
U.S. Constitution, which grants Congress
the authority to regulate interstate
commerce. DOT believes that national
uniformity in the transportation of
hazardous waste is necessary in order
to avoid a patchwork of differing State
requirements. Therefore, DOT is
clarifying elsewhere in today's Federal
Register that any State law or regulation
requiring a different or additional
manifest (other than the Uniform
Manifest form) would be inconsistent
with the Hazardous Materials
Regulations and. therefore, prohibited.
Although no other form may be
required by a State to accompany a
waste shipment EPA and DOT have
modified the Uniform Manifest form to
allow the entry of certain optional State
information items in addition to the
federally-required items. Generators
may use that section of the form to
satisfy the specified Slate information
requirements. In this way. EPA expects
that both States and generators will
benefit since the additional State
information requirements can be met on
the Uniform Manifest form while
reducing or eliminating the need for
generators to prepare duplicative
reports on each shipment
States may require generators to
complete any of the information items
included in the optional State section of
the Uniform Manifest prior to the
transportation of hazardous waste.'and
may require owners or operators of
facilities to complete any of these State
information items as a condition of the
acceptance of waste at treatment,
storage or disposal (TSD) facilities.
These requiremeats may be imposed
both by the State in which
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Federal Register / Vol. 49. No. 55 / Tuesday. March 20. 1984 / Rules and Regulations
10491
generators, transporters, and State
programs. Currently, a transporter
carrying hazardous waste may be
required to cany the manifest of each
State in which he travels in order to
comply with various State manifest
requirements. Failure to carry a
particular State's manifest may delay or
prevent shipments from reaching their
destination or subject the transporter to
State enforcement action. Under these
conditions, a generator may be required
to go through the costly and inefficient
procedure of filling out several manifest
forms with duplicative information in
order to ensure that the waste reaches
the designated facility. State programs
have been burdened in some cases by
the need to adapt their administrative
and data processing procedures to
handle the varying out-of-State
manifests which they receive.
Second, the lack of uniform
information requirements prevents
generators with sites in more than one
State from standardizing manifesting
procedures. This situation makes it
extremely difficult for multistate
generators to implement standardized
data handling programs for coordinating
hazardous waste management
information.
Third, enforcement activities have
been complicated. "Probable cause" to
search a vehicle is easier to prove if
investigators are trained with uniform
manifest standards.
C. State and Industry Involvement
Recognizing these problems and as a
result of continued review and analysis
of existing and anticipated State
manifest systems, EPA and DOT in
November of 1980 asked two
organizations representing States and
industry to comment on the feasibility
and desirability of requiring the use of a
Uniform Manifest form. The State group,
the Association of State and Territorial
Solid Waste Management Officials
(ASTSWMO), and the industry group,
the Hazardous Materials Advisory
Council (HMAC). submitted separate
recommendations which wen
instrumental in the design of the
Uniform Manifest form that was
proposed Jointly by EPA and DOT on
March 4.1982 (47 FR 8336).
During the comment period for the
proposed rule. EPA received over 190
comments and DOT received nearly 100
comments from interested parties. (A
discussion of the major comments is
included in Part IV. Response to
Comments, of the preamble.) Included in
these comments was a letter from a joint
task group composed of ASTSWMO and
HMAC members suggesting
modifications to the EPA and DOT
proposal. EPA and DOT have
considered all of the comments in
developing this regulation.
D. EPA and DOT Joint Rulemaking
1. Required use of the uniform
hazardous waste manifest Since the
current problems associated with the
manifest involve both DOT and EPA. the
Agencies have worked together to
devise a regulatory solution. Therefore,
this joint final rulemaking contain^
amendments to the regulations of both
agencies. Independently of each other,
EPA and DOT are requiring use of the
Uniform Manifest form. DOTs
regulation is nationally comprehensive
and applies directly to all generators
and transporters. However, under EPA's
regulation, there are three distinct
situations.
a. In States Where EPA Runs the
Program
EPA's authority to require compliance
with a manifest system stems primarily
from RCRA section 3002(5), which
requires EPA to establish requirements
respecting "* * * use of a manifest
system and any other reasonable means
necessary to assure that all such
hazardous waste generated is
designated for treatment storage or
disposal in and arrives at * * *"
permitted facilities. (Also, see section
3003(a)(3) and section 3004.) EPA's
regulations implementing this mandate
are found in the manifest sections of 40
CFR 262 (Generators). Part 263
(Transporters), Parts 264 and 285
(Facilities), and Part 271 (State
Programs).
As proposed. EPA is amending Part
262 to require generators to use the
Uniform Hazardous Waste Manifest
form. Because the transporter
regulations in Part 263 already require
transporters to carry a manifest
prepared by a generator with each
waste shipment no amendments to the •
transportation requirements are
necessary. The EPA requirements
published today apply directly to all
generators and transporters in States
where the hazardous waste program is
ran directly by EPA.
b. States With or Applying for Final
Authorization
In other States, each State directly
regulates hazardous waste activities
under its own program approved by EPA
on either an interim or final basis, as
provided in RCRA Section 3006. In order
to be approved by EPA. State programs
must include requirements as specified
in EPA's requirements for State
programs, 40 CFR Part 271.* For final
authorization. State program elements
generally need not be identical to the
federal requirements, as long as they are
equivalent In the case of the Uniform
Hazardous Waste Manifest form.
however. EPA is amending 40 CFR
271.10 to provide that States seeking
final authorization must require the use
of the Uniform Manifest form.
This requirement is necessary to
assure compliance with Section 3006(b)
of RCRA. which requires that State
programs be consistent with the federal
program applicable in other States. EPA
has already noted the importance of
consistency in requirements involving
the transportation of wastes, and
provided that State programs not
meeting the federal requirements for
manifests will be deemed inconsistent
(See 40 CFR 271.4 and the preamble
discussion at 45 FR 33395 (May 19.
1980).) As explained above, the
proliferation of many State-specific
manifest forms may hamper the
movement of hazardous waste to
treatment storage, or disposal sites.
This situation, where differing
requirements between States cause
added work and confusion and may
hamper the program for hazardous
waste treatment storage and disposal,
appears to be precisely what Congress
was attempting to avoid when it
included the "consistency" requirement
in Section 3006. Consequently. EPA has
determined that to meet that
requirement all State programs must
require the use of the Uniform
Hazardous Waste Manifest form in
order to receive final authorization from
EPA. Consistency also requires that no
State with final authorization may
require any other manifest or
information to accompany the waste
shipment as discussed below.
As provided by today's amendment to
40 CFR 271.6(d). States with final
authorization must require the use of the
Uniform Manifest States authorized
before the effective date of this
requirement are required to revise their
programs as provided by 40 CFR 271.21.
EPA has determined that State adoption
of the Uniform Manifest is not e
"substantial" revision under 40 CFR
271£L since, for the reasons described
in the next section of this preamble, the
manifest form will be effective in all
States regardless of their authorization
status. After completing the necessary
revisions to the State's program, the
'Thaaa nquiimnuU w«i« ortflniUy pubfahad
put of 40 CFR Pan 123. Tbay b*v« racanlly b«n
racodiBad as 40 CFR Pan 271. HS FR 1414& Apnl t.
1BB3). AIm aaa Tfrr1—1 cotracaom at 4S FR 30113.
Joaa ML 1BSX
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10490
Federal Register / Vol. 49. No. 55 / Tuesday. March 20.1904 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260,262,271
ISWH-FBL 3314-4)
Hazardous Waste Management
System: General; Standards for
Generators of Hazardous Waste; State
Hazardous Waste Program
Requirements.
agency: Environmental Protection
Agency.
action: Final rule.
summary: Today, in a joint rulemaking
effort, the Environmental Protection
Agency (EPA) and the Department of
Transportation (DOT) are publishing a
Uniform Hazardous Waste Manifest and
requiring its use for all regulated
shipments of hazardous waste. EPA's
Resource Conservation and Recovery
Act (RCRA) regulations presently
require generators who transport or
offer for transportation, hazardous
waste for off-site treatment storage or
disposal to prepare a manifest which
must accompany the waste. Although
the RCRA regulations require that
certain information must appear on the
manifest there has been no federal
requirement that a standard manifest
form be used.
In the absence of a federal manifest
form, numerous States have developed
manifest forms and require their use. As
a result many interstate hazardous
waste shipments require the preparation
of multiple manifests to satisfy the
requirements of the States in which the
waste travels. This has caused
confusion and compliance difficulties. In
order to resolve these problems. EPA
and DOT proposed a Uniform
Hazardous Waste Manifest form on
March 4.1982. Today's joint rulemaking
adopts this form, with several
modifications in response to comments
received on the proposal.
date Final rule effective September 20.
1984.
aoorcss: The public docket for this
final rule (RCRA Section 3002—Uniform
Manifest) is located in room S-212. U.S.
Environmental Protection Agency, 401M
Street SW„ Washington. DC and is
available for viewing from 930 AM to
4:00 PM. Monday through Friday,
excluding holidays. This docket
contains, among other material, the .
economic analyses, background
document and comments discussed in
this preamble.
POM PUffTHKR INFORMATION CONTACT:
Carolyn K. Barley. (202) 382-5235. Office
of Solid Wastes (WH-563). U.S.
Environmental Protection Agency.
Washington. DC. 20460 or the RCRA
Hotline. (800) 424-9346 (in Washington.
DC call 362-3000).
For a copy of this regulation, call Your
EPA Regional Office.
EPA Region 1. Boston. MA. FTS-22J- •
6683. (617) 223-6883
EPA Region 2. New York. NY; FTS-264-
0304. (212) 264-0504
EPA Region 3. Philadelphia. PA. FTS-
597-0980. (215) 597-0980
EPA Region 4. Atlanta. CA. FTS-257-
3016. (404) 881-3016
EPA Region 5. Chicago. IL FTS-880-
4179. (312) 886-1179
EPA Region 6. Dallas. TX. FTS-729-2045.
(214) 767-2645
EPA Region 7. Kansas. MO. FTS-758-
6536. (816) 374-6536
EPA Region 8. Denver. CO. FTS-327-
4136. (303) 837-4136
EPA Region 9. San Francisco. CA; FTS-
454-7472. (415) 974-7472
EPA Region 10. Seattle. WA, FTS-399-
8582. (206) 442-8582
SUPPLEMKNTARY INFORMATION:
I. OMB Control Number 2000-0404
II. Authority
This final rule is issued under the
authority of sections 2002. 3001. through
3007.3009. and 3010 of the Solid Waste •'
Disposal Act as amended by the
Resource Conservation and Recovery
Act of 1976 (RCRA), as amended. 42
U.S.C 6912.6921 through 6927 and 693a
in. Background ¦
A. History of the Manifest System
On February 28. i960. EPA established
a manifest system to ensure that
hazardous waste designated for delivery
to an off-site treatment storage or
disposal facility actually reaches its
destination. The central element of this
sysem is the "manifest" a control and
transport document that accompanies
the waste from its point of generation to
Its point of destination. In this preamble,
the phrase "Uniform Manifest system"
refers to the entire manifest
management scheme, including the
manifest forms, preemption of all other
forms, form handling, and reporting;
while the phrase "Uniform Manifest
form" or "Uniform Hazardous Waste
Manifest" refers only to the documents
required by this rulemaking.
EPA first proposed its manifest
system requirements on December 18,
1978 (43 FR 58969). In this proposed rule
EPA did not set forth a required form for
the manifest but stated the required
information that must accompany the
waste. This approach, in the Agency's
view, would have allowed the regulated
community to adapt its present
practices, notably DOTs requirements
for shipping papers.1 to accommodate
the new EPA requirements. For the
transportation of hazardous materials.
DOT did not require a specific form but
required each transport vehicle to carry
required information.
A number of commenters on the
proposed rule, however, urged the
creation of a uniform national manifest
form. It was suggested that differing
requirements among States might result
in confusion and compliance difficulties
for the transportation of hazardous
waste. Those commenters also stated
that a national form would be simpler to
use. Other commenters. however, feit
that EPA should retain the flexibility of
the proposed rule, particularly because
of the interest of the States in adapting
the manifest requirements to their own
needs and interests.
In the final regulation, published
February 26.1980 (45 FR 12722). EPA
decided to retain the flexible approach
of the proposed regulation. The
information requirements of the
manifest were revised so that the
manifest would, in most situations, be
able to serve as the shipping paper
required by DOTs hazardous materials
transportation regulations. At that time,
creation of a single form, satisfying both
EPA's and DOTs information
requirements, was rejected as too rig'd
an approach to work satisfactorily for
all transportation practices.
During 1981 the Agency received a
number of requests to reconsider the
decision concerning the development of
a single manifest form. As a result of
this review, the Agency published a
proposal which would require the use of
a uniform national manifest This final
regulation and the following discussion
is the result of that review and proposed
rule published March 4,1982.
B. Manifest Implementation Problems
Since EPA introduced the federal
manifest system, there has been a
proliferation of manifests as various
States decided to develop and print their
own forms. At least 22 States require
generators to use specific manifest
forms for the transport of hazardous
waste. This situation has caused three
major problems.
First the lack of uniformity in State
manifest forms has created a burden for
1 DOT 1m« Mtablithcrl mfuUtioni that cover
EPA't univatia of baiardoua outti (49 CFR in 3
and 171 J) and raquira tha ragulaltd community to
uaa • thlppipf papar lor tha transportation of
haaafdou mant-PHw to (hit rulemaking. DOT
regulation* (49 CFR IRJOSI allowtd induitr) in
a ahipping papar format of thttr choosing for the
reqmrad information.
-------
RCRA REVISION CHECKLIST 5: National Uniform
Manifest (cont'd)
STATE ANALOG IS:
ANALOGOUS
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINOENT
IN SCOPE
APPENDIX to PART 262
uniform manifest
instructions
8700-22
8700-22(A)
1
Note that these changes were completely superseded by Revision Checklist 31 (August 8, 1986
at 51 FR 28664).
March 20. 1984 • Page 2 of 2
-------
RCRA REVISION CHECKLIST 5
National Uniform Manifest
49 FR 10490-10507
March 20. 1984
(Non-HSWA Requirements Prior to Non-HSWA Cluster i)
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
EQUIV-
ALENT
MORE | BROADER
STRINGENT I IN SCOPE
PART 260 - HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
SUBPART B - DEFINITIONS
DEFINITIONS
manifest
260.10
manifest document
number
260.10
PART 262 - STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
SUBPART B - THE MANIFEST
GENERAL REQUIREMENTS
use of manifest
262.20(a)
apply consignment
State
262.21 fa)
aoolv generator State
262.21(b)
aoDtv anywhere
262.21 (c)
SUBPART E - SPECIAL CONDITIONS
INTERNATIONAL SHIPN
ENTS
introductory text
262.50(b)(3)
aenerator State
262.50(b)(4)
introductory text
262.50(d)
importees/consignment
State
262.50(e)
March 20, 1984 - Page 1 of 2
-------
5312 Federal Register / Vol. 49. No. 29 / Friday. February 10. 1984 / Rules and Regulations
Executive Order 12291. Any comments
from OMB to EPA, and any EPA
responses to those comments, are
available for public inspection in Room
S-212 at EPA.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act 5 U.S.C 601 et seq., whenever an
agency is required to publish a general
notice of rulemaking for any proposed or
final rule, it must prepare and make
available for public comment a
regulatory flexibility analysis which
describes the impact of the rule on small
entities (i.e., small businesses, small
organizations, and small governmental
jurisdictions). No regulatory flexibility
analysis is required, however, if the
head of the Agency certifies that the rule
will not have a significant economic
impact on a substantial number of small
entities.
The hazardous wastes listed here are
not generated by small entities (as
defined by the Regulatory Flexibility
Act), and the Agency does not believe
that small entities will dispose of them
in significant quantities. Accordingly, 1
hereby certify that this amendment is
unlikely to have a significant economic
impact on a substantial number of small
entities. This regulation therefore does
not require a regulatory flexibility
analysis.
VL Ust of Subjects in 40 CFR Part 281
Hazardous materials; Waste
treatment and disposal. Recycling.
Dated: Febuary 0,1984.
AJvin I. Aim,
Acting Administrator.
For the reasons set out in the
preamble. Title 40 of the Code of Federal
Regulations is amended aa follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority for Part 281 reads as
follows:
Authority: Sees. 1006.2002(a). ML aad
3002 of the Solid Waste Disposal Act as
amended by the Resource Conservation and
Recovery Act of 1B7B. as amended (42 U&C
090$. 0912(a). 6921. and 0922).
2. In S 281.31 add the following waste
streams:
} 261.31 Hazardous waste from non-
Mttywd
EPA
P0S4
laiju
3. Add the following entry in
numerical order to Appendix VII of Part
261:
Appendix VII—Basis for Listing
Hazardous Wastes
EPA
m*
4. Add the following constituents in
alphabetical order to Appendix vm of
Part 261.
• • • • •
3-Chloropropene (allyl chloride)
2-Chloro-l, 3-butadiene (chloroprene)
|F*Oaa.
HMH M:Wlw|
-------
Federal Register / VoL 49. No. 29 / Friday. February 10. 1984 / Rulea and Regulations
5311
technical basis in supporting these
listings. The Agency has already
answered comments regarding its
authority to list wastes generically (see
45 FR 33114 (May 19.1980)). However,
confusion remains about the factors the
agency will consider when listing
wastes on a generic basis.
As this preamble and accompanying
background document make clear, the
Agency intends to base generic listings
on the factors set out in 40 CFR
281.11(a)(3), the same factors considered
for all hazardous waste listings. Thus, in
determining that wastes within the
generic class are typically and
frequently hazardous (see 40 CFR
261.11(b)), the Agency will look to Aich
factors as the nature of toxicity of the
various toxic constituents, the
concentration of toxic constituents in
the wastes, mobility and persistence of
these constituents, potential of these
constituents to bioaccumulate. and
whether the wastes have caused
substantial harm when mismanaged.
The wastes listed here and in the
accompanying proposed listing are
typically and frequently hazardous
under these criteria. As shown above,
they typically contain very high
concentrations of a wide range of
hazardous constituents—concentrations
in some cases approaching a billion
times the levels calculated by the
Agency to increase the risk of cancer in
humans from a lifetime ingestion of
contaminated water and aquatic
organisms. There also is a distinct
possibility of synergistic lexicological
effects from the various constituents.
The constituents typically and
frequently are mobile and persistent
and many are bioa cannulative. These
wastes have been mismanaged
frequently in the past and the
mismanagement has resulted in
substantial harm: in addition, they are
generated in large quantities. All of
these considerations strongly support
the conclusion that these wastes an
typically and frequently hazardous
under section 1004(8) of the Act
The generic listing descriptions, rather
than a listing of wastes generated in the
course of producing a particular Ci-C«
product also is a more accurate way of
listing these wastes. As discussed
above, this is because the reactions that
lead to toxic by-product formation, and
the conditions under which these
reactions occur, are essentially alike for
thia entire group of wastes. In fact a
wide range of marketable chlorinated
producta can be made during one
specific Ci to G process. A listing linked
to only one product—for example,
"wastes from the production of carbon
tetrachloride"—understates greatly the
amount of wastes generated in this
generic Ci production process, omitting
wastes from the simultaneous
production of methyl chloride,
methylene chloride, and chloroform. The
generic listing thus utilizes these
underlying similarities as a critical
factor in establishing its basis.
Most of the comments critical of the
August 1979 proposal were general
comments critical of the Agency's
scientific methodology in predicting the
inevitable chemical formation of toxic
by-product constituents as a result of
the high temperature/pressure free-
radical generating conditions present in
the chemical reactor. The Agency
^recognizes that there are process factors
such as internal recycling, and
differences in temperature, pressure,
and reactor configuration which may
cause variations in the wastes. We do
maintain though, that a substantial
amount of toxic constituents will
predictably be removed from the
product process by the waste streams
described in the interim final (and
proposed) hazardous waste listing^).
The preamble and background
documents to this regulation
demonstrate why these wastes, which
are hazardous, are typically and
frequently generated by these processes,
taking into account many of the factors
dted by the commenters. and thus
responding to their comments.
We do egree. however, at least for the
time being, with the commenters who
questioned the Agency's proposal to list
wastes from the production of
chlorinated polymers in that our present
information suggests that no substantial
volume of organic wastes is generated
from these processes all potential
"wastes" an carried along with die
heavy viscous product stream and
^RnaSy! we note thaM&lvreproposal
also included wastes from the
production of chlorinated aromatic
hydrocarbons. The Agency already has
listed individually many of these wastes
through its listing of wastes from the
production of chlorobenzenes and
benzyl chloride. The mafor process not
yet covered is chlorinated toluene
production. The Agency is now
evaluating these wastes, and will than
make a decision about whether to list
IV. Opportunity for Comment
Although we already have proposed
to list the wastes covered by this interim
final regulation, the Agency decided to
allow further opportunity far
We solicited and obtained comment on
additional data developed to support
these listings (48 FR 2275a May 2a
1983). In light of oar earlier proposal and
the opportunity to comment on
additional data, we do not believe it
necessary to propose this action. The
additional listing of light ends; spent
filters and filter aids, and spent
dessicant westes from these same
manufacturing processes was not part of
the original proposal and is thus being
proposed separately in-a&other section
of today's Federal Register.
V. Economic. Environmental and
Regulatory impacts
A. Regulatory Impact Analysis
Under Executive Order 12291. EPA
must determine whether a regulation is
"major" and therefore subject to the
requirement of a Regulatory Impact
Analysis. The total combined cost for
disposal of the wastes as hazardous,
assuming that all of these wastes would
be managed for the first time as
hazardous, and conservative
estimates as to costs, is approximately
$38 million. It must be noted though, that
information available from the'Section
3007 RCRA Industry Studies data base
indicates that over two thirds of the
wastes is already being managed as
hazardoua waste et RCRA facilities. For
these wastes, listing will not add
appreciably to the current coat of
disposal except for the minimal
additional cost of recordkeeping. It will
also have very little additional cost
impact on the permitting of these
facilities since they are already handling
hazardoua wastes. Baaed on this
reasoning, the estimated impact of this
rale will be well under the tlOO million
that constitutes a mater regulation.
The addition of the two new toxicants
of concern to Appendix VIII (2-chloro-
1.3-butadiene and S-chloropropene) will
not result in any «» increased
burden in groundwater monitoring
requirement The analytical techniqt
currently employed to teat for the
presence and concentration of other
chlorinated organic on
Appendix Vm (gas chromatography
combined with mesa spectroscopy) will
simultaneously teat for these new
In addition, we do not expect that
than will be adverse impacts on the
ability of U A-baeed enterprises to
compete with forat^n-beaed enferpr
in domestic or owl markets.
Therefore, siaoe «a rate ia not a ma
regulation* a I
Analysis is not I
This amendmaat wee submitted to the
Office of Manegameai asd ledgat
(OMB) for review ee seqmiod by
-------
5310
Federal Register / Vol. 49, No. 29 / Friday, February 10, 1984 / Rules and Regulations
Depending on the amount and quality of the
data, the evidence could be clsssified aa
limited or sufficient using criteria developed
by the International Agency for Research on
Cancer. Hie EPA has established Ambient
Water Quality Criteria Levels based on their
potentially carcinogenic effects.
"Indicates compounds for which Ambient
Water Quality Criteria Livels have been
determined by the Agency for chronic human
health risks other than carcinogenicity.
The contaminants include chlorinated
aliphatic hydrocarbons as well as
aromatic compounds and chlorinated
aromatic compounds that are currently
identified in Appendix VIII of Part 261.
In addition, 2-chloro-l,3-butadicne
(chloroprene) and 3-chloro-propene
(ally! chloride) are new toxicants which
the Agency is adding to Appendix VIII
of Part 261. The toxicology and
environmental fate of these toxicants is
presented in the Background Document
and Health and Environmental Effects
Profiles. By adding these two new
constituents, the Agency also is
increasing the number of hazardous
constituents for which land disposal
facilities must monitor groundwater
under compliance monitoring programs
(See S 264.99). Land disposal permittees
also may be required to monitor for
these constituents under groundwater
detection monitoring programs 4 (see
§ 264.98).
As explained above, the Agency has
inferred the presence of these
contaminants from knowledge of
reaction chemistry and process
conditions. In conjunction with this
theoretical predictive methodology, the
Agency obtained representative samples
of these wastes and confirmed the
presence of these contaminants through
chemical analysis.
As shown in the Background
Document the hazardous constituents
generally are present in these wastes in
significant concentrations, typically in
concentrations many orders of
magnitude above the levels related to
human health concerns. For example,
analysis of one manufactuer's vinyl
chloride distillation residues (Table 1)
shows the hazardous constituents at
concentrations typically found in these
wastes.*
Table 1—Vinyl Chloride Oisnmmo*
Residue
Csratftuanl
1.1.1-u miao«8 ma.
lU-MMmttw.
•KMoreMDtMn*-
1.1 .U-tMicMoroaMn* .
nmtofuBuan* a
cMsraOaraana_
• JS0
.4
1U
J
2
IS
J
.1
' At 0m BMint turn. ma Agarcy daaa not I
Monniton to cusflify Mn owhum m
'The Agancy already has (padded procedures
for analysing tbaaa toxicant* to groosdwatar. Sot
U.& EPA. SW-SMi T«at Methods tor Evaluating
Solid Waste. Fhyrieal/CheaJcal Method*. VS.
Cov'L Mnting Offica PafcUcaUoa No. 088 OW
>1001-4.
EPA. Dtepoaal of Otfnocttoriae Wanes by
IndsaratlaB at Sea. EPA Publicadaa No. 430/S-7S-
on (tan).
"That* *0.000 ppm.
The Agency has calculated that
persons face a 1 per million increased
risk of cancer or other adverse health
effects as a result of lifetime ingestion of
water and aquatic organisms (fish, etc.)
living in such water when the water is
contaminated at levels above the
Ambient Water Quality Criteria Levels
(AWQCL). As an indication of how high
toxicant concentrations in these wastes
are. the concentration of 1.2-
dichloroethane alone in the vinyl
chloride distillation waste approaches
400 million times the AWQCL The other
toxic constituents likewise are
frequently present in concentration
orders of magnitude greater than the
AWQCL
In all cases, the solubilities of the
toxicants of concern are many orders of
magnitude greater than the AWQCL
Thus, only a small fraction of the
toxicants present in these wastes need
migrate and reach environmental
receptors to pose the potential for
substantial harm if these wastes are
landfill ed improperly. Improper
incineration is another exposure
pathway of concern.
The chemical analyses obtained by
the Agency and company supplied
information in the Section 3007 RCRA
Industry Studies data base demonstrate
empirically similar high concentrations
of toxicants in the wastes covered by
this interim final and the accompanying
proposed regulation.1 Although then
were many differences between these
wastes, both qualitatively and
quantitatively, in all cases, there were
one or more of the toxicants of concern
present at levels which could present >
substantial environmental hazard if the
wastes are mismanaged.
We note further that comparison of
toxicity of individual waste constituents
is likely to understate the toxicity of
these wastes. This is because these
•The lesolta of these analyses have baea claimed
by tfw individusl 66®pttiw to be
bnthieta Information. and Ihawfuw are not
supporting mfannatton faf ifeis idles pmMv
agpagate toxicant eoacntnttoa rang** for tha Ct
through & procaia wanes tanptad.
wastes are complex mixtures of many
hazardous constituents. Aggregate toxic
effects, whether additive or synergistic,
must be judged probable.
These wastes thus typically contain
many known toxicants in concentrations
well above those necessary to cause
substantial harm. All of these toxicants
are capable of migrating from the
wastes via leaching action and of
persisting in the environment in
concentrations sufficient to cause
substantial harm to environmental
receptors. Many of these toxicants also
are bioaccumulative, increasing the nsk
of de facto exposure to higher levels of
toxicants, since receptors will
accumulate these toxicants in increasing
levels. We also note that these wastes
are generated in large quantities,
increasing the risk of exposure and
substantial damage if mismanagement
occurs.
Thus, these wastes are capable of
causing substantial harm to humans if
managed improperly. Examples of
improper management which could
realistically occur include disposal in
unlined or inadequately lined land
disposal facilities, which could lead to
contamination of groundwater, surface
water, and soiL Improper incineration
could also lead to exposure to unburn ed
toxicants in the wastes, and also could
lead to exposure to products of
incomplete combustion, including
phosgene and hyrochloric acid. These
predictions of substantial harm all have
occurred in actual management of these
wastes. The Agency has documented
damage incidents involving
mismanagement of these wastes which
have resulted in surface and ground-
water contamination, and contamination
of soil and air as welL These incidents
show the potential for these wastes to
cause substantial harm, if mismanaged.
In addition, the constituents of concern
in the listed wastes have been shown in
other damage incidents to have
migratory potential and the ability to
persist in harmful concentrations after
migrating from waste matrices.
In summary, the Agency has
determined that the wastes listed in this
interim final regulation typically contain
toxicants at concentrations that are of
concern, that these toxicants are
capable of migration and persistence in
hazardous concentrations, and therefore
that these wastes are capable of causing
(indeed, repeatedly have caused)
substantial harm if mismanaged.
I1L Response to Comments
A of commenters challenge
both the Agency's legal authority to list
wastes genetically and the Agency's
-------
10500 Federal Register / Vol. 49. No. 55 / Tuesday. March 20, 1984 / Rules and Regulations
VII. Compliance with Executive Older
12291. Paperwork Reduction Act and
Regulatory Flexibility Act
A. Executive Order12291
EPA has determined that today's final
rule will not result in: An annual effect
on the economy of $100 million or more:
a major increase in costs or prices for
consumers, individual industries.
Federal. State, or local government
agencies, or geographic regions: or
significant adverse effects on
competition, employment, investment
productivity, innovation or the ability of
United States-based enterprises to
compete in domestic or export markets,
indeed, as discussed above, today's
action is expected to reduce the current
burden on the regulated community.
Therefore, this final rule is not subject to
the major rule provisions of Executive
Order 12291 and a regulatory impact
analysis is not required.
This final rule was submitted to the
Office of Management and Budget for
review as required by Executive Order
12291. Any written comments from OMB
to EPA and any EPA response to those
comments are available for public
inspection at the Office of Solid Waste
Docket. Room S-212. U.S. EPA. 401 M
Street SW. Washington DC 20460.
B. Paperwork Reduction Act
The Uniform Hazardous Waste
Manifest is subject to the OMB
clearance requirements of the
Paperwork Reduction Act of 1980. OMB
has reviewed and approved the Uniform
Hazardous Waste Manifest form
through luly 31.1986 (OMB Control No.
2000-0404). The Uniform Hazardous
Waste Manifest is not subject to the
clearance requirements of the General
Services Administration since the
Manifest form is an operating rather
than a reporting document
C. Regulatory Flexibility Act
This final rule will not have a
significant economic impact on a
substantial number of small entities and.
therefore, does not require the • »
preparation of a regulatory flexibilw .
analysis under the Regulatory Flexibility
Act (S U.S.C. 001 et seq.). Indeed, the
required use of a Uniform Hazardous
Waste Manifest form should reduce the
costs of compliance with manifest
requirements for regulated hazardous
waste generators and transporters
(including small businesses as defined
by that Act) by reducing the number of
manifest forms that must be completed
for each shipment. Accordingly. I certify
pursuant to 5 U.S.C 160S that the final
rule will not have a significant adverse
economic impact on small entities.
VI1L List of Subjects
40 CFR Part 260
Administrative practice and
procedure. Hazardous materials. Waste
treatment and disposal.
40 CFR Part 262
Hazardous materials. Labeling,
Packaging and containers. Reporting
requirements, Waste treatment and
disposal.
40 CFR Pert 271
Confidential business information.
Hazardous materials. Intergovernmental
relations. Penalties. Reporting
requirements. Waste treatment and
disposal. Water pollution control. Water
supply.
Dated: March 13.1964.
William D. Ruckeishaus,
Administrator.
Title 40 of the Code of Federal
Regulations is amended as follows:
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM; GENERAL
1. The authority citation for Part 260
reads as follows:
Authority; Sees. 1006. 2002. 3001 through
3007. 3010. and 7004. of the Solid Waste
Disposal Act. as amended by the Resource
Conservation and Recovery Act of 1970. ••
amended (42 U.S.C. 6905.6912.6821 through
9927. 5930. 0974).
2. Section 260.10 ia amended by
revising the following definitions to read
as follows:
{260.10 Peflntttona.
"Manifest"—means the shipping
document EPA form 8700-22 and. if
necessary. EPA form 8700-22A.
originated and signed by the generator
in accordance with the instructions
included in the Appendix to Part 262.
"Manifest document number—means
the U.S. EPA twelve digit identification
number assigned to the generator plus a
unique five digit document number .
assigned to the Manifest by the
generator for recording and reporting
purposes.
PART 262—STANDARDS APPLICABLE
TO GENERATORS OF HAZARDOUS
WASTE
3. The authority citation for Part 262
reads as follows:
Authority: Sees. 2002.3001. 3002.3003. 3004.
and 3009 of the Solid Waste Disposal Act as
amended by the Resource Conservation end
Recovery Act of 1976. as amended by (42
U.S.C. 6912. 0821 through 6923).
4. Section 282.20 is amended by
revising paragraph (a) to read as
follows:
S 262.20 General requirements.
(a) A generator who transports, or
offers for transportation, hazardous
waste for offsite treatment storage, or
disposal must prepare a Manifest OMB
control number 2000-0404 on EPA form
8700-22. and. if necessary. EPA form
8700-22A. according to the instructions
included in the Appendix to Part 262.
« • • • •
5.40 CFR is amended by revising
$ 262^1 in its entirety as follows:
§ 262.21 Acquisition of Manifests.
(a) If the State to which the shipment
is manifested (consignment State)
supplies the Manifest and requires its
use. then the generator must use that
Manifest.
(b) If the consignment State does not
supply the Manifest, but the State in
which the generator is located
(generator State) supplies the Manifest
and requires its use. then the generator
must use that State's Manifest
(c) If neither the generator State nor
the consignment State supplies the
Manifest then the generator may obtain
the Manifest from any source.
6. Section 282.50 is amended by
revising the introductory text of
paragraph (b)(3) and the introductory
text of paragraph (d) and by adding
paragraph (b)(4) and (e) to read as
follows:
5 262.30 International shipments.
(b) • • •
(3) Meet the requirements under
{ 28220(a) for the Manifest except that:
• • • # •
(4) Obtain the Manifest from the
generator's State if that State supplies
the Manifest form and requires its use. If
the generator's State does not supply the
Manifest form, then the generator may
obtain the Manifest form from any
source.
>• • ~ • • •
(d) When importing hazardous waste,
a person must meet all the requirements
of } 26220(a) for the Manifest except
that:.
• • • • •
(e) A person who imports hazardous
waste must obtain the Manifest form
from the consignment State if that State
supplies the Manifest and requires its
use. If the consignment State does not
supply the Manifest form, then the
Manifest form may be obtained from
any source.
-------
Federal Register / Vol- 49. No. 55 / Tuesday. March 20. 1984 / Rules and Regulations 10501
7. Part 262 is amended by adding an
Appendix to read as follows:
Appendix—Uniform Hazardous Waste
Manifest and Instructions (EPA Forms
8700-22 and 8700-22A and Their
Instructions)
U.S. EPA Form 8700-22
Read all instructions before
completing this form.
This form has been designed for use
on a 12-pitch (elite) typerwriter; a firm
point pen may also be used—press
down hard.
Federal regulations require generators
and transporters of hazardous waste
and owners or operators of hazardous
waste treatment, storage, and disposal
facilities to use this form (8700-22) and.
if necessary, the continuation sheet
(Form 8700-22A) for both inter and
intrastate transportation.
Federal regulations also require
generators and transporters of
hazardous waste and owners or
operators of hazardous waste treatment,
storage and disposal facilities to
complete the following information:
• • • • •
GENERATORS
Item 1. Generator's U.S. EPA ID
Number—Manifest Document Number
Enter the generator's U.S. EPA twelve
digit identification number and the
unique five digit number assigned to this
Manifest (e.g.. 00001) by the generator.
Item 2. Page 1 of
Enter the total number of pages used
to complete this Manifest, i.e.. the first
page (EPA Form 8700-22) plus the
number of Continuation Sheets (EPA
Form 8700-22A). if any.
Item 3. Generator's Name and Mailing
Address
Enter the name and mailing address of
the generator. The address should be the
location that will manage the returned
Manifest forms.
•iuim coot
-------
10502
Federal Register / Vol. 49. No. 55 / Tuesday. March 20, 1984 / Rules and Regulations
yiwi of type [Form daaiyd 'orm« an «in» |lI-cinMrvp«v»frm I - form Appfoveq QMS Mo 2000-0*0* ? 2? 96
UNIFORM HAZARDOUS *. Generator s us epa id no.
il WASTE MANIFEST jDocuman,*,
2. Page 1 Information in in* srtaaoo areas
, is not raquirad by Federal
" law.
S. Sanarstor s Narre and bailing Address
4. Generator's Phone i )
A.Stata Manifest Document Number
B.Stat* generator's ID
5. Transporter 1 Company Nam# 0, US EPA ID Number
J Ti4nmonw 2 Company Name 1. US EPA 10 Numnw
C.State Transporur * ID
~.Transporter's Phone
9. besignated Facility Nam* and Sit* Address ^6. US EPA 40 NunMr
E. Sta*4 TianaooiWa 10
f. Transporter's Wiom
t • ¦ •
Q,5Ut* faclrtyl ID
H.Factlny's Phone
11 US OOT Description (Including Proper Shipping Name. Hutrd Obi*. and ID Number,
12.Contd
No
mars
Tvoe
ll
Total
Quantity
14
Unit
Wl^na
1.
Waste No
t •-
w
«
R
* b.
T
0
n
c.
d.
J. Addition*t PeauimOuiia (or Material* Lined Uox
K.Handling Codes tor Wattes Listed Above
15. Speciel Handling instructions and Additional Information
id. bEWeHaToR'S CEfultlCATIONrl hereby d*i3*r*thanf>eMKite«itaotlN»coMignme»itereluUv and eeeur»tetv3*iCTil>ed
•Mw Or proper Hupping nam* end are dantfcad, pack ad. marked, and fabeted, and ere in all raspera in propar condition for
1 Oate
Piimed/Typad Nam*
\J
Si^Mturt Mont* Dm Yw
I t t
I 17. Transporter 1 Acknowledgement of Receipt of Materials
| Data
* Printed/Typed Name
a
Signature Mtntn Oer Y*ar I
{111
0 18. Tranaportar 2 AduwwMgamont or ftmtpi of Matanata
| Oat*
t Printad/Twd Nam*
A
Signature Mom A Off *M'
} 1 1
19. Diacrapancr Indication Spaca
9
A
e
i
i 20. Facility Omw or Ooerttor CMtfieitiod of raoaqat of luzirdMi oairmd br (n« minifat awcapi u iwid in
J torn 19. i
T I Data
Prtmod/Typed Hirr*
Signatur* Mmin Oir l^aar
III
ePA Farm 8700-23 O-M)
BLUM COM (MS-M-C
-------
Federal Register / Vol. 49. No. 55 / Tuesday, March 20. 1984 / Rules and Regulations
10503
Item 4. Generator's Phone Number
Enter a telephone number where an
authorized agent of the generator may
be reached in the event of an
emergency.
Item 5. Transporter 1 Company Name
Enter the company name of the first
transporter who will transport the
waste.
Item 6. U.S. EPA ID Number
Enter the U.S. EPA twelve digit
identification number of the first
transporter identified in item 5.
Item 7. Transporter 2 Company Name
If applicable, enter the company name
of the second transporter who will
transport the waste. If more than two
transporters are used to transport the
waste, use a Continuation Sheet(s) (EPA
Form 87CO-22A) and list the transporters
in the order they will be transporting the
waste.
Item 8. U.S. EPA ID Number
If applicable, enter the U.S. EPA
twelve digit identification number of the
second transporter identified in item 7.
Note.—If more than two transporters are
used, enter each additional transporter's
company name and U.S. EPA twelve digit
identification number in items 24-27 on the
Continuation Sheet (EPA Form 870O-22A).
Each Continuation Sheet has space to record
two additional transporters. Every
transporter used between the generator and
the designated facility must be listed.
Item 9. Designated Facility Name and
Site Address
Enter the company name and site
address of the facility designated to
receive the waste listed on this
Manifest. The address must be the site
address, which may differ from the
company mailing address.
Item 10. £AS. EPA ID Number
Enter the U.S. EPA twelve digit
identification number of the designated
facility identified in item 9.
Item 11. U.S. DOT Description
IIncluding Proper Shipping Name.
Hazard Class, and ID Number (UN/
NAJJ
Enter the U.S. DOT Proper Shipping
Name. Hazard Class, and 10 Number
(UN/NA) for each waste as identified in
49 CFR 171 through 177.
Note.—If additional space is needed for
waste descriptions, enter these additional
descriptions in item 28 on the Continuation
Sheet (EPA Form 8700-22A).
Item 12. Containers (No. and TypeJ
Enter the number of containers for
each waste and the appropriate
abbreviation from Table I (below) for
the type of container.
Table I—Types of Containers
DM=Metal drams, barrels, kegs
DW=Wooden drums, barrels, kegs
DF = Fiberboard or plastic drums.
barrels, kegs
TP=Tanks portable
TT=Cargo tanks (tank trucks)
TC=Tank cars
~T=Dump truck
CY=Cylinders
CM=Metal boxes, cartons, cases
(including roll-offs)
CW = Wooden boxes, cartons, cases
CF=Fiber or plastic boxes, cartons,
cases
BA = Burlap, cloth, paper or plastic bags
Item 13. Total Quantity
Enter the total quantity of waste
described on each line.
Item 14. Unit (Wt./Vol.)
Enter the appropriate abbreviation
from Table II (below) for the unit of
measure.
Table II—Units of Measure
G=GalIons (liquids only)
P=Pounds
T=Tons (2000 lbs)
Y=Cubic yards
L=Liters (liquids only)
K = Kilograms
M = Metnc tons (1000 kg)
N ss Cubic meters
Item IS. Special Handling Instructions
and Additional Information
Generators may use this space to
indicate special transportation,
treatment, storage, or disposal
information or Bill of Lading
information. States may not require
additional new. or different information
in this space. For international
shipments, generators must enter in this
space the point of departure (City and
State) for those shipments destined for
treatment, storage, or disposal outside
the jurisdiction of the United States.
Item 18. Generator's Certification
The generator must read, sign (by
hand), and date the certification
statement. If a mode other than highway
is used, the word "highway" should be
lined out and the appropriate mode (rail,
water, or air) inserted in the space
below. If another mode in addition to
the highway mode is used, enter the
appropriate additional mode (e.g.. and
raii) in the space below.
Note.—All of the above information except
the handwritten signature required in item IB
may be preprinted.
TRANSPORTERS
Item 17. Transporter I
Acknowledgement of Receipt of
Materials
Enter the name of the person
accepting the waste on behalf of the first
transporter. That person must
acknowledge acceptance of the waste
described on the Manifest by signing
and entering the date of receipt.
Item 18. Transporter 2
Acknowledgement of Receipt of
Materials
Enter, if applicable, the name of the
person accepting the waste on behalf of
the second transporter. That person
must acknowledge acceptance of the
waste described on the Manifest by
signing and entering the date of recmpt.
Note.—International Shipments—
Transporter Responsibilities.
Exports—Transporters must sign and entur
the date the waste left the United States in
item 15 of Form 8700-22.
Imports—Shipments of hazardous wmi«f
regulated by RCRA and transported into the
United States from another country must
upon entry be accompanied by the U.S. F.PA
Uniform Hazardous Waste Manifest.
Transporters who transport hazardous waste
into the United States from another country
are responsible for completing the Mann'pst
( tO CFR 263.10(c)(1)).
Owners and Operators of Treatment.
Storage, or Disposal Facilities
Item 19. Discrepancy Indication Space
The authorized representative of the
designated (or alternate| facility's owner
or operator must note in this space any
significant discrepancy between the
waste described on the Manifest and the
waste actually received at the facility.
Owners and operators of facilities
located in unauthorized State* (i.e.. the
U.S. EPA administers the hazardous
waste management programl who
cannot resolve significant discrepancies
within IS days of receiving the waste
must submit to their Regional
Administrator (see list below) a letter
with a copy of the Manifest at issu*
describing the discrepancy and attempts
to reconcile it (40 CFR C84.72 and
285.72).
Owners and operator* of facJitiet
located in authorized States (i •- those
States that have received authorization
from the U.S. EPA to administer the
hazardous waste programl should
contact their State agency for
information on Stita Discrepancy
Report requirements.
-------
10504
Federal Register / Vol. 49. No. 55 / Tuesday. March 20. 1984 / Rules and Regulations
EPA Regional Administrators
gional Administrator. U.S. EPA
Region I. }.F. Kennedy Fed. BIdg..
Boston. MA 02203
Regional Administrator, U.S. EPA
Region II. 26 Federal Plaza. New York.
NY 10270
Regional Administrator. U.S. EPA
Region III. 6th and Walnut Sts..
Philadelphia. PA 19106
Regional Administrator. U.S. EPA
Region IV. 345 Court^nd St., NE~
Atlanta. CA 30385
Regional Administrator. U.S. EPA
Region V, 230 S. Dearborn St..
Chicago. 1L 60604
Regional Administrator, U.S. EPA
Region VI. 1201 Elm Street, Dailas. TX
75270
Regional Administrator. U.S. EPA
Region VII. 324 East 11th Street.
Kansas City. MO 64106
Regional Administrator. U.S. EPA
Region VIII. 1860 Lincoln Street.
Denver. CO 80295
Regional Administrator, U.S. EPA
Region IX. 215 Freemont Street. San
Francisco. CA 9410S
Regional Administrator. U.S. EPA
Region X. 1200 Sixth Avenue. Seattle.
WA 98101
item 20. Facility Owner or Operator.
Certification of Receipt of Hazardous
Materials Covered by This Manifest
Except as Noted in Item 19
Print or type the name of the person
accepting the waste on behalf of the
owner or operator of the facility. That
person must acknowledge acceptance of
the waste described on the Manifest by
signing and entering the date of receipt.
Items A-K are not required by Federal
regulations for intra- or interstate
transportation. However. States may
require generators and owners or
operators of treatment, storage, or
disposal facilities to complete some or
all of items A-K as part of State
manifest reporting requirements.
Generators and owners and operators of
treatment, storage, or disposal facilities
are advised to contact State officials for
guidance on completing the shaded
areas of the Manifest.
BtLLUM COM (MO-mi-m
-------
Federal Register / Vol. 49. No. 55 / Tuesday. March 20.1984 / Rules and Regulations
10505
prim or type (Form d««nn»dtot utaon »lne |1I-9iiefi| lypewntw > For™ Aocrowt OMB No 3000 0*04 E.pim 7 3' 86
A UNIFORM HAZARDOUS
WASTE MANIFEST
(Continuation Sheet!
21. Generator'! US EPA 10 No. Manifest
|~
22. Page
Information in the shaded
areas is not required by Feoerai
law.
23. Generator'* Nam*
L Suite Manifest Decuman Number
M. State Generator') 10
24. Transporter Company Name 25. US EPA 10 Number
,
N. State Transport's ID
0. Transporter's Pr>one
26. Transporter Company Name 27. US EPA ID Number
1
P State Transporter* ID
0. Transporter's Phone
26. US DOT Description (Including Proper Shipping Homo. Hazard Clats. and 10 NumberI
29 Conti
Mn
insrs
10
Tot 31
C,;ani:w
31
Unit
ftL. Voi
a
WasisNo.
a.
! b.
(
1
1
I C.
1
o „.
*
E
ft
; •
*
i
9
h.
i.
S. Addition*: Oeacripflpw for MateMqUttad Above
T. Handling Codes 1or Wastes Listed Above
32. Special Handling Instructions end Additional Information
7
I 33. Transporter Ackrtowladgemerff of Recent of Materials
Da'e
* Printed/Typed Name
s
Signature
MoflTA Q4w 'fftr
I I
> 34. Transporter Acknowledgement of Receipt of Materials
Date
[ Printed/Typed Name
a
S.flrature
Mont* £tf f*Mf
I i
4 35. Discrepancy Indies lion Space
*
IP A form 3700-2ZA13-84)
KLLflW coot WO «0 C
-------
10506
Federal Register / Vol. 49. No. 55 / Tuesday. March 20. 1984 / Rules and Regulations
Instructions—Continuation Sheet. U.S.
EPA Form 8700-22A
Read all instructions before
completing this form.
This form has been designed for use
on a 12-pitch (elite) typewriter a firm
point pen may also be used—press
down hard.
This form must be used as a
continuation sheet to U.S. EPA Form
8700-22 if:
• More than two transporters are to be
used to transport the waste:
• More space is required for the U.S.
DOT description and related
information in Item 11 of U.S. EPA
Form 8700-22.
Federal regulations require generators
and transporters of hazardous waste
and owners or operators of hazardous
waste treatment, storage, or disposal
facilities to use the uniform hazardous
waste manifest (EPA Form 8700-22) and.
if necessary, this continuation sheet
(EPA Form 8700-22A) for both inter- and
intrastate transportation.
GENERATORS
Item 21. Generator's U.S. EPA ID
Number—Manifest Document Number
Enter the generator's U.S. EPA twelve
digit identification number and the
unique five digit number assigned to this
Manifest (e.g.. 00001) as it appears in
item 1 on the first page of the Manifest.
Item 22. Pone
Enter the page number of this
Continuation Sheet.
Item 23. Generator's Name
Enter the generator's name as it
appears in item 3 on the first page of the
Manifest.
Item 24. Transporter Company
Name
If additional transporters are used to
transport the waste described on this
Manifest, enter the company name of
each additional transporter in the order
in which they will transport the waste.
Enter after the word 'Transporter" the
order of the transporter. For example.
Transporter 3 Company Name. Each
Continuation Sheet will record the
names of two additional transporters.
Item 25. U.S. EPA ID Number
Enter the U.S. EPA twelve digit
identification number of the transporter
described in item 24.
Item 26. Transporter Company
Name
If additional transporters are used to
transport the waste described on this
Manifest, enter the company name of
each additional transporter in the order
in which they will transport the waste.
Enter after the word 'Transporter" the
order of the transporter. For example.
Transporter 4 Company Name. Each
Continuation Sheet will record the
names of two additional transporters.
Item 27. U.S. EPA ID Number
Enter the U.S. EPA twelve digit
identification number of the transporter
described in item 26.
Item 28. U.S. DOT Description Including
Proper Shipping Name. Hazardous
Class, and ID Number (UN/NA)
Refer to item 11.
Item 29. Containers (No. and Type)
Refer to item 12.
Item 30. Total Quantity
Refer to item 13.
Item 31. Unit (Wt./ Vol.)
Refer to item 14.
Item 32. Special Handling Instructions
Generators may use this space to
indicate special transportation,
treatment storage, or disposal
information or Bill of Lading
information. States are not authorized to
require additional, new. or different
information in this space.
« • « • •
TRANSPORTERS
It fin .'/J. Transporter
Ackniw/edfirtrirnt of Riiei/U of
Materials
Enter the same number of the
Transporter as identified in item 24.
Enter also the name of the person
accepting the waste on behalf of the
Transporter (Company Name) identified
in item 24. That person must
acknowledge acceptance of the waste
described on the Manifest by signing
and entering the date of receipt
Item 34. Transporter
Acknowledgement of Receipt of
Materials
Enter the same number as identified
in item 26. Enter also the name of the
person accepting the waste on behalf of
the Transporter (Company Name)
identified in item 26. That person must
acknowledge acceptance of the waste
described on the Manifest by signing
and entering the date of receipt
• • • • «
Owners and Operators of Treatment
Storage, or Disposal Facilities
Item 35. Discrepancy Indication Space
Refer to item 19.
Items L-R are not required by Federal
regulations for intra- or interstate
transportation. However. States may
require generators and owners or
operators of treatment storage, or
disposal facilities to complete some or
all of items L-R as part of State manifest
reporting requirements. Generators and
owners and operators of treatment,
storage, or disposal facilities are
advised to contact State officials for
guidance on completing the shaded
areas of the manifest.
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
8. The authority citation for Part 271
reads as follows:
Authority: Sections 1006. 2002 and 3006 of
the Solid Waste Disposal Act. as amended by
the Resource Conservation and Recovery Act
of 1976. as amended (RCRA) (42 U.S.C. 6905.
6912. and 6926).
9. Section 271.6 is amended by
revising paragraph (d) to read as
follows:
] 271.6 Program Description.
• I » « •
(d) Copies of the permit form(s),
application form(s), and reporting
form(s) the State intends to employ in its
program. Forms used by the State for
hazardous waste management need not
be identical to the forms used by EPA '
but should require the same basic
information, except that the State RCRA
program must require the use of EPA
Manifest forms 8700-22 and 8700-22A.
Where the State preprints information
on the Manifest forms, such forms must
be submitted with the State's
application for approval. Restrictions on
preprinting by the States are identified
in 40 CFR 271.10(h). Otherwise, the State
need not provide copies of uniform
national forms it intends to use but
should note its intention to use such
forms.
• • • • *
10. Section 271.10 is amended by
revising paragraph (f)(1) and adding
(h)(lHhj(3) to read as follows:
J 271.10 Requirements tor generators ot
hazardous wast*.
(fT * '
(1) Use a manifest system that ensures
that interstate and intrastate shipments
of hazardous waste are designated for
delivery, and. in the case of intrastate
shipments, are delivered to facilities
that are authorized to operate under an
approved State program or the federal
program. The manifest system must
include the use of Manifest form as
required by 8 262^0(a) and } 262.21. No
-------
Federal Register / Vol. 49. No. 55 / Tuesday, March 20. 3984 I Rules and Regulations
10307
other manifest forms, shipping
document, or information, other than
that required by federal law, may be
required by the State to travel with the
shipment.
• * * • •
(h) * * *
(1) A State that supplies the manifest
form required by § 282.20(a) may
preprint information on the form only as
follows:
(i) In items A and L a State Manifest
document number, (EPA Form 8700-22.
items A; EPA Form 870Q-22A. item L):
(ii) In items 11 and 28. a hazardous
materials (HM) column for use in
distinguishing between federally
regulated wastes and other materials
according to 49 CFR 172.201(a)(1);
(iii) Anywhere on the form, light
organizational marks to indicate proper
placement of characters or to facilitate
data entry;
(iv) Anywhere in the margin of the
form or on the back of the form, any
information or instructions that do not
require generators, transporters, or
owners or operators of hazardous waste
management facilities to supply
additional information;
(v) In item 18, reference to State laws
or regulations following the federal
certification; and
(vi) Abbreviations for headings in
State optional information spaces (EPA
Form 8700-22, items A-H; and EPA
Form 8700-22A. items L-Q).
(2) In addition to the federally
required information, both the State in
which the generator is located and the
State in which the designated facility is
located may require completion of the
following items:
(i) Stale manifest document number
(EPA Form 8700-22. item A; EPA Form
870O-22A item L);
(ii) For generators, State generator
identification numbers (EPA Form 8700-
22. item B; EPA Form 87QO-22A. item M):
(iii) For transporters, telephone
numbers and State transporter
identification numbers (EPA Form 8700-
22. items C. D. E and F; EPA Form 8700-
22A. items N, O. P and Q];
(iv) For owners and operators of
hazardous waste management facilities,
facility telephone number, and State
facility identification numbers (EPA
Form 9700-22, items C and H);
(v) Codes associated with particular
wastes (EPA Form 8700-22. item 1; EPA
Form 8700-22A. Item R);
(vi) Cades associated with particular
waste treatment, storage, or disposal
methods (EPA Form 8700-22. item K:
EPA Form 8700-22A. item T); and
(vii) Additional waste description
associated with particular hazardous
wastes listed on the Manifest. This
information is limited to information
such as chemical names, constituent
percentages, and physical state (EPA
Form 8700-22, item J; EPA Form 8700-
22A. item S).
(3) No State, however, may impose
enforcement sanctions on a transporter
during transportation of the shipment for
failure of the form to include preprinted
information or optional State
information items
* • t » •
in Onc it-nee fim 3-is-m. m
-------
RCRA REVISION CHECKUST 6
Permit Rules: Settlement Agreement
49 FR 17716-17719
April 24, 1984
(Non-HSWA Requirements Prior to Non-HSWA Cluster I)
STATE ANALOG IS!
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PART 270 - EPA ADMINISTERED PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT PROGRAM
SUBPART G-
INTERIM STATUS
QUALIFYING FOR INTERIM STATUS
failure to aualifv
270.70(b)
April 24, 1984 • Page 1 of 1
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17716
Federal Register / Vol. 49. No. 80 / Tuesday. April 24.1984 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 124 and 270
[SW-FRL 25M-S]
Hazardous Waste Management
System—The Hazardous Waste Permit
Program; Procedures for
Decisionmaking
agency: Environmental Protection
Agency.
action: Final rule.
summary: The Environmental Protection
Agency is today amending its hazardous
waste permit regulations. These
regulations were promulgated pursuant
to Subtitle C of the Resource
Conservation and Recovery Act (RCRA)
and were included in the Consolidated
Permit Regulations'(which have since
been deconsolidated). These
amendments will allow an owner or
operator of an existing hazardous waste
management facility who submits an
incomplete Part A of the RCRA permit
application to receive a notice of the
deficiency and an opportunity to cure (t
before being subject to EPA enforcement
for operating without a permit The
Agency is also amending the regulations
to require that if the Administrator
denies a request for a panel hearing on
an initial permit for an existing
hazardous waste management facility,
he must give his reasons for the denial.
Today's actions are prompted by a
settlement stipulation concerning these
issues in the NRDC v. EPA lawsuit on
the Consolidated Permit Regulations.
These amendments will not have any
economic impact on the regulated
community, nor will they have any
impact on public health or the
environment
datc These amendments are effective
October 24.1984.
FOR FURTH1R INFORMATION CONTACT
RCRA Hotline, toll-free at (800) 424-0346
or in Washington. D.C at 382-3000. For
specific information on these
amendments, contact Deborah Wolpe.
Office of Solid Waste (WH-863). U.S.
Environmental Protection Agency.
Washington. D.C 2048a (202) 382-2222.
SUPPLMMTAAY INFORMATIONS
I. Background
On Februazy-28.1980 and May 19.
198a EPA promulgated regulations
implementing Subtitle C of the Solid
Waste Disposal Act as amended by the
Resource Conservation and Recovery
Act as amended (RCRA), 42 U.&C. 8901
et seq. These regulations established the
first phsse of s comprehensive program
for the handling and management of
hazardous waste (40 CFR Parts 280-285.
45 FR 33088-33289). In addition, on May
19.1980. EPA promulgated the
Consolidated Permit Regulations
governing five permit programs. On
April 1.1983. the Consolidated Permit
Regulations were deconsolidated. Each,
permit program now appears in a
separate part of the Code of Federal
Regulations. The changes proposed
today concern only the RCRA portion of
the Consolidated Permit Regulations,
now codified at 40 CFR Part 270.
On May 10.1983. EPA proposed
amendments to the hazardous waste
permit regulations. 40 CFR Parts 270 and
124 (48 FR 21098). These proposed
amendments: (1) Ensure that owners
and operators of hazardous waste
management facilities are notified of
defects in Part A of their permit
applications and given an opportunity to
cornet these defects: and (2) set forth
conditions when a permit applicant may
request a hearing under Subpart F and
ensure that if the Administrator denies a
request for a panel hearing on an initial
permit he must give his reasons for the
deniaL
EPA has received a number of
comments on these amendments.
Almost all of the commenters strongly
support the amendments as they were
proposed. Therefore, today we an
promulgating these amendments in final
form and responding to questions and
comments raised on these issues during
the public comment period.
IL Faflma To Qualify for Interim Status
Because of an Incomplete Part A
An owner or operator of a hazardous
waste management (HWM) facility may
fail to qualify for interim status for any
of the following reasons which ere listed
in RCRA as prerequisites to qualifying
for interim status:
(a) The facility waa not in existence
on or before November 19.1980;
(b) The owner or operator failed to
comply with Section 3010 of RCRA (/.«.
failed to notify, if required): or
(c) The owner or operator failed to
aubait Part A of his permit application
on time.1
In addition, an owner or operator may
fail to qualify for interim ststus if he
foils to submit a complete part A permit
application. Section 27070 of the
regulations states that it upon
• Man to flla • tat A aa Hon may oat always
matt la a hflata la qoaliiy to tnMa rtataa. Tha
aswKyay.brwnpHanaawdarlMyaJBndw
Sacrioa SUM of ROA. attend tha data bf wfatefc fta
owoar or apantot of aa odsttag HWM hdlitjr aa?
tsboli tat A of Us panttt appUeattoo. aa m la
aa atattlaqr daad&aa to aataMtas dM paoaU
appHcirtaw (tea <0 CFR WUKamB.
examination or reexamination of a Part
A application. EPA determines that it
failed to meet the standards of the
regulations. EPA may notify the owner
or operator that the application is
deficient. Section 270J70 provides that
the result of such a determination is that
the owner or operator is not entitled to
interim status, and is subject to EPA
enforcement for operating without a
permit
On May 10.1983. the Agency
proposed amending 40 CFR 270.70 to
provide that before EPA determines that
Part A of a permit epplication is
deficient it will notify the owner or
operator in writing of the apparent
deficiency. The notice will specify the
grounds for EPA's belief that the
epplication is deficient end will give the
owner or operator 30 days from the date
of receipt to respond to the notification
and to explain or cure the deficiency. If.
after such notice and opportunity for
response. EPA still finds that the
application is deficient it may then take
appropriate enforcement action.
Hie proposed amendments were
prompted by a settlement stipulation
concerning this issue in the litigation on
the Consolidated Permit Regulationa.
NRDC v. EPA. No. 80-1807. and
Consolidated Cases (D.C Cir, filed June
2.1980).*
This proposal, however, merely put in
regulatory form what the Agency
believes is already standard operating
procedure with respect to deficient Part
A applications. EPA believes it is
reasonable to give permit applicants an
.opportunity to cure deficient
applications before interim ststus is
denied: and. in practice, does allow an
applicant to correct explain or resubmit
a Part A. if it is found deficient. This
amendment merely Includes these
procedures In the regulations. All but
two of the comments EPA received on
this amendment strongly supported
adopting it
One commenter suggested that the
' time limit of 30 days to correct
^rh«hm^i»« in Put A applications be
extended to 45 days. This, the
mmmntff clsiffietL would allow
complex fadlitiea adequate opportunity
for further contact with the Agency to
resolve uncertainties and submit a
complete application. We do not egree
that the addltionel 15 days la necessary.
Thirty days should be a more than
adequate time period to contact the
agency and correct or cure a Part A. Pert
'Farfcuha iHatiiail«iaffraMlflCr. SPA writ
aad tha aatfaaaai apaamnt AM oa tha RCRA*
nlatad laaan. aaa tha pnaaMa to *a ptopoaad
¦iimimI—»!¦ imi iwiim ilmaCMi ami cwililr>ilon
ersa»(jat]ra.issa.
-------
Federal Register / Vol. 49. No. 80 / Tuesday, April 24. 1984 / Rules and Regulations 17717
A's consist of straight-forward requests
for information which the applicant
should already have on hand, such as a
description of the processes to be used
for treating, storing, or disposing of
waste at the facility; the design capacity
of these processes; the location of the
facility, etc. An extra fifteen days is not
necessary for such information needs.
One commenter opposed any change
to 40 CFR S 270.70(b). The commenter
stated that such a change raises the
question of whether there are still
owners and/or operators who have not
Ailed out a proper Part A application.
The commenter was concerned that the
Agency is still looking through
delinquent Part A's to determine
deficiencies, rather than calling in Part
B's.
The Agency will always be receiving
Part A applications when we change the
regulations to regulate facilities that
may have originally been exempted
(e.g.. small quantity generators, new
wastes). Under these circumstances a
facility may still submit a Part A
application and may then qualify for
interim status if it was in existence on
November 19.198a
The promulgation of this amendment
does not affect the Agency's current
priority in permitting hazardous waste
facilities. Our priorities are still focused
on calling Part B's and issuing permits to
facilities as quickly as possible rather
than reviewing delinquent Part A
applications. However, since we may
always receive new or revised Part A's.
we believe today's change to 8 27070 is
reasonable both to put in regulatory
form what is already standard
procedure and to assuage the litigants'
concerns in this area.
QL Opportunity for a Hearing Prior to
Denial of an Initial Permit
On May 10.1983. EPA also proposed
amending 40 CFR 124.12 to provide that
during the 45 day public comment period
a permit applicant may request a panel
hearing pursuant to 1124.114 far initial
RCRA permits. Hie applicant must
explain in his request why he believe*
that the issues far which he requests •
hearing are genuine issues of material
fact He must also why these are
determinative issues. Le~ which an
likely to influence the outcome of one or
more contested permit conditions, and
which would require extensive changes
to the facility. If the regional
Administrator denies die request he
would have to send a brief written
statement to the applicant explaining his
reasons for that no
determinative issues have been
presented for resolution in a panel
hearing. The.basic reason for this
amendment is to provide setae
assurance that a panel hearing will not
be arbitrarily denied.
The petitioners in the NRDC lawsuit
raised several issues concerning a
hearing on the issuance or denial of an
initial RCRA permit They argued that
due process requires the opportunity for
a hearing in all cases before a permit is
denied for a facility operating under
interim status. In addition, they argued
that the imposition of extensive,
expensive conditions in a permit might
be tantamount to denial of a permit
therefore, a hearing should be available
in such situations as well They believed
that the existing regulations did not
provide for a hearing in all instances.'
It is EPA's position that formal
adjudicatory hearings are not required
for the issuance or denial of RCRA
permits; that an informal public hearing
plus the notice requirements currently in
the regulations are sufficient to satisfy
due process requirements.4 The current
regulations provide for notice of what
the Agency proposes to do. an
opportunity to challenge that proposal
both through written comments and
informal public hearing, a response to
comments, and a decision based on
administrative record. Section 7004(b) of
RCRA provides for an informal public
hearing upon receipt by the Director of a
written notice of opposition to the
Agency's intent to issue a RCRA permit
and of a request for such a hearing.
Petitioners also believed that the May
19.1980 regulations only gave a right to
a public hearing in situations whore EPA
proposed to issue a permit This was not
EPA's intent As clarified in
amendments promulgated on luly IB.
1981 (46 FR 38704). the Agency Intends
that the requirement to hold an informal
hearing (when one is requested) apply to
cases where the Agency has tentatively
decided to issue a permit The term
"draft permit" applies to both.
¦11m an turn typaa of hMriagi available
sadar Put 13*. Tbasa are (1) Public Haariag^
Mdk heeltap mm ba bald «km« tba Dtraetar
mM arttttaa ante* of apportion ta • RCRA
ana pmtMi fsomt iw • nswng wtms •
daya of pottle node* of the draft ponait 11n
Dtrectamy alaoboldtnchahaaftaf atUa
diau«Uuu._[8a«40Cra Mtiafc WMuHaiy
PartlHaiafaaaladwaartalbaaftneiBonitaittad
by o MHal oOoar ponaaat to tenalndaa of
practice tad (3) Ptat) tuariagt. Paaal baaftaga
aadar Subpart F of Part 134 an neoadvatalal
baarisfi bate* a praatdinf offlcar aad a paaal
caaatatbia of too or noto EPA aopioyooa having
spartil a*partaa or responsibility ta aitaa rtlatad
lo (ha iaaoaa bataadoddod. Mdaottaiy heeitagt
SMtMlwybsaSiy^^syoanfetaf la tfaa ftimil
Praoadna Ad Mile baaitBSi aia coaaMand
Infonaal baartna.
~8aa4SFR8X0> mil (May 18,1SS0V
Finally, the petitioners were also
concerned that in some instances, there
would be complicated factual issues t'
could be addressed better through a
formal, rather than an informal hearing.
As the regulations are currently written,
the Regional Administrator always has
the discretion to hold a formal panel
hearing. However, the petitioners
objected to a lack of assurance in the
regulations that they would receive a
written response to a request for such a
hearing, should the Regional
Administrator deny the request They
were concerned that there would be
situations where EPA and the permit
applicant would disagree about changes
necessary to bring the facility into
compliance with the regulations. In
situations where the Regional
Administrator proposes to issue e
permit but the epplicant disagrees as to
major permit conditions, the petitioners
want the opportunity for a panel
hearing.
As a matter of policy. EPA has
determined that permit applicants
should have an opportunity for a panel
hearing where there is a tentative
decision to deny the initial permit for an
existing facility, and where the
applicant and EPA disagree on major
conditions in the initial draft permit for
an facility. Today's final.
amendment to i 124.12(e)(2) pro vie
the assurance that a panel hearing wu.
not be arbitrarily denied.
All of the comments the Agency
received on this amendment urged that
the amendment be adopted as propc L
One commenter requested clarification
on an apparent contradiction as to
whether a panel hearing is considered a
formal or an informal hearing. The
i^imMiiiw claimed that footnote 5 of
the preamble in the proposed rule (43 FR
21000) states that panel hearings are
considered formal adjudicatory hearings
as they conform to the formal hearing
requirements of the Administrative
Procedure Act while the preamble
seems to indicate that the panel hearing
is considered an informal hearing. They
quote the following passages of the
preamble:
* * * the Agency intends that the
requirement to hold an ttfarmal hearing
(whan ana ia requested) apply to casaa w »
the Agency has tentatively decided to y a
permit es well es when the Agency has
tentatively decided to issue a permit (48 FR at
no—, emphasis added).
and later
As a matter of poUcy. EPA has determined
that permit applicants should hava the
opportunity (or a pone/ haorirg when tu^^
lontettvo decision to daay the initial
permit * * * (« FR 21IM. eraphaals added).
-------
17718 Federal Register / Vol. 49. No. 80 / Tuesday. April 24. 1984 / Rules and Regulations
This is not a contradiction. In the first
quota, we are simply explaining that an
informal hearing, /.&, a public hearing, is
all that is required to satisfy due process
requirements. In the second quote, we
are stating that over and above due
process requirements. EPA's policy will
be to allow permit applicants an
opportunity for a panel hearing when
there are factual issues which may be
addressed better through a formal, i.e.. a
panel hearing.
Another commenter has requested
that the Agency state clearly what the
proper procedure would be if a hearing
was requested and then denied. They
suggest that there should be
administrative recourse to the Regional
Administrator's decision.
If a hearing has been properly
requested under i 124.114. and the
Regional Administrator denies the
request the applicant will receive a
brief written statement of the Regional
Administrator's reasons for concluding
that no determinative issues have been
presented for resolution in a panel
hearing (see today's amendment to
S 124.12). The Regional Administrator
shall then prepare a recommended
decision under 8 124.124. Any person
whose hearing request has been denied
may then appeal that recommended
decision to the Administrator as
provided in 1124.91.
It should be noted, as it was in the
proposal (see 48 FR 21200), that in
circumstances where a permit haa been
appealed, and no formal bearing was
held, the Administrator may remand the
appeal to the Regional Administrator,
and direct the Regional Administrator to
hold a non-adversary panel hearing.
IV. Economic Impact
These amendments will not have any
economical impact on the regulated
community. As stated in the background
information, it is standard operating
procedure for the Agency to allow an
applicant the opportunity to correct
explain or cure an imcomplete Part A of
the RCRA permit Hie amendment to
S 270.70 therefore, does not change
anything but the regulatory language.
The amendment to f 12112(e) requires
the Regional Administrator to provide a
written reason for denying an
applicant's request for a formal
This change increaaes the paperwork of
the Regional Administrator, but does not
affect the regulated community.
V. Executive Older 12291
Under Executive Order 12291 (48 FR
12193. February 19,1981). EPA must
Judge whether a regulation is "Major"
and therefore subject to the requirement
of a Regulatory Impact Analysis. A
major rule is defined as a regulation
which is likely to result in
An annual effect on the economy of
$100 million or more;
A major increase in costs or prices for
consumers, individual industries.
Federal. State or local government
agencies or geographic regions: or
Significant adverse effects on
competition, employment investment
productivity, innovstion or on the ability
of United States-based enterprises in
domestic or expert markets.
This regulation is not major because it
will not result in an effect on the
economy of S1G0 million or more. It
merely provides some procedural
safeguards upon the failure to qualify for
interim status and the issuance or denial
of a RCRA permit There will be no
adverse impact on the ability of U.S.-
based enterprises to compete with
foreign-based enterprises in domestic or
export markets. These amendments are
not major regulations. Therefore, no
Regulatory Impact Analysis is being
prepared.
These amendments were submitted to
the Office of Management and Budget
for review as required by Executive
Order 12291.
VL Regulatory Flexibility Act
Under the Regulatory Flexibility Act 5
U.S.C. 601 et seq., EPA must prepare a
regulatory flexibility analysis for all
final rules to assess their impact on
small entities. No regulatory flexibility
analysis is required, however, where the
head of the agency certifieethat the rule
will not have a significant economic
impact on a substantial number of small
entities.
This regulation will not have any
economic impact on owners and
operators of hazardous waste
management facilities (including those
which an small entities). Accordingly, I
hereby certify, pursuant to S U.S.C.
' 601(b), that this final rule will not have a
significant economic impact on a
substantial number of small entities.
Dated: April 1& IMC
WlOIaa D. Rockelshaus,
Administrator.
List of Subjects
40 CFR Part 270
Administrative practice and
procedure. Air-pollution control.
Hazardous materials, Reporting and
record-keeping requirements. Waste
treatment and disposal Water pollution
control. Water supply, Confidential
business information.
40 CFR Pert 124
Administrative practice and
procedure. Air pollution control.
Hazardous materiala. Waste treatment
and disposal. Waste pollution control.
Water supply. Indians-lands.
40 CFR Parts 270 and 124 are amended
as follows:
PART 270—[AMENDED!
1. The authority citation for Part 270
reads as follows:
Authority: Sections 1006. :302(a). 3003. 3007
and 7004 of the Solid Waste Disposal Act as
amended by the Resource Conservation and
Recovery Act of 1978. as amended (RCRA)
(42 U.S.C 6901. 6913a). 0325. 6827 and 6974).
2. In Part 270. g 270.70 is amended by
revising paragraph (b) to read as
follows:
J 270.70 Quaflfytng for Interim status.
• • • • •
(b) Failure to qualify for interim
status. If EPA has reason to believe
upon examination of a Part A
application that it fails to meet the
requirements of I 270.13, it shall notify
the owner or operator in writing of the
apparent deficiency. Such notice shall
specify the grounds for EPA's belief that
the application ia deficient The owner
or operator shall have 30 days from
receipt to respond to such a notification
and to explain or cure the alleged
deficiency in his Part A application. If.
after such notification and opportunity
for response. EPA determines that (fee
application is deficient it may take
appropriate enforcement action.
PART 124—(AMENDED)
3. The authority citation for part 124
reads as follows:
Authority. Tha Resource Conservation and
Recovery Act 42 U.S-C. 8B01 et seq^ tha Safe
Drinking Water Act 42 U.S.C. 300(f) et seq»
tha dean Water Act B U.S.C. 1231 et sou-
ths dean Air Act 41 U.S.C. 1857 at seq.
4. In Part 124,1124.12 is amended by
reviaing paragraph (e) to read aa
follows:
§124.12 PuMe hearings.
(e)(1) At hiaor her discretion, the
Regional Administrator may specify that
RCRA or U1C permits be processed
under tha procedures in Subpart F.
(2) For initial RCRA permits for
existing HWM facilities. the Regional
Administrator shall have the discretion
to provide a hearing under the
procedures in Subpart F-Tfce permit
applicant may request such a hearing
pursuant to 1124.114 no one or more. *
-------
Federal Register / Vol 49. No. 80 / Tuesday, April 24. 1984 / Rules and Regulations
17719
issues, if the applicant explains in his
request why he or she believes those
issues: (l) Are genuine issues to material
fact: and (2) determine the outcome of
one or more contested permit conditions
identified as such in the applicant's
request that would require extensive
changes to the facility ("contested major
permit conditions"), if the Regional
Administrator decides to deny the
request he or she shall send to the
applicant a brief written statement of
his or her reasons for concluding that no
such determinative issues have been
presented for resolution in such a
hearing.
If* Ooc M-tOM* nted 4-a-Mt *41 «a|
¦LLMO COOS MMMI
-------
RCRA REVISION CHECKUST 7
Warfarin & Zinc Phosphide Listing
49 FR 19922*19923
May 10, 1984
(Non-HSWA Requirements Prior to Non-HSWA Cluster I)
ANALOGOUS
STATE ANALOG tS " "
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
8TRINQENT
IN SCOPE
PART 261 - IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
SUBPART D - USTS OF HAZARDOUS WASTE
DISCARDED COMMERCIAL CHEMICAL PROD
UCTS. ETC.
toxic *P" waste
261.33(e)
IS 261.33(e)
Hazardous
Waste No.
Substance
P001 3-(afpha-Aoetonylbenzyl)-4-hydroxycoumartn and salts, when present at
concentrations greater than 0.3%.
P001 Warfarin, when present at concentrations greater than 0.3%.
P122 Zinc phosphide, when present at concentrations greater than 10%.
DISCARDED COMMERCIAL CHEMICAL PRODUCTS. ETC.
toxic "U" waste
261.33(f)
6261.33(f)
Hazardous
Waste No.
Substance
U248 3-(alpha-Acetorryft>enzyl)~4-hydroxycoLimarin and salts, when present at
concentrations of 0.3% or less.
U248 Warfarin, when present at concentrations of 0.3% or less.
U249 Zinc phosphide, when present at concentrations of 10% or less.
May 10,1984 - Page 1 of 1
-------
19922 Federal Register / Vol. 49, No. 92 / Thursday, May 10. 1984 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Pari 261
[SWH-FRL 24M-1]
Hazardous Wast* Management
System; Identification and listing ol
Hazardous Waste
AOSNCY: Environmental Protection
Agency.
actioh: Final rule.
summary: The Environmental Protection
Agency (EPA) Is today amending its
regulations under the Resource
Conservation and Recovery Act to
change the hazard class under which
commercial chemical products
containing low concentrations of
warfarin and sine phosphide are listed.
Waste products containing either
warfarin at concentrations of 04* or
less, or zinc phosphide at concentrations
of 10% or less, are now listed as
hazardous wastes when discarded,
instead of acutely hazardous wastes.
This change has been made because
these lower concentration formulations
of warfarin and zinc phosphide do not
meet the criteria for classification at
acutely hazardous waste,
fpncnvt date November 12.1984.
ADomsstt: The public docket for thia
regulation is located In Room S-212A.
U.S. Environmental Protection Agency,
401M Street. SW„ Washington, 5-C.
20460, and is available for viewing from.
(WO am to 4:00 pm Monday through
Friday, excluding holidays.
KM njffTMKIt OffOHttATTOM CONTACT!
The RCRA Hotline at (600) 424-0346 or
at (202) 362-30001 For technical
Information contact Wanda LeBIen-
Biswas, Office el Solid Waste (WH-
562B). U.S. Environmental Protection.
Agency, 401M Street SW„ Washington,
D C 2046a (202) 382-409*
8UmmNTAIIY uvomsatkm:
L Background
Under the authority of Section 3O01 of
the Resources Conservation and
Recovery Act of 197B. as amended
(RCRA), the Agency promulgated, as 40
CFR 261-33 of ttte regulations, a tot of
rinmlial 5f
manufacturing chemical Intermediates
which are hazardous wastes if they are
discarded or intended to be discarded.
The phrase "commercial chemical
product or manufacturing chemical
intermediate" refers to • chemfcaJ
substance which is manufactured a
formulated for commercial or
manufacturing use, and which consists
of the commercially pure grade of the
chemical any technical grades of the
chemical that are produced or marketed,
and all formulations ia which the
chemical ia the sole active ingredient 40
CFR 281.33 also lists as hazardous
wastes off-specification variants and the
residues and debris from the clean-up of
spills of these chemicals, if discarded or
intended to be discarded (} 381.33 (fa)
and (d|). Finally, i 231.33 lists as
hazardous wastes the container*, or the
residues remaining in the containers, or
the inner liners removed from the
containers that have held those
chemicals listed in S 26143(e), if
discarded or intended to be discarded,
unless the containers or inner liners
have been triple-rinsed with aa
appropriate solvent, or have been
decontaminated in an equivalent
manner, or the inner linen have beea
removed. A chemical substance is listed
in 40 CFR 261.33(e), and ia subject to a
small quantity generator exclusion limit
of 1 kilogram per month. If it meets the
criteria of 9 261.11(a)(2); that is. ft ia
acutely hazardous because it has beea
shown in animal studies to have an oral
LDW (rat) toxicity value of less than 50
milligrams per kilogram, a dermal LD*,
(rabbit) toxicity value of less than 200
milligrams per kilogram, an Inhalation
LOM (tat) toxicity value of less than z
mg/L or is otherwise capable of causing
or otherwise significantly contributing to
serious Illness.
Chemical substances are liated In
12&L33(f), and an subject to the small
quantity generator exclusion Halt of
1000> kilograms par month.1 if they
satisfy 120121(a)(1), exhibiting
identified characteristics of EP taddty.
reactivity, carrosivity, or ignitaUBty; or
126112(a)(3). satisfying the criteria for
listing as toxic, £*. they have beea
shown in. scientific studies to be toxic.
nilijwil^ t—
le hi if* fine "*i»—1 wwitmIi or aquatic
animals, or to be phytotcodc.
The National Peat Control Asaoc£atian
(NPCA), Vienna. VA had petitioned the
Agency to exclude warfarin- and sine
pfc^pnlife containing
chemical products used for pest control
from the list of acutely hazardous
wastes. Petitions had also been received
from Sterling Drug Company, New York.
NY and the Ralston Purina Company. St
Louis. MO. requesting that certain
warfarin-containing products be
excluded.
¦ HPA pabUdjr osmlUad to wnato 4m tmalL
jbdJmcH—
nrlMliw Utt o « Ut«
-------
Federal Register / Vol. 49. No. 92 / Thursday. May 10. 1984 / Rules and Regulations 19923
phosphide at concentrations of 10% or
less as EPA Hazardous Waste No. U249.
As a result of today's action, the
concentration of warfarin or zinc
phosphide in a discarded commercial
chemical product becomes critical in
determining whether the waste is
regulated under S 281.33 (e) or (f). In
interpreting today's regulation. EPA
intends that the generator shall measure
the concentration in the waste resulting
from the intended use (e.g.. application
strength pesticide solutions remaining in
the application tank) rather than the
initial concentration in the purchased
product (unless, of course, the product
itself is discarded). Any dilution or other
adulteration of discarded products for
the purpose of reducing the
concentration of warfarin or zinc
phosphide, however, is hazardous waste
treatment (it is "designed to change the
' * * chemical character * * * of * * *
the hazardous waste so as to neutralize
such waste or so as to render such
waste nonhazardous * * * (see RCRA
Section 1004(34))) and is subject to the
permit requirements of Subtitle C
IV. Effective Oat*
Section 3010(b) of RCRA provides that
EPA's hazardous waste regulations and
revisions to the regulations take effect
six months after promulgation.
Therefore, this amendment will take
effect November 12.1984.
V. Regulatory Impact '
Under Executive Order 12291. EPA
must judge whether a regulation is
"major" and therefore subject to the
requirement of a Regulatory Impact
Analysis. This final regulation is not
major because it will not result in an .
effect on the economy of $100 million or
more, nor will it result in an increase in
costs or prices to industry. In fact this
regulation will reduce the overall coats
and economic impact of EPA's
hazardous waste management
regulations. There will be no adverse
impact on the ability of United State*
based enterprises to compete with the
foreign-based enterprises in domestic or
export markets. Because this
amendment is not a major regulation no
Regulatory Impact Analysis is being
conducted.
This amendment was submitted to the
Office of Management and Budget
(OMB) for review as required by
Executive Order 12291. Any comments
from OMB to EPA and any EPA
response to those comments are
available for public inspection in Room
S-212A at EPA.
VL Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act 5 U.S.G 601 at seq.. whenever an
agency is required to publish a general
notice of rulemaking for any proposed or
final rule, it must prepare and make
available for public comment a
regulatory flexibility analysis which
describes the impact of the rule on small
entities (/.a- small business, small
organizations, and small governmental
jurisdictions). The Administrator may
certify, however, that the rule will not
have a significant economic impact on a
substantial number of small entities.
This amendment will generally have
no adverse economic impact on small
entities (as defined in the Regulatory
Flexibility Act). Rather, since small
pesticide applicators will now not have
to dispose of small quantities of certain
waste zinc phosphide or warfarin
pesticides as hazardous wastes, today's
action will result in a savings to small
business. Accordingly. I hereby certify
that thia proposed regulation will not
have a significant economic impact on a
substantial number of small entities.
This regulation therefore does not -
require a regulatory flexibility analysis.
VIL Paperwork Badurtinn Act
This rule does not contain any
information collection requirements
subject to OMB review under the
Paperwork Reduction Act of 1980,44
U.S.C. 3501 at teq.
VOL List of Subjects in 40 CFR Part 261
Hazardous materials. Waste
treatment and disjtosal. Recycling.
Dated: May 3.1984.
WUDam D. KnckeUhaus.
Administrator.
For the reasons set out in the
preamble. Title 40 of the Code of Federal
Regulations is amended as follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 281
reads as follows:
Authority; Sec*. 1006. 2002(a). 3001. and
3002 of the Solid Waste Disposal Act as
amended by the Resource Conservation and
Recovery Act of 1976. at amended (42 U.S.C.
6903.6912(a). 6821 and 6922).
2. Section 281.33(e) is amended by
revising the listings for warfarin. 3-.
