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Office of Energy Efficiency and Renewable Energy, Department of Energy.
Publication of determination.
The Energy Policy and Conservation Act of 1975 (EPCA), as amended, prescribes that the U.S. Department of Justice (DOJ) make a determination on the impact, if any, on the lessening of competition likely to result from a U.S. Department of Energy's (DOE) proposed rule for energy conservation standards and that DOE publish the determination in the
January 13, 2015.
Mr. Bryan Berringer, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-0371. Email:
Ms. Johanna Hariharan, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-6307. Email:
On December 15, 2014, DOE issued a final rule that adopted revised energy conservation standards for commercial clothes washers (CCWs) (“December 2014 Final Rule”). 79 FR 74491. DOE adopted the December 2014 Final Rule after considering comments received on the March 4, 2014 notice of proposed rulemaking and public meeting (“March 2014 NOPR”). 79 FR 12301. The Energy Conservation and Policy Act of 1975 (42 U.S.C. 6291,
DOE received the determination in response to the March 2014 NOPR from the Attorney General and the U.S. Department of Justice on August 16, 2014. In that determination, the Department of Justice concluded that the energy conservation standards for commercial clothes washers established in the subject rulemaking proceeding are unlikely to have a significant adverse impact on competition. Accordingly, DOE is publishing the determination.
I am responding to your June 11, 2014 letter seeking the views of the Attorney General about the potential impact on competition of proposed energy conservation standards for commercial clothes washers. Your request was submitted under Section 325(0)(2)(B)(i)(V) of the Energy Policy and Consen(ation Act, as amended (ECPA), 42 U.S.C. 6295(0)(2)(B)(i)(V), which requires the Attorney General to make a determination of the impact of any lessening of competition that is likely to result from the imposition of proposed energy conservation standards. The Attorney General's responsibility for responding to requests from other departments about the effect of a program on competition has been delegated to the Assistant Attorney General for the Antitrust Division in 28 CPR § O.40(g).
In conducting its analysis the Antitrust Division examines whether a proposed standard may lessen competition, for example, by substantially limiting consumer choice, by placing certain manufacturers at an unjustified competitive disadvantage, or by inducing avoidable inefficiencies in production or distribution of particular products. A lessening of competition could result in higher prices to manufacturers and consumers.
We have reviewed the proposed standards contained in the Notice of Proposed Rulemaking (79 FR 12302, March 4, 2014) (NOPR). We have also reviewed supplementary information submitted to the Attorney General by the Department of Energy. Based on this review, our conclusion is that the proposed energy conservation standards for commercial clothes washers are unlikely to have a significant adverse impact on competition.
In rule document 2015-00143 appearing on pages 1307-1328 in the issue of January 8, 2015, make the following correction:
On page 1326, in § 5.1, in the second column, in the second line from the top, “January 8, 2018” should read “March 9, 2018”.
Gulf Coast Ecosystem Restoration Council.
Final rule.
The Gulf Coast Ecosystem Restoration Council (Council) is issuing a final rule authorizing the Gulf Coast State members of the Council, or their administrative agents, and the Gulf Consortium of Florida counties to apply for grants to fund planning activities to develop individual State Expenditure Plans (SEP) using amounts up to the statutory minimum that each Gulf Coast State must receive under the Spill Impact Component of the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012 (RESTORE Act).
This final rule becomes effective on January 13, 2015.
The Council posted all comments to the interim rule on its Web site,
Jeffrey Roberson at 202-482-1315.
The RESTORE Act, Public Law 112-141 (July 6, 2012), codified at 33 U.S.C. 1321(t) and note, makes funds available for the restoration and protection of the Gulf Coast Region through a new trust fund in the Treasury of the United States, known as the Gulf Coast Restoration Trust Fund (Trust Fund). The Trust Fund will contain 80 percent of the administrative and civil penalties paid by the responsible parties after July 6, 2012, under the Federal Water Pollution Control Act in connection with the
Two of the five components, the Comprehensive Plan and Spill Impact Components, are administered by the Council, an independent federal entity created by the RESTORE Act. Under the Spill Impact Component (33 U.S.C. 1321(t)(3)), the subject of this final rule, 30 percent of funds in the Trust Fund will be disbursed to the five Gulf Coast States (Alabama, Florida, Louisiana, Mississippi, and Texas) or their administrative agents based on an allocation formula established by the Council by regulation based on criteria in the RESTORE Act. The RESTORE Act establishes a statutory minimum under which each of the five Gulf Coast States is guaranteed five percent of the funds made available under this component. In order for funds to be disbursed to a Gulf Coast State, the RESTORE Act requires each Gulf Coast State to develop a SEP and submit it to the Council for approval. The RESTORE Act specifies the particular entity within each Gulf Coast State that will prepare the individual SEPs: In Alabama, the Alabama Gulf Coast Recovery Council; in Florida, a consortium of local political subdivisions that includes a minimum of one representative of each affected county (officially named the “Gulf Consortium” as organized under Florida law); in Louisiana, the Coastal Protection and Restoration Authority of Louisiana; in Mississippi, the Office of the Governor or an appointee of the Office of the Governor; and in Texas, the Office of the Governor or an appointee of the Office of the Governor. 33 U.S.C. 1321(t)(3)(B)(iii).
On August 22, 2014, the Council issued an interim final rule to permit the five eligible entities responsible for drafting SEPs to have access to amounts up to the statutory minimum to help draft a SEP that meets all statutory requirements.
After considering public comments, the Council now issues the regulations as a final rule. The rule will take effect on January 13, 2015. The Council will separately make available a guidance document that details the content and process requirements of both the planning SEP that is required to get access to the planning grants authorized under this rule and the full SEP that is required to get access to the entire amount of funds made available to each Gulf Coast State under the Spill Impact Component of the RESTORE Act. The Council is also currently developing another set of regulations to more fully implement the Spill Impact Component of the RESTORE Act. These regulations will be published in the
Each of the five Gulf Coast States, Alabama, Florida, Louisiana, Mississippi, and Texas, are statutorily guaranteed a minimum of five percent of amounts made available from the Trust Fund under the Spill Impact Component.
Under this final rule, an amount of funds less than or equal to the statutory minimum allocation (five percent of funds available under the Spill Impact Component) are available to the five eligible entities for development of a planning SEP that funds planning activities only, an eligible activity under the Spill Impact Component. 33 U.S.C. 1321(t)(1)(B)(i)(VIII); 33 U.S.C. 1321(t)(3)(B)(i)(I). Eligible entities include the States of Mississippi and Texas, the Coastal Protection and Restoration Authority of Louisiana, the Alabama Gulf Coast Recovery Council, and the Gulf Consortium of Florida counties.
The preamble to the interim final rule discussed in broad terms the grant submission process. Commenters requested clarification on that process because they felt the interim final rule was unclear on whether an SEP was required for the planning grant authorized by this Rule in addition to a grant application. Commenters also requested that if an SEP is required, that the Council remove that requirement. The Council did not make any changes to the text of the final rule because this issue is not implicated in the text itself. Rather, the Council is clarifying in the preamble that the process for receiving grant funds under the final rule involves two steps. First, the Council's interpretation of the sections of the RESTORE Act that authorize funds under the Spill Impact Component require an SEP prior to any distribution of funds. 33 U.S.C. 1321(t)(3)(B). As such, the Council has no discretion to do away with this requirement. However, the Council feels it is within its discretion to permit a much simpler SEP than would be required in order to receive a full distribution of funds under the Spill Impact Component once the allocation formula is complete. While the Treasury regulations (31 CFR 34.203(a)) state that that eligible entities may apply to the Council for a grant for planning purposes, the Council does not believe these regulations authorize to the Council to distribute such funds without an approved SEP, nor would it be appropriate for the Treasury regulations to do so, since it would be outside the scope of the Act to distribute funds without an SEP. The Council intends to release guidance materials separately from this final rule that will clarify the content requirements associated with a “planning SEP” under this final rule, and differentiating those requirements from those of a “full SEP” that would be required to get a full share of funds pursuant to the Council's allocation formula regulation that is in the process of being drafted. Second, an eligible entity that has submitted a planning SEP and had it approved by the Council would have to complete a standard grant application.
Commenters also pointed out that in Florida, the process for submitting an SEP to the Council involves the administrative step of submitting the SEP to the Executive Office of the Governor of Florida. The Act requires that all SEPs be submitted to the Council by the Gulf Coast State. 33 U.S.C. 1321(t)(3)(B)(i).
The final rule describes the eligible uses for the amounts made available under the final rule as including planning activities related solely to the development of a full SEP, including conceptual design and feasibility studies related to specific projects. It does not include engineering and environmental studies related to specific projects. Commenters pointed out that this definition of planning activities is narrower in scope than the definition provided by Treasury in its regulations (31 CFR 34.2) and asked that the Council modify its definition to match the Treasury definition. This narrower construction was intentional. The purpose of this rule is to permit an eligible entity access to a limited pool of funds in order to draft a full SEP. As such, the definition of planning assistance used in the Treasury regulations is too broad in scope, and would permit engineering and environmental studies related to specific projects or procurement of grant processing systems, activities that the Council does not intend to fund under this final rule. Those sorts of activities will be eligible uses once the full amount of funds is available under the Spill Impact Component pursuant to the forthcoming allocation formula. At this time, however, those sorts of activities are beyond the narrowly tailored purpose of this final rule, which is to fund the drafting of a full SEP only.
Similarly, the final rule does not permit any pre-award costs incurred prior to the date of publication of the interim final rule on August 22, 2014, and provides that any pre-award costs incurred after that publication will be evaluated pursuant to 2 CFR part 200. Commenters requested that the Council remove this time limitation on when pre-award costs were incurred. The final rule retains this time limitation because of the narrow purpose of the rule, to fund the drafting of a full SEP. Under 2 CFR 200.458, pre-award costs must be directly linked to a particular grant and until the announcement of the interim final rule on August 22, 2014, eligible entities did not know that the Council would award grants for the purpose of drafting a full SEP. As such, the Council does not feel it is unreasonably constraining pre-award costs by imposing a limitation that it will consider pre-award costs only if they were awarded after August 22, 2014. Further, to the extent that an eligible entity incurred costs prior to August 22, 2014, that the entity thinks would qualify as legitimate pre-award costs under 2 CFR 200.458, the entity is free to request funding for such costs under the awards issued when a full SEP is submitted in order to access the full allocation under the Spill Impact Component.
Commenters also advocated for changing the Rule to provide for a clear path for funding the Gulf Consortium of Florida. Given the narrow purpose of this Rule, to fund the drafting of a full SEP, the Council feels that this request goes beyond the scope of this Rule. Whether Spill Impact Component funds are available for this purpose is best addressed in the entity's application for pre-award costs associated with the full SEP required to access the full allocation under the Spill Impact Component or under the Council's broader forthcoming regulation establishing the allocation formula. The Council will keep this comment in mind as it drafts that future regulation.
Finally, commenters requested that all forthcoming guidance and rulemakings from the Council be promulgated in a manner that will allow for comments prior to them being finalized, consistent with the Administrative Procedure Act, 5 U.S.C. 553. As is its custom, the Council intends to comply with the requirements of the Administrative Procedure Act.
Minor clarifying edits were made to sections 1800.1 and 1800.20 to remove confusing, superfluous references to the fiscal year. The minimum allocation amount available to each Gulf Coast State will be at least equal to 5% of the total amount available in the Trust Fund for the Spill Impact Component over the life of the Trust Fund.
The Regulatory Flexibility Act (5 U.S.C. 601
This final rule only affects those Gulf Coast States that are eligible recipients of these funds, and States are not considered “small entities” under the Regulatory Flexibility Act. For two Gulf Coast States, Alabama and Florida, the Act mandates that entities not officially part of the Executive Office of the State's government develop the SEPs. The Alabama Gulf Coast Recovery Council, in the context of the Act, serves as an administrative agent of the State of Alabama, so the effects of this rule are still directed solely at the State. For the State of Florida, while the Gulf Consortium of counties is tasked with developing the SEP, it is a consortium of 23 counties with a total population of greater than 50,000. As such, neither entity is considered “small entities” under the Regulatory Flexibility Act.
Additionally, while this final rule describes procedures concerning the allocation and expenditure of amounts from the Trust Fund under the Spill Impact Component, most of these requirements come from the RESTORE Act itself or other Federal law. The RESTORE Act determines the statutory minimum percentage of funds available to the Gulf Coast States under the Spill Impact Component.
Because no small entities will be impacted by this final rule, no initial regulatory flexibility analysis is required, and none has been prepared.
The collections of information contained in this final rule would at most require submissions of grant paperwork from five entities (four of the Gulf Coast States, or their administrative agents, and the Gulf Consortium) below the threshold requirement for application of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). As such, any request for information under this final rule is not considered a “collection of information” subject to the Paperwork Reduction Act of 1995.
As an independent federal entity that is composed of, in part, six federal agencies, including the Departments of Agriculture, the Army, Commerce, and the Interior, the Department in which the Coast Guard is operating, and the Environmental Protection Agency, the requirements of Executive Orders 12866 and 13563 are inapplicable to this final rule.
Coastal zone, Fisheries, Grant programs, Grants administration, Gulf Coast Restoration Trust Fund, Gulf RESTORE Program, Intergovernmental relations, Marine resources, Natural resources, Oil pollution, Research, Science and technology, Trusts, Wildlife.
For the reasons set forth in the preamble, the Gulf Coast Ecosystem Restoration Council amends 40 CFR chapter VIII, by revising part 1800 to read as follows:
33 U.S.C. 1321(t).
As used in this part:
This subpart establishes that up to the statutory minimum allocation (five percent) is available under the Spill Impact Component of the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012 (RESTORE Act) (Pub. L. 112-141, 126 Stat. 405, 588-607) for planning purposes associated with development of a State Expenditure Plan.
A Gulf Coast State or its administrative agent, or the Gulf Consortium, may apply to the Council for a grant to use the minimum allocation available under the Spill Impact Component of the RESTORE Act for planning purposes. These planning purposes are limited to development of a State Expenditure Plan, and includes conceptual design and feasibility studies related to specific projects. It does not include engineering and environmental studies related to specific projects. It also does not include any pre-award costs incurred prior to August 22, 2014.
Federal Communications Commission.
Final rule.
In this document, the Commission amends procedural rules to require electronic filing through the Commission's Electronic Comment Filing System (ECFS) for three common types of wireline proceedings: applications for authorization of domestic transfers of control; applications for authorization to discontinue, reduce, or impair a service; and notices of network changes. The rules establish three electronic inboxes within ECFS to handle the initial filing of the above-identified applications and notices, which have previously been filed only on paper. Accepted applications and notices will receive a distinct ECFS docket number. The Commission expects to continue to expand capabilities for online filing and intends to work toward the goal of providing such capabilities for every type of filing that the public might submit.
Effective February 12, 2015.
Jodie May, Wireline Competition Bureau, Federal Communications Commission,
This is a summary of the Commission's Order, FCC 14-183, GC Docket No. 10-44, adopted on November 19, 2014 and released on November 26, 2014. The complete text of this document is available for public inspection during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, or via the Internet at
The
The actions taken in the
Although the rule sections affected by this proceeding have information collections associated with them, the Office of Management and Budget has determined that, under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (1995) (codified at 44 U.S.C. 3501
The Commission will send a copy of the
Administrative practice and procedure; Communications common carriers; Interconnection; Telecommunications.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1, 51 and 63 as follows:
15 U.S.C. 79
(f) * * *
(1) * * *
(iv) Proceedings involving Over-the-Air Reception Devices;
(v) Common carrier certifications under § 54.314 of this chapter;
(vi) Domestic Section 214 transfer-of-control applications pursuant to §§ 63.52 and 63.53 of this chapter;
(vii) Domestic Section 214 discontinuance applications pursuant to §§ 63.63 and/or 63.71 of this chapter; and
(viii) Notices of network change and associated certifications pursuant to § 51.325
(2) Unless required under paragraph (f)(1) of this section, in the following types of proceedings, all pleadings, including permissible ex parte submissions, notices of ex parte presentations, comments, reply comments, and petitions for reconsideration and replies thereto, may be filed in electronic format:
(iii) Petition for rulemaking proceedings (except broadcast allotment proceedings);
(iv) Petition for forbearance proceedings; and
(v) Filings responsive to domestic section 214 transfers under § 63.03 of this chapter, section 214 discontinuances under § 63.71 of this chapter, and notices of network change under § 51.325
(3) To further greater reliance on electronic filing wherever possible, the Bureaus and Offices, in coordination with the Managing Director, may provide to the public capabilities for electronic filing of additional types of pleadings notwithstanding any provisions of this chapter that may otherwise be construed as requiring such filings to be submitted on paper.
(4) For purposes of compliance with any prescribed pleading lengths, the length of any document filed in electronic form shall be equal to the length of the document if printed out and formatted according to the specifications of paragraph (a) of this section, or shall be no more than 250 words per page.
Sections 1-5, 7, 201-05, 207-09, 218, 220, 225-27, 251-54, 256, 271, 303(r), 332, 706 of the Telecommunication Act of 1996, 48 Stat. 1070, as amended, 1077; 47 U.S.C. 151-55, 157, 201-05, 207-09, 218, 220, 225-27, 251-54, 256, 271, 303(r), 332, 1302, 47 U.S.C. 157
(c) * * *
(2) The incumbent LEC's public notice and any associated certifications shall be filed through the Commission's Electronic Comment Filing System (ECFS), using the “Submit a Non-Docketed Filing” module. All subsequent filings responsive to a notice may be filed using the Commission's ECFS under the docket number set forth in the Commission's public notice for the proceeding. Subsequent filings responsive to a notice also may be filed by sending one paper copy of the filing to “Secretary, Federal Communications Commission, Washington, DC 20554” and one paper copy of the filing to “Federal Communications Commission, Wireline Competition Bureau, Competition Policy Division, Washington, DC 20554.” For notices filed using the Commission's ECFS, the date on which the filing is received by that system will be considered the official filing date. For notices filed via paper copy, the date on which the filing is received by the Secretary or the FCC Mailroom is considered the official filing date. All subsequent filings responsive to a notice shall refer to the ECFS docket number assigned to the notice.
Sections 1, 4(i), 4(j), 10, 11, 201-205, 214, 218, 403 and 651 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 160, 201-205, 214, 218, 403, and 571, unless otherwise noted.
(a) Applications filed under section 214 of the Communications Act for domestic authority must be filed electronically with the Commission through the Electronic Comment Filing System (ECFS). Each domestic transfer of control application shall be accompanied by the fee prescribed in subpart G of part 1 of this chapter.
(c) Any interested party may file a petition to deny an application within the 30-day or other time period specified in paragraph (b) of this section. The petitioner shall serve a copy of such petition on the applicant via electronic mail or paper copy no later than the date of filing thereof with the Commission. The petition shall contain specific allegations of fact sufficient to show that the petitioner is a party in interest and that a grant of the application would be prima facie inconsistent with the public interest, convenience and necessity. Such allegations of fact shall, except for those of which official notice may be taken, be supported by affidavit of a person or persons with personal knowledge thereof. The applicant may file an opposition to any petition to deny, and the petitioners may file a reply to such opposition (see § 1.45 of this chapter), and allegations of facts or denials thereof shall similarly be supported by affidavit. These responsive pleadings shall be served on the applicant or petitioners, as appropriate, and other parties to the proceeding.
(b) Applications for domestic service under section 214 of the Communications Act must be filed electronically with the Commission. For applications filed electronically and subject to a processing fee it is not necessary to send the original or any copies with the fee payment. Unless specified otherwise all applications and other filings described in this section must be filed electronically through the “Submit a Non-Docketed Filing” module of the Commission's Electronic Comment Filing System. For information on electronic filing requirements, see the ECFS homepage at
(a) Application for authority for emergency discontinuance, reduction, or impairment of service shall be made by electronically filing an informal request through the “Submit a Non-Docketed Filing” module of the Commission's Electronic Comment Filing System. Such requests shall be made as soon as practicable but not later than 15 days in the case of public coast stations, or 65 days in all other cases, after the occurrence of the conditions which have occasioned the discontinuance, reduction, or impairment. The request shall make reference to this section and show the following:
(a) * * *
(5) * * *
(i) If the carrier is non-dominant with respect to the service being discontinued, reduced or impaired, the notice shall state: The FCC will normally authorize this proposed discontinuance of service (or reduction or impairment) unless it is shown that customers would be unable to receive
(ii) If the carrier is dominant with respect to the service being discontinued, reduced or impaired, the notice shall state: The FCC will normally authorize this proposed discontinuance of service (or reduction or impairment) unless it is shown that customers would be unable to receive service or a reasonable substitute from another carrier or that the public convenience and necessity is otherwise adversely affected. If you wish to object, you should file your comments as soon as possible, but no later than 30 days after the Commission releases public notice of the proposed discontinuance. You may file your comments electronically through the FCC's Electronic Comment Filing System using the docket number established in the Commission's public notice for this proceeding, or you may address them to the Federal Communications Commission, Wireline Competition Bureau, Competition Policy Division, Washington, DC 20554, and include in your comments a reference to the § 63.71 Application of (carrier's name). Comments should include specific information about the impact of this proposed discontinuance (or reduction or impairment) upon you or your company, including any inability to acquire reasonable substitute service.
(c) Discontinuance applications and all related attachments to the application filed under this section shall be filed through the “Submit a Non-Docketed Filing” module of the Commission's Electronic Comment Filing System.
Office of Acquisition Policy, General Services Administration (GSA).
Final rule.
The General Services Administration (GSA) is issuing a final rule amending the General Services Administration Acquisition Regulation (GSAR) to move the definitions of words and terms from the regulatory text to the non-regulatory General Services Acquisition Manual (GSAM).
Mr. James Tsujimoto, Procurement Analyst, at 202-208-3585, or email at
The General Services Administration (GSA) is amending the General Services Administration Acquisition Regulation (GSAR) to move the definitions from the regulatory GSAR to the non-regulatory General Services Acquisition Manual (GSAM). The definitions listed in GSAR section 502.101 pertain to internal operations only and not the general public. Thus, the definitions belong in the non-regulatory GSAM.
41 U.S.C. 1707, Publication of proposed regulations, applies to the publication of the General Services Administration Acquisition Regulation. Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure, or form (including amendment or modification thereof) must be published for public comment if it has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment because the definitions affect internal operations only. The change is solely within the discretion of the agency and has no impact on the public.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives; and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant GSAR revision and 41 U.S.C. 1707 does not require publication for public comment.
This final rule does not contain any information collection that requires additional approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Government procurement.
Therefore, GSA amends 48 CFR part 502 as set forth below:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to amend the reciprocal waivers of claims regulations so that customers would waive claims against all the customers involved in a launch or reentry, including those signing a different set of reciprocal waivers. Also, customers of any customer contracting directly with a licensee or permittee would not have to sign a waiver directly with the licensee or permittee, other customers, or the FAA. The FAA also proposes to add an appendix to provide permittees with an example of a Waiver of Claims and Assumption of Responsibility for Permitted Activities with No Customer. The proposed rule would incorporate the reciprocal waiver of claims requirements in the regulatory text, ensure that customers would waive claims against all other customers involved in a launch or reentry, including those signing different reciprocal waivers, reduce the need for licensees and permittees to request a partial waiver of the reciprocal waiver of claims requirements and for the FAA to process those requests, and provide a reciprocal waiver template for permittees with no customers, reducing the need for the FAA to assist such a permittee in drafting its cross waivers.
Send comments on or before March 16, 2015.
Send comments identified by docket number FAA-2014-1012 using any of the following methods:
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For technical questions concerning this proposed rule, contact Shirley McBride, Regulations Program Lead, Commercial Space Transportation, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-7470; email
For legal questions concerning this proposed rule, contact Sabrina Jawed, Attorney, AGC-200, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-8839; email
See the “Additional Information” section for information on how to comment on this proposal and how the FAA will handle comments received. The “Additional Information” section also contains related information about the docket, privacy, the handling of proprietary or confidential business information. In addition, there is information on obtaining copies of related rulemaking documents.
The Commercial Space Launch Act of 1984, as amended at 51 U.S.C. 50901-50923 (the Act), authorizes the Department of Transportation and thus the FAA, through delegations, to oversee, license, and regulate commercial launch and reentry activities, and the operation of launch and reentry sites as carried out by U.S. citizens or within the United States. 51 U.S.C. 50904, 50905. The Act directs the FAA to exercise this responsibility consistent with public health and safety, safety of property, and the national security and foreign policy interests of the United States. 51 U.S.C. 50905. Section 50901(a)(7) directs the FAA to regulate only to the extent necessary, in relevant part, to protect the public health and safety and safety of property. The FAA is also responsible for encouraging, facilitating, and promoting commercial space launches by the private sector. 51 U.S.C. 50903.
The statute under which the Secretary of Transportation regulates commercial space transportation, 51 U.S.C. subtitle V, chapter 509, sections 50901-50923 (chapter 509), requires that, for each commercial space launch or reentry, the Department of Transportation (DOT) and, through delegation, the Federal Aviation Administration (FAA) enter into a reciprocal waiver of claims agreement with “the licensee or transferee, contractors, subcontractors, crew, space flight participants, and customers of the licensee or transferee, and contractors and subcontractors of the customers. . . .” 51 U.S.C. 50914(b)(2). This requirement also applies to permittees under 51 U.S.C. 50906(i). This rule changes Title 14, Code of Federal Regulations (14 CFR) 440.3, 440.17 and appendices B and C
The FAA first promulgated regulations regarding reciprocal waivers of claims agreements in 1998
In 2011, the FAA amended § 440.17 and the appendices to part 440 to clarify that each individual customer must enter into the reciprocal waiver of claims, and a customer does not sign on behalf of other customers. In doing so, the FAA removed the term “three-party” from § 440.17(c) and from paragraph 5(d) of the appendices to dispel the notions that only three parties had to sign the reciprocal waivers and that one customer could sign on behalf of the remaining customers in a multi-customer launch.
In 2012, the FAA became aware of a new scenario where the U.S. Government is a customer of a licensee, and the Government provides its customers' payloads to the licensee. This scenario makes compliance with part 440 challenging for the licensee because the licensee is not contracting directly with all its customers, and there are a large number of total customers. Since 2012, the FAA has licensed additional launches that raised similar issues, and it expects to continue to see increasingly complex scenarios. The FAA briefly describes the first of these launches below to provide a better understanding of the issues it would address with this proposed rule.
On October 7, 2012, SpaceX launched a Falcon 9 rocket carrying its Dragon spacecraft as part of NASA's first contracted cargo delivery flight to the International Space Station (ISS). In addition to providing supplies to the ISS, Dragon carried a number of student experiments as part of NASA's Student Spaceflight Experiments Program (SSEP). NASA described SSEP as a national science, technology, engineering, and mathematics education initiative.
SpaceX had a contract with NASA, but was not in a contractual relationship with NanoRacks or any of the students placing experiments onboard Dragon. On September 20, 2012, SpaceX submitted a petition to the FAA requesting a partial waiver of § 440.17, which requires a licensee to enter into a reciprocal waiver of claims with each of its customers.
Thereafter, both SpaceX and Orbital Sciences, Corp. have requested partial waivers for missions in which NASA was a customer.
This NRPM proposes to revise part 440 in the following ways: (1) Amend § 440.17 to state the reciprocal waiver of claims requirements; (2) amend § 440.17 and appendices B and C so that customers of any customer contracting directly with a licensee or permittee would not have to sign a waiver directly with the licensee or permittee, other customers, or the FAA; (3) amend appendices B and C of part 440 so that customers would waive claims, as required by statute, against all the customers involved in the launch or reentry, including those signing a different set of reciprocal waivers; (4) amend § 440.3 to add a definition of “first-tier customer” and “part 440 customer”; and (5) add an appendix to provide licensees with an example of a Waiver of Claims and Assumption of Responsibility for Permitted Activities with No Customer.
These changes would result in cost savings to the licensee, government and customers and minimal cost to any customer in a direct contractual relationship with the licensee or
The FAA proposes to amend § 440.17 to describe the requirements for the reciprocal waiver of claims agreement. Currently, those requirements are detailed in part 440 appendices, but are not all reflected in § 440.17. This proposed change would locate the cross-waiver requirements in the regulatory text rather than just the appendices. Section 440.17(c) would describe the requirements for each party to the reciprocal waiver of claims, to the extent provided in appendices B and C, to (i) waive and release claims for its property damage and its employees' bodily injury or property damage; (ii) assume responsibility for its property damage and its employees' bodily injury or property damage; (iii) extend its assumption of responsibility and waiver and release of claims to its contractors and subcontractors, and customers in the case of a first-tier customer;
Section 440.17 does not currently detail the reciprocal waiver of claims requirements in full. Rather, the section currently uses appendices, as incorporated through sub-sections, to detail the scope of the reciprocal waiver of claims. At the same time, subsection (c) currently qualifies the use of appendices with the additional clause “or in a form that satisfies the requirements.” The FAA believes that this qualification could lead to uncertain expectations for launch participants because the appendices are more comprehensive than what § 440.17 contains. Section 440.17 only includes general references to requirements such as assumption of responsibility, hold harmless, and indemnification clauses.
To address this deficiency, the FAA proposes that § 440.17 list the specific requirements that should be included in the reciprocal waiver of claims agreement. This proposed change would serve to locate the requirements in one place within the regulation for clarity and ease of use.
This rulemaking would amend the part 440 requirement describing which entities are required to sign the statutorily-mandated waiver of claims. Specifically, this rulemaking would no longer require a first-tier customer's customer to sign reciprocal waivers with the licensee and the Government, and would require that a first-tier customer obtain its customers' agreement but indemnify the other parties for any failure to properly apply the requirements of the waiver to its customers. The FAA proposes defining first-tier customer as a customer as defined in § 440.3 who has a contractual relationship with the licensee or permittee to obtain launch or reentry services. In other words, a first-tier customer would be one who met the FAA's regulatory definition of a customer, and was in a contractual relationship with the licensee. The FAA proposes defining part 440 customer as a customer defined by § 440.3 of the Regulations, other than a first-tier customer. The FAA would add these definitions because they are a concise way to differentiate between a customer who is a direct contractual relationship with the licensee or permittee, and a customer who is not. The FAA would also revise the wording in the definition of contractors and subcontractors throughout the appendices, for greater specificity.
The FAA will discuss the proposed requirements in the following order: (1) First-tier customers would flow down the reciprocal waiver requirements to their customers; and (2) first-tier customers would indemnify other parties against claims brought by their customers.
The FAA would revise § 440.17(c) to require each first-tier customer to apply the requirements of § 440.17 to each of its customers, and would amend appendices B and C to reflect this requirement. Currently, part 440 requires all customers, as defined by § 440.3, to sign reciprocal waivers with the licensee and the U.S. Government, even those not contracting directly with a licensee or permittee. This rulemaking would relieve licensees or permittees of having to obtain signatures of their part 440 customers,
The result of requiring first-tier customers to extend the FAA reciprocal waiver requirements to their own customers, would be that the licensee or permittee would only be responsible for signing reciprocal waivers with customers with whom it is in a direct contractual relationship. The FAA notes that the Commercial Space Launch Act specifies that the reciprocal waivers of claims requirement applies only to customers involved in launch or reentry services. 51 U.S.C. 50914(b). Thus, part 440 customers are limited to customers involved in launch or reentry services. As the FAA has stated previously, “[t]he term “customer” does not include the ultimate beneficiary of the payload services, as opposed to launch services, because doing so could theoretically include any person who uses a television or makes a long-distance telephone call, and goes beyond the intended scope of the Act.”
The FAA offers three examples to illustrate the effects of this proposed change. First, this proposed change would not affect launches in which a licensee or permittee contracted directly with all its customers. For example, if Licensee Launcher was launching a payload owned by ToyCo, then Licensee Launcher, ToyCo and the FAA would sign the part 440 reciprocal waivers. This straightforward scenario is what the FAA contemplated when it originally drafted part 440.
In the second example, involving a hosted payload situation, if Licensee
The third example involves a hosted payload with a U.S. Government customer. If Licensee Launcher were launching a payload provided by NASA that included cubesats owned by South University, North University, and Jane Doe, under the current rules Licensee Launcher, South University, North University, Jane Doe, and the FAA would be required to sign reciprocal waivers. In this scenario, Licensee Launcher contracted with NASA for the launch, and NASA contracted with South University, North University, and Jane Doe. Besides NASA, Licensee Launcher had no contractual relationship with any of the customers. However, as in the examples above, Licensee Launcher is currently required to obtain signatures from all the customers of the launch to comply with part 440. This proposed rule would allow Licensee Launcher to sign a reciprocal waiver with only the FAA. The FAA would sign on behalf of the U.S. Government,
The proposal to require a first-tier customer to extend the reciprocal waiver requirements does not conflict with previous positions the FAA has taken on this issue. In its 2011 Technical Amendment, the FAA stated that “a plain language reading of the [Commercial Space Launch Act] makes it clear that Congress intended the government to enter into a reciprocal waiver of claims with all customers.” This proposal is consistent with what the FAA has stated before, even though the FAA would only require customers contracting directly with the licensee or permittee to sign with the Government and the licensee or permittee. The intent of the statute would be preserved because first-tier customers would extend the part 440 requirements to any customers they had that met the definition of customer in § 440.3. Thus, customers who did not sign with the Government and the licensee, but who still met the FAA's definition of customer, would waive claims against all the relevant parties, namely the Government, the licensee or permittee, all other part 440 customers, and the relevant parties' contractors. In this way, the protections Congress intended the statute to afford would be preserved even though the result would be that all customers would no longer have to sign directly with the Government and the licensee or permittee. As the FAA contemplated, in cases with more than one customer's payload on the manifest for a single launch, executing separate but appropriately modified agreements to ensure that all parties are protected would satisfy the statute's mandate.
The FAA also modeled its proposal regarding indemnification on the current practice for contractors and subcontractors. In the context of a party requiring its contractors and subcontractors to agree to abide by the requirements of part 440, the FAA has stated previously that indemnification provides a strong incentive for parties to correctly extend reciprocal waiver requirements. This incentive provides a remedy for parties who sustain loss due to another party's failure to extend the reciprocal waiver requirements.
This proposal similarly does not conflict with the 2011 Technical Amendment, where the FAA stated that in no case was any one customer required to indemnify against claims brought by another customer, or to extend the reciprocal waiver of claims to other customers. At that time, the FAA was not contemplating a scenario in which a customer's customer would have a payload on the launch manifest, but would not be in a direct contractual relationship with the licensee or permittee. Instead, in 2011 the FAA meant only to clarify that unrelated customers could not waive claims on behalf of each other. The FAA envisioned a scenario in which the licensee or permittee itself contracted with various customers. In such a scenario, each customer would sign the reciprocal waiver of claims and could not sign for any other customer, or indemnify other signatories to the waiver of claims against a non-signing customers' claims.
Although the FAA removed language stating that a customer must provide indemnification on behalf of another customer,
In contrast, this proposal would require not only that a customer in a contractual relationship with the licensee or permittee extend the cross waiver requirements to its customers, but also that it indemnify the other parties against claims brought by its own customers. In this scenario, all customers would be aware of the claims they were waiving, and, if a customer failed to extend the reciprocal waiver requirements, it would be required to indemnify. Therefore, it would be in a customer's best interests to correctly extend the reciprocal waiver requirements so that its customers would not bring claims against the other parties. To accomplish this, the FAA would recommend using the forms provided in part 440 appendices B and C.
The FAA proposes requiring that customers waive claims against all other customers involved in a launch or reentry. This change would obviate launch participants re-signing reciprocal waivers if a new customer was added close to the launch date.
The FAA proposes amending the waivers of claims agreements in appendices B and C so that customers waive claims, as required by the statute, against all the customers involved in the launch or reentry, including those signing a different set of reciprocal waivers. In the 2011 Technical Amendment, the FAA inadvertently removed from the definition of “customer” in appendices B and C the phrase “and any person described in § 440.3 of the Regulations.” By removing this phrase, it became unclear that the customer signing the waiver with the licensee or permittee and the FAA was waiving any claims it had against all other customers.
Correcting this omission is important in order to ease the administrative burden on the FAA, customers, licensees, and permittees in instances where a new customer is added to a launch only a short time before the scheduled launch date. As the rule currently stands, all of the parties involved would need to re-sign the original waiver of claims because the protection only extends to those customers who have signed the specific waiver. This could be an onerous process were there to be many entities as customers for a single launch. The proposed amendment would clarify that a signing customer waived any claims against all other customers currently or to be involved in a launch, and would allow a customer who was added at the last minute to sign a new and separate waiver of claims with the FAA and the licensee or permittee, while still waiving claims against any other customers who have signed a separate waiver of claims. This correction should not be construed to allow a customer to sign an indemnification agreement on behalf of another customer. Each customer in a contractual relationship with the licensee or permittee would still sign a waiver of claims on its own behalf.
Although it may look contradictory to include the clause “and any other customer as defined by 14 CFR 440.3” in the reciprocal waiver with one customer found in appendices B and C, the clause is necessary to meet the intent of allowing a last-minute customer to sign a new and separate waiver of claims with the FAA and the licensee or permittee, while also waiving claims against any customers on a launch who have signed a previous waiver of claims. Reciprocal waiver of claims with one customer found in appendices B and C would be used when one customer signed, and reciprocal waiver of claims with multiple customers found in appendices B and C would be used when multiple customers signed the same reciprocal waiver.
For example, Licensee Launcher is conducting a launch, and has one customer (WatchCo). WatchCo signs the “Waiver of Claims and Assumption of Responsibility for Licensed Launch, Including Suborbital Launch, With One Customer,” located in appendix B to part 440, with the FAA and Licensee Launcher. Two months later, Licensee Launcher acquires customer CologneCo. CologneCo is not a customer of WatchCo. Licensee Launcher now has two customers for its launch. Under the proposed rule, CologneCo would sign reciprocal waivers with Licensee Launcher and the FAA, but it would not need to sign with WatchCo because WatchCo waived and released claims it may have against any other customers as defined by § 440.3 and their contractors and subcontractors.
Thus, a licensee with multiple customers for a launch or reentry may sign one cross-waiver with multiple customers, or may sign multiple cross-waivers with each individual customer. Under the proposed rule, the outcome would be the same.
Finally, this rulemaking would add a waiver of claims to appendix C that accounts for scenarios in which a permitted activity does not involve any customer. Permitted activities are launches or reentries of a reusable suborbital rocket for the purpose of research and development, demonstrating compliance with requirements in order to obtain a license, or crew training, and often do not involve a customer. Permittees may not receive compensation for carrying any property or human being. 51 U.S.C. 50906(h). Accordingly, although the FAA contemplated nonpaying customers, permittees may regularly conduct launches without any customer.
Currently, when a permittee plans to conduct permitted activities without any customer, the FAA and permittee modify the existing waivers of claims forms in appendix C in order to create a two-party agreement between the U.S. Government and the permittee. The FAA permits No. EP 07-003 issued to Armadillo Aerospace, L.P. in 2007, No. EP 12-007 issued to Scaled Composites in 2012, and No. EP 12-008 issued to SpaceX in 2012 all involved such a modified waiver of claims. This process led to additional coordination between the FAA and the permittees, and the permittees typically sought confirmation from the FAA that the modified waiver of claims agreement complied with part 440. With the addition of a separate waiver of claims template in appendix C for permitted activities with no customer, the FAA would be able to provide a uniform and compliant waiver of claims that would make the permitting process more efficient.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign
In conducting these analyses, FAA has determined that this proposed rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is not “significant” as defined in DOT's Regulatory Policies and Procedures; (4) would not have a significant economic impact on a substantial number of small entities; (5) would not create unnecessary obstacles to the foreign commerce of the United States; and (6) would not impose an unfunded mandate on State, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.
These changes would result in cost savings to the licensee, government and customers and minimal cost to the first-tier customer if it has customers to the launch.
Cost savings are presented in the table below, which are discussed in more detail in the paragraphs that follow.
The proposal might result in minimal costs to first-tier customers who would be responsible for implementing cross-waivers with their customers.
The following assumptions apply to the analysis.
The proposal would result in cost savings because licensees would no longer have to obtain signatures of sub-tier customers on the cross-waiver. Cost savings may result because licensees would not have to incur expenses to obtain sub-tier signatures or licensees would not seek waivers from the FAA to the requirement that sub-tier customers sign the cross-waiver. The estimated cost savings to the licensee and the Federal Government that would result were indicated in the table above.
Also, the FAA estimated a small cost savings due to the proposal to allow a customer added at the last minute to sign a new and separate waiver of claims agreement.
Finally, the FAA expects minimal cost savings with the proposed addition of a template for permitted activities with no customer.
The responsibility to obtain signatures of customers who are not in a direct contractual relationship (
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
The FAA believes that this proposed rule would not have a significant impact on a substantial number of entities because the rule would result in cost savings and some minimal costs as described below.
Cost savings are expected because the licensee would no longer have to request waivers or obtain sub-tier signatures, nor have to obtain signatures if a party is added to the launch at the last minute. However, there might be minimal costs to first-tier customers. The responsibility to obtain signatures of customers who are not in a direct contractual relationship (
Under the proposal, the first-tier customer would be responsible, as described above, to implement the cross-waiver with their customers. These costs would be minimal because the first-tier customer could modify the templates provided in Appendices B and C to part 440 and add it to the contract that it has with its customers. The FAA thinks that this would be a one-time cost that could be accomplished in a short period of time by the company's in-house lawyers at an estimated cost of $185.
It is not clear whether this minimal cost would impact a substantial number of small entities. To date, the only entities that the FAA is aware of currently that fly hosted payloads are NASA and the Air Force. We do not know whether in the future there might be small entities which would have to implement a cross-waiver with their customers, but even if there were a substantial number of small entities, the proposal would not have a significant impact on these entities.
Therefore, as provided in section 605(b), the head of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.
The FAA solicits comments regarding this determination.
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this proposed rule and determined that it would impose the same costs on domestic and international entities and thus has a neutral trade impact.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $151.0 million in lieu of $100 million. This proposed rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there would be no new requirement for information collection associated with this proposed rule.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances.
See the “Regulatory Evaluation” discussion in the “Regulatory Notices and Analyses” section elsewhere in this preamble.
The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.
The FAA analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.
The FAA invites interested persons to participate in this rulemaking by
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.
An electronic copy of rulemaking documents may be obtained from the Internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies Web page at
3. Accessing the Government Printing Office's Web page at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.
Indemnity payments, Insurance, Reporting and recordkeeping requirements, Space transportation and exploration.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter III of title 14, Code of Federal Regulations as follows:
51 U.S.C. 50901-50923.
(a) As a condition of each license or permit, the licensee or permittee must comply with the reciprocal waiver of claims requirements of this section.
(b) The licensee or permittee must implement a reciprocal waiver of claims with each of its contractors and subcontractors, each first-tier customer and each of the first-tier customer's contractors and subcontractors, under which each party waives and releases claims against all the other parties to the waiver and against any other customer, and agrees to assume financial responsibility for property damage it sustains and for bodily injury or property damage sustained by its own employees, and to hold harmless and indemnify each other from bodily injury or property damage sustained by its employees, resulting from a licensed or permitted activity, regardless of fault.
(c) For each licensed or permitted activity in which the U.S. Government, any agency, or its contractors and subcontractors is involved or where property insurance is required under section 440.9(d), the Federal Aviation Administration of the Department of Transportation, the licensee or permittee, and each first-tier customer must enter into a reciprocal waiver of claims agreement. The reciprocal waiver of claims must be in the form set forth in Appendix B of this part for licensed activity, in Appendix C of this part for permitted activity, or in a form that otherwise provides all the same obligations and benefits. The reciprocal waiver of claims must provide that:
(1) Each party, including the United States but only to the extent provided in legislation:
(i) Waives and releases claims it may have against each other party, any customer, and against their respective contractors and subcontractors, for property damage it sustains and for bodily injury or property damage sustained by its own employees, resulting from licensed activities, regardless of fault;
(ii) Assumes responsibility for property damage it sustains and for bodily injury or property damage sustained by its own employees, resulting from licensed activities, regardless of fault. Licensee and first-tier customer shall each hold harmless and indemnify each other, the United States, any other customer, and the contractors and subcontractors of each for bodily injury or property damage sustained by its own employees, resulting from Licensed Activities, regardless of fault; and
(iii) Extends the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, to its contractors and subcontractors and, for first-tier customer its customers, by requiring them to waive and release all claims they may have against:
(A) For the contractors and subcontractors of the licensee or permittee, all claims against any customer, the United States, and each of their respective contractors and subcontractors, and to agree to be responsible, for property damage they sustain and to be responsible, hold harmless and indemnify any customer, the United States, and each of their respective contractors and subcontractors, for bodily injury or property damage sustained by their own employees, resulting from licensed activities, regardless of fault;
(B) For the contractors and subcontractors of first-tier customer, all claims against the licensee or permittee, any other customer, the United States, and each of their respective contractors and subcontractors, and to agree to be responsible, for property damage they sustain and to be responsible, hold harmless and indemnify the licensee or permittee, any other customer, the United States, and each of their respective contractors and subcontractors, for bodily injury or property damage sustained by their own employees, resulting from licensed activities, regardless of fault;
(C) For the contractors and subcontractors of the United States, all
(2) For the following parties—
(i) The licensee or permittee must hold harmless and indemnify each first-tier customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them from and against liability, loss or damage arising out of claims that any of licensee's or permittee's contractors and subcontractors may have for property damage sustained by them and for bodily injury or property damage sustained by their employees, resulting from licensed or permitted activities. The requirement of (c)(2)(i) of this section to hold harmless and indemnify the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them, does not apply when:
(A) Claims result from willful misconduct of the United States or its agents;
(B) Claims for property damage sustained by the United States or its contractors and subcontractors exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of this part;
(C) Claims by a third party for bodily injury or property damage exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(c) of this part, and do not exceed $1,500,000,000 (as adjusted for inflation after January 1, 1989) above such amount, and are payable pursuant to the provisions of 51 U.S.C. 50915 and section 440.19 of this part; or
(D) Licensee or permittee has no liability for claims exceeding $1,500,000,000 (as adjusted for inflation after January 1, 1989) above the amount of insurance or demonstration of financial responsibility required under section 440.9(c) of this part.
(ii) Each first-tier customer must hold harmless and indemnify the licensee or permitee and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that any of first-tier customer's contractors, subcontractors, or customers may have for property damage sustained by them and for bodily injury or property damage sustained by their employees, resulting from licensed or permitted activities.
(iii) The Federal Aviation Administration of the Department of Transportation on behalf of the United States and its agencies, but only to the extent provided in legislation, must hold harmless and indemnify the licensee or permitee, each first-tier customer, any part 440 customer, and their respective directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that contractors and subcontractors of the United States may have for property damage sustained by them and for bodily injury or property damage sustained by their employees, resulting from licensed or permitted activities to the extent that claims they would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(c) and (e) of this part.
(d) For each licensed or permitted activity in which the U.S. Government, any of its agencies, or its contractors and subcontractors are involved, the Federal Aviation Administration of the Department of Transportation and each space flight participant must enter into or have in place a reciprocal waiver of claims agreement. The reciprocal waiver of claims must be in the form set forth in Appendix E, or in a form that otherwise provides all the same obligations and benefits.
(1) The reciprocal waiver of claims must provide that each space flight participant:
(i) Waive and release claims he or she may have against the United States, and against each of its contractors and subcontractors, for bodily injury, including death, or property damage sustained by space flight participant, resulting from licensed or permitted activities, regardless of fault;
(ii) Assume responsibility for bodily injury, including death, or property damage, sustained by space flight participant, resulting from licensed or permitted activities, regardless of fault;
(iii) Hold harmless the United States, and its contractors and subcontractors, for bodily injury, including death, or property damage, sustained by space flight participant, resulting from licensed or permitted activities, regardless of fault;
(iv) Hold harmless and indemnify the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss, or damage arising out of claims brought by anyone for property damage or bodily injury, including death, sustained by space flight participant, resulting from licensed or permitted activities; and
(v) Hold harmless the United States and its agencies, servants, agents, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims for bodily injury, including death, or property damage, sustained by space flight participant, resulting from licensed or permitted activities, regardless of fault, except to the extent that claims result from willful misconduct of the United States or its agents.
(2) The reciprocal waiver of claims must provide that the United States:
(i) Waive and release claims it may have against space flight participant for property damage it sustains, and for bodily injury, including death, or property damage sustained by its own employees, resulting from licensed or permitted activities, regardless of fault;
(ii) Assume responsibility for property damage it sustains, and for bodily injury, including death, or property damage sustained by its own employees, resulting from licensed activities, regardless of fault, to the extent that claims it would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of this part;
(iii) Assume responsibility for property damage it sustains, resulting from permitted activities, regardless of fault, to the extent that claims it would otherwise have for such damage exceed the amount of insurance or
(iv) Extend the requirements of the waiver and release of claims, and the assumption of responsibility to its contractors and subcontractors by requiring them to waive and release all claims they may have against space flight participant, and to agree to be responsible, for any property damage they sustain and for any bodily injury, including death, or property damage sustained by their own employees, resulting from licensed activities, regardless of fault; and
(v) Extend the requirements of the waiver and release of claims, and the assumption of responsibility to its contractors and subcontractors by requiring them to waive and release all claims they may have against space flight participant, and to agree to be responsible, for any property damage they sustain, resulting from permitted activities, regardless of fault.
(e) For each licensed or permitted activity in which the U.S. Government, any of its agencies, or its contractors and subcontractors is involved, the Federal Aviation Administration of the Department of Transportation and each crew member must enter into or have in place a reciprocal waiver of claims agreement. The reciprocal waiver of claims must be in the form set forth in appendix D, or in a form that otherwise provides all the same obligations and benefits.
(1) The reciprocal waiver of claims must provide that each crew member:
(i) Waive and release claims he or she may have against the United States, and against each of its contractors and subcontractors, for bodily injury, including death, or property damage sustained by crew member, resulting from licensed or permitted activities, regardless of fault;
(ii) Assume responsibility for bodily injury, including death, or property damage, sustained by crew member, resulting from licensed or permitted activities, regardless of fault;
(iii) Hold harmless the United States, and its contractors and subcontractors, for bodily injury, including death, or property damage, sustained by crew member, resulting from licensed or permitted activities, regardless of fault;
(iv) Hold harmless and indemnify the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss, or damage arising out of claims brought by anyone for property damage or bodily injury, including death, sustained by crew member, resulting from licensed or permitted activities; and
(v) Hold harmless the United States and its agencies, servants, agents, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims for bodily injury, including death, or property damage, sustained by crew member, resulting from licensed or permitted activities, regardless of fault, except to the extent that claims result from willful misconduct of the United States or its agents.
(2) The reciprocal waiver of claims must provide that the United States:
(i) Waive and release claims it may have against the crew member for property damage it sustains, and for bodily injury, including death, or property damage sustained by its own employees, resulting from licensed or permitted activities, regardless of fault;
(ii) Assume responsibility for property damage it sustains, and for bodily injury, including death, or property damage sustained by its own employees, resulting from licensed activities, regardless of fault, to the extent that claims it would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of this part;
(iii) Assume responsibility for property damage it sustains, resulting from permitted activities, regardless of fault, to the extent that claims it would otherwise have for such damage exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of this part;
(iv) Extend the requirements of the waiver and release of claims, and the assumption of responsibility to its contractors and subcontractors by requiring them to waive and release all claims they may have against crew member and to agree to be responsible, for any property damage they sustain and for any bodily injury, including death, or property damage sustained by their own employees, resulting from licensed activities, regardless of fault; and
(v) Extend the requirements of the waiver and release of claims, and the assumption of responsibility to its contractors and subcontractors by requiring them to waive and release all claims they may have against crew member and to agree to be responsible, for any property damage they sustain, resulting from permitted activities, regardless of fault.
This agreement is entered into this __ day of __, by and among [Licensee] (the “Licensee”), [Customer] (the “Customer”) and the Federal Aviation Administration of the Department of Transportation, on behalf of the United States Government (collectively, the “Parties”), to implement the provisions of section 440.17(c) of the Commercial Space Transportation Licensing Regulations, 14 CFR Ch. III (the “Regulations”). This agreement applies to the launch of [Payload] payload on a [Launch Vehicle] vehicle at [Location of Launch Site]. In consideration of the mutual releases and promises contained herein, the Parties hereby agree as follows:
(a) Licensee hereby waives and releases claims it may have against Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault.
(b) Customer hereby waives and releases claims it may have against Licensee, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, for Property damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault.
(c) The United States hereby waives and releases claims it may have against Licensee,
(a) Licensee and Customer shall each be responsible for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault. Licensee and Customer shall each hold harmless and indemnify each other, the United States, any part 440 customer, and the Contractors and Subcontractors of each, for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage it sustains, and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault, to the extent that claims it would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of the Regulations.
(a) Licensee shall extend the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, as set forth in paragraphs 2(a) and 3(a), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for Property Damage they sustain and to be responsible, hold harmless and indemnify Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, for Bodily Injury or Property Damage sustained by their own employees, resulting from Licensed Activities, regardless of fault.
(b) Customer shall extend the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, as set forth in paragraphs 2(b) and 3(a), respectively, to its customers, Contractors, and Subcontractors, by requiring them to waive and release all claims they may have against Licensee, the United States, and part 440 customers, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for Property Damage they sustain and to be responsible, hold harmless and indemnify Licensee, the United States, and part 440 customers, and each of their respective Contractors and Subcontractors for Bodily Injury or Property Damage sustained by their own employees, resulting from Licensed Activities, regardless of fault.
(c) The United States shall extend the requirements of the waiver and release of claims, and the assumption of responsibility as set forth in paragraphs 2(c) and 3(b), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against Licensee, Customer, any part 440 customer, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for any Property Damage they sustain and for any Bodily Injury or Property Damage sustained by their own employees, resulting from Licensed Activities, regardless of fault, to the extent that claims they would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of the Regulations.
(a) Licensee shall hold harmless and indemnify Customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that Licensee's Contractors and Subcontractors may have for Property Damage sustained by them and for Bodily Injury or Property Damage sustained by their employees, resulting from Licensed Activities.
(b) Customer shall hold harmless and indemnify Licensee and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that Customer's Contractors, Subcontractors, or customers, may have for Property Damage sustained by them and for Bodily Injury or Property Damage sustained by their employees, resulting from Licensed Activities.
(c) To the extent provided in advance in an appropriations law or to the extent there is enacted additional legislative authority providing for the payment of claims, the United States shall hold harmless and indemnify Licensee, Customer, any part 440 customer, and their respective directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that Contractors and Subcontractors of the United States may have for Property Damage sustained by them, and for Bodily Injury or Property Damage sustained by their employees, resulting from Licensed Activities, to the extent that claims they would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of the Regulations.
Notwithstanding any provision of this Agreement to the contrary, Licensee shall hold harmless and indemnify the United States and its agencies, servants, agents, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims for Bodily Injury or Property Damage, resulting from Licensed Activities, regardless of fault, except to the extent that: (i) As provided in section 7(b) of this Agreement, claims result from willful misconduct of the United States or its agents; (ii) claims for Property Damage sustained by the United States or its Contractors and Subcontractors exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of the Regulations; (iii) claims by a Third Party for Bodily Injury or Property Damage exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(c) of the Regulations, and do not exceed $1,500,000,000 (as adjusted for inflation after January 1, 1989) above such amount, and are payable pursuant to the provisions of 51 U.S.C. 50915 and section 440.19 of the Regulations; or (iv) Licensee has no liability for claims exceeding $1,500,000,000 (as adjusted for inflation after January 1, 1989) above the amount of insurance or demonstration of financial responsibility required under section 440.9(c) of the Regulations.
(a) Nothing contained herein shall be construed as a waiver or release by Licensee, Customer or the United States of any claim by an employee of the Licensee, Customer or the United States, respectively, including a member of the Armed Forces of the United States, for Bodily Injury or Property Damage, resulting from Licensed Activities.
(b) Notwithstanding any provision of this Agreement to the contrary, any waiver, release, assumption of responsibility or agreement to hold harmless and indemnify herein shall not apply to claims for Bodily Injury or Property Damage resulting from willful misconduct of any of the Parties, the Contractors and Subcontractors of any of the Parties, any part 440 customer, the Contractors and Subcontractors of any part 440 customer, and in the case of Licensee, Customer, any part 440 customer, and the Contractors and Subcontractors of each of them, the directors, officers, agents and employees of any of the foregoing, and in the case of the United States, its agents.
(c) This Agreement shall be governed by and construed in accordance with United States Federal law.
In consideration of the mutual releases and promises contained herein, the Parties hereby agree as follows:
(a) Licensee hereby waives and releases claims it may have against each Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault.
(b) Each Customer hereby waives and releases claims it may have against Licensee, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault.
(c) The United States hereby waives and releases claims it may have against Licensee, each Customer, any part 440 customer, and each of their respective Contractors and Subcontractors, for Property Damage it sustains, and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault, to the extent that claims it would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of the Regulations.
(a) Licensee and each Customer shall each be responsible for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault. Licensee and each Customer shall each hold harmless and indemnify each other, the United States, any part 440 customer, and the Contractors and Subcontractors of each, for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage it sustains, and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault, to the extent that claims it would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of the Regulations.
(a) Licensee shall extend the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, as set forth in paragraphs 2(a) and 3(a), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against each Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for Property Damage they sustain and to be responsible, hold harmless and indemnify each Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, for Bodily Injury or Property Damage sustained by their own employees, resulting from Licensed Activities, regardless of fault.
(b) Each Customer shall extend the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, as set forth in paragraphs 2(b) and 3(a), respectively, to its customers, Contractors, and Subcontractors, by requiring them to waive and release all claims they may have against Licensee, the United States, and part 440 customers, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for Property Damage they sustain and to be responsible, hold harmless and indemnify Licensee, the United States, and part 440 customers, and each of their respective Contractors and Subcontractors, for Bodily Injury or Property Damage sustained by their own employees, resulting from Licensed Activities, regardless of fault.
(c) The United States shall extend the requirements of the waiver and release of claims, and the assumption of responsibility as set forth in paragraphs 2(c) and 3(b), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against Licensee, each Customer, any part 440 customer, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for any Property Damage they sustain and for any Bodily Injury or Property Damage sustained by their own employees, resulting from Licensed Activities, regardless of fault, to the extent that claims they would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of the Regulations.
(a) Licensee shall hold harmless and indemnify each Customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that Licensee's Contractors and Subcontractors may have for Property Damage sustained by them and for Bodily Injury or Property Damage sustained by their employees, resulting from Licensed Activities.
(b) Each Customer shall hold harmless and indemnify Licensee and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that each Customer's Contractors, Subcontractors, or customers, may have for Property Damage sustained by them and for Bodily Injury or Property Damage sustained by their employees, resulting from Licensed Activities.
(c) To the extent provided in advance in an appropriations law or to the extent there is enacted additional legislative authority providing for the payment of claims, the United States shall hold harmless and indemnify Licensee, each Customer, any part 440 customer, and their respective directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that Contractors and Subcontractors of the United States may have for Property Damage sustained by them, and
Notwithstanding any provision of this Agreement to the contrary, Licensee shall hold harmless and indemnify the United States and its agencies, servants, agents, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims for Bodily Injury or Property Damage, resulting from Licensed Activities, regardless of fault, except to the extent that: (i) As provided in section 7(b) of this Agreement, claims result from willful misconduct of the United States or its agents; (ii) claims for Property Damage sustained by the United States or its Contractors and Subcontractors exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of the Regulations; (iii) claims by a Third Party for Bodily Injury or Property Damage exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(c) of the Regulations, and do not exceed $1,500,000,000 (as adjusted for inflation after January 1, 1989) above such amount, and are payable pursuant to the provisions of 51 U.S.C. 50915 and section 440.19 of the Regulations; or (iv) Licensee has no liability for claims exceeding $1,500,000,000 (as adjusted for inflation after January 1, 1989) above the amount of insurance or demonstration of financial responsibility required under section 440.9(c) of the Regulations.
(a) Nothing contained herein shall be construed as a waiver or release by Licensee, any Customer or the United States of any claim by an employee of the Licensee, any Customer or the United States, respectively, including a member of the Armed Forces of the United States, for Bodily Injury or Property Damage, resulting from Licensed Activities.
(b) Notwithstanding any provision of this Agreement to the contrary, any waiver, release, assumption of responsibility or agreement to hold harmless and indemnify herein shall not apply to claims for Bodily Injury or Property Damage resulting from willful misconduct of any of the Parties, the Contractors and Subcontractors of any of the Parties, any part 440 customer, the Contractors and Subcontractors of any part 440 customer, and in the case of Licensee, each Customer, any part 440 customer, and the Contractors and Subcontractors of each of them, the directors, officers, agents and employees of any of the foregoing, and in the case of the United States, its agents.
(c) References herein to Customer shall apply to, and be deemed to include, each such customer severally and not jointly.
(d) This Agreement shall be governed by and construed in accordance with United States Federal law.
This Agreement is entered into this _ day of ___, by and among [Licensee] (the “Licensee”), [Customer] (the “Customer”), and the Federal Aviation Administration of the Department of Transportation, on behalf of the United States Government (collectively, the “Parties”), to implement the provisions of § 440.17(c) of the Commercial Space Transportation Licensing Regulations, 14 CFR Ch. III (the “Regulations”). This agreement applies to the reentry of the [Payload] payload on a [Reentry Vehicle] vehicle.
In consideration of the mutual releases and promises contained herein, the Parties hereby agree as follows:
(a) Licensee hereby waives and releases claims it may have against Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault.
(b) Customer hereby waives and releases claims it may have against Licensee, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault.
(c) The United States hereby waives and releases claims it may have against Licensee, Customer, any part 440 customer, and each of their respective Contractors and Subcontractors, for Property Damage it sustains, and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault, to the extent that claims it would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of the Regulations.
(a) Licensee and Customer shall each be responsible for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault. Licensee and Customer shall each hold harmless and indemnify each other, the United States, any part 440 customer, and the Contractors and Subcontractors of each, for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage it sustains, and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault, to the extent that claims it would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under §§ 440.9(c) and (e) of the Regulations.
(a) Licensee shall extend the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, as set forth in paragraphs 2(a) and 3(a), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for Property Damage they sustain and to be responsible, hold harmless and indemnify Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, for Bodily Injury or Property Damage sustained by their own employees, resulting from Licensed Activities, regardless of fault.
(b) Customer shall extend the requirements of the waiver and release of claims, and the
(c) The United States shall extend the requirements of the waiver and release of claims, and the assumption of responsibility as set forth in paragraphs 2(c) and 3(b), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against Licensee, Customer, any part 440 customer, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for any Property Damage they sustain and for any Bodily Injury or Property Damage sustained by their own employees, resulting from Licensed Activities, regardless of fault, to the extent that claims they would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of the Regulations.
(a) Licensee shall hold harmless and indemnify Customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them from and against liability, loss or damage arising out of claims that Licensee's Contractors and Subcontractors may have for Property Damage sustained by them and for Bodily Injury or Property Damage sustained by their employees, resulting from Licensed Activities.
(b) Customer shall hold harmless and indemnify Licensee and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them from and against liability, loss or damage arising out of claims that Customer's Contractors, Subcontractors, or customers, may have for Property Damage sustained by them and for Bodily Injury or Property Damage sustained by their employees, resulting from Licensed Activities.
(c) To the extent provided in advance in an appropriations law or to the extent there is enacted additional legislative authority providing for the payment of claims, the United States shall hold harmless and indemnify Licensee, Customer, any part 440 customer, and their respective directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that Contractors and Subcontractors of the United States may have for Property Damage sustained by them, and for Bodily Injury or Property Damage sustained by their employees, resulting from Licensed Activities, to the extent that claims they would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under §§ 440.9(c) and (e) of the Regulations.
Notwithstanding any provision of this Agreement to the contrary, Licensee shall hold harmless and indemnify the United States and its agencies, servants, agents, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims for Bodily Injury or Property Damage, resulting from Licensed Activities, regardless of fault, except to the extent that: (i) As provided in section 7(b) of this Agreement, claims result from willful misconduct of the United States or its agents; (ii) claims for Property Damage sustained by the United States or its Contractors and Subcontractors exceed the amount of insurance or demonstration of financial responsibility required under § 440.9(e) of the Regulations; (iii) claims by a Third Party for Bodily Injury or Property Damage exceed the amount of insurance or demonstration of financial responsibility required under § 440.9(c) of the Regulations, and do not exceed $1,500,000,000 (as adjusted for inflation after January 1, 1989) above such amount, and are payable pursuant to the provisions of 51 U.S.C. 50915 and § 440.19 of the Regulations; or (iv) Licensee has no liability for claims exceeding $1,500,000,000 (as adjusted for inflation after January 1, 1989) above the amount of insurance or demonstration of financial responsibility required under § 440.9(c) of the Regulations.
(a) Nothing contained herein shall be construed as a waiver or release by Licensee, Customer or the United States of any claim by an employee of the Licensee, Customer or the United States, respectively, including a member of the Armed Forces of the United States, for Bodily Injury or Property Damage, resulting from Licensed Activities.
(b) Notwithstanding any provision of this Agreement to the contrary, any waiver, release, assumption of responsibility or agreement to hold harmless and indemnify herein shall not apply to claims for Bodily Injury or Property Damage resulting from willful misconduct of any of the Parties, the Contractors and Subcontractors of any of the Parties, any part 440 customer, the Contractors and Subcontractors of any part 440 customer, and in the case of Licensee, Customer, any part 440 customer, and the Contractors and Subcontractors of each of them, the directors, officers, agents and employees of any of the foregoing, and in the case of the United States, its agents.
(c) This Agreement shall be governed by and construed in accordance with United States Federal law.
In consideration of the mutual releases and promises contained herein, the Parties hereby agree as follows:
(a) Licensee hereby waives and releases claims it may have against each Customer,
(b) Each Customer hereby waives and releases claims it may have against Licensee, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault.
(c) The United States hereby waives and releases claims it may have against Licensee, each Customer, any part 440 customer, and each of their respective Contractors and Subcontractors, for Property Damage it sustains, and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault, to the extent that claims it would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under § 440.9(c) and (e), respectively, of the Regulations.
(a) Licensee and each Customer shall each be responsible for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault. Licensee and each Customer shall each hold harmless and indemnify each other, the United States, any part 440 customer, and the Contractors and Subcontractors of each, for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage it sustains, and for Bodily Injury or Property Damage sustained by its own employees, resulting from Licensed Activities, regardless of fault, to the extent that claims it would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of the Regulations.
(a) Licensee shall extend the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, as set forth in paragraphs 2(a) and 3(a), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against each Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for Property Damage they sustain and to be responsible, hold harmless and indemnify each Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, for Bodily Injury or Property Damage sustained by their own employees, resulting from Licensed Activities, regardless of fault.
(b) Each Customer shall extend the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, as set forth in paragraphs 2(b) and 3(a), respectively, to its customers, Contractors, and Subcontractors, by requiring them to waive and release all claims they may have against Licensee, the United States, and part 440 customers, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for Property Damage they sustain and to be responsible, hold harmless and indemnify Licensee, the United States, and part 440 customers, and each of their respective Contractors and Subcontractors, for Bodily Injury or Property Damage sustained by their own employees, resulting from Licensed Activities, regardless of fault.
(c) The United States shall extend the requirements of the waiver and release of claims, and the assumption of responsibility as set forth in paragraphs 2(c) and 3(b), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against Licensee, each Customer, any part 440 customer, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for any Property Damage they sustain and for any Bodily Injury or Property Damage sustained by their own employees, resulting from Licensed Activities, regardless of fault, to the extent that claims they would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of the Regulations.
(a) Licensee shall hold harmless and indemnify each Customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that Licensee's Contractors and Subcontractors may have for Property Damage sustained by them and for Bodily Injury or Property Damage sustained by their employees, resulting from Licensed Activities.
(b) Each Customer shall hold harmless and indemnify Licensee and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; and the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that each Customer's Contractors, Subcontractors, or customers, may have for Property Damage sustained by them and for Bodily Injury or Property Damage sustained by their employees, resulting from Licensed Activities.
(c) To the extent provided in advance in an appropriations law or to the extent there is enacted additional legislative authority providing for the payment of claims, the United States shall hold harmless and indemnify Licensee, each Customer, any part 440 customer, and their respective directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that Contractors and Subcontractors of the United States may have for Property Damage sustained by them, and for Bodily Injury or Property Damage sustained by their employees, resulting from Licensed Activities, to the extent that claims they would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of the Regulations.
Notwithstanding any provision of this Agreement to the contrary, Licensee shall hold harmless and indemnify the United States and its agencies, servants, agents, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims for Bodily Injury or Property Damage, resulting from Licensed Activities, regardless of fault, except to the extent that: (i) As provided in section 7(b) of this Agreement, claims result from willful misconduct of the United States or its agents; (ii) claims for Property Damage sustained by the United States or its Contractors and Subcontractors exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of the Regulations; (iii) claims by a Third Party for Bodily Injury or Property Damage exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(c) of the Regulations, and do not exceed $1,500,000,000 (as adjusted for inflation after January 1, 1989) above such amount, and are payable pursuant to the provisions of 51 U.S.C. 50915 and section 440.19 of the Regulations; or (iv) Licensee has no liability for claims exceeding $1,500,000,000 (as adjusted for inflation after January 1, 1989) above the amount of insurance or demonstration of financial responsibility required under section 440.9(c) of the Regulations.
(a) Nothing contained herein shall be construed as a waiver or release by Licensee, any Customer or the United States of any claim by an employee of the Licensee, any Customer or the United States, respectively, including a member of the Armed Forces of the United States, for Bodily Injury or Property Damage, resulting from Licensed Activities.
(b) Notwithstanding any provision of this Agreement to the contrary, any waiver, release, assumption of responsibility or agreement to hold harmless and indemnify herein shall not apply to claims for Bodily Injury or Property Damage resulting from willful misconduct of any of the Parties, the
(c) References herein to Customer shall apply to, and be deemed to include, each such customer severally and not jointly.
(d) This Agreement shall be governed by and construed in accordance with United States Federal law.
(a) Permittee hereby waives and releases claims it may have against the United States, and against its Contractors and Subcontractors, for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault.
(b) The United States hereby waives and releases claims it may have against Permittee and against its Contractors and Subcontractors, for Property Damage it sustains resulting from Permitted Activities, regardless of fault, to the extent that claims it would otherwise have for such damage exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of the Regulations.
(a) Permittee shall be responsible for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault. Permittee shall hold harmless and indemnify the United States, and the Contractors and Subcontractors of the United States, for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage it sustains, resulting from Permitted Activities, regardless of fault, to the extent that claims it would otherwise have for such damage exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of the Regulations.
(a) Permittee shall extend the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, as set forth in paragraphs 2(a) and 3(a), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against the United States, and against the Contractors and Subcontractors of the United States, and to agree to be responsible for Property Damage they sustain and to be responsible, hold harmless, and indemnify the United States, and the Contractors and Subcontractors of the United States, for Bodily Injury or Property Damage sustained by their own employees, resulting from Permitted Activities, regardless of fault.
(b) The United States shall extend the requirements of the waiver and release of claims, and the assumption of responsibility as set forth in paragraphs 2(b) and 3(b), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against Permittee, and against the Contractors and Subcontractors of Permittee, and to agree to be responsible, for any Property Damage they sustain, resulting from Permitted Activities, regardless of fault, to the extent that claims they would otherwise have for such damage exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of the Regulations.
Permittee shall hold harmless and indemnify the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss, or damage arising out of claims that Permittee's Contractors and Subcontractors may have for Property Damage sustained by them and for Bodily Injury or Property Damage sustained by their employees, resulting from Permitted Activities.
Notwithstanding any provision of this Agreement to the contrary, Permittee shall hold harmless and indemnify the United States and its agencies, servants, agents, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims for Bodily Injury or Property Damage, resulting from Permitted Activities, regardless of fault, except to the extent that: (i) As provided in section 7(b) of this Agreement, claims result from willful misconduct of the United States or its agents; (ii) claims for Property Damage sustained by the United States or its Contractors and Subcontractors exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of the Regulations; (iii) claims by a Third Party for Bodily Injury or Property Damage exceed the amount of insurance or demonstration of financial responsibility required under § 440.9(c) of the Regulations, and do not exceed $1,500,000,000 (as adjusted for inflation after January 1, 1989) above such amount, and are payable pursuant to the provisions of 51 U.S.C. 50915 and § 440.19 of the Regulations; or (iv) Licensee has no liability for claims exceeding $1,500,000,000 (as adjusted for inflation after January 1, 1989) above the amount of insurance or demonstration of financial responsibility required under § 440.9(c) of the Regulations.
(a) Nothing contained herein shall be construed as a waiver or release by Permittee or the United States of any claim by an employee of the Permittee or the United States, respectively, including a member of the Armed Forces of the United States, for Bodily Injury or Property Damage, resulting from Permitted Activities.
(b) Notwithstanding any provision of this Agreement to the contrary, any waiver, release, assumption of responsibility, or agreement to hold harmless and indemnify herein shall not apply to claims for Bodily Injury or Property Damage resulting from willful misconduct of any of the Parties, the Contractors and Subcontractors of any of the Parties, and in the case of Permittee and its Contractors and Subcontractors, the directors, officers, agents, and employees of
(c) This Agreement shall be governed by and construed in accordance with United States Federal law.
Except as otherwise defined herein, terms used in this Agreement and defined in 51 U.S.C. Subtitle V, ch. 509—Commercial Space Launch Activities, or in the Regulations, shall have the same meaning as contained in 51 U.S.C. Subtitle V, ch. 509, or the Regulations, respectively.
(a) Permittee hereby waives and releases claims it may have against Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault.
(b) Customer hereby waives and releases claims it may have against Permittee, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault.
(c) The United States hereby waives and releases claims it may have against Permittee, Customer, any part 440 customer, and each of their respective Contractors and Subcontractors, for Property Damage it sustains, and for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault, to the extent that claims it would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of the Regulations.
(a) Permittee and Customer shall each be responsible for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault. Permittee and Customer shall each hold harmless and indemnify each other, the United States, any part 440 customer, and the Contractors and Subcontractors of each, for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage it sustains, resulting from Permitted Activities, regardless of fault, to the extent that claims it would otherwise have for such damage exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of the Regulations.
(a) Permittee shall extend the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, as set forth in paragraphs 2(a) and 3(a), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for Property Damage they sustain and to be responsible, hold harmless and indemnify Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, for Bodily Injury or Property Damage sustained by their own employees, resulting from Permitted Activities, regardless of fault.
(b) Customer shall extend the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, as set forth in paragraphs 2(b) and 3(a), respectively, to its customers, Contractors, and Subcontractors, by requiring them to waive and release all claims they may have against Permittee, the United States, part 440 customers, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for Property Damage they sustain and to be responsible, hold harmless and indemnify Permittee, the United States, part 440 customers, and each of their respective Contractors and Subcontractors, for Bodily Injury or Property Damage sustained by their own employees, resulting from Permitted Activities, regardless of fault.
(c) The United States shall extend the requirements of the waiver and release of claims, and the assumption of responsibility as set forth in paragraphs 2(c) and 3(b), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against Permittee, Customer, any part 440 customer, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for any Property Damage they sustain and for any Bodily Injury or Property Damage sustained by their own employees, resulting from Permitted Activities, regardless of fault, to the extent that claims they would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of the Regulations.
(a) Permittee shall hold harmless and indemnify Customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that Permittee's Contractors and Subcontractors may have for Property Damage sustained by them and for Bodily Injury or Property Damage sustained by their employees, resulting from Permitted Activities.
(b) Customer shall hold harmless and indemnify Permittee and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that Customer's Contractors, Subcontractors, or customers, may have for Property Damage sustained by them and for Bodily Injury or Property Damage sustained by their employees, resulting from Permitted Activities.
Notwithstanding any provision of this Agreement to the contrary, Permittee shall hold harmless and indemnify the United States and its agencies, servants, agents, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims for Bodily Injury or Property Damage, resulting from Permitted Activities, regardless of fault, except to the
(a) Nothing contained herein shall be construed as a waiver or release by Permittee, Customer or the United States of any claim by an employee of the Permittee, Customer or the United States, respectively, including a member of the Armed Forces of the United States, for Bodily Injury or Property Damage, resulting from Permitted Activities.
(b) Notwithstanding any provision of this Agreement to the contrary, any waiver, release, assumption of responsibility or agreement to hold harmless and indemnify herein shall not apply to claims for Bodily Injury or Property Damage resulting from willful misconduct of any of the Parties, the Contractors and Subcontractors of any of the Parties, any part 440 customer, the Contractors and Subcontractors of any part 440 customer, and in the case of Permittee, Customer, any part 440 customer, and the Contractors and Subcontractors of each of them, the directors, officers, agents and employees of any of the foregoing, and in the case of the United States, its agents.
(c) This Agreement shall be governed by and construed in accordance with United States Federal law.
In consideration of the mutual releases and promises contained herein, the Parties hereby agree as follows:
(a) Permittee hereby waives and releases claims it may have against each Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault.
(b) Each Customer hereby waives and releases claims it may have against Permittee, the United States, any part 440 customer, and each of their Contractors and Subcontractors, for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault.
(c) The United States hereby waives and releases claims it may have against Permittee, each Customer, any part 440 customer, and each of their respective Contractors and Subcontractors, for Property Damage it sustains, and for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault, to the extent that claims it would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under sections 440.9(c) and (e), respectively, of the Regulations.
(a) Permittee and each Customer shall each be responsible for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault. Permittee and each Customer shall each hold harmless and indemnify each other, the United States, any part 440 customer, and the Contractors and Subcontractors of each, for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage it sustains, resulting from Permitted Activities, regardless of fault, to the extent that claims it would otherwise have for such damage or injury exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of the Regulations.
(a) Permittee shall extend the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, as set forth in paragraphs 2(a) and 3(a), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against each Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for Property Damage they sustain and to be responsible, hold harmless and indemnify each Customer, the United States, any part 440 customer, and each of their respective Contractors and Subcontractors, for Bodily Injury or Property Damage sustained by their own employees, resulting from Permitted Activities, regardless of fault.
(b) Each Customer shall extend the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, as set forth in paragraphs 2(b) and 3(a), respectively, to its customers, Contractors, and Subcontractors, by requiring them to waive and release all claims they may have against Permittee, the United States, part 440 customers, and each of their respective Contractors and Subcontractors, and to agree to be responsible, for Property Damage they sustain and to be responsible, hold harmless and indemnify Permittee, the United States, part 440 customers, and each of their respective Contractors and Subcontractors, for Bodily Injury or Property Damage sustained by their own employees, resulting from Permitted Activities, regardless of fault.
(c) The United States shall extend the requirements of the waiver and release of claims, and the assumption of responsibility as set forth in paragraphs 2(c) and 3(b), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against
(a) Permittee shall hold harmless and indemnify each Customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that Permittee's Contractors and Subcontractors may have for Property Damage sustained by them and for Bodily Injury or Property Damage sustained by their employees, resulting from Permitted Activities.
(b) Each Customer shall hold harmless and indemnify Permittee and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them; the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them; and any part 440 customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that each Customer's Contractors, Subcontractors, or customers, may have for Property Damage sustained by them and for Bodily Injury or Property Damage sustained by their employees, resulting from Permitted Activities.
Notwithstanding any provision of this Agreement to the contrary, Permittee shall hold harmless and indemnify the United States and its agencies, servants, agents, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims for Bodily Injury or Property Damage, resulting from Permitted Activities, regardless of fault, except to the extent that: (i) As provided in section 7(b) of this Agreement, claims result from willful misconduct of the United States or its agents; (ii) claims for Property Damage sustained by the United States or its Contractors and Subcontractors exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of the Regulations; (iii) claims by a Third Party for Bodily Injury or Property Damage exceed the amount of insurance or demonstration of financial responsibility required under § 440.9(c) of the Regulations, and do not exceed $1,500,000,000 (as adjusted for inflation after January 1, 1989) above such amount, and are payable pursuant to the provisions of 51 U.S.C. 50915 and § 440.19 of the Regulations; or (iv) Licensee has no liability for claims exceeding $1,500,000,000 (as adjusted for inflation after January 1, 1989) above the amount of insurance or demonstration of financial responsibility required under § 440.9(c) of the Regulations.
(a) Nothing contained herein shall be construed as a waiver or release by Permittee, any Customer or the United States of any claim by an employee of the Permittee, any Customer or the United States, respectively, including a member of the Armed Forces of the United States, for Bodily Injury or Property Damage, resulting from Permitted Activities.
(b) Notwithstanding any provision of this Agreement to the contrary, any waiver, release, assumption of responsibility or agreement to hold harmless and indemnify herein shall not apply to claims for Bodily Injury or Property Damage resulting from willful misconduct of any of the Parties, the Contractors and Subcontractors of any of the Parties, any part 440 customer, the Contractors and Subcontractors of any part 440 customer, and in the case of Permittee, each Customer, any part 440 customer, and the Contractors and Subcontractors of each of them, the directors, officers, agents and employees of any of the foregoing, and in the case of the United States, its agents.
(c) References herein to Customer shall apply to, and be deemed to include, each such customer severally and not jointly.
(d) This Agreement shall be governed by and construed in accordance with United States Federal law.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to revise provisions of the Arizona Regional Haze (RH) Federal Implementation Plan (FIP) applicable to the Nelson Lime Plant. In response to a request for reconsideration from the plant's owner, Lhoist North America of Arizona, Inc. (LNA), we propose to replace the control technology demonstration requirements for nitrogen oxides (NO
Written comments must be submitted on or before February 27, 2015. Requests for a public hearing must be received on or before January 28, 2015.
See the
Thomas Webb, U.S. EPA, Region 9, Planning Office, Air Division, Air-2, 75 Hawthorne Street, San Francisco, CA 94105. Thomas Webb can be reached at telephone number (415) 947-4139 and via electronic mail at
Throughout this document, “we,” “us,” and “our” refer to EPA.
For the purpose of this document, we are giving meaning to certain words or initials as follows:
• The words or initials
• The initials
• The words
• The initials
• The initials
• The term
• The initials
• The initials
• The words
• The initials
• The initials
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The proposed action relies on documents, information, and data that are listed in the index on
Written comments must be submitted on or before February 27, 2015. Submit your comments, identified by Docket ID No. EPA-R09-OAR-2014-0861, by one of the following methods:
•
•
•
•
EPA's policy is to include all comments received in the public docket without change. We may make comments available online at
Do not submit CBI to EPA through
When submitting comments, remember to:
• Identify the rulemaking by docket number and other identifying information (
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline.
If anyone contacts EPA by January 28, 2015 requesting to speak at a public hearing, EPA will schedule a public hearing and announce the hearing in the
Congress created a program for protecting visibility in the nation's national parks and wilderness areas in section 169A of the 1977 Amendments to the CAA. This section of the CAA
The Arizona Department of Environmental Quality (ADEQ) submitted a Regional Haze SIP to EPA on February 28, 2011. EPA promulgated two final rules approving in part and disapproving in part the Arizona RH SIP. The first final rule addressed the State's BART determinations for three power plants (Apache, Cholla, and Coronado).
In a third final rule, EPA found that the Nelson Lime Plant was subject to BART and made a BART determination for the plant, as part of the Arizona RH FIP.
LNA submitted a petition to EPA on October 31, 2014, seeking administrative reconsideration and a partial stay of the final rule under CAA section 307(d)(7)(B).
This proposed rule consists of several components: removal of the control technology demonstration requirements, revised recordkeeping and reporting requirements, and an error correction to a table in our September 3, 2014, final rule. This proposed rule does not change any of the emission limits, compliance deadlines, or the compliance determination methods established in the final rule.
EPA is proposing to remove the control technology demonstration requirements from the final rule based on information provided in LNA's petition for reconsideration. In particular, in a letter dated October 2, 2014, and enclosed with the petition, LNA provided new data concerning operation of SNCR at another of its facilities, the O'Neal Lime Plant. The O'Neal Lime Plant originally consisted of Kiln 1, but was later expanded through the construction of Kiln 2. In order for the construction of Kiln 2 not to trigger major new source review for NO
The remainder of the October 2, 2014, letter summarizes NO
This range of control efficiency represents SNCR performance over relatively short-term periods of less than 24 hours. For example, the highest observed control efficiency (61 percent) corresponds to a period ending on December 1, 2011, and consists of a comparison of six hours of uncontrolled emissions with eight hours of controlled emissions. As noted in the final rule in regard to control efficiencies for dry sorbent injection, we do not consider the upper range of short-term control efficiencies necessarily to be sustainable over longer periods, such as on an annual average basis.
Accordingly, we propose to find that the data from the O'Neal kilns are sufficient to establish that an SNCR control efficiency of 50 percent is appropriate for the Nelson kilns for purposes of BART. While we still consider it necessary to ensure that the SNCR system be optimized, we do not consider it necessary for LNA to adhere to the relatively detailed and prescribed procedures contained in the control technology demonstration requirements. Therefore, we are proposing to remove the control technology demonstration requirements included in the final rule, and, as described below, are proposing requirements that will require LNA to report similar information in a less prescribed manner.
We are proposing several additional reporting and recordkeeping requirements, including a summary of SNCR design and a summary of SNCR debugging and process improvement activities, to replace the control technology demonstration requirements in the FIP for Nelson Lime Plant. As described in III.B above, we consider it necessary to include provisions for SNCR optimization. Given the NO
We are proposing a minor correction to a table printed in our September 3, 2014, final rule at 79 FR 52480. The table, which is codified at 40 CFR 52.145(i)(3)(i) and lists NO
The CAA requires that any revision to an implementation plan shall not be approved by the Administrator if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the CAA.
For the reasons described above, EPA proposes to revise the Arizona Regional Haze FIP to eliminate the control technology demonstration requirements at the Nelson Lime Plant and replace them with additional recordkeeping and reporting requirements. This revision would constitute our action on LNA's Petition for Reconsideration of the FIP.
This proposed action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). This proposed rule applies to only one facility and is therefore not a rule of general applicability.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Pursuant to 13 CFR 121.201, footnote 1, a firm is small if it is in NAICS 327410 (lime manufacturing) and the concern and its affiliates have no more than 500 employees. LNA is affiliated with the LNA Group, which has more than 5,500 employees.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, requires Federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Federal agencies must also develop a plan to provide notice to small governments that might be significantly or uniquely affected by any regulatory requirements. The plan must enable officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates and must inform, educate, and advise small governments on compliance with the regulatory requirements.
This proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for state, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.
This proposed rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This proposed rule does not impose regulatory requirements on any government entity.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or in the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed action from State and local officials.
Under Executive Order 13175 (65 FR 67249, November 9, 2000), EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact statement.
This proposed rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule. EPA specifically solicits additional comment on this proposed rule from tribal officials.
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. This proposed action addresses regional haze and visibility protection.
This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is exempt under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12 (10) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (
EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.
Executive Order 12898 (59 FR 7629, February 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs
EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not change the level of environmental protection for any affected populations.
Environmental protection, Air pollution control, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Visibility. Incorporation by Reference.
42 U.S.C. 7401
Part 52, chapter I, title 40 of the Code of Federal Regulations is proposed to be amended as follows:
42 U.S.C. 7401
The revision reads as follows:
(i)
(1)
(2)
(3)
(ii) The owner/operator of the kilns identified in paragraph (i)(1) of this section shall not emit or cause to be emitted pollutants in excess of 3.27 tons of NO
(4)
(ii) The owner/operator of each kiln shall comply with the SO
(5) [Reserved]
(6)
(ii)
(iii)
(iv)
(v)
(vi)
(7)
(i) All CEMS data, including the date, place, and time of sampling or measurement; parameters sampled or measured; and results.
(ii) All records of lime production.
(iii) Monthly rolling 12-month emission rates of NO
(iv) Daily rolling 30-kiln operating day emission rates of NO
(v) Records of quality assurance and quality control activities for emissions measuring systems including, but not limited to, any records specified by 40 CFR part 60, appendix F, Procedure 1, as well as the following:
(A) The occurrence and duration of any startup, shutdown, or malfunction, performance testing, evaluations, calibrations, checks, adjustments maintenance, duration of any periods during which a CEMS or COMS is inoperative, and corresponding emission measurements.
(B) Date, place, and time of measurement or monitoring equipment maintenance activity;
(C) Operating conditions at the time of measurement or monitoring equipment maintenance activity;
(D) Date, place, name of company or entity that performed the measurement or monitoring equipment maintenance activity and the methods used; and
(E) Results of the measurement or monitoring equipment maintenance.
(vi) Records of ammonia consumption, as recorded by the instrumentation required in paragraph (i)(6)(ii) of this section.
(vii) Records of all major maintenance activities conducted on emission units, air pollution control equipment, CEMS, and lime production measurement devices.
(viii) All other records specified by 40 CFR part 60, appendix F, Procedure 1.
(8)
(i) Prior to commencing construction of the ammonia injection system, the owner/operator shall submit to EPA a summary report of the design of the SNCR system. Elements of this summary report shall include: Reagent type, description of the locations selected for reagent injection, reagent injection rate (expressed as a molar ratio of reagent to NO
(ii) By October 3, 2017, the owner/operator shall submit to EPA a summary of any process improvement or debugging activities that were performed on the SNCR system.
(iii) The owner/operator shall submit a report that lists the daily rolling 30-kiln operating day emission rates for NO
(iv) The owner/operator shall submit a report that lists the monthly rolling 12-month emission rates for NO
(v) The owner/operator shall submit excess emissions reports for NO
(vi) The owner/operator shall submit a summary of CEMS operation, to include dates and duration of each period during which the CEMS was inoperative (except for zero and span adjustments and calibration checks), reason(s) why the CEMS was inoperative and steps taken to prevent recurrence, and any CEMS repairs or adjustments.
(vii) The owner/operator shall submit results of all CEMS performance tests required by 40 CFR part 60, Appendix F, Procedure 1 (Relative Accuracy Test Audits, Relative Accuracy Audits, and Cylinder Gas Audits).
(viiii) When no excess emissions have occurred or the CEMS has not been inoperative, repaired, or adjusted during the reporting period, the owner/operator shall state such information in the semiannual report.
(9)
(i) The owner/operator shall submit notification of commencement of construction of any equipment which is being constructed to comply with the NO
(ii) The owner/operator shall submit semiannual progress reports on construction of any such equipment.
(iii) The owner/operator shall submit notification of initial startup of any such equipment.
(10)
(ii) After completion of installation of ammonia injection on a kiln, the owner/operator shall inject sufficient ammonia to achieve compliance with the NO
(11)
Federal Communications Commission.
Proposed rule.
This document requests comments on a Petition for Rule Making filed by Charles Crawford, proposing to amend the FM Table of Allotments, Section 73.202(b) of the Commission's Rules, by allotting Channel 295A at Wright City, Oklahoma, as the community's first local service. A staff engineering analysis indicates that Channel 295A can be allotted to Wright City consistent with the minimum distance separation requirements of the Commission's Rules with a site restriction located 14 kilometers (8.6 miles) east of the community. The reference coordinates are 34-04-44 NL and 94-51-15 WL.
Comments must be filed on or before February 9, 2015, and reply comments on or before February 24, 2015.
Secretary, Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner as follows: Charles Crawford, 2215 Cedar Springs Rd., #1605, Dallas, Texas 75201.
Rolanda F. Smith, Media Bureau, (202) 418-2700.
This is a synopsis of the Commission's
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
47 U.S.C. 154, 303, 334, 336 and 339.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Advanced notice of proposed rulemaking; request for information.
We, the National Marine Fisheries Service (NMFS), are considering proposing protective regulations to provide for the conservation of the 20 coral species recently listed as threatened under the Endangered Species Act (ESA). Fifteen of the listed species occur in the Indo-Pacific and five occur in the Caribbean. This advanced notice of proposed rulemaking (ANPR) is intended to alert other agencies and the public of our planning efforts and request public input that will assist in identifying actions and activities that may impact the status of these corals, as well as information on the existence and efficacy of on-going conservation activities. This information will help inform our evaluation of what, if any, protective regulations are necessary and advisable for the conservation of these species.
Responses to this request for information must be received by March 16, 2015.
You may submit comments, information, or data on this document, identified by NOAA-NMFS-2014-0158, by any of the following methods:
• Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal
• Mail:
○ To submit written comments regarding the species listed in Table 1 below, contact the Pacific Islands Region: Lance Smith, Protected Resources Division, National Marine Fisheries Service, Pacific Islands Regional Office, NOAA Inouye Regional Center, 1845 Wasp Blvd., Building 176, Honolulu, HI 96818.
○ To submit written comments regarding the species listed in Table 2 below, contact the Southeast Region: Stephania Bolden, Protected Resources Division, National Marine Fisheries Service, Southeast Regional Office, 263 13th Avenue South, Saint Petersburg, FL 33701.
Lance Smith, NMFS, Pacific Islands Regional Office, 808-725-5131; Kimberly Maison, NMFS, Pacific Islands Regional Office, 808-725-5143; Stephania Bolden, NMFS, Southeast Regional Office, 727-824-5312; or Marta Nammack, NMFS Office of Protected Resources, 301-427-8469.
On September 10, 2014, we published a final rule listing 20 species of coral as threatened under the ESA (79 FR 53851). The 15 Indo-Pacific species include
ESA section 9(a)(1) prohibitions are automatically applied to species listed as endangered but not to species listed as threatened. Section 4(d) of the ESA provides that, whenever a species is listed as threatened, the Secretary of Commerce (Secretary) shall issue such regulations as she deems necessary and advisable to provide for the conservation of the species. Such regulations may include any or all of the prohibitions in ESA section 9(a)(1) that apply automatically to species listed as
Whether section 9(a)(1) prohibitions or other regulations are necessary and advisable to provide for the conservation of species depends in large part upon the biological status of the species, the potential impacts of various activities on the species, and on factors such as the existence and efficacy of other conservation activities.
We determined in the final listing rule that the 20 coral species are not currently in danger of extinction but are likely to become so within the foreseeable future. In the final listing rule we identified nine threats to the corals that posed either a current or future extinction risk (79 FR 53851; September 10, 2014) and further classified the threats by importance. Primary threats identified include ocean warming, disease, and ocean acidification. Threats of medium to low importance include trophic effects of fishing, sedimentation, nutrient enrichment, sea-level rise, predation, and collection and trade. See Tables 1 and 2 below for U.S. distributions of these 20 threatened coral species. For more details on the individual status reviews, threat susceptibilities, and listing determinations for each species, please see the final listing rule (79 FR 53851; September 10, 2014). We also determined
We are now considering whether there are protective regulations that are necessary and advisable for the conservation of these 20 recently listed corals. We have flexibility under section 4(d) to tailor protective regulations based on the contributions of other existing conservation measures. The 4(d) regulations may prohibit, with respect to threatened species, some or all of the acts which section 9(a)(1) of the ESA prohibits with respect to endangered species. For those prohibitions we do apply, we may also provide exceptions for certain circumstances in which extending the take prohibitions is not necessary and advisable. For example, we can exempt from regulations activities that may take listed corals but ultimately provide an overall conservation benefit.
Seven of the 15 threatened Indo-Pacific coral species have been confirmed to occur within U.S. Pacific jurisdictional areas including Guam, the Commonwealth of the Northern Mariana Islands, the Pacific Remote Island areas, and American Samoa (See Table 1). This information may change as more surveys are conducted and better information becomes available. The remaining eight threatened Indo-Pacific coral species have not yet been reported or confirmed within U.S. jurisdiction and are currently considered to occur naturally as foreign species, entirely outside of U.S. jurisdiction; however, they may be observed within U.S. jurisdictions in future surveys, and several are commonly imported into the United States for the marine aquarium trade. All five threatened Caribbean corals occur within U.S. jurisdiction (See Table 2). One of the section 9(a)(1) prohibitions that may be applied pursuant to section 4(d) is the prohibition on the take of species on the high seas. We are therefore requesting information for all 20 newly listed threatened species, wherever they may occur, to help inform our determination of which take prohibitions may be necessary and advisable for their conservation.
We are soliciting information from other agencies and the public that will help us determine what, if any, protective regulations are necessary and advisable for the conservation of these 20 newly listed coral species. This includes information that will help us understand and analyze impacts of various activities, the existence and efficacy of ongoing conservation activities, and prohibitions that are both necessary and advisable to reduce threats and amenable to management for the conservation of these 20 species. Specifically, we are soliciting information including the following: (1) Current or planned activities within the range of these species and their possible impact on these species; (2) impacts within the species' ranges that fall within any of the nine major threat categories: Ocean warming, disease, ocean acidification, sea-level rise, nutrient enrichment, sedimentation, predation, trophic effects of fishing, and collection and trade; (3) information on which of the section 9(a)(1) prohibitions on take are necessary and advisable for the conservation of these species, with associated justification; (4) specific activities that should be prohibited for the conservation of the 20 coral species, with associated justification; (5) specific activities that should be excepted from any prohibitions that may be applied because they either provide a conservation benefit or do not detract from the conservation of these species, with associated justification; (6) existing permitting programs that may already provide for the conservation of listed corals through their activity evaluation and permitting process, with associated justification; and (7) the economic costs and benefits likely to result from protective regulations (see
We will fully consider all relevant information received in our determination of what protective regulations are necessary and advisable for the conservation of the species.
A complete list of references is available at
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public hearings.
We, NMFS, announce the specific dates and locations for four public hearings in Alaska, one each in Nome, Anchorage, Kotzebue, and Barrow, on our proposed rule to designate critical habitat for the threatened Arctic subspecies (
Written comments on the proposed rule must be received by March 9, 2015. For specific dates of the public hearings, see
Five public hearings will be held in Alaska, one each in Nome, Anchorage, Kotzebue, Barrow, and Bethel: For specific locations of these hearings, see
You may submit written comments on the proposed rule, identified by NOAA-NMFS-2013-0114, by any one of the following methods:
• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to
• Mail: Address written comments to Jon Kurland, Assistant Regional Administrator for Protected Resources, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.
Electronic copies of the proposed rule, list of references and supporting documents, and the draft economic report (
Tamara Olson, NMFS Alaska Region, (907) 271-2373; Jon Kurland, NMFS Alaska Region, (907) 586-7638; or Marta
On December 9, 2014, we published a proposed rule to designate critical habitat for the threatened Arctic ringed seal under the ESA (79 FR 73010). At that time, we opened a public comment period on the proposed rule through March 9, 2015, and announced that four public hearings will be held on the proposed rule in Alaska, one each in Anchorage, Barrow, Kotzebue, and Nome. In this notice, we announce the specific dates and locations for these four public hearings (see Public Hearing Schedule). We also announce that a fifth public hearing will be held in Bethel, AK.
During each public hearing, a brief opening presentation on the proposed rule will be provided before accepting public testimony. Written comments may be submitted at the hearing or via the Federal e-Rulemaking Portal (see
The specific date and location for the hearing in Bethel, AK, will be announced in a subsequent
1. Nome: January 28, 2015, from 4 p.m. to 7 p.m. at Old St. Joe's, 407 Bering Street, Nome, AK.
2. Anchorage: February 2, 2015, 4 p.m. to 7 p.m. at the Z. J. Loussac Public Library, Wilda Marston Theatre, 3600 Denali Street, Anchorage, AK.
3. Kotzebue: February 17, 2015, 4 p.m. to 7 p.m., at the Northwest Arctic Borough Assembly Chambers, 163 Lagoon Street, Kotzebue, AK.
4. Barrow: February 23, 2015, 7 p.m. to 10 p.m., at the Iñupiat Heritage Center, 5421 North Star Street, Barrow, AK.
These hearings are physically accessible to people with disabilities. Requests for sign language interpretation or other accommodations should be directed to Tamara Olson (see
16 U.S.C. 1531
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
In addition to increasing and optimizing self-response through the Internet, the Census Bureau plans to incorporate the use of new technologies, such as advertising via social media, encouraging the use of the Internet as the primary response mode and allowing respondents to submit a paper or electronic questionnaire without a unique identification code. We are focusing on studying these outreach and self-response approaches in a 2015 Census Test in the Savannah, GA area.
Another 2015 Census Test will be in the Maricopa County, AZ area, and will study alternative methods that are designed to increase efficiency and reduce costs while conducting NRFU operations. The test objectives in this site also include studying the use of administrative records to reduce field visits and costs.
The 2015 Census Test in selected counties in and surrounding Savannah, GA, and adjacent counties in South Carolina, will allow the Census Bureau to study a variety of new methods and advanced technologies that are under consideration for the 2020 Census. The Census Bureau will conduct this test in the Savannah Media Market, which includes 20 counties, 17 in Georgia and 3 in South Carolina. This media market has diversity in demographics, address types, and Internet penetration and usage. We primarily selected this market because we consider it fairly self-contained, which will limit bleed-over of advertising efforts into neighboring media markets, while conducting a full outreach and advertising effort for all households in the test area. Additionally, it is cost effective for the Census Bureau to advertise in this medium-sized market area.
To improve Internet self-response, the Census Bureau plans to continue testing multiple contact and notification strategies that we studied in the 2014 Census Test. For example, we will implement an Internet-push strategy, which proved to be an effective strategy in the 2014 Census Test. We will also include a “Notify Me” campaign, which allows respondents to register their email address or cell phone number through a Web site and to provide their mode preference for future contacts, by email or text message. In the 2014 Census Test, the participation rate for “Notify Me” was very low, so we are investigating methods for improving the understanding of and participation in this opportunity for early engagement. As mentioned above, this test will include a communications component to increase awareness and encourage Internet participation by potential respondents, including the “Notify Me” component of the test. Traditional advertising and outreach efforts used for the decennial census will be supplemented with targeted digital marketing for groups that we know to be hard-to-count from past censuses and surveys. We will use our planning database to identify hard-to-count groups at the block or tract level, and place advertisements with targeted messaging on digital sites frequented by these groups. In addition to the Internet, respondents will have an opportunity to respond via paper questionnaires or telephone interviews. