Potential Adverse Impacts Under the Definition of Solid Waste Exclusions (Including Potential Disproportionate Adverse Impacts to Minority and Low-Income Populations) Volume 1


Potential Adverse Impacts Under the Definition of Solid Waste
Exclusions (Including Potential Disproportionate Adverse Impacts
to Minority and Low-Income Populations)

Volume 1 - Hazard Characterization

December 2014

Office of Solid Waste and Emergency Response
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue
Washington D.C. 20460

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Table of Contents

1	Introduction	2

1.1	Background	2

1.2	Overvi ew of Approach	3

1.3	EPA Response to Peer Review Comments	4

1.4	EPA Response to Public Comments	4

1.5	Purpose and Organization of Document	5

2	Hazard Characterization	7

2.1	Overview of Scenarios under the DSW Exclusion	7

2.2	General Hazards Associated with Hazardous Secondary Material	12

2.2.1	Types and Quantities of Hazardous Secondary Materials	13

2.2.2	Hazardous Properties of HSMs: Solvents and Electric Arc Furnace Dust	16

2.2.3	Media, Exposure Route, and Health Effects Hazard Associated with Recycling

of I ISM	17

2.2.4	Hazards Associated with Recycling of HSM	23

2.3	Regulatory Comparison - Summary of Comparative Results by Facility Type and
Scenario	31

2.4	Summary of Comparative Results by Facility Type and Scenario	38

2.5	Likelihood of Hazards under Scenarios	47

2.5.1	Role of Non-Compliance in Potentially Increased Hazards	47

2.5.2	Potentially Increased Hazards under 2008 DSW Exclusions	48

2.5.3	Potential Reductions and Transfers of Hazards by Facility Type and Scenario	69

2.5.4	Other Impacts	71

2.5.5	Trade-Offs Between Increased and Decreased Hazards	88

2.5.6	Regulatory Changes In The 2014 DSW Final Rule That Address The Potential
Adverse Impacts To Human Health And The Environment From The Current
DSW Exclusions	88

2.5.7	Implementation Measures That Address The Potential Adverse Impacts To
Human Health And The Environment From from Hazardous Secondary
Material Recycling	91

Appendix A: Comparison of Regulatory Requirements under 2008 DSW Final Rule to RCRA

and Other Federal Regulations

Appendix B: Acronyms and Abbreviations

Appendix C: Glossary

Appendix D: EPA Response to Peer Review Comments

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1 Introduction

1.1 Background

On October 30, 2008, the U.S.

Environmental Protection
Agency (EPA) published final
revisions to the definition of solid
waste that excludes certain
hazardous secondary materials1
from regulation under Subtitle C
of the Resource Conservation and
Recovery Act (RCRA), as
amended (73 FR 64663).

Specifically, EPA amended 40
CFR Part 261 to provide that
hazardous secondary materials (HSMs) reclaimed under the control of the generator are not solid
wastes if specified requirements are met. EPA also amended Part 261 to provide that HSMs that
are generated and then transferred to another person for the purpose of reclamation, including
exports, are not solid waste, provided that specified conditions are met. In addition, EPA
finalized other amendments to address particular issues (e.g., established standards in Part 260 to
enable a person to apply to EPA for a formal determination that a HSM is not discarded (i.e.,
non-waste) and therefore not a solid waste).

On January 29, 2009, the Sierra Club submitted an administrative petition to EPA requesting that
the definition of solid waste (DSW) rule be repealed. The petition argues that the revised
regulations are unlawful and that they increase threats to public health and the environment
without producing compensatory benefits and, therefore, should be repealed. In addition, the
petition disagrees with the Agency's findings that the rule would have no adverse environmental
impacts, including no adverse impact to minority or low-income communities.

Under the 2008 DSW final rule, EPA determined that the conditions of the rule would prevent
any increase in risk, and therefore there would be no disproportionate adverse impacts to
minority or low-income communities. However, the 2008 analysis did not take into account
whether the conditions of the rule would operate as effectively in the real world as the more
detailed requirements of the RCRA hazardous waste regulations. One of the most common
criticisms of the January 2010 draft environmental justice methodology was that it glossed over
some of the important protections of the hazardous waste regulations, particularly public
participation requirements.

After receiving the petition and communicating with stakeholders, EPA proposed revision to the
rule on July 22, 2011. The proposal modifies EPA's 2008 Definition of Solid Waste (DSW) rule
to improve accountability and oversight of hazardous materials recycling, while allowing for

1 A hazardous secondary material is any material that would be a hazardous waste if discarded.

Types of Exclusions Established by October 2008
DSW Final Rule

•	Generator-Controlled Exclusion (GCE) -

Materials that are generated and transferred to
another company for legitimate reclamation
under specific conditions;

•	Transfer-Based Exclusion (TBE) - Materials
that are generated and legitimately reclaimed
under the control of the generator (i.e., generated
and reclaimed on-site, by the same company, or
under "tolling" agreements); and

•	Petition-Based Exclusion (PBE)- Materials that
EPA or an authorized state determines to be
non-wastes through a case-by-case petition
process.

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important flexibilities that will promote its economic and environmental benefits. EPA proposed
to improve safeguards through:

• Replacing the transfer-based exclusion with alternate hazardous recyclable materials
standard.

• Adding a regulatory definition of "contained" and additional recordkeeping requirements
for generator-controlled exclusion.

• Making all four legitimacy factors mandatory and requiring documentation.

• Applying the regulatory definition of legitimate recycling to all hazardous waste and
hazardous secondary material recycling.

• Requesting comment on applying the contained standard, notification, and recordkeeping
for speculative accumulation to existing recycling exclusions.

In addition, EPA proposed to encourage recycling through:

• Alternative standard that allows generators a longer accumulation time (one year) if there
is a reclamation plan in place.

• Retaining the generator-controlled exclusion for recycling performed on-site, at the same
company, or under certain tolling agreements.

• Providing a petition process for instances where legitimacy factors are not met, but
recycling is still legitimate.

• Requesting comment on a targeted exclusion for higher-value hazardous solvents which
are re-manufactured into commercial-grade products.

As part of the 2011 proposal, EPA published a draft Environmental Justice Analysis of the 2008
rule, which included an analysis of the potential disproportionate impacts of the 2008 DSW final
rule. This report revises the EJ Analysis to reflect the 2014 final rule.

1.2 Overview of Approach

The methodology for the EJ Analysis described in this document is based on the one used in the
2011 draft analysis, modified based on:

• Comments from an external peer review of the draft EJ Analysis

• Comments from the general public and other stakeholders.

• Updated data.

The methodology also adheres to existing Federal and EPA-specific guidance on how to
incorporate EJ into the Agency's process for developing regulations and how to conduct analyses
that incorporate EJ considerations. This includes, in particular, EPA's Action Development
Process and Interim Guidance on Considering Environmental Justice During the Development of
an Action. This document describes the approach and results of the analysis. The draft analyses
and results presented in this report will be used to inform the identification of potential
preventive and mitigation strategies.

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1.3 EPA Response to Peer Review Comments

From December 2010 to January 2011, an EPA contractor, organized and facilitated an
independent letter peer review of EPA's Preliminary Draft Definition of Solid Waste Final Rale
Environmental Justice Analysis, following the guidelines in EPA's Peer Review Handbook, Third
Edition (http J/www, epa. gov/peerreview/).

Three independent experts conducted the review:

• Dr. Dorothy M. Daley, University of Kansas

• Dr. Deeohn Ferris, Sustainable Community Development Group, Inc.

• Dr. Diane S. Henshel, Henshel EnviroComm Consulting and Indiana University

In general, the reviewers thought that the Draft Definition of Solid Waste Final Ride
Environmental Justice Analysis adequately reviews, presents, analyzes, and summarizes the
available data.

This document reflects EPA's response to these comments. EPA's response to specific peer
review comments and how they were reflected in this document is contained in Appendix D.

1.4 EPA Response to Public Comments

Public comments were submitted on www.regulations.gov or in the Federal Register notice
under docket number EPA-HQ-RCRA-2010-0742 for the 2011 DSW proposal. Specific changes
to this document in response to those comments include:

• Separated the analysis into two volumes to help better distinguish the analysis of
potential impacts to all potentially affected communities (Volume 1: Hazard
Characterization) from the analysis of the potential for disproportionate impacts to minor
and/or low-communities (Volume 2: Assessment of Disproportionate Adverse Impacts)

• Added examples of uncovered waste piles of electric arc furnace dust (K061) and
additional documentation of risks posed by this material.

• Added a reference to ingestion pathway via contaminated produce and contaminated fish.

• Expanded discussion of risks from transboundary movement and exports

• Removed the derived-from rule from the potential impacts discussion

• Clarified language on potential impacts from smaller generators

• Added a discussion of the role of non-compliance in increased hazards

• Added an analysis of baseline impacts at non-recycling Subtitle C facilities and expanded
the discussion of tradeoffs between increased and decreased hazards under the rule

• Expanded explanation of how the determine "disproportionate" is defined for the
purposes of this analysis

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•	Expanded explanation of how certain sites served as surrogates for possible future DSW
facility locations and should not be presumed to reflect actual DSW facility behaviors

•	Updated the damage case facilities based on the revised damage case study

•	Added a sensitivity analysis of impacts within a 1-kilomter radius

•	Added documentation of the geocoding software

•	Added a discussion of how water bodies are treated under the apportionment
methodology

•	Added documentation of the "affected population ratio" methodology

•	Updated the analysis with the 2010 census data

•	Updated the analysis using two times the poverty level to determine "low income"
populations

A full discussion of EPA's response to comments on the environmental justice analysis can

be found in Chapter 3 of the response to comment document, located in the docket for the

2014 DSW final rule.

1.5 Purpose and Organization of Document

This report presents EPA's characterization of the hazards addressed by the 2008 DSW
exclusions (Volume 1 of the DSW environmental justice analysis). The remainder of this
volume is organized as follows:

•	Section 2 describes the hazards associated with HSMs when generated and managed
under the current DSW exclusions, including the types, quantities, and health hazards
associated with HSMs and the types of hazards (e.g., releases) that could occur at
generator, transporter, and intermediate and reclaimer facilities managing such materials,
including:

o Section 2.1, Overview of Scenarios under the DSW Exclusion, describes the
scenarios that EPA used to identify and analyze the hazards associated with
managing HSMs under the hazardous waste regulations and under the current
DSW exclusions.

o Section 2.2, General Hazards Associated with Hazardous Secondary Material,
describes the general hazards associated with HSMs when managed by recycling.

o Section 2.3, Regulatory Comparison - Summary of Comparative Results by
Facility Type and Scenario, presents the results of EPA's comparison of the full
RCRA Subtitle C hazardous waste regulations (baseline scenario) to the federal
regulations applicable to facilities operating under the current DSW exclusions.

o Section 2.4, Summary of Comparative Results by Facility Type and Scenario,
summarizes the key regulatory differences and consequences described in Section
2.3 of this report.

o Section 2.5, Likelihood of Hazards under Scenarios, presents EPA's analysis of
the likelihood of changes in hazards for each type of facility (generators,

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transporters, and intermediate and reclamation facilities) and each scenario
described in Section 2.1 of this report

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2 Hazard Characterization

2.1 Overview of Scenarios under the DSW Exclusion

This section describes the scenarios that EPA used to identify and analyze the hazards associated
with managing HSMs under the hazardous waste regulations and under the current DSW
exclusions. Generators, transporters, and intermediate and reclamation facilities may manage
HSMs in several different ways both under hazardous waste regulations, and under the current
DSW exclusions. Each scenario represents a different combination (or set of combinations) of
baseline and DSW practices. Hazardous waste management practices reflect ways that
generators and facilities are managing HSMs under the existing hazardous waste regulations
(i.e., before they claim an exclusion). The DSW practices reflect ways that these same
generators and facilities are managing, or might manage, HSMs after they claim an exclusion
under the current DSW exclusions.

In developing these scenarios, EPA first reviewed the current state of generation of recyclable
hazardous wastes and management practices for those waste, including on-site and off-site
storage, transportation, treatment, disposal, and recycling. For off-site recycling, EPA
considered recycling in both domestic and foreign facilities. EPA then analyzed each provision
of the DSW rule and identified how it might impact generation and management practices. EPA
then grouped the possible changes in hazardous waste generation and management resulting
from the rule into eight scenarios based on observed similarities.

Under the current DSW regulations, there are three types of conditional exclusions from the
RCRA Subtitle C hazardous waste regulations for persons who generate or reclaim HSMs.

These are described in the box to the right,
of exclusion. These different
requirements are expected to affect how
each type of generator/facility modifies its
generation and management of HSMs
based on the type of exclusion claimed.

The scenarios below were developed
based on the expected impacts of the
Generator-Controlled Exclusion (GCE)
and Transfer-Based Exclusion (TBE), and
each scenario describes whether it is
applicable to facilities operating under the
GCE, TBE, or both. Petition-Based
Exclusions are not considered in this
analysis because they are granted on a
case-by-case basis, and the exact nature of
such exclusions cannot be determined
until petitions are granted. In addition, at
the time this report was prepared, no

petitions for a non-waste exclusion have been submitted. The type of exclusion claimed under
each scenario is used in Section 2.4 of this report to help compare the regulatory framework
between hazardous waste regulations and the current DSW exclusions.

'A established different requirements for each type

Types of Currently DSW Exclusions

• Generator-Controlled Exclusion (GCE) -

Materials that are generated and transferred to
another company for legitimate reclamation under
specific conditions;

• Transfer-Based Exclusion (TBE) - Materials
that are generated and legitimately reclaimed
under the control of the generator (i.e., generated
and reclaimed on-site, by the same company, or
under "tolling" agreements); and

• Petition-Based Exclusion (PBE) - Materials that
EPA or an authorized state determines to be non-
wastes through a case-by-case petition process.

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For each scenario, EPA also considered whether the facility is permitted under RCRA, and the
descriptions below identify the potential RCRA-permit status of the facility. The RCRA permit
status of facilities under each scenario is used in Section 2.4 of this report to help compare the
regulatory framework between the hazardous waste regulations and the current DSW exclusions

EPA has identified the following eight scenarios that it considers likely to occur. Note that EPA
identified additional potential scenarios, but deemed them unlikely to occur. These scenarios are
briefly described at the end of this section, but are not addressed further in this document.

Scenario 1: Generator continues current recycling practices under GCE or TBE. This
scenario involves a generator that has been reclaiming its HSM under the hazardous waste
regulations, and opts to continue these practices under either the GCE or TBE. This could
include, for example, a generator that reclaims onsite under hazardous waste regulations and
claims the GCE to continue reclaiming on site, or a generator that exports its HSM under the
hazardous waste regulations and claims the TBE to continue exporting the HSM.

Scenario 2: Generator switches from off-site treatment/disposal to on-site reclamation.

This scenario involves a generator that has been shipping its HSM to an off-site Treatment,
Storage, or Disposal Facility (TSDF) for treatment then disposal under the hazardous waste
regulations, but opts to reclaim that HSM onsite under the GCE.

Scenario 3: Generator switches from off-site treatment/disposal to off-site recycling under
the control of the generator. This scenario involves a generator that has been shipping its HSM
to an off-site TSDF for treatment followed by disposal under the hazardous waste regulations,
but opts to ship that HSM to an off-site facility that it controls for reclamation under the GCE.

Scenario 4: Generator switches from off-site treatment/disposal to off-site recycling at a
RCRA-permitted facility. This scenario involves a generator that has been shipping its HSM to
an off-site TSDF for treatment followed by disposal under the hazardous waste regulations, but
opts to ship that HSM to an off-site RCRA-permitted TSDF for reclamation under the TBE.

Scenario 5: Generator switches from off-site treatment/disposal to off-site recycling at a
U.S. facility without a RCRA permit. This scenario involves a generator that has been
shipping its HSM to an off-site TSDF for treatment followed by disposal under the hazardous
waste regulations, but opts to ship that HSM to an off-site facility in the U.S. without a RCRA
permit for reclamation under the TBE.

Scenario 6: Generator switches from off-site disposal to exporting for recycling. This
scenario involves a generator that has been shipping its HSM to an off-site TSDF for disposal
under the hazardous waste regulations, but opts to ship that HSM to for recycling to a facility
outside the U.S. for reclamation under the TBE.

Scenario 7: Generator switches from off-site recycling at a facility without a permit2 to
another type of recycling under the current DSW exclusions. This scenario involves a
generator that has been shipping its HSM for reclamation to an off-site TSDF in the U.S. without
a RCRA permit under the hazardous waste regulations, but opts to have the HSM reclaimed at a
different type of facility under the TBE. This could include, for example, a generator that ships
HSM offsite for reclamation at a TSDF in the U.S. without a RCRA permit under hazardous

2 Under the RCRA hazardous waste regulations, facilities that recycle immediately without storing the hazardous
waste do not need a RCRA permit.

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waste regulations, but changes its practice to ship the HSM offsite for reclamation at a RCRA
permitted facility under the TBE, or changes its practice to export the HSM for reclamation at a
recycling facility outside the U.S. under the TBE.

Scenario 8: Generator switches from off-site recycling at a RCRA-permitted facility or
exporting waste for reclamation to another country to another type of recycling under the
current DSW exclusions. This scenario involves a generator that has been shipping its HSM to
an off-site RCRA-permitted TSDF or exporting it to a foreign reclamation facility under the
hazardous waste regulations, but opts to have the HSM reclaimed at a different type of facility
under the GCE or TBE. This could include, for example, a generator that changes its practice to
reclaim the HSM onsite or at an off-site facility (without a permit) under its control, and claims
the GCE. The generator also may choose to ship its HSM offsite for reclamation at either a
recycling facility in the U.S. without a RCRA permit or a reclamation facility outside the U.S.
and claim the TBE. Similarly, a generator that exports HSM for reclamation at a reclamation
facility outside the U.S. under hazardous waste regulations, may change its practice to reclaim
the HSM onsite or at an off-site facility under its control, and claim the GCE. The generator also
may choose to ship its HSM offsite for reclamation at either a RCRA-permitted TSDF or a
recycling facility in the U.S. without a RCRA permit and claim the TBE.

Unlikely Scenarios: As mentioned above, EPA identified additional potential scenarios that it
deemed unlikely to occur. These unlikely scenarios include:

• A generator that has been reclaiming HSMs onsite under the hazardous waste regulations,
but opts to ship that HSM to an off-site facility that it controls for reclamation under the
GCE. EPA believes this scenario is unlikely because switching from on-site recycling to
off-site recycling is likely to result in additional transportation costs. Generators that
make this type of change are unlikely to do so as a result of the current DSW exclusions.

• A generator that has been reclaiming HSMs onsite under the hazardous waste regulations,
but opts to ship that HSM to an off-site RCRA-permitted TSDF, an off-site recycling
facility in the U.S. without a RCRA permit, or a reclamation facility outside the U.S. for
reclamation under the TBE. EPA believes this scenario is unlikely because switching
from on-site recycling to off-site recycling is likely to result in additional transportation
costs. Generators that make this type of change are unlikely to do so as a result of the
current DSW exclusions.

Both of these unlikely scenarios are based largely on the assumption that transportation costs
would discourage generators from switching from on-site to off-site reclamation under the
exclusions. Although HSM under the exclusions is no longer a hazardous waste, it likely would
still qualify as a DOT hazardous material and be subject to transportation requirements similar to
those applicable to hazardous waste. Because of this, EPA assumes that, in general, generators
under the exclusions face the same general level of transportation costs as under hazardous waste
regulations, and therefore are unlikely to find a financial benefit to switching to off-site
reclamation.

In addition, other factors also may discourage these generators from switching to off-site
reclamation. EPA assumes that generators currently reclaiming HSM onsite have invested time
and resources to purchase and operate reclamation equipment. The costs and inconvenience of
shutting down such operations and dismantling and removing the equipment could be a
disincentive to switching to off-site reclamation. In addition, some generators' reclamation

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activities and equipment may be highly integrated into their manufacturing or other processes,
such that a change in HSM management would be infeasible or impractical. For example, some
generators may be operating distillation units and feeding the distillate back into production
processes as a key ingredient. Further, some generators may have pre-existing agreements to
receive HSM from off-site sources for reclamation or to supply the reclaimed HSM to third
parties.

EPA recognizes that these assumptions may not apply to all generators performing reclamation
onsite. EPA acknowledges that, in some instances, generators may have sufficient incentive to
switch to off-site reclamation. For example, if the cost of off-site reclamation is low enough,
these lower costs could offset the additional costs of transportation and other costs associated
with switching to off-site reclamation, and provide the generator with an incentive to switch to
off-site reclamation.

Table 2.1. Scenarios under Baseline and DSW Exclusions

Baseline



DSW Practices

Scenario 1: Generator continues current recycling practices

Generator reclaims material onsite under
hazardous waste regulations



Generator reclaims material onsite
under GCE

Generator sends material offsite for
reclamation to RCRA-permitted facility
under hazardous waste regulations



Generator sends material offsite for
reclamation at a RCRA-permitted
facility under TBE

Generator exports material under
hazardous waste regulations for
reclamation in another country



Generator exports material under
the TBE for reclamation in another
country

Scenario 2: Generator switches from off-site disposal to on-site reclamation

Generator sends material offsite to a
RCRA permitted facility for incineration
or landfilling under hazardous waste
regulations



Generator reclaims material onsite
under GCE

Scenario 3: Generator switches from off-site disposal to off-site recycling
under the control of the generator

Generator sends material offsite to a
RCRA permitted facility for incineration
or landfilling under hazardous waste
regulations



Generator sends material offsite for
reclamation at a facility that it
controls under GCE

Scenario 4: Generator switches from off-site disposal to off-site recycling at a RCRA-

permitted facility

Generator sends material offsite to a
RCRA permitted facility for incineration
or landfilling under hazardous waste
regulations



Generator sends material offsite for
reclamation at a RCRA-permitted
facility under TBE

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Table 2.1. Scenarios under Baseline and DSW Exclusions

Baseline



DSW Practices

Scenario 5: Generator switches from off-site disposal to off-site recycling at a U.S. facility

without a RCRA permit

Generator sends material offsite to a
RCRA permitted facility for incineration
or landfilling under hazardous waste
regulations





Generator sends material offsite for
reclamation at a facility in the U.S.
without a RCRA permit under TBE

Scenario 6: Generator switches from off-site disposal to exporting for recycling

Generator sends material offsite to a
RCRA permitted facility for incineration
or landfilling under hazardous waste
regulations





Generator exports material under
the TBE for reclamation in another
country

Scenario 7: Generator switches from off-site recycling at a facility without a permit to
another type of recycling under the current DSW exclusions

Generator sends material offsite for
reclamation at a facility in the U.S.
without a RCRA permit under
hazardous waste regulations

¦





•	Generator sends material offsite
for reclamation at a facility under
GCE, or

•	Generator exports material under
the TBE for reclamation in
another country, or

•	Generator sends material offsite
for reclamation at a RCRA
permitted facility under TBE, or

•	Generator sends material offsite
for reclamation at a facility in the
U.S. without a RCRA permit
under TBE

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Table 2.1. Scenarios under Baseline and DSW Exclusions

Baseline



DSW Practices

Scenario 8: Generator switches from off-site recycling at a RCRA-permitted facility or
exporting waste for recycling to another type of recycling under the current DSW

exclusions

Generator sends material offsite for
reclamation to RCRA-permitted facility
under hazardous waste regulations

1



J

•	Generator reclaims material
onsite under GCE, or

•	Generator sends material offsite
for reclamation at a facility that
it controls under GCE, or

•	Generator sends material offsite
for reclamation at a facility in the
U.S. without a RCRA permit
under TBE, or

•	Generator exports material under
the TBE for reclamation in
another country

Generator exports material under
hazardous waste regulations for
reclamation in another country

1





•	Generator reclaims material
onsite under GCE, or

•	Generator sends material offsite
for reclamation at facility under
GCE, or

•	Generator sends material offsite
for reclamation at a RCRA
permitted facility under TBE, or

•	Generator sends material offsite
for reclamation at a facility in the
U.S. without a RCRA permit
under TBE

2.2 General Hazards Associated with Hazardous Secondary Material

This section describes the general hazards associated with HSMs when managed by recycling.3
In this section, EPA presents the potential hazards associated with HSMs independent of health
and safety and regulatory controls that might be placed on HSMs. Communities in which
generation, transportation, or reclamation of HSM under the DSW final rule is conducted may be
at risk of exposure to the hazards associated with HSM. Section 2.2.1 identifies the types,
quantities, and properties of HSM that are generated and reclaimed nationally and describes their
chemical and physical properties. Because of the wide variety of HSMs that may be recycled,
not all of them are addressed in this section. Section 2.2.1 also identifies the types of HSMs that
are the focus of this section, and provides the reasoning behind why these materials were
selected based on their quantities and properties. Section 2.2.2 contains a description of the
hazards associated with selected HSMs based on their properties. While this section focuses on

3 While the term recycling is used throughout this document, the current DSW exclusions is limited to reclamation
activities.

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the hazards associated with these HSMs, the EJ analysis presented in this report covers all HSMs
that may be recycled under the DSW exclusions. Section 2.2.3 describes the processes
associated with the generation, storage, and recycling of the selected HSMs, and how those
processes can result in potential hazards to human health and the environment.

2.2.1 Types and Quantities of Hazardous Secondary Materials

This section describes the types, quantities, and properties of HSMs evaluated It identifies the
types and quantities of HSMs generated, and using that information, identifies two specific
HSMs that are the selected as the focus of this report—spent solvents and electric arc furnace
dust. It also describes the quantities and characteristics of these two wastes that resulted in their
selection as a focus of this report. For the selected wastes, Section 2.2.2 describes their
properties, including the potential human health and environmental hazards they pose,
contamination pathways, and human health effects.

Types and Quantities of Hazardous Secondary Material

Each year, many types of hazardous waste are recycled, each possessing distinct quantities and
properties. In 2007, over 370 types of hazardous waste codes contained in 40 CFR Part 261
were recycled. These waste codes include a wide variety of materials, including aqueous streams
referred to as wastewaters and streams that contain organic liquids or physically solid materials
referred to as non waste waters. These materials also include a wide variety of wastes from
manufacturing and other processes, and they contain many different chemicals, including
halogenated organic compounds, non-halogenated organic compounds, metals, and other
contaminants.

In 2007, about 16,000 facilities generated 32.3 million tons of hazardous waste. Of these 32.3
million tons of waste, about 2 million tons were recycled. Figure 1 shows that the waste codes
associated with the largest amounts of recycled hazardous wastes in 2007 were electric arc
furnace dust (i.e., waste code K061) and spent solvents (i.e., waste codes F001 through F005).

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Figure	1 : Hazardous

/	2007

Remaining 370 Waste
Code Groups

K061

F1 5

~	K061 - Electric arc furnace dust

~	F1_5 - Mixture of F001-F005 solvents

~	D001 - Ignitable waste

~	D008 - Lead waste

~	TCMT - Mixed toxicity characteristic metals

~	F003 - Spent non-halogenated solvents

~	TCORICR - Mixed toxicity characteristic organics

~	F006 - Wastewater treatment sludges
¦ K088 - Spent potliners

~	F037 - Petroleum refineryprimarysludges

~	K171 - Spent hydrotreating catalyst

~	KXXX- Mixture of K waste code wastes

~	D007 - Chromium waste

~	F005 - Spent non-haiogenated solvents

~	Remaining 370 Waste Code Groups

TCORICR-' F003 TCMT

Sources: 2007 Biennial Report-GM Onsite and Offsite Forms
ORCR's Draft Export/Import Database

Preliminary Draft - Do Not Cite

EPA's An Assessment of Environmental Problems Associated With Recycling of Hazardous
Secondary Materials (hereafter referred to as the Environmental Problems Study) contains
information about environmental damage cases and the types of potential hazards from the
mismanagement of HSMs.4 Specifically, the Environmental Problems Study examines 250
facilities in which environmental damage " of some kind occurred from some type of recycling
activity, and that appeared to clearly fit within the scope of the study, which include the
following types of cases: (1) cases where environmental damage can be attributed to some type

4 This document was originally published in January' 2007 in support of the 2008 DSW final rale. Since the
Environmental Problems Study was published in 2007, EPA has continued to compile and assess new information
on environmental problems associated with the recycling of HSMs (including information submitted through public
comment as part of the DSW rulemaking process) and, based on this information, has updated the study on several
occasions. The latest version of the Environmental Problems Study is dated December 2014.

s In this context, EPA used the term "environmental damage" broadly to include leaks, spills, dumps, or other types
of releases of hazardous substances into the environment that were serious enough to require some type of cleanup
action. The term also includes situations in which materials were abandoned (e.g., in warehouses) without having
been actually released into the enviromnent, but which posed potential threats and thus required removal actions that
were conducted by one or more government agencies, and involved expenditure of public funds.

14

-------
of recycling activity, (2) cases that have occurred within the current environmental regulatory
and liability systems (i.e., cases in which some form of environmental damage appears to have
occurred during or after the year 1982), and (3) cases involving recycling of regulated hazardous
wastes or HSMs that are specifically excluded from RCRA regulation. Therefore, the
Environmental Problems Study is not intended to assess environmental damage associated with
facilities that are currently implementing the 2008 DSW final rule. This is because the limited
number of notification facilities and the short amount of time these facilities have been
employing the 2008 DSW final rule might not be representative of a full implementation of the
regulation. The Environmental Problems Study, however, is intended to assess the potential for
future environmental damage and EJ impacts under the current DSW exclusions.

The most common types of secondary materials associated with the damage cases evaluated in
the Environmental Problems Study were scrap metals (25%), batteries (17%), spent solvents
(17%>), and used oil (16%>).6

Selection of two HSMs as the Focus of this Report

EPA selected two materials, solvents and electric arc furnace dust, as a focus of this report
because they represent a relatively large amount of HSMs that would be eligible for exclusion
under the current DSW exclusions, as well as represent a variety of characteristics of HSMs, as
described below.

Specifically, solvent wastes were selected as a focus of this report because of their prevalence in
the damage cases documented in the Environmental Problems Study (i.e., 42 damage cases that
involve the use of solvents in recycling operations, or identify solvents as a potential source of
contamination), the large amount of solvents currently recycled (i.e., 3.23 million tons recycled
in 2007), and the potential hazards posed by solvents. The potential hazards posed by solvents
are discussed in Section 2.2.2 of this report. In addition, solvents that are recycled are typically
in a liquid state, and usually contain volatile organic chemicals, which present particular
management challenges associated with the storage of liquids and fugitive air emissions.
Solvents also include both halogenated and non-halogenated organic chemicals, which represent
a broad range of chemicals and associated hazards.

Electric arc furnace dust is a focus of this report because it was the most commonly recycled
material in 2007 (i.e., 11.63 million tons recycled in 2007) . In addition, several damage cases
documented in the Environmental Problem Study (i.e., a total of six damage cases) involve the
use of electric arc furnace dust in recycling operations, or identify electric arc furnace dust as a
potential source of contamination. Furthermore, selecting electric arc furnace dust complements
the selection of solvent wastes because these two types of HSMs represent a variety of
characteristics of HSMs. Electric arc furnace dust is usually in a solid state and presents
different management challenges than liquid solvents. Electric arc furnace dust is also often
present as a dust, which presents hazards associated with wind-blown dust. In addition, this
HSM contains metals, a class of potential contaminants that is generally considered to pose
hazards different from the organic chemicals found in solvents.

6 EPA. 2012. An Assessment of Environmental Problems Associated With Recycling of Hazardous Secondary
Materials.

-------
By selecting solvents and electric arc furnace dust, this report can assess a variety of potential
hazards and management challenges. The potential hazards associated with solvents and electric
arc furnace dust and their recycling are discussed further below.

Other secondary materials associated with damage cases, including scrap metals and used oil, are
not a focus of this report because they are already covered by exclusions or special management
standards and their regulation and management are not expected to be significantly impacted by
the current DSW exclusions. Batteries are not a focus because they are not currently recycled in
the quantities similar to electric arc furnace dust and solvents. In addition, batteries are subject
to the Universal Waste standards, which facilitate the environmentally sound collection and
proper recycling or treatment of these wastes. The management of hazardous wastes already
subject to the Universal Waste standards is not expected to be impacted by the current DSW
exclusions as wastes subject to full hazardous waste regulatory controls prior to the DSW final
rule promulgation.

2.2.2 Hazardous Properties of HSMs: Solvents and Electric Arc Furnace Dust

This section provides an overview of the hazardous properties of the two HSMs that are the
focus of this report: solvents and electric arc furnace dust. It discusses the media, exposure
routes, and health effects to understand the hazardous properties of these HSMs and how they
can impact human health and the environment. It then presents an overview of the health effects
associated with solvents and electric arc furnace dust, including the specific health effects
associated with selected chemicals they contain, including whether they are expected to present a
fire or explosion hazard.

The chemicals used as solvents can generally be classified into two broad groups: halogenated
volatile organics and non-halogenated volatile organics. The chemicals within these groups tend
to share similar characteristics, manufacturing processes, uses, and health effects. Because these
groups contain a variety of chemicals, this report identifies a single chemical from each group
that is generally representative of the characteristics and health effects of the group, and
describes the specific health effects for them. More detailed information about the health effects
for other solvent chemicals can be found in other sources, such as EPA's Integrated Risk
Information System (IRIS) at http://www.epa.gov/IRIS/ and the Agency for Toxic Substances
and Disease Registry Web site (http://www.atsdr.cdc.gov/).

For electric arc furnace dust, the health effects are expected to be related to the toxic metals it
contains. 40 CFR Part 261, Appendix VII, "Basis for Listing Hazardous Waste," indicates that
electric arc furnace dust is listed as hazardous because of lead, hexavalent chromium, and
cadmium. This report describes the health effects associated with each of these metals.

Other hazardous properties of other secondary materials commonly associated with damage
cases, such as scrap metals, used oil, non-ferrous metals, mercury lamps and mercury-containing
equipment, and lead-acid batteries are not a focus of this report because they are already covered
by exclusions or special management standards when recycled, and their management is not
expected to be impacted by the current DSW exclusions.

16

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2.2.3 Media, Exposure Route, and Health Effects Hazard Associated with Recycling
of HSM

Toxic wastes are characterized using risk assessment; therefore, this section uses terminology
that is common in risk assessment. A risk assessment usually begins with hazard identification,
which is the process of determining whether exposure to a chemical agent can cause an increase
in the incidence of a particular adverse health effect (e.g., cancer, birth defects) and whether the
adverse health effect is likely to occur in humans. Exposure assessment includes the
identification of which media, such as soil, air, or water, might come into contact with humans or
other receptors. The media affects the exposure routes, such as inhalation or skin contact, that
should be considered. The exposure route affects the type of symptoms the exposed person or
other receptor experiences. For example, contamination in air could result in inhalation
exposures that have respiratory effects, while contamination in water could result in ingestions
that have gastrointestinal effects. For each example hazard within a category, the most prevalent
exposure media are discussed below, as well as the health effects associated with different
exposure routes. The media, exposure routes, and
health effects are important to determining the
extent to which recycling under the current DSW
exclusions impacts the communities in which HSM
generation, transportation, and reclamation occur.

Exposure Media (air, water, and soil) - Accidents
and improper handling of HSMs have the potential
to contaminate water, air, and soil. Of the
recycling-related damage cases, soil contamination
occurred at 75% of the sites, making it the most
common type of damage to environmental media.

Groundwater contamination occurred at 46% of the
sites, surface water contamination occurred at 27%
of the sites, and air contamination occurred at 26%
of the sites. Note that sites may be counted more
than once in these results, since in many cases more
than one type of damage occurred.7

Exposure Route - Exposure routes include
inhalation, dermal (skin), eye, and ingestion (oral).

Ingestion can include ingestion of contaminated
produce from home gardens, or ingestion of toxic
constituents that are bioaccumulated in fish. The
frequency and duration of potential exposure are
also an important consideration. For example,
acute exposures are short term, high dose
exposures, while chronic exposures are long term,
lower dose exposures.

7 EPA. 2012. An Assessment of Environmental Problems Associated With Recycling of Hazardous Secondary
Materials.

Exposure Routes by Media

Contaminated Soil:

• Dermal (skin contact with
contaminated soil)

• Oral (ingestion of contaminated soil)

• Inhalation (volatilization of
contaminants from soil)

• Eye (windblown dust, volatilization of
contaminants from soil)

Contaminated Air:

• Inhalation (windblown dust)

• Eye (windblown dust)

• Dermal (skin contact with
contaminated air or windblown dust)

• Oral (ingestion of contaminated food)

Contaminated Water:

• Oral (ingestion of contaminated water
or aquatic food sources)

• Dermal (skin contact with
contaminated water)

• Inhalation (volatilization of
contaminants from water)

• Eye (volatilization of contaminants
from water)

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Health Effects - Ignitable and reactive wastes pose physical hazards, such as explosion and fire,
which have the potential to directly cause bodily harm. Explosions and fire also can create
exposure pathways for chemical exposures and sources of environmental contamination. For
example, toxic fumes from a fire can have effects on a population nearby and toxic releases from
the event can result in longer term lower level exposures that may be related to chronic effects.

Toxic wastes also can cause other types of adverse human health effects, which EPA breaks into
two broad categories: cancer and non-cancer. The non-cancer health effects can be classified
according to what biological system or organ is affected; for example, developmental,
reproductive, neurological, immune system, circulatory system, liver, gastrointestinal, or other
effects. Health effects also can have clinical descriptions, such as blurred vision, nausea, and
headache. In general, the sometimes extensive list of clinical symptoms can be grouped based
on what biological system is being affected to cause the symptom set.

Solvents

Solvents may contaminate soil or groundwater from leaks, spills, or other releases. Because they
tend to be volatile, they also are likely to be released to the air by advection and dispersion into
the atmosphere. Solvents may cause exposure by all of the routes considered in this report,
including inhalation, dermal (skin), eye, and ingestion (oral). Solvent chemicals may have both
acute and chronic health effects, and may be ignitable or explosive, presenting fire hazards.

Solvents can generally be divided between halogenated and non-halogenated based on their use
and potential hazards. For halogenated and non-halogenated solvents, the sections below
describe the chemicals typically contained in them, and the hazards associated with an example
that is representative of the type of solvent.

Halogenated Solvents

Agents - Halogenated solvents used in degreasing include:8
tetrachloroethylene (PERC), trichloroethylene, methylene
chloride, 1,1,1-trichloroethane, carbon tetrachloride, and
chlorinated fluorocarbons.

Dry cleaning solvents and brake cleaners include halogenated
solvents, such as tetrachloroethylene (PERC),
trichloroethylene, methylene chloride, 1,1,1-trichloroethane,

1,1,2-trichloroethane, 1,2,2-trifluoroethane, ortho-
dichlorobenzene, trichlorofluoromethane, 1,1,2-
trichloroethane, and chlorobenzene.

Example agent - tetrachloroethylene (PERC).

Environmental Fate9 - Tetrachloroethylene is volatile and
releases can be airborne. When released into the subsurface, it

may contaminate soil and groundwater. Releases to surface soil and water also may volatilize
resulting in releases to the atmosphere. Soil and water bacteria will break it down slowly, so in

8 http://web.mit.edu/environment/elis/topic/rcra ref/epa nonspecific.html
http://www.hsia.org/

9 http://www.npi.gov.au/substances/tetracliloroethYlene/enviromnental.html

Examples of Halogenated
Solvents Uses:

• Brake cleaners

• Dry cleaning

• Food processing

• Household cleaners

• Metal cleaning

• Synthesis of other
chemicals

• Water repellants

• Silicone lubricants

• Spot removers

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soil and subsurface water, it may last for months to years. When released into the atmosphere, it
may be moderately degraded by reaction with photochemically produced hydroxyl radicals.

Environmental Toxicity - Based on fish studies, tetrachloroethylene is expected to be toxic to
aquatic life. It does bioaccumulate in fish to a limited extent. Chronic and acute effects on
plants, birds, or land animals have not been determined, but appear to be low.

Acute Exposure Human Health Effects10 -

• Inhalation - Irritating to the upper respiratory tract. Giddiness, headache, intoxication,
nausea, and vomiting may follow the inhalation of large amounts, while massive amounts
can cause breathing arrest, liver and kidney damage, and death. Concentrations of 600
parts per million (ppm) and more can affect the central nervous system after a few
minutes.

• Ingestion - Not highly toxic by this route because of low water solubility. Used as an
oral dosage for hookworm (1 to 4 ml). Causes abdominal pain, nausea, diarrhea,
headache, and dizziness.

• Skin Contact - Causes irritation to the skin. Symptoms include redness, itching, and
pain. May be absorbed through the skin with possible systemic effects.

• Eye Contact - Causes irritation, redness, and pain.

• Aggravation of Pre-existing Conditions - Persons with pre-existing skin disorders or eye
problems or impaired liver or kidney function may be more susceptible to the effects of
this substance. The use of alcoholic beverages enhances the toxic effects.

Chronic exposure human health effects - May cause liver, kidney, or central nervous system
damage after repeated or prolonged exposures. Reasonably anticipated to be a human
carcinogen based on animal studies.

Fire - Not considered to be a fire hazard, but becomes hazardous in a fire situation because of
vapor generation and possible degradation to phosgene (highly toxic) and hydrogen chloride
(corrosive). Vapors are heavier than air and collect in low-lying areas.

Explosion - Not considered an explosive hazard. Containers may explode, however, when
involved in a fire.

Non-Halogenated Solvents

Agents11 - Paint thinners include: acetone, xylene, ethyl acetate, ethyl benzene, ethyl ether,
methyl isobutyl, ketone, n-butyl alcohol, cyclohexane, and methanol.

Carburetor dip cleaner includes: cresols, cresylic acid, and nitrobenzene.

Lacquer thinners include: toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine,
benzene, 2-ethoxyethanol, and 2-nitropropane.

111 http://www.itbaker.com/msds/englislilitml/t0767.htm: http://www.epa.gov/iris/subst/0106.htm:
http://www.epa.gov/ttn/atw/lilthef/tet-ethY.html: and

http://www.atsdr.cdc. gov/ToxProfiles/tp.asp?id=265&tid=48

11 http://www.dep.state.fl.us/northeast/waste/HWdeterminations.htm

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Example asent - benzene.

Environmental Fate12 - When released to the soil or water, benzene will rapidly begin to
volatilize. However, benzene also migrates in soil and in groundwater. Its airborne levels can be
reduced by rain or water spray. Benzene in the atmosphere will photo-degrade with a calculated
half-life of 13.4 days. This is accelerated in polluted atmospheres containing nitrogen or sulfur
oxides. By-products include phenol, nitrophenols, nitrobenzene, formic acid, and peroxyacetyl
nitrate. It is a "precursor" hydrocarbon leading to the formation of photochemical smog.

Benzene biodegrades in soils and groundwaters (half-life 16-28 days) under aerobic conditions.
Limited degradation occurs under anaerobic conditions.

Environmental Toxicity13 - Benzene has high acute toxic effects on aquatic life. Long-term
effects on marine life can mean shortened lifespan, reproductive problems, lower fertility, and
changes in appearance or behavior. It can cause death in plants and roots, and damage to the
leaves of many agricultural crops.

Acute exposure human health effects14 -

• Inhalation - Excessive inhalation may result in heartbeat irregularities and adverse
central nervous system effects, including headache, sleepiness, dizziness, nausea, loss of
coordination, and, in extreme conditions, coma and/or death. Additional adverse
inhalation effects also may include long-term damage to the blood forming system,
kidney and liver damage, and/or cancer (leukemia).

• Ingestion - Ingestion of benzene may result in adverse central nervous system effects,
including headache, sleepiness, dizziness, nausea, loss of coordination, and, in extreme
conditions, coma and/or death. Ingestion also may cause kidney and liver damage and
blood disorders. Small amounts, if aspirated into the lungs, may cause mild to severe
pulmonary injury.

• Skin - Benzene may be rapidly absorbed through the skin. Prolonged and/or repeated
skin contact may cause mild to severe irritation/dermatitis and chemical blistering.
Prolonged contact also may cause skin sensitization and secondary skin infections.

• Eye - Contact with liquid and high concentrations of vapors are irritating to the eyes.

Chronic exposure human health effects - Long-term exposure has been associated with certain
types of leukemia. The International Agency for Research on Cancer (IARC) and the
Occupational Safety and Health Administration (OSHA) consider benzene to be a human
carcinogen. EPA has classified benzene as a Group A, known human carcinogen for all routes.
Chronic exposures have been reported to cause bone marrow abnormalities and adverse blood
effects, including anemia. Progressive deterioration of the hematopoietic function expressed as a
decrease in absolute lymphocyte count is the most sensitive indicator of benzene exposure.

12 http://www.npi.gov.au/substances/benzene/environmental.html

13 http://www.npi.gov.au/substances/benzene/enviromnental.html

14 http://www.novachem.com/productservices/docs/Benzene MSDS EN.pdf
http://www.atsdr.cdc. gov/ToxProfiles/tp.asp?id=40&tid= 14

http://www.cdc.gov/exposurereport/data tables/Benzene ChemicalInformation.html

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Benzene also may cause fetotoxicity and teratogenicity. Chromosomal aberrations have been
noted in animal tests.

Fire and Explosion - Fire and container explosion hazards are serious when benzene is exposed
to heat or flame. Vapor is heavier than air and may spread long distances. Distant ignition and
flashback are possible. Flammable liquid and vapor can accumulate static charge which can
form an ignitable vapor-air mixture in a storage tank. Benzene will float on water and may travel
to distant locations and/or spread fire.

Electric arc furnace dust

Agents15- Electric arc furnace dust is comprised of a variety of metals, including iron, cadmium,
zinc, calcium oxide, magnesium oxide, lead, silicone, manganese, copper, chromium, and
aluminum. This review focuses on electric arc furnace dust generally, as well as the hazards of
hexavalent chromium, lead, and cadmium because these are the constituents for which electric
arc furnace dust was listed as a hazardous waste. The specific composition of electric arc
furnace dust varies depending upon the type of material production from which it was generated
(e.g., carbon steel or stainless steel manufacturing) and furnace additives.

Environmental Fate8 - Based on its various constituents, electric arc furnace dust is expected to
be hazardous to the environment, and toxic to fish, animals, and plants. It is also likely to persist
in the environment for a long time, due to the insoluble and non-biodegradable nature of the
toxic metals it contains. Individual constituents (e.g., cadmium) may bioaccumulate in
organisms via dissolved metal in the water column or through consumption of prey containing
bioaccumulated metals.

Acute exposure human health effects16 -

• Inhalation - Respiratory tract irritation and/or sensitization (development of an allergy or
sensitivity to a substance) may occur from acute inhalation exposure.

• Ingestion - Though ingestion is unlikely, it can lead to abdominal pain, vomiting, fever,
and diarrhea. Ingestion of large amounts also can elevate lead levels in the body;
however, most health effects occur only after prolonged exposure to lead (see below).

• Eye - Electric arc furnace dust can cause irritation or inflammation of the eye; rubbing
the eye upon exposure can damage the cornea.

• Dermal - Electric arc furnace dust can cause irritation, skin lesions, and/or allergic
reactions of the skin.

Chronic exposure human health effects - Excessive, repeated exposure to electric arc furnace
dust may cause allergic sensitization in the form of dermatitis and asthma, lung inflammation
and damage (e.g., pneumonia, bronchitis, and siderosis [chronic inflammation of the lung]), nasal
perforation and nasal cavity damage, eye inflammation, permanent central nervous system
damage, kidney damage, liver damage, gout (inflammation of the joints), and lead poisoning.

15 Cascade Steel Rolling Mills, Inc. 2001. Material safety data sheet: Electric arc furnace dust. Available online at
http://www.cascadesteel.com/documents/inill/msds/eaf dust.pdf.

16 Gerdau Amisteel. 2008. Material safety data sheet: steel mill electric arc furnace dust. Available online at
http://www.gerdauameristeel.com/products/msds/docs/Mill-

F.nglisli/Steel%20Mill%20Electric%20Arc%20Furnace%20Dust%20MSDS%20(NA)%2012-8-08.pdf

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The carcinogenicity of electric arc furnace dust as a whole has not been determined, though
hexavalent chromium may cause cancer. Furthermore, a study by Garaj-Vrhovac17 et al.
indicates that electric arc furnace dust can cause deoxyribonucleic acid (DNA) damage.

Fire18 - Electric arc furnace dust is not flammable.

Hexavalent Chromium19

Acute exposure human health effects -

• Inhalation - Chronic exposure via inhalation to hexavalent chromium may develop
asthma or other respiratory problems, such as coughing, wheezing, chronic sneezing,
bronchitis, and nasal perforation (holes). Intermediate and chronic occupational exposure
to hexavalent chromium may cause death due to noncancerous respiratory disease.
Occupational (work) exposure to hexavalent chromium can cause abdominal pain,
nausea, and vomiting, most likely due to ingestion from breathing through the mouth.
Workers exposed to hexavalent chromium have experienced severe liver effects, such as
cirrhosis. Eye exposure to aerosols or dusts may cause eye effects, such as conjunctivitis
(inflammation of the inner membrane of the eyelids). High-level acute exposure to
hexavalent chromium may lead to dizziness, headache, and weakness. Workers exposed
to hexavalent chromium have experienced changes in hormones and complications
during pregnancy. Occupational exposure to hexavalent chromium also may cause
respiratory system cancers, primarily in the bronchi and nose.

• Ingestion - Ingestion of hexavalent chromium may lead to death. Subjects who died of
oral exposure experienced various symptoms, including respiratory effects, such as
severe bronchitis and pulmonary edema (fluid in the lungs), cardiopulmonary effects,
such as lowered blood pressure and heart rate, and gastrointestinal effects, such as nausea
and vomiting. Acute ingestion may also affect the blood, leading to effects, such as
anemia. Kidney damage and liver damage (evidenced by symptoms, such as jaundice)
may occur upon acute, high-level oral exposure. In humans, evidence of cancer from oral
exposure is mixed, while hexavalent chromium has caused cancer in animals. Chronic
dermal exposure may lead to ulcerated skin, dermatitis, and burns.

Lead

Acute exposure human health effects -

Generally, the toxicity of lead does not depend on the route of exposure (e.g., inhalation or
ingestion). Chronic exposure to high levels of lead may cause cerebrovascular disease, increased
blood pressure and other cardiovascular problems, gastrointestinal effects, anemia (a blood
disorder with symptoms, such as weakness and fatigue), dental caries (cavities) in children,

17 Garaj-Vrohovac, V; Orescanin, V; Ruk, D; et al. 2008. In vitro assessment of genotoxic effects of electric arch
furnace dust on human lymphocytes using the alkaline comet assay. J Environ Sci and Health Part A 44:279-287.

18 Cascade Steel Rolling Mills, Inc., 2001

19 ATSDR. 2009. Toxicological profile for chromium. Available online at
http://www.atsdr.cdc. gov/ToxProfiles/TP.asp?id=62&tid=17#bookmark07.

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kidney effects, lowered intelligence quotient (IQ) and other neurotoxic effects (e.g., dizziness,
memory loss), and hormonal effects.20

Cadmium21

Acute exposure human health effects -

• Inhalation - Short-term, high-level inhalation exposure to cadmium can cause death in
humans several days after exposure, ultimately caused by respiratory failure or other
respiratory disease. In general, inhalation exposure to large amounts of cadmium causes
extreme respiratory irritation, which initially may begin with mild irritation of throat and
mucous membranes, but up to 10 hours later becomes more severe with flu-like
symptoms, such as chills and cough. Several days later, symptoms include wheezing,
persistent cough, malaise, anorexia, nausea, and abdominal pain. The initial flu-like
symptoms do not occur with a low-level, chronic exposure to cadmium. However,
chronic inhalation exposure over years can lead to decreases in lung function,
emphysema and dyspnea (shortness of breath), or possibly death. Lung function may
recover after time, if exposure is removed. There is some evidence that bones may be
affected (e.g., through the development of osteoporosis) after chronic exposure to
cadmium. Cadmium is strongly linked to kidney effects when exposure levels are high,
while there is weak evidence that cadmium can affect the immune system. Animal
studies show that inhaled cadmium can affect the offspring of exposed mothers by
lowering their body weight, their ability to survive, and their neurobehavioral function
(e.g., motor activity). Long-term exposure to cadmium may cause cancer, most likely in
the lung.

• Ingestion - Ingesting large quantities of cadmium can cause death. High oral cadmium
exposure has been associated with cardiovascular effects, such as heart attack and high
blood pressure. Human and animal studies show that large ingested amounts of cadmium
cause gastrointestinal disturbances, such as nausea, vomiting, and abdominal cramps.
Cadmium ingestion can cause anemia if dietary iron intake is low. Oral exposure is also
associated with bone and kidney effects and neurological effects, such as lowered IQ.
Reproductive effects similar to those seen after inhalation exposure may occur, but
information on effects in offspring of orally-exposed animals/humans is limited. Most
cancer studies have not found an increase in cancer among people or animals exposure
orally to cadmium. Cadmium has been shown to cause DNA damage.

2.2.4 Hazards Associated with Recycling of HSM

This section describes some of the general activities that facilities commonly perform in
handling HSMs, as well as some of the potential exposure media that may be associated with
them. These hazards may impact the communities in which these facilities are located. The
facilities described in this section include:

• Generators of HSM;

211 ATSDR. 2007. Toxicological profile for lead: Health effects. Available online at
http://www.atsdr.cdc. gov/toxprofiles/tpl3 -c3 .pdf.

21 ATSDR. 2009. Toxicological profile for cadmium: Health effects. Available online at
http://www.atsdr.cdc.gov/toxprofiles/tp5-c3.pdf

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• Transporters of HSM; and

• Intermediate and reclamation facilities of HSM.

Note that the descriptions in this section are intended to be general and do not capture all of the
different handling practices and hazards that may occur at a given site.

This section also uses the hazard information from Section 2.2.2 of this report to identify
potential hazards associated with the activities identified in this section. These hazards are being
considered independently of any regulation to mitigate the potential effects of these hazards.
Regulatory considerations are discussed in Section 2.3 of this report.

Potential hazards for solvents and electric arc furnace dust are summarized in Table 2.2.

Facility Type

HSM

Fire

Explosion

Soil

Water

Air

Particulate

Wind
Dispersal

Generators

Solvents

Electric
Arc

Furnace
Dust

Transporters

Solvents

•/

Electric
Arc

Furnace
Dust

Intermediate/

reclamation

facilities

Solvents

•/

Electric
Arc

Furnace
Dust

Generators

Activities

A generator may generate HSM from a variety of activities, such as manufacturing, processing,
cleaning, degreasing, and service industries. Figure 1 shows the most commonly recycled
HSMs. Generators may temporarily accumulate HSM at or near the point of generation (e.g., in
containers) before transferring them to another location onsite (e.g., to centralized accumulation),
or they may be transferred to another location onsite immediately after it is generated. HSM
may be transferred onsite using manual equipment (e.g., a hand trolley or cart), machinery (e.g.,
forklift or truck), or piping, tanks and other interconnected equipment or means of conveyance.

At centralized accumulation areas onsite, HSM may be held in containers, tanks, or other units.
Various operations also are performed (e.g., opening and closing containers to add HSM, filling
tanks using piping or portable equipment). Periodically, off-site transporters will collect the
HSM for off-site transportation. Some generators do not operate centralized accumulation areas;
rather, the off-site transporter collects the HSM at or near the point of generation.

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Some generators reclaim their HSM onsite. For solvents, distillation is the process used most
frequently to recycle spent solvents. The process separates chemicals by the addition of heat,
which causes the more volatile compounds, typically the solvent to be recovered, to vaporize.
The vaporized solvent is then condensed back into liquid and reused. This process results in a
residue that may contain solvents or other chemicals and may require subsequent management as
a hazardous waste. Systems used for on-site distillation may include fixed or mobile trailer
systems brought to the facility by a vendor.