(alpha-acetonylbenzyl)-4-
hydroxycoumarin and salts, and zinc
phosphide to read as follows:
3. Section 281.33(0 is amended by
adding the following substances:
httireei
« eon
aa»«M
VMM). «hai j in
ia«
urn m mm.
&¦ gaaiM «mi
pnaaM
mm* tneiM
-------
RCRA REVISION CHECKUST 8
Lime Stabilized Pickle Liquor Sludge
49 FR 23284-23287
June 5, 1984
(NorvHSWA Requirements Prior to Non-HSWA Cluster I)
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
^OUTV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PART 261
- IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
SUBPART A - GENERAL
DEFINITION OF HAZARDOUS WASTE
waste pickle liquor
sludoe
261.3(c)(2)
June 5, 1984 • Page 1 of 1
-------
23284
Federal Register f VaL 49, Wo. 109 / Tuesday, |une 5. 1364 / Rules and Regulations
ENVIRONMENT At PROTECTION
AGENCY
40 CFR Part 261
(SWH-fBL 2564-3]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Wast*
AOIMOn Environmental Protection
Agency.
Acnote Final rule.
summaiiv; The Environmental Protection
Agency (EPA) is today amending the
regulations for hazardous waste
management under the Resource
Conservation and Recovery Act by
exempting lime stabilized waste pickle
liquor sludge generated from the iron
and steel Industry (Standard Industrial
Classification Codes 331 an£ 332) from
the presumption of hazardousness
presently contained in the regulations.
These wastes may still be hazardous,
however, if they exhibit any of the
characteristics of hazardous waste. EPA
is taking this action in response to
comments to an interim final rule and to
a rulemaking petition submitted by the
American Iran and Steel Institute {AISI).
The effect of this amendment is to
reduce or eliminate the regulatory
requirements applicable to those
individuals who generate and manage
these wastes and now comply with the
requirements of the hazardous waste
management regulations.
Dates: Final rule effective December 5.
1884.
adoksssss: The public docket for this
final rale is located in Room S-Z12. U.S.
Environmental Protection Agency. 401M
Street SW„ Washington, DXL. 2046(1
and is available for viewing from feOO
aJn. to 44)0 pA, Monday through
Friday, excluding legal holidays.
FonnnmtmiNFOftMATioii contact:
RCRA Hotline, toll free at (800) 424-6346
or (202) 383-3000. For
information contact Jacqueline Sales*
Office of Solid Waste (WH-SQ2B). U.S.
Environmental Protectioa Agency. 401M
Street. SW.. Washington. D.C. 204H0.
(202)382-4770.
summxTAJiv hnmutiok
I. Background
The regulations implementing the
hazardous waste management system
under Subtitle C of the Resource
Conservation and Recovery Act (RCRA)
an published In Title 40 of the Code of
Federal Regulations (CFR) in Parts 280
to 206.124, and 270 and 271. These
regulations include lists of hazardous
wastes (40 CFR 2BL31 to 28L33) and. aa
originally promulgated, included two
wastes from steel finishing operations:
(1) Spent pickle liquor from steel
fnuhing operations (K062) and (2)
sludge from lime treatment of spent
pickle liquor from steel finishing
operations (K063). (See 45 FR 33123.
May 19.198a)
Spent pickle liquor (K062) is a strongly
acidic solution generated from a process
that removes oxide scale from steel
surfaces. These wastes commonly
contain high levels of hexavalent
chromium and lead. The sludge from
treatment of spent pickle liquor (K083) is
generated by a well knows technique
involving lime neutralization
Sacculation, clarification, and. in most
cases, dewatering of the resultant
sludge. Sludge generated from this
treatment process is generally landfilled:
thus, the Agency was concerned that
high levels of lead and hexavalent
chromium could migrate from these
wastes, persist in the environment, and
result in contamination of drinking
water sources. EPA's compendium of
damage incidents contains several cases
of environmental damage resulting from
land disposal of inadequately
neutralized spent pickle liquor sludge.
(See Background Document to wastes
K0B2 and K083, May 2.1980.)
During the comment period on the
May 1980 rules, the Agency received a
number of comments requesting that
lime stabilized waste pickle liquor
sludge (LSWPLS)1 be removed from the
list of hazardous wastes. In particular,
the American Iron and Steel Institute
(Ad) presented limited data to the
Agency which indicated that the toxic
constituents of concern, hexavalent
chromium1 and lead, are present tn the
Extraction Procedure (EP) extracts at
lavala well below the maximum BP
toxicity limits. '
On November 12.1990, in response to
these comments, the Agency deleted
LSWHJB (K063) from the hazardous
waste list However, at that time, die
Agency felt that ineuffidimt data was
setraittad by the refute ted community
to justify a conclusion (hat LSWPLS
typically and frequently will not be
hazardous. Therefore, the Agency relied
on the provisions of 40 CFR 281J (c)(2)
to retain regulatory control. These
sludges are considered to be hazardous
'Um aiabiBttd mati pkUt Uqoor tMp "as
srigfaaB? nfaiad to at Hm seatttlhad waste
ptdda liquor atadie howwar. we bateia that the
>.nn..|if ."batttrdhacacMmtha
*Oo October JO. UNO. tfea Ajtacy inwwhd (hi
batia far Banal Ihne wum to tedkata thai they
an UMd te (a d» pmam oftwuntm
I'hiiwilua nlfaar than total chromium. 8« U F*
under that provision because they are
derived from the treatment of a listed
hazardous waste (K082). (See 40 CFR
281.3(c)(2).) In addition, they remain
hazardous wastes until they no longer
exhibit any of the characteristics of
hazardous waste and until they are
excluded from Subtitle C regulation by
the Agency on a site-specific basis
under 40 CFR 2S0£0 and 280.22. (See 40
CFR 281.3(d).)
Of major concern to the Agency was
whether these sludges would leach
significant concentrations of lead and
hexavalent chromium. Thus, in
evaluating exclusion petitions, we
indicated that we would consider
petitions for individual facilities for
these wastes to be adequate if
petitioners demonstrate that the
concentrations of lead and hexavalent
chromium in the EP extracts are
significantly below the maximum and
proposed maximum concentration levels
contained in 40 CFR 261.24 (See 45 FR
74888, November 12.1980). in addition.
EPA indicated that the Agency would
consider an industry-wide rulemaking
petition to exclude these wastes from
RCRA Subtitle C jurisdiction if the steel
finishing industry submitted
representative data which demonstrated
that these wastes, on an industry-wide .
basis, are non-hazardous. (See 43 FR
74886k November 12.1980.)
U. Reaaoa and Basis for Today's
Amendment
On March IS. 1981, AISI submitted a
rulemaking petition requesting an
industry-wide exclusion of LSWPLS.
AISI submitted EP extract data from 14
steel finishing operations to support
their claim tint hexavalent chromium
and lead an present in the LSWPLS at
low levels and in essentially an
immobile form.
All analyaea wen performed using the
EPA Extraction Procedure (40 CFR Part
281. Appendix QV AISI claims that the
data submitted wen representative of
sludges generated from both carbon
tied and stainless steel finishing
operations. The wastes included in the
survey -wen collected from several
stages in the treatment process. For
example, several samples wen obtained
from treatment plant clarifiers after
neutralization, and from sludge holding
Impoundments. Additional samples
Included vacuum filter sludges. Of the 59
samples analyzed, average hexavalent
and lead concentrations from
carbon steal manufacturing were 0.025
and 0.10 ppm. respectively, with a
MvhiMf— eingle value of OJXSO ppm for
hexavalent chromium and 0-60 ppm for
lead; for stainless steel manufacturing.
-------
Federal Register / VoL 49. No. 109 / Tuesday, June 5. 1984•/ Rules and Regulations
23285
the results were an average hexavalent
chromuim and lead concentration of 0.10
and 0.07 ppm. respectively with a
maximum single value of 0J22 ppm for
hexavalent chromium and 1.04 ppm for
lead (see Table 1).3 Therefore. A1SI
argued that both hexavalent chromium
and lead are present In the waste in
essentially an immobile form, and
should not automatically be deemed
hazardous.
Tabu i—Ume Stabilized Waste Pickle
UquorSluoge
[EP ttiet "ttuM Qpnq) *
Uod
HcavMrt
C.YORMOI
<0.030
0.039
0.0037
0.04
<042
CJ7
0.15
0J0
0.12
049
<0.10
0.069
0.10
0.19
0.069
0.006
9j.
(LIS
¦
y
•
o
0.023
4n
0.127
* Thm Miun ftpvttnt m mmi of tf avnpfet
^
mBf.
Soma: AM naamMng eMMn.
However, the Agency did not view the
data submitted in AlSTs petition (EP
data on LSWPLS from 14 plants) as a
representative sampling of the steel
finishing industry.4 The Agency,
therefore, investigated additional
available data. This investigation
included a detailed review of site-
specific delisting petitions submitted by
the iron and steel industry to exclude
spent pickle liquor (K062) or sludge from
Ume treatment of spent pickle liquor
(formerly K083). The particular focus of
our review was die level of hexavalent
chromium and lead in the EP extracts.
Maximum EP extract levels of Z& and
1 J) ppm for lead and hexavalent
chromium, respectively, were noted (see
Table 2). In all cases. the
leachate values for hexavalent
chromium and lead are well below the
maximum permissible EP toxicity limits.
For example. 94 percent of all samples
(185) analyzed for lead from EPA's
database are less than 10 times the
National Interim Primary Drinking
Water Standard (NIPDWS) while
greater than 97 percent of all samples
•Hie lavab of total cfaraataB la iba EP axsaoa
«in also aaaljnad aad la gasanl am quit* low.
Hownrw, tiaoa tha EP toxicity efeaiaetartstie
«ddi»M»» tottl chromium. LBWPL3«rtiich fail* 4m
'Fnm (ha 8actfoe J010 aotificatiaB databaaa aad
data aoUactad by Ihi BIBaaat Gaidaliaaa OlvtsiocL
tfca Agaacy aattaataa that approjdmataljr 4M
fadlitlaa" troa away taduany cawgortai attbar
pawn or managa LSWPLS.
(72) analyzed for hexavalent chromium
are less than 10 times the NIPDWS for
total chromium. These data support
AISTs contention that lead and
hexavalent chromium are substantially
immobilized in properly stabilized
LSWPLS. Furthermore, since Ume
stabilization of spent pickle liquor
within the iron and steel industry is
conducted using a well known uniform
treatment process, the Agency has
concluded that data from both the A1S2
petition (14 facilities) and delisting
petitions (43 facilities) are
representative of the steel finishing
industry.
Table 2.—Iron and Steel Industry, Umh
neutralized Waste Pickle Liquor Sujoge
(B»anaamuatppm]>
i=aeat,
Laad
HnanaMn
cftrmum
' aso
US
aao
OAS
0l4S
0.0*
040
0.0»
1.20
1.00
OAS
air
oas
asr
1.00
us
OJO
0.147
aso
aoa
1.70
OJM
0.10
0.10
aos
0.10
(LOS
0.10
007
OOI
OM
OuOl
ta
ouoa
OlOS
0
am
JOBS
QyQ3|
&0SI
9* .
«
em
M
1JB0
OjOS
aos
an
ouoi
0M0
ait
OuB*
140
030
OM
OM
an
aoa
•*
*¦
••
•*
OSS
04I
Wt
OlSI
OLtl
Industry Categories Other Then 1 and
Steal
As stated eeriier, LSWPLS is also
generated by industries other than to
iron and steel industry {e&, engrai^^
fabricated metal products, honseho^
appliances. commercial treatment
facilities, and others). Although the
-------
23286
Federal Register / Vol. .49. No. 109 / Tuesday. June 5. 1984 / Rules and Regulations
Agency has determined that treatment
of spent pickle liquor from the iron and
steel industry is typically effective, this
may not be the case for LSWPLS
generated from other industry
categories.
The Agency lacks comprehensive,
industry-wide data on these other
sludges and also does not have data on
whether wastes with interfering
properties might be commingled with
these sludges. The iron and steel
industry likewise has clarified^hat its
petition has no applicability for LSWPLS
generated by plants outside the iron and
steel industry. Thus, the Agency will
continue to process delisting petitions
for LSWPLS that is generated in
industries other than iron and steel on
an individual basis. (See 40 CFR 260.20
and 280.22.)' It should be noted that no
commenters to the Agency's January 4
notice argued that LSWPLS from other
industry categories should be excluded
from 8 281J.
IV. EPA's Concern With die Presence of
Additional Toxic Constituents in
LSWPLS
As discussed earlier. LSWPLS is listed
as hazardous because of the presence of
significant concentrations of hexavalent
chromium and lead. However, the'
Agency was also concerned that the
waste may contain toxic constituents
other than hexavalent chromium and
lead at levels of regulatory concern.
Therefore, we did investigate whether
other toxicants could be present in these
wastes at significant levels to determine
whether we should amend the existing
listing for spent pickle liquor (/a, to
modify the listing of LSWPLS to add
other toxic constituents to Appendix
VII). As we noted In the January 4'
notice, the toxic metal nickel is present
in LSWPLS from stainless steel
operations (it is an essential Constituent
in the process), and is present in the EP
extract from stainless steel LSWPLS.
The Agency is continuing to evaluate
•Tha Ajnq is now avabattas &a (aOovtag
dattfttag patlttoaa for L8WPU froai pints MttUa
at tha iron and *taal luduatiy. Ltgprtt S Piatt. toe.
(•01B1): ChamHna Corp. (*01SQt Anariaaa
Nfckakrtd Co. RotMrtsaa. bo. («a»k
Cahrtn had. (*tmOfc IJqtrid Ojroaalai (««»>
National Standard (*0324): Cuiaial Bactric
(•GMT* Baacfe Aircraft Corp. («OH7); Ccavantaa
Systama. lac. (aotMfe CMC Hantaan Radiator
(•004): SpacUl Matais (eon): Clianaw Hangar
Co. [*0«S); Traa Taapar Soort. lac. (•0(31); Steal
Warabowa Co. |«imot MOBS Automate!* (tmifc
H. H. Robartaea Co. (*001): CWM ("ONI);
Tafadyna Moaaicb Robhar |
-------
Federal Register / Vol. 49. No. 109 / Tuesday, June 5. 1984 / Rules and Regulations
23287
of Part 281. Hie Agency is amending
S 281.3(c)(2) of the regulations to
indicate this change. The following site-
specific delisting petitions submitted to
the Agency to exclude LSWPLS from the
iron and steel industry will therefore
become moot by today's final rule:
iron amo Steel industry
PlltUII NO.
0906.
0120.
0771 _
0027.
0228.
0014.
0475.
0097.
0090.
0348.
0106.
0113.
0423-
0117-
0814-
043S-
0482-
01C3-
0296-
0138.
0029.
0038.
0081.
0073.
FaoMy
U.S. SiM Coifl.
<*nw»iMtf St—iCa.
UnonCMM.
Jonmon SlMI 8
OSnCam
ttywi Ludknt
K»|llBn» Qraupi
SMWwt SlMI CoipL
Jonn A UugMn St**
TManCa
OumiCap.
Trm* Tuft*
ONo Stan Ti4» Co.
MUAMmi ftWeMng Ca
(ngns* Jgmaon M Co.
M Tadi Spmoy SM Ca»
ine.
Kartiona Qraup.
Oho SMI Tub* Gai
AHMCatne.
VIL Procedural Issues
EPA is issuing this regulation as a
final rule. Hie action is taken in
response to comments on the May IB..
1980 interim final rule listing LSWPLS as
a hazardous waste. The Agency also
noticed AISTi responsive rulemaking
petition for public and tout
public comment o»the information it
gathered between 1881 and the present.
Under these circumstances, the Agency
believes there has been ample notice
and comment on this action.
VUL Regulatory Impact
Under Executive Order 12291, EPA
must judge whether a regulation is
"major" and therefore subject to the
requirement of a Regulatory Impact
Analysis. This final regulation is not a
major rule because it will not result in
an effect on the economy of S100 million
or more, nor will it result in an increase
in costs or prices to industry. In fact this
regulation will reduce the overall costs
and economic impact of EPA's
hazardous waste management
regulations. There will be no adverse
impact on the ability of U.S.-based
enterprises to compete with foreign
based enterprises in domestic or export
markets. Beuuse this amendment is not
a major regulation, no Regulatory
Impact Analysis is being conducted.
This amendment was submitted to the
Office of Management and Budget
(OMB) for review as required by
Executive Order 12291. Any comments
from OMB to EPA and any EPA
response to those comments are
available for public inspection in Room
S-212 at EPA Headquarters.
EX. Regulatory Flexibility Act
Pursuant to die Regulatory Flexibility
Act S UJLC 801 et89q* whenever an
agency is required to publish general
notice of rulemaking for any proposed or
final rale, it must prepare and make
available for public comment a
regulatory flexibility analysis which
describes the impact of the rule on small
-entities (/.e, small businesses, small
organizations, and small governmental
jurisdictions). The Administrator may
certify, however, that the mis will not
have a significant economic impact on a
substantial number of email entities.
This amendment will generally have
no advene economic impact on small
entitles. Accordingly. I hereby certify
that this regulation will not have a
significant economic impact on a
substantial number of small entities.
This regulation therefore does not
require a regulatory flexibility analysis.
List of Subjects in 40 CFR Part 281
Hazardous materials. Waste
treatment and disposal and Recycling.
Dated: May 30.1984.
William D. Ruckalshaos,
Administrator.
PART 281—(AMENDED)
For the reasons set out in the
preamble. 40 CFR Part 281 is revised as
follows:
1. The authority citation for Part 261
reads as follows:
Authority: Sees. 1008.2002(a), 3001. and
3002 of the Solid Waste Disposal Act as
amended by the Resource Conservation and
Recovery Act of 1978. as amended [42 U.S.C.
6906.8912(a), 6921, and 0622J.
2.40 CFR 281.3 ia amended by revising
paragraph (c)(2) to read as follows:
12813 Definition of hazardous waste.
• • • • •
(«)•*•
(2)(i) Except as otherwiae provided in
paragraph (c)(2)(ii) of this sectioa any
solid waate generated from the
treatment storage, or disposal of a
hazardous waate. including any sludge,
spill residue, ash. emission control dust
or leachate (but not Including
precipitation ran-of!) ia a hazardous
waate.
(ii) The following solid wastes are not
hazardous even though they are
generated bom the tteetment storage, or
disposal of a hazardous waste, unless
they exhibit one or more of the
characteristics of heiardoue waste; (A)
Wsste pickle liquor sludge generated by
Ume stabilization of spent ptckle liquor
from the iron and steal Induscy (SIC
codes 331 and 332).
-------
RCRA REVISION CHECKUST 9
Household Waste
49 FR 44978*44980
November 13, 1984
(Non-HSWA Cluster I)
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
^OUJV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PART 261
- IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
SUBPART A - GENERAL
EXCLUSIONS
household waste
WMbM)
Also note the amendment to §261.4(b)(1) on July 15, 1985 (50 FR 28743) addressed In Revision
Checklist 17 C.
November 13, 1984 - Page 1 of 1
-------
44978 Federal Register / VoL 49. No. 220 / Tuesday. November 13, 1984 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
IFRl 2664-1)
Hazardous Waste Management
System; Identification and Listing ot
Hazardous Waste
AOKNCY: Environmental Protection
Agency.
action: Final rule and denial of
rulemaking petition.
summary: The Environmental Protection
Agency (EPA) is today amending the
hazardous waste management
regulations under the Resource
Conservation and Recovery Act of 1976
(RCRA), by expanding the household
waste exclusion to include wastes from
bunkhouses. ranger stations, crew
quarters, campgrounds, picnic grounds,
and day-use recreation areas. The
Agency is also publishing its denial of a
rulemaking petition, by the American
Retail Federation, to exempt from RCRA
regulation wastes from "consumer-
household products" which have left
manufacturer controL This action is in
response to petitions submitted by the
U.S. Department of Agriculture, the U.S.
Department of the Interior, and the
American Retail Federation.
OATH: Final rule effective May 13.1985.
AOORtSSCS: The public docket for this
final rale is in Room S-212, U.S.
Environmental Protection Agency, 401M
Street SW. Washington, D.C 20460 and
is available for viewing from MO ajn. to
4:00 pan. Monday through Friday,
excluding legal holidays,
roit nnrmm information contact:
RCRA Hotline, toll free at (600) 424-9346
or in Washington. D.C. at 382-8000. For
technical Information, contact Susan
Bromm. Office of Solid Wast (WH-
562B), U.S. Environmental Protection
Agency. 401M Street SW, Washington,
D.C 2046a (202) 382-4770,
IUMIIMINTART BffOWATIOIC
L Background
The regulations implementing the
hazardous waste management system
under Subtitle C of the Resource '
Conservation and Recovery Act of 1976
(RCRA). as amended, are published In
Title 40 of the Code of Federal
Regulations (CFR) in Parts 260 to 268,
270,271. and 124. These regulations
include a list of solid wastes which are
not defined as hazardous wastes and
thus, are not subject to the Subtitle C
requirements. Included In this list of
exclusions is "household waste" (40
CFR 2814(b)(1)). In die Federal Register
of May 19.1980 (45 FR 33120). the
Agency characterized this provision as
an exclusion of a waste stream—namely
"household waste"—when generated by
consumers. EPA excluded household
wastes because the legislative history of
RCRA indicated an intent to exclude
such wastes, though not because they
necessarily pose no hazard (see Senate
Report No. 94 088.94th Cong* 2d Sess..
at 16 (1976)). Since the wastes generated
at hotels and motels are essentially the
same as those generated by consumers
in their households. EPA decided that
such wastes should also be within the
exclusion. In response to comments to
its original proposal of the hazardous
waste regulations. EPA also indicated
that Federal agencies could not as a
class, qualify as households. Therefore,
the regulations as promulgated did not
categorically exclude Federally owned
facilities from regulation under this
provision (see 45 FR 33099, May 19,
1980).
IL Reason and Basis for Today's
A mendment
The Agency received three rulemaking
petitions concerning this exclusion. In
their petitions, the U.S. Department of
Agriculture and the U.S. Department of
the Interior requested that EPA expand
the existing household waste exclusion
to include "household type wastes"
generated at federally owned
campgrounds, picnic grounds, an
administrative sites. The petitioners
claimed that wastes generated from
these types of Federal facilities are
essentially the same as those generated
by consumers in their households, and .
those generated by hotels and motels. In
its petition, the American Retail
Federation (ARF) requested that EPA
exempt "consumer-household products" ¦
which have left manufacturer control
whether In the hands of households.
retailers, transporters, or landfill
operators.
On February 15.1983, EPA responded
by proposing to (1) amend the household
waste exclusion to expressly include
wastes generated at bunkhouses, ranger.
stations, craw quarters, campgrounds,
and picnic grounds in response to the
petitions from the Departments of
Agriculture and Interior and (2) deny
ARTs petition. In ths proposal EPA
explained that based on legislative
history. It waa appropriate to apply two
criteria to define the scope of the
exclusion. First the waste must be
generated by individuals on the
premises of a temporary or permanent
residence for individuals; that is, a
household. Second, the waste stream
must be composed primarily of
materials found in the wastes generated
by consumers in their homes. In EPA's
view, a' waste stream satisfying both
criteria is a household waste for
regulatory purposes. Under these
criteria, ownership of the source (/.e-
Federal vs. non-Federal) does not
determine whether the source is covered
by the "household waste exemption."
Since bunkhouses (relatively
permanent multiple residences), ranger
stations (relatively permanent single
residences), and campgrounds and
picnic grounds (temporary residences)
all generate wastes similar to wastes
generated by consumers in their homes.
EPA proposed to add these facilities to
the household waste exclusion.
Likewise, single and multiple residences
on military installations generate wastes
similar to those generated by consumers
in their homes, so EPA proposed to
exclude them as well
In contrast waste from
establishments such as retail stores,
office buildings, restaurants, and
shopping canters do not meet the two
criteria: They do not serve as temporary
or permanent residences for individuals,
and the waste generated at these
establishments are not necessarily
similar to wastes generated by
consumers hi their homes. Therefore.
EPA proposed that ARTs petition be
denied.
m. Final Rule sod Denial of Petition for
Buhaildi>|
EPA received five comments on the
proposed rule and tentative
determination. After carefully
^iwfMyrlng rfunyi comments, EPA
'' decided to promulgate the amendments
to the household waste exclusion aa
. they wen proposed (with one addition)
. and to deny ARTs petition. The basis
tor the Agency's action is explained in
Sections 0 and IV of this preamble end
- in the February 15,1983, proposaL
• In addition. In ths course of
developing this final regulation. EPA has
determined that there is no basis for
extending the household waste
exclusion to wastes such ss debris
¦ produosd during building construction,
renovation, or demolition in houses, or
other residences, ss EPA does not
consider wastes from these sources to
be similar to those generated by a
' consumer In the home In the course of
daily living. Thsrefbre, such wastes
must be evaluated on the same basis as
all other solid wastes which, if found to
be hazardous, are subject to the
hazardous waste regulations (or to the
Small quantity generator exclusion, if
applicable).
-------
Federal Register / Vol 49. No. 220 / Tuesday, November 13, 1984 / Rules aruf Regulations 44979
IV. Major Comments on Proposed Rule
and Tentative Response
EPA received five comments on this
proposal, four of which favored the
proposal. A commenter suggested that
CPA amend the wording ofthe
household waste exclusion to include
"day-use recreation areas." This tens
would refer to all types of recreation
areas (such as fishing access areas,
hunting access areas, boat launching
areas, off-road vehicle areas, swimming
areas, trail systems, field sports areas,
swimming pools, golf courses, and
tennis courts). The commenter's
rationale is that areas such as these
contain sanitary facilities which
generate "household waste" (garbage,
trash, and sanitary wastes in septic
tanks). We agree with this suggestion,
since it meets the two criteria which
form the basis of this amendment Thus,
we are amending the final rule to
exclude any waste material (including
garbage, trash and sanitary wastes in
septic tanks) derived from households,
including single and multiple residences. -
hotels and motels, bunkhouses, ranger
stations, crew quarters, campgrounds,
picnic grounds, and day-use recreation
anas (emphasis added).
One commenter suggested that EPA
amend the rule to state that the
exclusion does not apply to hazardous
waste from maintenance and
construction facilities often associated
with parks, campgrounds, stations, etc.
Although EPA believe* it is not
appropriate to attempt to specify in the
rule itself what Is not covered by the
exclusions, it is clear that the exclusion
only extends to those areas of
administrative sites serving as
temporary or permanent residences and
not to any non-residential areas of such
facilities es these areas do not meet
either of the two criteria, namely they
are neither residences nor do they
necetsarlly^enerate consumer type
household wastes. Another commenter
suggested that the Agency modify the
exclusion to cover Bald offices and work
centers where "normal household
products are used to mitntain the
facility." EPA does not believe such as
extension of the exclusion is sppropriate
because such offices and centers do not
serve as residences, and thus do not
qualify for this exclusion.
One commenter disagreed with EPA's
proposal to deny the ARF petition. This
commenter stated that the household
waste exclusion should apply to
"consumer-household product" wastes
of any origin because they feel that EPA
has not established that such wastes
could pole a threat to human health and
the environment In identifying
hazardous wastes through listings and
characteristics. EPA does meet its
burden to establish that such wastes can
pose potential hazards to human health
and the environment. EPA certainly has
no basis to claim that "consumer
household product" wastes can never
Eoae the risks associated with
azardoiis wastes. In exempting
"household wastes" EPA is not
attempting to pass Judgment on the
health and environmental risks
associated with those wastes. Instead
EPA is simply honoring Congressional
interest that wastes generated by
consumers in their households be
exempt from the Subtitle C regulation.
Since "consumer household product
wastes" are not generated by
households, they do not qualify for the
exemption.
The commenter also stated that
although some retailers an small
quantity generators entitled to the small
quantity generator exemption, they need
to obtain a thorough understanding of
the hazardous waste regulations to
know whether they are small quantity
generators. The commenter stated that
the need to obtain this knowledge is
excessively burdensome to the small
business owner. This is a problem
associated with RCRA Implementation
in general, and therefore does not justify
excluding these particular wastes from
regulation. la response to the general
concern about the amount and extent of
the small quantity generator waste, EPA
is studying this issue end recognizes the
need for an education program to
accompany any new regulation of small
quantity generators.
V. Regulatory Impact
Under Executive Order 12291, EPA
must fudge whether a regulation is
"major" and therefore subject to the
requirement of a regulatory impact
analysis. Tills final regulation is not a
major rule because it will not result In
an effect on the economy of $100 million
or more, nor will it result in an increase
in costs or prices to industry. In fact this
regulation will reduce die overall costs
and economic impact of EPA's
hazardous waste management
regulations. There will be no advene
impact on the ability of U&-baaad
enterprises to compete with foreign-
basea enterprises in domestic or export
markets. Because this amendment is not
a major regulation, no Regulatory
Inmact Analysis is being conducted.
This amendment was submitted to the
Office of Management and Budget
(OMB) for review as required by
Executive Order 12291. Any comments
from OMB to EPA and any EPA
response to those comments an
available for public inspection in Room
S-212 at EPA Headquarters.
VLStata Authority
/I. Applicability in Authorized States
Under section 3006 of RCRA. EPA
may authorize qualified States to
administer and enforce their State
hazardous waste management programs
in lieu of EPA operating the Federal
program in those States (See 40 CFR
Pah 271 for the standards and
requirements for authorization.)
Authorization, either interim or final,
may be granted to State programs that
regulate the identification, generation,
and transportation of hazardous wastes
and the operation of facilities that treat
store, or dispose of hazardous waste in
containers, tanks, plies, surface .
impoundments, land treatment facilities,
landfills and Incinerators.
Today's announcement promulgates
standards for certain hazardous wastes
under the Federal hazardous waste
management program. Upon
authorization of the State program, EPA
suspends operation within the State of
those parts of the Federal program for
which the State is authorized. Therefore,
today's promulgation would be
applicable only in those States which
have not been granted authorization.
B. Effect on State Authorization
States which have been granted final
authorization wilThave to revise their
programs, in accordance with 40 CFR
27121, to cover those requirements in
today's announcement which are more
stringent or broader in scope than the
States' current requirements. Generally,
these authorized State programs must be
revised within one year of the date of
promulgation of these standards, or
within two years if the State must
& mart a statute in order to
make die required revision. (See the
amendment to 40 CFR 271.21 published
in the May 22,1984. Federal Register at
49 FR 21678-21682.) States need not
revise their programs to accommodate
Federal requirements which are less
stringent than their extant program
requfretnenta.
EPA does not consider conforming
revisions to this part of an authorized
State program to be "substantial" under
40 CFR 271£l(b). The Agency believes
that revisions to existing analogues in
authorized States would not constitute e
major change in the authorized program
which warrants public review, since the
Impact and extent of Ola change ir
limited (lew only one relatively si
. element of the State program wou.
revised). EPA does not consider this
-------
44380 Federal Register / Vol. 49. No. 220 / Tuesday. November 13. 1984 / Rules and Regulations
promulgation to increase the stringency
or scope of the Federal program:
therefore. States need not make
conforming revisions to their programs,
although they are free to do so.
VII Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq.. whenever an
agency is required to publish general
notice of rulemaking for any proposed or
final rule, it must prepare and make
available for public comment a
regulatory flexibility analysis which
describes the impact of the rule on small
entities [i.e.. small businesses, small
organizations, and small governmental .
juridictions). The Administrator may
certify, however, that the rule will not
have a significant economic impact on a
substantial number of small entities.
This amendment will generally have
no adverse economic impact on small
entities. Rather, it will reduce the
population affected by EPA's hazardous
waste management regulations, some of
whom are small entities, and thus
reduce the overall costs of these
regulations. The denial of the American
Retail Federation's petition means that
the status of retailers and subsequent *
handlers of their wastes has not
changed. Therefore, if retailers generate
hazardous wastes, they will either
remain subject to the small quantity
generator exclusion or. if they exceed
the small quantity exclusion limits, they
will be subject to full RCRA Subtitle C
regulation. Since this amendment does
not change the status quo for such
entities. I hereby certify that this
regulation will not have a significant
economic impact on a substantial
number of small entities. This regulation
therefore does not require a regulatory
flexibility analysis.
Vm. Paperwork Reduction Act
This rule does not contain any
information collection requirements
subject to OMB review under the
Paperwork Reduction Act of 1980.44
U.S.C. 3501 et seq.
IX. list of Subjects in 40 CFR Part SSI
Hazardous materials. Waste
treatment and disposal Recycling.
Dated: November 1.1984.
WUliam D. Ruckalahaus,
Administrator.
PART 261—[AMENDED]
For the reasons set out in the
preamble. 40 CFR Part 281 is amended
as follows:
1. The authority citations for Part 261
reads as follows:
Authority; Sees. 1006.2002(a). 3001. and
3002 of the Solid Waste Disposal Act as
amended by the Resource Conservation end
Recovery Act of 1978. as amended (42 U.S.C.
8805, 8912(a). 8921. and 8922).
2.40 CFR 261.4 is amended by revising
paragraph (b)(1) to read as follows:
S 261.4 Ezduaiona.
• « • • •
(b) * • *
(1) Household waste, including
household waste that has been
collected, transported, stored, treated,
disposed, recovered [e.g.. refuse-derived
fuel), or reused. "Household waste"
means any waste material (including
garbage, trash and sanitary wastes in
septic tanks) derived from households
(including single and multiple
residences, hotels and motels,
bunkhouses. ranger stations, crew
quarters, campgrounds,'picnic grounds,
and day-use recreation areas).
4 • • • •
(Ft On MNU rtbd 1V4-S* Ml n|
-------
RCRA REVISION CHECKUST 10
Interim Status Standards • Applicability
49 FR 46094-46095
November 21, 1984
(Non-HSWA Cluster I)
ANALOGOUS
STATE CITATION
STATE ANALOG 15.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
EQUIV-
ALENT
MORE BROADER
STRINGENT I IN SCOPE
PART 265 - INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART A - GENERAL
PURPOSE. SCOPE AN
D APPLICABILITY
Duroose
265.1(a)
persons to whom
reaulations aoolv
265.1(b)
November 21,1984 • Page 1 off 1
-------
46094 Federal Register / VoL 49. No. 228 / Wednesday, November 21. 1984 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 265
[SWH-FRL 2854-4]
Interim Status Standards for Owners
and Operators of Hazardous Waste
Treatment, Storage and Disposal
Facilities
aokncy: Environmental Protection
Agency.
action: Technical Amendment.
summary: The Environmental Protection
Agency is today promulgating a
technical amendment to the interim
status standards for owners and
operators of hazardous waste facilities.
TUs amendment merely clarifies the
existing interim status standards
regarding the applicability of
requirements to facilities whose interim
status is terminated. Today's
amendment does not change any
substantive requirements.
date These amendments are effective
December 5.1984.
Aoosiss: Background material relating
to this amendment is maintained by the
Docket Clerk. Office of Solid Waste
fWH-562], U.S. Environmental
Protection Agency. 401M Street SW„
Washington, D.C 2046a The docket is
available for viewing from &00 a jn. to
iiJO pun* Monday thru Friday, excluding,
holidays.
SON FURTHER INFORMATION CONTACT:
The RCRA Hotline, toll-free at (800) 424-
9348 or 382-3000 in Washington. D.C.; or
Ubby Scopino in the Office of Waste
Programs Enforcement UA
Environmental Protection Agency,
Washington. D.C. (202) 475-8731.
SUmjMKMTAAY INFORMATION: EPA haa
promulgated regulations implementing
Subtitle C of the Solid Waste Disposal
Act as amended by the Resource
Conservation and Recovery Act of 1978,
as amended (RCRA), 42 U&C. 8901 ft
aeq„ establishing a comprehensive
program for the handling and .
management of hazardous waste (40
CFR Parte 280-288.27a 271. and 124).
Pursuant to Section 3006(a) of RCRA.
the regulations require owners or
operators of hazardous waste
management facilities to have a permit
Recognizing that EPA would not be
able to issue permits to all hazardous
waste management facilities at once.
Section 3005(e) of RCRA provides that a
hazardous waste management facility
that meets certain requirements will be
treated as having been issued a permit
EPA refers to such an owner or operator
as one who has interim status.
Section 3004 of RCRA requires EPA to
promulgate performance standards
applicable to owners and operators of
facilities that treat store or dispose of
hazardous wastes. These Section 3004
standards are independently
enforceable national standards which
are separable from the Section 3005
permit/interim status provisions. See 45
FR 33158(May 19.1980).
EPA promulgated both Part 284
general permitting standards and Part
285 interim status standards under the
authority of Section 3004. EPA has, by
regulation, limited the requirements for
facilities with interim status to those
found in 40 CFR Part 285. See 40 CFR
270.71(b). Pursuant to { 285.1 of the
RCRA regulations, the standards in Part
285 apply "during the period of interim
status." These standards apply to
owners and operators of hazardous
waste facilities who have fully complied
with the interim status requirements,
"until final administrative disposition of
their permit application is made."
(§ 285.1(b)).
The wording of i 285.1(b) implies that
once a facility's interim status is
terminated the facility would no longer
have to meet the Part 285 interim status
standards including the closure, post-
closure and financial responsibility
requirements. However. EPA has the
statutory authority under Section 3004 to
enforce the Fart 285 standards at
facilities which no longer have interim
status. Somfe sections of the regulations
clearly reflect that authority. For
example, the provisions in 1285.112(c)
and 1285bll8(e) dearly require facilities
whose interim status has been
terminated to meet certain Part 285
closure and post-closure requirements.
Section 288.112(c) requires that
The owner or operator moat submit Us
closure plan to the Regions! Administrator at
least ISO days before the date he wpwli to
begin dosare. The owner or operator most
aobmit Us doaurw plan to the Regional
Administrator no later than IB days aftan
(1) Termination of interim uatua (exoept
when a permit is issued to the facility
alreultaneooaty with termination of interim
states (emphasis added))
• (2) Iaaaaaee of a (udldal decrae or order
uwHw ofRCRA to CUM . .
focsMflg wtitn or don.
dearly, 1285.112(c) envisioned that
facilities would submit closure plans for
approval subsequent to the termination
of the facilities' interim status.
Further, many of the other substantive
requirements of Part 285 are clearly
stated to be applicable until final
closure of the facility is certified. For
instance, 1285.147(e) requires that
liability insurance be maintained by the
owner or operator of a facility until the
certification of final closure is received
by the Regional Administrator. A
facility's interim status may be
terminated prior to certification of final
closure. In those instances, the Agency
requires the facility whose interim
status has been terminated to maintain
liability insurance in spite of the
language in i 285.1.
As stated above. EPA believes that it
has both the statutory and regulatory
authority to apply the Part 285 standards
to those facilities whose Interim status
has been terminated. However, in order
to clarify the Part 285 standards, the
Agency is amending Section 285.1 to
state specifically that the Part 285
requirements apply to an interim status
facility until either a permit is issued
under Section 3005 of RCRA or until all
applicable Part 285 closure and post-
closure responsibilities are fulfilled.
Good Cause Exception
This technical amendment Is
published without prior notice and
comment because the Agency believes
that such notice and comment is
unnecessary pursuant to the good cause
exception in the Administrative
Procedures Act 5 U.S.C. Section
553(APA). Today's amendment merely
clarifies an existing Agency rule and as
such is a routine. technical
amendment The impact of the
amendment on the public is insignificant
because the amendment does not
impose any new substantive
requirements. It merely .codifies the
already implied requirement that
owners and operators of facilities whose
interim status is terminated must comply
with the applicable Part 285 standards
until final closure and post-closure
responsibilities are fulfilled.
Effective Data
RCRA Section 3010(b) provides that
regulations and amendments to
regulations under RCRA take effect six
from the data of promulgation.
The purpose of this requirement is to
allow sufficient lead time for regulated
wwBwumiHM to prepare for compliance
with major new regulation*. Section
553(d) of die Administrative Procedures
Act (APA) prohibits "publication or
service of a substantive rule... less
thsn SO days before its effective date
except for good cause."
For the amendment proposed today,
EPA believes that an effective date six
months or 30 days after promulgation
would be unnecessary. These
«iniiiiiii*f limply darlfy
regulatory language and do not impose
any new substantive requirements.
Therefore, the Agency finds that there is
-------
Fa al Register / VoL 49. No. 220 / Wednesday. November 21. 1984 / Rules and Regulations 46095
good cause that this amendment be
effective two weeks after publication.
Compliance WUh Executive Order 12291
Under Executive Order 12291, EPA
must judge whether a regulation is
"major" and therefore subject to the
requirement of a Regulatory Impact
Analysis. This proposed regulation is
not major because it will not result in an
effect on the economy of $100 million or
more, nor will it result in an increase in
costs or prices to industry. There would
be no advene impact on the ability of
U.S.-based enterprises to compete with
foreign-based enterprises in domestic or
export markets. Because this
amendment is not a major regulation, no
Regulatory Impact Analysis is being
conducted.
These amendments were submitted to
the Office of Management and Budget
for review as required by Executive
Order 12291. Any comments from OMB
to EPA and any response to those
comments are available for viewing at
the Office of Solid Waste Docket Room
S269-G 401M Street SW_
Washington. D.C. 2046a
Paperwork Reduction Act
There is no recordkeeping or reporting
burden associated with today's action.
Regulatory Flexibility Act
The Regulatory Flexibility Act
requires that Federal Agencies prepare
regulatory flexibility analyses assessing
the impacts of proposed rales on entities
wjh w w*nll businesses. m»n
organizations, and small governmental
jurisdictions. Such an analysis is not-
required. however, when the head of an
Agency certifies that a proposed rule
will not have a significant economic
impact on a substantial number of small
entities.
1 find that today's proposal, if
promulgated, would nave no impact on
small entities because it does not
impose any additional substantive
requirements. Accordingly. 1 certify that
this amendment will not have a
significant impact on a substantial
number of small entities.
List of Subjects in 40 CFR Part 283
Hazardous materials. Packaging and
containers. Reporting and recordkeeping
requirements. Security measures. Surety
bonds. Waste treatment and disposal.
Water supply.
Dated* October 28.1984.
William D, ByrinhfcmM.
Administrator.
PART 265—{AMENDED!
40 CFR Part 285 is amended as
follows:
9 26S.1 (Amended]
1. Section 285.1 (a) is revised to read
as follows:
(a) The purpose of this part is to
establish minimum national standards
that define the acceptable management
of hazardous waste during the period of
interim status and until certification of
final closure or. if the facility is subject
to post-closure requirements, until post-
closure responsibilities are fulfilled.
2. Section 285.1(b) is revised to read
as follows:
(b) The standards of this part apply to
owners and operators of facilities that
treat store or dispose of hazardous
waste who have fully complied with»'
requirements for interim status undei
Section 3005(e) of RCRA and 1270.10 o.
this Chapter until either a permit is
issued under Section 3009 of RCRA or
until applicable Part 283 closure and
post-closure responsibilities are fulfilled,
and to those owners and operators of
facilities in existence on November 19.
1980 who have failed to provide timely
notification as required bv Section
3010(a) of RCRA and/or failed to file
Part A of the permit application as
required by 40 CFR 270.10 (e) and (gj.
These standards apply to all treatment
storage and disposal of hazardous waste
at these facilities after the effective date
of these regulations, except as
specifically provided otherwise in this
Part or Psrt 281 of this Chapter.
Comment: As stated in Section 3009(a) of
RCRA. after the effective date of regulations
under that Section (La, Parts 270 and 12* of
this Chapter), the treatment storage and
disposal of hazardous waste ts prohibited
except in accordance with a penqit Section
3003(e) of RCRA provides (or the con tit
operation of an facility that meets
conditions, until Bnal administrative
disposition of the owner's and operator's
permit application is made.
(Sees. 1006. axafel 3001 and 3008 pf the
Solid Waste Disposal Act as amended
Resource Conservation and Recovery AcW
1978k aa 42 U-S.C flSOft. 6912(a).
0024,6829)
|WD»M-animinMt*aMt
-------
RCRA REVISION CHECKUST 11
Corrections to Test Methods Manual
49 FR 47390-47391
December 4, 1984
(Non-HSWA Cluster I)
STATE AKIALOfl 15:
ANALOGOUS
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
PART 260 - HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
SUBPART B - DEFINITIONS
REFERENCES
SW-846 revised
260.11(a)
SUBPART C - RULEMAKING PETITIONS
PETITIONS FOR EQUIVALENT TESTING OR ANALYTICAL METHODS
remove comment at
end
260.21
PART 270 - EPA ADMINISTERED PROGRAMS: THE HAZARDOUS
WASTE PERMIT PROGRAM
SUBPART A - GENERAL INFORMATION
REFERENCES
SW-846 revised
270.6(a)
Deoember 4, 1984 - Page 1 of 1
-------
47390 Federal Register / VoL 49, No. 234 / Tuesday. December 4. 1984 / Rules and Regulations
(J.S.C 552(§}«nd t CFR Part SI on March
29.1979.
(3 U.S.C. 332(a); 39 U.S.C. 401.401. MB. 408.
3001-3011. 3201-3218. 3403-3403.3801.3821:
42 U.S.C. 1973CC-13.1973CO-14)
W. Alias Sudm
Associate General Counsel. Office of Central
Law and Administration.
IFF Doc. M-ai6XI F1M II a *fcfcW«a|
BOdUM COM n»IHI
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260 and 270
[SWH-Fm.-2729-S]
Hazardous Waste Management
System: General; and EPA
Administered Permit Programs; the
Hazardous Waste Permit Program
AOtNCY: Environmental Protection
Agency.
actiott Notice of availability of
technical corrections to EPA test
manual; amendment to final rule.
SUMMARY; The Environmental Protection
Agency (EPA) is today making
corrections to and updating the second
edition of the test methods manual 'Test
Methods for Evaluating Solid Waste,
Physical/Chemical Methods." (1982)
(EPA Publication No. SW-846) which
was incorporated by reference into 40
CFR Parts 260 and 270 in the Federal
Register on September 21.1982 (47 FR
41583). Present references in 40 CFR
Parts 280 and 270 to SW-846 are being
amended to reflect these revisions to the
test manual. These corrections and
changes were made due to
typographical errors in the original
edition and for purposes of clarification,
imcnvt datc December 4.1984.
FOR PURTHUt INFORMATION CONTACT
The RCRA Hotline at (800) 424-9348 toll
free, or (202) 382-3000. For technical
information contact David Friedman.
Office of Solid Waste (WH-562B). U.S.
Environmental Protection Agency. 401 M
Street SW. Washington. D.C. 20460.
(202) 382-4770.
SUPRUMCNTARY INFORMATION:
I. Corrections to Test Methods Manual
EPA announced the availability of the
second edition of its test methods
manual "Test Methods Tor Evaluating
Solid Waste. Physical/Chemical
Methods." (1982) (EPA Publication No.
SW-846) in the Federal Register on
September 21.1982 (47 FR 41563). Upon
review and following questions received
from the public, it was determined that
several errors existed in the test
methods manual. To alleviate confusion
arising from apparent errors or
confusing wording in the test methods,
corrections and clarifications were
deemed necessary.
Table 1 summarizes the corrections
being mede in the'second edition of the
methods manual.
Tabue i.—Corrections for SW-846,2*o Eomon
•010—TeMa*
-------
Federal Register / Vol. 49. No. 234 / Tuesday, December 4. 1984 / Rules and Regulations 47391
Table 1.—Corrections for SW-848. 2nd Eornow—Continued
IHIMd
Pit* and aacoon Ma at cflanga
Aaaaon lor eftanga
Pigl 2. aacaon 3
Pagaa 4-Sw aaetton 7.0 _______
AgNO, • nSI WM lor M mlaraiiaaiil wmiu. Srflamc aad
Mum n»«;»n< mm* m,«m aryarci and r*mt nam tonwng
qramda undar ngcroua aaMatcn m magna. Btamafi ma Mhioort
Piaiaiiau raagara m naiama n poama maiwm tram autfw.
Laad acaoa a a ¦¦mnart L»n«maiL Bartdunc aod4Moramn*-T
commas uaad ¦> Ma* at A«N0k aoMsn.
Datacaon ni lor cettmtaac maoiod ¦ wenammr an* imnaad
ftmaa Imv Bun Hnmc The oolofmoinc niatftod riovi tor lata
ntm man by ay*.
n. Availability Of Updates
The EPA manual 'Test Methods for
Evaluating Solid Waste. Physical/
Chemical Methods." (1982) (EPA
Publication No. SW-846) is incorporated
by reference in several sections of EPA's
regulations. Today's corrections to the
test methods manual are now aiso
incorporated by reference by virtue of
their incorporation into this manual.
This incorporation by reference was
approved by the Director of the Federal
Register on December 4.1984.
These technical corrections will be
referred to as "Update 1 to SW-846" and
are available from the Superintendent of
Documents. U.S. Government Printing
Office (GPO), Washington, D.C 20402
(202-783-3228) (GPO Number 055-002-
81001-2). Persons holding a subscription
to the second edition of SW-848 will
automatically receive this amendment
Others may purchase both the second
edition of the manual and this
amendment from the GPO.
EPA has determined under section
553(b) of the Administrative Procedures
Act, 5 U.S.G 553(b) that there is good
cause for promulgating these
amendments without prior notice. These
amendments are entirely technical in
nature and do not change any
substantive requirement
Dated: November 20. int.
JadcMcGtaw.
Acting Auistant Administrator Offico of
Solid Wasia and Emergency Ret pons*.
For the reasons set ont-in the -
preamble. Title 40 of the Code of Federal
Regulations is amended as follows;
PART 280-{ AMENDED]
1. The Authority dtation for Part 280
reads as follows:
Authority; Seca. 1008.2002(a). 3001 tbzoofh
9007.9010 and 7004 of the Solid Waste
Disposal Act as amended by the Resource
Conservation and Recovery Act of 1970 as
amended. (42 U.S.C 0001 0912(a), 6881
through 0827.0830 aad 0074).
{280.11 (Amended)
2. Section 280.11 is amended by
revising the fourth reference in
paragraph (a) to read as follows:
(a)* • •
"Test Methods for Evaluating Solid
Waste. Physical/Chemical Methods."
EPA Publication SW-848 (Second
Edition. 1982 as amended by Update I
(April. 1984)]. Die second edition of
SW-848 and Update I are available from
the Superintendent of Documents. U.S.
Govenment Printing Office. Washington.
D.C 20402. (202) 783-3228, on ff
subscription basis.
• • * -•
S 260.21 [Amended]
3. Section 280.21 is amended by
removing the comment at the end of (his
section.
• • • • \
PART 270—{AMENDED)
4. The authority citation for Part 270
reads as follows:
Authority: Seca. 1006. 2002.3005. 3007 and
7004 of the Solid Waste Disposal Act as
amended by the Resource Conservation and
Recovery Act of 1978, as amended (42 USA.
0808.0912.0928.0927 and 0974).
5. Section 2708 Is amended by
revising the first reference In paragraph,
(a) to read aa follows:
IZ70J Befemicaa.
(«)*••
Test Methods for Evaluating Solid
Waste. Physical/Chemical Methods,"
EPA Publication SW-848 [Second
- Edition, 1982 aa amended by Update I
(ApriL 1984)). The second edition of
SW-848 and Update I are available ban
the Superintendent of Documents. UA
Government Printing Office,
Washington. D.C 20402, (202) 783-3238.
on a subscription basis.
• • • • •
(Ft tee. M-9HV AM U-Mk MS M|
40CFR Part 271
15 W-3-FR1-2730-1)
Commonwealth of Virginia; Final
Authorization of State Hazardous
Waste Management Program
agency: Environmental Protection
Agency.
action: Notice of final determination on
the Commonwealth of Virginia's
application for final authorization.
summary: Virginia has applied for Final
Authorization under the Resource
Conservation and Recovery Act
(RCRA). EPA has reviewed Virginia's
application and has made the final
decision that Virginia's hazardous waste
management program satisfies all of the
requirements necessary to qualify for
Final Authorization. Thus. EPA is
granting final aothorization to the Si
to operate its program in lieu of the
Federal program^
vncnvt OATK Final Authorization for
Virginia, for purposes of judicial review,
shall be effective at 1.-00 p.m. Eastern
Standard Time on December 18.1984. ¦
ran nurmn information contact:
John A. Aimatdad. Program Mana
State Programs Section. US EPA Region
m. 8th and Walnut Streeta, Philadelphia.
PA 19108. (213) 597-7259.
¦umlomintahv INFORMATION: Section
3008 of the Resource Conservation and
Recovery Act (RCRA) allows EPA to
authorize Slate hazardous waste
programs to operate in lieu of the
Federal hazardous waste program. To
qualify for final authorization, a State's
program must (1) Be "equivalent" to the
Federal program, (2) be consiatent with
the Federal program and other State
programs, and (3) provide for adequate
enforcement (Section 3008(b) of 42
US.C 8228(b)).
On June 28,1964, Virginia submitted a
complete application to obtain final
authorization to administer the RCRA
program. On September 13.1984. EPA
published a tentative decision .
announcing that Virginia's hazard
waste program did satisfy ail of thv
-------
RCRA REVISION CHECKUST 12
Satellite Accumulation
49 FR 49568-49572
December 20, 1984
(Non-HSWA Cluster I)
ANALOGOUS
STATE ANALOG 15:
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
PART 262 - STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
SUBPART C - PRE-TRANSPORT REQUIREMENTS
t ACCUMULATION TIME
point of generation
262.34(c)
December 20,1984 - Page 1 of 1
-------
49568 Federal Register / Vol. 49. No. 246 / Thursday. December 20. 1984 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 262
(SWFRI2804-4]
Hazardous Waste Management
System; Standards Applicable to
Generators of Hazardous Waste
agency: Environmental Protection
Agency.
action: Final rule.
summary: The Environmental Protection
Agency is today promulgating an
amendment to the hazardous waste
management regulations under the
Resource Conservation and Recovery
Act (RCRA). This amendment allows
generators of hazardous wastes to
accumulate up to 55 gallons of
hazardous waste, or one quart of acutely
hazardous waste listed in 40 CFR
281.33(e). in satellite areas at the
generator's facility. Generators can
accumulate wastes in satellite areas
provided that: (1) The wastes are placed
in containers that are in good condition:
(2) the wastes are compatible with their
containers: and (3) the containers are
marked with the words "Hazardous
Wastes" or other words that identify the
contents. Any amount in excess of 5S
gallons of hazardous waste or one quart
of acutely hazardous waste must be
managed in accordance with the '
requirements of 40 CFR 28244(a) or
transported to a storage area regulated
under 40 CFR Parts 284 or 285 within
three days of the accumulation of that
amount
¦mcnvi date This Baal rule becomes
effective June 20,1985.
ADOfttSSCS: The public docket for this
final rule is located in Room S-289C, U.S
Environmental Protection Agency. 401M
St. SW„ Washington. D.C 20480 andis
available for viewing from 930 » "¦ to.
4.-00 p.m. Monday through Friday,
excluding holidays.
FOR PUKTHUI INFORMATION CONTACT:
Chaz Miller. Office of Solid Waste
(WH-*583). U.S. Environmental
Protection Agency. Washington. D.C.
(202) 382-4535, or the RCRA Hotline at
(800) 424-0348 or (202) 382-3000.
¦HMUMBMTAWVIWORMATWXC
L Background
Oh February 28.1980, May 19.1980.
and November 19.1980. EPA
promulgated regulations pursuant to the
Solid Waste Disposal Act as emended
by the Resource Conservation and
Recovery Act (RCRA). as amended. 42
U.S.C.690L etseq. The regulations
established a system to manage
hazardous waste, including standards
for generators of hazardous waste (40
CFR Part 282.45 FR12732.45 FR 33142
and 47 FR Z2S1). In 9 28244(a) of the
regulations. EPA allows generators to
accumulate hazardous waste onsite for
up to 90 days without obtaining a
storage pennit if they accumulate the
waste in accordance with certain
standards. These standards include
requirements for the use of tanks and
containers, personnel training, and the
preparation of contingency plans. In
establishing these standards. EPA
assumed accumulation generally
occurred at one or two discrete
locations within an industrial facility.
EPA also assumed the 9 262.34
requirements would apply to storage
buildings, sheds, and other central areas
where wastes are accumulated.
In response to this provision, members
of the regulated community pointedLout
that within an industrial complex there
may be dozens of places where
hazardous wastes are initially generated
and collected during daily operations
prior to consolidation. The regulation, as
originally written, made no distinction
between the initial accumulation of
hazardous waste at various points of
generation ("satellite" accumulation)
and the accumulation at a central
storage area where these wastes are
consolidated for on-site management or
transportation off-site. As a result the
standards for 90-day accumulation
applied to both areas, regardless of the
amount of waste in the satellite areas.
In response to these points. EPA
raised the issue, in the preamble to the
November 19,198a Federal Register
notice amending 128244 (48 FR 78824),
of whether a distinction should be
drawn between satellite accumulation •
areas and central storage areas. EPA
expressed the view that the
requirements of 128234(a) apply to all
types of accumulation areaa. but
requested comments on this issue.
Varioua groups responded that there is a
major difference between a satellite
area which Is used to accumulate
wastes as they are generated and
central storage areas which receive and
are used to accumulate wastes from
numerous satellite areas. These
wmimi—t— uppwUtt ¦ tiWHipn i»
deletion of regulatory requirements for
ihj l«IH»l iwiiimn|«Him wfluMw^iw
wastes at or near points of generation.
In response to Hitw wmmmiti qq
January 3.1983 (48 FR 118). EPA
proposed to amend 128244 by adding a
new subsection (c) to 128244 that
would allow generators to accumulate
up to-M gallons of hazardous waste
(except for acutely hazardous waste as-
listed in 40 CFR 28143(e)) at each
satellite area for any length of time
without complying with the 90-day
accumulation standards. Generators
could accumulate wastes under this
provision provided that: (1) The wastes
were placed in containers which were in
good condition. (2) the wastes were
compatible with their containers, and (3)
the containers were marked with the
words "Hazardous Wastes" or other
words that identify their contents.
Within 72 hours of accumulating over 55
gallons, the generator would be required
to comply with all applicable
requirements under RCRA for further
management of any waste in excess of
55 gallons.
IL Comments on Proposed Rule and
EPA Response
EPA received 95 comments on the
proposed amendment to i 282.34. The
majority of the commenters favored the
proposal without exception. These
commenters said the proposed rule
would fit in with presently established
industrial practices without causing any
adverse effect on human health or the
environment Most of the remaining.
commenters favored some aspects of the
proposal.
Commenters raised four major issues
about the proposed rule: (1) The amount
of hazardous waste allowed to
accumulate at on-site satellite areas: (2)
the requirement to remove the amount of
hazardous waste over 55 gallons to the
central storage area within 72 hours of
its accumulation: (3) the need for a
/UfiwiHrm of satellite area: and (4) the
exclusion of acutely hazardous waste
from this rule and the effect of this
• exclusion on laboratories. In addition,
commenters raised Issues concerning
the application of this rale to small
genera tore, the absence of training and
contingency plan requirements for
satellite areaa, the application of this
rale to state hazardous waste
regulations, and the absence of a
requirement that containers of certain
wastes be covered. Finally, one
commenter objected to the proposal on
the grounds that tt would be mora
burdensome than the present regulations
because it would require additional
recordkeeping of waate quantities and
accumulation time. These comments are
discussed in detail below.
A. The Amount of Hazardous Waste
Allowed to Accumulate
In the January 3.1983. preamble. EPA
discussed several alternatives it had
. considered before deciding on the 55
gallon limit These alternatives included
accumulation by weight (200 kilogrema)
and accumulation by time (10 days).
-------
Federal Register / VoL 49, No. 246 / Thursday. December 20, 1984 f Rules and Regulations 49569
EPA requested comments on these
alternatives as opposed to the S5 gallon
accumulation limit Commenters did not
support either alternative. Several
specifically stated that either option
would be burdensome and unworkable.
As an alternative to the 55 gallon limit
at each satellite area, a number of
commenters suggested a limit on the
total amount of hazardous wastes
allowed in satellite areas at a
generator's facility. Commenters
suggested various means of doing this,
including a limitation on the number of
specific wastes in satellite areas and a
total limit on the amount of hazardous
waste in satellite areas at the facility.
Other commenters suggested a higher
limit than 55 gallons at any particular
satellite area. These commenters cited
the availability of reusable shipping bins
of up to 110 gallons in capacity. Finally,
several commenters urged EPA to apply
this rule to the accumulation of the
initial 55 gallons instead of applying it
only to the amount in excess of that
accumulation.
After considering all the comments.
EPA has decided not to change the 55
gallon threshold for accumulation of
hazardoua wastes. EPA believes that the
accumulation at satellite areas of
amounts of up to 55 gallons of non-
acutely hazardous waste is reasonable
and safe and does not pose a threat to
human health or the environment
Accumulation of the amount in excess of
55 gallons is covered by this rale and,
after three days, by the requirements of
9 284.34(a) or by the requirements of
Parts 204 or 285. Most commenters from
the regulated community supported the
55 gallon level as meeting their needs
fines satellite areas we normally used
to manage one waste generated by «a
individual industrial process and
commenters said they typically use a 58
gallon drum to store this waste before
removing it to a central storage area.
EPA believes that it is the amount In
excess of 55 gallons that must be
regulated under the requirements of
$282J4{a) or Puts 284 or 285. EPA is
establishing minimal requirements
covering the accumulation of less than
55-gallons of aaaecataly hazardous
wastes in satellite accumulation areas
because these amounts do not pose a
significant threat to human health or the
environment A spill at an industrial site
of 55 gallons or less of nonacutsly
hazardous waste is easy to control and
dean up because of the small amount of
waste involved. In addition to the lack
of environmental threat the widespread
use of the 55 gallon dram makes it die
most practicable threshold level lor
satellite accumulation. EPA is convinced
that amounts up to 55 gallons of
nona cutely hazardous wastes can be
safely managed at satellite
accumulation sites without the full
requirements of § 284£4(a). Because the
weight of evidence suggests limited use
by the regulated community of
containers larger than 55 gallons and
because spills of 110 gallons of
nona cutely hazardous wastes would
pose a greater environmental threat
EPA does not believe that the satellite
accumulation level should be higher
than 55 gallons.
Finally. EPA is not limiting the total
amount of hazardous waste that could
be accumulated at various satellite
areas at a generator's facility because
EPA does not believe that there is a
strong environmental basis for such a
requirement Today's rale ia intended to
allow accumulations to set a limit that
can be safely accumulated and removed
(i.e„ 55 gallons for hazardous waste and
one quart for actutey hazardous waste),
thus, alleviating mors frequent
movement of smaller quantities of
hazardous waste within the generator's
facility. A total facility amount
limitation would contravene that
purpose. In addition, the practical effect
of such a requirement would be to
discriminate against those facilities with
many initial points of waste generation.'
forcing them to select some satellite
areas for accumulation of 55 gallons,
while Immediately removing wastes
generated at other satellite areas to
central storage areas. Limiting the total
amount of wastes accumulated under
this rule would present enforcement
difficulties for EPA and administrative
complexities Cor the regulated
comamnlty without providing atty
significant additional protection is
human health and the environment
A The 72 Hour Transportation
Requirement
Several commenters argued that the
proposed requirement to move the
amount of hazardous waste over 55
gallons to s central storage area within
72 hours was an insufficient amount of
time. These commenters argued the rule
is too restrictive because of
management scheduling problems and
three-day holidays. Other commenters
argued the 72 hour period was
unenforceable without a requirement to
label the containers with the date and
time the excess amount began
accumulating.
EPA believes the proposed 72 hour
period allows generators adequate lead
time to manage the excess waste En
accordanoe with the requirements of.
S 282J4{a). Most faculties should be
aware of process waste generation rate
and should be able to arrange for the
removal of any excess accumulation
within that time frame. In addition, good
management should be able to use
advance scheduling to manage the
excess waste in spile of a three-day
holiday.
However. EPA agrees that this rule
will be difficult to enforce without any
indication of when excess amounts
began accumulating. Thus. EPA is
requiring that containers be marked
with die date when the excess
accumulation began. This requirement
will not impose any undue burden on
the regulated community since EPA is
not requiring special labels or any
additional internal recordkeeping.
Marking the container clearly with the
date excess accumulation begins will be
sufficient In addition. EPA is changing
the time requirement from 72 hours to
three days. The added precision of both
the date and time of day is unnecessary
and this change lessens the additional
burden imposed by die labelling
requirement Finally, industry can avoid <
the labelling requirement completely by
moving containers prior to the .
accumulation of more than 55 gallons.
C The Definition of Satellite Ana
Several commenters requested
guidance on die definition of satellite
anas on the grounds that EPA haa not
adequately defined what it means by
satellite areas. Others argued the
concept is unenforceable without a
precise regulatory definition. One
commenter raised the possibility of a
generator storing 55 gallon drums 5 feet
apart along the wall of his facility in an
attempt to circumvent further regulatory
responsibilities.
Satellite areas are those places where
¦ wastes are generated in die industrial
process or the laboratory and where
those, wastes must initially accumulate
prior to removal to a central area. This
point of accumulation is under the
control of the operator of the process
that is genarating the waste. In order to
clarify the "'nq of "satellite areas'*
EPA has added language to this rule
delineating the meaning of satellite
areas. Certainiythe example given by
the commenter. of a tow of full 88 gallon
drama spaced 8 feat apart along the
factory well does not meat the
requirements established by this
regulation. -
D. The Exclusion of Acutely Hazardout
Waties From This Role and Its Impact
on lain
A number of commenters raised^^
questions about the exclusion of *4By
hazardous wastes listed in 12Cj~13(ej
-------
49570 Federal Register / Vol. 49. No. 246 / Thursday, December 20. 1984 I Rulea and Regulations
from the proposed rule. These
commenters argued there is no basis for
the exclusion, that there is a danger
from moving these wastes through the
plant site to a central storage area and
that these wastes are safer at the
satellite area than in a central area
where other, possibly incompatible,
wastes will be storecL'Some commenters
argued in favor of limiting acutely
hazardous wastes at satellite areas to a
lower accumulation amount than other
hazardous wastes. These commenters
felt it is acceptable to allow
accumulations of up to one gallon at
satellite areas before requiring
management under 3 26244(a).
EPA specifically requested comments
on the effect of the satellite
accumulation rule on laboratories. EPA
stated that this proposed rule, together
with the small generator rule of i 281.5.
would alleviate most of the operational
problems associated with the
accumulation of hazardous waste by
laboratories. Most of the comments
presented on this issue, however,
concerned the exclusion of acutely
hazardous waste from the satellite
accumulation rule. The commenters
argued this exclusion is unnecessarily
burdensome for laboratories. They
claimed that laboratory workers are
especially well trained in handling
hazardous wastes and that the cost of
transporting these wastes to a central
storage point is high, while there is no
corresponding benefit to the
environment One commenter suggested
allowing acutely hazardous wastes from
satellite areas at laboratories to be •
placed in 500 gram containers. This
-commenter argued that most laboratory
chemicals are delivered in 500 gram
containers which would make suitable
storage vessels for the wastes. Coupled
with the training given to laboratory
workers in recognizing the hazards
associated with chemicals, this
commenter's proposal would give
laboratories the necessary flexibility to
handle acutely hazardous wastes in a
safe manner without being burdened by
the immediate removal of these wastes
to the central storage ana.
After considering these comments,
EPA believes a blanket exclusion of
acutely hazardous wastes from this rale
is unnecessary because of the problems
posed by the almost constant
accumulation of small amounts of
acutely hazardous waste through the
workplace. Accordingly, EPA is
changing the exclusion of acutely
hazardous wastes as proposed to allow
the accumulation of one quart of these
acutely hazardous wastes at each
satellite area. This change will give
laboratories and other generators of
acutely hazardous wastes the
opportunity to accumulate small
amounts of acutely hazardous waste at
the satellite area before managing the
wastes tinder 9 282J4(a) or moving the
wastes to a storage area regulated under
the requirements of Part 264 or Part 285.
It also recognizes that acutely hazardous
wastes should be handled with extra
precaution and should not be allowed to
accumulate at satellite areas to the
extent that other hazardous wastes are
allowed to accumulate.
EPA has selected an accumulation
limit of one quart since it is the
volumetric equivalent of the one
kilogram threshold used in other parts of
the RCRA regulations {e&, 40 CFR
281.5) to distinguish the application of
the regulations to acutely hazardous and
nonacutely hazardous waste. One quart
was chosen instead of one kilogram as
the threshold for accumulation of
acutely hazardous waste consistent with
the volume threshold for satellite
accumulation of nona cutely hazardous
waste awl because of the complete
opposition by commenters to the use of
a weight measure as the initial threshold
for the accumulation of hazardous
wastes. Finally, this limitation
accommodates laboratories who choose
to move acutely hazardous waste in die
workplace in 500 gram, liter, or quart*
sized containers.
£ Small Generators and Satellite
Accumulation
Several commenters questioned the
relationship between this rule and the
small quantity generator rule of i 281JS.
The latter rule exempts generators of
less than 1000 kilograms per month of
(nonacutely) hazardous waste from the
hazardous waste management
regulations, including 40 CFR Part 282. U
also exempts generators of less than one
kilogram of acutely hazardous waste per
month from regulation. Accordingly,
those facilities covered by the small
quantity generator ride are not subject
to any of the requirements of the
satellite accumulation rule so long as
they do not generate more than 1000
kilograms of hazardous waste.(or one
kilogram of acutely hazardous waste)
per month. Conversely, if the facility
generates more than 1000 kilograms of
hazardous waste (or ana kilogram of
acutely hazardous waste), it is subject to
all hazardous waste management
mgnlallons those for
accumulation in satellite areas.
P. Other tuuee
Several commenters raised other
issues. Hie first issue concerns EPA's
decision not to require worker training
or contingency plans for wastes in
satellite areaa. In the January 3,1983.
preamble. EPA discussed the
relationship between its proposed
satellite accumulation rule and the
Occupational Safety and Health
Administration's (OSHA) proposed
regulations covering hazardous
materials in the workplace. EPA stated
it should retain the responsibility for
some regulations on the accumulation of
hazardous waste in the workplace
because OSHA does not specifically
regulate hazardous wastes as defined
under RCRA or deal specifically with
aspects of accumulation that affect
human health and the environment
outside the workplace. This would
include such aspects as the condition of
the containers used for accumulation.
OSHA does, however, regulate other
activities, such as the training of
employees of manufacturing industries
who work with hazardous materials and
safety procedures that closely parallel
contingency plans. OSHA promulgated
its "Hazard Communication" regulations
on November 25.1983 (48 FR53280). The
management of all RCRA hazardous
wastes, including contingency plan and
training plan requirements, la
specifically exempted from these
regulations (29 CFR 1910.1200(b)(5)(i)).
As a result the OSHA regulation does
not duplicate EPA's regulation in any
respect
Several commenters stated that EPA
should require contingency plans and
training plans for the satellite areas.
EPA believes, however, that since only
one waste will normally be accumulated
at each satellite area, and since only
United quantities are allowed to
accumulate, contingency plans and
training plana are not necessary. Aa
EPA stated in the January 3.1983.
preamble, these requirements were
intended for more centralized, higher
volume accumulations of waste. When
waata generated In a satellite area ia
transported to a storage area regulated
under 128234(a) or Parts 284 or 285. the
training and contingency plan
requirements will apply.
Several commenters questioned EPA's
decision not to make the satellite
accumulation rule a requirement for
authorized States. One commenter
argued that by failing to make this rule a
requirement for authorized States. EPA
is making it possible for States to have
hazardoua waata regulations that are
not consistent with Federal regulations.
Consistency between EPA and State
hazardoua waate management
regulations Is explained by 40 CFR 271.4
which establishes three areas where
State regulationa cannot be inconsistent
-------
Federal Register t Vol. 49. No. 246 / Thursday. December 20. 1984 / Rules and Regulations 49571
with EPA's hazardous waste
regulations. The failure of a State to
adopt the satellite accumulation
regulation does not fit within- any of the
three areas indicating "inconsistency*'
with the Federal program. Further,
section 3009 of RCRA allows States to
be more stringent in-their regulations
than EPA. The Agency would consider a
State that does not provide an analogue
to S 262.34(c) to allow for satellite
accumulation to be implementing a more
stringent program. Thus. States need not
provide for satellite accumulation of
hazardous waste.
A third issue was raised by a
commenter who suggested that EPA
require covers on containers of certain
wastes in order to reduce potential fire
hazard that might be associated with the
accumulation of flammable waste
solvents. EPA agrees with this
commenter and is requiring all
containers holding hazardous wastes in
satellite accumulation areas to be
covered except when necessary to add
or. remove waste. This requirement
should not place added burdens on the
regulated community since commenters
assert and EPA's own information
confirms, that covering containers is
common Industrial practice.
Hie final issue raised by a commenter
is that the proposed satellite
accumulation rule would actually lead
to an increase in recordkeeping in order
to ensure and demonstrate compliance
with the waste accumulation limits and
the three day time period requirements.
EPA does not agree. There are no
additional internal recordkeeping
requirements caused by this regulation.
Although the final regulation requires
that containers be labelled with the data
excess accumulation begins, this can be
accomplished by merely marking the
containers and avoided completely by .
removing the containers before nan
accumulation begins. Further, since
recordkeeping requirements for
contingency- plana do not apply to
satellite accumulation areas, there ts-
actually a decrease In recordkeeping.
nr Today's Amendment
1 After reviewing all of the comments
received on the proposed rule. EPA Is
today promulgating the rule as originally
proposed, with the four exceptions of
allowing the in a satellite
ana of opto one quart of those acutely,
hazardous wastes listed la f 28133(e).
requiring the generator to mark the
containers with the date the excess
accumulation began, requiring that
containers holding hazardous waste be
covered except when they are opened to
add or remove waste, and adding
additional language delineating the
meaning of a satellite area.
IV. Effective Date
Section 3010(b) of RCRA provides that
EPA's hazardous waste regulations and
revisions thereto take effect six months
after their promulgation. In addition. 3
U.S.C. 553 of the Administrative
Procedure Act requires that substantive
rules not become effective until at least
30 days after promulgation unless there
is good cause for shortening the period.
Accordingly, these amendments will
become effective six months after
publication in the Federal Register.
V. Compliance With Executive Order
12291
Under Executive Order 12291, EPA
must judge whether a regulation is
"major" and therefore subject to the
requirement of a Regulatory Impact
Analysis. This regulation is not major
because it will not result in an effect on
th« economy of $100 million or more, nor
will it result in an increase in costs or
prices to industry. There will be no
adverse impact on the ability of US."
based enterprises to compete with
foreign based enterprises in domestic or
export markets. Because this .
amendment is not a major regulation, no
Regulatory Impact Analysis is being
conducted.
This regulation was submitted to the
Office of Management snd Badge! for .
review as required by Executive Order
12291. .
VL Paperwork Reduction Act
Under the Paperwork Reduction Act.
44 U.S.C. 3501 et aaq* Federal agendas
must consider the paperwork burden
Imposed by any information collection
request contained in a proposed rale or
final rule. This rule will not Impose any
new information collection requirements
on the regulated community. In fact this
-rale will reduce the Information
collection requirements contained In the
cleared OMB request #3080-0011.
VIL Regulatory Flexibility Act
Under the Regulatory Flexibility Act 5
UJLC 801 et EPA auist prepare a
regulatory .flexibility analysia tor all
proposed ntlee to assess their Impact on
small entities. No regulatory analysis is-
required, however, when the head of the
agency certifies that the rule will not
have a significant economic impact on -
substantial number of small entities.
The economic impact of this
regulation will be to reduce the costs of
complying with EPA's hazardous waste
management regulation* for generators
of hazardous waste, including those
which are small entities. Accordingly. 1
hereby certify, pursuant to 3 U.S.C
601(b), that this rule will not have a
significant economic impact on a
substantial number of small entitles.
VUL List of Subjects in 40 CFR Part 2S2
Hazardous materials, packaging and
containers, reporting and recordkeeping
requirements. Security measures. Surety
bonds, Waste treatment and disposal,
water supply.
Dated: December 14.1884.
William Ruchdthsui.
Adminutmtar.
Title 40 of the Code of Federal
Regulations Part 262 is amended as
follows:
PART MS—STANDARDS APPLICABLE
TO GENERATORS OF HAZARDOUS
WASTE
I. The authority dtation for Part 282
reads as followae
Authority- Sec*. 1008. MB. 3002. 3003.
and 3006 of thaSoiid Waste Oiaposal Acta*
amended by the Resource Conservation and
Recovery Act of 19TB. oa amended. (RCRA).
42 U3.C.68Q16M2.9833.8BO. S824. 0829.
* 2. In 12B2£4. paragraph (c) is added
to read as follows:
IttM AeewMeBon Ishl
*. \ • • • •'
(cMU A generator may accumulate as
much ss 55 gallons of hazardous waste
or one quart of acutely hazardous waste
listed in 129133(e) ta containers st or
near any point of feaeratloa where
wastes initially accumulate, which is
under the control of the operator of the
process generating the waste, without a
permit or interim status and without
complying with panpapfe (a) of this
section provided he;
(Q Complies erttb || »S.m, 284-172.
and 266.173(a) of tfeia d>aptar and
(li) Marks Usooofataars either with
the words "Hazardous Waste"* or writh
other words that hlemtfy (be coo a of
tha fflwitsiiit't-
-------
49572 Federal Register / Vol. 49. No. 246 / Thursday. December 20. 1984 / Rules and Regulations
(2) A generator who accumulates .
either hazardous waste or acutely
hazardous waste listed in S 281.33(e) In
excess of the amounts listed in
paragraph (c)(1) of this section at or
near any point of generation must with
respect to that amount of excess waste,
comply within three days with
paragraph (a) of this section or other
applicable provisions of this chapter.
During the three day period the
generator must continue to comply with
paragraphs (c)(l)(iHii) of this section.
The generator must mark the container
¦holding the excess accumulation of.
hazardous waste with the date the
excess amount began accumulating.
(FR Doc. 84-33124 Filed 12-19-84:8:45 am)
COOC M90-i0-«
-------
RCRA REVISION CHECKLIST 13
Definition of Solid Waste
50 FR 614-668
January 4, 1985
as amended on April 11, 1985, at 50 FR 14216-14220
and August 20, 1985, at 50 FR 33541-33543
(Non-HSWA Cluster I)
STATE ANALOG IS:
ANALOQOUS
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
PART 260 • HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
SUBPART B - DEFINITIONS
DEFINITIONS
boiler
260.10
desianated facility
260.10
incinerator
260.10
industrial furnace
260.10
SUBPART C • RULEMAKING PETITIONS
t VARIANCES FROM CLASSIFICATION AS A SOUP WASTE
speculative
accumulation
260.30(a)
returned to orocess
260.30(b)
further reclamation
260.30(c)
STANDARDS AND CRI1
rERIA FOR VARIANCES
3 FROM CLASSIF1CAT
ON AS A SOLID WASTE
speculative
accumulation
260.31(a)
returned to dtocoss
260.31(b)
further reclamation
260.31(c)
VARIANCE TO BE CLASSIFIED AS A BOILER
case-by-case
determination
260.32
January 4.1985 • Page 1 of 6
-------
RCRA REVISION CHECKLIST 13: Definition of
Solid Waste (cont'd)
STATE ANALWTT
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
PROCEDURES FOR V>
CLASSIFIED AS A BOI
\RIANCES FROM CLASSIFICATION AS A SOLID WASTE OR TO BE
LER
i
a
i
260.33(a)
notice/
Dublic heartna
260.33(b)
2 ADDITIONAL REGULATION OF CERTAIN HAZARDOUS WASTE RECYCLING ACTIVITIES ON A
CASE-BY-CASE BASIS
case-by-case
determination
260.40
2 PROCEDURES FOR CASE-BY-CASE REGULATION OF HAZARDOUS WASTE RECYCLING
ACTIVITIES
determining
procedures
260.41
PART 261 - IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
SUBPART A - GENERAL
PURPOSE AND SCOP
5
aDDlicabilitv
261.1(b)
definitions
261.1(c)
DEFINITION OF SOLID
WASTE
discarded/
not excluded
261.2(a)
abandoned
261.2(b)
3 use constitutes
disoosal
261.2(c)(1)
3 enerov recovery
261.2(c)(2)
reclaimed
261.2(c)(3)
accumulated
soeculativelv
261.2(c)(4)
inherently
waste-Bke
261.2(d)
f not sold waste
when recycled
261.2(e)
January 4, 1985 - Page 2 of 6
-------
RCRA REVISION CHECKUST 13: Definition of
Sofid Waste (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
documentation
261.2(f)
f DEFINITION OF HAZARDOUS WASTE
1 generated for
treatment
261.3(c)(2)
t EXCLUSIONS
black liauor
261.4(a)(6)
sDent sulfuric acid
261.4(a)(7)
t SPECIAL REQUIREMENTS FOR HAZARDOUS WASTE GENERATED BY SMALL QUANTITY
GENERATORS
1 Quantity determination 261.5(c)
REQUIREMENTS FOR
RECYCLABLE MATERIALS
recyclable materials
261.6(a)(1)
regulated under
Part 266
261.6(a)(2)
exemption from rule
261.6(a)(3)
generators and
tiansoorters
261.6(b)
recycling facilities
261.6(c)
SUBPART D - LISTS OF HAZARDOUS WASTES
HAZARDOUS WASTE FROM NONSPECIFIC SOURCES
generic listings
261.31
DISCARDED COMMERCIAL CHEMICAL PRODUCTS. ETC.
Introductory text
261.33
PART 264 • STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART A - GENERAL
January 4,1985 - Page 3 of 6
-------
RCRA REVISION CHECKUST 13: Definition of
Solid Waste (cont'd)
STATE ANALOG IS:
ANALOGOUS
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
PURPOSE. SCOPE AN
D APPLICABILITY
exemption from rule
264.1(a)(2)
SUBPART 0 - INCINERATORS
APPLICABILITY
owners and operators
with exception
264.340(a)
PART 265 - INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART A - GENERAL
PURPOSE. SCOPE AN
D APPLICABILITY
exemotion from rule
265.1(c)(6)
SUBPART 0 - INCINERATORS
APPLICABILITY
owners and operators
with exception
265.340(a)
SUBPART P - THERMAL TREATMENT
OTHER THERMAL TREATMENT
thermal treatment
265.370
PART 266 - STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
SUBPART C - RECYCLABLE MATERIALS USED IN A MANNER
CONSTITUTING DISPOSAL
APPLICABILITY
January 4,1985 - Page 4 of 6
-------
RCRA REVISION CHECKLIST 13: Definition of
Solid Waste (cont'd)
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
applied to or
Dlaced on land
266.20(a)
products for
aeneral use
266.20(b)
STANDARDS APPLICABLE TO GENERATORS AND TRANSPORTERS OF MATERIALS USED IN
A MANNER THAT CON
STITUTES DISPOSAL
generators and
transoorters
266.21
STANDARDS APPLICABLE TO STORERS OF MATERIALS THAT ARE TO BE USED IN A
MANNER THAT CONS1
nTUTES DISPOSAL WH
0 ARE NOT THE ULTIMATE USERS
storers of material
266.22
STANDARDS APPLICABLE TO USERS OF MATERIALS THAT ARE USED IN A MANNER .THAT
CONSTITUTES DISPOSAL
users of material
266.23
SUBPART D • HAZARDOUS WASTE BURNED FOR ENERGY RECOVERY
APPLICABILITY
recovery in boilers
and industrial
furnaces
266.30(a)
exemption from rule
266.30(b)
STANDARDS APPLICA
BLE TO GENERATORS OF HAZARDOUS WASTE FUEL
generate, market, or
bum fuel
266.32
STANDARDS APPLICA
BLE TO TRANSPORTEF
S OF HAZARDOUS V
fASTE
FUEL
from generators to
marketer or burner
266.33(a)
from marketer
to burner
266.33(b)
STANDARDS APPLICABLE TO MARKETERS C
F HAZARDOUS WASTE FUE
LS
requirements/
prohibition
266.34
STANDARDS APPLICABLE TO BURNERS OF HAZARDOUS WASTE FUELS
January 4, 1985 - Page 5 of 6
-------
RCRA REVISION CHECKLIST 13: Definition of
Solid Waste (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG 15:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
burners that store
266.35(C)
CONDITIONAL EXEMPTION FOR SPENT MATERIALS AND BY-PRODUCTS EXHIBITING A
CHARACTERISTIC OF HAZARDOUS WASTE
5 exemption
266.36
SUBPART F - RECYCLABLE MATERIALS UTILIZED FOR
PRECIOUS METAL RECOVERY
APPLICABILITY AND R
EQUIREMENTS
precious metal
reclaimers
266.70(a)
subject to
reouirements
266.70(b)
records required if
store recycled
materials
266.70(c)
accumulated
soeculatlvelv
266.70(d)
SUBPART G - SPENT LEAD-ACID BATTERIES BEING RECLAIMED
APPLICABILITY AND R
EQUIREMENTS
persons who reclaim
batteries
266.80(a)
storage before
reclamation
266.80(b)
1 Also see technical correction to the rule at 50 FR 14216 (April 11, 1985).
2Not needed if State does not allow the exclusion of 261.6(a)(2)flv).
3 Also see technical correction to the rule at 50 FR 33541 (August 20, 1985).
4Note that Subpart D of Part 266 was completely revised at November 29, 1985 (50 FR 49164).
These changes are addressed by Revision CheckBst 19.
5 States are not required to incorporate this section into their code as it was removed by 50 FR
49164 (November 29, 1985). This change Is addressed by Revision Checklist 19. See Footnote
2 of that checkfist
January 4,1985 - Page 6 of 6
-------
614
Federal Register / Vol 50. No. 3 / Friday. January 4. 1985 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260,261,264,265, and
266
[SWH-fUL 2703-71
Hazardous Waste Management
System; Definition of Solid Waste
aqincv: Environmental Protection
Agency.
action: Final rule.
