Hazardous Waste Generator Improvements

Federal RegisterSep 25, 2015

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, 262, 263, 264, 265, 268, 270, 273, and 279

[EPA-HQ-RCRA-2012-0121; FRL 9924-07-OSWER]

RIN 2050-AG70

Hazardous Waste Generator Improvements

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA or the Agency) is proposing to revise the hazardous waste generator regulations under the Resource Conservation and Recovery Act (RCRA) to improve compliance and thereby enhance protection of human health and the environment. Specifically, EPA proposes to revise certain components of the hazardous waste generator regulatory program; address gaps in the regulations; provide greater flexibility for hazardous waste generators to manage their hazardous waste in a cost-effective and protective manner; reorganize the hazardous waste generator regulations to make them more user-friendly and thus improve their usability by the regulated community; and make technical corrections and conforming changes to address inadvertent errors, remove obsolete references to programs that no longer exist, and improve the readability of the regulations.

These proposed changes are both a result of EPA's experience in implementing and evaluating the hazardous waste generator program over the last 30 years, as well as a response to concerns and issues identified by the states and regulated community.

DATES:

Comments must be received on or before November 24, 2015.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2012-0121, to the

Federal eRulemaking Portal:

http://www.regulations.gov

. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or withdrawn. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (

i.e.

on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit

http://www2.epa.gov/dockets/commenting-epa-dockets

FOR FURTHER INFORMATION CONTACT:

Jim O'Leary, U.S. Environmental Protection Agency, Office of Resource Conservation and Recovery, (MC: 5304P), 1200 Pennsylvania Ave. NW., Washington, DC 20460, (703) 308-8827, (

oleary.jim@epa.gov

) or Kathy Lett, U.S. Environmental Protection Agency, Office of Resource Conservation and Recovery, (MC: 5304P), 1200 Pennsylvania Ave. NW., Washington, DC 20460, (703) 605-0761, (

lett.kathy@epa.gov

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

Entities potentially affected by this action include between 353,000 and 543,000 industrial entities that generate hazardous waste regulated under the RCRA Subtitle C regulations. Of this universe, between 293,000 and 470,000 are conditionally exempt small quantity generators (CESQGs) that will only be affected if they choose to take advantage of two voluntary programs being proposed. Entities potentially affected by this proposed rule include practically every industrial sector, including printing, petroleum refining, chemical manufacturing, plastics and resin manufacturing, pharmaceutical manufacturing, paint and coatings, iron and steelmaking, secondary smelting and refining, metal manufacturing, electroplating, circuit board manufacturing, and automobile manufacturing, among other industries.

As discussed in section XVIII, the Regulatory Impact Analysis (RIA) for this action, available in the docket for this action, estimates the future annualized cost to industry to comply with the proposed requirements is between $6.2 and $17.4 million (at a 7% discount rate). The annualized benefits for entities opting to take advantage of two voluntary programs in the proposed rule (

e.g.,

consolidation of CESQG waste by large quantity generators (LQGs) under the same ownership, and generators who change regulatory status episodically) is between $6.2 and $12.2 million (at a 7% discount rate) resulting in a net annualized cost of between $0.1 million and $5.2 million.

The proposed Hazardous Waste Generator Improvements Rule is expected to yield a variety of benefits as generators change several of their waste management practices to comply with the proposed regulations. These benefits reflect the rule's focus on enhancing protection of human health and the environment while improving the efficiency of the RCRA hazardous waste generator standards. Ideally, the Agency would prefer to quantify and monetize the rule's total benefits. However, only some categories of benefits are quantifiable. For the majority of benefits, sufficient data are not available to support a detailed quantitative analysis. For example, the added flexibility from allowing a large quantity generator accumulating ignitable or reactive hazardous waste to obtain a waiver from the local fire department for 50-foot property line requirement at 40 CFR 265.176 (provided other safety requirements are met) is difficult to quantify. In addition, quantifying the benefits associated with emergency response due to changes in container labeling would require data on the annual number of emergencies at generator sites, the current risks associated with these incidents, the extent to which more detailed labeling would affect the procedures of emergency responders, and the reduction in risk associated with these changes. Detailed data on these items are not readily available. In this and in similar cases, the benefits are described qualitatively.

B. Incorporation by Reference (IBR)

This action is not proposing to add any new IBR material, however, we are proposing to reorganize one of the existing requirements containing IBR material to make the regulation easier for the reader to follow. We are proposing to copy § 265.201(g)(2) to § 262.16(b)(3)(vii)(B). To accommodate this change, we are proposing to update § 260.11(d)(1), which is the IBR reference section for these regulations, by adding a reference to § 262.16. The materials for which we are seeking incorporation by reference are for the NFPA 30 standard, Flammable and Combustible Liquids Code, and are available for inspection at the ANSI Incorporation by Reference (IBR) Portal,

http://ibr.ansi.org.

Copies may be obtained from the National Fire Protection Association, 1 Batterymarch Park, Quincy, MA 02269. (For ordering information, call toll-free 1-800-344-3555.)

II. Statutory Authority

These regulations are proposed under the authority of sections 2002, 3001, 3002, 3003, 3004, 3007, and 3010 of the Solid Waste Disposal Act of 1965, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6921, 6922, 6923, and 6924. This statute is commonly referred to as “RCRA.”

III. What is the intent of this proposal?

EPA is proposing to revise the hazardous waste generator regulations under RCRA to improve compliance by the regulated community and support the efficient implementation of the hazardous waste generator regulations by EPA and the states and, thereby enhance protection of human health and the environment. Specifically, EPA proposes to (1) revise certain components of the hazardous waste generator regulatory program, primarily at 40 CFR 261.5 and 40 CFR part 262; (2) address identified gaps in the regulations; (3) provide greater flexibility for hazardous waste generators to manage their hazardous waste in a cost-effective and protective manner; (4) reorganize the hazardous waste generator regulations to make them more user-friendly and thus improve their usability by the regulated community; and (5) make technical corrections and conforming changes to address inadvertent errors, remove obsolete programs, and improve the readability of the regulations.

These proposed changes are a result of EPA's experience in implementing and evaluating the hazardous waste generator program over the last 30 years, as well as a response to concerns and issues identified by the states and regulated community.

The hazardous waste generator regulatory program was originally promulgated in 1980. Over the course of the last 30 plus years, the Agency, through experience with implementing the program, and in various meetings, correspondence, and discussions with the states and the regulated community, has become aware of ambiguities, inconsistencies, gaps, and a lack of flexibility in the regulations, which, if revised, could result in a program that is more effective in protecting human health and the environment. Many of these problems were identified in a 2004 program evaluation of the hazardous waste generator program conducted by EPA.

In 2013, a separate EPA program evaluation addressing hazardous waste determinations also identified a number of problems related to generators being able to make a proper hazardous waste determination.

Several of the proposed provisions are also responsive to the 2014 Notice of Data Availability that EPA issued on the retail sector asking for comment on hazardous waste management practices in that sector and on challenges they face in complying with RCRA (79 FR 8926, February 14, 2014).

Summary of Hazardous Waste Generator Regulatory Program Evaluation, November 2004. See also public comments in Docket ID No. EPA-HQ-RCRA-2003-0014.

Hazardous Waste Determination Program Evaluation, IEc, April 2013.

http://www.epa.gov/evaluate/pdf/waste/haz-waste-determination.pdf.

Many of the changes in this proposal are revisions to existing rules designed to improve generator compliance without any increase in burden. For example, the Agency has inconsistently addressed the situation where a generator generates both acute and non-acute hazardous waste in a calendar month. This inconsistency has resulted in uncertainty for the generator regarding what generator category, and thus which regulatory provisions, would apply during that calendar month. This proposal addresses the problem. The Agency is also proposing to replace the phrase “conditionally exempt small quantity generator” (CESQG) with the phrase “very small quantity generator” (VSQG) so as to be consistent with the other two generator categories—large quantity generators (LQGs) and small quantity generators (SQGs).

Another area of the program that needs revision is the closure regulations for hazardous waste generators under § 262.34(a)(1). The regulations do not expressly specify whether closure provisions apply to generators accumulating hazardous waste in containment buildings only or also to hazardous waste accumulated in containers, tanks and on drip pads. This notice proposes to revise the closure provisions to address these and other concerns.

The Agency is also proposing changes to improve flexibility for generators of hazardous wastes. One example is the proposal to enhance flexibility by allowing conditionally exempt small quantity generators (CESQGs) to send hazardous waste to an LQG that is under the control of the same person, provided certain conditions are met. Numerous situations exist in industry, government, and academia where an organization with satellite locations that qualify as CESQGs could take advantage of this provision in order to consolidate and manage the hazardous waste in an environmentally sound manner. In addition, this proposal addresses the concern that some generators, such as generators located in urban environments, may find it difficult to meet the independent requirement that containers holding ignitable or reactive waste must be placed 15 meters (50 feet) from the site's property line. To build in flexibility, while maintaining protection of human health and the environment, we are proposing to allow generators to apply for a waiver from this requirement from their local fire department or emergency response organization, and if approved, maintain documentation of that agreement.

The Agency is also proposing to reorganize the hazardous waste generator regulations to make them more user-friendly for various stakeholders. For example, the current CESQG regulations are found at § 261.5, while the regulations for SQGs and LQGs are found in 40 CFR part 262. For convenience and ease of use, the Agency is proposing to move all the generator regulations into 40 CFR part 262. As a result of this reorganization, EPA is proposing to make a number of conforming changes to other parts of the regulations that cite particular sections of the part 262 regulations.

Lastly, the Agency is proposing to make several technical corrections that address inadvertent errors in the regulations, obsolete programs, and outdated citations.

IV. What is the scope of this proposal?

EPA is proposing to revise the hazardous waste generator regulations, primarily at 40 CFR 261.5 and throughout 40 CFR part 262. The Agency is also proposing some changes to parts 260, 263, 264, 265, 268, 270, 273, and 279 mostly for the purposes of maintaining consistency with the proposed changes in part 262.

The preamble discussion of these proposed changes is organized by where the existing regulations currently appear in the Code of Federal Regulations (CFR). The preamble to this proposed rule first addresses changes to the substance of the existing generator provisions, as well as a number of related changes (sections VI through XII). These proposed revisions are discussed using existing regulatory citations to make the discussion easier to understand by those already familiar with the hazardous waste generator regulations. In the cases where the Agency is proposing to revise a regulation and is also proposing to move it as part of the reorganization, the new citation for the provision in the

proposed regulatory text is provided at the end of that section of preamble discussion.

Following those sections, a discussion of the proposed reorganization of the hazardous waste generator regulations is presented (section XIII), including where the existing regulatory sections would be located in the proposed reorganization. As part of this discussion, we have provided a crosswalk table that compares where a particular regulatory section is currently in the regulations and where it would appear under the proposed reorganization.

Finally, a number of technical corrections are discussed (section XIV).

A. Proposed Revisions to 40 CFR Part 260—Hazardous Waste Management System: General

EPA is proposing to revise the definition of “small quantity generator” and add definitions for the other two generator categories as well as a definition for “central accumulation area” in § 260.10. In addition, we propose to change the name of the “conditionally exempt small quantity generator” category to “very small quantity generator” or VSQG.

These proposed changes are discussed in section VI of this preamble.

Despite this proposed change, in the preamble, EPA will continue refer to this category as CESQGs to make it easier to follow the other changes to the generator being proposed. We will use the term “VSQG” when directly quoting proposed regulatory text. This change is discussed fully in section VI of this preamble.

B. Proposed Revisions to 40 CFR Part 261—Identification and Listing of Hazardous Waste

EPA is proposing four changes to the regulations currently in 40 CFR part 261. First, EPA is proposing to add a new provision that would explain what generator category would apply to a generator that generates both acute and non-acute hazardous waste in the same calendar month. Second, the Agency is proposing to revise the regulations at §§ 261.5(h) and (i) and 261.3 that address the mixing of a non-hazardous waste with a hazardous waste. Third, to make waste management more efficient in some cases and improve environmental protection, the Agency is proposing to amend § 261.5(f)(3) and (g)(3) to allow CESQGs to send their hazardous waste to LQGs that are operated under control of the same person. Under this proposal, a CESQG that wants to take advantage of this provision would need to comply with the proposed requirements. Finally, the Agency is proposing to amend § 261.6(c) to require biennial reporting for owners or operators of facilities that recycle but do not store hazardous waste before the recycling.

These proposed changes are discussed in section VII of this preamble.

C. Proposed Revisions to 40 CFR Part 262—Standards Applicable to Generators of Hazardous Waste

EPA is proposing a number of changes to the regulations for generators of hazardous waste at 40 CFR part 262 to improve the understanding of the RCRA generator regulations in order to encourage increased compliance by the regulated community. These proposed changes include the following:

• Revising the scope and applicability section to distinguish between independent requirements and conditions for exemption for generators of hazardous waste.

• Revising the regulations for making hazardous waste determinations;

• Requiring re-notification by SQGs and LQGs;

• Revising the regulations for labeling and marking of containers, tanks, drip pads, and containment buildings when accumulating hazardous wastes;

• Revising the closure provisions for LQGs;

• Updating the preparedness, prevention, planning and emergency procedures provisions for SQGs and LQGs;

• Revising the provisions for satellite accumulation areas (SAA) for SQGs and LQGs;

• Revising the SQG regulations for accumulating hazardous waste on drip pads;

• Deleting obsolete regulations that refer to the Performance Track program;

• Revising the biennial reporting provisions for LQGs;

• Adding a provision that hazardous waste generators are prohibited from disposing liquid hazardous waste in landfills.

These proposed changes to the generator regulations in part 262 are discussed in section VIII of this preamble.

D. Proposed Addition to 40 CFR Part 262 for Generators That Temporarily Change Generator Category as a Result of an Episodic Event

To provide greater program flexibility, EPA is proposing to allow a CESQG or an SQG to maintain its existing generator category in the event of either a planned or unplanned episodic event in which the CESQG or SQG generates a quantity of hazardous waste in a calendar month that would otherwise bump the CESQG or SQG into a more stringent generator regulatory category (

e.g.,

CESQG to either an SQG or an LQG, or alternatively an SQG to an LQG), provided certain conditions are met. Because these events would be temporary and episodic in nature, the generator would only be allowed to take advantage of this provision once every calendar year. Generators may also petition EPA or the authorized state to request permission to initiate a second episodic event during a calendar year.

This proposed addition to the regulations is discussed in section IX of this preamble.

E. Proposed Revisions to 40 CFR Part 263—Standards Applicable to Transporters of Hazardous Waste

To improve environmental protection, EPA is proposing to revise the marking and labeling standards for transporters to be consistent with the proposed marking and labeling standards for containers for SQGs, LQGs, and satellite accumulation areas elsewhere in this proposal.

These proposed changes are discussed in section X of this preamble.

F. Proposed Revisions to 40 CFR Parts 264 and 265—Standards for Owners and Operators of Hazardous Waste TSDFs and Interim Status Standards for Owners and Operators of Hazardous Waste TSDFs

The Agency is proposing modifications to the biennial reporting provisions in 40 CFR parts 264 and 265 to specifically include facilities receiving hazardous wastes without a permit, such as reclaimers that do not store incoming materials and reclaimers operating under a variance. EPA is also proposing to modify the special conditions for ignitable and reactive wastes at § 265.176 to allow LQGs to apply for a waiver from their local fire departments if they are unable to meet the condition that hazardous waste be stored at least 15 meters (50 feet) from the site's boundary.

These proposed changes are discussed in section XI of this preamble.

G. Proposed Revisions to 40 CFR Part 268—Land Disposal Restrictions

EPA is proposing to revise the marking and labeling requirements at § 268.50 to be consistent with the proposed marking and labeling standards for containers at SQGs, LQGs, and satellite accumulation areas elsewhere in this proposal. These proposed changes are discussed in section XII of this preamble.

H. Proposed Reorganization of Hazardous Waste Generator Regulations

In addition to the proposed program changes outlined in this notice, EPA is proposing to reorganize the regulations for hazardous waste generators to consolidate most of the generator regulations into 40 CFR part 262 and reduce cross-referencing where possible. EPA believes this reorganization will assist CESQGs, SQGs, and LQGs in understanding their regulatory responsibilities.

The reorganization is discussed after completion of the other proposed changes in this proposal so that readers can more easily compare the existing regulatory framework with this proposal.

The reorganization is discussed in section XIII of this preamble.

I. Technical Corrections and Conforming Changes to 40 CFR Parts 260 Through 265, 270, 273, and 279

The Agency is proposing a number of technical corrections and conforming changes to correct existing errors in the hazardous waste generator regulations, as well as in other areas of the hazardous waste regulations, such as typographical mistakes, incorrect or outdated citations, and omissions of text. In addition, EPA is proposing technical changes to address the impacts of reorganizing the hazardous waste regulations.

These changes are discussed in section XIV of this preamble.

J. Request for Comment on Use of Electronic Tools To Streamline Hazardous Waste Reporting and Recordkeeping Requirements

As part of this proposed rule, the Agency is also exploring the feasibility of using electronic tools to streamline the hazardous waste recordkeeping and reporting requirements. EPA requests comment on the usefulness of such tools to help the regulated community comply with the recordkeeping and reporting requirements in the RCRA hazardous waste regulations.

This request for comment is discussed in section XV of this preamble.

V. Background

A. History of the Hazardous Waste Generator Program

As originally promulgated in 1980, the basic regulatory framework for hazardous waste generators consisted of two categories: Small quantity generators (SQGs) and large quantity generators (LQGs). Since then, there have been three major changes. First, as a result of the Hazardous and Solid Waste Amendments (HSWA) of 1984, a rule was promulgated that created a third generator category by splitting the SQG category in two and creating conditionally exempt small quantity generators (CESQGs). (51 FR 10146, March 24, 1986).

Known as the Small Quantity Generator rule.

Second, also as a result of HSWA, the Land Disposal Restriction (LDRs) regulations required hazardous waste generators to ensure that their hazardous waste either met a specified treatment standard or performance standard, or, if not, was treated to specified concentrations or performance standards prior to land disposal.

Land Disposal Restrictions,

http://www.epa.gov/osw/hazard/tsd/ldr/index.htm.

Third, the Agency modified the Uniform Hazardous Waste Manifest regulations and associated manifest document used to track hazardous waste from a generator's site to its ultimate disposition (70 FR 10776, March 4, 2005; 70 FR 35034, June 16, 2005). The revisions to the Uniform Hazardous Waste Manifest standardized the content and appearance of the manifest form, made the forms available from a greater number of sources, and adopted new procedures for tracking certain types of hazardous waste shipments with the manifest. Otherwise, the changes that have occurred to the hazardous waste generator regulatory program have been, for the most part, relatively minor.

B. The Current Hazardous Waste Generator Regulations

1. Determining Generator Category

The hazardous waste generator regulatory program is structured around the quantity of hazardous waste a person (or generator) generates in a calendar month (by site). The quantity of hazardous waste generated determines a generator's category for the month, which in turn determines what requirements are applicable to the generator (including determining how the generator can qualify for an exemption from other regulations, such as having to get a storage permit).

The three generator categories—LQG, SQG, and CESQG—are based on the quantities of acute and non-acute hazardous waste generated by the generator.

For non-acute hazardous waste, the thresholds are as follows:

—LQGs generate 1,000 kilograms or greater of hazardous waste in a calendar month.

—SQGs generate greater than 100 kilograms but less than 1,000 kilograms of hazardous waste in a calendar month; and

—CESQGs generate no more than 100 kilograms of hazardous wastes in a calendar month.

For acute hazardous waste, the regulations at 40 CFR 261.5(e) state that if a generator generates acute hazardous waste in a calendar month in quantities greater than a total of one kilogram of acute hazardous waste listed in § 261.31 or 261.33(e) or a total of 100 kilograms of any residue or contaminated soil, waste, or other debris resulting from the cleanup of a spill of any acute hazardous waste listed in § 261.31 or 261.33(e), then all quantities of that acute hazardous waste are subject to the full set of LQG requirements.

One of the technical corrections EPA is proposing with this rulemaking is to replace the word “waste” in this definition with the word “water.” This would return the definition to what it read before it was changed, we believe accidentally, in 1985. See section XIV of this preamble for a discussion of the proposed technical corrections.

In order to determine what requirements are applicable, a generator must first identify all the hazardous waste it generates subject to regulation using the four-step process below:

1. Determine whether the material is a solid waste subject to RCRA regulations at § 261.2;

2. If the material is a solid waste, then determine whether the solid waste is specifically excluded from regulation by examining the exclusions at § 261.4(a) and (b);

3. If not excluded, then determine whether the solid waste is a hazardous waste at § 262.11; and

4. If the material is a hazardous waste, then determine whether it is exempt from being counted towards its generator category by reviewing the exemptions at § 261.5(c) and (d).

Once that is completed, the generator must count the amount of regulated hazardous waste generated during the calendar month to determine its generator category.

Once a generator determines its generator category for the month, it then must manage the hazardous waste it generates and accumulates in a manner that complies with specified requirements, including requirements that qualify the generator for an exemption from having to obtain a permit.

Therefore, determining a generator's category is essential to

determining the part 262 requirements a generator must comply with.

Note that the exemptions provided by the regulations are not just for a permit exemption. The exemption is also from RCRA section 3004(a)(1)-(6) regulations;

i.e.,

the regulations in 262 and 264, 267, etc.

2. Types of Generator Standards: Requirements and Conditions

When RCRA was enacted in 1976, the law did not explicitly address whether a permit would be required for generators accumulating hazardous wastes. However, it was clear in the legislative history of RCRA that Congress did not want to interfere with commerce and impose permitting requirements on every generator who accumulated hazardous wastes. Therefore, Congress deferred to EPA in how it would reconcile this issue. When EPA developed the regulations applicable to generators, it established two types of requirements for them: (1) Independent requirements that would apply to generators regardless of whether or not they choose to obtain an exemption from the permit requirement and from other applicable requirements (“independent requirements”); and (2) requirements to meet in order to achieve the specific purpose of obtaining such an exemption from permitting and from other applicable requirements (“conditions for exemption”).

An “independent requirement” in the context of the RCRA hazardous waste generator regulations is an unqualified standard. For example, the requirements of 40 CFR part 262 subpart D (Recordkeeping and Reporting), and the requirements in §§ 262.30 through 262.33, are among the independent requirements applicable to generators. If a generator violates an independent requirement, it may be subject to an enforcement action under section 3008 of RCRA. Unlike conditions for an exemption, independent requirements have no direct relationship to the option of obtaining or maintaining an exemption from certain RCRA regulations.

EPA is proposing to make the distinction between “independent requirement” and “condition for exemption” more clear by placing definitions of these terms in the regulations at § 262.1. See section VIII.A.1 for additional discussion.

A “condition for exemption,” on the other hand, is a prerequisite that is necessary to occur or be met in order for something else to take legal effect. Thus, in the context of the RCRA hazardous waste generator regulations, a RCRA “condition for exemption” is a requirement that a generator must comply with in order to obtain or maintain an exemption from RCRA permitting requirements in part 270 and the requirements in part 264 or part 265. For example, a conditionally exempt small quantity generators (CESQGs) must meet a condition for exemption in order for its hazardous waste to be exempt from the requirements in parts 124, 262 through 266, 268, or 270, or from any requirement for notification under section 3010 of RCRA for its hazardous waste. A CESQG that fails to meet all of the conditions for an exemption for CESQGs in § 261.5 would now be subject to all these requirements.

The conditions for exemption available to large and small quantity generators are found in the current regulations at § 262.34.

Should a small quantity generator or large quantity generator fail to meet all the conditions for an exemption, it would not only be subject to having to obtain a permit under part 270 but also to the requirements in part 264 or part 265.

Under this proposed rule these conditions for exemption would be moved to proposed sections §§ 262.14 through 262.17.

As stated above, complying with the conditions for exemption is not required because it is not mandatory for a generator to obtain and maintain an exemption from RCRA permitting requirements. Instead, when a generator does not comply with a certain condition or conditions for exemption, the consequence is that the generator either fails to obtain—or loses—the exemption from the RCRA permitting requirements (unless it has complied with all of the conditions for a different applicable exemption from those requirements). This means that, because there is no exemption, permitting requirements become applicable to the generator for the same time period that the generator is out of compliance with the conditions for exemption.

3. Types of Conditional Exemptions

The current RCRA regulations afford generators two types of conditional exemptions: (1) An exemption from most of the 40 CFR part 262 requirements, available to farmers and to CESQGs, and (2) an exemption from 40 CFR parts 124, 264 through 268, 270, and 279 requirements, and from the notification requirements of section 3010 of RCRA, available to SQGs and LQGs that accumulate hazardous waste.

The first conditional exemption is available only to farmers and CESQGs. With respect to farmers, this conditional exemption is found in part 262 subpart G and is limited to waste pesticides that are RCRA hazardous wastes that the farmer generates, provided the farmer triple rinses each emptied pesticide container in accordance with § 261.7(b)(3) and disposes of the pesticide residues on his own farm in a manner consistent with the disposal instructions on the pesticide label. This exemption from part 262 relieves farmers and CESQGs from the requirements related specifically to the generation, management, and transportation of hazardous wastes provided such waste meets certain conditions, including that the waste is treated or disposed of on site or is delivered to an off-site treatment, storage, or disposal facility which is located in the United States and is one of seven specified types of facilities. Provided the farmer and/or CESQG meets these conditions, they are not subject to the 40 CFR part 262, as well as other hazardous waste management requirements.

The second type of conditional exemption relieves generators that accumulate hazardous waste from the permitting and other requirements applicable to treatment, storage, and disposal facilities and makes temporary accumulation of hazardous waste possible for generators and is found in § 262.34. In EPA's experience, virtually every generator accumulates or stores its hazardous waste on site for some period before sending it to either an on-site or off-site permitted or interim status treatment storage or disposal facility (TSDF) or other RCRA-authorized disposal site. However, provided the generator meets the conditions in this exemption, they would not be subject to the permitting requirements and operations requirements applicable to a hazardous waste management facility for storage, or a “storage facility.”

See 40 CFR 270.2 (“hazardous waste management facility”).

The generator regulations in part 262, therefore, are made up of both independent requirements and conditions for exemptions. All generators are subject to at least one requirement in part 262 (

i.e.,

making a hazardous waste determination); however, the total number of part 262 requirements applicable to a generator depends on the total quantity of hazardous waste it generates each calendar month and therefore what generator category it is for that month. All generators can choose the extent of their regulation under RCRA by either meeting, or failing to meet, all of the conditions for an exemption from regulation as a storage facility.

Of all the generators, LGQs are subject to the most independent requirements. The current regulations at § 262.34(a) are quite clear for LQGs where they state that a generator may accumulate hazardous waste on-site for 90 days or less without a permit or without having

interim status, provided that it meets the listed conditions for the exemption. These conditions relate to the technical requirements for containers, tanks, drip pads, and containment buildings, in addition to marking and labeling of containers, closure, personnel training, emergency response procedures, and contingency planning. In effect, should an LQG not meet any one of these conditions, it would be operating illegally without a permit. The same regulatory framework applies to CESQGs and SQGs, but with different conditions.

SQGs have fewer independent requirements and conditions for exemption than LQGs. In particular, SQGs have longer accumulation time limits than LQGs (up to 180 days, or 270 days, if the hazardous waste is shipped greater than 200 miles) and have fewer regulations related to personnel training, contingency planning, and emergency response procedures. SQGs also do not have to submit biennial reports. However, like LQGs, SQGs must obtain an EPA ID number, meet the technical standards for containers and tanks, comply with manifesting regulations, and send their hazardous waste to a RCRA permitted hazardous waste TSDF. In addition, SQGs may not accumulate more than 6,000 kilograms of hazardous waste at any one time.

CESQGs have very few conditions. Specifically, in order for CESQGs to be excluded from 40 CFR parts 124, 262 through 266, 268, and 270 and the notification requirements of section 3010 of RCRA, they must (1) make correct hazardous waste determinations;

(2) accumulate no more than 1,000 kilograms of hazardous waste at any one time or accumulate no more than the quantities of acute hazardous wastes set forth in § 261.5(e)(1) or (2) at any one time; and (3) send hazardous waste to one of seven specified types of facilities described in §§ 261.5(e)(3) and 261.5(g)(3).

All other regulations applicable to LQGs and SQGs are not applicable to CESQGs that comply with these conditions.

Making a correct hazardous waste determination is a condition for the exemption for CESQGs but an independent requirement for SQGs and LQGs.

A CESQG may send hazardous waste to the following types of facilities: (1) A hazardous waste facility permitted by EPA; (2) an interim status hazardous waste facility; (3) a hazardous waste facility permitted by an authorized state; (4) a facility permitted, licensed or registered by a state to manage municipal solid waste; (5) a facility permitted, licensed or registered by a state to manage non-municipal non-hazardous solid waste; (6) a facility which beneficially uses or reuses or legitimacy recycles or reclaims its wastes or treats its waste prior to beneficial use or reuse or legitimacy recycling or reclamation; or (7) universal waste handler or destination facility subject to the requirements in 40 CFR part 273. The Agency is proposing an eighth location where CESQGs would be allowed to send their hazardous wastes (

e.g.,

an LQG within the same company provided specified conditions are met).

Table 1—Summary of Generator Regulations provides a summary of requirements that represent conditions for an exemption for CESQGs, SQGs and LQGs. As noted in the table, the category “Conditions for Exemption” applies to such requirements as the quantity generated and accumulated, accumulation time, the technical standards for containers, tanks, drip pads and containment buildings, marking and labeling, personnel training, contingency planning and emergency procedures. It is important to note that a waste determination is an independent requirement for SQGs and LQGs, whereas it is a condition for exemption for CESQGs as defined at § 261.5(f)(1) and (g)(1).

Note that state hazardous waste programs may be more stringent than the federal program and also broader in scope.

Table 1—Summary of Generator Regulations

CESQGs

SQGs

LQGs

Generator Category

≤100 kg/month

≤1 kg/month of acute hazardous waste

≤100 kg/month of acute spill residue or soil

§§ 261.5(a) and (e)

>100 and <1,000 kg/month

≤1 kg/month of acute hazardous waste

≤100 kg/month of acute spill residue or soil

§§ 262.34(d) and 261.5(e)

≥1,000 kg/month

>1 kg/month of acute hazardous waste

>100 kg/month of acute spill residue or soil

§§ 262.34(a) and 261.5(e).

Conditions for Exemption

Hazardous Waste Determination

§ 262.11

N/A

N/A.

On-Site Accumulation Quantity

≤1,000 kg

≤1 kg acute

≤100 kg of acute spill residue or soil

§ 261.5(f)(2) and (g)(2)

≤6,000 kg

§ 262.34(d)(1)

No limit.