When electric arc furnace dust is recycled onsite, the recycling typically consists of collecting
electric arc furnace emissions in a bag filter, conveying dust to a hopper, physically processing it
by briquetting and feeding it back into the electric arc furnace that generated the waste. Prior to
recycling, it may be stored in bins, drums, or other containers.

Potential Hazards

Following are possible hazards associated with the generator activities described above for
solvents and electric arc furnace dust:

Solvents

• Fires and explosions. Solvent wastes, especially non-halogenated solvents, are often
highly flammable and can ignite to create fires and explosions. Because solvents also
tend to be volatile, air emissions may ignite to cause fires and explosions if ignited,
resulting in injury or property damage. Fires and explosions also may evolve other toxic
or hazardous gasses.

• Volatile organic air emissions during accumulation and transportation onsite. Under
certain conditions, solvents held in tanks or containers could volatilize and escape to the
atmosphere through open container lids, uncovered tanks, leaks (e.g., from valves and
pumps) and vents, container breathing (a process that can cause air containing solvents to
move out of a container or tank as the air in a container expands and contracts due to
changes temperature), and waste transfer.

• Wind dispersal of particulate matter during accumulation and transportation onsite. Wind
dispersal can occur if the HSM is in the form of a dust or small, dry particles, adequate
controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts).
Soil or other solid media contaminated with solvents may be susceptible to wind
dispersal.

• Soil, groundwater, and air contamination from liquid releases during accumulation and
transportation onsite. During accumulation, a number of factors could lead to a release,
such as tank overflows or overtopping; leaks from damaged or deteriorated containers or
tanks; complete failure of tank or container integrity; and run on/run off from the storage
area. During transfer, releases could include spills, overflows, and leaks from human
error or deterioration of transport equipment (e.g., leaking pipes). Solvent wastes are
susceptible to such releases because they are commonly in la liquid state.

• Air emissions from reclamation. The solvent reclamation processes described above use
the addition of heat to accomplish desired chemical reactions (e.g., vaporization of
organics, melting of metals). These processes can produce air emissions from various
locations, such as stacks, equipment leaks, and vents.

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Electric Arc Furnace Dust

• Wind dispersal of particulate matter during accumulation and transportation onsite. Wind
dispersal can occur if the HSM is in the form of a dust or small, dry particles, adequate
controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts).
Electric arc furnace dust, in particular, might be susceptible to wind dispersal during
accumulation or transfer, because it is often present in dust form.

For example, one of the damage cases identified in the Environmental Problems Study
identifies electric arc furnace dust as a potential source of contamination because the
electric arc furnace dust waste pile at a manufacturing facility did not have wind
controls.22 Airborne exposure to lead, chromium, or cadmium particulate escaping from
mismanaged emission control dusts is another pathway of concern.23 These minute
particles could be dispersed by wind if waste dusts are piled in the open.24 As a result,
the health of persons who inhale the airborne particulates would be jeopardized.25 Note
that, prior to its listing as a hazardous waste, electric arc furnace dust was stored in waste
piles.26 Although EPA does not believe that storage of electric arc furnace dust in waste
piles is not a common practice currently, the exclusions promulgated in the 2008 Final
Rule might result in such storage absent the legitimacy criteria.

• Soil and groundwater contamination may occur during accumulation and transportation
onsite. During transfer, spills due to human error or deterioration of transport equipment
also may occur.

Transporters

Activities

HSM may be shipped offsite by a variety of modes (e.g., highway, rail, water). The most
prevalent is by highway using a wide variety of trucks (e.g., vacuum trucks or trailers, pump
tankers, vans, dump trucks, tractor trailers). A transporter may pick up loads from multiple
generators (i.e., less than truck load shipments) or it may pick up a full truckload from a single
generator. During a shipment, a transporter may perform various activities, such as
consolidating, re-routing, or transferring shipments.

Potential Hazards

Following are possible hazards associated with the transportation activities described above for
solvents and electric arc furnace dust:

General (both solvents and electric arc furnace dust)

• Vehicle air emissions. Transportation vehicles emit pollution as a result of combustion of
fuel and fuel evaporation. Primary air pollutants include carbon monoxide,

22 The site was operational from 1970 until the late 1980's and produced liquid and dry zinc sulfate fertilizers
utilizing electric arc furnace dust from the primary production of steel as a raw material.

23 K061 Listing document, p. 11.

24 Ibid.

25 Ibid.

26 K061 Listing document.

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hydrocarbons, nitrogen oxides, and particulate matter. These pollutants can lead to
adverse health effects in children and adults, and worsen environmental problems
(e.g., increasing the amount of greenhouse gases in the atmosphere).

• Traffic accidents. Accidents involving trucks containing HSM may result in releases of
the HSM. This can result in contamination of soil and water, air emissions, fires, and
explosions. In addition, accidents during the transport of HSM may cause fatalities,
injuries, and property damage ,even if the HSM is not released.

• Traffic congestion and noise. Transportation vehicles can contribute to increased levels
of traffic congestion and noise along the transportation route. These effects can worsen
the quality of life of people working or residing nearby.

Solvents

• Fires and explosions. Solvent wastes are often flammable, and can ignite to create fires
and explosions. Because solvent HSM also tends to be volatile, air emissions may cause
fires and explosions if ignited, causing injury or property damage. Fires and explosions
also may evolve other toxic or hazardous gasses.

• Volatile air emissions. During loading, unloading, and transport, volatile air emissions
may escape from valves, pumps, hoses, tank trucks, drums, and other containers. Under
certain conditions, solvents held in tank trucks or drums could volatilize and escape to the
atmosphere through open container lids, uncovered tanks, leaks and vents, container
breathing (a process that can cause air containing solvents to move out of a container or
tank as the air in a container expands and contracts due to changes in temperature), and
container filling (as the air in a container is displaced by the liquid added to the
container). Under some conditions, volatile air emissions may ignite to cause fires and
explosions.

Electric Arc Furnace Dust

• Air emissions of metals. During the electric arc furnace dust recycling process, the high
temperatures used may cause volatile metals, such as lead and zinc, to volatilize and be
emitted in the flue gas from the facility.

• Wind dispersal of particulate matter during loading and transportation. Wind dispersal
can occur if the HSM is in the form of a dust or small, dry particles, adequate controls are
not in place, and certain climatic conditions prevail (e.g., strong wind gusts). Electric arc
furnace dust, in particular, might be susceptible to wind dispersal during loading or
transfer, because it is often present in dust form. Airborne exposure to lead, chromium,
or cadmium particulate escaping from mismanaged emission control dusts is another
pathway of concern.27 These minute particles could be dispersed by wind if waste dusts
are improperly handled during transportation.28 As a result, the health of persons who
inhale the airborne particulates would be jeopardized.29

27 K061 Listing document, p. 11.

28 Ibid.

29 Ibid.

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Intermediate and Reclamation Facilities

Activities

Intermediate and reclamation facilities periodically receive HSM from off-site sources. The
HSM may be placed in storage units at the facility until it is ready for reclamation or transfer to a
reclamation facility. Facilities may store the HSM in containers, tanks, or other units in
accordance with applicable regulations.

In addition, processing of the HSM may be performed before reclamation. This may include, for
example, aggregation/consolidation of the HSM to facilitate the reclamation process, filtration of
other physical processes to remove impurities, or other processing steps. This may be performed
in tanks, containers, or other equipment. HSM may be transported from on-site storage and
processing units to the reclamation unit using machinery (e.g., trucks) or pipes, tanks, and other
equipment.

For solvents, distillation is the process used most frequently to recycle spent solvents. The
process separates chemicals by the addition of heat, which causes the more volatile compounds,
typically the solvent to be recovered, to vaporize. The vaporized solvent is then condensed back
into liquid and reused. This process results in a residue that may contain solvents or other
chemicals, and may require subsequent management as a hazardous waste.

Off-site management of electric arc furnace dust is most frequently conducted using processes to
separate and recover metals, such as High Temperature Metals Recovery (HTMR). In the
HTMR process, electric arc furnace dust is mixed with coal or coke, the mixture is pelletized,
and heated in a furnace to reduce iron and nickel oxides. The resulting material is then fed to an
electric arc furnace, where volatile metals, such as lead and zinc, are removed from the flue gas,
and metal and slag are separated and removed.

Potential Hazards

The hazards for off-site recycling facilities are generally the same as those for on-site recycling
processes, which are described in Section 2.2.1 of this report.

Solvents

• Volatile organic air emissions during accumulation and transportation on-site. Under
certain conditions, solvents held in tanks or containers could volatilize and escape to the
atmosphere through open container lids, uncovered tanks, leaks and vents, container
breathing (a process that can cause air containing solvents to move out of a container or
tank as the air in a container expands and contracts due to changes in temperature), and
container filling (as the air in a container is displaced by liquid added to the container).
Under some conditions, volatile air emissions may ignite to cause fires and explosions.

• Wind dispersal of particulate matter during accumulation and transportation on-site.

Wind dispersal can occur if the HSM is in the form of a dust or small, dry particles,
adequate controls are not in place, and certain climatic conditions prevail (e.g., strong

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wind gusts). Soil or other solid media contaminated with solvents may be susceptible to
wind dispersal.

• Soil, groundwater, and air contamination from liquid releases during accumulation and
transportation on-site. During accumulation, a number of factors could lead to a release,
such as tank overflows or overtopping, leaks from damaged or deteriorated containers or
tanks, complete failure of tank or container integrity, and run on/run off from the storage
area. During transfer, releases could include spills, overflows, and leaks from human
error or deterioration of transport equipment (e.g., leaking pipes). Solvent wastes are
susceptible to such releases since they are commonly in a liquid state.

• Air emissions from reclamation. The solvent reclamation processes described above use
the addition of heat to accomplish the desired chemical reactions (e.g., vaporization of
organics, melting of metals). These processes can produce air emissions from various
locations, such as stacks, equipment leaks, and process vents.

Electric Arc Furnace Dust

• Wind dispersal of particulate matter during accumulation and transportation on-site.

Wind dispersal can occur if the HSM is in the form of a dust or small, dry particles,
adequate controls are not in place, and certain climatic conditions prevail (e.g., strong
wind gusts). Electric arc furnace dust in particular might be susceptible to wind dispersal
during accumulation or transfer, because it is often present in dust form. Airborne
exposure to lead, chromium, or cadmium particulate escaping from mismanaged emission
control dusts is another pathway of concern.30 These minute particles could be dispersed
by wind if waste dusts are piled in the open or placed in unsecure landfills.31 As a result,
the health of persons who inhale the airborne particulates would be jeopardized.32 Note
that, prior to its listing as a hazardous waste, electric arc furnace dust was typically
dumped in the open at on-site or off-site disposal facilities (i.e., in waste piles).33
However, electric arc furnace dust is no longer managed in waste piles.

• Soil and groundwater contamination may occur. For example, prior to its listing as a
hazardous waste, electric arc furnace dust waste was typically disposed of by being
dumped in the open; thus, posing a realistic possibility of migration of chromium, lead,
and cadmium to underground drinking water sources.34 During transfer, spills due to
human error or deterioration of transport equipment also may occur.

References:

EPA. 2014. An Assessment of Environmental Problems Associated With Recycling of

Hazardous Secondary Materials.

30 K061 Listing document, p. 11

31 Ibid.

32 Ibid.

33 K061 Listing document, p. 5.

34 K061 Listing document, p. 3.

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EPA. 2008. Definition of Solid Waste Final Rule. Federal Register Volume 73 Page 64663.
October 30, 2008. http://www.epa.gov/wastes/hazard/dsw/index.htm

EPA. Hazardous Waste List

http://www.epa.gov/epawaste/hazard/wastetvpes/listed.htm
(link to 40 CFR 261.31 contains specific chemicals)

CDC. 2010a. National Report on Human Exposure to Environmental Chemicals, Halogenated
solvents -

http://www.cdc.gov/exposurereport/data tables/HalogenatedSolvents ChemicalInformation.html
Other halogenated solvents -

http://www.cdc.gov/exposurereport/data tables/OtherHalogenatedSolvents Chemicallnformatio
n.html

AT SDR. Toxic Substances Portal
Main page to access Tox Profiles

http://www.atsdr.cdc.gOv/toxprofiles/index.asp#bookmark05

Source: Delisting Petition for Treated K061, Max Environmental Technologies, Inc. (Hazardous
Waste Management Services), Yukon, PA, CEC Project 210966, 11/2003.
http://www.depweb.state.pa.us/pubpartcenter/lib/pubpartcenter/EOB/2004/vukon delisting petit
ion.pdf

30

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2.3 Regulatory Comparison - Summary of Comparative Results by Facility Type and
Scenario

This section presents the resul ts of EPA's
comparison of the full RCRA Subtitle C
hazardous waste regulations to the federal
regulations applicable to facilities operating
under the current DSW exclusions. This

this report for the three types of facilities that
could manage HSMs under the current DSW
exclusions:

1.	Generators;

2.	Transporters; and

3.	Intermediate and Reclamation Facilities.

This section describes the key regulatory
differences applicable to each type of facility
(i.e., generator, transporter, and intermediate and
reclamation facilities) under hazardous waste
regulations and current DSW exclusions,
identifies the possible consequences of these
differences, and indicates, under which of the
eight scenarios these differences and
consequences could occur. It also notes where
the differences are dependent on whether the
DSW exclusion is the TBE or the GCE. The
comparative results are presented in a table that
summarizes the regulatory differences and
consequences by facility type and scenario.

This section only summarizes the key regulatory
differences that may lead to a change in impacts
to human health and the environment under the
current DSW exclusions. A more detailed
comparative analysis of the regulatory provisions
is presented in Appendix A.

DSW Regulations Compared to Full
Subtitle C Regulation

Resource Conservation and Recovery Act
(RCRA) Definition of Solid Waste
Exclusions

•	Generator-Controlled Exclusion

•	Transfer-Based Exclusion

Clean Air Act (CAA)

•	CAA Title V Air Quality Permitting
Process

•	CAA Standards for Area Sources Not
Subject to Title V Permit

•	Chemical Accident Prevention
Provisions

Clean Water Act (CWA)

•	Oil Pollution Prevention

Comprehensive Environmental Response,
Compensation, and Liability Act
(CERCLA)

•	Release Notification (RQs)

Emergency Planning and Community
Right-to-Know Act (EPCRA)

•	Release Notification

Hazardous Materials Transportation Act
(HMTA)

•	Overview and Applicability

•	Hazardous Materials Regulations

•	Transportation of Hazardous Materials

•	Driving and Parking Rules

Occupational Safety and Health Act
(OSH Act)

•	Process Safety Management of Highly
Hazardous Chemicals

•	Hazardous Waste Operations and
Emergency Response

•	Hazard Communication

comparison also includes the Clean Air Act
(CAA); the Clean Water Act (CWA); the
Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA); the
Emergency Planning and Community Right-to-
Know Act (EPCRA); the Hazardous Materials
Transportation Act (HMTA); and the
Occupational Safety and Health Act (OSH Act).
EPA compared the regulatory requirements under
each of the scenarios described in Section 2.1 of

31

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DSW Scenarios

1.	Generator continues current recycling practices

2.	Generator switches from off-site disposal to on-site reclamation

3.	Generator switches from off-site disposal to off-site recycling under the control of the generator

4.	Generator switches from off-site disposal to off-site recycling at a RCRA-permitted facility

5.	Generator switches from off-site disposal to off-site recycling at a U.S. facility without a RCRA permit

6.	Generator switches from off-site disposal to exporting for recycling

7.	Generator switches from off-site recycling at a facility without a permit to another type of recycling
under the current DSW exclusions

8.	Generator switches from off-site recycling at a RCRA-permitted facility or exporting waste for recycling
to another type of recycling under the current DSW exclusions

Generators

Following is a discussion of the key differences and consequences in the federal regulation of
generators of hazardous waste and generators of HSM under the DSW exclusions.

The DSW exclusions allow generators to accumulate HSM onsite for longer periods of time
than the hazardous waste regulations, which could lead to greater quantities being
accumulated at any given time (All scenarios).35 The hazardous waste regulations and the
DSW exclusions set forth time limits for generators to accumulate HSM onsite. Specifically, the
hazardous waste regulations require generators to ship hazardous waste offsite every 90 or
180/270 days (depending on generator size and type of activity involved), whereas the DSW
exclusions require generators to recycle (or ship for recycling) 75% of their HSM within one
calendar year. This means that generators under the DSW exclusions could accumulate 75% of
their HSM onsite for a calendar year and 25% for potentially longer periods. In addition, the
DSW exclusions do not include a quantity limit for on-site accumulation, in contrast to the
hazardous waste regulations for small quantity generators (SQGs).

The DSW exclusions require that material be "contained," but do not prescribe specific
technical standards for containment in contrast to the hazardous waste regulations (All
scenarios). The hazardous waste regulations and the DSW exclusions require containment of
HSM in the unit. The hazardous waste regulations prescribe specific design, installation,
operating, and closure standards to address containment (e.g., storage limits, standards for
container and tank design, operation, and inspection frequency). Prescriptive requirements tend
to facilitate inspection and enforcement, which helps to prevent releases. The DSW exclusions
do not include prescriptive requirements. The DSW exclusions allow more flexibility in how
HSMs can be contained. Some generators and facilities under the DSW exclusions may choose
to follow the hazardous waste regulations for their units, particularly if they operate other units
that are subject to the hazardous waste regulations.

In addition, the GCE allows generators to manage their HSM in land-based units (e.g., surface
impoundments, piles), but the exclusion does not prescribe containment standards. The

35 For generators that switch from off-site management to on-site recycling (Scenarios 2 and 8), there is the
possibility that there might be smaller volumes of HSM accumulated, if recycling can occur more quickly than
accumulation of enough material for a shipment to be sent offsite.

32

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hazardous waste regulations do not allow generators to manage hazardous waste in land-based
units, unless they have a permit or interim status, which prescribe facility and unit design,
operating and other standards.

The DSW exclusions do not include requirements for generators to control air emissions
from their operations, in contrast to the hazardous waste regulations (All scenarios). While
the DSW exclusions require containment of the HSM, they do not include explicit requirements
for control of air emissions. The hazardous waste regulations prescribe specific design,
operating, and other standards for controlling air releases from process vents, equipment leaks,
and storage units by large quantity generators, whereas the DSW exclusions do not include such
prescriptive requirements.36

Some generators operating under the DSW
exclusions may be required to get a permit under
the CAA regulations. Where facilities are
subject to the CAA, requirements to control air
emissions are comparable to the hazardous waste
regulations. However, facilities not subject to
the CAA permitting requirements would not be
required to provide a comparable level of control
for air emissions from process vents, leaks, and
storage units as the hazardous waste regulations.

As a result of the DSW exclusions, the
hazardous waste generators status of some
generators may change under the hazardous
waste regulations and be subject to less
stringent hazardous waste regulation (All
scenarios). Under the hazardous waste
regulations, a site that generates hazardous waste
must determine its generator status by counting
the quantity of hazardous waste that it produces during any given calendar month:

•	It is a large quantity generator (LQG) if it generates 1,000 kg or more of hazardous waste
in a calendar month, more than 1 kg of acute hazardous waste in a calendar month, or
more than 100 kg of any residue, soil, waste or other debris resulting from the cleanup of
any acute hazardous waste.

•	It is a small quantity generator (SQG) if it generates greater than 100 kg but less than
1,000 kg of hazardous waste in a calendar month.

•	It is a conditionally exempt small quantity generator (CESQG) if it generates 100 kg or
less of hazardous waste in a calendar month, 1 kg or less of acute hazardous waste in a

36Air emission regulations for process vents, equipment leaks, and storage units are applicable to 90-day
generators/TSDFs managing hazardous secondary materials having a time-weighted, annual average total organic
concentration of 10 parts per million by weight (ppmw) or greater, organic concentrations of at least 10 percent in
contact or contained in "equipment" for at least 300 hours/calendar year, and/or an average volatile organic
concentration equal to or exceeding 500 ppmw, respectively. While spent solvents are expected to equal or exceed
these thresholds triggering organic air emission controls, it is highly unlikely units handling K061 will be subject.

Regulatory Requirements Considered

•	Legitimate Recycling

•	Storage Time Limit

•	Containment

•	Air Emissions

•	Emergency Preparedness and Response

•	Personnel Training

•	Reporting and Recordkeeping

•	Offsite Transportation

•	Exports

•	Security

•	Financial Assurance

•	Requirement for a Permit

•	Public Involvement

33

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calendar month, or 100 kg or less of any residue, soil, waste or other debris resulting
from the cleanup of any acute hazardous waste.

LQGs are generally subject to more stringent requirements than SQGs. For example, LQGs
must prepare and follow a contingency plan for emergencies, conduct recurring personnel
training on emergency procedures, and comply with the full breadth of tank systems standards
and air emission controls as applicable, whereas SQGs do not. SQGs are subject to more
stringent requirements than CESQGs, who are exempt from the hazardous waste regulation,
provided they meet certain requirements.

A generator operating under a DSW exclusion would not be required to count its excluded HSM
in determining its generator status under the hazardous waste regulations. As a result, the
generator may change to a different status (e.g., from LQG to SQG or CESQG) because it would
have less hazardous waste to count and therefore, would be subject to less stringent hazardous
waste requirements.

Generator on-site reclamation may be less stringently regulated under the GCE than the
hazardous waste regulations (Scenarios 1, 2, and 8). The hazardous waste regulations require
LQG reclaimers to comply with the air emission controls (e.g., for process vents on reclamation
units). In addition, generators that reclaim hazardous waste onsite are required to obtain a permit
if they store the waste for longer than 90 days for LQGs, or 180/270 days for SQGs (depending
on type of activity involved), pending reclamation. The permitting process requires public
involvement. The GCE does not include prescriptive requirements for air emissions; rather it
requires that the material be "contained." It also does not require a permit or public involvement.
In addition, it allows generators to manage their HSM in land-based units without a permit or
interim status, unlike the hazardous waste regulations, which require a permit or interim status
for the management of hazardous waste in land-based units.

The hazardous waste regulations and TBE require comparable procedures for exports
(Scenario 1). The hazardous waste regulations require an exporter of hazardous waste to fulfill
the notice-and-consent requirements prior to export, submit an annual report summarizing export
activities, and keep specified records. The TBE also requires generators to perform notice-and-
consent, annual reporting, and recordkeeping. It also requires generators to perform reasonable
efforts to audit the reclaimer. Note that the GCE does not address exports because it requires
that the material be generated and reclaimed within the U.S. and territories.

Some generators may switch from off-site reclamation or treatment/disposal at a RCRA-
permitted facility to reclamation under the GCE, which does not require a permit
(Scenarios 2, 3, and 8). Some generators may divert their HSM from off-site reclamation or
treatment then disposal at a RCRA-permitted facility to on-site reclamation. RCRA-permitted
facilities are subject to prescriptive standards/conditions covering the design, construction,
operation, financial assurance, emergency preparedness, and closure of the facility. They also
are subject to public involvement in the permitting process. The GCE does not require
prescriptive standards, a permit, or public involvement. In addition, it allows generators to
manage their HSM in land-based units without a permit or interim-status. Reclaimers and
treatment and disposal facilities must have a permit to manage hazardous waste in land-based
units.

The DSW exclusions require all generators to notify EPA of their HSM generation and
management activities biennially, whereas the hazardous waste regulations require

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biennial reporting only for LQGs (All Scenarios). The hazardous waste regulations and DSW
exclusions have comparable requirements for initial and biennial submittals in regard to
frequency and types of information submitted. However, the DSW notification requirement
applies to generators regardless of size. The biennial reporting requirement in the hazardous
waste regulations applies only to LQGs. Notifications or other types of reporting helps the
regulatory agency to plan and prioritize inspections, making enforcement more effective and
potentially increasing compliance.

Transporters

Following is a discussion of the key differences and consequences in the federal regulation of
hazardous waste shipments and shipments of DSW-excluded HSMs.

Off-site transport of DSW-excluded material that qualifies as a DOT hazardous material is
generally subject to transportation-related regulation comparable to hazardous waste
shipments (Scenarios 1, 3, 4, 5, 6, 7, and 8). The DOT regulations set forth requirements for
DOT hazardous material shipments in regard to the use of shipping papers, packaging, labeling,
marking, placarding, parking, and driving. The DOT regulations apply to all hazardous wastes,
as well as other materials, including commercial products, that qualify as a DOT "hazardous
material."37 A material qualifies as a DOT hazardous material if it: (1) is listed in the Table in
49 CFR 172.101 (e.g., compounds), (2) is listed in the Appendices to the Table in 49 CFR
172.101,38 or (3) meets one or more of the hazard classifications (e.g., flammable liquid).

Following is a further discussion of the DOT requirements with regard to the GCE and the TBE:

• GCE. Prior to and during off-site transport, hazardous HSMs that qualify as a DOT
hazardous material would be subject to comparable transportation requirements as
hazardous waste in regard to packing, labeling, marking, placarding, parking, and
driving. Specifically, the DOT regulations apply similarly to hazardous waste and other
types of DOT hazardous materials, such as excluded HSM, in regard to these activities.
An exception, however, is that the excluded material would not be subject to the
hazardous waste manifest requirements for chain-of-custody tracking and confirmation of
receipt.

• TBE. On-site handling and off-site shipments of HSMs that qualify as a DOT hazardous
material would be subject to DOT regulation and must comply with comparable
transportation requirements as hazardous waste in regard to packaging, labeling, marking,
placarding, parking, driving, and tracking. Note that the TBE requires recordkeeping of
all off-site shipments by the generator and reclamation facility, and a confirmation of
receipt must be sent from the reclaimer to the generator. These recordkeeping and
transmittal requirements are comparable to the hazardous waste manifest requirements
for chain-of-custody tracking and confirmation of receipt.

On-site handling and off-site transportation of DSW-excluded material that no longer
qualifies as a DOT hazardous material would not be subject to regulation comparable to

37 All hazardous wastes are listed in Part 172 as DOT hazardous material and therefore are automatically subject to
the DOT regulations as applicable.

38 A hazardous substance (including hazardous wastes and other substances) listed in the appendices must comply
with DOT packaging, labeling and other regulations if it exceeded its reportable quantity (RQ).

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hazardous waste shipments (Scenarios 1, 3, 4, 5, 6, 7, and 8). Under the GCE or TBE,
transportation requirements for excluded HSMs that do not qualify as a DOT hazardous material
would not be comparable to those for hazardous waste in regard to packing, labeling, marking,
placarding, parking, or driving (or tracking, for shipments under the GCE). An excluded
material would not need to comply with the DOT regulations if it is not listed in the Table in 49
CFR 172.101, is not listed in (or otherwise does not exceed its reportable quantity in) the
Appendices to the table, and does not meet any hazard classification.

Further, the Reportable Quantities (RQs) contained in 49 CFR Part 172 that trigger the DOT
hazardous materials requirements are potentially different for hazardous waste and non-waste. A
material-specific RQ is used to determine whether a hazardous waste or other hazardous
substances must comply with the DOT requirements (i.e., if the hazardous substance exceeds its
RQ, it must comply). In some cases the RQ for a hazardous waste would be lower because it is a
hazardous waste than the RQ if the material were not considered a hazardous waste. In these
cases, a greater quantity of material would be required to exceed the RQ if the material were a
non-waste. This could result in some excluded materials not triggering the RQ requirements (at
the lower level) and therefore, not needing to comply with RQ-related DOT packaging and other
regulations.

The GCE does not require tracking of off-site shipments, in contrast to the hazardous
waste regulations (Scenarios 3 and 8). The hazardous waste regulations require the
manifesting of all off-site shipments, which provides for chain-of-custody tracking of shipments
and generator confirmation that the shipment has been received by the designated facility. By
contrast, the DSW GCE does not require tracking of shipments (e.g., from the generating site to
an off-site reclamation facility owned by the generator) or recordkeeping that could serve a
comparable purpose. Further, if the shipment were subject to DOT regulation, a shipping paper
must accompany it. However, the destination facility need not keep a copy of it for three years
or transmit to the original generator site (or place in its company files) the confirmation of
receipt. Therefore, a generator making off-site shipments under the GCE would not be
documenting that its excluded material reached the intended destination intact, as is required by
the manifest regulations.

Intermediate and Reclamation Facilities

Following is a discussion of the key differences and consequences in the federal regulation of
hazardous waste storage facilities and HSM intermediate and reclamation facilities under the
TBE.

The provisions on residuals under the TBE are intended to clarify that residuals from reclamation
are subject to the waste characterization requirements and cannot simply be discarded as non-
hazardous waste. However, designating the residuals as a newly generated waste raises the
possibility that some residuals from the recovery process that were considered hazardous under
full RCRA Subtitle C regulation would no longer be considered hazardous upon exiting recovery
units operated under the current DSW exclusions.

Some HSMs may be diverted from off-site reclamation, treatment then disposal at a
permitted facility under the hazardous waste regulations to off-site reclamation under the
TBE, which is allowable without a RCRA permit; however, generator audits are required
in those cases (Scenarios 5 and 8). Permitted facilities are subject to prescriptive permit
requirements and self-imposed conditions covering the design, construction, operation, financial

36

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assurance, closure, and post-closure of the facility and hazardous waste management units. They
also are subject to public involvement during the permitting process. Reclamation under the
TBE would be subject to fewer requirements, including no requirement for a permit or public
involvement. Thus, reclamation under the TBE is not subject to emergency preparedness and
response, personnel training, or prescriptive requirements for containment. However, the TBE
requires the generator to perform a "reasonable efforts" audit of facilities that do not have a
RCRA permit covering management of the material. The generator audit must focus on
specified areas (e.g., the reclaimer's compliance history). In addition, facilities must obtain
financial assurance. In general, however, facilities under the TBE would be subject to fewer
prescriptive requirements, no public involvement, and possibly less regulatory oversight than
permitted facilities.

The TBE requires that material be "contained," but does not prescribe specific standards
for containment in contrast to the hazardous waste regulations (Scenarios 5 and 8). The

hazardous waste regulations and TBE require containment of the HSMs in the unit. The
hazardous waste regulations prescribe specific design, installation, operating, and closure and
post-closure standards to address containment. Prescriptive requirements could facilitate
inspection and enforcement, which could help to prevent releases. The TBE does not contain
prescriptive requirements for containment. The exclusion requires that the material be managed
in a manner that is at least as protective as that employed for analogous raw material and be
contained. As such, the TBE is performance oriented and allows more flexibility in how HSMs
can be managed and contained.

The TBE does not include standards for controlling air emissions from process vents,
equipment leaks, or storage units in contrast to the hazardous waste regulations (Scenarios

5 and 8). While the TBE requires containment of HSMs, it does not include explicit
requirements for control of air emissions whereas the hazardous waste regulations set forth
prescriptive design, operating, and other standards to control air releases from process vents,
leaks, and storage units. The TBE does not include such prescriptive requirements.

Some reclaimers operating under the DSW exclusions may be required to get a permit under the
CAA regulations. Where such facilities are subject to the CAA, requirements to control air
emissions are comparable to the hazardous waste regulations. However, facilities not subject to
CAA permitting would not be required to provide a comparable level of control of air emissions
from process vents, leaks, and storage units as the hazardous waste regulations.

Some HSM may be diverted from permitted off-site facilities to being exported for
reclamation under the TBE, which does not require a permit. However, the importing
facility must pass generators' "reasonable efforts" audit (Scenarios 6 and 8). As described
above, permitted facilities are subject to prescriptive permit requirements covering the design,
construction, operation, air emission controls, financial assurance, and closure and post-closure
of the entire facility. They also are subject to public involvement during the permitting process.
Under the TBE, the HSM may be exported to a foreign facility, which is not subject to a permit
or public involvement. However, the exclusion would require generators to make reasonable
efforts to audit the facility before exporting the material to a foreign facility. In addition, the
TBE requires generators to perform notice-and-consent activities. Note that, even though
hazardous wastes are currently exported to other nations for reclamation, EPA has not received
any notification indicating that HSMs will be exported under the 2008 DSW final rule. Based on

37

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this facility behavior, EPA does not anticipate that a significant amount of HSMs will be
exported under the TBE of the current DSW exclusions.

Some HSMs may be diverted from unpermitted off-site reclaimers under the hazardous
waste regulations to different off-site reclaimers under the TBE (Scenario 7). Under the
hazardous waste regulations, reclaimers that do not store hazardous waste pending reclamation
are not subject to the prescriptive hazardous waste requirements (e.g., for design, operation,
financial assurance, closure of the facility or units), except as otherwise specified.39 They also
are not subject to a hazardous waste permit or public involvement.

Under the TBE, off-site reclaimers are, among other things:

• Required to manage the HSM in a manner that is at least as protective as analogous raw
material, contain the material, have financial assurance, and keep specified records. In
addition, unless it has a RCRA permit covering management of the material, it must pass
a generator audit before it can receive the generator's material.

• Allowed to store HSM without a permit or prescriptive standards, unlike hazardous waste
reclaimers, which are subject to a permit if they store HSM.

The TBE generally includes more stringent requirements than the hazardous waste regulations
for reclaimers that do not store the HSM before reclamation. It includes less stringent
requirements for reclaimers that store the HSM before reclamation.

2.4 Summary of Comparative Results by Facility Type and Scenario

Table 2.3 summarizes the key regulatory differences and consequences described in Section 2.3
of this report. They are summarized by facility type and scenario.

39 In some cases, reclaimers can be subject to prescriptive requirements. For example, reclamation units at a facility
subject to RCRA permitting must comply with applicable air emission controls for process vents, as specified.

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Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs)
		and the Definition of Solid Waste (DSW) Exclusions by Scenario a 	

Scenarios

Generators b

Transporters

Intermediate and
Reclamation Facilities

1. Generator continues
current reclamation
practices (where
allowed under DSW)C

HSM can be accumulated onsite for longer periods
of time under exclusions, resulting in potentially
greater aggregate quantities onsite at any given
time

Exclusions require containment, but do not include
prescriptive standards, whereas HWRs are
prescriptive

GCE allows management of HSM in land-based
units without a permit or interim-status, unlike
HWRs

Generators could change in status (e.g., LQGto
SQG) as a result of exclusions and be subject to
less stringent HWRs

Export procedures under HWRs and TBE are
comparable

DSW exclusions require all generators to notify
EPA biennially, whereas HWRs require biennial
reporting only for LQGs

When transported
offsite, excluded HSMs
that qualify as DOT
hazardous material
would be subject to
DOT transportation
regulations that are
comparable to HWRs

Some excluded material
may no longer qualify as
a DOT hazardous
material and be subject
to DOT transportation
regulations (e.g., no
standards for packaging,
marking, labeling)

There is no change in
storage methods or
recycling practices for HSM
that has been diverted from
off-site RCRA permitted
facility under HWRs to
off-site RCRA permitted
facility under TBE

39

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Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs)
		and the Definition of Solid Waste (DSW) Exclusions by Scenario a 	

Scenarios

Generators b

Transporters

Intermediate and
Reclamation Facilities

2. Generator switches
from off-site treatment
then disposal at a
RCRA facility to on-site
reclamation under
GCE

HSM can be accumulated onsite for longer periods
of time under GCE, resulting in potentially greater
quantities onsite at any given time

The GCE requires HSM to be "contained," but
does not include prescriptive standards, whereas
HWRs are prescriptive

GCE allows management of HSM in land-based
units without a permit or interim-status, unlike
HWRs

Generators could change in status (e.g., from LQG
to SQG) as a result of exclusion and be subject to
less stringent HWRs

Off-site management at permitted facility is more
stringently regulated than reclamation under the
GCE (e.g., no permit or public involvement is
required)

DSW exclusions require all generators to notify
EPA biennially, whereas HWRs require biennial
reporting only LQGs

N/A

N/A

40

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Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs)
		and the Definition of Solid Waste (DSW) Exclusions by Scenario a 	

Scenarios

Generators b

Transporters

Intermediate and
Reclamation Facilities

3. Generator switches
from off-site disposal at
a RCRA facility to
off-site reclamation
under GCE d

HSM can be accumulated onsite for longer periods
of time under GCE, resulting in potentially greater
quantities onsite at any given time

The GCE requires HSM to be "contained," but
does not include prescriptive standards, whereas
HWRs are prescriptive

GCE allows management of HSM in land-based
units without a permit or interim-status, unlike
HWRs

Generators could change in status (e.g., from LQG
to SQG) as a result of exclusions and be subject to
less stringent HWRs

Off-site management at permitted facility is more
stringently regulated than reclamation under the
GCE (e.g., no permit or public involvement is
required)

DSW exclusions require all generators to notify
EPA biennially, whereas HWRs require biennial
reporting only LQGs

Excluded materials that
qualify as DOT
hazardous material
would be subject to
comparable DOT
transportation
regulations as hazardous
waste, except that the
GCE does not require
manifest or other
tracking of off-site
shipments to same-
company reclaimer or
between tolling
contractor and toll
manufacturer

Some excluded material
may no longer qualify as
a DOT hazardous
material and be subject
to DOT transportation
regulations (e.g., no
standards for packaging,
marking, labeling)

N/A

41

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Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs)
		and the Definition of Solid Waste (DSW) Exclusions by Scenario a 	

Scenarios

Generators b

Transporters

Intermediate and
Reclamation Facilities

4. Generator switches
from off-site disposal at
a RCRA facility to
off-site permitted
reclamation at a U.S.
facility under TBE

HSM can be accumulated onsite for longer periods
of time under exclusion, resulting in potentially
greater quantities onsite at any given time

The TBE requires HSM to be "contained," but
does not include prescriptive standards, whereas
HWRs are prescriptive

Generators could change in status (e.g., from LQG
to SQG) as a result of exclusion and be subject to
less stringent HWRs

DSW exclusions require all generators to notify
EPA biennially, whereas HWRs require biennial
reporting only LQGs

Excluded materials that
qualify as DOT
hazardous material
would be subject to
comparable DOT
transportation
regulations as hazardous
waste

Some excluded material
may no longer qualify as
a DOT hazardous
material and be subject
to DOT transportation
regulations (e.g., no
standards for packaging,
marking, labeling)

There is no change in
storage methods or
recycling practices under
the exclusion (off-site
recycler still RCRA
permitted)

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Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs)
		and the Definition of Solid Waste (DSW) Exclusions by Scenario a 	

Scenarios

Generators b

Transporters

Intermediate and
Reclamation Facilities

5. Generator switches
from off-site disposal at
a RCRA facility to
off-site reclamation at a
U.S. facility without a
RCRA permit under
TBE

HSM can be accumulated onsite for longer periods
of time under exclusions, resulting in potentially
greater quantities onsite at any given time

The TBE requires HSM to be "contained," but
does not include prescriptive standards, whereas
HWRs are prescriptive

Generators could change in status (e.g., from LQG
to SQG) as a result of exclusions and be subject to
less stringent HWRs

DSW exclusions require all generators to notify
EPA biennially, whereas HWRs require biennial
reporting only LQGs

Excluded materials that
qualify as DOT
hazardous material
would be subject to
comparable DOT
transportation
regulations as hazardous
waste

Some excluded material
may no longer qualify as
a DOT hazardous
material and be subject
to DOT transportation
regulations (e.g., no
standards for packaging,
marking, labeling)

Facilities under the TBE
would not have a permit
and thus, would be less
stringently regulated than
permitted facilities (e.g., no
public involvement, fewer
prescriptive requirements).
However, facilities must
pass "reasonable efforts"
audit and obtain financial
assurance under TBE

TBE requires HSM to be
"contained" and managed in
a manner that is at least as
protective as that employed
for analogous raw material,
but does not include
prescriptive standards,
whereas HWRs are
prescriptive

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Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs)
		and the Definition of Solid Waste (DSW) Exclusions by Scenario a 	

Scenarios

Generators b

Transporters

Intermediate and
Reclamation Facilities

6. Generator switches
from off-site disposal at
a RCRA facility to
exporting for
reclamation under TBE

HSM can be accumulated onsite for longer periods
of time under exclusion, resulting in potentially
greater quantities onsite at any given time

The TBE requires HSM to be "contained," but
does not include prescriptive standards, whereas
HWRs are prescriptive

Generators could change in status (e.g., from LQG
to SQG) as a result of exclusions and be subject to
less stringent HWRs

Export procedures under HWRs and TBE are
comparable

DSW exclusions require all generators to notify
EPA biennially, whereas HWRs require biennial
reporting only LQGs

Excluded materials that
qualify as DOT
hazardous material
would be subject to
comparable DOT
transportation
regulations as hazardous
waste

Some excluded material
may no longer qualify as
a DOT hazardous
material and be subject
to DOT transportation
regulations (e.g., no
standards for packaging,
marking, labeling)

Facilities that receive
imports under the TBE are
not required to obtain a
permit. However, facility
must pass "reasonable
efforts" audit under TBE

44

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Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs)
		and the Definition of Solid Waste (DSW) Exclusions by Scenario a 	

Scenarios

Generators b

Transporters

Intermediate and
Reclamation Facilities

7. Generator switches
from off-site
reclamation at a facility
without a permit (no
storage) to off-site
reclamation under TBE

e

HSM can be accumulated onsite for longer periods
of time under exclusions, resulting in potentially
greater quantities onsite at any given time

The TBE requires HSM to be "contained," but
does not include prescriptive standards, whereas
HWRs are prescriptive

Generators could change in status (e.g., from LQG
to SQG) as a result of exclusions and be subject to
less stringent HWRs

Export procedures under HWRs and TBE are
comparable

DSW exclusions require all generators to notify
EPA biennially, whereas HWRs require biennial
reporting only LQGs

Excluded materials that
qualify as DOT
hazardous material
would be subject to
comparable DOT
transportation
regulations as hazardous
waste

Some excluded material
may no longer qualify as
a DOT hazardous
material and be subject
to DOT transportation
regulations (e.g., no
standards for packaging,
marking, labeling)

The TBE is more stringent
than the HWRs in situations
where HSM is not stored
before reclamation (e.g., the
TBE requires financial
assurance, containment,
protective management and
generator audit, whereas
HWRs do not require a
permit, financial assurance,
etc.). However, the HWRs
are more stringent in some
aspects than the TBE in
situations where the HSM is
stored before reclamation
(e.g., the HWRs require a
permit, whereas the TBE
does not).

8. Generator switches
from off-site
reclamation at a RCRA
facility to another type
of reclamation under
the current DSW
exclusions

Refer to Scenarios 2 through 6 for regulatory differences and consequences applicable to Scenario 8.
Scenarios 2 through 6 involve generators switching from off-site permitted disposal to another type of
reclamation under the DSW exclusions. Scenario 8 involves generators switching from off-site permitted
reclamation to another type of reclamation under DSW exclusions. As such, Scenarios 2 through 6 include
the same types of regulatory differences and consequences as Scenario 8.

a Abbreviations used in the above table include the following: HSM = hazardous secondary material; HWRs = hazardous waste regulations; GCE = generator-
controlled exclusion; TBE = transfer-based exclusion; LQGs = large quantity generators; SQGs = small quantity generators.

45

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b Under the GCE, generators may perform reclamation onsite or send it offsite to a same-company reclaimer or toll manufacturer under its control. This column
addresses these off-site facilities (i.e., same-company reclaimers and toll manufacturers) as generators.

0 This scenario includes generators that continue their current practices under the exclusions by either reclaiming onsite; shipping to a permitted, off-site
reclamation facility; or exporting the material for reclamation.

d This scenario includes generators switching from off-site disposal to sending the material to either a same-company reclaimer or toll manufacturer under the
GCE.

e This scenario includes generators switching from off-site reclamation at a facility without a permit to another type of reclamation under the TBE, including
either off-site reclamation at a RCRA-permitted facility, off-site reclamation at a facility without a permit, or export of the material to a company in another
country.

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2.5 Likelihood of Hazards under Scenarios

This section presents EPA's analysis of the likelihood of changes in hazards under the current
DSW exclusions for each type of facility (generators, transporters, and intermediate and
reclamation facilities) and each scenario described in Section 2.1 of this report. The analysis was
based on the changes in management practices for HSM described in Section 2.1, the hazards
identified in Section 2.2, and the regulatory comparison presented in Section 2.3. The discussion
includes a description of each hazard, and whether the likelihood of the hazard is increased,
decreased, or might be transferred between communities.

2.5.1 Role of Non-Compliance in Potentially Increased Hazards

Some of the potential increased hazards discussed in Section 2.5.2 are related to EPA's ability to
oversee and enforce against non-compliant facilities. The analysis of how enforcement is linked
to potential increased hazards is not meant to imply that all facilities are assumed to be non-
compliant under the 2008 scenarios, but rather it evaluates the potential for increased non-
compliance in the subset of facilities that may choose it when feasible. The role of compliance
monitoring in influencing environmental behavior both as a specific deterrence and a general
deterrence to bad behavior is well documented.40

Moreover, as discussed in more detail in EPA's recycling market forces study41, because of the
low commercial value and the high potential liability cost associated with most types of
hazardous secondary materials (i.e., spent materials and listed hazardous waste by-products and
sludges), the economic incentive for "sham recycling" is particularly high for these types of
materials, particularly at third-party recyclers. As opposed to manufacturing, where the cost of
raw materials or intermediates (or inputs) is greater than zero and revenue is generated primarily
from the sale of the output, hazardous secondary materials recycling can involve generating
revenue primarily from the receipt of the hazardous secondary materials. Recyclers of hazardous
secondary materials in this situation thus respond differently than traditional manufacturers to
economic forces and incentives, accumulating more inputs (hazardous secondary materials) than
can be processed (reclaimed). In addition, commercial recyclers have less flexibility than in-
house recyclers in changing how they manage their hazardous secondary materials (e.g., during
price fluctuations, in-house recyclers can more easily switch from recycling to disposal or from
recycled inputs to virgin inputs, while commercial recyclers cannot switch to disposal without
obtaining a RCRA permit). In other words, third-party recyclers have economic incentives to
accumulate waste beyond their ability to deal with it, which can lead to non-compliance even at
facilities that accepted the hazardous secondary materials for recycling with good intentions.

The manner in which market forces can contribute to adverse impacts at commercial hazardous
secondary materials recyclers is illustrated by the current situation with Cathode Ray Tube
(CRT) recycling. The CRT final rule conditionally excluded CRTs and CRT glass from being a
solid waste under the hazardous waste regulation when sent to recycling. (40 CFR 261.4(a)(22)).
By all accounts, implementation of CRT recycling under the CRT rule went smoothly for a

40	See 2010 EPA Definition of Solid Waste Rulemaking: Compliance Research Background Document, EPA-HQ-
RCRA-2010-0742-0014.

41	See 2006 EPA A Study of Potential Effects of Market Forces on the Management of Hazardous Secondary
Materials Intended for Recycling (EPA-HQ-RCRA-2002-0031-0358)

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number of years, primarily because CRT glass had positive value and could be easily recycled
into new CRTs. However, as demand for flat panel technologies has replaced consumer demand
for CRTs, the market for CRT recycling has recently collapsed, and recyclers who in 2004 would
receive $200/ton in payment for processed CRT glass now are faced with a greater than $200/ton
cost for disposing of it.42 Because of rising costs, negative economic incentives, and shifts in
CRT glass markets, some CRT processors and recyclers are choosing to collect and store the
glass indefinitely rather than pay to recycle (or dispose) the CRT glass, which have led to cases
of stockpiling, mismanagement, and abandonment.43

2.5.2 Potentially Increased Hazards under 2008 DSW Exclusions

EPA analyzed the information in the preceding sections of this report to determine whether the
hazards associated with the generation, transportation, and reclamation of HSM would
potentially increase under the DSW exclusions. EPA considered hazards to increase where it
determined that either the probability of the hazard occurring or the potential magnitude of the
hazard increased. In some cases, the hazard may increase at one facility, while decreasing at
another facility. For example, changing the management of their HSM from off-site incineration
to on-site reclamation is likely to increase potential hazards at the reclamation facility, while
decreasing them at the incineration facility. This section discusses only the potential increases in
hazards. Potential decreases in hazards are discussed in Section 2.5.3, and an analysis of trade-
offs between is discussed in Section 2.5.4.

This analysis was based on the changes in management practices for HSM described in the
Scenarios in Section 2.1; the general hazards associated with the generation, transportation,
storage, and reclamation of HSM presented in Section 2.2, and the regulatory differences
between the hazardous waste regulations and DSW exclusions identified in Section 2.3.

Through this analysis of hazards, EPA determined that these regulatory differences
(e.g., differences in stringency and scope), and the resulting changes in behavior by facilities
generating and managing HSMs, could result in an increase in potential hazards under the DSW
exclusions. EPA presents this analysis for generators, transporters, and intermediate and
reclamation facilities. For each type of hazard, the Scenarios from Section 2.1 under which it
might increase are identified.

Generators

Fires and Explosions (Scenarios 1 through 8). Some HSMs, such as solvents, are often
flammable, and can ignite to create fires and explosions. HSMs also may contain volatile
chemicals, which can be released to the air, and if flammable, these air emissions may cause fires
and explosions if ignited, causing injury or property damage. Fires and explosions also may

42 March 18, 2013, New York Times, "Unwanted Electronic Gear Rising in Toxic Piles"
http://www.nvtimes.com/2013/03/19/us/disposal-of-older-monitors-leaves-a-hazardous-
trail.html?pagewanted=all& r=0 (last accessed 4/11/13).

43 See EPA (2014) Federal Response to CRT Recycling Concerns. Powerpoint presentation at 2014 e-SCRAP
Conference, October 22, 2014, p 6.

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involve other toxic or hazardous gasses. Fire and explosion hazards under the 2008 DSW
exclusions could increase for generators because of the following:

• HSM can be accumulated longer, and potentially greater quantities can be accumulated
onsite.44 A longer accumulation period means that there is a greater likelihood for
release of the HSM. For example, there is a greater likelihood that solvents could be
inadvertently commingled in a container or storage area with incompatible materials and
wastes, such as oxidizers, which could cause an explosion or fire hazard. There is also a
greater likelihood that solvents could be stored near ignition sources (e.g., open flames)
or be stored in excessive heat, which could increase fire and explosion hazards. Longer
storage also increases the likelihood that drums or other containers could leak due to
corrosion, accidents, or other causes over time. The leaked material could then volatilize
or be exposed to an ignition source, resulting in a fire or explosion.

Greater accumulation quantities also mean that the magnitude of a potential fire or
explosion could be greater. Generators also could be responsible for managing a greater
number of tanks and containers to contain the greater volume or may overload/overfill
accumulation units while attempting to manage the greater volume using existing tank
and container capacity, which could make it more difficult to ensure the HSM is
contained. For example, the generator may need to spend more effort to make sure the
covers of a greater number of containers are kept tightly closed to prevent the escape of
potentially combustible vapors.

• No explicit containment standards. The 2008 DSW exclusions do not include explicit
standards for containment of HSM in tanks and containers, in contrast to the hazardous
waste regulations. In addition, the GCE allows management of HSM in land-based units
without a permit or interim-status, unlike the HWRs. Consequently, generators might not
take the same steps to minimize the potential for fires and explosions. The hazardous
waste regulations prescribe specific design and operating standards and air emission
controls for tanks and containers, including keeping these units tightly covered and using
vent systems (e.g., fixed roof, flares) if needed. In addition, the hazardous waste
regulations require that certain units be provided with a means to protect against the
formation and ignition of vapors within the tank if the waste being stored or treated is
ignitable or reactive. These controls, which could be helpful in preventing fires and
explosions and the emission of potentially combustible vapors to the atmosphere, are not
specifically required under the DSW exclusions. The hazardous waste regulations also
include procedures for segregating reactive, ignitable and incompatible wastes, and for
locating ignitable and reactive wastes at least 15 meters from the facility's property line,
which can reduce the likelihood of fires and explosions, or reduce the risk of them
impacting nearby properties and individuals on those properties. Finally, unlike the
hazardous waste regulations, the DSW exclusions allow generators to accumulate their
HSMs in land-based units, including surface impoundments and waste piles, provided the
HSMs are contained in such land-based units. The hazardous waste regulations, on the
other hand, provide that only permitted and interim-status facilities can operate these

44 For generators that switch from off-site management to on-site recycling (Scenarios 2 and 8), there is the
possibility that there might be smaller volumes of HSM accumulated, if recycling can occur more quickly than
accumulation of enough material for a shipment to be sent offsite.

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land-based units, and they must follow explicit requirements for containment of the waste
during operation, closure and post-closure care. The DSW exclusions do not require
explicit containment requirements for these or other unit types.

• Generator drop in status. A generator operating under a DSW exclusion would not be
required to count its excluded HSM in determining its hazardous waste generator status.
As a result, the generator's classification may change from a LQG to a SQG or CESQG
because it would have less hazardous waste to count toward its monthly total and
therefore, be subject to less stringent hazardous waste requirements. For example, SQGs
are subject to less stringent requirements for tank systems, the control of air emissions,
personnel training, contingency planning, and emergency procedures. As a result, a
generator that drops from LQG to SQG generally would become less stringently
regulated in regard to the prevention and control of fire and explosion hazards. Examples
of regulatory differences between LQGs and SQGs that might impact fire and explosion
hazards include:

o The SQG's HSM and hazardous waste would no longer be subject to air emission
controls that are designed to prevent the escape of potentially combustible vapors
from containers and tanks.

o The SQG would not be required to provide on-going personnel training in

emergency procedures (e.g., fire control), or to maintain a contingency plan that
spells out these procedures and identifies the location of emergency equipment
(e.g., fire equipment).

o Some LQGs and SQGs could become CESQGs under the exclusion. CESQGs
generally are not subject to the full hazardous waste regulations provided they
meet certain requirements.

• Generator on-site reclamation under the GCE may be less stringently regulated than
permitted reclamation or treatment then disposal under the hazardous waste regulations.
Unlike the hazardous waste regulations, the GCE does not require a permit, public
involvement, or explicit HSM management requirements. For example, the GCE does
not require generators to follow explicit standards for containment (e.g., no explicit
standards for secondary containment, run-on/run-off controls, and inspections),
contingency planning or procedures, or personnel training for emergencies (e.g., how to
address fires and explosions). If HSM is diverted from permitted reclamation or
treatment then disposal under the hazardous waste regulations to reclamation under the
GCE, there is no assurance that the generator will carry out comparable activities.

• HSM could be increasingly diverted from hazardous waste management and disposal to
on-site reclamation under the GCE. On-site reclamation could increase the risk of fires
and explosions at generator facilities due to increased volumes accumulated and air
emissions from reclamation processes, the use of heat in reclamation processes, and the
potential mixing of wastes for reclamation. For example, the reclamation of solvents
typically involves the use of distillation, which requires the application of heat. Solvents
generally become more volatile as the temperature increases, which could lead to greater
air emissions that, if not adequately captured, recovered, or destroyed could be a source
for a fire or explosion.

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Soil and Water Contamination (Scenarios 1 through 8). During on-site accumulation, HSM
releases can occur from factors, such as spills due to human error or deterioration of equipment;
tank overflows or overtopping; leaks from damaged or deteriorated containers or tanks; complete
failure of tank or container integrity; and run on/run off from the storage area. During on-site
transfer, releases could include spills, overflows, and leaks from human error or deterioration of
transport equipment (e.g., leaking pipes). Solvent wastes are especially susceptible to such
releases because they are commonly in a liquid state. Soil and water contamination hazards
under the DSW exclusions could increase because of the following:

• HSM can be accumulated longer, and potentially greater quantities can be accumulated
onsite.45 A longer accumulation period means that there is a greater likelihood for
inadvertent mismanagement of the HSM, such as spills and leaks due to human error or
equipment malfunction. There is also a greater likelihood that over time, accumulation
units could deteriorate due to corrosion, accidents, or mishandling, which could cause a
release.

Further, greater accumulation quantities mean there is greater likelihood that
accumulation units could be filled beyond capacity and release HSM from overtopping.
In addition, a greater quantity of HSM to be managed could make it more difficult for the
generator to contain and detect releases, and the potential magnitude of a release could be
greater.