8UMMAHY: On April 4.1983. EPA
proposed to amend its existing
definition of solid waste used in
regulations implementing Subtitle C of
the Resource Conservation and
Recovery Act (RCRA). Most of the
proposal dealt with the question of
which materials are solid and hazardous
wastes when they are recycled. The
Agency also proposed general and
specific standards for various types of
hazardous waste recycling activities.
We are finalizing much of the rule as
proposed, but have made a number of
changes and clarifications. The effect of
the rule is to clarify the extent of EPA'a
jurisdiction over hazardous waste
recycling activities and to set forth the
regulatory regime for recycling activities
"subject to the Agency's jurisdiction.
datis: Effective Dater. These rules with
exceptions noted below, become
effective on July 11989. Sections
261.1(b). 261.2(e). and Part 266 Subpart F
(rules for which the regulated
community does not need time to come
into compliance) are effective December
2a 1984.
Compliance Dates: AO persons who
generate, transport treat store, or
dispose of wastes which are covered by
today's regulation must notify EPA or a
State authorized by EPA to operate the
hazardous waste program of their
activities under Section 3010 of RCRA
no later than April 4.198S unless these
persons previously have notified EPA or
an authorized Stats that they generate,
transport treat store, or dispose of
hazardous wastes and have received an
identification number. Notification
instructions are set forth in 45 FR 1274&
February 26.198a1
All existing hazardous waste
management facilities which treat store,
or dispose of hazardoua waste covered
by today's rule end which qualify to
manage these wastes under interim
1 Under the Solid Wm Otepoeal Amimiminls at
1S80 (Pub. L SS-UJ (October ZL1SBB)). EPA wes
^vn te upUtfi of wiWc| tin nn«1 Button
reqnttenem sader section 3010 of RCRA. foflowtaj
wviiion of the ssettoa xm isfutsliaaa. it fee
diicrabaa of tha Administrator.
status under section 3005(e) of RCRA
must file with EPA or a State authorized
by EPA to operate the hazardous waste
program to notification by April 4.1985.
and a Part A permit epplicetion by July
5,1985. Under the Solid and Hazardous
Waste Act Amendments of 1984. a
facility is eligible for interim status if
they were either in existence on
November 19,1980 or wren in existence
on the effective date of any statutory or
regulatory change under RCRA that
requires them to obtain a section 3005
permit See RCRA amended section
3009(e). Facilities which have qualified
for interim status will not be allowed to
manage the wastes covered by today's
rule after July 5.1985. unless: (1) They
file a notification with EPA or an
authorized State by April 4,1985, and (2)
they submit an amended Part A permit
application with EPA or an authorized
State by July 5.1985 (see 40 CFR
270.10(g)).
ADOUSSU: The official record for this
rulemaking is located in Room S-212A.
U.S. Environmental Protection Agency.
401M Street SW„ Washington. D.C.
20460 and is available for viewing from
9M ajn. to 4A) pa, Monday through
Friday, excluding holidays,
ran njirrMDt information coktact.
RCRA Hotline, toll free, at (800) 424-
9346 or at (202) 382-3000. For technical
information, contact Matthew A. Straus,
Office of SoUd Waate (WH-662B). UA
Environmental Protection Agency. 401M
Street SW, Washington. D.C. 20460
(202)475-6551.
PART L introduction and Background
L Legsl Authority.
0. Altamativae
A. Alternative Approaches of Determining
When Secondary Materials Which An
To Be Recycled Are RCRA Solid Wastes
B. Alternatives for Regolettng Hazardous
Wastes That Are To Be Recycled
IH As Overview of the Final Definition of
Solid Waste
A Materials That Are Solid Wastes
1. Types of Recycling Activities That Are
Within the Agency's Sub tide C
Jurisdiction
1 Types of Secondary Materisls That
An Within the Agency's Subtitle C
jurisdiction
S. Secondary Materials That Are Subtitle
C Wastes When Recycled in Particular
Ways
B. Secondary Materials That Ars Not SoUd
Wastes
C Variances From Qassificstion As Solid
Wastes
Part U: Secondary Materials That Are
Subtitle C Solid And Hazardous Wastes
When Recycled
L Definitions of Particular Terms Used la the
irf Waeta
A. Spent Materials/Sludfws/By-Prodacta/
Soap Metal
1.Spent Materials
2. Scrap Metal
a. Classification
b. Recycled Hazardous Scrap Metal Ij
a Solid Waste
c. Definition of Scrap Metal end
Regulatory Distinctions Between Scrap
Metal and Other Metal-Containing
Wastes That Are Recycled
X By-Products Versus Co-Products
B. Definitions Of Incinerator. Bailer, and
Industrial Furnace
1. General Classes of Combustion Units
2. Definition of Incinerator
3. Definition of Boiler
a. Adoption of a Standard Based on
Integral Design of the Device
b. Supplementation of Integral Design
Standard With Additional Physical
Standards
4. Definition of Industrial Furnace
IL Discussion of Specific Provisions of the
Revised Definition of Solid Waate
A. Section 261.1(b): Purpose and Scope
1. Uae of the Regulatory Definition of
Sohd Waste Only (or Purposes of tha
Subtitle C Regulations
2. Use of the Statutory Definition for
Purposes of Sections 3007,3011 and 7003
B. Section 2812Tb): Materials That Are
Solid Wastes Because They Are.
AbttdOBMft
C Section 28U(c)(l): Wastes and Waste*
Derived Products That Are Used in a
Manner Constituting Disposal
1* Tha Proposed Provision
1 Extension of Jurisdiction to Hazardoua
Waste-Derived Products That Are
Applied to the Land
3. Regulatory Strategy for Commercial
Products Hazardous Wastes
That Are Placed oa the Land
0. Section 28U2(c)(2): Wastes That are
Burned to Recover Energy, are Used to
Produce Pods, or are Contained in Fuels
1 Materials That are Wastes When
Bomedes Fuels
X Determining When a Waste is Burned
for Energy Recovery and Applicability of
fte Rales to Burning for Materials
Recovery
a. Burning for Energy Recovery
b. Burning for Material Recovery
c Amendment to Applicability Section
of Subpart O of Parts 2M and 2ftS
d. Examples of How These Provisions
Open to
3. The Agency's Future Plans for
Regulating Burning of Hazardous Waate
for Bnsigy Recovery
4. Regulation of Generators.
Transporters, and Storers of Hazardous
Wastes Before the Wastes Are Burned
far Energy Raconry
& Sectka 2814(c)(3): Reclamation
1. Definition of Redamatioa
t The Stems of Reclaimed Products
F. flection 2BL2(c){4): Westes That Are
Accumolated Speculatively
1. Grouping of Speculative Accumulation
and Overaccumulation Provisions
2. Section SL2(cM4K Ah Wastes That
Are Accumulating With Expectation of
. Recycling But Which Have Not Been
Recycled
-------
Federal Register / Vol. 50. No. 3 / Friday, January 4. 1985 / Rules and Regulations 615
3. Section 261.2(c)(4)(B): Waste*
Accumulating Before Recycling That Are
Not Recycled in Sufficient Amount!
a. Tie Proposed Provision
b. The Final Regulation
c. The Requirement That Materials of
the Same Class Being Recycled the Same
Way be Counted Together
d. Means of Satisfying Burden of Proof
e. Response to Comment*
f. Variances for Secondary Materials
Not Recycled In Sufficient Volumes
C. Section 28V2(d): Secondary Materials
That Are Designated as Solid-Waste*
1. The General Standard
2. Application of the Standard to Specific
Wastes
H. Section 281.2(e): Secondary Material*
That Are Not Solid Wastes When
Recycled
1. Secondary Materials Used As
Ingredients to Make New Products or
Used ae Substitutes for Cmneraii
Product*
a. Tha Agency's Subtitle C funsdictloa
b. Redrafting of the Exclusion in dbe
Final Rule
c. Ditttaguisiuni Stare Situation*
Z Gtottd-Loop Recycling
«. The Agene^s Proposal
b. Modification of the Proposal
c. Explanation of the Requirement*
Thai Secondary Materials Not Be
Reclaimed, end That They ba Returned
to the Original Process
4 Variance far Hasardou* Wastes ¦
TTiet Are Reclaimed and Then Returned
to the Original Process
e. Examples
3. Recycling of Secondary Materials By
Primary Facilities
a. Hie Agency's Proposal
h. Modification of the PtopomI
c Examples
I. Secondary Materials Specifically
Excluded 7mm the Definition of Solid
Waste
J. Section 2B14a)(a): Black liquor
Reclaimed aad Reused in tha Kraft Paper
2. Section 28l4»lfn Spent Sulfuric Acid
Used To Produce Virgin Sulfate Add
f. 5eciiea2tL2f/):8ardaaefftroefui
Enforcement Actions
PART lH Standard* for Managing Hazardous
Wastes That era Recycled
I An Overview of be Final Regulations
A. Outline of the Pinal Pifnlattrm*
B. thsyapUgft*
C. Suomuy
u. Ditcussioa at Specific ftwrisfcms of the
Regulation
A. Section 201.0(a)(1): Recyclable Materials
B. Section amalfflfl) aad Put an
Subpart C Recyclable Materials Uaad In .
e Manner Constituting Disposal
1. The Proposed Rule
Z The FInaJ Rule
a. Exemption for Hatardaui Waste*
Ptfiwd'ftBiliimi
«. Exemptioo for Commercial Haxardoua
Waste-Derived Fertilisers
5. Regulation of Transport and Storage of
Haxerdovs Wsete Beta* Processing of
Waste-Derived Products To Be Pieced on
the Lend
8. Example
C Section 2Sl.6(a)(2)(ii) and Part 266
Subpart 0: Recyclable Materials Bumed
For Energy Recovery in Boilers and
Industrial Furnaces
D. Section 2ei.fl(a)(2)(Ui) and Part 2S6
Subpart E: Recycled Used Oil
E. Section 28l.d(al(2l(iv) end Put 286
Subpart F: Precious Metal Reclamation
1. Retention of the Partial Exemption
2. Definition of Precious Metal
3. Distinguishing Sham Operation*
4. Status of Wastes From Precious Matal
Reclamation When Hazardous Wastes
Are Reclaimed
F. Section 28l.«(a)(2|{v) and Part 268
Subpart G-- Spent Lead-Add Batteries
Being Reclaimed
C. Recyclable Materials Exempt From
Regulation .
r. Section 2dl-B(a)(3}(]]; Reclaimed
Industrial Ethyl Alcohol
4 Section 2W.9f8)/3)fil): Used Batteries
Returned to a Battery Manufacturer hr
Regeneration
Section 2BlJ(a][3)(iif|: Used Oil
Exhibiting a Characteristic of Hazardous
Waite
4. Section &l-6(a)H)[Ivfc Scrap Metal
H, Section 281.6 (b! and (c): Raqiumnsnu
for Ceneratora. Transporters, end
Storage Faculties
1. The Generally Applicable Standards
2. Conforming Amendments to If 261.5.
284.1. and 2SS.1
3. Revision of 1280.10: Definition of
"Designated Facility"
L Variances
1. Case-by-Case Regulation
a. The Substantive Standard
b. Procedure* for Case-by^ase
Determination
2. Variances From Oaasifleattm as e
Solid Waste
e. Materiala Accumulated Without
Su&dsei Amounts cJ Materials Being
Recycled
b. Material* That Are Reclaimed and
Than Reused Within the Original
Primary Procesa In Which They Were
Generated
c. Matertals That Have Been
Reclaimed But Mast Be Reclaimed
Further Before Recovery C* Completed
1 Variance To Be Classified a* e Boiler
4. Procedure for Variances
& Should EPA Adapt a Variance for
Batch Tolling Agreement*
PAST IV: Economic. Environmental and
Regulatory Impact*
L Stat* Authority .
A. Applicability in Authorised States
B. Eflsct oa State Authorisations
0. Reguletory impect
QL Regulatory Flexibility Act
IV. Paperwork Reduction Act
V. List of Subjects
tUmjMMTAAY IKPOMIATtOtfc Under
Subtitle C of RCRA. EPA Is granted the
authority to regulate hazardous wastes.
Hazardous waatea, however, are defined
ia the statute as a subset of "solid
waste." (See Sections 1004(5) aad
1004(27).) It thus la necessary to. define
what a solid waste ia in order to
determine the extent at EPA's
jurisdiction under Subtitle C.
On April 4.1883, EPA proposed to
amend the existing regulatory definition
of solid waste. See 48 FR14472. The
proposal defined which materials were
solid wastes when disposed of. burned,
incinerated, or recycled. The greater
part of the proposal dealt with the
question of which materials are solid
wastes when recycled—the area where
the extent of the Agency's authority is
not explicit on the face of the statute.
EPA also proposed regulatory standards
for various types of hazardous waste
recycling activities, with the standards
varying according to the type of activity.
EPA received well over one hundred
comments on the proposed rule,
including comments from states, waste
geisentea. waste ncycien.
environmental groups, and members of
tbe public The Agency also held three
public heatings on the proposal, al
which we received additional
comments. Virtually aUcommentera
agreed that the propoeed rule was a
substantial improvement over the
existing regulations because it replaced
the "sometimes discarded" feature of
the existing deflniUon-'The majority of
(he commenters also supported the
¦ proposal (or at least key parts of It).
Many commenters. however, expressed
concern that the proposed rales were -
very complicated. Other criticisms were
substantive. Some waste generators
challenged die Agency's dassification of
certain recycling activities as waste
management, or even reiterated a
challenge to EPA's authority under
Subtitle C of RCRA to regulate recycled
materials as solid wastes. Commercial
recyders were divided In their reaction,
with commercial chemical waste
recycles* (who would generally be
regulated more comprehensively under
the proposal than under the existing
¦ rules) being generally favorable, while
recyders of metal-containing waste
were generally opposed.
Reaction boa state* also was
divided. (Them were fourteen comments
from slate or government agencies. The
State of Nebraska also conducted an
informal survey of 2S states for their
reactions to the proposed rules. Some of
the survey respondents were among the
direct commenten to the Agency.)
Although then were favorable
comments, some state officials
expressed cottars with some of the
*4S CfR a>L3(M (a aad (11 Indicate that »pen(
paiariah aad by pna duett that awaetimea ix
discarded ass eoW wast**. TM» Meadaid appliet
all enMtala «f a ghrea type and eo cheian
fenaraww with Iwleda* et what other generaio..
da with the tarn material.
-------
616
Federal Register / Vol 50, No. 3 / Friday, January 4. 1985 / Rules and Regulations
proposed conditional exemptions from
regulation. They argued that the
exemptions were too broad, particularly
with respect to lack of notification,
recordkeeping, and waste tracking
provisions. Some states also criticized
the absence of storage controls on
certain recycling operations. States and
administrative agencies were virtually
unanimous in urging the Agency to take
more and immediate action against
burning hazardous waste-derived fuels
and contaminated used oil
The major environmental group to
comment on the proposal was critical of
many of the provisions, particularly the
conditional exemptions for certain
hazardous waste recycling activities.
The Congressional Office of Technology
Assessment voiced similar criticisms.
Certain (but not all) segments of the
non-recycling commercial hazardous
Waste manngawKflt community »l"
criticized the conditional exemptions.
After reviewing the comments, D>A
has decided to adopt the proposal as a
final rule, but with a number of
modifications and clarifications. In
defining s solid waste, the key concept
of the proposal was that ordinarily one
must know both what a material is and
how it is being recycled before knowing
whether it is a solid waste. We are
retaining this concept, which had
substantial support from commentera. in
the final rule. Although we are
to this conceptual approach, we an
making substantive changes regarding
which secondary materials are wastes
when burned as fuels and when placed
on the land, and also regarding certain
of the proposed exclusions, which we
now think were ambiguous or
overbroad. In addition, we are clarifying
how the regulations apply to tha
recycling of hazardous scrap metal: wa
are also indicating explicitly that
types of materials being recycled an not
solid wastes.
We an also altering die proposed
regulatory regime. The most significant
change is to eliminate most of the
proposed conditional exemptions. These
exemptions, we now believe, would not
have adequately protected human
health and the environment from the
risks of leaks and (pills.
We also have made a number of
drafting changes to darify the definition
of solid waste end tts accompanying
regulatory provisions. "We have revised
the definition to state more clearly die
types of recycling activities that do or
do not constitute waste management
and have included a chart of materials
and recycling activities (Figure 1 to the
proposed rule) as part of the final rule.
Accompanying definitions have been
transferred to a new applicability
provision in S 261.1. We also an
expressing certain exceptions to general
principles as variances, contained in
Part 280.
Today's preamble is organized into
four large sections. Part 1 contains a
background discossion and a summary
description of the final regulation. Part II
deals with the question of which
materials are solid wastes, and
especially the question of which
materials an solid (and hazardous)*
wastes when recycled. Part in discusses
the management standards far
hazardous waste recycling activities,
and Part IV addresses the regulatory
impacts of the final rule.
Described in more detail. Part I of the
preamble describes briefly the Agency's
legal authority, and alternative
approaches the Agency considered
instead of the one actually adopted. The
final section of this part of the preamble
summarizes the portions of the final rule
stating which hazardous secondary
materials an and an not ROIA Subtitle
C wastes when recycled.
Part II of the preamble dlscnsses the
Agency's jurisdiction (under Subtitle C)
over secondary materials that are to be
recycled. We explain each provision in
the rule that states wUdi hazardous
secondary materials are and an not
RCRA Subtitle C wastes when recycled.
We first explain the new definitions
involved in the rule—principally
regarding types of secondary materials
and types of thermal combustion units.
We next discuss each provision of the
rule stating when hazardous secondary
materials that are to be recycled an
wastes. For each provision, we discuss
the proposed rale, the final rule, how
and why It differs from the proposed
rule, ami respond to major comments. (A
separete background document
responding to each comment is part of
the record for this rulemaking.)
Ir Pert m. we describe the regulatory
standards for hazardous wastee thet are
to be recycled. We also discuss in this
section the variance provisions that an
part of the final rula.
Part IV summarizes the economic and
regulatory impacts expected to result
from this regulation. A separete report
on the economic impacts is part of tin
record far this rulemaking
'Although hassfdoas wastao an a sofaast ofaoDd
wmttm »aar BOA. IPA'i miiUlaty mlmlly
¦BOV WBQBi W aPfPSHf V OBBMIHM
Stan tha praam Hfslaaoes apply aety m tMth
C *• haie «hes« to eeka the ddtoiboe ef seM
waata appUcabia to thoaa aatarials thai alia w*
tusriwuilaa IwirtillXrflUbrioa.
Tha tanaa tfcsa art fjmoayMaa farpaipooaa of d»
SnbttUa C mulaitona t» sddlMne, wa ata aatag tha
Ma* (at writ aa ifca tam "waata* or "Sobtitla C
waits") lyMnjMHly la this pmablii
Part L Introduction and Background
I. Legal Authority
The Agency in the April 4 preamble
described fully its position that
Congress gave EPA authority to regulate
recycled secondary materials as solid
and hazardous wastes under the Subtitle
C regulations. See 48 FR1447114502-
503. Subsequent legislative
pi»m«niii'»miint« again confirm OUT
interpretation. See HA. Rep. No. 98-198.
98th Cong. 1st Sees. at 48. Some
commenters repeated old arguments
challenging the Agency's authority, but
raised no points not already answered.
We consequently see no need to discuss
these points again. In any case, the
recent Hazardous and Solid Waste Act
Amendments of 1984 (HSWA) appear to
have setUed this question by explicitly
requiring EPA to adopt "standards
applicable to the legitimate uae. reuse,
recycling, and reclamation of
(hazardous) wastes" (RCRA amended
section 3001(d)(2]V We add that the
Agency's construction is made in the
context of a "legislative directfve. . .
(that) is implicit rather than explicit",
and that the construction is a
"reasons bis interpretation" of tha
fnMg^irat statutory tean "solid waste".
Chevron USA. v. NRDC — UJL .
(1984). The Agency's construction
thus is surely a "pamisaibie" ana. Id. at
Certain other t imiineiitaia indicated
that RCRA provides EPA wtth
unrestricted authority to regulate all
recycling as waste management. The
Agency does not fully accept thia
argument We agree that RCRA
T***a gauaial inlmilpU that most
hazardoua secondary materials * are
considered to bo haardooa wastes
when recycled. Congress enacted e
regulatory approach to deal with tha
problem of ensuring safe hazardous
waata management (HA. Rep. No. 94-
1491.98th Cong. 2d Seea. at 4.) We
indeed believe that the statute expresses
a presumption that accumulated
hazardoua secondary materials are solid
and hazardous wastes In order that this
regulatory approach bo appted to "tha
last remaining loopteie Id
environmental law" Vd.\ Wa believe,
however, that tha peal at authority tn
RCRA over tecycling aUtvlUae ia not
-------
Federal Register / Vol. 50. No. 3 / Friday. January 4. 1965 ( Rules and Regulations
617
unlimited. Specifically, we do not
believe our authority extends to certain
types of recycling activities that are
shown to be very similar to normal
production operations or to normal uses
of commercial products. We also do aot
accept the argument that a potentially
harmful recycling practice is invariably
subject to regulation under Subtitle C
since potential environmental harm is
not always a determinative indicator of
how closely a recycling activity
resembles waste management We again
believe that this construction is a
permissible one. Chevron supra.
U.S. at ¦ (This discussion is
developed further in Section H. at Part
II. of the preamble.)
II. Alternatives
A. Alternative Approaches for
Determining When Secondary Materials
Which Are To Be Recycled Are RCRA
Solid Wastes
As stated in the preamble to the
proposed rule, determining which
secondary materials are wastes when
recycled presents conceptual and
practical difficulties. The Agency
considered several approaches other
than the one ultimately adopted but
ended by retaining the overall approach
proposed initially.
It is evident that the Agency is
adopting a complicated regulatory
scheme. There are two simpler
alternatives: to say that all secondary
materials being recycled are wastes, or
that all are not wastes. Neither of these
alternatives is satisfactory. The
Agency's May 19,1980 definition took
essentially tin former approach and it
proved unacceptable to both the Agency
and the regulated community (see 48 FR
14475). Comments were virtually
unanimoua In urging the Agency to
reject this approach.
Not classifying recycled material! u
wastes is equally unacceptable. We
read the statute to state that hazardous
secondary materials being recycled are
wastes and that we ordinarily have
Jurisdiction to regulate moat recycling
activities involving these materials. We
also believe that regulation of moat of
these activities is necessary to protect
human-health and the environment.
Furthermore, we doubt whether
completely avoiding regulation would
necessarily promote recycling, as some
commenters maintain. Tlie Agency is
Impressed by comments of both
generators, states and members of the
recycling community who state that
some regulation is needed to assure both
the public and generators that their
wastes will not be mishandled when
sent to recycle ra. See comments of
National Association of Solvent
Reclaimers, Washington, D.C. Public
Hearing. June 16.19B3: Comments of
American Electronics Association. San
Francisco Public Hearing. Iuna 23,1983.
Comments of Slates of Iowa and
Michigan (August 1983). These persons
maintain that regulation of these
activities will encourage wastes both to
be recycled, and recycled in a
responsible manner.
Another approach, discussed in the
April 4 preamble, would be to use a
standard based on value, whereby a
recycled material would count as a solid
waste when a person other than the
generator is paid to recycle it Although
this factor is relevant for enforcement
purposes in determining whether a
recycling activity is a sham, the Agency
continues to believe that it is not a
successful regulatory approach for the
reasons given in the April 4 preamble.
See 48 FR 14478-481. Most commenters
agreed with the Agency that this
approach should not be adopted.
The Agency also attempted to fashion
a narrative definition stating
categorically whether secondary
materials are or are not wastes. The
narrative standard would be based on
whether materials are typically dealt
with as commodities, and whether they
contain significant concentrations of
non-recyclable toxic constituents not
customarily found in analogous raw
materials. (See 48 FR 14476 at nJ.)
The Agency continues to believe that
this type of definition is too subjective
to serve aa a self-Implementing
standard. Commentary agreed. The
Agency also continues to think, and
commenters generally agreed, thai in
most cases one must know both what
the material is and how H is being
recycled before determining whether it
is a waste. A narrative definition based
on the nature of the material itself thus
cannot serve successfully as a
regulatory standard.'
B. Alternatives for Regulating
Hazardous Weetes That Are To Be
Recycled
In considering how to regulate
hazardous wastes that an to bo
recycled, the Agency differentiated at
proposal between facilities presenting a
significant risk of waste
overaccumulatlon before recycling and
those that did not We viewed
overaccumulatlon as the chief danger to
•lln Aflney dana battava thai mm Mcondaqr
main«l» aia inhnnrtr Tarta Ilia awl wtH nrarlfr
in &a tola that daw materials ait nUd warn*. Saa
I SU(d|. Par it* most put ho—>a». (Uak that
a aaeaadair awuriara MasUqr as a amia WM
both «a vhai H ts. and hoar II ta neycM.
guard against and so proposed to
conditionally exempt from regulation
those types of recycling operations that
do not present a significant risk of
overaccumulatlon before recycling. See
48 FR 14477,14488, The chief types of
recycling operations that would have
been conditionally exempt were those in
which a generator reclaimed its own
wastes, those in which a reclaimer
reclaimed for its own subsequent use. or
when wastes were reclaimed pursuant
to batch tolling agreements. Id. At the
same time, we indicated that we were
continuing to evaluate whether
hazardous waste leaks and spills could
occur at these operations (before
prolonged accumulation) and whether
regulation was necessary to protect
human health and the environment. Id.
at 14477. In essence, we investigated
further the hypothesis that if these
wastes wen handled as if they were
products, and were not
overaccumulated. they would be
managed safely without RCRA controls.
We have come to the conclusion that
most of the conditional exemptions that
we proposed were unjustified, because
the risk of damage from spills and leaks
at these facilities indicates that
regulation is necessary to protect human
health and the environment Simply
because a waste is likely to be recycled '
will not ensure that it will not be spilled
or leaked before recycling occurs. In the
first place, the analogy we drew at
proposal—between wastes stored
before certain types of recycling and
products stored before use—is
frequently incorrect Wastes in many
cases have tittle Independent economic
value, but are recycled to avoid disposal
costs. Persons storing this type of
hazardous waste before recycling are
very much like persons storing
hazardous waste before disposal: there
is nothing about the waste that makes it
so valuable that safe handling is assured
absent regulation.
Furthermore, safe handling is not
always assured even for hazardous
wastes that are more like commodities
in terms of value. A company's decision
on how carefully wastes are handled
before recycling turns chiefly on a range
of factors principally the value of the
wastes being recycled and the value of
the end products of recycling versus the
cost of purchasing additional raw
materiaia. the profit margin of the
facility, and the cost of improving the
integrity of the facility. Unless the
wastes are extremely valuable (aa in
legUimata precious metal reclamation)
there ia no imperative incentive to avoid
leaks and spills. In confirmation, there
have been massive leaka of high purity
-------
618
Federal Register / Vol. 50, No. 3 / Friday, January 4. 1985 / Rules and Regulations
solvents and gasoline (to name only
some of the more valuable commodities}
from product storage tanks, showing the
risk of spillage of stored commodities.
The recent addition of Subtitle 1 to
RCRA to control leaks from
underground product storage tanks
confirms that the risk of harm from
spillage is significant Indeed, there have
been a number of instances of
groundwater contamination caused by
improper storage of hazardous wastes
awaiting reclamation by their generator,
hazardous wastes being reclaimed
pursuant to batch tolling agreements,
and hazardous wastes being reclaimed
before use by the reclaimer—the
situations that would have been
conditionally exempt under the
proposal. (See Appendix A.)
Equally important the Agency already
has determined that it is necessary to
regulate hazardous waste storage in
order to protect human health and the
environment and has also determined
that regulations are needed to prevent
the "uncontrolled release of hazardous
waste constituents into the
environment" See 46 FR 2802,2807
(January 12.1981). These prior findings
are relevant to the question of regulating
hazardous waste storage before
recycling. There is a risk, as stated
above, that spills and leaks of
hazardous waste will occur, even if the
wastes eventually will be recycled.
Spills and leaks are the principal
example of uncontrolled hazardous
waste releases from storage and thus
ordinarily require regulatory control.
The Agency is persuaded that its
existing findings an valid for hazardous
wastes stored before recycling except in
those situations in which wastes are so
economically valuable that then is an
economic imperative to avoid release.
The Agency thus finds that the factual
basis for most of the conditional
exemptions in the proposal was not
justified, and that the Agency's general
findings as to the need to control
hazardous waste storage an valid tor
these recycling situations. Hazardous
wastes stored befon reclamation even
when then Is tUk of
ovenccumulation—still can present
significant potential for ham to human
health and the environment if
mismanaged, market
an Insufficient to prevent
mismanagement from occurring.
Regulation thus is called for.
In determining the level of regulation
to adopt for those facilities which would
have been conditionally exempt the
Agency is guided by the principle that
the paramount and overriding statutory
objective of RCRA Is protection of
human health and the environment The
statutory policy of encouraging recycling
is secondary and must give way if it is
in conflict with the principal objective.
See 48 FR 14474/1.14432/2; see also
H.R. Rep. No. 96-198, supra, at 46.' We
accordingly have determined that for
the most part the conditional
exemptions we proposed wen
unwarranted anid facilities recycling in
these ways should be subject to
regulation under the Subtitle C rales.
Ill An Overview of the Final Definition
of Solid Waste
A. Materials That An Solid Wastes
The revised definition of solid waste
states that any material that is
abandoned by being disposed ot
burned or incinerated—or stored.
Mated or accumulated befon or in lieu
of these activities—is a solid waste. The
remainder of the definition states which
materials an wastes when recycled.
The amended definition adopts the
approach that for secondary materials
being recycled, one must know both
what the material is and how it is being
recycled befon determining whether or
not it is a Subtitle C wasta. This
approach differs sharply from the
existing definition (40 CFR2B12), which
states that all sludges, and virtually all
other secondary materials [Le. all those
that an by anyone
managing them (see fn. 2 above)), an
wastes no matter how they an recycled.
In understanding the nvised definition,
therefore, one must «—«¦»«!«• the types of
secondary materials in conjunction with
types of recycling practices.
1. Types of Recycling Activities That
An Within The Agency't Subtitle C
Jurisdiction. The definition states that
four types of recycling activities an
within EPA's jurisdiction:
• Use constituting disposal. This
activity involve* directly placing wastes
or waste-derived products (a product
that contains a hazardous waste es an
ingredient) onto the land. Extending
jurisdiction to waste-derived products
placed on the land npnsents a change
from the proposal:
• Burning waste or waste fuels for
energy recovery, or using wastes to
produce a fuel:
• Reclamation. This activity Involves
the regeneration of wastes or the
recovery of material from wastes;
*Tha Atumf slso 6tm not b«Bw h>
baiaiduos waste vscydtaf wtfl be disooaneid la
dm* sttnattas that «• now lataad to rafnlua. Not
only da St inc wnnul ew> at mulstton «ppaar
to be mUmI (m Nit IV a( Oris prseablsl. bat
(afalatlaa taa actaalljr •acooas* racjrdiaf. Saa 4S
m MOM [May Id lSSO) cad Sacttaa OA abova.
• Speculative accumulation. This
activity involves either accumulating
wastes that an potentially recyclable,
but for which no recycling market (or no
feasible recycling market) exists, or
accumulating wastes befon recycling
unless 75% of the accumulated material
is recycled during a one-year period.
(This provision now includes the
activity referred to in the proposal as
ovenccumulation.)
2. Types of Secondary Materials That
An Within The Agency's Subtitle C
Jurisdiction. These categories of
recycling activities then an divided
further according to the type of
secondary material involved—spent
materials, sludges, by-products, or
commercial chemical products (a
division present in the existing .
regulations—see 40 CFR 261.2(b)(l)(3)).
We also have clarified the proposal by
adding a new category of secondary
material—scrap metaL
"Spent materials" an materials that
have been used end an no longer fit for
use without being regenerated,
reclaimed, or otherwise re-processed.
Examples an spent solvents, spent
activated carbon, spent catalysts, and
spent adds.
"Sludges" an defined in RCRA and
the implementing regulations as residues
from tneting air or wastewater, or other
residues from pollution control
operations. (See RCRA section
1004(28)(A) and 40 CFR 280.10.)
"By-products" an defined essentially
the same way as in the existing
definition to encompass those residual
materials resulting industrial,
commercial. fid agricultural
operations that an not primary
products, an not produced separately,
and an not fit for a desired end use
without substantial further processing.
The tern Includes most secondary
materials that an not spent materials or
sludges. Examples en process residues
from manufacturing or mining processes,
such aa distillation column residues or
mining slags.
"Commercial chemical products " are
the commercial chemical products and
intermediates, off-specification variants,
spill residues, and container residues
listed in 40 CFR 281.33. Although these
materials ordinarily an not wastes
when recycled (see 45 FR 78540-541.
November 25, I860), we an including
them as wastes when they an recycled
in ways that differ from their normal
use. namely, when they en used in a
"""w constituting disposal or when
they an burned for energy recovery,
[assuming these materials sre neither a
pestidde nor a commercial fuel).
-------
Federal Register / Vol. 50. No. 3 / Friday, January 4. 1985 / Rules and Regulations
619
"Scrap metal" is defined as bits or
pieces of metal that are discarded alter
consumer use or that result from metal
processing operations. Examples are
scrap automobiles and scrap radiators
(commonly referred to as post-consumer
soap) and scrap turnings and scrap
fines (commonly referred to as obsolete
scrap).
3. Secondary Materials That Are
Subtitle C Wastes When Recycled in
Particular Ways. As we indicated in the
proposal sludges and by-products
sometimes are difficult to characterize
as wastes or non-wastes when they are
reclaimed. 48 FR14478. Many by-
products and sludges in the mining
industry, for example, are routinely
processed further to recover usable
metals in a manner much like continued
processing of the virgin ore. As stated
above, neither the Agency nor any
commenter could devise a self- .
implementing narrative standard that
convincingly distinguishes between
product-like and waste-like sludges and
by-products being reclaimed.
The Agency thus has structured the
final regulation so that the Agency must
evaluate these materials individually
before determining whether they are
subject to RCRA jurisdiction when they
are to be reclaimed. Thus, in the final
regulation, only sludges and by-products
listed in 40 CFR 261.31 and 261.32 are
solid wastes when reclaimed.7
The Agency does not perceive this
difficulty for the remaining types of
recycling over which we have
jurisdiction Thus, all secondary
materials [i.e. all spent material*,
sludges, by-products, and scrap metal)
are considered to be wastes when they
are used in a manner constituting
disposal, are burned for energy recovery
or used to produce a fuel or an
accumulated speculatively. Hie Agency
proposed that only listed by-products
would be wastes what bunted Car
energy recovery or used to produce a
fuel, but is changing the proposal for the
reasons stated in Section HVJ). of Part
2 of the preamble.
'Hw Apact Intends On leslduw Jain J ft—
redaimtaf Hated by-products tad stodges also bs
CBoSdmd tvbt listed fiv pwpoMtof dria
nsnlattao. This la ta tceon! with 40 CFB
and (d)(2) and 40 CFX TWIttfb). Tbeea prwUluue
«tata that mlduai
-------
620
Federal Register / Vol. 50. No. 3 / Friday. January 4, 1985 / Rules and Regulations
pickling. In these examples, the recycled
materials are substituting for other
commercial products, and material
values are not being recovered from
them.
(3) Return of secondary materials to
the original primary production process
in which they are generated without
first reclaiming them. When secondary
materials are returned to the original
primary production process (from which
they are generated) without first being
reclaimed we likewise believe this
recycling activity does not constitute
waste management This provision has
been modified from the proposal to
cover more precisely those closed-loop
production processes that use secondary
materials as return feed to the original
primary process.
C Variances From Classification as
Solid Wastes
We also have promulgated variance
provisions allowing the Regional
Administrator or authorized States to
determine that certain materials that are
to be recycled are not solid wastes.
There are three such variances:
• Materials accumulated without
sufficient amounts being recycled. The
Agency proposed that persons failing to
recycle 75ft of their accumulated waste
material could petition the Regional
Administrator to declare that the
material Is not a waste. We are retaining
this provision and are formally terming
it a variance:
• Materials that are reclaimed and
then reused within the original primary
production process in which they were
generated The Agency proposed a
complete exclusion for this type of
situation, referred to in the proposal as
closed-loop recycling. We are now
convinced that the proposal was too
broad but that individual exclusions
may be warranted: and
• Materials that are reclaimed but
must be reclaimed further before
material recovery is completed. This
variance would allow individual
consideration of whether an initial
reclamation process is only minimal
processing or whether it substantially
completes the recycling process.
The following tables summarize the
differences between the final and
proposed rules with respect to the
secondary materials that are and are not
solid and hazardous wastes when
recycled:
MLUN8
-------
Federal Register / Vol. 50, No. 3 / Friday. January 4.1985 / Rules and Regulations
621
- 33 -
Table 2: Secondary Materials That Are Solid and Hazardous
Wastes when Recycled: Proposal v. Final Rule
Use Consti-
tuting
Disposal
Burning for Ehergy
Recovery, Use to
Produce a Fuel,
or Fuels Containing
These Materials
Reclamation
Speculative
. Accumulation
If
Final
Proposal
Final
Proposal
Final
Proposal
Final
Proposal
Spent Materials
(both listed and
nan-listed achibit-
tiix a characteris-
tic)
Yes...
Yes.*.
Yes.*»
Yes.* *
Yes...
Yes...
Yes...
Yes...
Sludges (listed)
Yes...
Yes...
Yes...
Yes...
Yes.*
Yes*..
Yes...
Yes...
Sludges (non-
listed achiblttrg a
characteristic)
Yes...
Yea...
Yes..*
Yes* * *
No...
No...
Yes *..
Yes...
By-products (listed)
Yes*«*
Yes...
Yes* * *
Yes* *.
Yes*.
Yes..*
Yes...
Yes...
By-Products
(non-listed achibit-
ing a character-
istic)
Yes...
Yes.*.
Yes.*.
Ho...
No... •
No...
Yes...
Yes...
Cconercial chemi-
cal products
Listed in 40 CFR
S261.33 that are
not ordinarily
applied to the
land or burned
as fuels
Yes...
Yes*..
Yes * *«
Yes...
No.*.
No...
No...
No...
Scrqs Metal
Yes* *.
Yes* * *
Yes* * *
2f
Yes..*
2f
Yes...
Yes...
Yes - Defined as a solid wests
No ¦ Noc defined as a solid vasts
*/ Final rule Includes hazardous waste-derived products (products containing a hazardous taste)
~ that are placed on Che land. The proposal did not cover these waste-derived products.
**/ Sons scrip metal was classified as a by-product inder the proposed rule, «d this type of
scrap natal would not have been a waste when reclained or burned for energy reccwvy.
-------
622
Federal Register / VoL 50. No. 3 / Friday. January 4. 1965 / Rules and Regulations
Tabls 3. Matipials That Are not Souo
And Hazaroous Wastes When recycled:
Proposal v. Final Rule
Mm
|a> Saccndanr iiwtt uaad
l
9 (MM tt IfNVOi
in a product—ft—d
to MM Mr iiM uao
(iMMaaaMi
(W Sacondvy MMi uaad
WodMd and aubaunad ki d)
or raund M MHuit
bdoK
»>r n mctmaM « pnmaiy
10 Quondam niuwu uMd
SM
or rauaad n • pvtcMr
Uoon aa a martMa tor
a uumimriM product.
Id) Saeondary maianata
MMW 10 ana* «# MM«
HBIIId « OW «tM M
art malanatt raunad a*
andfawnadta Iftaanpnal
mm matanan « m q>v
pndueson p^qomi
nat pnowy producaon
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laoaanadE in addMon, Nfr
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fkai lanamad and fian r»
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aaa an aagtta tor a
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Mb
la Malarial accvaau latad
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la MMdll «H/rMM
-------
624
Federal Register / Vol. 50, No. 3 / Friday, January 4. 1985 / Rules and Regulationa
Part 0: Secondary Materials That An
Subtitle C Solid and Hazardous Wastes
Whan Recycled
I. Definitions of Particular Terms Used
in the Amended Definition of Solid
Waste
A. Spent Materials/Sludges/By-
Products/Scrap Metal
The final definition classifies the
universe of secondary materials that are
wastes when recycled as either sludges,
spent materials, by-products, or scrap
metal.'With the exception of scrap
metal, this is the same classification
scheme as in the proposed rule. See 48
FR14476/2. We have not changed the
proposed definition of "sludge." but are
clarifying what we mean by spent
materials and by-products. We also are
explaining the new definition of scrap
metal
1. Spent Materials. We are continuing
to define spent materials as those which
have been used and are no longer fit for
use without being regenerated,
reclaimed, or otherwise re-processed. In
response to comments, however, we
have altered the wording of the
definition of spent material to express
this concept more dearly. As the
proposal was worded, a spent material
was one that had been used and no
longer could serve its original purpose.
The Agency's reference to original
purpose was ambiguous when applied to
situations where a material can be used
further without being reclaimed, but the
further use is not identical to the initial
use. An example of this is where
solvents used to clean circuit boards are
not longer pure enough for that
continued use. but are still pure enough
for use as metal degreasere. These
solvents are not spent materials when
used for metal degreasing. The practice
is simply continued use of a solvent
(This is analogous to using/reuaiiig a
secondary material as an effective
substitute for commercial products.) The
reworded regulation clarifies this by
stating that spent materials an those
that have been used, and aa a result of
that use become contaminated by
physical or chemdal impurities, and can
no longer serve the purpose fat which
they were produced. (Tliis rewarded
definition appropriately parallels the
definition of "used oil"—e type of spent
material—in RCRA section 1004(36).)
In response to comment, we also note
that leftover, unreacted raw materials
from a process are not spent materials,
since they never have been used.
'ComsMrciaJ dwnbcal products liatari la 12S1J1
tlao trt wuta* wtaa racydad to th* Uad or twraod
u fatto. wfeoa thia is aot thtir aonaal unwr at
UM.
Unreacted raw materials thus are not
subject to RCRAjurisdiction unless they
are discarded by being abandoned:
2. Scrap Metal—a. Classification. We
have added a new definition of scrap
metal to the final regulations. At
proposal scrap metal that was
generated as a result of use by
consumers (copper wire scrap, for
example) was defined as a spent
material (This type of scrap is usually
referred to as "obsolete soap".) Scrap
from metal processing, on the other
hand (such as turnings from machining
operations) was defined as a by-
product (It is usually called "prompt
scrap".) Yet the scrap metal in both
cases is physically identical (i.e.. the
composition and hazard of both by-
product and spent scrap is essentially
the same) and. when recycled, is
recycled in the same way—by being
utilized for metal recovery (generally in
a secondary smelting operation).
In light of the physical similarity and
identical meana of recycling of prompt
scrap and obsolete scrap, the Agency
has determined that all scrap metal
should be classified the seme way far
regulatory purposes. Rather than
squeeze scrap metal into either the
spent material or by-product category,
we have placed it in its own category.
b. Recycled Hazardous Scrap Metal is
a Solid Waste. We have further
determined that for purposes of the
regulations implementing Subtitle C of
RCRA, all scrap metal that would be
hazardous* is a solid waste when
disposed of or when recycled (although,
aa explained in more detail below. It is
exempt from Subtitle C regulation at this
time when recycled). Soap metal is
waste-like In that it is a used material
that is no longer fit for use and must be •
reclaimed before it can be used again, or
is a process residua that must be
recovered in e different operation from
the one in which it wea generated.
Wo also believe that scrap metal .
comes within the series of statutory
definitions which state generally that
materials from which resources ere
recovered are solid wastes. See RCRA
sections 1004 (19). (30), (22). (7). (IS).
(23). and (24); see also 48 FR at 14802/1-
2. Based on these provisions, the Agency
has stated that most reclamation
operations involve waste management,
end all reclamation operetioaa utilizing
materials that have been used and that
must be re-processed before they can be
reused constitute waste management
We believe that scrap metal that is
Tut rtnflntlnn nf itili pnlni m ltii rtlmwliw
of I SSl.l(b). Stctiaa UA. at thi* pan of tha
pnaabla.
being reclaimed fits within these
provisions.
c. Definition of Scrap Metal and
Regulatory Distinctions Between Scrap
Metal and Other Metal-Containing
Wastes That Are Recycled. Although
we are defining hazardous scrap metal
as a Subtitle C waste when recycled, we
are exempting such metal from
regulation for the time being. We need
to study types of scrap metal and types
of management practices farther before
deciding an an appropriate regulatory
regime (If any). It thus is important to
distinguish scrap metal from other
metal-containing wastes that are subject
to Subtitle C regulations when recyded.
See Section ILH.4. of Part 01 of the
Preamble.
Scrap metaL as defined in this rule,
means bits and pieces of metal parts
(e-g.. bars, turnings, rods, sheets, wire),
or metal pieces that are combined
together with bolts or soldering [e.g..
radiators, scrap automobiles, railroad
box cars), which when worn or
superfluous can be recyded. Put another
way. scrap metal is defined a* products
made of metal that become worn out (or
an off-specification) and are recyded to
recover their metal content, or metal
pieces that are generated from
machining operations (i.e. turnings,
stampings, etc.) which are recycled to
recover metaL Materials not covered by
this terra indude residues generated
from smelting and refining operations
(/.aw drosses, slags, and sludges), liquid
wastes containing metals [i.e.. spent
adds, spent caustics, or other liquid
westes with metals in solution), liquid
metal wastes (£&. liquid mercury), or
metal-containing wastes with a
significant liquid component such aa
spent batteries.
We have defined scrap metal in this
way based on our general understanding
of die wey industry uses this term. As
noted, this definition does not indude
liquid spent materials that contain
metals. Liquids sre different from metal
pieces in content physical form, and
manageability. Members of both the
National Association of Recycling
Indnatrias (NARI) and the Institute for
Scrap Iron and Steel (ISIS) also
generally agree that liquid wastes are
not commonly referred to as scrap
metaL Although these metal-bearing
liqdda and scrap metal are both
classified aa solid wastes under this rule
(if hazardous), tha regulatory
significance of not including these
liquids as scrap metal is that the liquida
are subject to Immediate regulation
when they an reclaimed (assuming they
en hazanloua spent materials, listed
sludges, or listed by-products) whereas
-------
Federal Register / Vol. 50. No. 3 / Friday. January 4. 1985 / Rulea and Regulations
625
scrap metal is not.10 It is the Agency's
judgment that immediate regulation of
metal-bearing llquidi is appropriate
because: (1) (As liquids) They need
special precautions when managed. (Z)
the current regulatory regime in Parts
284-285 it appropriate, and (3J wastes of
this type have been linked to-a series of
damage incidents when stored before
reclamation.11 The reasons for deferring
regulation of acrap metal thus do not
apply here.
Similar reasoning underlies Ihe
Agency's classification of spent lead-
acid batteries as a spent material
subject to immediate regulation when
reclaimed. Spent batteries are different
in physical form from scrap metal
because they contain substantial
amounts of liquid acid. As discussed In
Section D.G. of Part ID of this premable,
it is appropriate to immediately regulate
the storage of spent lead-acid batteries
at reclamation facilities. We
consequently are classifying and
regelating spent batteries differently
from scrap rnetaL
Scrap metal is also classified
differently from metal-containing
process residues such as slags, drosses,
and sludges partly because it is different
in physical form and content More
importantly, these residues can be
involved in recovery operations that
amount to on-going processing of the .
virgin material and so are not invariably
wastes when utilized for metal recovery.
As noted above, this is not the case
when scrap metal is recovered. For this
reason, all hazardous scrap metal is
classified as a waste (although exempt
from regulation at this time), while
sludges and by-products being
reclaimed must be identified more
particularly by listing before they an
wastes.
3. By-products Versus Co-product*.
We am also modifying the definition of
by-product In the proposed rule, we
said by-products were not primary
products and wen not solely or
separately produced. This language did
not directly address situations when
then an a number of co-products being
produced. By "co-product" we mean a
material produced for on by the general
public and suitable for end use
essentially as-is. Examples are sulfuric
'* h> putnriif. la wrteniae a hcaHai pubbihid
by the National Aaaodaboe of tUcrdtai Indaatrtea
(NAM) wtojefc dimfiti aoa-teroB* acnp tats IS)
diBmnt caiaeoitM. moat ei tha cataeoriae
daacrlbad ap|iiuilm»ialj> SBpaiuanl ufan to
metal ptaoaa (iIa. wtra. i iiilnjit ctipptash
oaiaL ilafaa. ate). Baa NAM Qradar HMl
Standard CUaMflcattcB tar Nan Fa»aui gga»
Matal Tha lsstttnta of Soap boa and Steel (8B)
likawtaa elaaatfiaa wrap metel aa nets! piaoa.
11 See Appendix A.
acid from smelters' metallurgical acid
plants, various metals produced in
tandem by smelting operations (such as
lead recovered from primary copper
smelting operations), or co-products
such as kerosene, asphalt, or pitch from
petroleum refining. These co-products
are not (and were never intended to be)
covered by the regulations.
We therefore are clarifying Uw
definition to indicate that by-products
are materials, generally of a residual
character, that are not produced
intentionally or separately, and that are
unfit for end use without substantial
processing. Examples are still bottoms,
reactor cleanout materials, slags, and
drosses.
On the other hand, materials
produced intentionally, and which in
their exisitfng state are ordinarily used
as commodities in trade by the general
public, are considered to be co-products
and not by-products." In response to
comment we also note bat these
materials can be produced from a
combination of processes at a facility,
and need not result from one single
process. (It is also possible to put a by-
Gxiuct to use—for example a still
ttom can be used as an intermediate
to make a new product The still bottom
would not be considered a waste under
the amended definition due to its
manner of recycling—use aa an
ingredient, il would, however, still be a
by-product).
B. Definitions of Incinerator. Boiler. and
Industrial Furnace
1. General Classes of Combustion
Units. Many enclosed devices are used
to mat hazardous waste through
controlled flame combustion." The
proposed regulations divided that
universe into three groups: incinerators,
boilers, and industrial furnaces. We are
adopting this same tripartite division in
At final rule. The Agency already
regulates tha emissions from hazardous
wests incinerators and intends to
ngulata the emissions from combuation
units that bum hazardous wastes for
energy recovery. Regulation will be
established at a level that is necessary
¦ W» no—. huwaiu. thai, pradncti of rw pmlurti
tfcw tadada hmrrtuue wwaa aa infill inII tn
duaifledaa«tf«a» wfaeD thtyai* to ba bemad tor
Mgiaaiiiii or plicaddbiafr aetbetaadlpr
baoafldal aaa. Sea Becttont V.C. and VS. of tto
pattaftfcepteasMe.
• Itae en ate a fnr fenndaar «ad»
aMaeenam davtaaa wWdi ntf an tfaanaal
BMOTl QOC OB 001 Hilwqf QOBOW V TOOT
waara EPA wifl allow panalittasof thoea drrtcea
oadar tba crttarta cf (OCR Put mkSabpartK
Ottai UnibhI TiaaMBt a* aariar tto eriMa si •
CTt Part Mt. Subpart X: MjaceUaaeoua Waatt
MaaaeHWU. Mlnttoi pwmifitlw of Aoea
Bebpaita.
to protect human health and the
environment It is necessary to
distinguish among the types of
combustion units, however, because
incinerator* are being regulated sooner
than boilers and industrial furnaces, and
because the ultimate standards for
boilers and industrial furnaces may vary
from each other, as well es from the
standards for incinerators.
2. Definition of Incinerator.
Incinerators burning hazardous waste
are subject to the permitting standards
of 40 CFR Part 284. Subpart 0. An
incinerator is defined as any enclosed
device that is neither a boiler nor an
industrial furnace that uses controlled
flame combustion to treat waste. This
definition differs from the text of the
proposal in order to make it clear that
the three defined units—incinerators,
boilers, and Industrial furnaces—cover
die entire universe of enclosed devices
using controlled flame combustion to
treat hazardous waste. The regulation
also amends the former definition of
incinerator, promulgated on May 19.
1880. which defines the device in terms
of the primary purpose for which wastes
are burned. However, this change is
essentially a clarification of the existing
rules which should have little effect on
the number or identity of units already
subject to Subpart 0. Aa we stated at
proposal, incinerators are built to
destroy hazardous wasts, so wastes
bunted Id them are obviously being
burned for the primary potpoee of
destruction. 48 FR14484/2.
The May 1ft 1980 definition focused
on whether each waste fuel was burned
for the primary purpose of destruction.
Today's regulatory scheme more
appropriately describes how one can
the nature of the combustion
unit to recognize combustion for
purposes other than destruction. It then
classifies units used lor those activities
as either boilers or industrial furnaces. If
combustion of a waste does not meet
the criteria lor those classes, then the
primary purpose of its combustion to
necessarily destruction. Thus, it should
properiy remain subject to the
permitting standarda of Part 284,
Subpart O.
Conforming changes are being made
in il 284340 and 28&340 defining the
applicability of Subpart 0"s standards
for incinerators. Similarly. 128&370.
defining the applicability of the interim
status standards for other therms]
treatment. Is being amended. These
changes clarify the coverage of flame
combustion devices, bat do not alter
existing obligstiona.
3. Definition of Boiler. Boilers burning
hazardous waste for energy recovery
-------
628
Federal Register / VoL 50. No. 3 / Friday. January 4. 1985 / Rules and Regulations
now fall within the exemption from
regulation of actual recycling processes
found in 40 CFR 281A pending
promulgation of substantive regulations
controlling emissions from burning
hazardous wastes in them as may be
necessary to protect human health and
the environment Jhus. boilers do not
now require RCRA permits to continue
their combustion activities. (Storage of
certain hazardous wastes before burning
requires a storage permit and the
transport of these wastes is regulated,
however. See 40 CFR 281.6(b).)
a. Adoption of a Standard Based on
Integra1 Design of the Device. The
definition of boilers focuses on physical
indicia of their legitimate use for energy
recovery. The final definition, like the
proposal, relies upon the concepts of
integral design, combustion efficiency,
and energy recovery. This reflects the
fact that boilers, unlike incinerators, are
designed and operated to convert fuel
into more usuable energy (generally
steam). This is most efficiently done
when energy recovery devices, such as
water vessels, are physically in contact
with (integrally connected to) the
combustion chamber in which the fuel is
burned." A consequently proposed
that the combustion chamber aad heat
recovery sections of a boiler must be of
integral design—physically formed into
a single unit—and that significant heat
recovery must take place in the
combustion chamber by means of
radiant heat transfer.
Many parties commented on the
proposed definition. Some had
generalized objections to the basic
concept of a test based on physical
criteria, arguing that it would stifle
innovation and that it was unrelated to
environmental protection. Others had
specific criticisms related to the
proposal's exclusive reliance on radiant
heet transfer as the measure of
"significant heat recovery." Commenters
also described a few specific types of
legitimate boilers which might not meet
the proposed "integral design" test
EPA has considered, but is
unpersuaded by. the general criticism of
the rule's reliance an physical criteria to
differentiate between these units.
Significant regulatory consequences
spring from the distinctions between
classes of combustion devices. Thus. It
is important that the tests for those ¦
distinctions be unambiguous and easy to
apply. The physical test of integral
14 vn NoMud*a Sdmtifk Kgeyekptdfa (Stk
Ed.) at 3M-ai daflnaa "boilar urfaca" as thoaa .
paita "which ar* to contact wttfatba bo* |aaaa on
om tida aad watar or a abctm of watar aad mm
on tha other aid*." Sm otaa. McCnw Hill
&icyclBpariwo(18Sqat
design meets those needs. The test also
has environmental significance since it
will pinpoint those cases in which the
unit is not designed to achieve efficient
energy recovery and. thus, cannot be
relied upon to attain complete
combustion.
Adverse impacts on innovation are
unlikely to occur since the test focuses
on efficient transfer of energy from fuel
to fluids—the most common and
widespread element of boiler
technology. Furthermore, extensive
comments actually identified only two
limited classes of boilers for which the
test could be inappropriate: the final
regulation specifically deals with those
classes, as discussed below. Finally,
EPA has provided for a case-by-case
determination that a unit is a legitimate
boiler, based on an assessment of
specified relevant factors.
Under the final rule, therefore, the
great majority of boilers can be
unambiguously identified by a simp la
examination of physical design while a
case-by-case asseesment can be mede
of the few units for which it is possible
that the physical test is inappropriate.
b. Supplementation of Integral Design
Standard With Additional Physical
Standards. Tha integral design test is
supplemented by quantified criteria for
continuous and long-term energy
leumwy. These supplementary tests are
designed to ensure that units that an
physically designed as boilers an not
actually being used to destroy
hazardous waste. In the final regulation .
these criteria an quantified and placed
in the regulation to avoid the ambiguity
about regulatory coverage which might
have arisen if they had bean left in tha
preamble, as at proposal. (A specific
background document explains these
criteria in detail)
The final definition does include
several changes based on specific
technical comments. These are
discussed in the background document:
however, the major points an
mentioned hen.
Pint the definition of boiler now
identifies specific units procsss
heaters and Huidized bed combustion
units—which an generally —«
as boilers but for which the integral
design test is not determinative of
whether the unit is a boiler. Historically,
these units have generally been
regarded as legitimate boilers despite
the fact that they might not meet a strict
integral design test As such, they would
often qualify for die case-by-case
classification procedure, aesuming they
meet the energy lamvaiy criteria. The
explicit nference to them in the
definition avoids the need for case-by-
case essessments.
Second, the definition now gives
credit for all forms of heat recovery
which an exported from the unit and
actually an utilized. This significant
technical change is in response to
criticisms of the proposal's reliance on
radiant heat transfer alone. As such, it
avoids many problems of measurement
and classification. In fact measurement
can now often be based on a simple
comparison of annual feed to the unit
and annual pounds of steam recovered
from the unit with both measured in
British Thermal Units (BTU).
Finally, the specific required energy
recovery ratios have been revised since
proposal. Hie changes reflect the shift
from reliance on radiant heat recovery
alone to reliance on the total heat
recovery. We are indicating that boilers
must maintain a thermal energy
recovery efficiency of 60 percent when
in operation. (This is to be based on the
higher heating value of the fueL the
common means of evaluating boilers
efficiency in this country.] This value ia
within this range recommended by
commenters. and also ia within the
range of recoveries reported in relevant
technical liters tun. We also an
indicating that boilers must export and
utilize 73 percent of the recovered
energy on an annual basis. This value
allows for unit downtime but guards
against situations whan heet recovery
elements have been edded aa incidental
parts of a combustion unit or have been
added in an attempt to avoid
daaaification as an iadaentar. The vast
majority of legitimate, well-aaintained
and well-operated boilers (and aO those
of which EPA is now a wan) should
meet the criteria now in tha regulation.
Specific outlying units may be eligible
for e case by-ceae easessment
4. Definition of Industrial Furnace.
Industrial furcocea burning hazardous
waste for energy lecotary an currently
exempt from regulation by tha
provisions of 40 C7R 28LA. Thus, they
do not now requin permits to continue
their combustion acttvtttea. (Aa with
boilers, storage of certain haxardoua
wastes befon burning in industrial
frunaces requires e mwaga permit end
tha transportation of tfceee wastes is
regulated. See I OLKkM
Wa indicated at propoeai that
induatrial ftonaeaa was* thoaa
combustion dertcoe deetpad as
incinerators or ea batten (feet en used
as integral coaspoaatts of aanafacturinc
rangy, not to deetrey waetae at PR
14463. To be ea "tatasatai furnace- e
unit had to fail wirlMa Om denes that
-------
Federal Register / Vol 50, No. 3 / Friday. January 4. 1985 / Rules and Regulations
627
EPA had specifically designated in the
rule, based on a series of criteria
relating to how the device was aa
integral component of a manufacturing
process.
We have adopted this same scheme in
the final rule. Thus, only those devices
specifically named in the regulation [ie*
in the definition of industrial furnace
contained in $ 260.10) an considered to
be industrial furnaces for purposes of
the regulatioa The criteria for adding
new industrial furnaces are the same as
at proposal. We have added certain new
devices to the list of industrial furnaces.
Our reasons are provided in the
background document supporting this
portion of the regulations.
II. Discussion of Specific Provisions of
the Revised Definition of Solid Waste
A. Section 281.1(b): Purpose and Scope
1. Use of The Regulatory Definition of
Solid Waste Only For Purposes of The
Subtitle C Regulations. The applicability
provision in the final rule is virtually
identical to the one proposed. Section
261.1(b)(1) reiterates that the regulatory
definition of solid waste applies only to
materials that also an Subtitle C
hazardous wastes. This point is implicit
since the regulatory definition of solid
waste appears in regulations
implementing Subtitle C of RCRA. which
subtitle only applies to hazardous
wastes. In response to comment we are
adopting a clarifying provision in
f 261.1(b) to ensure that the regulatory
definition is not used in unintended
contexts, for example to justify
regulation of non-hazardous wastes. The
language of the final rule is modelled on
Section 8 of HJt 2887 and is consistent
with the Committee's intent See Hit
Rep. 98-198 at 47.
This provision also makes clear that
waste-derived products placed oa the
land for beneficial use or bunted aa
fuels must themselves be hazardous (by
exhibiting a characteristic or
a listed hazardous waste) to be covered
by the rule.
2. Use of The Statutory Definition for
Purposes of Sections 3007,3013, and
7003. EPA also ia promulgating
S 281.1(b)(2). which provision states that
the regulatory definition does not limit
the Agency's jurisdiction under Sections
3007.3013. and 7003 of RCRA. Rather,
the statutory definitions of solid and
hazardous waste will apply when these
provisions are involved. A substantially
ider.::cal provision has been in the
regulations since May of 1980. (Those
provisions recopied from the May 19.
1980 rules ere not being repromulgated
and are not subject to judidal review.)
Several commenters objected to its
continued inclusion, arguing that the
statutory definitions of solid and
hazardous waste do not provide
adequate notice to the regulated
community. These comments are
unfounded Congress clearly intended a
broader definition of waste to apply
when these three provisions are
involved. See 48 FR at 14484 (April 4.
1983) and 48 FR 33090 (May 19.1980);
see also HJL Rep. 98-198 at 47 (EPA's
authority under Sections 3007 and 7003
includes all wastes that meet-the
statutory definition of hazardous waste).
Courts also have repeatedly applied the
statutory definition in Section 7003
actions. See 48 FR 4S02 n.67 (Section
7003 actions against recycling facilities).
Therefore, the statutory definitions of
solid waste and hazardous waste will
apply in all actions involving Sections
3007,3013. and 7003 of RCRA. This
means that the Agency's authority under
these provisions extends to all materials
that could be solid wastes under RCRA.
not just to those defined es solid wastes
in the regulations. Thus. EPA has
authority to sample a potentially
hazardous unlisted by-product being
reclaimed even though this material
would not be defined as a solid waste in
S 2612. It could be a solid waste,
however; the regulatory definition states
that this is a question requiring material-
by-material consideration by EPA. EPA
thus retains the statutory aothori^r to
obtain the information necessary to
determine whether the materials are
solid wastes (or. in the case of Sections
3013 and 7003, to take appropriate
action" under those provisions). The
same reasoning applies to materials
potentially designable as solid wastes
under 12812(d).
This portion of the rale is effective
immediately. The HSWA amended
Section 3010 of RCRA to allow rules to
become effective in less than six months
when die regulated community does not
need the six-month period to come into
compliance. That is the case here, since
amended 1281.1(b) restates currently
applicable law. as discussed above. See .
also HJL Rep. 98-198 at 47. confirming
this view. In addition, the government's
interest in exercising its authorities
under these provisions is high, and
intrusion into business operations may
be minimal, particularly«n the case of
exercise of Section 3007 authority. See.
e.g» Mobil Oil v. EPA. 718 F2d 1187 (7th
CJr. 1983). In these circumstances, the
Agency believes there is "good cense"
within the meaning of amended Section
3010 to make this portion of the role
effective immediately.
B. Section 281.2(b): Materials That Are
Solid Wastes Because They Are
Abandoned
This provision is identical to that
proposed. It states that materials
abandoned by being disposed o£
burned, or incinerated are solid wastes.
(By saying "abandoned." we do not
intend any complicated concept but
simply mean thrown away.) Materials
that are accumulated, stored or treated
in lieu of or before such activities also
are solid wastes. (We indicate in the
final rule that materials that are
recycled in lieu of disposal are not
covered by this provision—even though
recycling constitutes treatment Rather,
they are covered by the provisions in the
definition saying when recycled
materials are wastes.) We again
emphasize, as we did in the proposal
that materials being burned in
incinerators or other thermal treatment
devices, other than boilers and
industrial furnaces, are considered to be
"abandoned by being burned or
incinerated" for purposes of this
provision, whether or not energy or
material ia also recovered. See 48 FR
14484/2. Materials burned for
destruction in boilers and industrial
furnaces are likewise considered to be
"abandoned by being burned or
incinerated." Id, end n.15. We ere
making a conforming amendment to the
Part 284 and 269 Subpart O applicability
provision to express these thoughts. (We
discuss in section O. below the concept
of burning for destruction in boilers and
industrial furnaces.)
C Section 2612(c)(1): Wastes and
Waste-Derived Products That Are Used
in a Manner Constituting Disposal
1. The Proposed Provision. EPA
proposed that all secondary materiala—
/.e, all sprat materials, sludges, by-
products and discarded 128123
commercial chemical products that are
recycled by being placed on the lend. *
were solid waataa. In addition, all of
these materiala would be wastes if they
were recycled to the land after simple
mixing with other materials, when the
mixing did not result in significant
chemical or biological change to the
original waste. See 48 FR at 14484-85.
2. Extension of Jurisdiction To
Hazardous Waste-Derived Products
That Are Applied To The Load.
Virtually all commenters conceded that
the Agency has authority to regulate
secondary materials applied to the land
in an as-is condition or after most
simple mixing. Many comments,
however, criticized the Agency for not
also including within the scope of the
rule waste-derived products that are
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9
Federal Register / Vol 50. No. 3 / Friday. January 4. 1985 / Rules and Regulations
applied to the land. They argued that the
simple mixing standard in the proposal
was imprecise, had no relation to
environmental consequences, and
deviated from Congressional intent to
control placing hazardous wastes on the
land. The House Committee on Energy
and Commerce also indicated that it
expects EPA to control "hazardous
wastes-derived products used or reused
by being applied directly to the land."
H.R. Rep. 98-198 at 48. Indeed, the
Agency itself noted in the preamble to
the proposal that we might reconsider
the question of asserting authority over
hazardous waste-derived products that
are used on the land. (See 48 FR14485/
I.)
After reconsideration, we are revising
the final rule to apply not only to
hazardous secondary materials used on
the land without significant change but
also to all products containing these
wastes that are applied to the land and
that are themselves hazardous. We read
our jurisdiction as applying to waste-
derived products whose recycling is
similar to a normal form of waste
management—in this case, land
disposal. (The jurisdictional basis for
the following provision on hazardous
waste-derived fuels is similar, except
that incineration is the waste
management practice corresponding to
recycling by burning.) We thus agree
with those commenters who maintained
that the Agency's jurisdiction extends to
all hazardous wastes placed on the land,
whether or not the waste was mixed
with other materials or chemically
altered before being placed on the land.
The type of processing involved is
relevant in determining what regulatory
scheme to adopt or in deciding if the
waste-derived product is still hazardous.
We have determined, however, dial
processing does not deprive the Agency
of RCRA Subtitle C jurisdiction when
the waste-containing product is still
placed on the land.
The Agency is thus asserting
jurisdiction over all hazardous
secondary materials, and over products
that contain these wastes, when they
are applied to the land. Thus, fertilizers,
asphalt, and building foundation
materials that use haaaidoua waste* as
ingredients and an then applied to the
land are subject to RCRA jurisdiction.
Secondary materials applied directly to
the land likewise are within the *
Agency's Subtitle C regulations, as are
secondary materials dumped into water
to serve as fill or structural support1*
¦ • Wa aato. bawavtr. thai we do Ml eemMw
MeocxUry malarial* thai an uaad aa waatawatar
conditioner* to ba wtthta tha acopa of ttta proirtalon.
TSa activity ia not daiilir to land dltpoaal k~—*
We note that we are not asserting
RCRA jurisdiction over pesticides or
pesticide applications. Use of a pesticide
involves use of a product not recycling
of a waste. Thus, if a pesticide
(including off-specification pesticide,
pesticide rinse waters or unused dip
solution applied in accord with label
instructions) is applied to the land for
beneficial use. the practice is not viewed
as use constituting disposal.
At the present time, the principles of
S 281.3 (c) and (d) continue to apply in
determining whether a hazardous
waste-derived product remains a
hazardous waste. Thus, if a waste that
exhibits a characteristic of hazardous
waste is incorporated into a product to
be placed on the land, the waste-derived
product is a hazardous waste only if the
product itself exhibits one or more of the
characteristics of hazardous waste. For
example, if a product contains an EP
toxic sludge, but the product itself does
not exhibit EP toxicity or any other
characteristic of hazardous waste, it
would not be subject to regulation under
Subtitle C. If the waste-derived product
contains a listed waste, it is subject to
regulation under Subtitle C unless and
until it is delisted under the standards
and procedures contained in if 880.20
and 260.22. See i 281.3 (c)(2) and (d)(2).
(We may eventually revisit this part of
the rule because there are no hazardous
waste characteristics that measure
exposure pathways posed by certain
waste-derived products, such aa crop
up-take for waste-derived fertilizers.)
By asserting jurisdiction over
hazardous waste-derived products
placed on the land. EPA necessarily is
asaarting authority over the hazardous
wastes—the hazardous spent materials,
sludges, by-products and i 281.33
commercial chemical products . that go
into these products. Thus, if a generator
sends a hazardous sludge to a fertilizer
producer, for example, the sludge is a
hazardous waate in the generator's
hands. This result represents a change
from tha proposal, where these
materials would not have been wastes
because they were to be used as
ingredients (proposed S 28L2(c)(l)(l)).
(All of these secondary materials are
wastes under the existing (May 19.1980)
definition of solid waste, however, and
are presently subject to regulation if
they are listed waates or sludges. See
1281 A) Thus, there is not a significant
change in overall regulatory coverage
between the existing and final rules for
wastes to bs incorporated into waste-
tha tacoadvjr material it cbtmfcaBy eonbtaad aa
pad of a eoo&lieaiat pneaas and la nbsoaad aa
an (opadfaal to tha conditioned water. Saa 4S PR
1*489 IL11
derived products that are used on the
land. (See also Section m.C. of Part III of
the preamble on this point.)
3. Regulatory Strategy for Commercial
Products Containing Hazardous Wastes
that are Placed on the Land. Although
EPA is asserting authority over waste-
derived products that are placed on the
land for beneficial use. we are not yet
ready to undertake regulation of these
waste-derived commercial products, and
therefore are temporarily exempting
them from regulation. Ultimate users of
these materials—farmers and highway
construction crews, for example—are in
many cases individuals not ordinarily
within the ambit of the Subtitle C
regulatory system. EPA needs more time
to determine whether it is possible to
develop s more sophisticated means of
including these types of users within a
regulatory framework. The Agency also
needs more time to develop a regulatory
system for determining when end uses
of these products could present a
substantial hazard to human health and
the environment, and when such
practices as waste-product application
rate protect against potential harm.
In developing a short and long-term
scheme for controlling hazardous waste-
derived products placed on the land for
beneficial use. the Agency hopes
eventually to develop specification
levels for toxic constitutents or other
specific standards—for those waste-
derived products whose use on the land
may cause substantial harm. We are not
sure if it is technically feasible to
develop such specifications, however,
and it would take years to work out this
type of approach. EPA therefore
believes that short-term controls of
these practices are needed since
uncontrolled land placement of
meteriaia containing hazardous wastes
is potentially very dangerous. We also
believe that persons generating or using
hazardous waste-derived products on
the land should demonstrate that the
product is safe to use for land
placement or else comply with
regulations that apply to hazardous
wastes placed on the land.
The Agency intends, therefore, to
develop regulations whereby generators
or users of hazardous waste-derived
products could demonstrate that these
products can be placed safely on the
land. To this end. EPA expects to
conduct studies of these waste-derived
products to deter mine: (l) the types of
hazardous waates contained in waste-
derived products that are applied to the
land, and (2) tha potential hazards
presented by these waate-derived
products. Once these studies are
completed, the Agency will take
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Federal Register / Vol. 50, No. 3 / Friday. January 4. 1985 / Rules and Regulations
629
appropriate regulatory action. One
alternative the Agency is examining is
for the user or producer of the waste*
derived product to demonstrate via a
risk assessment assuming possible
exposures via groundwater, crop uptake,
runoff to surface water, wind dispersion,
or direct human contact that such
waste-derived products do not present a
substantial hazard to human.health or
the enviroanient when the waste*
derived products are applied to the land.
In some cases, users or producers could
also evaluate toxicant mobility by
existing methods, as in delistings. This
system would remain in place until the
Agency developed different regulations.
The Agency therefore is limiting its
regulatory coverage at this time to
hazardous wastes placed directly on the
land, or placed on the land after
processing, unless the waste a)
undergoes a chemical reaction so as to
become inseparable by physical means,
and b) the resulting combined material
is marketed as a commercial product
(See Section Q.C of Part 3 of the
preamble for an explanation of these
terms.) The practices we are regulating,
as we stated at proposal are
tantamount to land disposal and should
be regulated as such. We also are
regulating hazardous wastes that are
transported and stored before being
incorporated into hazardous waste-
derived products. These wastes stand
on the same conceptual and regulatory
footing as other hazardous wastes
transported and stored before being
recycled.
0. Section 281.2(c](2): Wastes That Are
Burned to Recover Energy, An Used to
Produce Fuels, or Are Contained in
Fuels
These provisions are among the most
important in the regulation, and an
integrally related to other regulations
proposed or being developed by the
Agency. We noted in Section 1LB. above
that much of the Agency's on-going
activity addresses burning of hazsirdoua
wastes for energy recovery in boilers or
industrial furnaces, and explained our
definitions of these terms, as well as our
definition of incinerator. We discuss
hen which secondary materials an
wastes when bused as feds, and how
to distinguish among burning far energy
recovery, burning for material recovery.
and burning for destruction, as well as
the regulatory implications of falling into
each of these three categories. We also
discuss our future regulatory plans, and
finally address how we an regulating
storage that occurs before burning
hazardous waste for energy recovery.
1. Material* That An Wattes When
Burned As Fuels. The Agency proposed
that all spent materials, all sludges, and
listed (but not unlisted) by-products be
considered solid wastas when they are
burned as fuels, as well as (of course]
when they are burned for destruction."
Fuels derived from these wastes
likewise were defined as solid wastes.
As a point of clarification, if a waste
exhibiting a characteristic of hazardous
waste is used as an ingredient in a fuel,
and the waste-derived fuel does not
exhibit a characteristic, the waste*
derived fuel would not be considered to
be a hazardous waste. See'§ 281.3(d)(1).
Our nason for limiting our jurisdiction
in the proposed rule to listed by-
products was that we wen unsure
whether certain commercial fuels might
technically be by-products (as defined).
See 48 FR14485. We have reconsidered
the issue and have determined that alt
by-products (again as defined) an solid
wastes when burned as fuels or used to
produce a fueL We have three principal
reasons for this change in approach:
(1) Both the comments and our own
investigations failed to disclose
instances when by-products were
normal commercial fuels:
(2) Date indicates that many process
residues, which an by-products,
containing high concentrations of
Appendix VUI constituents an burned
as fuels in industrial boilers; and
(3) Congressional intent is for the
Agency to nad its jurisdiction over
waste-fuels expansively.
States, environmental groups, and
waste treatment industry members
urged the Agency to expand its claim of
jurisdiction. The Agency likewise
believes that its authority over recycling
is broadest when the recycling practice
is like a classic waste management
activity, in this ease, incineration.
Those commenters who supported the
proposal did not maintain that the
Agency would regulate normal
commercial fuels if all by-products wen
wastes when burned as fuels. Rather.
"The Afucf alao proyujed that comwiidil
cfanrical product* Umd in 12SIM that an not
ihemooleee (Mia. an »oud waatee whan they en
bemad aa Mai or eeod is produce ft** and dial
eootitntag oateriab m tte oasuDatctai
cfaeaieaia theaiaavleo. Im iiipented lets &a fttti la
liae el aatnal nae) an eolid weave. Wt an
BnaHitrn tfcit provision today. One rnmmnilir.
heermri«ieesd thia lanaaft to ftata that if a foal
oatualaa a dtamleel thai alao a an the 13LS
eeeiald*yda were aolld wastae raesidleae el the
wnree of the aomldahpda. TUa it iiiaatoU. Thaaa
material* must flnt be cuiuuefflal chomtcil
piodmti (or related aaterials «aA as eS-
•pedficattea vtriuti or iptfl mldQH) Used
punaaat to I asUL and moat be homed or
pmuoiiod ee fuel ia liea of (heir original intended
pwpoae. We oleo aett that the RCXA
BeeuttioiUeltou WfliUttaa takee pioclaol; tMa
peseta. See HJL Repu No. 9S-1M et 4ft & Rap. No.
m-mttv.
they argued that many residual
materials have high Btu values, and
emissions from burning these materials
are not substantially different from
burning fossil fuela. Others argued that
if these by-products were ignitable and
did not contain Appendix VIII
hazardous constituents, they should not
be considered to be wastes when
burned.
These comments, in the Agency's
view, go to the issue of whether burning
and storage of these materials needs to
be regulated. The Agency will address
these questions in a different
rulemaking. These comments do not.
however, address the conceptual
question of whether the materials are
wastes, tt is our opinion that by-
products that an unlike commercial
fuels—because they an residua I
materials not intentionally produced,
and an significantly different in
composition from fossil fuels—an
wastes when burned as fuels.
Our opinion is reinforced by data
submitted to the Agency regarding by-
product waste streams presently being
burned In boilers and industrial
furnaces. Data from the Agency's
Industry Studies program of the organic
chemical and pesticides industry
indicate that boilen end industrial
furnaces within these industries burn
residual by-products containing high
concentrations of such Appendix VQ1
hazardous constituents as aniline,
cyanides, dimethyl phthalates. iscbutyl
alcohol and tetrachloroethene. By-
products Identified In comments to this
rulemaking aa being burned in boilers or
industrial furnaces include chlorinated
solvents, chlorinated aliphatic
hydrocarbon production wastes,
nitrochloro benzene production wastes,
and solvent recovery still bottoms. By-
products identified in responses to the
Agency's survey on waste and used oil
fuels (Questionnaire: Used Oil and
Hazardous Waste as Fuel. OMB No.
20800018) Include distillation bottoms
from production of carbon tetrachloride,
distillation bottoms from production of
phenol/acetone from cumene.
distillation bottoms from production of
aniline and excess cyanide from
acryionitrile production.
These by-products an physically and
conceptually very different from fossil
fuels. They an waste-like because they
an residual materials containing toxic
constituents not ordinarily found in
fossil fuels. Many an typically
discarded. We therefore believe that we
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Federal'Register / Vol. 50, No. 3 / Friday. January 4. 1985 / Rules and Regulations
have jurisdiction over the burning of
these materials. "
Furthermore, recent statements of
Congressional intent strongly support
and expansive reading of authority over
waste-fuels. The HSWA commands the
Agency to regulate burning hazardous
wastes for energy recovery, and voice
special concern over recycling practices
involving "direct introduction of
hazardous wastes to the air...H.R.
Rep. No. 98-198.98th Cong.. 1st Sess. 48.
Our action today is in full accord with
these declarations.
As a point of clarification, the Agency
reemphasizes that it has modified the
definition of by-product to indicate more
clearly that co-products—materials
intentionally produced for a commercial
market and suitable for use as-ia—are
not considered to be by-products. Thus,
co-products from petroleum refining
such as kerosene, pitch, or various
grades of fuel oil. are not by-products
for purposes of this regulation.1* On the
'other hand, residual materials such as
tank bottoms (EPA Hazardous Waste
No. K052) are by-products and are
considered to be wastes when used as
fuels or when incorporated into fuels.
We note that the HSWA takes precisely
this position. See RCRA amended
Section 3004(g)(2)(A) and 3009(r)(2).
Fuels containing these wastes likewise
remain solid wastes. Id. Again, it may
turn out that regulation of these
materials is unnecessary to protect
'human health and the environment. EPA
also may be able to establish
specifications that distinguish waste-
derived fuels from products. Today's
rule makes clear that the Agency has
jurisdiction to make these
determinations.
As a result of this change, all spent
materials, sludges, by-products, and
§ 261.33 commercial chemical products
and all fuels to which these materials
are added.1* are potentially subject to
" Wa oota aa «**U that Coograaa already has
nqvtrad the Afaacy to davalep paioniM
standard* for oaad oil buwad aa a taaL Saa RCRA
Srctioet 3014 and 1004(17). Tha Aftocy bafavaa
that if bava authority to ragolata of oaad
Oil which li ooapoaad primarily of panotaua
fraetoos and thaiafbra to phyUcaOy ««"»»¦» to fnaail
fual or fad oil. a fortiori. wa alao hava authority to
ragulata bamias of aarewdeiy material* that ara
physically qotte dlittwrt boa foaall fnaia.
"OfT-apadllcatioa hate bumed tor energy
mo»afy alao ara not by-product*, and ao would mi
ba conildarad to be wattaa under this pioviiin Aa
example provided in the comment* wai of oataral
plpslltts eoodmatt. Tin oondntttt oostiiBt
many of tha aama hydorcarbona found la liquefied
natural gaa. and certalo higher hydrocarbon that
alao have auarp value. U la generated la the
pipallne umiwlaalnn of natural gee. TOa
condanaate ta not tonaldoiad to be a waste when
burned for recovery.
"Aa noted abova. fore waste dtrirad fual to ba
hasaidoM waata. It would hi*» to contain a Uatad
regulation when transported, stored, and
bumed for energy recovery. We discuss
below in sections 3 and 4, the Agency's
on-going efforts to control burning and
storage of these materials.
Z Determining When a Waste is
Burned for Energy Recovery and
Applicability of the Rules to Burning for
Materials Recovery. Today's regulations
apply to hazardous wastes bumed for
"energy recovery." This limitation raises
two issues: Distinguishing burning for
energy recovery bom burning for
destructioa and determining how to
regulate wastes if they are bumed to
recover materials.
(a) Burning for Energy Recovery. The
Agency has already addressed in part
what it means to bum wastes for
legitimate energy recovery. In a
Statement of Enforcement Policy Issued
on January 18.1883 (printed at 48 FR
11157 (March 16.1983)). EPA stated that
as a general matter—subject to
individualized consideration of
particular circumstances—burning of
low energy hazardous wastes as alleged
fuels is not considered to be burning for
legitimate energy recovery, litis is the
case even if the low energy hazardous
waste is blended with high energy
materials and then bumed. Thus, under
these principles, boilers and industrial
furnaces burning low energy wastes
could be considered to be incinerating
them, and so be subject to regulation as
hazardous waste incinerators. (See 48
FR 11158.11159. and &l3.)
Today's regulation leaves the
principles of the Statement in force.
However. EPA. in the Statement
indicated that sham burning was easiest
to determine when burning occurs in
non-industrial boilers. We also said that
larger industrial boilers are more
efficient at recovering energy and so
could be deemed, more often, to be
burning lower energy wastes
legitimately. [Id at 11159.) In applying
the Enforcement Policy Statement to
industrial boilers and industrial
furnaces, we would seek to enforce only
in situations where lane amounts of low
energy wastes with high concentrations
of toxicants are bumed. These are
clearly situations where low energy
hazardous waste adulteration was
deliberate and massive. We also note
that the Policy Statement does not
address burning for material recovery,
or situations where a single waste is
bumed for material and energy
recovery. In this situation, the fact that
low energy wastes are involved would
not necessarily Indicate that then is no
waste or aahibu a haaardooa waate chencteriadc.
Saa 12BU (c) and (d).
recycling, because material recovery
also is involved.
(b) Burning for Material Recovery. A
second question is the scope of these
regulations when burning involves
material recovery. The Agency views
these regulations as applying whenever
hazardous wastes ere bumed in boilers.
Boilers, by definition, recover energy. If
materials are also recovered, this
recovery is ancillary to the purpose of
the boiler, and so does not alter the
regulatory status of the activity.
Burning for material recovery in
industrial furnaces, however, raises
different kinds of issues. As discussed
above, industrisl furnaces are used as
integral components of manufacturing
processes to recover materials. Thus,
regulation under RCRA of actual
burning in industrial furnaces could, in
some circumstances, represent an
intrusion into a normal production
process, particularly if the material
being recovered is the ssme material the
furnace ordinarily produces. On the
other hand, when an Industrial furnace
is used for material recovery end the
secondary material being bumed is: (a)
Not ordinarily associated with the
furnace (for example, organic still
bottoms), (b) different in composition
from materials ordinarily bumed in the
unit (as when the secondary material
contains Appendix Vm hazardous
constituents different from, or in
concentrations in excess of those in
materials ordinarily bumed in the
furnace), or (c) burned for a purpose
ancillary to the chief function of the
furnace, we think that RCRA jurisdiction
over the burning exists. (Jurisdiction
obviously exists, for example, if that
purpose is destruction.)
