# Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Conditional Exclusions From Hazardous Waste and Solid Waste for Solvent-Contaminated Industrial Wipes > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A03-28652 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** November 20, 2003 - **Citation:** 68 FR 65586 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 260 and 261 [RCRA-2003-0004; FRL-7587-7] RIN 2050-AE51 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Conditional Exclusions From Hazardous Waste and Solid Waste for Solvent-Contaminated Industrial Wipes AGENCY: Environmental Protection Agency. ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency (EPA) today proposes to modify its hazardous waste management regulations under the Resource Conservation and Recovery Act (RCRA) for certain solvent-contaminated materials, such as reusable shop towels, rags, disposable wipes and paper towels. Specifically, EPA is proposing: to conditionally exclude from the definition of hazardous waste disposable industrial wipes that are contaminated with hazardous solvents and are going to disposal; and, to conditionally exclude from the definition of solid waste reusable industrial shop towels and rags that are contaminated with hazardous solvents and are sent for laundering or dry cleaning (hereinafter referred to as disposable industrial wipes and reusable industrial wipes, respectively). This proposal affects contaminated industrial wipes being sent to both landfill and non-landfill ( e.g., laundries and combustion) facilities and is applicable to: industrial wipes exhibiting a hazardous characteristic ( i.e., ignitability, corrosivity, reactivity, or toxicity) due to use with solvents; or industrial wipes contaminated with F001-F005 spent F-listed solvents or comparable P- and U-listed commercial chemical products that are spilled and cleaned up with industrial wipes. Today's proposal would resolve, at the Federal level, long-standing issues associated with the management of solvent-contaminated industrial wipes by: facilitating pollution prevention and waste minimization opportunities, including the recycling of the spent solvents extracted from contaminated industrial wipes; fostering improved solvents management by generators and handling facilities; reducing compliance costs; increasing consistency in the regulations governing solvent-contaminated industrial wipes across the United States; clarifying existing federal rules; and creating flexibility for generators to work with industrial laundries, as appropriate, to ensure compliance with local pretreatment standards established by Publicly Owned Treatment Works (POTWs). Today's proposal also contains the Agency's proposed response to rulemaking petitions filed by the Kimberly-Clark Corporation and the Scott Paper Company. DATES: Submit comments on or before February 18, 2004. Comments postmarked after this date will be marked “late” and may not be considered. Any person may request a public hearing on this proposal by filing a request by January 20, 2004. ADDRESSES: Comments may be submitted by mail to: RCRA Information Center, Mailcode: 5305T, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC, 20460, Attention Docket ID Number RCRA-2003-0004. Comments may also be submitted electronically, by facsimile, or through hand delivery/courier. Follow the detailed instructions as provided in section 1.B. of the SUPPLEMENTARY INFORMATION section. FOR FURTHER INFORMATION CONTACT: For information, contact the RCRA/Superfund/EPCRA/UST Hotline at (800) 424-9346 (toll free) or TDD (800) 553-7672 (hearing impaired). In the Washington, DC metropolitan area, call (703) 412-3323 or TDD (703) 412-9810. You can also contact Kathy Blanton at (703) 605-0761 or at blanton.katherine@epa.gov. SUPPLEMENTARY INFORMATION: I. General Information A. How Can I Get Copies of This Document and Other Related Information? 1. Docket EPA has established an official public docket for this action under Docket ID No. RCRA-2003-0004. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the OSWER Docket in the EPA Docket Center at 1301 Constitution Avenue, Washington, DC. The EPA Docket Center Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. Copies cost $0.15/page. 2. Electronic Access You may access this Federal Register document electronically through the EPA Internet under the Federal Register listings at < http://www.epa.gov/fedrgstr/ >, and you can make comments on this proposed rule at the Federal e-rulemaking portal, < http://www.regulations.gov >. An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at < http://www.epa.gov/edocket/ > to submit or view public comments, access the index listing of the contents of the official public docket or to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket identification number. Certain types of information will not be placed in the EPA Docket. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.A. For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket. Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff. B. How and to Whom Do I Submit Comments? You may submit comments electronically, by mail, by facsimile, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. 1. Electronically If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. a. EPA Dockets Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at < http://www.epa.gov/edocket, > and follow the online instructions for submitting comments. To access EPA's electronic public docket from the EPA Internet Home Page, select “Information Sources,” “Dockets,” and “EPA Dockets.” Once in the system, select “search,” and then key in Docket ID Number RCRA-2003-0004. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment. b. E-mail Comments may be sent by electronic mail (e-mail) to “ rcra-docket@epamail.epa.gov, ” Attention Docket ID Number RCRA-2003-0004. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. c. Disk or CD ROM You may submit comments on a disk or CD ROM that you mail to the mailing address identified in this section. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption. 2. By Mail Send your comments to: OSWER Docket, EPA Docket Center, Mailcode: 5305T, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC, 20460, Attention Docket ID Number RCRA-2003-0004. 3. By Hand Delivery or Courier Deliver your comments to: Environmental Protection Agency, EPA Docket Center, Room B102, 1301 Constitution Avenue, NW., Washington, DC, Attention Docket ID Number RCRA-2003-0004. Such deliveries are only accepted during the Docket's normal hours of operation as identified above. 4. By Facsimile Fax your comments to: (202) 566-0270, Attention Docket ID Number RCRA-2003-0004. C. How Should I Submit Confidential Business Information (CBI) to the Agency? Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. Send or deliver information identified as CBI only to the following address: RCRA CBI Document Control Officer, Office of Solid Waste (5305W), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention Docket ID No. RCRA-2003-0004. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section. D. What Should I Consider as I Prepare My Comments for EPA? You may find the following suggestions helpful for preparing your comments: 1. Explain your views as clearly as possible. 2. Describe any assumptions that you used. 3. Provide any technical information and/or data you used that support your views. 4. If you estimate potential burden or costs, explain how you arrived at your estimate. 5. Provide specific examples to illustrate your concerns. 6. Offer alternatives. 7. Make sure to submit your comments by the comment period deadline identified. 8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments. Acronyms Acronym Definition APA Administrative Procedures Act. ASTSWMO Association of State and Territorial Solid Waste Management Officials. CAA Clean Air Act. CAS No Chemical Abstracts Service Registry Number. CBI Confidential Business Information. CESQG Conditionally Exempt Small Quantity Generator. CFR Code of Federal Regulations. CSI Common Sense Initiative. CWA Clean Water Act. DOT Department of Transportation. ELG Effluent Limitations Guideline. EPA Environmental Protection Agency. FR Federal Register. HSWA Hazardous and Solid Waste Amendments. ICR Information Collection Request. IRIS Integrated Risk Information System. LDR Land Disposal Restrictions. MIBK Methyl Isobutyl Ketone. MWC Municipal Waste Combustor. NESHAP National Emission Standards for Hazardous Air Pollutants. NSPS New Source Performance Standards. NTTAA National Technology Transfer and Advancement Act. OMB Office of Management and Budget. OPPE Office of Policy, Planning and Evaluation. OSHA Occupational Safety and Health Administration. PBMS Performance Based Measurement System. POTW Publicly Owned Treatment Works. SBREFA Small Business Regulatory Enforcement Fairness Act. RCRA Resource Conservation and Recovery Act. RFA Regulatory Flexibility Act. RfC Reference Air Concentrations. RfD Reference Doses for Exposure through Ingestion. RIC RCRA Information Center. TC Toxicity Characteristic. TCLP Toxicity Characteristic Leaching Procedure. TBD Technical Background Document. TDD Telecommunications Device for the Deaf. UMRA Unfunded Mandates Reform Act. VOCs Volatile Organic Compounds. The contents of today's proposal are listed in the following outline: I. General Information A. How Can I get Copies of the Document and Other Related Information? B. How and to Whom Do I Submit Comments? C. How Should I Submit Confidential Business Information (CBI) to the Agency? D. What Should I Consider as I Prepare My Comments for EPA? II. Legal Authority III. Summary of Proposed Changes A. Generator Conditions 1. Generator Conditions: Exclusion From the Definition of Hazardous Waste 2. Generator Conditions: Exclusion From the Definition of Solid Waste B. Handling Facility Conditions 1. Handling Facility Conditions: Exclusion From the Definition of Hazardous Waste 2. Handling Facility Conditions: Exclusion From the Definition of Solid Waste C. Who Would Be Affected by the Proposed Exclusions? IV. Background A. What Is the Intent of Today's Regulatory Proposal? B. Jurisdiction Over Solvent-Contaminated Industrial Wipes 1. Exclusion From the Definition of Hazardous Waste 2. Exclusion From the Definition of Solid Waste C. Solvent Removed From Industrial Wipes V. Detailed Discussion of Proposed Rule A. Scope of Solvents Covered by the Proposed Rule B. Conditions for Exclusion From the Definition of Hazardous Waste for Solvent-Contaminated Industrial Wipes Destined for Disposal 1. Why Is EPA Proposing to Conditionally Exclude Disposable Solvent-Contaminated Industrial Wipes From the Definition of Hazardous Waste? 2. Proposed Conditions for Initial Storage and Accumulation 3. Proposed Conditions for Containers Used for Transportation 4. Proposed Labeling Condition for Containers Used to Transport Disposable Wipes 5. Proposed Conditions for Transportation to a Municipal or Other Non-Hazardous Landfill 6. Proposed Condition for Transportation to Non-Land Disposal Facilities 7. “Exotic” Solvents 8. Generators that Remove Solvent From Industrial Wipes 9. Proposed Conditions for Intra-Company Transfers 10. Proposed Conditions for Management at Handling Facilities 11. Management of Industrial Wipes Containing Co-Contaminants 12. Proposed Conditions for Burning Solvent-Contaminated Industrial Wipes in Combustors 13. Disposal of Treatment Residuals From Municipal Waste and Other Combustion Facilities C. Conditions for the Exclusion From the Definition of Solid Waste for Reusable Industrial Wipes 1. Why is EPA Proposing to Exclude Reusable Solvent-Contaminated Industrial Wipes From the Definition of Solid Waste? 2. Applicable Solvents 3. Proposed Conditions for Initial Storage and Accumulation 4. Proposed Conditions for Containers Used for Transportation 5. Proposed Conditions for Transportation to Laundry, Dry Cleaner, or Handler 6. “Exotic” Solvents 7. Generators That Remove Solvent From Industrial Wipes 8. Proposed Conditions for Intra Company Transfers 9. Proposed Conditions for Management at Handling Facilities D. Recordkeeping E. Enforcement F. Alternative Options to the Approach in Today's Proposed Rule 1. Exclusion From the Definition of Hazardous Waste for Disposable and Reusable Solvent-Contaminated Industrial Wipes 2. Exclusion From the Definition of Hazardous Waste for All Disposable Solvent-Contaminated Wipes Under a Single Set of Conditions VI. Additional Benefit of the Proposed Rule: Fostering Pollution Prevention VII. Risk Screening Analysis A. Introduction B. What Analyses Did EPA Do? C. What Were the Results of the Analyses and What Do They Mean? 1. Disposable Solvent-Contaminated Industrial Wipes Managed in Landfills 2. Ash From Incineration of Disposable Solvent-Contaminated Wipes Managed in Landfills 3. Sludge From Wastewater Treatment at Industrial Laundries and Managed in Landfills 4. Ecological Assessment D. What External Review Was Done of the Risk Screening Analysis? VIII. History and Relationship to Other Rulemakings A. Proposed Effluent Guidelines for Industrial Laundries B. Hazardous Waste Listing Determination for Spent Solvents IX. State Authorization A. Applicability of Rule in Authorized States B. Effect on State Authorizations X. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review 1. Economic Analysis 2. Affected Economic Sub-sectors 3. Economic Impact of Today's Other Proposed Exclusion Options B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act Appendix A to Preamble—Demographics of the Industrial Wipes Industry Appendix B to Preamble—Memorandum from Michael Shapiro II. Legal Authority EPA proposes these regulations under the authority of Sections 2002, 3001-3010, and 7004 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6912 , 6921-6930, and 6974. III. Summary of Proposed Changes EPA today proposes a conditional exclusion from the regulatory definition of hazardous waste for solvent-contaminated industrial wipes going to disposal and combustion, including use as a fuel, and a conditional exclusion from the regulatory definition of solid waste for solvent-contaminated reusable wipes, shop towels, and rags that are sent for laundering or dry cleaning (hereinafter referred to as disposable industrial wipes and reusable industrial wipes, respectively). As long as the specified conditions are met, the Agency proposes that the exclusions from both the definition of hazardous waste and the definition of solid waste be applicable to (1) industrial wipes exhibiting a hazardous characteristic ( i.e. , ignitability, corrosivity, reactivity, or toxicity) 1 due to use with solvents or (2) industrial wipes contaminated with F001-F005 spent F-listed solvents or comparable P- and U-listed commercial chemical products that are spilled and cleaned up with industrial wipes. This proposal would not affect the regulatory status, under federal regulation, of Conditionally Exempt Small Quantity Generators (CESQGs)—those that generate no more than 100 kilograms of hazardous waste or no more than one kilogram of acutely hazardous waste in a month and who accumulate no more than 1000 kilograms of hazardous waste or no more than one kilogram of acutely hazardous waste at one time. 1 Solvent-contaminated industrial wipes that are co-contaminated with another material that makes them characteristically hazardous for corrosivity, reactivity, or toxicity would not be eligible for the exclusion from the definition of hazardous waste or the exclusion from the definition of solid waste. If the industrial wipes are co-contaminated with a material that makes them characteristically hazardous for ignitability, they would remain eligible. For more discussion of this provision, see Section V.B.11. It has long been EPA's policy to encourage the appropriate state or EPA regional office to characterize the regulatory status of laundered and reused wipes based on site-specific factors. ( See Appendix B, which contains a policy memo from Mike Shapiro, Director, Office of Solid Waste, to EPA Waste Management Division Directors, February 14, 1994.) Most authorized states already exclude reusable wipes from the definition of solid or hazardous waste as long as certain basic conditions are met, such as the removal of free liquids by the user. It is not EPA's intent to modify or in any way limit the existing state or EPA regional exclusions or policies through this proposed Federal rulemaking. Because this action is a proposed rulemaking, provisions of the proposal, as well as EPA's assumptions and rationale leading to them, are subject to public notice and comment. Therefore, until a final rule governing these materials is issued, the regulatory status and classification of these materials, including all regulatory exclusions under the current RCRA programs implemented by a state or EPA region implementing the RCRA program, remain unchanged. See section IX.B. of this preamble for the effect this rule would have on the RCRA program in authorized states when finalized. EPA's recent examination of solvent-contaminated industrial wipes is a result of issues and questions raised by stakeholders concerning the Agency's current policy on these materials. In developing our response to those concerns, EPA also conducted a risk screening analysis and an investigation of potential damages from mismanagement of solvent-contaminated industrial wipes to make sure risks from wipes management would be addressed and taken into consideration. We emphasize that EPA's concern surrounding the use of both types of industrial wipes—disposables and reusables—is based on the hazardous solvent contained in the used wipes, not the industrial wipes themselves. This proposed rule would not apply to industrial wipes contaminated with aqueous-based solvents or solvents that, when spent, are not hazardous wastes. We strongly recommend that generators examine the feasibility of substituting non-hazardous solvents for hazardous solvents. By using non-hazardous solvents, individual facilities may eliminate or reduce compliance costs associated with RCRA and the Clean Air Act (CAA), as well as U.S. Occupational Safety and Health Administration (OSHA), and U.S. Department of Transportation (DOT) regulations. For generators using reusable industrial wipes that are managed by an industrial laundry or dry cleaner, indirect costs associated with Clean Water Act (CWA) regulations may also be reduced. We also encourage generators to examine the possibilities of resource conservation through removal and reclamation of their solvents, if possible, and believe that the changes proposed today will encourage additional reclamation of hazardous solvents. The conditions that would be required for the exclusion from the definition of hazardous waste and the exclusion from the definition of solid waste are outlined below. For a more detailed discussion of generator, handler and processing facility conditions, see Section V. A. Generator Conditions 1. Generator Conditions: Exclusion From the Definition of Hazardous Waste For disposable solvent-contaminated industrial wipes that will be managed at a non-landfill disposal facility to meet the exclusion from the definition of hazardous waste, generators would be required to (1) accumulate and store solvent-contaminated wipes on site in non-leaking covered containers; (2) ensure that the solvent-contaminated wipes contain no free liquids, except as noted below, when transported off site to a handling facility; and (3) transport the solvent-contaminated industrial wipes off site in containers designed, constructed, and managed to minimize solvent loss to the environment and labeled “Excluded Solvent-Contaminated Wipes.” Today's proposal would also require that disposable solvent-contaminated wipes managed at municipal landfills or other non-hazardous waste landfills that meet the standards under 40 CFR part 257 subpart B (the disposal standards applicable to the receipt of CESQG wastes at non-municipal, non-hazardous waste disposal units) 2 (i) must be “dry” ( i.e. , contain less than five grams of solvent), and (ii) must not contain any of the 11 listed spent solvents which the Agency has tentatively determined may pose adverse risks to human health and the environment when disposed of in a landfill, even if the wipe is “dry.” See Table 1 below for the listed solvents that, when contaminating industrial wipes, would make landfilled wipes ineligible for an exclusion from the definition of hazardous waste. In other words, wipes contaminated with Table 1 solvents would not be allowed in municipal landfills or other non-hazardous waste landfills under the provisions of this proposal. 2 For the purposes of today's preamble, we will use the term other non-hazardous landfill to denote part 257 subpart B compliant non-hazardous waste landfills. If a non-hazardous landfill that is not a municipal landfill accepts this waste, it must meet the minimum strandards of 40 CFR part 257 subpart B. Table 1.—Listed Solvents Ineligible for Municipal or Other Non-Hazardous Landfill Disposal 2-Nitropropane Nitrobenzene. Methyl Ethyl Ketone (MEK) Methylene Chloride. Pyridine Benzene. Cresols (o,m,p) Carbon Tetrachloride. Chlorobenzene Tetrachloroethylene. Trichloroethylene In addition, EPA is proposing that transporters be allowed to carry wipes with free liquids to other facilities within the same company under the hazardous waste exclusion when they are transporting them to a solvent recovery facility that will remove enough solvent to meet either the “no free liquid” or the “dry” condition, provided the other conditions are met. III.A.2. Generator Conditions: Exclusion From the Definition of Solid Waste For reusable solvent-contaminated industrial wipes going to be reclaimed and reused to meet the exclusion from the definition of solid waste, generators would be required to (1) accumulate and store solvent-contaminated wipes on site in non-leaking covered containers; (2) ensure that the solvent-contaminated wipes contain no free liquids when laundered on site or transported off site to a handling facility, except as noted below; and (3) transport the solvent-contaminated industrial wipes off site in containers designed, constructed, and managed to minimize losses to the environment ( e.g. , plastic bags, 55-gallon drums, or other containers). The exclusion from the definition of solid waste would be applicable only to wipes that are being reclaimed for reuse through a cleaning process. EPA is also proposing that wipes can be transported with free liquids to facilities within the same company under the exclusion when they are transporting them to a solvent recovery facility that will remove enough solvent to meet either the “no free liquid” or the “dry” condition, provided the other conditions are met. B. Handling Facility Conditions 1. Handling Facility Conditions: Exclusion From the Definition of Hazardous Waste For disposable industrial wipes to continue to meet the exclusion from the definition of hazardous waste, combustors and facilities that handle solvent-contaminated industrial wipes to remove solvent from them prior to disposal would be required to manage them (a) in containers designed, constructed and managed to minimize losses to the environment that meet the transportation requirements in today's proposal or (b) in non-leaking covered containers that would meet the generator accumulation conditions in today's proposal. Unless the handling facility and the generator are in the same company, if a handler discovers any free liquid accompanying the used solvent-contaminated industrial wipes, it would be required either to remove the free liquid and manage it properly as a hazardous waste, if applicable, or to return the container with the wipes and free liquid to the generator. 2. Handling Facility Conditions: Exclusion From the Definition of Solid Waste For reusable wipes to continue to meet the exclusion from the definition of solid waste, industrial laundries and dry cleaners, as well as facilities that handle solvent-contaminated industrial wipes to remove solvent from them prior to cleaning, would be required to manage them in containers designed, constructed and managed to minimize losses to the environment ( i.e. , today's proposed transportation condition), or in non-leaking covered containers that would meet the generator accumulation conditions in this proposal. Unless the handling facility and the generator are in the same company, if a handler discovers any free liquid accompanying the used solvent-contaminated industrial wipes, it would be required either to remove the free liquid and manage it properly or to return the container with the wipes and free liquid to the generator. C. Who Would Be Affected by the Proposed Exclusions? The following table summarizes the types and numbers of entities nationwide which we estimate could be eligible for the proposed exclusions. The exclusions would only affect those establishments which use industrial wipes in conjunction with operations involving solvents that are included in the scope of this proposal ( i.e. , F001-F005 spent F-listed solvents at 40 CFR 261.31; comparable P- and U-listed commercial chemical products at 40 CFR 261.33 that are spilled and cleaned up with industrial wipes; and solvents exhibiting a hazardous characteristic ( i.e. , ignitability, corrosivity, reactivity, or toxicity at 40 CFR 261.21-261.24)). Table 2.—Entities Potentially Affected by the Proposed Rule Item Economic sub-sector (entity type) NAICS Code SIC Code Number of affected establishments 1 1 Printing manufacturing (mfg) 323 275 to 279 18,700 to 42,000. 2 Chemical & allied products mfg 325 28 1,100 to 2,900. 3 Plastics & rubber products mfg 326 30 1,400 to 3,700. 4 Fabricated metal products mfg 332 34 4,900 to 13,000. 5 Industrial machinery & eqpt mft 333 352 to 356 2,400 to 6,300. 6 Electronics & computers mfg 3344 367 550 to 1,500. 7 Transportation eqpt mfg 336 37 1,100 to 3,000. 8 Furniture & fixture mfg 337 25 1,600 to 4,300. 9 Auto dealers (retail trade) 4411 5511 & 5521 4,000 to 10,700. 10 Publishing (printed matter) 5111 271 to 274 10,600 to 23,600. 11 Business services 561439 7334 2,900 to 6,400. 12 Auto repair & maintenance 8111 753 13,500 to 35,900. 13 Military bases 92812 9721 50 to 130. 14 Solid waste services 562 4953 4,800 to 9,650. 15 Industrial launderers 812332 7218 590 to 1,175. Total 68,000 to 164,000 1 Establishment counts above do not necessarily represent all establishments in each industry; counts represent EPA's estimate of establishments which use solvent industrial wipes and to which the conditional exclusions may apply. IV. Background EPA is addressing the issue of solvent-contaminated industrial wipes in response to stakeholder concerns that these materials warrant special consideration to correct over-regulation, as well as to ensure more consistency in the regulation of these materials. In addition, EPA sees this proposed rule as encouraging resource conservation and responsible solvent management, as well as removing potential regulatory restrictions to solvent recovery. Industrial wipes are used by thousands of commercial and industrial facilities throughout the United States to ensure that products and services meet design, performance, or operating standards. Generators often use these wipes in conjunction with ignitable solvents (any material with a flash point less than 140°F) or listed solvents that, when spent, are hazardous wastes (approximately 30 specific halogenated and non-halogenated solvents are defined by EPA as meeting the criteria for designation as hazardous). For the purposes of this proposal, we are considering two broad categories of industrial wipes: reusables and disposables. Specific definitions for the different kinds of industrial wipes can be found in Appendix A to this proposal but we have chosen, for simplicity's sake, to call all disposable wipes and reusable shop towels and rags for which this proposed rule would be applicable “industrial wipes,” and to distinguish only between those which are going to be laundered, or otherwise cleaned for reuse (“reusables”), and those which will be discarded either by combustion, including use as a fuel, or landfilling (“disposables”). A generator's decision to use disposable or reusable industrial wipes depends primarily on their processes, but sometimes it may be based on their waste management strategy. The process employed is important, for example, because the amount of lint a wipe generates can play a very significant role. Some processes, such as those in electronics and printing applications, cannot tolerate any lint, whereas other processes, such as cleaning auto parts, can tolerate large amounts of lint. Absorbent capacity is also another factor in some tasks, as is durability of a wipe in both physical strength and in its ability to withstand strong solvents. As with other commodities, a wipe's life cycle depends on its ultimate disposition. The following description illustrates generally how industrial wipes are used, but is not exhaustive of all possibilities. Some disposable wipes arrive at the generator dry, whereas others are packaged already saturated with solvent and are, therefore, ready for use immediately. Either way, the generator uses the wipe in its process and then often discards it. These wipes are typically disposed of either in a landfill or by combustion. Alternately, some wipes generally thought of as “disposable” (perhaps if they are made with paper fiber) are used more than once by being put through a solvent removal system. Because this proposal makes a distinction between wipes destined for disposal and destined for reuse, in this case the industrial wipe would be considered “reusable” if it were to be reused, even if it was manufactured for typical one-time use. Reusable wipes are part of a more systematic handling system. In general, a laundry owns reusable industrial wipes, rents them to generators, and collects them for laundering on a regular basis. Generators receive deliveries of wipes from the laundries, use them, and accumulate used wipes. Drivers, most often employed by the laundries, pick up the contaminated industrial wipes, replacing them with clean wipes at the same time, and then return the soiled wipes to the laundry. Once at the laundry, the wipes are then counted to assure the laundry is getting back from the generator the same number sent out and, finally, are cleaned before entering the cycle again. Solvent removal and recovery can happen at various points in the life cycle of both disposables and reusables. Generators may choose to recover solvent either to reduce solvent use and save money, or to reduce environmental impact; generators may generally recover solvents without additional RCRA requirements under the provisions of 40 CFR 261.6(c). In addition, laundries may recover solvents from the wipes that arrive at their facilities to minimize the amount of solvent in their effluent to comply with pretreatment requirements imposed by a Publicly Owned Treatment Works (POTW) or to recover solvent, which can be sold, refined, and reused when it is recovered. One of EPA's goals in this rulemaking is to encourage solvent recovery and recycling in order to minimize the amount of potentially hazardous solvents that are released to the environment and to conserve resources. A. What Is the Intent of Today's Regulatory Proposal? A brief history of the current regulatory scheme applicable to solvent-contaminated wipes lends perspective on how EPA has developed this proposal and explains how EPA has focused its efforts on responding to stakeholder concerns. Since EPA began to look at solvent-contaminated industrial wipes, we have heard from many interested groups that they are frustrated with the regulatory scheme now applicable to them. After the initial promulgation of the federal hazardous waste regulations, EPA began receiving inquiries from makers and users of disposable wipes, who stated that the regulations were too stringent for industrial wipes based on the risks they pose. Specifically, in 1985, EPA received a petition, pursuant to 40 CFR.260.20, from the Kimberly-Clark Corporation, a manufacturer of disposable industrial wipes, that asked EPA to exclude disposable wipes from the definition of hazardous waste. The petition stated that these materials are over-regulated because the amount of solvent in the wipes is insignificant and because the disposable wipes do not pose a threat to human health and the environment even when disposed of in a municipal solid waste landfill. In 1987, EPA received a second rulemaking petition from the Scott Paper Company that reiterated many of Kimberly-Clark's points and added that the hazardous waste regulations are not necessary because contaminated disposable wipes are handled responsibly, make up just 1% of a generator's waste stream, and could be beneficial to the operation of incinerators because of their heat value. In addition to these petitions from the makers of disposable wipes, in 1987, EPA received a rulemaking petition pursuant to 40 CFR 260.20 from the industrial laundries requesting that the solvent-contaminated wipes they wash before returning them to their customers for reuse be excluded from the definition of solid waste. In 2000, the laundries withdrew their petition. Nevertheless, the various rulemaking petitions helped set in motion the development of this proposed rule that addresses the regulatory requirements for both disposable and reusable industrial wipes. A rule addressing both types of wipes is also important because generators of solvent-contaminated wipes have asked EPA over the years to clarify our position on both disposable and reusable wipes. In the early 1990s, EPA developed a policy that deferred determinations and interpretations regarding regulation of solvent-contaminated industrial wipes to states authorized to implement the federal hazardous waste program or to the EPA region in the cases where a state is not authorized (see 2/14/94 Memo from Michael Shapiro to Waste Management Division Directors Regions I-X in Appendix B). We did this because we felt, at that time, that these questions were best addressed by the regulatory officials responsible for implementing the regulations. This policy led to the application of different regulatory schemes for both types of industrial wipes in EPA regions and states. Although the states differ in the details of their policies, in general, they regulate disposable industrial wipes as a hazardous waste when they are contaminated with a solvent that is listed or exhibits a hazardous waste characteristic. On the other hand, many, but not all, states provide regulatory relief for reusable contaminated wipes sent to an industrial laundry or other facility for cleaning and reuse. In about half the cases, this regulatory relief is in the form of an exclusion from the definition of hazardous waste, whereas other states provide an exclusion from the definition of solid waste. The substantive difference between these two approaches is that materials excluded from the definition of solid waste are not considered a waste at all, and are not subject to Federal RCRA regulation, whereas materials excluded from the definition of hazardous waste are considered to be wastes that, when certain conditions are met, do not need to be managed as hazardous wastes. For reusable industrial wipes, the conditions for the various exclusions vary from state to state, but most require that the containers of wipes not contain free liquids, and require that the laundry discharge to a Publicly Owned Treatment Works (POTW) or be permitted under the Clean Water Act. Some states have established other requirements such as requiring generators to manage contaminated wipes according to the hazardous waste accumulation standards prior to laundering, and requiring generators to file a one-time notice under the land disposal restriction (LDR) program ( see 40 CFR part 268) when wipes are sent to be laundered. More detail on the specifics of the states' policies can be found in Chapter 3 of the Technical Background Document to this proposal. The EPA policy laid out in the Shapiro memo, deferring interpretation to the states or EPA regions, has led to some confusion. The state regulations and policies established on the basis of the Shapiro memo, as described above, differ from state to state. This rule, when finalized, would clarify that EPA believes that full RCRA hazardous waste regulation of these materials is not necessary to protect human health and the environment and, therefore, that management of solvent-contaminated wipes in the manner described in this proposal is appropriate. In late 1994, EPA's policy regarding solvent-contaminated industrial wipes came under further review as a part of the Common Sense Initiative (CSI) for the printing industry. The CSI sought the insight and input of multiple stakeholders on how to make environmental regulation more easily implementable and/or less costly while still maintaining protection of human health and the environment. The one significant problem posed by RCRA regulations identified by the representatives from the printing industry was the ambiguity of the rules and regulations applicable to disposable and reusable solvent-contaminated industrial wipes. Specifically, they requested that EPA do three things: (1) Clarify the definition of “treatment” as it pertains to printers wringing solvent from their wipes; (2) examine the potential for over-regulation of disposable industrial wipes; and (3) increase regulatory consistency among the states. This proposal, therefore, results from discussions during the printing industry CSI, as well as the concerns we have heard from other stakeholders on the Agency's (and states”) current policies. We are addressing these concerns, while at the same time encouraging recycling and solvent recovery and ensuring protection of human health and the environment. In summary, the stakeholders' general positions are that generators of contaminated industrial wipes seek clarification of the rules and a more consistent regulatory scheme throughout the states; manufacturers of disposable industrial wipes feel their product is over-regulated by RCRA when levels of risk are taken into consideration leading to inequitable treatment vis-à-vis reusable wipes; and industrial laundries which clean solvent-contaminated wipes believe they are managing a commodity, not solid wastes, and should be considered accordingly. Additional stakeholder groups have also been involved in the development of this proposal. The first is made up of the state and local governments that have been developing and implementing policies for these materials for the past ten years. They have come to EPA to ask advice on what they should do when conditions established at the state level for an exclusion are not met. The second is worker unions which have also recently expressed interest in RCRA requirements for management of solvent-contaminated industrial wipes because of worker safety concerns. B. Jurisdiction Over Solvent-Contaminated Industrial Wipes 1. Exclusion From the Definition of Hazardous Waste The concept of regulating a waste if it fails to meet certain standards forms the basis of many RCRA regulations. To provide added flexibility for implementation, EPA has previously promulgated conditional relief from subtitle C regulation for low-level mixed waste, 3 for certain refining wastes, 4 and for non-chemical military munitions. 5 Today's proposed rule would limit regulation under subtitle C for solvent-contaminated industrial wipes that are disposed or combusted (circumstances when the industrial wipes are used as a fuel are included) when they meet the conditions described in this notice. 3 See 66 FR 27266, May 16, 2001, Hazardous Waste Identification Rule (HWIR): Revisions to the Mixture and Derived-From Rules: Final Rule. 4 See 63 FR 42109, August 6, 1998, Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Petroleum Refining Process Wastes; Land Disposal Restrictions for Newly Identified Wastes; and CERCLA Hazardous Substance Designation and Reportable Quantities. 5 See 62 FR 6621, February 12, 1997, Military Munitions Rule; Hazardous Waste Identification and Management; Explosives Emergencies: Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways and Contiguous Properties: Final Rule. The DC Circuit Court of Appeals has expressly upheld EPA's authority under RCRA to establish a conditional exemption from subtitle C regulation ( i.e. , hazardous waste regulation) for wastes that, absent the exemption, would be hazardous ( See Military Toxics Project v. EPA 146 F.3d 948, D.C. Cir. 1998). For a more detailed discussion of EPA's authority to establish a conditional exemption from subtitle C regulation, see the discussion at 62 FR 6636-6637 for the Military Munitions Rule preamble. 