• No explicit containment standards. The DSW exclusions do not include explicit
standards for containment of HSM in tanks, containers, containment buildings, and land-
based units as do the hazardous waste regulations. The hazardous waste regulations, for
example, include land-based unit design requirements for liners and leachate collection
and removal systems, dikes, and run-on/run-off systems. They also include operating
controls and practices to prevent spills and overflows (e.g., maintenance of sufficient
freeboard in uncovered tanks), as well inspection requirements (e.g., tank
owner/operators must inspect overfill/spill control equipment and tanks to detect
corrosion and releases). Because the DSW exclusions do not include such explicit
requirements, there is less assurance that generators will adopt comparable controls and
procedures to prevent release and respond to them if they occur. Finally, unlike the
hazardous waste regulations, the DSW exclusions allow generators to accumulate their
HSM in land-based units including surface impoundments and waste piles, provided the
HSMs are contained in such land-based units. However, the DSW exclusions do not
require explicit containment requirements for these or other unit types. The use of land-
based units may increase the likelihood of releases to soil, groundwater, and surface
water. For example, precipitation and run-on/runoff from land-based units may cause
contaminants to leach or be carried out of the unit and contaminate environmental media.

45 For generators that switch from off-site management to on-site recycling (Scenarios 2 and 8), there is the
possibility that there might be smaller volumes of HSM accumulated, if recycling can occur more quickly than
accumulation of enough material for a shipment to be sent offsite.

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SQG) and be subject to less stringent requirements. Examples of regulatory differences
between LQGs and SQGs include:

o SQGs would no longer need to comply with as many explicit tank design and
operating requirements (e.g., liner, leachate collection and removal system,
controls and practices to prevent spills and overflows).

o SQGs would no longer need to provide on-going personnel training in emergency
procedures (e.g., response to groundwater contamination), or to maintain a
contingency plan that spells out these procedures and identifies the location of
emergency equipment.

o Some LQGs and SQGs could become CESQGs under the exclusion. CESQGs
generally are not subject to the full hazardous waste regulations provided they
meet certain requirements.

• Generator on-site reclamation under the GCE may be less stringently regulated than
permitted reclamation or treatment then disposal under the hazardous waste regulations.
Unlike the hazardous waste regulations, the GCE does not require a permit, public
involvement, or explicit HSM management requirements. For example, the GCE does
not require generators to follow explicit standards for containment (e.g., no explicit
standards for secondary containment, run-on/run-off controls, or inspections),
contingency planning or procedures, or personnel training for emergencies (e.g., how to
address groundwater releases). If HSM is diverted from permitted reclamation or
disposal under the hazardous waste regulations to reclamation under the GCE, there is no
assurance that the generator will carry out comparable activities.

• HSM could be increasingly diverted from off-site hazardous waste management to on-
site reclamation under the GCE. The additional processing required for on-site
reclamation could result in more releases to soil and water at generator facilities. For
example, recycling by distillation of a solvent may require filtration, distillation,
condensation, or other processing. As the solvent is passed through the pipes, valves, and
other equipment used in the distillation process, the likelihood of a release through leaks
and spills increases.

Volatile Air Emissions (Scenarios 1 through 8). Volatile organic air emissions can occur
during accumulation and transportation onsite. For example, solvents held in tanks or containers
could volatilize and escape to the atmosphere through open container lids, uncovered tanks, leaks
and vents, breathing losses, and container filling and emptying. Volatile emission hazards under
the DSW exclusions could increase because of the following:

• HSM can be accumulated longer, and potentially greater quantities can be accumulated
onsite. A longer accumulation period could increase the inadvertent mismanagement of
the HSM, such as leaving container lids off of containers, which would allow greater
escape of emissions. In addition, it is possible that there could be greater opening and
closing of tanks and containers as HSM is added, transferred, and removed from units.
There is also a greater likelihood that accumulation units could deteriorate due to
corrosion, accidents, or mishandling, which could cause a release. In addition, a greater
quantity of HSM to be managed could make it more difficult for the generator to contain
and detect releases, and the potential magnitude of a release would be greater.

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• No explicit containment standards. The DSW exclusions do not include explicit
standards for containment of volatile organic emissions as do the hazardous waste
regulations. For example, LQGs may need to install a fixed roof to help control air
pollutant emissions from tanks, or use containers that meet applicable DOT regulations.
Because the exclusions do not include explicit requirements, there is less assurance that
generators will follow controls that will be comparable to the hazardous waste
requirements.

• Generator drop in status. A generator under a DSW exclusion would not be required to
count its excluded HSM in determining its hazardous waste generator status under the
hazardous waste regulations; therefore, it could change its regulatory status (e.g., from
LQG to SQG) and be subject to less stringent requirements. For example, SQGs would
no longer need to comply with air emission controls described above. This could result
in increased air emissions.

• Generator on-site HSM management prior to on-site reclamation under the GCE may be
less stringently regulated than permitted reclamation or treatment then disposal under the
hazardous waste regulations. Unlike the hazardous waste regulations, the GCE does not
require a permit, public involvement, or explicit HSM management requirements. For
example, the GCE does not require generators to follow explicit standards for
containment (e.g., no explicit standards for secondary containment, run-on/run-off
controls, or inspections), contingency planning or procedures, or personnel training for
emergencies (e.g., how to address fires). If HSM is diverted from permitted reclamation
or disposal under the hazardous waste regulations to reclamation under the GCE, there is
no assurance that the generator will carry out comparable activities.

• HSM could be increasingly diverted from hazardous waste management and disposal to
on-site reclamation under the GCE. The additional processing required for on-site
reclamation could result in more air emissions at generator facilities. For example,
recycling by distillation of a solvent may require filtration, distillation, condensation, or
other processing. As the solvent is passed through the pipes, valves, and other equipment
used in the distillation process, volatile emissions from fittings, valves, and process
equipment could increase. In addition, many reclamation processes, such as distillation
of solvents, require the application of heat. Solvents generally become more volatile as
the temperature increases, which could lead to greater air emissions. Changes in
temperature also can increase breathing losses from tanks and equipment, leading to
increased air emissions.

Particulate Wind Dispersal (Scenarios 1 through 8). Wind dispersal can occur during
accumulation and on-site movement of the HSM if the HSM is in the form of a dust or small, dry
particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong
wind gusts). For example, electric arc furnace dust might be susceptible to wind dispersal,
because it is often present in dust form and may be accumulated in land-based units such as
waste piles. Wind dispersal hazards under the DSW exclusions could increase because of the
following:

• HSM can be accumulated longer, and potentially greater quantities can be accumulated
onsite. A longer accumulation period means that there is a greater likelihood for
inadvertent mismanagement of the HSM, such as failure to ensure waste piles are covered

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or wet to control dust. Further, greater accumulation quantities mean there is greater
likelihood that accumulation units could be filled beyond capacity and release HSM. In
addition, a greater quantity of HSM to be managed could make it more difficult for the
generator to contain and detect releases, and the potential magnitude of a release could be
greater.

• No explicit containment standards. The DSW exclusions do not include explicit
standards for control of wind dispersal of particulates as do the hazardous waste
regulations. For example, generators must keep their containers closed when not filling
or emptying them. In addition, tank systems of LQGs must have wind dispersal controls,
if needed. Further, the GCE allows generators to manage their HSM in land-based units
without a permit or interim status, unlike the hazardous waste regulations. The GCE does
not prescribe wind dispersal controls for land-based units as do the hazardous waste
regulations. For example, the hazardous waste regulations require that surface
impoundments be designed and operated to prevent wind and wave action. Because the
exclusions do not include explicit requirements, there is less assurance that generators
will follow controls that will be comparable to the hazardous waste management unit
requirements.

• Generator drop in status. A generator under a DSW exclusion would not be required to
count its excluded material in determining its hazardous waste generator status under the
hazardous waste regulations; therefore, it change its regulatory status (e.g., from LQG to
SQG) and be subject to less stringent requirements. For example, SQGs would no longer
need to comply with the wind dispersal requirements for tanks, which only apply to
LQGs.

Abandoned Materials (Scenarios 1 through 3 and 8). A significant number of the
environmental damage cases evaluated by EPA involve abandoned materials. EPA believes that
bankruptcies and other business failures were responsible for a number of the cases involving
abandoned materials. Abandoned HSMs under the DSW exclusions could increase because of
the following:

• HSM can be accumulated longer, and potentially greater quantities can be accumulated
onsite. A greater accumulation quantity could mean that the quantity of material
abandoned could be greater, increasing the magnitude of problems associated with
abandoned materials, such as the extent of contamination of environmental media and
cleanup costs. In the case where a generator goes out of business, there may be
potentially greater quantities of accumulated, non-processed, and possibly not
appropriately contained HSM on the property.

• Generator on-site reclamation under the GCE may be less stringently regulated than
permitted reclamation or disposal under the hazardous waste regulations. The GCE does
not require financial assurance for reclamation under the generator's control. Similarly,
the hazardous waste regulations do not require financial assurance for generators that
perform reclamation in their 90- and 180-day tanks and containers. In this respect, the
likelihood for abandonment of materials due to financial hardship under the GCE and the
hazardous waste regulations is comparable. However, unlike the hazardous waste
regulations, the GCE does not require a permit, public involvement, or explicit HSM
management standards. The hazardous waste regulations do require generators to obtain

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a permit if they store their hazardous waste for longer than 90 days for LQGs or 180/270
days for SQGs (depending on type of activity involved), pending reclamation onsite.
These generators would be subject to a number of permit conditions that would reduce
the likelihood of abandoned materials (e.g., financial assurance requirements, corrective
action, closure notification and plans). Hence, the likelihood for abandonment of HSMs
due to financial hardship under the GCE is not comparable to the hazardous waste
regulations when the HSM is stored (for more than 90 or 180/270 days, depending on
generator size and type of activity involved), pending on-site reclamation.

55

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Table 2.4. Potential Incremental Hazards under the Current DSW Exclusions: Generators

Regulatory Differences under
the DSW Final Rule a

Potential Incremental Hazards

Fire/
Explosion

Soil/Water
Contamination

Volatile Air
Emissions

Particulate

Wind
Dispersal

Abandoned
Materials

Scenario 1: Generator continues current reclamation practices b

HSM accumulated longer, potentially
greater quantities onsite

X

X

X

X

X

No explicit containment standards

X

X

X

X



Potential generator change in regulatory
status

X

X

X

X



On-site generator reclamation potentially
less stringently regulated

X

X

X

X

Xc

Scenario 2: Generator switches from off-site disposal to on-site reclamation

HSM accumulated longer, potentially
greater quantities onsite

X

X

X

X

X

No explicit containment standards

X

X

X

X



Potential generator change in regulatory
status

X

X

X

X



On-site generator reclamation potentially
less stringently regulated

X

X

X

X

X

Scenario 3: Generator switches from off-site disposal to off-site recycling und

er the control of the generator d

HSM accumulated longer, potentially
greater quantities onsite

X

X

X

X

X

No explicit containment standards

X

X

X

X



Potential generator change in regulatory
status

X

X

X

X



Scenarios 4 through 8: Generator switches to off-site recycling e

HSM accumulated longer, potentially
greater quantities onsite

X

X

X

X



No explicit containment standards

X

X

X

X



56

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Table 2.4. Potential Incremental Hazards under the Current DSW Exclusions: Generators

Regulatory Differences under
the DSW Final Rule a

Potential Incremental Hazards

Fire/
Explosion

Soil/Water
Contamination

Volatile Air
Emissions

Particulate

Wind
Dispersal

Abandoned
Materials

Potential generator change in regulatory
status

X

X

X

X



On-site generator reclamation potentially
less stringently regulated

X

X

X

X

X

a These differences were identified by comparing the federal regulations applicable to hazardous waste generators and generators of DSW-excluded materials.
See Section 2.3 of this report for additional information.

b Abandonment of HSMs could be more likely to occur under the GCE than hazardous waste regulations for reclaimers that store their HSM pending
reclamation.

0 This scenario includes generators that continue their current practices under the exclusions by either reclaiming onsite; shipping to a permitted, off-site
reclamation facility; or exporting the material for reclamation.

d This scenario includes generators switching from off-site disposal to sending the material to either a same-company reclaimer or toll manufacturer under the
GCE.

e Scenario 7 includes generators switching from off-site reclamation at a facility without a permit to another type of reclamation under the TBE, including either
off-site reclamation at a RCRA-permitted facility, off-site reclamation at a facility without a permit, or export of the material to a company in another country.

57

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Transporters

Fires and Explosions (Unlikely for all Scenarios). Some HSMs, such as solvents,
contain volatile chemicals, which can be released to the air, and, if flammable, these air
emissions may cause fires and explosions if ignited, causing injury or property damage.
Fires and explosions also may evolve other toxic or hazardous gases.

HSM that is flammable or explosive would qualify as a DOT hazardous material and be
subject to comparable DOT regulation (e.g., for packaging, labeling, marking, placarding,
parking, and driving) when transported offsite, regardless of whether the material is
regulated as hazardous waste or DSW-excluded material. Note, however, that the DSW
exclusions do not require the use of a manifest or other document that provides RCRA
waste codes at 40 CFR Part 261. All hazardous waste off-site shipments must be
accompanied by a manifest that includes waste codes. Waste codes could be helpful to
emergency responders in fully characterizing the hazards of a released material and
taking an appropriate response action during a fire or explosion. However, the DOT
hazardous material requirements are specifically designed to help emergency responders
to characterize the hazards of materials being transported, so it is unlikely that the lack of
waste codes would seriously impede an emergency response.

Volatile Air Emissions, Soil, Water, and Particulate Wind Dispersal (Scenarios 1, 3,

4, 5, 6, 7, and 8). During loading, unloading, and transport, volatile air emissions from
solvents may escape from valves, pumps, hoses, tank trucks, drums, and other containers.
Under certain conditions, solvents held in tank trucks or drums could volatilize and
escape to the atmosphere (e.g., through open container lids, uncovered tanks, leaks and
vents). Leaks and spills during transfer of HSM, leaky or improperly closed containers,
or accidents could result in release of HSM to loading area soil, groundwater, or surface
water. Further, wind dispersal of HSM (e.g., electric arc furnace dust) can occur if it is in
the form of a dust or small, dry particles, adequate controls are not in place, and certain
climatic conditions prevail (e.g., strong wind gusts). For example, dust in hopper rail
cars or roll-off dumpsters that are not properly covered could blow out and result in
inhalation exposures (when traveling through communities) and/or contaminate the
surrounding environment during transport. Contaminated soil or other solid media also
may be susceptible to re-suspension and wind dispersal.

HSM under the DSW exclusions that qualifies as a DOT hazardous material would be
subject to generally comparable transportation requirements as hazardous waste in regard
to packing, labeling, marking, placarding, parking, and driving. Specifically, the DOT
regulations impose comparable requirements on hazardous waste as it does on other types
of DOT hazardous materials in regard to these activities. Therefore, such DOT-regulated
shipments of hazardous waste and excluded material would address releases of materials
in comparable ways.

However, excluded HSM that does not qualify as a DOT hazardous material would not
be subject to transportation requirements that are comparable to hazardous waste in
regard to packing, labeling, marking, placarding, parking or driving, or reporting releases
of RQs to the National Response Center. Transporters of such excluded HSM would not
be required to follow comparable procedures to address potential releases of materials,
including vapors, liquids, solids, or particulate matter. For example, transporters might

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use less expensive packaging that is more likely to leak or be ruptured in an accident,
contaminating soil and water, or releasing volatile emissions.

Abandoned Materials (Scenario 3). A shipment of HSM may be abandoned during
transit for a number of reasons. Abandonment could occur, for example, if there is a
transportation accident and released/contaminated materials are left by the roadside, the
transporter cannot find the destination facility, or the transporter otherwise decides not to
fulfill its obligation to deliver the HSM. EPA established the hazardous waste manifest
system as a means of ensuring that hazardous wastes are tracked from "cradle to grave."
Under the manifest system, each party to the shipment must sign and keep a copy of the
manifest, and the generator must be notified of its receipt by the destination facility,
increasing each party's accountability over the shipment and reducing the likelihood of
abandoned shipments. The GCE does not include a requirement for a hazardous waste
manifest. Where generators reclaim HSM under the GCE, but the generation and
reclamation facilities are in different locations, the HSM must be transported offsite.
Similarly, generators may transport HSM to an unaffiliated off-site reclaimer under the
TBE. In such cases, the likelihood of HSM being abandoned could increase.

59

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Table 2.5. Potential Incremental Hazards under the Current DSW Exclusions: Transporters

Regulatory Differences under
the DSW Final Rule a

Potential Incremental Hazards

Fire/Explosion

Volatile Air,
Emissions, Soil/

Water
Contamination,
and Wind
Dispersal

Abandoned
Materials

Scenario 1: Generator continues current reclamation practices b

No waste codes on shipping papers







HSM that no longer qualifies as DOT hazardous material or triggers RQ



X



Scenario 2: Generator switches from off-site disposal to on-site reclamation

Not applicable

Scenario 3: Generator switches from off-site disposal to off-site recycling under the control of the generatorc

No waste codes on shipping papers







HSM that no longer qualifies as DOT hazardous material or triggers RQ



X



No tracking document required





X

Scenario 4: Generator switches from off-site disposal to off-site recycling at a RCRA-permitted facility

No waste codes on shipping papers







HSM that no longer qualifies as DOT hazardous material or triggers RQ



X



Scenario 5: Generator switches from off-site disposal to off-site recycling at a U.S. faci

ity without a RCRA permit

No waste codes on shipping papers







HSM that no longer qualifies as DOT hazardous material or triggers RQ



X



Scenario 6: Generator switches from off-site disposal to exporting for recycling

No waste codes on shipping papers







HSM that no longer qualifies as DOT hazardous material or triggers RQ



X



Scenario 7: Generator switches from off-site recycling at a facility without a permit to another type of recycling under DSW

d

No waste codes on shipping papers







60

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Table 2.5. Potential Incremental Hazards under the Current DSW Exclusions: Transporters

Regulatory Differences under
the DSW Final Rule a

Potential Incremental Hazards

Fire/Explosion

Volatile Air,
Emissions, Soil/

Water
Contamination,
and Wind
Dispersal

Abandoned
Materials

HSM that no longer qualifies as DOT hazardous material or triggers RQ



X



Scenario 8: Generator switches from off-site recycling at a RCRA-permitted facility to another type of recycling under
DSW

No waste codes on shipping papers







HSM that no longer qualifies as DOT hazardous material or triggers RQ



X



a These differences were identified by comparing the federal regulations applicable to hazardous waste shipments and shipments of DSW-excluded materials.
See Section 2.3 of this report for additional information.

b This scenario includes generators that continue their current practices under the exclusions by either reclaiming onsite; shipping to a permitted, off-site
reclamation facility; or exporting the material for reclamation.

0 This scenario includes generators switching from off-site disposal to sending the material to either a same-company reclaimer or toll manufacturer under the
GCE.

d This scenario includes generators switching from off-site reclamation at a facility without a permit to another type of reclamation under the TBE, including
either off-site reclamation at a RCRA-permitted facility, off-site reclamation at a facility without a permit, or export of the material to a company in another
country.

61

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Intermediate and Reclamation Facilities

Fires and Explosions (Scenarios 1, and 4 through 8). Some HSM, such as solvents,
are often flammable, and can ignite to create fires and explosions. HSM also may
contain volatile chemicals, which can be released to the air, and, if flammable, these air
emissions may cause fires and explosions if ignited, causing injury or property damage.
Fires and explosions also may evolve other toxic or hazardous gasses. Fire and explosion
hazards under the DSW exclusions could increase because of the following:

• Change from RCRA-permitted to unpermitted management facilities (Scenarios

1, 5, and 8). Some HSMs may be diverted from off-site reclamation or disposal at
a facility permitted under the hazardous waste regulations to off-site reclamation,
which does not require a permit. Permitted facilities are subject to prescriptive
permit requirements covering the design, construction, operation, financial
assurance, closure and post-closure of the facility, including hazardous waste
management units. They also are subject to public involvement in the permitting
process. Reclamation under the DSW exclusion would be subject to fewer
requirements, including no requirement for a permit or public involvement. For
example, reclamation under the exclusion is not subject to emergency
preparedness and response, personnel training, or prescriptive requirements for
containment. These requirements could reduce the likelihood of fires and
explosions, reduce their magnitude, or increase the ability of facilities to respond
to them and reduce the damage caused.

• No explicit containment standards (Scenarios 1, 5, and 8). The hazardous waste
regulations and TBE require containment of HSM in the unit. The hazardous
waste regulations prescribe design, installation, operating, closure and post-
closure standards to address containment, whereas the TBE does not. The
exclusion requires that the HSM be managed in a manner that is at least as
protective as that employed for analogous raw material and be contained. As
such, the TBE allows more flexibility in how HSMs can be managed and
contained. These controls, which could be helpful in preventing fires and
explosions and the emission of potentially combustible vapors to the atmosphere,
are not specifically required under the DSW exclusions.

• No explicit standards for controlling air emissions (Scenarios 1, 5, and 8). The
TBE does not include standards for controlling air emissions from process vents,
equipment leaks, or storage units as do the hazardous waste regulations. While
the DSW exclusions require containment of HSM, they do not include explicit
requirements for control of air emissions. The hazardous waste regulations and
TBE require containment of HSM in the unit. The hazardous waste regulations
set forth prescriptive design, operating and other standards to control air releases
for process vents, leaks, and storage units. The TBE does not include prescriptive
requirements. These controls, which could be helpful in preventing fires and
explosions and the emission of potentially combustible vapors to the atmosphere,
are not specifically required under the DSW exclusions.

• HSM could be increasingly diverted from hazardous waste management to
reclamation under the TBE (Scenarios 1, and 4 through 8). Increased reclamation

-------
could increase the risk at reclamation sites of fires and explosions due to
increased air emissions, the use of heat in reclamation processes, and the potential
mixing of wastes for reclamation. For example, the reclamation of solvents
typically involves the use of distillation, which requires the application of heat.
Solvents generally become more volatile as the temperature increases, which
could lead to greater air emissions that could be a source for a fire or explosion.

Soil and Water Contamination (Scenarios 1, and 4 through 8). Soil and groundwater
contamination from HSM releases can occur during accumulation and transportation
onsite. During accumulation, a number of factors could lead to a release (e.g., run-off
from the storage area, tank overflows, leaks from damaged or deteriorated containers or
tanks, or complete failure of tank). During transfer, releases could include spills,
overflows, and leaks from human error or deterioration of transport equipment (e.g.,
leaking pipes). For example, solvents are susceptible to such releases because they are
commonly in a liquid state. Soil and water contamination hazards under the DSW
exclusions could increase because of the following:

•	Change from RCRA-permitted to unpermitted management facilities (Scenarios

1, 5, and 8). Some HSMs may be diverted from off-site reclamation or disposal at
a permitted facility under the hazardous waste regulations to off-site reclamation
under the TBE, which does not require a permit. Permitted facilities are subject to
prescriptive permit requirements covering the design, construction, operation,
financial assurance, closure and post-closure of the facility, including hazardous
waste management units. They also are subject to public involvement in the
permitting process. Reclamation under the TBE would be subject to fewer
requirements, including no requirement for a permit or public involvement. For
example, reclamation under the TBE is not subject to emergency preparedness
and response, personnel training, or prescriptive requirements for containment.
These requirements could reduce the likelihood of leaks and spills that could
result in soil or water contamination, reduce their magnitude, or increase the
ability of facilities to respond to them and reduce the damage caused.

•	No explicit containment standards (Scenarios 1, 5, and 8). The hazardous waste
regulations and TBE require containment of HSM in the unit. The hazardous
waste regulations prescribe specific design, installation, operating, closure and
post-closure standards to address containment, whereas the TBE does not. The
exclusion requires that the material be managed in a manner that is at least as
protective as that employed for analogous raw material and be contained. As
such, the TBE allows more flexibility in how HSMs can be managed and
contained. These controls, which could reduce the likelihood of leaks and spills
that could result in soil or water contamination, reduce their magnitude, or
increase the ability of facilities to respond to them and reduce the damage caused,
are not specifically required under the DSW exclusions.

•	HSMs could be increasingly diverted from hazardous waste management to
reclamation under the TBE (Scenarios 1, and 4 through 8). Increased reclamation
could increase the risk at reclamation sites of leaks and spills that could result in
soil or water contamination or increase their magnitude. The additional
processing required for on-site reclamation could result in more releases to soil

63

-------
and water. For example, recycling by distillation of a solvent may require
filtration, distillation, condensation, or other processing. As the solvent is passed
through the pipes, valves, and other equipment used in the distillation process, the
likelihood of a release through leaks and spills increases.

Volatile Air Emissions (Scenarios 1, and 4 through 8). Volatile organic air emissions
can be released during accumulation, transportation, and reclamation onsite. Under
certain conditions, solvents held in tanks or containers could volatilize and escape to the
atmosphere (e.g., through open container lids, uncovered tanks, leaks and vents, and
breathing losses). This also could occur during the reclamation process. Volatile
emission hazards under the DSW exclusions could increase because of the following:

• Change from RCRA-permitted to unpermitted management facilities (Scenarios

1, 5, and 8). Some HSMs may be diverted from off-site reclamation or disposal at
a permitted facility under the hazardous waste regulations to off-site reclamation
under the TBE, which does not require a permit. Permitted facilities are subject to
prescriptive permit requirements covering the design, construction, operation,
financial assurance, closure, and post-closure of the facility, including hazardous
waste management units. They also are subject to public involvement in the
permitting process. Reclamation under the TBE would be subject to fewer
requirements, including no requirement for a permit or public involvement. For
example, reclamation under the exclusion is not subject to emergency
preparedness and response, personnel training, or prescriptive requirements for
containment. These requirements could reduce the likelihood of volatile air
emissions or reduce their magnitude.

• No explicit containment standards (Scenarios 1, 5, and 8). The hazardous waste
regulations and TBE require containment of HSM in the unit. The hazardous
waste regulations have explicit design, installation, operating, closure, and post-
closure standards to address containment, whereas the TBE does not. The
exclusion requires that the HSM be managed in a manner that is at least as
protective as that employed for analogous raw material and be contained. As
such, the TBE allows more flexibility in how HSMs can be managed and
contained. These controls, which could be helpful in preventing volatile air
emissions, are not specifically required under the DSW exclusions.

• No explicit standards for controlling air emissions (Scenarios 1, 5, and 8). The
TBE does not include standards for controlling air emissions from process vents,
equipment leaks, or storage units as do the hazardous waste regulations. While
the DSW exclusions require containment of HSM, they do not include explicit
requirements for control of air emissions. The hazardous waste regulations and
TBE require containment of HSM in the unit. The hazardous waste regulations
set forth explicit design, operating and other standards to control air releases for
process vents, leaks, and storage units. These controls, which could be helpful in
preventing volatile air emissions, are not specifically required under the DSW
exclusions.

• HSM could be increasingly diverted from hazardous waste management to
reclamation under the TBE (Scenarios 1, and 4 through 8). The additional

-------
processing required for on-site reclamation could result in more air emissions at
reclamation sites. For example, recycling by distillation of a solvent may require
filtration, distillation, condensation, or other processing. As the solvent is passed
through the pipes, valves, and other equipment used in the distillation process,
volatile emissions from fittings, valves, and process equipment could increase. In
addition, many reclamation processes, such as distillation of solvents, require the
application of heat. Solvents generally become more volatile as the temperature
increases, which could lead to greater air emissions. Changes in temperature also
can increase breathing losses from tanks and equipment, leading to increased air
emissions.

Particulate Wind Dispersal (Scenarios 1, and 4 through 8). Wind dispersal can occur
if the HSM is in the form of a dust or small, dry particles, adequate controls are not in
place, and certain climatic conditions prevail (e.g., strong wind gusts). Soil or other solid
media contaminated with solvents or other contaminants may be susceptible to wind
dispersal. Electric arc furnace dust, in particular, might be susceptible to wind dispersal
because it is often present in dust form and may be stored in waste piles. Wind dispersal
contamination hazards under the DSW exclusions could increase because of the
following:

• Change from RCRA-permitted to unpermitted management facilities (Scenarios

1, 5, and 8). Some HSMs may be diverted from off-site reclamation or disposal at
a permitted facility under the hazardous waste regulations to off-site reclamation
under the TBE, which does not require a permit. Permitted facilities are subject to
explicit permit requirements covering the design, construction, operation,
financial assurance, closure, and post-closure of the facility and hazardous waste
management units. They also are subject to public involvement in the permitting
process. Reclamation under the TBE would be subject to fewer requirements,
including no requirement for a permit or public involvement. For example,
reclamation under the exclusion is not subject to emergency preparedness and
response, personnel training, or explicit requirements for containment. These
requirements could reduce the likelihood of wind dispersal of HSM, reduce their
magnitude, or increase the ability of facilities to respond to them and reduce the
damage caused.

• No explicit containment standards (Scenarios 1, 5, and 8). The hazardous waste
regulations and TBE require containment of HSM in the unit. The hazardous
waste regulations contain explicit design, installation, operating, closure and post-
closure standards to address containment, whereas the TBE does not. The
exclusion requires that the HSM be managed in a manner that is at least as
protective as that employed for analogous raw material and be contained. As
such, the TBE allows more flexibility in how HSMs can be managed and
contained. These controls, which could reduce the likelihood of wind dispersal of
HSM, or increase the ability of facilities to respond to them and reduce the
damage caused, are not specifically required under the DSW exclusions.

-------
Abandoned Materials (Scenarios 5 and 8). A significant number of the environmental
damage cases evaluated by EPA involve abandoned materials. EPA believes that
bankruptcies and other business failures could be responsible for a number of these cases.
Abandoned materials at intermediate and reclamation sites under the DSW exclusions
could increase because of the following:

• The TBE requires facilities to obtain financial assurance for closure and accidents.
By obtaining financial assurance, a facility is demonstrating that even if events
beyond its control make its operations uneconomical, funds will be available to
cleanup abandoned materials.

These requirements are more stringent than the hazardous waste regulations that
apply to reclaimers that do not store the hazardous waste pending reclamation;
such reclaimers are not required to obtain financial assurance. In addition, they
are comparable to the financial assurance requirements applicable to permitted
reclaimers. However, permitted reclaimers also are subject to other requirements
that could prevent abandonment of HSM, including corrective action during each
permit renewal. They also are subject to periodic inspections by EPA and state
regulatory personnel.

• HSM could be increasingly diverted from hazardous waste management to
reclamation under the TBE, which may result in greater quantities accumulated
onsite at these facilities. A greater accumulation quantity could mean that the
quantity of HSM abandoned could be greater, increasing the magnitude of
problems associated with abandoned materials, such as the extent of
environmental contamination and cleanup costs.

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Table 2.6. Potential Incremental Hazards under the DSW Final Rule: Intermediate and Reclamation Facilities

Regulatory Differences under
the DSW Final Rule a

Potential Incremental Hazards

Fire/
Explosion

Soil/Water
Contaminatio
n

Volatile Air
Emissions

Particulate

Wind
Dispersal

Abandoned
Materials

Scenario 1: Generator continues curreni

reclamation practices b

Change from RCRA-permitted to
unpermitted management facilities

X

X

X

X

X

No explicit containment standards

X

X

X

X



No explicit standards for controlling air
emissions

X



X





HSM increasingly diverted from
hazardous waste management and
disposal to reclamation under the TBE

X

X

X

X



Scenario 2: Generator switches from off-site disposal to on-site reclamation

Not applicable











Scenario 3: Generator switches from off-site disposal to off-site reclamation under the control of the generator c

Not applicable











Scenario 4: Generator switches from off-site disposal to off-site recycling at a RCRA-permitted facility

HSM increasingly diverted from
hazardous waste management and
disposal to reclamation under the TBE

X

X

X

X

X

Scenario 5: Generator switches from off-site disposal to off-site recycling at a U.S. facility without a RCRA permit

Change from RCRA-permitted to
unpermitted management facilities

X

X

X

X

X

No explicit containment standards

X

X

X

X



No explicit standards for controlling air
emissions

X



X





HSM increasingly diverted from
hazardous waste management and
disposal to reclamation under the TBE

X

X

X

X



67

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Table 2.6. Potential Incremental Hazards under the DSW Final Rule: Intermediate and Reclamation Facilities

Regulatory Differences under
the DSW Final Rule a

Potential Incremental Hazards

Fire/
Explosion

Soil/Water
Contaminatio
n

Volatile Air
Emissions

Particulate

Wind
Dispersal

Abandoned
Materials

Scenario 6: Generator switches from off-site disposal to exporting for reclamation

HSM increasingly diverted from
hazardous waste management and
disposal to reclamation under the TBE

X

X

X

X



Scenario 7: Generator switches from off-site reclamation at a facility without a permit to another type of recycling under
DSW d

HSM increasingly diverted from
hazardous waste management and
disposal to reclamation under the TBE

X

X

X

X



Scenario 8: Generator switches from off-site reclamation a RCRA-permitted facility to another type of recycling under
DSW

Change from RCRA-permitted to
unpermitted management facilities

X

X

X

X

X

No explicit containment standards

X

X

X

X



No explicit standards for controlling air
emissions

X



X





HSM increasingly diverted from
hazardous waste management and
disposal to reclamation under the TBE

X

X

X

X



a These differences were identified by comparing the federal regulations applicable to storage facilities operating under the hazardous waste regulations and
intermediate/reclamation facilities operating under the DSW exclusions. See Section 2.3 of this report for additional information.
b This scenario includes generators that continue their current practices under the exclusions by either reclaiming onsite; shipping to a permitted, off-site
reclamation facility; or exporting the material for reclamation.

0 This scenario includes generators switching from off-site disposal to sending the material to either a same-company reclaimer or toll manufacturer under the
GCE.

d This scenario includes generators switching from off-site reclamation at a facility without a permit to another type of reclamation under the TBE, including
either off-site reclamation at a RCRA-permitted facility, off-site reclamation at a facility without a permit, or export of the material to a company in another
country.

68

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2.5.3 Potential Reductions and Transfers of Hazards by Facility Type and Scenario
Generators

Abandoned Materials (All Scenarios). The hazardous waste regulations and DSW exclusions
have comparable requirements for initial and biennial submittals in regard to frequency and types
of information submitted, such as quantities and types of HSMs. However, the biennial
reporting requirement in the hazardous waste regulations applies only to LQGs. The DSW
notification requirement applies to generators regardless of the amount of waste generated.

Under the DSW exclusions, EPA and state regulators will have a greater knowledge of the types
and quantities of HSMs being generated and managed by SQGs. They could use this
information when developing compliance activities, such as inspections and outreach, resulting
in better compliance and reduced risk of abandoned materials. In addition, a greater knowledge
of HSM types and quantities at these smaller sites will give regulators a better idea of how to
remove and cleanup HSMs in a protective manner if it were abandoned. The biennial
notification requirement, along with the requirement for sites to notify EPA if they cease to
operate under the exclusions, will give regulators an indication when these SQGs are closing or
have closed so that the regulators can take appropriate action at these sites at that time (e.g.,
compliance assistance) to ensure the HSM is not abandoned. The information submitted in
notifications also is publicly available. The general public can use this information to better
understand the generation and management of HSM in their communities.

Transporters

Reduction in Transportation Accidents, Pollution, Traffic, and Noise (Scenarios 1
through 8). Following are potential changes under the DSW exclusion that could result in a
reduced frequency of off-site shipments from generator sites and a decrease in transportation
hazards:

• Longer generator accumulation periods are allowed, reducing the number of shipments
made to reclaimers (Scenarios 1, 3, 4, 5, 6, 7, and 8). Under 40 CFR Part 262, LQGs and
SQGs are prohibited from accumulating hazardous waste onsite for more than 90 or
180/270 days (depending on type of activity involved), respectively, without a permit or
interim status. SQGs also must ensure that the quantity of hazardous waste accumulated
onsite does not exceed 6,000 kilograms. To avoid exceeding these accumulation limits,
generators may need to make numerous off-site shipments of hazardous waste during the
year (e.g., less than every 90 days for LQGs).

Generators operating under an exclusion of the DSW final rule are not subject to the
40 CFR Part 262 generator standards, including the accumulation volume or time limits,
for their HSMs managed under the DSW final rule. Rather, these generators would
manage their materials in accordance with the current DSW exclusions. In regard to on-
site accumulation, they must ensure that their HSMs are not "speculatively accumulated."
This means that a generator accumulating HSM must be able to show that, during a
calendar year, the amount of such material that is recycled or transferred to a different
site for recycling is at least 75% by weight or volume of the amount of the HSM present
at the beginning of the period.

-------
This speculative accumulation provision gives generators greater flexibility to determine
the appropriate timing of their off-site shipments. This could allow them to take
advantage of economies of scale in transporting their HSM. In general, unit
transportation costs decrease as the amount of material transported increases. Generators
that make fewer, larger shipments will pay less in transportation costs than those that
must rely on more, smaller shipments for the same amount of waste.

For example, a generator that had to make four small off-site shipments each year under
the 90-day accumulation time limit might be able to make one or two larger off-site
shipments each year under the DSW exclusion, provided the speculative accumulation
provision is satisfied.

Fewer shipments would result in a reduction in the total number of trucks on the road and
a decrease in the total number of miles traveled by trucks carrying the HSM. This would
cause a corresponding decrease in the incidence of transportation-related accidents, and
adjacent community exposures to air emissions from the waste on the roads, air emissions
from truck operation, and traffic.

These hazard reductions could occur, for example, when generators switch from off-site
reclamation under the hazardous waste regulations to off-site reclamation under the
current DSW exclusions. They also could occur when generators switch from off-site
treatment and disposal under the hazardous waste regulations to off-site reclamation
under the DSW final rule.

• Generators may switch to on-site reclamation, reducing or eliminating their off-site
shipments of HSM (Scenarios 2 and 8). Some generators might opt to switch from off-
site treatment, disposal, or reclamation under the hazardous waste regulations to on-site
reclamation under the DSW final rule. On-site reclamation could reduce the number of
off-site shipments each year. For example, the generator would not need to ship its
reclaimed materials offsite within the 90 days (for LQGs) or 180/270 days (for SQGs) as
required for hazardous waste. Rather, it could ship the HSM offsite less frequently. Less
frequent shipments could result in a corresponding decrease in the incidence of
transportation-related accidents, air emissions from the waste on the roads, air emissions
from truck operation, and traffic.

• Change in generator status results in fewer off-site shipments of all hazardous waste
produced by that facility (Scenarios 1 through 8). A generator that reclaims onsite or
offsite under the DSW final rule might change its hazardous waste generator status and
thereby make fewer off-site hazardous waste shipments each year. For example, a
generator that drops from being a LQG to a SQG would be able to ship its hazardous
wastes offsite under the 180/270-day accumulation time limit instead of every 90 days.
Fewer off-site shipments could result in the hazard reductions described above.

Intermediate and Reclamation Facilities

Releases from Reclamation (Scenario 7). The TBE requires facilities to obtain financial
assurance for closure and accidents. By obtaining financial assurance, a facility is demonstrating
that even if the facility declares bankruptcy, funds will be available to cleanup abandoned HSMs.
These requirements are more stringent than the hazardous waste regulations that apply to
reclaimers that do not store the hazardous waste pending reclamation; such reclaimers are not

-------
required to obtain financial assurance. The financial assurance requirements will decrease the
likelihood that the economic burden for the cleanup of abandoned materials will fall on the
public.

In addition, the TBE requires generators to make reasonable efforts to evaluate a reclamation
facility before shipping excluded material to it when the facility's management of the HSM
would not be addressed under a RCRA Part B permit or interim-status standard. The hazardous
waste regulations do not require such reasonable efforts. For example, the TBE requires
generators to determine that the facility has not been classified as a significant non-complier with
RCRA Subtitle C and that it has the equipment and trained personnel to safely recycle the HSM.
The generator must affirmatively answer these and other questions listed at 40 CFR
261.4(a)(24)(v)(B) for the facility. EPA expects these determinations by generators to motivate
reclaimers to improve their environmental performance (e.g., properly train their personnel) and
address outstanding violations and prevent future ones. These efforts also will help to ensure
that the HSMs are managed at facilities that are qualified to reclaim them safely. In this respect,
the TBE could reduce environmental hazards in comparison with the hazardous waste
regulations for reclamation facilities that are not subject to a RCRA permit. EPA recognizes that
not all generators will have the same ability to perform efforts audits, and the efficacy of these
efforts will depend on their ability. For example, small or independent generators may have
fewer financial resources or staff to use to conduct such audits, and may be more likely to miss
indications that reclaimers are not legitimately recycling HSM.

Abandoned Materials (Scenario 7). EPA believes that bankruptcies and other business failures
(intended or unintended) could be responsible for abandonment of HSM at a number of former
reclamation facilities. Abandoned materials at intermediate and reclamation sites under the
current DSW exclusions could increase due to reduced regulatory requirements under the DSW
exclusions. However, the TBE requires facilities to obtain financial assurance for closure and
accidents. The financial assurance demonstrates that even if a facility goes into bankruptcy,
funds will be available to cleanup abandoned materials, and the financial burden for cleanup will
not fall on the public. These requirements are more stringent than the hazardous waste
regulations that apply to reclaimers that do not store the hazardous waste pending reclamation;
such reclaimers are not required to obtain financial assurance.

2.5.4 Other Impacts

Environmental Hazards from Hazardous Waste Treatment and Disposal (Scenarios 2
through 6). The current DSW exclusions could make reclamation more appealing than
treatment and disposal for some generators. For example, the rule would lessen the barriers to
reclamation, such as regulatory burdens and manifesting/permitting costs, and thereby make
reclamation more cost-competitive. In addition, the rule lessens the stigma associated with
reclaiming "hazardous waste" because the material to be reclaimed is considered to be
"hazardous secondary material." As a result, HSMs might be diverted increasingly from
treatment and disposal to reclamation under the current DSW exclusions. This could shift
hazards associated with the management of HSM from some communities to others. For
example, a reduction of hazards in one community (e.g., HSM diverted away from a distant
incinerator) could translate to an increase in hazards in another community (e.g., HSM redirected
to a nearby reclaimer using distillation). Thus, diversion of HSMs from treatment and disposal
to reclamation may result in some environmental justice benefits.

-------
Greater reclamation could reduce the quantity of hazardous wastes sent to incineration, burning
for energy recovery, and landfilling. This could reduce the amount of emissions from
incinerators, boilers, and industrial furnaces, reducing emissions of hazardous air pollutants and
greenhouse gasses. It also could reduce the risk of contamination of groundwater and air
emissions from landfills. However, there could be some offsetting environmental impacts from
increased reclamation. For example, there could be air emissions and increased energy use from
such reclamation methods as solvents distillation.

Environmental Hazards from Mining Operations and Air Pollution from Energy Usage
(Scenarios 2 through 6). As indicated earlier, HSMs might be diverted increasingly from
treatment and disposal to reclamation under the current DSW exclusions. As the quantity of a
reclaimed material increases, the demand for the corresponding virgin material could decrease.
This, in turn, could result in a reduction in the exploration, development, extraction, refining, and
processing of the virgin material, which could help to preserve the natural environment and
generate less air, water, and soil pollution associated with extraction and processing activities.
For example, etchant suppliers could increasingly receive and recycle electroplating sludge from
printed circuit board manufacturers, lessening the demand for copper from mining and the
associated environmental footprint and effects of mining operations.

In addition, when increasing quantities of HSMs are reclaimed, less energy might be needed to
extract, transport, and process the raw materials. When energy demand decreases, fewer fossil
fuels are burned and less contaminants from energy generation and material transportation are
emitted into the atmosphere. For example, less energy is normally needed to re-melt metals for
recycling than to produce virgin metal from ore; hence, less greenhouse gases and other air
emissions could be generated from recycling than using raw materials to produce similar
products.

Finally, some manufacturing plants generate large quantities of waste while producing a "virgin"
product. These wastes must be managed in accordance with applicable solid and hazardous
waste regulations, which could involve incineration and landfilling. Greater reclamation could
reduce the demand for virgin products, and hence, lessen the generation of solid and hazardous
wastes from their manufacturing.

-------
Table 2.7. Potential Reduction in Hazards under the Current DSW Exclusions

Differences under
the DSW Final Rule a

Potentially Decreased Hazards

Transportation
Accidents,
Pollution,
Traffic, Noise

Releases from
Reclamation
(e.g., fires, soil
contamination)

Abandoned
Materials

Environmental
Hazards from
Treatment and
Disposal

Air Pollution
from Energy
Usage

Environmental
Hazards from
Mining
Operations

Scenario 1: Generator continues current reclamation practices b

Longer generator accumulation periods, fewer
off-site shipments of HSM

X











Change in generator status, fewer shipments of
hazardous waste

X











Biennial notifications from SQGs to EPA under
DSW exclusions





X







Scenario 2: Generator switches from off-site disposal to on-site reclamation

Change in generator status, fewer shipments of
hazardous waste

X











HSM increasingly diverted from treatment and
disposal to on-site reclamation under exclusion

X





X





Reduced mining and energy use because of
increased reclamation









X

X

Biennial notifications from SQGs to EPA under
DSW exclusions





X







Scenario 4: Generator switches from off-site disposal to off-site recycling at a RCRA-permit

ted facility

Longer generator accumulation periods, fewer
off-site shipments of HSM

X











Change in generator status, fewer shipments of
hazardous waste

X











73

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Table 2.7. Potential Reduction in Hazards under the Current DSW Exclusions

Differences under
the DSW Final Rule a

Potentially Decreased Hazards

Transportation
Accidents,
Pollution,
Traffic, Noise

Releases from
Reclamation
(e.g., fires, soil
contamination)

Abandoned
Materials

Environmental
Hazards from
Treatment and
Disposal

Air Pollution
from Energy
Usage

Environmental
Hazards from
Mining
Operations

Scenario 7: Generator switches from off-site reclamation at

a facility without a permit to another type of recycling under DSW d

Longer generator accumulation periods, fewer
off-site shipments of HSM

X











Change in generator status, fewer shipments of
hazardous waste

X











HSM increasingly diverted from unpermitted
reclamation under HWRs to reclamation under
the TBE, which may be more stringent



X

X







Biennial notifications from SQGs to EPA under
DSW exclusions





X







Scenario 8: Generator switches from off-site reclamation a RCRA-permitted facility to anot

ler type of recycling under DSW

Longer generator accumulation periods, fewer
off-site shipments of HSM

X











Change in generator status, fewer shipments of
hazardous waste

X











Biennial notifications from SQGs to EPA under
DSW exclusions





X







a These differences were identified by comparing the federal regulations and potential consequences under the hazardous waste regulations and the DSW exclusions.
b This scenario includes generators that continue their current practices under the exclusions by either reclaiming on-site; shipping to a permitted, off-site reclamation
facility; or exporting the material for reclamation.

0 This scenario includes generators switching from off-site disposal to sending the material to either a same-company reclaimer or toll manufacturer under the GCE.
d This scenario includes generators switching from off-site reclamation at a facility without a permit to another type of reclamation under the TBE, including either off-site
reclamation at a RCRA-permitted facility, off-site reclamation at a facility without a permit, or export of the material to a company in another country.

74

-------
Summary of Potential Impacts the Current DSW Exclusions

under Different Recyc

ing Scenarios

Hazardous Waste
Regulations



Current DSW Practices

Summary of Increases in
Risks

Summary of Reductions
in Risks/Other Benefits

Scenario 1: Generator continues current recycling practices

Generator recycles
material onsite under
hazardous waste
regulations

-

Generator recycles
material onsite under
generator-controlled
exclusion

Potential increased risk at
generator due to longer
accumulation times, greater
quantities, lack of explicit
preventative measures.
Potential increased risks
include fires/explosions,
environmental contamination
and human exposure, and
abandoned materials.

Potential reduced risk at
small generators of

abandoned materials due to
more frequent
reporting and increased
data on generator activities,
HSM quantities and types.

Potential reduced risk of
non-compliant behavior
at small generators and
permit-exempt recyclers

due to greater reporting and
self-disclosure.

Generator sends
material offsite for
recycling to RCRA-
permitted facility
under hazardous
waste regulations



Generator sends material
offsite for recycling at a
RCRA-permitted facility
under transfer-based
exclusion

Potential increased risk at
generator due to longer
accumulation times, greater
quantities, lack of explicit
preventative measures.
Potential increased risks
include fires/explosions,
environmental contamination
and human exposure, and
abandoned materials.

Potential reduced risk at
small generators of

abandoned materials due to
more frequent
reporting and increased
data on generator activities,
HSM quantities and types.

Potential reduced risk
during transportation due

to less frequent offsite

75

-------
Hazardous Waste
Regulations



Current DSW Practices

Summary of Increases in
Risks

Summary of Reductions
in Risks/Other Benefits







Potential increased risk
during transportation if

HSM no longer qualifies as
DOT hazardous material or
does not trigger RQ.
Potential increased risks
include environmental
contamination and potential
human exposure.

No change in risk at
recycling facility.

shipments of HSM.
Potential reduced risks
include fewer
transportation accidents,
and less pollution, traffic
and noise.

Potential reduced risk of
non-compliant behavior
at small generators due to

greater reporting and self-
disclosure

Generator exports
material under
hazardous waste
regulations for
recycling or
reclamation in
another country



Generator exports material
under the transfer-based
exclusion for recycling in
another country

Potential increased risk at
generator due to longer
accumulation times, greater
quantities, lack of explicit
preventative measures.
Potential increased risks
include fires/explosions,
environment contamination
and human exposure, and
abandoned materials.

Potential increased risk
during transportation if

HSM no longer qualifies as
DOT hazardous material or
does not trigger RQ.
Potential increased risks
include environmental

Potential reduced risk at
small generators of

abandoned materials due to
more frequent
reporting and increased
data on generator activities,
HSM quantities and types.

Potential reduced risk of
non-compliant behavior
at small generators due to

greater reporting and self-
disclosure

Potential reduced risk
during transportation due

to less frequent offsite
shipments of HSM.
Potential reduced risks

76

-------
Hazardous Waste
Regulations



Current DSW Practices

Summary of Increases in
Risks

Summary of Reductions
in Risks/Other Benefits







contamination and potential
human exposure.

No change in risk at
recycling facility.

include fewer
transportation accidents,
and less pollution, traffic
and noise.

Scenario 2: Generator switches from off-site disposal to on-site reclamation

Generator sends
material offsite to a
RCRA permitted
facility for treatment
followed by
landfilling under
hazardous waste
regulations



Generator recycles
material onsite under
generator-controlled
exclusion

Potential increased risk to
human health and the
environment at generator

due to longer accumulation
times, greater quantities, lack
of explicit preventative
measures. Potential increased
risks include fires/explosions,
environmental contamination
and human exposure, and
abandoned materials.

Potential reduced risk at
small generators of

abandoned materials due to
more frequent
reporting and increased
data on generator activities,
HSM quantities and types.

Potential reduced risk of
non-compliant behavior
at small generators due to

greater reporting and self-
disclosure

Potential reduced risk
during transportation due

to less frequent offsite
shipments of HSM.
Potential reduced risks
include fewer
transportation accidents,
and less pollution, traffic
and noise.

77

-------
Hazardous Waste
Regulations



Current DSW Practices

Summary of Increases in
Risks

Summary of Reductions
in Risks/Other Benefits









Potential reduced risk in

communities surrounding
existing off-site
treatment/disposal
facilities.

Potential increased
resource conservation
and environmental
benefits due to greater
quantities of HSM being
reclaimed and less
environmental damage
from mining and energy
consumption.

Scenario 3: Generator switches from off-site disposal to off-site recycling under the control of the generator

Generator sends
material offsite to a
RCRA permitted
facility for treatment
followed by
landfilling under
hazardous waste
regulations



Generator sends material
offsite for recycling at a
facility that it controls
under generator-controlled
exclusion

Potential increased risk at
generator due to longer
accumulation times, greater
quantities, lack of explicit
preventative measures.
Potential increased risks
include fires/explosions,
environmental contamination
and human exposure, and
abandoned materials.

Potential increased risk
during transportation if

Potential reduced risk at
small generators of

abandoned materials due to
more frequent
reporting and increased
data on generator activities,
HSM quantities and types.

Potential reduced risk of
non-compliant behavior
at small generators due to

greater reporting and self-
disclosure

78

-------
Hazardous Waste
Regulations



Current DSW Practices

Summary of Increases in
Risks

Summary of Reductions
in Risks/Other Benefits







HSM no longer qualifies as
DOT hazardous material,
does not trigger RQ, and/or is
not accompanied by a
tracking document. Potential
increased risks include
environmental contamination
and potential human
exposure, and abandoned
materials.

Potential increased risk in

communities surrounding
generator off-site recycling
facilities

Potential reduced risk
during transportation due

to less frequent offsite
shipments of HSM.
Potential reduced risks
include fewer
transportation accidents,
and less pollution, traffic
and noise.

Potential reduced risk in

communities surrounding
existing off-site
treatment/disposal
facilities.

Potential increased
resource conservation
and environmental
benefits due to greater
quantities of HSM being
reclaimed and less
environmental damage
from mining and energy
consumption

Scenario 4: Generator switches from off-site disposal to off-site recycling at RCRA-permitted facility

Generator sends
material offsite to a
RCRA permitted



Generator sends material
offsite for recycling at a
RCRA-permitted facility

Potential increased risk at
generator due to longer
accumulation times, greater

Potential reduced risk at
small generators of

79

-------
Hazardous Waste
Regulations



Current DSW Practices

Summary of Increases in
Risks

Summary of Reductions
in Risks/Other Benefits

facility for treatment
followed by
landfilling under
hazardous waste
regulations



under transfer-based
exclusion

quantities, lack of explicit
preventative measures.
Potential increased risks
included fires/explosions,
environmental contamination
and human exposure, and
abandoned materials.

Potential increased risk
during transportation if

HSM no longer qualifies as
DOT hazardous material or
does not trigger RQ.

Potential increased risks
include environmental
contamination and potential
human exposure.

abandoned materials due to
more frequent
reporting and increased
data on generator activities,
HSM quantities and types.

Potential reduced risk of
non-compliant behavior
at small generators due to

greater reporting and self-
disclosure

Potential reduced risk
during transportation due

to less frequent offsite
shipments of HSM.
Potential reduced risks
include fewer
transportation accidents,
and less pollution, traffic
and noise.

Potential reduced risk in

communities surrounding
existing off-site
treatment/disposal
facilities.

Potential increased
resource conservation

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Hazardous Waste
Regulations

Current DSW Practices

Summary of Increases in
Risks

Summary of Reductions
in Risks/Other Benefits

and environmental
benefits due to greater
quantities of HSM being
reclaimed and less
environmental damage
from mining and energy
consumption

Scenario 5: Generator switches from off-site disposal to off-site recycling at a U.S. facility without a RCRA permit

Generator sends
material offsite to a
RCRA permitted
facility for treatment
followed by
landfilling under
hazardous waste
regulations

Generator sends material
offsite for recycling at a
facility in the United States
without a RCRA permit
under transfer-based
exclusion

Potential increased risk at
generator due to longer
accumulation times, greater
quantities, lack of explicit
preventative measures.
Potential increased risks
include fires/explosions,
environmental contamination
and human exposure, and
abandoned materials.

Potential increased risk
during transportation if

HSM no longer qualifies as
DOT hazardous material or
does not trigger RQ.

Potential increased risks
include environmental
contamination and potential
human exposure.

Potential reduced risk at
small generators of

abandoned materials due to
more frequent
reporting and increased
data on generator activities,
HSM quantities and types.

Potential reduced risk
during transportation due

to less frequent offsite
shipments of HSM.
Potential reduced risks
include fewer
transportation accidents,
and less pollution, traffic
and noise.

Potential reduced risk at
recycler due to

requirements for financial

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Hazardous Waste
Regulations



Current DSW Practices

Summary of Increases in
Risks

Summary of Reductions
in Risks/Other Benefits







Potential increased risk at
recycler due to longer
accumulation times, greater
quantities, lack of explicit
preventative measures.
Potential increased risks
include fire/explosion,
environmental contamination,
and human exposure.

assurance and generator
audits of recyclers under
transfer-based exclusion.
Potential reduced risks
include fewer releases from
reclamation and reduced
frequency of

Potential reduced risk of
non-compliant behavior
at small generators and
permit-exempt recyclers

due to greater reporting and
self-disclosure

Potential reduced risk in

communities surrounding
existing off-site
treatment/disposal
facilities.