When industrial furnaces bum for
energy recovery, regulation of the
burning would not constitute an
impermissible intrusion into the
production process because burning for
energy recovery is an activity that is not
central to the usual function of an
industrial furnace. See HJL Rep. 98-198
at 40 (industrial furnaces burning for
energy recovery are to be regulated
under the waste-as-fiiel provisions of
HJL 2867). We therefore are asserting
RCRA jurisdiction when an industrial
furnace bums hazardous secondary
materials i*. hazardous wastes—for
energy recovery.
The regulations would also apply
when an industrial furnace bums the
sane secondary material for both
energy and material recovery. Examples
ara blast furnaces that bum organic
wastes to recover both energy and
carbon values, or cement kilns that bum
chlorinated wastes as a siurce of energy
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Federal Register / Vol. 50. No. 3 / Friday. January 4. 1985 / Rules and Regulations
631
and chlorine. (Indeed, energy recovery
from burning kilns is automatic, so
that all burning of hazardous wastes in
kilns is within the Agency's RCRA
jurisdiction.) Then activities are not bo
integrally tied to the production nature
of the furnace as to raise questions
about the Agency's jurisdiction. In
addition. EPA believes that both the
existing statute and the new legislation
express a Btrong mandate to take a
broad view of what constitutes
hazardous waste when hazardous
secondary materials are burned for
energy recovery, and to regulate as
necessary to protect human health and
the environment See e.g.. 48 FR14502
(statutory definitions stating that
secondary materials burned for energy
recovery are solid wastes); HJt Rep. 94-
1491, supra at 4 (Congress' concern in
promulgating Subtitle C was to
"eliminat(e) the last remaining loophole
in environmental law", not to create
new loopholes); H.R. Rep. 98-198. supra
at 4142; S. Rep. No. 98-284 at 38. In
taking this view, we thus reconsider and
withdraw footnote 19 of the preamble to
the proposed rule where we said we
would count materials burned in
industrial furnaces for both energy and
material recovery a« being burned for
material recovery. For the reasons given
above, we think thai was a mistaken
idea.
We note as well that if an industrial
furnace burning secondary materials for
ostensible material recovery to used to
destroy the materials, it Is not recycling
but rather is incinerating them.
Examples of such sham recovery are
when there is no material recovery, or
where material recovery la economically
insignificant Another example is when
wastes are burned in excess of what can
feasibly be recovered and used. (The
following subsection discusses a
regulatory change clarifying this
principle.)
(c) Amendment to Applicability
Section of Subpart O of Parti 28* and
263. In the final rule, we are codifying
the general principle that boilers and
industrial furnaces used to destroy
wastes rather than to recover energy
and material from them an considered
to be incinerating the wastes, and thus
are subject to the permit requirements of
Subpart O ci Put 284 or the interim
status requirements of Pari 28S. (This
amendment is found in the applicability
sections of Subpart O of Parts 284 and
285.) We intend for this amendment to
remain in effect until we develop permit
standards for burning in boilers and
industrial furnaces. Not only is an
Interim control on those practices
needed but without this provision
boilers and industrial furnaces burning
for destruction would have no means of
receiving a permit
It also should be noted that with the
exception of certain conditions in the
definition of "boiler," we are not
defining objectively what constitutes
burning for destruction, such as
specifying precise Btu limits for waste
fuels or volume limits on waste feed. We
have decided that there are too many
exceptional circumstances where
unvarying rules of this type would yield
unintended results. It is better policy, we
think, to apply the concepts explained
here and in the Statement of
Enforcement Policy, and so enforce this
provision in a more individualized
manner.
(d) Examples of How These
Provisions Operate.
The following examples Indicate
which secondary materials are wastes
when bunted for energy recovery.
• Facility A burns an unlisted
ignitable by-product in its boilers.
A is considered to be burning a
hazardous waste since all secondary
materials burned tor energy recovery
are defined as solid wastes. (Ignitable
wastes will have high Btu value, and so
the waste will be burned for legitimate
energy recovery.]
• Facility B bums the same by*
product in an industrial furnace to
recover energy.
B is considered to be burning a
hazardous waste for the same reason as
A was in the first example.
• Facility C burns an unlisted EP toxic
by-product in its boiler to recover both
materials and energy.
C Is considered to be burning •
hazardous waste for energy recovery,
since secondary materialatramed for a
dual recycling purpose in boilers are
considered for jurisdictional purposes to
be burning for energy recovery. This
answer assumes that sufficient energy
and material values are recovered so '
that the waste is not being burned to
destruction.
• Facility D buns the same by*
product in an Industrial furnace to
recover both energy and materials.
0 Is considered to be burning a
hazardous waste, even though the wast*
Is aa unlisted by-product and even
though there is same material recovery.
Unlisted by-products burned Cor energy
recovery Inany type of combustion unit
are defined as solid wastes, If D were
burning exclusively for material
recovery—for example if D operated a
smelting furnace burning to recover
metal—the material would not be s solid
waste since it would be an unlisted by*
product being reclaimed.
• Facility E burns an unlisted EP toxic
sludge in its industrial furnace but
recovers no energy and minimal
material values. The material recovered
Is also unrelated to the material the
furnace normally produces.
E would be considered to be burning a
hazardous waste for destruction, and so
would have to comply with the
standards for incineration in Subpart O
of Parts Z84 and 285.
3. The Agency's Future Plata for
Regulating Burning of Hazardous Waste
for Energy Recovery. As noted above,
the actual burning of hazardous waste
for energy recovery in boilers and
industrial furnaces is exempt from
regulation. There was strong consensus
in the public comments—confirmed by
recent legislative action—that there is a
need for regulatory action to control this
type of burning. The Agency agrees, and
is adopting a phased approach to
address the problem. We will soon be
proposing the first set of regulations
which would ban burning of hazardous
wastes and contaminated used oil in
non-industrial boilers, end would
impose administrative controls on these
materials whenever burned in industrial
boilers or industrial furnaces.
The next phase of regulations will
develop permit standards For burning in
industrial boilers and in some industrial
furnaces. In developing these standards,
we will use many of the factor*
recommended by commenters in this
proceeding. Thus, we intend that these
units achieve the same ultimata level of
protection as incinerators, and (In some
cases) will specify design and operating
conditions based on the type of waste
and the operating efficiency of the
combustion unit to ensure that this level
of performance la achieved
We also are considering adopting
general narrative standards, roughly
analogous to those contained ia the Part
287 regulations (see 48 FR 12420.
February 13.1981), for remaining
industrial furnaces burning hazardous
wastes for energy lecovwy. This will
allow these units to be permitted
immediately until such urns aa the
Agency is able to develop unit specific
permit standarda for thank
At the time theee standards are In
place, the Agency Intends to wtthdrew
the Statement of Enforcement Policy and
the rules stating thai (be Bubpaw O
regulatory atanldaids far Incinerators
apply to boilers aad fndus trial Aonaea*
burning hazardous wuatae for
destruction. Thia ta bemuse we will i
have promulgated tftt permit standard^
necessary to prated hasa health aafl
the environment lor betkn ead
industrial fameooe haming heaordo—
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632
Federal Register / Vol. 50. No. 3 / Friday, January 4. 1985 / Rules and Regulations
waste, and so the purpose for which a
material is burned will no longer be
relevant in determining what the
regulatory regime for the burning device
should be.
4. Regulation of Generators.
Transporters and Storers of Hazardous
Wastes Before the Wastes are Burned
for Energy Recoveryt Up to this point
we have been discussing the Agency's
jurisdiction over wastes burned as faels
and over fuels containing these wastes,
and our planned regulatory regimes for
the actual burning of these wastes and
waste fuels. We now discuss regulation
of these materials before they are
burned.
EPA proposed the following
regulatory scheme for generators,
transporters, waste fuel processors, and
ultimate burners:
Tabu S. Am 4 Proposed Rules ran Gen-
erators, Transporters, Fuel Proces-
sors ano Burners
itowiwa inrmi
ajbjKi • wgutoan
Ommv Mndtog mmm m
mmmmv
m mm*m
-------
Federal Register / Vol. 50. No. 3 / Friday. January 4. 1985 / Rules and Regulations
633
exempt from regulation at the present
time (see $ 28&30(a)}..
• Generator C generates a hazardous
spent solvent listed under S 281.31,
blends it with virgin fuel oil and sends
the blend to Burner D who bums it in a
boiler.
The answer is the same as for the last
example, for the same reasons.
• Generator E generates a hazardous
spent solvent listed under { 261.31,
blends it with virgin fuel oil, and sends
the blend to processor F who processes
the blend and does further blending. F
then markets the hazardous waste fuel
to Burner G who bums it in his boiler.
Generator E is subject to Part 282, as
in the previous examples. Processor F is
a storage facility (see i 288J4(c)(2)).
However, the hazardous waste fuels
that F markets are exempt from
regulation, so Burner G may store and
bum them without regulation (at the
present time).
• Generator H generates an unlisted
ignitable by-product that he sends to
Burner 1 to be burned in a boiler.
The hazardous waste is exempt from
regulation because it is neither a listed
waste nor a sludge (see f 288J8). This
result would be the some if the igni table
by-product were blended at any point,
or sent to an intermediate processor
instead of the ultimate burner.
The following chart summarizes the
generation, transportation, and storage
standards in the final rule for hazardous
wastes to be burned as fuels.
TAat* 8: Fmml Runs RsoMoma Transport
and Storage Boors Duwewa ran GEN-
ERATORS. transporters, Fub. bumokrs,
ano burners
Table 6: Final Rules Reoaromq Transport
ano Storage Before burning for Gen-
erators, Transporters. Fuel Blenocrs,
ano Burners—Continued
Hi. i Mill III, ,11, ttxproa
toto pPQOMM.
iw—SHMSS1J1 we
« m as a*
MM (IIIMum M fll
fwito
Otnmor Mnft| «Ml ^
ton mmmi toto
MVtobML
OtoflMftffSUltotf
IM Mi ft
toMWto
Tnwn hm
MMMto wd
ion |mm to tori
MIMIIR«MIM
pIQBMHL
MtotoMto
Ttnpm tttof mm
MUMInflaiil W
Jt m M9K m mr
feM flBWM| M If
VtoM Mil
mmmrn ******
fMnii fto v toM
maMtogauiotf
0 M
Mtotf oortrifltas toto 0
mm mm
tototf toflto tntontf tor ••
Sunm-
Mpaio ngrittsn
«nd
A ¦ U|K M «n»
tM ono
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634
Federal Register / Vol. 50, No. 3 / Friday. January 4. 1985 / Rules and Regulations
subsequently used as feedstock. This
situation is a subset of the one just
described, so that these materials are
wastes until reclaimed. Their later use
as feedstock does not alter this result.
The Agency acknowledges, however,
that its discussion of the recycling of
spent sulfuric acid in the proposal
preamble (footnote 30) created some
confusion. The Agency still does not
think this process involves reclamation.
To eliminate aqy uncertainty, however,
we are amending § 261.4(a) of the
regulations to state that spent sulfuric
acid that is recycled to produce virgin
sulfuric acid is not considered to be a
solid waste. (See Section L below.)
Z.The Status of Reclaimed Products.
The Agency proposed a clarifying
amendment to S 261.3(c)(2) (the "derived
from" rule) to indicate that commercial
products reclaimed Cram hazardous
wastes are products, not wastes, and so
are not subject to the RCRA Subtitle C
regulations. See 48 FR11489. Thus,
regenerated solvents are not wastes.
Similarly, reclaimed metals that are
suitable for direct use, or that only have
to be refined to be usable are products,
not wastes. This amendment states a
fairly evident principle, and was not
challenged by any commenter.
We cautioa though, as we did in the
proposal, that this principle does not
apply to reclaimed materials that are not
ordinarily considered to be commercial
products, such as waste-waters or
stabilized wastes. The provision also
does not apply when the output of the
reclamation process is burned for energy
recovery or placed on the land. These
activities are controlled by the
provisions of the definition dealing with
using hazardous wastes as ingredients
in fuels or land-applied products. For
instance, if a spent solvent is treated
and blended with oil to sell as a fuel,
that waste-derived fuel is still subject to
RCRA jurisdiction.
The principle also does not apply to
wastes that have been processed
minimally, or to materials that have
been partially reclaimed but must be
reclaimed further before recovery is
completed. (See 48 FR at 14498 n. 87.)
For this last situation—where materials
are partially reclaimed but must be
reclaimed further until recovery is
completed—we are providing a variance
procedure for situations in which the
Initially reclaimed material is
commodity-like in spite of the need for
additional processing before it is finally
reclaimed. This variance is explained
fully in Section J2. of Part 3 of the
preamble below.11
F. Section 261.2(c)(4): Wastes That Are
Accumulated Speculatively
1. Grouping of Speculative
Accumulation and Overaccumulation
Provisions. EPA proposed that any
secondary material (/.«.. spent materials,
sludges, or by-products) being
accumulated speculatively were solid
wastes. We said these materials are
"accumulated speculatively" when they
are being stored with a legitimate
expectation of eventual recycling but
have never been recycled, or cannot
feasibly be recycled. See 48 FR 14488.
The Agency further proposed that
secondary materials that accumulate at
a site for over a year without 73 percent
being recycled are solid wastes. 48 FR
1449a The sense of this provision was
that all secondary materials that
overaccumulate before being recycled
are solid wastes, even if they are going
to be recycled in ways that ordinarily do
not constitute waste management
We have combined these concepts in
a single provision in the final definition.
We have drafted the provision so that
secondary materials are considered to
be solid wastes if they are accumulating
before being recycled. However, the
materials will not be considered solid
wastes (under this provision of the
definition) if the person accumulating
can show, on request, that: a) the
materials have known recycling
potential and can feasibly be recycled,
and b) during a one-year calendar
period that the amount of material
recycled, or transferred to ¦ different
site for recycling, is at least 78 percent
of the amount accumulated at die
beginning of the year.**
We think that drafting the provision in
this way most accurately reflects
Congressional intent that accumulated
hazardous, secondary materiala are
ordinarily to be regarded ea solid and
hazardous wastes. Congress beiieved
that hazardous wastes an rarely, if
ever, recycled or amenable for recycling.
HJL Rep. No. M-149L at 4. It mandated
fadrailatad IwlmiiUl cooHbi hiim hn
rnnilitami to ba rariahnad Ordinarily. wa wirtita
ooottnewmtar (contact or oo»«OBtact) to bataaaad
ll - - i u Lm » 1 * ¦* ^ -»« - i — -
ttiwcuf won u is fMBCBim wooiihi wm » w
Mora ndfodiite botlinBiriiwii taa Ai
pruuaaa (oftaa duamh a moltnf tuw) to Iom
aooofb haal to bi iMtHt Tim Aanqr daaa aol
eoattdm oooUag wattr roatad ta this wwy to ba
ladatanad
** Of eonmi tba matarith ooold rtfll ba aottd aad
itytkd. For rtwpla tbay tvoold ba waataa if
an to ba raqrded by batai baaed to noomt
a "regulatory framework" to ensure that
"hazardous wastes (are not) disposed of
in ponds or lagoons or on the ground in
a manner that results in substantial and
sometimes irreversible pollution of the
environment" (Id.) This mandated
"regulatory approach" would
"eliminat(e) the last remaining loophole
in environmental law. . ."lid.)
Although accumulating hazardous
secondary materials are ordinarily
regarded as solid and hazardous wastes,
this is not invariably the case. As noted
earlier in the preamble (see Section ILB.
of Part 1 and Section H of Pert 2). these
materials would not be wastes if they
can be recycled in certain designated
ways, and if they are not accumulated
speculatively before being recycled.
Ibese situations represent exceptions to
the general statutory prohibition against
unregulated waste management
Hie final rule thus states the general
principle that hazardous secondary
materials accumulating before recycling
are wastes unless the person
accumulating Is able to show on request
that he is indeed recycling sufficient
volumes of the materials on an annual
basis. The provision is not substantively
different from the proposed rule on
overaccumulation; the drafting indicates
explicitly, however, that this is an
exception to the general statutory
principle. Thus, the burden of showing
that sufficient amounts are being
recycled is on the person accumulating
the material. (See Section |. of this part
of the preamble.)
t § 261J(c)(4)(A): Wastes That Are
Accumulating With Expectation of
Recycling But Which Have Not Been
Recycled We are adopting in the final
rule-the proposed provision that all
materiala stored with a legitimate
expectation of eventually being recycled
but for which there ia no known
recycling market or disposition, or no
foaaible means of recycling, are wastes.
These wastes are subject immediately to
aU applicable RCRA Subtitle C
standards. Ordinarily, these are storage
standards for the applicable type of
storage facility. (See 48 FR 14499/2.)
Materials that are known to be
recyclable, such as solvents, scrap
metal used oil or most smelting
drosses, slags, and sludges ordinarily
would not be subject to this provision.
A person accumulating hazardoua
secondary materiala .would have the
burden of proving that there la a feasible
means of recycling the material. (See
9octk>n 1. below.) Thia ordinarily will
require Identification of actual recyders
and recycling technology, location of the
render, ana relative costs aaeodated
win recycling. For example, if the *
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Federal Register / Vol. 50. No. 3 / Friday, January 4. 1985 / Ruiea and Regulations g35
nearest recycier is 800 miles away, the
person accumulating the hazardous
secondary material would have
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636
Federal Register / Vol. 50. No. 3 / Friday. January 4. 1985 / Rules and Regulations
manner of recycling. We indicated that
our preference was for the 75 percent
recycling requirement to be applied to
all materials of the same class which
were to be recycled in the same way.
Most commenters agreed, as this kind of
accounting best assures that similarly
situated materials will be grouped in the
same way.
We are adopting this standard in the
final rule. We wish to clarify precisely
what this standard means, however. By
"materials of the same class" we mean
materials of the same type generated
from the same process. Examples of
materials that would be grouped are
distillation bottoms from integrated
production of chlorinated aliphatic
hydrocarbons, slags from a smelting
process, drosses from a smelting
process, dry sludges from the same
process, or wastewater treatment
sludges from the same process.
The requirement that the materials be
"recycled in the same way" means that
materials are either to be used to make
the same thing (for materials to be used
as ingredients), used in the same way
(for materials used as effective
substitutes for commercial products), or.
for unlisted by-products and sludges,
that the same material be recovered
from them. Thus, still bottoms used as
intermediates to make the same
products would be counted together—
for example, all still bottoms from
chlorinated aliphatic hydrocarbon
production that are used to make carbon
tetrachloride. On the other hand, still
bottoms used as intermediates in the
production of ethylene dichloride would
be counted separately. All of a
generator's spent pickle Uquor used as a
wastewater sludge conditioner would be
aggregated: the same generator's pickle
liquor used to produce iron oxide would
be counted separately. Smelting drosses
from which lead is recovered would be
counted separately from smelting
drosses from which zinc is recovered.
The Agency is adopting this approach
to ensure that materials most alike in
terms of physical characteristics and
mode of recycling an counted together.
EPA also believes this approach
safeguards against situations when
recyclable materials an counted along
with unrecydable ones, the
unrecyclable materials from being
wastes. For Instance, if a generator has
100 units of a secondary material all of
which an recycled as ingredients in a
process, and 20 units of me same
material only one unit of which is
recycled in a different process, the
remaining 19 units should be classified
as wastes because they aren't being
recycled.
d. Means of Satisfying the Burden of
Proof. As noted, persons accumulating
secondary materials not otherwise
defined as wastes have the burden of
proving that they an recycling sufficient
amounts of the secondary materials. At
a minimum, we would expect that
accumulators have on hand (1) the
amount of secondary material of each
class recycled in the same way on-hand
at the beginning of the one-year period.
(2) the amount of such material added
during the one-year period, and (3) the
amount remaining at the end of the one-
year period. Records customarily
maintained, such as records of
throughput through an industrial
process, should be satisfactory. For
materials used as intermediates in
closed-loop processes, records of
consistent historical use should be
sufficient In addition, names and
addresses of re cyclers receiving the
secondary materials should be
maintained, as well as any other
information that substantiates the
minimum turnover rate [e.g. contracts or
correspondence with a recyder).
e. Response to Comments. Although
commenters expressed concern about
the provision's complexity, most
supported it in principle. One
commenter, while supporting most of the
overaccumulation provision, urged that
it not apply to unlisted by-products
accumulated in tanks and containers for
a generator's own use or reuse. We have
considered this comment but an
rejecting it for the reasons given in the
proposal (48 FR14491/1). As a general
matter, we believe the key measun of
whether a material is overaccumulated
is the length of time before use occurs,
not how the material is stored or who
will recycle it In addition, the
commenter was most concerned about
accounting for unlisted by-products
burned as fuels: since these materials
an defined as wastes in the final rale
(although they an not at this time
subject to storage requirements), this
question is of less importance.
There wen a series of comments
regarding the status of commercial
chemical products that accumulate over
time without being used. EPA indicated
In the proposed rule that commercial
chemical products that are hazardous
wastes when discarded (la. those listed
in i 261.33 of the regulations) wen not
subject to either the speculative
accumulation or oversccomuiation
provisions of the proposed rule, 48 FR
14488. We also asked for comments aa
to whether some type of maximum
accumulation period should be imposed
by rule. Virtually all commenters
apposed this idea, due to the large
recordkeeping requirements involved,
and the difficult practical problems
involved in observing and enforcing
such e standard. The Agency shares
these concerns. Id. at 1449a We
therefore are not adopting any time limit
on when a commercial chemical product
held for recycling becomes a waste. The
May 19,1980 standard remains in place:
these materials an wastes when
discarded or intended for discard (by
means of abandonment), and are not
wastes when stored for recycling.
f. Variances for Secondary Materials
Not Recycled in Sufficient Volumes. We
also believe that there may be valid
reasons that persons are unable to
recycle sufficient amounts of non-waste
secondary materials in one year (or the
precious metal wastes that are
conditionally exempt form regulation)
and have retained the petition process
to accommodate these situetions. The
petition is now termed a variance from
being a solid waste, and is found in
S 280JO Substantive standards for the
Regional Administrator's (or authorized
state official's) decision an in 1260.31
(a) and procedures for applying for and
processing variances an in I 280J3.
The standards for granting a variance
are basically those we proposed. The
Regional Administrator must decide if
sufficient amounts of material are likely
to be recycled or transferred for
recycling in the following year. Factors
to be considered are: (a) The kind of
material being sccumulated and its
expected manner of recycling, (b) how
much is being stored, (c) how it is being
stored. (d) whether it is being stored in a
way that "»<"<"»)«— loss, (e) now and
when it is expected to be recycled, and
(f) why this is s reasonable expectation.
The Regional Administrator should
consider the applicant's past history of
recycling the material, whether there are
contractual arrangements or market
conditions bearing oa the likelihood of
futun recycling, toe reason that the
material was accumulated without 73
percent being recycled in the past year,
end other nlevant factors. It (or
example, e company has a multi-year
history of selling a secondary material
as a commercial product substitute, but
was unable to sell 73 pemat during e
given year duo to a temporary downturn
in maricot n"*1*"" and is handling
the aecondary material la a manner
commensurate wtth its vabe aa a
substitute comaardai product, the
company may bo aUffeli tor a variance.
On the other haad a wpeny that
overaccumulataa a eaosarfafy material
not ordinarily reaeed. baa (hat baa
able to pay othas aompamaa to use the
material in the pas*, ead aov has tons of
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Federal Register / Vol. 50. No. 3 / Friday, {anoary 4. 1985- / Rules and Regulations
637
material an band in open piles, it much
teas likely to be eligible for a variance.
A variance, if granted, would be valid
for only one year. If the accumulator
failed to recycle 73 percent of the
material on hand in the following year.
It would have to petition for a new
vutansa. Uad« the proposal the
company would have had to recycle 90
percent of the total accumulated
materials to be eligible to apply for a
second variance. In addition, a variance
could only be renewed two time®- In
response to comments, we are not
adopting either of these requirements in
the final rule. There do appear to be
situations, although infrequent where
secondary materials can accumulate for
over two years without being recycled
and still not necessarily be deemed a
waste. Possible examples ore certain
traditionally reclaimed mining by-
products that am being accumulated
because of cyclically depressed metal
prices. However, in determining whether
to grant a variance, the longer a material
has accumulated without recycling, fee
more likely it is that the variance
application will be denied.
G. Section 281.2(d): Secondary Materials
That are Designated aa Solid Waste*
1. The General Standard EPA
proposed that particular inherently
waste-like materials could be
designated a* solid wastes wV&ral
regard for the mode of recycling- Some
comments crititixed this provision aa
being a vague catch-alL while others
supported it or [In the case of certain
industry commenten) conceded the
need for this type of provision
EPA is retaining this listing authority
in the final regulation. A provision of
this type is needed because it la
impossible in practice to devise a single
definition which completely
distinguishes wastes from non-waatea.
We continue to think that certain
residual materials are inherently waste-
like. either because: (a) They an
typically disposed of or incinerated on
an industry-wide basis, or (W they
contain tcxic constituents "In
concentrations not ordinarily found in
tha raw materials or products for which
they substitute, which toxic constituents
are cot used, reused. or reclaimed
during (he recycling process, la addition,
recycling of the materials aflat hare the
potential to pose a substantial hazard to
human health aad the environment Tim
Assoc? believes these criteria are
relatively straightforward sad
"Thm «rt toido ooBstttaanti U«tad I* Appodix
VIC of Psn tBL Ttm propaMl wmiwwwli ntmti
to "Appcadla VTT (« P* «ltmV *
mttprinl br Ifa* Fatoal
understandable. Certainly they are not
"vague" in any legal tease. The Agency
will be required to designate in the rule
that particular materials are wastes so
(hat there is no risk that those subject to
regulation are uncertain or their
obligation
The criticism that this prevision is a
''catch-air also £o» &&t appear ta have
merit We believe the criteria limits
those materials the Agency could
designate. The Agency must determine
that the materials ordinarily are not
recycled on a nation-wide basis, and
thai the material contains Appendix VIC
constituents at levels not found in
analogous raw materials or products.
The criteria that the'reeyding activity
potentially pose a substantial hazard
also limits the Agency, by suggesting
that a purpose of the activity is to
dispose of die non-recycled toxic
constituents, and by suggesting dial the
secondary materials have so little value
that they are stored insecurely, and are
thus waste-like."
One cwmuster suggested that the
Agency designate secondary materials
as solid wastes if management of the
materials presents an "unreasonable
risk of injury to health or the
environment" This determination would
be based on aa assessment taking into
account such factor* as effects of the
material on human health and the .
wwusnswrrt. benefits of using the
material, and economic consequences of
listing.
This standard, as the comroenter
admits, is drawn essentially from the
Toxic Substances Control Act This is
not the standard Congress enacted for
RCRA decuionmajdng. RCRA
determinations are to be based on
health and environmental baaed factors.
(See 4SFR 33089 (May 19,1980).)
The consequences of being designated
aa a solid waste is that die material will
be within the Agency's jurisdiction no
matter tow ft Va betel tended. Thna,
the particular dtotin-confining mates
designated in today'* regulation (sea the
Mowing subsection) are considered to
be wastes (Car example) even if used
directly aa substitutes for commercial
producte or as ingredients in producing
a product On the other hand f Oil
must bo assaulted to determine the type
of regulation that applies to the waste.
2. Aflpilcaton of the Stasdcrd to
Sfteap'c Wastes. EPA proposed t»
designate a group of dloxin-contaltrtng
materials aa solid wastes. See 48 FR
14491-400. We atewtfttytas^*
" W« that nmnnatlw «rbo
ugMd that a brad tw*d by tacyefae « «¦ total
Is ad rslmat la a>i»"»iHilii» wliiiNi the awm
felWMtfc
proposal, in response to comments, to
exclude the listed commercial chemical
formulations (Haaardous Waste FOE").
These formulations do not meet the
designation criteria because they are not
chemically dissimilar from analogous
commercial products (i.e. they are
virtually tha same as pesticides that are
uaadV and they are not typically
discarded. In determining if (hew
formulation* are wastes when disposed
or recycled, the regulated community
should refer to the rules applicable lo
commercial chemical products. The
formulations thus would be wastes
when they are discarded by being
abandoned, or when they are burned for
energy recovery (the manner of
recycling not analogous to normal use).
See } 281.33 as amended by today's rule.
We also are indicating that Hazardous
Waste F02J ia not designated as a solid
waste If it Is used as an ingredient to
make a product at the site of generation.
U is a solid waste if recycled In any
other way (or if disposed.) Hie Agency
is taking this step in response to
comments indicating that
pentachioropheno) production plants
typically reuse these materials in their
own production process.
H. Section 281.2{e): Secondary Materials
That Are Not Solid Wastes When
Recycled
1. Secofldary Materials Used aa
Ingredients to Make New Products, or
Used at Substitutes for Commercial
Products, a. The Agency's Subtitle C
Jurisdiction. EPA proposed that
secondary materials that are used as
ingredient* to make new products were
not solid wastes provided that distinct
components were not recovered (/' e
reclaimed) aa end products. We also
proposed that secondary materials used
as substitutes for commercial products
in partirnit functions or applications
are not solid wastes. See 48 FR 14477,
IMV-Cft. Aa example of the fanner
practice—use as an ingredient—is
the use of chemical industry still
bottoms as feedstock. Use of
hydraQoorosilide add [an air emission
control dost) as a drinking water
fluoridating agent or aa* of spent pickle
liquor at a wastewater conditioner, are
' examples of use of a secondary material
as a aiinifwu.ial product substitute.
When secondary materials ire
directly used (or, in the case of
previously used materials, raised) in
these ways, we stated, they fanettan as
raw materials in normal
operations or as products in normal
commercial applications. We reiterate
these positions ia the final regulation.
These direct use recycling situations
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638
Federal Register / Vol SO. No. 3 / Friday, January 4. 1985 / Rules and Regulations
represent exceptions to the general
principle that accumulated hazardous
secondary materials are hazardous
wastes.
The final rule consequently states that
secondary materials used as ingredients
or used directly as commercial products
are not wastes and so are outside the
Agency's RCRA jurisdiction. They thus
are not subject to RCRA Subtitle C
regulations when generated,
transported, or used (unless they are
accumulated speculatively, as described
earlier).
Most commenters agreed with the
Agency on this point Those who didn't
felt that the Agency's jurisidiction over
recycled secondary materials is
unlimited. The Agency disagrees. Our
RCRA authority over recycling of
hazardous secondary materials is broad,
but has some limits. The legislative
history indicates that Congress rejected
an approach that would have required
modifying production processes in order
to reduce the volume of hazardous
waste generated. This is because such
restrictions "i(n) many instances would
amount to interference with the
productive (sic) proeess itself...." HJL
Rep. No. 94-1491,94th Cong. 2d Sess. at
28. The Agency accordingly has
interpreted its jurisdiction so as to avoid
regulating secondary materials recycled
in ways that most closely resemble
normal production processes. These
types of recycling are use of secondary
'materials aa ingredients or as direct
commercial product substitutes, or (as
explained below) use in a closed:Ioop
type of production process."
b. Redrafting of the Exclusion in the
Final Rule. In the proposal, exclusions
for using and reusing materials directly
took the form of exceptions to the
definition of reclamation (proposed
i ZBl.2(c)(l)(lHiil)). We have redrafted
the final regulation ao that f 281.2(e)(1)
indicates explicitly which secondary
materials used/reused in particular
ways an not solid wastes. A definition
of "use"/"reuseM appears in 1281.1(c).
Exceptions to this principal an found in
I 281.2(e)(2), and restate the situations
where recycling might be'considend to
involve a use (or a closed-loop recycling
situation, explained in the next section),
but nevertheleaa constitutes waste
management
As noted above, there are several
such use/reuse circumstances where the
nature of the material or the nature of
•Wt nota. la iMpooa* to ooramaatt. thai the
material* nriuM boa Ik* RCRA daflnittaa Mill
eu be hssudm mauriab (or purposes of
Department of Transportation nfaUttaa (ov«rein|
lha tnatpsitatlaa of hMwdaos ouMfiaU.
the recycling activity indicates that
RCRA jurisdiction exists:
• where the material being used is
inherently waste-like;
• where insufficient amounts of the
material are recycled:
• where the material is incorporated
into a product that is used in a manner
constituting disposal or where the
mete rial la used directly in a manner
constituting disposal: and
• where the material ia used by being
incorporated into a fuel or being burned
directly as a fueL
In addition, when a component of the
material is recovered as an end product
the material is being reclaimed, not
used.
c. Distinguishing Sham Situations.
Other commenters voiced concern that
these exclusions open opportunities for
sham re cyclers to claim that they are
using secondary materials, and so not
engaging in waste management The
Agency shares these concerns, and
wishes to take this opportunity to
indicate some of those situations (which
also were pointed out in comments) we
regard as shams.
First where a secondary material is
ineffective or only marginally effective
for the claimed use, the activity ia not
recycling but surrogate disposal. An
example (provided in comments) is use
of certain heavy metal sludges in
concrete. The sludges did not contribute
any significant element to the concrete's
properties, and so we would not regard
this activity as legitimate recycling.
A second example of sham use occurs
when secondary materials an used in
excess of the amount necessary for
operating a process. Examples are when
secondary materials which contain
chlorine an used as ingredients in a
process requiring chlorine but an used
in excess of the chlorine levels required
An indication that secondary materials
an net being ased in excess is if the
ncyder requires product specifications
on incoming secondary materials. and
these specifications an in accord with
those generally in use in the industry.
Another indication that a claimed
recycling use is a sham is if the
secondary material ia not aa effective as
what it ia replacing. Converaely, where
the secondary material ia as effective as
the alternative virgin material, the
activity ia much mon likely to be
considered legitimate recycling. Spent
pickle liquor, for example, ia known to
tte as effective as virgin materiala when
uaed aa a phosphorous precipitant in
wastewater treatment See 46 FR 44970
(September B. 1981). This reuse is
legitimate. A secondary material
considerably less effective, however.
could well be viewed as not being used
legitimately.
Absence of records regarding the
recycling transaction is another
indication of a sham situation. Records
ordinarily an kept documenting use of
raw materials and products. Records
likewise an usually ntained to
document secondary material use and
reuse. The Agency consequently views
with skepticism situations where
secondary materials are ostensibly used
and reused but the generator or recycler
is unable to document how. where, and
in what volumes the materials are being
used and reused. The absence of such
records in these situations consequently
is evidence of sham recycling.
A final indication of sham use is if the
secondary materials are not handled in
a manner consistent with their use as
raw materials or commercial product
substitutes. Thus, if secondary materials
an stored or handled in a manner that
does not guard against significant
economic loss (Ae, the secondary
materials an stored in leaking surface
impoundments, or an lost through fins
or explosions), then is a strong,
suggestion that the activity is not
legitimate recycling.
A recurring type of situation posing
the potential for sham use involves
using corrosive westes as neutralizing
agenta. The potential for disposal in
these situations is high since s waste
acid can be dumped into (or onto) other
materials, and any nsulting change in
pH would be incidental to the disposal
purpose of the transaction. Accordingly.
EPA will not accept a claim that a
corrosive secondary material is being
used as a substitute for virgin acid or
caustic unless indicia of legitimate
recycling an present These include that
the secondary add or caustic meet
relevant commercial specifications, that
they be aa effective ea the virgin
material for which they substitute, that
they be uaed under controlled
conditions, and that in a two-party
transaction then be consideration
(usually monetary) for use of the
material, la addition, the mon
contaminated the add or caustic is in
nlation to virgin material the less likely
the Agency is to view its application as
legitimate recycling.
We note also that persons claiming
that they an recycling hazardous
wastes in a excluded by the
regulation have the burden of proof that
an within the tanna of the exdusion.
See Section). below.
Finally, persona intending to use
secondary materials that an not listed
in the Chemical Substance Inventory
compiled by EPA punuant to Section
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Federal Register I Vol 50. No. 3 I Friday. January 4, 1985 { Rules and Regulations
639
Bfb) o! the Toxic Substances Control Act
(TSCA) must notify the Agency of the
intended use at least 90 day* before the
use begins. See TSCA Section 5(a) end
46 FR 21722 (May a 18631. EPA can
regulate these substances under TSCA if
it determines that the manufacture,
processing, distribution in commerce,
use. or disposal of the substance will
present an unreasonable risk or injury to
human health or the environment
(TSCA. Section 5(f).) EPA can also
extend the review period an additional
90 days for good cause. (TSCA. Section
5(c).)
2. Closed-Loop Recycling, t. Tha
Agency's Proposal. The Agency also
proposed to exclude from the deEntion
of solid waste materials that are
reclaimed at the plant site where
generated and that are then returned to
the original production process ia which
the material was generated.*' See 4a FR
14488/89. We referred to this type of
operation as "closed-loop recycling."
and stated that this type of operation
could be viewed as an on-going
production process and therefore
outside the Agency's Subtitle C
jurisdiction.
There were many comments on this
provision. Virtually all comm enters
agreed that some type of closed-loop
provision was justified, bat disagreed
about its scope. Some commenten felt
that the proposal was too broad, while
others staled that It should be extended
to aqy situation whoa a generator
reclaimed its wastes and reused the
reclaimed material la a process under its
control. In addition, many comntentera
criticized elements of the proposal as
unclear, particularly what the Agency
meant by "original process from which
generated''.
b. Modification of the Proposal We
have determined that the proposal was
both inexact and overbroad (see below).
However, we believe that (here ire
cartaln "closed-top" sitotttimia that an
so closely tied to op-going production
that they should be considered not to
involve solid wastes. In oar opinion,
there are three key requirements to a
closed-loop proem*—that la, a
production process that *L seme po iat
utilizes secondary materials bet
nevertheless la both essentially on-gotag
and closely interrelated thraghnol all
steps. The first requirement is the return
of secondary materials to tha original
process without undergoing significant
altera Hon or reprocessing, name if
witiiovt first being /toured. Second,
the production process to which these
unreclaimed materials ate returned itself
must be primary material based—Le.,
the materials must be returned to a
primary production process." This is
because if the material originally
introduced to a process already is a
waste, the process residue returned to
tha process should not ba any lass of a
waste than the material originally
introduced. Far example, a still bottom
from reclamation of hazardous spent
solvents would sever be considered to
be involved in a closed-loop operation if
It were redistilled because solvent
reclamation la a secondary process and
spent solvents introduced to it an
wastea.1*
Third, the secondary material must be
returned as feedstock to the original
production process and muat be
recycled as part of that process. Thus, a
spent degreasing solvent returned to
degreasing operation would not be
covered by this provision because It is
not Involved ia actual production. It
merely deans equipment
We consequently are stating la (ha
final rule that secondary materials are
not solid wastes when they are returned
for recycling as feedstock to the original
primary production process la whim
they are generated, and they are oat
reclaimed before they an returned to
that process. The broader provision we
proposed, which allowed reclamation
before return to the original process,
would exclude from tha solid waste
definition loo many operations where
the reclamation (tap ia leu and less
directly related to the principal
production process. Examples an
situations whart hydrochloric add Is
recovered from chemical industry still
bottoms. and the add is returned to the
chemical factor. Another potential
ritnatioaHwhea fluoridate recovered
__ "inasdswi
aifBrtiftffH fSteitsciL Snsodjiy pvoGaaaas,
tadMritl QftMtflfiftttoQ Mnul vmi wy Jtaflv
dsOaHfcM to wtsUAfas prtaMy sod aMOHtofr
ittteWnktaeHelik
. . i to to
. (Sm *avoMd I SLStqtUWsad «A
MMk) A* aavtataed la *• MaMata
ptmtt—a ft—fai I o f»o ¦ivurti
(as cryolite} from primary aluminum
spent potiinen and the fluoride is
reused. In these examples, neither the
still bottoms nor the spent potliners
should be considered to be involved in a
closed-loop operation because the
reclamation step is ancillary to normal
production activities. The proposed
approach might also have excluded
operations where the secondary
material itself is substantially
unrecoverable and contains
comparatively small percentages of
utilizable material. The proposal thus
might have invited abuse, as companies
might seek to avoid regulation by
reclaiming some small increment and
returning that increment to the original
production process.
We consequently are not adopting the
proposed approach in the final rule. The
final rule makes dear that the situations
discussed in the paragraph above are
not closed-loop recycling and so are not
exduded from the definition.
c. Explanation of the Requirements
That Secondary Materials Not Ba
Reclaimed, and That They Be Relumed
To The Original Process. The final rale
raises two principal Issues of
Interpretation: distinguishing between
reclamation and incidental processing,
and clarifying what tha Agency means
by return to the original production
process. The Agency has defined
"reclamation" ia these regulations to
ouaa recovery or regeneration. We
further clarified, in the April 4 preamble,
that processing steps that do not
themselves regenerate or recover
material values aad are not necessary to
material recovery an not reclamation.
See 46 FR 14489/1. Examples are the
. wetting of dry wastes to avoid wind
dispersal [/<£) or the briquetting of dry
wastes ta facilitate resmelting. Another
axaaqpls, provided la comments, is
sintering operations at Iran aad steel
plants when (aconite ores, flue dusts,
aad other iron-bearing materials are
agglomerated thermally before charging
to a blast furnace. Conversely,
processing operations that do recover or
regenerate materials so u to make them
available for further use are considered
to Involve reels iiiation Examples are
de*»a terms of wastewater treatment
sludge* belore the dewatered sludges
are recycled, and the treatment of
wastewater before recycling. (See 48 FR
14487/1, suplsfotng that bam of tha
operations involve reclamation.]*
at*a
n Tba propoMl actoalhr tsdadsd Am Mtsriab
hon (be deflation af ndaawtto^ bat fee aBaai of
tht prerUMo was la eadada tkaaa o»twUl» &wa
tha of aoUd vasta.
¦Uhom Biai batasraHilint i» t
haMdttii tia atnafslad IN Isaaas)
llast nda (| ssU(a||lKttm Mastw 1
amndny atnrid* ieaM ba aaamadtv. sad
Wanted tsfaadttock to pnoawaaariai raw
BitWih m ti>ai> principal tfrinuUu in ardm t» ba
waMmd allffbla fa Sbfnvkte
"Vliaimal
at oinld ba
tbadanJ lup urtwlun Tha Aaaacy tmanda]
matt Saooodaiy aattriala awed la»
Cm
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640
Federal Register / Vol. 50. No. 3 / Friday, January 4, 1985 / Rules and Regulations
By "return to the original process", the
Agency means that the (unreclaimed)
secondary material must be returned to
the same port of the process from which
it was generated. The material need not
be returned to the same unit operation
from which it was generated. It is
sufficient if it is returned to any of the
unit operations associated with
production of a particular product if it
originally was generated from one of
those unit operations. For example, an
emission control dust from a primary
zinc smelting furnace could be returned
to any part of the process associated
with zinc production, such as the
smelting furnace in the pyrolytic plant,
or the dross furnace. A spent electrolyte
from the primary copper production
process could be returned to any part of
the process involved in copper
production—including the roaster,
converter, or tank house. An emission
control dust from steel production could
be returned to the sintering plant for
processing before charging to the blast
furnace.
However, in the first example, if the
emission.control dust from the zinc
smelting furnace was sent to by-product
cadmium recovery operations, it would
not be considered to be returned to the
same of the process from which it was
generated. This is because the cadmium
production processes produce a
different product from zinc production
operations. For the same reason, if the
spent electrolytes in the second example
were sent to by-product recovery
operations for recovery of nickel sulfate,
they would not be considered to be
returned to the original process. Note
that this principle holds even if the by-
product recovery operation is located at
the same plant site.
d. Variance For Hazardous Wastes
That Are Reclamed and Then Returned
To The Original Process. We do believe,
however, that EPA's proposal—that
materials reclaimed before being tensed
in the original primary production
process are not waste*—can have soma
applicability. We are allowing for these
situations by means of a variance. The
standards and procedures for granting
or denying a variance for this type of
recycling are described in Section ILJ.
2.(b) of Part III of this preamble.
«• ofdlnaiUy waat»4ika. They aaoally are Ml
(tend to ¦ mannar that ¦iaimtaM lew (aaa. «s
Fit 14480. aa «d m wilwtimUl partaae at
UfUUtt** hUtory of tba RCKA ftaaBtbartaatiaa
lajWahnn). and Tfafin natartab a»a tartly tf mm
iiari iathto way. Wa thai aaathla mull Ifail
waatawatar traadaaal «lnrl|ai and ortiar wat
lUfN ava oat ati^lbla bt lha daaadtey ncydtaf
¦iHlnainwitilly.
e. Examples. The following examples
illustrate the operation of this provision:
• Primary smelting facility A
generates a dry emission control dust
that it collects, stores, and resmelts in
the original smelting furnace.
The emission control dust is not a
solid waste because it is returned to the
original primary process without first
being reclaimed (This answer assumes
that the dust is not overaccumulated
before it is resmelted.)
• Primary smelting facility B
generates a listed wastewater treatment
sludge that it dewaters and returns to
the original process.
The wastewater treatment sludge is a
solid waste because it is listed and must
be reclaimed (in this case, recovered by
dewatering) before it is resmelted.
• Generator C generates a spent
solvent which it distills and returns to
the same degreasing operation in which
it was generated.
The spent solvent is a solid waste.
Not only is it reclaimed before reuse, but
it is not reused as a feedstock in a
production process. (After the solvent is
reclaimed, of course, it is a product and
no longer a waste.)
• Generator D generates a still bottom
that it bums without reprocessing for
energy recovery in a boiler in the same
unit operation.
The still bottom is a solid waste
because it is burned for energy recovery.
The closed-loop exclusion thus does not
apply. Nor would it apply if recycling
the still bottom constitutes disposal or if
the still bottoms were overaccumulated
before return to the original process.
• Generator E, a petroleum refinery,
generates a hazardous by-product from
refining operations that ia returned to
the refining process and incorporated
into fuels, asphalt and other products.
This process involves return of
unreclaimed material to a primary
production process but the by-product
remains a waste because it is used as an
ingredient in fuels and in products that
are placed directly on the land. See
12612(e)(2) (i) and (ii).
3. Recycling of Secondary Materials
by Primary Facilities, a. The Agency's
Proposal. The remaining exclusion that
EPA proposed was for secondary
materials that an reclaimed in primary
production processes. These were not
considered to be solid wastes. Proposed
128L2(c)(l}(li); 48 FR at 14477.14488.
Hit usual example is secondary
materials sent to a primary smelter for
material recovery. The reason for the
proposal was that these materials were
substituting for the normal raw material
feedstock. One result of this proposed
exclusion would be differential
regulation of secondary and primary
facilities reclaiming the same materials,
since the material could be e solid waste
when reclaimed by e secondary smelter,
but would not be when reclaimed by a
primary smelter.
The proposal was imprecise regarding
the scope of the exclusion. For example,
we did not discuss whether it made any
difference if the primary reclaimer
recovered the same materials (or even
the same type of material) originally
produced whether recovery occurred at
the same or a different site, or whether
the primary reclaimer recovered its own
or another person's secondary materials.
There were many comments on this
part of the proposal Operators of
primary processes supported it while
operators of secondary processes
objected. Some states and
environmental groups also objected.
b. Modification of the Proposal. We
have decided not to promulgate this
exclusion as proposed, but rather "to
limit its scope to the closed-loop
production situations discussed in the
previous section. We think the proposal
waa in error in failing to differentiate
among the different types of fact
situations when a primary process
would be used for reclamation—such as
the part of the process involved, location
of the recovery operation, and type of
material recovered. The proposal, for
example, could have applied to
situations where: (a)'Rmidues an sent
off-site to be recovered, (b) residues go
to a by-product recovery operation, or
(c) when residues an recovered in
ancillary operations and the material
recovered is not marketable but can be
used in a primary process.*1 The
Agency does not believe.that an
unvarying rule like the one we proposed
can properly cover all these situations.
Rather, whan a secondary material ia to
be recovered in an operation diffennt
from the one in which it wes generated,
we believe then is a continuum with
secondary materials becoming mon
waste-like the mon the recovery
opention differs from the original
process, and the mon physically
removed the recovery opention is from
the original process. Hie nitun of the
secondary material whether U is a
sludge, by-product or a spent material
or scrap metal how frequently It is
tempered, and how it ia hsndled befon
recovery also is highly relevant The
proposed rule waa deficient In failing to
account for all of these factors.
ai QyoUH hoiib) baa tptel primary
ataariMM padlam la a poaribia asaapla at thia
laatrtoaitaL
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Federal Register / Vol. 50. No. 3 / Friday. January 4. 1985 / Rules and Regulations
641
We believe that the exclusion should
apply only when residues from primary
processes are returned in unreclaimed
form to the original process where they
are then reclaimed. This is the only
situation where the Agency can say a
priori that secondary materials
reclaimed in primary processes are not
wastes.
The by-products and sludges that are
the residue from primary production
processes thus can potentially be solid
waatcs when they are reclaimed in other
primary (or secondary) processes. They
are wastes if they overaccumulate
before being reclaimed, and they are
wastes if they are listed in $3 261.31 and
261.32. In determining whether to list
certain sludges and by-products as
hazardous wastes, we intend to take
into account whether they should be
considered to be wastes when
reclaimed. If materials are reclaimed in
primary processes (such as primary
smelting operations), we will evaluate
how frequently the material Is recycled
on an industry-wide basis, whether the
material is replacing a raw material and
the degree to which it is similar in
composition to the raw material, the
relation of the recovery practice to the
principal activity of the facility, and
whether the secondary material is
managed in a way designed to
loss—all of which show that the
material is handled as a commodity.
As stated in the previous section,
hazardous secondary materials returned
for reclamation to the secondary process
in which they were generated are not
excluded from being wastes. The
materials are not substituting for raw
materials normally used, and the
operations themselves—using as they
often do spent materials as a principal
feed—are reclamation processes, not
ordinary production operations. Thus,
return of a residue to this type of
process is not the same as a continuous
production operation.
The final regulations thus provide that
the following secondary materials are
wastes when reclaimed by either
primary or secondary reclamation
operations, unless the materials are
returned to the primary smelting process
from which they wen generated without
first being reclaimed:
(1) Sludges and by-products that an
listed in || 28141 and 28L32
(2) All hazardous spent materials;
(3) All hazardous scrap mataL
In addition.
(4) Any secondary material is a waste
if ovsraccumulated.
c. Examples. The following mmpi—
illustrate these principles:
« Primary smelter A generates a listed
emission control dust that it sends to
primary smelter B for metals recovery.
The dust is a solid and hazardous
waste because it is a listed sludge being
reclaimed.
• Primary smelter B generates a listed
emission control dust that it reclaims
itself in an as-is condition in its own
smelting furnace.
The dust is not a solid waste because
it is being reclaimed as part of a closed-
loop recycling process, and has not been
reclaimed before re introduction to that
process.
• Primary aluminum smelter A
generates spent potliners from which U
recovers fluoride for use in its own
process.
The potliners. a spent material are a
solid waste.*1 They are not returned to
the smelting process for recovery, but to
a different unit operation. In addition,
fluoride recovery is an ancillary activity,
far removed from the production of
aluminum, the principal activity of the
primary aluminum facility. (In fact this
operation is probably best viewed as
hazardous waste treatment because the
main purpose of the operation is to treat
the cyanide in the potliners, not to
recover fluoride. See 49 FR 8746 (March
8.1984).)
• Solvent reclaimer S generates
hazardous still bottoms from Its
distillation operation and mixes these
still bottoms on-site with virgin oiL S
then sends the mixture to a fuel
processor.
The still bottoms are solid wastes
because they are used to produce a fuel.
The fact that this operation occurs at a
single site Is irrelevant The mixture of
still bottoms and oil remains subject to
regulation as a hazardous waste as wefi.
L Secondary Materials Specifically
Excluded From the Definition of Solid
Wast*
1.1281.4(a)(6); Black Liquor
Reclaimed and Reined in The Kraft
Paper Process. Pulpmaldng processes in
the paper industry use chemicals to
' digest wood chips, and the spent
chemicals are recovered from the
digester, reclaimed by burning in a
recovery furnace, and then reused In the
digester la approximately their original
foreL "Black liquor" is the name given to
the spent chemicals, which are caustic
and sometime corrosive. Recovery and
reuse of black liquor can occur at a
single paper mill, and also can involve a
second paper mill which reclaims black
liquor for its own use or for reuse by the
*TW» waits fi enmity mum tas rtfokttoa
at • rtwit of EPA't tstarprataHoo of Dacriea
3001(b)(3) <* RCXA.
generating tnilL AU Kraft paper mills
reclaim their black liquor (or have the
black liquor reclaimed), and little is ever
discarded. The Kraft process itself is not
economically viable without recovering
the black liquor. Black liquor is
customarily stored in tanks before being
reclaimed, but also is stored in surface
impoundments. (The paper industry
estimates that one-third of the
approximately 125 domestic Kraft mills
have black liquor impoundments.)
The Agency has tentatively
determined that black liquor, on a
generic basis, meets the standards for a
closed-loop variance (see section Q.J.2.
b. of Part 3 of the preamble below) and
so is not a solid waste when recycled in
this way. (We also indicated in the
proposed regulation that black liquor
recovery was a closed-loop type of.
operation. 46 FR 14468.) At leaat where
black liquor is stored in tanks rather
than in surface impoundments, black
liquor reclamation is integrally tied to
the Kraft paper production process,
whether it occurs at a single or different
plant All Kraft mills practice black
liquor recovery, and the recovery, is
economically essential to the process.
An end use for black liquor is readily
available. The whole operation is
essentially an on-going process, with
chemicals being used, recovered, and
returned in their original form to the
same process in wfaidi they were
generated, or to en analogous process at
a different facility. Because (his
operation appears to occur for all black
liquor generated, we have determined
that black liquor is not a solid waste
when recycled in this way.
The Agency, however, is continuing to
Investigate the degree of recycling that
occurs when black liquor is stored in
surface impoundments. Although some
(and perhaps moat) of the Mack liquor
stored in Impoundments la recyded in a
closed-loop manner, there are some
reasons to auastion whether this is
Invariably die case. Tbeee reasons are;
• Black liquor may remain in
Impoundments without being recycled
for long periods of tins because ot (a|
Inadequate capacity of tha black liquor
recovery furnace; (b) the lack of a
nearby facility to sefl or trade the black
liquor; and (c) rHfflnriftoe to pumping the
blade liquor from an Impoundment due
to dttotin* or
coagulation of the I
Impff'i'uhiMiit bottoai i
chips, or rain
• Many bias
areunlined. end so
• Black liquor
often built to
liquor caused by
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Federal Register / Vol 50. No. 3 / Friday. January 4. 1983 / Rulea and Regulations
conditions such as loss of a set of black
liquor evaporators or loss of a recovery
furnace. When this occurs, the black
liquor in the impoundment is
accumulated in excess of what can be
accommodated at the facility and so
may not be recycled, or not be recycled
for a long time.
In light of these uncertainties, the
Agency is investigating further whether
black liquor stored in an impoundment
before recycling in the Kraft process is a
waste. In addition, we note that black
liquor that is disposed of and not
recycled is a waste, and if hazardous, a
hazardous waste. This includes black
liquor that leaks, leaches, or overflows
from an impoundment and is not
recycled. Furthermore, the final rule
states that black liquor stored before
recycling remains subject to the rules on
speculative accumulation. Thus, paper
mills accumulating black liquor must
show that they are recycling 79% of the
amount on hand at the beginning of a
one-year period.
In summary, today's final rule states
that:
• Black liquor accumulating before
recycle to the Kraft paper process is not
a Subtitle C solid waste. At least for the
present time, this exclusion includes
black liquor that is stored in a surface
impoundment before recycling. The
person accumulating must show that the
black liquor is not being accumulated
speculatively, or the black liquor will be
considered to be a waste:
Black liquor that is recycled in some
other manner could be a waste and
black liquor that is disposed of is •
waste.
2. § 281.4(a)(7): Spent Sulfuric Acid
Used to Produce Virgin Sulfuric Acid.
Spent sulfuric add is frequently used as
a feedstock in the production of virgin
sulfuric add. It is normally reintroduced
into the original sulfuric add production
process where sulfur values are
recovered and absorbed into
sulfuric add. 45 FR14487 il30l Under the
proposal spent sulfuric add recycled in
this way was not considered to be a
solid waste because it was used as aa
ingredient used in a primary process,
and was burned in an indnatiial farnace.
See 48 FR 14483.14487 nJOl 14488 aSl.
As discussed earlier (see Section B.
above), some commenters questioned
the regulatory status of spent materials
that are reclaimed and then used aa
feedstocks. We indicated that normally
the spent material would be considered
to be a solid waste until it was
reclaimed. However, we agree that our
discussion of spent sulfuric add at
proposal (in footnote 30) created some
confusion.
To eliminate any confusion, we are
promulgating a specific exclusion stating
that spent sulfuric add recyded in thia
way is not a solid waste. As we
explained at proposal the spent sulfuric
acid recycling process more dosely
resembles a manufacturing operation
than a reclamation process. In addition,
the operation is well established, and
accounts for approximately 9% (in 1982)
of the roughly 33 million tons of sulfuric
add produced annually. At least one
state (California) has indicated by
statute that spent sulfuric add returned
to the sulfuric add production process is
not a solid waste. EPA is therefore
declaring explidtly that spent sulfuric
add returned to a sulfuric add
production process is not a solid waste.
The add is a hazardous waste if
disposed (assuming it is corrosive or
exhibits other hazardous waste
characteristics), and could be a
hazardous waste if recycled in some
other manner (such as burning for
energy recovery).
1.1281.2(f): Burden of Proof in
Enforcement Actions
EPA proposed that if respondents in
enforcement actions raised a claim that
a particular secondary material was not
a solid waste (or was conditionally
exempt from regulation) because it was
recyded in a particular manner then
they had the burden of proof to show
that they were indeed recycling in that
way. (Proposed 128U(d) and 48 FR
14492.) We are adopting this provision in
the final regulation.
Aa discussed earlier in Section F,
RCRA creates a broad remedial scheme
to ensure that hazardoua wastes are
managed safely from cradle-to-grave.
The regulatory framework envisaged for
thia problem extends to hazardous
waates being recycled, and normally
Includes any hazardous secondary
material that ie being recycled or that is
accumulated with expectation of
recycling.
Certain exceptiona to this remedial
schema to exist We think it appropriate,
and the rule states expliddy, that the
burden of proof (in the aense of both the
burden of producing evidence and the
burden of persuasion) la on the persons
claiming that hazardoua secondary
material la not a waate because it ia
within the terma of any of these
exceptiona. Thia proviaian. thua. restates
iii» logil pinripU tint puttee 'I*1"!"*
the benefits of an exception to abroad
remedial atatutory or regulatory scheme
have the burden of proof to show that
they fit the terma of the exception. See,
e& SEC v. Ralston Purina Co. 348 U3.
119.126 (19S3) (exception to Securities
Act registration requirement); US. v.
First City National Bank of Houston. 388
UJS. 381.388 (1987) (exception to merger
provisions of Clayton Act): Arnold v.
Ben Knowsky. /he. 381 UJS. 388.393
(1980) (exception to Fair Labor
Standarda Act for retail sales);
Weyerhauser, Inc. v. Costle. 590 F.2d
1011.1040 (D.C. Cir. 1978) (burden of
proof is on applicant for Agency-created
fundamentally different factors
variance).
Viewed another way, the regulations
presume that hazardous secondary
materiala stored before recycling are
hazardous wastes. The person
accumulating can prove, however, that
the materiala are net wastes due to the
manner of recycling (including the
amount of material being recyded).
These facta are within the spedal
knowledge of the person sccumulating
the material. Presumptions of this type
have been upheld conalatently when
they further interpret a remedial
statutory purpose, guard against harm to
public health and safety, and where the
facta to rebut the inference are
particularly within the knowledge of the
other party. See Beth Israel Hospital v.
NLRB, 437 U.S. 482.493,502 (1978): US.
v. General Motors Corp» 581 F.2d 923.
924 (D.C. Cir. 1977) (Leventhal}.
dissenting in part).
Furthermore, thia type of claim ia an
affirmative defense, for which it ia
appropriate that the person ssserting the
defense have the burden of proof. In
addition, die facta underlying the
recycling defense would be peculiarly
within the knowledge of the petty
aaserting the defense, a situation aa
noted above where it ia appropriate for
that party to have the burden of proving
the issue. We thus disagree with those
commenters deiming that the Agency
lacked authority, or waa ill-advised, to
allocate a burden of proof in this
regulation: Indeed, die Agency has
allocated burdena of proof to
respondents in other regulations that
create an affirmative defense or an
exception to a generally applicable
principle. See 1122.42(n)(4) (permittee
has burden of proof to establiah the
affirmative defense of upset); 11243
(National Pollutant Discharge
BiimiwHtm Syatam permit epplicant haa
burden of persuasion that a permit
authorising a discharge of pollutants
should be iesoed). This allocation of the
burden of proof waa affirmed in
American Petroleum Institute v. EPA.
881 F.2d 340,332.384 (Sth Cir. 1981).
There is no formal recordkeeping
requirement in the regulation. However.
persons must keep whatever records or
other meane of substantiating their
claims that they ere not maneging'a
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Federal Register f VoL 50. No. 3 I Friday. January 4. 1985 / Rule* and Regulations
643
solid waste because of the way the
material is to be recycled.M They also
must show that they an not
overaccumulating their secondary
materials. See Section FJ. above. Ia
addition, owners or operators of
facilities claiming that they are engaged
in recycling must show that they have
the necessary equipment to do so.
Fait ID: Standards for Managing
Hazardous Wastes That an Recycled
I. Ati Overview of the Final Regulations
Section 2814) of the final regulation
contains the regulatory requirements for
hazardous wastes that an recycled. The
final rule contains many of the
provisions that were proposed, but also
eliminates all but one of the proposed
conditional exemptions. The other major
change from the proposal is that we an
adopting standards and procedures for
certain variances.
A. Outline of the Final Regulations
Aa in the proposal (and as under
current regulations), hazardous wastes
to be recycled—called "recyclable
materials" la the regulation—ore
ordinarily subject to regulation under
Parts 262 and 263 of the regulations
(when generated and transported) and
to the storage facility nquirementa in
Parts 284 and 289 (when stored before
recycling). We usually do not regulate
the recycling process itself, except when
the recycling ia analogous to land
disposal or incineration. (See 49 FR
33092-093 (May 19.1980); see also HJl
Rep. 88-198, supra at 48 indicating that
uses constituting disposal and burning
for energy recovery are to be regulated.)
In addition, certain recyclable materials
and certain types of recycling an
subject to regulatory standards that an
not completely Identical to those
contained ia Parts 282 through 26S tad
Parts 270 and 124. The regulatory
standards for these types of recycling
activities are contained ia various
subparts of Part 288. Section 28L6(a)(2)
serves as a cross reference, listing those
recyclable materials and recycling
activities subject to special standards.
We an adopting Part 288 standards for
the following recycling activities or
recyclable materials;
• uses constituting disposal:
• burning for eaergy recovery in
boilers end industrial furnaces and
"Abulia ef dacoMBtstlBB net anly oanM
mshs it dUBctttt a* trnpawtbU far « mpendinl to
cany Ua tarda of prat bet abo would ltMii ba
wrtdtaot that dM dsimad nqpeUat a « «kw. 8m
Sacttsn ILH.14. above
using recyclable materials to product a
fuel:
• recyclable material from which
precious metal an to be recovered;
• spent lead-acid batteries being
reclaimed.
Used oil that is to be recycled will
eventually be regulated under Part 288
but presently is exempt from regulation
during the time it takes to develop
standards consistent with the
requirements of the Used Oil Recycling
Act and the HSWA (see 48 FR 14498).
We also an exempting permanently
two types of recyclable materials-
industrial ethyl alcohol to be reclaimed,
and used batteries or cells returned to a
battery manufacturer for regeneration—
from all Subtitle C regulation. These
exemptions an found in | 2614(a)(3).
Scrap metal (that is hazardous} and
that is to be recycled is also exempt for
the present time while the Agency
investigates further whether there is a
need for regulation and what an
appropriate regulatory regime might be
if regulation is necessary.
Finally. we have added variances
from i 281.6 or Part 288 (as well as
ft 281.2) for certain types of recyclable
materials and recycling activities. These
variances—to be implemented at the
Regional or State level—can result in
increased regulation, or (for materials
determined not to be solid wastes) tto
regulation. Standards for granting or
denying variances an found la f I2Q031
and 280.32 (variance from being a solid
waste), and 280.40 (additional regulation
of generaton or storage facilities).
Procedures for implementing these
variances an found fat new || 28043
and 280.41.
B, Elimination of Conditional
CPA proposed that (bar types of
reclamation activities be conditionally
exempt from regulation: (1) A single
person reclaiming his own hazardous
wastes; (2) a single person reclaming
another's hazardous wastes for his own
use; (3) batch tolling reclamation
arrangements: and (4) precious metal
reclamation. With die exception of
precious metal reclamation, we an not
adopting these exemptions in the final
rule. (We are also soliciting comment as
to whether batch tolling reclamation
procedures should be eligible (or a
variance.) As stated In Part I of the
preamble we havecsadttdad that there
Is danger of substantial harm from leaks
and spills If these activities an not
regulated We en supported In this
conclusion by comments of states,
hazardous waste management
organizations, environmental groups,
and the Congressional Office of
Technology Assessment.
We have also concluded that all of the
Part 284/283 standards should apply to
those recycling.situations that are not
conditionally exempt. We considered
whether it was possible to develop
tailored standards for these facilities,
leaving out those regulatory standards
which guard solely against the risk of
overaccumulation (a risk unlikely to be
present; see 48 FR 14477) and retaining
those standards which guard against
risk of spills or leaks.
This type of tailoring proved
impossible. Design and containment
standards for containers, tanks, and
piles an necessary to protect against
leaks and spills, and were indeed
devised largely to prevent these risks.
Go sure and financial responsibility
requirements, which do guard against
overaccumulation. also provide
protection should leaks or spills occur.
Thus, facility owners and operators
must ensure that contamination that has
occurred during operation of the facility,
such as by spills or leaks, will be
controlled, minimized, or eliminated so
that post
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Federal Register / VoL 50. No. 3 / Friday, January 4. 1985 / Rules and Regulations
Table 9. Comparison or the Various Prow
sions Between the Existmq, Propose),
amo Final Ruus
Ezsmoeon tor
Omral'«gu«onr
ttndMl Iv
nantptsntor
ma ncynaCla
imew-
1261.6(a).
1161.6
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Federal Register / Vol 50. Na 3 f Friday. January 4,1985 / Rules and Regulations
645
Table fti Decision Tree Which identifies the
Various Regulatory Requirements, for the Different
Recycling Activities and Materials
—> Regulate under
(All other SS261.6(b) and (c)
reclamation)
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Federal Register / Vol 50, No. 3 / Friday, January 4. 1985 / Rules and Regulations
II. Discussion of Specific Provisions of
the Regulation
A. Section 2614(a)(1): Recyclable
Materials
To avoid conceivable stigmatizatlon<
EPA proposed that hazardous wastes
that an to be recycled be called
"regulated recyclable materials." Most
comments favored this approach, and
we are adopting it in the final rule,
choosing the less cumbersome name
"recyclable materiaL" As stated in the
proposal however, all Section 7004(b)
announcements and notices regarding
permits for facilities managing these
materials must still refer to hazardous
waste. See 48 FR at 14493/3.
E Section 261.8(a)(2](i) and Part 286
Subpart C Recyclable Materials Used in
a Manner Constituting Disposal
1. The Proposal Rule. EPA proposed
that hazardous wastes used in a manner
that constitutes disposal be regulated
under the Part 264 and 265 regulations
applicable to land treatment or landfill
disposal. Storage and transportation
occurring before the actual recycling
also were to be fully regulated. See 48
FR 14406-497. Only materials placed
directly on the land in an "as-is"
condition or placed on the land after
simple mixing were defined as wastes,
however, and so were subject to these
requirements. Most common tars
indicated that the land treatment end
landfill regulations were inappropriate
for this type of recycling because those
regulations contemplate existence of a
facility whereas use constituting
disposal recycling activities occur in a
variety of situation-specific contexts
which may be dissimilar. Certain of the
land disposal regulations, they argued—
such aa closure or post-closure care or
liner Installation requirements—would
be very impractical to apply to a
recycling situation when a hazardous
sludge was used as road-base material
on a stretch of highway. Other facility
standards, they claimed, such as plant
security, or preparedness and .
prevention, normally don't apply to this
kind of recycling.
2. The Final Rule. Tha Agency has
dedded to promulgate the regulatory
scheme essentially as proposed. the
changes from tha proposal, explained in
3. below, have to do with a dearer
explanation of what type of chemical
changes to a waste-derived product
result in deferral of regulation. Under
the final rale, hazardous wastes placed
requirements for landfill or <»«"<
treatment facilities. The Agency indeed
has indicated as long ago as the
preamble to the May. 1980 interim status
standards that these regulations would
apply to hazardous wastes placed on the
land, whether or not recycling is a
purpose of the activity. See 45 FR 33205-
208 (any benefit such as providing crop
nutrients, from placing hazardous
wastes on the land is Incidental, and
the practice is to be regulated as land
treatment); see also 46 FR 14484/3 (April
4,1984) (direct application of hazardous
waste to land as fertilizer is land
treatment citing the Background
Document for,the July 28.1982 land
disposal permitting standards).
It may be, as commenters state, that
the Agency ultimately can develop a
more tailored regulatory system for
wastes recycled to the land. We are not
able to do so at the present time. See
Sections D.C.1. and 2. of Part D of the
preamble. Since the Agency is
implementing a statute designed to
control hazardous wastes placed on the
land, it is inappropriate to defer
regulating this practice any longer. The
Agency therefore does not intend to
delay regulating this practice while a
different regulatory scheme is developed
and debated. If wastes are safe to put on
the ground, the delisting mechanism ..
provides some means of demonstrating
that the practice can occur without
regulation. (See § 28022 which applies
to listed wastes: wastes exhibiting a
characteristic of hazardous waste could
not be pieced on the land without
complying with applicable Part 264 or
285 standards.)"
We note that the HSWA Includes a
prohibition banning use of hazardous
waste (except wastes exhibiting the
characteristic of ignitability) mixed with
waste oQ. used oil or other materials for
dust suppression or for road treatment
See RCRA amended Section 3004(1). We
are adding this prohibition to the
hazardous waste regulations la another
rulemaking codifying provisions of the
HSWA.
3. Exemption For Hazardous Waste-
Derived Products. As we indicated in
Part Oof the preamble, we are deferring
regulation of hazardous waste-derived
products that are placed on the land. We
are deferring action because waste*
derived products may present less
potential risk than wastes placed
directly on the land without significant
change, due to the
alteration and dilution of toxic
constituents that can occur in the course
of the process. Use of hszardous waste-
derived commercial products on the
land also is more cleariy a recycling
activity than direct waste application *»,
and this use thus is a better candidate
for separate regulatory standards. In
any case, the Agency wishes to obtain
public comments on this issue in the
context of a specific proposal."
The final rule thus states that
products that contain hazardous wastes,
which wastes have undergone a
chemical reaction so as to become
inseparable by physical means, are not
presently subject to RCRA Subtitle C
regulation when they are used in a
manner constituting disposal. We think
the phrase 'have undergone a chemical
reaction so as to become inseparable by
physical means' expresses our intention
better than the language used et .
proposal namely *without essential
change to their identity or after simple
mixing'. The waste-derived products for
which we are deferring regulation are
those where the hazardous wastes have
undergone chemical bonding, so that
they are chemically transformed. The
waste-derived products for which we
are not deferring regulation are those
where the wsste is mixed but not
chemically reacted. (An exception is for
commercial hazardous waste-derived
fertilisers which would not hove to
undergo chemical bonding to be
exempt) The language used in the final
regulation is drawn from 40 CFR f 118-3
(definition of "mixture") but expresses a
familiar physical concept See
Condensed Chemical Dictionary, 10th
ed. Van Nostrand Rainhotd Co. (1981).
Fvmpi— of hazardous waste-derived
products in which contained wastes
have undergone chemical bonding, and
ao are deferred (ram regulation, are
waste-derived cement end asphalt In
these processes, the constituents
polymerize and so are essentially
inseparable by physical means " They
"Tha Agncy aai <
ptodacts ta tta 19B0 ptwabta
"We aatai howwwt. Sm to m
coartbuf to &• •flaatwan *1 (k* <
on the land in the form genera tea or
¦ft— wMwj rtut doesnt
significantly altar tha waste's chemical
character, are subject to regulation
under the Part 284 and 285 permit
"Oritottafi do ael «pptyi« «ll» ipsriBabMts.
'. Tb« pihHnwif —t ihnwmiHi that fee
hesUfc nd ti» wImmI If left «NfBteied la
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Federal Register / Vol. 50. No. 3 / Friday. January 4, 1985 / Rules and Regulations
647
are not in solution or otherwise mixed.
On the other hand, wastes applied to the
land after drying ot dewatering remain
subject to regulation. Hazardous wastes
that are mixed with used oil are another
example of wastes that are mixed, not
chemically reacted- See 48 FR14496/1.
They therefore are subject to regulation
under the landfill or land treatment
facility standards if applied to the land.
The final rule also states that a waste-
derived material must be a commercial
product before it is exempt from
regulation under this provision. A
commercial product is one marketed for
general use. not just the use of the waste
generator or user. If a generator were to
add a waste to other material so that the
waste is chemically reacted and then
were to apply the waste-derived product
to its own land without also selling the
product the land application would
remain regulated under today's rule
because it does not involve a
commercial product (This answer
assumes the waste remains hazardous
after the chemical change.)**
The Agency recognizes that the
distinction between wastes subject to
regulation when placed on the land and
hazardous waste-derived products for
which regulation Is deferred are not
ideal A better scheme is the one we
ultimately enviaioa where all of these
wastes are potentially subject to
regulation and (at least for waste-
derived products) a mean exists Tor the
producer or user of the product to
demonstrate that the product is safe to
use in a situation-specific context. This
scheme requires further devefopment
and proposal before ft can be
implemented, in the interim, we are
regulating those practices most closely
resembling land disposal.
4. Exempt/on for Commercial
Hazardous Wast*-Derivad Fertilisers.
The Agency indicated at proposal that
many waste-derived fertilizers were not
covered by the proposed role. 41 FR
14485/1. Ccmmenters pointed out that
the mixing involved la producing mixed
waste-derived fertilisers does not
ordinarily change the chemical
character of the wastes contained in (he
product and asked for further
clarification of the rule as U applies 10
waste-derived fertttizeru
We do not Intad to regulate
commercial waste-derived fertilizers at
this time because we need to study
further the poesible hazards associated
with their use. We an therefore
indicating ia the final rule that
"Far Ito r»w. rtibOwd mw ttnt«w
•VptM t» S»* Wad an Mt omnd b* (hi* pmrtrioa
beeee* HBblltwd eesl* w eet eeeewdet
prodact*. To tb* mam «8kl m* «S FR at 1M8S/L
commercial waste-derived fertilizers are
not subject to regulation at this time.
(We also note that the nonnal
application of such fertilizer does not
appear to constitute a release under the
Comprehensive Environmental
Response. Compensation and Liability
Act (CERCLA). See CERCLA Section
101(22](D) and S.Rep. No. 96-M& 96th
Cong. Zi Seas. 46.| By 'commercial
fertilizers', we mean fertilizers produced
for the general public's use and not for
the exclusive use of the generator. When
a hazardous waste generator applies its
waste, mixed or not solely to its own
land as a fertilizer, we believe that
disposal is a majoi purpose of the
practice, and that the land disposal rules
should apply. See 45 FR 33205-208.
5. Regulation of The Transport and
Storage of Hazardous Waste Before
Processing of Waste-Derived Products
To Be Pieced On The Land. The final
rule also regulates immediately all
transport and storage of these wastes
before the time they are actually
processed into waste-derived products
to be placed on the land. Likewise, if
wastes are pieced on the land in the
form generated or after simple mixing,
they are subject to regulation when
stored or transported before being
placed on the land. For purpose* of
transportation and storage, therefore,
these wastes an regulated like all other
hazardous wastes prior to land disposal-
The Agency believes that these wastes
can pose the same hazards when stored
and transported as other wastes
awaiting land disposal and
consequently that comparable
regulation is called for. Time have
indeed beta a number of damage
incidents associated with both transport
and storage of hazardous wastes prior
to processing to produce waste-derived
products to be placed on the land,
confirming that regulation is necessary.
(See Appendix A. Damage Incidents.)
6. Example. The following example
illustrates how these provisions will
operate:
• Generator G generates a hazardous
sludge that can be used as an ingredient
in fertilizer. G stores the waste in a (rile
for 3d days end then ships it by truck to
a fextilizer-producticg plant (Fj. who
stores it in a pile and later Uendail with
ether materials and sells the resulting
product as a commercial fertilizer. The
fertilizer eventually is sold end applied
to the land.
G is e generator subject to Part 262
standards, and its storage pile requires a
Part 284 permit or must meet interim
statu standards (waste piles are not
covered by Hie 90-day aecsntoUtisa
exception in 1262J4). The transporter
must comply with Part 263. F, Lhe
fertilizer producer, must obtain a storage
permit for its waste pile or comply with
interim status requirements. The waste-
derived fertilizer is not presently subject
to regulation because it is sold as a
commercial product
C. Section 261.6(a]f2Kii) and Part 266
Subpart D: Recyclable Materials Burned
for Energy Recovery in Boilers and
Industrial Furnaces
We already described (m Section 11.
0. of Part ~ of this preamble) that for the
time being, the Agency is leaving in
place the regulatory system contained in
existing J 261.0. We summarize these
existing requirements here:
• Generators sending listed
hazardous wastes (;.e. wastes listed in
$ S 282.31 or 261.32 or blended mixtures
containing these wastes}, or hazardous
sludges to fuel processors 01 burners a re
subject to Part 282. Generators who
store these same wastes before burning
far energy recovery must comply with
the Part 264 or Part 269 storage
standards or with f 2S2J34. Generators
a wring non-sludge characteristic wastes
before burning them for energy recovery
are exempt from regulation.
• Transporters taking listed
hazardous wastes and hazardous
sludges, or blended mixtures containing
these wastes, lo fuel processors or
burners are subject to Part 263.
Transporters taking unlisted, non-atudgi.
hazardous waste* directly from
generators to fuel processors or to
burner*, or taking hazardous waste-
derived fuels {i.e. fuels which contain
hazardous waste} from fuel processors
to barriers, an not subject to regulatiun
(when they transport such wastes).
• Hazardous waste fuel processors
are subject to full regulation under Part
264/Pait 265 when they store listed
wastes and hazardous sludges
(including mixture* containing these
wastes before processing. The fuel they
produce is not subject to regulation.
• Hazardous waste fuel burners are
subject to storage requirements when
they store listed wastes and hazardous
sludges, but not when they store non-
sludge unlisted wastes or hazardous
waste-derived Awls received from fuel
processors who didn't generate the
waste.
• Burning of hazardous wastes for
legitimate energy recovery to boilers or
in industrial furnaces is not presently
subject to regulation.
These rales an temporary only. Our
forthcoming proposed rale on burning
hazardous waste and contaminated
used oil seta forth our contemplated
regulatory regime.
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648
Federal Register / Vot. 50. No. 3 / Friday. January 4. 1985 / Rules and Regulations
We also note that the HSWA contains
two provisions relevant to this
discussion. The Brit prohibits cement
kilns located in cities with populations
greater than 500.000 from burning
hazardous waste fuel unless the kiln
complies with requirements applicable
to hazardous waste incinerators. See
RCRA amended Section 3004(q)(C)(2}(i).
Since the prohibition is imposed by
statute, it applies to all hazardous waste
fuels, not just hazardous waste fuels
containing listed wastes and sludges.
The second statutory requirement
involves labelling of hazardous waste
fuels. The new amendments provide that
any person who produces, distributes, or
markets a hazardous waste fuel must
include a warning label in the invoice or
bill of sale stating that the fuel contains
a hazardous waste and listing all
hazardous wastes contained therein.
See RCRA amended Section 3004(r)(l).
This requirement again applies to all
hazardous waste fuels, and so applies to
fuels containing characteristic spent
materials and by-products, as well as
listed wastes and sludges. Certain
hazardous waste fuels are exempt from
this warning label requirement
however. These an petroleum coke
containing hazardous waste ingredients
(unless the coke exhibits a hazardous
waste characteristic), and fuels from
petroleum refining containing oil-bearing
hazardous wastes indigenous to refining
(amended Sections 3004(q)(2](A) and
3004(r) (2) and (3)). respectively.
These requirements are being added
to the hazardous waste regulations by
another rulemaking proceeding which
codifies portions of the HSWA.
D. Section 281.6(a)(2)fiii) and Part 208
Subpart £: Recycled Used Oil
This provision is reserved for the
regulations implementing the Used Oil
Recycling Act (UORA) (Section 3014 of
RCRA). This provision requires EPA to
conduct an analysis and evaluate the
effect of regulation on used oil recycling.
EPA presently is conducting studieeand
developing regulations that satisfy the
requirements-of the UORA. We will
soon propose the fint of these
regulations dealing with contaminated
used oil burned for energy lecowy. and
will be proposing additional regulations
in the future.
E. Section 261 .8(e)(2)(Iv) and Part 268
Subpart F: Precious Metal Reclamation
1. Retention of The Partial Exemption.
Although EPA has concluded that most
of the proposed conditional exemptions
are unwarranted, we continue to believe
that the exemption for precious metal-
containing wastes being reclaimed for
their precious metal content remains
justified because of the high value of the
metals being reclaimed. We noted in the
first part of this preamble that a
decision an how carefully wastes are
stored before reclamation turns largeiy
on a weighing of how valuable the
wastes are and the cost of buying virgin
products to replace reclaimed materials.
The precious metals being reclaimed
from these wastes are at the high end of
the value nrmHnmim. ranging from
values of approximately S9J30 per troy
ounce (silver) to SBOOiX) per troy ounce
(iridium and rhodium).
An examination of how these wastes
are managed confirms that they are
accorded special care due lo their value.
Management cf these materials
ordinarily is characterised by very
careful from point of
generation to point of recovery. Wastes
containing these metals are at least
placed in containers, and are sometimes
neutralized, dried and shipped—with
armed guards—in pooches to the
reclaimer. Reclaimers and generators
often enter into batch tolling
agreements, requiring reclaimers to
return the theoretically redaimable
amount of metal to the generator. For
this purpose, wastes are typically
assayed by both the generator and the
reclaimer far precious metal content
and precautions are takes by the
reclaims to avoid loss. Wastes are
containerized before reclamation: the
Agency is not aware that open piles or
impoundments are used for storage.
Accumulation time by reclaimers also
tends to be short (lees than one month),
because reclaimers often are required to
return the reclaimed metal (or cash) to
the generator within that time.**
The Agency thus believes that the
value of the contained metals,
corroborated by the usual management
practices for these wastes, supports the
partial exemption. At the same time, the
Agency does not believe a complete
exemption is warranted. As pointed out
in the proposal, individual predous
metal operations have caused
environmental ham. and some of the
wastes being reclaimed—such as spent
cyanide solutions are very hazardous.
In this regard, we note that some
precious metal reclaimers themselves
supported a partial, father than total
ftfipHow- (Sea. ms< of
Engienard Industries Division. July 30.
1983.)
Hie rule consequently states that
wastes to be recycled are exempt from
all but the following requirements:
-«¦» (a) Notification requirements under
Setfion 3010
(b) Manifest requirements *
(c) Requirements precluding
over-accumulation: and
(d) Recordkeeping requirements to
document that wastes are not being
overaccumulated.
Manifest requirements are necessary
to create a paper trail to track wastes
from the generator to the reclaimer. To
enforce the requirement against
overaccumulation. we are requiring
generators, reclaimers, and intermediary
facilities accumulating the wastes to
keep records showing the volume of
wastes on-hand at the beginning of the
calendar year, the amount of waste
generated or received during the oqe-
year period, and the amount of waste
remaining at the end of the period..
We are making this portion of the rule
effective immediately because the
regulated community does not need time
to come into compliance. RCRA
amended Section 3010.
2. Definition of Precious Metal. As
used in the final regulation, precious
metal reclamation iwriwH— reclamation
operations recovering gold, silver,
platinum, pilkdiufli ths plitirwn group
onttilf (Iridium, osmium rhodium*
ruthenium) or any combination of these.
This is essentially the H»fiiiiH«n used in
the proposal (the proposal omitted the
metal osmium), and is the same
definition used by the Agency in
developing limitation guidelines
far the predous metal reclamation
subcategory (40 CTR Part 421). Tlie only
comments disagreeing with this
definition suggested (without
explanation) that beryllium, germanium.
gaiUnwi. nni indium also be included.
These metals are not ordinarily
as precious, end commodity
prices far these metals ordinarily are
much lower than far the precious metals
(in some cases, several hundred times
less). The Agency also haa little
iwfrwiwrtww qq thg imnUjug practices
far wastes containing these materials or
whether these wastes would be
haiardoua. We therefore are not
expending the list of predous metals at
t)ll» Hw»
3. Distinguishing Sham Operations.
We also note that sham recovery
operations manly "'¦'"'"fl to be
engaged in precious metal reclamation
are not exempt under this provision.
Sham operations not only inrhids those
when no predous metals are present
but those where predous metals ere
present only in trace amounts, or in
smounts too low to be economically
recoverable. Tits regulations
consequently state that the reclamation
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Federal Register / Vol. 50. No. 3 / Friday. January 4. 1985 / Rules and Regulations
649
facility must be recovering economically
significant amounts of precious metals
from each waste for the waste to be
conditionally exempt For example. .
wastes from which small amounts of
silver are recovered by a facility not
ordinarily engaged in precious metal
reclamation would not be exempt from
regulation. Other factors indicating
sham precious metal recycling are lack
of strict accounting by either the
generator or reclaimer of wastes to be
reclaimed, storage (such as in open piles
or impoundments) by either the
generator or reclaimer not designed to
protect wastes from release, payment to
a reclaimer to accept wastes, or absence,
of efficient recovery equipment at the
reclaimer's site. Generators or
reclaimers engaged in this type of sham
recycling without complying with RCRA
regulations are of course managing
hazardous wastes without complying
with applicable regulatory standards.