Satellite accumulation

Not applicable

§ 262.34 (c)(1) and (2)

§ 262.34 (c)(1) and (2).

Accumulation Time Limits

None

≤180 days or ≤270 days (if greater than 200 miles)

§ 262.34(d)(2) and (3)

≤90 days.

§ 262.34(a).

Accumulation Conditions

§ 261.5 (f)(1) and (2); § 261.5 (g)(1) and (2)

Reduced standards for the management of hazardous waste in containers and tanks

§ 262.34(d)(2) and (3)

Full compliance for management of hazardous waste in containers, tanks, drip pads, or containment buildings.

§ 262.34(a).

Sent To:

One of seven state approved or RCRA permitted/interim status facilities

§ 261.5(f)(3) and (g)(3)

RCRA permitted/interim status facility

RCRA permitted/interim status facility.

Personnel Training

Not required

Reduced training standards

§ 262.34(d)(5)(iii)

Full compliance with §§ 265.16 and 262.34(a)(4).

Marking and labeling

Not required

§ 262.34 (a)(2) and (3)

§ 262.34 (a)(2) and (3).

Contingency Plan

Not required

Reduced standards

§ 262.34(d)(5)(i)

Full compliance with part 265 subparts C and D.

§ 262.34(a)(4).

Emergency Procedures

Not required

Part 265 subpart C

§ 262.34(d)(5)(iv)

Full compliance with part 265 subparts C and D.

§ 262.34(a)(4).

Closure

Not required

§ 262.34(a)(1)(iv)/§§ 265.111 and 265.114.

Land Disposal Restrictions

Not required

40 CFR 262.34(a)(4)/40 CFR part 268

40 CFR 262.34(a)(4)/40 CFR part 268.

C. Hazardous Waste Generator Demographics

In 2011, 16,447 generators reported generating approximately 34.4 million tons of hazardous waste.

Of the 16,447 generators, 14,262 were LQGs and 2,185 were non-LQGs, meaning these entities submitted a biennial report but did not report generating sufficient amounts of hazardous waste to be categorized as an LQG.

EPA's National Biennial RCRA Hazardous Waste Report (Based on 2011 Data)

http://www.epa.gov/osw/inforesources/data/br11/index.htm

The fifty largest hazardous waste generators reported generating 28.7 million tons, or 83 percent of the total. Additionally, 3,148 generators, or approximately 19 percent of the total reporting universe, reported generating only one hazardous waste stream, while 8,435 generators, or 51 percent of the total reporting universe, reported generating between one and five hazardous waste streams.

At the other extreme were 843 generators, or 5 percent of the total reporting universe, that reported generating 41 or more hazardous waste streams. These generators included sites from the waste treatment industry as well as academic and industrial laboratories.

Summary of the number of GM forms submitted by LQGs in 2011 Biennial Report.

Of the 34.4 million tons of hazardous waste generated in 2011, 30.5 million tons, or 89 percent, were generated in just five industrial sectors: Basic Chemical Manufacturing (which alone accounted for 55 percent of the hazardous waste generated); Petroleum and Coal Products Manufacturing, Waste Treatment and Disposal; Pesticide, Fertilizer, and Other Chemical Manufacturing; and Iron and Steel Mills and Ferroalloy Manufacturing.

Unlike LQGs, who must submit a biennial report every two years describing the types and quantities of hazardous waste generated and its subsequent disposition, SQGs are not required to provide such information to the Agency. Consequently, the Agency lacks the level of detail for SQGs that is available for LQGs. However, based on a review of biennial report data provided by treatment, storage, and disposal facilities (which must report waste received from all hazardous waste generators) and site identification data (from SQGs obtaining an EPA ID number), EPA estimates the number of SQGs to range from 45,762 to 59,702.

Estimate of Total Number of SQGs and CESQGs, July 2013. We estimated this range by doing the following: (1) Identifying hazardous waste generators who shipped hazardous waste off site in 2007, 2009, and 2011 using the Biennial Report's WR form and (2) cross walking that universe with data received from Site ID forms to identify the “active” SQG universe. The high-end estimate represents SQGs who shipped hazardous waste off site in any one of the three Biennial Report cycles, since many hazardous waste generators fluctuate in the regulatory status from year to year. The estimate also includes new SQGs who notified after the 2011 biennial report. The low-end represents SQGs who shipped hazardous waste off site in 2011 only as well as new SQG notifiers. A copy of the results can be found in the docket to this proposal.

Because CESQGs are not required to obtain a RCRA ID, the information available to the Agency is limited to those states that require their CESQGs to obtain a RCRA ID. Therefore, in estimating the size of the CESQG universe, the Agency developed a methodology that extrapolated the size of the CESQG universes based on the data available in those states that require CESQGs to obtain a RCRA ID. We first established a ratio of SQGs to CESQGs in those states where information was available on the CESQG universe and then used that ratio to estimate the size of a state's CESQG universe where CESQG information was unavailable. Using this methodology, EPA currently estimates the size of the CESQG universe to range from 302,807 to 425,752.

However, we believe this range most likely underestimates the true number of CESQGs because we believe there are many more facilities unaware of their obligations under the RCRA hazardous waste regulations and the need to conduct correct hazardous waste determinations.

Methodology to Estimate the National Number of CESQGs, July 2013.

D. 2004 Hazardous Waste Generator Program Evaluation

On April 22, 2004, EPA published the “Hazardous Waste Generator Program Evaluation” Advanced Notice of Proposed Rulemaking (69 FR 21800). The purpose of the April 2004 notice was to seek information from stakeholders in order to evaluate the effectiveness of the RCRA hazardous waste generator program, as well as to identify areas for potential improvement.

Specifically, the April 2004 notice requested that stakeholders answer a series of questions in a number of areas of the hazardous waste generator regulatory program, including program effectiveness, improvements, redundancy, innovation, performance, burden reduction, pollution prevention and recycling, and priorities. Questions included whether the existing RCRA hazardous waste generator regulatory program is meeting its goal of protecting human health and the environment and whether the regulations are easy to understand, including questions asking which specific regulations are unclear or have been interpreted inconsistently.

EPA also included in the April 2004 notice a list of program areas that had previously been identified by stakeholders as needing improvement. These program areas included waste accumulation times, waste generation quantity thresholds and counting rules for LQGs, SQGs, and CESQGs, episodic generator provisions, waste sampling and testing, waste management standards, satellite accumulation, generator accumulation and treatment in containers or tanks, closure standards for generators, co-generator standards, RCRA identification numbers, waste minimization, and land disposal restriction requirements applicable to generators. During the comment period, EPA also held four public meetings in May 2004 in Boston, MA, Chicago, IL, Washington, DC, and Seattle, WA.

In response to the April 2004 notice and the May 2004 public meetings, EPA received over 500 comments from 55 organizations and individuals, including 9 states, 5 federal agencies, 2

universities, 12 trade associations, and 22 companies.

Overall, EPA's effort to seek information regarding the effectiveness of the hazardous waste generator regulatory program received a favorable response.

Public comments can be found in Docket ID No. RCRA-2003-0014.

Many commenters agreed that implementation of the generator regulations has made significant improvements in managing hazardous waste and has resulted in fewer releases of hazardous waste to the environment. However, many commenters identified several improvements they believed needed to be made to regulations. Specifically, they suggested the following:

• Simplify the regulations to make them more user-friendly and easy to understand, such as eliminating cross-referencing and codifying guidance into regulations, where applicable.

• Improve the efficiency of the program by clearing up ambiguities and removing potential redundancies, such as defining what constitutes a closed container and clarifying parts of the satellite accumulation regulations.

• Provide greater flexibility in the regulations, such as regulations that allow for episodic generation and that allow wastes to be shipped from remote locations to a centralized location to enable better waste management.

• Require re-notification to ensure better data quality to support compliance monitoring of SQG facilities (state commenters).

• Improve regulations on hazardous waste determinations, including when it is appropriate to use generator knowledge instead of analytical testing (Industry commenters).

In response to the comments on the April 2004 notice, EPA took several actions to help improve the hazardous waste generator program in order to foster better compliance. Actions included (1) improving EPA's Web site for the hazardous waste generator regulatory program,

(2) developing an online guide to the hazardous waste generator regulations,

(3) releasing guidance for management of hazardous waste in closed containers,

(4) issuing a technical corrections direct final rule,

and (5) conducting an evaluation of the hazardous waste determination program.

While these actions have helped to improve the hazardous waste generator program, the Agency recognizes that many of the changes identified by commenters can only be made through rulemaking. Thus, this proposed rule requests comment on a number of changes to the hazardous waste generator regulations.

http://www.epa.gov/osw/hazard/generation/index.htm

“Hazardous Waste Generator Regulations: A User-Friendly Reference Document” (

http://www.epa.gov/osw/hazard/downloads/tool2012.pdf

Memorandum from Betsy Devlin, Acting Director of EPA's Waste Recovery and Waste Management Division, to RCRA Division Directors, “Closed Container Guidance: Questions and Answers (Qs & As), November 3, 2011, incorporating Memorandum from Robert Dellinger, Director of EPA's Materials Recovery and Waste Management. Division, to RCRA Division Directors, “Guidance on 40 CFR 264.173(a) and 265.173(a): Closed Containers,” December 3, 2009, RCRA Online 14826.

75 FR 12989, March 18, 2010.

Hazardous Waste Determination Program Evaluation, April 2013 (

http://www.epa.gov/evaluate/pdf/waste/haz-waste-determination.pdf

VI. Proposed Revisions to 40 CFR Part 260—Hazardous Waste Management System: General

A. Generator Category Definitions (40 CFR 260.10)

EPA is proposing to codify definitions for the three categories of hazardous waste generators (CESQG, SQG and LQG). The term “small quantity generator” is codified in the regulations, but is outdated, whereas “conditionally exempt small quantity generator” and “large quantity generator” have been used within the RCRA hazardous waste community for several decades, but their exact definitions have not been codified. The regulations differentiate between the categories by stating the quantity of hazardous waste generated in a calendar month in each instance.

As the terms are most commonly used, CESQGs are generators that generate 100 kilograms or less of non-acute hazardous waste and 1 kilogram or less of acute hazardous waste in a calendar month; SQGs are generators that generate greater than 100 kilograms of non-acute hazardous waste but less than 1,000 kilograms of non-acute hazardous waste and 1 kilogram or less of acute hazardous waste in a calendar month; and LQGs are generators that generate 1,000 kilograms or greater of non-acute hazardous waste and/or greater than 1 kilogram of acute hazardous waste in a calendar month. However, generators often fail to consider residues from the cleanup of a spill of acute hazardous waste or do not count both the non-acute and acute hazardous waste they generate in a calendar month. The proposed definitions have been drafted to incorporate all the various categories of hazardous wastes—that is, acute hazardous waste, non-acute hazardous waste, and residues for the cleanup of a spill of acute hazardous wastes.

Considering the significance a generator's category has in determining the appropriate set of regulations that the generator must comply with, the Agency believes it is necessary to define the specific hazardous waste generator categories in the regulations.

The proposed generator category definitions are based solely on the amount of hazardous waste generated. While EPA acknowledges that accumulation limits may trigger different generator regulations, those accumulation limits do not affect a generator's generation category, which is based on how much hazardous waste is generated in a calendar month.

Therefore, EPA is proposing to add the following definitions to § 260.10:

Very small quantity generator

is a generator who generates less than or equal to the following amounts in a calendar month: (1) 100 kilograms (220 lbs) of non- acute hazardous waste; and (2) 1 kilogram (2.2 lbs) of acute hazardous waste listed in § 261.31 or § 261.33(e); and (3) 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in sections § 261.31 or § 261.33(e);

As part of this rulemaking, EPA is proposing to change the name of “conditionally exempt small quantity generator (CESQG)” to “very small quantity generator (VSQG).” This change is discussed in section VI.B. For the sake of a consistent discussion, however, EPA is using the term CESQG throughout the preamble unless directly stating the content of the proposed regulatory text.

Small quantity generator

is a generator who generates the following amounts in a calendar month: (1) Greater than 100 kilograms (220 lbs) but less than 1000 kilograms (2200 pounds) of non-acute hazardous waste; and (2) less than or equal to 1 kilogram (2.2 lbs) of acute hazardous wastes listed in § 261.31 or § 261.33(e); and (3) less than or equal to 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in § 261.31 or § 261.33(e);

Large quantity generator

is a generator who generates any of the following amounts in a calendar month: (1) Greater than or equal to 1000 kilograms (2200 lbs) of non-acute hazardous waste; or (2) greater than 1 kilogram (2.2 lbs) of acute hazardous waste listed in § 261.31 or § 261.33(e); or (3) greater than 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water,

of any acute hazardous waste listed in § 261.31 or § 261.33(e).

EPA is also proposing to add definitions to § 260.10 for the terms “acute hazardous waste” and “non-acute hazardous waste,” which are both used in the above definitions for generator categories. The term acute hazardous waste is used for hazardous wastes that are particularly dangerous to human health and is defined as those hazardous wastes that meet the listing criteria in § 261.11(a)(2) and are therefore listed in § 261.31 and assigned the hazard code of (H) or are listed in § 261.33(e), also known as the RCRA P-list. In this proposal, any distinctions between acute and non-acute hazardous wastes are only being made in the context of determining generator category. Generally the term “hazardous waste” refers to both acute and non-acute hazardous waste.

As previously stated, the definitions of generator categories are based solely on the amount of hazardous waste generated in a calendar month and are generally consistent with how the regulated community understands the various categories based on EPA's references in existing publications to how much hazardous waste is generated in a calendar month. Additionally, these definitions reflect that a generator may only have one generator category in a calendar month even if the generator generates both acute hazardous waste and non-acute hazardous waste in the same calendar month, a topic discussed further in section VII.A.

In practice, five waste generation scenarios exist with different combinations of acute hazardous waste, non-acute hazardous waste, and residues from the cleanup of spills of acute hazardous waste generated in a calendar month. These scenarios are summarized in Table 2—Generator Categories Based on Quantity of Waste Generated.

EPA is proposing to include this table in the regulations as Table 1 in § 262.13.

Table 2—Generator Categories Based on Quantity of Waste Generated

Quantity of acute hazardous waste generated in a calendar month

Quantity of non-acute hazardous waste generated in a calendar month

Quantity of residues from the cleanup of acute hazardous waste generated in a calendar month

Generator category

> 1 kg

Any amount

LQG.

Any amount

≥ 1,000 kg

Any amount

LQG.

Any amount

> 100 kg

LQG.

≤ 1 kg

> 100 kg and < 1,000 kg

≤ 100 kg

SQG.

≤ 1 kg

≤ 100 kg

VSQG/(CESQG).

Note: When calculating generator categories, the quantities of acute hazardous waste and non-acute hazardous waste are considered separately.

In three of the scenarios in Table 2—Generator Categories Based on Quantity of Waste Generated, the generator would be an LQG, in one scenario the generator would be an SQG, and in one scenario the generator would be a CESQG. In the first three scenarios, the generator is an LQG if it generates any of the following in a calendar month, regardless of the amounts of hazardous waste generated in the other categories: more than 1 kilogram of acute hazardous waste, 1,000 kilograms or more of non-acute hazardous waste, or more than 100 kilograms of residues from the cleanup of a spill of acute hazardous waste. This is made clear in the proposed regulatory definition of “LQG” by use of the word “any” and by the use of the word “or” between (1), (2), and (3). In these scenarios, the generator would need to comply with the independent requirements and conditions for the exemption for LQGs (specified in proposed § 262.17), as well as any applicable regulations for SAAs at § 262.15.