2. Exclusion From the Definition of Solid Waste Makers and users of reusable industrial wipes that are sent to laundries or dry cleaners to be cleaned prior to reuse have asked EPA to maintain our current policy of deferring to the states. Under current EPA policy, as established in 1994, EPA defers interpretations and decisions about how to regulate solvent-contaminated wipes to either an EPA region or authorized state ( see 2/14/94 memo from Michael Shapiro to Waste Management Division Directors Regions I-X). EPA is today proposing to exercise its discretion to exclude from the subtitle C definition of solid waste reusable industrial wipes exhibiting a hazardous waste characteristic due to use with solvents or containing listed solvents when the industrial wipes are laundered or cleaned for reuse under the conditions set out below. Liquids removed from such wipes are subject to hazardous waste regulation if they contain listed solvents or if they exhibit hazardous waste characteristics. The proposed conditional exclusion from the definition of solid waste will not apply to wipes that are taken out of service to be disposed of. When the wipes are disposed of, they cease being “reusable” industrial wipes and become “disposable” industrial wipes and must be handled accordingly. The proposed exclusion also does not apply to reusable wipes containing solvents or other materials that are not hazardous wastes. These wipes are not subject to subtitle C regulation. EPA also proposed a rule that would eliminate regulation of a range of materials which are reused in a continuous process within the same generating industry (68 FR 61558, October 28, 2003). The proposed rule would establish, if finalized, that such materials are not solid wastes under the rulings in American Mining Congress v. EPA , 824 F 2d 1177 (1987) (“AMC I”) and Association of Battery Recyclers v. EPA , 208 F. 3d 1047 (2000), (“ABR”). While today's proposal is more narrowly targeted in terms of waste streams, and involves cross-industry transfers, EPA will take appropriate action to ensure that the provisions in this rule are consistent with those of that broader rule, when finalized. a. Basis for Proposed Exclusion From the Definition of Solid Waste EPA's basis for the exclusion from the definition of solid waste proposed today is that industrial wipes being cleaned and returned into service are more commodity-like than waste-like and, therefore, that they can be conditionally excluded from the regulatory definition of solid waste. In 40 CFR 260.31(c), EPA states that a material's commodity-like properties can be a basis for a variance from being a solid waste, among other things, because of how they resemble a product rather than a waste and how they are managed. The finding that solvent-contaminated reusable industrial wipes are commodity-like is based on three factors and, importantly, on the fact that in this case all three factors apply to industrial wipes. EPA may not reach a similar conclusion for a material that meets just one or two of these factors. The first of the “commodity-like” factors is that the industrial wipes are often partially reclaimed, that is, spun in a centrifuge, wrung out, or allowed to drain so that some of the unwanted solvent has been removed before shipment, helping to restore the wipes to a usable condition. We are proposing a “no free liquid” condition for transportation off site to ensure that wipes that are going to reclamation have low levels of solvent consistent with this factor. The second of the factors is that industrial wipes are handled throughout the laundering or reuse process as valuable commodities because the laundry benefits from their use and reuse. When wipes return to a laundry from a user to be laundered, they are counted before the washing process. This process keeps users financially accountable for the number of wipes they have in their possession and demonstrates that the wipes are not waste-like, as they have value to the laundries and to the users. Consequently, it is more likely that the used industrial wipes will be handled carefully, in appropriate containers, and will be treated as commodities, rather than as wastes, by both users and laundries. The final consideration is that the solvent-contaminated industrial wipes are owned by the same entity throughout the process. Laundries own the wipes and lease them to the users and, therefore, have an incentive to ensure that the wipes are reused, not discarded. This factor encourages much of the same behavior as the second factor does, leading to responsible management of the materials. C. Solvent Removed From Industrial Wipes When industrial wipes are returned to laundries, the solvents are removed through laundering so that the wipes can be reused. In some cases, the solvents are collected and recycled for further use, but, in other cases, the solvent is discarded as a hazardous waste or discharged to a Publicly Owned Treatment Works (POTW). Some stakeholders have argued that industrial wipes should not be considered eligible for an exclusion from the definition of solid waste for being commodity-like, because the solvent is the hazardous constituent, not the industrial wipe, and the solvent is often discarded rather than reused. However, spent material reclamation scenarios frequently involve the removal of unwanted contaminants from the material being reclaimed. In this case, as stated above, EPA perceives the reusable solvent-contaminated industrial wipes to be a commodity-like material. Even though it contains solvent, the material is predominantly a product that needs servicing ( i.e. , solvent removal) before it can be used. Therefore, no discard occurs until after the contamination is removed from the wipe. In addition, EPA has previously concluded that contaminated material can be excluded from the definition of solid waste even though contamination ends up in the wastestreams of the reclamation process. See , for example, the proposed exclusion for glass from cathode ray tubes (67 FR 40509) and the finalized conditional exclusion for waste-derived zinc fertilizers (67 FR 48393). Nevertheless, the Agency solicits comment on this issue, and specifically on whether reusable industrial wipes should be conditionally excluded from the definition of hazardous waste, as opposed to being conditionally excluded from the definition of solid waste. V. Detailed Discussion of Proposed Rule EPA is today proposing a conditional exclusion from the definition of hazardous waste for solvent-contaminated disposable industrial wipes and a conditional exclusion from the definition of solid waste for solvent-contaminated reusable industrial wipes. This section discusses in detail the major features of and rationale for the proposal. The Agency also presents options we are considering in developing the proposed rule. We welcome any comments on all aspects of this proposed rule and on other options we considered in developing this proposal. More discussion of the options is also available in the Proposed Rule's Technical Background Document, available in the Rulemaking Docket. Throughout this description of the proposed rulemaking, EPA specifically requests comments on certain options, but comments are welcome on all elements of the proposal. A. Scope of Solvents Covered by the Proposed Rule EPA is proposing that both the exclusions in this proposal be applicable both to industrial wipes that exhibit a hazardous characteristic ( see 40 CFR 261.21-261.14) due to use with solvents and to industrial wipes containing any listed hazardous waste solvents: F001-F005 listed spent solvents ( see 40 CFR 261.31) and corresponding P- or U-listed commercial chemical products when spilled ( see 40 CFR 261.33). We also note that this proposed rule would not be applicable to generators using non-hazardous solvents, since these industrial wipes are not currently subject to regulation under subtitle C. EPA strongly recommends that generators examine the feasibility of using non-hazardous solvents because of reduced risk from use of these solvents. However, EPA also realizes that in some cases, production incompatibilities may make such a substitution infeasible. Table 3 summarizes which industrial wipes would be excluded from the definition of hazardous waste and which would be excluded from the definition of solid waste and the conditions each type of wipe would be required to meet. Table 3.—Summary of Conditions for Generators If you use or generate solvent-contaminated industrial wipes that will be managed at . . . Then for your solvent-contaminated industrial wipes . . . A combustion facility or other non-landfill disposal facility without first being sent to a handling facility for solvent removal To be excluded from the definition of hazardous waste, you would be required to: 1. Accumulate the used wipes on site in a non-leaking, covered container; 2. Ensure that the wipes do not contain free liquids when transported off site; 3. Handle any removed solvents subject to hazardous waste regulations accordingly; 4. Package wipes for shipment off site in containers that are designed, constructed, and managed to minimize loss to the environment; and 5. Mark containers “Excluded Solvent-Contaminated Wipes.” A municipal or other non-hazardous 6 landfill without first being sent to a handling facility for solvent removal To be excluded from the definition of hazardous waste, you would be required to: 1. Accumulate the used wipes on site in a non-leaking, covered container; 2. Ensure that the wipes meet the “dry” condition (contain less than 5 grams of solvent per wipe or have been processed by advanced solvent extraction) when transported; 3. Handle any removed solvents subject to hazardous waste regulations accordingly; 4. Package wipes for shipment off site in containers that are designed, constructed, and managed to minimize loss to the environment; 5. Mark the container “Excluded Solvent-Contaminated Wipes”; and 6. Ensure that the wipe does not contain the listed solvents in Table 1. —An industrial laundry —An industrial dry cleaner —A handling facility (not intra-company) that cleans wipes for reuse or removes solvent prior to cleaning or being sent for disposal To be excluded from the definition of solid waste, you would be required to: 1. Accumulate the used wipes on site in a non-leaking, covered container; 2. Ensure that the wipes do not contain free liquids when laundered on site or transported off site; 3. Handle any removed solvents subject to hazardous waste regulations accordingly; and 4. Package wipes for shipment off site in containers that are designed, constructed, and managed to minimize loss to the environment. Another facility within the company (intra-company) for free liquids removal processing to meet either the “no free liquid” condition or the “dry” condition To be excluded from the definition of solid waste or from the definition of hazardous waste, you would be required to: 1. Accumulate the used wipes on site in a non-leaking, covered container; and 2. Package wipes for shipment off site in containers that are designed, constructed, and managed to minimize loss to the environment. Note: These wipes can be transported with free liquids. Notes: (1) If wipes do not meet the appropriate conditions for accumulation and transportation, they would not be excluded and, if they cannot be made to meet the conditions, must be managed as hazardous waste. (2) For residues from combustion and industrial laundry wastewater treatment (sludges), the generator must determine if they are characteristically hazardous and, if so, must be managed as hazardous waste. If not, additional generator or transport requirements do not apply. 6 As stated above, for the purposes of this preamble, we will use the term other non-hazardous landfill to denote part 257 subpart B compliant non-hazardous waste landfills. That is, if a non-hazardous landfill that is not a municipal landfill accepts this waste, it must meet the minimum standards of 40 CFR part 257 subpart B. B. Conditions for Exclusion From the Definition of Hazardous Waste for Solvent-Contaminated Industrial Wipes Destined for Disposal 1. Why Is EPA Proposing To Conditionally Exclude Disposable Solvent-Contaminated Wipes From the Definition of Hazardous Waste? As discussed above, stakeholders have on several occasions indicated to us that regulating disposable solvent-contaminated industrial wipes as a hazardous waste is burdensome and unnecessary to protect human health and the environment and that this results in inequitable treatment relative to reusable industrial wipes. They argue that solvents associated with wipes are in low concentrations and are not likely to pose health and environmental risks similar to those from the disposal of process wastes. EPA's risk screening analysis, conducted to evaluate whether this contention is valid, suggests that management of these wipes under certain minimal, good management standards does not pose a substantial hazard to human heath and the environment and, therefore, we are proposing the conditional exclusion from the definition of hazardous waste presented today. The conditions proposed as part of the exclusion are designed both to minimize loss of solvent into the environment and, therefore, to minimize the risk of damage to the environment from those solvents, and to encourage solvent recovery and recycling. Unions representing workers who come into contact with these materials have also raised concerns to EPA regarding the exposure of their members, both through direct contact and through air emissions, to hazardous solvents when handling industrial wipes. The conditions EPA would establish would also limit volatile releases and potential exposure of workers both at generator facilities and during transportation. Finally, EPA has, where possible, designed these conditions to be performance-based and easy to understand and implement to address the concern that the Agency's current policy coupled with differing state policies, is complicated and hard to understand. Note that, as discussed in section IV of today's preamble, wipes are defined as disposable only if they will be disposed after use. If a wipe manufactured to be disposable is used and cleaned several times before disposal, it should be treated as a reusable wipe until its final use. 2. Proposed Conditions for Initial Storage and Accumulation a. Proposed Condition The proposed conditional exclusion from the definition of hazardous waste would apply to solvent-contaminated disposable industrial wipes at the point when the wipes are discarded by the generator. If the wipes were managed according to the proposed conditions, they would not be considered hazardous waste subject to subtitle C regulation. The first condition the industrial wipes would have to meet is an accumulation standard. When an industrial wipe is contaminated with a hazardous solvent and is being disposed, generators would be required to place the hazardous solvent-contaminated wipe in a non-leaking, covered container. This performance standard leaves room for flexibility because a non-leaking covered container can range from a spring-operated safety container to a drum with its opening covered by a piece of plywood. Generators would not need to seal, secure, latch, or close the container every time a wipe is placed