4. Status of Wastes From Precious
Metal Reclamation When Hazardous
Wastes Are Reclaimed Several
commenters questioned the statement in
the preamble that wastes from precious
metal reclamation are presumptively
hazardous if the material being
reclaimed is a hazardous waste. This
statement does no mote than recite
existing regulations (see { 281.3(c)(2)),
and is justified factually here because
the hazardous portions of the wastes are
not recovered but remain in the process
residue. (Effluent sampling data shows
high toxic metal and cyanide
concentrations in wastewater from
precious metal reclamation operations
reclaiming electroplating sludges and
related wastes.) Commenters presented
no data disputing these conclusions. In
addition, individual precious metal
waste generators and reclaimers have
the option of delisting the wastes from
the reclamation process if they believe
they are not hazardous.
F. Section 281.8(a)(2)(v) and Part 2B8
Subpart G: Spent Lead-Add Batteries
Being Reclaimed
EPA proposed that spent lead-add
batteries be regulated when stored by
the persons reclaiming them, either a
battery cracker or a secondary lead
smelter. These spent batteries would not
be regulated, however, when handled by
persons other than reclaimers, such as
retailers, wholesalers or local service
stations, or during transportation. Spent
batteries stored 4t intermediate
collection centers also would not be
regulated. See 48 FR14498-489.
Many commenters supported these
regulations, tnduding significant
segments of the lead recycling industry.
Other commenters disagreed that the
risks presented by storage of spent lead-
acid batteries warrant regulation. Still
other commenters. including most of the
commenters from the lead recycling
industry, stated that battery storage by
independent collection centers
presented greater risks than storage by
reclaimers. They stated that collection
centers tended to store batteries for a
longer time than reclaimers, and
sometimes in larger amounts, and
provided examples of improper handling
by collection centers. There was
consensus, however, that initial
collectors and transporters did not
require regulation.
We have decided to adopt the
proposed regulation without significant
change. Add spillage from uncracked
batteries can cause significant harm,
and storers have no (or minimal)
incentive to store spent batteries
without add spillage. We are impressed
that even some lead recyding industry
members accept the need for regulation
of spent battery storage. We also note
that many states regulate various
aspects of spent batteiy recycling
(including, in many cases, storage by
battery reclaimers),40confirming a need
for regulation. Damage cases dted in the
April 4 preamble provide further
corroboration.
The Agency is continuing to
investigate whether regulation of
intermediate collection sites is
appropriate. These battery collection
sites are managed, for the most part by
the same persons who operate scrap
metal collection sites, and scrap metal
and spent batteries are usually
accumulated by these persons at the
same sites. We therefore will address
this issue as part of our study of
hazardous scrap metal storage.
G. Recyclable Materials Exempt from
Regulation
1. Section 2$lJfa)(3)(i): Reclaimed
Industrial Ethyl Alcohol Industrial ethyl
alcohol can become contaminated
during use. and may then be returned to
a distillery for redistillation. Spent
industrial alchol exhibits the
characteristic of ignitability.
EPA has dedded to exempt industrial
ethyl alchol that is reclaimed from any
RCRA regulation because the entire
reclamation operation already is
regulated by the Bureau of Alcohol.
Tobacco and Firearms from point of
spent ethyl alcohol generation to point
•Tha Sum of tamayhraaia. Sooth Cawttna.
T**a*b Mlaaouri. Naw Yotfc. California. Oklahoma.
Oratoa and Indiana ngulata various aapocta of
•pam battaty wcycUm- Sao Camimnn of Can«nl
Battafy Corporation to Pnpoaad Bffluaet
Linatattooa and Staadaida for NonUmw Matala
Manufacturing. A usual 11 1BU.
of redistillation. These regulations
require operating permits for individual
industrial ethyl alcohol distilleries and
users. These permits must address
(among other things) ethyl alcohol
storage (including storage of spent ethyl
alcohol), plant security, and
recordkeeping. See 27 CFR 19.156.
19.199.19.166. and 19.271-19.281
(requirements for distillers) and
{9 211.41-211.50. and 211.91-211.96
(requirements for users). Tracking from
the generator to the distiller likewise is
controlled. Id. SS 211.217.-2U.219. There
is also incentive to avoid loss of alcohol
because there is tax liability of S10.50
per gallon of spent ethyl alcohol, and
this tax is imposed, and ordinarily not
remitted in .the event of loss. Id..
SS 19.561-19.563. In light of this
comprehensive cradle-to-grave existing
regulatory system, further RCRA
regulation would be redundant.
2. Section 281.6(a)(3)(ii): Used
Batteries Returned to a Battery
Manufacturer for Regeneration. This
exemption is identical to the one
proposed. See 46 PR 14496/2. (In
response to comment we also note that
returning an unused battery for
regeneration would not involve waste
management because the battery would
be a commercial product being recycled.
See S 281.33.) In essence, the practice
involves retiiming a commercial produ'
for regeneration, an activity not
ordinarily regulated. All comments on
this issue supported the proposal. (We
note, in response to a comment, that
used battery cells returned to a
manufacturer for regeneration also are
covered by this exemption.)
3. §261.8fol(3)(iii): Used Oil
Exhibiting a Characteristic of
Hazardous Waste. This temporary
exemption was discussed in Section 1I.E.
above.
4. § 2618Ja)(3)(iv): Scrap Metal. The
Agency has determined not to regulate
(for the time being) hazardous scrap
metal that is being reclaimed. This is an
interim measure. We are continuing to
study which types of scrap metal may
be-hazardous." We also are continuing
to study the modes of scrap
management by collection centers and
by end reclaimers, and are also studying
marketing arrangements in the industry.
Other on-going work deals with the
impacts (both environmental and
economic) of possible regulation, the
feeeibility of enforcement if regulation
should be necessary, and whether
" Preliminary (Malta of Agancy iludlta
that moot scrap (natal la not haxardoua. aithoug^^
aona typaa axibMl EP toxicity
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650
Federal Register / Vol. SO. No. 3 / Friday. January 4, 1985 / Rales and Regulations
tailored regulations can or should be
developed for hazardous scrap metaL
The Agency expects to determine
from this investigation which types of
scrap metal are hazardous, whether the
regulation of transportation and storage'
is necessary, and what an appropriate
regulatory regime might be for those
types of scrap metal that are hazardous.
Since we do not yet have answers to
these questions, we are deferring
regulation.
We are not deferring regulation of
non-scrap metal-bearing hazardous
wastes that are reclaimed. The Agency
already has made a determination that
these wastes are hazardous, that
regulation is necessary to protect human
health and the environment and what
appropriate regulatory standards should •
be. Thus, such metal-bearing wastes as
spent batteries, spent mercury, and
spent acids and caustics are subject to
$ 261.8 (or Part 266) regulatory
standards under today's rale.
H. Section 261.6(b) and (c):
Requirements for Generators.
Transporters, and Storage Facilities
1. The Generally Applicable
Stcsdardx These provisions state that
persons generating, transporting, or
storing recyclable matrrlah, who are
not explicitly addressed in 1291.8(a),
are subject to all of the applicable
requirements of Parts 282.263.284 and
265 of the regulations, as well as to
applicable peanit requirements. Thus,
hazardous wastes that are to be
reclaimed are covered by these
provisions. Hazardous wastes that are
accumulated speculatively also are
covered.41 As noted, these provisions
aAj we ootid inthe AarJ 4 preamble. pi nun
who oveueneuiitt mill are tabbed to
regulation ai storage bolt tie* when a year elapaaa
without tufflcient turnover of material. (However,
at noted in the rata, and In Section ILFJ-b. of Part i
of tha praambi* aatartala that art oorad is a sntt
covered by i 281.4(e) an not cowaiad by tha
overeccumulation provuiona.) Aaae paaoaa ha«a a
iix-month panod to coma into compliance with
applicable etoraga laquiiauienta or to ahip all
accumulaiad haxardoua waataa to a Subtitle C
facility, as R M49S/2-1. Ionian accumulating
hataidoua waataa apemUHvaly an aablaet lo
immediate refutation aa ganetatora (if they ganerate
the waataa) or aa *tofa«a facilttiaa (if thay atore
aootar peraone waataa. if tbay atota that own
waataa in piiaa or a apoondaetta. or tf thay atore
their own waataa in lanka and oontalnaia for lanfar
than SO daya or far laaa than SO da ye without
complying with tha proteose af | XSU4).
wQl apply to most of the activities that
would have been conditionally exempt
under the proposal as well as to
situations (such as reclamation by an
independent reclaimer selling reclaimed
products to the general public) that we
already proposed to regulate fully.
The following chart compares the
extent of coverage under the May 19.
1880 regulations (40 CFR 261.8(b)) with
today's final regulation for those
recyclable materials not regulated under.
the special itandards in Part 266—
namely recyclable materials being
reclaimed or accumulated speculatively.
For wastes being reclaimed, the
principal extension of regulation is to
spent materials exhibiting a
characteristic of hazardous waste.
Sludges that are not listed as hazardous
wastes, however, are no longer
regulated when reclaimed. In addition,
unlisted by-products and spent
materials are now subject to regulation
when accumulated speculatively (i.e.
without sufficient amounts being shown
to be recycled). Commercial chemical
products listed in 40 CFR 1281.33 are
not subject to regulation whan recycled
in any of these ways.
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Federal Register / VoL 50. No. 3 / Friday. January 4.1985 / Rules and Regulations
651
TABLE 12:
- 160 -
Comparison of Regulation Under May 19, 1980 Regulations
and Under Amended J261.6 for Recyclable Materials Not
Subject to Regulation Under Fart Z66 Standards
Reclamation
May 19 Final Rule
Acuaulation Without
Sufficicent Amounts
''Being Recycled
May 19 Final Rule
Accumulation
Without A Known
Recycling Market
May 19 Final Rule
Spent Materials
Listed in
SI261.31 or 261.32
yes
yes
yes
yes
yes
yes
Spent Materials
Exhibiting a
Characteristic of
Hazardous Waste
no
yes
no
yes
yes
yes
Sludges Listed In
11261.31 or 261.32
yes
yes
yes
yes
yes
yes
Sludges Exhibiting
a Characteristic
of Hazardous Waste
yes
no
yes
yes
yes
yes
By-products Listed
in SS261.31 or
261.32
yes
yes
yes
yes
•
yes
yes
By-products Exhibi-
ting a Character-
istic of Hazardous
Waste
no
no
no
yes
yes
yes
Scrap metal
no
no
no
no
yes
yes
Commercial Chemi-
cal Products
Listed in S261.33
no
no
no
no
no
no
Yes - Subject Co regulation under Parts 262-265
Nc - Not subject Co regulation
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652
Federal Register / Vol. 50, No. 3 / Friday. January 4. 1985 / Rules and Regulations
2. Conforming Amendments to
§§281A 264.1. and265.1. EPA proposed
that hazardous wastes that are exempt
from regulation when they are to be
recycled are not included in the small
quantity generator calculation. 48 FR at
14493 n. 38. This proposal was a
conforming amendment to existing
§ 285.1(c), which already embodies this
principle. We are promulgating this
amendment in final form today. Since
there are fewer conditional exemptions
than at proposal however, fewer
recycled hazardous wastes will be
excluded from the small quantity
generator calculation. As at proposal
spent lead-acid batteries that are to be
reclaimed are excluded from the small
quantity generator calculation because
they are not subject to regulation in the
hands of the generator.4*
The amendments to 8S 284.1 and 285.1
also are conforming. They indicate that
these sections do not apply to activities
that are conditionally exempt or
excluded from regulation, or that are
regulated under a Part 268 standard.
(The Part 288 standard may. of course,
make reference to a Part 284 or 285
standard.)
3. Revision of§260.10: Definition of
"Designated Facility". In response to
comment the Agency also is adopting a
rule relating to manifesting of hazardous
wastes to recycling facilities that
introduce the wastes directly into the
recycling process without prior storage.
These recycling facilities are not
required to obtain storage permits under
the May 19.1980 rules (| 261.8(b); see
also 48 FR at 14498/2 to the same effect),
nor under the rales adopted today. This
is because the Agency does not regulate
the actual process of recycling, but only
generation, transportation, and storage
occurring before actual recycling. 45 FR
33093/1 (May 19.1980). However,
generators sending hazardous wastes to
these facilities, ana transporters
carrying these wastes, are required to
deliver the wastes to "designated
facilities'' and to include tin name,
address, and EPA identification number
of these facilities mi the fw^iwrylng
manifest A "designated facility" is
defined as a facility with a Part 284
permit or operating pursuant to interim
status (1280.10).
These rales consequently are in
conflict because recycling facilities that
do not store are not "designated
facilities" (they do not have permits or
interim status), and, under a literal
reading of the present rules, are unable
"PndoaaaatalwastaaatatobaladBdedwhae
oaktag the mmU qaaatty gnmtar eaicalatlaa
bacaoaathaaawastaa an aab|act to fafriatfoB la
tha hand* of tha (oarator.
to receive wastes for recycling. This
obviously was not the Agency's
intention. Accordingly, the Agency is
amonriing the definition of designated
facility so that recycling facilities that
do not store before recycling can receive
hazardous wastes.
The amendment states that facilities
regulated under i 281.6(c)(2) of the
regulations are also to be considered
designated facilities. Section 281.8(c)(2),
in turn, states that recycling facilities
that do not store are required to notify'
the Agency under Section 3010
(obtaining an identification number in
the process), and to comply with
manifest requirements under S3 285.71,
285.72. and 285.78.
The Agency stresses that this
amendment is an interim one and is
designed to solve the immediate conflict
between different regulations. We are
not making a final decision that these
facilities require only minimal
regulation. In fact we are considering
whether these facilities should be
subject to additional requirements to be
implemented through individual permits.
We also stress that very few facilities
recycle wastes without first storing
them. In this regard, we note that tanks
or containers in which some incidental
settling occurs but which are used
primarily for storage are subject to '
regulation under the storage facility
permit standards. ^This is in keeping
with the policy of the current regulation
that only the actual process of recycling
is to be left unregulated. Examples of
recycling processes that occur without
prior storage are where spent batteries
are introduced directly to a battery
shredding machine without prior
storage, or whan spent solvents are
placed in a distillation unit without prior
storage.
L Variances
EPA is adopting several variance
provisions in tha final rule. One of these
provisions results in increased
regulation (and so is a variance from
otherwise applicable standards or
exemptions), while the others result in a
determination that materials recycled in
certain waye ere not solid wastes. These
provisions are described below. .
I. Case-byCase Regulation. a. Tha
Substantive Standard EPA proposed
that various recycling activities
conditionally exempt from regulation be
"Forpvpaaasof thtspefa&pdaaaad
lapoaadmaata an maty eooafckrad to haaa
tatapalgarta^ba»doaa*NStoiaqiidfa«^
anaob^cttoi«tu!attNL* «saseqaan»fcr
subject to case-by-case regulation if
they accumulated, stored or burned
hazardous wastes in e manner
insufficient to protect human health and
the environment to be determined
baaed on criteria enumerated in the rule.
Proposed S 281 J(g), 48 FR 14510. We
believed this provision necessary in
order to regulate individual unsafe
operations, while maintaining an
otherwise appropriate exemption.
Many comments supported this
provision, but other commenters
objected They complained that the
Agency was giving with one hand but
taking back with die other, that the
provision vested too much discretion in
the Regional (or authorized State)
Administrator because decision-making
standards were too broad, and that this
type of provision deprived facilities of
needed certainty. (Many of these same
commentim argued that the Agency
should vest Regional Administrators
with authority to grant individual
variances, based upon standards far
broader than in the case-by-case
regulatory provision.)
The Agency has determined to adopt
most of the provision as proposed,
except that we are not promulgating a
case-by-case provision for boilers end
industrial furnaces burning hazardous
waste for energy recovery. We note that
the provision has less significance than
at proposaL because it applies only to
wastes utilized for precious metal
reclamation. Applicability at proposal
was to other types of conditionally
exempt operations, which now will be
folly regulated. We believe this type of
provision remains needed in spite of its
reduced eppUcability, to guard against
mishandling of precious metal-
containing waste. Indeed, we know that
damage incidents have occurred at these
facilities. The case-by-case regulatory
provision also allows the Agency to
control individual facilities without fully
regulating the entire class.
The Agency also does not accept the
argument that the regulatory standard is
too broad. Regional officials must find
that the wastes are not being contained,
or that incompatible wastes ere being
stored together. Relevant factors are the
type end quantity of waste accumulated,
the mode and length of accumulation,
and the type of hazard posed by the site.
The Agency not only believes that these
standards are sufficiently clear, but
notes they an modelled on long-
standing provisions in the Agency's
National Pollutant Discharge
Elimination System permit regulations
providing authority far regional officials
to require case-by-case regulation of
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Federal Register / Vol. 50, No, 3 / Friday. January 4. 1985 / Rules and Regulations
653
facilities holding general permits. (See
48 FR 14494 n.40.)
We have a number of reasons for not
promulgating the case-by-case provision
for boilers and industrial Furnaces. Most
important, the Agency already ia well on
the way to establishing standards for
these facilities. We wild propose to ban
burning of hazardous wastes in non-
industrial boilers, and shortly will
propose permitting standards for
remaining boilers and industrial
furnaces. Hiese standards should either
be effective, or be dose to being
effective, by the time an enforcement
action could be brought, decided, and a
permit issued under the case-by-case
provision. Furthermore, the Statement of
Enforcement Policy (see Section ILD.2.a.
of Part 2 of the preamble) remains in
force and serves as a partial safeguard
against abusive situations until the
permit standards become effective. In
light of these considerations, it does not
seem worth the resources necessary to
Implement the case-by-ease provision
for boilers and industrial furnaces.
One consumer argued that the
Regional Administrator must show an
'imminent threat to human health and
the environment" before case-by-case
regulation coold be invoked. We
disagree. This standard similar to that
in Section 7005 of RCRA. may be more
stringent than required for issuing a
RCRA. permit (see Section 3004). Since
the case-by-ca»e provision amounts to a
determination that an individual facility
requires a RCRA permit (or mutt comply
with Part 282 accumulation standards),
the suggested standard is inappropriate.
As a matter of organization, we are
codifying the substantive standards for
case-by-case regulation in 120040.
These standards are thus grouped with
other provisions that are individual in
application and effect, such as
and variances. Procedures for case-by-
case proceedings are found in new
1280.41.
b. Procedures far Caa«-by-Cas*
Determinations. We are adopting the
procedures that we proposed. Upon
deciding that precious metal-containing
waste at a particular location should be
regulated, the Regional Administrator
(or authorized state) will issue a notice
to the person storing the wasts stating
why the waste la considered to be
improperly contained (for instance,
because contaminated runoff from a pile
of the waate is seeping into soil, surface
water or ground water). If the person is
accumulating the material on-site for
less than 90 days and the material is
being held in tanks or containers, the
notice will require compliance with the
provisions of Subparts A. C D. and E of
Part 282. (These generators already an
required to comply with subpart B (the
manifest requirements) of Part 262. See
f 2M.70(bH2].) The notice becomes final
within 30 days, unless the person
accumulating requesta a hearing, in
which case a public (non-evidentiary
legislative) hearing will be held. EPA
will provide notice of the hearing to the
public and allow public participation at
the hearing. The Regional Administrator
will issue a final order after the hearing
stating whether or not compliance with
Part 262. Subpart A. C, D. and E is
required. The order becomes effective 30
days after service of notice of the
decision unless a later date is specified
or unless review the Administrator is
requested. The order may be appealed
to the Administrator by any person who
participated in the public hearing. The
Administrator may then choose to grant
or deny the appeal Final Agency action
occurs when a final order is issued and
Agency review procedures are
exhausted. (Cf. j 124.19 when
analogous procedures are used for
appeals bom RCRA permits.) Judicial
review, in our view, should be In ¦ Court
of Appeals since the Agency's decision
and implementing procedures are
analogous to those used in Issuing a
permit (See RCRA Section 7006(b).
indicating that review of RCRA permit
issuance decisions an in a Court of
Appeals.)
If the person is storing the material for
longer than 90 days, storing in a pile or
impoundment or storing off-site, the
notice will require him to apply for a
storage permit within 60 days to six
months of being notified, the precise
date for applying to be specified by the
Region or authorised state.4* Permit
applicants normally have six months to
submit a Part B permit application. (See
40 CFR 270.10(e)(4).) We an providing
the authority to request a shorter time
period because facilities subject to this
provision ordinarily will be causing
actual harm or have the potential to
cause Immediate harm. The person can
challenge the determination that ha is
storing a hazardous waste through die
permitting process, either in the public
hearing, or in comments Sled on the
draft permit, or oa the notice of latent to
deny the permit Ths fact sheet
accompanying the permit would specify
tha reasons for tha Agency's
dstermination. (As noted in tha
proposal, these procedures an identical
to those in 40 CFR 124^2 (case-by-case
permitting of facilities otherwise subject
*EPA imnunii that pbwm tabwtt pwiaM
appiicattaea within •> day* of Mae notiJRad. W*
amghrtns Bigtnn cr«ttt» >h»gpa«i af
apacifytas to abi oka tin ta Rbott ipvtintai
Wflui maw fa lawartuwHaadMlHy.
to general permit standards under the
Clean Water Act).)
Several commenters urged that a
separate hearing be afforded before
requiring the facility to submit a storage
permit application. We thinlc the
procedures we have chosen strike a
proper balance between public and
private interests. The Agency's interest
in having a single proceeding is strong.
EPA will invoke this provision when a
facility is storing wastes in a manner
thafis insufficient to protect human
health and the environment There may
be actual (and certainly threatened)
release of hazardous wastes. It will be
important in such situations, that the
facility manage the wastes in
compliance with Part 264 standards as
soon as possible. Substantial delay
could result In increased harm or
increased risk of harm. A separate
initial proceeding (potentially followed
by Judicial review) to determine whether
tin facility should be required to obtain
a permit could well result in lengthy
delay, substantially prejudicing the
public interest.
Furthermore, the facility will be
engaging in conduct—storage of
hazardous waite—that by statute
normally requires a permit They
probably will be engaging in conduct
which Is an abuse of the regulatory
exemption lor precious metal-conlaining
wastes. The government's interest again
is strong that the abuse cease, and that
the normally-man da ted statutory
acheme—Issuance of a permit—be
implemented without delay.
Finally, the government has an
administrative interest in avoiding
successive proceedings. As we noted in
adopting 1124.32. "(tfo allow (a
separate hearing before requiring a
permit application) would produce long
delays and a potential for two
consecutive hearings on closely related
issues." 48 FR 32879 (June 7,1979).
A facility's interest in having a
separata hearing is its ability to
/•ti«n«ig» ths determination that a
storage permit Is required before being
required to submit a permit application.
We think the facility's Interest in
avoiding this cost*is outweighed by the
public interests outlined shove.
Moreover. EPA would allow the
applicant to comment oo tha
determination throughout the permitting
process. We note also that EPA's
procedures allow die facility to remain
•Ths MtsMd east of confuting • tank tad
paran appUcatae t* appiwtaatair
StftSDSIttSBStiaf 78 Ant capacity or UOO (allots
easadtyV PspeJtaid AmMsm tat. (fait Coat
AmiijmtoeftoilJBtaBdtertt Ttaftoorf
Cum* limn Staiqprj(ad>ai» (April 1N9V
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654
Federal Register / Vol. 50. No. 3 / Friday, January 4. 1985 / Rules and Regulations
operating while it applies for a permit If
the procedure in the rule were
unavailable, the Agency might seek
more draconian relief against a facility
under Section 7003 of RCRA. which
could entail cessation of facility waste
handling operations.
2. Variances from Classification of a
Solid Waste. EPA did not propose any
variance provisions, but did solicit
comments as to whether general or
specific types of variances were
justified. See 48 FR14499-500. Industry
commenters generally supported the
idea of variances, but were not specific
about substantive standards for granting
or denying them.
EPA continues to think that variances
for broad classes of recycled wastes are
unwarranted, because the variances
would too easily become sunogate
permits. Thus, we reject the notion of
granting variances because recycled
wastes are being stored safely.
We do believe, however, that certain
discrete variances are warranted, and
we are adopting these in the rules
promulgated today. There are three such
provisions covering situations where
there can be a question of whether the
material is a waste. A variance, if
granted, would state that the material is
not a waste. We describe below what
these activities are. and the substantive
and procedural standards for granting or
denying a variance.
a. Materials Accumulated Without
Sufficient Amounts of Materials Being
Recycled. As explained earlier (see
Section HF.3I of Part 0 of the
preamble), this provision was proposed
on April 4. although it was not formally
called a Variance'. It states that persona
who fail to turn over 75 percent of their
accumulated wastes in a year can
petition the Regional Administrator (or
the state In an authorized state) to
declare that the material is not a waste,
in spite of the failure to recycle 78
percent The provision now appears In
I 260J0 (instead of 12BL2 aa proposed.
Standards for granting a variance are
contained in 128031. They ara virtually
the same as those we proposed, except
that variances could continue to be
granted beyond a two-year
accumulation period, and dure are no
conditions precedent on the amount to
be recycled before applying for a
variance.
Procedures for granting or denying
this variance are contained In 1280J3.
These procedures (identical to those for
the other variances) an discussed in
Section 3 below.
b. Materials That An Reclaimed And
Then Reused Within The Original
Primary Process in Which They Wen
Generated. EPA proposed that materials
that are reclaimed and then reused
within the original production process in
which they were generated are not solid
wastes. As explained in Section ILK2.
of Part 0 of the preamble, we have
decided that the proposal was too broad
and we have narrowed the provision to
apply only to materials returned to the
original primary production process
without first being reclaimed.
We nevertheless believe that there
may be some situations where a
material can be reclaimd before being
reused within the original primary
production process and not be a solid
waste. Although the principle is not
invariably true, there can be occasions
when this type of recycling is an adjunct
to the original primary process,
constituting a closed loop. See 48 FR
14488. We thus are allowing for these
situations by means of a variance.
The standards for granting a variance
are contained in f 260.31(b). The
Regional Administrator (or authorized
state) is to decide whether the
reclamation operation is an essential
part of the primary production process.
The following criteria bear on that
decision:
• How economically viable the
production process would be if it wen
to use virgin materials alone. The more
significant the cost saving, the more the
situation is like one single production
process. For example, the Kraft paper
process cannot be operated
economically without some recovery
and recycling of black liquor. (See
section L in Part 2 above.)
• The prevalence of the recycling
practice on an industry-wide basis. The
more wide-spread the practice, the more
Ukely it is to be a production process.
• The extent to which handling of the
material before it is reclaimed is
designed to minimise loss of material
Materials utilized in production
processes should be stored la a way that
minimizes loss."Thus, the more
precautions that are taken to store a
material before reclaiming it the more
the situation is like a production
process. Situations whan materials are
stored before reclamation in open
nnlined piles. hwpmnMinwBh! jy
ami drama, consequently
ara less likely to be granted this
variance.
• The time periods between
generation of the material and its
reclamation, and between reclamation
"Sm^ tor Muapla. Ike May eomanls Id tts
«g»a ft— tnduMj i iwwmim la the iwri to
ttomtonhlm SwolooiiMiHwiiofconortow
laJiuuy ocoaatntw MpporUag ih A|Bicy'i n|».
bond to | «mpl * mbiatit
Iomm of I JSt» coaoMfdal chmfeab to proem
win—if boa dM mixta* iula pwinwpHww
and reuse in the original process. The
longer the elapsed time between each of
these steps, the less likely the operation
is to be viewed as a single process.
(Operations that are cyclical, or require
long etccumulation time to be viable,
could still be eligible, however.)
• The location of the reclamation
operation in relation to the production
process. We are expanding this criterion
beyond the proposal, where we limited
the provision to reclamation operations
conducted at the same plant site. We
are not including this as a condition
precedent to granting of this variance, in
response to comments that closed-loop
recycling situations can extend beyond
a plant boundary. However, the more
physically close the reclamation
operation is to the production process,
the more likely the situation is to be
viewed as closed-loop recycling.
• Whether the reclaimed material is
used for its original purpose when it is
returned to the original primary
production process, and whether it is
ntumed in substantially its original
form. Operations are most like .a closed-
loop operation when the reclaimed
material is returned to the original
production process in substantially its
original form for its original purpose.
• Other factors, as relevant.
The Regional Administrator can rely
on any or all of these criteria, and can
weigh them as he deems appropriate.
We also note that there are a number of
conditions an applicant must meet
before he is eligible for this variance.
First the material must be returned as
feedstock to the "original primary
production process". "Original primary
production process" has the same
meaning as in 128L2(e)(iii). and is
discussed in Section QJL2. of Part 0 of
the preamble. (In response to comment
we note that if a plant were to generate
the same secondary material from
different processes, commingle the
secondary material and reclaim it and
return the reclaimed materials for reuse
in the original processes, the operation
could bo eligible for this variance even
though the reclaimed materials have
become commingled. The commingling
does not so altar the nature of the
transaction aa to vitiate the underlying
policy of this closed-loop variance.) The
material that is returned also must be
"reused" whan returned to the original
process. We mean by this that the
material oust contribute directly to the
production process as an ingredient
reactont or an alternative feedstock.
Secondary materials returned to a
smelting furnace are an example.
Solvents reclaimed and utilized for
degreasing are not because the '
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Federal Register S Vol- 50. No. 3 ( Friday. January 4, 1985 } Rules and Regulations
655
reclaimed solvents are not contributing
to (he production process."Finally, the
reclamation and reuse must both be
conducted by the same "person",
although not necessarily at a single
plant site. ("Person" is defined in
S 260.10 and in RCRA as including
among others, single corporations and
other legal entities.)
c. Materials That Have Been
Reclaimed But Must Be Reclaimed
Further Before Recovery fs Completed
The final variance from being a solid
waste is far materials that have been
reclaimed but oust be reclaimed further
before recovery is completed. We
indicated In the proposal that
reclamation processes are not
completed until the end-product of the
process is recovered, giving as an
example, recovery of lead from spent
batteries, which can require two
operations—cracking and smelting—to
be complete. 48 FR14499 nJS7. The
material being reclaimed thus remains a
waste until reclamation is finished.
We think this principle is generally
sound, but that there may be some
exceptions where the Initial reclamation
step is so substantial that the resulting
material is more commodity-like than
waste-like even though no end-product
has been recovered. Possible examples
an processes producing fluxes similar in
composition to virgin ore concentrates.
We consequently are allowing the
Regional Administrate; to grant a
variance for materials that have been
reclaimed. not completely recovered, but
after initial reclamation are commodity-
like in spite of having to be reclaimed
further.
The criteria for making this decision
are:
• The degree of processing that the
materia] has undergone and the degree
of further processing required The meat
substantial the Initial processing, the
more likely the resulting material is to
be commodity-like. Conversely, the
mors substantial the processing that is
yet to occur, the less Ukely the initially-
reclaimed material is to be commodity-
like. For example, a spent solvent sent
to an initial reclaimer who settles oat
debris and then sends the solvent to be
dittilled would not be eligible for this
variance.
• The value of the material after it
has been reclaimed. Obviously, the
more valuable a material is after initial
processing, the more likely it Is to be
commodity-like.
• The degree to which the initially-
reclaimed material is like on analogous
"Ths ncoad exaopto ea p. lttasft et tte
pfopo»«l onrmmd »n utomoiu InpUatton la ito
nssf&
row .motoric/. If the initially-reclaimed
material can substitute for a virgin
material for tastanca as feedstock to a
primary process. It Is more likely to be
commodity-like.
» The extent to which an end market
for the reclaimed material is
guaranteed- If the applicant can show
that there is an existing and guaranteed
end market far the initially-reclaimed
material (for instance, value, traditional
usage or contractual arrangements), the
material is more likely to be commodity*
like.
• The extent to which the reclaimed
material is handled to minimize loss.
The more carefully a material Is
handled the more if Is commodity-like
• Other relevant factors.
The Regional Administrator (or an
authorized state) may weigh these
factors as she sees fit and may rely on
any or all of them to reach a decision. In
addition, the variance applies only to
wastes after they have been initially
reclaimed. Applicable regulatory
requirements for the waate before initial
reclamation are unaffected. The initial
reclaimer will thus be a RCRA storage
facility, and have to obtain a permit to
store the wastes before reclaiming them.
If a variance should be granted,
however, the recovered material is not a
waste and the subsequent reclaimer te
not a RCRA facility.
3. Variance to be Classified as a
Boiler. Aa discussed in LB. of Part 2 of
the preamble above, EPA also it
adopting a variance provision to allow
the Regional Administrator to classify
certain enclosed Haute combustion,
devices aa boilers even though they do
not otherwise meet the definition of
boiler contained in 1280.10. Sea
12MB 32. The Regional Administrator is
to consider how nearly the unit meets
the definition of boiler, considering
• The extent to which the unit has
provisions for recovering and exporting
energy in the form of steam, heated
Quids, or heated gases:
• The extent to which the combustion
chamber and energy recovery equipment
are of integral design:
• The efficiency of energy recovery,
calculated in terms of the recovered
energy compared with the thermal value
of the bub
• The extent to which exported
energy is utilized:
• The extent to which the device is in
common and customary use as a
"boiler" functioning primarily to
produce steam, heated Quids, or heated
gasecand
• Other lectors, as appropriate.
4. Procedure* for Variances. We are
promulgating a new 128033 which
contains procedures for granting or
denying the Tour types of variances just
described. In essence, an applicant must
submit a written application to the
appropriate EPA Regional Office (or
authorized state). If a recycling
transaction is conducted in more than
one Region or state (ie. the generator is
in one region and the recyder is in
another), the application should be
submitted to the region or state in which
the recycling activity occurs. The
application should address the standard
and criteria applicable to the particular
variance, and slate generally why grant
of a variance is justified. The Regional
Administrator will consider the
application and will issue a written draft
notice tentatively granting or denying
the variance, and giving reasons for this
action. (In many cases, an inspection
probebly is necessary to rule on an
application.} Notification of this
tentative decision will be provided by
newspaper advertisement and radio
broadcast in the area where the
recycling facility is located. The
Regional Administrator will accept
comment on the tentative decision for 30
days. and may also hold a public
hearing upon request or at his
discretion. Any hearings will be
nonadiudicatory. The Regional
Administrator will issue a final decision
after receipt of comments and after the
hearing (if any), and this decision may
not be appealed to the Administrator.
1 Should EPA Adopt a Variance for
Batch Tolling Agreements. EPA
proposed that hazardous wastes
reclaimed pursuant to batch tolling
agreements would be conditionally
exempt from regulation. A batch tolling
agreement is a contract between
generator and reclaimer whereby a
generator retains ownership ol the
waste, sands the waate to a reclaimer,
and receives back the reclaimed portion.
The proposal further specified that (t I
The generator had lo send the wastes to
a reclaimer within ISO-days of
generation. (2) the wastes had to be
reclaimed and returned within 90 days
of receipt by the reclaimer, and (3) the
reclaimer could not commingle wastes
being reclaimed under a batch tolling
agreement with wastes of another
generator. la addition, the reclaimer had
to be paid according to the amount of
reclaimed material returned to the -
generator, and paid mora as the amount
of material returned increased (i e. the
reclaimer would not be paid a flat fee
regardless of the amount of reclaimed
material returned).
As discussed above. EPA is not
finalizing most of ths proposed
' conditional exemptions because the ris
of damage from spills and leaks
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656
Federal Register / Vol. 50. No. 3 / Friday, January 4. 1985 / Rules and Regulations
indicates that regulation is necessary to
protect human health and the
environment We are soliciting further
comment however, as to whether
reclaimers who reclaim pursuant to
batch tolling agreements should be
eligible for a conditional variance. (The
conditions would be thatTecords be
kept to document existence of the type
of batch tolling contracts described
above.)
The aspect of the batch tolling
contract that might create sufficient
incentive to avoid loss is that the
reclaimer be paid more as the amount of
material returned to the generator
increases. EPA can see that under
certain circumstances a reclaimer would
no longer be able to make a profit (or
even recover fully allocated costs) if too
much waste is lost before reclamation.
However, the point at which this occurs
will vary for each reclaimer, and
potentially for each transaction. EPA is
seeking comment as to the type of
showing necessary to demonstrate that
the batch tolling contract would become
unprofitable'unless spills and leaks are
avoided. Commenters should address
the type of economic data that would be
presented, and also should address how
this information could be presented in a
form amenable to administrative .
resolution. The administrative
proceeding the Agency has in mind is an
individual variance proceeding where
the reclaimer has the burden of showing
that the contract creates sufficient
incentives against loss to obviate the
need for a storage permit
The Agency also would like
commenters to address whether any
reclaimers would apply for this type of
variance. Hie Agency's information is
that few reclaimers operate exclusively
in the batch tolling mode (see 4$ FR
14^93. and a47). so these reclaimers are
likely to require a permit in any event It
is not worth the resource! to create an
elaborate administrative mechanism if it
lacks practical significance.
We note finally that any variance for
batch tolling would apply only to die
reclaimer, not to the waste generator.
The toiling contract's provision that
payment increase as the amount of
material returned increases does not
create any additional incentives against
loss for the generator. Commenters
therefore should also address whether a
variance mechanism applying oily to
reclaimers would have practical
significance.
Part IV: Economic. Environmental, and
Regulatory Impacts
I. State Authority
A. Applicability in Authorized States
Under Section 3006 of RCRA. EPA
may authorize qualified States to
administer and enforce their State
hazardous waste management programs
in lieu of EPA operating the Federal
program in those States. (See 40 CFR
Part 271 for the standards and
requirements for authorization.)
Authorization, either interim or final
may be granted to State programs that
regulate the identification, generation,
and transportation of hazardous wastes
and the operation of facilities that
manage hazardous waste.
Today's announcement promulgates
standards for certain hazardous wastes
under the Federal hazardous waste
management program. With some
exceptions not relevant here, upon
authorization of the State program. EPA
suspends operation within the State of
those parts of the Federal program for
which the State is authorized. Therefore,
today's promulgation would be
applicable only in those States which
have not been granted authorization.
It should be noted that 40 CFR 271.9
requires States to controlaQhazardous
wastes controlled under 40 CFR Part 281
in order for their program to be
considered equivalent to the Federal
program for purposes of Section 300B.
EPA is indicating in this regulation that
certain types of recycled hazardoua
secondary materials are not RCRA solid
or hazardous wastes (or, hi the ease of
materials subject to variance provisions,
need not be wastes). States may choose
to regulate these matetiala aa wastes
pursuant to State law. Section 3009 of
RCRA allows states to impoea stricter
requirements than those in the Federal
program. Such states are considered
equivalent for purposes of State
authorisation. See i 2714(1).
& Effect on State Authorization
The rales promulgated under this
rulemaking will not apply in authorized
states until the state either (1) receives
final authorization on the bads of
providing controla for hazardous was tea
that are equivalent to or more stringent
than EPA's or (2) after final
authorisation, revises its program to
include controls for hazanious wastes
that are equivalent to. or more stringent
than EPA's. The procedures and
schedule for state adoption of these
regulations is described in 40 CFR
27121. See 49 FR 21678 (May 22.1984).
Applying 1271.21(e)(2). states that
have final authorisation must revise
their programs within a year of
promulgation of EPA's regulations if
only regulatory changes are necessary,
and within two years of promulgation if
statutory changes are necessary. These
deadlines can be extended in
exceptional cases. See 40 CFR
271.21(e)(3).
States that submit official applications
for final authorization less than 12
months after promulgation of these
regulations may be approved without
including standards equivalent to those
promulgated. However, once authorized,
a state must revise its program to
include standards equivalent to or more
stringent than EPA's within the time
period discussed above.
Interim authorization for these
requirements under the Hazardous and
Solid Waste amendments of 1984 is not
allowed. Today's rule is not a
requirement deriving from the 1984
amendments: thus, under section
3008(g), interim authorization is not
available ea a substitute for adopting
equivalent regulations.
n. Regulatory Impact
Under Executive Order 12291. EPA
must fudge whether a regulation is
"major" and thus requires a Regulatory
Impact Analysis. Based on our analysis,
we have determined that this rule is not
e major rule bees use it will not (l) Have
an affect on the economy of Si00 million
or more. (2) significantly increase costs
or prices to industry, or (3) the
ability of UA-based enterprises to
compete fat domestic or export markets.
This assessment la based on a study
prepared for EPA which evaluated the
cost impact on the regulated community
for the to the definition of solid
waste and accompanying management
standards. This study ** ds scribes the
changes in regulatory requirements, the
populations affected by lbs change, and
then summarises the resulting changes
in costs.
The report first identifies those
secondary materials and recycling
sctivities which would be nbtect to
different regulatory requirements.
paring the existing regulations with
those promulgated today. This analysis
indicated the faflowiny
productrtrould be subtest to inoeaaed
requirements for paenM
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Federal Register / VoL 50, No. 3 / Friday. January 4. 1965 ! Rules and Regulations
657
materials (including § 261.33 commercial
chemical products) would also be
subject to increased requirements for
the actual recycling activity."
• Uae/nuae —All listed wastes and
non-listed sludges would be subject to
decreased requirements for generators,
transporters, and storers.
• Reclamation.—Non-listed spent
materials would be subject to increased
requirements for generators,
transporters, and storers: non-listed
sludges would be subject to decreased
requirements for generators,
transporters, and storers; all listed
wastes and non-listed sludges that are
sent for precious metal reclamation
would also be subject to decreased
requirements for generators,
transporters, and storers.
The report then identified those
industrial categories which are involved
in recycling that will be affected by this
rulemaking. The primary source for this
information was the National Survey of
Hazardous Waste Generators and
Treatment Storage, and Disposal
' Facilities. This survey included
questions on the various recycling
activities. Results were reviewed to
determine where affected activities
ware occuring. In some cases, the actual
survey responses were reviewed to
determine the accuracy of these reaults.
Two other sources were also used to
collect this information. One was the
JRB report on affected populations that
accompanied the proposal to the
definition of solid waste "while the
other source was provided by an
industry trade group who reported on
the recycling activities of their members.
Based on this Information, we
determined that
• Approximately 128 establishments
would have their requirements under the
hazardous waste management
regulations reduced:
• Approximately 87 establishments
that use or reuse secondary materials or
reclaim certain secondary materials
otherwise considered hazardous wattes
would be completely excluded from
regulation:
"Tha A«
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658
Federal Register / Vol. 50. No. 3 / Friday. January 4. 1985 / Rules and Regulations
requirements are now being submitted
to OMB for approval.
t
Lists of Subjects
40 CFR Part 260
Administrative practice and
procedure. Hazardous materials. Waste
treatment and disposal.
40 CFR Part 281 .
Hazardous materials. Waste
treatment and disposal Recycling.
40 CFR Part 264
Hazardous materials. Packaging and
containers. Reporting requirements.
Security measures. Surety bonds. Waste
treatment and disposal.
40 CFR Part 265
Hazardous materials. Packaging and
containers. Reporting requirements.
Security measures. Surety bonds. Waste
treatment and disposal Water supply.
40 CFR Part 266
Hazardous materials.
Dated: December 20.1984.
Alvin L. Aim.
Acting Administrator.
Appcnoix A.—Summary of Damage Incidents Resulting From Recycung of Hazardous Wastes
Tyon st racyctng utmillon. mataa praiam damagaa
SO— St < aqutar haa »aa«tad
X Sapp Banry saMga (m Jacman CauNy. Fandai latmniad aad tm> warn fiartaa. Banana »
cauaad by apdaga st aad (rem ma apart paoaca* laaotng kern i*«arad binary caaaiga. and (IP a laaaar dagtaat (ran watt tarn
battanaa ttprad pnpr tp banQ rasMnd
« Stiimt Raeyang Corp. Oucalad ti Hdanal a an naem aaats "aeytfng and tapMy «NgH mi—rmairtlM *wauay
and ¦ iwnaii eaaaad ccauw. taaong go to sat druma st at»natf iMlpn ganana ot k* aa** Wasaa an
Daieana. Gn»K and itaea waar cwuamnaaen aaaaa and oar* Ms a avgar st tm v aalsam.
S. A wtm pmuaiagi mmaiiy neatad m Na» janay) opataiad an a* iptyiaiy plait am panaad aaaa o* •»
waaM si aana at a PCI eanamM an and *» onftad aaafcig tagapna. wmm day Mm M
is Md a read a aw Ma. T)a aa aaa abatovad, aa«ng m aaaa naana in ptpoa a fa ia*nad agosn*. Conamnaaan at an
i aa a pitts «atar wppty
-------
Federal Register / VaL 50. No. 3 I Friday, [anuary 4, 1985 / Hides and Regulations
awcmm a.—Summary op Damage Incidents Resultmo From Recycunq o* hazaboous Wastes—Continued
TjpaaCaeycdnt
ift TH» *cra» mh i
nag MOMmfan n Mag dwna. Sana
I 6Mf moaral* mm$ hand, uikuuiu iimg wad and nwidMy flnund and
gouua at atonwaaon
U5 K alow Oi(| 7B03 adtoU
to. Thm mt fleam* m T<
> j» —a» Mfcf «nd _____
>i- Th. r>iiai laxia. MM (HLftn in Naana Cowty; Na» Y«u wuaHiivC Mmw and Mongt eeareen. «C8
eamaameiad a* «a» aand una Mb Omm WmwwrmN rtondi nan bean taad la ba eonianaiaaad wsi PCS.
22. (*'*)¦ a atM and aaan acmai and ¦motto raeictng coarekan N Ma aaciiiiaa cut ard mil M ewri and
peaana Sana «v«ang daogaaI xcui at ML Oiameata *f»ati «a«a Man piaaam at tta Ma neM* acMona. a*«. oaroana,
nana auwanm. e,anaaa. ho. KSO, «mc aM *CBa. bayaka*. pa««u«w>
Tta eoMnvaanra namana Mip rat aanapea and naxana aa« »™nruuM> "^alga ita'pdiadpama ct ta tagMKi
a
tt orjarto acnanta at a
*. The Oaanaa Mawe Caneany fleeaaa a Tama)» a aaeandaiv aad
1 In pcndacMrar
US r.
itmt
mat* onona* too S#np Co.
Urn*.
p. ttH
i/i r waar a na> acaon).
US * Oamea Macaw? T|II»"I It acaen).
US ¦ «C«n HdtMtn— (f 7001 toon)
US k /Wa>f«>) CTawraa anrf 5oMnr On.
970031
m
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Mac
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an
USmJ
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HA Map M.I4M. p. «
-------
660
Federal Register / VoL 50. No. 3 / Friday, January 4. 1985 / Rules and Regulations
Appcnou k—Summary or Damaoe Inoocnts Resulting From Recyojnq or Hazardous Wastes—Continued
Typw el i«e»dkig operated a«ae pneanl
Setiee al reomeaon
17. OmnUL mc. (tooeied «
lo miiiim KiMni lor bmng. PC8a,
MIIMMIlHlMMl
U. Tha togueen Ma (located In »oe* ML Saudi Cnlnl naiad want
ItNrMWWiThiWmBH
pnor «
The
KM. Toae llww m «t M
and uniMng aori Mudrg Mum. bX2-ediy»«qfO PMmmw. «yWn». ad* cNonde, WW oaitoiwaiof» gmcMM.
IWOL and tone waina Tha Ma ananbaey Ma narWai laewng apart tHHOOO ttim. 11*1000 vw (pant m tar tor Ma
EM. Havana
CPA Raglan ¦
CPA,fte0anl
CPA. Raglan a aMdato. (TNa i
of A8Ci TUXT tnadeaa
US. CPA. er> oparnana oanducted br Mntra
Pnamnr.a Caa«y. 1
6*. The OH mgar 01 Reftnenr Paneled «i Oarav. La) wanted an al
Tonecnpt d im enioicenseM pnceiOAQi
SupeAM Hake Monty Sto.
as. Yonoaca
. The
la HkM te I
ft Meka. Neat Yonq * an
Ida. The legem and
¦le lecycang teeaay ai Men* Me maeagatad ay Stale cMeMta altar an
fciwd M.OOO Barla al h—aaue Mete al die Me. The taad» fa fan
an ne grand at ne ate. and mm ¦ mm weranw mm in
laeWyOaoam le die^
fled m a
MOBM
lor tajoo
OA.
CPA. Raven ¦
at | TWO acaona are
> Magaaone n tie Oonananenra
¦eare net aaakng a erapMee die owoem at
1 id be anme. in many (Mt «e an
. ai tie i
The com neenng i
l M imxh al tie Oonemmewt
i M awe • a need tor
by r * *) at «e awn—r
The Agency* taM Mrae a
i »e aubfrct al ung^m ai*a cement
Appknoix B.—Oepmtion or a Souo WAsrt Oamaqs iNcmNTS—AoomoNS bar
l |X07
-------
Federal Register / Vol. 50, No. 3 / Friday, lanuary 4. 1985 / Rules and Regulations
661
Amma a—OEmmoM of a Souo Waste Oauaoc Incuekts—AoomoNS Usr-Conttnuad
1I1MNL
at
I W QUI M «
IS. In IK). M
. « Ml
In
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at mail mat«
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i Ma. Mtwa eawa one a* grand
IM*II MM
at tamo* eaipand
MK WtMBMf. N>«iiwWBWi»rin"
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* MM U I
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mUvmlMon * i-tcn Mad
MMtMM
mMaieu na
For the reasons set out In (he
preamble. Tide 40 of the Code of Federal
Regulations is amended as follows:
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The authority citation for Part 260
reads as follows:
Authority: Sacs. 1006,200^*), J001 through
soar, tod 3010 of the Solid Wuic Disposal
Act. amended by the Resource
Conservation and Recovery Act of 1B78, ••
aueadtd (42 (JSC m 4812(e). 6021
through 6827. tad 0830).
2. Section 281.10 ia amended by
adding naw definitions for "BciJer" and
"Industrial Furnace" to appear
alphabetically and by revising the
definitions of "Designated facility" and
"Incinerator."
JMatO Dafleittons
"Boiler" means an enclosed device
using controlled flame combustion and
having the following characteristics:
(1| P) The unit must hive physical
provisions for recovering and exporting
thermal energy in the form of steam,
heated fluids, or heated gases; and
(li) The unit's combustion chamber
and primary energy recovery sectioned)
must be of integral design. To be of
integral design, the combustion chamber
and the primary energy recovery
section(s) (such as wetarwaDs and
superheaters) must be physicallyformed
into one manufactured or assembled
unit A unit in which the combustion
chamber and the primary energy
recovery sectionfs) are |oiaed only by
ducts or connections carrying Que gas is
not integrally designed; however.
I such aa economizers or airpzehestexs)
need not be physically formed Into the
same unit es the combustion chamber
and the primary energy recovery
section. The fallowing units are not
precluded from being bollera solely
because they are not of integral design:
process heaters (units that tranafer
energy directly to a process stream], and
fluidlzed bed combustion units; and
(iii) While in operation, the unit must
maintain a thermal energy recovery
efficiency of at least 60 percent
calculated in terms of the recovered
energy compared with the thermal value
of the fuck and
(iv) The unit must export and utilize at
(east 75 percent of die recovered energy;
calculated on an annual basis. In this
calculation, no credit shall be given for
recovered heat used internally in the
same unit (Examples of internal use are
the preheating of fuel or combustion air.
and the driving of induced or forced
draft fans or feedwater pumps); or
(?) The unit ia one which the Regional
Administrator has determined, aas
case-by
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662
Federal Register / Vol. 50. No, 3 / Friday. January 4. 1985 / Rule* and Regulations
(c) Material* that have been reclaimed
but Boat be reclaimed farther before the
material* are completely recovered.
4. Ia Subpart C of Part 200, add the
following ] 261X31:
|»Ut Standards and criteria far
variances from daaaWcation as a soBd
(a) The Regional Administrator may
grant requests for a variance from
classifying as a solid waste those
materials that are accumulated
speculatively without sufficient amounts
being recycled if the applicant
demonstrates that sufficient amount* of
the material will be recycled or
transferred for recycling in the following
year. If a variance is granted, it is valid
only for the following year, but can be
renewed, on an annual basis, by filing a
new application. The Regional
Administrator's decision will be based
on the fallowing standards and criteria:
(1) The manner in which the material
Is expected to be recycled, when the
material is expected to be recycled, and
whether this expected disposition ia
likely to occur (for example, because of
past practice, market factors, the nature
of the material or contractual
arrangements for recycling};.
(2) The reason that the applicant has
accumulated the material for one or
more years without recycling 75 percent
of the volume accumulated at the
beginning of the year;
(3) The quantity of material already
accumulated and the quantity expected
to be generated and accumulated before
the material is recycled^
(4) The extent to which the material is
handled to minimize lose
(9} Other relevant (acton.
(b) The Regional Administrator may
grant requests for e variance from
classifying as a solid waste those
materials that are reclaimed and then
reused a* feedstock within the original
primary production process in which the
materials were generated If the
reclamation operation is an essential
part of the production process. Tills
determination will be baaed an the
following criteria:
(1) How economically viable the
production process would be if it were
to use virgin materials, rather than
reclaimed materials;
(2) The prevalence of the practice on
an industry-wide basis;
(3) The extent to which the material is
handled btfrit reclamation to minimize
loss;
(4) Hie time periods between
generating the material and its
reclamation, and between reclamation
and return to the original primary
production process;
(5] The location of the reclamation
operation in relation to the production
process;
(0) Whether the reclaimed material ia
used for the purpose for which it was
originally produced when it is returned
to the original process, and whether it la
returned to the process in substantially
its original form;
(7) Whether the person who generates
the material also reclaims it
(8) Other relevant factors. .
(c) The Regional Administrator may
grant requests for a variance from
classifying as a solid waste those
materials that have been reclaimed but
must be reclaimed further before
recovery is completed it after initial
reclamation, the resulting material ia
commodity-like (even though it is not
yet a commercial product and has to be
reclaimed further). This determination
will be based on the following factors;
(1) The degree of processing the
material has undergone and the degree
of further processing that is required;
(2) The value of the material after it
has been reclaimed;
(3) The degree to which the reclaimed
material (alike an analogous raw
material;
(4) The extent to which an aid market
for the reclaimed material ia guaranteed;
(5) The extent to which the reclaimed
material is bandied to loss;
(6) Other relevant factors.
5. In Subpart C of Part 260, add the
following 1280.32:
layja variance to be classified as a
boltf*
In accordance with the standarda and
criteria in f 200.10 (definition of
"boiler"), and the procedures in 1280.33,
the Regional Administrator may
determine a a case-by-case basis that
certain endoeed devices using
controlled flame combustion are boilers,
even though they do not otherwiae meet
the definition of boiler contained In
1200.10. after considering the following
criteria:
(a) The extent to which the unit has
provisions for recovering and exporting
thermal energy In die form of steam,
heated fluids, or heated asses: and
(b) The extent to whlcn the
combustion chamber end energy
recovery equipment are of integral
design; snd
(c) The efficiency of energy recovery,
calculated In terms of the recovered
energy compared with the thermal value
of the fuel; and
(d) The extent to which exported
energy is utilised; and
(e) The extent to which the device to
in common and customary uae aa a
"boiler" functioning primarily to
produce steam, heated fluids, or heated
gases; and
(f) Other factors, as appropriate.
6. In Subpart C of Part 280L add the
following I 280.33;
JMUl Procedures tor variances from
daeeffieatlofl as a eofld waste or to toe
classified as a boiler.
The Regional Administrator will use
the following procedures in evaluating
applications for variances from
classification as a solid waste or
applications to classify particular
enclosed flame combustion devices as
boilers:
(a) The applicant must apply to the
Regional Administrator in the region
where the recycler is located. The
application must address the relevant
criteria contained in 1280.31 or ! 260.32
of this Part
(b) The Regional Administrator will
evaluate the application and issue a
draft notice tentatively granting or
denying the application. Notification of
this tentative decision will be provided
by newspaper advertisement and radio
broadcast in the locality where the
recycler is located The Regional
Administrator will accept comment on
the tentative decision for 30 days, and
may also hold a public hearing upon
request or at his discretion. The
Regional Administrator will issue a final
decision after receipt of comments and
after the hearing (if any), and this
decision may not be appealed to the
Administrator.
7. In Subpart C of Part 260. add the
following 1280.40:
«m«0 AddMonel regulation of certain
rbvooui win recycwiQ ituvuivi on i
(a) The Regional Administrator may
decide on a case-by-case basis that
persona accumulating or storing the
recyclable materials described in
i 281 J(aK2)(iv) of this Chapter should
be regulated under 1281 J) (b) and (c) of
this Chapter. The basis for this decision
Is that the materials are being
accumulated or stored in a manner that
does not protect human health and the
environment because the materiel* or
their toxic constituents have not been
adequately contained, or because the
materials being accumulated or stored
together are incompatible. In making
this decision, the Regional
Administrator will consider the
following factors:
(1) The types of materials
accumulated or stored and the amounts
accumulated or stored;
(2) Hie method of accumulation or
storage:
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Federal Register / Vol 50. No. 3 / Friday. January 4, 1985 / Rules and Regulation*
663
(3) The length of time the materials
have been accumulated or stored before
being reclaimed; -
- (4) Whether any contaminants are
being released into the environment or
are likely to be so released: and
(5) Other relevant factors.
The procedures for this decision are
set forth in {260.41 of this Chapter.
8. In Subpart C of Part 260, add the
following } 260.41:
52*0.41 Procedures tor esse by cite
regulation of hazardous waste recycling
activities.
The Regional Administrator will use
the following procedures when
determining whether to regulate
hazardous waste recycling activities
described in 1281.6(a](2)liv) under the
provisions of 3 281.0 (b) and (cj, rather
than under the provisions of Subpart F
of Part 266 of this Chapter.
(a) If a generator is accumulating the
waste, the Regional Administrator will
issue a notice setting forth the factual
basis for the decision and stating that
the person nuftt comply with the
applicable requirements of Subparts A.
C 0. and E of Part 282 of this Chapter.
The notice will become final within 30
days, unless the person served requests
a public hearing to challenge the
decision. Upon receiving such a request,
the Regional Administrator will hold a
public hearing. The Regional
Administrator will provide notice of the
hearing to the public and allow public
participation at the bearing. The
Regional Administrator will issue a final
order after the hearing stating whether
or not compliance with Part 282 is
required. The order becomes effective 30
days after service of the decision unless
the Regional Administrator specifies a
later date or unless review by the
Administrator is requested. The order
may be appealed to the Administrator
by any person who participated la the
public hearing. The Administrator may
choose to grant or to deny die appeal.
Final Agency action occurs when a final
order is tamed and Agency review
procedures are exhausted.
(b) If the person is accumulating be
recyclable material aa a storage facility,
the notice will state that the person must
obtain a permit in accordance with all
applicable provisions of Parts 270 and
124 of this Chapter. The owner or
operator of the facility must apply for a
permit within no less than 80 days and
no more than six months of notice, as
specified In the notice. If the owner or
operator of the facility wishes to
challenge the Regional Administrator'*
decision, he may do so in his permit
application, in a public hearing held on
the draft permit, or in comments filed on
the draft permit or on the notice of
intent to deny the permit The fact sheet
accompanying the permit will specify
the reasons for the Agency's
determination. The question of whether
the Regional Administrator's decision
was proper will remain open for
consideration during the public
comment period discussed under
S 124.11 of this Chapter and in any
subsequent hearing.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
9. The authority citation for Part 281
reads as follows:
Authority: Sees. 1006.200Z(a]. 3001. and
3002 of the Solid Waste Disposal Act ss
amended by (he Resource Conservation and
Recovery Ad of 197ft ss amended {42 U JLC
6003.4912(a). 0921. and 0922).
10. In 1281.1, paragraph (c) is added
and paragraph (b) is revised to read as
follows:
|28i.i Purpose and scope.
• • • • •
(b)(1) The definition of solid waste
contained in this Fart applies only to
wastes that also are hazardoua for
purposes of the regulations
implementing Subtitle C of RCRA. For
example, it does not apply to materials
(such as non-fiazardoua scrap, paper,
textiles, or rubber) that are not
otherwise hazardous wastes and that
are recycled.
(2) This Part identifies only some of
the materials which are solid wastes
and hazardous wastes under Sections
3007,3013. end 7003 of RCRA. A
material which is not defined aa a solid
waste in this Part or is not a hazardous
waste identified or listed In this Part is
still a solid wasta and a hazardous
waste for purposes of these sections i£
(I) In the case of Sections 3007 and
3013, EPA has reason to believe that the
material may be e solid waste within the
meaning of Section 1004(27) of RCRA
and a hazardous wasta within the
meening of Section 1004(5) of RCRA; or
(U) in ths case of Section 7003, the
statutory elements ate established.
(c) For the purposes of Sections 281*2
and 2814c
(1) A "spent material" is any material
that has been used and aa a result of
contamination can no longer serve the
purpose for which it was produced
without processing;
(2) "Sludge" has the same mesnlng
used In 1260.10 of this Chapter
(3) A "by-product" ia a material that Is
not one of the primary products of a
production process end is not solely or
separately produced by the production
process. Examples are process residues
such as slags or distillation column
bottoms, lie term does not include e co-
product that is produced for the general^
public's use end is ordinarily used in tt^P
form it is produced by the process.
(4) A material is "reclaimed" if it is
processed to recover a usable product,
or if It is regenerated. Examples are
recovery of lead values from spent
batteries and regeneration of spent
solvents.
(5) A material is "used or reused" if it
Is either
(i) Employed as an ingredient
(including use as an intermediate] in an
industrial process to make a product (for
example, distillation bottoms from one
process used as feedstock in another
process). However, a material will not
satisfy this condition if distinct
components of the material are
recovered as separate end products (as
when metals are recovered from metal-
containing secondary materials); or
(ii) Employed in a particular function
or application as an effective substitute
for a commercial product (for example,
spent pickle liquor used aa phosphorous
precipitant and sludge conditioner in
wastewater treatment).
(8) "Scrap metal" is bits and pieces of
metal parts (e^) bars, tunings, rods,
sheets, wire) or metal pieces that may
be combined together with bolts or
soldering («.&. radiators, scrap
automobiles, railroad box cars), whiu
when worn or superfluous can be
recycled.
(7) A material Is "tacyded" if it is
used, reused, or reclaimed.
(8) A material ia "accumulated
speculatively" If it is eccumulated
before being recycled. A material ia not
sccumulated speculatively, however, if
the person accumulating it can show
that the material is potentially
Tecydable and has a feasible means of'
betag recycled: end that—during the
calendar year (commencing on January
1)—the amount of material that is '
recycled, or transferred to s different
site for recycling, equals at least 79
percent by weight or volume of the
amount of that material accumulated at
ths beginning of the period. In
calculating the percentage of turnover,
the 75 percent requirement is to be
applied to each material of the same
type (e#. alags from a single smelting
process) that is recycled in the same
way (lew tram which the seme material
Is recovered or that is used in the same
way). Materials accumulating in units
that would be exempt from regulation
under 12814(c) are not be indudeAjn
making the calculation. (MateriaU^pt
are already defined aa solid wastes alto
an not to be Included in making the
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664
Federal Register / Vol. 50. No. 3 / Friday. January 4. 1985 / Rules and Regulations
calculation.) Materials are no longer in
this category once they are removed
from accumulation for recyclings
however.
11. Section 281.2 is reused to read as
follows:
{361.2 DefMtton of soM waste.
(a)(1) A solid waste is any discarded
material that is not excluded by
{ 261.4(a) or that is not excluded by
variance granted under i§ 26(130 and
280.31.
(2) A discarded material is any
material which is:
(i) Abandoned, as explained in
paragraph (b) of this section; or
(ii) Recycled, as explained in
paragraph (c) of this section: or
(iii) Considered inherently waste-like.
as explained in paragraph (d) of this
section.
(b) Materials are solid waste if they
are abandoned by being:
(1) Disposed of. or
(2) Bunted or incinerated: or
(3) Accumulated, stored, or treated
(but not recycled) before otin lieu of
being abandoned by being disposed of.
burned, or incinerated.
(c) Materials are solid wastes If they
are recycled—or accumulated, stored, or
treated before recycling—as specified in
paragraphs (c)(1) through (c)(4) of this
section.
(1) Used in a manner constituting
disposal, (i) Materials noted with a *****
in Column 1 of Table 1 are solid wastes
when they are:
(A) Applied to or placed on the land
in a manner that constitutes disposal: or
(B)Contained in products that an
applied to the land (in which cast the
product itself remains a solid waste).
(U) However, commercial chemical
products listed in 1281.33 an not solid
wastes if they an applied to the laid
and that is their ordinary of use.
(2) Burning for energy recovery, (i)
Materials noted with a ***** in column 1
of Table l an solid wastes what they
are:
(A) Burned to recover energy:
(B) Used to produce a fueh
(C) Contained in fuels (in which case
the fuel itself remains a solid waste).
(ii) However, commercial chemical
products listed in 1281.33 an not solid
wastes if they an themselves fuels.
(3) Reclaimed. Materials noted with a
in column 3 ol Table 1 an solid
wastes when reclaimed.
(4) Accumulated speculatively.
Materials noted with a ***" in column 4
of Table 1 an solid wastes what
accumulated speculatively.
Table 1
uj
atTaSTm
6ww
fecoKwy'
M
OBIJKN3H
asuwan
0#lScX«)>
(ii
a
a
ccccccc
3333333
o
n
n
CI
Tftwlpl fill! i IT 1 1 TIT' V II TT) ......
o
n
n
o
n
No*—Th» «nm "VM MMir. "akidgn". ty
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Federal Register / VoL 50. No. 3 / Friday. January 4. 1985 / Rules and Regulations
665
I MM Exclusions.
(aj ' * *
• • • • •
(0] Black liquor that ia reclaimed in a
Kraft pulping liquor recovery furnace
and then reused in the Kraft paper
process, unless it is accumulated
speculatively as defined in S 261.1(c) of
this Chapter.
(7) Spent sulfuric add used to produce
virgin sulfuric acid, unless it is
accumulated speculatively as defined in
S 261.1(c) of this Chapter.
14 Section 281.5 is amended by
revising paragraph (c) to read as
follows:
12615 Special requirements tor
haiifdoue waate generated by small
quantity generator*.
(c) Hazardous waste that is recycled
and that is excluded from regulation
under SS 281.8 (a)(2](iii) and (v), (a)(3),
or 288J8 is not included in the quantity
determinations of this section and is not
subject to any requirements of this
section. Hazardous waste that is subject
to the requirements of IS 281.6 (b) and
(c) and Subparts C and D of Part 266 is
included in the quantity determination
of this section and is subject to the
requirements of this section.
< I • « •
13. Section 261.6 ia revised to read aa
follows
|M«| li ¦ ¦¦ iImm !»¦ ». .. lalehle
I Am n^UVWItliilTva TV67CWDM
(a)(1) Hazardous wastes that are
recycled are subject to the requirements
for generators, transporters, and storage
iadlities of paragraphs (b) and (c) of this
•action, except for the materials listed ia
paragraphs (a)(2) and (a)(3) of this
section. Hazardous wastes that are
recycled will be known as "recyclable
materials."
(2) The fallowing recyclable materials
are not subject to the requirements of
this section but are regulated under
Subparts C through C of Part 206 of this
Chapter and all applicable provisions in
Parts 270 and 124 ojF this Chapter:
(i) Recyclable materials used Id e
mamwr constituting disposal (Subpart
Qt
111) Hazardous wastes burned for
energy recovery in boilers end Industrial
furnaces that are not regulated under
Subpart O of Part 2M or 269 of thia
Chapter (Subpart 0);
(Ui) (Reserved for used oflfe
(hr) Recyclable materials from which
precious metals are reclaimed (Subpart
Fk
(v) Spent lead-add batteries that are
being reclaimed (Subpart G).
(3) The following recyclable materials
are not subject to regulation under Parts
262 through 266 or Parts 270 or 124 of
this Chapter, and are not subject to the
notification requirements of Section 3010
of RCRAi
(1) Industrial ethyl alcohol that ia
reclaimed;
(ii) Used batteries (or used battery
cells) returned to a battery manufacturer
for regeneration;
(Ui) Used oil (hat exhibits one or more
of the characteristics of hazardous
waste: or
(iv) Scrap metaL
(b) Generators and transporters of
recyclable materials are subject to the
applicable requirements of Parts 262 and
233 of this Chapter and the notification
requirements under Section 3010 of
RCRA. except as provided in paragraph
(a) of this section.
(c)(1) Owners or operators of facilities
that store recyclable materials are
regulated under all applicable
provisions of Subparts A through L at
Parts 2M and 26$ and Parts 270 and 124
of this Chapter and the notification
requirement under Section 3010 of
RCRA. except as provided tat paragraph
(a) of this section.
(2) Owners or operators of facilities
diet recycle recyclable materials
without storing them before they are
recycled are subject to the following
requirements, except as provided in
paragraph (a) of this section:
(i) Notification requiremanta under
section 3010 of RCRA;
(ii) Sections 28&J1 and 28&7Z (dealing
with the use of the manifest snd
manifest discrepancies) of this Chapter.
16. Section 26U1 is amended by
revising the hazardoua waate listings
FOOT. FOOtt. F008, FRO, F011. and F012 to
read as follows:
IIIU1 Hazardous waste trennon.
jET
W
M MM 4PV*
*1>
totoa 0 pMnj taM Am*
VMM
ipM MM Wrt IMl
Mil
MH tQM MCMpMRI
MlM M
1, 1
MR MMdMi ftVl M
HN felJHI MM MM MM|
(MllMpMi
MuwyaM
tawacM
Mtortf
cod*
Wit
9pm* eyande •
Mai pot om
ji
ill
rat)
WiJ
Qumomg wou
MdQMtanm
iMnMpn
I,
» • 4 • *
17. Section 261.33 is amended by
revising the introductory text to read as
follows:
1261.33 Discarded commercial chemical
produeta, off•epectficatlen spedea,
container residue*, and spin residues
IMfNTi
The following materials or items are
hazardoua wastes when they are
discarded or intended to be discarded
aa described In 1281.2(a)(2)(i), when
they are burned for purposes of energy
recovery in lieu of their original
Intended use. when they are used to
produce fliela in lieu of their original
intended use. when they sre applied 10
the lend in Hsu of their original intended
use. or when they are contained in
products that are applied to the land in
lieu of their original intended use.
» • • • *
PART 294—STANDARDS FOR
OWNERS AND OPERATORS OP
HAZARDOUS WASTE TREATMENT,
STORAOE, AND DISPOSAL
FACtUTIES
1& The authority citation for Part 264
reada as follows:
Authority. Sees. 1006.2002(a), 300*. and
3006 of the Solid Waate Disposal AcL as
—ended by the lasoutce Conxrvation and
Rsuuwij Act of um as amended (42 U.S.C.
0000. QtUta), 8814. and SCJ).
18. In 12SU. paragraph (gK2) is
revised to read as follows:
(264.1 Putpeea, arena, snd appflcattBty.
w* • •
(2) Tba owner or operator of s facility
msnaaina recyclable materials
described in 12814(a) (2) and (3) of this
Chapter (except to the extent that
requirements of this Put are referred to
in Subparts C. D.F. or G of Fsrt 266 of
this Chapter),
20. Section 20040(a) ia revised to
rend as follows:
|MM MiiluatilH.
(a) The regulations in this Subparx
apply to owners or operators o( facilities
that indnerata hazaittoua waate. except
-------
666
Federal Register / VoL 50. No. 3 / Friday. January 4. 1985 / Rules and Regulations
as { 284.1 provides otherwise. The
following tacility owners or operators
are considered to incinerate hazardous
waste:
(1} Owners or operators of hazardous
waste incinerators (as defined in
§ 260.10 of this Chapter): and
(2) Owners or operators who burn
hazardous waste in boilers or in
industrial furnaces in order to destroy
the wastes.
• • • • • •
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE AND
DISPOSAL FACILITIES
21. The authority citation for Part 26S
reads as follows:
Authority: Sect. 1006. 2002(a). 3001 and
3005 cf the Solid Waste Disposal Act as
amended by the Resource Conservation and
Recovery Act of 1978. as amended (43 U.S.C.
8909.6921(a). 8924. and 6925).
22. In 5 26S.1. paragraph (c)(6) is
revised to read as follows:
9 265.1 Purpose. Scope, and AppflcaMty.
• • • • 0
(c) • • *
(6) The owner and operator of a
facility managing recyclable materials
described in § 261.6 (e) (2) and (3) of this
Chapter (except to the extent that
requirements of this Part are referred to
in Subparts C D. F. or C of Part 266 of
this Chapter).
• • • « •
23. Section 261.340(a) is revised to
read as follows:
f 26U40 AppOceMtty.
(a) The regulations in this Subpart
apply to owners or operators of facilities
that incinerate hazardous waste, except
as S 264.1 provides otherwise. The
following facility owners or operator*
are considered to incinerate hazardous
waste:
(1) Owners or operators of hazardous
waste inciperators (aa defined in
S 260.10 of this Chapter): and
(2) Owners or operators who bum
hazardous wastes in boika or in
industrial furnaces in order to destroy
the wastes.
• • • • •
24. Section 26&370 is revised to read
as follows:
I26SJ70 Other therms! treatment
The regulations in this Subpart apply
to owners or operators of facilities that
thermally treat hazardous waste in
devices other than enclosed devices
using controlled flame combustion,
except as 1285.1 provides otherwise.
Thermal treatment in enclosed devices
using controlled flame combustion is
subject to the requirements of Subpart O
if the unit is an incinerator.
25. Part 260 is added to read as
follows:
PART 266—STANDARDS FOR THE
MANAGEMENT OF SPECIFIC
HAZARDOUS WASTES AND SPECIFIC
TYPES OF HAZARDOUS WASTE
MANAGEMENT FACILITIES
Subparts A-B—(Reserved]
Subpart C—Recyclable listeria!* Used In e
Manner Constituting Disposal
Sec.
26820 Applicability.
266.21 Standard* applicable to generators
and transporters of material* used in a
manner that constitute disposal.
76622 Standards applicable to staters of
materials that are to be used in e manner
that constitutes dispossl who are not the
ultimate users.
266.23 Standards applicable to users of
materials that are used in e meaner thet
constitutes disposal
Subpart 0 Hiisrrlous Waste Burned tor
KJMiyy n9COV9ry
28&30 Applicability.
286J1 Prohibitions. (Ressrvsd)
266.32 Standards applicable to generators of'
hazardous waste fueL
266J3 Standards applicable to transporters
of hazardous waste fusL
286J4 Standards applicable to marketers of
hssardous waste fueL
266.38 Standards applicable to burners of
hazardous waste fueL
286J6 Conditional exemption for spent
mstsrisls and byproducts exhibiting e
characteristic of hazardous wasta.
Subpart 1—(Reserved]
Sr^P^wMetsI R*coSsiy ^
28670 Applicability and requirements.
Subpart O—Spent Lead-add Batteries
Being Reclaimed
28610 Appllcebility end lequiieiuaala.
Authority; Sec 100612002(e). and 3004 of
the Solid Wasta Disposal Act as amended by
the Resource Conservation end Recovery Act
of 1976, aa amended (42 U.S.C. 6006.8012(a).
end 6024).
Subparts A-B—{Rtsorvod]
QuImsmA A - * »-»- si -a
wiopwi w ntcyonw uunn uwo
In 6 Manner Commuting Disposal
{ 26120 AppOcaMRy.
(a) The regulations of this Subpart
epply to recyclable materials that an .
applied to or placed on the land:
(1) without mixing with any other
substancefs); or
(2) after mixing with any other
substance(s). unless the recyclable
material undergoes a chemical reaction
so as to become inseparable from the
other substance(s) by physical means: or
(3) after combination with any other
substance(s) if the resulting combined
material is not produced for the general
public's use. These materials will be
referred to throughout this Subpart as
"materials used in a manner that
constitutes disposaL"
(b) Products produced for the general
public's use that are used in a manner
that constitutes dispossl and that
contain recyclable materials are not
presently subject to regulstion if the
recyclable materials have undergone a
chemical reaction in the course of
producing the product so ss to become
inseparable by physical means.
Commercial fertilizers that are produced
for the general public's use that contain
recyclable materials also are not
presently subject to regulation.
126121 StandardeepptfceWeto
generators snd transporters of materials
uaodbi a maimer that conaUtute disposal
Generators and transporters of
msterials that are used in e manner thet
constitutes disposal are subject to the
applicable requirements of Parts 262 and
283 of this chapter, and the notification
requirement under Section 3010 of
RCRA.
9 26622 Standaida aprOcsble to stccera
of materials that are to be ueed In e manner
thet constitutes depose! «Ho ere not the
ultimata users.
Owners or operators of fealities that
store recyclable materials that are to be
uaed in a manner that constitutes
disposal, but who are sot the ultimate
users of the materiala. are regulated
under all applicable proviaione of
Subparts A through L of Psrts 294 and
285 and Parts 270 and 124 of this chapter
and the notification requirement under
Section 3010 of RCRA.
Owners or operators of ferlUrtes that
use recyclable matartala In a maimer
that constitutes disposal are regulated
under aO applicable pioilstuns at
Subparts A through N at Puts 2B4 and
289 and Parts 270 aad 1X4 of dds chapter
and the notification nu«li—>m under
Section 3010 of EOUCfTWss
requirementa do as* appiy «e pndadi
which contain these rocyctabta
materials under the pwvtataoa of
1288J0(b) of thia chapter.)
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Federal Register / VoL 50, No. 3 / Friday. January 4. 1965 / Rules and Regulations
667
Subpart O—Hazardous Waste Burned
lor Energy Recovery
(2WJ0 AppOcobQtty.
[a) The regulations of this Subpart
apply to hazardous wastes that are
burned for energy recovery in any boiler
or industrial furnace that is not
regulated under Subpart 0 of Part 284 or
265 of this chapter, except a* provided
by paragraph (b) of this section. Such
hazardous wastes burned for energy
recovery are termed "hazardous waste
fuel". However, hazardous waste fuels
produced from hazardous waste by
blending or other treatment by a person
who wither generated the waste nor
boms the fuel are not subject to
regulation at the present time.
(b) The following hazardous wastes
are not regulated under this subpart
(1} Used oil burned for energy
recovery that is also a hazardous waste
solely because it exhibits a
characteristic of hazardous waste
identified in Subpart C of Part 261 of this
chapter. Such used ail is subject to
regulation under Subpart E of Part 286
rather than this subpart; and
(2) Hazardous wastes that are exempt
from regulation under the provisions of
i 261.4 of this Chapter and hazardous
wastes that are subject to die special
requirements for small quantity
generators under the provisions of
1 2614 of this Chapter.
{3C6J1 ProNbttiona. (Reserved]
|»&3a StandardaappOcaMeto
generators ottuuartauawaats (ML
(a) Generators of hazardous waste
fuel are subject to the requirements of
Part 2B2 of this chapter except that
! 260J36 exempts certain sprat materials
and by-products from theee provisions:
(b) Generator* who an marketers also
must comply with 128634;
(c) Generators who are burners also
must comply with f 266.36.
jam
transporter* of tiazardouei
(a) Transporters oftiazardoua waste
fuel from generator to marketer, or from
a generator to a burner are subject to
the requirements ofPart 283 of tfaia
Chapter, except that f 286.36 exempts
certain spent materials and by-products
from these provisions.
(b) Transporters of hazardous waste
fuel fawn martaettm to burets* an not
presently subject to regulation.
(MM
burner, and persons who receive
hazardous waste from generators and
produce, process, or blend hazardous
waste fuel from these hazardous wastes.
Persons who distribute but do not
precept. ppfcsMMytartToquliemenls. -
(a) The regulations of this Subpart
apply to persona who reclaim spent
lead-acid battertea that are recyclable
materials ("spent batteries"). Persons
who generate, transport or collect spent
hattartoa. or who store spent batteries
but do not reclaim than are not subject
to regulation under Parts 262 through 266
or Part* 270 or 124 of this Chapter, and
also are not subject to the requirements
of Section 3010 of RCRA.
(b) Owners or operstors of facilities
that store spent batteries before
reclaiming them are subject to the
following requirements. -
(1] Notification requirements under
Section 3010 of RCRA:
(2) All applicable provisions in
Subparts A. B (but not 1204.13 (waste
anabtiaS.C.0. Rflwi. not 1264^1 or
1264J2 (dealing with the use of the
manliest and manifest discrepancies)),
and F through L of Part 264 of this
f 2HJ0
(a) Tin regulations of this subpart
apply to recyclable materials that are
(3) AO applicable provtalona In
Subparts A. B (bat not 1265.13 (waste
analysis)). C. D. R (bat not 1265.71 and
-------
668
Federal Register / Vol 50. No. 3 / Friday, January 4. 1985 / Rules and Regulations
1283.72 (dealing with use of the
manifest and manifest discrepancies)],
and F through L of-Part 289 of this
chapter
(4) All applicable provisions in Parts
270 and 124 of this chapter.
[FR Doc. 89-4 Filed M-M; 8:49 am]
-------
14218 Federal Register / Vol. 50. No. 70 / Thursday. April 11. 1985 / Rules and Regulations
146.30(d) and 33 CFR 150711(a)(1)) have
been approved by the Office of
Management and Budget under the
provisions of the Paperwork Reduction
Act of 1980 (Pub. L. 90-511) and have
been assigned OMB control number
2115.0003.
List of Subjects
33 CFR Part 148
Coast Guard. Continental shelf.
Marine safety, and Reporting and
recordkeeping requirements.
33 CFR Pert ISO
Coast Guard. Deepwater ports. Oil
imports. Environmental protection.
Water pollution control and Reporting
and recordkeeping requirements.
In consideration of the foregoing.
Parts 146 and 150 of Title 33. Code of
Federal Regulations, are amended as
follows:
PART 148—OUTER CONTINENTAL
SHELF ACTIVITIES
1. The authority citation for Part 146
reads as follows:
Authority; Sec 4.07 Stat 462 (43 U.S.C.
1333) a* amended: tec. 22 of tec. 206. Pub. L
95-372.92 Stat 656 (43 U.SC 1348); 49 CFR
2. In } 146.30 paragraph (d) is revised
to read as follows:
} 146J0 Notice ot casualties.
• • • • •
(d) Damage costs referred to in
paragraphs (b)(3) and (b)(4) of this
section include the cost of labor and
material to restore the facility to the
service condition which existed prior to
the casualty, but does not include the
cost of salvage, cleaning, gas freeing,
drydocking or demurrage of the facility.
PART 150—DEEP WATER PORTS
3. The authority citation for Part ISO
reads as follows:
Authority: Sees. 10(a). 10(b). Pub. L 98-627.
86 Stat 2137-16 (33 U.S.C. 1900 (a) and (b)):
49 CFR i.46(«).
4. In 1150711 paragraph (a)(1) ia
revised to read as followe:
9190.711 Casualty or accident
(a) * * * •
(1) Any component of a deepwater
port which is hit by a vessel and total
damage to all property is in excess of
$25.000. Damage cost includes the cost
of labor and material to restore the
property to the service condition which
existed prior to the casualty, but does
not include the coat of salvage, cleaning,
gas freeing, drydocking or demurrage.
• • • • I
Dated April & 1965.
B.G. Bums,
Captain. US Coast Guard. Acting Chief.
Office of Merchant Marine Safety.
(FR Doc. 65-8716 Filed 4-10-85: 8:43 am)
SNJJNQ COOt
POSTAL SERVICE
39 CFR Part 111
Merchandise Return Service;
Correction
aqincy: Postal Service.
action: Final ruler correction.
summary: In FR Doc. 65-4270. in the
issue of Monday. March 11.1985. the
Postal Service published a final rule on
Merchandise Return Service. The rule
contained, at two places, erroneous
instructions on the proper location for
class of mail endorsements to be printed
or rubber stamped on the merchandise
return label by permit holders. This final
rule corrects those instructions,
¦menvi oats: June 30.1985.
raw FURTMIR INFORMATION CONTACT
F.E. Gardner. (202) 245-5756.
SUmXMKNTARY INFORMATION: In the
final rule published on March 11.1985.
newly revised DMM 919.442 and 919.443
provided, among other things, that the
class of mail endorsements must be
printed or rubber stamped "to the left of
the merchandise return legend and
above the address.. . .** This is
incorrect The endorsements must be
printed or rubber stamped in the open
space to the tight and above the
Merchandise Return Label legend. This
ia consistent with Exhibit 919.4.
published on page 9827 as a part of the
rule. For additional clarity, we are
adding 6 "see" reference to this Exhibit.
For the above reasons, the Postal
Service hereby makes the following
corrections to FR Doc. 85-4270 beginning
on page 9822 in the issue of Monday,
March 11,1985:
List of Subjects in 39 CFR Part 111
Postal Service.
PART 111—{AMENDED]
On page 9824. first column,
paragraphs .442 and .443 an conected
to read as followa;
.442 Parcels will be returned as Flrst-
Class Mail if the permit holder endorses
the label "First-Class." The
endorsements must be in letters at least
V4 of an inch high and muat be printed
or rubber stamped in the open space to
the right and above the Merchandiae
Return Label legend. See Exhibit 919.4.
NoU.—Fint-CliM Mail cannot be insured
unlaw the contents contain third- and fourth-
class matter and are so labeled.
.443 Parcels qualifying for special
rate fourth-class or library rate will be
returned at those rates provided the
appropriate identifying endorsement
prescribed in 723.1.764.11 or 767.1 is
preprinted or rubber stamped in letters
at least Y* of an inch high in the open
space to the right and above the
Merchandise Return Label legend. See
Exhibit 919.4.