Potential increased
resource conservation
and environmental
benefits due to greater
quantities of HSM being
reclaimed and less
environmental damage
from mining and energy
consumption

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Hazardous Waste
Regulations



Current DSW Practices

Summary of Increases in
Risks

Summary of Reductions
in Risks/Other Benefits

Scenario 6: Generator switches from off-site disposal to exporting for recycling

Generator sends
material offsite to a
RCRA permitted
facility for treatment
followed by
landfilling under
hazardous waste
regulations



Generator exports material
under the transfer-based
exclusion for recycling in
another country

Potential increased risk at
generator due to longer
accumulation times, greater
quantities, lack of explicit
preventative measures.
Potential increased risks
include fires/explosions,
environmental continuation
and human exposure, and
abandoned materials.

Potential increased risk
during transportation if

HSM no longer qualifies as
DOT hazardous material or
does not trigger RQ.

Potential increased risks
include environmental
contamination and potential
human exposure.

Potential increased risk at
recycler due to greater
quantities of HSM being
received. Potential increased
risks include fires/explosions,
environmental contamination
and human exposure.

Potential reduced risk at
small generators of

abandoned materials due to
more frequent
reporting and increased
data on generator activities,
HSM quantities and types.

Potential reduced risk of
non-compliant behavior
at small generators due to

greater reporting and self-
disclosure

Potential reduced risk
during transportation due

to less frequent offsite
shipments of HSM.
Potential reduced risks
include fewer
transportation accidents,
and less pollution, traffic
and noise.

Potential reduced risk in

communities surrounding
existing off-site
treatment/disposal
facilities.

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Hazardous Waste
Regulations



Current DSW Practices

Summary of Increases in
Risks

Summary of Reductions
in Risks/Other Benefits









Potential increased
resource conservation
and environmental
benefits due to greater
quantities of HSM being
reclaimed and less
environmental damage
from mining and energy
consumption

Scenario 7: Generator switches from off-site recycling at a facility without a permit to another type of recycling under the

2008 DSW final rule

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Hazardous Waste
Regulations



Current DSW Practices

Summary of Increases in
Risks

Summary of Reductions
in Risks/Other Benefits

Generator sends
material offsite for
recycling at a facility
in the United States
that recycles without
a RCRA permit under
hazardous waste
regulations







Generator sends material
offsite for reclamation at a
facility under generator-
controlled exclusion, or

Generator exports material
under the transfer-based
exclusion for reclamation
in another country, or

Generator sends material
offsite for reclamation at a
RCRA permitted facility
under transfer-based
exclusion, or

Generator sends material
offsite for reclamation at a
facility in the United States
without a RCRA permit
under transfer-based
exclusion.

Potential increased risk at
generator due to longer
accumulation times, greater
quantities, lack of explicit
preventative measures.
Potential increased risks
include fires/explosions,
environmental contamination
and human exposure, and
abandoned materials.

Potential increased risk
during transportation if

HSM no longer qualifies as
DOT hazardous material or
does not trigger RQ.

Potential increased risks
included environmental
contamination and potential
human exposure.

Potential increased risk at
new recycler due to longer
accumulation times, and
greater quantities
accumulated. Potential
increased risks include
fires/explosions,
environmental contamination
and human exposure under
GCE.

Potential reduced risk at
small generators of

abandoned materials due to
more frequent
reporting and increased
data on generator activities,
HSM quantities and types.

Potential reduced risk of
non-compliant behavior
at small generators due to

greater reporting and self-
disclosure

Potential reduced risk
during transportation due

to less frequent offsite
shipments of HSM.
Potential reduced risks
include fewer
transportation accidents,
and less pollution, traffic
and noise.

Potential reduced risk at
recycler due to

requirements for financial
assurance and generator
audits of recyclers under
transfer-based exclusion.
Potential reduced risks

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Hazardous Waste
Regulations



Current DSW Practices

Summary of Increases in
Risks

Summary of Reductions
in Risks/Other Benefits







Potential reduced risk at
new recycler due to

"contained" standard,
legitimacy condition and (for
the transfer-based exclusions)
reasonable efforts audit and
financial assurance
conditions.

include fewer releases from
reclamation and reduced
frequency of abandoned
materials.

Potential reduced risk in

communities surrounding
previously used off-site
recycling facility.

Potential increased
resource conservation
and environmental
benefits due to greater
quantities of HSM being
reclaimed and less
environmental damage
from mining and energy
consumption

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Hazardous Waste
Regulations



Current DSW Practices

Summary of Increases in
Risks

Summary of Reductions
in Risks/Other Benefits

Scenario 8: Generator switches from off-site recycling at a RCRA-permitted facility or exporting waste for recycling to

another type of recycling under the 2008 DSW final rule

Generator sends
material offsite for
reclamation to
RCRA-permitted
facility under
hazardous waste
regulations or exports
waste for reclamation
in another country

1

1



Generator reclaims
material onsite under
generator-controlled
exclusion, or

Generator sends material
offsite for reclamation at a
facility that it controls
under generator-controlled
exclusion, or

Generator sends material
offsite for reclamation at a
facility in the United States
without a RCRA permit
under transfer-based
exclusion, or

Generator exports material
under the transfer-based
exclusion for reclamation
in another country

Same as corresponding
scenarios 2-6

Same as corresponding
scenarios 2-6, but with
no resource conservation
benefits.

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2.5.5	Trade-Offs Between Increased and Decreased Hazards

EPA finds that, overall, the potential for an increase in hazards under the 2008 DSW rule
resulting in adverse impacts to adjacent communities outweighs the potential decrease in
hazards. Increased hazards include events that can directly impact risk to human health and the
environment from hazardous secondary materials, including fires, explosions, soil and
groundwater contamination, volatile air emissions, and particulate wind dispersal. In contrast
most of the decreased hazards are indirect, either in their potential risks or their impacts to public
health, or both, and are of a lower magnitude (for example, reduction in transportation accidents,
pollution, traffic, and noise).

The decreased hazard associated with the 2008 DSW rule most directly associated with the
hazards posed by the hazardous secondary material itself is increased hazardous waste treatment
and disposal. However, the hazards posed by additional shipments to these already-established
facilities are not comparable to the potential risks from the establishment of new recycling
facilities without the Subtitle C controls under the 2008 DSW rule. The RCRA Subtitle C
facilities are already integrated into the community, and have gone through the appropriate
RCRA permitting process, including public participation, and are subject to requirements
necessary to ensure protection of human health and the environment. In contrast, the potential
for recycling facilities without RCRA permits to be established without prior regulatory
oversight or community involvement carry a high risk of over-accumulation and abandonment of
hazardous secondary materials, due to the economic incentives of commercial recycling and lack
of restrictions on these materials that a permit would provide.

2.5.6	Regulatory Changes In The 2014 DSW Final Rule That Address The Potential
Adverse Impacts To Human Health And The Environment From The Current
DSW Exclusions

The 2014 DSW final rule includes regulatory changes to the 2008 DSW final rule that address
the potential adverse impacts from the current DSW exclusions, including potential adverse
impacts to minority and low-income communities. As discussed in further detail in the
preamble to the 2014 DSW final rule, these changes were made according to EPA's authority
under RCRA to regulate discarded material. Because of these changes, the 2014 DSW final rule
is expected to increase the level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or environmental effects on any
population, including any minority or low-income population.

Below is a summary of the major changes to the current DSW exclusions promulgated in the
2014 DSW final rule, and how they address the potential adverse impacts to human health and
the environment (including impacts to minority and low-income populations).

Replacement of the Transfer-Based Exclusion with Verified Recvcler Exclusion

The withdrawal of the transfer-based exclusion and its replacement with the verified recycler
exclusion addresses the concerns regarding third-party recyclers. Under the new exclusion,
generators must send their hazardous secondary materials to a RCRA-permitted reclaimer or to a

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verified hazardous secondary materials reclaimer who has obtained a solid waste variance from
EPA or the authorized state.

For reclaimers without a RCRA permit, in order to obtain a variance and become verified, the
third-party reclaimer must address criteria that essentially mirrors the criteria under the
reasonable efforts condition in the transfer-based exclusion. This includes: (1) demonstrate their
recycling is legitimate, (2) must have financial assurance in place to properly manage the
hazardous secondary material, (3) must not have had any formal enforcement actions for RCRA
violations in the previous three years and is not classified as a significant non-complier with
RCRA Subtitle C, or must provide credible evidence that the facility will manage the hazardous
secondary materials properly, (4) must have the proper equipment, trained personnel, and meet
emergency preparedness and response requirements to safely reclaim the material, (5) must
manage the residuals from reclamation properly, and (6) must address risk to nearby
communities from potential releases of the hazardous secondary material and in consideration of
existing environmental stressors.

Before a variance can be granted, it will also go through a public notice and comment process,
allowing communities the opportunity to have a voice in the environmental decisions that may
affect them.

Because of the additional oversight, public participation and controls under the verified recycler
exclusion, the potential for increased adverse impact under Scenarios 4, 5, and 6 and the off-site
options under Scenarios 1, 7, and 8 is minimized.

Codified "Contained" Standard

In addition, the codification of the "contained" standard addresses the lack of preventative
measures and the lack of RCRA air standards under the generator-controlled exclusions. Under
the 2014 DSW final rule, the HSM must be contained in a unit (including a land-based unit) that
meets the following criteria:

(1)	The unit is in good condition, with no leaks or other continuing or intermittent unpermitted
releases of the hazardous secondary materials to the environment, and is designed, as appropriate
for the hazardous secondary material, to prevent releases of the hazardous secondary materials to
the environment. Unpermitted releases are releases that are not covered by a permit (such as a
permit to discharge to water or air) and may include, but are not limited to, releases through
surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust,
fugitive air emissions, and catastrophic unit failures;

(2)	The unit is properly labeled or otherwise has a system (such as a log) to immediately identify
the hazardous secondary materials in the unit; and

(3)	The unit holds hazardous secondary materials that are compatible with other hazardous
secondary materials placed in the unit and is compatible with the materials used to construct the
unit and addresses any potential risks of fires or explosions. Hazardous secondary materials in
units that meet the applicable requirements of 40 CFR parts 264 or 265 are presumptively
contained.

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This contained definition provided both the regulated community and the implementing agencies
with an approach that helps address the potential for fires/explosions, environmental
contamination and human exposure under the generator-controlled exclusions in Scenarios 1, 2,
3, 7 and 8.

Emergency Preparedness

New emergency preparedness and response requirements under the generator-controlled
exclusion and the verified recycler exclusion address the risk of fires, explosions and other
accidents. Specifically, EPA is requiring that generators that accumulate less than or equal to
6,000 kg of hazardous secondary material on site comply with the emergency preparedness and
response requirements equivalent to those in part 265 subpart C, which discuss maintaining
appropriate emergency equipment on site, having access to alarm systems, maintaining needed
aisle space, and making arrangements with local emergency authorities. A generator must also
have a designated emergency coordinator who must respond to emergencies and must post
certain information next to the telephone in the event of an emergency. For generators that
accumulate more than 6,000 kg of hazardous secondary material on site, EPA is requiring that
generators comply with requirements equivalent to those in part 265 subparts C and D, which
includes all the requirements already discussed above for those accumulating less than or equal
to 6,000 kg, as well as requiring a contingency plan and sharing the plan with local emergency
responders.

These new requirements help address the potential for fires/explosions, environmental
contamination and human exposure under in Scenarios 1, 2, 3, 4, 6, 7 and 8.

Additional Recordkeeping Requirements For Speculative Accumulation and for Transfers
Under the Tolling and Same-Company Provisions Under the Generator-Controlled
Exclusion

Under the 2014 DSW final rule, all persons subject to the speculative accumulation requirements
of 40 CFR § 261.1(c)(8) (including, but not limited to, persons operating under the generator-
controlled exclusion)) must place materials subject to those requirements in a storage unit with a
label indicating the first date that the material began to be accumulated. If placing a label on the
storage unit is not practicable, the accumulation period must be documented through an
inventory log or other appropriate method. This provision will allow inspectors and other
regulatory authorities to quickly ascertain how long a facility has been storing an excluded
hazardous secondary material, and, therefore, whether that facility is in compliance with the
accumulation time limits..

In addition, the 2014 DSW final rule includes revisions to the generator-controlled exclusion for
tolling and "same-company" recycling that require recordkeeping for shipments sent and
received under the exclusion. The records must contain the name of the transporter, the date of
the shipment, and the type and quantity of hazardous secondary material shipped or received.
These records may consist of normal business records. Such recordkeeping will facilitate
enforcement of the exclusion and will allow tracking of hazardous secondary materials to ensure
that these materials remain within the control of the generator and are not discarded.

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Together, these provisions help address the concern that the HSM could become abandoned
under the generator-controlled exclusions in Scenarios 1, 2, 3, 7 and 8.

2.5.7 Implementation Measures That Address The Potential Adverse Impacts To
Human Health And The Environment from Hazardous Secondary Material
Recycling

In addition to the regulatory changes to address potential adverse impacts of hazardous
secondary materials recycling, EPA can take non-regulatory steps to help mitigate the potential
adverse impacts. These steps include closely monitoring the facilities notifying under the 2014
DSW final rule, making information about the DSW facilities available to the public, and
working with states and EPA Regions to ensure they have the information they need to ensure
compliance with the provisions of the rule, and making available to the public information about
the facilities that have notified. EPA has begun this process for the states and territories
currently operating under the 2008 DSW final rule, and plans to continue these efforts in order to
help prevent potential adverse impacts under the 2014 DSW final rule.

In particular, the notification condition will allow EPA (and the public) to know exactly who is
operating under the DSW exclusions. EPA has the authority to inspect these facilities and
enforce Subtitle C regulations if the facilities are not meeting the conditions of the exclusions.
This enforcement authority, coupled with the new condition that EPA is imposing requiring
third-party recyclers be verified prior to operating under the exclusion, will help ensure that
recyclers operating the DSW exclusions are capable of safely and legitimately recycling
hazardous secondary materials prior to beginning operations, and that they continue to do so as
long as they operate under the exclusions.

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Appendix A: Comparison of Regulatory Requirements
under 2008 DSW Final Rule to RCRA and Other Federal

Regulations

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1.	Introduction

This Appendix presents a comparison of the federal regulations applicable to: (1) generators and
permitted storage facilities operating under the federal hazardous waste regulations and
(2) generators, intermediate facilities, and reclamation facilities operating under the current
Definition of Solid Waste (DSW) exclusions. The purpose of the comparison is to determine if
the federal regulations applicable to generators and facilities operating under the current DSW
exclusions are "comparable" to the federal regulations applicable to hazardous waste generators
and permitted storage facilities operating under the federal hazardous waste regulations. For
purposes of this analysis, a regulation is "comparable" to another regulation if they both have the
same general objectives and apply to the same types of facilities.

Section 2 of this Appendix describes the methodology used to develop the comparison, Section 3
summarizes the key findings of the comparison, Section 4 presents the tables used to compare
the regulations, and Section 5 presents a summary of the federal regulations included in the
comparison.

2.	Methodology

EPA developed three tables for purposes of comparing the federal regulations:

•	Table 1 compares the federal regulations applicable to generators of hazardous waste and
generators of hazardous secondary material (HSM) under the generator-controlled
exclusion (GCE).

•	Table 2 compares the federal regulations applicable to generators of hazardous waste and
generators of HSM under the transfer-based exclusion (TBE).

•	Table 3 compares the federal regulations applicable to hazardous waste storage facilities
and HSM intermediate and reclamation facilities under the TBE.46

Each table includes three columns. Column 1 of the tables presents the hazardous waste
regulations and other federal regulations applicable to hazardous waste generators or storage
facilities. Column 2 presents the conditions and requirements of the current DSW exclusions
and other federal regulations applicable to HSM generators and facilities operating under the
exclusions. Column 3 briefly compares these regulations to determine if the federal regulations
applicable to generators and facilities operating under the current DSW exclusions (Column 2)
are comparable to the federal regulations applicable to hazardous waste generators and permitted
storage facilities operating under the federal hazardous waste regulations (Column 1).

To prepare the tables, EPA first reviewed the federal hazardous waste regulations and identified
those requirements most relevant to the generation, storage, and reclamation of HSM (e.g.,
storage time limits for generators). EPA then summarized these requirements in Column 1 of the

46 EPA compares hazardous waste storage facilities to HSM facilities because hazardous waste storage facilities are
the most analogous type of facility under the hazardous waste regulations. Specifically, if an intermediate facility
operated under the hazardous waste regulations (i.e., by storing hazardous waste), it would be subject to the
hazardous waste storage requirements, including a storage permit. If a reclamation facility stored hazardous waste
pending reclamation, it would be subject to the hazardous waste storage requirements, including a storage permit.

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tables and included a heading above each requirement (or group of requirements) to briefly
describe it (e.g., "storage time limit," "personnel training").

EPA then reviewed the current DSW exclusions to see if they contain any conditions or
requirements that generally correspond to the hazardous waste requirements in the table. EPA
summarized the exclusions' requirements and conditions in Column 2 of the table where
relevant, to present a side-by-side comparison of the hazardous waste requirements and
corresponding DSW conditions and requirements. In Column 3 of the table, EPA briefly
examines the hazardous waste requirements and the DSW conditions and requirements to clarify
the extent to which they are comparable.

In addition, EPA reviewed other federal regulations to determine if they contain requirements
that have a similar objective as these hazardous waste and the current DSW exclusions
requirements (e.g., federal regulations that require personnel training and/or emergency response
similar to the hazardous waste regulations). EPA summarized these federal requirements in the
tables where appropriate. Specifically, if a federal requirement applies to generators and/or
storage facilities operating under the hazardous waste regulations, it is summarized in Column 1
of the tables, where relevant. If it applies to generators and/or facilities operating under the
current DSW exclusions, it is summarized in Column 2 of the tables, where relevant. In Column
3 of the tables, EPA briefly discusses the extent to which these federal requirements are
comparable to the relevant hazardous waste requirements.

3. Summary of Key Findings

Following is a summary of the findings of the comparative analysis presented in the tables of
Section 4 of this Appendix. The findings are summarized under the headings used in the
comparative tables.

3.1 Legitimate Recycling

EPA has set forth criteria for determining legitimate recycling under the hazardous waste
regulations and the current DSW exclusions. Refer to Section 5.1 of this Appendix for a
summary of the legitimacy requirements and policies under the hazardous waste regulations and
Section 5.2 for the legitimacy requirements and conditions under the current DSW exclusions.

3.2 Storage Time Limit

The hazardous waste regulations and the current DSW exclusions set forth time limits for
generators to accumulate hazardous secondary material onsite. However, the current DSW
exclusions allows generators to accumulate HSM onsite for longer periods of time. In addition,
the current DSW exclusions does not include a quantity limit for on-site accumulation, as do the
hazardous waste regulations for small quantity generators (SQGs).

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3.3 Containment

The hazardous waste regulations and the current DSW exclusions require containment of HSM
in the unit. The hazardous waste regulations prescribe design, operating, and other standards for
containment (e.g., standards for container integrity, periodic inspections). Prescriptive
requirements could facilitate inspection and enforcement, which could help to prevent releases.
On the other hand, the current DSW exclusions does not include prescriptive requirements—
rather, it provides a general performance standard. As such, the current DSW exclusions allow
more flexibility in how HSMs can be contained. This could result in less protective containment
than the hazardous waste regulations. However, some generators and facilities under the
exclusions may choose to follow the hazardous waste regulations for their units anyways,
particularly those that are otherwise subject to the hazardous waste regulations.

In addition, the GCE allows generators to manage their HSM in land-based units (e.g., surface
impoundments, waste piles) but the exclusion does not prescribe containment standards. The
hazardous waste regulations do not allow generators to manage hazardous waste in land-based
units, unless they have a permit or interim status, under which they must comply with
prescriptive design, operating, and other unit-specific standards.

3.4 Air Emissions

Some generators and facilities under the hazardous waste regulations and the current DSW
exclusions may be subject to the federal Clean Air Act (CAA) regulatory program for air
emissions from stationary sources. Under the CAA program, the states and EPA issue operating
permits to certain "major" stationary sources of hazardous air pollutants (HAPs) under 40 CFR
Parts 70 and 71. A major source is a source that emits more than 10 tons per year (TPY) of any
single HAP or more than 25 TPY of HAPs in total. A number of smaller sources (e.g., "area"
sources) also may be required to obtain a permit under the federal program. In addition, area
sources not subject to a Title V permit may still be subject to CAA regulation, depending on the
applicability provisions of the particular rule. The area source would be required to notify EPA
(or the delegated state agency) whether it is subject to the regulation, typically 120 days
following promulgation of a CAA rule applicable to that source,

Some generators and facilities under the current DSW exclusions may be subject to CAA
requirements that control air emissions from process vents, equipment leaks, or storage units in a
manner that is comparable to the hazardous waste regulations. For example, 40 CFR Part 63,
Subparts OO, PP, and QQ require air emission controls for tanks, containers, and surface
impoundments, respectively, at facilities subject to a CAA permit, as specified. These subparts
impose the same types of requirements as the hazardous waste regulations for process vents,
equipment leaks, and storage units (e.g., design, operating, monitoring standards).

However, there are two important differences between the CAA regulations and hazardous waste
regulations. First, their applicability to the regulated universe differs in some respects. For
example, many of the CAA regulations apply to specified industries. EPA has issued rules
covering over 80 categories of major industrial sources, such as chemical plants, oil refineries,
aerospace manufacturers, and steel mills, as well as categories of smaller sources, such as dry
cleaners, commercial sterilizers, secondary lead smelters, and chromium electroplating facilities.
The hazardous waste regulations apply to all facilities regardless of industry. Therefore, some
generators and facilities under the current DSW exclusions may not be subject to the CAA
regulations. Second, some CAA regulations apply to the overall emissions for an entire facility,

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but not necessarily to its individual process vents, leaks, and storage units. This will depend on
the particular CAA regulation in question. For example, at a facility that is considered a "major"
source under CAA and also conducts reclamation of solvent under the DSW final rule, their
CAA permit may apply limits to the overall site emissions, and not to the specific solvent
recovery unit. By contrast, the hazardous waste regulations include requirements that apply
specifically to process vents, equipment leaks, and storage units, as specified. Because of these
differences, it is likely that a number of generators and facilities under the current DSW
exclusions will not be subject to air emission controls comparable to the hazardous waste
regulations for process vents, equipment leaks, or storage units.

3.5 Emergency Preparedness and Response

The hazardous waste regulations require generators and storage facilities to prepare for and
respond to emergencies. The current DSW exclusions, on the other hand, does not require
emergency preparedness and response. However, materials managed under the current DSW
exclusions that are no longer contained in a unit (i.e., released) and not immediately recovered
would no longer be excluded. They would need to be cleaned up and be subject to full RCRA
Subtitle C regulation if hazardous, including the preparedness and response requirements of the
hazardous waste regulations, as applicable.

In addition, other federal regulations may require emergency preparedness and response at
generators and facilities operating under the hazardous waste regulations and the current DSW
exclusions:

• CAA Chemical Accident Prevention Provisions. 40 CFR Part 68 requires a stationary
source (e.g., a building, plant) that meets applicable criteria to develop and implement a
risk management program. As part of the program, the stationary source must either
develop an emergency response program (i.e., for facility personnel to respond) or make
arrangements with off-site response organizations.

• Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA)/Emergency Planning and Community Right-to-Know Act (EPCRA)
Notification. 40 CFR Parts 302 and 355 require facilities to immediately notify the
National Response Center and local/state officials (if applicable) of a release of a
hazardous substance or extremely hazardous substance equal to or exceeding its
reportable quantity (RQ).

• Clean Water Act (CWA) Oil Pollution Prevention. 40 CFR Part 112 requires a non-
transportation-related facility that meets specified criteria to perform emergency planning
and response for oil discharges, including development of a Spill Prevention, Control,
and Countermeasure (SPCC) Plan. The SPCC Plan must address such elements as
discharge prevention measures; countermeasures for discharge discovery, response, and
cleanup; and personnel responsibilities (e.g., for addressing discharges).

• Occupational Safety and Health Act (OSH Act). The Process Safety Management (PSM)
Standards (29 CFR 1910.119) and Hazardous Waste Operations and Emergency
Response (HAZWOPER) Standards (29 CFR 1910.120(p)(8) and (q)) require facilities
meeting specified criteria either to develop and follow an emergency response program
(i.e., for facility personnel to respond) or to prepare an evacuation plan for the entire plant
(i.e., for off-site personnel to respond). In addition, the Hazard Communication Standard

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(HazCom) (29 CFR 1910.1200) requires a facility to provide information to its
employees about any chemical (except hazardous waste) which is a physical or health
hazard to which they are exposed, by means of a hazard communication program, labels,
and other forms of warning, material safety data sheets, and information and training
(e.g., hazards detection, emergency procedures).

Each of the above regulations requires a level of emergency preparedness and/or response that is
at least partially comparable to the hazardous waste regulations. However, it is likely that these
regulations will not provide a level of emergency preparedness and protection that is comparable
to the hazardous waste regulations for all generators and facilities under the current DSW
exclusions. This is explained further below:

•	The Chemical Accident Prevention Provisions and Oil Pollution Prevention regulations
(i.e., SPCC Plan requirements) apply to a targeted universe of facilities; therefore, a
number of generators and facilities under the current DSW exclusions may not be subject
to them. The Chemical Accident Prevention Provisions apply to facilities that that have
more than a threshold quantity of a "regulated substance." The provisions list 140 toxic
and flammable substances subject to regulation. Generators and facilities that do not
have any of these 140 chemicals above the quantity thresholds would not be subject to
these provisions.

The requirement for an SPCC Plan under the Oil Pollution Prevention regulations
generally applies to non-transportation-related facilities with aboveground oil storage
capacity of more than 1,320 gallons that could reasonably be expected to discharge oil to
navigable waters or adjoining shorelines. Hence, these criteria would not apply to
generators and facilities that are not expected to discharge oil to navigable waters or
adjoining shorelines, do not generate or store oil-related substances, or meet minimum
storage capacity thresholds.

•	The Chemical Accident Prevention Provisions, PSM Standard, and HAZWOPER
Standard give facilities the option of either developing an emergency response program
or making alternative arrangements (e.g., evacuation plans, arrangements with off-site
authorities). Facilities that opt to make alternative arrangements are not required to
address a number of the elements required by the hazardous waste regulations
particularly for large quantity generators (LQGs) and storage facilities (e.g., procedures
and equipment for containing and cleaning up a release).

•	The definition of "emergency response" under the Chemical Accident Prevention
Provisions, PSM Standard, and HAZWOPER Standard applies to releases that threaten
safety or health (i.e., fire, explosion, or chemical exposure). This definition does not
necessarily encompass environmental contamination to the same extent as the hazardous
waste regulations. As such, generators and facilities subject to these regulations may not
be prepared for, or respond to, a release of a hazardous substance that contaminates the
environment, but does not threaten human health (e.g., spills or leaks surface water or to
the ground that may also contaminate groundwater, that are not in the vicinity of
employees at the facility). On the other hand, the hazardous waste regulations require
emergency preparedness and response for any emergencies affecting human health or the
environment.

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• The HAZWOPER Standard for emergency response programs at 29 CFR 1910.120(p)(8)
applies only to generators of hazardous waste and permitted or interim-status hazardous
waste facilities. Hazardous waste generators and facilities are required to have an
emergency response program or evacuation plan to address emergencies in the area
where hazardous waste is stored or disposed of. As such, generators and facilities under
the current DSW exclusions would not necessarily be subject to this standard (i.e., unless
they otherwise qualify as a hazardous waste generator or facility). Note, however, that
generators and facilities under the current DSW exclusions would be subject to the
HAZWOPER Standard at 29 CFR 1910.120(q). This standard requires an emergency
response program or evacuation plan if the facility requires an emergency response for a
release of a hazardous substance from personnel outside of the immediate area of the
release (e.g., designated on-site personnel or off-site response agencies).

3.6 Personnel Training

The hazardous waste regulations require LQGs and storage facilities to provide recurrent training
on emergencies, at a minimum. SQGs must provide employee familiarization. The current
DSW exclusions does not require personnel training or familiarization. However, some
generators and facilities under the current DSW exclusions may nonetheless qualify as a
hazardous waste generator or storage facility and therefore be subject to the hazardous waste
regulations' training requirements. Portions of the hazardous waste regulations' personnel
training may be relevant to handling the excluded materials (e.g., familiarization on chemical
hazards, emergency response).

In addition, other federal regulations require personnel training at generators and facilities under
the hazardous waste regulations and the current DSW exclusions:

• CAA Chemical Accident Prevention Provisions. 40 CFR Part 68 sets forth training
requirements for stationary sources (e.g., buildings, plants) that meet applicable criteria.
Facilities with a process eligible for Program 1 (e.g., has not had accidental release of a
regulated substance within the past five years with off-site consequences as specified)
need not provide training. Facilities with a process subject to Program 2 or 3 (e.g., has
had accidental release of a regulated substance from a process within the past five years
with off-site consequences as specified) must provide recurring personnel training on
operations and emergency procedures.

• CWA Oil Pollution Prevention. 40 CFR Part 112 requires a non-transportation-related
facility that meets specified criteria to provide personnel training on topics, such as
operation and maintenance of facility and equipment to prevent discharges, discharge
procedure protocols, and elements of the SPCC Plan.

• Hazardous Materials Transportation Act (HMTA) Hazardous Materials Regulations
(HMR). 49 CFR Part 172, Subpart H requires a facility that employs "hazmat
employees" to provide initial and recurrent training. The training must cover general
awareness/familiarization, function-specific training, safety, security awareness, and in-
depth security. A hazmat employee is a person who is involved in the transportation of
U.S. Department of Transportation (DOT) hazardous materials as specified (e.g., loading,
preparation for transportation, operation of a transportation vehicle).

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• OSH Act. The PSM Standard (29 CFR 1910.119) and the HAZWOPER Standard (29
CFR 1910.120(p) and (q)) require facilities either to train their employees on their
emergency response program or, if they have opted to develop an evacuation plan instead
of an emergency response program, they must train their employees on evacuations. In
addition, HazCom (29 CFR 1910.1200) requires familiarization and training on
emergency recognition, hazards, and protective measures.

Each of the above regulations requires personnel training that is at least partially comparable to
the hazardous waste regulations. However, it is likely that a number of generators and facilities
under the current DSW exclusions will not be subject to personnel training requirements that are
fully comparable to the hazardous waste training requirements, as explained below:

• The Chemical Accident Prevention Provisions and Oil Pollution Prevention regulations
apply to a targeted universe of facilities or activities, and hence, a number of generators
and facilities under the current DSW exclusions may not be subject to them. The
Chemical Accident Prevention Provisions apply to facilities that that have more than a
threshold quantity of a "regulated substance." The provisions list 140 toxic and
flammable substances subject to regulation. Generators and facilities that do not have
any of these 140 chemicals above the quantity thresholds would not be subject to these
provisions. The HMR require training of "hazmat employees" (i.e., a person who is
involved in the transportation of DOT hazardous materials as specified). In a number of
cases, HMR training may be at least partially comparable to training under the hazardous
waste regulations, particularly for SQGs. However, the HMR training requirements are
not as prescriptive as the hazardous waste regulations for LQGs and storage facilities;
therefore, it is uncertain that HMR training would address comparable topics as the
hazardous waste regulations for LQGs and storage facilities. In addition, it is important
to note that, if a facility employs personnel that are not "hazmat" employees, such
employees would not be required to receive HMR training. For example, some facilities
use outside contractors to prepare and ship their HSM offsite.

• The PSM and HAZWOPER Standards require facilities to train their employees on
emergencies. Facilities that have prepared an emergency response program must train
employees on how to implement it. This would generally be comparable to the
hazardous waste training required of generators and storage facilities under the hazardous
waste regulations. However, facilities that have opted to develop an evacuation plan
instead of an emergency response program are required to train employees on
evacuations only. Such training would not cover a number of elements required by the
hazardous waste regulations particularly for LQGs and storage facilities (e.g., use of
emergency equipment, how to respond to fires and groundwater contamination).

• HazCom requires facilities to familiarize and train their employees on emergency
recognition, hazards, and protective measures. However, HazCom has limited training
requirements with regard to emergency procedures. The employer must provide
employees with training on recognizing hazardous incidents and how to evacuate during
an emergency.47 In this regard, HazCom training may be comparable to training under
the hazardous waste regulations particularly for SQGs. However, the hazardous waste

47 This is OSHA's interpretation of the HazCom regulations dated June 6, 1991.

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regulations require LQGs and storage facilities to provide more extensive training on
emergencies (e.g., use of emergency equipment, how to respond to fires and groundwater
contamination). These topics may be outside the scope of a facility's HazCom training.

3.7 Reporting and Recordkeeping

The hazardous waste regulations require generators and storage facilities to notify EPA to
receive an EPA identification number. In addition, LQGs and storage facilities must submit a
Biennial Report describing their hazardous wastes and activities. The current DSW exclusions
require each generator and facility to submit an initial and biennial notification describing its
HSMs and activities under the exclusion. Therefore, the hazardous waste regulations and the
current DSW exclusions include comparable initial and biennial notification requirements.

In addition, the hazardous waste regulations and DSW TBE require generators and facilities to
maintain specified information as necessary to demonstrate compliance.

3.8 Off-Site Transportation

The hazardous waste regulations require the manifesting of all off-site shipments (i.e., chain-of-
custody tracking of shipments) and compliance with applicable DOT regulations for packing,
labeling, marking, and placarding of shipments. The DSW GCE does not include requirements
for off-site shipments (e.g., shipments from the generating site to a reclamation facility owned by
the same generator). The DSW TBE includes requirements for packing, recordkeeping of
shipments from the generator to the reclaimer, and transmittal of confirmation of receipt from the
facility to the generator.

In addition, the DOT regulations set forth requirements for DOT hazardous materials in regard to
the use of shipping papers, packing, labeling, marking, placarding, parking, and driving, among
other things. The DOT regulations apply to all hazardous wastes, as well as other materials that
qualify as a DOT "hazardous material."48 A material qualifies as a DOT hazardous material if it:
(1) is listed in the Table in 49 CFR 172.101 (e.g., compounds), (2) is listed in the Appendices to
the Table in 49 CFR 172.101,49 or (3) meets one or more of the hazard classifications
(e.g., flammable liquid).

Following is a further discussion of the DOT requirements regarding each exclusion under the
current DSW exclusions:

• GCE. HSMs under the GCE that qualify as a DOT hazardous material would be subject
to comparable transportation requirements as hazardous waste in regard to packing,
labeling, marking, placarding, parking, and driving. Specifically, the DOT regulations
apply similar to hazardous waste and other types of DOT hazardous materials, such as
excluded material, in regard to these activities. However, the excluded material would
not be subject to comparable requirements for off-site tracking. Under the DOT
regulations, a shipping paper must accompany a shipment of DOT hazardous material.
The shipper and transporter must keep a copy, but the destination facility need not keep a
copy or transmit a confirmation of receipt to the generator. Therefore, the generator

48 All hazardous wastes are listed in 49 CFR Part 172 as DOT hazardous materials and therefore, are automatically
subject to the DOT regulations as applicable.

49 A hazardous substance (including hazardous wastes and other substances) listed in the Appendices would be a
DOT hazardous material subject to regulation if it exceeded its reportable quantity (RQ).

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would not know whether its excluded material reached the intended destination intact, as
is required by the hazardous waste manifest regulations.

• TBE. HSMs under the TBE that qualify as a DOT hazardous material would be subject
to comparable transportation requirements as hazardous waste in regard to packing,
labeling, marking, placarding, parking, driving, and tracking. Note that the TBE requires
recordkeeping of all off-site shipments by the generator and reclamation facility and a
confirmation of receipt must be sent from the reclaimer to the generator. These
recordkeeping and transmittal requirements are comparable to the hazardous waste
manifest requirements for chain-of-custody tracking and confirmation of receipt.

In addition, it is important to note that excluded HSMs under the GCE or TBE that do not qualify
as a DOT hazardous material would not be subject to comparable transportation requirements as
hazardous waste in regard to packing, labeling, marking, placarding, parking, or driving (or
tracking, for shipments under the GCE). That is, an excluded material would not be a DOT
hazardous material subject to regulation if it is not listed in the Table in 49 CFR 172.101, is not
listed in (or otherwise does not exceed its RQ in) the Appendices to the table, and does not meet
any hazard classification.

Further, the RQs contained in 49 CFR Part 172 that trigger the DOT hazardous materials
requirements are potentially different for hazardous waste and non-waste. A material-specific
RQ is used to determine whether a hazardous waste or other hazardous substances must comply
with the DOT requirements (i.e., if the hazardous substance exceeds its RQ, it must comply). In
some cases the RQ for a hazardous waste would be lower because it is a hazardous waste than
the RQ if the material were not considered a hazardous. In these cases, a greater quantity of
material would be required to exceed the RQ if the material were a non-waste. This could result
in some excluded materials not triggering the RQ requirements (at the lower level) and therefore,
not needing to comply with RQ-related DOT packaging and other regulations.

3.9 Exports

The hazardous waste regulations require an exporter of hazardous waste to notify EPA about
their intention to export waste and receive EPA consent prior to export. They also must submit
an annual report summarizing export activities, including the amount and types of waste
exported and the facilities receiving the waste. In addition, the facility must keep records
describing the waste exported.

Under the GCE, exports are not allowed, and the HSM must be reclaimed within the U.S.

The TBE allows generators to export excluded material and requires them to notify EPA about
their intention to export waste and receive EPA consent prior to export. They also must submit
an annual report summarizing export activities, including the amount and types of waste
exported and the facilities receiving the waste. In addition, the facility must keep records
describing the waste exported. Therefore, the hazardous waste regulations and TBE include
generally comparable export requirements.

Note that, even though hazardous wastes are currently exported to other nations for treatment,
disposal, or reclamation, EPA has not received any notification indicating that HSMs will be
exported under the 2008 DSW final rule. Based on this facility behavior, EPA does not
anticipate that a significant amount of HSMs will be exported under the TBE of the current DSW
exclusions.

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3.11 Security50

The hazardous waste regulations require storage facilities to prevent the unknowing and
unauthorized entry of persons and livestock onto the active portion of the facility. The TBE does
not address security at facilities.

3.12 Financial Assurance

The hazardous waste regulations and TBE require facilities to have and maintain a cost estimate
and obtain financial assurance for closure. In addition, facilities must have and maintain liability
coverage for sudden accidental occurrences and, if applicable, non-sudden accidental
occurrences. A variety of financial instruments are identified for these purposes (e.g., trust fund,
surety bond). Therefore, the hazardous waste regulations and TBE have comparable financial
assurance requirements for closure and accidental occurrences.

3.13 Requirement for a Permit

The hazardous waste regulations require storage facilities, including facilities that store
hazardous waste prior to reclamation, to obtain a hazardous waste permit that includes
requirements for facility and unit design, construction, operation, closure, and post-closure care,
as applicable. In addition, any facility that manages hazardous waste in a land-based unit is
subject to the requirement for a permit. By contrast, the GCE allows generators to manage HSM
in land-based units without a permit.

The TBE requires facilities either to obtain a RCRA permit and manage HSMs in the permitted
units or comply with its conditions and pass an audit by the generators. Generators must make
reasonable efforts to ensure that their HSMs will be safely and legitimately managed and
reclaimed.

The RCRA permit and TBE share some key similarities, but there also are some key differences.
Examples include the following:

• Similarities. A hazardous waste permit and TBE impose requirements on facilities to
ensure protective operation (e.g., permit requirements, exclusion conditions). In addition,
a hazardous waste permit and the TBE rely on similar processes for compliance
assurance (e.g., state inspections and reviews of facility submittals). Whereas a state may
inspect storage facilities more often than facilities under the exclusion, the exclusion
requires generator audits to supplement the state's compliance oversight and assure
compliance. Finally, a hazardous waste permit and the TBE both require financial
assurance for closure and sudden and non-sudden occurrences.

• Differences. A hazardous waste permit can be revoked or denied to prevent facility
operation. Under the TBE, a generator audit does not result in denial of the ability to
operate. However, a generator must not send its materials to a facility that fails its audit,
essentially denying the facility the ability to manage the materials under the exclusion. In

50 Paragraphs 3.11 through 3.14 describe the comparative findings presented in Table 3 for storage facilities under
the hazardous waste regulations and intermediate/reclamation facilities under the transfer-based exclusion. The
issues discussed in these paragraphs (e.g., security, financial assurance) do not apply to generators of hazardous
waste or hazardous secondary materials, and hence, they are not addressed in Tables 1 or 2 or in these paragraphs.

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addition, states have a lead role in administering the hazardous waste permitting and
enforcement process. Under the TBE, states and generators both have important roles to
evaluate facility compliance.

3.14	Public Involvement

The hazardous waste regulations require storage facilities, including facilities that store
hazardous waste prior to reclamation, to undergo the hazardous waste permitting process, which
includes public involvement (e.g., public notice and comment on draft permits).

Under the GCE, a generator that manages HSM in land-based units would not be subject to the
permitting process, which differs from the hazardous waste regulations. Under the TBE, a
permit is not needed for storage of excluded materials. As a result, such facilities could operate
and store the materials under the exclusion without public involvement.

3.15	Enforcement

The hazardous waste regulations include prescriptive generator and facility standards (e.g.,
labeling, container integrity), which facilitate inspections and enforcement actions. The GCE
and TBE do not include prescriptive requirements. Therefore, it may be more difficult for
regulator and facility personnel to inspect for compliance under these exclusions.

4. Comparative Tables

Following are tables that compare federal regulations applicable to: (1) generators and permitted
storage facilities operating under the federal hazardous waste regulations and (2) generators,
intermediate facilities, and reclamation facilities operating under the current DSW exclusions.
The purpose of the comparison is to determine if the federal regulations applicable to generators
and facilities operating under the current DSW exclusions are comparable to the federal
regulations applicable to hazardous waste generators and permitted storage facilities operating
under the federal hazardous waste regulations.

Three tables are presented:

•	Table 1 compares the federal regulations applicable to generators of hazardous waste and
generators of HSM under the GCE.

•	Table 2 compares the federal regulations applicable to generators of hazardous waste and
generators of HSM under the TBE.

•	Table 3 compares the federal regulations applicable to hazardous waste storage facilities
and HSM intermediate and reclamation facilities under the TBE.

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity Generators
(SQGs)

1. Legitimate Recycling

HWRs: EPA has issued policy statements to clarify legitimate recycling
(e.g., in Federal Register notices). In addition, respondents in an
enforcement action who raise a claim that a certain material is not a solid
waste must demonstrate that there is a known market or disposition for the
material and that they meet the terms of the exclusion or exemption, as
specified. (40 CFR 261.2(f))

GCE: Reclamation of the
material must be legitimate, as
specified at 40 CFR 260.43
(40 CFR261.2(a)(2)(ii) and
261.4(a)(23)(v)). 40 CFR
260.43 spells out the
legitimacy criteria that must be
met.

EPA has set forth criteria for determining
legitimate recycling under the HWRs and
DSW final rule. The DSW final rule
codifies these criteria for the exclusions,
which provides greater clarity and
enforceability.

2. Storage Time Limit

HWRs: LQG cannot accumulate waste
onsite for more than 90 days without a
permit or being in compliance with the
interim status standards. (40 CFR
262.34)

HWRs: SQG cannot
accumulate waste onsite for
more than 180 or 270 days
without a permit or being in
compliance with the interim
status standards and must not
exceed 6,000 kilograms onsite.
(40 CFR 262.34)

GCE: Generator must recycle
(or ship for recycling) 75% of
the HSM within one calendar
year and meet other criteria as
specified. (40 CFR
261.2(a)(2)(h) and
2614(a)(23)(iii))

The GCE allows generators to accumulate
HSM onsite for longer periods of time
than the HWRs. In addition, the GCE
does not include a quantity limit for on-
site accumulation, as does the HWRs for
SQGs.

14

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

t n J.-;, /t \ Small Quantity Generators
Large Quantity Generators (LQGs) „ 1, .

(ayUS)

3. Containment

HWRs: Generator must meet design, operating, inspection, and closure
standards for containers, tanks, containment buildings, and drip pads.
Generators cannot accumulate HSM in land-based units without a permit
or interim status. (40 CFR 262.34 and 40 CFR Parts 264, 265, and 270)

GCE: HSM must be
contained. Generators can
manage HSM in land-based
units (e.g., surface
impoundments, waste piles).
(40 CFR261.2(a)(2)(ii) and
261.4(a)(23)(i))

The HWRs and GCE require containment
of HSM in the unit. The HWRs prescribe
design, operating, and other standards for
containment, whereas the GCE does not.
As such, the GCE allows more flexibility
in how HSMs can be contained. This
could result in more or less effective
containment than the HWRs, depending
on the containment methods used by the
generator under the exclusion. In
addition, prescriptive requirements may be
more conducive to inspection and
enforcement, which could help to prevent
a release.

The GCE also allows generators to
manage HSM in land-based units, unlike
the HWRs, which require a permit or
interim status that prescribe facility and
unit-specific standards.

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity Generators
(SQGs)

4. Air Fmissions

HWRs: LQGs must comply with
standards to control air emissions.

These include standards for the design,
operation, monitoring, testing, and
recordkeeping of:

•	Process vents associated with
specified treatment technologies (40
CFR Parts 264 and 265, Subpart
AA);

•	Equipment leaks (40 CFR Parts 264
and 265, Subpart BB); and

•	Emissions from tanks, surface
impoundments, and containers (40
CFR Parts 264 and 265, Subpart
CC).

HWRs: No air emission
standards for SQGs.

GCE: HSM must be
contained. (40 CFR
261.2(a)(2)(h) and
261.4(a)(23)(i))

The HWRs and GCE require containment
of HSM in the unit. The HWRs prescribe
design, operating, and other standards for
control of air emissions, whereas the GCE
does not. As such, the GCE allows more
flexibility in how HSMs can be contained.
This could result in more or less effective
containment than the HWRs, depending
on the containment methods used by the
generator under the exclusion. In
addition, see "Other Federal Regulations"
below for additional discussion.

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

t n J.-;, /t \ Small Quantity Generators
Large Quantity Generators (LQGs) „ 1, .

(ayUS)

Other Federal Regulations:

CAA (Air Emission Standards): The states and EPA issue operating permits to certain "major" stationary
sources of hazardous air pollutants (HAPs) under 40 CFR Parts 70 and 71. A major source is a source that
emits more than 10 tons per year (TPY) of any single HAP or more than 25 TPY of HAPs in total. A
limited number of smaller sources (e.g., "area" sources) also may be required to obtain a permit under the
federal program.

In addition, EPA has established technical standards for the control of air emissions from stationary
sources, which permit writers include in a permit to control emissions as appropriate. Some of these
standards could address air emissions from process vents, equipment leaks, tanks, and other units.
Potentially applicable standards can be found in various parts of 40 CFR, such as:

•	Part 60: "Standards of Performance for New Stationary Sources (NSPS)/' This part regulates
emissions from stationary sources of criteria pollutants for which EPA has established National
Ambient Air Quality Standards (NAAQS); and

•	Part 63: "National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source
Categories." This part regulates emissions of HAPs from source categories.

These parts set forth design, operating, monitoring, testing, and/or recordkeeping standards, as specified.

The federal CAA permitting and technical
standards could potentially address air
emissions from process vents, equipment
leaks, and/or storage units at some of the
facilities operating under the GCE. These
CAA standards include comparable types
of controls as the HWRs, e.g., design,
operating, and monitoring. However, the
CAA permitting and technical standards
under the federal program would not apply
to facilities that:

•	Have emissions below specified
thresholds (e.g., emit less than 10 TPY
of any single HAP or 25 TPY of HAPs
in total); or

•	Do not meet other applicability criteria
(e.g., are not in a regulated industry).

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity Generators
(SQGs)

5. Emergency Preparedness and Response

HWRs: LQGs must:

•	Have emergency equipment (e.g.,
alarms, fire protection, spill
containment);

•	Designate an emergency
coordinator; and

•	Have an emergency plan to address
any release or other emergency, and
emergency procedures for:

-	Notifying on-site and off-site
personnel;

-	Controlling the emergency (e.g.,
identifying, assessing and
containing the release); and

-	Taking other actions as
specified (e.g., ensuring proper
management of recovered
material). (40 CFR 262.34 and
Part 265, Subparts C and D)

HWRs: SQGs must:

•	Have emergency
equipment (e.g., alarms,
fire protection, spill
containment);

•	Designate an emergency
coordinator; and

•	Respond to any emergency
(e.g., extinguish fires,
contain and clean up
releases, notify off-site
emergency personnel as
applicable). (40 CFR
262.34 and 40 CFR Part
265, Subpart C)

GCE: No comparable
provisions.

The GCE does not include provisions on
emergency preparedness and response.
However, materials under the GCE that
are no longer contained in a unit (i.e.,
released) and not immediately recovered
would no longer be excluded. They would
need to be cleaned up and be subject to
RCRA Subtitle C regulation if hazardous,
including the HWR preparedness and
response requirements, as applicable.

In addition, see "Other Federal
Regulations" below for additional
discussion.

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity Generators
(SQGs)

Other Federal Regulations:

CAA (Chemical Accident Prevention): A facility that is a stationary source that has more than a threshold
quantity of a "regulated substance" in a process (e.g., storage) must develop and implement a risk
management program, including a Risk Management Plan (RMP). Facilities with a process subject to
Program 2 or 3 (e.g., a process that has had an accidental release within the past five years with off-site
consequences as specified) must prepare an emergency response program that includes an emergency plan
(e.g., procedures for notifying off-site parties, providing medical treatment, responding to an accidental
release), emergency response equipment, and personnel training.

However, a facility whose employees will not respond to the release need not prepare an emergency
response program if it makes alternative arrangements. It must either be included in its community
emergency response plan or coordinate response actions with the local fire department. There also must be
a mechanism for notifying emergency responders.

Note that the Chemical Accident Prevention provisions list 140 toxic and flammable regulated substances
subject to regulation, with threshold quantities ranging from 500 to 20,000 pounds. (40 CFR Part 68.)

The Chemical Accident Prevention
provisions for an emergency response
program set forth generally comparable
elements as the HWRs for SQG and LQG
preparedness and prevention (e.g., an
emergency plan, emergency equipment,
and coordination with off-site responders).

The provisions for alternative
arrangements are not comparable to the
HWRs for LQGs or SQGs. They do not
require emergency equipment, an
emergency plan, or basic efforts by on-site
personnel to control the emergency (e.g.,
extinguishing a fire).

Note that a generator would be subject to
the Chemical Accident Prevention
provisions if it has more than a threshold
quantity of a 40 CFR Part 68-regulated
substance in a process (e.g., storage).

Only a subset of these facilities (e.g., those
subject to Program 2 or 3) would be
required to have an emergency response or
evacuation plan.

A-19

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

t n J.-;, /t \ Small Quantity Generators
Large Quantity Generators (LQGs) „ 1, .

(ayUS)

CERCLA EPCRA (Emergency Notification):

•	A generator must immediately notify the National Response Center (NRC) of a release of a CERCLA
hazardous substance (including hazardous waste) equal to or exceeding its reportable quantity in any
24-hour period. (40 CFR Part 302)

•	A generator must immediately notify the NRC and local/state officials of a release of a reportable
quantity of any extremely hazardous substance (EHS) or CERCLA hazardous substance (including
hazardous waste). (40 CFR Part 355)

These CERCLA/EPCRA provisions
require notification to off-site personnel as
do the HWRs. These notification
provisions could effectively address some
emergencies (e.g., if local responders
respond immediately and control the
emergency, such as local fire or hazmat
personnel).

However, they do not require emergency
equipment, on-site coordination, or basic
efforts to control an emergency (e.g.,
containing and cleaning up the release).
Therefore, these provisions are not
comparable to the HWRs for preparedness
and response.

A-20

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity Generators
(SQGs)

CWA (Oil Pollution Prevention): A generator that is a "non-transportation-related facility" that could
reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities
and that meets other applicability criteria must perform emergency planning and response for oil
discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan. The SPCC Plan must
address such elements as discharge prevention measures; countermeasures for discharge discovery,
response, and cleanup; personnel responsibilities (e.g., for addressing discharges); and plans and procedures
for responding to discharges. (40 CFR Part 112)

The SPCC requirements set forth
generally comparable elements as the
HWRs for emergency preparedness and
response for oil discharges. This includes
emergency equipment, personnel
responsibilities for addressing discharges,
training, and emergency plans/procedures
(e.g., countermeasures for discharge
response and cleanup, notification to
off-site agencies/personnel).

A generator must prepare an SPCC Plan if
it meets specified applicability criteria
(e.g., a non-transportation-related facility
with aboveground oil storage capacity of
more than 1,320 gallons that could
reasonably be expected to discharge
petroleum-based solvents to navigable
waters or adjoining shorelines in quantities
that may be harmful). These criteria
would not apply to certain types of
generators (e.g., sites that are not near
navigable waters, do not generate/store
oil-related substances, or meet minimum
storage capacity thresholds).

A-21

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity Generators
(SQGs)

OSH Act (Process Safety Management or PSM) : A facility that has a process (e.g., use, storage, handling)
which involves a "highly hazardous chemical" at or above the specified quantity must have an evacuation
plan for the entire plant addressing evacuation procedures, alarm systems, personnel responsibilities,
evacuation training, off-site notification, and procedures to be followed by facility personnel who remain to
operate critical equipment before evacuation. The facility also would need to handle small releases. Highly
hazardous chemicals include toxic and reactive highly hazardous chemicals which present a potential for a
catastrophic event at or above the threshold quantity. (29 CFR 1910.38 and 1910.119)

The PSM provisions require generally
comparable elements as the HWRs for
SQG preparedness and response. The
evacuation plan must include on-site
response coordination, off-site
notification, alarms, and handling of small
releases. However, the PSM provisions
are not generally comparable to the HWR
requirements for LQG preparedness and
response. The PSM provisions do not
require a plan for the facility to
control/contain the emergency.

A facility must comply with these
regulations if it meets the specified
applicability criteria (e.g., if it
accumulates a highly hazardous chemical
onsite above its threshold quantity). 29
CFR 1910.119, Appendix A, lists
approximately 140 toxic and reactive
highly hazardous chemicals subject to
regulation.

A-22

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

t n J.-;, /t \ Small Quantity Generators
Large Quantity Generators (LQGs) „ 1, .

(ayUS)

OSH Act (Hazardous Waste Operations and Emergency Response
(HAZWOPERJ): Generators of hazardous waste must have an emergency
response program if it is required by EPA or state to have its employees
engage in emergency response or if it directs its employees to engage in
emergency response. Generators must prepare emergency response
program that includes an emergency response plan (e.g., personnel roles,
coordination with outside parties, emergency alerting and response,
emergency equipment), training for emergency response employees, and
procedures for handling emergency incidents (e.g., alarms). (29 CFR
1910.120(p)(8))

If the generator will evacuate employees and will not allow them to assist
in the response, it need not prepare a response program. Rather, it must
prepare an evacuation plan for the entire plant. The plan must address
evacuation procedures, alarm systems, personnel responsibilities,
evacuation training, off-site notification, and procedures to be followed by
facility personnel who remain to operate critical equipment before
evacuation. The generator also would need to have procedures for
handling small releases. (29 CFR 1910.38 and 1910.120(p)(8))

29 CFR 1910.120(p)(8) does
not apply to sites that are not
hazardous waste generators or
treatment, storage, and
disposal facilities (TSDFs).

Facilities that do not qualify as a
hazardous waste generator would not be
subject to 29 CFR 1910.120(p)(8).
However, some generators under the GCE
may nonetheless qualify as an LQG or
SQG based on the quantity of hazardous
waste generated and be subject to 29 CFR
1910.120(p)(8). Portions of the
emergency response program under 29
CFR 1910.120(p)(8) could apply to
excluded materials at such a site (e.g.,
availability of emergency response
equipment, such as absorbent, if needed).

Note that the emergency response
requirements under 29 CFR
1910.120(p)(8) are comparable to the
requirements at 29 CFR 1910.120(q),
which are presented below.

A-23

-------
Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity Generators
(SQGs)

OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)): A facility is required to
establish an emergency response program if it has employees who are responsible for emergency response
operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous
waste) without regard to the location of the hazard (e.g., anywhere at the facility), such as designated
response employees. The program must include an emergency response plan (e.g., personnel roles,
emergency equipment, and coordination with outside parties, emergency alerting and response), training for
emergency response employees, and procedures for handling emergency incidents. (29 CFR 1910.120(q))

If the facility will evacuate employees and will not allow employees to assist in response, it need not
prepare an emergency response plan. It must prepare an evacuation plan for the entire plant. The plan must
address evacuation procedures, alarm systems, personnel responsibilities, evacuation training, off-site
notification, and procedures to be followed by facility personnel who remain to operate critical equipment
before evacuation. (29 CFR 1910.38 and 1910.120(q))

The HAZWOPER regulations require
generally comparable elements as the
HWRs for LQG and SQG preparedness
and response. This includes, for example,
an emergency response plan, emergency
equipment, and on-site coordination of
emergency responses.

In addition, the evacuation plan is
generally comparable to the HWR
requirements for SQG preparedness and
response. The evacuation plan must
include on-site response coordination, off-
site notification, and alarms. However,
the evacuation plan is not comparable to
the HWR requirements for LQG
preparedness and response. The plan does
not include sufficient procedures for the
facility to address (e.g., control)
emergency.

Note that 29 CFR 1910.120(q) would not
apply to generators under the GCE unless
they have on-site response personnel, as
specified.

A-24

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

t n J.-;, /t \ Small Quantity Generators
Large Quantity Generators (LQGs) „ 1, .

(ayUS)

OSH Act (Hazard Communication): Facilities must provide information to their employees about any
chemical (except hazardous waste) which is a physical or health hazard to which they are exposed, by
means of a hazard communication program, labels and other forms of warning, material safety data sheets,
and information and training (e.g., hazards detection, emergency procedures). Hazardous wastes are
exempt from these provisions. (29 CFR 1910.1200).

A generator under the GCE would be
subject to the Hazard Communication
Standard (HazCom) for any excluded
material and other chemicals that pose a
physical or health hazard. (A generator of
hazardous waste would not be subject to
29 CFR 1910.1200 for its hazardous
waste, but for non-waste chemicals.)

However, the HazCom provisions do not
require emergency equipment,
coordination with off-site personnel, or
basic actions to control an emergency.
Rather, they require information sharing
and training. As such, these provisions are
not comparable to the HWR requirement
for LQG or SQG preparedness and
response.

A-25

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity Generators
(SQGs)

6. Personnel Training

HWRs: LQGs must provide personnel training and SQGs must provide
familiarization on emergency response and job duties. At a minimum,
this must address emergency procedures. LQGs must provide recurrent
training. (40 CFR 262.34 and 265.16)

GCE: No comparable
provisions.

The GCE does not include provisions on
personnel training. However, some
generators under the exclusion may
nonetheless qualify as a LQG or SQG
based on the quantity of hazardous waste
they generate during the month and
therefore, be subject to the HWR.

Portions of the HWR personnel training
may be relevant to handling the excluded
materials (e.g., familiarization on chemical
hazards). In addition, see "Other Federal
Regulations" below for additional
discussion.

A-26

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity Generators
(SQGs)

Other Federal Regulations:

CAA (Chemical Accident Prevention) : A facility that is a stationary source that has more than a threshold
quantity of a "regulated substance" in a process (e.g., storage) must develop and implement a risk
management program, including a Risk Management Plan (RMP).

Facilities with a process eligible for Program 1 (e.g., has not had accidental release of a regulated substance
within the past five years with off-site consequences as specified) are not required to provide training.
Generators with a process subject to Program 2 or 3 (e.g., has had accidental release of a regulated
substance from a process within the past five years with off-site consequences as specified) must provide
recurring personnel training on operations and emergency procedures. (40 CFR Part 68)

The Chemical Accident Prevention
provisions require facilities in Program 2
and 3 to provide recurring personnel
training on job operations and emergency
procedures. These topics are generally
comparable to those required by the
HWRs for LQG and SQG training.

A generator would be subject to the
Chemical Accident Prevention provisions
if it has more than a threshold quantity of
a 40 CFR Part 68-regulated substance in a
process (e.g., storage). Note that only a
subset of these facilities would need to
provide training (i.e., facilities in
Program 1 are exempt from training
requirements). Note that 40 CFR Part 68
lists 140 toxic and flammable regulated
substances, with threshold quantities
ranging from 500 to 20,000 pounds.

A-27

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

t n J.-;, /t \ Small Quantity Generators
Large Quantity Generators (LQGs) „ 1, .

(ayUS)

CWA (Oil Pollution Prevention): A generator that is a "non-transportation-related facility" that could
reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities
and that meets other applicability criteria must perform emergency planning and response for oil
discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan. The Plan must
provide for personnel training on topics such as operation and maintenance of facility and equipment to
prevent discharges, discharge procedure protocols, and elements of the Plan. (40 CFR Part 112)

A generator's SPCC Plan would address
comparable topics as the HWRs for
on-going personnel training for oil. This
includes operation and maintenance of the
facility and equipment, discharge
procedures, and how to carry out the
SPCC Plan.

A generator must prepare an SPCC Plan if
it meets the specified applicability criteria
(e.g., a non-transportation-related facility
with aboveground oil storage capacity of
more than 1,320 gallons that could
reasonably be expected to discharge
petroleum-based solvents to navigable
waters or adjoining shorelines in quantities
that may be harmful).

A-28

-------
Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

t n J.-;, /t \ Small Quantity Generators
Large Quantity Generators (LQGs) „ 1, .

(ayUS)

HMTA (Hazardous Materials Transportation): A generator would be subject to regulation under the
HMTA (including the personnel training requirements as applicable) if it transported, or offered for
transportation, a DOT hazardous material, i.e., a material that: (1) is listed in the Table in 49 CFR 172.101
(e.g., compounds), (2) is listed in the Appendices to the Table in 49 CFR 172.101, or (3) meets one or more
of the hazard classifications (e.g., flammable liquid).

49 CFR Part 172 provides that all RCRA hazardous wastes are DOT hazardous materials, as specified. A
HSM excluded from the definition of solid waste is neither a solid nor hazardous waste; therefore, it would
not qualify as a DOT hazardous material on the basis of being a hazardous waste. Rather, an excluded
material would qualify as a DOT hazardous material if it is otherwise listed in 49 CFR Part 172 (e.g., as a
compound or element) or meets a hazard class. It is possible that some excluded materials will not qualify
as a DOT hazardous material. This includes material that is not listed and does not meet any hazard class.

A generator that employs "hazmat employees" must provide initial and recurrent training. A hazmat
employee is a person who is involved in the transportation of DOT hazardous materials as specified
(e.g., loading, preparation for transportation, operation of a transportation vehicle). The training must cover
general awareness/familiarization, function-specific training, safety, security awareness, and in-depth
security. In particular, the safety training must include emergency response information (i.e., information
that can be used in the mitigation of an incident involving hazardous materials, such as health hazards, risks
of fire/explosions, methods for handling fires/spills). (49 CFR 172, Subpart H)

Generators under the GCE that employ
hazmat employees must train them on a
recurrent basis as required by 49 CFR
Part 172, Subpart H. The training must
address function-specific, safety and
emergency response topics, among other
things. These topics are generally
comparable to the topics required by the
HWRs for LQG and SQG training as they
pertain to transportation-related activities.

Generators whose employees are not
involved in transportation activities
(e.g., because they do not make off-site
shipments, contractors are used to
prepare/transport the material, or the
material is not DOT hazardous material)
would not qualify as hazmat employees
and not receive such training.

A-29

-------
Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity Generators
(SQGs)

OSH Act (Process Safety Management): A generator that has a process (e.g., use, storage, handling) which
involves a "highly hazardous chemical" at or above specified quantity must provide initial and refresher
training of personnel involved in operating a process (e.g., job-related operating procedures, health hazards,
emergency operations, evacuations). (29 CFR 1910.119)

The Process Safety Management
provisions require initial and refresher
training on topics related to job-related
operations and emergencies. These topics
are generally comparable to the topics
required by the HWRs for LQG and SQG
training.

A generator must comply with the Process
Safety Management provisions if it meets
the specified applicability criteria (e.g., a
generator that accumulates a highly
hazardous chemical onsite above its
threshold quantity).

A-30

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity Generators
(SQGs)

OSH Act (Hazardous Waste Operations and Emergency Response
(HAZWOPERJ): Generators must have an emergency response program if
it is required by EPA or state to have its employees engage in emergency
response or if it directs its employees to engage in emergency response.
The program must include training on emergency response (e.g., elements
of the response plan, standard operating procedures, and procedures for
handling emergency incidents). These provisions apply to hazardous
waste generators and TSDFs only. (29 CFR 1910.120(p)(8))

29 CFR 1910.120(p)(8) does
not apply to sites that are not
hazardous waste generators or
TSDFs.

Under the GCE, generators that do not
otherwise qualify as a hazardous waste
generator would not be subject to 29 CFR
1910.120(p)(8). 29 CFR 1910.120(p)(8)
applies only to hazardous waste generators
and TSDFs.

On the other hand, generators under the
exclusion that continue to be LQGs or
SQGs under the HWRs would be subject
to 29 CFR 1910.120(p)(8). Some of the
training topics under the 29 CFR
1910.120(p)(8) could be relevant to the
excluded material. These provisions
require training on operating and
emergency procedures. These topics are
generally comparable to the topics
required by the HWRs for SQG training.
However, these provisions do not require
recurrent training, as do the HWRs for
LQG training. Therefore, they are not
comparable to the HWRs for LQG
training.

A-31

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity Generators
(SQGs)

OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)): A facility is required to
establish an emergency response program if it has employees who are responsible for emergency response
operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous
waste) without regard to the location of the hazard (e.g., anywhere at the facility). The facility's program
must provide initial and recurrent training as relevant to personnel responsibilities (e.g., first responder, on
scene incident commander). This includes, for example, hazard detection, responsibilities for emergency
response, and safety. (29 CFR 1910.120(q))

The HAZWOPER regulations require
initial and recurrent training on hazard
detection, emergency response, and safety,
among other things. These topics are
comparable to the topics required by the
HWRs for LQG and SQG training, as it
relates specifically to emergency response
personnel. A generator must comply with
the HAZWOPER regulations if it meets
the specified applicability criteria (e.g., a
generator that has employees responsible
for responding to on-site releases
regardless of location).

A-32

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

t n J.-;, /t \ Small Quantity Generators
Large Quantity Generators (LQGs) „ 1, .

(ayUS)

OSH Act (Hazard Communication): Employers must provide information to their employees about any
chemical which is a physical or health hazard to which they are exposed, by means of a hazard
communication program, labels and other forms of warning, material safety data sheets, and information
and training. Employees must be informed of operations in their work area where hazardous chemicals are
present, among other things. Employee training must include methods and observations for detecting
releases, hazards in the work area, and measures employees can take to protect themselves (e.g., emergency
procedures). (29 CFR 1910.1200)

The Hazard Communication Standard
(HazCom) requires familiarization and
training on emergency recognition,
hazards, and protective measures, which is
comparable to the topics of HWR training
for SQGs. However, they are somewhat
less rigorous than the HWR training
requirements for LQGs. There is no
schedule for follow-up training under
HazCom. Therefore, HazCom training is
not comparable to the HWRs for LQG
training.

A generator must comply with these
regulations for any chemicals which could
pose a physical or health hazard in the
work place, except for hazardous waste.
Generators would be subject to these
requirements for their excluded materials,
as well as other chemicals that are not
hazardous waste (e.g., chemical products).

A-33

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

t n J.-;, /t \ Small Quantity Generators
Large Quantity Generators (LQGs) „ 1, .

(ayUS)

7. Reporting and Recordkeeping

HWRs: Reporting to EPA on waste management activities:

•	Notification (40 CFR 262.12)

•	Biennial Report for LQGS only (40 CFR 26241)

•	Exception report (40 CFR 262.42)

HWRs: Recordkeeping for three years (40 CFR 262.40)

GCE: Initial and Biennial
notifications (40 CFR 260.42)

The HWR and GCE have comparable
requirements for initial and biennial
submittals in regard to frequency and
types of information submitted. However,
the GCE biennial notification requirement
applies to generators regardless of size.
The HWR s biennial reporting
requirement applies only to LQGs.

The GCE does not require exception
reporting or recordkeeping.

8. Off-Site Transportation

HWRs: Shipments must be manifested (40 CFR 262, Subpart B) and
comply with DOT requirements for packing, labeling, marking, and
placarding. (40 CFR262.30-.33)

GCE: No comparable
provisions.

The GCE does not include transportation.
See "Other Federal Regulations" below
for additional discussion.

A-34

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity Generators
(SQGs)

Other Federal Regulations:

HMTA: A generator would be subject to regulation under the HMTA if it transported, or offered for
transportation, a DOT hazardous material, i.e., a material that: (1) is listed in the Table in 49 CFR 172.101
(e.g., compounds), (2) is listed in the Appendices to the Table in 49 CFR 172.101, or (3) meets one or more
of the hazard classifications (e.g., flammable liquid).

RCRA hazardous wastes are DOT hazardous materials because they are listed in 49 CFR Part 172. A HSM
excluded from the definition of solid waste is neither a solid nor hazardous waste; therefore, it would not
qualify as a DOT hazardous material on the basis of being a hazardous waste. Rather, an excluded material
would qualify as a DOT hazardous material if it is otherwise listed in 49 CFR Part 172 (e.g., as a compound
or element) or meets a hazard classification. It is possible that some excluded materials will not qualify as a
DOT hazardous material. This includes a HSM that is not listed and does not meet any hazard class.

Shipments of DOT hazardous materials (including hazardous waste) must comply with applicable
transportation provisions. This includes, for example, the regulations for shipping papers (or manifest),
packing, labeling, marking, and placarding (49 CFR Parts 171-180), as well as requirements for driving and
parking. (49 CFR Part 397).

Excluded materials qualifying as a DOT
hazardous material would be subject to
transportation requirements comparable to
hazardous waste, except for tracking of
shipments. Under the HWRs, a manifest
is required to track the waste from
generator to designated facility and a
confirmation of receipt is sent from the
facility to the generator. The hazardous
materials regulations do not require
transmittal of confirmation.

Note that some excluded materials may
not qualify as a DOT hazardous material.
They would not need to be transported in
accordance with the hazardous materials
regulations.

9. Exports

HWRs: Reporting under 40 CFR Part 262, Subpart E or H:

• Perform notice and consent

• Submit annual report

• Keep records

GCE: No comparable
provisions for exports.

The GCE does not include comparable
provisions for notice and consent for
exports. This is because the exclusion
requires that the material be generated and
reclaimed within the U.S. and territories.

11. Requirement for a Permit

A-35

-------
Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

t n J.-;, /t \ Small Quantity Generators
Large Quantity Generators (LQGs) „ 1, .

(ayUS)

HWRs: RCRA permit is required for managing hazardous waste in land-
based units. (40 CFR Part 270)

GCE: No comparable
provisions.

The HWRs require a permit for managing
HSM in land-based units. The permit
would prescribe facility and unit-specific
standards (e.g., design, operation,
emergency prevention). In addition,
public involvement would be required as
part of the permitting process. The GCE
allows generators to manage HSM in land-
based units without a permit.

12. Public Involvement in Permit Process

HWRs: Facility managing hazardous waste in land-based units must
undergo RCRA permitting process, which includes public involvement
(e.g., public notice and comment for draft permit decision; public hearing
if requested). (40 CFR Parts 270 and 124)

GCE: No comparable
provisions.

Generator that manage HSM under the
GCE in land-based units would not be
subject to public involvement
requirements, unlike the HWRs.

A-36

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Table A-l. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Generator-Controlled
Exclusion (GCE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity Generators
(SQGs)

Other Federal Regulations:





Facilities managing HSMs may be subject to other permitting programs that include public involvement.
Examples include the Clean Air Act (CAA) operating permitting program and Clean Water Act (CWA)
National Pollutant Discharge Elimination System (NPDES) permitting program.

Facilities under GCE may be subject to the
CAA NPDES, and/or other permitting
programs. If so, the public may have an
opportunity to comment on aspects of
their draft permit that relate to
management of the excluded material.

13. Enforcement and Compliance

HWRs: EPA's National Program
Manager (NPM) Guidance for Fiscal
Year 2010 provides that the EPA
Regions and states must annually inspect
at least 20% of the LQG universe, so
that the entire universe is inspected in
five years.

HWRs: No comparable
guidance.

GCE: No comparable
guidance.



HWRs: The HWRs include prescriptive generator standards (e.g.,
labeling, container integrity), which could facilitate inspections and
enforcement actions.

GCE: The GCE does not
include prescriptive standards,
but performance based
requirements.

It may be more difficult for regulators and
facilities to inspect for compliance under
the GCE because it does not spell out
prescriptive standards. This differs from
the HWRs, which lay out prescriptive
standards.

A-37

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

1. Legitimate Recycling

HWRs: EPA has issued policy statements to clarify legitimate
recycling (e.g., in Federal Register notices). In addition,
respondents in an enforcement action who raise a claim that a
certain material is not a solid waste must demonstrate that there is a
known market or disposition for the material and that they meet the
terms of the exclusion or exemption, as specified. (40 CFR
261.2(f))

TBE: Reclamation of the
material must be legitimate, as
specified at 40 CFR 260.43
(261.4(a)(24)(iv)). 40 CFR
260.43 spells out the
legitimacy criteria that must be
met. Generator must perform
reasonable efforts to ensure
proper and legitimate recycling
by reclaimer, as specified
(40 CFR 261,4(a)(24)(v)(B))

EPA has set forth consistent criteria on
legitimate recycling under the HWR and
DSW final rule. The DSW final rule
codifies these criteria for the exclusions,
which provides greater clarity and
enforceability. In addition, a generator's
reasonable efforts under the TBE
reinforce the criteria and encourage
compliance by reclaimers.

2. Storage Time Limit

HWRs: LQG cannot accumulate waste
for more than 90 days without a permit
or being in compliance with the interim
status standards. (40 CFR 262.34)

HWRs: SQG cannot
accumulate waste for
more than 180 or 270
days without a permit or
being in compliance with
the interim status
standards; must not
exceed 6,000 kilograms
onsite. 40 CFR 262.34)

TBE: Generator must recycle
(or ship for recycling) 75% of
the HSM within one calendar
year and meet other criteria as
specified. (261.4(a)(24)(i))

The TBE allows generators to
accumulate HSM onsite for longer
periods of time than the HWRs. In
addition, the TBE does not include a
quantity limit for on-site accumulation,
as does the HWRs for SQGs.

A-38

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

3. Containment

HWRs: Generator must meet design, operating, inspection, and
closure standards for containers, tanks, and containment buildings.
(40 CFR 262.34 and 40 CFR Part 265, Subparts I, J, and DD)

TBE: HSM must be contained
(40 CFR 261,4(a)(24)(v)(A))

Both the HWRs and TBE require
containment of HSM in the unit. The
HWRs prescribe design, operating, and
other standards for containment, whereas
the TBE does not. As such, the TBE
allows greater flexibility in how HSMs
can be contained. This could result in
more or less effective containment than
the HWRs, depending on the
containment methods used by the
generator under the exclusion. In
addition, prescriptive requirements may
be more conducive to inspection and
enforcement, which could help to
prevent a release.

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

4. Air Emissions

HWRs: LQGs must comply with
standards to control air emissions.
These include standards for the design,
operation, monitoring, testing, and
recordkeeping of:

•	Process vents associated with
specified treatment technologies
(40 CFR Parts 264 and 265,
Subpart AA);

•	Equipment leaks (40 CFR Parts
264 and 265, Subpart BB); and

•	Emissions from tanks, surface
impoundments, and containers
(40 CFR Parts 264 and 265,
Subpart CC).

HWRs: No air emission
standards for SQGs.

TBE: HSM must be contained.
(40 CFR 261,2(a)(2)(ii) and
261.4(a)(23)(i))

The HWRs and TBE require
containment of HSM in the unit. The
HWRs prescribe design, operating, and
other standards for containment of air
emissions, whereas the TBE does not.
As such, the TBE allows more flexibility
in how HSMs can be contained. This
could result in more or less effective
containment than the HWRs, depending
on the containment methods used by the
generator under the exclusion. In
addition, see "Other Federal
Regulations" below for additional
discussion.

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Other Federal Regulations:

CAA: The states and EPA issue operating permits to certain "major" stationary sources of hazardous
air pollutants (HAPs) under 40 CFR Parts 70 and 71. A major source is a source that emits more
than 10 tons per year (TPY) of any single HAP or more than 25 TPY of HAPs in total. A limited
number of smaller sources (e.g., "area" sources) also may be required to obtain a permit under the
federal program.

In addition, EPA has established technical standards for the control of air emissions from stationary
sources, which permit writers include in a permit to control emissions as appropriate. Some of these
standards could address air emissions from process vents, equipment leaks, tanks, and other units.
Potentially applicable standards can be found in various parts of 40 CFR, such as:

•	Part 60: "Standards of Performance for New Stationary Sources (NSPS)/' This part regulates
emissions from stationary sources of criteria pollutants for which EPA has established National
Ambient Air Quality Standards (NAAQS); and

•	Part 63: "National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source
Categories/' This part regulates emissions of hazardous air pollutants (HAPs) from source
categories.

These parts set forth design, operating, monitoring, testing, and/or recordkeeping standards, as
specified.

The federal CAA permitting and
technical standards could potentially
address air emissions from process vents,
equipment leaks, and/or storage units at
some of the facilities operating under the
TBE. These CAA standards include
comparable types of controls as the
HWRs, e.g., design, operating, and
monitoring. However, the CAA
permitting and technical standards under
the federal program would not apply to
facilities that:

•	Have emissions below specified
thresholds (e.g., emit less than 10
TPY of any single HAP or 25 TPY of
HAPs in total); or

•	Do not meet other applicability
criteria (e.g., are not in a regulated
industry).

A-41

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

5. Emergency Preparedness and Response

HWRs: LQGs must:

•	Have emergency equipment
(e.g., alarms, fire protection, spill
containment);

•	Designate an emergency
coordinator; and

•	Have an emergency plan to address
any release or other emergency,
and emergency procedures for:

-	Notifying on-site and off-site
personnel;

-	Controlling the emergency
(e.g., identifying, assessing and
containing the release); and

-	Taking other actions as
specified (e.g., ensuring proper
management of recovered
material). (40 CFR 262.34 and
Part 265, Subparts C and D)

HWRs: SQGs must:

•	Have emergency
equipment
(e.g., alarms, fire
protection, spill
containment);

•	Designate an
emergency
coordinator; and

•	Respond to any
emergency
(e.g., extinguish
fires, contain and
cleanup releases,
notify off-site
emergency
personnel as
applicable). (40
CFR 262.34 and 40
CFR Part 265,
Subpart C)

TBE: No comparable
provisions.

The TBE does not include provisions on
emergency preparedness and response.
However, materials under the TBE that
are no longer contained in a unit
(i.e., released) and not immediately
recovered would no longer be excluded.
They would need to be cleaned up and
be subject to RCRA Subtitle C
regulation if hazardous, including the
HWR preparedness and response
requirements, as applicable.

In addition, see "Other Federal
Regulations" below for additional
discussion.

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Other Federal Regulations:

CAA (Chemical Accident Prevention) : A facility that is a stationary source that has more than a
threshold quantity of a "regulated substance" in a process (e.g., storage) must develop and implement
a risk management program, including a Risk Management Plan (RMP). Facilities with a process
subject to Program 2 or 3 (e.g., a process that has had an accidental release within the past five years
with off-site consequences as specified) must prepare an emergency response program that includes
an emergency plan (e.g., procedures for notifying off-site parties, providing medical treatment,
responding to an accidental release), emergency response equipment, and personnel training.

However, a facility whose employees will not respond to the release need not prepare an emergency
response program if it makes alternative arrangements. It must either be included in its community
emergency response plan or coordinate response actions with the local fire department. There also
must be a mechanism for notifying emergency responders.

Note that the Chemical Accident Prevention provisions list 140 toxic and flammable regulated
substances subject to regulation, with threshold quantities ranging from 500 to 20,000 pounds.
(40 CFR Part 68.)

The Chemical Accident Prevention
provisions for an emergency response
program set forth generally comparable
elements as the HWRs for SQG and
LQG preparedness and prevention (e.g.,
an emergency plan, emergency
equipment, and coordination with off-
site responders).

The provisions for alternative
arrangements are not comparable to the
HWRs for LQGs or SQGs. They do not
require emergency equipment, an
emergency plan, or basic efforts by
on-site personnel to control the
emergency (e.g., extinguishing a fire).

Note that a generator would be subject to
the Chemical Accident Prevention
provisions if it has more than a threshold
quantity of a 40 CFR Part 68-regulated
substance in a process (e.g., storage).
Only a subset of these facilities
(e.g., those subject to Program 2 or 3)
would be required to have an emergency
response or evacuation plan.

A-43

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

CERCLA EPCRA (Emergency Notification):

•	A generator must immediately notify the National Response Center (NRC) of a release of a
CERCLA hazardous substance (including hazardous waste) equal to or exceeding its reportable
quantity in any 24-hour period. (40 CFR Part 302)

•	A generator must immediately notify the NRC and local/state officials of a release of a
reportable quantity of any extremely hazardous substance (EHS) or CERCLA hazardous
substance (including hazardous waste). (40 CFR Part 355)

These CERCLA/EPCRA provisions
require notification to off-site personnel
as do the HWRs. These notification
provisions could effectively address
some emergencies (e.g., if local
responders respond immediately and
control the emergency, such as local fire
or hazmat personnel).

However, they do not require emergency
equipment, on-site coordination, or basic
efforts to control an emergency
(e.g., containing and cleaning up the
release). Therefore, these provisions are
not comparable to the HWRs for
preparedness and response.

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

CWA (Oil Pollution Prevention): A generator that is a "non-transportation-related facility" that
could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful
quantities and that meets other applicability criteria must perform emergency planning and response
for oil discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan. The
SPCC Plan must address such elements as discharge prevention measures; countermeasures for
discharge discovery, response, and cleanup; personnel responsibilities (e.g., for addressing
discharges); and plans and procedures for responding to discharges. (40 CFR Part 112)

The SPCC requirements set forth
generally comparable elements as the
HWRs for emergency preparedness and
response for oil discharges. This
includes emergency equipment,
personnel responsibilities for addressing
discharges, training, and emergency
plans/procedures (e.g., countermeasures
for discharge response and cleanup,
notification to off-site
agencies/personnel).

A generator must prepare an SPCC Plan
if it meets specified applicability criteria
(e.g., a non-transportation-related facility
with aboveground oil storage capacity of
more than 1,320 gallons that could
reasonably be expected to discharge
petroleum-based solvents to navigable
waters or adjoining shorelines in
quantities that may be harmful). These
criteria would not apply to certain types
of generators (e.g., sites that are not near
navigable waters, do not generate/store
oil-related substances, or meet minimum
storage capacity thresholds).

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

OSH Act (Process Safety Management): A facility that has a process (e.g., use, storage, handling)
which involves a "highly hazardous chemical" at or above the specified quantity must have an
evacuation plan for the entire plant addressing evacuation procedures, alarm systems, personnel
responsibilities, evacuation training, off-site notification, and procedures to be followed by facility
personnel who remain to operate critical equipment before evacuation. The facility also would need
to handle small releases. Highly hazardous chemicals include toxic and reactive highly hazardous
chemicals which present a potential for a catastrophic event at or above the threshold quantity. (29
CFR 1910.38 and 1910.119)

The Process Safety Management (PSM)
provisions require generally comparable
elements as the HWRs for SQG
preparedness and response. The
evacuation plan must include on-site
response coordination, off-site
notification, alarms, and handling of
small releases. However, the PSM
provisions are not generally comparable
to the HWR requirements for LQG
preparedness and response. The PSM
provisions do not require a plan for the
facility to control/contain the emergency.

A facility must comply with these
regulations if it meets the specified
applicability criteria (e.g., if it
accumulates a highly hazardous
chemical onsite above its threshold
quantity). 29 CFR 1910.119, Appendix
A, lists approximately 140 toxic and
reactive highly hazardous chemicals
subject to regulation.

A-46

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

OSH Act (Hazardous Waste Operations and Emergency Response
(HAZWOPER')): Generators of hazardous waste must have an
emergency response program if it is required by EPA or state to
have its employees engage in emergency response or if it directs its
employees to engage in emergency response. Generators must
prepare emergency response program that includes an emergency
response plan (e.g., personnel roles, coordination with outside
parties, emergency alerting and response, emergency equipment),
training for emergency response employees, and procedures for
handling emergency incidents (e.g., alarms). (29 CFR
1910.120(p)(8))

If the generator will evacuate employees and will not allow them to
assist in the response, it need not prepare a response program.
Rather, it must prepare an evacuation plan for the entire plant. The
plan must address evacuation procedures, alarm systems, personnel
responsibilities, evacuation training, off-site notification, and
procedures to be followed by facility personnel who remain to
operate critical equipment before evacuation. The generator also
would need to have procedures for handling small releases. (29
CFR 1910.38 and 1910.120(p)(8))

29 CFR 1910.120(p)(8) does
not apply to sites that are not
hazardous waste generators or
treatment, storage, and
disposal facilities (TSDFs).

Facilities that do not qualify as a
hazardous waste generator would not be
subject to 29 CFR 1910.120(p)(8).
However, some generators under the
TBE may nonetheless qualify as an LQG
or SQG based on the quantity of
hazardous waste generated and be
subject to 29 CFR 1910.120(p)(8).
Portions of the emergency response
program under 29 CFR 1910.120(p)(8)
could apply to excluded materials at such
a site (e.g., availability of emergency
response equipment, such as absorbent,
if needed).

Note that the emergency response
requirements under 29 CFR
1910.120(p)(8) are comparable to the
requirements at 29 CFR 1910.120(q),
which are presented below.

A-47

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)): A facility is
required to establish an emergency response program if it has employees who are responsible for
emergency response operations for releases of or substantial threats of releases of hazardous
substances (including hazardous waste) without regard to the location of the hazard (e.g., anywhere
at the facility), such as designated response employees. The program must include an emergency
response plan (e.g., personnel roles, emergency equipment, and coordination with outside parties,
emergency alerting and response), training for emergency response employees, and procedures for
handling emergency incidents. (29 CFR 1910.120(q))

If the facility will evacuate employees and will not allow employees to assist in response, it need not
prepare an emergency response plan. It must prepare an evacuation plan for the entire plant. The
plan must address evacuation procedures, alarm systems, personnel responsibilities, evacuation
training, off-site notification, and procedures to be followed by facility personnel who remain to
operate critical equipment before evacuation. (29 CFR 1910.38 and 1910.120(q))

The HAZWOPER regulations require
generally comparable elements as the
HWRs for LQG and SQG preparedness
and response. This includes, for
example, an emergency response plan,
emergency equipment, and on-site
coordination of emergency responses.

In addition, the evacuation plan is
generally comparable to the HWR
requirements for SQG preparedness and
response. The evacuation plan must
include on-site response coordination,
off-site notification, and alarms.
However, the evacuation plan is not
comparable to the HWR requirements
for LQG preparedness and response.
The plan does not include sufficient
procedures for the facility to address
(e.g., control) emergency.

Note that 29 CFR 1910.120(q) would not
apply to generators under the TBE unless
they have on-site response personnel, as
specified.

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

OSH Act (Hazard Communication): Facilities must provide information to their employees about
any chemical (except hazardous waste) which is a physical or health hazard to which they are
exposed, by means of a hazard communication program, labels and other forms of warning, material
safety data sheets, and information and training (e.g., hazards detection, emergency procedures).
Hazardous wastes are exempt from these provisions. (29 CFR 1910.1200).

A generator under the TBE would be
subject to the Hazard Communication
Standard (HazCom) for any excluded
material and other chemicals that pose a
physical or health hazard. (A generator
of hazardous waste would not be subject
to 29 CFR 1910.1200 for its hazardous
waste, but for non-waste chemicals.)

However, the HazCom provisions do not
require emergency equipment,
coordination with off-site personnel, or
basic actions to control an emergency.
Rather, they require information sharing
and training. As such, these provisions
are not comparable to the HWR
requirement for LQG or SQG
preparedness and response.

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

6. Personnel Training

HWRs: LQGs must provide personnel training and SQGs must
provide familiarization on emergency response and job duties. At
a minimum, this must address emergency procedures. LQGs must
provide recurrent training. (40 CFR 262.34 and 265.16)

TBE: No comparable
provisions.

The TBE does not include provisions on
personnel training. However, some
generators under the exclusion may
nonetheless qualify as a LQG or SQG
based on the quantity of hazardous waste
they generate during the month and
therefore, be subject to the HWR.
Portions of the HWR personnel training
may be relevant to handling the excluded
materials (e.g., familiarization on
chemical hazards). In addition, see
"Other Federal Regulations" below for
additional discussion.

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

Other Federal Regulations:

CAA (Chemical Accident Prevention) : A facility that is a stationary source that has more than a
threshold quantity of a "regulated substance" in a process (e.g., storage) must develop and implement
a risk management program, including a Risk Management Plan (RMP).

Facilities with a process eligible for Program 1 (e.g., has not had accidental release of a regulated
substance within the past five years with off-site consequences as specified) are not required to
provide training. Generators with a process subject to Program 2 or 3 (e.g., has had accidental
release of a regulated substance from a process within the past five years with off-site consequences
as specified) must provide recurring personnel training on operations and emergency procedures.
(40 CFR Part 68)

The Chemical Accident Prevention
provisions require facilities in Program 2
and 3 to provide recurring personnel
training on job operations and
emergency procedures. These topics are
generally comparable to those required
by the HWRs for LQG and SQG
training.

A generator would be subject to the
Chemical Accident Prevention
provisions if it has more than a threshold
quantity of a 40 CFR Part 68-regulated
substance in a process (e.g., storage).
Note that only a subset of these facilities
would need to provide training (i.e.,
facilities in Program 1 are exempt from
training requirements). Note that 40
CFR Part 68 lists 140 toxic and
flammable regulated substances, with
threshold quantities ranging from 500 to
20,000 pounds.

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

CWA (Oil Pollution Prevention): A generator that is a "non-transportation-related facility" that
could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful
quantities and that meets other applicability criteria must perform emergency planning and response
for oil discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan. The
Plan must provide for personnel training on topics such as operation and maintenance of facility and
equipment to prevent discharges, discharge procedure protocols, and elements of the Plan. (40 CFR
Part 112)

A generator's SPCC Plan would address
comparable topics as the HWRs for
on-going personnel training for oil. This
includes operation and maintenance of
the facility and equipment, discharge
procedures, and how to carry out the
SPCC Plan.

A generator must prepare an SPCC Plan
if it meets the specified applicability
criteria (e.g., a non-transportation-related
facility with aboveground oil storage
capacity of more than 1,320 gallons that
could reasonably be expected to
discharge petroleum-based solvents to
navigable waters or adjoining shorelines
in quantities that may be harmful).

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

HMTA (Hazardous Materials Transportation): A generator would be subject to regulation under the
HMTA (including the personnel training requirements as applicable) if it transported, or offered for
transportation, a DOT hazardous material, i.e., a material that: (1) is listed in the Table in 49 CFR
172.101 (e.g., compounds), (2) is listed in the Appendices to the Table in 49 CFR 172.101, or (3)
meets one or more of the hazard classifications (e.g., flammable liquid).

49 CFR Part 172 provides that all RCRA hazardous wastes are DOT hazardous materials, as
specified. A HSM excluded from the definition of solid waste is neither a solid nor hazardous waste;
therefore, it would not qualify as a DOT hazardous material on the basis of being a hazardous waste.
Rather, an excluded material would qualify as a DOT hazardous material if it is otherwise listed in
49 CFR Part 172 (e.g., as a compound or element) or meets a hazard class. It is possible that some
excluded materials will not qualify as a DOT hazardous material. This includes material that is not
listed and does not meet any hazard class.

A generator that employs ""hazmat employees" must provide initial and recurrent training. A hazmat
employee is a person who is involved in the transportation of DOT hazardous materials as specified
(e.g., loading, preparation for transportation, operation of a transportation vehicle). The training
must cover general awareness/familiarization, function-specific training, safety, security awareness,
and in-depth security. In particular, the safety training must include emergency response information
(i.e., information that can be used in the mitigation of an incident involving hazardous materials,
such as health hazards, risks of fire/explosions, methods for handling fires/spills). (49 CFR 172,
Subpart H)

Generators under the TBE that employ
hazmat employees must train them on a
recurrent basis as required by 49 CFR
Part 172, Subpart H. The training must
address function-specific, safety and
emergency response topics, among other
things. These topics are generally
comparable to the topics required by the
HWRs for LQG and SQG training as
they pertain to transportation-related
activities.

Generators whose employees are not
involved in transportation activities
(e.g., because they do not make off-site
shipments, contractors are used to
prepare/transport the material, or the
material is not DOT hazardous material)
would not qualify as hazmat employees
and not receive such training.

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

OSH Act (Process Safety Management): A generator that has a process (e.g., use, storage, handling)
which involves a "highly hazardous chemical" at or above specified quantity must provide initial and
refresher training of personnel involved in operating a process (e.g., job-related operating
procedures, health hazards, emergency operations, evacuations). (29 CFR 1910.119)

The Process Safety Management
provisions require initial and refresher
training on topics related to job-related
operations and emergencies. These
topics are generally comparable to the
topics required by the HWRs for LQG
and SQG training.

A generator must comply with the
Process Safety Management provisions
if it meets the specified applicability
criteria (e.g., a generator that
accumulates a highly hazardous
chemical onsite above its threshold
quantity).

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

OSH Act (Hazardous Waste Operations and Emergency Response
(HAZWOPER')): Generators must have an emergency response
program if it is required by EPA or state to have its employees
engage in emergency response or if it directs its employees to
engage in emergency response. The program must include training
on emergency response (e.g., elements of the response plan,
standard operating procedures, and procedures for handling
emergency incidents). These provisions apply to hazardous waste
generators and TSDFs only. (29 CFR 1910.120(p)(8))

29 CFR 1910.120(p)(8) does
not apply to sites that are not
hazardous waste generators or
TSDFs.

Under the TBE, generators that do not
otherwise qualify as a hazardous waste
generator would not be subject to 29
CFR 1910.120(p)(8). 29 CFR
1910.120(p)(8) applies only to hazardous
waste generators and TSDFs.

On the other hand, generators under the
exclusion that continue to be LQGs or
SQGs under the HWRs would be subject
to 29 CFR 1910.120(p)(8). Some of the
training topics under the 29 CFR
1910.120(p)(8) could be relevant to the
excluded material. These provisions
require training on operating and
emergency procedures. These topics are
generally comparable to the topics
required by the HWRs for SQG training.
However, these provisions do not require
recurrent training, as do the HWRs for
LQG training. Therefore, they are not
comparable to the HWRs for LQG
training.

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)): A facility is
required to establish an emergency response program if it has employees who are responsible for
emergency response operations for releases of or substantial threats of releases of hazardous
substances (including hazardous waste) without regard to the location of the hazard (e.g., anywhere
at the facility). The facility's program must provide initial and recurrent training as relevant to
personnel responsibilities (e.g., first responder, on scene incident commander). This includes, for
example, hazard detection, responsibilities for emergency response, and safety. (29 CFR
1910.120(q))

The HAZWOPER regulations require
initial and recurrent training on hazard
detection, emergency response, and
safety, among other things. These topics
are comparable to the topics required by
the HWRs for LQG and SQG training, as
it relates specifically to emergency
response personnel. A generator must
comply with the HAZWOPER
regulations if it meets the specified
applicability criteria (e.g., a generator
that has employees responsible for
responding to on-site releases regardless
of location).

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)





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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

OSH Act (Hazard Communication): Employers must provide information to their employees about
any chemical which is a physical or health hazard to which they are exposed, by means of a hazard
communication program, labels and other forms of warning, material safety data sheets, and
information and training. Employees must be informed of operations in their work area where
hazardous chemicals are present, among other things. Employee training must include methods and
observations for detecting releases, hazards in the work area, and measures employees can take to
protect themselves (e.g., emergency procedures). (29 CFR 1910.1200)

The Hazard Communication Standard
(HazCom) requires familiarization and
training on emergency recognition,
hazards, and protective measures, which
is comparable to the topics of HWR
training for SQGs. However, they are
somewhat less rigorous than the HWR
training requirements for LQGs. There
is no schedule for follow-up training
under HazCom. Therefore, HazCom
training is not comparable to the HWRs
for LQG training.

A generator must comply with these
regulations for any chemicals which
could pose a physical or health hazard in
the work place, except for hazardous
waste. Generators would be subject to
these requirements for their excluded
materials, as well as other chemicals that
are not hazardous waste (e.g., chemical
products).

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

7. Reporting and Recordkeeping

HWRs: Reporting to EPA on waste management activities:

•	Notification (40 CFR 262.12)

•	Biennial report for LQGs only (40 CFR 262.41)

•	Exception report (40 CFR 262.42)

HWRs: Recordkeeping for three years (40 CFR 262.40)

TBE: Reporting on HSM

activities:

•	Initial and biennial
notifications (40 CFR
260.42)

•	Records of reasonable
efforts if requested (40
CFR 261.4(a)(24)(v)(C))

TBE: Recordkeeping for three

years:

•	Records of reasonable
efforts (40 CFR
261.4(a)(24)(v)(C))

•	Records of off-site
shipments and
confirmations of receipt
(40 CFR

261,4(a)(24)(v)(D) and
(E))

The HWRs and TBE have comparable
requirements for initial and biennial
submittals in regard to frequency and
types of information submitted.

However, the TBE biennial notification
requirement applies to generators
regardless of size. The HWRs" biennial
reporting requirement applies only to
LQGs.

The TBE does not require exception
reporting or recordkeeping.

The TBE includes records of reasonable
efforts performed by the generator to
ensure that reclamation is legitimate and
the excluded material will be managed in
a protective manner. This is not required
by the HWRs.

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

8. Off-site Transportation

HWRs: Shipments must be manifested (40 CFR 262, Subpart B)
and comply with DOT requirements for packing, labeling,
marking, and placarding. (40 CFR 262.30-.33)

TBE: Recordkeeping of off-
site shipments and
confirmations of receipt (40
CFR 261,4(a)(24)(v)(D)) and
compliance with DOT packing
requirements (40 CFR
261.4(a)(24)(ii))

The HWRs and TBE are comparable in
regard to packing requirements and
tracking of shipments from generator to
reclaimer. Refer to "Other Federal
Regulations" below for an additional
discussion.

Other Federal Regulations:

HMTA: A generator would be subject to regulations under the HMTA if it transported, or offered for
transportation, a DOT hazardous material, i.e., a material that: (1) is listed in the Table in 49 CFR
172.101 (e.g., compounds), (2) is listed in the Appendices to the Table in 49 CFR172.101, or (3)
meets one or more of the hazard classifications (e.g., flammable liquid).

RCRA hazardous wastes are DOT hazardous materials because they are listed in 49 CFR Part 172.
A HSM excluded from the definition of solid waste is neither a solid nor hazardous waste; therefore,
it would not qualify as a DOT hazardous material on the basis of being a hazardous waste. Rather,
an excluded material would qualify as a DOT hazardous material if it is otherwise listed in 49 CFR
Part 172 (e.g., as a compound or element) or meets a hazard classification. It is possible that some
excluded materials will not qualify as a DOT hazardous material. This includes a HSM that is not
listed and does not meet any hazard class.

Shipments of DOT hazardous materials (including hazardous waste) must comply with applicable
transportation provisions. This includes, for example, the regulations for shipping papers (or
manifest), packing, labeling, marking, and placarding (49 CFR Parts 171-180), as well as
requirements for driving and parking (49 CFR Part 397).

Excluded materials under the TBE that
qualify as a DOT hazardous material
would be subject to transportation
requirements comparable to hazardous
waste. (See the above requirement for
off-site tracking.)

Note that some excluded materials may
not qualify as a DOT hazardous material.
They would not need to be transported in
accordance with the regulations under
the HMTA.

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and
Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal
Regulations: Hazardous Waste Generators

DSW Transfer-Based
Exclusion (TBE) and Other
Federal Regulations:
Hazardous Secondary
Material (HSM) Generators

Notes (e.g., issues regarding
applicability, comments on
comparability)

Large Quantity Generators (LQGs)

Small Quantity
Generators (SQGs)

9. Exports

HWRs: Reporting under 40 CFR Part 262, Subpart E or H:

•	Perform notice and consent

•	Submit annual report

•	Keep records

TBE: Reporting under 40 CFR
261.4(a)(25):

•	Perform notice and
consent

•	Submit annual report

•	Keep records

The HWRs and TBE include comparable
requirements for notice and consent,
annual reporting, and recordkeeping for
exports.

11. Enforcement and Compliance

HWRs: EPA's National Program
Manager (NPM) Guidance for Fiscal
Year 2010 provides that the EPA
Regions and states must annually
inspect at least 20% of the LQG
universe, so that the entire universe is
inspected in five years.

HWRs: No comparable
guidance.

TBE: No comparable
guidance.



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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

1. Legitimate Recycling

HWRs: EPA has issued policy statements to clarify
legitimate recycling (e.g., in Federal Register
notices). In addition, respondents in an
enforcement action who raise a claim that a certain
material is not a solid waste must demonstrate that
there is a known market or disposition for the
material and that they meet the terms of the
exclusion or exemption, as specified. (40 CFR
261.2(f))

TBE: Reclamation of the material must
be legitimate, as specified at 40
CFR260.43 (40 CFR 261,4(a)(24)(iv)).
40 CFR 260.43 spells out the legitimacy
criteria that must be met. Facility must
perform reasonable efforts to ensure
proper and legitimate recycling by
reclaimer, as specified (40 CFR
261.4(a)(24)(v)(B)).

EPA has set forth consistent criteria on legitimate
recycling under the HWR and the current DSW
exclusions. The current DSW exclusions codifies these
criteria, which provides greater clarity and enforceability.
In addition, a generator's reasonable efforts under the
TBE reinforce the criteria and encourage compliance by
reclaimers.

2. Containment

HWRs: Facility must meet storage design and
operating standards for hazardous waste
management units (e.g., containment, inspections)
(40 CFR Part 264, Subparts I-L and DD)

TBE: Facility must manage material in a
manner that is at least as protective as that
employed for analogous raw material and
must be contained (40 CFR
261,4(a)(24)(vi)(D))

Both the HWRs and TBE require containment of HSM in
the unit. The HWRs prescribe design, operating, and
other standards for containment, whereas the TBE does
not. As such, the TBE allows greater flexibility in how
HSMs can be managed and contained. This could result
in more or less effective containment than the HWRs,
depending on the containment methods used by facilities
under the exclusion. In addition, prescriptive
requirements may be more conducive to inspection and
enforcement, which could help to prevent a release.

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

3. Air Emissions

HWRs: Facility must meet air emission standards
for storage (40 CFR Part 264, Subparts AA-CC)
and recycling (40 CFR Part 264, Subparts AA and
BB)

TBE: Facility must manage material in a
manner that is at least as protective as that
employed for analogous raw material and
must contained (40 CFR
261,4(a)(24)(vi)(D))

Both the HWRs and TBE require containment of HSM in
the unit. The HWRs prescribe design, operating, and
other standards for containment, whereas the TBE does
not. As such, the TBE allows greater flexibility in how
HSMs can be managed and contained. This could result
in more or less effective containment than the HWRs,
depending on the containment methods used by facilities
under the exclusion. In addition, see "Other Federal
Regulations" below for additional discussion.

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

Other Federal Regulations:

CAA: The states and EPA issue operating permits to certain "major" stationary sources of
hazardous air pollutants (HAPs) under 40 CFR Parts 70 and 71. A major source is a source that
emits more than 10 tons per year (TPY) of any single HAP or more than 25 TPY of HAPs in
total. A limited number of smaller sources (e.g., "area" sources) also may be required to obtain a
permit under the federal program.

In addition, EPA has established technical standards for the control of air emissions from
stationary sources, which permit writers include in a permit to control emissions as appropriate.
Some of these standards could address air emissions from process vents, equipment leaks, tanks,
and other units. Potentially applicable standards can be found in various parts of 40 CFR, such

as:

•	Part 60: "Standards of Performance for New Stationary Sources (NSPS)/' This part
regulates emissions from stationary sources of criteria pollutants for which EPA has
established National Ambient Air Quality Standards (NAAQS); and

•	Part 63: "National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source
Categories." This part regulates emissions of hazardous air pollutants (HAPs) from source
categories.

These parts set forth design, operating, monitoring, testing, and/or recordkeeping standards, as
specified.

The federal CAA permitting and technical standards could
potentially address air emissions from process vents,
equipment leaks, and/or storage units at some of the
facilities operating under the TBE. These CAA standards
include comparable types of controls as the HWRs, e.g.,
design, operating, and monitoring. However, the CAA
permitting and technical standards under the federal
program would not apply to facilities that:

•	Have emissions below specified thresholds (e.g., emit
less than 10 TPY of any single HAP or 25 TPY of
HAPs in total); or

•	Do not meet other applicability criteria (e.g., are not in
a regulated industry).

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

4. Emergency Preparedness and Response

HWRs: Facilities must:

• Have emergency equipment (e.g., alarms, fire
protection);

• Designate an emergency coordinator; and

• Have an emergency plan to address any release
or other emergency, and emergency procedures
for:

- Notifying on-site and off-site personnel;

- Controlling the emergency

(e.g., identifying, assessing and containing
the release); and

- Taking other actions if specified
(e.g., ensuring proper management of
recovered material). (40 CFR Part 264,
Subpart C and D)

TBE: No comparable provisions.

The TBE does not include provisions on emergency
preparedness and response. However, materials under the
TBE that are no longer contained in a unit (i.e., released)
and not immediately recovered would no longer be
excluded. They would need to be cleaned up and be
subject to RCRA Subtitle C regulation if hazardous,
including the HWR preparedness and response
requirements, as applicable.

In addition, see "Other Federal Regulations" below for
additional discussion.

A-65

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

Other Federal Regulations:

CAA (Chemical Accident Prevention) : A facility that is a stationary source that has more than a
threshold quantity of a "regulated substance" in a process (e.g., storage) must develop and
implement a risk management program, including a Risk Management Plan (RMP). Facilities
with a process subject to Program 2 or 3 (e.g., a process that has had an accidental release within
the past five years with off-site consequences as specified) must prepare an emergency response
program that includes an emergency plan (e.g., procedures for notifying off-site parties,
providing medical treatment, responding to an accidental release), emergency response
equipment, and personnel training.

However, a facility whose employees will not respond to the release need not prepare an
emergency response program if it makes alternative arrangements. It must either be included in
its community emergency response plan or coordinate response actions with the local fire
department. There also must be a mechanism for notifying emergency responders.

Note that the Chemical Accident Prevention provisions list 140 toxic and flammable regulated
substances subject to regulation, with threshold quantities ranging from 500 to 20,000 pounds.
(40 CFRPart 68.)

The Chemical Accident Prevention provisions for an
emergency response program set forth generally
comparable elements as the HWRs for facility
preparedness and prevention (e.g., an emergency plan,
emergency equipment, and coordination with off-site
responders).

The provisions for alternative arrangements are not
comparable to the HWRs for facilities. They do not
require emergency equipment, an emergency plan, or
basic efforts by on-site personnel to control the
emergency (e.g., extinguishing a fire).

Note that a facility would be subject to the Chemical
Accident Prevention provisions if it has more than a
threshold quantity of a 40 CFR Part 68-regulated
substance in a process (e.g., storage). Only a subset of
these facilities (e.g., those subject to Program 2 or 3)
would be required to have an emergency response or
evacuation plan.

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

CERCLA EPCRA (Emergency Notification):

•	A facility must immediately notify the National Response Center (NRC) of a release of a
CERCLA hazardous substance (including hazardous waste) equal to or exceeding its
reportable quantity in any 24-hour period. (40 CFR Part 302)

•	A facility must immediately notify the NRC and local/state officials of a release of a
reportable quantity of any extremely hazardous substance (EHS) or CERCLA hazardous
substance (including hazardous waste). (40 CFR Part 355)

These CERCLA/EPCRA provisions require notification
to off-site personnel as do the HWRs. These notification
provisions could effectively address some emergencies
(e.g., if local responders respond immediately and control
the emergency, such as local fire or hazmat personnel).

However, they do not require emergency equipment, on-
site coordination, or basic efforts to control an emergency
(e.g., containing and cleaning up the release). Therefore,
these provisions are not comparable to the HWRs for
preparedness and response.

A-67

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

CWA (Oil Pollution Prevention): A facility that is a "non-transportation-related facility" that
could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in
harmful quantities and that meets other applicability criteria must perform emergency planning
and response for oil discharges, including a Spill Prevention, Control, and Countermeasure
(SPCC) Plan. The SPCC Plan must address such elements as discharge prevention measures;
countermeasures for discharge discovery, response, and cleanup; personnel responsibilities (e.g.,
for addressing discharges); and plans and procedures for responding to discharges. (40 CFR Part
112)

The SPCC requirements set forth generally comparable
elements as the HWRs for emergency preparedness and
response for oil discharges. This includes emergency
equipment, personnel responsibilities for addressing
discharges, training, and emergency plans/procedures
(e.g., countermeasures for discharge response and
cleanup, notification to off-site agencies/personnel).

A facility must prepare an SPCC Plan if it meets specified
applicability criteria (e.g., anon-transportation-related
facility with aboveground oil storage capacity of more
than 1,320 gallons that could reasonably be expected to
discharge petroleum-based solvents to navigable waters or
adjoining shorelines in quantities that may be harmful).
These criteria would not apply to certain types of facilities
(e.g., facilities that are not near navigable waters, do not
store oil-related substances, or meet minimum storage
capacity thresholds).

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

OSH Act (Process Safety Management): A facility that has a process (e.g., use, storage,
handling) which involves a "highly hazardous chemical" at or above the specified quantity must
have an evacuation plan for the entire plant addressing evacuation procedures, alarm systems,
personnel responsibilities, evacuation training, off-site notification, and procedures to be
followed by facility personnel who remain to operate critical equipment before evacuation. The
facility also would need to handle small releases. Highly hazardous chemicals include toxic and
reactive highly hazardous chemicals which present a potential for a catastrophic event at or
above the threshold quantity. (29 CFR 1910.38 and 1910.119)

The Process Safety Management (PSM) provisions
require generally comparable elements as the HWRs for
facility preparedness and response. The evacuation plan
must include on-site response coordination, off-site
notification, alarms, and handling of small releases.
However, the PSM provisions are not generally
comparable to the HWR requirements for facility
preparedness and response. The PSM provisions do not
require a plan for the facility to control/contain the
emergency.

A facility must comply with these regulations if it meets
the specified applicability criteria (e.g., if it accumulates a
highly hazardous chemical onsite above its threshold
quantity). 29 CFR 1910.119, Appendix A, lists
approximately 140 toxic and reactive highly hazardous
chemicals subject to regulation.

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

OSH Act (Hazardous Waste Operations and
Emergency Response (HAZWOPER)): Permitted
and interim-status TSDFs are required to have a
safety and health program designed to identify,
evaluate and control safety and health hazards for
the purpose of employee protection, to provide for
emergency response, and to address other elements
as specified (e.g., material handling program,
training). It also must have an emergency response
program, including the development of an
emergency response plan (e.g., personnel roles,
emergency alerting and response, emergency
equipment), training for emergency response
employees, and procedures for handling emergency
incidents (e.g., alarms). (29 CFR 1910.120(p))
Facilities must have an emergency response
program if it is required by EPA or state to have its
employees engage in emergency response or if it
directs its employees to engage in emergency
response. The program must include an emergency
response plan (e.g., personnel roles, coordination
with outside parties, emergency alerting and
response, emergency equipment), training for
emergency response employees, and procedures for
handling emergency incidents (e.g., alarms). These
provisions apply to hazardous waste generators and
TSDFs only. These provisions are not applicable if

29 CFR 1910.120(p) does not apply to
sites that are not permitted or interim-
status TSDFs.

Under the TBE, facilities that do not otherwise qualify as
a permitted or interim-status TSDF would not be subject
to 29 CFR 1910.120(p). However, some facilities under
the exclusion may nonetheless be subject to a permit or
interim status because of their management of hazardous
waste and be subject to 29 CFR 1910.120(p). Portions of
the emergency response program under 29 CFR
1910.120(p) could apply to excluded materials at such a
site (e.g., availability of emergency response equipment,
such as absorbent, if needed).

Note that the emergency response requirements under 29
CFR 1910.120(p) are comparable to the requirements at
29 CFR 1910.120(q), which are presented below.

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

all workers are evacuated. (29 CFR
1910.120(p)(8))

OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)): A facility is
required to establish an emergency response program if it has employees who are responsible for
emergency response operations for releases of, or substantial threats of releases of, hazardous
substances (including hazardous waste) without regard to the location of the hazard (e.g.,
anywhere at the facility), such as designated response employees. The program must include an
emergency response plan (e.g., personnel roles, emergency equipment, and coordination with
outside parties, emergency alerting and response), training for emergency response employees,
and procedures for handling emergency incidents. (29 CFR 1910.120(q))

If the facility will evacuate employees and will not allow employees to assist in response, it need
not prepare an emergency response plan. It must prepare an evacuation plan for the entire plant.
The plan must address evacuation procedures, alarm systems, personnel responsibilities,
evacuation training, off-site notification, and procedures to be followed by facility personnel
who remain to operate critical equipment before evacuation. (29 CFR 1910.38 and 1910.120(q))

The HAZWOPER regulations require generally
comparable elements as the HWRs for preparedness and
response. This includes, for example, an emergency
response plan, emergency equipment, and on-site
coordination of emergency responses. However, the
evacuation plan is not comparable to the HWR
requirements. The plan does not include sufficient
procedures for the facility to address (e.g., control)
emergency.

Note that 29 CFR 1910.120(q) would not apply to
facilities under the TBE unless they have on-site response
personnel, as specified.

OSH Act (Hazard Communication) : Facilities must provide information to their employees
about any chemical (except hazardous waste) which is a physical or health hazard to which they
are exposed, by means of a hazard communication program, labels and other forms of warning,
material safety data sheets, and information and training (e.g., hazards detection, emergency
procedures). Hazardous wastes are exempt from these provisions. (29 CFR 1910.1200).

A facility under the TBE would be subject to the Hazard
Communication Standard (HazCom) for any excluded
material and other chemicals that pose a physical or health
hazard. (A TSDF managing hazardous waste would not
be subject to 29 CFR 1910.1200 for its hazardous waste,
but for non-waste chemicals.)

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

such, these provisions are not comparable to the HWR
requirements for preparedness and response.

5. Security

HWRs: Prevention of unauthorized entry. (40 CFR
264.14)

TBE: No comparable provisions.

Facilities under the TBE would not be required to prevent
unauthorized entry, as is the case under the HWRs.

6. Personnel Training

HWRs: Personnel training on emergency response
and job duties must be conducted. At a minimum,
this must include training on emergency
procedures. Facilities must provide recurrent
training. (40 CFR 264.16)

TBE: No comparable provisions.

The TBE does not include provisions on personnel
training. However, some facilities under the exclusion
may nonetheless be subject to a permit or interim-status
standards because of their hazardous waste management
activities. Portions of the HWR personnel training may
be relevant to handling the excluded materials (e.g.,
familiarization on chemical hazards). In addition, see
"Other Federal Regulations" below for additional
discussion.

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

Other Federal Regulations:

CAA (Chemical Accident Prevention) : A facility that is a stationary source that has more than a
threshold quantity of a "regulated substance" in a process (e.g., storage) must develop and
implement a risk management program, including a Risk Management Plan (RMP).

Facilities with a process eligible for Program 1 (e.g., has not had accidental release of a regulated
substance within the past five years with off-site consequences as specified) are not required to
provide training. Facilities with a process subject to Program 2 or 3 (e.g., has had accidental
release of a regulated substance from a process within the past five years with off-site
consequences as specified) must provide recurring personnel training on operations and
emergency procedures. (40 CFR Part 68)

The Chemical Accident Prevention provisions require
facilities in Program 2 and 3 to provide recurring
personnel training on job operations and emergency
procedures. These topics are generally comparable to
those required by the HWRs for facility training.

A facility would be subject to the Chemical Accident
Prevention provisions if it has more than a threshold
quantity of a 40 CFR Part 68-regulated substance in a
process (e.g., storage). Note that only a subset of these
facilities would need to provide training (i.e., facilities in
Program 1 are exempt from training requirements). Note
that 40 CFR Part 68 lists 140 toxic and flammable
regulated substances, with threshold quantities ranging
from 500 to 20,000 pounds.

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

CWA (Oil Pollution Prevention): A facility that is a "non-transportation-related facility" that
could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in
harmful quantities and that meets other applicability criteria must perform emergency planning
and response for oil discharges, including a Spill Prevention, Control, and Countermeasure
(SPCC) Plan. The Plan must provide for personnel training on topics such as operation and
maintenance of facility and equipment to prevent discharges, discharge procedure protocols, and
elements of the Plan. (40 CFR Part 112)

A facility's SPCC Plan would address comparable topics
as the HWRs for ongoing personnel training for oil. This
includes operation and maintenance of the facility and
equipment, discharge procedures, and how to carry out the
SPCC Plan.

A facility must prepare an SPCC Plan if it meets the
specified applicability criteria (e.g., a non-transportation-
related facility with aboveground oil storage capacity of
more than 1,320 gallons that could reasonably be
expected to discharge petroleum-based solvents to
navigable waters or adjoining shorelines in quantities that
may be harmful).

OSH Act (Process Safety Management): A facility that has a process (e.g., use, storage,
handling) which involves a "highly hazardous chemical" at or above the specified quantity must
provide initial and refresher training of personnel involved in operating a process (e.g., job-
related operating procedures, health hazards, emergency operations, evacuations). (29 CFR
1910.119)

The PSM provisions require initial and refresher training
on topics related to job-related operations and
emergencies. These topics are generally comparable to
the topics required by the HWRs for LQG and SQG
training.

A facility must comply with these regulations if it meets
the specified applicability criteria (e.g., a facility that
accumulates a highly hazardous chemical onsite above its
threshold quantity).

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

OSH Act (Hazardous Waste Operations and
Emergency Response (HAZWOPER)): Facilities
must have an emergency response program if it is
required by EPA or state to have its employees
engage in emergency response or if it directs its
employees to engage in emergency response. The
program must include, among other things, training
on job duties and emergency response (e.g.,
elements of the response plan, procedures for
handling emergency incidents). Training on job
duties must be recurrent training. These provisions
apply to hazardous waste TSDFs only. (29 CFR
1910.120(p))

29 CFR 1910.120(p) does not apply to
facilities that are not hazardous waste
TSDFs.

Facilities that are not subject to a permit or interim status
would not be subject to 29 CFR 1910.120(p)(8).

However, facilities under the exclusion may continue to
manage hazardous waste under a permit or interim status
and be subject to 29 CFR 1910.120(p). Some of the
training topics under the 29 CFR 1910.120(p) could be
relevant to the excluded material. These provisions
require training on job duties and emergency procedures.
These topics are generally comparable to the topics
required by the HWRs. However, these provisions do not
require recurrent training on emergency response, as do
the HWRs for facilities. Therefore, they are not
comparable to the HWR training requirements.

OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)) : A facility is
required to establish an emergency response program if it has employees who are responsible for
emergency response operations for releases of, or substantial threats of releases of, hazardous
substances (including hazardous waste) without regard to the location of the hazard (e.g.,
anywhere at the facility). The facility's program must provide initial and recurrent training as
relevant to personnel responsibilities (e.g., first responder, on scene incident commander). This
includes, for example, hazard detection, responsibilities for emergency response, and safety. (29
CFR 1910.120(q))

The HAZWOPER regulations require initial and recurrent
training on hazard detection, emergency response, and
safety, among other things. These topics are comparable
to the topics required by the HWRs for facilities, as it
relates specifically to emergency response personnel. A
facility must comply with these regulations if it meets the
specified applicability criteria (e.g., a facility that has
employees responsible for responding to on-site releases
regardless of location).

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

OSH Act (Hazard Communication): Employers must provide information to their employees
about any chemical which is a physical or health hazard to which they are exposed, by means of
a hazard communication program, labels and other forms of warning, material safety data sheets,
and information and training. Employees must be informed of operations in their work area
where hazardous chemicals are present, among other things. Employee training must include
methods and observations for detecting releases, hazards in the work area, and measures
employees can take to protect themselves (e.g., emergency procedures). (29 CFR 1910.1200)

The Hazard Communication Standard (HazCom) requires
familiarization and training on emergency recognition,
hazards, and protective measures. These provisions less
rigorous than the HWR training requirements for
facilities. There is no schedule for follow-up training
under HazCom. Therefore, HazCom training is not
comparable to the HWR training requirements.

A facility must comply with these regulations for any
chemicals which could pose a physical or health hazard in
the work place, except for hazardous waste. Facilities
under the TBE would be subject to these requirements for
their excluded materials, as well as other chemicals that
are not hazardous waste (e.g., chemical products).

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

7. Reporting and Recordkeeping

HWRs: Reporting to EPA:

•	Notification (40 CFR 264.11)

•	Biennial report (40 CFR 264.75)

•	Manifesting reports (40 CFR 264.72 and
264.76)

HWRs: Operating record (40 CFR 264.73)

TBE: Initial and biennial notification
(40 CFR 260.42) and recordkeeping of all
shipments received onsite and received
onsite and sent offsite. (40 CFR
261,4(a)(24)(vi)(A))

The HWR and TBE have comparable requirements for
initial and biennial submittals in regard to frequency and
types of information submitted.

The TBE does not require recordkeeping comparable to
an operating record.

8. Financial Assurance

HWRs: Financial assurance must be obtained. (40
CFR Part 264, Subpart H)

TBE: Financial assurance must be
obtained. (40 CFR261.4(a)(24)(vi)(F))

The HWR and TBE include comparable requirements for
financial assurance.

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

10. Requirement for a Permit

HWRs: RCRA permit is required for storage. (40
CFR Part 270)

TBE: Facility must either obtain RCRA
permit and manage HSMs in the
permitted units (40 CFR Part 270) or must
comply with TBE conditions and pass an
audit by the generator, who makes
reasonable efforts to ensure their HSM
will be safely and legitimately managed.
(40 CFR 261,4(a)(24)(v)(B))

The RCRA permit and TBE share some key similarities

and differences, e.g.:

Similarities

• RCRA permit and TBE impose requirements on
facilities to ensure protective operation (e.g., RCRA
permit conditions, TBE conditions);

• RCRA permit and TBE rely on similar processes for
compliance assurance (e.g., state inspections and
reviews of facility submittals). Whereas a state may
inspect TSDFs more often than TBE facilities, the TBE
requires generator audits to supplement state's
compliance oversight and assure compliance.

• RCRA permit and TBE both require financial
assurance for closure and sudden and non-sudden
occurrences.

Differences

• RCRA permit can be revoked or denied to prevent
facility operation. Under the TBE, generator audit
does not result in denial of ability to operate. Rather,
generators must not send materials to a facility that
fails an audit, essentially denying it the ability to
manage the materials under the exclusion.

• States have lead role in administering the RCRA
permitting and enforcement process. Under the TBE,

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)





states and generators both have lead roles to evaluate
facility compliance.

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

11. Public Involvement in Permit Process

HWRs: Facility must undergo RCRA permitting
process, which includes public involvement
(e.g., public notice and comment for draft permit
decision; public hearing if requested). (40 CFR
Part 270 and 124)

TBE: Facility must either undergo RCRA
permitting process, including public
involvement, or be subject to generator
audits. Generator audits do not involve
the general public.

The TBE is not comparable to the HWRs for public
involvement. Under the HWRs, a facility must obtain a
permit to store HSMs. The RCRA permitting process
includes public involvement. Under the TBE, a permit is
not needed for storage of excluded materials. As a result,
the facility could operate and store the materials under the
TBE without public involvement.

In addition, see "Other Federal Regulations" below for
additional discussion.

Other Federal Regulations:

Facilities managing HSMs may be subject to other permitting programs that include public
involvement. Examples include the Clean Air Act (CAA) operating permitting program and
Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permitting
program.

Facilities under the TBE may be subject to the CAA,
NPDES, and/or other permitting programs. If so, the
public may have an opportunity to comment on aspects of
their draft permit that relate to management of the
excluded material. For example, a draft CAA operating
permit may include requirements related to the control of
air emissions from storage tanks holding excluded
materials. The public could comment on these aspects of
the proposed permit.

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and
Other Federal Regulations: Hazardous Waste
Storage Facilities

DSW Transfer-Based Exclusion (TBE)

and Other Federal Regulations:
Hazardous Secondary Material (HSM)
Intermediate and Reclamation
Facilities

Notes (e.g., issues regarding applicability, comments
on comparability)

12. EPA/State Oversight and Enforcement

HWRs: RCRA section 3007(c) requires annual
inspections of federal TSDFs. RCRA section
3007(d) requires annual inspections of state and
local TSDFs. RCRA section 3007(e) requires that
other TSDFs be inspected no less than every two
years.

EPA's National Program Manager (NPM)

Guidance for Fiscal Year 2010 establishes
performance expectations and activities related to
the TSDF universe for the EPA Regions and states:

• Inspect at least once every two years each
operating TSDF; and

• Annually inspect each TSDF operated by states
or local governments (for Regions only).

The HWRs include prescriptive standards for
facilities, including the requirement for a permit,
which could facilitate inspections and enforcement
actions.

TBE: For RCRA-permitted facilities,
requirements would be the same.

For unpermitted DSW facilities, no
comparable requirements.

The TBE does not include prescriptive
standards, but performance based
requirements.

It may be more difficult for regulators and facilities to
inspect for compliance under the TBE because it does not
spell out prescriptive standards. This differs from the
HWRs, which lay out prescriptive standards.

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5. Summary of Federal Regulations

This section summarizes the federal regulations that are compared and discussed in this
Appendix. These include the following:

5.1	Resource Conservation and Recovery Act (RCRA) Hazardous Waste Regulations

5.1.1	Hazardous Waste Generator Standards

5.1.2	Hazardous Waste Storage Standards

5.2	Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste
(DSW) Exclusions

5.2.1	Generator-Controlled Exclusion

5.2.2	Transfer-Based Exclusion

5.3	Clean Air Act (CAA)

5.3.1	CAA Title V Air Quality Permitting Process

5.3.2	CAA Standards for Area Sources Not Subject to Title V Permit

5.3.3	Chemical Accident Prevention Provisions

5.4	Clean Water Act (CWA) - Oil Pollution Prevention

5.5	Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) - Release Notification

5.6	Emergency Planning and Community Right-to-Know Act (EPCRA) - Release
Notification

5.7	Hazardous Materials Transportation Act of 1975 (HMTA)

5.7.1	Overview and Applicability

5.7.2	Hazardous Materials Regulations

5.7.3	Transportation of Hazardous Materials; Driving and Parking Rules

5.8	Occupational Safety and Health Act (OSH Act)

5.8.1	Process Safety Management of Highly Hazardous Chemicals

5.8.2	Hazardous Waste Operations and Emergency Response

5.8.3	Hazard Communication

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5.1 Resource Conservation and Recovery Act (RCRA) Hazardous Waste
Regulations

Subtitle C of the Resource Conservation and Recovery Act (RCRA), as amended, authorizes
EPA to develop and implement a national hazardous waste regulatory program. EPA has
established hazardous regulations at 40 CFR Parts 260 through 279. Following is a summary of
some of the regulations applicable to hazardous waste generators and storage facilities.

5.1.1 Hazardous Waste Generator Standards (40 CFR Part 262)

A hazardous waste generator is any person, by site, whose act or process produces hazardous
waste or whose act first causes a hazardous waste to become subject to regulation. Generators
are divided into three categories based on the quantity of waste they produce during the month:

•	A large quantity generator (LQG) is a site that generates 1,000 kilogram (kg) or more of
hazardous waste in a calendar month, more than 1 kg of acute hazardous waste in a
calendar month, or more than 100 kg of any residue, soil, waste or other debris resulting
from the cleanup of any acute hazardous waste. (261.5(e) and 262.34(a))

•	A small quantity generator (SQG) is a site that generates greater than 100 kg but less than
1,000 kg of hazardous waste in a calendar month. (262.34(d))

•	A conditionally exempt small quantity generator (CESQG) is a site that generates 100 kg
or less of hazardous waste in a calendar month, 1 kg or less of acute hazardous waste in a
calendar month, or 100 kg or less of any residue, soil, waste or other debris resulting
from the cleanup of any acute hazardous waste. (261.5(a))

LQGs and SQGs must comply with the standards of 40 CFR Part 262, as applicable. Following
is a summary of some of the generator standards.

Legitimate Recycling

EPA has issued policy statements to clarify legitimate recycling under the RCRA hazardous
waste program. In particular, EPA issued a memorandum on April 26, 1989, that consolidated
preamble statements concerning legitimate recycling that had been articulated previously into a
list of criteria to be considered in evaluating legitimacy [OSWER Directive 9441.1989(19)].

This memorandum has been a primary source of guidance for the regulated community and for
implementing agencies in distinguishing between legitimate and sham recycling.

As explained in the memorandum, a legitimacy determination involves evaluating case-specific
information to determine whether or not a secondary material being recycled is in effect being
used as a commodity, rather than as a waste. The memorandum identified six criteria to be
considered in evaluating this fundamental question, explaining that each recycling scenario is
likely to require a case-specific evaluation. The memorandum further explained that, depending
on the case-specific facts and circumstances, certain criteria may weigh more heavily than others
in making legitimacy determinations.

In addition, 40 CFR 261.2(f) provides that respondents in an enforcement action who raise a
claim that a certain material is not a solid waste must demonstrate that there is a known market
or disposition for the material and that they meet the terms of the exclusion or exemption, as
specified.

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Storage Time Limit

Generators must comply with the storage time limits at 40 CFR 262.34, as specified:

• LQGs may accumulate hazardous waste onsite for 90 days or less without a permit or
interim status, provided that specified standards are met. (262.34(a))

• SQGs may accumulate hazardous waste onsite for 180 days or less without a permit or
interim status, provided that the quantity of waste accumulated onsite never exceeds
6,000 kg and other standards are met, as specified. If the SQG's waste must be
transported 200 miles or more for off-site treatment, storage, or disposal, it may
accumulate the hazardous waste onsite for 270 days or less without a permit or interim
status, provided that specified standards are met. (262.34(d) and (e))

Containment

40 CFR 262.34(a) and (d) provide that LQGs and SQGs may accumulate their hazardous waste
in containers and tanks in accordance with 40 CFR Part 265, Subparts I and J, respectively. In
addition, LQGs may accumulate their hazardous waste in containment buildings in accordance
with 40 CFR Part 265, Subpart DD. The purpose of these standards is to contain the waste in the
unit, among other things. Section 5.2 of this Appendix gives examples of some of these
standards.

Air Emission Standards

40 CFR 262.34(a) requires LQGs to comply with the air emission standards for containers and
tanks at 40 CFR Part 265, Subparts AA, BB, and CC, as applicable. SQGs are not subject to
these subparts. Section 5.2 of this Appendix summarizes the Subpart AA through CC
requirements.

Emergency Preparedness and Response

Emergency Equipment. 40 CFR 262.34(a) and (d) require LQGs and SQGs to comply with the
preparedness and prevention requirements of 40 CFR Part 265, Subpart C. Subpart C requires
that they be equipped with, test, and maintain emergency equipment, including internal and
external communications and alarm systems, fire control equipment, and water, if needed for the
hazards posed by waste handled at the facility.

Emergency Plan and Response. 40 CFR 262.34(a) requires LQGs to comply with the
contingency plan and emergency procedures of 40 CFR Part 265, Subpart D. Subpart D requires
that they designate an emergency coordinator and have a contingency plan designed to minimize
hazards to human health or the environment from fires, explosions, or any unplanned sudden or
non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface
water. The emergency coordinator must carry out the following procedures whenever there is a
fire, release, and explosion:

• Notify on-site and off-site personnel/agencies as specified;

• Identify, assess, and control releases, fires or explosions and related hazards;

• Take other actions as specified (e.g., ensure treatment, storage, or disposal of recovered
waste).

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40 CFR 262.34(d) requires SQGs to designate an emergency coordinator and post emergency
information next to the telephone (e.g., location of fire extinguisher). In the event of a fire,
explosion or other release, the emergency coordinator must notify appropriate off-site
personnel/agencies and control/cleanup to the fire, release or other emergency (e.g., contain the
flow of hazardous waste).

Personnel Training

40 CFR 262.34(a) requires LQGs to comply with the personnel training requirements of 40 CFR
265.16. LQGs must provide initial training and annual review, which teach facility personnel to
perform their duties in a way that ensures the facility's compliance with applicable RCRA
requirements. It must ensure, at a minimum, that personnel are able to respond effectively to
emergencies. Specified records must be kept.

40 CFR 262.34(d) requires SQGs to ensure that all employees are thoroughly familiar with
proper waste handling and emergency procedures relevant to their responsibilities during normal
facility operations and emergencies.

Reporting and Recordkeeping

Notification. Under 40 CFR 262.12, a generator must not treat, store, dispose of, transport, or
offer for transportation, hazardous waste without having received an EPA identification (ID)
number from EPA. The generator may obtain an ID number by submitting a RCRA Subtitle C
Site Identification Form (EPA Form 8700-12) to EPA.

Biennial Report. 40 CFR 262.41 requires LQGs to prepare and submit a Biennial Report to
EPA by March 1 of each even numbered year. The Biennial Report must be submitted on EPA
Form 8700-13A/B and include information about the generator, hazardous wastes generated, on-
site management, and off-site shipments. SQGs are not required to submit a Biennial Report.

Exception Report. Under 40 CFR 262.42, a generator must submit an Exception Report to EPA
if has not received a copy of the manifest from the designated facility within 45 days (for LQGs)
or 60 days (for SQGs) of the date the waste was accepted by the initial transporter. The
Exception Report must explain the generator's efforts to locate the waste and the results of those
efforts.

Recordkeeping. 40 CFR 262.40 requires generators to retain the following documents for three
years:

• Manifests;

• Biennial Report (LQGs only); and

• Results of waste analyses, tests, and other determinations.

Off-Site Transportation

Manifest System. Under 40 CFR Part 262, Subpart B, generators must prepare a hazardous
waste manifest for all off-site shipments, give it to initial the transporter, and retain a copy. The
transporter must ensure that the manifest accompanies the shipment to the designated facility and
retain a copy. The designated facility must note discrepancies, retain a copy and send a copy
back to the generator to confirm receipt.

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U.S. Department of Transportation (DOT) Requirements. 40 CFR 262.30 through 262.33
require generators to comply with the following DOT requirements for the waste before it is
transported offsite:

• Packaging requirements at 49 CFR Parts 173, 178, and 179; and

• Labeling, marking, and placarding requirements at 49 CFR Part 172.

Exports

Under 40 CFR Part 262, Subparts E and H, a primary exporter must provide notice to EPA of its
intent to export hazardous waste. The shipment cannot take place until the receiving country
consents (e.g., tacit or written) to the shipment. The primary exporter must comply with the
requirements for use of a tracking document (e.g., manifest), as specified. In addition, exports to
countries in the Organization for Economic Cooperation and Development (OECD) must occur
under the conditions of a contract, as specified. The primary exporter must file an annual report
by March 1 of each year to EPA, summarizing the types, quantities, frequency, and ultimate
disposition of all hazardous waste exported. The primary exporter must keep a copy of specified
documents (e.g., each notification, annual report).

Enforcement and Compliance

EPA's National Program Manager (NPM) Guidance for Fiscal Year 2010 establishes
performance expectations and activities related to the LQG universe for the EPA Regions and
states. It requires that they annually inspect at least 20% of the LQG universe, so that the entire
universe is inspected in five years unless approval to deviate from this requirement is approved.51

5.1.2 Hazardous Waste Storage Standards (40 CFR Parts 264 and 265)

A facility that treats, stores of disposes of hazardous waste must comply with the technical
requirements of 40 CFR Part 264 or 265. Part 264 establishes requirements for treatment,
storage or disposal facilities (TSDFs) that have received a RCRA permit under Part 270. Part
265 establishes requirements for TSDFs that are under interim status until either a RCRA permit
is issued or closure and post-closure responsibilities are fulfilled. Following is a summary of
some of the requirements applicable to facilities that store hazardous waste.

Legitimate Recycling

Section 5.1.1 of this Appendix summarizes the requirements and policy related to the legitimate
recycling of hazardous waste.

Containment

Facilities must store their hazardous waste in containers, tanks, surface impoundments, waste
piles, or containment buildings in accordance with 40 CFR Part 264 or 265, Subparts I, J, K, L,
or DD, respectively. The purpose of these standards is to contain the waste, among other things.
Following are examples of standards for the design, operation, inspection, and closure/post-
closure of these units.

Design Standards

51 -pY 2010 Office of Enforcement and Compliance Assurance (OECA) National Program Manager (NPM)
Guidance April 23, 2009." See page 44.

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•	Liners and leachate collection and removal systems

•	Air emission controls

•	Other control measures (e.g., dikes, run-on/run-off systems)

Operating Standards

•	Controls and practices to prevent spills and overflows (e.g., maintenance of sufficient
freeboard in uncovered tanks)

•	Controls to prevent wind dispersal of particulate matter

•	Special procedures for storing ignitable, reactive waste, and incompatible waste (e.g.,
waste segregation)

Monitoring and Inspection Standards

•	Periodic inspections to detect leaks and ensure the unit is in good working order (e.g.,
at least weekly for containers)

•	Periodic monitoring of leakage rates from surface impoundments and waste piles
Closure and Post-Closure Care Standards

•	Removal or decontamination of all waste residues, contaminated containment system
components, contaminated soils, and structures/equipment contaminated with waste

•	Elimination of free liquids

•	Performance of post-closure care, if applicable (e.g., maintenance and monitoring)

Air Emission Standards

EPA has established air emission standards at 40 CFR Parts 264 and 265, Subparts AA, BB, and
CC. They apply to LQG and TSDF containers, tanks, and other units as specified. They are
summarized below.

Air Emission Standards for Process Vents at 40 CFR Parts 264 and 265, Subpart AA

Parts 264 and 265, Subpart AA applies to process vents associated with distillation, fractionation,
thin-film evaporation, solvent extraction, or air or steam stripping operations that manage
hazardous wastes with organic concentrations of at least 10 parts per million by weight (ppmw),
if these operations are conducted in specified units (e.g., units subject to permitting
requirements). Facilities must design, operate, monitor, and maintain their process vents to
either (1) reduce total organic emissions from all affected process vents at the facility below
specified levels or (2) reduce, by use of a control device, total organic emissions from all
affected process vents at the facility by 95 weight percent.

Air Emission Standards for Equipment Leaks at 40 CFR Parts 264 and 265, Subpart BB

Parts 264 and 265, Subpart BB applies to equipment that contains or contacts hazardous wastes
with organic concentrations of at least 10 percent by weight that are managed in specified unit
types (e.g., units subject to permitting requirements). Facilities must comply with the design,
operation, inspection, monitoring, testing, maintenance, and recordkeeping standards for
specified types of equipment (e.g., pumps, compressors, pressure relief devices).

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Air Emission Standards for Tanks, Surface Impoundments, and Containers at 40 CFR
Parts 264 and 265, Subpart CC

Parts 264 and 265, Subpart CC applies to tanks, surface impoundments, and containers, except as
otherwise specified.

Tanks. Facilities must control air pollutant emissions from tanks in accordance with Tank Level
1 or Tank Level 2 controls, as specified (e.g., installing a fixed roof).

Surface Impoundments. Facilities must control air pollutant emissions from surface
impoundments by using either a floating membrane cover or a cover that is vented through a
closed-vent system to a control device, as specified.

Containers. Facilities must control air pollutant emissions from containers in accordance with
Container Level 1, 2, or 3 standards (e.g., use of containers that meet applicable DOT
regulations).

Emergency Preparedness and Response

Emergency Equipment. Facilities must comply with the preparedness and prevention
requirements of Subpart C of 40 CFR Parts 264 and 265. Subpart C requires that they be
equipped with, test, and maintain emergency equipment, including internal and external
communications and alarm systems, fire control equipment, and water, if needed for the hazards
posed by waste handled at the facility.

Emergency Plan and Response. Facilities must comply with the contingency plan and
emergency procedures of Subpart D of 40 CFR Parts 264 and 265. Subpart D requires that they
designate an emergency coordinator and have a contingency plan designed to minimize hazards
to human health or the environment from fires, explosions, or any unplanned sudden or non-
sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water.
The emergency coordinator must carry out procedures for responding to fires, releases, and
explosions, including:

• Notify on-site and off-site personnel/agencies as specified;

• Identify, assess, and control releases, fires or explosions and related hazards;

• Taking other actions as specified (e.g., ensure treatment, storage, or disposal of recovered
waste).

Security

Facilities must prevent the unknowing entry, and minimize the possibility for the unauthorized
entry, of persons or livestock onto the active portion of the facility, unless specified otherwise, as
required by 40 CFR 264.14 and 265.14. This must include a surveillance system or barrier
(e.g., fence).

Personnel Training

Facilities must comply with the personnel training requirements of 40 CFR 264.16 or 265.16.
Facilities must provide initial training and annual review, which teach facility personnel to
perform their duties in a way that ensures the facility's compliance with applicable requirements.
It must ensure, at a minimum, that personnel are able to respond effectively to emergencies.
Specified records must be kept.

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Reporting and Recordkeeping

Notification. Under 40 CFR 264.11 and 265.11, every facility must apply to EPA for an EPA
identification number in accordance with the EPA notification procedures.

Biennial Report. 40 CFR 264.75 and 265.75 require facilities to prepare and submit a single
copy of a biennial report to EPA by March 1 of each even numbered year. The report must
include information about the facility, wastes received (e.g., from offsite), management and
disposal methods.

Discrepancy Report. 40 CFR 264.71 and 265.71 require a facility that receives an off-site
shipment to note discrepancies between the waste and manifest. The facility must attempt to
reconcile the discrepancy. If it cannot, it must submit a Discrepancy Report to EPA within 15
days, explaining the discrepancy and efforts to resolve it.

Recordkeeping. 40 CFR 264.73 and 265.73 require facilities to record and maintain the
following information in an operating record (e.g., waste and unit descriptions, emergency
incidents, inspection/monitoring results, notices and certifications).

Financial Assurance

40 CFR Parts 264 and 265, Subpart H requires facilities to have and maintain a cost estimate for
closure and, if applicable, post-closure. They also must obtain financial assurance for closure
and, if applicable, post-closure.

In addition, facilities must maintain liability coverage for sudden accidental occurrences of at
least $1 million per occurrence with an annual aggregate of at least $2 million. Facilities with a
surface impoundment, landfill, land treatment facility, or disposal miscellaneous unit as specified
also must maintain liability coverage for non-sudden accidental occurrences in an amount of at
least $3 million per occurrence with an annual aggregate of at least $6 million.

Subpart H identifies a variety of financial instruments for these purposes (e.g., trust fund, surety
bond).

Requirement for a Permit

40 CFR Part 270 requires a facility owner/operator to obtain a permit to treat, store or dispose of
hazardous waste. Owner/operators must have a permit during the active life (including closure
period) of their hazardous waste management units. Owner/operators of surface impoundments,
landfills, land treatment units, and waste pile units also must have post-closure permits, unless
they demonstrate closure by removal or decontamination s specified. The permit specifies the
requirements to which the facility is subject.

Public Involvement in the Permit Process

The RCRA permitting process is laid out at 40 CFR Parts 124 and 270. Following its basic
elements, including public involvement methods:

•	Applicant holds a public meeting with the public prior to submitting the Part B RCRA
permit application to EPA (e.g., to explain its facility).

•	The facility submits a Part A and Part B permit application to EPA or authorized state
permitting agency that contains the information required in Part 270, Subpart B.

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•	Permitting agency will issue a public notice that an application has been received and
where it is available for public review. The agency will review the application for
completeness and send a written notification to the applicant indicating whether the
application is complete.

•	Once an application is complete, the agency will tentatively decide whether to issue or
deny the permit. If it decides to issue a permit, it will prepare a draft permit that contains
requirements and conditions as specified. If it decides to deny the permit, it will issue a
notice of intent to deny.

•	The permitting agency will provide public notice of its intent to issue or deny the permit,
along with a fact sheet. The notice must be circulated in specified media (e.g., local
papers, etc.) and allow at least 45 days for public comment.

•	The permitting agency will hold a public hearing whenever it receives written notice of
opposition to a draft permit and a request for a hearing, as specified. Whenever possible,
it will schedule a hearing at a location convenient to the nearest population center to the
proposed facility.

•	After the close of the public comment period, the agency will either issue or deny the
permit. It also must prepare a written response to comments and make it publicly
available.

EPA/State Oversight and Enforcement

RCRA section 3007(c) requires annual inspections of federal TSDFs. RCRA section 3007(d)
requires annual inspections of state and local TSDFs. RCRA section 3007(e) requires that other
TSDFs be inspected no less than every 2 years.

EPA's National Program Manager (NPM) Guidance for Fiscal Year 2010 establishes
performance expectations and activities related to the TSDF universe for the EPA Regions and
states. It requires that they inspect at least once every two years each operating TSDF, as
required under RCRA section 3007(e), i.e., 50% of the TSDF universe annually. It also requires
the EPA Regions to annually inspect each TSDF operated by states or local governments as
required under RCRA section 3007(d).52

5.2 Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste
(DSW) Exclusions

5.2.1 Generator-Controlled Exclusion (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23))

The GCE excludes from the definition of solid waste those HSMs which remain under the
control of the generator when legitimately reclaimed. The exclusion can be claimed for
materials that are:

•	Generated and reclaimed at the generating facility;

52 "FY 2010 Office of Enforcement and Compliance Assurance (OECA) National Program Manager (NPM)
Guidance April 23, 2009." See pages 43 and 45.

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• Generated and reclaimed at different facilities, if the reclaiming facility is controlled by
the generator or if both the generating facility and the reclaiming facility are controlled
by a person as defined in 40 CFR 260.10; and

• Generated pursuant to a written contract between a tolling contractor and a toll
manufacturer and is reclaimed by the tolling contractor. A tolling contractor means a
person who arranges for the production of a product or intermediate made from specified
unused materials through a written contract with a toll manufacturer. Toll manufacturer
means a person who produces a product or intermediate made from specified unused
materials pursuant to a written contract with a tolling contractor.

The conditions and requirements of the exclusion are summarized below.

Legitimate Recycling

The GCE requires the reclamation of HSM to be legitimate, as specified under 40 CFR 260.43.

40 CFR 260.43(a) provides that persons regulated under 40 CFR 260.34 or claiming to be
excluded from hazardous waste regulation under sections 261.2(a)(2)(ii), 261.4(a)(23), (24), or
(25) because they are engaged in reclamation must be able to demonstrate that the recycling is
legitimate. Hazardous secondary material that is not legitimately recycled is discarded material
and is a solid waste. In determining if their recycling is legitimate, persons must address the
requirements of 40 CFR 260.43(b) and must consider the requirements of 40 CFR 260.43(c).

40 CFR 260.43(b) provides that legitimate recycling must involve a hazardous secondary
material that provides a useful contribution to the recycling process or to a product or
intermediate of the recycling process, and the recycling process must produce a valuable product
or intermediate as specified.

40 CFR 260.43(c) identifies factors that must be considered in making a determination as to the
overall legitimacy of a specific recycling activity. These factors relate to how the generator and
reclaimer should manage the material (e.g., as a valuable commodity) and how closely the
product of the recycling process resembles analogous products. In making a determination that a
hazardous secondary material is legitimately recycled, persons must evaluate all factors and
consider legitimacy as a whole. If, after careful evaluation of these other considerations, one or
both of the factors are not met, then this fact may be an indication that the material is not
legitimately recycled. However, the factors do not have to be met for the recycling to be
considered legitimate. In evaluating the extent to which these factors are met and in determining
whether a process that does not meet one or both of these factors is still legitimate, persons can
consider other relevant factors.

Storage Time Limit

The GCE requires that the material not be speculatively accumulated, as defined in 40 CFR
261.1(c)(8). 40 CFR 261.1(c)(8) provides that a material is "accumulated speculatively" if it is
accumulated before being recycled. A material is not accumulated speculatively, however, if the
person accumulating it can show that the material is potentially recyclable and has a feasible
means of being recycled; and that—during the calendar year (commencing on January 1)—the
amount of material that is recycled, or transferred to a different site for recycling, equals at least
75 percent by weight or volume of the amount of that material accumulated at the beginning of
the period.

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Containment

The GCE requires that the material be contained.

Air Emission Standards

The GCE requires that the material be contained.

Emergency Preparedness and Response

The GCE does not require emergency preparedness and response.

Personnel Training

The GCE does not require personnel training.

Reporting and Recordkeeping

The GCE requires notification to EPA in accordance with 40 CFR 260.42. 40 CFR 260.42
requires hazardous secondary material generators, tolling contractors, toll manufacturers,
reclaimers, and intermediate facilities managing hazardous secondary materials which are
excluded from regulation under 40 CFR 261.2(a)(2)(ii), 261.4(a)(23), (24), or (25) to send a
notification prior to operating under the exclusion(s) and by March 1 of each even numbered
year thereafter to EPA using EPA Form 8700-12. The form must include the following types of
information:

•	Information about the claimant and exclusion being claimed;

•	Description of the materials to be managed under the exclusion (e.g., quantity); and

•	Description of management methods.

Off-Site Transportation

The GCE does not include provisions for off-site transportation.

Exports

The GCE does not include provisions for exporting material outside the U.S. The exclusion
requires that the material be generated and reclaimed within the U.S. or its territories.

5.2.2 Transfer-Based Exclusion (40 CFR 261.4(a)(24) and (25))

The TBE excludes from the definition of solid waste those HSMs that are generated and
subsequently transferred to another company or person for the purpose of legitimate reclamation.
The conditions and requirements of the exclusion are summarized below.

5.2.2.1 Generators (40 CFR 261.4(a)(24) and (25))

Legitimate Recycling

40 CFR 261.4(a)(24)(iv) requires that the reclamation of the material be legitimate, as specified
under 40 CFR 260.43. Section5.1.1 of this Appendix on RCRA summarizes the requirements
for legitimate recycling under 40 CFR 260.43.

In addition, 40 CFR 261,4(a)(24)(v)(B) requires that, prior to arranging for transport of HSMs to
a reclamation facility (and any intermediate facility) where the management of the hazardous
secondary materials is not addressed under a RCRA Part B permit or interim status standards, the
generator must make reasonable efforts to ensure that each reclaimer intends to properly and

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legitimately reclaim the HSM and not discard it, and that each facility will manage the HSM in a
manner that is protective of human health and the environment. Reasonable efforts must be
repeated at a minimum of every three years. 40 CFR 261.4(a)(24)(v)(B) sets forth a series of
questions about the facility that the generator must affirmatively answer.

Storage Time Limit

40 CFR 261.4(a)(24)(i) provides that the material must not be speculatively accumulated, as
defined in 40 CFR 261.1(c)(8). Section 5.1..1 of this Appendix on RCRA summarizes the
speculative accumulation provisions of 40 CFR 261.1(c)(8).

Containment

40 CFR 261.4(a)(24)(v)(A) requires that the material be contained.

Air Emission Standards

40 CFR 261.4(a)(24)(v)(A) requires that the material be contained.

Emergency Preparedness and Response

The TBE does not include provisions for emergency preparedness and response.

Personnel Training

The TBE does not require personnel training.

Reporting and Recordkeeping

Reporting. The TBE requires notification to EPA in accordance with 40 CFR 260.42. Section5.
2.1 of this Appendix on RCRA summarizes the notification requirement and types of information
that must be submitted.

The generator also must make documentation and certification of its reasonable efforts available
upon request by a regulatory authority within 72 hours, or within a longer period of time as
specified by the regulatory authority, as required by 40 CFR 261.4(a)(24)(v)(C).

Recordkeeping. 40 CFR 261,4(a)(24)(v)(C) requires the generator to maintain for a minimum
of three years documentation and certification that reasonable efforts were made for each
reclamation facility and, if applicable, intermediate facility where the management of the HSMs
is not addressed under a RCRA Part B permit or interim status standards prior to transferring
HSM. The certification statement must include specified information.

40 CFR 261.4(a)(24)(v)(D) and (E) require the generator to maintain at the generating facility
for no less than three years records of all off-site shipments of HSMs and confirmations of
receipt from each reclaimer and, if applicable, each intermediate facility for all off-site shipments
of HSMs.

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Off-Site Transportation

40 CFR 261.4(a)(24)(ii) requires the material not be handled by any person or facility other than
the HSM generator, the transporter, an intermediate facility or a reclaimer, and, while in
transport, not be stored for more than 10 days at a transfer facility, and be packaged according to
applicable DOT regulations at 49 CFR Parts 173, 178, and 179 while in transport.

40 CFR 261.4(a)(24)(v)(D) requires the generator to maintain at the generating facility for no
less than three years records of all off-site shipments of HSMs. For each shipment, these records
must, at a minimum, contain the following information:

•	Name of the transporter and date of the shipment;

•	Name and address of each reclaimer and, if applicable, the name and address of each
intermediate facility to which the HSM was sent; and

•	The type and quantity of HSM in the shipment.

40 CFR 261.4(a)(24)(v)(E) requires the generator to maintain at the generating facility for no
less than three years confirmations of receipt from each reclaimer and, if applicable, each
intermediate facility for all off-site shipments of HSMs. Confirmations of receipt must include
the following information:

•	Name and address of the reclaimer (or intermediate facility);

•	Type and quantity of the HSMs received; and

•	Date which the HSMs were received.

This requirement may be satisfied by routine business records (e.g., financial records, bills of
lading, copies of DOT shipping papers, or electronic confirmations of receipt).

Exports

40 CFR 261.4(a)(25) provides that HSM that is exported from the U.S. and reclaimed at a
reclamation facility located in a foreign country is not a solid waste, provided that the HSM
generator complies with the applicable requirements of 40 CFR 261.4(a)(24)(i)-(v) (excepting
paragraph (a)(24)(v)(B)(2) for foreign reclaimers and foreign intermediate facilities). The
generator also must comply with 40 CFR 261.4(a)(25).

Under 40 CFR 261,4(a)(25), the generator must notify EPA of an intended export before the
HSM is scheduled to leave the U.S., as specified. The export of HSM is prohibited unless the
receiving country consents (written or tacit) to the intended export. When the receiving country
consents to the receipt of the export, EPA will send an Acknowledgment of Consent (AOC) to
the generator. An AOC must accompany the shipment. The generator must file an annual report
with EPA no later than March 1 of each year, summarizing the types, quantities, frequency and
destination of all materials exported. The generator must keep a copy of the AOC and comply
with the notification requirements of 40 CFR 260.42. Section 5.2.1 of this Appendix on RCRA
summarizes the types of information that must be submitted under 40 CFR 260.42.

5.2.2.2 Intermediate and Reclamation Facilities (40 CFR 261.4(a)(24))

Legitimate Recycling

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40 CFR 261.4(a)(24)(iv) requires that the reclamation of the material be legitimate, as specified
under 40 CFR 260.43. In addition, generators must make reasonable efforts as applicable to
ensure that each facility intends to properly and legitimately reclaim the HSM and not discard it,
and that each facility will manage the HSM in a manner that is protective of human health and
the environment. Section 5.1.2 of this Appendix summarizes the requirements for legitimate
recycling.

Containment

40 CFR 261.4(a)(24)(vi)(D) requires the reclaimer and intermediate facility to manage the HSM
in a manner that is at least as protective as that employed for analogous raw material and must be
contained. An "analogous raw material" is a raw material for which a HSM is a substitute and
serves the same function and has similar physical and chemical properties as the HSM.

Air Emission Standards

Section 5.1.2 of this Appendix on RCRA summarizes the requirement to contain the material.

Emergency Preparedness and Response
The TBE does not include requirements for emergency preparedness and response.

Security

The TBE does not include requirements for security.

Personnel Training

The TBE does not require personnel training.

Reporting and Recordkeeping

Reporting. The TBE requires notification to EPA in accordance with 40 CFR 260.42. Section
5.1.2 of this Appendix on RCRA summarizes the notification requirement and types of
information that must be submitted.

Recordkeeping. 40 CFR 261,4(a)(24)(vi)(A) requires the reclaimer and intermediate facility to
maintain at their facility for no less than three years records of all shipments of HSM that were
received at the facility and, if applicable, all shipments of HSMs that were received and
subsequently sent offsite from the facility for further reclamation.

Financial Assurance

40 CFR 261.4(a)(24)(vi)(F) requires the reclaimer and intermediate facility to have financial
assurance as required under Subpart H of 40 CFR Part 261.

Subpart H requires facilities to have and maintain a cost estimate for closure. They also must
obtain financial assurance for closure.

In addition, facilities must have and maintain liability coverage for sudden accidental
occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at
least $2 million. A facility with land-based units used to manage HSMs must have and maintain
liability coverage for non-sudden accidental occurrences in the amount of at least $3 million per
occurrence with an annual aggregate of at least $6 million.

Subpart H identifies a variety of financial instruments for these purposes (e.g., trust fund, surety
bond).

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Requirement for a Permit

The TBE does not require the intermediate or reclamation facility to obtain a permit. However,
if the facility does not have a permit, it must undergo reasonable efforts by generators that intend
to send their material to it, as required by 40 CFR 261.4(a)(24)(v)(B). The generators must
affirmatively answer all of the following questions for each reclamation facility and any
intermediate facility:

•	Does the available information indicate that the reclamation process is legitimate
pursuant to 40 CFR 260.43?

•	Does the publicly available information indicate that the reclamation facility and any
intermediate facility that is used by the HSM generator notified the appropriate
authorities of HSMs reclamation activities pursuant to 40 CFR 260.42 and have they
notified the appropriate authorities that the financial assurance condition is satisfied per
40 CFR 261,4(a)(24)(vi)(F)?

•	Does publicly available information indicate that the reclamation facility or any
intermediate facility that is used by the HSM generator has not had any formal
enforcement actions taken against the facility in the previous three years for violations of
the RCRA hazardous waste regulations and has not been classified as a significant non-
complier with RCRA Subtitle C? If the reclamation facility or any intermediate facility
that is used by the HSM generator has had a formal enforcement action taken against the
facility in the previous three years for violations of the RCRA hazardous waste
regulations and has been classified as a significant non-complier with RCRA Subtitle C,
does the HSM generator have credible evidence that the facilities will manage the HSMs
properly?

•	Does the available information indicate that the reclamation facility and any intermediate
facility that is used by the HSM generator have the equipment and trained personnel to
safely recycle the HSM?

•	If residuals are generated from the reclamation of the excluded HSMs, does the
reclamation facility have the permits required (if any) to manage the residuals? If not,
does the reclamation facility have a contract with an appropriately permitted facility to
dispose of the residuals? If not, does the HSM generator have credible evidence that the
residuals will be managed in a manner that is protective of human health and the
environment?

Public Involvement in the Permit Process

The TBE does not include methods for public involvement.

5.3 Clean Air Act (CAA)

This section gives an overview of the Clean Air Act (CAA) regulation of emissions from
stationary sources. It also describes the CAA regulations related to chemical accident
prevention. A "stationary source" means any building, structure, facility, or installation which
emits or may emit any air pollutant (e.g., factories, manufacturing plants).

5.3.1 CAA Title V Air Quality Permitting Process

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Title V of the Clean Air Act authorizes EPA to establish minimum elements to be included in all
state and local operating permit programs and then assist the state and local governments in
developing their programs. Most Title V permits are issued by state and local permitting
authorities under 40 CFR Part 70. However, EPA also issues some Title V permits (e.g., to
sources in Indian country) under 40 CFR Part 71. The permit program involves public
participation. Draft Title V permits issued by authorized state agencies are published for public
review and comment prior to issuance of a permit.

All "major" stationary sources emitting certain air pollutants are required to obtain Title V
operating permits. A major source for hazardous air pollutants is defined as a source that emits
more than 10 tons per year of any single Hazardous Air Pollutant (HAP) or more than 25 tons
per year of HAPs in total. In addition, a limited number of area sources (i.e., sources that do not
meet the criteria for a major source) also may be required to obtain a permit under the federal
regulatory program, e.g.:

•	Hazardous waste combusters;

•	Portland cement manufacturers;

•	Mercury cell chlor-alkali plants;

•	Secondary lead smelters;

•	Carbon black production;

•	Chemical manufacturing: chromium compounds;

•	Primary copper smelting;

•	Secondary copper smelting;

•	Nonferrous metals area sources;

•	Glass manufacturing; and

•	Electric arc furnace (EAF) steelmaking facilities.

Title V operating permits contain air emissions permit limits, control requirements, and operating
requirements for regulated air emissions sources. Potentially applicable requirements that could
be included in a permit can be found in various parts of 40 CFR, such as:

•	Part 60: "Standards of Performance for New Stationary Sources (NSPS)." This part
regulates emissions from stationary sources of criteria pollutants for which EPA has
established National Ambient Air Quality Standards (NAAQS); and

•	Part 63: "National Emission Standards for Hazardous Air Pollutants (NESHAP) for
Source Categories." This part regulates emissions of hazardous air pollutants (HAPs)
from source categories.

The table below gives examples of CAA technical standards that could be included in a permit to
control air emissions. These standards could potentially apply to some facilities claiming a DSW
exclusion and address emissions from process vents, equipment leaks, and/or emissions from
tanks, surface impoundments and containers.

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Also, state agencies have the regulatory authority to issue permits to minor sources of air
emissions. Emissions thresholds for the definition of "minor source" vary among state
regulatory programs.

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Examples of Technical Standards under the Clean Air Act
Standards of Performance for New Stationary Sources at 40 CFR Part 60

Subpart Ka—Standards of Performance for Storage Vessels for Petroleum Liquids. The provisions of this
subpart apply to each petroleum liquids storage vessel which has a storage capacity greater than 151,412
liters (40,000 gallons)

Subpart Kb—Standards of Performance for Volatile Organic Liquid Storage Vessels (Including Petroleum
Liquid Storage Vessels). The provisions of this subpart apply to each volatile organic liquids storage
vessel with a capacity greater than or equal to 75 cubic meters (m3) (approx. 20,000 gallons)

Subpart VV and Subpart VVa—Standards of Performance for Equipment Leaks of VOC in the Synthetic
Organic Chemicals Manufacturing Industry. The provisions of this subpart apply to affected facilities in
the synthetic organic chemicals manufacturing industry, including production of chemical compounds as
specified. These subparts include design, operating and other standards applicable to process vents and
equipment leaks.

Subpart NNN—Standards of Performance for Volatile Organic Compound (VOC) Emissions From
Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation Operations. The provisions of
this subpart apply to distillation unit vent streams and to combinations of a distillation unit and its
associated recovery systems at facilities in the synthetic organic chemical manufacturing industry.

National Emission Standards for Hazardous Air Pollutants from Source Categories at 40 CFR Part
63

Subpart F—National Emission Standards for Organic Hazardous Air Pollutants From the Synthetic
Organic Chemical Manufacturing Industry. The provisions of this subpart apply to facilities that
manufacture as a primary product one or more of the synthetic organic chemicals listed in the subpart, as
specified.

Subpart G—National Emission Standards for Organic Hazardous Air Pollutants From the Synthetic
Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and
Wastewater. The provisions of this subpart apply to synthetic organic chemical manufacturing industry
facilities that are covered under Part 63, Subpart F (above).

Subpart H—National Emission Standards for Organic Hazardous Air Pollutants for Equipment Leaks.
The provisions of this subpart apply to synthetic organic chemical manufacturing industry facilities that
are covered under Part 63, Subpart F (above).

Subpart DD—National Emission Standards for Hazardous Air Pollutants from Off-Site Waste and
Recovery Operations. The provisions of this subpart apply to facilities that are major sources of hazardous
air pollutants and that receive "off-site materiaF' for treatment (e.g., a waste or used solvent).

Subparts OO, PP, QQ, WW - National Emission Standards for Tanks (Level 1), Containers, Surface
Impoundments, and Storage Vessels (Level 2). These subparts apply to the control of air emissions for the
specified unit types for which another subpart of Parts 60-63 references the use of these subparts for such
air emission control.

Subpart TT—National Emission Standards for Equipment Leaks—Control Level 1 and Subpart UU—
National Emission Standards for Equipment Leaks—Control Level 2. The provisions of these subparts
apply to the control of air emissions from equipment leaks for which another subpart references the use of
these subparts for such air emission control.

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5.3.2 CAA Standards for Area Sources Not Subject to Title V Permit

Area sources not subject to a Title V permit may still be subject to CAA regulation, depending
on the applicability provisions of the particular regulation. The area source would be required to
notify EPA (or the delegated state agency) typically 120 days following promulgation, whether it
is subject to the regulation. Some CAA regulations could apply to the types of facilities that
could claim a DSW exclusion. For more information on area sources and applicable regulations,
go to: http://www.epa.gov/ttn/atw/area/compilation.html.

5.3.3 Chemical Accident Prevention Provisions

The Clean Air Act authorizes requirements for owner/operators of stationary sources concerning
the prevention of accidental releases. These requirements are codified at 40 CFR Part 68,
"Chemical Accident Prevention Provisions." An owner/operator of a stationary source (e.g., a
building or plant) that has more than a threshold quantity of a regulated substance in a process
(e.g., storage) must comply with Part 68. "Regulated substances" are toxic and flammable
substances with threshold quantities listed in section 68.130.53 There are 140 regulated
substances with threshold quantities ranging from 500 to 20,000 pounds.

Part 68 requires the owner/operator of a stationary source to develop a risk management plan
(RMP) that describes the facility's risk management program. The RMP is made available to
federal, state, and local government agencies and the public. The owner/operator must develop
its risk management program in accordance with the following program requirements:

• Program 1: Processes which would not affect the public in the case of a worst-case
release and with no accidents with specified off-site consequences within the past five
years are eligible for Program 1.

• Program 2: Processes not eligible for Program 1 or subject to Program 3 are placed in
Program 2.

• Program 3: Processes not eligible for Program 1 and meeting other requirements
(e.g., they are classified in one of ten specified North American Industrial Classification
System (NAICS) codes) are placed in Program 3.

Following is a summary of the Part 68 requirements relevant to this analysis.

Emergency Preparedness and Response

Owner/operators of a stationary source with a process eligible for Program 1 must designate a
point of contact for emergency response and at least make arrangements with local response
authorities.

Owner/operators of a stationary source with a process subject to Program 2 or 3 have the option
of either developing an emergency response program or making alternative arrangements, as
follows:

1. Alternative Arrangements. Owner/operators whose employees will not respond to
accidental releases of regulated substances need not prepare an emergency response
program provided that they meet the following:

53 These regulated substances are also CERCLA hazardous substances. Facilities subject to Part 68 also would be
subject to OSHA requirements as applicable (e.g., at 29 CFR 1910.119 and 1910.120).

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•	For stationary sources with any regulated toxic substance held in a process above the
threshold quantity, the stationary source is included in the community emergency
response plan developed under 42 U.S.C. 11003 (i.e., the Emergency Planning and
Community Right-To-Know Act of 1986);

•	For stationary sources with only regulated flammable substances held in a process
above the threshold quantity, the owner or operator has coordinated response actions
with the local fire department; and

•	Appropriate mechanisms are in place to notify emergency responders when there is a
need for a response.

2. Emergency Response Program. Owner/operators subject to Program 2 or 3 that do not
make the above alternative arrangements must develop an emergency response program
for protecting human health and the environment. The emergency response program
must include an emergency response plan that includes procedures for informing the
public and local emergency response agencies about accidental releases, documentation
for administering proper first-aid and emergency medical treatment as necessary, and
procedures/measures for emergency response after an accidental release of a regulated
substance. It also must include procedures for using and maintaining emergency
response equipment, personnel training in relevant procedures, and procedures to update
the plan.

Personnel Training

Owner/operators of a stationary source with a process eligible for Program 1 are not required to
conduct personnel training. Owner/operators of a stationary source with a process subject to
Program 2 or 3 must conduct initial and refresher training for personnel that operate a process.
The training must cover specified elements (e.g., normal operations, emergency shutdown and
operations). In addition, owner/operators must train their personnel in relevant procedures under
their emergency response program (i.e., if the owner/operator develops an emergency response
program instead of making alternative arrangements, as described above).

5.4 Clean Water Act (CWA) — Oil Pollution Prevention

The Clean Water Act authorizes requirements to prevent the discharge of oil from non-
transportation-related onshore and offshore facilities into or upon the navigable waters of the
United States or adjoining shorelines and other areas as specified. These requirements are
codified at 40 CFR Part 112, "Oil Pollution Prevention."

Part 112 establishes requirements for the preparation and implementation of Spill Prevention,
Control, and Countermeasure (SPCC) Plans. SPCC Plans are designed to complement existing
laws, regulations, rules, standards, policies, and procedures pertaining to safety standards, fire
prevention, and pollution prevention rules. The purpose of an SPCC Plan is to form a
comprehensive federal/state spill prevention program that minimizes the potential for discharges.
The SPCC Plan must address all relevant spill prevention, control, and countermeasures
necessary at the specific facility.

In general, facilities subject to the SPCC requirements are non-transportation-related, have
aboveground oil storage capacity of more than 1,320 gallons and completely buried oil storage
capacity of 42,000 gallons or less, and could reasonably be expected to discharge oil to navigable

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waters or adjoining shorelines in quantities that may be harmful. "Oil" means oil of any kind or
in any form (e.g., petroleum, fuel oil, sludge, synthetic oils, mineral oils, oil refuse, or oil mixed
with wastes other than dredged spoil).

Emergency Preparedness and Response

The SPCC Plan must detail the equipment, workforce, procedures, and steps to prevent, control,
and provide adequate countermeasures to a discharge. The Plan must address specified topics,
such as:

•	Discharge prevention measures;

•	Countermeasures for discharge discovery, response, and cleanup;

•	Containment and/or diversionary structures and equipment;

•	Personnel responsibilities (e.g., for addressing discharges, off-site notifications);

•	Plans and procedures for responding to discharges.

Personnel Training

Facilities must provide train their oil-handling personnel in the operation and maintenance of
equipment to prevent discharges, discharge procedure protocols, applicable pollution control
laws and regulations, general facility operations and the contents of the facility SPCC Plan. The
facility must schedule and conduct discharge prevention briefings for its oil-handling personnel
at least once a year to assure adequate understanding of the SPCC Plan for that facility. Such
briefings must highlight and describe known discharges or failures, malfunctioning components,
and any recently developed precautionary measures.

5.5	Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) - Release Notifications

Notification requirements for releases of a reportable quantity of a hazardous substance are
authorized under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 (CERCLA) and Title III of the Superfund Amendments and Reauthorization Act of 1986
(SARA). Notification requirements are codified in 40 CFR Part 302, "Designation, Reportable
Quantities, and Notification."

Emergency Preparedness and Response

Section 302.6 requires that any person in charge of a vessel or an offshore or an onshore facility
must, as soon as he or she has knowledge of any release of a hazardous substance (including any
hazardous waste) from such vessel or facility in a quantity equal to or exceeding the reportable
quantity (RQ) determined by Part 302 in any 24-hour period, immediately notify the National
Response Center. Such releases are also subject to state and local reporting under Section 304 of
the Emergency Planning and Community Right-to-Know Act (EPCRA), also known as Title III
of SARA.

5.6	Emergency Planning and Community Right-to-Know Act (EPCRA) -
Release Notifications

Emergency planning and notification requirements for "extremely hazardous substances" (EHSs)
are authorized under the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (CERCLA) and EPCRA (also known as Title III of SARA). Emergency planning

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and notification requirements for EHSs are codified at 40 CFR 355. Part 355 is titled,
"Emergency Planning and Notification."

Emergency Preparedness and Response

Part 355 requires a facility to comply with its emergency release notification requirements if it
produces, uses, or stores a hazardous chemical and releases a reportable quantity (RQ) of any
extremely hazardous substances (EHS) or of a hazardous substance as defined by CERCLA
(including any hazardous waste) at the facility. The facility must immediately notify the
community emergency coordinator for the local emergency planning committee of any area
likely to be affected by the release as well as the State Emergency Response Commission of any
state likely to be affected by the release. The facility also must submit a follow-up notification
as soon as practicable after the release to provide updated information.

5.7 Hazardous Materials Transportation Act of 1975 (HMTA)

5.7.1 Overview and Applicability

The transportation of hazardous materials is regulated by the Hazardous Materials Transportation
Act (HMTA), which is administered by the U.S. Department of Transportation (DOT). HMTA
provides DOT with a broad mandate to regulate the transport of hazardous materials, with the
purpose of adequately protecting the U.S. against risk to life and property, which is inherent in
the commercial transportation of hazardous materials.

DOT regulations that govern the transportation of hazardous materials are applicable to any
person who transports, ships, causes to be transported or shipped, or who is involved in any way
with the manufacture or testing of hazardous materials packaging or containers. DOT
regulations set forth packaging, handling, labeling, marking, placarding, operational, and routing
standards. These regulations include, among others:

• Hazardous Materials Regulations; and

• Transportation of Hazardous Materials; Driving and Parking Rules.

Following is a summary of these standards.

5.7.2 Hazardous Materials Regulations

DOT's Hazardous Materials Regulations (HMR) are contained in 49 CFR Parts 100 through 180.
These regulations pertain to all modes of shipment (e.g., highway, air). Following is a summary
of selected regulations as relevant to this analysis.

Personnel Training

49 CFR Part 172, Subpart H requires hazmat employers to train hazmat employees to perform
duties under the HMR. Training must be refreshed periodically and training records retained by
the employer. The training must cover general awareness/familiarization, function-specific
training, safety, security awareness, and in-depth security, as specified. In particular, their
training on safety must include emergency response information (i.e., information that can be
used in the mitigation of an incident involving hazardous materials, such as health hazards, risks
of fire/explosions, methods for handling fires/spills).

A "hazmat employer" is a person who employs or uses at least one hazmat employee and who is
involved the transportation of hazardous materials as specified.

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A "hazmat" employee is a person who is employed by a hazmat employer or self-employed and
who is involved in the transportation of hazardous materials as specified (e.g., loading,
preparation for transportation, operation of a transportation vehicle).

Off-Site Transportation

49 CFR Part 171 lays out general information, regulations and definitions. It defines "hazardous
materials" as those materials designated by the Secretary of the Department of Transportation as
posing an unreasonable threat to the public and the environment. The term "hazardous
materials" includes all of the following: (1) hazardous substances, (2) hazardous wastes,
(3) marine pollutants, (4) elevated temperature material, (5) materials identified in 49 CFR
172.101, and (6) materials that meet the defining criteria for hazard classes and divisions in
contained in 49 CFR Part 173 (e.g., Class 1 explosives, Class 2 gases).

49 CFR Part 172 lists and classifies those materials that DOT has designated as hazardous
materials for purposes of transportation and prescribes the requirements for shipping papers,
package marking, labeling, and transport vehicle placarding applicable to the shipment and
transportation of those hazardous materials. Following is a summary of some of its subparts:

•	Subpart B - Table of Hazardous Materials and Special Provisions. This table
(located in 49 CFR172.101) designates the materials listed therein as hazardous materials
for the purpose of transportation of those materials. The purpose of the table is to assign
proper shipping names, class and division, and guidance for packaging and handling
requirements for hazardous materials. Note: Additional hazardous materials are listed in
Appendix A andB to 49 CFR 172.101.

•	Subpart C - Shipping Papers. The shipping document for hazardous materials must be
prepared by the shipper and contain the proper shipping name, the hazard class or
division of the material(s), ID number, and where appropriate, the packing group. No
shipper may transport a hazardous material unless it is accompanied by a shipping paper.
The shipper must certify and retain the shipping paper for two years. Carriers must check
to ensure that the material offered by the shipper is properly described, carry the shipping
paper during transportation, and retain a copy for two years.

•	Subpart D - Markings. The basic marking requirement consists of the proper shipping
name and ID number of the hazardous materials contained in a package. Markings
should be durable and not be obscured. Additional marking requirements apply
depending on the material. Shippers may not offer and carriers may not transport unless
the hazardous material markings apply to the material contained in the package.

•	Subpart E - Labeling. Anyone who offers for transportation or transports a hazardous
material must ensure that the package is properly labeled with the appropriate hazard
class or division number.

•	Subpart F - Placarding. Anyone who offers for transportation or transports a hazardous
material must comply with applicable placarding requirements. Each bulk packaging,
freight container, unit load device, transport vehicle, or rail car containing any quantity of
a hazardous material must be placarded on each side and each end with the applicable
placarding requirements (specified in 49 CFR 172.504).

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• Subpart G - Emergency Response Information. An emergency response number must
be monitored at all times during transportation and at facilities where hazardous materials
are loaded for transportation, stored incidental to transportation, or otherwise handled
during any phase of transportation. Emergency response information must appear on the
shipping paper, describing the hazards of the material and procedures to be used in
mitigation of an incident.

• Subpart I - Security Plans. Each employer must establish and implement a security
plan and train their relevant employees on the security plan.

49 CFR Parts 173 throughl80 lay out general requirements for shipments and packagings. They
also set forth requirements applicable to particular modes of transportation (e.g., rail, public
highway).

5.7.3 Transportation of Hazardous Materials; Driving and Parking Rules

49 CFR Part 397 is titled, "Transportation of Hazardous Materials, Driving and Parking Rules."
Part 397 applies to each motor carrier engaged in the transportation of hazardous materials by a
motor vehicle that must be marked or placarded under 49 CFR Part 172, as specified. These
rules apply to each officer or employee who performs supervisory duties related to the
transportation of hazardous materials and each person who operates the vehicle containing the
hazardous materials.

Off-Site Transportation

49 CFR Part 397, Subpart A provides that a motor vehicle that contains hazardous materials
other than explosive materials and which is located on a public street or highway must be
attended by its driver, unless the driver is performing duties that are incident and necessary as
operator of the vehicle. A motor vehicle which contains an explosive material must be attended
at all times by its driver or a qualified representative of the motor carrier that operates it, except
as otherwise specified. In addition, a motor vehicle that contains hazardous materials other than
explosive materials must not be parked near the traveled portion of a public street or highway. A
motor vehicle which contains explosive materials must not be parked under the circumstances
specified in the rule (e.g., near or within a tunnel).

Subpart C of Part 397 provides that, for Non-Radioactive Hazardous Materials (NRHM), motor
carriers must comply with State and Indian Tribe NRHM routing. Placarded and marked
vehicles that are not subject to NRHM routing from either a State or Indian Tribe must avoid
heavily populated areas, tunnels, and other specified areas. Deviations are allowed where no
practical alternative exists or to reach terminals, rest and fueling stops, etc. Deviations for
operating convenience are not allowed.

5.8 Occupational Safety and Health Act (OSH Act)

The Occupational Safety and Health (OSH) Act was enacted to "assure safe and healthful
working conditions for working men and women." The OSH Act establishes the Occupational
Safety and Health Administration (OSHA) at the federal level and applies to private sector
workers in the U.S. with few exceptions (e.g., the self-employed). It does not cover employees
of state and local governments, except in states that have their own occupational safety and
health plans that cover these workers. It also does not cover worker conditions that are regulated

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under worker safety or health requirements of other federal agencies. OSHA has established
occupational safety and health regulations at 29 CFR Part 1910.

5.8.1 Process Safety Management of Highly Hazardous Chemicals

OSHA established requirements for preventing or minimizing the consequences of catastrophic
releases of toxic, reactive, flammable, or explosive chemicals at 29 CFR 1910.119, "Process
Safety Management of Highly Hazardous Chemicals." This standard applies to a process
(e.g., use, storage, and handling) which involves (1) a chemical listed in Appendix A of section
1910.119 at or above the specified threshold quantity or (2) a flammable liquid or gas as defined
in 29 CFR 1910.1200(c) that is onsite in one location in a quantity of 10,000 pounds or more,
except as specified. These chemicals are referred to as "highly hazardous chemicals." Relevant
requirements are described below.

Emergency Preparedness and Response

The employer must establish and implement an evacuation plan for the entire plant. The plan
must include procedures for reporting a fire or other emergency; emergency evacuation,
including type of evacuation and exit route assignments; operating critical plant operations
before evacuation; accounting for all employees after evacuation; and performing rescue or
medical duties. In addition, the plan must include procedures for handling small releases.

Employers covered under this standard may also be subject to the hazardous waste and
emergency response provisions contained in 29 CFR 1910.120 (a), (p) and (q).

Personnel Training

The employer must provide initial and recurrent training to each employee involved in operating
a process. Employees must be trained in an overview of the process and in operating procedures
as specified (e.g., safety systems and functions). The training must include emphasis on the
specific safety and health hazards, emergency operations including shutdown, and safe work
practices applicable to the employee's job tasks. In addition, employers must train their
employees on the implementation of an evacuation plan.

5.8.2 Hazardous Waste Operations and Emergency Response (HAZWOPER)

OSHA established "Hazardous Waste Operations and Emergency Response" (HAZWOPER) at
29 CFR 1910.120. 29 CFR 1910.120(p) includes requirements that apply permitted and interim-
status treatment, storage, and disposal facilities (TSDFs). In addition, hazardous waste
generators must comply with 29 CFR 1910.120(p)(8) regarding an emergency response program,
as specified. 29 CFR 1910.120(q) includes requirements that apply to emergency response
operations for releases of, or substantial threats of releases of, hazardous substances (including
hazardous waste) without regard to the location of the hazard. The term "emergency response" a
response effort by employees from outside the immediate release area or by other designated
responders (i.e., mutual aid groups, local fire departments, etc.) to an occurrence which results,
or is likely to result, in an uncontrolled release of a hazardous substance. Responses to incidental
releases of hazardous substances where the substance can be absorbed, neutralized, or otherwise
controlled at the time of release by employees in the immediate release area, or by maintenance
personnel are not considered to be emergency responses within the scope of this standard.
Responses to releases of hazardous substances where there is no potential safety or health hazard
(i.e., fire, explosion, or chemical exposure) are not considered to be emergency responses.

A-106

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5.8.2.1 HAZWOPER Requirements at 29 CFR 1910.120(p)

29 CFR 1910.120(p) requires permitted and interim-status TSDFs to develop and implement a
safety and health program that includes specified elements (e.g., medical surveillance,
decontamination, emergency response). These provisions do not apply to hazardous waste
generators, except for emergency preparedness and response (i.e., 29 CFR1910.120(p)(8)).
Specifically, generators who are required by the EPA or state agency to have their employees
engage in emergency response or who direct their employees to engage in emergency response
must comply with the requirements for an emergency response program. Relevant requirements
are described below.

Emergency Preparedness and Response

Employers must develop and implement either an emergency response program or an evacuation
plan. Employers that develop an emergency response program must have an emergency
response plan that includes specified elements (e.g., personnel roles, emergency recognition and
prevention, personal protective equipment, emergency equipment). Such plans need not
duplicate any of the subjects fully addressed in the employer's contingency planning required by
permits, such as those issued by EPA. In addition, the employer also must follow procedures for
handling emergency incidents (e.g., off-site reporting).

Employers who will evacuate their employees from the worksite location when an emergency
occurs and who do not permit any of their employees to assist in handling the emergency are
exempt from the requirements for an emergency response program. Rather, they must establish
and implement an evacuation plan for the entire plant. The plan must include procedures for
reporting a fire or other emergency; emergency evacuation, including type of evacuation and exit
route assignments; operating critical plant operations before evacuation; accounting for all
employees after evacuation; and performing rescue or medical duties.

Personnel Training

Employers must provide initial and annual refresher training that is part of the employer's safety
and health program. The training must be designed to enable employees to perform their
assigned duties and functions in a safe and healthful manner so as not to endanger themselves or
other employees.

In addition, employers must provide training for emergency response employees. Such training
must include the elements of the emergency response plan, standard operating procedures the
employer has established for the job, the personal protective equipment to be worn and
procedures for handling emergency incidents.

5.8.2.2 HAZWOPER Requirements at 29 CFR 1910.120(q)

29 CFR 1910.120(q) sets forth requirements for emergency response programs for hazardous
substance releases. Relevant requirements are described below.

Emergency Preparedness and Response

A-107

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follow procedures for handling emergency response (e.g., personnel responsibilities), training,
medical surveillance, protective clothing, and post-emergency response operations.

Employers who will evacuate their employees from the danger area when an emergency occurs,
and who do not permit any of their employees to assist in handling the emergency are exempt
from the requirements for an emergency response program. Rather, they must establish and
implement an evacuation plan for the entire plant. The plan must include procedures for
reporting a fire or other emergency; emergency evacuation, including type of evacuation and exit
route assignments; operating critical plant operations before evacuation; accounting for all
employees after evacuation; and performing rescue or medical duties.

Personnel Training

Employers must provide initial and refresher training on emergency response. The training must
be based on the duties and function to be performed by each responder of an emergency response
organization (e.g., first responders, hazardous materials technicians). Topics to be covered by
the training differ based on an employee's duties and functions. Examples of topics include:

• An understanding of what hazardous substances are, and the risks associated with them in
an incident;

• An understanding of the potential outcomes associated with an emergency created when
hazardous substances are present;

• The ability to recognize the presence of hazardous substances in an emergency;

• The ability to identify the hazardous substances, if possible; and

• The ability to realize the need for additional resources, and to make appropriate
notifications to the communication center.

5.8.3 Hazard Communication

OSHA established the "Hazard Communication" Standard (HazCom) at 29 CFR 1910.1200.
The purpose of HazCom is to ensure that the hazards of all chemicals produced or imported are
evaluated, and that information concerning their hazards is transmitted to employers and
employees. This transmittal of information is to be accomplished by means of comprehensive
hazard communication programs, which are to include container labeling and other forms of
warning, material safety data sheets and employee training.

HazCom applies to any chemical which is known to be present in the workplace in such a
manner that employees may be exposed under normal conditions of use or in a foreseeable
emergency. The term "hazardous chemicals" means any chemical which is a physical hazard or
a health hazard. However, HazCom does not apply to RCRA hazardous waste.

Relevant requirements are described below.

Emergency Preparedness and Response

HazCom addresses emergency preparedness and response through information dissemination
and training, as described below.

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Personnel Training

Employers must provide specified information and training to employees. Specifically,
employees must be informed of the requirements of HazCom, any operations in their work area
where hazardous chemicals are present, and the location and availability of the written hazard
communication program, including the required list(s) of hazardous chemicals, and material
safety data sheets required by this section.

Employers must provide training that includes, at least:

•	Methods and observations that may be used to detect the presence or release of a
hazardous chemical in the work area (such as monitoring conducted by the employer,
continuous monitoring devices, visual appearance or odor of hazardous chemicals when
being released;

•	The physical and health hazards of the chemicals in the work area;

•	The measures employees can take to protect themselves from these hazards, including
specific procedures the employer has implemented to protect employees from exposure to
hazardous chemicals, such as appropriate work practices, emergency procedures, and
personal protective equipment to be used; and

•	The details of the hazard communication program developed by the employer.

A-109

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Appendix B: Acronyms and Abbreviations

B-l

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[Page intentionally left blank.]

B-2

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A

AFS	Air Facility System

AIAN	American Indian/Alaska Native

B

BR	Biennial Report

C

CAA	Clean Air Act

CERCLA	Comprehensive Environmental Response, Compensation and

Liability Act

CERCLIS	Comprehensive Environmental Response, Compensation and

Liability Information System

CESQG	Conditionally Exempt Small Quantity

CWA	Clean Water Act

D

DNA	Deoxyribonucleic acid

DOT	Department of Transportation

DR	Demographic Ratio

DSW	Definition of Solid Waste

E

EAF	Electric arc furnace

EHS	Extremely Hazardous Substance

EJ	Environmental Justice

EJ SEAT	Environmental Justice Smart Enforcement Assessment Tool

EJ Toolkit Toolkit for Assessing Potential Allegations of Environmental
Justices

EPA	Please see U.S. EPA

B-l

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EPCRA

FR
FRS

Emergency Planning and Community Right-to-Know Act
F

Federal Register
Facility Registry System

GCE

GIS

GM

HAP

HAZWOPER

HazCom

HMR

HMTA

HSM

HTMR

HWR

IARC
IRIS

K061

LDR
LQG

Generator-Controlled Exclusion
Geographic Information Systems
Waste Generation and Management
H

Hazardous Air Pollutant

Hazardous Waste Operations and Emergency Response
Hazard Communication Standard
Hazardous Materials Regulations
Hazardous Materials Transportation Act
Hazardous Secondary Material
High Temperature Metals Recovery
Hazardous Waste Regulation
I

International Agency for Research on Cancer
Integrated Risk Information System
K

Electric arc furnace dust
L

Land Disposal Restrictions
Large quantity generator

B-2

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N

NAAQS	National Ambient Air Quality Standards

NAICS	North American Industry Classification System

NATA	National-Scale Air Toxics Assessment

NBR	National Biennial Report

NESHAP	National Emissions Standards for Hazardous Air Pollutants

NPDES	National Pollutant Discharge Elimination System

NPL	National Priorities List

NPM	National Program Manager

NRC	National Response Center

NRHM	Non-Radioactive Hazardous Materials

NSPS	New Source Performance Standards

O

OECA	Office of Enforcement and Compliance

ORCR	Office of Resource Conservation and Recovery

OSHA	Occupational Safety and Health Administration

OSH Act	Occupational Safety and Health Act

OSWER	Office of Solid Waste and Emergency Response
P

PBE	Petition-Based Exclusion

PC	Priority Chemical

PERC	Tetrachloroethylene

POTW	Publicly Owned Treatment Works

ppm	Parts per million

ppmw	Parts per million by weight

B-3

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PR	Population ratio

PSM	Process Safety Management
R

RCRA	Resource Conservation and Recovery Act

RCRAInfo	Resource Conservation and Recovery Act Information

RIA	Regulatory Impact Analysis

RMP	Risk Management Plan

RQ	Reportable Quantities
S

SD	Standard Deviation

SF	Summary File

Site ID	Site Identification

SOCMI	Synthetic Organic Chemical Manufacturing Industry

SPCC	Spill Prevention, Control, and Countermeasure

SQG	Small quantity generators

TBE	Transfer-Based Exclusion

TPY	Tons per Year

APR	Affected Population Ratio

TSDF	Treatment, Storage, or Disposal Facility

U

U.S.	United States

U.S. EPA	United States Environmental Protection Agency

V

VOC	Volatile Organic Compound

B-4

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w

WR	Waste Received from Off-site

B-5

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Appendix C: Glossary

Air Facility
System

American Indian
Alaska Native

Contains compliance and permit data for stationary sources
regulated by EPA, state and local air pollution agencies

A Census Bureau term that refers to these entity types: American
Indian reservation, American Indian off-reservation trust land,
Oklahoma tribal statistical area, joint use area, American Indian
tribal subdivision, tribal designated statistical area, state
designated American Indian statistical area, Alaska Native
Regional Corporation, Alaska Native village, Alaska Native
village statistical area.

B

Biennial Report All generators and treatment, storage, and disposal (TSD)

facilities who handle hazardous waste are required to report to the
EPA Administrator at least once every two years. The data
collected is used to create the National Biennial Resource
Conservation and Recovery Act (RCRA) Hazardous Waste
Report. This data is processed within the RCRA Information
(RCRAInfo) database.

Block group	A statistical subdivision of a census tract. A block group (BG)

consists of all tabulation blocks whose numbers begin with the
same digit in a census tract; for example, for Census 2000, BG 3
within a census tract includes all blocks numbered between 3000
and 3999. The block group is the lowest-level geographic entity
for which the Census Bureau tabulates sample data from the
decennial census.

Census Block

An area bounded by visible and/or invisible features shown on
Census Bureau maps. A block is the smallest geographic entity
for which the Census Bureau collects and tabulates 100-percent
decennial census data.

Clean Air Act

Comprehensive federal law that regulates air emissions from
stationary and mobile sources.

Clean Water Act

Establishes the basic structure for regulating discharges of
pollutants into the waters of the United States and regulating
quality standards for surface waters

C-l

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Comprehensive
Environmental
Response,
Compensation
and Liability Act

Comprehensive

Environmental

Response,

Compensation

and Liability

Information

System

Conditionally
Exempt Small
Quantity
Generator

Known as CERCLA or Superfund, provides a Federal
"Superfund" to clean up uncontrolled or abandoned hazardous
waste sites as well as accidents, spills, and other emergency
releases of pollutants and contaminants into the environment.

CERCLIS is EPA's inventory of abandoned, inactive, or
uncontrolled hazardous waste sites regulated under the
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA). It records information about all aspects
of hazardous waste sites from initial discovery to listing on the
National Priorities List (NPL).

Generate 100 kilograms or less per month of hazardous waste, or
1 kilogram or less per month of acutely hazardous waste

D

D001
D007

Ignitable waste
Chromium waste

D008

Lead waste

Damages

Damage Case
Facility

Definition of
Solid Waste

Definition of
Solid Waste Rule

Definition of
Solid Waste Final
Rule (2008)

The likelihood of harm or injury to property or a person resulting
in loss of value or the impairment of usefulness

Facilities that highlighted in EPA's An Assessment of
Environmental Problems Associated with Recycling of
Hazardous Secondary Materials

A solid waste is any discarded material that is not excluded under
§261.4(a) or that is not excluded by a variance granted under
§§260.30 and 260.31 or that is not excluded by a non-waste
determination under §§260.30 and 260.34.

The DSW rule creates specific conditions for recycling hazardous
secondary materials under the Resource Conservation and
Recovery Act (RCRA).

Revision of the Definition of Solid Waste under RCRA for
certain types of hazardous secondary materials being recycled

C-2

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E

EJ Toolkit

Emergency
Planning and
Community
Right-to-know

Act

Environmental
Justice

Environmental
Justice Smart
Enforcement
Assessment Tool

Toolkit for Assessing Potential Allegations of Environmental
Justices

Establishes requirements for Federal, state and local
governments, Indian Tribes, and industry regarding emergency
planning and "Community Right-to-Know" reporting on
hazardous and toxic chemicals.

The fair treatment and meaningful involvement of all people
regardless of race, color, national origin, or income with respect
to the development, implementation, and enforcement of
environmental laws, regulations, and policies.

Created by EPA's Office of Enforcement and Compliance
Assurance to serve as a consistent methodology that would enable
OECA to identify communities or areas experiencing
disproportionate environmental and public health burdens for the
purposes of enhancing and focusing OECA's enforcement and
compliance in those areas.

F003
F005
F006
F037
F1 5

Facility Registry
System

Spent non-halogenated solvents
Spent non-halogenated solvents
Wastewater treatment sludges
Petroleum refinery primary sludges
Mixture of F001-F005

FRS is a centrally managed database that identifies facilities, sites
or places subject to environmental regulations or of
environmental interest.

Generator-
Controlled
Exclusion

Materials that are generated and transferred to another company
for legitimate reclamation under specific conditions

C-3

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Geographic	A computer system for the input, storage, processing,

Information	applications development, retrieval, and maintenance of

System	information about the points, lines, and areas that represent the

streets and roads, rivers, railroads, geographic entities, and other
features on the surface of the Earth-information that previously
was available only on paper maps.

H

Hazard

Communication
Standard

Hazardous Air
Pollutant

The HCS became effective in 1986. A fundamental premise of
the HCS is that employees who may be exposed to hazardous
chemicals in the workplace have a right to know about the
hazards and how to protect themselves

HAPs are pollutants that are known or suspected to cause cancer
or other serious health effects, such as reproductive effects or
birth defects, or adverse environmental effects.

Hazardous

Materials

Regulations

Hazardous
Materials
Transportation
Act

Hazardous
Secondary
Materials

Hazardous
Waste Facilities

Hazardous
Waste

Operations and

Emergency

Response

HMRs are issued by the Pipeline and Hazardous Materials Safety
Administration and govern the transportation of hazardous
materials by highway, rail, vessel, and air. The HMR address
hazardous materials classification, packaging, hazard
communication, emergency response information and training.

Its primary objective is to provide adequate protection against the
risks to life and property inherent in the transportation of
hazardous material in commerce by improving the regulatory and
enforcement authority of the Secretary of Transportation.

The DSW rule defines hazardous secondary materials (HSM) as
those materials that would be classified as hazardous waste, if
discarded. HSMs can be stored for longer periods of time than
hazardous materials, but must meet various criteria such as 75%
of the material must be recycled each year.

Likely to recycle under the DWS Final Rule, including hazardous
waste generators producing more than a truckload (25 tons) of
recyclable hazardous secondary materials annually, and
hazardous waste recyclers

Refers to five types of hazardous waste operations conducted in
the United States under OSHA Standard 1910.120 "Hazardous
Waste Operations and Emergency Response." The standard
contains the safety requirements employers must meet in order to
conduct these operations.

C-4

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I

Integrated Risk

Information

System

K061
K088
K171
KXXX

Land Disposal
Restrictions

Large quantity
generator

National
Ambient Air
Quality
Standards

National
Emissions
Standards for
Hazardous Air
Pollutants

National
Priorities List

a human health assessment program that evaluates quantitative
and qualitative risk information on effects that may result from
exposure to environmental contaminants

K

Electric arc furnace dust
Spent potliners
Spent hydrotreating catalyst
Mixture of K waste code wastes
L

LDR program ensures that toxic constituents present in hazardous
waste are properly treated before hazardous waste is land
disposed

LQG generate 1,000 kilograms per month or more of hazardous
waste, or more than 1 kilogram per month of acutely hazardous
waste.

N

Standards established by EPA under authority of the Clean Air
Act (42 U.S.C. 7401 et seq.) that apply for outdoor air throughout
the country. Primary standards set limits to protect public health,
including the health of "sensitive" populations such as asthmatics,
children, and the elderly. Secondary standards set limits to protect
public welfare, including protection against decreased visibility,
damage to animals, crops, vegetation, and buildings.

NESHAPS are stationary source standards for hazardous air
pollutants.

The list of national priorities among the known releases or
threatened releases of hazardous substances, pollutants, or
contaminants throughout the United States and its territories. The
NPL is intended primarily to guide the EPA in determining which
sites warrant further investigation.

C-5

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National
Response Center

National-Scale
Air Toxics
Assessment

New Source

Performance

Standards

Non-hazardous
Industrial Waste
Facilities

The NRC is the sole federal point of contact for reporting all
hazardous substances and oil spills. The NRC receives all reports
of releases involving hazardous substances and oil that trigger the
federal notification requirements under several laws.

U.S. EPA developed the NATA as a state-of-the-science
screening tool for State/Local/Tribal Agencies to prioritize
pollutants, emission sources and locations of interest for further
study in order to gain a better understanding of risks.

Section 111 of the Clean Air Act authorized the EPA to develop
technology based standards which apply to specific categories of
stationary sources. These standards are found in 40 CFR Part 60.
The NSPS apply to new, modified and reconstructed affected
facilities in specific source categories such as manufacturers of
glass, cement, rubber tires and wool fiberglass.

Facilities not currently generating or managing hazardous wastes
that may choose to begin reclaiming hazardous secondary
materials under the 2008 DSW Final Rule

North American
Industry
Classification
System

Notification
Facility

The standard used by Federal statistical agencies in classifying
business establishments for the purpose of collecting, analyzing,
and publishing statistical data related to the U.S. business
economy.

Facility that has notified EPA that it will be managing hazardous
secondary materials under the 2008 DSW Final Rule

O

Occupational
Safety and
Health Act

The primary federal law which governs occupational health and
safety in the private sector and federal government in the United
States.

Petition-Based
Exclusion

Process Safety
Management

Materials that EPA or an authorized state determines to be non-
wastes through a case-by-case petition process.

The major objective of process safety management (PSM) of
highly hazardous chemicals is to prevent unwanted releases of
hazardous chemicals especially into locations that could expose
employees and others to serious hazards. An effective process
safety management program requires a systematic approach to
evaluating the whole chemical process.

C-6

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R

Resource
Conservation
and Recovery
Act

The (RCRA) gives EPA the authority to control hazardous waste
from the "cradle-to-grave." This includes the generation,
transportation, treatment, storage, and disposal of hazardous
waste. RCRA also set forth a framework for the management of
non-hazardous solid wastes.

Resource
Conservation
and Recovery
Act Information

Risk

Management
Plan (RMP)

Rural

RCRAInfo is EPA's comprehensive information system that
supports the Resource Conservation and Recovery Act (RCRA)
of 1976 and the Hazardous and Solid Waste Amendments
(HSWA) of 1984 through the tracking of events and activities
related to facilities that generate, transport, and treat, store, or
dispose of hazardous waste. RCRAInfo allows RCRA program
staff to track the notification, permit, compliance, and corrective
action activities required under RCRA.

The RMP database stores the risk management plans reported by
companies that handle, manufacture, use, or store certain
flammable or toxic substances, as required under section 112(r) of
the Clean Air Act (CAA).

All territory, population, and housing units located outside of
urbanized areas and urban clusters.

Spill Prevention,
Control, and
Countermeasure
Plan

Small Quantity
Generator

The Spill Prevention, Control, and Countermeasure (SPCC) rule
includes requirements for oil spill prevention, preparedness, and
response to prevent oil discharges to navigable waters and
adjoining shorelines. The rule requires specific facilities to
prepare, amend, and implement SPCC Plans. The SPCC rule is
part of the Oil Pollution Prevention regulation, which also
includes the Facility Response Plan (FRP) rule.

SQG generate more than 100 kilograms, but less than 1,000
kilograms, of hazardous waste per month.

Transfer-Based
Exclusion

Materials that are generated and legitimately reclaimed under the
control of the generator

C-7

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U

Urban

For Census 2000, all territory, population, and housing units in
urbanized areas and urban clusters.

Urban Cluster

A densely settled area that has a census population of 2,500 to
49,999.

Urbanized Area

A densely settled area that has a census population of at least
50,000.

Volatile Organic
Compound

VOCs are organic chemical compounds whose composition
makes it possible for them to evaporate under normal indoor
atmospheric conditions of temperature and pressure.

C-S

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Appendix D: EPA Response to Peer Review Comments

Charge
Question
No.

Comment
No.

Reviewer

Comment

EPA Response

2d

87

Henshel

Section 2.3 p 30, third paragraph down - This paragraph needs rewriting
to make it clearer. A particularly difficult sentence is sentence 3, and the
logic between sentences 3 and 4 may be faulty. If a material's reporting
quantity is lower when it is characterized as hazardous waste then if it is
characterized as non-waste, as written in sentence 3, then a smaller
quantity would be needed before it exceeds the reportable quantity as a
hazardous waste compared to as a non-waste, not a larger quantity (as
currently written in sentence 3). But this does mean that if the
implementation of the DSW results in what would otherwise be
considered hazardous waste being now considered non-waste, then
indeed more of the same material (now classified as "non-waste") would
be required to trigger reporting requirements then would have been true
if the material were classified as hazardous waste

EPA rewrote the paragraph
pertaining to the reporting of
hazardous versus non-
hazardous waste to ensure
greater clarity and consistency.

2d

88

Henshel

P 32, end of second full paragraph. A "reasonable" effort is not defined
or discussed. Without such discussion or clarification, a "reasonable"
effort remains so open to interpretation that a phone call to the foreign
facility owner and asking for assurances of safety would more than
satisfy that requirement, and yet not provide any real assurance that the
community and workers in the foreign facility would be protected from
hazardous exposures.

EPA clarified the use of the
term "reasonable effort" by
adding an explanatory
sentence.

2d

90

Henshel

As an example of a need to define terms and abbreviations, K061 is
used in the footnote on page 27 (footnote 25) without any explanation of
the meaning of the term.

EPA added a definition of the
term in parenthesis to help
clarify its meaning.

D-l

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Charge
Question
No.

Comment
No.

Reviewer

Comment

EPA Response

2d

91

Henshel

When requirements or criteria are referred to, it is important to specify
and list those requirements or criteria, in the text, a footnote, or an
inserted box. An example of such a referral to insufficiently explained
and detailed requirements are on the top of page 28. The details about
the "SQG" requirements are lacking.

EPA provided the definition
and criteria to differentiate
between a SQG and LQG.

5b

165

Ferris

What are "structural" reasons as stated in section 5.1.4?

EPA added explanatory
sentences to clarify structural
reasons that certain groups do
not participate in the decision-
making process.

6c

197

Henshel

Table numbers are not provided.

EPA inserted table numbers
for reference.

6c

200

Henshel

P 123 Multiple and Cumulative Effects - note the numbers with % above
70% (most) and above 60% (all but a few!!!) - and a cumulative
frequency chart might make a nice and very visually effective summary
of these observations.

Presentation of percentages
may be misleading given the
scope of the data.

D-2

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Charge
Question
No.

Comment
No.

Reviewer

Comment

EPA Response

ESa

34

Henshel

In addition, the last sentence on page ix (starts "In addition,...") is
unclear and needs rewriting. Similarly the last sentence on page xi
needs additional clarity.

TEPA revised the paragraph to
add clarity and increase
readability.

Ga

7

Henshel

1) A glossary, 2) Remembering to define every acronym the first time it
is used in every chapter, and in the legend for every table, 3) A list of
abbreviations and acronyms

EPA added acronym
definitions in the text and
provided a glossary and a list
of abbreviations and acronyms
in an appendix.

Gb

12

Daley

A list of acronyms would be extremely helpful.

EPA added acronym
definitions in text and provided
a glossary and a list of
abbreviations and acronyms in
an appendix.

Gb

15

Henshel

Needed improvements for clarity: As mentioned above, it would be very
helpful for the general reader to provide a Table of
Abbreviations/Acronyms and a Glossary, in addition to remembering to
follow some other basic rules of clear communication as outlined above
(Readability).

EPA added acronym
definitions in text and provided
a glossary and a list of
abbreviations and acronyms in
an appendix.

D-3

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Charge
Question
No.

Comment
No.

Reviewer

Comment

EPA Response

Ga

8

Henshel

A few diagrammatic algorithms that could help explain two complexities:
1) The regulations that apply under each condition that increases
exposure under the new 2008 DSW. This algorithm could be bilaterally
symmetrical - taking the reader through the process, and when there is
a change that occurs due to the regulations, the algorithm can identify
the regulations in play and not in play for each set of exposure
conditions (as in longer stored waste materials, transport exposure, etc).
One side of the symmetrical algorithm would identify regulations in play
before the new 2008 DSW regulations, and the other side would identify
the regulations in play after the new 2008 DSW regulations. 2) A
second algorithm that would be useful would be to outline the
framework, the process used to analyze the environmental justice
concerns about the 2008 DSW rules. This algorithm could then tersely
identify each step in the process and the implications for the outcomes
of each step.

EPA determined that additional
diagrams and algorithms would
not add clarity to the topic, and
may further confuse the
reader.

Gb

10

Daley

For the most part, the information in the report is clearly presented.
There are, however, some areas that could be improved. While Figure 1
is informative, the other figures in the report make little sense to me.
They either need additional explanation, or they should be removed.
Figure 4.41.1 is an example of the type of bar chart that can be
confusing. Perhaps if the base category of White/Non-Hispanic was
added, the figure would make more sense. As it is now, these figures
detract rather than add to the report.

EPA added an explanation to
Section 4.4.

1a

48

Ferris

1.3 minor typo - see "HSMHSMs"

Typographical errors were
corrected.

2d

86

Henshel

Page 3 Inset. Typo or residual undeleted "(" in explanation for
Generator-Controlled Exclusion

Typographical errors were
corrected.

D-4

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Question
No.

Comment
No.

Reviewer

Comment

EPA Response

2d

89

Henshel

p 32 end of the second bullet there's a typo, a misplaced period.

Typographical errors were
corrected.

6c

199

Henshel

P121 - 7th line down in paragraph - typo - higher total population
than.... I believe was intended.

Typographical errors were
corrected.

Gb

13

Daley

Also, there are also several typos and minor mistakes that should be
addressed. These include:

(1)	Page iv- under the hazardous waste baseline, second row,
"recycles" should be changed to "recycling"

(2)	Page 2, sec 1.3, bullet 1 - "HSMHSMs" should be changed to "HSM"

(3)	Page 10, top of the page: "as a focus" is written twice. One
occurrence should be deleted.

(4)	Page 81, section 4.2.3 - "area" should be added after "a 3 km"

(5)	Page 91, section 4.42 - lists 219 damage case facilities. There are
only 217 reported in the analysis. Either explain the missing cases, or fix
a typo.

(6)	Attachment A, page A-2, section 1. Toward the end of the first
paragraph, should read "regulation if not "regulation is".

Typographical errors were
corrected.

2d

92

Henshel

The discussion about reportable quantities (second full paragraph down
on page 30) needs to be written more clearly. The third sentence in that
paragraph is particularly problematic.

EPA revised the paragraph to
add clarity and increase
readability.

3c

104

Daley

The report however, could be edited to more clearly explain this
approach. The text on Page 80 and 81 should be streamlined. First, the
agency should suggest that the 3 km buffer is reasonable given the
potential for acute exposure from accidental releases. Then, this should
be followed by a discussion of the area apportionment method. As it
reads now, it is a bit confusing.

EPA clarified the language in
Section 4.2.2 and reorganized
it to make discussion of the
areal apportionment method
more transparent.

D-5

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Question
No.

Comment
No.

Reviewer

Comment

EPA Response

4c

122

Daley

Yes, it is fine. It would be beneficial to have some discussion of the
assumption behind this method. As noted on Page 80, the areal
apportionment method assumes all populations are equally distributed in
the block or block group. This assumption will not hold in practice.
Therefore, some indication of how this assumption influences the
analysis would be useful. Given the population distribution in the nation,
how might this assumption bias the analysis? I am not suggesting that
the agency change their approach, only that they articulate the
implication of this assumption.

EPA added language to clarify
the assumptions underlying the
areal apportionment method.

Gb

16

Henshel

In addition, the excessive use of acronyms makes the document very
hard for any lay reader to read. It makes the document hard to read for
even an expert, as one must constantly look for the meaning of the new
acronyms that pop up pages after they have been defined. It would be
helpful, should the acronyms stay in such a density, to provide a list of
acronyms used on each page in a footnote at the bottom of each page.

EPA added acronym
definitions in the text and
provided a glossary and a list
of abbreviations and acronyms
in an appendix.

Gb

17

Henshel

The Wind Dispersal category would be better (and less confusingly)
labeled as "Particulate [or Dust] Wind Dispersal."

EPA changed table and
section heading to "Particulate
wind dispersal."

Ga

4

Henshel

Content: The environmental justice assessment process undergone was
a reasonably thorough approach to assessing environmental justice
concerns associated with the 2008 DSW rule. However, there was a lot
of repetition that seemed to involve just copying and pasting the same
statements and phrases over and over again, and rarely elaborated in
depth.

EPA deleted repetitive
sentences when not needed
for clarity.

Gb

18

Henshel

There is no need to repeat the exact same phrases multiple times
without additional elaboration.

EPA deleted repetitive
sentences when not needed
for clarity.

D-6

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Charge
Question
No.

Comment
No.

Reviewer

Comment

EPA Response

1a

45

Ferris

The term "damages" in Step 4 could be explicitly defined. Presumably,
the language that follows the term "damages" is explanatory but that is
somewhat unclear.

EPA added the definition of
damages to Table 1.1. The
names of the categories of
facilities were revised for
consistency throughout the
document.

2c

69

Daley

As mentioned earlier, it would be helpful if the report clarified the
definition of a damage case or damage facility. As noted on page 10, the
analysis highlights solvent wastes because of their prevalence in
damage cases. A definition and some references to RCRA damage
cases would be helpful, even if provided in a footnote.

EPA added a footnote to the
damage cases study and
revised the names of the
categories of facilities for
consistency throughout
document.

5a

162

Ferris

What is the universe of industrial facilities that may be generators of
HSW and how do they factor into this analysis? How do industrial
facilities factor into the potential impacts analysis?

EPA added language on
industrial facilities and how
they factor into the analysis to
Section 5.2.2.

ESa

25

Daley

Considering the complexity of the document, the Executive Summary is
relatively clear and easy to read. The "Summary of Potential Impacts" is
very helpful. It is important to note, however, that the findings in the
executive summary are not properly numbered: the executive summary
lists findings 1, 3, and 4, omitting 2. The table and paragraph describing
"Community Level Analysis of Potential Disproportionate Impacts" is
difficult to follow. It would be helpful if the Environmental Protection
Agency (EPA) could identify and describe the four types of facilities in
this analysis more consistently. For example, the text on page vii could
be edited to include the following language connecting the text to the
community analysis tables:

"The second step of the methodology identified facilities that can
represent the facilities that are likely to take advantage of the 2008 DSW
final rule. These facilities are grouped into four different categories: (1)
facilities that have already notified under the 2008 DSW final

EPA added the missing header
for Finding 2 as well as revised
the names of the categories of
facilities for consistency
throughout the document.

D-7

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No.

Comment
No.

Reviewer

Comment

EPA Response







rule[Notification facilities], (2) hazardous waste facilities that are likely to
recycle under the rule (including hazardous waste generators producing
more than a truckload (25 tons) of recyclable hazardous secondary
materials annually, and hazardous waste recyclers) to use the rule
[Hazardous Waste Facilities], (3) facilities from the environmental
problems study (many of which operated under exclusions or reduced
regulations)[Damage Facilities], and (4) facilities currently recycling non-
hazardous industrial waste (e.g., antifreeze) that could most easily
switch or expand to recycling under the 2008 DSW final rule [Non-
Industrial Hazardous Waste Facilities]."



ESa

26

Daley

It is difficult to understand where the categories in the Table on page X
come from. They should be clearly labeled in the text and - table
categories: the ordering in the text and the table should be consistent.

EPA revised the names of the
categories of facilities for
consistency throughout the
document.

ESa

27

Daley

Also, it would be helpful to define "damage facilities".

EPA added the definition of
damages to Table 1.1, and
revised the names of the
categories of facilities for
consistency throughout the
document.

ESa

31

Ferris

Summary of DSW EJ Methodology is clear and concise with a couple of
exceptions. The term "damages" in Step 4 could be explicitly defined.
Presumably, the language that follows the term "damages" is
explanatory but that is somewhat unclear.

EPA added the definition of
damages to Table 1.1, and
revised the names of the
categories of facilities for
consistency throughout the
document.

D-8

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Charge
Question
No.

Comment
No.

Reviewer

Comment

EPA Response

ESa

33

Henshel

The executive summary is readable. The executive summary needs to
include definitions of terms used (for example, "notification facilities,"
"damage case facilities," etc).

EPA added the definition of
damages to Table 1.1, and
revised the names of the
categories of facilities for
consistency throughout the
document.

ESb

40

Ferris

Does EPA plan to establish a definition or explanation of what
constitutes legitimate recycling and/or recycler-facility? This could serve
as notice to generators, receivers, recyclers that the exemptions and
exclusions are accompanied by affirmative duties that include
compliance with statutes and regulations?

EPA added the definition of
damages to Table 1.1, and
revised the names of the
categories of facilities for
consistency throughout the
document.

1a

47

Ferris

Readers reviewing the synopsis of the Sierra Club petition would be
informed by an abbreviated specific list of issues identified by the Club
(instead of "raised a number of issues about the protectiveness of the
rule..."

EPA provided a link to the
Sierra Club petition.

ESa

30

Ferris

Readers reviewing the synopsis of the Sierra Club petition in this
summary (or, in the relevant section below) would be informed by an
abbreviated specific list of issues identified by the Club (instead of the
more generalized ""raised a number of issues about the protectiveness
of the rule...' - especially since the language of the rule emphasizes
that a number of commenters "echoed"...concern..."

EPA provided a link to the
Sierra Club petition.

1a

46

Ferris

Does "Information" in Step 5 include data? Perhaps strengthening the
language to "Data and Information..." is more supportive of the Agency's
rationale.

EPA clarified that "information"
includes data.

ESa

32

Ferris

Does "Information" in Step 5 include data? Perhaps strengthening the
language to "Data and Information..." is more supportive of the Agency's
rationale.

EPA clarified that "information"
includes data.

D-9

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Charge
Question
No.

Comment
No.

Reviewer

Comment

EPA Response

2

53

Ferris

The transition to this section should be clear. It's not clear that this
section is distinct from the prior rule discussion (the "Introduction"). This
is a graphics issue.

EPA inserted a page break
before Section 2 to be
consistent with formatting of
other sections.

3

93

Ferris

The transition to this section should be clear. It's not clear that this
section is distinct from the prior rule discussion. This is a graphics issue.

EPA inserted a page break
before Section 2 to be
consistent with formatting of
other sections.

4

108

Ferris

The transition to this section should be clear. It's not clear that this
section is distinct from the prior rule discussion. This is a graphics issue.

EPA inserted a page break
before Section 2 to be
consistent with formatting of
other sections.

5

156

Ferris

The transition to this section should be clear. It's not clear that this
section is distinct from the prior rule discussion. This is a graphics issue.

EPA inserted a page break
before Section 2 to be
consistent with formatting of
other sections.

6

174

Ferris

The transition to this section should be clear. This is a graphics issue.

EPA adjusted the formatting
for section headers to make
the transition to different
sections more clear.

6c

202

Henshel

1. page A-4 - second paragraph - last line - "typically 120 days
following promulgation" of what?

EPA added clarifying language
to Section 3.4.

6c

203

Henshel

2. Page A-4 still - last paragraph - 5 lines down - please add
examples here to each type of industry not subject to CAA regulation
under the 2008 DSW rule.

EPA added clarifying language
to Appendix A.

D-10

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Charge
Question
No.

Comment
No.

Reviewer

Comment

EPA Response

6c

204

Henshel

3. Page A-6 third bullet - clarify if you mean leaks to only ground, to
surface water, or also leaching to ground water - ie clarify

EPA added clarifying language
to Appendix A.

6c

205

Henshel

4. Page A-7 last bullet - capitalize OSH.

Typographical errors were
corrected.

6c

206

Henshel

5. Page A-8 first bullet - a great example of spaghetti writing.
Spaghetti writing makes the report more difficult to read for everyone,
especially the lay person.

EPA added clarifying language
to Appendix A.

6c

207

Henshel

6. Page A-9 top of the page. A mention of the differences in
monitoring would be appropriate here.

The section at the top of A-9
discusses reporting and
recordkeeping. EPA
determined that a discussion of
monitoring would be out of
place here.

6c

208

Henshel

7. Page A-10 - second full paragraph (starts... "Further...") - This
paragraph needs some clarification, and needs rewriting.

EPA added clarifying language
to Appendix A.

6c

209

Henshel

8. Page A-10 section 3.9 second two paragraphs. These paragraphs
are very unclear, and also seem to be internally inconsistent, as written.
Clarify in these paragraphs what is included in each type of exclusion. A
good example of a clearly written paragraph is the next paragraph (first
paragraph of 3.10). This paragraph includes a short but clear definition
which enables the reader to comprehend the information provided more
readily. The reader does not have to go searching for the definition,
which helps reduce reader confusion.

EPA added clarifying language
to Appendix A.

D-ll

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Charge
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No.

Comment
No.

Reviewer

Comment

EPA Response

6c

210

Henshel

9. Page A-10 last paragraph, first sentence. Add clarifying phrases-
what kind of characteristics, and where are these listed.

EPA added clarifying language
to Appendix A.

6c

211

Henshel

10. Page A-11. First paragraph needs a sentence inserted clarifying
what could be exempted. Second paragraph needs clarification in the
middle sentence - specify briefly or provide example (in parentheses)
for conditions under which listed waste may not be determined to be
hazardous waste.

EPA added clarifying language
to Appendix A.

6c

212

Henshel

11. Table A-11 page A-13 middle column, middle section - This is too
dense for the average reader referring only to CFR citations and statutes
(in inconsistent style no less). Provide details or names for these
sections and their overall regulation titles in clear, jargon-free writing.

No action was taken because
the level of detail requested
cannot be presented in a table.

6c

213

Henshel

12. Table A-11 - Overall - this table (and the report) lacks any
discussion of the implication of these changes due to the adoption of the
2008 DSW rule. An example might be to evaluate the implication of
leaking containers, which (under the current vagueness of the 2008
DSW ruling language) might not be caught for up to 2 years, or maybe
longer. What kinds of exposures might be increased to what diameter
population under this scenario?

No action was taken because
the level of detail requested
cannot be presented in a table
The addition of an example,
such as leaky containers would
result in an inconsistent level
of detail in the table.

6c

214

Henshel

13. Page A -17 - why the changed font size in column 1 ?

EPA made fonts consistent
throughout the table.

D-12

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No.

Comment
No.

Reviewer

Comment

EPA Response

6c

215

Henshel

14. PageA-18. Last paragraph in column 1. Include a list of the 140
toxic and flammable regulated chemicals referred to here, and
elsewhere in the report. The easiest way to handle this might be a
footnote, or adding the list to the appendices, and referring to the
inserted list (footnote, endnote, or appendix) here and whenever else
this list is referenced.

A reference to the CFR section
where the chemicals are listed
is provided.

6c

216

Henshel

15. Page A-21 first column, second line - missing an article ("the" or
"a") between "above" and "specified quantity".

EPA edited the table to include
the missing articles.

6c

217

Henshel

16. Page A-26 - last column, first paragraph - this section (and its text
tie-in) is just calling out for a discussion of the implications of lack of
required training on personnel at the facility if exposures indeed rise.

Additional discussion would
not fit into table format. No
action was taken.

6c

218

Henshel

17. Page A-29 first column - need a space between paragraphs.

EPA added spaces between
paragraphs throughout the
document for consistency.

6c

219

Henshel

18. Page A-30 third column, first word "these" needs clarification - to
which regulations is the writer referring. Do not expect the lay audience
to know for sure. Same point for page A-32 third column, last
paragraph, second line and again page A-33 second line.

EPA adjusted the language in
all places on the table where
this occurs.

6c

220

Henshel

19. Page A-34 third column second paragraph. This very statement
again seems to call out for a discussion of the implications of the lack of
record keeping and exception reporting. It is NOT sufficient to point out
that the 2008 DSW rule changes the recording and record keeping
requirements.

No action was taken as
implications are discussed in
the main body of the report.

6c

221

Henshel

20. Page A-35 first column middle paragraph - clarify, provide more
detail. Similarly third column second paragraph - specify which
excluded materials may not qualify as a DOT hazardous material, and
provide some discussion of the potential implications of this from an EJ
perspective.

No action was taken as
implications are discussed in
the main body of the report

D-13

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Charge
Question
No.

Comment
No.

Reviewer

Comment

EPA Response

6c

222

Henshel

21. Page A-36 third column second paragraph - this again needs
further discussion here and in the text on the possible implication of this
change due to the 2008 DSW rules. Specifically, would any residues
from reclamation ever be potentially hazardous and NOT get identified
as such through the 2008 DSW process.

No action was taken as
implications are discussed in
the main body of the report.

6c

223

Henshel

22. Page A-37 GCE: is something missing here? Seems like it.

EPA added the missing text.

6c

224

Henshel

23. Page A-49 right hand column, second paragraph - use the full
citation, not the abbreviated citation. The full citation (ie using the same
citation format throughout) is more understandable to the lay person.

EPA replaced the abbreviated
citation with the full citation
throughout the document.

6c

225

Henshel

24. Page A-52 right column, top line "an SPCC" fix typo

Typographical errors were
corrected.

6c

226

Henshel

25. Page A-61 middle column, top paragraph. Keep citation format
consistent and summarize the legitimacy criteria in this paragraph, a
footnote, or the next paragraph.

EPA made the citation format
consistent throughout the
document. The table format
does not have sufficient space
for discussion of legitimacy
criteria.

D-14

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Charge
Question
No.

Comment
No.

Reviewer

Comment

EPA Response

6c

227

Henshel

26. Page A-63 right column. Provide examples of potential problematic
emissions that don't meet threshold criteria and don't meet other
applicability criteria. It would be great if the implications of the resultant
exposure (were this to occur) be determined quantitatively, maybe at the
mean/lower assumption (9.5 TPY single type HAP) and high assumption
(24.95 TPY mixed HAP) levels.

Due to insufficient space in
table format, examples were
not given.

6c

228

Henshel

27. Page A-64 - right hand column - No one in this report is discussed
how much might be released before anything would trigger the need to
determine if a cleanup is needed. Surely this would help explore the
potential for a significant disproportionate impact occurring?

There is insufficient space in
the table format to address this
issue.

6c

229

Henshel

28. Page A-68, right column, last sentence. Where is the "note below"?
Probably better to put the note in a footnote on the same page or in the
right hand column immediately after this paragraph.

EPA removed the reference to
the "note below."

6c

230

Henshel

29. Page A-82 on - It is great to have the summary of the Federal
Regulations here. However, the formatting and depth of each
discussion is not consistent and needs to be made so. For example, the
most readable formats start with a sentence or two that talks about the
relevant regulation(s) more broadly, and then includes a sentence that
explains the relevance of the regulation to this report/study.

The current contents of
Appendix A contain sufficient
description to summarize the
regulations and their
implications for this rule. This
document is not intended to
provide a thorough description
of other regulations. Such
information is available in other
references. Additional content
will not be added due to
limitations on space

D-15

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Question
No.

Comment
No.

Reviewer

Comment

EPA Response

6c

231

Henshel

30. Page A-83 Second paragraph under "Legitimate recycling" - include
a brief summary of the six criteria referred to here (and elsewhere) and
not clearly defined. The listing could be in the paragraph, in an offset
list, in a separated inset box, or in a footnote.

There is insufficient space in
the table format to address this
issue.

6c

232

Henshel

31. Page A-84 Top of the page - provide details about standards in
262.34 (d) and (e). They are not clearly described anywhere. Also
maintain a consistent formatting for citations.

There is insufficient space in
the table format to address this
issue.

6c

233

Henshel

32. Page A-94 Exports first paragraph last two sentences - a)
remember to keep citations in consistent format. B) To make this
document most readable, summarize these requirements briefly.

All citations were updated to
ensure a consistent format.
Requirements appear to be
summarized adequately.

6c

234

Henshel

33. Page A-96 - No where is there a discussion of at what point in a
chain of non-compliance would the chain of permission stop and
oversight identify a problem that needs to be addressed.

This as an enforcement and
compliance issue that would
need to be addressed by
individual EPA Regional or
authorized state agencies.

6c

235

Henshel

34. Page A-99 bullets under 5.3.3 In each bullet, first identify the key
factors that determine whether processes fit as Program 1, 2 or 3 (i.e.
defined for the appropriate bullet). These three was to characterize a
process are never clearly defined throughout this whole document. This
would seem to be the place to put those definitions.

The current contents of
Appendix A contain sufficient
description to summarize the
regulations and their
implications for this rule. This
document is not intended to
provide a thorough description

D-16

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No.

Comment
No.

Reviewer

Comment

EPA Response









of other regulations. Such
information is available in other
references. Additional content
will not be added due to
limitations on space.

6c

236

Henshel

35. Page A-106 5.8.2 line 3 - TSDFs is an acronym that is never
defined.

EPA added acronym
definitions in the text and
provided a glossary and a list
of abbreviations and acronyms
in an appendix.

6c

237

Henshel

36. Appendix B is good to have, as is Appendix C and D. Note that in
Appendix B, and in a few other places, the writer uses the personal "we"
instead of a noun. This is formal writing and should not include any first
person (personal) pronouns anywhere in the document. Search to find
the "we"s and rewrite to replace the personal pronoun with a clearer
sentence using the impersonal 3rd person or noun.

EPA eliminated the use of "we"
throughout the document.

6c

238

Henshel

37. Page B-2 first paragraph. Need to add a sentence that explains
why it is important to understand what a "wastewater" versus a
"nonwastewater" is.

Clarifying language was added
to page B.2.

6c

239

Henshel

38. Page B-3 table bottom: POTW and NPDES is not defined here or
elsewhere in the document. Acronyms are best spelled out the first time
they are used in any given chapter, and still it is kind to the read to
provide a Table of Acronyms and Abbreviations, and spelling out of all
acronyms in footnotes for any table in which they are used.

EPA added acronym
definitions in the text and
provided a glossary and a list
of abbreviations and acronyms
in an appendix.

6c

240

Henshel

39. Appendix C is written like an abbreviated technical reference
manual, but without the definitions usually included in such a manual.
Most of this section reads like a jargonfest, and is not accessible to the
lay reader.

The current contents of
Appendix A contain sufficient
description to summarize the
regulations and their
implications for this rule. The
implications of information is

D-17

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Question
No.

Comment
No.

Reviewer

Comment

EPA Response









are explained for the more
general reader in Section 2 of
Volume 1.

6c

241

Henshel

a. Identify all acronyms and abbreviations. There's two in the
second paragraph.

EPA added acronym
definitions in the text and
provided a glossary and a list
of abbreviations and acronyms
in an appendix. The second
acronym is a reference code
from the database used to
develop the hazardous waste
facility estimates, and has no
direct English language
definition.

6c

242

Henshel

b. In the introductory section, explain by the K, F, U, P and D codes
represent, how they are used, and how understanding the coding was
needed for the environmental justice analyses.

Information was added to
glossary.

6c

243

Henshel

c. Explain all codes that have no other referent to explain them. For
example, on page C-5 top line, F037-F038 codes are referred to without
placing them in any context or defining what these codes cover.

Information was added to
glossary

6c

244

Henshel

d. Table C-1 needs some additional explanation before it will be
easily read by the lay reader.

The current contents of
Appendix A contain sufficient
description to summarize the
regulations and their
implications for this rule. This
document is not intended to
provide a thorough description
of other regulations. Such
information is available in other
references. Additional content

D-18

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No.

Comment
No.

Reviewer

Comment

EPA Response









will not be added due to
limitations on space.

6c

245

Henshel

40. Appendix D is written in a way that is essentially understandable.
However in two places, where groups are moved from the logical
grouping to a not as obvious grouping, explanation is needed for why
the move was made. These points are on Page D-3 bottom of the page,
and on Page D-5 top of the page.

EPA added explanatory
sentences to clarify the change
in grouping.

6c

246

Henshel

41. Appendix E needs some clarifying verbiage written in easy to
understand English. The two ratios could, for example, be easily
explained by one or two sentences. The description of the tests are
more theoretical in places. Specific places that clarification is needed
includes:

A new description of the
Fischer's Exact test was
provided.

6c

247

Henshel

a. Page E-9 bottom of the last Fisher Exact Test paragraph, there is
no explanation for why or when the minus sign is removed, nor where
the minus sign is likely to show up and why.

A new description of the
Fischer's Exact test was
provided.

6c

248

Henshel

b. Page E-10 - it is not clear what the tables are for the various
states. Add clarifying language.

A new description of the
Fischer's Exact test was
provided.

6c

249

Henshel

Since these tests are not always run (but should be) the verbiage should
include an explanation of why they are not run in some situations in the
analysis and are run in other, apparently similar situation.

A new description of the
Fischer's Exact test was
provided.

Gb

19

Henshel

In no scenario was there a consideration of generators who consistently
function in violation of the regulations once they start handling waste
under the 2008 DSW rule. As there are such companies, this would
seem to be a scenario to include, or at least discuss, in an EJ analysis.

EPA expanded the discussion
of compliance under DSW vs.
HW regulations.

D-19

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Charge
Question
No.

Comment
No.

Reviewer

Comment

EPA Response

Gb

20

Henshel

No scenario considered the possibility of the impact on the community if
a generator acting under the 2008 DSW rules goes out of business with
accumulated, non-processed, possibly not appropriately contained
excluded hazardous material waste on the property. Yet this situation
would only happen (legally) under the 2008 regulations, not under the
previous HSM regulations.

EPA added a discussion of
generators going out of
business to Section 2.5.1 of
document.

1a

50

Ferris

In addition to the advantage of adhering to RCRA's decades old cradle-
to-grave protective framework, consider whether requiring a streamlined
notice and record-keeping process for generators, receivers and
recyclers of HSM benefit EPA and states e.g., monitoring, as well as
data that shows the environmental and economic benefits of HSW
exclusions?

N/A (comment on 2008 DSW
rule)

2b

65

Daley

Without adequate record-keeping and environmental protection
safeguards (streamlined requirements would not be objectionable), the
international export exclusion/scenario is troubling re potential releases,
impacts, whether or not the recipient nation has genuine knowledge of
the contents and consents to the receiving the export; see e.g., Circle of
Poison and pesticide regulation.

EPA expanded the discussion
of exports in the scenarios.

6c

190

Ferris

Should record-keeping include quantities of HSW generated? This data
would be useful for emergency planning and response as well as helpful
to determining economic and environmental benefit.

N/A (comment on 2008 DSW
rule)

2a

57

Daley

Yes, the scenarios clearly define how EPA thinks facilities may react to
the rule. Table 2.1 is particularly useful in outlining the baseline and
potential changes based on the DSW Exclusions. I would however, like
to know how the EPA developed these scenarios. Are these based on
professional experience, or did the agency talk with the regulated
community to get a sense of potential reactions to the DSW Exclusions?
If it is the latter, could the report provide more detailed information
regarding the feedback from the regulated community? If it is the

EPA added discussion of how
scenarios were chosen to
Section 2.1.

D-20

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former, it would add value to outline some of the ways in which that
experience shaped the discussion / selection of the scenarios.



2a

60

Henshel

What is lacking overall from the analysis, from the Hazard
Characterization step onward, is any discussion or analysis of the
implications (i.e secondary consequences) of each of these assumptions
(about the possibility of increased exposure) for total exposure and
estimated changes in risk values for the potential EJ communities (ie
those communities within 3 km of each facility, according to this report).

EPA added language
throughout Section 2 on the
possibility of increased
exposure to communities as a
result of hazards identified.

2c

73

Ferris

Does worker training (e.g., protection standards, labeling, handling) or
the lack of it at relevant/specified facilities factor into the EPA hazard
analysis?

Worker training is discussed in
the regulatory comparison
section. No further action was
required.

2c

74

Ferris

Does emergency response and planning, the existence or lack of these
programs, factor into the EPA hazard analysis? Similarly, does
eliminating the requirement for a Manifest (or some version of a tracking
mechanism) factor into possible increases or reductions in the
emergency response preparedness and planning, enforcement or
compliance monitoring?

Both emergency planning and
the manifest are discussed in
the regulatory comparison
section. No further action was
required.

2c

77

Ferris

Does the EPA hazard analysis factor imposition (or not) of container
integrity and container management standards into the determination of
the potential or actual hazards associated with higher storage volumes,
and/or higher concentrations of HSW? What constitutes a safe
"container?" Does the analysis factor in whether making storage subject

EPA added language to
sections discussing storage
that applied to containers.

D-21

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EPA Response







to controls, environmental monitoring and inspections increases or
reduces community protection?



2b

66

Henshel

a. Unlikely" scenario 1: If the cost of recycling off-shore (Africa,

China) are low enough, these lower costs will offset the additional costs
of transportation to get the now excluded hazardous waste (which costs
less also as an excluded waste, and one for which the same expensive
containers do not have to be bought). This is a reasonable scenario (not
unlikely) unless the EPA provides calculations to prove that the costs of
transportation would never be overcome by the reduced costs of
recycling in Africa or China. It is also disturbing that there is insufficient
discussion and analysis of EJ concerns for the locations of the recycling
plant and no discussion and analysis of EJ concerns for the locations
where recycling is carried out in another country. (This last sentence
applies as well to the whole report.)

EPA elaborated on exports
given existing scenarios rather
than creating a new scenario
only focused on exports of
wastes to other countries.

2c

72

Ferris

Intervening prior to a release is clearly preferable - the possibility of
enforcement action prior to a release would be protective and more
likely in the event that there are clear regulations e.g., storage
limitations, labeling requirements and requirements related to the
integrity of storage containers and areas.

EPA added discussion on
preventive enforcement to the
enforcement section.

6c

187

Ferris

Is there sufficient analysis of the impacts of storing HSW in land-based
units such as pits, ponds and lagoons. Should standard RCRA
regulatory controls apply where HSW is stored in such land-based
units?

EPA added language about
the impacts of land-based
storage units in the storage
section.

2c

79

Henshel

Toxicity information: When applicable, endocrine disruption toxicity is not
even mentioned. Developmental toxicity of heavy metals would also
seem to be an important, very sensitive effects indictorto mention.

Further research indicated that
specific contaminates
discussed did not include
endocrine disruptors.

D-22

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EPA Response

2c

80

Henshel

p 19 top of the page. There isn't mention of fugitive emissions (leaks at
valves, escape at points of transfer) as part of the way in which
hazardous materials/waste can be released.

The section described by the
commenter discussed the
activities that involve HSM.
Associated hazards, including
fugitive emissions, are
discussed on the following
page.

4g

142

Daley

There is considerable selection bias or selection effect in the
"notification" facilities and likely also in the damage facilities. It is likely
that these early adopters (notification facilities) are significantly different
(and non-randomly distributed) compared to the three remaining
categories. Damage facilities are also likely to be systematically
different. I am not sure exactly how to address this, but it seems like
something that the agency needs to consider. Perhaps analyzing a
comparison group of randomly selected and/or "matched" facilities could
be useful, in addition to the broader state and national comparisons.

EPA added discussion on
selection bias for both
"notification" facilities and for
"damage" facilities to Section
4.4.1.

6c

198

Henshel

Population level analysis table results seem to show that there is a
numbers (sample size) bias in the level of statistical significance. Once
the notification facilities used in the analysis are pooled, or incorporate
facilities from other states as will, to increase sample size, chances are
that these results will also be significant in a pooled state analysis. Thus
the need to do both pooled state, and divided state, to assess how much
of the sensitivity might be sample size. It is also important to note that in
regions with few Blacks, or few minorities, the minority population
comparisons are always less of a driver than the low income analysis,
as in these regions, are larger percentage of the low income community
is white. This is true in Indianapolis, where there is a significantly large
percentage of poor whites. In Northwest Indiana, however, there are
more minorities, and minority population comparisons drive the EJ
analysis results as strongly, or more strongly, than the low income
analysis.

Discussion on the affects of
uniform population distribution
on the analysis was added to
Section 6.1.4.

D-23

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EPA Response

ESa

35

Henshel

The summary of Finding 4 should include some discussion of the other
three categories not discussed in the executive summary (example,
susceptible populations). You might include leaking septics in the list on
the top of page xiii (under multiple and cumulative effects), as leaking
septics are more likely to be addressed more slowly, and thus pose a
higher health risk, in low income communities.

Discussion on leaking septic
tanks was added to the
Executive Summary.
Discussion of additional
vulnerability factors was not
provided because analyses for
these were not available.

5a

160

Ferris

Where does immigrant status factor into vulnerability factors?

Addition discussion on the
immigrant status and English
literacy was added to Section
5.1.4.

5c

171

Ferris

Immigrant status, particularly new immigrants and undocumented
workers and residents constitute an important additional factor.

Addition discussion on the
immigrant status and English
literacy was added to Section
5.1.4.

5c

173

Henshel

Other health endpoints to consider include: low birth weight as a
measure of embryonic development; some measure of endocrine
disruption including, and particularly, thyroid disruption, although other
endocrine function indices should also be considered, such as diabetes;
and some measure of IQ in children, if this is available.

Review of the specific
contaminants reviewed in
Section 2 indicated that none
were endocrine disruptors.

2c

78

Ferris

Intermediate facilities and off-site HSM self policing may not be effective
as a means to ensure protection of health and the environment in
communities whether disproportionately affected or not.

EPA added additional
discussion on strategies to
mitigate impacts.

D-24

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EPA Response

6c

201

Henshel

The proposed regulatory and implementation measures section needs
solid expansion. It's truly pitiful right now. It should also be noted that
without regulatory clarification of some of the weaknesses in the 2008
DSW rule, enforcement is only as strong as the environmental
consciousness of the administration. Even with revised regulation,
enforcement and oversight is susceptible to political influence, just
somewhat less so. Monitoring is not as much a part of the 2008 DSW
rule, so how could monitoring data be used to help ensure facilities are
not creating more of an exposure hazard for their communities under the
new rule?

EPA expanded on the
discussion of proposed
regulatory and implementation
measures in Section 6 in order
to add clarity.

3c

106

Henshel

Other environmental justice analyses have used other diameters to
define the proximate neighborhoods. On studies of Indianapolis,
especially, we have tested multiple diameters (all smaller than 3 km -
0.5, 1 and 2 km) and typically found 2 km to be a good cut-off to define
proximate communities. It would seem that this question should be
answered in the study, that is, that the study design would test multiple
possible diameters (ordonuts) around the facilities and determine which
diameter provides the most sensitive distinction. It is quite possible that
different types of facilities would have different cut-off diameters, based
on differences in potential for dispersal/distribution of (excluded)
hazardous waste (i.e. as liquid solvent waste or dust).

EPA determined that a 3-km
radius is commonly used in EJ
analyses. EPA has added a
such as the sensitivity at 1-km
radius.

D-25

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EPA Response

3c

107

Henshel

In conducting similar EJ analyses, using TRI facilities, we discovered
that we had to truthed the facility addresses to the GPS coordinates by
on the ground determination of whether the address listed for the facility
was actually the address of the releasing facility or the address of
company offices. Even when the two buildings were on the same
campus, and not separated by miles, the difference between the
buildings (between the addresses) could be a significant distance (on a
mile long campus, they could be a mile apart), and thus could affect
which neighborhoods were included in the proximate circle. From the
information provided in chapter 3 about the methods used for obtaining
GPS coordinates, it appears that this truthing was never done or even
attempted for this analysis. No efforts were apparently made to
ascertain whether the listed address referred to the hazardous materials
processing location or to the main offices.

EPA added language in
Section 3 noting that
verification of GIS coordinates
was beyond the feasible scope
of this analysis.

4g

144

Henshel

No - see comments above about problems with addresses linked to
facilities that have corporate offices away from the processing facilities,
even when the two buildings are on the same campus.

EPA added language in
Section 3 noting that
verification of GIS coordinates
was beyond the feasible scope
of this analysis.

4d

128

Henshel

It is also appropriate to use the more commonly used cut-off of 2x the
poverty line, since even families at 2xthe poverty line are struggling just
to provide food and shelter these days. The census determined poverty
line (that is, above or below the threshold) does not include childcare
costs, as one example of the kind of critical expenditures that enable
both parents to work. Thus it would be appropriate to test poverty
threshold versus 2x*poverty threshold as the criteria for determining bias
in representation of low income populations with regard to proximity to
the HSM or DSW facilities.

EPA has revised the analysis
to use the 2x the poverty line
standard.

D-26

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EPA Response

4e

135

Henshel

The analysis should be broken out by state for all the analyses, and
similarly, the notification facility results could be summed across states,
as was done for the other types of facilities, even though the states
covered are small in number compared to the total number of states
represented in the analyses for the other facilities. That discrepancy
should be pointed out in the legend. Yet there needs to be some way to
compare across analyses. Only summing across states for most, and
separating out one subset of data makes it hard to compare across
results.

An appendix has been added
showing the breakout by State,
County, Urban, and Rural for
all groups for all demographics
in one table

4d

125

Daley

Yes. A statistical analysis of these results is an appropriate method to
understand patterns in administrative and community level data. These
patterns can reflect social and environmental disparities and the EPA
can consider these patterns for future decision making. Note however,
that the analysis presented in Chapter 4 did not include a comparison
between community (3 km buffer area) and county level characteristics.
State, national, and urban and rural were examined, but county
information was not analyzed in this section of the report. County level
information and analysis would have added value to this report.

An appendix has been added
showing the breakout by State,
County, Urban, and Rural for
all groups for all demographics
in one table.

6c

183

Daley

In addition, it would be helpful to have county level comparisons for the
community analysis. I am less certain that this addition would
significantly change the conclusions, but it may strengthen the
recommendations.

An appendix has been added
showing the breakout by State,
County, Urban, and Rural for
all groups for all demographics
in one table

Gb

11

Daley

Why are urban and rural comparison omitted for the damage case
facilities? Consistent analysis across categories is important. If the
analysis cannot be performed for some reason, an explanation in the
text would be helpful.

An appendix has been added
showing the breakout by State,
County, Urban, and Rural for
all groups for all demographics
in one table.

D-27

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EPA Response

4e

137

Henshel

The first set of analyses for each facility type would be better and more
clearly represented by box and whisker plots. When using box and
whisker plots, it is important to explain (for the lay audience) what data is
represented in each part of the plots at some point in the chapter. With
that explanation, the box and whisker plots provide more information for
the comparisons, and provide a visual sense of variability and bias
around the means.

Additional diagrams and
algorithms would not add
clarity to the topic..

4h - 2

148

Daley

Option 2 has the strongest potential to add to the ability of the agency to
draw inferences from their data sources. If statistical analysis indicates
systematic socioeconomic and demographic differences in area with and
without facilities, then this provides even stronger evidence of the
distributional affects of decision making. In addition to this, it would be
ideal if the agency could model cumulative environmental stressors in
communities in a more integrated fashion. Rather than simply noting
multiple stressors in the notification areas, provide some indication of
cumulative stressors in the other categories as well (damage case
facilities, hazardous waste, and non-hazardous industrial waste).

Additional analyses are
beyond the scope of this effort.

4h - 2

149

Ferris

The reviewer is uncertain if this analysis will yield additional useful
information other than another take on areas where disproportionate
impacts occur.

The purpose of the analysis is
to support the DSW
rulemaking.

4h - 2

150

Henshel

Yes - this provides a better comparison group - a counterfactual.

Additional analyses are
beyond the scope of this effort.

4h - 3

151

Daley

See 2. above.

Additional analyses are
beyond the scope of this effort.

4h - 3

152

Ferris

This comparison may yield information about metropolitan areas where
disproportionate impacts exist.

Additional analyses are
beyond the scope of this effort.

D-28

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EPA Response

4h - 3

154

Ferris

Do host metropolitan areas factor in rural areas where capacity,
including staffing, to oversee HSM facilities may be more limited
compared to urban and suburban areas.

Language has been added to
the report clarifying that the
analysis does not explicitly
factor in the capacity of local
governments to oversee HSM
facilities.

4h - 3

155

Henshel

Yes, this also would be a very appropriate comparison to include.

Additional analyses are
beyond the scope of this effort.

4d

127

Henshel

Yes, statistical methods are appropriate in general. However, a more
sensitive analyses seems to be to break the demographics up (quartiles,
quintiles) into some binned division of the total range, create donuts
around the facility, and run the analyses as a regression of the
demographics against proximity. You are able to detect (significantly)
more subtle shifting of demographics overtime.

Additional analyses are
beyond the scope of this effort.

Gb

21

Henshel

The methods for analysis of environmental justice impacts (as in biases
in the siting) are not as sensitive as might be obtained with using
regression analysis and grouping the data into maybe quartiles rather
than doing all analyses on data that has only been divided into two
categories (ie equivalent of yes/no data).

Additional analyses are
beyond the scope of this
effort..

D-29

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EPA Response

Ga

2

Daley

To fully understand the differential impact of the 2008 DSW final rule on
low income and minority communities and populations, it would be
helpful to have a meaningful baseline analysis. What if continuing to
regulate HSM under RCRA has even greater environmental justice
impacts? The report and analysis do not provide that information. So,
there is no way to identify if the 2008 DSW rule - while likely to have
disproportional impacts - is an improvement over current reclamation
and disposal practices under RCRA. I recognize this analysis would
entail considerable work, but if HSM regulated under RCRA currently
has even greater environmental justice impacts, then this would be very
important to know this as decision making proceeds.

EPA believes that the
regulatory comparison
between hazardous waste
regulations and the 2008 DSW
rule already includes a
qualitative discussion of the
baseline impacts at hazardous
waste, since the discussion
includes the benefits of the
2008 DSW rule (which would
mirror the "impacts" of
hazardous waste regulations).
In addition, hazardous waste
facilities are one of the
categories in the demographic
analysis. To address this
comment, EPA added
discussion to make this
clearer.

Gc

22

Daley

It seems like the document is quite thorough. As noted in my response
to question Ga, the document would be improved by a assessing the
Environmental Justice impacts of the baseline - or RCRA's approach to
HSM recycling and disposal.

Such baseline analysis is
already captured in regulatory
comparison and in the analysis
of hazardous waste generators
and recycling facilities. EPA
added discussion to make this
clearer.

4b

118

Ferris

In disproportionately affected communities, the issue is not whether
there will be impacts; rather the issue is what the full extent of the
hazard impacts will be.

N/A

D-30

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EPA Response

Ga

1

Daley

My overall assessment is that the report manages to present a very
complex decision making process and analysis in a fairly clear and
accessible fashion. The discussion of potential hazards and exposure
pathways seems clear and complete. The eight scenarios are clearly
laid out. There report is quite detailed. The main points seem to be that
the 2008 Draft Solid Waste Final Rule (DSW) enables generators to
store more hazardous secondary material (HSM) for a longer period of
time, and provides no prescriptive standards to ensure safe
containment. Transporters of waste and intermediate and reclamation
facilities are also impacted in ways not necessarily analyzed in the initial
consideration of the rule change. Decreased transparency and public
participation provisions combined with deregulation of hazardous
secondary material to encourage reclamation is likely to have differential
impacts across the county. The findings from this report present the EPA
with a challenge. Recycling hazardous secondary material presents
significant health and environmental hazards, and the 2008 rule change
is not uniformly health protective. According to this analysis, some
communities will be more impacted than others, and this differential
impact has direct environmental justice implications.

N/A

D-31

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EPA Response

Ga

5

Henshel

In addition, the analysis never included taking the example situations
(places where greater exposure by the neighbors could occur, for
example) and quantifying the potential impact on the neighboring
community (maybe within the 3 km diameter defined "proximity to site"
area). Using the basic approaches for predictive risk assessment, one
would take the real situation, make assumptions for the average and
high end of the range for the increased exposure situation, calculate the
potential increased exposure to the chemicals, and then calculate the
potential for increased risk, with average and high end assumptions. At
least one such scenario calculated for each situation identified as
potentially increasing exposure under the new regulations would be
helpful in determining just how critical revising the regulations would be.
It would have been even better to then recalculate the exposure and risk
inherent in at least a few scenarios with the assumptions made under
the recommendations for revision of the 2008 DSW rule, weak and non-
specific as those recommendations were.

Assessment of the full extent
of the impacts would require a
formal risk assessment. EPA
did not pursue this because it
would be too difficult to pick
"example" scenarios that would
cover the range of possibilities,
and the analysis would be too
sensitive to potential bias in
upfront assumptions..

3

95

Ferris

Diversion of materials from the waste stream is beneficial (although on it
face, without safeguards, reclamation falls short of environmental
justice) and should be accompanied by adequate protections for health
and the environment.

Further discussion of benefits
has been added.

ESb

39

Ferris

The benefits (per language in the Scenarios) don't balance the potential
negative impacts. This could be more clearly set forth or demonstrated.
Although the reviewer does not express agreement that any benefits
would offset the potential hazards or actual hazards, more clarity or
quantification of benefits would strengthen the analysis.

Discussion of trade-offs has
been added.

4d

129

Henshel

Given the neighborhoods in which these facilities are placed, it would
seem to be appropriate to at least consider other toxic stressors, such
as TRI facilities or road density as part of the EJ analysis looking at
cumulative exposure potential (based on permit data for the
HSM/potential DSW facilities for maximal exposure estimates).

Additional analyses are
beyond the scope of this effort.

D-32

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EPA Response

5a

157

Daley

Yes. The agency has identified a wide range of stressors that can shape
individual and community vulnerability. Additional resources that the
agency could consider - particularly if they embark on a more detailed
county level comparison - include the county health rankings
(http://www.countyhealthrankings.org/).

Additional analyses are
beyond the scope of this effort.

5c

170

Daley

If the country level examination is pursued, the agency might be able to
rely upon data compiled under the country health rankings. Otherwise,
the data presented in the report seems adequate.

Additional analyses are
beyond the scope of this effort.

6c

195

Henshel

Table 5.1 would allow for a very nice small cluster analysis (or principal
component analysis) to look at which emissions and types of facilities
link with which endpoints, and (using maybe MANOVA) incorporating
transportation and health care availability would be interesting as
confounding variables.

Additional analyses are
beyond the scope of this effort.

2b

62

Daley

Is there a significant possibility that small businesses could be more
vulnerable to sham recycling if many won't have the capacity and
staffing to thoroughly assess recyclers?

EPA added discussion of
"reasonable efforts" audits.
The supplementary text was
added to Sections 2.5.2 and
5.1.4.

2c

70

Ferris

The selection of electric arc furnace dust and solvent wastes as national
HSM proxies appears sound based on the analysis. Excluding used oil,
non-ferrous metals and scrap metals from the hazard analysis, although
associated with "damages cases?"

EPA added discussion on
hazard characterization to
Section 2.2.2.

3a

97

Ferris

Are the facilities that gave notice located; in disproportionately affected
communities or not? The recycling exclusions should not exacerbate
impacts or exposures in these communities. A troubling compliance
history could signal future endangerment of the health and the
environment.

EPA added to the discussion in
Section 6.1.4 to clarify the
results of demographic
analysis for notification
facilities.

D-33

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EPA Response

3b

99

Daley

I cannot comment directly on whether or not the annual marker of 25
tons of recyclable material is appropriate. The report provided limited
justification for this cut off point, and while it seems reasonable,
someone with more applied experience in waste management and
reclamation may think otherwise

EPA added language to 3.2.3
to explain the 25-ton cut-off,
and how the number of
facilities might change with a
1-ton and 100-ton cut off.

3b

100

Ferris

Is the 25-ton threshold empirical?

EPA added language to 3.2.3
to explain the 25-ton cut-off,
and how the number of
facilities might change with a
1-ton and 100-ton cut off.

4b

116

Ferris

Have either the absence of these protections or the "real world"
limitations on a community's ability to publicly participate been evaluated
as an impact upon low income communities and communities of color?

EPA added discussion on
public participation to the
executive summary and
conclusions.

4b

120

Ferris

Potential impacts associated with transportation of HSW warrant a
closer look.

Additional description of the
hazards associated with
transportation of HSM has
been added.

4e

132

Henshel

There is a lot of detail provided for some of the analyses. Other
analyses (producing some of the results listed in the tables) do not have
such clear or extensive or sometimes even any clear statement of how
some calculations were made. At the very least, a clear, jargonless
description of how each column in each table was determined should be
evident in the text in proximity to the tables.

EPA added additional
descriptions to Section 4.

4e

133

Henshel

There needs to be an explanation of why some Fisher's analytical
results are listed as N/A.

EPA added additional
descriptions to Section 4.

D-34

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Comment

EPA Response

5a

161

Ferris

Should whether the generator is a small business factor into community
vulnerability? For example, some small businesses could be less likely
due to capacity to conduct in-depth due diligence or examinations of
HSW facilities or how their wastes are recycled.

EPA added discussion on this
topic to 2.5.2 and 5.1.4.

5b

166

Ferris

Ability to participate in the decision making process is a stated
environmental justice vulnerability; however, this section states explicitly
(in clear contradiction) that community input is not required of facilities or
regulators.

EPA added discussion on this
topic to 2.5.2 and 5.1.4.

6c

184

Daley

Finally, the report would also benefit from a clear assessment of
compliance under RCRA and the DSW final rule. If there are no
prescriptive standards for storing waste while waiting to reclaim/recycle,
are facilities more likely to have accidents?

EPA added discussion on this
topic to the Executive
Summary and Conclusions
sections.

6c

193

Ferris

Tribes, including Inuits, will need additional resources to staff and
implement the DSW Rule. Should more cases on Native lands be
included in the damages cases analysis?

EPA added discussion about
Tribal representation to
Section 4.2.2.

ESb

37

Ferris

The "Summary of Potential Impacts...Under Different Recycling
Scenarios" is clear however the accuracy of the presumptions is
challenged by the language on its face. Pursuant to Hazard
Characterization, EPA demonstrates and discusses the highly
hazardous nature of the 2 main sources of reclaimed hazardous
secondary materials (hereafter HSM) upon which much of the Draft
DSW Rule analysis is based in addition to the storage hazards including
leaks, fires and explosions. Container standards do not appear to
compare with the highly hazardous nature of the 2 main sources upon
which much of the Draft DSW Rule analysis is based.

EPA added discussion to the
Executive Summary.

D-35

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No.

Reviewer

Comment

EPA Response

4a

109

Daley

The census data that the EPA uses for this analysis is standard.
Improvements would include relying upon the 2010 census numbers to
more accurately reflect community composition. If possible, it would be
ideal to be able to rely upon the American Community Survey (ACS) to
obtain more detailed and temporal information on community change.
However, I am not sure that the sample size for the ACS are adequate
for this facility based approach. It may be that by drilling down to the
facility level and relying upon survey rather than census data, introduces
too much variability.

The analysis has been
updated with the 2010 census
data

4b

121

Henshel

The same methods and break outs should have been carried out for all
analyses. There should not have been different protocols and analyses
used for some types of facilities and not for others. There should have
been a break out of asian, black, other minority, and possibly immigrant
populations for all facilities.

The EJ Characteristics
selected were based on EO
12898 and 13045.

4e

136

Henshel

The same set of demographics should be tested for all types of facilities
for all types of analyses. There is no justification for cutting back to 4
categories of analysis for some analyses, and none is given.

EPA added descriptions of why
additional demographics were
analyzed for notification
facilities.

4f

140

Ferris

Would assessment of an additional number of damages case affect the
assumptions?

EPA has updated the damage
case list.

D-36

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No.

Reviewer

Comment

EPA Response

4h - 3

153

Ferris

Has EPA evaluated additional damages cases? Is the pool of 218
adequate to reveal the widest reasonable range of damages, potential
damages and types of comparisons?

EPA has updated the list of
damage cases.

6c

182

Daley

An environmental justice analysis of current regulatory practices for
those states and facilities not adopting the 2008 DSW Final Rule would
be helpful and may provide guidance if regulatory changes to the DSW
rule are likely. The assumption seems to be that the status quo before
the rule is neutral for communities of concern. Given the weight of the
evidence in the environmental justice literature, this is not likely a
reasonable assumption.

An analysis of the
demographics around Subtile
C disposal facilities has been
added.

6c

188

Ferris

Does the DSW Rule consider the affects of tracking, monitoring and
enforcement across multiple state lines or, nationally, whether HSW
transport will operate smoothly across multiple state programs? Is there
favorable or negative impact on interstate commerce?

EPA added discussion on the
analysis of interstate tracking,
monitoring and enforcement in
the conclusions section of the
report.

6c

191

Ferris

Has EPA assessed profitability and the viability of end-use markets for
various HSW and facilities? Would lack of markets affect, encourage or
discourage a facility from taking steps and investing in protecting health
and the environment?

A reference the EPA's An
assessment of markets and
the associated with hazardous
waste recycling is presented in
the supporting document, "A
Study of the Potential Effects
of Market Forces on the
Management of Hazardous
Secondary Materials Intended
for Recycling" has been added

1a

43

Daley

Yes, the Introduction is clear. It is easy to follow and well organized.

N/A

D-37

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No.

Reviewer

Comment

EPA Response

1a

44

Ferris

Summary of DSW EJ Methodology is clear and concise with a couple of
exceptions.

N/A

1a

49

Ferris

In view of the complexity of what is explained, Scenarios are clear

N/A

1a

51

Ferris

The threat of post facto CERCLA liability is not interchangeable with up-
front environmental protection standards and requirements. This
reviewer does not presume that the entire regulated community is
villainous; however, any vigor/rigor that a generator, receiver, recycler
might invest in environmental protection could wane as oversight and
compliance requirements are reduced or eliminated.

N/A

1a

52

Henshel

No complaints.

N/A

2a

58

Ferris

The description of potential scenarios is clear.

N/A

2a

59

Ferris

The chart situated in the "Overview" section, which describes the 3
relevant exclusions is clear and concise. The applicability of RCRA (or
not) is readily discernible from the scenarios.

N/A

2b

61

Daley

These scenarios seem plausible. They are described in clear and logical
detail.

N/A

2c

67

Henshel

Two other possible scenarios to address are listed above under "general
comments".

N/A

2c

68

Daley

Yes, EPA's analysis of the types and quantities of hazardous secondary
material is clear. Figure 1 provides a clear justification for the focus on
solvents and electric arc furnace dust.

N/A

D-38

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No.

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No.

Reviewer

Comment

EPA Response

2d

81

Daley

It seems as if EPA has noted many of the differences between
hazardous waste regulations and the changes stemming from the 2008
Draft Solid Waste (DSW) Final Rule. Table 2.3 is a very detailed
description of the eight likely scenarios and their impact on generators,
transporters, and intermediate reclamation facilities. This material clearly
communicates that there is likely to be substantial changes in the
accumulation and storage of hazardous secondary material (HSM).

N/A

2d

85

Ferris

Audits of reclaimers are not the same as or superior to periodic
inspections or other agency oversight.

N/A

3a

96

Daley

EPA's approach to identifying facilities that are likely to begin recycling
hazardous secondary material seems reasonable. I cannot think of
another category to include. Out of the categories presented (already
notified; damage facilities; currently generating hazardous secondary
material, and facilities that may easily expand or switch to reclamation
because of the DSW final rule), the last three categories seem more
useful to understanding likely environmental justice impacts. With only
40 facilities providing notification at the time of the report, it is likely that
"street level" implementation will be driven by the larger population of
facilities rather than early adopters.

N/A

3a

98

Henshel

no comment, outside this reviewer's area of expertise

N/A

3b

101

Henshel

no comment, outside this reviewer's area of expertise

N/A

3c

102

Daley

EPA is defining a community as a 3 kilometer circle or buffer around one
of the facilities included in this analysis. The agency then uses census
information to apportion socio-economic and demographic ratios within
this radius. This method is superior to simply using standard census
divisions such as census tracts, blocks, or even zip code aggregation.

N/A

D-39

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No.

Reviewer

Comment

EPA Response

3c

103

Daley

The operational definition of "a community" is challenging and the
environmental justice literature has numerous empirical studies at
different levels of analysis, sometimes providing conflicting and
competing results. Thus, using a measure of community with stronger
measurement validity is important. Like all measurements, this is not a
perfect representation of "a community", but it is a much improved
measure over more traditional approaches, i.e., studies that rely upon
preexisting census designations to ascertain community characteristics.
Increasingly, a 3 kilometer radius is becoming a standard approach to
improving the precision of community measures in environmental justice
and public health research.

N/A

3c

105

Ferris

EPA synchronizes with Professor Paul Mohai and Professor Robin Saha
who are doing cutting edge demographic analysis. Their work shows
increasing disproportionality, for example, nationally, people of color
now make up the majority of those living within 3-km of such facilities
and that where facilities cluster they make up over two-thirds. These are
the highest concentrations of people of color ever reported from a
national study of the distribution of hazardous waste facilities.
Furthermore, when applying their recommended statistical analysis, it
was found that racial disparities persist even when controlling for
socioeconomic factors such as income, housing values, education, and
employment status.

N/A

4a

111

Henshel

Using census data is standard protocol for many EJ analyses.

N/A

4b

114

Ferris

Without RCRA status or Treatment, Storage and Disposal (TSD)
protections, communities will many facilities are not required to get a
permit, provide notice and opportunity to comment, address public input,
monitor or be subject to protective container standards or storage time
limits. These are baseline historic protections that, while they do exist,
as regards most environmental statutes, they haven't been updated to
reflect the "real world" since original passage.

N/A

D-40

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No.

Reviewer

Comment

EPA Response

4b

115

Ferris

Furthermore, taking advantage of existing public participation mandates
commonly requires a massive investment of usually volunteer
community resources to engage in a process that is time consuming and
expensive and in which, comparatively, the private sector and
government stakeholders have extensive resources and dedicated staff.

N/A

4c

124

Henshel

It appears, yes.

N/A

4e

130

Daley

The statistical analysis seems to be properly done. As far as I can tell,
these are conditional probability calculations. It is a relatively
straightforward and simple approach. While I am not a statistician, it
seems like a reasonable way to approach the analysis. It provides the
agency with two types of information: the chances that a facility exists in
a buffer area given the demographic and socio-economic composition
(threshold risk), and the probability of a particular demographic or
socioeconomic composition given the likelihood of facilities (the
demographic ratio).

N/A

4f

138

Daley

Yes, I think the assumptions are accurately presented. Footnotes 34 -
37 are important components in the analysis. The report very clearly
outlines data sources and how the information is aggregated together.
As already noted, the distributional assumptions of the areal
apportionment method should be more fully explained.

N/A

4f

139

Ferris

Assumptions appear accurate; however at this reading, this reviewer
cannot determine whether they are thorough.

N/A

4f

141

Henshel

[No response provided]

N/A

4g

143

Ferris

Uncertainties in the data input in the analysis appear to be appropriate.

N/A

D-41

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No.

Reviewer

Comment

EPA Response

4h -1

145

Daley

See 2. below.

N/A

4h -1

146

Ferris

The reviewer is uncertain if this analysis will yield additional useful
information without an assessment of additional cases.

N/A

4h -1

147

Henshel

Your meaning is not fully clear in this question, and it is not clear what
analyses you would do to address this question, and how you would
break up the data. I am also concerned that the number of facilities in
each group might then be so small as to really decrease power to detect
significant differences.

N/A

5a

158

Ferris

The description of other factors that may affect vulnerability is accurate.

N/A

5a

159

Ferris

The DSW Rule contains sound baseline vulnerability factors.

N/A

5a

163

Henshel

[No response provided]

N/A

5b

164

Ferris

The broader discussion is helpful. The report is complex, removing the
broader discussion will not simplify the report tremendously. The
broader discussion, however adds thoughtful detail and clearly
communicates the challenges confronting public and private decision
makers.

N/A

5b

167

Ferris

The section is clear that lower participation levels can translate into
experiencing greater negative impacts since "their input has not been
considered fully, particularly if competing interests are set forth more
effectively."

N/A

5b

169

Henshel

It is better to keep the discussion broader. In this kind of document, it is
important to include the negative results as well as the positive results.

N/A

D-42

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No.

Reviewer

Comment

EPA Response

5c

172

Ferris

Unfunded mandates would affect EPA ability to ensure compliance if
enforcement is left to states that don't have the budget to inspect,
monitor, notify the public or implement public involvement.

N/A

6a

175

Daley

Yes, the conclusions seem to stem directly from the analysis presented
in the report.

N/A

6a

176

Ferris

The analysis and conclusions are extensive.

N/A

6a

178

Henshel

Yes, the results support EPA's conclusions, but likely not as well,
currently, as they might with more extensive EJ analysis carried out on
the data.

N/A

6b

179

Daley

Yes, I think the agency has clearly differentiated between the community
level analysis - comparing the 3 km buffer area to state, national and
urban and rural areas, and the population level analysis - exploring the
threshold risk ratio and the demographic ratio for a larger set of
categories (minority, poverty, American Indian and Alaska Native, and
children under 5).

N/A

6b

180

Ferris

The differences between community level and population level analysis
are clear.

N/A

6b

181

Henshel

I think so, but I am not fully sure that my answer comes from the
readability and clarity of the explanations - I suspect my familiarity with
the information is affecting my comfort with the descriptions.

N/A

ESa

28

Ferris

The Executive Summary is very clear and readable.

N/A

ESa

29

Ferris

The material is complex and dense which is to be expected in an agency
rulemaking.

N/A

ESb

36

Daley

Yes, the Executive Summary provides an accurate summary of the more
detailed material presented in the report.

N/A

D-43

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No.

Reviewer

Comment

EPA Response

ESb

42

Henshel

See above comments. But yes, the Executive Summary does provide a
reasonably accurate view of the findings and conclusions of this
analysis.

N/A

Ga

3

Ferris

Generally, the DSW Rule is read-able and clear.

N/A

Gb

14

Ferris

Generally, information in the DSW Rule presented is clear and appears
to be accurate.

N/A

Gc

23

Ferris

The DSW Rule is an extensive document with significant analysis and
extensive data.

N/A

Gc

24

Henshel

This is a nice review of the data. This is a nice first analysis.
Improvements can be made. This question is a perfect example of the
redundancy that could be avoided.

N/A

Ga

6

Henshel

Readability. Unfortunately, this document is pretty standard for an EPA
document. If the audience is only technical, the document is usable and
readable. If the audience is intended to be the EJ communities and
include a non-technical audience, this document is dense and difficult to
read. There is also a lot of "spaghetti" logic - explanations that are
internally referencing without sufficient definition of terms or acronyms.
The document is missing some key components that would make it
more readable. These include:

N/A

D-44

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No.

Reviewer

Comment

EPA Response

Ga

9

Henshel

Utility. This analysis and report does demonstrate that there already is a
bias in the location of the facilities that already produce hazardous
waste, and this includes a bias in the facilities that might utilize this rule
to increase storage time and volume of exempted otherwise hazardous
materials. The environmental justice analysis could have been more
complete. Further discussion of other approaches are included below.
The report does make reasonably recommendations for some of the
ways that the environmental justice concerns might by reduced,
although the discussion of these abbreviated comments was both vague
and needed elaboration.

An analysis of the
demographics around disposal
facilities has been added.

4b

112

Daley

Yes. The EPA has selected appropriate characteristics to analyze in this
report. I think it would be a stronger analysis if along with "children under
five", "adults over 65" were included in the detailed analysis in chapter 4.
Given the demographic transitions of the baby boomers into an elderly
population, it will become more critical to understand differential
exposure for susceptible populations at both ends of the spectrum.

The EJ Characteristics
selected were based on EO
12898 and 13045.

6c

196

Henshel

The chapter analyses seem to be ignoring the risk ratio data. Since the
"full" set of analyses (ie Fishers Exact Test, for example) did not actually
carry out the full set of analyses (separating out Black and Asian, for
example), it seems that the results might have been stronger with the
additional analyses.

Discussion of risk ratio data
was added to the statistical
analysis section.

4e

134

Henshel

Why are the same charts repeated twice? Is this necessary?

Additional discussion was
added to Section 4 to clarify
charts.

D-45

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No.

Reviewer

Comment

EPA Response

4a

110

Ferris

EPA synchronizes with Professor Paul Mohai and Professor Robin Saha
who are doing cutting edge demographic analysis. Their work shows
increasing disproportionality, for example, nationally, people of color
now make up the majority of those living within 3-km of such facilities
and that where facilities cluster they make up over two-thirds. These are
the highest concentrations of people of color ever reported from a
national study of the distribution of hazardous waste facilities.
Furthermore, when applying their recommended statistical analysis, it
was found that racial disparities persist even when controlling for
socioeconomic factors such as income, housing values, education, and
employment status.

N/A

4c

123

Ferris

EPA synchronizes with Professor Paul Mohai and Professor Robin Saha
who are doing cutting edge demographic analysis. Their work shows
increasing disproportionality, for example, nationally, people of color
now make up the majority of those living within 3-km of such facilities
and that where facilities cluster they make up over two-thirds. These are
the highest concentrations of people of color ever reported from a
national study of the distribution of hazardous waste facilities.
Furthermore, when applying their recommended statistical analysis, it
was found that racial disparities persist even when controlling for
socioeconomic factors such as income, housing values, education, and
employment status.

N/A

4d

126

Ferris

EPA synchronizes with Professor Paul Mohai and Professor Robin Saha
who are doing cutting edge demographic analysis. Their work shows
increasing disproportionality, for example, nationally, people of color
now make up the majority of those living within 3-km of hazardous waste
facilities and that where facilities cluster they make up over two-thirds.
These are the highest concentrations of people of color ever reported
from a national study of the distribution of hazardous waste facilities.
Furthermore, when applying their recommended statistical analysis, it
was found that racial disparities persist even when controlling for

N/A

D-46

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No.

Reviewer

Comment

EPA Response







socioeconomic factors such as income, housing values, education, and
employment status.



4e

131

Ferris

EPA synchronizes with Professor Paul Mohai and Professor Robin Saha
who are doing cutting edge demographic analysis. Their work shows
increasing disproportionality, for example, nationally, people of color
now make up the majority of those living within 3-km of hazardous waste
facilities and that where facilities cluster they make up over two-thirds.
These are the highest concentrations of people of color ever reported
from a national study of the distribution of hazardous waste facilities.
Furthermore, when applying their recommended statistical analysis, it
was found that racial disparities persist even when controlling for
socioeconomic factors such as income, housing values, education, and
employment status.

N/A

2

54

Ferris

The discussion of hazards associated with mainly the 2 selected vectors
is clear. Hazards are extensive in contrast to reducing the levels of
regulatory oversight provided by RCRA. Should all 4 legitimacy factors
should be mandatory in view of the hazards? What about release
reporting? Should releases be grounds for losing exclusion and HSW
status? How is a significant release determined?

N/A (comment on 2008 DSW
rule)

2

55

Ferris

In view of the stated hazards, could managing HSW as a valuable
commodity influence the generator, receiver, recycler and affect
compliance? This goes to the concept of legitimacy. Would the
mandating a showing of economic value militate in favor of safeguards
against releases, spillage?

N/A (comment on 2008 DSW
rule)

D-47

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No.

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Comment

EPA Response

2

56

Ferris

If wastes that are going to be recycled as hazardous as wastes that are
not recycled, are both equally likely to be mishandled? Are the
regulatory and enforcement tools provided by the DSW Rule
commensurate with the task of ensuring compliance?

N/A (comment on 2008 DSW
rule)

3

94

Ferris

Does the large number of damages cases support granting the transfer-
based exclusion?

N/A (comment on 2008 DSW
rule)

2b

63

Daley

The DSW Rule could inadvertently encourage mismanagement while
transitioning materials into the recycling stream. Does the Rule apply
where HSW is recycled into even more toxic products?

N/A (comment on 2008 DSW
rule)

2b

64

Daley

Should notice be the hazard quid pro quo for the exclusions which
provide the benefit of different (reclamation), streamlined treatment of
HSW?

N/A (comment on 2008 DSW
rule)

2c

71

Ferris

How and when does enforcement after a "significant" release occur?
How is the determination made as to what constitutes a significant
release? Which party has the burden of proof? It would seem that
placing the burden of proof on the party that causes or is responsible for
the release should bear the burden of proof opposed to, for example, the
governmental entity.

N/A (comment on 2008 DSW
rule)

2c

75

Ferris

Would streamlined, but standardized HSW reporting on a Manifest or
comparable document be feasible, e.g., for state and local government,
the industry?

N/A (comment on 2008 DSW
rule)

2c

76

Ferris

Compliance with financial assurance can be a high hurdle given
conditions imposed by the environmental insurance market. All parties
under this rule should be required to comply with financial assurance.
Would requiring management standards for reclamation facilities that
don't have RCRA permits strengthen the DSW Rule by increasing or
reducing the potential for environmental releases and/or
disproportionate negative impacts?

N/A (comment on 2008 DSW
rule)

D-48

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No.

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Comment

EPA Response

2d

82

Ferris

The threat of post facto CERCLA liability is not interchangeable with up-
front environmental protection standards, notice and record-keeping
requirements. Streamlined record, keeping, tracking and monitoring
would contribute to ensuring that toxic wastes are not dumped illegally
dumped in disproportionately affected communities and would contribute
to ensuring that HSW is safely delivered to the recycling facility.

N/A (comment on 2008 DSW
rule)

2d

83

Ferris

The DSW Rule could be characterized, to some extent, as industry self-
certification on HSW, which contrasts sharply with RCRA's historic
cradle-to-grave framework and preventative approach to hazardous
waste management and disposal.

N/A (comment on 2008 DSW
rule)

2d

84

Ferris

Generators and third party reclaimers must file notices - they should be
required or the HSW should be treated as hazardous waste.

N/A (comment on 2008 DSW
rule)

4b

113

Ferris

Is the preventative approach a reasonable starting point when
evaluating harm to the environment and public health.

N/A (comment on 2008 DSW
rule)

4b

117

Ferris

Notice requirements inform communities, the public and municipalities
about how HSW is being managed and recycled. How would the public
learn about releases, spillage without notice, monitoring, recordkeeping;
how would they advocate safeguards or alternatives? Streamlined
requirements would be preferable to none.

N/A (comment on 2008 DSW
rule)

4b

119

Ferris

Should recyclers be required to demonstrate a history of compliance
prior to benefiting from the exclusions?

N/A (comment on 2008 DSW
rule)

5b

168

Ferris

Does the importance and/or benefit of recycling override the value of
public participation especially where disproportionality is an issue?
Additionally, the studies show that facilities which have notified already
show multiple facilities, higher disease incidence and a dearth of
hospitals in the 3-km area.

N/A (comment on 2008 DSW
rule)

D-49

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No.

Reviewer

Comment

EPA Response

6a

177

Ferris

Arguably, DSW Rule conclusions supporting exclusion of HSW from
RCRA protections are not thoroughly supported by the analysis as it
pertains, in particular, to multiple (disproportionate?) impacts, potential
hazards and public participation.

N/A (comment on 2008 DSW
rule)

6c

185

Ferris

Specific and explicit storage timeframes and container requirements
would facilitate safer handling by reducing the prospects for potential
explosions, spills and other uncontrolled releases of HSM.

N/A (comment on 2008 DSW
rule)

6c

186

Ferris

Off-site reclamation - regulatory safeguards that ensure proper
management of HSW while on-site and during shipment are important.

N/A (comment on 2008 DSW
rule)

6c

189

Ferris

What constitutes "reasonable effort" is not clear. This may not be a
sufficiently high bar to deter mismanagement of HSW and could
encourage high risk conduct.

N/A (comment on 2008 DSW
rule)

6c

192

Ferris

Does the DSW Rule facilitate broad adoption by the states and state
implementation?

N/A (comment on 2008 DSW
rule)

6c

194

Ferris

Encouraging recycling should be possible while retaining a reasonable
assurance of regulatory protection for health and the environment.

N/A (comment on 2008 DSW
rule)

ESb

38

Ferris

The Scenarios chart shows several instances involving movement or
activity related to HSM where it appears that various historic RCRA
safeguards are not required see e.g., certain scenarios under Scenario
3; Scenario 5; Scenario 6; Scenario 7; Scenario 8) without, it could be
said, on balance, assuring a regulatory atmosphere that influences the
regulated community to handle HSW in ways that prevent hazards.
Comparatively, streamlined notice and recordkeeping would both
facilitate emergency planning and response and protect human health
and the environment.

N/A (comment on 2008 DSW
rule)

ESb

41

Ferris

Regarding DSW Rule controversies about disproportionate negative
impacts and exposures, would these communities feel more protected
(versus adding to the burden of already cumulative pollution) if HSW

N/A (comment on 2008 DSW
rule)

D-50

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No.

Comment
No.

Reviewer

Comment

EPA Response







were handled similar to those substances categorized under Universal
Wastes?



D-51

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