inside; rather, they would only need to ensure that the container was covered. EPA recognizes that many generators use a large number of wipes daily, so to require unsealing and sealing a container each time a wipe is placed inside would be impractical. This condition would reduce fugitive air emissions, maximizing the ability to capture free liquids for reuse or recycling. It would also be among good management practices for generators to have regardless of this proposal to minimize worker exposure to solvents. Under the exclusion from the definition of hazardous waste, there would be no limit on accumulation time of wipes under federal regulations if the accumulation condition is being met-that is, the wipes are kept in a non-leaking covered container. Because the wipes would be solid waste but not hazardous waste, RCRA hazardous waste accumulation times would not apply. This condition is designed to prevent releases of solvent while wipes are being accumulated for shipment. EPA believes that accumulating solvent-contaminated industrial wipes in covered containers is a responsible way to manage them to prevent loss of wipes and solvent, and represents good management practices for this material, as well as good housekeeping. The condition may also help to prevent the risk of fires, the most common damage reported from mismanagement of solvent-contaminated wipes, and would help reduce volatile organic compounds (VOCs) being emitted to the work environment and the atmosphere. It would also prevent the intentional air drying of wipes as a way to reduce free liquids. One advantage of establishing a performance standard such as the one described above is that the generator may take innovative approaches to meet the performance standard being sought rather than having to use a specific design. A performance standard also provides a degree of flexibility in terms of allowing different approaches that minimize the length of time required for workers to place a used wipe in a storage container. This condition would reduce requirements for generators of solvent-contaminated disposable industrial wipes. Currently, all states regulate disposable industrial wipes as a hazardous waste. 40 CFR part 265, subpart I describes the current federal requirements for the proper storage of hazardous waste in containers at generator facilities. These standards require generators of hazardous wastes to accumulate such wastes in units meeting certain technical requirements. The unit-specific requirements for generator accumulation units are found in 40 CFR part 265. In addition to requiring that containers are in good condition and that they are made of a material that is compatible with the wastes being contained, subpart I requires that containers be closed ( i.e. , sealed) during accumulation. In addition, hazardous waste containers are subject to weekly visible inspections to locate potential deterioration, corrosion, or leaks. In addition, containers storing ignitable or reactive hazardous wastes are required to be located at least 50 feet from the facility's property line and special requirements exist for incompatible wastes. b. Other Options Accumulation Time Limit EPA is also considering including a condition that establishes a time limit for accumulation of solvent-contaminated disposable wipes at a generator facility, so they cannot be kept on site indefinitely without management. This condition would be that solvent-contaminated disposable wipes being accumulated at the generator under the conditions proposed today must also follow the accumulation time limits in 40 CFR 262.34 that are applicable for their generator category ( i.e. , 90 days for large quantity generators (LQGs) and 180 days for small quantity generators (SQGs)). In addition to following the time limits in 262.34, generators would have to mark any container in which solvent-contaminated disposable industrial wipes were being accumulated with a label stating that it holds excluded solvent-contaminated wipes and stating the date accumulation started. Although this option would require generators to follow the appropriate time limit for their generator size, because the industrial wipes are excluded from the definition of hazardous waste from the point of generation, they would not have to be added to the generators counting of hazardous waste. In other words, generating solvent-contaminated wipes under the conditions of the proposal would not cause a facility to move from being an SQG to being an LQG. No RCRA-Specific Condition The Agency also is considering not establishing a specific accumulation condition, but relying on other regulatory statutes, like the Occupational Safety and Health Act (OSHA). The Occupational Health and Safety Standards of part 1910 provide both general and specific requirements for containers used to accumulate and store certain types of materials. Subpart H of part 1910 may be applicable for the storage of industrial wipes prior to solvent removal or recovery. Section 1910.106 contains standards for the management of hazardous materials, including requirements for the management of flammable 7 and combustible 8 liquids; facilities which either generate or launder solvent-contaminated industrial wipes may be subject to these standards. According to these standards, flammable liquids must be stored in approved containers which meet the requirements of § 1910.106(d). Metal containers and portable tanks meeting Department of Transportation standards ( see 49 CFR parts 173 and 178) are acceptable. Section 1910.106 also specifies standards for the areas where containers holding flammable liquids are to be kept. The requirements for industrial plants may apply to generators or launderers of solvent-contaminated industrial wipes because the regulations apply to the portions of an industrial plant where the “use and handling of flammable and combustible liquids is incidental to the principal business ( e.g. , solvents used for cleaning presses at printing facilities).” At industrial plants, flammable liquids must be stored in tanks or closed containers, defined as a container that is sealed with a lid or other device to prevent the release of liquids or vapors at ordinary temperatures (§ 1910.106(a)(9)). 7 Flammable liquids are defined as any liquid having a flash point below 100° F (37.8° C) or higher, the total of which make up 99 percent or more of the total volume of the mixture. Several solvents that are either listed or characteristic hazardous wastes and are used in conjunction with wipes also meet the definition of a flammable liquid (such as acetone, ethyl acetate, ethyl benzene, methyl ethyl ketone, petroleum naphtha). 8 Combustible liquids are any liquids having a flash point at or above 100° F (37.8° C). Storage of spent solvent wipes that contain a negligible amount of solvents may be addressed under OSHA's regulations at 29 CFR 1910.106 (e)(9)(iii), which describe general housekeeping measures for “combustible waste material and residues” and residues of flammable liquids, combustible waste material and residues in a building or unit operating area. These standards specify that these materials are to be (1) kept to a minimum; (2) stored in covered metal receptacles; and (3) disposed of daily. However, these standards may not apply to solvents if they do not meet OSHA's definition of flammable liquid, although they may still be hazardous waste under RCRA. We believe that OSHA requirements would be applicable in some situations involving solvent-contaminated industrial wipes and that those generators following OSHA's requirements would be managing their wipes in a protective manner. Another advantage of using the OSHA standards would be that many generators are already familiar with these standards. These standards would not, therefore, complicate implementation of the conditional exclusion. However, it appears there would be gaps in coverage if we relied strictly on deferring to OSHA regulations. For example, the OSHA container standards may not apply to contaminated wipes with no free-flowing liquids or when wipes are contaminated with non-flammable solvents and, therefore, OSHA regulations may not cover every workplace that RCRA does. Note, however, that if generators meet the OSHA standard for flammable liquids (whether or not that standard is applicable to them under OSHA), they will meet the condition proposed here. c. Request for Comment We request comment on our proposal for accumulating spent reusable solvent-contaminated industrial wipes in non-leaking, covered containers while at the generator's facility. We also seek comment on whether wipes are accumulating at generator sites in large numbers that may pose a risk to human health and the environment and on the option of adding an accumulation time limit to this accumulation condition. In addition, we seek comment on the desirability of deferring to OSHA regulations for the proper storage of solvent-contaminated wipes on site at a generator's facility. 3. Proposed Conditions for Containers Used for Transportation a. Proposed Condition We are proposing a condition for containers generators use to transport solvent-contaminated industrial wipes off site under the conditional exclusion from the definition of hazardous waste. This condition is to ensure that transporting industrial wipes without full RCRA hazardous waste requirements will still protect against any risks posed by these materials to human health and the environment. Under this proposal, generators must transport industrial wipes in containers that are designed, constructed and managed to minimize loss to the environment. In proposing this condition, EPA intends for transporters to use containers that do not leak liquids and that provide for control of air emissions. This condition is designed to minimize loss of solvent to the environment during transportation and, therefore, minimizes risk as well. Minimization of loss through evaporation or leakage also makes it more likely that larger quantities of solvent will be recycled or properly managed. EPA has chosen to propose a condition designed as a performance standard for this condition because it provides industry the ability to be creative in developing less expensive ways to reach a desired outcome. Because there are several common ways industrial wipes are presently transported that meet this description, such as in drums and in plastic bags, EPA determined that a performance standard would be a more flexible way to ensure protective management than establishing specific conditions that might unintentionally force the use of specific containers or types of containers. A performance standard allows for use of a wide variety of containers so generators could continue with current practices where appropriate. For example, we would consider containers that meet DOT packaging requirements for hazardous materials to meet the proposed performance standard, as would closed, sealed, impermeable containers. Plastic bags or cloth bags that were cinched shut might also meet this condition. Closed cinched bags would minimize exposed surface area and, thus, minimize evaporative loss and, provided no free liquids were present, as required, may not release liquid solvents. We would consider hazardous solvents that are spilled or leaked during transportation to be disposed and those managing the industrial wipes at the time the spill occurred would be responsible for managing the spilled hazardous waste according to generally applicable RCRA requirements. The excluded industrial wipes would remain excluded if the spill were managed properly and promptly. Generators would also have to comply with the existing DOT standards. 9 EPA believes that the “designed, constructed, and managed to minimize loss to the environment” condition is necessary because the DOT regulations may not be applicable to all solvent-contaminated wipes if they do not meet certain DOT definitions, such as “solids containing flammable liquid.” Proposing this performance standard ensures that the container condition would apply to all solvent-contaminated industrial wipes to which today's proposal applies. 9 DOT's Hazardous Materials Regulations (HMR) state that any person who offers a material for transportation in commerce must determine whether the material is classified as a hazardous material. Typically, reusable solvent-contaminated wipes are classified as “solids containing flammable liquid, n.o.s.” ( see 49 CFR 172.101). Under 49 CFR 172.102, Special Provision 47 allows mixtures of solids not subject to regulation as a hazardous material and flammable liquids to be transported under the generic entry “solids containing flammable liquid, n.o.s.” without first applying the classification criteria of Division 4.1 Flammable Solids, provided there is no free liquid visible at the time the material is loaded or at the time the packaging or transport unit is closed. All packaging must correspond to a design type that has passed a leak proof test at the Packing Group II level. Containers which are authorized for transporting hazardous materials in Packing Group II are listed under 49 CFR 173.212 and include, among other things, steel, aluminum, or plastic drums and plastic or cloth bags. EPA's condition for transportation does not specify that the containers must be closed ( i.e. , containers with lids screwed on). Nevertheless, EPA believes that closed containers would minimize loss to the environment. We do not expect that open containers would meet the performance standard due to the potential for wipes and/or solvent to be released from the container if an open container tipped over during transportation. We also do not believe that containers that are open to the environment would minimize other losses, such as evaporative losses. b. Other Option Closed Containers EPA is also considering an alternative option of requiring all generators of solvent-contaminated industrial wipes to transport them in impermeable closed containers. By closed containers, we specifically mean containers with a lid that screws on to the top and must be sealed to be considered closed. Some stakeholders have expressed concern that those transporting industrial wipes would not be able to determine if the industrial wipes met the “no free liquids” or the “dry” condition without having to further handle the container and wipes. Unsealing these containers each time a wipe is placed into the container and to make the no free liquids determination would be time consuming and would expose more of the solvents to the air than opening a covered container. In addition, stakeholders argue that, if the transporters of the wipes are unable to determine at the time of pick-up whether there are free liquids in the container, this may result in an unnecessary burden falling on the handlers if noncompliant wipes arrive at their site. We believe the approach taken in today's proposed regulation addresses these concerns and will ensure protection of human health and the environment. c. Request for Comment We request comment on our proposed performance standard and on the other option described above for containers used for transporting reusable solvent-contaminated industrial wipes. 4. Proposed Labeling Condition for Containers Used To Transport Disposable Wipes a. Proposed Condition EPA is proposing as a condition of the exclusion from the definition of hazardous waste that generators must appropriately label containers used to transport disposable industrial wipes containing hazardous solvents. This condition is meant to alert anyone handling the materials of what is enclosed in the container so that proper handling (or inspection) may occur. We are proposing to impose a labeling condition that would require the containers used to transport solvent-contaminated industrial wipes for disposal to be marked “Excluded Solvent-Contaminated Wipes.” This condition is comparable to the used oil designation labeling requirement in 40 CFR part 279. This is a simple, straight-forward approach for labeling and would indicate the status of the materials to generators, workers, and downstream handlers. In addition, a label on containers of disposable industrial wipes stating that they are excluded from the definition of hazardous waste may benefit the generators of these wastes by eliminating questions from facilities receiving the waste, such as landfills or combustors, who may recognize that there are solvents in the waste and may be reluctant to accept the excluded industrial wipes before getting an assurance that they are not hazardous waste. 10 10 As will be noted later in today's preamble, a similar labeling requirement is not being proposed for reusable industrial wipes that are sent for reclamation/laundering or dry cleaning. The Agency believes such a requirement is not necessary for reusable industrial wipes. For further discussion, see Section V.C.5. A labeling condition would not add significant burden as existing regulatory programs administered by EPA, DOT, and OSHA already prescribe labeling requirements for containers, both in storage and transportation. Environmental Protection (40 CFR parts 260 through 265), Transportation (49 CFR parts 171 through173), and Labor (29 CFR 1910.1200) regulations all contain sections pertaining to the management of hazardous waste, including labeling requirements. Most of these labeling requirements refer to the DOT regulations found in 49 CFR 172. A variety of hazardous solvents may be used with industrial wipes, so DOT has a number of specific hazardous waste regulations, including labeling requirements, that apply to them. b. Other Option No RCRA-Specific Labeling Condition Another option we are considering is not imposing a specific labeling condition. Under this approach, designation of the disposable industrial wipes as hazardous materials under DOT regulations might still require placarding or other marking for transportation of some fraction of these materials, as described previously. However, for the reasons explained above, we do not expect that the DOT provisions would apply to all solvent-contaminated industrial wipes covered by today's proposal and, therefore, would not be applicable to all industrial wipes covered by today's proposed rule. c. Request for Comment The Agency requests comment on today's proposal and the non-RCRA labeling condition. In particular, is a labeling requirement necessary, and, if so, is there a label that is more appropriate, easier to understand, and/or easier to implement than that being proposed? 5. Proposed Condition for Transportation to a Municipal or Other Non-Hazardous Landfill a. Proposed Condition The conditional exclusion from the definition of hazardous waste for disposable industrial wipes proposed today would allow generators to transport certain disposable solvent-contaminated industrial wipes to municipal or other non-hazardous waste landfills 11 for disposal instead of to hazardous waste landfills when the conditions of the exclusion are met. EPA does not believe that other forms of land management, such as management in a waste pile or surface impoundment, are being applied to this waste stream. We, therefore, limited this proposed hazardous waste exclusion to land disposal of wipes in municipal or other non-hazardous waste landfills. A condition for disposal is that the industrial wipes contain no more than five grams of solvent per wipe, as explained in detail below. 11 See footnote to Table 3 for explanation of the use of non-hazardous waste landfill in today's Preamble. Because of risk concerns, EPA is also proposing that industrial wipes contaminated with the specified F- or U-listed solvents in Table 4 or that are characteristically hazardous for other hazardous constituents, such as metals, cannot be disposed in municipal or other non-hazardous waste landfills. EPA has tentatively concluded that the solvents listed in Table 4 below may pose a substantial hazard to human health and the environment if wipes containing them were disposed in such landfills. If land disposed, industrial wipes contaminated with these solvents would have to continue to be managed in full compliance with the RCRA subtitle C hazardous waste management standards. Because of the risk concerns, this condition applies to any blends that contain a percentage of these solvents. Table 4.—Listed Solvents Not Allowed in Municipal Landfills Benzene* 2-Nitropropane Carbon tetrachloride* Nitrobenzene Chlorobenzene* Pyridine Cresols (o,m,p)* Tetrachloroethylene* Methyl ethyl ketone (MEK) Methylene chloride Trichloroethylene Nine of the solvents in Table 4 are characteristically toxic (TC), as defined in 40 CFR 261.24. Of these nine, six (as noted by an asterix: “*”) are ineligible for disposal in a municipal or other non-hazardous waste landfill because they meet the toxicity characteristic, not because of the results of EPA's risk screening analysis. EPA's analysis finds that even when they have been through an advanced solvent-extraction process and contain less than five grams of solvent, the levels of these solvents in contaminated industrial wipes are likely to be higher than the regulatory levels indicated in 40 CFR 261.24. Therefore, these TC solvents are ineligible for disposal in municipal and other non-hazardous waste landfills because of their potential risk, as determined when they were originally identified by EPA as TC wastes. We are proposing that the remaining five solvents in Table 4 also be restricted from disposal in municipal or other non-hazardous waste landfills because EPA's risk screening analysis indicates that they may pose an unacceptable risk to human health and the environment when disposed of at levels lower than the 5-gram condition described in detail below. 12 Included in these five are three solvents that both meet the toxicity characteristic and that were indicated in the risk screening assessment to pose an unacceptable risk (methyl ethyl ketone, nitrobenzene, and pyridine). 12 Methyl Isobutyl Ketone (MIBK) was also found to be ineligible by the risk screening analysis, but because MIBK is listed for its characteristic of ignitability and, therefore, when mixed with solid waste, is no longer hazardous waste unless it continues to display its characteristic, a wipe containing it can be disposed of in a municipal or other non-hazardous waste landfill if it meets the other requirements. Table 5 contains the 19 listed solvents that were evaluated in the risk screening analysis and that would be allowed, under this proposal, to be disposed of in a municipal or non-hazardous waste landfill if they meet the “dry” condition. Also see Section VII for additional details on the results of our risk screening analysis. Table 5.—Listed Solvents That May Be Disposed of In a Municipal Landfill under Today's Proposal Ethyl Ether Carbon Disulfide Isobutyl Alcohol 1,2-Dichlorobenzene Acetone Xylenes Ethyl Acetate 1,1,2-Trichlorotrifluoroethane Methanol Cyclohexanone Trichlorofluoromethane 1,1,1-Trichloroethane Butanol 2-Ethoxyethanol Methyl Isobutyl Ketone 1,1,2-Trichloroethane Toluene Ethyl benzene Dichlorodifluoromethane Generators transporting their disposable industrial wipes to a municipal or other non-hazardous waste landfill must ensure that the wipes are “dry.” For purposes of this proposed rule, an industrial wipe is considered “dry” when it contains less than 5 grams of solvent. EPA chose 5 grams to be the standard for this condition because it falls within the range found in our risk screening analysis to not pose a substantial hazard to human health and the environment. This is also within the range of what is achievable through use of advanced solvent-extraction processes. Generators can meet this condition either by using less than five grams of solvent per wipe or by putting used industrial wipes through an advanced solvent-extraction process capable of removing sufficient solvent to meet the 5-gram condition. Generators can do the following to meet the “dry” condition: • Remove excess solvents by centrifuging or other high-performance solvent-extraction or -removal technology, for example, microwave solvent recovery processes or the Petro-Miser or Fierro processes; 13 13 Descriptions of these technologies are found in the Technical Background Document. Mention of these processes is for descriptive purposes only and is not an endorsement of the products themselves. • Use normal business records, such as the amount of solvent used per month for wiping operations divided by the number of wipes used per month for solvent wiping operations, to show they are under the threshold; • Conduct sampling to measure the amount of solvent applied per wipe before use; or • Sample to measure the amount of solvent remaining on wipes when use is completed. EPA is proposing that generators using advanced solvent-extraction technologies will be considered to have met the “dry” condition because EPA believes that when properly operated these technologies will remove sufficient solvent to meet the 5-gram condition. For example, with respect to centrifuge effectiveness, our evaluation of existing centrifuges from site visits and data provided by industry shows that well-operated centrifuges result in wipes that contain less than 5 grams of solvent per wipe. We have found that the other high-performance processes have the same or greater rate of success at removing solvents. Therefore, if a generator uses one of these advanced solvent-extraction technologies on industrial wipes, they would qualify for the hazardous waste exclusion. Using business records to calculate the average amount of solvent on each wipe would also be an acceptable way of assuring that each wipe would have less than 5 grams of solvent on it. Finally, EPA considers sampling, when done properly using representative samples, to be an appropriate way of demonstrating that a standard is being met. b. Request for Comment EPA is requesting comment on its proposed “dry” condition. Comments are requested particularly on our preliminary decision that certain solvents contained in industrial wipes cannot be disposed of in municipal or other non-hazardous waste landfills. For example, should solvents which exhibit the characteristic of toxicity, but which were not found to pose a significant risk in our risk screening analysis for today's proposal, be prohibited from being sent to municipal or other non-hazardous waste landfills? EPA is also requesting comment on what other high-extraction technologies not mentioned in this preamble could be used to meet the “dry” condition. Although we do not intend to promulgate a list of the only acceptable technologies, information on those that are appropriate for meeting the standard may be useful for future guidance. In addition, as discussed in Section VII, our risk screening analysis identifies industrial wipes that pose an insignificant risk when disposed of in municipal or other non-hazardous waste landfills even though they contain solvents that meet the “no free liquid” condition, rather than the more stringent 5 gram condition (or “dry” condition). Nevertheless, to simplify the rule, we chose to propose that all industrial wipes containing solvents that can be landfilled under this proposal would be required to meet the “dry” condition prior to being allowed to be shipped to municipal or other non-hazardous landfills. The Agency requests comment as to whether we should allow industrial wipes containing solvents that pose insignificant risk when meeting the “no free liquids” condition to be placed in municipal or other non-hazardous waste landfills without being required to meet the “dry” condition. Finally, we are requesting comment on whether solvent-contaminated industrial wipes meeting the “dry” condition should be required to meet the transportation requirements for wipes described in section V.B.3. The rationale for not specifying transportation standards would be that the level of solvents escaping would be insignificant if the industrial wipes were to contain less than 5 grams of solvent each. This option would increase relief for generators whose wipes meet the “dry” condition, but would complicate implementation of the rule both for regulators and generators. 