(39 U.S.C. 401.404(a)(1))
Fred Eggleston.
Assistant General Counsel. Legislative
Division.
(FR Doc. 89-6701 Filed 4-10-65:8:43 sm|
aWJNO COM 7710-IJ-4I
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 280,281, and 288
[SWM-FHL-2815-81
Hazardous Waste Management
System; Definition of Solid Waste;
Corrections
aosmcy: Environmental Protection
Agency.
action: Technical Corrections to the
Definition of Solid Weste Final
Rulemaking.
summary: On January 4.1985. EPA
promulgated a final rule which dealt
with the question of which materials
being recycled (or held for recycling) are
solid and hazardous wastes. "Hits rule
also provided general and specific
standarda for various types of
hazardous waste recycling activities. In
reviewing this rulemaking and as a
result of questions and comments
received, the Agency has identified a
number of typographical and technical
errors requiring correction. This notice
mekes these changes and modifies the
previous publication accordingly.
IFMCTIVIOATC These corrections
become effective on April 11.1985.
SOU FURTMCR MF0RMAT10N CONTACT
RCRA Hotline, toll free, at (800) 424-
9348 or at (202) 382-3000. For technical
information contact Matthew A. Straus.
Office of Solid Waste (WH-582B). U.S.
Environmental Protection Agency. 401M
Street SW- Washington. D.C 20460.
(202) 475-8551.
IUWLIMINTART tWeORMATIOSC On
January 4.1985. EPA amended its
existing definition of solid weste. See 50
FR 814. This rulemaking defined which
materials are solid westes when
-------
Federal Register / Vol. 50, No. 70 } Thursday, April 11. 1985 / Rulea and Regulations 14217
disposed of. burned. Incinerated, or
recycled. The major part of the
regulation addressed the question of
which secondary materials being
recycled (or held for recycling) are solid
wastes and if hazardous, hazardous
wastes. The Agency also published
regulatory standards Tor various types of
hazardous waste recycling activities.
The Agency has received a number or
questions and comments on venous
aspects of this final rule. In considering -
these questions and in reviewing the
final rule, the Agency has identified a
number of typographical errors and
technical errors requiring correction.
These corrections an3 changes are
described below:
A. Compliance Dates for Precious Metal
Reclamation
The preamble specifically spells out
the compliance dates for all persons
who generate, transport treat, store, or
dispose of wastes which are covered by
the final rule {see SO FR 814). In that
discussion, EPA indicated that for
persons reclaiming precious metals from
recycled materials (/.&. hazardous
waste), the rule would become effective
immediately since these are . . rules
for which the regulated community does
not need time to come into
compliance." 1 This is true, for the most
part, because precious metal
reclamation is exempt from most of the
regulatory requirements. The new rules
do impose certain regulatory
requirements on certain persons (/.a.
those who were not previously subject
to regulation) for the first time,
however—namely, manifest
requirement* (5 280.70(b)(2)).
notification requirements for those
persona who have not previously
notified (4 288.70(b)(l]), and certain
-recordkeeping requirements
[S 288.70(c)). The Agency intended that
the rules become effective immediately
only for those persons who are subject
to less regulation, however, since these
are the only persons who need no time
to come into compliance. EPA, therefore,
is clarifying this part of the preamble to
indicate that || 286.70 (b) and(c) will
not become effective for those persona
who are subject to increased regulation
with respect to predous metal
reclamation until July 5,1885 (assuming
Federal operation of the hazardous
waste program), or in authorized States,
when the States amend their rules to
¦ « * -* li-l Ula^
TH® HIUNOa IM aOni WIHI MNHnl
of 1984 (HSWtA) mmM StcttM WIS of th»
Raoarca Csmamttaa and iaoprtiy Ad [RC*A|
»aliefr rata* to bmna tffteUn to km Itea «t*
moatfc* wfctn tltt (Wfulattd ooo*ramty dam no!
n—d tfa« rtnaaalh pwW to as— into w»IHnn
incorporate and make effective this part
of the Federal program.
B. Notification and Part A Requirements
!. Submission of Section 3O10
Notification
The January 4th regulation stated chat
any person who generates, transports,
treats, stares, or disposes of hazardous
wastes that are covered by the new
regulation must notify EPA or a State
authorized by EPA to operate the
hazardous waste program by April 4.
1985. unless these persons have
previously notified EPA or an authorized
State. See SO PR 614. A number of
questions have been raised regarding
who must notify and by when. We
repeat the instructions here to clarify
any misunderstanding. In particular;
• Any person who has previously
notified EPA or an authorized State
either as a generator or a treater. storer.
or disposer does not need to do so again
except aa described below. In addition,
certain recycled materials are exempt
from any regulation under these rales,
and persons are not required to notify
with respect to these exempt recycled
material*
• Any person who has previously
notified EPA or sn authorized State of
their activities but has withdrawn their
application must re-notify the Agency or
an authorized State of their activities.
• Persona who have not notified (and
were never required to notify) must
submit a notification to EPA or a State
with an authorized permit program. This
is true even (or those generators,
transporters, treaters. stoma. or
disposers who an located in a State
that has an authorized permit program
since Section 3010 of RCRA is
independent of the Section 3008 State
authorize dan section. Thus, even though
a person may not have to comply with
any of the substantive requirements of
tide rule on July 8 (i.e.. the January 4th
rules do not become effective la
authorized States until that State
amends its rules to adopt the new
requirements) they still most notify EPA
or a Slate will) an authorized permit
program that they either generate,
transport treat store, or dispose of a
recyclable material. (The rules on
obtaining authorization for newly
promulgated regulations are set oat in 40
CFR 271.21. See 49 FR 21878. May 21
1984.)
Z Submiuion of Part A Permit
Application
The January 4th regulation also
indicated that all persons had to: (1)
Notify EPA or an authorized State by
April 4.1965 and (2| submit a new or an
amended Part A permit application to
EPA or an authorized State by July 1
1985. in order to be eligible, or to remain
eligible for Interim status. These
instructions misstate the requirements in
two respects. First as described In
Section El., any person who has
previously notified EPA or an authorized
State does not need to do so again,
except where the previous notification
has been withdrawn. We, therefore, are
clarifying the notification procedures to
indicate that facilities that wish to be
eligible or to remain eligible for interim
status need only file a notification if
they have not previously notified EPA or
an authorized Slate that they generate,
transport treat store, or dispose of
hazardous wastes and have rot received
an identification number.
The second correction deals with the
submission of the Part A permit
application. In particular, persons
should not submit their Part A permit
application to a State that has an
authorized permit program (either final
or interim authorization) until that State
amends its regulations to adopt the
January 4th rules and EPA authorizes
the amended State program. Once this
process is completed, the new or
amended permit applications are to be
submittsd to the State pursuant to the
State requirements. Those facilities
which are located in States which do i
have permit programs authorized by
EPA must submit their new or amended
Part A permit application to EPA by July
5.1985.
C Gasncttsa tsTaUe 11
Table 11 to the preamble of the final
rules displays a decision me which
Identifies the varioua regulatory
requirements for the different recycling
scttvities and materials. See 50 FR 645.
The second box in the left hand column
of this table refen to 1281.6(a)(4). This
is a misprint and should refer to
1281.8(a)(3).
D. Correction to { 280J0(a)
In paragraph (a) to 1280.30. the
-Agency incorrectly referenced the
section which defines "accumulated
speculatively" as 1281.1(c)(8)(B). See 50
FR 881. The section reference should
read f 201.1(c)(8); this typographical
error Is corrected by this notice.
& Definition ^Hazardous Waste
The final rale amended 1201 J(c)l2) to
indicate generally that commercial
products reclaimed from a hazardous
waste an products, not wastes. andH}
an not subject to the RCRA Subtitl^r
provisions. When republishing amended
1281.3. however. EPA Inadvertently
-------
14218 Federal Register / Vol. 50. No. 70 / Thursday. April 11. 1985 / Rules and Regulations
omitted from the rule a recent
amendment to S 281.3(c)(2) indicating
that lime neutralized waste pickle liquor
sludge from iron and steel operations is
not automatically a hazardous waste,
even though it is derived from treating a
hazardous waste. See 49 FR 23284, June
5.1984. We. therefore, are correcting this
technical error in this notice by
reprinting 9 281.3(c)(2) to reflect the June
5,1984 amendment
F. Regulation of Hazardous Waste-
Derived Fuels Produced by Petroleum
Refineries and Iron and Steel Industry
Mills
Many refineries take oil-bearing,
listed hazardous wastes from the
petroleum refining process and re-
introduce them into the refining process.
Resulting fuels are defined as hazardous
waste fuels both by the January 4
regulations and by RCRA amended
section 3004(r). As we discussed in the
preamble to the burning and blending
rules proposed on |anuary 11,1989 (90
FR at 1884), EPA is currently evaluating
whether such recycling of metal-bearing
petroleum refining wastes significantly
affects the concentration of metals in
refinery fuel products. Until these
evaluations are completed, we have
indicated that it is inappropriate to
subject these fuels to regulation. Id at
1889-690.
However, as we discussed in the
preamble to the January 4 rules, the
transport and storage requirements
apply to all hazardous waste fuels
containing listed wastes and sludges,
except for those produced by a person
other than the generator of the waste
(see 90 FR 832). Consequently, if a
Senerator (&£, a refiner) of a listed
azardous waste or sludge blends or
processes these wastes and sends them
to a burner or fuel processor or
distributor, the processed fuel is subject
to regulation. Our concern was that
without such a provision, all a person
would have to do with their listed waste
or sludge is process it minimally to
evade regulation.
As indicated explidty in the January
11 proposed rules, however, we did not
intend for the January 4th rule to
regulate those fuel oils that are derived
from a hazardous waste and are
produced at a refinery. We reserved
judgment on the need for regulation fend
raised it as an issue for comment in the
January 11 proposal. See 90 FR at 1689-
89a We believe that these fuels an
produced from substantial processing
(/.«.. petroleum refining) of reintroduced
hazardous waste, and thus are bona fide
waste-derived fuels more Uka the fuels
that are produced by a waste fuel
processor (which are currently exempt
from regulation) than the wastes that
may be processed minimally by other
generators. In light of this, and to bring
die January 4 rule into conformance with
explicit preamble language of the
January llth proposal we are clarifying
this provision by adding a new
paragraph (3) to S 288.30(b) to exempt
(at this time) those fuel oils produced at
a petroleum refinery that are derived
from an indigenous petroleum refinery
hazardous waste. The language of the
exemption parallels RCRA section
3004(r) of the Hazardous and Solid
Waste Amendments of 1984 and so
applies to fuels produced when a
petroleum refinery reintroduces
indigenous petroleum refinery
hazardous wastes (within the meaning
of RCRA section 3004(r) (2) and (3)) to
the refining process under the terms set
out in those provisions.
EPA also is adding a new paragraph
(4) to } 286J0(b) to clarify that
hazardous waste-derived coke from the
iron and steel Industry is not subject to
regulation when the only hazardous
wastes used in the coke-making process
are from iron and steel production. As
stated in the preamble to the January 11
proposed regulations, the Agency does
not intend to regulate this type of waste-
derived coke, at this time. See SQFRtl
1890. As withwaste-derived petroleum
fuels, waste-derived coke is a bona fide
fuel that has undergone processing, and
so is unlike wastes that are processed
minimally by a generator. (We note,
however, that the coke is exempt only if
wastes that an indigenous to the iron
and steel making process are used in the
coking process. The exemption would
not apply, for example, if a steel mill
wen to take a spent solvent, or other
non-indigenous waste, and use it in the
coking process.)
G. Exclusion of Black Liquor
In the January 4 publication. EPA
amended 1281.4(a) of the regulations to
provide that blade liquor, a type of spent
chemical which is caustic ami
sometimes corrosive, which is typically
reclaimed and reused in the pulpmaking
process, is not a solid waste whin so
reclaimed and reused. The regulatory
language limited the applicability of this
exclusion to black liquor that la
reclaimed and reused in one particular
type of pulpmaking process, the Kraft
process. Spent pulping liquon (of which
black liquor is one type) intact an
generated, reclaimed, and reused in
other types of pulpmaking processes as
well* and the Agency did not intend to
restrict the exclusion solely to the Kraft
process. See {280.10. definition of
"industrial furnace." where EPA stated
that "pulping liquor recovery furnaces"
an industrial furnaces, and did not limit
the definition to the Kraft pulpmaking
process. See 90 FR at 681. Accordingly,
we an making a technical correction by
modifying this exclusion to make it clear
that all spent pulping liquors that are
reclaimed in a pulping liquor recovery
furnace and then nused in the pulping
process are to be included in the
exclusion.
H. Omission From Small Quantity
Generator Provision
The final rule excludes those
hazardous wastes that an exempt from
regulation when they an to be recycled
from the small quantity generator
calculation. See 90 FR 852. The rule also
excludes spent lead-acid batteries that
an to be reclaimed from the small
quantity genentor calculation (even
though they an subject to some
regulation) because they an not subject
to regulation in the hands of the
genentor. Precious metal wastes,
however, an to be included when
making the small quantity generator
calculation. See pnamble footnote 43 at
50 FR 852.* Although this point is clear
in the pnamble. we inadvertently
omitted the reference to precious metal
wastes that an reclaimed in the rule.
See amended 1281.5. This technical
error is being corrected in this notice by
revising the second sentence in S 281.5(c)
to read as follows: "Hazardous waste
that. .. and Subparts C.D. and F of
Part 288 is included .... of this
section." This revision ia necessary in
order to make it clear that precious
metal wastes that an reclaimed an to
be included when making the small
quantity genentor calculation.
L Hazardous Wast* Boned for Energy
Recovery
The final rale exempts from regulation
(for the time being) those transporters
who transport hazardous waste fuel
from a marketer to a burner. See
128833(b). However, aa stated in both
the preamble and the rale, generaton
may be marketers. In addition, as
clarified in the pnamble. the transport
(» « it iLa
BCnBlDl IBB BRSUIIU
MtfUtHMIi
cnbomto
i tad aodt (which to
batwitbovt mlfur).
can ba ptacad tato (our cataforiaa: *aifa(a (wUch la
ite Kraft pram), mlfl* (a
i that uv an nbtact la «
I art of ataodarda. wa bate** thajr abooid ba
l to lha «aall qoasttty fmarator calculation
i an aub^aU to maliUm in lha
-------
Federal Register / Vol. 50, No. 70 / Thursday. April 11. 1985 I Rules and Regulations 14219
and storage requirements apply to those
hazardous waste fuels containing listed
wastes and sludges that are shipped
from the generator to a burner or
oiender. See 50 FR 832. If a generator of
a listed hazardous waste or sludge
blends or processes these wastes and
sends them to a burner or a waste fuel
processor, the blended waste fuels are
subject to regulation until burned or
reprocessed by the fuel processor
(except as described earlier). Thus, there
is a conflict in the regulation, because
transporters taking hazardous waste
fuels from generators to burners or
waste fuel processors are regulated. See
} 266.33(a). To correct this conflict we
are revising paragraph (b) of § 266.33 to
read as follows: 'Transporters of
hazardous waste fuel are not presently
subject to regulation when they
transport hazardous waste fuel from
marketers, who are not also the
generators, to burners or other
marketers."
J. Regulatory Status of Non-Listed
Ctamical Products
Under the final rules, commercial
chemical products and intermediates,
off-specification variants, spill residues,
and container residues listed in 40 CFR
261.33 are not considered solid wastes
when recycled except when they are
recycled in ways that differ from their
normal use—namely, when they are
burned for energy recovery or used to
Cxiuce a fuaL A number of questions
ve been raised as to the regulatory
status of commercial chemical products
that an not listed in f 261.33 but exhibit
one or more of the hazardous waste
characteristics (Ae-ignitabillty.
conosivity, reactivity, and extraction
procedure (EP) toxicity).
Although we do not directly address
non-Usted commercial chemical
Ciducts in thm rides, their status would
the same as those that are listed in
4 28L33—That is, they are not
considered solid wastes when recycled
except when they are recycled la wayi
that difte bom their nonnal manner of
use. This is the sama relationship that
exists between discarded commercial
chemical products that are listed in
128L33, and those that exhibit a
characteristic of hazardous waste. We
believe this point is impUdt In the nilea,
as it ia implicit in existing || 281.3 and.
28133.
K-Regulatofy Impart
Under Executive Order 12291, EPA
must judge whether a regulation is
"major" and therefore subject to the
requirements of a Regulatory Impact
Analysis. Since this notice simply makes
typographical and technical corrections
and does not change the previously
approved final rule, this rule is not a
major rule and therefore, no Regulatory
Impact Analysis was conducted.
list of Subjects
40CFRPart28&
Administrative practice and
procedure. Hazardous materials. Waste
treatment and disposal.
40 CFR Part 261
Hazardous materials! Waste
treatment and disposal Recycling.
40 CFR Part 286
Hazardous materials.
Dated: April Z 1981
Jack W. McGraw,
Aitistant Adminfttrator,
For the reasons set out in the
preamble. Title 40 of the Code of Federal
Regulations is amended as follows:
PART 280—HAZARDOUS WASTE
MANAGEMENT SYSTEM; GENERAL
1. The authority citation for Part 280
reads as follows:
Authority: Sect. 100ft. 2002(a), 3001 through
3007. and 3010 of the Solid Wests Disposal
Act as amended by the Resource
Conservation and Recovery Act of 1870, as -
amended (« U&C «H. fin2(a), 0821
through 6927, and S930).
2. In 129X30, paragraph (a) is revised
to read as follows:
8»O30 Variances from daasfflcatton as a
• • • • •
(a) Materiala that are accumulated
speculatively without sufficient amounts
being recycled (as defined in
1281.1(c)(8) of this chapter);
I 8 • « «
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
3. The authority dtation for Part 281
reads as follows:
Authority Sees. 1008, a0Q2fa).30OL and
9001 of the Solid Waste Disposal Act as
amended by the Resource ConservaUca and
Recovery Act of U7& as amended ftt ll&C,
am. Bsuta), eaa. and eaa).
4. Section 2813 is amended by
revising paragraph (c)(2) to read as
follows;
1881,8 PaHnttow of haiardsua euls
(cK * *
(2)(i) Except aa otherwise provided in
paragraph (c)(2)(li) of this secttcn. any
solid waste generated bom the
treatment storage, or disposal of a
hazardous waste, including any sludge,
spill residue, ash. emission control dust
or leschate (but not including
precipitation run-off) is a hazardous
waste. (However, materials that are
reclaimed from solid wastes and that
are used beneficially are not solid
wastes and hence are not hazardous
wastes under this provision unless the
reclaimed material is burned for energy
recovery or used in a manner
constituting disposal.)
(ii) The following solid wastes are not
hazardous even though they are
generated from the treatment storage, or
disposal of a hazardous waste, unless
they exhibit one or more of the
characteristics of hazardous waste: (A)
Waste pickle liquor sludge generated by
lime stabilization of spent pickle liquor
from the iron and steel industry (SIC
Codes 331 and 332).
t • • • • "
5. Section 261.4 is amended by
revising paragraph (a)(8) to read as
follows:
S 361.4 Egefustana.
• (a) • • ~
(8) Pulping liquors (/a. black liquor)
that are reclaimed in a pulping liquor
recovery furnace end then reused in the
pulping process, unless it is accumul?'
speculatively as defined in S 281.1(c)
this chapter.
& Section 28LS Is amended by
revising the second sentence in
paragraph (c) to read as follows:
<881J flpsrtd requirements toe _
kaoMous waste generated by smsH
(c) * * * Hazardous waste that Is
subject to the requirements of 12816 (b)
and (c) and Subparts C. D. and F of Part
288 is included In the quantity
determination of this section and is
subject to the requirements of this
section.
8»88«
¦PART 28*—STANDARDS FOR THE
MANAGEMENT OF SPECIFIC
HAZARDOUS WASTES AND SPECIFIC
TYPES OF HAZARDOUS WASTE
MANAGEMENT FACILITIES
7. The authority citation for Part 288
reads as follows:
Authority Sees. 1006.20tBf). and SOOjgf
the Solid Waste Disposal Act as aeun^A>y
the Resoura Ceasamtion and Recove^Vct
of tam, aa amended [42 US.C 890*. 0912(a).
and 8824).
-------
14220
Federal Regis tar / VoL 50, No. 70 / Thursday, April 11. 1985 / Rules and Regulations
8. InJ 268.3ft paragraphs (b) (3) and
(4) are added to read as follows:
{288J0 AppOeabffity.
fb) • * •
(3) Hazardous waste fuels that are
exempt from the labeling requirements
of RCRA Section 3004(r).
(4) Coke from the iron and steel
industry that contains hazardous waste
from the iron and steel production a
process.
• • • « •
9. Section 286.33 is amended by
revising paragraph (b) to read as
follows:
J 2tUl Standards applicable to
transporters of hazardous waste fuel
• • • • •
(b) Transporters of hazardous waste
fuel are not presently subject to
regulation when they transport
hazardous wastes fuel from marketers,
who are not also the generators of the
waste, to burners or other marketers.
[FR Doc. as-8385 Piled 4-10-05; &45 am|
GENERAL SERVICES
ADMINISTRATION
41CFR Chapter 201
(FtRMRTemp.Re0.12)
Establishing Integrated Records
Management Provialons for the
Federal Information Resources
Management Regulation (FIRMR)
aocnct Office of Information
Resources Management. GSA
action: Temporary regulation.
Summary: This regulation establishes
FIRMR Parts 201-22. Records
Management Programs, and 201-48.
Management of Records. This regulation
consists of those provisions of Federal
Property Management Regulations
(FPMR) Part 101-11. Records
Management for which GSA will
continue to be responsible after April 1,
1985. when the National Archives and
Records Service (NARS) becomes an
independent agency to be known as the
National Archives and Records
Administration (NARA). Hie subject
matter Includes the management of maiL
files, records, directives, forms, reports,
micrographics, copy, correspondence,
and records equipment and supplies.
Regulations governing records
disposition and adequacy of
documentation are not included in this
temporary regulation since NARA will
be responsible for those areas, effective
April 1.1985. Except as noted no
substantive changes have been made in
authorities, policies, or procedures from
those contained in FPMR Part 101-11.
from which these provisions are derived.
CATVS: Effective date: April 1.1985.
Expiration date: December 31.1988.
Comments an due: April 30.1985.
aoorkss: Comments should be
submitted to the General Services
Administration. Office of Information
Resources Management Policy Branch
(KMPP), Washington. DC 20405.
FOR FURTX8R INFORMATION CONTACT:
David R. Mullins. Policy Branch (KMPP),
telephone (202) 588-0194 or FTS, 566-
0194.
SUPPLIMENTARV INFORMATION: (1) Public
Law 98-497. the National Archives and
Records Administration Act of 1984.
was signed on October 19.1984. Under
the act NARS will become an
independent agency known as The
National Archives and Records
Administration (NARA). effective April
1,1985. As a result responsibility for the
administration of the provisions now
contained in FPMR Part 101-11 will be
divided between GSA and NARA. This
regulation incorporates into the FIRMR
those provisions of FPMR Part 101-11
which promote economy and efficiency
in records management NARA intends .
to establish a regulation in 38 CFR XII
that will include the FPMR provisions
that address records disposition and
adequacy of documentation. A
subsequent FPMR amendment will
rescind the provisions now in FPMR
Part 101-11.
(2) The FIRMR was initially
established effective April 1.1984 (49 FR
20994 May 17.1984). The integrated text
consisting of the provisions governing
ADP and telecommunications
procurement and management
previously contained in FPMR Subpart
101-38,38, and 37, and Federal
Procurements Regulations (FPR)
Subparts l-4.il, 1-4.12. and 1-4.13. was
published in the Federal Register on
January 30,1985. This issuance
integrates the third DtM component
(records management) for which GSA is
responsible into the FIRMR text
(3) the intent of this regulation is to
reformat the FPMR provision into the
FIRMR format and numbering system
and to make editorial change to
accurately reflect the current
organizational structure within GSA's
Office of Information Resources
Management and the division of
responsibilities between NARA end
GSA. Otherwise, substantive chsnges
from the text now appearing la die
FPMR are contained only in 1201-
45.104. Forms management; Subpart 201-
45.5, Standard and Optional Forms
Management Programs; and Subpart
201-45.8, Interagency Reports
Management Program. These provisions
represent the reconciled versions of
proposed FPMR amendments that were
previously circulated for public
comments. Due to the enactment of
Public Law 98-497 and its April 1,1985.
effective date, the proposed changes
were not issued as FPMR amendments
and are included in this temporary
regulation.
(4) Pursuant to section 22(d) of the
Office of Federal Procurement Policy
Act (section 302(a) of Pub. L 98-577), the
publication of proposed rules has been
waived because of the necessity to
implement Pub. L 98-497 effective April
1.1985.
(5) However, notice of proposed
rulemaking regarding this action (as a
FIRMR amendment) was published in
the Federal Register (50 FR 6970,
February 19.1985) with comments due
by March 21,1985. Comments received
on the amendment are being reconciled,
and a FIRMR amendment is being
prepared to replace this temporary
regulation. Although the deadline for
comments on the amendment has
passed any comments on this temporary
issuance received before April 30,1985.
will be considered to the maximum
practicable extent in preparation of the
final amendment
. (8) This regulation was developed in
coordination with the Archivist of the
United States in accordance with
9201-1^01(8).
(7) The General Services
Administration has determined that this
rule is not a major rule for purposes of
Executive Order 12291 of February 17.
1981. GSA decisions are based on
adequate information concerning the
need for. and the consequences of the
rule. The rule is written to ensure
maximum benefits to Federal agencies.
This is a Government-wide management
regulation that will have little or no net
cost effect on society.
(8) Derivation Tablet for Individual
Parte.
n menu
nwnmi
c
8
1
1
14
ai-aooo.
SOI-OjOOI.
SDI-SUBt-t.
stt-sasei-e-
101-11.000
101-11.101
101-11.101-1
ioun.ioi-a
101-11.10S-1
iet.««.iM
101.lt.l0S
101-11.10S-1
101-1110M
w-uio«-3
-------
Federal Register / Vol 50, No. 1SI ) Tneaday, August aa 3965 / Rula and Regulations 13341
4(1 CFR Psrts 281 and 2W
[SWH-FRL~2M3-*J
Hazardous Waste Uvugemmt
System; DcflnMoii atSoM Watte;
Technical Conwcian*
agency: Environmental Protection
Agency.
ACTiew Technical Corrections to the
Definition of Solid Watte Final
Rulemaking.
summary; On January 4.1385, EPA
promulgated a final rule which dealt
with the question of which materials
being recycled (or held far recycling] are
solid and hazardous wanes. This cuie
also provided general and specific
standards for various type* of
hazardous waste recycling activities.
EPA issued technical corrections to this
rale cm April 11.13B&. Since bat etrne.
EFA has identified eevet-ad otbsr
provisions that require technical
correction or clarification. This notice
make* these changes and modifies the
previous publication accordingly,
ef pictivi datv: These corrections
become effective on August 20,19&5.
POM FURTHER INFORMATION CONTACT
RCRA Hotline, toll free, at (1100) 424-
3346 or al (202) 382-3000. For technical
information contact Matthew A. Straus,
Office of Solid Waste [WH-S82B]. U.S.
Environmental Protection Agency. 401M
SI SW„ Washington. DC 2046a (202)
475-8551.
L Technical Corrections to Rule
A. Interim Exemption for fftnatdout
Waste-Derived Fuel* Produced From
WcstM Ftam Petn/auai Refuun$.
Production, or Tnuaportatioa
On January i 1983. EPA amended it*
existing definition of solid waste. SO FR
914. This rulemaking defined which
materials being recycled (or held for
recycling) an solid waste*. EPA
promulgated certain technical
amendments to these roles on April 11.
1985. SO FR 14219. One of these
corrections concerned the regulatory
statue of hazardous waste-derived fuel*
produced from oil-bearing hazardous
wastes tram petroleum refining,
production, sind transportation. The
technical aoendrant clarified that such
foals are presently exempt from
regulation, pending a substantive
decision as to whether regulation is
necessary to protect human health and
tha ecnrcruaani. See SO FR 34216: see
also SO Fft 26380. (una 28,1981 likewise
stating that such fuels are presently
exempt from regulation.
Thare is a drafting error In tt* April
technical rule, however, in that the
interim exemption was placed in
] 26SJQ of the regulations- This
provision applies to hazardous waste
fuels burned it boilers at industrial
furnaces thuj. the interim exemption
would appear to apply only when the
hazardous waste-derived fuel from
petroleum refining it to be tamed lo
these types of devices. But fuela can be
burned in other devices—in certain
space heaters or engines not of integral
design, for example—and the Agency
intended that these hazardous waste*
derived fuels be exempt without regard
for die type of unit in which they are
burned. We consequently are pi icing
the interim exemption in 1281-8{aK3).
which proviaion exempts recyclable
materials from regulation- Thaw
particular hazardous waste fuels thus
are presently exempt tram resolution
without regard far the as turn of tLa
device la which they tie bamed.
This exemption is also applicable to
oil reclaimed from petroleum refining
hazardous wastes prior to insertion or
reinsertion into the petroleum refining
process (and. as already stated fa the
preceding paragraph, to fuels resulting
from refining of the ttdalowd a ill. Suck
reclaimed oil Le.. oil reclaimed from
petroleum refining hazardous waste, is
not presently subject to regulation. Thla
leaves lo place this regulatory schema of
the May 19.1980 rules, whereby such
reclaimed oils an exempt from
regulation. Se« 30 FR M7/3. The Agency
is determining if and how to regulate
such reclaimed oil as part of the
rulemaking on hazardous wests fuels
proposed on January 11. IMS. See SO FR
IBM.
There are two farther points of
clarification. As drafted tntfaa April 11
notice, (fas interim exemption applied to
all fuels exempt from the labeling
requirements of RCRA section 3004(1%
Section 30M(r) applies to hazardous
waste-derived fuela produced from, or
ctherwisa containing, oil-bearing
hazardous wastes from petroleum
refining, production, and transportation
that are reintroduced into particular
parts of the petroleum refining process.
Quesdons have been raised aoout the
precise scope of some of the terms la
section 3004(r). On reflectkaa, EPA doee
not believe It necessary to refer to
section 3004{r] to express Its tirtaat to
provide an Interim exemption.
Consequently, we are revising tha
interim exemption to refer to fuels from
petroleum refining that include as
iofvdlenis (£ju thai am produced from
or otherwise contain) oil-bearing
hazardous wastes from normal
petroleum refining, production, or
tnssponatton pruUces. We to'.a that
these hazardous wastes can be
generated off-site, and the resulting fuels
are covered by the interim exemption.
(C£ section 3004(0(3] which also is not
limited to wastes generated on-site.) We
sJaonotA a* we did oa April 11 JSOFR
at 14218/1}, that these wastes must be
Indigenous to the petroleum refining,
production, or transportation process,
and so would not include such wastes
as spent pesticides.
Second, certain persons have raised
the question of whether there is any
regulatory distinction between fuels
"produced from" hazardous waste and
those "containing" hazardous waste, as
these tans* are uoed In amended 40 CFR
2B1.2fc](2] (B] and (C). The Agency
intends no such distinction. Nor did the
Congress. See RCRA amended section
SOOtfq}, noting that hazardous waste
fuels an those produced from hazardous
wsita. ci (tat caaLai fnj"
hazardous w»le [supassis added].
Ftaia produced fcem hazardous waste
thus are a subset of the class of Fuela
Miwt«
-------
33542 Federal Register / Vol. 50, No. 161 / Tuesday. August 20. 1985 / Rules and Regulations
chemically reacted and are not
separable by physical means).
In order to eliminate any possible
uncertainty on this point however, the
Agency has decided to revise the
language of 9 261-2(c)(1) (use
constituting disposal) and (c)(2) (burning
for energy recovery) to recite the
language from the Hazardous and Solid
Waste Amendments of 1984 (HSWA).
Thus, (a) hazardous secondary materials
used to produce a fuel or used to
produce a material that is applied to the
land are defined as wastes; and (b)
hazardous secondary materials
otherwise contained in such waste-
derived products are defined as wastes.
In both cases, the waste-derived product
is defined as a waste (assuming it too is
hazardous as provided in 9 281J) and is
potentially subject to regulation under
Subtitle C of RCRA.
B. Interim Exemption for Hazardous
Waste-Derived Fuels From Iron and
Steei Production
On April 11.1985, EPA also clarified
that hazardous waste-derived coke from
the iron and steel industry is not subject
to regulation when the only hazardous
wastes used in the coke-making process
and from iron and steel production. This
interim exemption was also placed in
S 288.30(b) and so is limited by the type
of unit in which the waste-derived coke
is burned. To avoid any unintended
limitation on the scope of this interim
exemption, we are now placing it in
§ 281.8(a)(3).
C Regulation of the Process of
Recycling
EPA stated in the preamble to the
final rule that EPA does not presently
regulate the actual process of recycling
(with the exception of certain uses
constituting disposal), only the storage,
transport and generation that precedes
it 50 FR 642/1. The Agency included this
thought in SS 281.8(c)(2) and 28845 of
the regulations, but forgot to include it in
9 2814(c)(1). We consequently are
amending 9 281.8(c)(1) to state that die
enumerated requirements only apply to
recyclable materials stand before they
are recycled.
D. Correction to Subpart G of Part 268
Subpart G of Part 288 contains rules
for spent lead-add batteries being
reclaimed Due to a typographical error,
this provision was misnumbered as
M9 28&30**. The correct numbering is
128&A0. Today's notice corrects this
error.
£ Clarification of Part A Permit
Requirements
In the April 11.1985 notice. EPA
indicated that facilities located in States
which do not have finally authorized or
interim authorized permit programs
need to submit new or amended Part A
permit applications to EPA by July 5.
1985.50 FR 14217/3. Although accurate
for States without any EPA
authorization, this statement was not
correct with respect to Phase 1 interim
authorized States. If a State has any
form of authorization, its universe of
wastes (as approved by EPA) defines
the universe of RCRA regulated entities
within the State. Program
Implementation Guidance 82-1.
November 20,1981. Thus, a person
managing a waste that is not yet part of
such an authorized State's universe of
hazardous waste is not presently
required to submit a Part A application.
The new or amended application would
have to be submitted when the State's
universe of wastes has been amended to
reflect changes to Part 281 and has been
authorized by EPA.
n. Regulatory Impact
Under Executive Order 12291. EPA
must judge whether a regulation is
"major" and therefore subject to the
requirements of a Regulatory Impact
Analysis. Since this notice simply makes
typographical and technical corrections
and does not change the previously
approved final rule, this rale is not a
major rale. and. therefore no Regulatory
Impact Analysis was conducted.
List of Subjects in 40 CFR Puts 281 and
288
Hazardous wastes. Recycling.
Dated: August 12. IMS.
AOjnM. Davis,
Acting As»it tant Administrator for Solid
Waste and Emergency Response.
For the reasons set out in the
preamble. Tide 40 of die Code of Federal
Regulations is amended as follows:
PART 2S1—IDENTIFICATION AND
U8TINQ OP HAZARDOUS WASTE
1. Hie authority section for Part 281
continues to read as follows:
Authority: Sacs. 1006* »tt(el. 3001. and
SOU of the Solid Waste Disposal Act as
amended by the Rassnos Conservation and
Recovery Act afUWL as amandad (41UAC.
800L 8812(a). 8821. and 888).
2. In 128L2(c)(l)(I), paragraph (B) is
revised to read as follows:
|28U PeWnMon ot anOil waste.
W • •
(I)**"
(i) * * *
(B) Used to produce products that are
applied to or placed on the land or are
otherwise contained in products that are
applied to or placed on the land (in
which cases the product itself remains a
solid waste).
• sett
3. In 9 281.2(c)(2)(i). paragraph (C) is
removed and paragraph (B) is revised to
read as follows:
J 281.2 Definition ot solid waste.
(c) • * *
(2) * * *
(i)***
(B) Used to produce a fuel or are
otherwise contained in fuels (in which
cases the fuel itself remains a solid
waste).
• • • • •
4. In 9 281.8(a)(3), paragraphs (v). (vi).
and (vii) are added to read as follows:
9281.8 Requirements for recydaMe
materials.
(a) • • •
(3) • • •
(v) Fuels produced from the refining of
oil-bearing hazardous wastes along with
normal process streams at a petroleum
refining facility if such wastes result
from normal petroleum refining,
production, end transportation
practices;
(vi) Oil reclaimed from hazardous
waate resulting from normal pertoleum
refining, production, and transportation
precticeo. which oil is to be refined
along with normal process streams at a
petroleum refining facility; or
(vii) Coke from the iron and steel
industry that coriteins hazardous waste
from the iron and steel production
process.
• • • # •
5. In 9 281.8(c) paragraph (1) is
amended to read ae follows:
l
-------
Federal Register / VoL 50, No. tai / Tuesday. August 20, 1985 / Rule* tad Regulation* 33543
PART Mt-STAMOAROS FOR THE
MANAGEMENT OF SPECIFIC
HAZARDOUS WASTES AND SPECIFIC
TYPES OF HAZARDOUS WASTE
UANAQCMENT FACILITIES
a. The authority dtatlon for Put 280
coatinuei to read u follows:
Authority: Sao. 1008.2002(a). sad soot of
the Solid Wute Diipoul Act aa amnded by
the Reaource Conservation and Recovery Act
of t97s, ¦¦ tmanded (42 US.C 8901, M12U),
and 8924}.
7. Section 286.30(b) is amended by
deleting paragraphs (b)(3) and (b)(4).
8. FR Doc. 9V3 published in the
Federal Register of January 4.1983 (SO
FR 614), Is corrected by changing the
section number "286^30" under Subpart
G to "206.80" on page 667.
(FR Doe. 88-18708 FUed 8-19-45; t« as]
eauwa coot mow
40 CFR Part 7*9
(0PTS-420138; TBM-MU. MIMb)
identification of Specific Chemical
Substance and Mbrture Tasting
Requirement; DtelhytwwMairtiw
Correction
In FR Dot 85-12422. beginning on
page 21398, aa Part QL ia the issue of
Thursday. May 23,1988. make the
following correction:
Ob page 2141Z second column,
1799.1375{c)l2]{i)(C). the fifth line
should have read-"sectionor in them
vivo cytogenetics test conducted
pursuant (o paragraph (c)(2)(l](B) of this
section produces a positive mult"
FEDERAL COMMUNICATIONS
COMMISSION
47 cm Par* 2 and «7
Modification of FoetnowUSZTS to 0m
TaMoof FfoquancyAloeattona
Manor. Federal Communication*
PjYmwil| *iiw |
ACTwec Order.
naaajum The Eedaral Counaaicatloae
Commissioa Pule 2 and 87 of
its Roles to prohibit secondary amateur
operatloasia the 902-928 MHi band ia
ma Whfta Sands Maatia Rang*. Thla
acdoajirlll provide protection to
essential primary radiolocation and
control operations at White Sands
MlssileiUnge.
immvi oats September 2a 1988.
AD9BM9! Federal Carniriimlcattoc*
Commission. 2035 M Street NW,
Washing I cm. D.C. 2D851
fOU PUKTHi* INFORMATION CONTACT:
Mr. Fred Thomas. Office of Science and
Technology. 1919 M Street NW,
W ashingVwv. D.C. 305S1, (2011655-6162.
•UmMNTAAY mPOMUTIOie
List of Subjects
47 CFR Part 2
Frequency allocations.
47 CFR Port 97
Amateur radio-
Order
In the matter of amendment of pans 2 and
B? of the Commission's rales to prohibit
amateur use of the 902-428 MHi bend et
Vrtjlts State Mbafts Ruga la smthem. Hew
Mexico.
Adopted: August 5. U8S.
Released: August IS. 1988.
By the Commission.
1. This action restricts amateur
operations ia the 902-928 MHs band is
tha vicinity of White Saada Missile
Range, la the Second Report aad Order
of General Docket 80-739.
Implementation o! the Final Acta of the
1979 WARC. the Commission allocated
the 902-928 MHs band to the amateur
service on a secondary baaia; tt
allocated the band on e primary basis
for Government radiolocation and for
industrial scientific wyBnl
applications.'This band has recently
been added by the Report and Order ia
PR Docket 84-960 to the frequencies
listed In Part 97 as being available for
amateur use.1 However, the Department
of the Army baa informed the
Commission that several critical
radio location operations, including
tracking and control operations of
unmanned aircraft require the use of
frequencies la 4a 902-425 MHs Wad at
the White Saada MlaailaRaaga la Now
Mexico aad that amateur operations la
this area could Impair or seriously
disrupt these operations. Therefore, the
Army has requested that the
ft—place restrictions* on
amateur operation* la the 902-426 MHa
band amad the White Saada ana.
2. la cider lo protect these critical
military operations vie are oodifytag
footnote US273 to the Table of
Frequency Allocations. 12.106 of the
•8* Second Report lad Okdv k Cessm) De&
Mo. so-nsrcc suit m n sw (adapts*
Novwbar a 1SS».
•8se Report sad (Marie PROadmNaSMeo
TO m-m (adopted A^ut ft m
Commission's Rules, and modifying
1973 of the Comaiissiaa's Rules to
restrict amateur operations ia this band.
The restrictions are as follow*: la the
band 902-928 MHz the amateur service
is prohibited in the area of Texas aad
New Mexico bounded by latitude -31*41'
N. on the south, longitude 104*11' W. on
the east latitude M'SQf N. on. the troth
aad longitude 107*30* W. oa the west in
addition, outside this ares but within
180 miles of these boundariee of White
Saada Missile Range. New Mexica the
service la limited to a maximum peak
envelop* power output of 50 watts from
the transmitter. The necessary
amendments to Sections 2.108 and 97.7
of the Commission's Rules are contained
in the Appendix.
3. Ia accordance with section 593 of
the Administrative Procedures Act
which excludes matters involving
military functions from the notice
process (U.S.C. 553(a)(1)). no Notice of
Proposed Rule Maldag will be issued la
this matter.
4. Accordingly, It ia ordered, that
II 2.106 aad 977 are amended as set
(nth in the Appendix. Authority for this
action la contained In section 4(1) and
303(r) of the Communications Act of
1934, as amended These amendments
become effective September 29.1985.
1 Point of coatact on this matter ia
Fred Thomae. (202) 855-6162.
COBAtMkW)
WTOcBj-HcKk*
Stmtarf.
Appendix
Parte 2 and 97 of Chapter I of Title 47
of th« Code of Federal Regulations are
amended as follows:
The authority citations ia Parts 2 aad
97 continue to read:
AoMtp Sees. A SO*. 48 StoL 1088.1
as assadedb V US.C 154.90S.
PART 2—FREQUENCY ALLOCATIONS
AMD RADIO TREATY MATTERS;
OENXRAL RULES ANO REGULATIONS
Section 1106 la amended by revising
the text of footnote US273 aa follows:
* • • • •
UBJ» Thebeadng-MlMKlsellecaied
ea a secondary basis to be amateur
e^leenb|ecl ts eot ceesiaa bnaftil
Ciwimmem etettoae au&orited ia this
bead* ta Automatic Vehide Monitoring
(AVM) systems. 9tattoes in the ens
ssrvtos must tolerate any taterference ftom
tbe epoNttau of tadnsMaL scientific <
medical (DM) dsvteee. AVM systeau and
-------
RCRA REVISION CHECKLIST 14
Dloxin Waste Listing and Management Standards
50 FR 1978-2006
January 14, 1985
(HSWA Cluster I)
STATE ANALOG IS.
ANALOGOUS
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
PART 261 - IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
SUBPART A - GENERAL
SPECIAL REQUIREMENTS FOR HAZARDOUS WASTE GENERATED BY SMALL QUANTITY
GENERATORS
acutely hazardous
261.5(e)(1)
residues
261.5(e)(2)
RESIDUES OF HAZARDOUS WASTE IN EMPTY CONTAINERS
definition of emDtv
261.7(b)(1)
definition of empty
for acute hazardous
wastes
261.7(b)(3)
SUBPART D • LISTS OF HAZARDOUS WASTES
GENERAL
acute "F wastes
261.30(d)
HAZARDOUS WASTE FROM NONSPECIFIC SC
3URCES
fist of "F" wastes
261.31
9261.31 - Hazardous waste from non-soedfic sources
EPA Hazardous
Waste No.
Hazardous Waste
Hazard
Code
F020 Wastes (except wastewater and spent carbon from hydrogen chloride (H)
purification) from the production or manufacturing use (as a reactant,
chemical intermediate, or component in a formulating process) of til* or
tetrachlorophenol, or of intermediates used to produce their pesticide
derivatives. (This Bsting does not include wastes from the production
of Hexachlorophene from highly purified 2,4,5-trichtorophenoL)
(continued on next page)
January 14, 1985 • Page 1 of 8
-------
RCRA REVISION CHECKLIST 14: Dioxin Waste Listing and
Management Standards (cont'd)
¦ TWTC ANALOG IS:
ANALOGOUS
EaUlV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALEMT
STRINGENT
IN SCOPE
F021 Wastes (except wastewater and spent carbon from hydrogen chloride
purification) from the production or manufacturing use (as a reactant,
chemical intermediate, or component in a formulating process) of
pentachforophenol, or of intermediates used to produce its derivatives.
F022 Wastes (except wastewater and spent carbon from hydrogen chloride
purification) from the manufacturing use (as a reactant, chemical
intermediate, or component in a formulating process) of tetra-. penta-,
or hexachlorobenzenes under alkaline conditions.
F023........ Wastes (except wastewater and spent carbon from hydrogen chloride
purification) from the production of materials on equipment previously
used for the production or manufacturing use (as a reactant, chemical
intermediate, or component in a formulating process) of trl- and
tetrachtorophenols. (This listing does not include wastes from
equipment used only for the production or use of Hexachlorophene
from highly purified 2,4,5-trichlorophenol.)
F026 Wastes (except wastewater and spent carbon from hydrogen chloride
purification) from the production of materials on equipment previously
used for the manufacturing use (as a reactant, chemical intermecfiate,
or component in a formulating process) of tetra-, penta-, or
hexachlorobenzene under alkaline conditions.
F027 Discarded unused formulations containing trl-, tetra-, or
pentachlorophenol or discarded unused formulations containing
compounds derived from these chlorophenols. (This Bating does not
include formulations containing Hexachlorophene synthesized from
prepurified 2,4,5-trichlorophenol as the sole component)
F028 Residues resulting from the incineration or thermal treatment of
soil contaminated with EPA Hazardous Waste Nos. F020, F021, F022,
F023, F026, and F027.
(H)
(H)
(H)
.(H)
(H)
(T)
DISCARDED COMMERCIAL CHEMICAL PRODUCTS, OFF-SPECIFICATION SPECIES,
CONTAINER RESIDUES. AND SPILL RESIDUES
toxic "U" wastes
261.33m
January 14,1985 - Page 2 of 8
-------
RCRA REVISION CHECKUST 14: Dloxin Waste Listing and
Management Standards (cont'd)
ANALOGOUS
STATE ANALOG 15:
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
Note: Amend §261.33(f) by revising the hazardous waste numbers for the following substances:
Hazardous
Waste No. Substance
See F027 Pentachlorophenol.
See F027 Phenol, pentachtoro-.
Do Phenol, 2,3,4,6-tetrachloro-.
Do. Phenol, 2,4,5-trlchloro-.
Do Phenol, 2,4,6-tflchtoro-.
See F027 Propionic acid, 2-(2,4,5-trichk> raphe noxy)-.
See F027 Sllvex.
See F027 2,4,5-T.
• ••••••#
See F027. 2,3,4,6-TetrachioraphenoL
See F027. 2,4,5-Trichlorophenol.
Do.—.-.................... 2,4,6-TrichtorophenoL
Do... 2,4,5-Trichlofophenoxyacetic add.
APPENDIX III TO PART 261
ANALYTICAL METHODS
January 14, 1985 • Page 3 of 8
-------
RCRA REVISION CHECKLIST 14: Dloxln Waste Usting and
Management Standards (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
— - STATE ANALflB IS:
fcOUiV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
remove entry
chlorinated
dibenzodioxins
Table 1
add new entries
Table 1
Table 1 - Analytical Methods for Organic Chemicals Contained in SW-846
First Edition Second Edition
Compound Method Method
Chlonnated dibenzo-p-dioxins 8280
Chlorinated dlbenzofurans 8280
add new entrv
Table 3
Table 3 - Sampling and Analysis Methods Contained In SW-846
Title
First Edition
Section Method
No. No.
Second Edition
Section Method
No. No.
Analysis of Chlorinated
Dioxins and Dlbenzofurans.
.8.2
8280
APPENDIX VII TO PART 261
BASIS FOR LISTING HAZARDOUS WASTE
add new entries
AuoencBx VII
Auoendtx VII - Basis for Ustlno Hazardous Wastes
EPA Hazardous
Waste No.
Hazardous constituents for which fisted
F020 ... Tetra- and pentachtorodbenzo-p-tfoxJns; tetra- and pentachtonodibenzofurans; trl- and
tetnachlorophenols and their chloraphenoxy derivative adds, esters, ethers, amine and
other salts.
F021 Penta- and hexachtonxfiberzo-p-dloxJns; penta- and hexachlorocSbenzofurans;
pentachtorophenol and Its derivatives.
F022. Tetra-, penta-, and hexachtorodibenzo-p-dtodns; tetra-, penta-, and
hexachlonxfibenzofurans.
January 14,1985 - Page 4 of 8
-------
RCRA REVISION CHECKUST 14: Otoxin Waste Listing and
Management Standards (cont'd)
ANALOGOUS
STATE ANAloq is:
equiv-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
alent
STRINGENT
IN SCOPE
F023 Tetra- and pentachiorodibenzo-p-dioxins; tetra- and pentachlorodibenzofurans; tri- and
tetractilorophenols and their chlonophenoxy derivative acids, esters, ethers, amine and
other salts.
F026 Tetra-, penta-, and hexachtorodlbenzo-p-dioxlns; tetra-, penta-, and
hexachlorodibenzofurans.
F027 Tetra-, penta-, and hexachlonodlbenzo-p-dloxins; tetra-, penta-, and
hexachlorodibenzofurans; tri-, tetra-, and pentachlorophenols and their chlorophenoxy
derivative acids, esters, ethers, amine and other salts.
F028 Tetra-, penta-, and hexachlorodlbenzo-p-dtoxins; tetra-, penta-, and
hexachlorodibenzofurans; tri-, tetra-, and pentachlorophenols and their chlorophenoxy
derivative acids, esters, ethers, amine and other salts.
APPENDIX VIII TO PART 281
HAZARDOUS CONSTIT
UENTS
add new entries
Aooendlx VIII
Appendix VIII - Hazardous Constituents
hexachlorodlbenzo^p-dioxins
hexachlorodibenzofurans
pentachforodlbenzo-p-dloxins
pentachtorocflbenzofurans
tetrachtorodtbenzo-p-dloxins
tetrachlorodibenzofurans
APPENDIX X TO PART 261
METHOD OF ANALYSIS FOR CHLORINATED
D1BENZO-P-DIOXINS AND DIBENZOFUF
IANS
method 8280 1 Aooendlx X
|
See 50 FR 2001 - 2003 for method
PART 264 - STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS
WASTE TREATMENT, STORAGE. AND DISPOSAL FACILITIES
SUBPART I - CONTAINERS
January 14,1985 • Page 5 of 8
-------
RCRA REVISION CHECKLIST 14: Dioxln Waste Usting and
Management Standards (cont'd)
ANALOGOUS
STATE ANALflfl IS "
tuUIV-
MORE
BHOADEH
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
exception
264.175(c)
containment system
264.175(d)
SUBPART J - TANKS
INSPECTIONS
1 contingency plan
264.194(c)(2)
SPECIAL REQUIREMENTS
1 dioxln requirements
264.200(a)
SUBPART K - SURFACE IMPOUNDMENTS
dioxln reouirements
264.231 fa)
additional
reouirements
264.231(b)
SUBPART L - WASTE PILES
SPECIAL REQUIREMENTS
dloxin reouirements
264.259(a)
additional
reouirements
264.259(b)
SUBPART M - LAND TREATMENT
SPECIAL REQUIREMENTS
dioxin reouirements
284.283(a)
additional
reouirements
264.283(b)
SUBPART N - LANDFILLS
Januaiy 14,1995 - Page 6 of 8
-------
RCRA REVISION CHECKLIST 14: Dioxin Waste Listing and
Management Standards (cont'd)
STATE ANALOfl IS:
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
EQUIV-
ALENT
MWE
STRINGENT
BROADER
IN SCOPE
SPECIAL REOUIREME
SITS
dioxin reaulrements
264.317(a)
additional
requirements
264.317(b)
SUBPART 0 - INCINERATORS
PERFORMANCE STAN
DARDS
dioxin DRE
reauirements
264.343(a)
PART 265 - INTERIM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS
WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART A - GENERAL
PURPOSE. SCOPE. AND APPLICABILITY
dioxfn management I 265.1(d)(1)
SUBPART O - INCINERATORS
INTERIM STATUS INCI
NERATORS BURNING
PARTICULAR HAZARDOUS W
'ASTES
dioxin certification
265.352(a)
certification
standards
265.352(b)
SUBPART P - THERMAL TREATMENT
INTERIM STATUS THE
RMAL TREATMENT BU
RNING PARTICULAR HAZARC
JOUS WA5
5TES
dioxin certification
265.383(a)
certification
standards
265.383(b)
PART 270 • EPA ADMINISTERED PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT PROGRAM
January 14,1985 - Page 7 of 8
-------
RCRA REVISION CHECKLIST 14: Dioxin Waste Listing and
Management Standards (cont'd)
STATE ANALOG IS:
ANALOGOUS
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
SUBPART B - PERMIT INFORMATION
CONTENTS OF PART B
contingency plan 1 270.14(b)(7)
FACILITY SPECIFIC PART B INFORMATION
tanks
270.16(a)
surface imDoundments
270.17(1)
waste olles
270.18(1)
land treatment
270.20(1)
landfills
270.21 m
1 Note these changes were completely superseded by the July 14r 1988 (51 FR 25422) final rule
addressed by Revision Checklist 28.
January 14,1985 - Page 8 of 8
-------
1978 Federal Register / Vol. 50," No. 9 / Monday, January 14. 1985 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 261,264,265,270, and
775
(SWN-FRL 2701*3]
Hazardous Waste Management
System; Dioxln-Containing Wastes
agency: Environmental Protection
Agency.
action: Pinal rule.
summary: The Environmental Protection
Agency (EPA) is today amending the
regulations for hazardous waste
management under the Resource
Conservation and Recovery Act
(RCRA), by listing as hazardous wastes
certain wastes containing particular
chlorinated dioxins. -dibenzofurans. and
¦phenols, and by specifying n nagement
standards for these wastes. These
wastes are being listed as acute
hazardous wastes. Because of this
action, we are removing several
commercial chemical products from the
list of hazardous wastes contained in 40
CFR 2B1.33. since these listings are
duplicative. For the same reason, EPA is
revoking the regulation concerning the
disposal of 2.3.7.8-tetrachlorodibenzo-p-
dioxin (TCDD)-contarr.inated wastes
under the Toxic Substances Control Act
(TSCA) when the regulation under
RCRA becomes effective. The effect of
this rule will be to subject these dioxin-
containing wastes to the hazardous
waste regulations issued under RCRA.
dates: Effective date: The RCRA
hazardous waste regulation becomes
effective on July IS. 1985 while the
TSCA rule concerning the disposal of
TCDO-contammated wastes iB revoked
on July 15,1985.
Compliance dates: All persons
(including those who have previously
notified the Agency under Section 3010
of RCRA] who generate, transport treat
store, or dispose of the wastes listed
today are required to notify EPA or a
State authorized by EPA to operate the
hazardous waste program of their
activities under Section 3010 no later
than April 15.1085. Notification
instructions are set forth in 45 FR12746
(February 28.1980).'
' Under the Solid Waite Disposal Amendments of
1910 [Pub. L. 96-432 (October TL1980)). EPA w as
given the option of waiving the notification
requirement onder Section 3010 of RCRA. following
revision of the Section 3001 regulation*, at the
discretion of the Administrator. In this instance, we
believe that all persona handling or managing these
woatea need to notify the Agency because of U»
extreme toxicity of tbeae wastes. Therefore, off
persons, including those individuals who have
previoulsy notified EPA that they generate or
All existing hazardous waste
management facilities (as defined in 40
CFR 270.2) which treat store, or dispose
of wastes listed in these regulations and
which qualify to manage these wastes
under interim status under Section
3005(e) of RCRA must file with EPA or a
State authorized by EPA to operate the
hazardous waste program a notification
by April 15.1985 and a Part A permit
application by July 15,1S85. Facilities
which have already qualified for interim
status will not be allowed to manage the
wastes listed in these regulations after
July 15.1935 unless: (1) The regulation
allows them to handle such wastes
under interim sums, (2) they file a
notification with EPA or an authorized
State by April 15,1985 and (3) they
submit an amended Part A permit
application with EPA or an authorized
State by July 15,1985 (see 40 CFR
270.10(g)).
addresses: Public Docket: The public
docket for 40 CFR Parts 261.204,265.
and 270 is located in Room S-212A. U.S.
Environmental Protection Agency, 401M
Street SVV., Washington. D.C. 20460, and
is available for viewing from 9:00 ajn. to
4:00 pja, Monday through Friday,
excluding holidays.
The public docket for 40 CFR Part 77S
is located in Room E-107 at the same
address, and is available for viewing
during the same hours.
FOR FURTHER INFORMATION CONTACT:
RCRA Hotline, toll-free at (BOO) 424-9346
or (202) 382-3000. For technical
information contact: Dr. Judith S. Bellin,
Office of Solid Waste (WH-562B),
Environmental Protection Agency. 401M
Street SW„ Washington. D.C. 20480,
(202] 362-4787.
SUPPLEMENTARY INFORMATION:
I. Background
II. Summary of Regulation
Hi Wastes Subject to This Regulation
A. Wastes Containing Tetra- and
Pentachloro-dlbenzo-p-dioxins and
-dibenzofuraiu
B. Pentachloraphenol (PCP) Manufacturing
Wastes
1. Standards for Determining if Wastes
Are Acute Hazardous Wastes
2. Whether Wastes Pram the Production
and Manufacturing Use of
Pentachlorophenol (PCP) Should Be
Classified as Acute Hazardous Waste
3. Toxicity of PCP as a Measure of the
Wastes' Toxicity
4. Changing the Regulatory Status of
Discarded PCP Formulations
5. Alternative Basis for Establishing a 1
kg per Month Small Quantity Generator
(SQG) Exclusion Limit
handle other basardou* wastes, must notify EPA
that they are generating or handling these dtada>
wmUining waatea.
d. Regulation of wasies from equipment
previously used in production or
manufacturing use of PCP
C Wastes generated on equipment
previously used in the production and
manufacturing use of tri- and tetra-
chlorophenols
1. Scope of the Listing
Z Practicality of the listing
3. Economic Burden
4. Historical Documentation
D. Hexachlorophene Manufacturing Waste
IV. Management Alternatives and
Requirements
A. Land Disposal and Storage of These
Wastes
1. Management of Dioxin Waaies at
Interim Status Facilities
a. Prohibitions on Management
b. Interim status Facilities Allowed To
Manage these wastes
Z Requirement of a Waste Management
Plan
3. Prohibiting Land Disposal of These
Wastes
4. Secondary Containment ai Permitted
Tank and Container Storage Facilities
& Incineration of Dioxin-Contaminated
Wastes
1. Burning at Interim Status Incinerators
2. Burning at Fully Permitted Incinerators
a. Alternative DUE for Dioxin-
Contaminated Wastes
b. Requirements for Conducting a Trial
Bum for These Wastes
c. Special Notification to the Regional
Administrator
d. Periodic Compliance Tests
3. Amendments to Parts 264 and 285
C. Burning at Interim Status Thermal
Treatment Facilities
V. Relation of this Rule to Regulation of
TCDD-Contamina ted Wastes Under the
Toxic Substances Control Act
VL Comments on Other Issues
A. Development of a Toxicity
Characteristic for Defining Dioxin-
ContaminatBd Wastes as Hazardous
B. Discarded Unused Formulations
C Comprehensive Environmental
Response. Compensation, end Liability
Act cleanup activities
D. Other Wsstes Containing CDDs and
CDFs
E. Wastes Containing Other Halogensted
Dioxins and Dibenzoiurans
F. Small Quantity Generator Comments
G. Comments on Reuse and Recycling Issue
H. Applicability of the Mixture Rule
L Comments on the Analytical Method and
the Background Document
VIL Relation of this Regulation to Those
Promulgated Under CERCLA section
102(b) (Reportable Quantities]
VHL State Authority
DC Economic. Environmental, and Regulatory
Impacts
A. Regulatory Impact Analysis
B. Regulatory Flexibility Act
C Paperwork Reduction Act of 1980
X References
XL List of Subjects
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Federal Register / Vol. 50. No. 9 / Monday. January 14. 1985 / Rules and Regulations
1979
{. Background
Or. April 4.1983, SPA proposed to
amend the regulations for hazardous
waste management under RCRA by
liatin^ as acute hazardous wastes1
certain wastes containing particular
chlorinated dioxins. -dibenzofurans, and
•phenols, and by specifying certain
management standards Tor these wastes
(see 43 FR14514-14529). Some of these
materials already are hazardous wastes
under 40 CFR 281.33(f). a provision
which lists discarded commercial grade,
technical grade, off-specification
products, and discarded formulations
'.v hen the toxicant is present as the sole
active ingredient Since we proposed to
list these wastes as acute hazardous
wanes, we also proposed to delete
several commercial chemical products
; i.e.. £PA Hazardous Waste Nos. U212.
L'230. UZ31. U232. U233. and U242) from
(lie list of hazardous wastes contained
n 40 CFR 261.33(f) in order to avoid
listing the same waste under two
different (and inconsistent) provisions.
Finally. EPA proposed to revoke its
regulation concerning the disposal of
2.3.7.8-TCDD contaminated wastes
under TSCA when the RCRA regulation
becomes effective.
EPA requested comments on all
aspects of the proposed regulation. The
agency has evaluated these comments
and has accordingly modified the
regulations as well as the supporting
documentation. This notice finalizes the
regulation proposed on April 4,1983.
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1980
Federal Register / Vol. 50. No. 9 / Monday, January 14. 1985 / Rules and Regulations
Commenters did not seriously
challenge that production wastes
containing TCDDs and TCDFs were
properly listed. We therefore are
adopting these listings as final today.
Challenges to EPA's decision to list
wastes generated on equipment
previously used to produce wastes
containing TCDDs and TCDFs are
discussed in Section C. of this section of
the preamble.
Several respondents, however, did
comment on EPA's use of structure/
activity relationships in its decision to
list all CDDs and CGFs as toxicants of
concern, stating ihat it is not
scientialua!Iv valid to consider all the
CDDs ar.
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Federal Register / Vol. 50. No. 9 / Monday. January 14, 1985 / Rules and Regulations
1981
HxCDFs (USEPA, 1973). As discussed
below (Section QL B. 3.), these levels are
of regulatory concern.
Several coounenters disputed EPA's
determination that the two HxCDDs are
carcinogenic. They submitted an
expert's review of the bioassay
conducted by the National Cancer
Institute (NCI) of a mixture of two
HxCDDs (Squire. 1983).* The expert
reviewer reported a lower incidence of
neoplastic nodules in female rat3 than
that reported by NCI (and originally
accepted by EPA}. He evaluated several
of the lesions diagnosed as tumors by
NCI as non-neoplastic regenerative
nodules, but concluded that there is
"equivocal" evidence that these
HxCDDs are potential human
carcinogens.
As a result of these comments,
scientists from EPA'a Carcinogen
Assessment Group (CAG) and the
National Toxicology Program (JVTP)
have reviewed both the reviewing
expert's comments and the underlying
data [histology slides] gathered in the
original NCI study. Their re-evaluation
confirms the original conclusion that
there is sufficient evidence that the
mixture or HxCDDs studied by NCI is
carcinogenic as indicated by a
statistically significant increased
incidence of liver tumors in female rats
and in mice of both sexes [Haberman
and Bayard. 19M; Hildebrandt. 1983.
McGaughy, 1964). This review led EPA
to estimate that the carcinogenic
potency of the two HxCDD isomers
ranged from 0.59 (male rat] to It (male
mouse) per jtg/kg/day.The CAG
recommended that &2 per pg/fcg/day.
derived from hepatocellular carcinoma
and adenoma data in the mate mice and
female rats (the test systems in which
the response was most strongly evident)
be used as the best estimate of the upper
limit potency estimate for KxCDD
(McGaughy. 1984).
Even the lowest of these estimate*
however, makes HxCDD one of the most
potent cudnogena identified by the
Agency. For example, this mixture of
HxCDDs. although about Via as potent
as TCDD. is as potent a carcinogen as
' Aflatoxin Bi (a well recognized potent
carcinogen), and is about a thousand
times more potent than ethylene
dibromide (EDB).
Commenters also submitted an
epidemiologic study of the effects of
several chemical preservatives,
including PCP, on the health of
woodworkers, as evidence that no
deleterious health effects can be
'Thit mvhw traf mbmftted Mil after the clow
of the comment period bot the Agoney chine to
rcnuidor il u put of the rulemaking record.
ascribed to these chemicals (AW PL
1983).14 EPA reviewed this study, and
notes that it has severe limitations
(Erdreich, 1983; Ris. 1983). First, a cross-
sectional study design is not a suitable
method for detecting b cancer effect
because in such a study persons with
cancer who are currently employed are
not likely to be identified as having the
disease. In addition, other deficiencies
were pointed out war- small sample
size: insufficient follow-up period
following the onset of exposure; and
lack of exposure definition. EPA.
therefore, concludes thai the submitted
epidemiological study ia not adequate
for assessing the presence or absence of
a cancer risk or other health effects in
wood treaters exposed to PCP (Erdreich.
1933; Ris. 1983). In addition, reports have
been accumulating in the open literature
which indicate that workers in
occupations associated with PCP
exposure are at increased risk of nasal
and nasopharyngeal cancer, stomach
cancer, and non-Hodgkins lymphoma
(Grufferman et a!., 1978: Bishop and
jones. 1901; Hardell et al., 1982:
Gallagher and ThrelfalL 1984). Since
these are reports of studies of
occupational exposure, it is of course
unclear whether the eliologic agent is
PCP or its associated CDD or CDF
impurities. However, these reports
reinforce EPA's decision regarding the
capability of these wastes to cause or
contribute to serious irreversible, or
incapacitating reversible, illness.
Several commenters also suggested
that the toxicity of HxCDDs at the levels
found in PCP are not of regulatory
concern. The commenters argue that,
because (he amount of HxCDDs which,
they estimate, is contained in the
median ret lethal dose of PCP is less
than the teratogenic lowest observed
effect level (LOEL) noted for HxCDDs.
EPA should be more concerned with the
acute toxicity of PCP than with the
chronic toxic effects of its HxCDD
contaminants. They further state that no
increased risk of oncogenicity will result
from HxCDD exposure resulting from
exposure to PCP at its NOEL for
reproductive effects.
EPA disagrees with these statements.
When we consider cancer, daily
exposure even at one hundredth of the
LDm of PCP containing IS ppm of
HxCDDs would result in exposure to 18
ng HxCDD/kg/day." Lifetime exposure
"This review alto *u lutunHtrf *<11 after the
cIok of the pubUc comment period, but the Agency
agaia chott to considar it *s part of Uw cultfMking
record*
11 Vim x LDW x IS ppm HxCDD/PC? x I/body
weight •l#"1 x 120 mg PCP/kg/day > (IS x 10"'
mg KxCDOfmg/PCPf x to'qg/mg « 18 ng
HxCDD/kg/d - OOlSpg HxCDD/kg/day.
at this level could entail a potential
excess cancer risk as high as one in a
hundred. With respect to reproductive
toxicity, the Allowable Daily Intake
(ADI) is estimated &b one hundredth
(NAS, 1977] of the reproductive NOEL
or 1 ng HxCDD,'kg^day. Someone
exposed to a dose approaching die
median LDm established in the rat (120
mg PCP/kg/day] therefore would
receive a dose 1800 "times larger than
the ADI anticipated for die reproductive
effects of HxCDD. Therefore, the
reproductive effects of HxCDD
potentially occur at doses three orders
of magnitude lower than those at which
the lethal effects of PCP are expected.
Additionally, the levels of HxCDDs in
PCP wastes are of concern in terms of
the potential for serious harm if they are
released to water or air. either in soluble
form, or absorbed to soil particulates.
Based on its carcinogenic potential, the
Water Quality Criterion for 2.3.7.3-
TCDD has been set as 10"* -10" Vs/'
(USEPA, 1984b). Since a mixture of two
HxCDDs is about 4-% as potent a
carcinogen as TCDD (McGaughy. 1964).
and because the water solubility, soil
sorption characteristics, and
bioaccumulation potential of HxCDDs
and TCDD are very similar (see
Background Document for this listing),
an appropriate estimate for a similar
criterion for HxCDDs is about 25 times
as laige as that for TCDD. v/2_
10"T-10"* fig/1. This value is a
minuscule fraction [10"1Q) of the
concentration of HxCDDs in the PCP
wastes.
We therefore conclude that the
potential toxicity of HxCDDs at the
levels Tound in PCP.are of regulatory
concern and that these wastes contain
significant concentrations of potent
carcinogens. These wastes therefore
meet the criteria of 40 CFR 2Ql.ll(a|(2),
justifying the listing or these wastes as
acute hazardous wastes.
3. Toxicity of PCP as a Measure of the
Wastes' Toxicity
One commenter noted that PCP.
which is contaminated with
carcinogenic HxCDDs. was not
carcinogenic in several bioassays. and
therefore questioned the Agency's
conclusion that the two HxCDDs are
potential human carcinogens.
We do not believe that the PCP
bioassays are adequate to support a
conclusion concerning the potential
carcinogencity of PCP and HxCDD-
containing wastes. The carcinogenic risk
"BxpotuntADI » ltSxUr*mgH*£D&fm*P(
xlSDmgPCP/kg/d x lOftng/ag] /1 nghKCDpf
kg/day * IBM.
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1982 Federal Register / Vol. 50, No. 9 / Monday, January 14, 1985 / Rules and Regulations
of PCP containing ppm concentrations of
HxCDD is not expected to give positive
results at the dosages used in these
bioassays. At the lowest dose used in
the HxCDD oral bioassay (1.25 ug
HxCDD/kg/day), tumor rates of 0 and
20°b were noted in groups of 50 female
and male Osborne Mendel rats
(USDHHS, 1980). For a dose of 0.3 ug
HxCDD/kg/day (the amount of HxCDD
contained in the highest PCP dose used
in the PCP study) a 0-5% response rate
would be expected in the same rat
strain. This rate is far too low for
reliable detection. Moreover, the two
best PCP bioassays (USDHHS. 1980 and
Schwetz. 1978) were conducted in rats of
different strains, that may differ in
response. A review of these and other
PCP bioassays also noted procedural
deficiencies, such as an inadequate
observation period, the use of only one
animal species per test and inadequate
numbers of animals (Williams, 1982).
Therefore, we believe that these studies
do not permit a conclusion as to the
potential carcinogencity of PCP. In
addition, as outlined above, there Hre
several reports showing increased
cancer risk (of unknown etiology) in
occupations associated with PCP
exposure. Moreover, the fact that
HxCDDs are potential human
carcinogens of very high potency
renders them of great regulatory
concern.
We therefore conclude that, because
these wastes contain the potent
carcinogen HxCDD at levels of
regulatory concern, they meet the
criteria of 40 CFR 281.11(a)(2). and are
properly listed as acute hazardous
wastes.
4. Changing the Regulatory Status of
Discarded PCP Formulations
Several respondents commented that
EPA does not have the authority to
regulate tetra- and pentachlorophenol
containing wastes as acute hazardous
wastes. TheBe persons called attention
to prior RCRA rulemaking involving
these compounds.
More specifically, in the hazardous
waste regulations published on May 19.
1980. PCP was listed as an acute
hazardous waste (S 261.33(e)) because
the Agency was under the mistaken
impression that its oral LD50 in the rat
was less than 50 mg/kg. When this error
was pointed out, the Agency's
determination was rectified and PCP
was listed as a hazardous waste under
S 261.33(f) (see 45 FR 78533. November
25.1980). However, EPA's evaluation
considered only the acute oral toxicity
of PCP, and did not consider its known
contamination with CDDS and CDFs. It
would not be in the best interests of the
public if EPA allowed a previous
determination to go unaltered when
additional data show that prior
rulemaking was in error. Thus, the
regulatory classification of PCP was
initially rectified when data seemed to
warrant it. In the current regulation, that
status is once more changed, because
reconsideration of additional data
warrant such action.
5. Alternative Basis for Establishing a 1
kg per Month Small Quantity Generator
(SQG) Exclusion Limit
In response to the arguments that
these wastes are not acute hazardous
wastes, we note that we also have an
alternative (and independent)
justification for a small quantity
generator limitation of 1 kg per month
for these (PCP) wastes. Under
S 261.11(c) of these regulations. EPA
may consider the criteria for listing
contained in { 261.11 (a)(2) and (a)(3) of
the regulations to establish small
quantity generator limitations for
particular wastes that are lower than
1000 kg per month. EPA will do this
where "the general exclusion limits
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Federal Register / Vol. 50, No. 9 J Monday, farmery 14, 1985 / Rules and Regulations 1983
to other products; in many cases, these
toxicants have been found to remain in
the wastes years after production
shifted. In addition, there is a history of
environmental contamination resulting
from these contaminated equipment
wastes at such places as Verona.
Missouri, to justify these regulations.
Furthermore, there is precedent for
listing these wastes in that some of them
are currently regulated under 40 CFR
Part 775, a regulation issued under
Section 6 of the Toxic Substances
Control Act (TSCA). based on a finding
that unregulated disposal presents an
unreasonable risk of injury to health or
the environment.
Nevertheless, a number of
commenters questioned the scope and
practicality of the regulations and
suggested several changes.
1. Scope of the Listing
(a) Several commenters felt that the
proposed definition of EPA Harardous
Waste No. F022 was broader than
intended by EPA. In particular, they
indicated that EPA Hazardous Waste
No. FOZ1 refers only to the
manufacturing use of certain
chlorobenzenes under alkaline
conditions, but does not cover the actual
production of the compounds
themselves. These commenters argue
that the proposed listing of F022 refers
to wastes from the production of
materials on equipment previously used
for the production or manufacturing use
of materials listed under FOZO and
F021. Thus, the commenters believe that
there is an unintended inconsistency in
the rules as proposed.
In reviewing these comments, we
agree that the proposal erroneously read
to include wastes generated on
equipment once used to produce ~
chlorobenzenes. Therefore, we have
modified the listing to make it clear that
the listing only applies to wastes from
equipment used previously in the
manufacturing use of designated
chlorobenzeneB (under alkaline
conditions) ;5ee new hazardous waste
listing FG26)
(b) One commenter argued that the
effect of the contaminated equipment
listing is extremely broad, and indicates
that, while it is not explicitly stated,
storage, treatment and disposal
facilities that have ever managed these
chlorophenols and chlorobenzenes will
be deemed to be part of the "equipment"
used to manufacture these products, and
thus, be covered under this listing.
Consequently, they argue that all waste
management facilities in this category
would be shut down until full permit
status is achieved.
We disagree with the point made by
the commenter. As currently drafted,
and as discussed in the supporting
documentation, this listing applies and
is only meant to apply to equipment
used in the actual production or
manufacturing use of the appropriate
products {i.e., reactor vessels,
distillation columns, filtration
equipment etc.). and does not apply to
equipment used by waste management
facilities (/.«., treatment storage, and
disposal facilities). The existing TSCA
rule (40 CFR 775.183(g)) is likewise so
limited. The commenter raises a valid
point, however, that needs to be
investigated to determine whether the
listing should be expanded. EPA will,
therefore, investigate the extent of
dioxin contamination in wastes (e.j..
incineration residues) generated from
waste management facilities that
previously managed these dioxin
wastes. However, until these
investigations are completed and a
decision is made, this listing will only
apply to wastes generated on equipment
used as part of the actual production
process.
It has also been argued that like the
wastes that are generated from
manufacturing operations—namely, the
production and manufacturing use of tri-
and tetrachlorophenols—that have
become contaminated from past
production or use. the equipment on
which these wastes were generated (/.«..
reactor vessels, product storage tanks,
etc.) when they are taken from service
and scrapped (rather than cleaned)
should likewise be regulated under
RCRA. In fact extensive TCDD
contamination at a scrap metal salvage
facility in Newark (NJ) has been traced
to the presence of scrapped reaction
vessels which, it is thought were once
used for the production of 2.4.5-T. Scrap
metal wipe samples, taken many years
after the equipment has been scrapped,
showed extensive contamination: 230 ng
TCDD/m* at the surface of a lane
reaction vessel in the center of a waste
pile. Soil adjacent to cut larks contained
about 3 ppm of TCDD. and low ppb
concentrations were detected is
surrounding properties (USEPA. 1984).
Although situations such as these are of
great concern to the Agency, we have
decided not to list this equipment even
if discarded, as hazardous (or acute
harzardous) waste at this time. EPA has
very limited information to define, on a
generic basis, ail equipment which at
one time was used to produce trt- or
tetrachlorophenols as hazardous (or
acute hazardous) waste under RCRA.
However, as is the case for residues
which are generated From waste
management facilities, EPA plans to
study the extent of environmental
contamination from this equipment if it
were discarded prior to
decontamination. Once these
investigations are completed, we will
take the appropriate regulatory action.
(c] One commenter argued that the
regulation regarding contaminated
equipment waste should be limited to
equipment used during the actual
synthetic process and the subsequent
purification procedures- since these
wastes would tend to have the highest
concentrations of CDCs and CDFs. The
commenter also suggested that EPA
should specifically exclude equipment
used for subsequent handling of
products in ways which are nut
expected to generate additional CCDs or
CDFs.
We cannot agree that the listing
should be limited in this way. While it is
true that wastes generated on equipment
used in synthesis or purification are
expected to contain CDDs and CDFs in
concentrations several orders of
magnitude higher than in waste
generated on equipment used only for
formulation. (/.&. several hundred ppm
vs. several ppm), the latter levels are
still of regulatory concern. Accordingly,
EPA has decided that all wastes that are
generated on equipment which has.
become contaminated from previous
manufacturing operations must be
managed as acute hazardous wastes,
unless a delisting petition establishes
that a particular waste is not of
regulatory concern or should not be
considered an acute hazardous waste.
2. Practicality of the Listing
Several commenters questioned the
reasonableness of listing as hazardous,
wastes that are generated on equipment
that may, at any time in the past, have
been used in processes generating CDDs
or CDFs. They argued that such a listing
is not necessary since current cleaning
practices (i.e., triple rinsing or other
equivalent cleaning methods] will
ensure that any wastes generated front
such equipment will not be
contaminated They, therefore, suggest
that a person be allowed to make such a
demonstration. They believe that such a
showing could be accomplished by
demonstrating that the equipment has
been adequately cleaned (e.g.. by vapor
phase degreasing. solvent washing, etc.),
or by testing the waste to determine if it
contains significant concentrations of
CDDs/CDFs. (The commenters.
however, did not indicate how such a
demonstration of adequate cleaning
would be made, short of testing the
waste.) One commenter felt in any
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1984 Federal Register / Vol. 50. No. 9 / Monday, January 14. 1985 / Rules and Regulations
event, that after some time period during
which the equipment has been in
another use, the equipment should
automatically be considered to no longer
be contaminated with CDDs/CDFs. In
particular, they suggested a reasonable
time period would be three years, as it is
common for industry tfi retain records
for this time period.
EPA agrees that persons should be
allowed to demonstrate that their waste
is no longer contaminated with CDDs/
CDFs. However, we believe the only
way to make this showing is by testing
the waste and submitting an exclusion
petition (commonly referred to as
"delisting") under 40 CFR 260.20 and
260.22. These procedures have been in
use for several years, and we see no
reason to set up a special set of
procedures. There is no difference
between a petition making such a
demonstration for these wastes, and
petitions to exclude any other waste
from the hazardous waste regulations,
or petitions to change the regulatory
status of a waste from acute hazardous
to hazardous.
We do not believe, however, that a
showing of equipment cleanliness could
easily be made by evaluating the
concentration of CDDs and CDFs in
equipment rinsate. Such a showing
would be very difficult, if not
impossible, to make without knowing a
great deal of detail for each equipment
train, such as its size and complexity,
and the amount of rinsate that was used.
Even knowing this information,
however, may not suffice, because of the
many factors that need to be considered
to set a standard for CDD/CDF •
"cleanliness". For example, large
equipment trains are difficult to rinse,
and the concentration of CDDs and
CDFs in the rinsate would depend in
part on the amount of solvent used;
compliance would therefore be difficult
to determine.
In an effort to get additional
information on this option, however, we
requested the commenter (and several
other industrial entities) to provide the
Agency with data showing in what
manner, and to what extent adequate
decontamination of manufacturing
equipment might be achieved and
demonstrated. We did not obtain a
response. Additionally, experience
indicates that decontamination is. in
fact, veiy difficult, even if strenuous
attempts are made (see, for Instance.
Eleiberg, 1964; Goldmann, 1973;
Dalderup, 1978; Fishbein, 1982; Sambeth.
1983).
We likewise do not believe that
enough information is available to set a
time period after which wastes that are
generated on previously contaminated
equipment should be deemed non-
contaminated. Quite the opposite: recent
sampling and analysis at a facility
which used 2.4,5,-TCP almost eight years
ago showed ppb concentrations of
TCDD in still bottoms from 2,4-DCP
manufacture (where the presence of
2&7.8.-TCDD in such concentrations is
not expected, absent contamination
from an outside source). We also
requested further information from those
commenters who made this last point
{i.e., set a time period after which the
waste is no longer considered to be
contaminated with CDD's/CDFs);
however, no response was returned,
indicating a lack of information to
justify setting any time period at this
time.
3. Economic Burden
Several commenters argued that this
listing will result in economic hardship
by requiring premature discarding of
"contaminated" equipment especially to
those who prudently cleaned and are
reusing the equipment. They believe that
such a requirement bears no
relationship to whether or not any
contaminants may be present and would
preclude the use of some very
sophisticated and expensive equipment
to establish the absence of hazards in
wastes that they claim would present no
risk.
We disagree with these comments. As
discussed above, generators who have
cleaned their equipment can show by
analysis of their wastes, and a delisting
petition, that their wastes do not contain
the toxicants of concern at levels that
are of regulatory concern. Generators
also can dispose of the wastes
generated on this equipment as ocute
hazardous wastes, rather than
discarding the equipment (i.e., nowhere
in this regulation does the Agency
• require (or even suggest) that existing
production equipment must be scrapped
and discarded). In any case, a regulatory
impact analysis conducted for this
regulation (see Section IX. A. below) has
convinced us that its economic burden
will be modest. The details of this
analysis are discussed in Section IX. of
this preamble.
4. Historical Documentation
Aa part of the proposal the Agency
also solicited comments on the
appropriate recordkeeping time periods
and types of historical records that
should be considered adequate for a
showing that equipment was not used
for processes generating CDDs/CDFs.
Several commenters suggested that
thrA to four years should be set as the
typical document retention period.
Otherwise, they argue, the approach will
not have much utility, since most
corporations will not have the records
necessary to make the requisite
showing. Regarding the types of records
that should be considered adequate,
they suggest that production process
and product records would supply the
necessary information.
In requesting comments in this area.
EPA was concerned as to how a
generator could legitimately know
whether the equipment in question was
previously used in these processes If
records are kept for only three to four
years, as claimed by the commenters. a
generator could question how this
regulation could be enforced, i.e., will
every generator be required to test their
waste to determine whether it is
contaminated with CDDs/CDFs if
records are not available?
Upon re-evaluation of this point, we
now believe this to be much less of a
problem than originally thought. More
specifically, as part of its preliminary
investigations conducted as part of the
dioxin strategy. EPA has identified most,
if not all. of the manufacturers and
formulators of tri- and
tctrachlorophenols and their derivulives
from the list of registrants who have
notified the Agency, under the Federal
Insecticide. Fungicide, and Rodenticide
Act (FIFRA). In addition, the Agenrv.
through its Regional Offices, has
contacted many of these companies to
verify the Agency's information.
Therefore, we believe that those
companies who once made these
products, and who still use the
equipment, will most likely know thai
this regulation applies to them. The
same is true for those who bought
equipment from companies that
produced or formulated tri- or
telrachlorophenols (or their derivatives),
and who knew what type of equipment
they bought (i.e.. these buyers know thai
this equipment is contaminated with
CDDs and CDFs. and that the resultant
wastes are regulated under RCRA).
Therefore, the only group of persons
who may not know that the wastes (hey
are generating are regulated under these
dioxin rules arc those who unknowingly
bought equipment used to produce or
formulate tri-or telrachlorophenols or
their derivatives. This group of
individuals may have difficulty in
knowing that they are subject to the
regulations. However, as indicated
above, the Agency has been able to
identify most, if not all. companies that
produce or formulate these products.
Therefore, any person who suspects
that he may have equipment that is
contaminated with CDDs or CDFs
should contact EPA for further
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Federal Register / Vol. 50, No. 9 / Monday. January 14, 1985 / Rules and Regulations
1985
information. In any event, this list will
be useful for any person wishing
verification that they are generating
jioxin-contaminated wastes. It should
also be noted that some of these persons
should already be aware of this
contamination, since they have been
subject to the TSCA rule since May
1980.