In the fourth scenario, the generator would be an SQG if, in a calendar month, it generates greater than 100 kilograms and less than 1,000 kilograms of non-acute hazardous waste and also 1 kilogram or less of acute hazardous waste and 100 kilograms or less of residues from the cleanup of a spill of acute hazardous waste.

The proposed regulatory text expresses this scenario by using the word “and” between (1), (2), and (3) in the definition of SQG. As a result, the generator would need to comply with the independent requirements and conditions for the exemption for SQGs (specified in proposed § 262.16), as well as any applicable regulations for SAAs at § 262.15.

Amount of hazardous waste accumulated on site at any given time can also impact what regulations the SQG must comply with.

Finally, in the fifth scenario, if a generator generates 1 kilogram or less of acute hazardous waste and 100 kilograms or less of non-acute hazardous waste and 100 kilograms or less of residue from the cleanup of a spill of acute hazardous waste, then the generator is a CESQG for that calendar month. The proposed regulatory text expresses this scenario by using the word “and” between (1), (2), and (3) in the definition. As a result, the generator would need to comply with the conditions for the exemption for CESQGs (specified in proposed § 262.14).

EPA is proposing to move the CESQG regulations from §§ 261.5 to 262.14. See section XIII of this preamble for more information.

EPA requests comment on these proposed changes.

Effect of the Proposed Reorganization:

This section is not affected by the proposed reorganization.

B. Renaming CESQG to VSQG (40 CFR 260.10)

Currently only one of the three generator categories—CESQG—uses the words “conditionally exempt” in its title; however both SQGs and LQGs, which typically accumulate hazardous waste on site, are also conditionally exempt from obtaining a RCRA permit or complying with the interim status standards in 40 CFR parts 264 and 265, respectively, provided they meet certain conditions. In addition, while CESQGs are subject to few conditions for exemption, they are still considered hazardous waste generators, and must comply with the relevant regulations. If a CESQG does not comply, it would be out of compliance with the hazardous waste regulations and potentially subject to enforcement action. This inconsistency in terminology has caused some confusion throughout the regulated community. Therefore, EPA is proposing to change the name of the category from “conditionally exempt small quantity generator (CESQG)” to “very small quantity generator (VSQG).”

EPA notes that this change is consistent with some states, such as Minnesota, which are already using the VSQG term. All regulations applicable to a CESQG would apply to a VSQG.

EPA requests comment on this proposed change.

Effect of the Proposed Reorganization:

This section is not affected by the proposed reorganization.

C. Definition of Central Accumulation Area (40 CFR 260.10)

The Agency is also proposing to define the term “central accumulation area” in § 260.10 to mean any on-site hazardous waste accumulation area with hazardous waste accumulating in units subject to either § 262.16 (for small quantity generators) or § 262.17 (for large quantity generators).

The definition also states that a central accumulation area at an eligible academic entity that chooses to be subject to part 262 subpart K must also comply with § 262.211 when accumulating unwanted material and/or hazardous waste.

This proposed definition includes citations to new sections of part 262 that we are proposing to include as part of the reorganization of the generator regulations. The existing small quantity generator regulations are at §§ 262.34(d) through (f) and the existing large quantity generator regulations are at § 262.34(a). For a full discussion of the proposed reorganization, see section XIII of the preamble.

LQGs may accumulate hazardous waste on site without a permit or complying with the interim status standards for up to 90 days provided they comply with § 262.34(a) and SQGs may do the same for up to 180 days, provided they comply with § 262.34(d) though (f).

Over the years, stakeholders have used different terms to refer to these on-site generator accumulation areas, including “generator accumulation areas,” “less-than-90-day areas,” and “less-than-180-day areas.” In December 2008, EPA promulgated a definition of “central accumulation area” in subpart K of part 262 to refer to these types of areas (“Academic Labs Rule”; 73 FR 72912, December 1, 2008). As explained in the preamble to the proposed Academic Labs Rule, EPA codified the term “central accumulation area” for the sake of convenience to distinguish these types of accumulation areas from satellite accumulation areas and laboratories, which are both subject to different regulations than central accumulation areas are. At the time, EPA promulgated the term in § 262.200 and indicated that the definition only applied to part 262 subpart K. Since then, the term has become more widely used and EPA is now proposing to define the term “central accumulation area” in § 260.10 to allow its use when referring to generator accumulation areas that are not operating under part 262 subpart K.

As noted previously, SQGs can accumulate hazardous waste for up to 270 days if they ship the hazardous waste greater than 200 miles.

EPA emphasizes that we are proposing to define the term “central accumulation area” only as a matter of convenience. It is helpful for both the regulated community and the implementers to have a common term to use when referring to locations where generators accumulate hazardous waste other than satellite accumulation areas. Furthermore, the term is helpful for EPA to use when writing regulations, preamble, and guidance. The addition of the term does not establish any new regulatory standards or burden on generators. Generators may continue to have more than one central accumulation area on site; the use of the word “central” does not limit a generator to one area.

We have rephrased the proposed definition from how it currently appears in part 262 subpart K to make this clearer. The definition, as it appears in part 262 subpart K, currently states that a central accumulation area means an on-site hazardous waste accumulation area. We are proposing to revise the definition to say that a central accumulation area means

any

on-site hazardous waste accumulation area. Further, the use of the word “central” does not indicate that the generator must establish the central accumulation area in a location that is centrally located within the site. The use of the word “central” is used because many generators use a central accumulation area to consolidate or

centralize

their hazardous waste from multiple satellite accumulation areas prior to shipment off-site.

Because the proposed definition to be added to § 260.10 will now reference part 262 subpart K (the definition states that a central accumulation area at an eligible academic entity that chooses to be subject to part 262 subpart K must also comply with § 262.211 when accumulating unwanted material and/or hazardous waste), we are proposing to remove the definition of central accumulation area from part 262 subpart K.

Effect of the Proposed Reorganization:

This section is affected by the proposed reorganization. The definition of “central accumulation area” references other regulatory citations that are part of the proposed reorganization. The reorganization is discussed in section XIII of this preamble.

VII. Proposed Revisions to 40 CFR Part 261—Identification and Listing of Hazardous Wastes

EPA is proposing four changes to the regulations currently in 40 CFR part 261. First, the Agency is proposing to add a new provision that would explain what generator category would apply to a hazardous waste generator that generates both acute and non-acute hazardous waste in the same calendar month. Second, EPA is proposing to modify the regulations at §§ 261.5(h) and (i) and 261.3 that address the mixing of a non-hazardous waste with a hazardous waste. Third, the Agency is proposing to amend § 261.5(f)(3) and (g)(3) to allow a CESQG to send its hazardous waste to an LQG under control of the same person. Finally, the Agency is proposing to amend § 261.6(c) to require biennial reporting for owners or operators of facilities that recycle hazardous waste without storing them before they are recycled.

A. Generators That Generate Both Acute and Non-Acute Hazardous Waste in the Same Calendar Month (40 CFR 261.5)

When a generator is determining what category it belongs in, it must consider three relevant categories of hazardous waste: hazardous waste (or non-acute hazardous waste, for purposes of this discussion), acute hazardous waste, and residues from the cleanup of a spill of acute hazardous waste. EPA is proposing regulations that make clear what a generator's category is for a calendar month when it generates any combination of non-acute hazardous waste, acute hazardous waste, and residues from the cleanup of a spill of acute hazardous waste in the same calendar month and which set of regulations apply. Currently, the RCRA hazardous waste regulations do not address situations involving combinations of wastes and Agency statements about this issue have been inconsistent.

According to the November 19,1980, FR notice discussing changes to § 261.5, “the regulation is revised to clarify that the lower exclusion levels for acutely hazardous waste apply only to generators who otherwise are deemed small quantity generators.

The Agency believes that a generator who produces more than 1,000 kilograms of hazardous waste a month and is therefore subject to full regulation should handle his

acutely hazardous wastes in the same manner as his other wastes” (45 FR 76622).

Note: Prior to 1986, there were only two categories of generators: large quantity generators and small quantity generators. When the small quantity generator regulations were promulgated in 1986, a third category of generators, conditionally exempt small quantity generators, was established.

In other words, if a generator generates 1,000 kilograms or more of non-acute hazardous waste in a calendar month, it would be considered an LQG for that month and therefore should, for both practical and environmental reasons, manage the acute hazardous wastes under the same regulations as an LQG (even if the amount of acute hazardous waste generated in a calendar month is less than 1 kilogram). However, a provision regarding how to determine one's generator category when generating a combination of non-acute hazardous waste, acute hazardous waste, and residues from the cleanup of a spill of acute hazardous waste was not included in the regulatory language.

Conversely, in a September 2, 1987, letter concerning the accumulation time for acute hazardous waste and non-acute hazardous waste in the same month, the Agency stated, “Acute hazardous wastes are counted and managed separately from hazardous wastes (§ 261.5(e)). In the example given, the generator would have 90 days to send the acute hazardous waste off site, but would have 180 days for the non-acute hazardous waste.”

These different Agency interpretations have ultimately led to confusion regarding which regulations apply to hazardous waste generators that generate different categories of hazardous waste in the same calendar month.

Letter from Marcia E. Williams, Director of EPA's Office of Solid Waste, to Fred Hutchison, University of Idaho, September 2, 1987, RCRA Online 11288.

The Agency believes the more practical approach is for a generator to be in only one generator category in a calendar month, the approach outlined in the 1980

Federal Register

discussion. When a generator generating only non-acute hazardous wastes counts its waste, it must consider the total amount of all its different kinds of non-acute hazardous waste, not the amount of each type of hazardous waste (such as, type of waste identified by individual EPA hazardous waste number) separately. Considering the combination of acute hazardous wastes, non-acute hazardous wastes, and residues from the cleanup of a spill of acute hazardous waste generated in a calendar month when determining what category a generator belongs to follows the same logic. In addition, many of the regulations for LQGs are site-wide, such as submitting the biennial report, developing a contingency plan, and conducting training, and therefore a generator would still have to comply with these conditions and would not gain a significant economic advantage by having more than one generator category. We note that many EPA Regions and states have taken this same approach in implementing the RCRA hazardous waste program.

This is why EPA is proposing to expressly state in the definitions which generator category would apply to hazardous waste generators that generate a combination of non-acute hazardous waste, acute hazardous waste, and/or residues from the cleanup of spills of acute hazardous waste in a calendar month as discussed in section VI of this preamble. In conjunction with these changes, EPA is proposing a new section § 262.13 explaining how a generator determines which generator category applies to it. This topic is fully discussed in section VIII of this preamble. The Agency is soliciting comment on the proposal to revise the existing regulations to indicate that a generator can only have one generator category in a calendar month, according to the quantity of acute and non-acute hazardous waste it generates.

Effect of the Proposed Reorganization:

This section is affected by the proposed reorganization. All the proposed definitions of generator categories would be found in § 260.10. The reorganization is discussed in section XIII of this preamble.

B. Generators That Mix a Non-Hazardous Waste With a Hazardous Waste

EPA is proposing to modify how mixtures of non-hazardous waste and hazardous waste would affect the generator categories of CESQGs and SQGs. Additionally, EPA is proposing to add a reference in 40 CFR part 262 that assists LQGs with finding the regulations applicable to mixing hazardous waste with non-hazardous waste.

1. CESQGs That Mix a Non-Hazardous Waste With a Hazardous Waste (40 CFR 261.5(h) and (i))

With the partitioning of the original 1980 SQG regulations into two sets of regulations for CESQGs and SQGs in 1986, potential confusion surrounds the current reading and implementation of § 261.5(h) and (i). When the regulations at § 261.5(h) and (i) were promulgated on November 19, 1980 (45 FR 76623), the title of § 261.5 was “Special requirements for hazardous waste generated by small quantity generators.” At that time, there were only two hazardous waste generator categories: LQGs and SQGs. Prior to the promulgation of the new SQG regulations on March 24, 1986 (52 FR 10146), an SQG was a generator who generates less than 1,000 kilograms of hazardous waste in a calendar month; the regulations did not make a distinction between SQGs and CESQGs at that time. Prior to 1986, paragraphs (h) and (i) of section 261.5 read as follows:

“(h) Hazardous waste subject to the reduced requirements of this section may be mixed with non-hazardous waste and remain subject to these reduced requirements even though the resultant mixture exceeds the quantity limitations identified in this section, unless the mixture meets any of the characteristics of hazardous waste identified in subpart C.

(i) If a small quantity generator mixes a solid waste with a hazardous waste that exceeds a quantity exclusion level of this section, the mixture is subject to full regulation.”

With the promulgation of the SQG regulations in 1986, SQGs were broken into two classes of generators: (1) CESQGs (generators who generate up to 100 kilograms of hazardous waste in a calendar month) and (2) SQGs (generators who generate greater than 100 kilograms and less than 1,000 kilograms of hazardous waste in a calendar month). The regulations for CESQGs were established at § 261.5, while those for SQGs were moved to § 262.34 (d)-(f). Similarly the title of § 261.5 was changed to read, “Special requirements for hazardous waste generated by

conditionally exempt

small quantity generators” [emphasis added]. The language of § 261.5(h) did not change when the SQG regulations were promulgated, while paragraph (i) was modified slightly to read: “If any person mixes a solid waste with a hazardous waste that exceeds a quantity exclusion level of this section, the mixture is subject to full regulation.” The phrase “any person” was substituted for the phrase “small quantity generator.”

EPA believes that the readability of these regulations could be improved, particularly for paragraph (i), to expressly state whether the regulation applies to situations where the hazardous waste being mixed exceeds the CESQG quantity exclusion level or to situations where the mixture exceeds the CESQG quantity exclusion level. Additionally, “full regulation,” could be interpreted as regulation commensurate with an LQG, even if the resultant mixture exceeds CESQG quantity levels, but not SQG quantity levels.

For these reasons, EPA is proposing to modify the language regarding mixing of non-hazardous waste with hazardous waste by CESQGs (which is currently

located at § 261.5(h) and (i)) to make these points clear. Specifically, it states that a CESQG may mix listed or characteristic hazardous waste with non-hazardous waste and remain eligible for the conditional exemption provided that either of the following is true:

(1) The mixture does not exhibit any of the characteristics of hazardous waste identified in subpart C of part 261 of this chapter; or (2) the mixture does not cause the generator to exceed the very small quantity generator calendar month quantity limits identified in the definition of very small quantity generator at § 260.10.

EPA is proposing to use the term “very small quantity generator (VSQG)” in place of “conditionally exempt small quantity generator.” See section VI.B of this preamble for more information.

This regulatory citation is the proposed new location for the definition of a VSQG. See section VI.B of this preamble for more information.

For example, if a CESQG mixed 50 kilograms of characteristic hazardous waste with 100 kilograms of non-hazardous waste and the resultant 150 kilograms mixture did not retain the characteristics of hazardous waste, then the generator could still comply with the CESQG conditions. However, if a CESQG mixed 50 kilograms of characteristic hazardous waste with 100 kilograms of non-hazardous waste and the resultant 150 kilograms mixture

did

retain the characteristics of hazardous waste, then the generator would no longer be a CESQG, but an SQG, and the generator would need to comply with all applicable regulations for an SQG for that calendar month. Similarly, if a CESQG mixed 50 kilograms of characteristic hazardous waste with 1,000 kilograms of non-hazardous waste and the resultant 1,050 kilograms mixture retained the characteristics of hazardous waste, then the generator would no longer be a CESQG, but an LQG, and the generator would need to comply with all applicable regulations for an LQG for that calendar month.