6. Proposed Condition for Transportation to Non-Land Disposal Facilities a. Proposed Condition EPA is proposing a “no free liquids” condition to apply to solvent-contaminated industrial wipes going for disposal at a non-land disposal unit such as a municipal waste combustor (MWC) or other combustion unit (circumstances when the industrial wipes are used as a fuel are included) or to solvent-contaminated industrial wipes sent to an intermediate handler for further processing to meet the “dry” condition for disposal in a municipal or other non-hazardous waste landfill. This final case would apply to a generator who wants to send its solvent-contaminated industrial wipes to a landfill, but does not want to be responsible for making them meet the “dry” condition. The generator could send them to an intermediate handler under the “no free liquids” condition and contract with that handler to remove enough solvent that the wipes would meet the “dry” condition. This condition is meant to minimize the likelihood of loss of solvent into the environment, as well as to encourage solvent recovery and pollution prevention by generators. In developing the “no free liquids” condition, EPA hopes to make it simple enough that both generators and handlers of the materials, as well as regulatory officials, would easily be able to verify that free liquids have been removed from the industrial wipes. For wipes to meet the “no free liquids” condition, no liquid solvent could drip from them when sent off site. In addition, no free liquids may be present in the bottom of the container in which the wipes are transported. One concern certain stakeholders have expressed with this proposed condition is that once in a container, either at the generator site or in transit, industrial wipes can compress and solvent can percolate through them, collecting at the bottom of a container. This means that, while there may not have been free liquids in the container at the generator site, some may be generated during transportation. EPA believes that generators can take steps to minimize percolation by using less solvent or by recovering solvent from wipes before they are transported. However, EPA acknowledges that in some cases percolation can result in free liquids at the bottom of a container. Because of percolation effects, the proposed rule contains the provision that, if free liquids are discovered at the handling/combustion facility, the solvent-contaminated wipes would remain excluded from the definition of hazardous waste as long as the handler either removes the solvent and manages it appropriately, or returns the shipment to the generator as soon as reasonably practicable, as described in Section V.B.10.a. However, if solvents escaped the container as a result of percolation, the container would not meet the “minimize loss” condition described above. Similarly, the mismanagement of the free solvents by the handler, either by illegal disposal or other means, would be a violation of the conditions of the exclusion. Because the generator is originally responsible for the existence of free liquids in the wipes, it would also be potentially responsible for the wipes having lost the exclusion at the handler despite the wipes being out of the generator's control at that moment. Note that handlers/combustors would be required to determine whether the solvent which has been removed from the industrial wipes is listed as a hazardous waste or exhibits a characteristic of a hazardous waste as defined in 40 CFR part 261. Any hazardous waste solvent removed from the wipes would have to be managed in accordance with hazardous waste requirements found at 40 CFR parts 260 through 268 and 40 CFR part 270. In addition, for purposes of this proposed regulation, techniques or technologies used by generators to remove solvent from the wipes would not be defined as treatment under RCRA and, therefore, would not be subject to RCRA permitting ( see Section V.B.8. for further discussion). b. Other Option EPA is considering a “no free liquids when wrung” condition instead of the “no free liquids” condition. Some states favor this approach, as it may minimize the chance for later solvent releases. They argue that this condition may result in better solvent management and less frequent receipt of free liquids at handling or combustion facilities. This approach differs from what we are proposing in that it would require that each wipe could not drip solvent when hand wrung. Some stakeholders argued that such a requirement would be a substantial change from current state policies on free liquids and would be burdensome for generators to implement. They also argue that this would expose wipes to the air more than necessary and, in essence, would require that the wipes be wrung immediately prior to placement on the shipping vehicle, further burdening generators. Based on these concerns, we are not including “when wrung” as part of the “no free liquids” condition in this proposal, but are seeking information on whether the benefits of an extra step of solvent removal at the generator outweigh the limitations of these concerns. c. Request for Comment We request comment on our proposed “no free liquids” condition and our decision not to propose a “no free liquids when wrung” condition. d. How Can Generators Meet the “No Free Liquids” Condition? Presently, state agencies have established several methods for verifying compliance with state-imposed “no free liquids” standards for a container or individual wipe. The majority of states require the use of the Paint Filter Test (SW-846 Method 9095) though other specified methods include the Liquids Release Test (SW-846 Method 9096), and the Toxicity Characteristic Leaching Procedure (TCLP) (SW-846 Method 1311). The Commonwealth of Massachusetts has established a “one drop” standard, where generators must ensure that the wringing of a wipe will not result in a drop of liquid flowing from the material. We understand that, although these are by no means the only ways of meeting the “no free liquids” condition, if generators meet any of these state standards or if they hand wring wipes, it is unlikely that the “no free liquids” condition proposed today would be violated. In this proposal, EPA intends for compliance with the “no free liquids” condition to be determined by a practical test. That is, does a wipe drip liquid from it when held for a short period of time, for example, when being transferred from one container to another? One way a facility or an inspector could test for compliance with this condition would be to place two containers adjacent to one another and to transfer wipes from one container to the other. If they drip liquid during transfer, or if there are free liquids in the bottom of the container, they would not meet the “no free liquids” condition. Generators and inspectors would have to make sure they are checking the industrial wipes at the bottom of containers, as well as at the top for release of free liquids because percolation could cause solvents to sink and saturate the wipes at the bottom of any given container. Facilities could also check for compliance with the condition by using screen-bottomed drums and checking the bottom portion of the drum for liquid solvent. As stated above, rather than checking all wipes for free liquids, generators could hand wring wipes before placement in containers or send wipes through a mechanical wringer, centrifuge, or use any other effective method as a way to ensure that free liquids are not present. Stakeholders from the printing industry have recommended to EPA that we specify a list of acceptable technologies that would meet the “no free liquids” condition for the proposed exclusion from the definition of hazardous waste, and that we also specify the above performance standard as a catch all to account for new technologies that are developed in the future. Printing industry stakeholders believe this option would clarify for them and other industrial sectors those technologies that would pass the “no free liquids” performance standard so that no uncertainty exists on the part of either generators or EPA and state inspectors. While understanding generator concerns, EPA is not proposing in today's Federal Register specific regulatory language which identifies those technologies that would presumptively meet the “no free liquids” condition. Nevertheless, the Agency provides some discussion of the specific technologies EPA has examined that can reduce the amount of solvents in industrial wipes to meet the “no free liquid” condition both in this Preamble and in the Technical Background Document for this proposal. Generators also have the option to use their knowledge of their processes to determine that their wipes contain no free liquids. For example, a generator may know that a certain process requires only small amounts of solvent on each wipe and, therefore, free liquids are unlikely to be present. e. Request for Comment EPA is taking comment on our proposed approach to determining if the “no free liquids” condition is met. Are there other approaches EPA should have considered in this proposal? The Agency also solicits comment on the printing industry's suggestion that the final rule should specify a list of technologies that would be considered to meet the condition to assist in the implementation of and compliance with this rule. 7. “Exotic” Solvents In the process of developing this proposed rulemaking, the Agency has learned that there are new, “exotic” solvents on the market, such as terpenes and citric acids, that, while labeled as non-hazardous, could actually be flammable. Although the solvents do not exhibit the ignitability characteristic in 40 CFR 261.21, stakeholders have told us that, under certain conditions that have yet to be determined, oxygen can mix with the industrial wipes that contain these exotic solvents and spontaneously combust. According to some representatives of industrial laundries and fire marshals, resulting fires have caused major damage to facilities. Some stakeholders have suggested that EPA propose that generating facilities be allowed to transport their industrial wipes off site with free liquids if the facility is using one of these “exotic” solvents that could react or spontaneously combust, so that generators can wet down the wipes with water prior to sending them off site. They explain that this is consistent with what laundries do now with their customers. We request information and comments on these “exotic” solvents and how they are presently managed. We would like to know which solvents that would currently be considered hazardous wastes are viewed as “exotic” and for which solvents commenters believe a “no free liquids” condition would be problematic. We request information on documented cases of combustion caused by a lack of free liquids. We also request comments on whether the final rule should give containers with wipes contaminated with exotic solvents special consideration, particularly, allowing the solvents to be wetted down with water during accumulation and transportation and, further, what other conditions should be placed on management of these materials if special consideration were to be given. 8. Generators That Remove Solvent From Industrial Wipes a. Regulatory Status of Removed Solvent Any solvent removed from an industrial wipe by a generator may be subject to regulation as a hazardous waste. Therefore, the generating facility would be required to determine whether the solvent removed from the industrial wipe, if it is not reused, is listed as a hazardous waste or exhibits a characteristic of a hazardous waste as defined in 40 CFR part 261, and, if so, manage the solvent according to prescribed RCRA regulations under 40 CFR parts 260-268 and 270. b. Regulatory Status of Solvent Removal Technologies Under today's proposed exclusion from the definition of hazardous waste, the solvent-contaminated wipes would not be hazardous waste at the time they undergo solvent-removal. Therefore, solvent removal technologies would not be considered treatment of hazardous waste under RCRA and such operations, whether they be conducted by generators or handling facilities, would not be considered to be treating hazardous waste and would not require a RCRA permit. Because under today's proposed rule solvent extraction would not trigger RCRA treatment standards, generators may be more likely to recover solvent for reuse and reduce the amount of solvent that they purchase. 9. Proposed Conditions for Intra-Company Transfers a. Proposed Condition Several stakeholders, particularly those who use large numbers of wipes daily with large amounts of solvent on each wipe, would like the flexibility of not having to meet the “no free liquids” condition when transferring their wipes off site to an intra-company facility that would extract the solvents from the wipes. Several states already allow these kinds of transfers to be made when both the generating facility and the extracting facility are part of the same company. Under the proposed condition, the extracted solvent at this point could either be returned to the originating customer or sold to another manufacturer for reuse as a feedstock in a manufacturing or service operation. Alternatively, when the economics of solvent recycling are not favorable, the extracted solvents could be disposed of as a hazardous waste. To encourage reclamation and recycling of the solvents in the wipes, today we are proposing to allow industrial wipes to qualify for the exclusion from the definition of hazardous waste if the generator transfers solvent-contaminated industrial wipes containing free liquids between their own facilities and if the receiving facility has a solvent-extraction and/or -recovery process that will remove sufficient solvent to ensure the wipes meet either the “dry” condition or the “no free liquids” condition. Generators taking advantage of this part of the rule could then use one piece of solvent-extraction equipment to serve industrial wipes from several of the company's generators. EPA hopes that allowing intra-company transfers of free liquid under these conditions would encourage companies to obtain advanced solvent recovery equipment that they would not purchase for use at just one of their facilities. Of course, to be eligible for the exclusion from the definition of hazardous waste, the industrial wipes must meet the other conditions described in this notice. Specifically, the generators would be required to manage the wipes and free liquids in the same way as they would when they are under the hazardous waste exclusion. They would be required to accumulate the wipes and solvents in non-leaking covered containers and to transport the industrial wipes in containers that are designed, constructed and managed to minimize loss to the environment and labeled “Excluded Solvent-Contaminated Wipes.” EPA is proposing the same performance standards as for wipes meeting the “dry” and the “no free liquids” conditions, but note that because of the free liquids transported with these wipes, not all types of containers are likely to be appropriate ( e.g. , cloth bags are not likely to minimize loss for wipes containing free liquids). The solvent, once extracted, would have to be managed as a RCRA hazardous waste if going to disposal. In the end, we believe this option would result in substantial savings for generators of solvent-contaminated industrial wipes, as well as in increased solvent recovery by generators. As stated above, generators can only take advantage of this condition when the handling facility is in the same company as the generator. EPA is seeking comment on whether intra-company transfers should include affiliates, subsidiaries, and parent companies as eligible for this provision. EPA is making this condition applicable to just intra-company transfers because the Agency believes the management of the free liquids in transportation to prevent loss or spills is likely to be more comprehensive when the whole transaction occurs within one company. Communication is likely to be better between the entities transporting and receiving the waste if they are in one company, as would oversight over the entire generation, transportation, and recovery system to ensure that solvents are being recovered. Several potential benefits to allowing such shipments under the conditional exclusion from hazardous waste include the additional opportunities for increased recycling because some generating facilities would find recycling solvent more convenient when not having to meet the “no free liquids” condition. As stated elsewhere in this proposal, several technologies already exist to extract and/or recover the spent solvent contained on industrial wipes both economically and safely. In addition, there are likely to be environmental benefits because solvent that would have been sent to combustion or disposal in a landfill would be recovered and reused. b. Other Options Additional Conditions for Intra-Company Transfers On the basis of discussions with state implementors and stakeholders, EPA is considering adding conditions to this provision in the proposed rule. Specifically, we are considering: (i) Requiring a one-time notification to the state to alert the state that the generator is taking advantage of the intra-company transport allowed under this exclusion; (ii) Maintenance of appropriate business records that identify where the industrial wipes are being managed and where the recovered solvent is being sent; (iii) Compliance with RCRA's employee training and emergency response requirements in 40 CFR part 262, and (iv) Transfer of the industrial wipes with free liquids in closed ( i.e. , sealed) containers. Inter-Company Transfers Some stakeholders have also suggested that EPA propose to allow transfers of solvent-contaminated industrial wipes with free liquids between companies for solvent extraction. This option would allow generators to ship solvent-contaminated industrial wipes with free liquids to any facility if the receiving facility uses solvent extraction to remove enough solvent from the industrial wipes for them to meet the “no free liquids” condition required for shipment to a laundry. This option would allow more facilities to take advantage of this provision than the intra-company provision would allow and may encourage more use of advanced solvent-extraction technologies on these materials resulting in more potential recovery and reuse of solvents. EPA did not propose this option because it believes currently that intra-company transfers would maintain better control of the industrial wipes during transportation and would better prevent releases than transfers between different companies. However, we request comment on this premise and this option for transfer of industrial wipes. c. Request for Comment EPA seeks comment on whether intra-company shipments of industrial wipes containing free liquids should be allowed under the conditions of the exclusion from the definition of hazardous waste and whether this provision would be likely to facilitate the recovery of hazardous solvents. As stated above, we seek comment on whether EPA should consider parent companies, subsidiaries, and affiliates as eligible for the intra-company transfer provision. EPA also seeks comment on whether the intra-company transfer provision should include a distance limit, such that only facilities shipping their wipes and solvents the prescribed distance or less would be eligible for the intra-company transfer option. EPA also seeks comment both on whether the additional conditions discussed in Section V.B.9.b. should be included and also on whether we should expand the provision to allow industrial wipes, under the conditional exclusion from hazardous waste, to be sent with free liquids to third-party solvent-extraction facilities. 10. Proposed Conditions for Management at Handling Facilities a. Proposed Conditions Of all the handlers, generators have the primary responsibility for assuring that the industrial wipes they transport off site meet the conditions for the hazardous waste exclusion, but non-landfill facilities which receive disposable industrial wipes, such as combustors or handling facilities that perform further solvent removal, would also need to meet certain minimum conditions for the wipes to remain excluded from the definition of hazardous waste. First, during the time between when the wipes arrive on site and when the facility first introduces them into their process ( e.g. , when the wipes are removed from their container and placed in a solvent-extractor), these facilities must store solvent- contaminated industrial wipes either (a) in containers that are designed, constructed, and managed to minimize loss to the environment that would meet the transportation conditions in today's proposal, or (b) in non-leaking covered containers that would meet the generator conditions in today's proposal. The second condition is that if facilities (other than those intra-company facilities where solvent is removed) receive solvent-contaminated industrial wipes with free liquids, in order to retain the exclusion from the definition of hazardous waste for the wipes, the facility would be required to either (a) return the container (with the wipes and liquid) to the generator as soon as reasonably practicable ( e.g. , with the next scheduled delivery), or (b) recover any liquid solvent that arrives at the facility and properly manage it under federal or state hazardous waste regulations, as applicable. When returning the wipes and liquid to the generator, the facility would have to transport them in containers that meet the original shipment condition, but would not be required to use a hazardous waste manifest. The objective of this condition is to address situations where free liquids arrive with industrial wipes at a handling facility through no fault of the handling facility. A shipment of industrial wipes would be considered to contain free liquids either if solvent drips from the wipes or if there are free liquids in the bottom of the container of industrial wipes. Rather than subject the industrial wipes to RCRA hazardous waste requirements in this situation, EPA is proposing that they be allowed to be further processed to ensure that the conditions of the hazardous waste exclusion are met and that removed solvents are appropriately managed either by the receiving facility or the original generator. We believe this can be done safely and we also believe that this will provide additional incentive for solvent recovery. At any time that hazardous solvents are spilled or leaked from a barrel of excluded wipes at a laundry or handling facility, or are otherwise mismanaged, we would consider this to be disposal and the handling facility managing the solvents would be responsible for cleaning up the spill. b. Request for Comment EPA seeks comment on the above conditions for handling facilities that manage industrial wipes. EPA also requests comment on whether handling facilities receiving shipments of wipes that do not meet the “no free liquids” condition should be required, as in the case of some other conditional exclusions, to submit a notification to the state or EPA region implementing RCRA to inform them that the “no free liquids” condition had not been met. 11. Management of Industrial Wipes Containing Co-Contaminants Today's proposed rule is not intended to override EPA's mixture and derived-from rule regarding contaminants on industrial wipes other than the solvents specified in this proposal. In addition to these solvents, spent industrial wipes from industrial applications may be contaminated with material removed during the industrial process—anything from dirt and grease to listed hazardous wastes. The presence of these co-contaminants may make the industrial wipes subject to the hazardous waste mixture rule (40 CFR 261.3(a)(2)(iv)), which states that a mixture made up of any amount of a nonhazardous solid waste and any amount of a listed hazardous waste is a listed hazardous waste. Therefore, if the wipe contains a listed waste other than the identified solvents, it would still be considered a listed hazardous waste and would no longer be eligible for the conditional exclusion from the definition of hazardous waste being proposed today. Solvent-contaminated industrial wipes that exhibit a characteristic of hazardous waste due to co-contaminants also are not eligible for the hazardous waste exclusion, unless the characteristic is ignitability. Specifically, EPA is proposing that industrial wipes that would exhibit the characteristics of toxicity, corrosivity, or reactivity because of wastes with which they are co-contaminated would not be eligible for the conditional exclusion. On the other hand, because the industrial wipes are already likely to be ignitable because of the nature of the solvents on them, and because this risk is managed by the conditions of the exclusion from hazardous waste, wipes co-contaminated with ignitable waste would remain eligible for the exclusion if they meet its other conditions. 12. Proposed Conditions for Burning Solvent-Contaminated Industrial Wipes in Combustors a. Proposed Condition Based on the results of our risk screening analysis discussed in Section VII of this preamble, we are proposing that municipal and other non-hazardous waste combustors be allowed to burn solvent-contaminated industrial wipes that meet the proposed conditions for the exclusion from the definition of hazardous waste. Facilities managing these wipes would have to ensure that the wipes remain in containers that meet today's proposed transportation condition until they enter the combustion process. Also, if a combustion facility finds wipes with free liquids when it initiates processing of the wipes, like other handlers, it would have the choice of removing the free liquids and managing them as a hazardous waste or closing the container and sending the wipes back to the originating generator. When returning the wipes and liquid to the generator, the combustor would have to transport them in containers that meet the original shipment condition, but would not need to use a hazardous waste manifest. b. Basis for Condition Allowing combustion of industrial wipes in municipal waste combustors (MWCs) and other non-hazardous waste combustion units, such as commercial and industrial solid waste incinerators (circumstances when the industrial wipes are used as a fuel are included) is a viable alternative for managing conditionally-excluded industrial wipes. First, combustion facility owners/operators should be screening industrial wipes contaminated with hazardous solvents that arrive at their facilities to ensure they do not violate local permit conditions. In addition, these combustors are easily capable of destroying the solvent in contaminated industrial wipes. As described in more detail in Section IV.F.11 of the Technical Background Document, EPA has promulgated revised air emission requirements under the New Source Performance Standards (NSPS) for large new and existing MWCs (facilities managing more than 250 tons of waste per day) and revised NSPS air emission requirements for smaller MWCs (facilities managing less than 250 tons of waste per day). EPA has also promulgated NSPS for commercial and industrial solid waste incinerators (65 FR 75338, December 1, 2000). These NSPS standards for non-hazardous waste combustors provide a level of protection comparable to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for hazardous waste incinerators and should ensure that at least 99.99 percent of the solvent in contaminated industrial wipes is removed or destroyed. Also, as stated in Section VII.C.2., the risk analysis for this proposal indicated that none of the solvents would exceed health benchmarks if the ash were disposed in a landfill. c. Request for Comment We request comment on our appro [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A03-28652. Public record. Not legal advice.