D. Hexacftlarophene Manufacturing
Wastes
One commenter believes that CPA
had approximately excluded wastes
from the production on
Hexschlorophene (HCPJ synthesized
from highly purified 2,4.3-TCP from the
proposed FQ20 listing," but added that,
because CDDs and COFs are not
generated in that process. HCP
production and formulation wastes
should similarly be exempted from the
proposed F02Z and F023 hazardous
waste listings.
EPA agrees with the commenter that a
similar exception is warranted in cases
where such HCP is the only ingredient in
the discarded formulation. The
regulatory language has been changed to
reflect this point. It should also be
noted, however, that HCP is itself toxic.
Therefore, we anticipate listing HCP
manufacturing wastes and discarded
formulations which contain HCP as
hazardous wastes at some future date.
fV. Management Alternatives and
Requirements
A. Land Disposal and Storage of These
Wastes
The Agency proposed a degree of
hazard approach for these wastes. In
light of their inherent danger and
previous poor management history. EPA
proposed that these wastes be
prohibited from being managed at most
types of interim status facilities, and
that land disposal be conducted
pursuant to additional special standards
implemented during the course of the
permit proceeding. We also requested
comment as to whether incinerators,
and tank and container storage facilities
should be subject to additional
management standards when they
manage these wastes. This section of
" EPA has »<* emitted ft* decision not to ttai
these waste* u acute hazardous wastes. and has
developed an engineering analysis for this process.
(The document (which contains Confidential
SuauM** ioforeiattaal la available in die docket for
this rula making ) Bawd or this analysis. the
Agency believes (hat wastes bom the production of
HCP tyruhejlied bom highly purified tU-TCT
prepared by the usual routa couid contain TCODs.
However since ihero are no present producers of
HCP using this routa. the waatat from HCP
production are not Mated. Dm Agency is aware o! a
new mute of tyn thesis tar ju .J-TCP during which
no COO* or CDFa are farmed I CGI information).
the preamble describes the comments to
these proposals, and the Agency's
response and changes in approach made
in response to comments.
We also note that all of these wastes
are specifically identified as candidates
for being banned from land disposal in
two years under the H5WA (See RCRA
amended Section 3004(e)). Thus, the
following discussion describes an
interim regulatory regime, insofar as it
pertains to land dispoBal-of these
wastes.
1. Management of the Dioxin Wastes at
Interim Status Facilities
a. Prohibitions on Management.
Several comments related to EPA's
decision prohibiting the management of
CDD- and CDF-containing wastes at
land disposal, incinerator, and open pile
storage interim status facilities. Several
commenters suggested that interim
status facilities that are properly
equipped and managed {/.e., that meet,
the Part 264 standards) should be
allowed to manage these wastes. Other
commenters suggested that the proposed
rules should be changed to allow the
incineration of dioxin wastes in interim
status incinerators that have approval,
under TSCA, to burn PCBs. This
suggestion was put forth since the
process of gaining fully permitted status
under RCRA would take some time. The
commenters. therefore, fear that the
requirement in the proposed rule would
lead to a shortage of available
management capacity.
The Agency continues to believe that
for these wastes, management in fully
permitted facilities is preferable due to
the extreme toxicity of these wastes, the
persistence of the toxicants of concern,
and the wastes' mismanagement
history." At the same time, the Agency
is concerned about possible shortages in
short-term management capacity for
these wastes. We thus reject the
suggestion that these wastes should be
prohibited from all Interim status
facilities. We believe that certain types
of interim status storage facilities can
provide adequate management in the
short term. Other interim status
facilities, we think, can be evaluated for
compliance with the Part 264 standards
without undue administrative
complication, and so also should not be
prohibited from managing these wastes.
We do not believe, however, that
interim status land disposal facilities
should be allowed to manage these
wastes. (Then it one exception, for
"We an. however, allowing the residue resulting
from the incineration or thermal treatment of
dionin-cootaminaled anil to go to interim nam*
facilities. See Section VI.C 'or discussion.
interim status impoundments in which
these wastes are generated.) Not only
are the interim status standards
insufficient to prevent an unreasonable
risk (see-45 FR 32062). but it is very
difficult to evaluate these facilities for
compliance with the Part 264 standards
in the absence of a permit proceeding,
because, under today's rule, land
disposal facilities must seek approval of
a waste management plan.
The only interim status facilities that
may accept these wastes are: (a)
Impoundments holding wastewater
treatment sludges that are created in
those impoundments as part of the
plant's wastewater treatment system,
(b) waste piles that meet the
requirements of 1284.250(c) (referred to
in this preamble as "enclosed waste
piles"), (c) tanks, (d) containers, (e]
incinerators if certified, and (f) thermal
treatment units subject to regulation
under Subpart P of Part 265. if certified.
(See next Section for more detailed
discussion.) However, we believe it
appropriate to discuss here the
management of sludges in
impoundments in which the waste was
created.
For surface impoundments, the
Agency has determined that this is a
situation when a distinction between
new and existing facilities may
permissibly be drawn. (See RCRA
Section 3004 and 48 FR 14519). If the
Agency were to ban all interim status
impoundments from managing these
wastes, facilities generating wastewater
treatment sludges in impoundments
wouid have to build and receive a
permit for new capacity before they
could legally manage these wastes. As a
practical matter, this would require
halting the manufacturing process for
some undetermined period of time. Hie
short-term management of these sludges
in interim status impoundments could be
protective, since the CCDs and CDFs
will adsorb to the sludges, and other
mobilizing organics wilt be present in
these wastes at low concentrations due
to dilution and biological treatment
(USEPA. 1982)."It should also be noted
that these facilities also mtist obtain a
Part 204 permit (which includes
compliance with the waste management
plan), so that management at these
impoundments will be upgraded as part
of the permitting process. This could
" Qua facility, thai used to produce PCP.
estimated that process wasttwatsr could contain
various chloropbeools at <100 to > 1000 ppm.
However, these data an estimate! submitted v
Agency, and were not verified by sampling am
analysis. Because they differ greatly from taptpi.
da to at other facilities, they are tudged to be too
unreliable for use in the present context.
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Federal Register / Vol 50. No. 9 / Monday. January 14, 1985 / Rules and Regulations
result for example, in a requirement
that the Impoundment not be allowed to
receive Ave wastes unless tt U lined, if
the permit writer concludes that '.here is
potential for leaching from the
impoundment (See text at FN SC below.)
Thus, interim status impoundments in
which these wastes are generated might
not be able to continue receiving these
wastes indefinitely, in addition, under
the new Legislation, within four years
these impoundments must be upgraded
to meet the technical permitting
standards for new surface
impoundments [subject to certain
enumerated exceptions). See KCRA
amended Section 3005(j). (These
impoundments, however, wilt not he
immediately prohibited from receiving
these wastes as a result of this role.} In
light of all of these circumstances, we
have decided to allow surface
impoundments in which wastewater
treatment sludges are generated to
continue to manage these sludges.
The suggestion that land disposal
facilities which meet the requirements
for fully permitted facilities be allowed
to handle these wastes is reasonable
only in theory. The evaluation process
presently needed to ascertain whether a
facility meets the requirements of Part
284 would need to be thorough, and EPA
judged that, in terns of necessary
documentation and public participation,
the process of ensuring this fact would
be equivalent (m virtually equivalent) to
the evaluation needed lor issuing a Part
284 permit This is particularly true for
preparing and evaluating the waste
management plan. This plan must be
discussed with the permit writer, there
ia no way a facility can be evaluated in
advance to determine if they meet this
standard. EPA thus believes that there ia
no reason for either applicants or EPA to
go through the permitting process twice.
We generally agree that allowing
these wastes to be disposed of only at
fully permitted facilities (except as
discussed below} will, in the short term,
lead to a shortage of facilities able to
handle these wastes. This problem will
be alleviated, as is the ease at present
by the possibility of storage in tanks,
containers, or enclosed waste piles at
interim status facilitiea. Such storage
will not in the short term be harmful to
human health or the environment and
will reduce the pressure to permit a
facility to handle these wastes
immediately without a full evaluation of
the facility's performance. Interim statu
incinerator* will also be allowed to bunt
these wastes if they can demonstrate
compliance with the performance
standards far hilly permitted
incinerators (including destruction and
removal of prtncipel organic hazardous
constituents in the waste). Likewise,
interim status thermal treatment units
can also be approved to handle these
wastes."The Agency also may issue
emergency permits (see 40 CFK 270.61}
to facilities to store these wastes in
situations where there is no other
realistically available management
capacity. For example, if no
management capacity is available
following a dioxin waste clean up. an
emergency permit could be issued to a
facility if the alternative is to leave the
wastes in place ia an uasecure setting.
8. Interim Status Facilities Allowed Tv
Manage These IVastes
Two persons commented on EPA's
proposal to allow interim status
facilities to handle these wastes. One of
them stated that the Agency should, at a
minimum, require submission of a Pan 3
application; a demonstration, with
respect to surface impoundments, thai
the wastes will not migrate: and
notification to the Regional
Administrate! on the pari of interim
status facilities handling such wastes."
The coamenter further stated that
management in un lined impoundments
should not be allowed, la View of the
fact that we will require a waste
management plan for fully permitted
land disposal facilities. onecorameDter
also questioned how EPA can allow
interim status land disposal facilities to
handle these wastes.
As discussed above, EPA agrees that
for these wastes, management at fuily
permitted facilities is preferable.
However, as outlined above, pragmatic
as well as environmental considerations
motivate the Agency to allow interim
status facilities to manage some of these
wastes for an Interim period under some
conditions.
In the case of surface Impoundments
in which the wastewater treatment
sludges are generated, we have
determined that the manufacturing
facilities now generating the listed
wastewater treatment sludges would
probably have to dose down until they
"Tha Agaoey su» prevtd* mm lagri awana of
ImiiB'ini tfeaag matenala irfcita
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Federal Register / Vol. 50. So. 9 f Monday, January 14. 1985 / Rules and Regulations 1387
receive these wastes. (Examples are
pyrolysis units not designed as
incinerators.] These units will be .
evaluated the same way as interim
status incinerators, and, thus, must be
certified as meeting the applicable
performance standards" in 5 284.343
(including the 99.9999* DRE for POHC's
in the waste). Procedures for obtaining
certification likewise wilt be the same
as for interim status incinerators.
Another reason for allowing these
interim status thermal treatment
facilities to receive these wastes is thai
there are presently no Part 264 permit
standards for these facilities. A
prohibition on'interim status facilities
consequently, would prohibit these
facilities from receiving these wastes at
all. This result is unwarranted since a
means exists to evaluate their
compliance with the most important
environmental standard, and these
facilities may prove to be one oi the
optimal means of managing these
wastes. Managing these wastes at these
types of interim status facilities is
therefore judged to present minimal
risks until final permits are issued.
Several commenters stated that
interim status facilities should be
allowed to handle wastes containing
PCP, since these wastes do not contain
TCDD. other CDDs do not pose
substantial risks of chronic or acute
toxicity, and there is no history of
mismanagement of these wastes.
We generally agree that wastes
derived from the production or
manufacturing use of PCP are unlikely to
contain 2.3,7,8-TCDD or other TCDDs or
TCDFs at levels of concern. These
wastes, however, are likely to contain
high concentrations of HxCDDs and
UxCDFs—the PCP in these wastes is
contaminated with these potent
carcinogens. While we agree that these
congeners are less toxic than 2.3.7.6-
TCDD, we believe them to be
sufficiently toxic to warrant the
designation of wastes containing these
substances as acute hazardous wastes.
(The reasons for this determination were
outlined earlier in this preamble.)
In additioa there is a substantial
history of mismanagement of wastes
(including spilled or abandoned
formulations) resulting from the use of
PCP in wood treatment processes. These
wastes, or very similar wastes, have
been mismanged repeatedly, causing
very serious damage incidents. There
have been many actions under RCRA
and CERCLA involving wood treatment
facilities using PCP solutions and wood
preservation wastes: in addition, there
are 22 damage incidents involving these
chemicals at sites on the National
Priorities List for Actions under
CERCLA. These mismanagement
incidents (outlined in the revised
Background Document for this listing)
include discharge of process wastes into
off-site drainage ditches, storage (in
most cases for many years) of such
wastes in impoundments which were
improperly sited, Improper storage of
treatment solutions in leaky tanks and
containers, etc. These mismanagement
incidents resulted in PCP contamination
of soil, surface water, and ground water,
in several instances, (his contamination .
was at very high levels. In one instance,
the soil of a residential area surrounding
a wood treating facility that
mismanaged these wastes was analyzed
for HxCDDs and HxCDFs. In four
samples, HxCDDs ranged from 1.S to 12
(average, 4) ppb. while HxCDFs were
present at 1.7 to 21 (average 9.5) ppb.
The clean up of these contaminated
sites can be quite cosdy.
Because these wastes are very toxic,
because .the toxic components of the
waste are mobile, persistent and
(particularly the HxCDDs and HxCDFs)
will bioaccunulate, and because of their
history of mismanagement. EPA judges
that they must be managed at fully
permitted facilities when land disposed.
incinerated (except aa already
discussed), or stored in open piles.
2. Requirement of a Waste Management
Plan
Several respondents commented on
CPA's proposal to require a waste
management plan to specify additional
requirements for land disposal facilities
intending to manage these wastes. Most
agreed that such a requirement is
desirable. (In fact one commenter
stated that a waste management plan
should be required for all management
options for these wastes.) However,
several respondents stated that a waste
management plan would not be
adequate to ensure proper handling of
these wastes. Stiii others stated that
interim status facilities which meet the
Part 2M requirements should be allowed
to submit such a plan (and thus be able
to handle these wastes) before receiving
a final permit.
After reviewing these comments, the
Agency still believes that a waste
management plan will help provide
assurance, as far as Is practically
possible, that these wastes are property^
managed in a land disposal situation.
The waste management plan will be the
Interim vehicle for assuring
individualized consideration that the
wastes will be managed safely. The plan
must be submitted by the owner or
operator of the facility as part of the
permit application. ™ Therefore, it will be
considered in the normal course of the
permitting process, so that no special
EPA review procedures are required.
The waste management plan should
address the factors mentioned at
proposal (see 46 FR at 14520) including
waste volume, concentrations of CDDs
and CDFs in the waste, aerosol/
particulate dispersion, violatilization of
the toxicants of concern, sail
attenuation properties, waste leaching
potential, and anticipated solvent co-
disposal. To assist the owner or
operator in preparing this document.
EPA will provide detailed guidance for
the presentation of a waste management
plan. This document will discuss the
physiochemical properties of the waste
constituents, and the specific factors to
be addressed for disposal of these
wastes at each type of land disposal
facility (i.e.. land treatment units,
surface impoundments, open waste
piles, and landfalls]. The document will
explain (1) how the existing Part 264
standards should and can be
implemented for these wastes where
specific guidance is appropriate (j'.e.
wind dispersal, liner compatibility) and
(2) what new requirements should be
Imposed for such wastes (e.g. soil types,
co-disposal, etc.).
More specifically, this guidance
document will address a number of
areas where existing regulations already
provide adequate control. However, due
to the extreme toxicity of the toxicants
in these wastes, further guidance is
provided to the permit writer and the
owner or operator of the land disposal
facility on how the existing regulations
can be applied to these wastes. For
example, the existing management
standards under Part 204 are adequate
to prevent the dispersion of the CDDs
and CDFs by wind dispersal. See
IS 264-221.264.250.264.273. and 264.301.
However because of the toxicity of the
CDDs and CDFs. the waste management
guidance document will provide specific
management techniques for controlling
this exposure pathway (i.e.. immediate
cover of wastes when placed in landfills
and open waste piles, air monitoring to
ensure compliance with this provision,
etc.). In addition, the existing regulations
already address liner compatibility. See
SI 264.221, 264-251, 264.301, and 264.302.
However, the waste management
guidance document includes a
"Sections rai7.270.11270.20. and 270.21 of tha
hazardous watte regulation* have alia btan
una acted to tnctud* lh» (pacific Part B mlormac-
mquiraMntf concerning ihi "ii'.i managainen
plan Ibat nu*t b« Included in the parnut applcm.
foi Mufact Impoundment*. non-4iichned waste
piles, land treatment units, and landfill*.
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1988
Federal Register / VoL SO, No. 9 / Monday. January 14. 1965 / Rules and Regulations
discussion of an advanced liner design
system to assist the Region and the
owner or operator of the land disposal
facility to comply with these
provisions.1*
In addition to the existing standards,
we believe that additional requirements
(for which the existing rules do not
address) also need to be considered in
land disposing these dioxin-containing
wastes. Therefore, the waste
management guidance document wiil
discuss the types, the additional factors
the permit writers should consider in
approving the waste management plan,
in particular
(1) Co-aisposa!—The appropriateness
of disposing of the dioxin-containing
wastes with other wastes that may
increase the solubility of the CDDs and
CDFs. In general, we believe that it is
more desirable to mono-dispose these
wastes.
(2) Soil Types—The appropriateness
of using various soil types at land
disposal facilities. In particular, we
believe these wastes should be disposed
of in facilities with underlying soil of
high sorptive capacity for organic
chemicals [i.e.. high organic carbon
content) and low permeability: this
could be accomplished by bringing soils
with high sorptive capacity and low
permeability to a particular site.
(3) In-situ Treatment—The
appropriateness of using in-situ
treatment such as mixing with carbon
or other sorbents. to minimize the
migration potential of the CDDs and
CDFs. and the formation of free liquids.
(4) Liners—The appropriateness of
disposing of these wastes in unlined
units. In general, we believe that these
CDD and CDF-containing wastes should
not be stored or disposed of in unlined
units.50This does not mean that owners
or operators of existing facilities will
need to retrofit the facility to put in
liners. Rather, we expect that the permit
writer 'vould preclude placing these
wasted in unlined units after a specified
date. Permittees wishing to continue
placir.g wastes in the unit would have
the option of lining the unit.
With respect to the other comments,
we believe that it is neither necessary
nor appropriate to require incinerators.
'•It should be noted thu this guidance drcuami
may alio be appropriate for other htiardoua wane*
thai contain similar hauidou* constituent* (La.
chlorophemrisl.
* As already dnaaeed. w» will allow stodge*
that ate generated in interim status surface
impoundment! (even if unliaedl at part d the
plant'* wastewater treatment tvttem to manage
these wastes. These impoundments an subject to
all Put 364 standards. however. Thus, the permit
writer will address whether it is appropriate (or
unlined impoundments to continue to receive three
wastes.
thermal treatment units, tanks,
containers, or enclosed waste piles to
submit a waste management plan. For
incinerators, the requirement (see
below) of a trial bum showing 89.99995
(six 9s) destruction and removal
efficency [DRE) is adequate protection
for proper incineration of these wastes.
The same is also true for thermal
treatment facilities. The regulatory
requirements for tank, container, and
enclosed waste pile storage facilities
likewise provide the Agency with
sufficient information to evaluate the
storage facility's ability to contain these
wastes, and the additional requirement
for secondary containment for such
facilities 'see Section IV. A.4. below)
provides further protection.
We also do not agree with the
suggestion that interim status facilities
be allowed to submit a waste
management plan and manage these
wastes. (See. also. Section IV. A. 1.
above rejecting the suggestion that
interim status facilities meeting the
requirements of fully-permitted facilities
be allowed to accept these wastes.) We
have determined that interim status
facilities, in general, should not be
allowed to manage these wastes. In fact
where management at interim status
facilities is allowed. EPA expects to
issue permits quickly, in order to limit
the interim status period. Therefore, the
Agency will not allow interim status
facilities that have submitted a waste
management plan to manage these
wastes.
3. Prohibiting Land Disposal of These
Wastes
Several commeniers suggested ihat
land disposal of these wastes should be
prohibited except "in exceptional
circumstances." One person, however,
felt that a better approach would be to
develop a "level of concern" (LOCI
above which all dioxin-containing
wastes should be prohibited from land
disposal: however, the commenter did
not specify what such a level should be.
The recendy enacted legislation gives
the Agency two years to determine
whether these wastes should be banned
from some or all types of land disposal
except for underground injection in
which the Agency has 45 months to
make such a decision, and the
cicumstances under which they should
be banned. The Agency has recently
initiated a program to explore whether
certain hazardous wastes should be
restricted from some or all types of land
disposal, what the nature of the
restrictions should be. and what
treatment and recycling alternatives
exist for such wastes. CDD/CDF-
containing wastes are currendy being
examined under this program for
possible restriction. For more details on
this program, see the Advance Notice of
Proposed Rulemaking published on
February 15.1984. at 49 FR 5834. In
addition, as discussed in the April 4
proposal for this regulation (48 FR
14521), EPA is considering developing
special management standards for
CDD/CDF-contaminated-wastes in
addition to the special standards
required by today's rule. It is possible
that our Investigations may enable us to
define concentration limits within which
land disposal should be prohibited.
However, until these studies are
completed, we believe it inapprcpHuta
to make any decision with respect to
prohibiting these wastes from i-nd
disposal
4. Secondary Containment at Permuted
Tank and Container Storage Facilities
EPA solicited comments as to whether
secondary containment for tanks that
store or treat CDO- and CDF-
contaminated wastes should be required
as part of their permit. (Interim status
facilities would not be subject to this
requirement) As justification we cited
the wastes' toxicity as well as long
storage periods, and described
mismanagement incidents involving
both containers and in-ground and
above-ground tanks. Some commenters
disagreed with such a requirement and
argued categorically that secondary
containment requirements at such
facilities are not warranted. However,
many other commenters argued just as
strongly that secondary containment
requirements are needed, and urged
their adoption.
We have decided that secondary *
containment should be required as a
permit requirement for all tanks that
treat or store these wastes presently
Bubject to the existing tank design and
operating standards in 40 CFR Part 264.
Subpart J. namely above-ground and in-
ground tanks, and all underground tanks
that can be ectered for inspection. It is
the Agency's intent to guard against the
risks posed by storing or treating these
wastes in all types of tanks, including
covered underground tanks-that cannot
be entered for inspection. However, this
latter type of tank is not presentfy
subject to the Part 264 Subpert J
requirements (see 1264.l30(bn and. as
such, cannot receive a permit to treat or
store these wastes, in addition, the use
of secondary containment at such
facilities was not explicitly discussed in
the April 4.1983 proposal. Therefore, we
believe we must first solicit public
comment on our intent to require
secondary containment at covered
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Federal Register / Vol. 50, No. 9 / Monday. January 14. 1985 / Rules and Regulations
1989
underground tenia that cannot be
entered Tor inspection that handle CDD-
and CDF-contaminated wastes. We
intend to address this issue in
forthcoming regulations dealing
comprehensively with management
standards for tanks.
We beLieve that the secondary
containment requirement far the storage
or treatment of these wastes in tanks is
justified based on the following three
considerations: (1) When released into
the environment, it is well-documented
that these extremely toxic wastes
present a substantial hazard to human
health or the environment; (2] these
wastes maybe stored for along time
before a disposal or incineration, facility
is found that is willing or able to accept
them (for example, the same wastes at
the Vertac facility have now been stored
on-site for nearly ten years): and (3]
CPA's experience indicates that these
wastes are particularly difficult and
expensive to cleanup when spilled, and
therefore warrant the additional
protection afforded by secondary
containment.
For the same reasons cited above, we
believe that secondary containment
should be part of the permit
requirements for all faculties that store
CDD- and COF-cotitaining wastes that
are not free liquids tn containers. (EPA
specifically solicited comments on this
approach in the proposal, but
commenters did not reach a consensus
on this issue. Some commenters
supported it while others opposed this
aspect of the proposal.) Accordingly, all
the present requirements for secondary
containment will apply to container
storage facilities, except for the waiver
provision in { 264.175(c). This waiver
allows an exemption from the secondary
containment requirements for non-liquid
wastes, an exception which we believe
should not apply to container facilities
storing CDD/CDF-contaminaled wastes.
Rather,'we have concluded that all
possible releases of these wastes to air.
ground water, and surface water from
such facilities must be prevented.
Therefore, a waiver of secondary
containment requirements for containers
will not be allowed. A container storage
area must have a base which is
sufficiently impervious and continuous
to prevent spills or leaks of these non-
liquid wastes into the environment
With respect to tanks, we have
chosen to implement the secondary "
containment requirement through a
general performance standard.
Therefore, the rule does not specify the
types of designs for the containment
system, but rather requires the owner or
operator to choose a design and propose
it in the RCRA permit application for
EPA review. Under new i 2M-200(a),
facilities seeking permits for tanks that
store or.treat these wastes must have a
system designed and operated to detect
and adequately contain spills or leaks
from the tanks. The design of acceptable
containment and detection systems can
vary considerably according to the type
of tank and other factors, as discussed
below.
An example of a containment system
that might be acceptable for a tank
situated above-ground is one with an
impervious base (such as concrete, or a
synthetic liner) underlying the tank, and
walls or dikes around the tanks that
provide containment far at least 1003 of
the design capacity of the largest tank in
the containment area. This is to prevent
release of CDD- and CDF-contaminated
wastes into the environment from ths
tank in the event of a complete
(woratcase) tank failure. Ilia Agency
does not believe that the regulations
need protect against the extremely
remote possibility of simultaneous
multiple tank failures in ona
containment area. Each containment
system must also have a method of
mechanical or visual detection that will
identify leaks of CDD- and CDF-
contaminated wastes from (he bottom of
the lank.
An example of a containment system
that might be acceptable for an in-
ground tank is one with a synthetic-type
liner underlying the tank, or a liner
placed inside the tank so that the tank
itself provides the secondary
containment In either configuration, the
containment system must be compatible
with the wastes being stored, and must
be installed and have sufficient strength
and thickness so as to prevent failure
due to abrasion, pressure gradients, or
climatic conditions. A method to detect
any leaks between the primary and
secondary containment system must
also be provided.
An example of a containment system
that might be acceptable for
underground tanks that can be entered
for inspection is a vault structure
constructed of material impervious to
the wastes being stored in the tank or
simply compatible with the wastes and
lined or coated with an impervious
material. This type of containment
system must also have a method to
detect any leaks from the tank.
As a general alternative to these
examples of containment systems,
double walled tanks equipped with an
interstitial lone monitoring device to
detect leaks that enter the space
between the walls would also be
considered acceptable lor meeting the
new standard prescribed in 5284.200(a).
Today's rule requires tank facilities
storing or treating CDD- and CDF-
containing wastes to provide EPA with
information in its permit application
specifying: The precise design of the
secondary containment system and its
accompanying leak detection method:
the choice of construction material and
specificationk and whether additional
run-on or precipitation controls are
needed to preserve the system's
integrity. These new technical
information requirements are specified
in new } 270.13(g) and must be
addressed by each individual facility in
its RCSA permit application. This
information will be evaluatsd by CPA
before a permit is issued.
With the addition of today 's
secondary containment requirements,
we have also decided it is necessary to
require tank facilities storing CDD/CDF-
containing wastes to address in the
facility contingency plan the steps to be
taken should a leak be detected. When a
leak is detected, the owner or operator
must act prompdy to prevent release of
the hazardous waste into the
environment and wastes must be
removed from the secondary
containment system as soon as possible.
The plan also needs to specify haw the
tank will be removed from sen-ice and
repaired, if there is a leak and
containment is breached. These new
steps an provided is revised
§ 204.194(c) and build upon the
procedures that already must be
specified in the contingency plu under
existing 3 264.194(c).
It should be noted that today's action
should not be viewed as a determination
by EPA that secondary ooeuometl
requirements are only appropriate for
tanks that store or treat CDD- and CDF-
containing wastes. EPA is presently
considering whether to require
secondary containment for hazardous
waste storage and treatment teaks,
including tanks that have not yet been
permitted and that are presently
covered under the existing Part 28S
interim status standard*. In addition, we
are also considering whether to propose
several more requirements the! we
believe are needed to more adequately
control the risks posed by ail hazardous
waste storage and treatment tanks,
including those that store or treat CDD-
and CDF-containing waste*. For
example. EPA is presently evaluating
the need fore secondary containment
system at all hazardoo* wtm tank*
that would provide rwirsinwsnt of more
than just leaks in the una « tfceJL
Possible hazardous wests diecttarfa* to
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Federal Register / Vol 50. No. 9 f Monday, January 14, 1985 / Rules and Regulations
stated that a dear indication of a lower
level of concern would be a desirable
regulatoiy goab one com® enter
suggested what such a lower limit might
be. stating that a 1 ppb level in soil
might be a suitable leveL One other
commenter also suggested that a level of
concern should be set as a regulatoiy
threshold, but not as a basis for listing.
On reconsideration of die advantages
and disadvantages of setting a lower
level of concern (LOC) for the toxicants
in these wastes, and of the data needed
to perform the needed risk assessments,
we have concluded that with the data
presently available, it is not possib'e to
make a determination regarding such a
level. The matrix variability of these
wastes, ranging from still bottoms to
niter aids to contaminated soils, is very
great and their specific isomeric
composition is not known. It is also very
difficult to judge the bioavailability of
the CODa and CDFs in these different
matrices. The development of exposure
and risk assessments would therefore be
extremely difficult in this case, and even
more suspect than is usually the case
because il mould entail even son
aSSt&nptilJBI mmaHy mnHw in
such a procedure. Therefore. EPA has
not developed a LOC for the toxicants—
in particular, the CDDs and CDFs—in
these wastes. EPA. however, will
continue to explore this alternative as
additional information becomes
available.
B. Discarded Unused Fomulatiuia
This regulation designates as RCRA
hazardous wastes discarded
fonnalaQms con taming ttk tetn-. or
pentachiorophenol and their derivatives
(EPA Hazardous Waste N& FQZT),
except those discarded aa household
wastes, hi prupuaing the regulation. EPA
solicited
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Federal Register / Vol. 50. No. 9 / Monday. January 14. 1985 I Rules and Regulations 1995
there are very few data on the
characteristics of the residues resulting
from soil incineration, data are available
on the incineration of materials such as
PCB capacitors and sewage treatment
sludges. These data indicate that the
residues resulting from such incineration
contain PCBs at levels three to four
orders of magnitude less than that
contained in the original waste before
incineration. Most dioxin-contaminated
soils contain less than 1 ppm of TCDD.
Thus, it is expected that the
concentration of this isomer in the
residue from the incineration of soils
will be less than about 1 ppb. Hub
concentration in soil was determined to
be a reasonable level at which to
consider limiting human exposure in a
residential setting (USDHHS. 1984). We
believe the same is true for the other
chlorinated dioxin isomers of concern,
as well as for the dibenzofurans.
Data on carbon regeneration show
similar results. These data indicate that
toxicants such as PCBs. that bind
strongly to activated carbon or organic
carbon can be effectively removed and
destroyed from such matrices such that
very low levels of the toxicants remain
in the resulting residues. There is no
reason to doubt that CDDs and CDFs (of
similar incinerabflity) when bound to
organic carbon in a soil matrix will
behave any differently. We have
therefore determined that the residues of
incineration or thermal treatment of
CDD/CDF contaminated soils, present
much less risk than the untreated soils,
and thus can be managed at interim
status land disposal facilities.1* We
have, therefore, provided a special
designation (EPA Hazardous Waste No.
F028) for these wastes.
D. Other Wastes Containing CDDs and
CDFs
Several respondents commented on
the need to list other wastes which
contain CDDs and CDFs, /.«„
chlorinated benzenes and PCBs.
dichlorophenol process wastes, fly ash
and emission control dusts from the low-
temperature combustion of
"Other dioxin-containiag waits* an expected to
contain much higher concentration* of the dioxin*
and dibenxofonn*. Therefore. wo woold axpoct the
residue from the indnetation of theae waste* to alao
contain much higher concentration* of the dioxin*
and dibenxohiran*. Consequently, we believe that
all other incineration residue* should ba managed
si acute huardou* watte* and comply with the
ipvdal management standards. However, any
penon nay petition the Admini*tr*tor (under
>12BOJZQ and 20O22) to exclude their waste from
regulatory control (or at 1st it atgoe that the waala
should not bo considered *n tenia hawdoa*
waite) if they can demons trite such bets in their
petition.
chlorophenols, and presendy unlisted
residues from wood preservation.
The recently enacted HSWA
specifically provides additional time to
the Agency for evaluating whether to list
additional dioxin-containing wastes. See
RCRA amended Section 3001(e). As
stated in the preamble to the proposed
regulation (48 FR14523), EPA is
presently conducting a study on wastes
from the production of dichlorophenol.
Under EPA's Industry Studies program,
the Office of Solid Waste (OSW) has
performed engineering analyses, and
has gathered sampling and analysis data
from several dichlorophenol production
facilities, and from facilities that use
dichlorophenol. These data are
presently being evaluated. In addition,
under Tier 4 of the "Dioxin Strategy"
(USE?A, 1983). EPA is investigating
possible combustion sources of CDDs
and CDFs. These materials will be listed
if evidence demonstrates that they are
indeed hazardous (or acute hazardous)
wastes. We also have begun
investigating whether additional wastes
Erom wood preservation processes using
PCP should be listed as hazardous (or
acute hazardous) wastes, and whether
CDDs and CDFs should be added as
constituents of concern in the wood
preservation process waste already
listed (EPA Hazardous Waste No. K001,
Bottom sediment aludge from the
treatment of wastewaters from wood
preserving processes that use creosote
and/or pentachlorophenol). After
completion of those studies, we will take
regulatory action, if warranted
With respect to wastes resulting from
the manufacturing use of
chlorobenzenes, such processes are not
expected to generate CDDb or CDFs
except under alkaline conditions and
elevated temperatures. We therefore
judge that these processes are
adequately covered by the present
listings. It is possible that commercial
preparations of mono- and
dichlorobenzene (which are not covered
by today's listing) contain homologues
with higher degree of chlorination. and
thus could give rise to CDDs and CDFs
at levels of concern. If further
investigation proves that this is the case,
we will list the wastes from such
processes.
With respect to PCBs. we agree that
CDDs and CDFs may well occur in
processes involving these materials.
However. PCBs are no longer
manufactured in the U.S- and their use
and disposal are currently regulated
under TSCA (40 CFR Part 761). The
major problem at present is the
generation of CDDs and CDFs resulting
from transformer fires. The regulation of
the disposal of the wastes (including
sool) from such Ores is presently being
studied under the dioxin strategy, and
EPA recently proposed a regulation
intended to control the potential hazards
resulting from PCB transformer fires (see
49 FR 39986-39989, October 11.1984).
£ Wastes Containing Other
Halogenerated Dioxins and
Dibenzofurans
Two respondents commented that
EPA should not limit its consideration to
processes which are expected to
generate tetra-, penta-, or
hexachlorlnated dioxins and
-dibenzofurans. because the brominated
analogues are also of great concern in
terms of their potential to harm human
health, and because the congeners of
higher degree of chlorination can
undergo dechlorination in the
environment
We agree that the brominated
analogues are a potential threat EPA
has investigated whether there are at
present manufacturing processes
generating these toxicants. It was
determined that there are at present no
U.S. manufacturers of the brominated
chemicals (bromophenols,
bromophenoxy derivatives, brominated
biphenyls) which are expected, from
knowledge of chemical reaction, to be
contaminated with brominated dioxins
and -dibenzofurans. We are continuing
to investigate, however, whether there
are users (formulators) of such
compounds. We are also evaluating
other organobromine manufacturing
processes. If warranted, we will list
wastes from such manufacturing
operations, and will include brominated
dioxins and -dibenzofurans as toxicants
ofconcern.
With respect to the higher chlorinated
dioxins. we agree that dechlorination
occurs. However, it ia very difficult to
predict the extent of this process, and
the equilibrium composition of the
various isomers. Both photochemical
synthesis and degradation of CDDs and
CDFs can occur under ambient
conditions. Hie photochemical
formation of OCDDs from PCP has been
shown to occur, both in soludon. and on
PCP-treated wood (Crosby et aL. 1973:
Crosby and Wong, 1978: Lamparsky.
1980). Resistance to degradation
increases with degree of chlorination
(Hutzinger, 1973: Crosby. 1973; Desideri.
1979; Dobbs and Grant 1979; Nestrick.
1980). In most situations,
photodegradation by reductive
photodechlorination exceeds
photosynthetic processes, and reactL
routes and rates are dependent on'
reaction conditions. Rate constants
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1996 Federal Register / VoL 50, No. 9 / Monday. January 14. 1985 / Rules and Regulations
show that this process is a relatively
minor pathway for the destruction of the
oct a-, hepta-, and hexachlorodioxins.
accounting for less than 10ft of
ocuichJorod'.oxia destruction (Dobbs
and Grant 1979). Unidentified
compounds with gas chrca&tc£raphlc
retention times longer than that of
OCDD are also formed. While
photodechlorination can occur rapiu!y in
solution under laboratory conditions, it
can be slow in soil. or on leaves
(Crosfcv. IS77). Contradictory results
have been obtained in the laboratory
experiments on photodegradution in the
adsorbed state [Crrsfcy. 1977; VVosj;.
1S7P). When degradation does Lke
place, however, the congeners produced
are usually those of less lox'C concern.
Although displacement of chlorine
atoms ortho to .'he ux\ pen atoms does
occur (Buser. 1979; Crosby. 1973;
Lamparski. 1980). most investigators
have noted that the lateral halogen
atoms are the most labile (Siehl. 1971:
Dobbs and Grant. 1979; Nestrick. 19801.
Therefore, the 2.3.7.3-substituted
isomers are those most likely to
degrade. Thus, the photodegradation of
highly chlorinated CDDs and CDFs is
not likely to generate the less
chlorinated isomers of most toxic
concern. W'e therefore conclude that in
view of present knowledge, ihe
regulation of wastes containing tetra*.
penta-. and hexachlorodioxina and
•dibenzofurans adequately address our
present regulatory concerns.
F. Small Quantity Generator Cunaests
Several respondents commented that
this regulation constitutes an excessive
and unwarranted regulatory burden.
One commenter stated that because of
the limited disposal options small
quantity generators now exempt from
regulation would need to apply for
status at storage facilities. One person
argued that EPA must show a "sound
basis" for the 1 kg/month small quantity
generator limitation for these wastes.
CPA does not agree with the
comments stating that this regulation
represents an unreasonable burden an
the regulated community. The economic
impact analysis performed for this
regulation (see Section IX) determined
that the costs incurred by this regulation
are extremely modest (about eight
million dollars per yeaz, maximum!.57
When compared with the costs of
cleaning up the mismanaged wastes
(more than thirty million dollars for
Tunes Beach. MO. alone) this modest
economic burden is entirely warranted.
Moreover, the economic analysis did not
-'Thi» (tidy atwimd rbat kit pnentci* would
need an RCHA range permit
consider that many generators may
already be covered bv RCRA orTSCA
regulation, and that the disposal of some
of the listed formulations (those in
which the listed chlorophenols or their
derivatives are sole active ingredients)
is already regulated under S 261-33 of
RCRA. Additionally, because of their
inherent value, we do cot believe that
the regulated community will usually
discard substantial quantities of these
formulations.
With respect to the comment that EPA
must show a basis for the 1 kg/month
small quantity generator limitation, this
comment was previously discussed in
Section I1L B. 5. above.
C. Comments on Reuse ar.d flecvc.'/ziy
Issue
Several comraenters stated that the
provisions in the proposed regulation
which wouid list and regulate these
wastes as hazardous wastes would
prohibit their reuse and recycling. This
was said to be at odds with the
recycling objectives of RCRA. Two
commenten suggested that EPA should
allow on-site reveling and reuse of the
listed wastes without regulation.
Most of the comments concern issues
which are part of a different rulemaking
proceeding, amending the existing
definition of solid waste and
establishing management standards for
hazardous wastes that are recycled. See
48 FR14422. April 4.1983 proposing
these rules. Thus, we will address those
comments in finalizing that rulemaking.
We note, however, that nothing in this
proposal or m existing rules would
prohibit recycling of these wastes.
Rather, these wastes would remain
subject to regulation when they are to
be recycled.
H. Applicability of the Mixture Rule
One commenter questioned whether,
and to what extent surface water runoff
and plant sweepings would be
considered hazardous waste under (he
mixture rule. As stated in i 261.2(c';(2).
precipitation run-off is not automatically
considered a hazardous waste, but plant
sweepings which contain an acute
hazardous waste are residues of cleanup
operations, and would be considered to
be acute hazardous waste, unless put to
direct use as a pesticide or incorporated
back into product.
/. Comments on the Analytical Method
and the Background Document
Several respondents commented on
the proposed analytical method for
CDDs and CDFs. In general, these
persons commented on specific details
of the method, such as ±e need for
sample preservation, the size of the
specified extraction vessels, the
suitability of the chromatographic
substrates, the appropriateness of the
calibration standard, and quality control
procedures. Several comments were
also received on the Background
Document for this listing. These
comments are responded to in detail in
the Background Document for this
listing. Where appropriate, the
analytical method (see Appendix IX to
Part 291 of this notice) and the
Background Document have been
modified.
VR. Relation of This Regulation to
Those Promulgated Under CERCLA
Section ltBib) (Reportable Quantities)
Ail hazardous wastes (or. in this cay*,
acute hazardous wastes) included in
today's final rule automatically become
hazsjccus substances under the
Comprehensive Environmental
Response. Compensation, and Liability
Act cf 1930 (CERCLA1. (See CERCLA
Section 101(14).} CERCLA requires that
persons in charge of vessels or facilities
from which hazardous substances have
been released in quantities that are
equal to or greater than the reportable
quantities (RQs) immediately notify the
National Response Center (NRC) or the
release. (See CERCLA Section 103.)
Except for those substances already on
the list of CERCLA hazardous
substances, which nil] retain die RQ
already assigned, all hazardous wastes
detonated under RCRA will have an
RQ of one pound, until adjusted by
regulation under CERC1A. See Sect.on
102.
If a waste has more than one
constitutes: of concern, the lowest RQ
assigned to any one of the oonstitseau
present in the waste represents the RQ
for the waste. If a person completely
analyzes the waste, however, and
determines that die RQ for each of the
constituents of mixera are below the
RQ established for each of ihoae
compounds, no notification is required
Thus, for the dioxin-cantaming wastes
listed today, a one pound RQ thalJ be
assigned upon promulgsnna of this rule,
since a one pound RQ he* slready been
specified by operation of law (CERCLA
Section ICC) for a number of the
constituents of concern.* There fore, if a
person were to spill one pound of arrr of
the wastes covered by today 's rule, he
would need to notify the \RC of ifce
release, unless cfce ptrsoa dewnmoe*
aBQ»to»t
i n iiiIIwiiii irf"11—a ItVCP.
lie-TCP. £&4*>T«C* TOO i k mt 14>T
acid, tad it* wit mm am mm ewwu't <«d
Silvex and its n»R MB
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Federal Register / Vol. 50. No. 9 / Monday. January 14. 1985 / Rules and Regulations
1397
that there is leas ihananRQ offtech
hazardous constituent in the w&Fte.
The one pound SQ is cnrrertly the
lowest level established for reporting
releases of hazardous subEtcsces for
emergency response reporting. The basis
for this RQ level was esjabiished under
the Clean Water Act (CVVAJ os the
smallest quantity container generally
shipped in commerce. Many sob stances
on the CERCLA Section 101(14)
hazardous substance list may be
extremely toxic, or otherwise extremely
hazardous, and. therefore, may seed to
be controlled at levels well below the
RQ levels. For instance, the CCDs £.r>ri
CDFs deserve special note ror rhe:;
extreme toxicity.
The RQ triggers are inter dt-d 'o
provide notice of releases so th>.t an On-
Scene Coordinator (OSCJ. purbut.nt to
the National Contingency Pitn {40 CFR
300). can assess the hazard and ±e
actions that may be taken by the federal
government, it is emphasized that die
legal obligation for the responsible party
to notify the NRC's independent of
actions taken by an OSC. The different
RQ levels do not reflect a determination
that a release of a substance will lie
hazardous ax the EQ leitl or out
hazardous below $ul level. ETA has not
attempted to make such a determination
bpcwusc fhe actual hazard wilj vary ivith
the unique circumstances of the release,
and extensive scientific data and
analysis would Ire necessary to estimate
the precise hazard presented by each
substance in a number of plausible
circumstances. Instead, the RQs reflect
EPA's judgment that the Federal
government should be notified uf
releases to which a Tesponae might be
necessary. The&Qe, in themselves, do
not represent any dctsmrastian that
releases of a particular size axe actually
harmful to public health or the
environment See 48 IB 23560. Mar 25.
1983.
Many other considerations besides
the quantity released affect the
government's decision concerning
whether and how it should respond to a
particular release. The location of the
release, its proximity to ririwi-tng water
supplies or other valuable resources, the
likelihood of exposure or injury to
nearby populations, and other fac&rs
must be assessed on a case-by-case
basis. Tbe-reporting requirement is.
however, the trigger far mcessaients to
be made (see 48 FR 2Z5E0),
While the one pound RQ is dearly the
smallest emergency response
notification trigger at the present time
for CERCLA and OVA releases. EPA
can take response, cleanup, and other
actions below SQ lewis. TheRQ is a
level that legally requires reporting by
the responsible party. There obviously
may be instances where EPA would
need to know of releases well below the
one pound RQ level While EPA. in
future refinements to the RQ scales, stay
consider lower levels, this process is
independent of today s rulemaking. E»
reader is also advised that notification
requirements within RCRA may require
notification for releases which may be
harmfi.l. regardless of RQ
determinations under CERCLA or the
CWA. Specifically, the responsible party
may be required to provide notice to
EPA or the National Repponse Center
under RCRA regarding spills and leziks
cf hazardous waste or hezardcus ivr.s'.r-
constituents that may enter the
environment (see 40 CFR 26ZD4 283.10.
254.56. and -2S5.56). In addition, each
person who generates, transports, treats,
stores, or disposes of these wastes must
notify EPA uf their activities, and thus.
EPA will be aware of those persons who
handle these extremely hazardous
wastes.
VTTL State Authority
A. Applicability cf Rules in Authorized
States
Under Section 3006 of RCRA. EPA
may authorize qualified States to
administer and enfwot the RCRA
program within their Statu. (See 40 CFR
Part 271 for the standards and
requirements for authorization.)
Authorization, either interim or final,
may be granted to State programs that
regulate the identification, generation,
and transportation of hazardous wastes
and the operation of facilities that treat
store, or dispose of"hazardous waste.
Interim ig granted to
States with jnnfliuin* that an
"substantially equivalent" Id the Federal
program (Section 3006(c)). Final
authorization is granted to States with
programs that are equivalent to the
Federal program, consistent with the
Federal program and other State
programs, and that provide for adequate
enforcement (Section GOOG(bl).
Under EQA. prior to the Hazardous
and Solid Waste Amendments of 1984.
once EPA authorizes a State program.
EPA suspends administration and
enforcement within the State of those
parts of the Federal program for which
the State Is authorised. In authorized
States. EPA does retain enforcement
authority ooderSeciiaa 3088.TO03. and
3013 of RCRA. although aufcorized
States have primary enforcement
responsibility. However, under Section
'3008(g) of the Hazardous and Solid
Waste Amendments of 1984. any
requirement pertaining to hazardous
wastes promulgated pursuant to the
Amendments is effec^ve in authorized
States -&1 the same time it is effective in
other States. EPA will administer and
enforce the requirements in each State
until the State is authorized with respect
to such requirements.
Tite 2s$sg and seated management
standards promulgated in today's rule
are applicable in ail 5*.ates since the
requirements are imposed pursuant to
the Amendments. Thus EPA will
implement these standards until
authorized States revise their programs
to adopt these rules.
B. Effect on State Au:horizatior.?
Uitdtr HQA. uuibiTi^e-d Suae
pragrums must be revised 'o inr.or-jurhte
new requircmiT.tB nr.pcsed by statute or
EPA re*»ds:: ens. The procedures and.
schedule for State adoption cf these
recuirements is described in 40 CFR
271.21. See 49 FR 21678 (May 22.1984).
Slates ±at hare final authorization
must revise their programs within a i*ar
of promulgation of today's regulations if
only regulator}' changes are necessary.
These dctuilines can be extended in
exceptional cases. See 40 CFR ZTUlfe).
States that submit official applications
for final authorization less than 12
months after promulgation of today's
regulations may tie approved without
including standards equivalent to those
promulgated However, once authorized
a State must revise its program to
include the listing and related
management standards substantially
equivalent orequivaleitf to EPA's within
the time period discussed above.
Under the HSWA. states revising their
programs to adopt new requirements
imposed nnder the HSWA may do so
based an state leqtrireaents that are
equivalent w -substantially equivalent to
the H5WA requirements. See Section
3008(g)l2). Thus a state seeking
authorization for today's amendments
may do so bawd on controls that are
equivalent or substantially equivalent to
today's rule.
IX. Environmental, and
Regulatory Impact!
A. Regidatory Impact Analysis
Under Executive Order 12291. EPA
must determine whether a regulation is
"mater", and therefore subject to the
requirement of a Regulatory Impact
Analysis. These amendments, in part
reduce regulations under a different
statute (Section 8(d) of the Toxic
Suhstance Control Act), and impose an
additional regulatory burden on only a
small number of manufacturers of
chlorophenols. and their chlorophenoxy
derivatives. In addition, some
-------
1998 Federal Register / Vol. 50. No. 9 / Monday, January 14, 1985 / Rules and Regulations
manufacturers who use equipment
which may be contaminated with CDDs
and CDFs may also have an additional
regulatory burden.
EPA has analyzed the potential
economic impact of these amendments
(JRB, 1984). This analysis considered
various disposal scenarios; this analysis
also assumed that all generators of these
wastes would need a permit for their
tank or container Btorage facility. (/.«.,
none of these generators would qualify
for the short storage provision in 40 CFR
12R2M). including the requirement lor
secondary containment Based on this
analysis, we estimate the cost of this
regulation to be between six and eight
million. In addition, we also carefully
evaluated the Impact of these rules on
the costs, prices, and markets of these
products (dePoix. 19B4). Baaed on this
analysis, EPA has determined that ma for
increases in consumer prices are not
likely, and since these products have
negligible foreign competition the
implementation of them regulations will
have little or no adverse impact on the
ability of U.S.-based enterprises to
compete with foreign-based enterprises
in either domestic or export markets.
Therefore, since EPA does not expect
that the amendments promulgated here
will have an annual effect on the
economy of $100 million or more, will ¦
oot result in a measurable increase in
costs or prices, or have an adverse
taped on the afaihty oi US.-based
enterprises In either domestic or export
markets, these amendments are not
cons.dared La constitute a major action.
Aa svich. a Regulatory Impact Analysis
is not required.
This amendment was submitted to the
Office of Management and Budget
(OMB) for review as required by
Executive Order 12291. Any comments
from OMB lo EPA. and any EPA
responses to those comments are
available for public inspection in S-212
at EPA.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act S U.S-C. } 801 et see„ whenever an
agency is required lo publish a general
notice of rulemaking for any proposed or
final rule, it must prepare and make
available for public comment a
regulatory flexibility analysis that
describes the impact of the rale on small
entities (/•*., small businesses, small
organizations, and small governmental
jurisdictions). No regulatory flexibility
analysis is required, however, if the
head of the agency certifies that die rule
will not have a significant economic
impact on a substantial number of small
entities.
The hazardous waste listed in f 261.31
of tills final regulation are rarely
generated by small entities. The overall
compliance costs associated with the
rule are modest (See report entitled.
"Cost Impact Analysis for the Proposed
Rule Regulating Certain Waste
Containing Certain Chlorifiated Dloxins,
-Dlbenzofurans, and Phenols" for cost
estimates.) The only one of these wastes
that small entities would discard are the
formulating wastes. and EPA does not
believe that small entities will dispose
ol significant quantities of the
commercial chemical products. Nor did
commenten present any quantffled
information that significant amounts of
these commercial products are
discarded by large or small entities. In
addition, many of these formulations are
already listed wastes. See, e.g.,
Hazardous Waste No. U242. Thus,
today's amendment is unlikely lo have a
significant economic impact on a
substantial number of Bmall entities.
This regulation therefore does not
require a regulatory flexibility analysis.
C. Paper Work Reduction Act
The information collection
requirements contained in this rule have
been approved by the Office of
Management and Budget (OMB) under
the provisions of the Paperwork
Reduction Act of 1980.44 U.S.C. 3501 et
s&j. and have been assigned OMB
con tral number 2050-0012.
J>. References
A EL lBBX Analysis of Double membrane
liner chemical compatibility tula. Dnfl
final report. Msrcfc SI.
Akermark, ft 1078. Ffeotodechlerination of
haloarooattc compounds, to: Dloxins;
Toxicologies! and Chemical Aspects. F.
Cattabanl et aL. ads. &P. Medical and
Scientific Books. N.Y. pp. 1B1-2C2.
A WPL1883. Effects of Chemical
Preservatives on the health of wood
treating workers in Hawaii, 1081.
Bishop, CM. and A-H. /ones. 1981. Non-
Hodgkinj Lymphoma of the icalp In
worker* exposed to dioxlns. Lancet (II) 309.
Bieiberg. J. et aL 1964. Industrially acquired
porphyria. Arch. Dermatol. 69:783-797.
Buser. Kft 1979. Preparation of qualitative
* laniard mixture* of polychlortnated
dibemo-p-dioxins and dfomsoluraas by
ultraviolet and gamma-irradiation of the
octschloro compounds. /. ChromaL
129303-307.
Buser. Kit and H P. Bosshsidt. 1079.
Determination of polychlortnated dibenxo-
p-dloxios sail dibensofurans In commercial
chlerphenels by combined gas
chromatography mass spectrometry. /. Off.
Altai. Chan. S&&62-667.
Buser. HJt 197ft Formation and Identification
of letn- and peatachlorodibenso-p-dioMin*
from photolysis of two Isomeric
hexachlorodibeftto-p-dloxlns.
Chemotphtn. 8351-257.
Choudiy et si. 1977. Synthesis of chlorinated
dibeioofurans by photolysia of chlorinated
diphenylethers in acetone solution.
Chemosphere. 6:327-332.
Crosby, D.G, et aL 1071. Photodecomposition
of chlorinated dibenxo-p-dioxins. Science.
173:748-749.
Crosby, D.G. et aL 1073. Environmental
generation and degradation of
dlbenzodioxins and dibensofurans. £nv.
Health Persp. £259-286.
Crosby, D.G. snd A£. Wong. 1077.
Environmental degradation of 2.3,7,8-
TCDD. Science. 1337-1338.
Crosby, D.G. and AS. Wong. t078. Photolysis
of pentachloropheno) in water. En v. Sri.
Res. 12:19-25.
Dslderup. LM TO Safety measure! tor
Inking down buildings contaminated with
toxic materials. T. Soc. Geneesk. 52:582-
588:010-623.
de Polx G- 1984. Memorandum to M. Straus
on economic impact analysis of Uioxin '
listing. September 4.
Dobbs, A. and C. Crant. 1979. Photolysis of
highly chlorinated dibenzo-p-dioxina by
sunlight. Nature. 278:103-185.
Desideri, A. et al. 1970. Photolysis of 2.3.7,8-
TCOD in isooctane, hexane. and
cyclohexane. Bull. Cfiem. Farmac. 118: 274-
281.
Kadon, C et al. 1082. Comparisons of
chemical end biological data on soot
samples from the Bbtghamton State OfTicp
Building. Center for Laboratories and
Research, N.Y. State Department of Health
March.
Erdrelcfa, L. 1883. Memorandum to ]. Betlin'ou
evsluiitiun ol epidemiologic study of woo.i
wtlm* in Ha trail. December 1
Flshliein. L 1985 Ha3ogsnatcd conlantimim*
dlbauo-p-dioKbis and dibemofurang. fa
Handbook or carcinogens and baiarJous
u balance*. Malcolm C Bowman, ed.
Marcel Oekker Inc. New \orfc
Gallagher, HP. and W.[.T. Threlfail. 1084.
Cancer risk In wood and pulp workers. In:
Carcinogens and mutagens in the
environment. CRC Press. Boca Raton. KI.
(In. press).
(j'oldmann. P.J. 1973. Schwerste akuie
Chlorscne, eine Masse Intoxication dun.h
23.4.8-Tetrachiordibanxo-p-dioxtn.
Hautanl 24:149-150.
Gruffennan. & et al. 1970. Occupation und
llodgkins disease./. Nat Cancer Inst. 57:
1103-1105.
lUrdeU. L. al a). 1982. Epidemiologic study
nasal and nasopharyngeal cancer and
their relationship to phenoxy acid or
chloiophenoi exposure. Am. /. lad. Med.
3^247-287.
Habernen, BLfi and 8. Bayard. 1984. Memo
to Judy Bellin (OSW) on qualitative
evaluation and unit risk estimate for
bexachlorodibenso-p^ioxin
carcinogenicity data in animal*, fanuan J
I tUderbtandL PX. 1083. Letter to E.E.
McConnell (NIEHS) on histology review of
liver Ussue from HxCDD-treated rats.
October 31.
Hutxtnger. O. et aL 1073. Photochemical
degradation of dl- and octachloro
dibmuofuron. Env. Health Ptrtp. S:2tT-2*t
-------
Federal Register / Vol. 50. .No. 9 / Monday. January 14. 1985 / Rules and Regulations
1999
JRB Associates. 1884. Cost impact analysis
for (he proposed releiegnlatfatg certain
wastes containing certain chlorinated
dioxins. -dibenzofurans, and -phenols.
April
Kimbrough. R.D. et aL 1951 Risk Assessment
document on 2.3.7. S-Tetrachloro-
dibenzodioxin (TCDD1 lewis in soil.
USDHHS/CDC/MEKS. December.
Lamparski. LL. et al. 1980. Photolysis of
pestachlorophenal-treated wood:
chlorinated dibenzo-pdioxin formation.
Env. Sci. Techno!. 14:196-201.
McGaughy. R. (ORD). 1984. Memorandum to
A. Rispin (OPP) on carcinogenic potent?
estimate for HxCDDs. April 19.
Miles, WJ\. et al. 1984. Isomer specific
determination of hexachtarouicxins in
technical peninchlaropltenol [PCF) and :u-
sodium salt. 4th. Intent/. Symp¦ Chid.
Dioxins and fie'd. Cpas. Ottawa. Oct. ;6-
19.
MM. 1983. Determination of the destruction
ofPCBs at SCA Chearica) Sen-ices Inc.
Chicago incinerator. Final Report. Part L
Technical Summary. MRI Project .\unher
7302G. January 21.
National Academy or Sciences. 1977.
Drinking water and health. National
Academy of Sciences. Washington. D.C.
N'estrick. T.f. et al. 1980- Indentification of
tetrachlorodibenzo-p-dioxin isomers at the
1 ng level by photolytic degradation and
pa Item recognition Anal.
Chem. 52:1865-1874.
Plimmer. ).R. and UX Klinjjbiel. 1971.
Riboflavin photosensitized oxidation of 2.
4-dichlorophenol: assessment of possible
chlorinated dionio formation, Science
174:404-408.
Plimmer. (-R. et al 1973. Photochemistry uf
dibenzo-p-dioxins. Adv. Chem. 120:44-54.
Poigei. M. and C Schlatter. 1980. Influence of
solvents and abaorbance on dermal and
mtostmal absorption ofTCDD. Fd. Cosmet.
Toxicol. 1B'.«77-tei.
Rla. C^EPA/ORD). 1983. Memorandum to [3.
flrfsllui {EPAJ OSW}, memorand urn on 1881
Hawaii epidemiology study. September 18.
SarabeA.1. "tfl83.*The Seveso accident
OieaiosphaetZtBl-BK.
Scbawtt. BA.^aL 187B. Boaiitsdl two-year
toxicity Knri rcprodoatan studies on
peiftaehhnopheno) is rata. Zm
Pemachlomiihonnl. chemistry,
ptameaoalagy. and emiwimigrtal
>wucolngy (Kit. Rao. ed.). Plenum Pre*.
N.Y.
Squire. R-A. JB83. An assessment of the
experimental evidence to potential
rorcmogenidty of hexachlorodJbBnx94>
|bo028i
SteL E. et tfTLTta ttabOtty of
pentachlorophenol and chlorinated dioxina
to sunlight heat and combustion. 182nd
GftiwaJ m&atmg. Amor. Chem. Soc. Sept.
(Abstract 92).
USDHHS. 1900, Bioassay of a mixture trf
1.r3A7.fr and 1.13.7.8.9-
hexachiorodibenxo-fKiioxina for possible
carcinogenicty. 198a NTP. No, BO-42.
USDOHS. 1984. Health risk estimates lor 2, S,
7. B-tetnehioKwiibeiizodloxSn in aoiL
Morbiiity as/ worariitf weekly report
33:25-8.
USEPA. 1971 Report of the Ad Hoc Study
group for pentachtoraphawl contaminants.
Environmental health advisory committee.
Science Advhtory Board. December. tEPA /
SAB/7B/001).
USEPA. :981a. Cnosrta muJgmnc
arsenical*. peatachlorophenoL Position
Document Mo. Z/3. Office of Pesticides and
Toxic Substances, fanuaiy.
USEPA. 1981b. Interim evaluations of health
risks associated with emissions of
tetrachlorfnated dioxins from municipal
waste resource recovery facilities. Office of
the Administrator. (November 19).
USEPA. 1981c. Incineration of PCBs:
Summary of Approval Actions: Energy
Systems Company [ENSCO), El Dorado.
AR. EPA Region fl, February 8.1981.
CREPA. 1381(1. Incineration of PCBs:
Si-mmfiry of Approrsl Aeioe* Rollins
Hrvinamect&l Services. Deer Pari. TX
EPA Region S. February 8,1S31.
USEPA. 1982. Development Document for
EXueot Limitations Guidelines and
Standards for the Pesticides. EPA 440/1-
8*-079b. (Proposed).
U5EPA. 1983. Dioxin strategy. OWR&
OSVVER. November 28. Wipf, MX et «L.
1V78. Ticld trials on photodepadstion of
TCDD on vegetables after spraying with
vegetable oiL fir: Dioxins; tmicoiogicel and.
chemical aspects. Op. Cit
USEPA. 1984. Project for performance of
remedial response activities at
. uncontrolled hazardous substance
fiiditiei, zuae 1. Analytical results
Brady Metal*. Newark. N.J. EPA Region 3.
NUS Corporation. March 21 (final (baft).
I'SETA. 1984b. Ambient Water Quality
Catena for 2J.7.8-TetrflehloTodibas»p>
dioxin. EPA M8/S-84-00?.
WilGams. Pi. 1982. PentacWorophenol an
assessment of the occupational hazard.
Am. tnd. ttyg. Assoc. /. 43:799-810.
Wong. A.S. and D.G Crosby. 1978a.
Decontamination of 2J.7.8-
tetrachlorodibeno^Mfloxin (TCDDsJ by
photochemical action. Jw toxins:
toxicological and chemical aspects. Op. Cit. .
Wong, AS. and D.G. Crosby (1978b).
Photaiyais of Pentachlon^hanol in VKatet.
Einiroa. Sci. 2ea. 1239-S.
XHistsrSHfajadi
40 CFR Part 281
Hazardous matsri^s. Waste
treatment and disposal. Recycling.
40 CFR Part 264
Hazard cms materials, Packaging and
containers. Reporting and recordkeeping
requirements. Security measures,
Security bonds. Waste treatment and
disposal.
40 CFR Port 26S
Hazardous materials. Packaging and
containers. Reporting and recordkeeping
requirements. Security njeasimn.
Security bonds. Waste treatment and
disposal Water supply.
40 CFR Port 270
AdaanistretiYe practice wad
procedure. Reporting and recordkeeping
requirements. Hazardous materials.
Waste treatment and disposal. Water
pollution control. Water supply.
Confidential business information.
40 CFR Part 773
Environmental protection. Hazardous
materials. Pesticides and pests. Waste
treatment and disposal.
Dated: December 20.1984.
Alvtn L Aim.
Acting Administrator.
For the reasons set out in the
preamble. Title 40 of the Code of Federal
Regulations is amended to read as
failrws:
PART 2S1—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 261
reads as follows:
Authority: Sees. 1008.2002{a). 3001. and
XXt2 of d» Sclid H'aste Disposal Act as
amended by the Resource Conservation and
Recovery Act of 1976. as amended [42 U.S.C.
8905.6912(a). 8921. and 6922).
2. In 1261.5, paragraphs (e)(1) and
(e)(2J are revised to read as follows:
} 281.5 Special requirements for
hazardous waste generated by small
quantity generator*.
* « • « «
{el * * *
(1) A total of one kilogram of acute
hazardous wastes listed in II 281.31.
281.32. or 291.33(e).
(2) A total of 100 kilograms of any
residue or contaminated soil, waste or
other debris resulting from the cleanup
of a spill into or on any land or watec,
of any acute hazardous wastes listed in
Si 251.31,261 £2. or 2BU3(e|.
~ • * m 9
3. In 1281.7, the introductory text of
paragraphs (b)(1) and (b)(3) an revised
to read as follow*
; 261.7 Realdwa of hssardw waste m
empty containers.
(b)(1) A container or an inner liner
removed from a container thai baa held
any hazardous waste, except a waste
that is a compressed gas or that >a
identified aa an acute hazardous waste
listed in |S 281.31.2BLS. or 281.33(e) oi
this chapter is empty it
• • « • •
(3) A container or an inner User
removed from a caotatner that has beW
an acute hazardnaa waste Usted ia
SS 281.3L .281^2. or SL3J(«| is ampty it
• • • • • ^
4. In J 261.3a paragnpfe (4) te mm
to read as followa:
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2002
Federal Register / Vol. SO. No. 9 / Monday, January 14. 198& f Rules and Regulations
Id the standard should be fixed and selected
to yield a reproducible response at the most
sensitive setting of the mast spectrometer.
Response factors for PCDD and HxCDD nay
be determined by measuring the response of
the tetrachloro-labelled compound! relative
to that of die unlabelled 1.13.4- or 2J.7.B-
TCDD, l£J.4.7-PCDDvr lJU.4.7.d-HxCDD.
which are commercially available.'
Bl3 Assemble the necessary GC/MS
apparatus and establish operating
parameters equivalent to those indicated In
Section 111 of this method. Calibrate the •
GC/MS system according to Eichelberger. et
aL (1975) by the use of decafluorotriphenyl
pkosphine IDFTPP). By injecting calibration
standards, establish the resoonse factors for
CDDs vs. "Cl-TCDD. and for CDFs ra. J"Cl-
TCDF. The detection limit providad in Table
1 should be verified by injecting .013 ng cf
"Cl-TCDD which should gr/e a minimum
signal to noise ratio of 5 to 1 at mass 318.
7. Quality Control
7.1 Before processing any samples, the
analyst should demonstrate through the
analysis of a distilled water method blank,
that all glassware and reagents are
interference-free. Each time a set of samples
is extracted, or there is a change in reagents,
a method blank should be processed as a
safeguard against laboratory contamination.
72 Standard quality assurance practices
must be used with this method. Field
replicates must be collected to measure the
precisian of the sampling technique.
Laboratory replicate* must be analyzed to
establish the precision of the analysis.
Fortified samples must be analysed to
establish the accuracy of the analysis.
8. Sample Collection. Preservation and
Handling
6.1 Grab and composite samples must be
collected in glass containers. Conventional
sampling practices should be followed,
except that the bottle must not be prewashed
with sample before collection. Composite
samples should be collected in glass
containers in accordance with die
requirements of the RCRA program. Sampling
equipment must be free of tygon and other
potential sources of contamination.
&Z The samples must be iced or
refrigerated (ram the ttae of collection cnttil
extraction. Chemical preservatives should
not be used In the field unless mecethaa Z«
hours will slaps* before delivery to the
laboratory. If an aqueous sample is taken and
the sample will not be extracted within 4S
hours of collection, ths sample ihould be
adjusted to a pH range of EL0-&0 with sodium
hydroxide or sulfuric add.
Isotopes. tn&. Cambridge. MA. Proper
standardisation nquires the usa of s
labelled isomer Car each congener to be determined
Hbwevar. the only labelled itamer* readily
•vaiUble are nO-2J,73-TCDD and "Cl-Lx7Ji-
7CSF. This oiathad therefore usea these laomeis as
surrogates jer ths CDDs sndCPFi. Whan adiar
labelled CDDs and CDFs are available, their use
will be required.
¦ This procedure is adapted because standards
ate not available tor most of the CDDs and CDFa.
and assumes thai all the eongeeeis will shew the
sane response a* the unlabeled osagmar used u a
standard. Although this essumptonmaj net be One
in all cases, the error will be small.
&3 All samples must be extracted within
7 days and completely analyzed within 30
days of collection. «
9. Extraction and Cleanup Procedures
9.1 Use an aliquot of i-ieg sample of the
chemical waste or soil to be analysed. Soils
should be dried using a stream of prepurified
nitrogen and pulverized in a ball-mill or
similar device. Perform this operation in a
clear area with proper hood space. Transfer
the sample to a tared 123 mi flint glasa bottle
(Teflon-lined screw cap) and determine the
weight of Ihe sample. Add an appropriate
quantity of **C1-Iabefled 2.3,7,8-TCDD (adjust
the quantity according (o the required
minimum detectable concentration), which is
employed as an internal standard.
9.2 Extraction
9.2.1 Extract chemical waste samp] ss by
adding 10 ml methanol, 40 ml petnleum
ether. SO ml doubly distilled water, and then
shaking the mixture for 2 minutes. Tars
should be completely dissolved in any of the
recommended neat solvents. Activated
carbon samples must be extracted with
benzene using method 3540 in SW-3M (Test
Methods for Evaluating Solid Waste—
Physical/Chemical Methods, available from
G.P.O. Stock *0S3-022-ai001-2|.
Quantitatively transfer the organic extract or
dissolved sample to a clean 2S0 ml tlini glass
bottle (Teflon lined screw cap), add 30 ml
doubly distilled water and sheike for 2
minutes. Discard the aquaoua layer and
proceed with Step fti
B.Z2 Extract toil sample* by adding 40 ml
of petroleum ether to the sample, and then
shaking for 20 minutes. Quantitatively
transfer the organic extract to a clean 220 ml
flint glass bottle (Taflon-Uned screw cap),
add 50 ml doubly distilled water and shake
For 2 minutes. Discard the aqueous layer and
proceed with Step 0.3.
9.3 Wash the organic layer with SO ml of
2)% aqueous potassium hydroxide by shaking
for 10 minutes and then nemo re and discard
the aqueous layer.
9.4 Wash the organic layer with 50 ml of
doubly distilled water by shaking for 2
minutes, and discard the aqueous layer.
&5 Cautiously add SO ml concentrated
sulfuric add and shake for 10 minutes. Allow
the mixture to stand until layers separate
(approximately 10 minutes 1, and remove and
discord ths add layer. Repeat add washing
until no cirior is visible in the add layer.
M Add 9) tnl of doubly distilled water to
die organic extract and shake for Z minutes.
Remove and discard the aqueous layer and
dry the organic layer by adding log of
anhydrous sodium sulfate.
9T Concentrate the extract to incipient
dryness by heating (n a 55" C water bath and
simultaneously Sowing a stream of
prepurified nitrogen over the extract
Quantitatively transfer the residue to an
alumina microcolumn fabricated as follows:
&7.1 Cut off the top section of a 10 ml
disposable Pyrex pipette at the ml mark
and insert a plug of siianixed glass wool Into
the tip of the lower portion of the pipette.
9.7.2 Add Ugof Woelm basic alumina
(previously activated at 600* Covernight and
then cooled to nam temperature ia a
desiccator fust prior to use).
9.7 J Transfer sample extract with a small
volume of methylene chloride.
94 Elute the microcolumn with 10 ml of
3% methylene cholride-in-hexane followed by
15 ml of 20% methylene chloride-in-hexane
and discard these effluents. Elute the column
with IS ml of 50% methylene chlorids-in-
hexane and concentrate this effluent (53' C
water bath, stream of prepurified nitrogen) to
about 0.3-0.J mL
9.9 Quantitatively transfer the residue
(using methylene chloride to rinse the
container) to a silanized Reacti-Vial (Pierce
Chemical Co.). Evaporate, using a stream of
prepurified nitrogen, almost to dryness, rinse
the walls of the vessel with approximately 0.3
ml methylene chloride, evaporate just to
dryness, and tightly cap the vial. Store the
vial at 5* C until analysis, at which time the
sample is reconstituted by the addition of
tridecane.
9.10 Approximately 1 hour before GC-MS
(HRGC-LRMS) analysis, dilute the residue in
the micro-reaction vessel with an appropriate
quantity of tridecane. Gently swirl the
tridecane on the lower portion of the vessel
to ensure dissolution of the CDDs and CDFs.
Analyze a sample by GC/EC to provide
insight into the complexity of the problem,
and to determine the manner in which the
mass spectrometer should be used. Inject an
appropriate aliquot of the sample into the
GC-MS instrument using a synnge.
9.11 If. upon preliminary GC-MS analysis,
the sample appears to contain interfering
substances which obscure the analyses for
CDDs and CDFs. high performance liquid
chromatographic (HPLC1 cleanup of the
extract is accomplished, prior to further GC-
MS analysis.
1(L HPLC Cleanup! Procedure'
10.1 Place approximately 2 ml of hexane
in a 50 ml Biot glass sample bottle fitted with
a Teflon-lined cap.
10l2 At the appropriate retention time,
position sample bottle to collect the required
fraction.
lOJ Add 2 ml of 5* (w/v] sodium
carbonate to the sample fraction collected
and sbake for one minute.
10.4 Quantitatively remove the hexane
layer (top layer) and transfer to a mlcro-
teaction vessel
10l5 Concentrate- the fraction to dryness
and retain for further analysis.
U. GC/MS Analysis
11J The following conditions an
recommended: Glass capillary column
conditions: SP-2Z30 coated on a 30 in tongx
025 ma LD. glass column (Supelco So. 2-
3714. or equivalent) with hettutn carrier gas at
30 cm/sec linear velocity, run splitless.
Column temperature la 210-C- Under these
conditions the retention tim« for TCDDs is
about 9£ minutes/ Calibrate the system daily
with, s three injections of standard
mixtures.
11.2 Calculate response factors for
standards relative to ^d-TCDD/F (see
Section 12).
1U Analyze samples with selected ion
manitnnng of at least two ions from Table 3.
* For cleanup see also method ®S3Mar =83301
SW-448. Test Methods for Evaluating Solid Wtsia.
Physical/Chemical Methods ItSSZ).
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Federal Register / Vol. 50, No. 9 / Monday, January 14, 1985 / Rules and Regulations 2003
Proof of the presence of CDD or CDF exists if
the following conditions are met
11.3.1 The retention time of the peak is
the sample must match that in the standard,
within the performance specifications of the
analytical system.
11.3.2 The ratio of ions must agree within
10% with that of the standard.
11.3.3 The retention time of the peak
maximum for (he ions of interest must
exactly match that of (he peak.
11.4 Quantitate the CDD and CDF peaks
from the response relative to the "Cl-
TCDD/F internal standards- Recoveiy of the
internal standard should be greater than 50
percent
11.5 If a response is obtained for the
appropriate set of ions, but is outside the
expected ratio, a co-eluting impurity may be
suspected. In this case, another set of ions
characteristic of the CDD/CDF molecules
should be analyzed. For TCDD a good choice
of ions is m/e 257 and m/e 259. For TCDF a
good choice of ions is m/e 241 and 243. These
ions are useful in characterizing the
moiecular structure to TCDD or TCDF. For
analysis of TCDD good analytical technique
would require using all four ions, m/e 257.
320.322. and 32B. to verify detection and
signal to noise ratio of 5 to 1. Suspected
imparities such as ODE. DUO. or PCS
residues can be confirmed by checking for
their major fragments. These materials can be
removed by the cleanup columns. Failure to
meet criteria should be explained in the
report or the aample reanalysed.
11.6 If broad background interference
restricts the sensitivity of the GC/MS
analysis, the analyst should employ cleanup
procedures and reanalyze by GC/MS. See
section 104.
11.7 In those circumstances where these
procedures do not yield a definitive
conclusion, the use of high resolution mass
spectrometry is suggested.
12. Calculations
12.1 Determine the concentration of
Individual compounds according to tha
formula:
Concentration fig/gm—^ Ax A.
' GxAtxHi
i
where:
A *»Mg of internal standard added to the
sample *
G«gm of sample extracted
A,-a re a of characteristic ion of the
compound being quantified.
A«=area of characteristic Ion of the interna)
standard
Ri=response factor *
'The proper amount of standard Co be used to
dalenBinad bom the calibration curve (See Section
SO).
•If standards for FCSDs/Fs sadHxCDDa/Fsare
oot available, nsponae factors tor ton* derived bora
these congeners are calculated relative to *0-
TCDD/F. The analyst aiay use rsspente factors for
1Z3.4-oriSJ-S-TODD. IZlV-PeCDOor
UJ.4JJHteCDP tor quantitation of TCOD»/F«.
PtCDDa/Fa and fixCDDs/Fs. respectively, implicit
in this requirement Is the assumption that the tame
response Is obtained from PCDOt/Fa econtatniag
the soote aunben of ditortne steels.
Response factors are calculated using data
obtained from the analysis of standards
according to the formula:
Rf
A,xC»
A*xC,
where:
0,=concentration of the Internal standard
Ci<= concentration of the standard compound
1ZZ Report results in micrograms per
gram without correction for recovery data.
When duplicate and spiked samples are
analyzed, all data obtained should be
reported.
12J Accuracy and Precision. No data are
available at this time.
Table t.—Gas Chromatography of TCDD
riuaii
OM»
Cduan
ton dm*
Hon tnM
inn.)
lug'*®1
Gtancasdary
U
0.001
1 Cencaon fmt tor Mud wiimUm * 00C3 vg.'l Thn a
fUcuMIXl IWI the nrnnun OttectaM GC rmoonw Dong
eouu to ftw anw me GC teckgreirtl neat attuning ( :
m iflocM Anal volume ol tha 1 ktar «wrct» ntrael ana r
GC uneuun si S mciomei*. CMKMn »333J»
355655
369J16
391.313
1 303.902
309 903
*31)69*
Q.74
1.00
021
0.20
0.37
100
too
0J7
'337.063
339660
373 S21
37SJ16
¦&—labetMuaadud p**k*.
* lone wntr em ea wonauiou w TCBO K|iaaa tor
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
12. The authority citatiqn for Part 264
reads as follows:
Authority? Sees. 100& 2002(a). 3004. and
3008 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and
Recovery Act of 1978. as amended (42 US.C.
S0OS. 0012(a). 6824. and 692S|.
13. In Subpart I of Part 284, the
Introductory text In paragraph (c) Is
revised and a new paragraph (d) is
added to 9 264.178:
] 204,1TB Containment.
» « « • «
(c) Storage areas that store containers
holding only wastes that do not contain
free liquids need not have a containment
system defined by paragraph lb) of this
section, except as provided by
paragraph (d) of this section or provided
that:
• I • • e
(d) Storage areas that store containers
holding the wastes listed below that do
not contain free liquids must have a
containment system defined by
paragraph (b) of this section:
(1) FO20. F021. F022. F023. FO20,
and F027.
(2) [Reserved]
14. In Subpart I of Part 284. amend
S 264.104 by redesignating paragraph (c)
as paragraph (cKl). and adding a new
paragraph (c)(2):
1264.194 Inspections.
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2004
Federal Register j Vol. 50. No, 9 / Monday. January 14, 1985 ( Rules and Regulations
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Federal Register / Vol. SO. No. 9 / Monday, January 14. 1985 / Rules and Regulations
2005
(3) The mobilizing properties of other
materials co-disposed with these
wastes and
(4) The effectiveness of additional
treatment, design, or monitoring
requirements.
(b) The Regional Administrator may
determine that additional design,
operating, and monitoring requirements
«re necessary for landfills managing
hazardous wastes FO20, F021, FQ22.
F023. F026. and FQ27 in order to reduce
the possibility of migration of these
ivasies to ground water. surface water,
or air so as to protect human health and
ihe environment
20. In Subpart O of Part 204. amend
J 264.343 by revising paragraph [a] and
redesignating paragraph (a) as
paragraph (a)(1). and adding a new
paragraph (a)(2) to read as follows-.
$ 264.343 Performance standard*.
(a Jf If Except as provided in paragraph
(a)(2). an incinerator burning hazardous
waste must achieve a destruction and
removal efficiency (DRE) of 99S9°i for
each principal organic hazardous
constituent (POHC] designated (under
§ 264J42) in its permit for each waste
feed. DRE is determined for each POHC
from the following equation:
W„
where:
W,.=roust fead rule of one principal wpuruc
hazardous constituent (POHC) in the
waste stream feeding the ndnrmmr
end
W^afiuiss emission rale of the fume POHC
present in exhaust emissions prior to
release to the atmosphei*.
(2) An incinerator burning hazardous
wastes F020. F021. F022. F023. F028.
or F027 must achieve a destruction and
removal efficiency (DRE) of 995999% for
each principal organic hazardous
constituent (POHC) designated (under
S 264.342) in its penniL This
performance must be demonstrated on
POHCs that are more difficult to
incinerate than tetra-. penta-, and
hexachlorodibenzo-p-dioxins and
dibenzofurans. DRE is determined for
each POHC from the equation in
9 254.343(a)(1). la addition, the owner or
operator of the incinerator must notify
the Regional Administrator of his intent
to incinerate hazardous wastes FO20.
F021. F02Z F023. F02& or F027.
PART 285—INTERIM STANDARDS
FOR OWNERS AND OPERATORS Of
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
21. The authority citation for Part 265
reads as follows:
Authority: Sees. 1006. 2002(a). 3004. and
3003 of the Solid Waste Disposal Act as
emended by the Resource Conservation and
Recovery Act of 1ST6, as amended (42 U&C.
690S. 6912(a). 6924. and 6925). '
22. | 265.1 is amended by adding
paragraph [a)
3269.1 Purpose, scape, and appilcaOOlty.
• ~ « « «
(d) The following hazardous wastes
must not be managed at facilities
subject to (epilation under this Part
(1) EPA Hazardous Waste Nos. FO20,
F021. FOZZ. F023. F026. or F027
unless*.
(ij The wastewater treatment sludge is
generated in a surface impoundment as
part of the plant's wastewater treatment
system;
(iij The waste is stored in tanks or
containers;
(iii) The waste is stored or treated in
waste piles that meet the requirements
of ( 264250(c) as well as alt other
applicable requirements of Subpart L of
this Part
(iv) The waste is burned in
incinerators that are certified pursuant
lo the standards and procedures in
3 265.352; or
(v) The waste is burned in facilities
that Lbemally treatthe waste in a
device other than an incinerator and
that are certified pursuant to the
standards and procedures in 9 3B5J83.
23. In Subpart O of Part 268. add the
following $ 2E5-23&
926&3S2 Interim Status Incinerators
Bunting Particular Hazardous Wastes.
(a) Owners or operators of
incinerators subject to this Subpart may
burn EPA Hazardous Wastes FO20.
F021. F022. F023. FO20, or FOZ7 if they
receive a certification from the Assistant
Administrator for Solid Waste and
Emergency Response that they can meet
the performance standards of Subpart O
of Part 284 when they bum these
waBtes.
(b) The following standards and
procedures Hill be used in determining
whether to certify an incinerator:
(1) The owner or operator will submit
an application to the Assistant
Administrator for Solid Waste and
Emergency Response containing
applicable information in 99 270.19 and
270.62 demonstrating that the
incinerator can meet the performance
standards in Subpart O of Part 294 when
they burn these wastes.
(2) The Assistant Administrator for
Solid Waste and Emergency Response
will issue a tentative decision as to
whether the iaciarretor can meet the
performance standardsjn Subpart O of
Part 264. Notification of this tentative
decision will be provided by newspaper
advertisement and radio broadcast in
the jurisdiction where the incinerator is
located. The Assistant Administrator for
Solid Waste and Emergency Response
will accept comment on the tentative
decision for 60 days. The Assistant
Administrator for Solid Waste end
Emergency Response also may hold a
public hearing upon request or at his
discretion.
(3) After the clone of the public
comment period, the Assistant
Administrator for Solid Waste and
Emergency Response will issue a
decision whether or not to certify the
incinerator.
24. In Subpart P of Part 265, add the
following 9 265.363:
5 2&5J43 Interim Status Thermal
Treatment Devices Burning Particular
Hszarctou* Wasta.
(a) Owners or operators of thermal
treatment devices subject to this
Subpart may bum EPA Hazardous
Wastes FO20. F021. F022. F023. F026.
or FQZ7 if they receive a certification
from the Assistant Administrator for
Solid Waste and Emergency Response
that they can meet the performance
standards of Subpart O of Part 2S4 when
they bun these wastes.
(b) The following standards and
procedures will be used in determining
whether to certify a thermal treatment
unit:
(1) The owner or operator will submit
an application to the Assistant
Administrator for Solid Waste and
Emergency Response containing the
applicable information In 99 270.19 and
270.62 demonstrating that the thermal
treatment unit can meet the performance
standard in Subpart O of Part £64 when
they bum these wastes.
(2) The Assistant Administrator for
Solid Waste and Emergency Response
will issue a tentative decision as to
whether the thermal treatment unit can
meet the performance standards in
Subpart O of Part 284. Notification of
this tentative decision will be provided
by newspaper advertisement and radio
broadcast in the jurisdiction where the
thermal treatment device is located. The
Assistant Administrator for Solid Waste
and Emergency Response will accept
comment on the tentative decision for 60
days. The Assistant Administrator for
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2 Federal Register / Vol. 50. No. 9 / Monday. January 14. 1985 / Rules and Regulations
Solid Waste and Emergency Response
also may hold a public hearing upon
request or at his discretion.
(3) After the dote of the public
comment period, the Assistant
Administrator for Solid Waste and
Emergency Response will issue a
decision whether or not to certify the
thermal treatment unit-
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
25. The authority citation for Part 270
reads as follows:
Authority: Sees. 1006.2002(a). 3005. 3007.
and 7004 of the Solid Waste Disposal Act as
amended by the Resource Conservation and
Recovery Act of 1976. as amended (42 U.S.C.
6005.6912(a], 6925.6927, and 6974).
28. In Subpart B of Part 270, paragraph
(b)(7) of 8 270.14 is revised to read as
follows:
9270.14 Contents of Part B: General
requirements.
(b)* 4 '
(7) A copy of the contingency plan
required by Part 264, Subpart D. Note:
Include, where applicable, as part of the
contingency plan, specific requirements
in Si 264.227.264.255. and 281.200.
• • • • •
27. In Subpart B of Part 270.1270.19 is
amended by adding paragraph (g):
S 270.16 Specific Part • Information
requirements for tanks.
• » s s «
(g) Where applicable, a description of
the containment and detection systems
to demonstrate compliance with
f 264.200(a) must include at least the
following:
(1) Drawings and a description of the
basic design parameters, dimensions,
and materials of construction of the
containment system.
(2) Capacity of the containment
system relative to the design capacity of
the tank(s) within the system.
(3) Description of the system to detect
leaks and spills, and how precipitation
and run-on will be prevented from
entering into the detection system.
28. In Subpart B of Part 27a i 270.17 la
amended by adding paragraph UP
} 270.17 Specific Part ¦ Information
(j) A waste management plan for EPA
Hazardous Waste Nos. F020, F021,
F022, F023, F028, and F027 describing
how the surface impoundment is or will
be designed, constructed, operated, and
maintained to meet the requirements of
I 264.231. This submission must address
the following items es specified in
{ 284.231:
(1) The volume, physical, and
chemical characteristics of the waBtes.
including their potential to migrate
through soil or to volatilize or escape
into the atmosphere;
(2) The attenuative properties of
underlying and surrounding soils or
other materials:
(3) The mobilizing properties of other
materials co-disposed with these
westes; and
(4) The effectiveness of additional
treatment, design, or monitoring
techniques.
29. In Subpart B of Part 270. ! 270.18 is
amended by adding paragraph (j):
J 270.16 Specific Plait B Information
requirement* for waste pUes.
• • • * •
(j] A waste menagemeni plan for EPA
Hazardous Waste Nos. FO20. F021.
F022. F023, F028. and F027 describing
how a waste pile that is not enclosed (as
dufined in i 284.250(c)) is or will be
designed, constructed, operated, and
maintained to meet the requirements of
{ 284.259. This submission must address
the following items as specified in
S 264.259:
(1) The volume, physical, and
chemical characteristics of the westes to
be disposed in the waste pile, including
their potentiel to migrate through soil or
to volatilise or escape into the
atmosphere:
(2) The attenuative properties of
underlying and surrounding soils or
other materials:
(3) The mobilising properties of other
materials co-disposed with these
wastes; and
(4) The effectiveness of additional
treatment, design, or monitoring
techniques.
3a In Subpart B of Part 27a I 270.20 is
amended by adding paragraph (I):
(27040 Specific Part ¦ Information
TV^MrfUMim TOT W1Q UVmCnl VMHVDM*
• • * • •
(I) A waste management plan for EPA
Hazardous Waste Nos. FQ3Q, FOZl,
F022. F023, F026, and F027 describing
how a land treatment facility is or will
be designed, constructed, operated, and
maintained to meet the requirements of
8 281.283. This submission must address
the following items as specified in
8 284.283:
(1) The volume, physical, and
chemical characteristics of the westes.
including their potential to migrate
through soil or to volatilize or escape
into the etmosphere:
(2) The attentuative properties of
underlying and surrounding soils or
other materials;
(3) The mobilizing properties of other
materials co-disposed with these
wastes; and
(4) The effectiveness of additional
treatment, design, or monitoring
techniques.
31. In Subpart B of Part 270. 8 270.21 ¦>
amended by adding paragraph (j):
3 270.21 Specific Part 0 Information
requirementa for landfHa.
» • * • •
(j) A waste management plan for EPA
Hazardous Waste Nos. FO20. F021,
F022. F023, F028, and F027 describing
how a landfill is or will be designed,
constructed, operated, and maintained
to meet the requirements of 1284.317.
This submission must address the
following items as specified in 8 284.31"
(1) The volume, physical, and
chemical characteristics of the waste*
including their potential to migrate
through soil or to volatilize or escape
into the atmosphere;
(2) The attenuative properties »r
underlying and suirounding soils or
other materials:
(3) The mobilising properties of othi*'
materials co-disposed with these
wastes: and
(4) The effectiveness of additional
treatment, design, or monitoring
techniques.
PART 775—STORAGE AND DISPOSAL
OP WASTE MATERIAL [REMOVED 1
32. The authority citation for Pan 7~3
reads as follows:
Authority: Sec. 6 of the Toxic Substance*
Control Act (TSCA) Pub. L. 94-460.90 Stat.
203) 115 U -S.C 2606).
33. Part 775 Is removed.
(KR Doc. SS-0O4 Filed 1-11-M: S.4S am)
amwa coos tsw ¦ a
-------
RCRA REVISION CHECKLIST 15
Interim Status Standards for Treatment Storage, and Disposal Facilities
50 FR 16044-16048
April 23, 1985
(Non-HSWA Cluster I)
ANALOGOUS
STATE ANALOG IS- 1 "
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
PART 265 - INTERIM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS
WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART K - SURFACE IMPOUNDMENTS
GENERAL OPERATING
REQUIREMENTS
freeboard
265.222(a)
variance
265.222(b)
SPECIAL REQUIREME
NTS FOR IGNITABLE OR REACTIVE WASTE
limitations on
placement
265.229(a)
variance
265.229(b)
solefv for emergencies
265.229(C)
SUBPART M - LAND TREATMENT
f GENERAL OPERATING REQUIREMENTS
conditions tar I
land treatment I 265.272(a)
SUBPART N - LANDFILLS
CLOSURE AND POST-CLOSURE
final cover
265.310(a)
Dost-dosure
265.310(b)
SPECIAL REQUIREMEI
NTS FOR CONTAINERS
minimum 90% full
265.315(a)
crushed
265.315(b)
April 23, 1985 - Page 1 of 1
-------
16044 Federal Register / Vol. 50, No. 78 / Tuesday, April 23, 1983 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 265
[SWH-FRL-27S4-S1
Hazardous Waste Management
System; Interim Status Standards for
Owner* and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities
aqgncy: Environmental Protection
Agency (EPA).
action: Final rule.
summary: The Environmental Protection
Agency is today amending the interim
status regulations for hazardous waste
surface impoundments, land treatment
units, and landfills (40 CFR Part 285.
Subparts K, M, and N, respectively),
issued under authority of the Resource
Conservation and Recovery Act as
amended (RCRA).
Most of today's modifications to the
interim status standards were proposed
on |uly 28,1982. However, the
amendment to the land treatment rules
is in response to comments received on
the May 19,1980, interim final
promulgation of those rules. Today's
modifications provide consistency
between certain of the interim status
requirements for surface impoundments,
land treatment units, and landfills and
those contained in the permitting rules
of 40 CFR Part 284, that were also
published on |uly 28.1982.
Today's modifications include the
following:
(1) A variance to the two-foot
freeboard requirement for surface
impoundments.
(2) Final cover performance
requirements for landfills.
(3) An additional variance allowing
placement of some igni table or reactive
wastes in surface impoundments.
(4) More definitive requirements
regarding placement of containers in
landfills.
(5) A clarification of the allowable
treatment mechanisms at land treatment
units.
OTVCTTV1 date These final regulations
become effective on October 23.1988.
which is six months from the date of
promulgation, as RCRA section 3010(b)
requires.
AOOWBHi The official docket for this
regulation is located in Room S212. UiJ.
Environmental Protection Agency. 401M
Street SW„ Washington. DC. and ia
available for viewing from 940 ajn. to
440 pj&, Monday through Friday,
excluding holidays.
ran FURTHIR INFORMATION CONTACT:
RCRA hotline at (800) 424-9348 (in
Washington, D.C. call 382-3000) or Kent
Anderson. Office of Solid Waste (WH-
58SE), US. Environmental Protection
Agency, Washington. DC. 20480.
telephone (202) 382-M54.
SUPPLEMENTARY INFORMATION:
L Authority
These regulations are issued under the
authority of sections 1008,2002(a), and
3004 of the Solid Waste Disposal Act as
amended by the Resource Conservation
and Recovery Act of 1978. as amended
(42 U.S.C 8905.8912(a). and 8924).
II. Background
Subtitle C of the Resource
Conservation and Recovery Act (RCRA)
creates a "cradle-to*grave" management
system intended to ensure that
hazardous waste is safely treated,
stored, or disposed. First Subtitle C
requires EPA to identify hazardous
waste. Second, it creates a manifest
system designed to track the movement
of hazardous waste, and requires
hazardous waste generators and
transporters to employ appropriate
management practices as well as
procedures to ensure the effective
operation of the manifest system. Third,
owners and operators of treatment
storage, and disposal (TSD) facilities
must comply with standards to protect
human health and the environment that
are established by EPA under section
3004 of RCRA. Ultimately, these
standards for TSD facilities will be
implemented through permits that are
issued by authorized states or EPA to
owners and operators of such facilities.
However, until these permits are issued,
existing facilities are controlled under
the interim status regulations of 40 CFR
Part 285. Under the interim status
program, the owner or operator of a
faculty in existence on November 19.
1980, (or in existence on the effective
data of atatutory or regulatory changes
under the Hazardous and Solid Waste
Amendments of 1984 (HSWA) that
render the facility subject to the
requirement to have a permit under
section 3005), who has complied with
the notification requirementa of section
3010 ol RCRA. and applied for a permit
(Part A application) in accordance with
section 3005 of RCRA is treated as
having been Issued such a permit until
the permit Is issued or denied.
Ia regulations promulgated oa July 28.
1982. (40 CFR Part 284.47 FR 32274).
EPA established permitting standards
covering the treatment storage, and
disposal of hazardous wastes in surface
impoundments, waste piles, land
treatment units, and landfills. Owners
and operators of such facilities must
meet these standards to receive a RCRA
permit Also included in the Federal
Register on that date were a series of
changes to the interim status
requirements of Part 285. which were
promulgated to ensure consistency with
the new Part 284 standards. There were,
however, a few additional Part 285
conforming changes that the Agency
believed should first be proposed for
public comment because, in most cases,
the public had not had sufficient
opportunity to comment on the
appropriateness of applying them during
the interim status period. Tlie changes
that were proposed on )uly 28,1982. are
today being made final.
In the promulgation of the Part 264
land treatment regulations on July 28,
1982. the Agency adopted an approach
that had been suggested by commenters
to the Pert 285 interim status standards.
These commenters had stated that the
Agency position in Part 285 was not
deer as to whether immobilization of
hazardous waste constituents was an
acceptable treatment mechanism and
suggested that the Agency regard
immobilization as acceptable. In the
Part 284 land treatment requirements,
the Agency clearly states that
immobilization is an acceptable
treatment mechanism. Today, the
Agency is making a similar clarification
to the interim status land treatment
requirements.
ID. Discussion of Today's Amendments
A. Surface Impoundment*—General
Operating Requirements
Section 7M777 contains the rules
designed to prevent overtopping of
impoundment dikes. The interim status
regulations promulgated on May 19.
1080, contain a performance requirement
for the prevention of overtopping, as
well as a requirement for maintenance
of a minimum freeboard of two feet The
Agency received numerous comments as
a result of the May 19.1980. rulemaking
claiming that the two-foot requirement is
redundant in light of the performance
requirement to prevent overtopping.
Many claimed that the two-foot
minimum is. in some cases, either
underprotective or overprotective.
EPA generally agrees with these
commenters ana. in the Part 284
regulations, the Agency requires only
that overtopping be prevented. As with
most Part 264 requirements, this is
Implemented through the permitting
process, when the applicant assesses
the potential causes of overtopping (eg-
rainfall, run-on, equipment malfunctions
and human error) and develops design
-------
Federal Register / Vol. SO. No. 78 / Tuesday. April 23. 1985 / Rules and Regulations
16045
features and operating practices to
prevent overtopping. During interim
status, in the absence of Agency review
provided by the permitting process. EPA
is concerned that a general performance
requirement such as "prevent
overtopping", may not be adequately
self-implementing or readily enforced.
Therefore, the Agency is maintaining
the two-foot minimum freeboard
requirement in the interim status rules,
but is allowing a variance if a qualified
engineer certifies that alternate design
features or operating procedures will
prevent overtopping. Examples of
alternate design features or operating
procedures that may support the use of a
freeboard of less than two feet include:
(1) An impoundment cover to control
rainfall and wind and wave action or (2)
a combination of features or factors
such as controls to reduce wind and
wave action, level controls or
emergency overflow structures, and
local historic weather conditions. We
believe that a qualified engineer can
review a facility's characteristics that
may contribute to the potential for
impoundment overtopping and the
impoundment's design and operating
features to prevent such overtopping
and adequately conclude whether
overtopping is a realistic possibility. The
owner or operator would also be'
required to maintain the certification
and the basis for it at the facility for
review during enforcement inspections.
The Agency believes this approach to be
self-implementable and to provide a
degree of protection equivalent to that of
the two-foot freeboard minimum. Only
one comment was received on the July
28,1082. proposal of this part 285
amendment That comment supported
the two-foot freeboard variance
provision.
B. Landfill Closure and Post-Closure
Care
The part 284 rales issued on July 28.
1982. for landfill cloture and post-
closure care are in many ways quite
similar to the interim status
requirements. The Part 284 rules ore.
however, mora explicit and somewhat
mora environmentally protective. The
Agency believe* the more explicit Part
284 rules for landfills can readily be
implemented during interim status as
well since the existing review process
for interim status closure and post-
closure care plana will provide an
opportunity for the Agency to review the
specifics of the plans for compliance.
Any problems with misinterpretation by
the owner or operator would, therefore,
be identified and rectified. In fact the
procesa during interim status is similar
to the review process for closure and
post-closure care plans conducted
during the permitting process. Therefore,
the Agency is adopting, as Part 285
interim status requirements, the Part 284
closure and post-closure care
requirements for landfills (J 284.310],
except for the § 264.310 leachate
management requirements because
existing units at interim status landfills
are not required to have leachate
collection and removal systems. (The
HSWA require leachate collection
systems for new units and lateral
expansions and replacements, of existing
units at interim status facilities. The
issue of post-closure operation and
maintenance of leachate collection
systems at these units will be addressed
in rules under section 3004(o)(5](A) of
RCRA. aa amended by HSWA.)
The new interim status requirements
promulgated today have more explicit
and stringent requirements governing
the final cover for landfills than do the
current interim status rules. The cover
must now "minimtie" infiltration
instead of simply "controlling" it In
order to prevent the "bathtub" effect it
must be at least as impermeable as any
bottom liner or any underling subsoils
that could potentially cause liquids to
accumulate within the landfill
Therefore, if the bottom liner or
underlying subsoil is highly
impermeable, the cover will also have to
be highly impenable. It must also
accommodate settling and subsidence.
The rationale for these requirements
remains the same as that discussed in
detail in the preamble to the Fart 284
requirements promulgated on ]uly 28.
1982 (47 FR 32320-32321).
The new interim status post-closure
care requirements for landfills also
contain some differences from the
current rules. The new provisions
require that erosion of the cover from
precipitation be minimized. This
requirement is as appropriate for interim
status as for permitted units. The
requirement that access be restricted to
landfills during post-closure care has
been dropped becaused It is redundant
to 1283.117(b).
On July 28,1982. changes to the
surface impoundment closure and post-
closure care requirements [i 286.228)
were also proposed. The proposed
changes are related to clean-up policies
being refined under the Agency's
Superfund program. The Agency is
currently examining the relevant issue in
the context of both programs. Pending
further analysia. we are not at this time
iwnfrinfl final tin ijuinjIM to 4
that were proposed on July 28.1982.
C. Surface Impoundments—Ignitable or
Reactive Waste
The existing interim status limitaiiv
on placing ignitable or reactive waste in
surface impoundments allow the
practice only if the waste is treated,
rendered, or mixed before or
immediately after placement in the
impoundment so that the resulting
waste, mixture, or dissolution of
material no longer meets the definition
of ignitable or reactive waste, unless the
surface impoundment is used solely for
emergencies. The Part 284 requirements
additionally allow the use of
impoundments for ignitable or reactive
waste if the waste is protected from
conditions that could cause it to ignite or
react. EPA does not expect this variance
to be used much, but recognizes that
protection from certain types of
reactions may be practical. Design or
operating practices that protect against
ignition or reaction may include warning
signs, fences, separation of
Impoundments, or covers. Since the
management methods providing
protection can be reviewed during
permitting, we believe that the new
variance provides additional flexibility
to the owner or operator without
sacrificing human health or
environmental protection.
Adoption of the same variance dt
interim status, however, presents the
same enforcement and self-
implementation problems as adoption of
the freeboard variance discussed in
section A The Agency is again
addressing these difficulties by requiring
that the owner or operator obtain
certification from a qualified chemist or
engineer that the design features of the
facility or the operating practices
employed will prevent tgritton or
reaction. EPA expects that a qualified
engineer or chemist can evalute the
operation and adequately determine
that it is safe. Enforcement of the rule
can adequately be canted out by
comparing the beats for the certification
kept at the facility against actual
practice.
Only one mrnment wss teceivad on
Ala Put 288 amendment when it wes
proposed on July Mi 1481 That comment
waa in support of the greater flexibility
offend by the mtiaa provisions.
D.LandfiUt SpeaaJ Requirements for
Containers
The existing interim stems
requirements eianrteie diet empty
containers be ooafcetf Hal prior ta^B
placement in a iaatfBL T1w poipslrof
this requirement is m mtmmam
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16046 Federal Register / Vol. 50. No. 78 / Tuesday. April 23. 1985 / Rules and Regulations
the collapse of empty containers. Such
subsidence poses a serious threat to the
continuity and proper functioning of the
final cover.
Commenters on this provision when it
was promulgated on May 19.1980. made
three basic suggestions:
(1) Small containers should be
exempted.
(2) EPA should provide guidance on
when a container is empty or full for
purposes of this rule, and
(3) EPA should provide guidance on
how much crushing and shredding is
necessary to comply.
The Agency agreed with all of these
suggestions and. in S 264.315
(promulgated on July 26.1982).
addressed these comments (1) by
exempting small containers such as
ampules, and (2) by requiring that all
containers be at least 90% full or
crushed prior to being placed in a
landfill. Similarly, we are today
promulgating these requirements in
S 285.315. The rationale for these
requirements is discussed in the
preamble to the July 28.1982. issuance
(47 FR 32331-32332).
We are. however, not yet able to
provide more specific guidance in
response to comment (3) regarding how
much shredding or crushing is necessary
to comply with the rule. In the Federal
Register on July 28.1982. we stated that
we would prefer to set a performance
limit on the required effectiveness of
volume reduction and had considered
imposing a requirement limiting
maximum remaining void space after
crushing to 10 percent of the precrushed
volume. However, we lacked data at
that time on the practicality of such a
limit and requested comments on the
level of performance that may
practically be required.
Two sets of comments were received
on the requirements for disposal of
containers in landfills. One commenter
stated that only 90 percent of the
containers placed in a should
have to comply with the 90 percent foil
provision. We do not agree with this
comment because the remaining 10
percent of totally empty containers
would still cause damaging differential
settlement We also disagree with this
commenter's contention that landfllla
Located over substantial day deposits
are not sensitive to void space. Voids in
a landfill, regardless of the underlying
structure, can result in cover subsidence.
The underlying soil structure is not
relevant to the potential for void spaces
in the waste to cause damage to the
cover.
A second commenter addressed the
issue of setting a performance limit on
the volume reduction of empty
containers. The commenter contended
that: (1) Requiring that containers be
crushed to the "maximum practical -
extent" does not provide adequate
guidance to landfill owners and
operators, and that [2] the phrase,
"maximum practical extent" suggests
that factors other than absolute
technological compatibility, such as
cost, equipment availability, container
design, and composition, can be
considered in determining whether a
container is crushed to the maximum
practical extent While EPA would
prefer to make this requirement more
specific, we do not yet have adequate
information to structure a more explicit
performance standard.
£ Land Treatment—Interpretation of
"Treatment"
The current interim status
requirements at 9 285.272(a) prohibit the
land treatment of hazardous waste
"unless the waste can be made less
hazardous or (unhazardous by
biological degradation or chemical
reactions occurring in or on the soiL"
The Agency has received some
comments questioning whether
immobilization of heavy metals is
considered an acceptable "treatment"
mechanism within the context of this
provision. Several commenters
expressed a concern that an overly strict
interpretation of § 285^72(a) could
result in the exclusion of certain wastes,
such as oily wastes, from land treatment
facilities, because they contain
inorganic hazardous waste constituents.
The intent of this amendment to
§ 285-272(a) is to clarify EPA'a
interpretation of acceptable "treatment"
as it applies to land treatment under the
interim status standards.
As is reflected in the Part 264
regulations (|| 284.271(a) and
284-273(a)), the Agency believes that
hazardous Waste may be rendered lesa
hazardous or nonhazardous (La*
treated) in soils through the chemical,
biological, and physical processes of
degradation, transformation, and
immobilization. These processes, alone
or in combination, reduce the
hasardousness of a waste by altering
the chemical or physical state of the
hazardous constituents in the soil
matrix maldng them unavailable or lesa
available far environmental
contamination. For example, organic
constituents may be completely
degraded or transformed to
nonhazardous constituents, while
inorganic constituents may be
effectively immobilized through
chemical reactions or physical
attenuation processes. The Agency is
today modifying the language in
S 265.272(a) to clarify that degradation,
transformation, and immobilization are
all considered effective treatment
processes. This approach is consistent
with that taken in the Part 284
regulations.
Degradation, transformation, and
immobilization processes all play a role
in achieving effective treatment of
hazardous constituents at land
treatment units. As used in the
regulations, degradation refers to the
chemical biological or physical
decomposition of organic waste
constituents to compounds of lower
molecular weight whereas
transformation pertains to reactions in
which waste constituents are chemically
changed to different compounds of
higher molecular weight Immobilization
includes physical and chemical
reactions, such as soil sorption,
precipitation, and cation exchange, that
result in the attenuation of waste
constituents in the soil matrix. At land
treatment units, degradation and
transformation are considered the
primary treatment mechanisms for
organic constituents, while
immobilization is reserved as the
primary mode of treatment only for the
smaller inorganic components of the
waste.
As discussed in the preamble to the
July 28.1982. regulations (47 FR 32325).
the Agency does not consider dilution to
be an acceptable treatment process.
Dilution does not provide chemical
biological or physical "treatment" of
hazardous constituents. Rather, dilution
allowa wide dispersal of hazardous
constituents in the soil matrix. Since
they remain untreated, such constituents
may eventually migrate and concentrate
to unacceptable levels in ground water
or surface water.
While the general philosophy of
"treatment" (Le* degradation,
transformation, and immobilization)
under the Part 285and Part 284
regulationa is identical there remain
two significant differences in the scope
and implementation of the treatment
standard. First under Part 288. the
treatment standard applies only to the
hazardous watte constituent in the
haiardoua waates being land treated.
These include conatltuenta that either
cause the waste to exhibit the
characteristic of EP toxicity (see Part
281. Subpart C. Table 1). or cause the
waate to be listed aa hazardoua waste
(see Part 281. Subpart D. Appendix VII).
Under the Part 284 regulations, however,
the Agency has expanded this
requirement to include all hazardoua
constitutents (see Part 281. Subpart D."
Appendix VIII) present in the waste.
-------
Federal Register / Vol. 50, No. 78 / Tuesday. April 23. 1985 / Rules and Regulations 16047
This difference reflects the more
comprehensive regulatory approach
taken under the Part 264 regulations.
Second, the determination that the
treatment objective is being met under
Part 285 is achieved through the use of
unsaturated-zone and ground-water
monitoring data from the full-scale
operational land treatment unit.
Continued land treatment without
successful treatment determinations vie
monitoring data is a violation of the
interim status standards. Under Part 264.
however, all land treatment units
(existing and new) are required to
demonstrate prior to full-scale operation
under Part 204 that all hazardous
constituents in the waste can be
successfully treated in the proposed
unit. This demonstration information is
used by the permit writer to define in
the Part 264 permit specific design and
operating conditions to assure
successful treatment when the facility is
fully operational.
IV. Effective Data
Pursuant to section 3010(b) of RCRA,
today's amendments will be effective
six months after promulgation.
V. State Authority
A. Applicability of Rules in Authorized
States
Under section 3006 of RCRA. EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. (See 40 CFR
Part 271 for the standards and
requirements for authorization.)
Authorization, either interim or final
may be granted to State programs that
regulate the identification, generation,
and transportation of hazardous waste .
and the operation of facilities that treat,
store, or dispose of hazardous waste.
Interim authorization is granted to
States with programs bat are
"substantially equivalent" to the Federal
program (Section 3000(c)). Final
authorization is granted to Slates with
programs that ere equivalent to the
Federal program, consistent with the
Federal program and other State
programs, and that provide far adequate
enforcement (Section 3008(b)).
Under RCRA. prior to the Hazardous
and Solid Waate Amendments of 1984
(HSWA), trace EPA authorized a State
program. EPA suspended administration
and enforcement within the State of
thoae parts of the Federal program for
which the State was authorized.
However, under section 3006(g) of
HSWA. any requirement pertaining to
hazardous waate promulgated pursuant
to HSWA fa effective in authorized
Slates at the same time it is effective In
other States. EPA will administer and'
enforce the requirements in each State
until the State is authorized with respect
to such requirement Following
authorization. EPA retains enforcement
authority under sections 3008.7003. and
3013 of RCRA. although authorized
States have primary enforcement
responsibility.
Today's modifications to Part 285 are
not applicable in authorized States since
the requirements are not being imposed
pursuant to HSWA: the requirements
will be applicable only in those States
that do not have interim or final
authorization. In authorized States, the
requirements will not be applicable until
the State revises its program to adopt
equivalent requirements.
B. Effect or State Authorizations
As stated above, these final rules mil
not apply immediately in authorized
States. States that have final
authorization must revise their programs
to include equivalent standards within a
year of promulgation of these standards
if only regulatory changes are
necessary, or within two years of
promulgation if statutory changes are
necessary. These deadlines can be
extended in exceptional cases (40 CFR
271.21(e)(3)).
States that submit official applications
for final authorization lesa than 12
months after promulgation of these
standards may be approved without
including equivalent standards.
However, once authorized, a Stale must
revise its program to include equivalent
standards within the time period
discussed above. The process and
schedule for revision of the State
programs is described in amendments to
40 CFR 271.21 published en May 22.
1984. (See 4BFR 21878.)
It should be noted that authorized
States are only required to revise their
programs whoa EPA promulgates
standards more stringent than the
existing standards. Under section 3009
of RCRA. States cannot be prohibited
from imposing standards that are more
stringent than thoae in the Federal
program. Some of the standards
promulgated today are considered to be
less stringent than the existing Federal
requirements. Those leas stringent
provisions appear In || <*6517?, 28&22S,
and 265.272(a). Authorized States are
not required to revise their programs to
adopt requirements equivalent to thoae
listed above.
VL Regulates? Impact
Under Executive Order 12291. EPA •
must fudge whether a regulation is
"major" and. therefore, subject to the
requirement of a Regulatory Impact
Analysis. As stated in the proposed rule
on July 28.1882. the Agency does not
believe these conforming changes will
result in an annual effect on the
economy of $100 million or more: a
major increase in costs or prices for
consumers, individual industries.
Federal State, or local government
agencies, or geographic regions: or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or in domestic
or export markets. In addition, the Part
265 conforming changes do not impose
any requirements beyond those required
for permitting facilities under Part 264.
The effect of the Part 265 conforming
changes is only to impose these
requirements somewhat sooner, thus the
impact is not significant. Therefore. EPA
does not expect today's rule to be
subject to the major rule provisions of
Executive Order 12291.
This regulation was submitted to the
Office of Management and Budget for
review as required by Executive Order
12291.
VII. Regulatory Flexibility Act
Under the Regulatory Flexibility Act.
(S U.S.C. 601 et seg.), EPA must prepare
a regulatory flexibility analysis for all
regulations that may have a significant
impact on a substantial number of sma'1
entities. The Agency conducted such i
analysis on the Part 284 land disposal
regulations and published a summary of
the results in the Federal Register, Vol.
48. No, 15 on January 21.1983. The
additional burdens imposed by this
regulation an not considered
significant. In addition they do not
impose any requirements beyond those
required for permitting facilities under
Part 284.
VIIL Paperwork Reduction Act
The certification requirements
contained hi this rule have been
approved by the Office of Management
and Budget (OMB) under the provisions
of the Paperwork Reduction Act of 1980.
44 US.C 3501 er teg. and have been
assigned OMB control number 2050-
0007.
IX. Lists of Subjects in 40 CFR Part 285
Hazardous materials. Packaging and
containers. Reporting and recordkeeping
requirements. Security measures. Surety
bonds. Waste treatment end disposal.
Water supply.
Dated: April tt, 19BS.
bee M. Thomas,
Administrator.
For die reasons set out in the .
preamble. Part 285. Subparts K M. and
-------
16048 Federal Register / Vol. SO. No. 78 / Tuesday. April 23. 1985 / Rules and Regulations
N. of Title 40 of the Code of Federal
Regulations an amended as follows:
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT. STORAGE, AND
DISPOSAL FACILITIES
1. The authority dtation for Part 285
continues to read as follows:
Authority: Sees. 1006.2002(a), and 3004 of
the Solid Waste Disposal Act a* amended by
the Resource Conservation and Recovery Act
of 187B, aa amended (42 U.S.C. 0005.0012(a).
and 6824).
2. In 40 CFR Part 265. Subpart K.
S S 265.222 and 285.229 are revised to
read as follows:
{288222 General operating requirements.
(a) A surface impoundment must
maintain enough freeboard to prevent
any overtopping of the dike by
overfilling, wave action, or a storm.
Except as provided in paragraph (b) of
this section, there must be at least 60
centimeters (two feet) of freeboard.
(b) A freeboard level less than 60
centimeters (two feet) may be
maintained if the owner or operator
obtains certification by a qualified
engineer that alternate design features
or operating plans wilL to the best of his
knowledge and opinion, prevent
overtopping of the dike. The
certification, along with a written '
identification of alternate design
features or operating plans preventing
overtopping, must be maintained at the
facility.
(Approved by the Office of Management and
Budget under the control number 2050-0007)
8pecW requirements tor
IgnttaMe or reactfve weatou
Ignitable or reactive waste must not
be placed in a surface impoundment
unless:
(a) The waste is treated, rendered, or
mixed before or immediately after
placement in the impoundment so that
(1) The resulting waste, mixture, or
dissolution of material no longer meets
the definition of ignitable or reactive
waste under 8S 281.21 or 281.23 of this
chapter: and
(2) Section 285.17(b) is complied with:
or
(b)(1) The waste is managed in such a
way that it is protected from any
material or conditions which may cause
it to ignite or react and
(2) The owner or operator obtains a
certification from a qualified chemist or
engineer that to the best of his
knowledge and opinion, the design
features or operating plans of the facility
will prevent ignition or reaction: and
(3) The certification and the basis for
it are maintained at the facility; or
(c) The surface impoundment is used
solely for emergencies.
(Approved by the Office of Management and
Budget under the control number 2080-0007)
3. In 40 CFR Part 285. Subpart M.
{ 285.272 is amended by revising
paragraph (a) to read as follows:
I28L272 fleneral operating requirements.
(a) Hazardous waste must not be
placed in or on a land treatment facility
unless the waste can be made less
hazardous or nonhazardous by
degradation, transformation, or
immobilization processes occurring in or
on the soil
• • • • •
4. In 40 CFR Part 285. Subpart M.
iS 285.310 and 285.315 are revised to
read as follows:
I288J10 Oooure end poit rtosura cere.
(a) At final closure of the landfill or
upon closure of any cell the owner or
operator must cover the landfill or cell
with a final cover designed and
constructed to:
(1) Provide long-term minimization of
migration of liquids through the closed
landfill;
(2) Function with minimum.
maintenance;
(3) Promote drainage and minimize
erosion or abrasion of the cover
(4) Accommodate settling and
subsidence so that the cover's integrity
is maintained: and
(5) Have a permeability less than or
equal to the permeability of any bottom
liner system or natural subsoils present.
(b) After final closure, the owner or
operator must comply with all post-
closure requirements contained in
§§ 285.117-265.120 including
maintenance and monitoring throughout
the post-closure care period. The owner
or operator must
(1) Maintain the integrity and
effectiveness of the final cover,
including making repairs to the cover as
necessary to correct the effects of
settling, subsidence, erosion, or other
events:
(2) Maintain and monitor the ground-
water monitoring system and comply
with all other applicable requirements of
Subpart F of this part
(3) Prevent run-on and run-off from
eroding or otherwise damaging the final
cover and
(4) Protect and maintain surveyed
benchmarks used in complying with
1285.300.
{288J1S Special requirements for
containers.
Unless they are very small, such as an
ampule, containers must be either
(a) At least 90 percent full when
placed in the landfill: or
(b) Crushed, shredded, or similarly
reduced in volume to the maximum
practical-extent before burial in the
landfill
(PR Doc. 86-0800 Filed 4-22-65:8:49 am|
-------
RCRA REVISION CHECKUST 16
Paint Filter Tost
50 FR 18370-18375
April 30. 1985
(HSWA Cluster I)
^TATE ANALOfl 15.
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOQOU8
STATE CITATION
EOUM-
ALE NT
MOBE
BROADER
STRINGENT! in scope
PART 264 - STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS
WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART B - GENERAL FACILITY STANDARDS
GENERAL WASTE ANALYSIS
analyses methods
264.13(b)(6)
SUBPART E - MANIFEST SYSTEM, RECORDKEEPING, AND REPORTING
OPERATING RECORD
test results
264.73(b)(3)
SUBPART N - LANDFILLS
SPECIAL REQUIREMENTS FOR BULK AND CONTAINERIZED LIQUIDS
paint filter test I 264.314fc) I I
PART 265 - INTERIM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS
WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART B - GENERAL FACILITY STANDARDS
GENERAL WASTE ANALYSIS i—I
analyses methods I 265.13(b)(6)
SUBPART E - MANIFEST SYSTEM, RECORDKEEPING, AND REPORTING
OPERATING RECORD
test results
265.73(b)(3)
April 30, 1985 - Page 1 of 2
-------
RCRA REVISION CHECKLIST 16: Paint Fitter
Test (contd)
STATE ANALOG IS
ANALOGOUS
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
SUBPART N - LANDFILLS
SPECIAL REQUIREMENTS FOR BULK AND C
ONTAINERIZED LIQUIDS
Daint filter test
265.314 (d)
April 30, 1985 - Page 2 of 2
-------
18370
Federal Register / Vol. 50. No. 83 / Tuesday. April 30, 1985 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260,264,265, and 270
lSWH-fRL27W-11
Hazardous Waste Management
System; Standards for Owners and
Operators of Hazardous Waste
Treatment, Storage, and Disposal
Facilities
aqkncy: Environmental Protection
Agency.
action; Final rule.
summary: Under authority of the
Resource Conservation and Recovery
Act (RCRA). EPA is promulgating a rule
that requires the use of a paint filter test
to determine the absence or presence of
free liquids in either a containerized or
bulk waste. This rule applies to owners
and operators of hazardous waste
landfills regulated under 40 CFR Parts
264 and 265. This rule is based on public
comments received on a proposed paint
filter test and laboratory testing of six
test protocols designed to detect the
presence of free liquids. The rule
includes conforming amendments to
several other sections of the regulations.
oatik Effective Date: This final rule
becomes effective on June 14.1985. The
incorporation by reference of the
publication listed in these regulations is
approved by the Director of the Federal
Register as of June 14.1985.
FOR FURTHIR INFORMATION CONTACT:
For general information, contact the
RCRA Hazardous Waste Hotline. Office
of Solid Waste (WH-563). US.
Environmental Protection Agency. 401M
Street SW„ Washington. D.C. 2046a
telephone BOO/424-9346 (382-3000 in
Washington. D.C.). For specific
information on this amendment contact
Paul Cassidy. Office of Solid Waste
(WH-565), U.S. Environmental
Protection Agency. 401M Street SW,
Washington. D.C. 20460 (202) 382-4682.
SUmjKMINTARY lNFORMATIOIC
I. Background
On May 19.1980. EPA promulgated
regulations that established most of the
basic elements of the hazardous waste
management program required by
Subtitle C of the Resource Conservation
and Recovery Act of 1978. as amended.
42 U.S.C. 6921 et seq. See 45 FR 33068
(May 19.1980). Part 285 of these
regulations sets forth standards that
apply to owners and operators of
existing interim status hazardous waste
treatment storage, and disposal
facilities. These regulations included
limitatinna on the placement in e landfill
of both bulk or non-containerized and
containerized liquid waste or waste
containing free liquids.
The May 19.1980 regulations defined
"free liquids" a "liquids which readily
separate from the solid portion of a
waste under ambient temperature and
pressure." See 40 CFR 260.10. In the
preamble to the May 19.1980
regulations, the Agency suggested that
an inclined plane test to determine
whether sludges or semi-solids
contained free liquids be used until a
more rigorous test was devised.
On February 25.1982, the Agency
proposed a paint filter test for landfill
operators to use to determine the
presence of free liquids in sludges, semi-
solids. slurries, and other wastes that
are commonly received in containers.
See 48 FR 57144 (February 25.1982).
On July 28,1982. EPA issued
standards for use in issuing permits for
facilities that treat store, or dispose of
hazardous wastes. See 47 FR 32274 (July
28.1982). These regulations also
included standards for the landfilling of
both bulk or non-containerized and
containerized liquid waste or waste
containing free liquids.
On December 28,1983. EPA issued a
notice of availability of information and
request for comments. This notice made
available the results of laboratory tests
conducted to evaluate the suitability of
six test protocols in determining the
presence of free liquids in waste
samples. A summary of this information
is presented in this preamble.
IL Final Rulemaking oa Faint Filter Test
(A) Comments Concerning Proposed
Paint Filter Test
The Agency initially proposed a paint
filter test on February 25,1982. and
solicited comments on this proposed
method as well as on any other test
protocols that were capable of
determining whether or not a waste
sample contained free liquids.
The proposed paint filter test protocol
called for a 100 ml representative
sample of the waate to be placed in a
400 micron conical paint filter for five
minutes. The filter waa to be supported
by a funnel on a ring stand with a
beaker or cylinder below the funnel to
capture any liquid that passed through
the filter. If any amount of liquid passed
through the filter, the waste would be
considered to hold free liquids.
The comments received on the paint
filter test proposed on February 25,1982
were favorable. Commenters felt that
the Agency had proposed a needed and
straightforward test they also believed
that the test waa simple and practical.
Some commenters questioned the length
of the test (5 minutes): they generally
felt that a longer test period was needed
to eccurately determine the amount of
free liquids. One commenter stated that
unless EPA identifies a specific brand of
filter or provides specifications for the
filter mesh, application of the February
25.1982 test may produce inconsistent
results.
Comments received on the December
28.1983 Notice of Availability also
endorsed the use of the paint filter test
as the appropriate test protocol for
determining the presence of free liquids
in a waste material. Commenters
questioned why hazardous wastes were
not used in the testing program and also
why a greater number (range) of
hazardous materials were not evaluated
with the six test protocols.
Although most of those commenting
on the December 28,1983 Notice of
Availability agreed that the paint filter
teat was the appropriate test method, a
few requested that EPA finalize several
tests as suitable and that the owners or
operators of hazardous waste landfill
facilities be given the option of selecting
any one of the optional test protocols.
Most commenters agreed that five
minutes was an appropriate duration in
order to determine the presence of free
liquids on a pass/fail basis. A few
commenters recommended a longer
duration to completely assure that free
liquida do not exist in a waste material.
The laboratory testing done on the
paint filter test (see December 28.1983.
notice of Availability) Incorporated the
use of a fluted funnel and standard
watchglaaa. These items were not part
of the apparatus of the paint filter test as
initially proposed In February. 1982.
Therefore, commenters addressed the
appropriateness of these measures for
the first time following the Notice of
Availability issued in December of 1983.
Commenters questioned the use of a
standard watchglass in the paint filter
test One commenter claimed that
evaporation la a negligible (actor
particularly when the dura tton ta short
Commenters opposed using the standard
watchglass to Simula ta landfill
pressures. Commenters signed that
there an no standardized conditions
that could be suggested aad any
attempts to go beyond an evaioattoa of
the waste itself will inevttahiy
complicate the testing end Interfere with
the results.
Comrnenters alao questioned the use
of a fluted paint filtarto heMtata
moiature flow. Cuminaaims stated that
moat laboratories do net eae a taaafc
instead, the paint fihar aieae te
supported by a ring ataei of about 100
mm ID. Another oommeem stared &ei
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Federal Register / Vibl. 50. No. 83 / Tuesday. April 30. 1985 / Rules and Regulations
18371
in his use of the paint filter test, the
support funnel used was of a different
conical crosa section than the paint
filter. Contact between the two occurred
only at the lip of the funnel. In this
situation, use of a fluked funnel would
be an unnecessary refinement.
A final comment requested that the
quantity of waste be specified as lOOg
rather than 100ml. The commenter
argued that measuring volume was not
practicable when dealing with visoous
materials.
(B) Evaluation of Various Test Protocols
and Response to Comments
EPA has evaluated a variety of testing
methods that could potentially
determine the presence of free liquids in
waste materials. The results of this
study were made available to the public
in the December 28,1983. Notice of
Availability. The test protocols
evaluated were an inclined plane test a
lab press, a filtration test a graduated
cylinder test a sieve test and a paint
filter test
Five waste materials were used to
evaluate these test methods. The
selected wastes were drilling mud. air
pollution control equipment sludge,
paint sludge, separator sludge, and
paper sludge. These waste materials
were not hazardous wastes, but were
selected because their textural
consistencies were representative of the
range of consistencies of hazardous
wastes. The waste materials included
those that could be classified as
gelatinous, granular, oilv, and fibrous.
The Agency has concluded that the
paint filter test is the correct selection
for a free liquid test protocol. The teat
protocols that simulate landfill '
pressures (lab press and filtration unit)
have more disadvantages than any of
the other test methods.1 These
disadvantages am
(1) Required operator training:
(2) Difficulties in running die test
methods; and
(3) Difficulties in dwaning the test
equipment
The operational problems of the
pressure tests could lead to inaccurate
results. Due to the complexity of the
equipment used in the pressure testa,
operator training is necessary to gain
familiarity with the equipment ana
understanding of the procedures. Even if
an operator has been trained. Ate
pressure tests have characteristics that
1 In addition to Dm factor* dtad la tilt taxL tht
pwwun tart aqulpnant wu non upntlm and
had Usher opmttaf cam than tb« odMr lot
mtboda. la light of ttw (act thai tha pimuii taat
methods «*tn alao lm nBabh. tte Aancjr
baUxw thai tt ¦auld not b» iuai ilhtUn t»
iwittifo iImm wthods.
make thea difficult to run. Proper
alignment of the piston and test cylinder
is critical to proper execution of the lab
press test When the alignment is not
perfect the test plunger will jam against
the sides of the cylinder. The lab press
must also be cleaned after every test
This is a tedious job due to the
numerous parts in the cylinder. If the
test cylinder is not thoroughly cleaned
between tests, accuracy of the test may
be impaired. A drawback encountered
when testing with the filtration unit
included the need to monitor the
pressure. Since the pressure must
always be maintained during testing
with the filtration unit continual
monitoring of the equipment is
necessary, thereby increasing the
complexity of the test
The other four test methods evaluated
were gravity tests (only atmospheric
pressure was applied to the samples).
The sieve test is too erratic and the
results are not reproducible. The
graduated cylinder test that takes 24
hours is too lengthy to be used by
owners and operators in the field. The
Agency was concerned that such a
lengthy test could interrupt landfill
operations and possibly result in
environmental damage. In addition, such
a test could be difficult for EPA
enforcement personnel to use.
This left the Agency with a choice
between the inclined plane test and the
point filter test The inclined plane test
had a few minor disadvantages
compared to the paint filter test The
overall test results indicate that the
inclined plane test is lees accurate than
the paint filter test in determining the
presence of free liquids. Occasionally
during testing, the entire waste sample
moved down the inclined plane. It
would be difficult to interpret whether
this indicated the presence or absence
of free liquids. Also, during testing of the
inclined plane, liquid adhered to the
underside of the glass surface, making
interpretation of the test results difficult
The Agency has concluded that on a
pass/fail bade, the paint filter test Is the
most appropriate test to use in order to
determine the presence of free liquids
and therefore determine which wastes
will require further treatment before
they can be landfilled.
A commenter from the regulated
community agieed that the selection of
the paint filter test as opposed to the
inclined plane test was the correct
choice as the appropriate test method by
saying"* * * it was found that the paint
filter method gave test results with a
much lower standard deviation and a
higher degree of agreement between
operators than the sloping plate test [the
inclined plane test j."
The length of the test should not
create undue operational burdens
because the test period is only five
minutes. The five minute duration of the
test was selected as opposed to a longer
period of time, because the laboratory
testing indicates that on a pass/fail
basis five minutes is adequate to detect
the presence of free liquids. Since this
regulation is intended only to indicate if
free liquids are present in a waste, a
quantitative test that determines the
absolute amount of free liquids in
wastes is not necessary. The five-minute
duration also provides a minimal testing
burden for owners or operators in terms
of the length of the test
In response to the comment that EPA
should specify a specific brand of paint
filter or provide specifications for the
filter mesh. EPA agrees and has
provided a specification for the filter
mesh. The laboratory tests were done
with e conical paint filter that had a
mesh number of 60. The proposed test
(February 25.1982) called for a 400
microm filter. The mesh number
indicates the number of holes per linear
inch: a filter with a mesh number of 80
has an opening every 00167 inch. A 400
micron filter bis an opening every 0X1137
inch. EPA believes that a 400 micron
filter and a filter with a mesh number of
80 are equivelent for the purposes pf this
test However, to promote uniformity
and provide specification for the filter
mesh, e conical paint filter with a mesh
number of 80 ia specified for future
testing.
In response to comments that EPA
should not require the use of a standard
watchglaas as part of the paint filter
testing. EPA agrees and has elected to'
not require the use of the watchglaas.
EPA agrees that evaporation will be a
negligible factor during testing since the
duration fo the test will only be five
minutes.
With regard to die use of e fluted
paint filter to facilitate moisture flow,
the Agency believes that one of the
approaches outlined by the commenters
has merit Therefore, the Agency
provides three options in the final test
(1) The paint filter alone can be
supported by the ring stand. (2) the paint
filter can be supported by a fluted glass
funnel or (9) this paint filter can be
supported by a glass funnel with an
open mouth that allows at Ieaat one inch
of the filter mesh to protrude. All three
of these an capable of supporting the
paint filter yet not interfering with the
movement of the liquid that passes
through die filter mesh to the gradua
cylinder. The option of using a suppv
funnel of different conical cross section
has not been allowed in the final test
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18372 Federal Register / Vol. 50. No. 83 / Tuesday, April 30. 1985 / Rules and Regulations
due to the anticipated difficulty of
supporting the watte sample and the
paint Alter.
The Agency has allowed the quantity
of material being tested to be lOOg as an
alternative to 100ml for those cases
where a viscous material is to be tested
for the presence of free liquids.
(C) Paint Filter Test
Today's rule makes the use of the
paint filter test mandatory for
determining whether a waste sample
contains free liquids. This means that
for the purposes of S § 284.314 and
265.314. dealing with liquids in landfills,
owners and operators must use the paint
Alter test in order to demonstrate the
presence or absence of free liquids in a
containerized or bulk waste. This
requirement has been added in
SS 264.314(c) and 285.314(d).
The Anal rule, which requires that the
paint Alter test be used for both bulk
and containerized waste, is a logical
outgrowth of the proposed rule. The
proposal. 46 FR 8313. provided that the
Agency would adopt the paint Alter test
as a test method to determine whether a
waste contains free liquids, and
expressly required that this test be used
to determine whether a waste sample
from a container contains free liquids.
Although the proposal did not
specifically address the issue of testing
samples from bulk liquid wastes, the
test methods examined in the proposal
were generally described as capable of
determining whether any waste sample
contains free liquids. In its Notice of
Availability. 48 FR 57144. the Agency
provided a broader rationale for the
rule. The notice stated that the test
protocols that were being considered
could be used to determine the existence
of free liquids in sludges, semi-solids,
slurries, and other waste types, and it
placed no limitation on the types of
wastes to which the test would be
applicable. Based on comments received
in response to the Notice, and on its
own analysis, the Agency has concluded
that there is no basis to distinguish
between bulk and containerized liquids
for the purposes of this test In addition,
inasmuch as the definition of "free
liquids" is the same for both balk and
containerized liquids, the Agency
considers it appropriate that the same
free liquids test apply to both bulk and
containerized liquids.
Hie paint filter test is also applicable
with regard to the new statutory ban on
bulk liquid hazardous wastes in section
3004(c)(1) of RCRA. which was added
by the Hazardous and Solid Waste
Amendments of 1984 (HSWA).
Beginning on May 8.1985. section
3004(c)(1) bans the placement of bulk
liquid hazardous wastes and free liquids
contained in hazardous wastes in any
permitted or interim status landfill. In
enacting the restrictions on liquids in
landfills in section 3004(c), Congress
intended to use EPA's current definition
of "free liquids." See S. Rep. No. 281
98th Cong., 1st Sess. 22 (1983). The
legislative history to the new ban
provision reveals that Congress was
aware that EPA was evaluating test
protocols for free liquids (notably, the
paint filter test and the inclined plane).
The Agency was authorized to specify
appropriate test protocols in connection
with the ban provision. Id. In view of
these explicit references to EPA's
current regulations and to the Agency's
evaluation of test protocols. EPA
believes that it is consistent with
congressional intent to require that the
Saint filter test be used to implement the
an on bulk liquid hazardous wastes
and hazardous wastes containing free
liquids.
The finalized paint filter test requires
that a predetermined amount of material
be placed in the paint filter (mesh
number of 60) and any portion that
passes through end drops from the filter
is whet is considered to be a free liquid.
A 100ml or lOOg representative sample is
required for the test The sample must
be placed in the filter for 5 minutes.
The paint filter test has been written
in EPA's standard test protocol format
and placed in EPA's test methods
manual EPA Publication No. SW-848
[Teat Methods for Evaluating Solid
Wastes) as Method 9095. SW-848 is
incorporated by reference in several
sections of EPA's regulations. Today's
amendment to the test methods manual
is now also Incorporated by reference
by virtue of its Incorporation Into this
The paint filter test will be referred to
as "Update ~ to SW-848" and is
available from the Superintendent of
Documents. U.S. Government Printing
Office (GPO), Washington, D.C 20401
(202-783-3228) (GPO Number 0SS-002-
81001-2). Persons holding a subscription
to the second edition of SW-848 will
automatically receive this amendment
Others may purchase both the second
edition of the manual and this
amendment from GPO.
Method BOM, as set oat la "Update II
to SW-846", will be substituted for the
version of Method 9098 that is tiuieutiy
printed in SW-848. As currently printed
in SW-846, the "Scope end Application"
provision of Method 9088 erroneously
states that the paint filter test must bo
used todetermine compliance with
1281.21 (characteristic of Ignitability)
and 128L22 (characteristic of
corrosivity). This reference is in error
because today's rule makes this test
mandatory only for the purpose of
determining whether free liquids are
present in materials that are to be
placed in landfills. In addition. Method
9095 as currently printed in SW-848
includes a procedure to determine the
percent free liquid in a sample. Today's
rule, which imposes a "pass-fail" test
does not require that such a procedure
be used. "Update Q to SW-848" deletes
these inaccurate provisions.
(D) Conforming Changes
As a result of adding the requirement
for the paint filter test to }{ 284.314 and
285.314. several minor conforming
changes are being made. These
conforming changes will add references
to existing reference lists in Subparts B
and E of Part 284 and in Subparts B, E.
and N of Part 285. Specifically, technical
conforming changes are being made to
IS 284.13 (General Waste Analysis),
284J3 (Operating record). 285.13
(General Waste Analysis), 285.73
(Operating record), and 285.302 (General
operating requirements).
(E) Ignitable and Corrosive Liquids
As noted la section C of this
preamble, today's rule requires that the
paint filter test be used to determine the
presence of free liquids in wastes that
are to be placed in a landfill Thus, the
test must be used to determine whether
free liquids are present in ignitable or
corrosive wastes that are to be
landfilled.
The Agency recommends that the test
also be used on ignitable westes under
128121 end corrosive wastes under
1281.22 in order to determine the
characteristics of the material (La.
whether it is considered a liquid or a
solid). Sections 28L21 and 281.22 use the
term "liquid.*" however, "liquid" (or
"aqueous." as a subset of liquid) was
never precisely defined. EPA believes
that for purposes of the characteristics
of ignitability and corrosivity. it will
generally be obvious whether or not the
waste is a liquid. Nevertheless, for
mixed-phase wastes. EPA suggests that
the paint filter test be used whenever
the question arises. The paint Biter test
may also be used to obtain the liquid
portion of the waste for subsequent
flash point evaluation (in the case of en
waste) or far corrosivity
evaluation (In the ease of e corrosive
waste),
EPA believes that this test provides e
practical method of testing ignitable and
corrosive materials to determine the
presence of liquids, and assists the*
regulated community in complying with
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Federal Register / Vol, 50. No. 83 / Tuesday. April 30, 1985 / Rules and Regulations
18373
the Part 281 requirements until further
evaluation it done.
m. State Authority
(A) Applicability of Rales in Authorized
State*
Under section 3006 of RCRA, EPA
nay authorize qualified States to
administer and enforce the RCRA
program within the State. (See 40 CFR
Part 271 for the standards and
requirements for authorization.)
Following authorisation. EPA retains
enforcement authority under sections
3008,7003, and 3013 of RCRA, although
authorized States have primary
enforcement responsibility.
Prior to the Hazardous and Solid
Waste Amendments of 1981 fHSWAJ
amending RCRA. a Stats with final
authorization administered Its
hazardous waste program entirely in
lieu of the Federal program. The Federal
requirements no longer applied in the
authorized State, and EPA could net
issue permits for any facilities within
(he State that the Stale was authorized
to permit When new, more stringent
Federal requirements were promulgated
or enacted, the State was obligated to
enact equivalent authority within
specified tiae frames. New Federal
requirements did not take effect la an
authorized State until the State adopted
the requirements as State law.
In contrast, under newly enacted
section 3000(g) of RCRA. 42 US.C.
68284g). new requirements and
prohibitions imposed by the HSWA take
effect in authorized States at the same
time that they take effect in
nonauthorized States. EPA is directed to
carry out those requirements and
prohibitions in authorized State*. -
Including the Issuance of permits, until
the State is granted authorization to do
so. Whila States must still adopt
HSWA-reiated provisions as State law
to ntein final authorization. HSWA
applies in authorised States in As
Interim.
Today's promulgation of a test
protocol to determine the presence of
free liquids will be applicable in
authorized Stales beimuso the
requirements are being imposed'
pursuant to tha Amendments. T^teefars,
these requirements take effect la
authorized States at the same time that
they take effect in nonauthorlzed States.
This rule is regarded as a requirement of
HSWA because tha Paint Filter Liquids
Teat will be used to implement HSWA's
ban on bulk liquid hazardous wastes,
and because Congress anticipated that
such s test protocol would be necessary
to implamant the new balk hazardous
liquid waste ban. See S. Rep. No. 284.
96th Cong* 1st Sees. 22 (1883).
(b) Effect on State Authorizations
Today's announcement promulgates
standards that are effective in all States
since the requirements are designed to
implement Section 3004(c)(1) of the
Hazardous and Solid Waste
Amendments of 1884.42 UJS.C. 8805,
6912(a). 8924. and 8929. Accordingly,
under Section 3008(g), EPA will
implement the standards in
unauthorized States, and in authorized
Slates until they revise their programs to
adopt these rules and the revision is
approved by EPA
A State may apply to receive either
interim or final authorization under
section 3008(g)(2) or 3008(b).
respectively, on the basis of
requirements that are substantially
equivalent or equivalent to EPA's. The
procedures and schedule for State
adoption of these regulations is
described in 40 CFR 2TU1 for section
3008(b). See 49 FR at 21678 (May 22.
1984). Similar procedures should be
followed for Section 3008(g)(2|.
Applying ) 27L21ts}(2), States thai
have final authorization must revise
their programs within a year of
promulgation of EPA's regulations if
only regulatory changes are necessary,
or within two years of promulgation if
statutory changes are necessary. These
deadlines can be extended in
exceptional cases (40 CFR 27121(e)(3)).
States that submit official applications
for final authorization less than 12
months after promulgation of EPA's
regulations may be approved without
tnnhwting standards equivalent to those
promulgated. However, once authorized,
a State must revise its program Is
include standards substantially
equivalent or equivalent to EPA's
standards within the time period
dbcussed ibovif
IV. Effective Dete
Section 3010(b) of RCRA, as amended
by HSWA. establishes the general
requirement that JEFA's hazardous waste
regulations end revisions thereto take
effect aix months after their
promulgation. Tha purpose of this
statutory requirement Is to allow
sufficient lead time far persons affected
by the regulations to prepare to comply
with major new regulatory requirements.
Section 3Q10(b} allows the
Administrator to provide an affective
date less than six months after
promulgation. This can happen when the
Administrator determines that the
regulated community does not need six
months to come into compliance with
the new regulatory requirements.
Today's amendment does impose a
new requirement. The Agency believes,
based on its analysis and on comments
received on the test that 45 days is mot
than sufficient to obtain the apparatus
necessary to conduct the paint filter test
One commenter noted that "this method
is vary simple, requires very little skill
and uses readily available, relatively
inexpensive equipment. The method can
be put into use within a short period (0-
2 weeks] with virtually no hardship to
generators or disposal site operators.''
The apparatus needed to conduct the
test includes a paint Alter, ring stand
and ring or tripod, beaker or graduated
cylinder, and a glass funnel (if
necessary). The Agency also believes
that familarity with the test procedure
can be achieved within 45 days. The
same commenter noted that, "* * * the
method can (be) taught to unskilled
workers within a few hours."
V. Compliance With Executive Order
12291
Executive Order 12271 (Section 3(b))
requires that regulatory agencies
prepare a Regulatory Impact Analyw
for all "major" rales. Section 1(b)
defines "major" rules as those which are
likely to result in:
1. An annual effect on the economy of
$100 million or mora;
2. A major increase in costs or prict
tor consumers or individual industries;
or
3. Significant adverse effects on
competition, employment investment,
productivity, innovaHan. or
international trade.
EPA's analysis Indicates that this test
protocol and its associated oosi does not
constitute a "major" nil*.
VI Regulatory Flexibffity Act
The Regulatory Flexibility Act (5
USC 801 at saq) requires a Federal
Agency to prepare a Regulatory
Flexibility Analysis (RFA) for all
regulations that have 'a significant
economic Impact on a substantial
number of small estltiea.*
This rale wtfi not have a significant
—imwIi! Impact oo a substantial
number of smaD amities because the
apparatus required by today's
promulgation is Uni4jen»J»» to buy
operate. AoooRfiady, thereby certify
that pursuant to I1UC M|b|l this
regulation will not ha»e a itgntWrairt
impact oo > substernal ns¦mar ol It
entities.
VBL Paparwadi taAaettaa Ad
Hm infoRaeOoa ooAscAm
requirements to &As Mia tew baas
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18374
Federal Registor / Vol. 50. No. 83 / Tuesday. April 30. 1985 / Rulea and Regulations
and Budget (OMB) under the Paperwork
Reduction Act of 1980.44 U.S.C. 3501-
3520 and have been assigned the
following control numbers: 2050-0012
and 2050-0013.
VHL List of Subjects
40 CFR Part 260
Administrative practice and
procedure. Hazardous materials. Waste
treatment and disposal
40 CFR Part 264
Hazardous materials, Packaging and
containers. Reporting and recordkeeping
requirements. Security measures. Surety
bonds. Waste treatment and disposal.
Water supply.
40 CFR Part 265
Hazardous materials. Packaging and
containers. Reporting and recordkeeping
requirements, Security measures. Surety
bonds. Waste treatment and disposal.
Water supply.
40 CFR Part 270
Administrative practice and
procedure. Reporting and recordkeeping
requirements. Hazardous materials.
Waste treatment and disposal, Water
pollution control. Water supply,
Intergovernmental relations. Penalties,
Confidential business information.
Incorporation by reference.
Dated' April 22.1985.
Lee M. Thomas,
Administrator.
For the reasons set forth in the
preamble. 40 CFR Parts 26a 284.285 and
270 are amended as set forth below.
PART 280—HAZARDOUS WASTE
MANAGEMENT SYSTEM; GENERAL
1. The authority citation for Part 280
reads as follows:
Authority; Sees. 1000,2002(a), 3001 through
3007,3010. and 7004 of the Solid Waste
Disposal Act as amended by the Resource
Conservation and Recorery Act of 1978 as
amended (42 UAC. BOOS. 0012(a). 88Z1
through 0927.8030 and 0874).
2. Section 280.11 la amended by
revising the fourth reference in
paragraph (a) to read as follows:
1280.11
(a) * * •
Teat Methods for Evaluating Solid
Waste, Physical/Chemical Methods",
EPA Publication SW-848 (Second
Edition, 1982 as amended oy Update I
(April, 1984), and Update ~ (April.
1985)]. The second edition of SW-848
and Updates I and 11 an available from
the Superintendent of Documents, U.S.
Government Printing Office,
Washington, D.C 20401, (202) 783-3228,
on a subscription basis.
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OP
HAZARDOUS WASTE TREATMENT,
STORAGE. AND DISPOSAL
FACILITIES
3. The authority citation for Part 284
reads as follows:
Authority; Sees. 1008,2002(a). 3001 and
3005 of the Solid Waste Disposal Act as
amended by the Resource Conservation and
Recovery Act of 1978, as amended (42 U.S.C.
6905. 8912(a), 8924, and 8923).
4. Section 284.13 is amended by
revising paragraph (b)(8) and by adding
an OMB control number to the end of
the section to read as follows:
S 264.13 General waste analysts.
t » t t t
(b) * .* •
(8) Where applicable, the methods
which will be used to meet the
additional waste analysis requirements
for specific waste management methods
as specified in IS 284.17.204.314. and
284.341.
• • • • •
(Information collection requirements in
paragraph (b)(8) approved by OMB under
control Dumber 2090-0012)
1 Section 28173 Is amended by
revising paragraph (b)(3) and by adding
an OMB control number to the end of
the section to read as follows:
126473 Operating record
• • • • •
tb) • • • •
(3) Records and results of waste
analyses performed aa specified In
|| 284.13.284.17,284411 and 281341."
(Informsdan collection requirements In
paragraph (b)(3) approved by OMB under
control number 2QSO-0013)
8. Section 281314 is amended by
reviaing its title and by adding a new
paragraph (c) to read aa follows:
1261314
*688
(c) To demonstrate the absence or
presence of tree liquids in either a
containerised or abulk waste, the
following test must be used: Method
9098 (Paint Filter Liquida Test) as
described in Test Methods far
Evaluating Solid Wastes, Physical/
Chemical Methods." [EPA Publication
No. SW-848).
PART 285—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
7. The authority citation for Part 285
reads as follow*:
Authority: Sees. 1006.2002(a). 3001 and
300S of the Solid Waste Disposal Act as
amended (42 U.S.C. 8905.8908.8912(e), 8921
and 8023).
8. Section 285.13 is amended by
revising paragraph (b)(8) and by adding
an OMB control number to the end of
the section to read as follows:
1268.13 Genefel waste snalysla.
(b) • * *
(8) Where epplicable. the methods
which will be used to meet the
additional waste analysis requirements
for specific waste management methods
aa specified in Si 285.193,285.225,
285.252.285473.285.314.285445,285475.
and 285.402.
• ••88
(Information collection requirements
approved by OMB under control number
2030-0012)
9. Section 28573 Is amended by
revising paragraph (b)(3) and by adding
an OMB control number to the end of
the section to reed es follows:
f 16171 Operating record.
6 • t 8 8
(3) Records and results of weste
analyses and trial tests performed as
specified In II 285.13.285.193.285.275.
285.282,288473,285414,285441,285478,
and 285^02:
• • • • •
(Internatloa collection requirements
approved by OBM under control number
2060-0013)
10. Section 285.302 as amended by
reviaing the comment to reed aa follows:
% UUtt General operating ro^utrofnoftto*
• • • • •
[Comnwit As required by 1268.13, the waata
analysis plan east Include analyses-needed
to oompiy with II286412. M313. end
268411 As required by 128173. the owner or
operator must place the results of these
analyees In the operating record of the
facility].
11. Section 288414 la amended by
reviaing its title and by adding a new
paragraph (d) to read aa follows:
(X68414
forMk
(d) To demonstrate the absence .or
i of free liquida In either a
-------
Federal Register / Vol 50, No. 83 / Tuesday. April 30. 1985 / Rules and Regulations
1B375
containerized or a bulk waale. the
following test must be used: Method
9095 (Paint Filter liquids Test) as
described in Test Methods for
Evaluating Solid Wastes, Physical/
Chemical Methods." [EPA Publication
No. SW-M6).
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
12. The authority citation for Pari 270
reads as follows:
Authority: Sacs. 1006, 2002.3005.3007. tod
7004 of tb* Solid Waste Disposal Act u - #
amended by the Resource Conservation ted
Recovery Act of 1978. as amended (42 U.S.C.
6905, 6912,6925,6927, and 6974).
13. Section 270.8 is amended by
revising the first reference in paragraph
(a) to read as follows:
S37M Reference!
W* * *
'Test Methods for Evaluating Solid
Waste. Physical/Chemical Methods",
EPA Publication SW-846 [Second
' Edition. 1982 as amended by Update I
(April. 1984) and Update H April. 19851
The second edition of SW-846 and
Updates 1 and 0 are available from the
Superintendent of Documents. U.S.
Government Printing Office.
Washington. D.C. 20401. (202) 783-3230.
on a subscription basis.
. |FR Doc 55-10278 Filed 4-29-83; MS am)
mUMO COOC UM-W-JI
-------
RCRA REVISION CHECKUST 17
HSWA Codification Rule
50 JFR 28702-28755
July 15, 1985
(HSWA Cluster I)
This codification rule Incorporated numerous HSWA amendments to RCRA into the existing
RCRA regulations. Since HSWA provides that States may seek authorization tor selected
provisions (instead of having to adopt all provisions simultaneously), this checklist has been
subdivided into logical groupings of the HSWA early enactment provisions. There are 19
subsections to this checklist
Checklist 17 A
Checklist 17 B
Checklist 17 C
Checklist 17 D
Checklist 17 E
Checklist 17 F
Checklist 17 G
Checklist 17 H
Checklist 17 I -
Checklist 17 J
Checklist 17 K
Checklist 17 L
Checklist 17 M
Checklist 17 N
Checklist 17 O
Checklist 17 P
Checklist 17 Q
Checklist 17 R
Checklist 17 S
Small Quantity Generators (superseded by Checklist 23)
Delisting
Household Waste
Waste Minimization
Location Standards for Salt Domes, Salt Beds, Underground Mines and
Caves
Liquids in Landfills
Dust Suppression
Double Liners
Ground-Water Monitoring
Cement Kilns
Fuel Labeling (superseded by Checklist 19)
Corrective Action
Pre-construction Ban
Permit Life
Omnibus Provision
Interim Status
Research and Development Permits
Hazardous Waste Exports (superseded by Checklist 31)
Exposure Information
July 15, 1985 • Page 1 of 27
-------
RCRA REVISION CHECKUST 17 A
Small Quantity Generators
Note: The changes addressed by this checklist were superseded by Revision Checklist 23 (51 FR
10146, March 24, 1986). As this latter checklist is in the same cluster as 17 A, States are
advised to make the changes required by Revision Checklist 23 rather than those addressed by
this present checklist Both checklists should be submitted at the same time as part of an
application, but the entries in the State citation column on Revision Checklist 17 A would direct
the reviewer to Revision Checklist 23 rather than to a section of State code.
ANALOGOUS
STATE ANAESG 15:
fcOUlV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
PART 261 - IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
SUBPART A - GENERAL
SPECIAL REQUIREMENTS FOR HAZARDOUS WASTE GENERATED BY SMALL QUANTITY
GENERATORS •
exceotions
261.5(b)
generator requirements
for exclusion of acutely
hazardous waste
261.5m
less than 100 kg
accumulation on-site
261.5(a)
greater than 100 kg
but less than 1000 kg:
waste determination
261.5(h)(1)
accumulation on-site
261.5(h)(2)
manifest after B/S/8S
261.5(h)(3)
treat or dlsoose
281.5(h)(4)
redesignate perraraph?
261.9(0 * (!)
Note: The SQG requirements Indicated as optional are reorganized and recocflfied but are
substantively unchanged from existing requirements.
July 15, 1985 • Page 2 of 27
-------
RCRA REVISION CHECKLIST 17 B
Delisting
Note: Delisting is an optional requirement If the State currently has a delisting program, then it
must modify Its delisting regulations to comply with these new standards. The changes to
260.22(b) were made at 54 FR 27114 (June 27, 1989). If a State was authorized for the changes
addressed by this checklist prior to this ode's promulgation date, then the State need not make
the required changes to 260.22(b) because these changes merely eliminate potential confusion as
to existing regulatory requirements. However, States which are not authorized as of this date
should make these changes If they choose to Include delisting as part of their program.
Also, States submitting this checklist need to provide documentation regarding other delisting
standards not covered by this checklist. The new SCRAM will contain a Consolidated Base
Program Checklist addressing Part 280 requirements that may be helpful to a State preparing this
documentation. The delisting program Is addressed by 40 CFR 260.20 and 260.22.
ANALOGOUS
STATE ANALOG IS:
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
stringent
IN SCOPE
PART 260 - HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
SUBPART C - RULEMAKING PETITIONS
t PETITION TO AMEND PART 261 TO EXCLUDE A WASTE PRODUCED AT A PARTICULAR
FACILITY
petitions to exclude
260.22(a)
change "these" to
"those" after "which is
described in"; remove
"contains a waste
listed in Subpart D"
after "listed in
Subpart D*; change
"section, except that
where" to "section.
Where"; remove "each
constituent listed
waste or" after
"wtth respect to"; add
statement that
analyses must be for
both constituents and
factors that could
cause mixture to be
hazardous
260.22(b)
waste fisted for I, C,
R or E
260.221c)
July 15, 1985 - Page 3 of 27
-------
RCRA REVISION CHECKUST 17 B: Delisting (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
ALENT
UuRE
STRINGENT
BROADER
IN SCOPE
waste listed for T
260.22(d)
waste listed for H
260.22(e)
remove temporary
exclusion
260.22/m)
July 15, 1985 • Page 4 of 27
-------
RCRA REVISION CHECKLIST 17 C
Household Waste
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
EQUIV-
ALENT
MORE BROADER
STRINGENT 1 IN SCOPE
PART 261 - IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
SUBPART A - GENERAL
EXCLUSIONS
household waste
261.4ft>M1)
July 15,1985 • Page 5 of 27
-------
RCRA REVISION CHECKUST 17 D
Waste Minimization
STATE ANALOG 15
ANALOGOUS
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CtTATtON
ALENT
STRINGENT
IN SCOPE
PART 262 - STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
SUBPART D - RECORDKEEPING AND REPORTING
BIENNIAL REPORT
reduce volume and
toxicity
262.41 (a)(6)
a description of
changes in volume/
toxicity
262.41 (a)(7)
certification
262.41(a)(8)
APPENDIX
manifest form
Aooendix to 262
item 16 of instruction
Aroendix to 262
PART 264 - STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART E - MANIFEST SYSTEM, RECORDKEEPING, AND REPORTING
APPLICABILITY
on-site and off-site
facilities
264.70
OPERATING RECORD
certification
284.73(b)(9)
PART 270 • EPA ADMINISTERED PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT PROGRAM
SUBPART C - PERMIT CONDITIONS
CONDITIONS APPLICABLE TO ALL PERMITS
July 15, 1985 - Page 6 of 27
-------
RCRA REVISION CHECKUST 17 D: Waste
Minimization (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
srrre analog i&
equiv-
alent
more
STRINGENT
BROADER
IN SCOPE
retainincr records
270.30(1) (2)
SUBPART Q - INTERIM STATUS
QUALIFYING FOR INTE
¦RIM STATUS
introductory text
270.70(a)
If previously denied a
RCRA permit
270.70(c)
July 15, 1985 • Page 7 of 27
-------
RCRA REVISION CHECKUST 17 E
Location Standards for Salt Domes, Salt beds, Underground Mines and Caves
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
EQUIV-
ALENT |
MORE BROADER
8TRINOENT I IN SCOPE
PART 264 - STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS
WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART B - GENERAL FACILITY STANDARDS
LOCATION STANDARDS
salt dome formations
264.18(c)
PART 265 - INTERIM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS
WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART B - GENERAL FACILITY STANDARDS
LOCATION STANDARDS
waste In salt domes
265.18
July 15,1985 • Page 8 of 27
-------
RCRA REVISION CHECKUST 17 F
Liquids in Landfills
Note that the final rule addressed by this checklist inadvertently reserved 265.314(d). This error
was corrected on May 28, 1986 (51 FR 19176), the technical correction addressed by Revision
Checklist 25. 265.314(d) was corrected to read as it was originally promulgated on April 30, 1985
(50 FR 18370, Revision Checklist 16).
STATE ANALOG IS:
ANALOGOUS
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINQENT
IN SCOPE
PART 264 - STANDARDS FOR OWNERS AND OPERATORS OF TREATMENT,
STORAGE, AND DISPOSAL FACILITIES
SUBPART N • LANDFILLS
SPECIAL REQUIREMENTS FOR LIQUID WAST
redesignate paragraph
lb) to (d)
264.314
introductory Daraaraoh
264.314(a)
5/8/85 free liauids ban
264.3141b)
non-hazardous liquids
ban 11/8/85
264.314(e)
exemptions:
onlv alternative
264.314(e)(1)
not a risk
264.314(e)(2)
PART 265 - INTERIM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS
WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART N
• LANDFILLS
SPECIAL REQUIREMEN
TS FOR LIQUID WASTE
redesignate (b) and
(c) to be (c) and (e)
265.314
Introductory Daraaraoh
265.314(a)
5/8/85 free liauids ban
265.314(b)
non-hazardous Bquids
ban 11/8/85
265.314(f)
July 15, 1985 - Page 9 of 27
-------
RCRA REVISION CHECKLIST 17 F: Uqulds
in Landfills (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
exemptions:
onlv alternative
265.314ff)(1)
not a risk
265.314(f)(2)
PART 270 - PERMITTING REQUIREMENTS
SUBPART B - PERMIT APPLICATION
SPECIFIC INFORMATION REQUIREMENTS FOR LANDFILLS
bulk liquids
In landfills: 5/6/85
270.21(h) I
July 15, 1985 « Page 10 of 27
-------
RCRA REVISION CHECKUST 17 Q
Dust Suppression
ANAL0OOU6
STATE ANM.OS IS:
cOuiv- ]
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALEHT 1
STRMOEHr
IN SCOPE
PART 266 - STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
SUBPART C - RECYCLABLE MATERIALS USED IN A MANNER CONSTITUTING DISPOSAL
STANDARDS APPLICABLE TO USERS OF MATERIALS THAT ARE USED IN A MANNER THAT
CONSTITUTES DISPOSAL
text deslanated (a)
266.23
road treatment
orohlbrted
266.23(b)
July 15, 1985 • Page 11 of 27
-------
RCRA REVISION CHECKUST 17 H
Double Uners
STATE ANALOG IS.
ANALOGOUS
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
PART 264 - STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS
WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART K - SURFACE IMPOUNDMENTS
DESIGN AND OPERAT
NG REQUIREMENTS
aDDlY to TSD facilities
264.2211a)
two or more liners
264.221(c)
alternative design and
ooeratina oractices
264.221(d)
monofills
264.221 (e)
SUBPART N • LANDFILLS
DESIGN AND OPERATI
NG REQUIREMENTS
introductory text
264.301(a)
two or more liners
264.301(c)
alternative design and
ooeratina oractices
264.301(d)
monofills
264.301(e)
redesignate old
264.301(c),(d).(e),(f)
and (g) as 264.301(f),
and m
264.301 (f).(I)
landfills In Alabama
264.301 (k)
PART 205 - INTERIM STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT. STORAGE, AND DISPOSAL FACILITIES
SUBPART K - SURFACE IMPOUNDMENTS
DESIGN REQUIREMENTS
July 15,1985 • Page 12 of 27
-------
RCRA REVISION CHECKLIST 17 H: Double
Liners (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
EQUIV-
ALENT
STATE ANAW
MORE
STRINGENT
3G IS:
BROADEH
IN SCOPE
two or more liners
265.221 (a)
notify Regional
Administrator
265.221(b)
redesignate old
265.221(c) as
265.221(f); add
new paragraph on
alternative design
and operating
practices
265.221 (c)
redesignate old
265.221(d) as
265.221(g); add
paragraph on
monofill
265.221(d)
redesignate old
265.221(e) as
265.221(h); add
new paragraph
allows installed liner
to be Dermitted liner
265.221(e)
redesignate old
265.221(c) as
265.221 ff)
265.221(0
redesignate old
265.221(d) as
265.221(a)
265.221(a)
redesignate old
265.221(e) as
265.221 (h)
265.221(h)
SUBPART L - WASTE PILES
DESIGN REQUIREMENT
rs
265.254 requirements
for new units,
expansions, and
reolacements
265.254
SUBPART N • LANDFILLS
DESIGN REQUIREMEN1
rs
two or more Oners
265.301(a)
July 15. 1985 - Page 13 of 27
-------
RCRA REVISION CHECKLIST 17 H: Double
Liners (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE ANALOG IS
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
notify the RA
265.301(b)
alternative design and
ODeratina practices
265.301(c)
monofills
265.301(d)
allows installed liner
to be permitted liner
265.301(e)
1 Applicable only to landfills in Alabama. States other than Alabama do not have to adopt this
provision.
July 15, 1985 - Page 14 of 27
-------
RCRA REVISION CHECKUST 17 I
Ground-Water Monitoring
STATE ANAldg is
MPBE
STRINGENT
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
"EOT*
ALE NT
BROADER
IN SCOPE
PART 264 - STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS
WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART F - RELEASES FROM SOLID WASTE MANAGEMENT UNITS
APPLICABILITY
t exemptions
264.90(b)
SUBPART K - SURFACE IMPOUNDMENTS
DOUBLE-LINED SURFACE IMPOUNDMENTS: EXEMPTION FROM SUBPART F
section removed
264.222
MONITORING AND INSPECTION
old 264.226(b)(3)
removed; 264.226(b)(4)
redesignated as
264.226(b)(3)
264.226(b)(3)
CLOSURE AND POST-1
CLOSURE CARE
old 264.228(b)(2)
removed; 264.228(b)(3)
and (4) redesignated
as 264.228(b)(2) and
(3)
264.228(b)(2)
section removed
264.228(d)
SUBPART L -
WASTE PILES
DOUBLE-LINED PILES:
EXEMPTION FROM SI
BPART F
section removed
264.252
INSPECTION OF UNEF
S: EXEMPTION FROM SUBPART F
section removed
264.253
MONITORING AND INSPECTION
July 15, 1985 - Page 15 of 27
-------
RCRA REVISION CHECKLIST 17 I: Ground-Water
Monitoring (cont'd)
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
STATE AKiALQO IS:
EQUIV-
ALENT
MORE
STRINGENT
BROADER
IN SCOPE
old 264.254(b)(2)
removed; 264.254(b)(3)
and (4) redesignated
as 264.254(b)(2) and
(3)
264.254(b)(2)
SUBPART N - LANDFILLS
DOUBLE-LINED LANDFILLS: EXEMPTIONS FROM SUBPART F
section removed
264.302
MONITORING AND INS
PECTION
remove old paragraph
264.303(b)(2); redesig-
nate 264.303(b)(3) and
(4) as 264.303(b)(2)
and C31
264.303(b)(2)
CLOSURE AND POST-C
CLOSURE CARE
remove old paragraph
264.310(b)(2); redesig-
nate 264.310(b)(3), (4)
and (5) as 264.310(b)
(2). (3) and (4)
264.310(b)(2)
subsection removed
264.310(c)
July 15, 1985 « Page 16 of 27
-------
RCRA REVISION CHECKLIST 17 J
Cement Kilns
ANALOGOUS
STATE ANAlog is:
EQUIV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
PART 261 - IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
SUBPART A - GENERAL
REQUIREMENTS FOR
RECYCLABLE MATERIALS
1 regulated
under Part 266
261.6(a)(2)
SUBPART D - LISTS OF HAZARDOUS WASTE
DISCARDED COMMERC
JIAL CHEMICAL PRODUCTS, etc.
introduction
261.33
PART 266 - STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS
WASTES AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
SUBPART D - HAZARDOUS WASTE BURNED FOR ENERGY RECOVERY
PROHIBITIONS
2 waste burned In kilns
266.31 mm
1
Note that this provision Is not contained In the July 15, 1985 rule. It appeared January 4, 1985
(50 FR 614-668, Revision Checkflst 13), and was subsequently amended on November 29, 1985
(50 FR 49164-49212, Revision Checklist 19).
'Note that this provision was recodified as §266.31 (c) on November 29, 1985 (50 FR 49164-
49212, Revision Checklist 19).
July 15. 1985 • Page 17 of 27
-------
RCRA REVISrON CHECKLIST 17 K
Fuel Labeling
Note: The changes addressed by this checklist were completely superseded in Revision Checklist
19 (50 FR 49164, November 29, 1985). As this latter checklist is in the same cluster as 17 K,
States are advised to make the changes required by Revision Checklist 19 rather than those
addressed by this present checklist. Both checklists should be submitted at the same time as part
of an application, but the entry In the State citation column on Revision Checklist 17 K should
refer the reviewer to Revision Checklist 19 rather than to a section of State code.
STATS ANALOG IS: " "
ANALOGOUS
TOUJV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
PART 266 - STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILJTIES
SUBPART D - HAZARDOUS WASTE BURNED FOR ENERGY RECOVERY
STANDARDS APPLICABLE TO MARKETERS OF HAZARDOUS WASTE FUE
m
labellino
266.34(d) I I
Jufy 15, 1985 • Page 18 of 27
-------
RCRA REVISION CHECKLIST 17 L
Corrective Action
STATE ANALOG Kb
EQUfV-1—MOBS j WPABER
ALEKT I 8TRINQENT I IN SCOPE
FEDERAL BBQUWEMEWT
FEDERAL. BCBA CITATION
ANALOGOUS
STATE CfTATWN
PART 284 - STANDARDS FOR THE OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
SUBPART F • RELEASES FROM SOLID WASTE MANAGEMENT UNITS
APPLICABILITY
solid waste
management unit
264.90(aV
sold waste
manaaement unit
264.101 (a)
soecHled in Dermit
264.101 (b)
PART 270 - PERMITTING REQUIREMENTS
SUBPART F - SPECIAL FORMS OF PERMITS
UIC permits issued
after 11/8/84
270.60fbK3)
NPDES permits issued
after 11/8/84
270.60(b)(3)
(vfl)
July 15, 1985 - Page 19 of 27
-------
RCRA REVISION CHECKLIST 17 M
Pre-construction Ban
STATE AHALWRr
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
ANALOGOUS
STATE CITATION
TBURT
AUNT
mors—f BHOABEfl
STHINQ6NT | IN SCOPE
PART 270 - EPA ADMINISTERED PERMIT PROGRAM: THE
HAZARDOUS WASTE PERMIT PROGRAM
SUBPART B - PERMIT APPLICATION
GENERAL APPLICATION REQUIREMENTS
new HWM facilities
270.10(f)(1)
delete old
pre-construction
provision
270.l0(fif31
NEW:
TSCA PCB facilttles
270.1
-------
RCRA REVISION CHECKUST 17 N
Permit Life
ANALOGOUS
STATE ANALOG IS:
equw-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALENT
STRINGENT
IN SCOPE
PART 270 -EPA ADMINISTERED PERMIT PROGRAM: THE
HAZARDOUS WASTE PERMIT PROGRAM
SUBPART D - CHANGES TO PERMIT
MAJOR MODIFICATION
OR REVOCATION AND REISSUANCE OF PE
"RMITS
modify permit to
assure compliance
270.41 faH6) I
SUBPART E - EXPIRATION AND CONTINUATION OF PERMITS
DURATION OF PERMITS
five year review for
land disposal permits
270.50(d)
July 15, 1985 - Page 21 of 27
-------
RCRA REVISION CHECKUST 17 O
Omnibus Provision
STATE ANALOG IS:
ANALOGOUS
TOUJV-
MORE
BROADER
FEDERAL REQUIREMENT
FEDERAL RCRA CITATION
STATE CITATION
ALE NT
STRINGENT
IN SCOPE
PART 270 - EPA ADMINISTERED PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT PROGRAM
SUBPART C - PERMIT CONDITIONS
ESTABLISHING PERMIT CONDITIONS
permit conditions
necessary
270.32(b)
July 15, 1985 - Page 22 of 27
------- |