Additionally, the generator would have to comply with the SQG or LQG regulations for as long as its total quantity of hazardous waste accumulated on-site was greater than or equal to the CESQG accumulation limit of 1000 kg.

EPA notes that the regulations covering mixing of hazardous and non-hazardous waste would apply regardless of when the initial wastes are generated. In other words, when a generator mixes a hazardous waste with a non-hazardous waste, the generator may have changed the properties of the hazardous waste and thus must make a hazardous waste determination on the resultant mixture. For example, if a CESQG mixed 50 kilograms of characteristic hazardous waste that it generated at different points over the last three months with 100 kilograms of non-hazardous waste and the resultant mixture

did

retain the characteristics of hazardous waste, then the generator would no longer be a CESQG at the point that the mixture was generated, but an SQG, and the generator would need to comply with all applicable regulations for an SQG for that calendar month during which the mixing occurred. The time period for the accumulation of wastes begins at the point the mixture is generated and the generator becomes a SQG.

In modifying the language, the Agency is not changing the intent of the existing hazardous waste regulations, but is improving the readability of the regulatory text. Thus, this change in language does not impose any additional burden on CESQGs.

Effect of the Proposed Reorganization:

This section is affected by the proposed reorganization. The reorganization of the generator regulations would move these provisions to 262.14(b). The reorganization is discussed in section XIII of this preamble.

2. LQGs and SQGs That Mix a Non-Hazardous Waste With a Hazardous Waste (40 CFR 261.3)

LQGs and SQGs are subject to the mixture rule in § 261.3. In short, the mixture rule has three parts: (1) If non-hazardous waste is mixed with listed hazardous waste, then the mixture is considered the listed hazardous waste (§§ 261.3(a)(2)(iv) and 261.3(b)(2)); (2) if non-hazardous waste is mixed with listed hazardous waste that is listed solely for exhibiting an ignitability, corrosivity, or reactivity characteristic in part 261 subpart C (such as F003 hazardous waste), then the mixture is considered hazardous waste only if it exhibits a characteristic (§ 261.3(g)(2)(i)); and (3) if non-hazardous waste is mixed with characteristic hazardous waste, then the mixture is considered hazardous waste only if the mixture exhibits a characteristic of hazardous waste (§ 261.3(b)(3)) (45 FR 33066, May 19, 1980; 66 FR 27266, May 16, 2001).

However, because the mixture rule appears in § 261.3 and the SQG and LQG regulations appear in 40 CFR part 262, the regulated community may not totally appreciate how the mixture rules apply to SQGs and LQGs. Therefore, EPA is proposing to include references in §§ 262.16(c) and 262.17(f) that assist SQGs and LQGs with finding the regulations applicable to the mixing of hazardous waste with non-hazardous waste. Additionally, EPA wants to modify the regulations to improve understanding of what circumstances an SQG may mix hazardous waste with non-hazardous waste and still remain subject to the SQG requirements.

Specifically, EPA is proposing to add a provision for SQGs that states that a small quantity generator may mix its hazardous waste with non-hazardous waste and remain eligible for the conditional exemption applicable to a small quantity generator under two circumstances: (1) The mixture is not a hazardous waste according to the mixture rules in §§ 261.3(a)(2)(iv), 261.3(b)(2), 261.3(b)(3), and 261.3(g)(2)(i); or (2) if the mixture is a hazardous waste, the mixture does not cause the generator to exceed the small quantity generator quantity limits for a calendar month, as identified in the definition of small quantity generator at § 260.10.

This regulatory citation is the proposed new location for the definition of SQG. See section VIII of this preamble for more information.

For example, if an SQG mixed 100 kilograms of listed hazardous waste (that was not listed solely for the ignitability, corrosivity and/or reactivity characteristic) with 1,000 kilograms of non-hazardous waste, then the resultant 1,100 kilogram mixture would be considered a listed hazardous waste and the generator would no longer be an SQG, but rather an LQG. The generator would then need to comply with all applicable regulations for an LQG for that month during which the SQG mixed the waste.

Additionally, a generator would have to comply with the LQG regulations for as long as its total quantity of hazardous waste accumulated on-site was greater than or equal to the SQG accumulation limit of 6000 kg.

However, if an SQG mixed 100 kilograms of either characteristic hazardous waste or listed hazardous waste (that

was

listed solely for the ignitability, corrosivity and/or reactivity characteristic) with 1,000 kilograms of non-hazardous waste and the resultant 1,100 kilograms mixture did not retain the characteristics of hazardous waste, then the generator could still comply with the SQG regulations because the resulting mixture would no longer be considered a hazardous waste (although it would still be subject to applicable land disposal restriction requirements in 40 CFR part 268).

EPA is also proposing to add a provision for LQGs that states that mixtures of hazardous waste with non-hazardous waste are subject to the mixture rule in § 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i).

In modifying the language, the Agency is not changing the existing hazardous waste regulations, but is improving the readability of the

regulatory text. Thus, this change does not impose any additional burden on SQGs and LQGs.

Effect of the Proposed Reorganization:

This section is affected by the proposed reorganization. EPA is proposing to address the mixing regulations for SQGs at § 262.16(c) and the mixing regulations for LQGs at § 262.17(f). The reorganization is discussed in section XIII of this preamble.

3. Request for Comment

The Agency requests comment on whether the proposed language for CESQGs and SQGs improves the understanding of the regulations regarding how mixtures of non-hazardous waste and hazardous waste would affect the generator category for CESQGs and SQGs. Additionally, EPA requests comment on whether the proposed language for LQGs assists LQGs in more easily finding the applicable mixture regulations.

C. Allowing CESQGs To Send Hazardous Waste to LQGs Under the Control of the Same Person

EPA is proposing to allow CESQGs to send their hazardous waste to an LQG that is under the control of the same person, as defined at § 260.10, provided both the CESQG and LQG comply with specified conditions.

EPA is also proposing to rename “CESQG” to “VSQG” (very small quantity generator) (see section VIII.A.1 of the preamble for more information). However, for this discussion, we continue to use CESQG as this term is most familiar to the regulated community.

1. Purpose

Under the existing regulations at § 261.5(f)(3) for acute hazardous waste, and § 261.5(g)(3) for non-acute hazardous waste, a CESQG may either treat or dispose of its hazardous waste on site or ensure delivery to an off-site treatment, storage, or disposal facility, which can include RCRA-permitted hazardous waste facilities, interim status hazardous waste facilities, municipal solid waste facilities, non-municipal non-hazardous waste facilities, recycling facilities, and universal waste handlers. The existing CESQG regulations do not allow a generator to send its hazardous waste off site to another generator, unless the receiving generator has a storage permit or is otherwise one of the types of facilities cited above. Thus, persons looking to reduce their overall environmental liability across multiple sites are prohibited from managing their CESQG hazardous waste at one or more of their LQG sites without first obtaining a permit or complying with the interim status standards, both of which would increase regulatory burden and costs.

EPA believes that allowing CESQGs to send their hazardous waste to an LQG that is under the control of the same person would provide an additional option for CESQGs to manage their hazardous waste. It may also improve the management of that hazardous waste for four main reasons.

First, LQGs are subject to more stringent management conditions, such as accumulation time, labeling, training, emergency planning, and containment standards, as compared to CESQGs. In addition, LQGs may only transport hazardous waste to a RCRA-permitted or interim status hazardous waste TSDF, which in turn, is subject to more stringent management standards than the municipal or non-municipal solid waste facilities that CESQGs are allowed to use. Therefore, allowing hazardous waste generated by a CESQG to be sent to an LQG under the control of the same person could improve overall oversight and management of the hazardous waste and enable more effective environmental protection. Furthermore, a company, because of economies of scale, may reduce its overall waste management costs, as well as its potential financial liabilities for hazardous waste it generates at CESQG facilities, as it would be handled under the more comprehensive LQG and TSDF regulatory programs.

Second, whereas LQGs have up to 90 days to accumulate hazardous waste in compliance with all the LQG conditions for exemption without having to obtain a RCRA storage permit or comply with all the other standards otherwise applicable, CESQGs may accumulate up to 1,000 kilograms of non-acute hazardous waste or up to 1 kilogram of acute hazardous waste or up to 100 kilograms of residues from the cleanup of a spill of acute hazardous waste without any time constraint. Even though the amount of hazardous waste allowed on site by CESQGs at any one time is limited, the longer that hazardous waste is accumulated on site the greater the risk of adverse impacts to human health and the environment. Allowing CESQGs to send their hazardous waste to an LQG under the control of the same person may reduce the overall time that the CESQG accumulates hazardous waste on site, which would further reduce the potential risk to human health and the environment.

Third, this proposed change would allow consolidation by an LQG of hazardous waste generated by several CESQGs under its control, which increases the potential opportunities for hazardous waste recycling by the LQG.

Fourth, this proposed change would give companies flexibility in allocating labor and resources required to manage the company's total quantity of hazardous waste generated, as the company would be allowed to consolidate its hazardous waste from CESQG facilities at its LQG sites.

EPA has received requests over the years from industry for the regulations to allow CESQGs to send their hazardous waste to LQGs for consolidation. EPA believes that such a change in the regulations would enable generators to employ greater control over the management of their hazardous waste, thereby resulting in improved efficiency and reduced liability for the generator. EPA believes numerous situations exist where CESQGs and LQGs under the same ownership could take advantage of this proposed change. For example, Army National Guard and Reserve units that may be CESQGs would have the opportunity to send their hazardous waste to an active Army base that is an LQG. The same situation applies to Air Force, Navy, and Marine Corps reserve units as well. Additionally, many universities have engineering, medical, and science laboratories located on campus, with each laboratory building possibly qualifying as a CESQG. Allowing different laboratory buildings within a university or industrial environment that are CESQGs to send their hazardous waste to another university or industrial entity that is an LQG would provide both economic and environmental benefits. Furthermore, utilities, retailers, and remote oil and gas production facilities also represent examples of industrial sectors that may realize benefits from the intra-company transfer of hazardous waste from CESQGs to LQGs.

2. Scope

As discussed above, EPA is proposing to amend the regulations under the existing regulatory framework at § 261.5(f)(3) and (g)(3) to allow CESQGs to send hazardous waste to an LQG under the control of the same person.

“Person” is defined in § 260.10 to mean an individual, trust, firm, joint stock company, federal agency, corporation (including a government corporation), partnership, association, state, municipality, commission, political subdivision of a state or any interstate

body. For the purposes of this section, “control” would mean the power to direct the policies of the facility, whether by the ownership of stock, voting rights, or otherwise, except that contractors who operate facilities on behalf of a different person shall not be deemed to “control” such facilities.

EPA is proposing to reorganize the regulations for CESQGs by moving provisions from § 261.5 to § 262.14. The proposed revision to allow CESQGs to send hazardous waste to LQGs under control of the same person can be found at § 262.14(b)(3)(viii).

The Agency believes limiting transfers to facilities under control of the same person is appropriate because it ensures common control is maintained over both facilities and takes advantage of strong incentives to ensure the hazardous waste is safely managed. Additionally, if a CESQG sends hazardous waste to an LQG under the control of the same person, the LQG is likely to be familiar with the type of hazardous waste generated by the CESQG. Furthermore, questions regarding liability and responsibility for such hazardous waste are likely to be clearer than is the case with facilities from unrelated companies.

EPA is also proposing some labeling and marking standards for CESQG waste being transferred to LQGs under the control of the same person under this provision. Note that aside from these two conditions, the same standards for management of CESQG waste apply to materials going to an LQG under this provision as to other CESQG waste, including the exemption from the requirement to ship using a hazardous waste manifest. DOT shipping requirements do still apply.

3. Conditions for Exemption

Condition for Exemption for CESQGs

As part of this provision, CESQGs would be required to meet the following conditions for exemption, proposed at § 262.14(a)(viii).

Under control of the same person.

As described above, the CESQG and the LQG would have to be under control of the same person, according to the existing definitions in § 260.10.

Labeling and marking of containers.

The Agency is proposing that a CESQG transferring waste to an LQG under the control of the same person label its containers with (1) the words “Very small quantity generator hazardous waste”; (2) other words that identify the contents of the containers (

e.g.,

the name of the chemical(s), such as “acetone” or “methylene dichloride” or the type or class of chemical, such as “organic solvents” or “halogenated organic solvents” or, as applicable, the proper shipping name and technical name markings used to comply with Department of Transportation (DOT) requirements at 49 CFR part 172 subpart D); (3) an indication of the hazards of the contents of the container, such as the applicable hazardous waste characteristic(s) (

i.e.,

ignitable, corrosive, reactive, toxic); a hazard class label consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling); a label consistent with the Occupational Safety and Health Administration (OSHA) Hazard Communication Standard at 29 CFR 1920.1200; a chemical hazard label consistent with the National Fire Protection Association (NFPA) code 704; a hazard pictogram consistent with the United Nations' Globally Harmonized System (GHS); or any other marking and labeling commonly used nationwide in commerce that would alert workers and emergency responders to the nature of the hazards associated with the contents of the containers; and (4) the applicable EPA hazardous waste number(s) (EPA hazardous waste code) in subparts C and D of part 261 to assist the receiving LQG in managing the hazardous waste received. This condition is also consistent with the changes proposed for labeling and marking of containers in the revisions to 40 CFR parts 262, 263, and 268 discussed in various sections elsewhere in this preamble. A generator subject to DOT shipper/carrier packaging requirements should be familiar with and aware of the marking requirements at 49 CFR 172.301 and 49 CFR 172.304, as well as prohibited labeling and label visibility requirements at 49 CFR 172.401 and 172.406, respectively.

Because the hazardous waste generated and accumulated by a CESQG will be subsequently sent off site to an LQG under the same company in compliance with DOT hazardous material regulations, the CESQG may choose to use an appropriate DOT proper shipping name found in the 49 CFR 172.101 hazardous materials table to identify the contents of the container while hazardous waste is accumulating on site. That way, the generator will fulfill EPA and DOT requirements simultaneously; however, EPA is not proposing to require the use of the DOT shipping names while the hazardous waste is accumulating on site. We only suggest that the DOT shipping name may be one way that some generators may choose to identify the contents of the container.

EPA believes use of the DOT marking requirement should be sufficient in many situations involving DOT Class 9 hazardous materials that are also hazardous waste, with the DOT shipping name ending in N.O.S. (not otherwise specified). As noted at 49 CFR 172.301(b), generators using a DOT shipping name ending in N.O.S. must also provide the technical name of the hazardous material in association with the proper shipping name. However, the Agency is requesting comment on examples of when the DOT shipping name would not meet EPA's intent of “identifying the contents of the container” and suggestions for addressing this situation.

EPA believes that CESQGs should label and mark containers of hazardous waste sent to LQGs in order to communicate the contents of the containers to facility personnel that can then safely manage the hazardous waste in compliance with the LQG regulations. Since CESQGs already must make a hazardous waste determination to determine if and what types of hazardous waste they generate, the Agency does not believe this condition will pose an undue burden. In fact, if the CESQG was not required to provide this information, the burden to the LQG receiving the hazardous waste may increase because the LQG would then have to do so.

Conditions for Exemption for LQGs

EPA is proposing that LQGs receiving hazardous waste from CESQGs under the control of the same person comply with the following conditions for exemption, all proposed at § 262.17(g).

a. Notification.

EPA is proposing that LQGs receiving hazardous waste from CESQGs under the control of the same person submit a notification to EPA or their authorized state using EPA form 8700-12 (

i.e.,

the Site Identification (Site ID) form) 30 days prior to receiving the first shipment of hazardous waste from the CESQG. LQGs would be required to identify in the Comments section of the Site ID form the name(s), site address(es), and contact information for the CESQG(s) that will be transferring hazardous waste to the LQG. LQGs would also be required to submit an updated Site ID form within 30 days should the name, site address, or contact information for the CESQG change.

Notification in this instance serves to inform the regulatory authorities of which LQGs are receiving hazardous waste from which CESQGs under control of the same person. The Agency believes notification is necessary in order to communicate to inspectors the origin of the hazardous waste received by the LQG and to ensure that the received shipment is managed in compliance with the conditions of the provision. EPA also believes that notification by the LQG, rather than notification by the CESQG, is more efficient and less burdensome, because LQGs are already required to submit

Site ID forms as part of obtaining a RCRA Identification Number and as part of the biennial reporting process. Additionally, it is more efficient for one LQG to notify on behalf of many CESQGs.

EPA has recently made available an electronic interface for states and the regulated community to use to submit Site ID forms electronically, which will further reduce burden on LQGs. Facilities should check with their states regarding whether their state will use EPA's electronic submittal process.

b. Recordkeeping.

LQGs would be required to maintain records for three years from the date the hazardous waste was received from the CESQG with the following information:

• The name, site address, and contact information for each CESQG; and

• A description of each waste shipment received from the CESQG, including the quantity, EPA hazardous waste number(s) of each waste received, and the date the hazardous waste was received.

EPA believes recordkeeping is necessary to ensure the requirement that the CESQG and LQG are under control of the same person is met, as well as to ensure that the hazardous waste from the CESQG is managed according to the other conditions for exemption of this provision, such as that LQGs are receiving shipments of hazardous waste from CESQGs in quantities commensurate with the CESQG's generator category. EPA believes this recordkeeping condition could be fulfilled through routine business records, such as a bill of lading, and would not present undue burden to the LQG. Additionally, the LQG could use this information in order to report the hazardous waste from the CESQG on its biennial report forms.

c. Labeling and marking of containers.

The Agency is proposing that LQGs comply with the labeling and marking conditions for exemption under proposed § 262.17(a)(5), including the date accumulation started (

i.e.,

the date the hazardous waste was received from the CESQG). (Note: These are the same proposed standards that CESQGs must comply with in labeling and marking containers that they send to LQGs, as discussed above.) If the LQG is consolidating incoming hazardous waste from a CESQG with either its own hazardous waste or with hazardous waste from another CESQG, the LQG would be required to mark each container with the earliest date any hazardous waste in the container was accumulated on site.

Because the LQG must manage the hazardous waste it receives from CESQGs according to the LQG regulations, EPA believes that the same labeling and marking regulations should apply to hazardous waste from a CESQG that is accumulated and managed by an LQG. EPA believes that it is important that employees, transporters, downstream handlers, emergency personnel, EPA, and the states know as much as possible about the potential hazards of the contents in containers that LQGs accumulate, transport, and manage.

d. Waste management.

Under this proposal, an LQG would be required to manage all incoming hazardous waste from a CESQG in compliance with the regulations applicable to its LQG generator category. In other words, there would be no difference in how the hazardous waste from a CESQG was managed relative to the management of the LQG's own hazardous waste, although hazardous waste from a CESQG would not be eligible for management under the satellite accumulation regulations (proposed § 262.15).

4. Biennial Reporting

An LQG would also be required to report the hazardous waste it receives from CESQGs on its biennial report, as required under § 262.41. EPA plans to include a new source code in the biennial report instructions (if this provision is made final) that LQGs would use to identify the hazardous waste as being received from a CESQG (to differentiate from hazardous waste the LQG generates on site). Generators would be required to report hazardous waste they receive from CESQGs by type of hazardous waste. In other words, if an LQG receives the same type of hazardous waste from multiple CESQGs, it would only need to report the total quantity of that hazardous waste received from all CESQGs. This provision is consistent with the existing provision that LQGs must report information on the quantities and types of hazardous waste they generate as part of the biennial reporting process. It will also enable states and EPA to better understand the additional volumes and types of hazardous wastes managed at an LQG, which will assist in prioritizing compliance assistance.

5. No Maximum Limit of Hazardous Waste LQGs Receive From CESQGs

Because LQGs currently have no maximum limit on the amount of hazardous waste they can accumulate, and because the regulations that are applicable to LQGs are protective, the Agency believes there is no need to establish a maximum limit on the amount or types of hazardous waste that an LQG could receive from CESQGs. In fact, we believe the more hazardous waste that is shipped to LQGs, the greater potential for reduced risk, since these hazardous wastes would be managed under the more comprehensive hazardous waste regulations, as opposed to potentially being sent to non-hazardous waste disposal facilities.

6. Enforcement

EPA believes the proposed conditions to allow CESQGs to send their hazardous waste to an LQG under the control of the same person are necessary to ensure protection of human health and the environment. Failure to meet one or more of the conditions could lead to potential mismanagement of the hazardous waste, potentially resulting in a release of hazardous waste or hazardous waste constituents to the environment. Persons taking advantage of the proposed provision that fail to meet one or more of the conditions for exemption would be subject to an enforcement action under RCRA section 3008 for violations of applicable independent requirements in part 264, 265, 267, 268, and 270. EPA and authorized states would also have the authority to cease certain transfers of hazardous waste from CESQGs to an LQG in the context of an enforcement action. EPA also notes that failure on the part of the LQG to meet one of the conditions for exemption would not mean that the CESQG is subject to permitting or other standards in 264, 265, and 270, provided that the CESQG met its conditions for exemption and vice versa.

7. Interstate Shipments

Under RCRA, authorized state programs may be more stringent than the federal program and thus states may choose not to adopt the proposed provision allowing CESQGs to send their hazardous waste to an LQG under the control of the same person. In the case of interstate shipments where a CESQG wants to transfer its waste to an LQG located in a different state than the CESQG, the CESQG must ensure that both states have adopted the provision in order to ship the hazardous waste to an LQG. Additionally, if a CESQG wants to transfer its waste through states that have not adopted the proposed provision, these transit states may also impose state requirements on the shipment while it is being transported through the state. Therefore, EPA recommends that generators contact any states through which the hazardous

waste will be shipped to ascertain their policy about such shipments.

8. Request for Comment

EPA requests comment regarding its proposal to allow CESQGs to ship their hazardous waste to an LQG under the control of the same person.

EPA is also requesting comment on whether to establish a process that would allow an entity (whether CESQG or LQG) to request approval from its EPA Regional Administrator or the authorized state to transfer hazardous waste from CESQGs to LQGs that are not under the control of the same person. For example, such inter-company transfers could occur between high school laboratories and university laboratories or other waste management companies, such as those assisting with school chemical clean-outs. While the Agency believes that this should not be allowed as a general matter, we also recognize that there may be instances where such an arrangement may be appropriate, and thus, are taking comment on allowing such arrangements on a case-by-case basis. EPA is interested in whether such inter-company transfers would produce the same benefits as for intra-company transfers in enabling greater control over the management of CESQG hazardous waste, thereby resulting in improved efficiency and reduced liability for the generator.

The request for approval submitted to the state or Regional office would have to include the name, address, and contact information for each entity involved in the arrangement, how the entities will assign responsibility for the safe management of the hazardous waste during transport to and accumulation by the LQG, as well as a description of the actual practices that will be followed by the CESQG and LQG to ensure the safe management of the hazardous waste. EPA does not believe that these requests for approval would need publication in the

Federal Register

and, instead, would either be approved or denied by the EPA Regional Administrator or the authorized state. If a request is granted by the EPA Regional Administrator or the authorized state, the CESQG(s) and LQG would need to comply with the conditions discussed above for those CESQGs and LQGs that are “under control” of the same person. In addition, the LQG would need to keep a copy of the request for approval, as well as EPA's or the state's approval for as long as the CESQG sends their hazardous waste to the LQG.

EPA is requesting comment on an additional variation for allowing LQGs to consolidate CESQG hazardous waste when the generators are not under the control of the same person with a self-implementing request for approval. Under this variation, the implementing agency would have sixty days from the date the request was sent to approve or deny it. After sixty days, the generator may start consolidating regardless of whether it has heard back from the implementing agency. This option provides the state or Regional office the ability to deny requests that pose a risk to human health or the environment or that come from entities that have a history of not managing waste responsibly, but puts a limit on how long a generator must wait for a response to its request for approval.

Effect of the Proposed Reorganization:

This section is affected by the proposed reorganization. The reorganization of the generator regulations would move the conditions for CESQGs from § 261.5 to § 262.14 and the conditions for LQGs from § 262.34 to § 262.17. The reorganization is discussed in section XIII of this preamble.

D. Requiring Biennial Reporting for Owners or Operators of Facilities That Recycle Hazardous Waste Without Storing It (40 CFR 261.6(c)(2))

EPA is proposing to modify 40 CFR 261.6(c)(2) to require owners or operators of facilities that recycle hazardous waste without storing it prior to recycling to comply with the biennial reporting requirements at 40 CFR 265.75. Because these entities receive hazardous waste using a hazardous waste transporter and hazardous waste manifest, similar to a permitted TSDF or a facility with interim status, the Agency is proposing to amend its regulations and instructions to specify that such facilities must complete and submit a biennial report to EPA. Without this information, the Agency and states may have an incomplete picture of which facilities recycle hazardous waste and the quantities of regulated hazardous wastes that are recycled, impeding their ability to provide adequate oversight for those facilities.

The Agency believes that only a few recycling facilities will be affected by this change. Additionally, considering that most facilities already have sophisticated information systems to manage and track incoming shipments of hazardous waste, we believe the burden imposed on such facilities should be minimal.

The Agency requests comment on this proposed change. Additionally, the EPA is interested in information regarding whether these facilities already routinely submit biennial reports or are required by the states to submit biennial reports.

Effect of the Proposed Reorganization:

This section is not affected by the proposed reorganization.

VIII. Proposed Revisions to 40 CFR Part 262—Standards Applicable to Generators of Hazardous Waste

A. Proposed Addition of Terms Used in This Part and Changes to Purpose, Scope, and Applicability (40 CFR 262.1 and 262.10)

As previously discussed, one of the objectives of this proposal is to revise the hazardous waste generator regulations to make them more user-friendly and easily understood by both the regulated community and federal and state regulators. Currently, the hazardous waste generator regulations are located primarily in three different parts of the CFR (40 CFR parts 261, 262, and 265). In some cases, it is difficult to determine what components of the regulations apply to different categories of hazardous waste generators.

The proposed reorganization will address many of these problems by moving the regulations at § 261.5 and some of the technical standards of part 265 into part 262 and by organizing the regulations based on a generator's category so generators can more easily determine which regulations they are subject to. That is, EPA is proposing that § 262.14 contain conditions for exemption for conditionally exempt small quantity generators, that § 262.15 contain conditions for exemption for satellite accumulation areas, that § 262.16 contain conditions for exemption for small quantity generators, and that § 262.17 containing conditions for exemption for large quantity generators.

In concert with the reorganization of the generator conditions for exemption, EPA is proposing to add some regulatory language to more clearly explain how the regulations work for generators and to lay out which provisions the various categories of generators are responsible for complying with. The proposed addition of § 262.1 and the proposed revisions to § 262.10 are meant to achieve these goals.

1. Proposed Addition of 40 CFR 262.1

One concern regarding the current generator regulations is that they are not sufficiently clear about the distinction between the two types of generator requirements: Those that a generator must meet because it is an entity that generates hazardous waste—independent requirements—and those that a generator must meet only if it

wants the benefits of an exemption from RCRA permitting—conditions for exemption. In order to make the regulations clearer regarding this distinction, EPA is proposing to include definitions for these terms in a new section of the regulations at § 262.1.

The difference between independent requirements and conditions for exemption, as discussed previously in this preamble, lies in the nature of each, and in the consequences that result when each is not met. An independent requirement is an unqualified or unconditional requirement imposed without reference or regard to obtaining an optional exemption from regulation. That is, independent requirements must be met whether or not the generator accumulates hazardous waste. An independent requirement is applicable and enforceable, independent of whether the generator is attempting to obtain an exemption.

A condition for exemption, on the other hand, is a requirement that is contingent in nature, in that it is only necessary to meet in order to obtain an optional exemption from other requirements. As an example, the regulations in § 262.34(a) introduce the conditions of the LQG exemption by stating that the LQG may accumulate hazardous waste on site for 90 days or less without a permit or without having interim status, provided that it meets the conditions listed in that paragraph.

This distinction is relevant because while an entity can “violate” and be penalized for violating an independent requirement, an entity cannot be penalized for not complying with a condition for an optional exemption. Instead, if the entity does not comply with the conditions of the exemption, that exemption no longer applies and the entity becomes subject to full regulation. Violation of an independent requirement, such as an SQG failing to obtain an EPA identification number, can result in a notice of violation and enforcement action for that particular provision. Noncompliance with a condition for exemption, such as an LQG accumulating hazardous waste for more than 90 days, however, can result in an entity losing its conditional status and becoming the operator of a non-exempt storage facility subject to the applicable requirements for storage facilities in parts 124, 264, 265, 267, 268 and 270, and for generators in part 262.

EPA is proposing to define an “independent requirement” as a requirement of any of part 262 that states an event, action, or standard that must occur or be met and that applies without relation to, or irrespective of, the purpose of obtaining a conditional exemption from a permit or having interim status under § 262.14, 262.15, 262.16, or 262.17.

EPA is proposing to define a “condition for exemption” as any requirement in § 262.14, 262.15, 262.16, or 262.17, that states an event, action, or standard that must occur or be met in order to obtain a conditional exemption from any requirement in parts 124, 262 through 268, or 270, or from any requirement for notification under section 3010 of RCRA.

We will be using these terms throughout this preamble to distinguish between these two types of provisions for generators.

EPA is requesting comment on this proposed change to the regulations, particularly whether it clarifies implementation of the generator regulations by industry and the regulating entities.

Effect of the Proposed Reorganization:

This section is not affected by the proposed reorganization.

2. Proposed Changes to 40 CFR 262.10(a)

As part of the reorganization of the generator regulations, § 262.10(a), which addresses the purpose, scope, and applicability of the hazardous waste generator regulations, will list which generator provisions are independent requirements and which are conditions for a generator exemption from part 124, from the applicable standards of parts 264 through 268, from the permitting requirements of part 270, and from section 3010 of RCRA.

Specifically, EPA is proposing two changes to § 262.10(a): (1) Stating that a hazardous waste generator is subject to all the applicable independent requirements of part 262 and listing those independent requirements and (2) stating that a generator that accumulates hazardous waste on site is also considered to be a facility storing hazardous waste unless it meets the conditions for one of the generator exemptions in § 262.14, 262.15, 262.16, or 262.17.

Independent requirements.

As stated above, under the RCRA hazardous waste program, certain regulations are independent requirements and certain regulations are conditions for exemption from RCRA permitting and the interim status standards.

To be clear about the distinctions between these types of standards, EPA is proposing to state at § 262.10(a)(1) that a person who generates a hazardous waste as defined by 40 CFR part 261 is subject to all the applicable independent requirements in the subparts and sections listed, unless the person is a conditionally exempt small quantity generator (or “very small quantity generator,” in the terminology of the proposed rule) that meets the conditions for exemption in § 262.14. This new addition will reinforce to generators that they must meet these independent requirements whether or not they accumulate hazardous waste on site.

b. Conditional exemption for CESQG, SQG, and LQG.

The RCRA hazardous waste generator regulations provide generators that accumulate hazardous waste on site with exemptions from the hazardous waste permitting standards and compliance with interim status standards in 40 CFR parts 264 and 265, provided certain conditions are met.

Therefore, EPA is proposing to state at § 262.10(a)(2) that a generator that accumulates hazardous waste on site is also considered a facility that stores hazardous waste, unless it is excluded because it meets the conditions of being a generator. The paragraph then lists the generator categories and where to find the relevant conditions for each, in § 262.14, 262.16, or 262.17.

These proposed changes to § 262.10 do not constitute substantive changes to the hazardous waste generator regulations. Rather, these changes simply reorganize the independent requirements and conditions for exemption applicable to all hazardous waste generators based on their generator category into one section of the regulations. EPA also believes these changes will reduce confusion for the regulated community in the context of enforcement actions. It has been the Agency's longstanding position that generators that do not comply with a condition of a generator exemption fail to qualify for the exemption and, if they have not qualified for any other exemption, they would be considered an operating TSDF without a permit and/or in violation of the storage facility operating standards in parts 264 or 265. The Agency believes this proposed reorganization will improve the use of and compliance with the regulations.

EPA is requesting comment on these proposed changes.

Effect of the Proposed Reorganization:

This section is affected by the proposed reorganization. The reorganization is discussed in section XIII of this preamble.

3. Proposed Deletion of § 262.10(c)

Section 262.10(c) of the hazardous waste regulations is a provision that describes the requirements for a generator who treats, stores, or disposes of hazardous waste on-site and includes

a list of provisions these generators must comply with. EPA believes that this provision in the regulation is outdated and confusing and can be removed. EPA is proposing to delete and reserve this paragraph.

When § 262.10(c) was initially promulgated on February 26, 1980, the hazardous waste generator regulations distinguished between the generators that sent hazardous waste to be managed off site and those that managed their hazardous waste on site. Generators that sent hazardous waste off site could manage it for 90 days in an accumulation area, but generators that managed hazardous waste on site were expected to manage it under their permits or under interim status regulations. The purpose of § 262.10(c) was to provide the list of requirements that generators managing hazardous waste were required to follow in addition to those permits or interim status requirements.

This distinction meant that the two types of generators had very different standards for the areas where newly generated hazardous waste was managed. Significantly, generators sending hazardous waste off site could easily make physical changes to their accumulation areas, whereas a similar generator managing hazardous waste on site under a permit had to go through the permit modification process to make the same kind of changes. EPA effectively eliminated the distinctions by revising these regulations (45 FR 76624, November 19, 1980 and 47 FR 1248, January 11, 1982). The final rule promulgated in January 11, 1982, made a change to § 262.10(c) that added the generator accumulation provisions at § 262.34 to the list of things a generator who treats, stores, or disposes of hazardous waste on site must comply with. Currently, the Agency does not make this distinction between generators that send waste for treatment off site and those that manage waste on site. This revision is therefore outdated and not well understood and can be deleted and reserved without disruption to the generator hazardous waste regulations.

EPA seeks comment on whether anyone is using this provision or has objection to its removal and what the reasoning for that objection is.

Effect of the Proposed Reorganization:

This proposed deletion is not affected by the proposed reorganization.

4. Generators Are Subject To Enforcement of Applicable Requirements and Penalties Under Section 3008 of RCRA if They Fail To Meet the Independent Requirements Made Applicable by the Failure To Obtain a Conditional Exemption

(40 CFR 262.10(g))

The existing regulation at § 262.10(g) states that a generator is subject to the compliance requirements and penalties prescribed in section 3008 of [RCRA] if it does not comply with the requirements of that part. However, this paragraph does not expressly state that a generator that is not meeting the conditions of its exemption—and is, therefore, an illegal TSDF—is liable under section 3008 of RCRA for failing to meet the requirements for TSDFs in parts 124, 264 through 268, and 270.

Therefore, EPA is proposing to revise § 262.10(g) to state that a generator is subject to enforcement of the applicable requirements and penalties under section 3008 of RCRA if it fails to meet its applicable independent requirements under part 262: § 262.11 (Hazardous waste determinations and recordkeeping), § 262.12 (Obtaining an EPA identification number), part 262 subpart B (Manifest), §§ 262.30 through 260.33 (Pre-transport) and part 262 subpart D (Recordkeeping and reporting). The new language would further explain that a generator is subject to enforcement of the applicable requirements and penalties under section 3008 of RCRA if it fails to meet the applicable requirements of parts 124, 263 through 268, and 270, including such requirements made applicable when such person is not meeting the conditions of the generator exemption.

EPA is requesting comment on these proposed changes.

Effect of the Proposed Reorganization:

This section is not affected by the proposed reorganization.

5. Proposed Deletion of Laboratory XL Project Regulations (40 CFR 262.10(j) and Part 262 Subpart J)

The Laboratory XL Project was created for Boston College, the University of Massachusetts, and the University of Vermont, and was finalized in the

Federal Register

on September 28, 1999 (64 FR 53292). Originally, the program was to expire on September 30, 2003. But on June 21, 2006, EPA extended the program and the new expiration date was changed to April 15, 2009 (71 FR 35550). Since the program has now expired, EPA is proposing to remove paragraph (j) from § 262.10, as well as part 262 subpart J.

EPA is requesting comment on this proposed change.

Effect of the Proposed Reorganization:

This section is not affected by the proposed reorganization.

6. Generators Shall Not Transport to a Non-Designated Facility

The Agency is proposing to add a new provision at § 262.10(a)(3) that would clearly and succinctly state that a generator cannot offer or otherwise cause its waste to be sent to a facility that is not authorized to accept it.

As the Agency has stated numerous times in the development and implementation of the RCRA hazardous waste program, a fundamental aspect of the program is the responsibility placed on the generator of hazardous waste to ensure its hazardous waste is properly managed from cradle to grave. Numerous existing regulatory provisions are designed to ensure that generators send their hazardous waste only to authorized TSDFs or other authorized facilities. See for example, §§ 262.12(c), 262.20(b), 262.40(a). However, from experience with the program, the Agency has found situations where a generator failed to send its hazardous waste to a facility authorized to receive that waste, thus creating both regulatory and potential hazardous waste mismanagement problems. The Agency believes this provision is necessary to ensure generators understand they have this obligation and, for that reason, is placing it in the initial provisions of the generator regulations.

This provision is being added to the regulatory framework and not replacing §§ 262.12(c), 262.20(b), 262.40(a), as those provisions are aimed at other aspects of the generator program (for example, ensuring manifests are properly completed).

The Agency requests comment on adding this new provision.

B. Waste Determinations (40 CFR 262.11)

EPA is proposing to revise the hazardous waste determination regulations at § 262.11 in order to provide a more complete explanation of the regulation and improve compliance by hazardous waste generators. The proposed changes are intended to provide more information about when a waste determination must be made, as well as to better explain the methods and procedures for generators to determine whether they have a listed hazardous waste or a characteristic waste. The proposed changes also address some deficiencies in the current recordkeeping regulations.

Specifically, the proposed changes discussed in this section are the following: (1) Confirming that a generator's waste must be classified at its point of generation and, for wastes potentially exhibiting a hazardous characteristic, at any time during the course of its management when the properties of the wastes may change; (2) revising the language on making a determination for a listed hazardous waste in § 262.11 to explain more fully how generators can make this kind of determination, including use of acceptable kinds of generator knowledge; (3) explaining more completely in the regulations in § 262.11 how a generator should evaluate its waste for hazardous characteristics; (4) moving the independent recordkeeping and retention requirements for hazardous waste determinations currently found at § 262.40(c) into § 262.11 to integrate this provision more directly into the hazardous waste determination regulations; (5) revising the hazardous waste determination recordkeeping regulations to require that SQGs and LQGs maintain records of any test results, waste analyses, or other determinations made in accordance with § 262.11 for at least three years, including waste determinations where a solid waste (as defined in § 261.2) is found not to be a RCRA hazardous waste (as defined in § 261.3); (6) revising the hazardous waste determination regulations by copying § 262.40(d) into § 262.11 to address situations where an enforcement action has been initiated and the period of record retention (

e.g.,

three years from when the record was generated) must be extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the Administrator; and (7) making clear at the very beginning of § 262.11 that the hazardous waste determination must be accurate.

In addition, EPA is asking for comment in this section on two additional potential changes regarding the accuracy of hazardous waste determinations and the length of time records must be maintained.

Finally, EPA discusses the potential development of an electronic decision making tool for hazardous waste determinations and takes comment on whether that would be a helpful tool to generators.

The revisions proposed at § 262.11 are designed to improve compliance by generators in making a hazardous waste determination for their solid wastes. To a great extent, the success of the RCRA hazardous waste regulatory program begins with and relies on generators making this determination. Failure to make an accurate hazardous waste determination may lead to mismanagement of the waste, with potential adverse consequences to human health and the environment. As described below, generators may have a difficult time making an accurate hazardous waste determination for a variety of reasons.

Many of the proposed changes at § 262.11 derive from policy statements and clarifications the Agency has made through the years in FR notices, guidance documents, and policy letters to help explain how hazardous waste determinations should be made. The proposed changes also derive from issues identified in EPA's 30 years of experience implementing the RCRA hazardous waste program.

1. Background

The regulations at § 262.11 require generators of solid waste (as defined at § 261.2) to determine whether their waste is also a hazardous waste. Under RCRA, a solid waste may be hazardous if it is either listed as hazardous or exhibits a hazardous waste characteristic. Listed hazardous wastes are wastes that the Agency has specifically evaluated and determined may present a risk to human health and the environment, if improperly managed. Such wastes can be generated by specific processes of particular industries or by many different types of industry (

e.g.,

spent degreasing solvents) or hazardous commercial chemical products being discarded as surplus, off specification, or for another reason. Wastes that exhibit any of the four hazardous characteristics (ignitability, corrosivity, reactivity, toxicity) are also classified as hazardous. Hazardous wastes are subject to a number of handling and disposal requirements intended to prevent them from damaging human health or the environment.

Once a generator has determined from § 261.2 that it has generated a solid waste, the regulations at § 262.11 currently provide the following method for a generator to determine if a waste is a hazardous waste:

(1) It should first determine if the waste is excluded from regulation under the exclusions found in 40 CFR 261.4.

(2) It must then determine if the waste is listed as a hazardous waste in subpart D of 40 CFR part 261. Note that even if the waste is listed, the generator still has an opportunity under 40 CFR 260.22 to demonstrate to the Administrator that the waste from his particular facility or operation is not a hazardous waste.

(3) For purposes of compliance with the land disposal restrictions in 40 CFR part 268, or if the waste is not listed in subpart D of 40 CFR part 261, the generator must then determine whether the waste is identified in subpart C of 40 CFR part 261 by either:

(A) Testing the waste according to the methods set forth in subpart C of 40 CFR part 261, or according to an equivalent method approved by the Administrator under 40 CFR 260.21; or

(B) Applying knowledge of the hazard characteristic of the waste in light of the materials or the processes used.

(4) Finally, if the waste is determined to be hazardous, the regulations state that the generator must refer to parts 261, 264, 265, 266, 267, 268, and 273 of this chapter for possible exclusions or restrictions pertaining to management of the specific waste.

A generator's responsibility begins with applying due diligence through knowledge of its processes, feedstocks, and wastes generated, and/or testing to make an accurate hazardous waste determination for the solid waste it has generated (see § 261.2). The Agency considers the application of the above information (

e.g.,

knowledge of the production processes, feedstocks, and wastes generated and/or information from testing) to be acceptable types of generator knowledge. Failure to consider any relevant types of knowledge could be viewed critically if a situation arose in which a particular generator's waste determination came under scrutiny. Once a determination has been made that a generator's solid waste is a hazardous waste, then the generator can initiate the process of quantifying the total amount of hazardous waste generated in a calendar month to determine its generator category, and from that, determine the regulations with which it must comply. If an incorrect hazardous waste determination is made (

i.e.,

a hazardous waste is identified as non-hazardous), there is a strong possibility that the waste will not be managed appropriately, potentially leading to environmental releases and damage.

From experience with the waste determination program, the Agency has found that there are a number of situations in which generators may misclassify their wastes. In some cases, generators overlook certain wastes that are unrelated to their production processes, discarding them in the trash without realizing that they have discarded a hazardous waste. In other cases, generators may not understand how the hazardous waste characteristics or listings regulations may apply to the waste. There are also instances in which

generators have not even known that RCRA and its regulations apply to their wastes.

States have also identified difficulties generators have in making hazardous waste determinations as a concern. A study conducted by the State of New Hampshire found that generators often overlooked hazardous wastes they had generated apart from their main production operations, for example, solvent-contaminated wipes and aerosol cans.

39 40

A final rule for solvent-contaminated wipes was published in the

Federal Register

on July 31, 2013. This rule provides an exclusion from the definition of solid waste for solvent-contaminated wipes that are recycled and an exemption from the definition of hazardous waste for discarded wipes provided specific conditions are met (78 FR 46447).

Summary of Waste Determination Meetings with VT and NH State Officials on September 27-28, 2010.

The Georgia Department of Natural Resources (GADNR) has also highlighted this problem in one of its publications, stating “Many solid waste streams at facilities tend to be overlooked as hazardous wastes because the solid waste usually does not resemble what one would think a hazardous waste looks like [

i.e.,

wastes that are not a liquid chemical waste (rags, absorbents, or filters); or wastes that are not directly generated in manufacturing process (universal wastes, computers, electronics, or sludge in drains or sumps); wastes that are newly regulated (electronics); or wastes that are similar to household hazardous wastes (mercury thermometers, aerosol cans, batteries, and lamps), which are excluded as hazardous waste in accordance with § 261.4(b)(1).].”

“10 Most Common Hazardous Waste (RCRA) Violations in Georgia: 40 CFR 262.11 “Hazardous Waste Determination,” Georgia Department of Natural Resources

https://epd.georgia.gov/sites/epd.georgia.gov/files/related_files/site_page/guidehwdet.pdf.

The importance of generators making an accurate hazardous waste determination cannot be over-emphasized. In 2013, a contractor for EPA completed a third-party program evaluation of the hazardous waste determination regulations to better understand the reasons generators may have difficulty making reliable hazardous waste determinations.

This study involved examining national compliance statistics associated with hazardous waste determinations and meeting with representatives of three state programs—Texas, Minnesota, and Colorado—and the regulated community in those states. Questions focused on rates of non-compliance with the hazardous waste determination regulations, obstacles to generator compliance, the role of state waste management programs and the role of third parties, such as environmental services companies or industry trade organizations. The interviewers also solicited stakeholder recommendations for improvement of the waste determination regulations.

Hazardous Waste Determination Program Evaluation, IEc, April 2013.

http://www.epa.gov/evaluate/pdf/waste/haz-waste-determination.pdf.

The evaluation reported the following findings. First, the average non-compliance rate with the RCRA hazardous waste determination regulations across the United States is approximately 34 percent. This figure is based on an analysis of hazardous waste determination violations during EPA compliance inspections recorded in EPA's RCRAInfo data system from 2001 to 2011.

These results are supported by the results of other EPA analyses. For example, in a review of inspection reports of the foundry sector by EPA's Office of Compliance, EPA found 26 of 69 facilities, or 38 percent, with hazardous waste determination violations.

Additionally, an EPA analysis of inspections at CESQG facilities conducted by the State of Kansas inspectors for the 2009-2012 time period found a waste determination non-compliance rate of 21 percent, and an EPA analysis of inspections of Iowa CESQG facilities conducted by EPA Region 7 inspectors for the same time period found a waste determination violation rate of 36 percent.

45 46

RCRAInfo is EPA's national repository for hazardous waste generation and management data.

“Review of RCRA Inspection Report Practices,” May 2007.

EPA administers Iowa's hazardous waste program.

Iowa CESQG Inspections 2009-2012, October 2012; Kansas CESQG Inspections 2009-2012, December 2012.

Probably the most comprehensive analysis involved examining all compliance evaluation inspections of LQGs, SQGs, and CESQGs conducted by both the EPA Regions and the states for fiscal years 2008-2012.

Of the 62,003 compliance evaluation inspections conducted during that time period, EPA and the states found 8,148 waste determination violations, resulting in a non-compliance rate of 13.1 percent. While the estimates of waste determination violation rates vary somewhat across the studies examining them, all of them identify violation rates that are significant.

State Compliance Evaluation Inspections (CEI) for FY 2008-2012.

The evaluation also discussed a number of implementation challenges that lead to non-compliance with the hazardous waste determination regulations. The evaluation identified 30 recurring themes that describe various obstacles, challenges, and factors that influence hazardous waste generators' compliance with the hazardous waste determination regulations. These 30 themes fall into three overarching categories: (1) Challenges related to the regulations; (2) challenges related to generators; and (3) challenges related to regulatory agencies.

Hazardous Waste Determination Program Evaluation, IEc, April 2013.

http://www.epa.gov/evaluate/pdf/waste/haz-waste-determination.pdf.

The Agency is proposing changes intended to address the two challenges identified that are related to the regulations. These are (1) difficulty understanding the regulations as written and (2) difficulty interpreting and applying the regulations to specific circumstances. The proposed changes to § 262.11 are intended to elaborate on the meaning and intent of these regulations to make them easier for generators to understand. We believe the better understanding resulting from these changes will also make it easier to appropriately apply the requirements to a broader range of specific circumstances.

2. Improvements to the Existing Hazardous Waste Determination Regulations

EPA's evaluation of the waste determination regulatory program noted that improving compliance in making accurate waste determinations is a multi-faceted problem. The Agency believes improving the clarity of the regulatory text is an important step because it represents the foundation from which all subsequent EPA and state outreach, technical assistance and enforcement efforts begin. In this regard, EPA identified several particular areas for possible improvements to the current regulations:

—Confusion about where and when to make a hazardous waste determination, particularly when further management of that material may result in a change in the hazardous waste determination.

—§ 262.11(b), which relates to whether or not a solid waste is a listed hazardous waste, does not describe how a generator should determine if the material in question is a listed hazardous waste.

—§ 262.11(c) states that a generator can either test its waste or use process knowledge or knowledge about its waste to determine whether a solid waste is a characteristic hazardous waste.

However, there is little guidance in the regulation on using knowledge to classify waste.

—The existing regulatory text notes that test methods are included in the hazardous characteristic definitions in subpart C of part 261,but does not note that tests are not provided for all aspects of the hazardous characteristics identified there.

The Agency has provided guidance on these issues over the past 30 years and through these proposed regulatory revisions intends to incorporate key aspects of that guidance into the regulatory language.

Finally, EPA is proposing to address deficiencies in the recordkeeping for hazardous waste determinations. These deficiencies include both a lack of specificity regarding what materials used in a hazardous waste determination must be maintained and lack of a specific statement that the independent requirement to maintain records is extended when there is an unresolved enforcement action. In addition, there are large number of hazardous waste determinations for which records are not being kept because the generator determines that the material in question is not a hazardous waste. Failure to maintain records in these cases makes it difficult for regulatory agencies to determine how a generator made the determination and to quickly assess whether the determination is accurate.

3. When and Where To Make a Hazardous Waste Determination

To respond to generator concerns about identifying the most appropriate point at which to make a hazardous waste determination, EPA is proposing to revise § 262.11 to add a paragraph (a), which would state that a hazardous waste determination must be made at the point of waste generation (

i.e.,

when the material becomes a solid waste).

The RCRA statute makes clear that the term “hazardous waste generation” means the act or process of producing hazardous waste.

By requiring that the initial hazardous waste determination be made at the point of generation, the regulation clarifies that the determination cannot be made downstream in the process where other materials could be mixed with the waste or where the waste changed its physical characteristics simply as a result of time elapsing affecting the hazardous waste determination. This standard must be met even in instances in which another entity, such as a waste management facility, makes the waste determination on behalf of the generator.

A material must be a solid waste before it can be a hazardous waste under RCRA.

See Solid Waste Disposal Act, Sec. 1004, page 9.

The 1980 preamble to the original hazardous waste regulations explicitly discussed this scenario, stating that a solid waste which is a hazardous waste because it is listed in part 261 subpart D must begin to be managed as a hazardous waste when it first meets the subpart D listing description. The preamble explains that most of the hazardous wastes listed in §§ 261.31 and 261.32 of subpart D (the F-list and the K-list) are process residues, emission control dusts, or wastewater treatment sludges and the point in time when they are created is generally well defined. For other hazardous wastes, such as spent solvents or those hazardous wastes listed in § 261.33, the point at which they meet the listing description is somewhat less well defined, but generally occurs when their intended use has ceased and they begin to be accumulated or stored for disposal, re-use, or reclamation. The preamble then goes on to provide several examples illustrating how this provision would operate in practice (45 FR 33095-96, May 19, 1980).

The 1980 regulatory preamble also addressed this issue for characteristic hazardous waste. In defining what waste is considered hazardous, § 261.3(b)(3) states that “a solid waste becomes a hazardous waste . . . when the waste exhibits any of the characteristics.” EPA elaborated on this regulatory definition in 1980 by noting that “paragraph (b) provides that a solid waste is a hazardous waste whenever it exhibits one or more of the characteristics. As a practical matter, this means that persons handling solid waste must determine whether they meet the characteristics whenever the management of the waste would be subject to EPA's part 262-265 regulations” (45 FR 33095, May 19, 1980).

This implies that a generator's waste characterization obligations may continue beyond the determination made at the initial point of generation. In the case of a non-hazardous waste that may, at some point in the course of its management, exhibit a hazardous waste characteristic, there is an ongoing responsibility to monitor and reassess its regulatory status if changes occur that may cause the waste to become hazardous. Thus, the generator must monitor the waste for potential changes if there is reason to believe that the waste may physically or chemically change during management in a way that might cause the waste, or a portion of the waste, to become hazardous.

The preamble to the final rule for the toxicity characteristic reiterated that the current rules require that the determination of whether a waste is hazardous is to be made at the point of its generation (

i.e.,

when the material becomes a solid waste).

In the preamble to that rule, EPA stated that it believes that the determination of the regulatory status of a waste at the point of generation continues to be appropriate and that EPA was retaining the existing approach of requiring that a determination be made at the point of generation (55 FR 11830, March 29, 1990).

A material must be a solid waste before it can be a hazardous waste under RCRA.

Thus, for determining whether a waste exhibits a hazardous characteristic, generators of solid waste are required to make a hazardous waste determination at the initial point of generation, in the form the waste is generated in (

i.e.,

“as is”), following the procedure described in § 262.11, which allows use of generator knowledge and/or testing, as appropriate. A generator's hazardous waste determination at the initial point of generation is critical to ensure proper management of the waste not only by the generator, but also by transporters and TSDFs who rely upon the generator's determination to allow them to safely manage the waste and provide appropriate treatment.

Note that making a solid and hazardous waste determination is also applicable for the exemptions identified at §§ 261.2 and 261.4 since such exemptions negate the determination.

As an example, in a letter regarding a waste consisting of solvents mixed with water that separates and becomes biphasic over time, the Agency stated that in this situation, the generator must make the hazardous waste determination not only at the initial point of generation, but also after the waste separates into phases. This letter went on to say that a generator's responsibility to make a hazardous waste determination may continue beyond the determination made at the initial point of generation. In the case of a nonhazardous waste that may, at some point in the future, exhibit a hazardous waste characteristic, there is an ongoing responsibility to monitor and reassess if changes occur that may cause the waste to become hazardous.

Again, if there is reason to believe that the waste may physically or chemically change during management in a way that might cause the waste, or portion of the waste, to become hazardous, the generator must monitor the waste for these changes. The generator should also notify any subsequent handlers of the waste so they are aware that they

should also monitor the waste for changes. This is analogous to and consistent with situations the Agency has discussed in the past such as when, over time, sludges that exhibit the characteristic of toxicity settle out of nonhazardous wastewaters managed in surface impoundments.

Letter from Betsy Devlin, Director of EPA's Materials Recovery and Waste Management Division, to Gary Jones, Printing Industries of America, November 20, 2012, RCRA Online 14834.

Therefore, to clarify that hazardous waste determination must be made at the point of generation, the Agency is proposing to revise the regulations at 40 CFR 262.11 by adding a new paragraph (a) that would state that a hazardous waste determination for each solid waste must be made at the point of waste generation, before any dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste.

This addition of paragraph (a) would change current § 262.11(a) into § 262.11(b) and bump all subsequent paragraphs in that section.

EPA requests comments on the proposed changes to § 262.11 and in particular is soliciting comment on whether the proposed new language is sufficient to improve the existing regulatory text and better assist generators in making effective hazardous waste determinations. Additionally, EPA is interested in comments regarding improvements the Agency could make to the proposed regulatory text.

Effect of the Proposed Reorganization:

This section is not affected by the proposed reorganization.

4. Determining Whether a Waste Is a Listed Hazardous Waste

a. Identifying listed hazardous wastes.

As a general matter, determining whether a waste is a listed hazardous waste consists of comparing the waste that the generator generates to the hazardous waste listing descriptions in §§ 261.31 through 261.33. For many wastes, identifying the origin of the waste is sufficient to determine whether it is a listed waste and this determination is rather straightforward. However, this is not always the case. Sometimes additional information about the waste, the process that generated it (including production feedstocks), and the listing regulations is needed to make a reliable determination, including the following: (1) The regulatory language of the hazardous waste listing; (2) the regulatory intent of the original hazardous waste listing (as evidenced by FR notices and technical support documents and interpretative letters from the original listings); and (3) facts specific to the waste stream at issue.

Note that once listed at §§ 261.31-33 wastes remain listed as hazardous wastes unless and until they are delisted in accordance with §§ 260.20 and 260.22 or unless they are specifically excluded from § 261.3, regardless of their actual composition and constituent concentrations even if the manufacturing and/or treatment processes do not use any of the constituents for which the wastes were listed.

These three types of information can be considered as acceptable types of generator knowledge about a waste stream for making a hazardous waste determination. A November 20, 1997,

Federal Register

notice elaborates on the use of knowledge to make a listing determination—that is, determining whether a waste is a listed hazardous waste can be accomplished by comparing information on the waste stream origin with the RCRA listings set forth in 40 CFR part 261 subpart D. These listings are separated into four major categories or lists and are identified by EPA hazardous waste numbers starting with the letters K, F, P, or U, depending on the category of the waste. The hazardous waste numbers are associated with a specific waste description, specific processes that generate the wastes, or certain chemical compounds. For example, EPA hazardous waste number K103 is defined as “Process residues from aniline extraction from the production of aniline.” A generator that produces such residues should know, without any sampling or analysis, that these wastes are “listed” RCRA hazardous wastes by examining the K103 hazardous waste description in the hazardous waste lists and comparing this with the production process that generated the waste.

Other hazardous waste listings describe wastes generated from generic processes that are common to various industries and activities. They include, for example, waste solvents (

e.g.,

EPA hazardous waste numbers F001-F005), which are often used in the degreasing or cleaning processes of manufacturing operations, and thus are widely generated. EPA hazardous waste number F001 is a listed waste from a non-specific source that is defined by providing a list of spent halogenated solvents at a particular concentration before use and stating that they are F001 when used in degreasing. Because this listed waste is from a non-specific source, the generator would compare this listing description to any industry operation where solvent degreasing is conducted to determine whether this waste meets the specific listing description.

Note that these spent solvents are regulated as hazardous under RCRA, but only if the total of all the solvent constituents before use is greater than or equal to ten percent of the material's volume. This adds a layer of complexity to the hazardous waste determination and requires that the generator have knowledge of the composition of the unused solvent before the waste is generated.

Finally, the hazardous waste regulations include the “derived from” and “mixture” rules, which state that any solid waste derived from the treatment, storage, or disposal of a listed RCRA hazardous waste, or any solid waste mixed with a listed RCRA hazardous waste, respectively, is itself a listed RCRA hazardous waste until delisted (see § 261.3(a)(2)(iv) and § 261.3(c)(2)(i), respectively) (62 FR 62082, November 20, 1997). The exception to these rules is when the waste is listed solely because it exhibits a hazardous waste characteristic, but the particular waste in question no longer exhibits any hazardous characteristic (§ 261.3(g)).

b. Proposal to provide further explanation in regulatory text about listed waste determinations.

The current regulation at § 262.11(b) provides minimal information to generators for determining whether their waste is a listed hazardous waste. EPA is proposing that this paragraph be expanded and that it be redesignated as § 262.11(c) to make room for existing paragraph (a) of § 262.11, which would be redesignated as paragraph (b) under the proposed new regulatory framework at § 262.11 and which addresses the generator determination of whether the solid waste it has generated is excluded from regulation under 40 CFR 261.4.

The new § 262.11(c) would identify the types of acceptable information that the generator could consider in evaluating its waste against the hazardous waste listing descriptions and would assist them in determining if they have generated a listed hazardous waste. This proposed paragraph would state that if the waste is not excluded under 40 CFR 261.4, the person must then use knowledge of the waste to determine if the waste meets any of the listing descriptions under subpart D of 40 CFR part 261. Acceptable knowledge that may be used in making an accurate determination as to whether the waste is listed includes, but is not limited to, waste origin, composition, the process producing the waste, feedstock, and

other relevant information. If the waste is listed, the person may file a delisting petition under 40 CFR 260.20 and 260.22 to demonstrate to the Administrator that the waste from this particular site or operation is not a hazardous waste.

EPA requests comments on these proposed modifications to § 262.11(c).

Effect of the Proposed Reorganization:

This section is not affected by the proposed reorganization, but the contents of the current § 262.11(b) are proposed to be revised and moved to § 262.11(c) to account for the proposed inclusion of a new § 262.11(a).

5. Determining Whether a Waste Is a Characteristic Hazardous Waste

The RCRA hazardous waste regulations identify four characteristics that can result in a hazardous waste classification: ignitability, corrosivity, reactivity, and toxicity. Wastes exhibiting any of these characteristics have EPA hazardous waste numbers starting with the letter “D” and the regulations defining these characteristics are at §§ 261.20 through 261.24. The current § 262.11 regulations identify two methods for determining whether a solid waste is hazardous because it exhibits a hazardous characteristic: (1) Testing of the waste or (2) using knowledge of the hazard characteristic and the mat

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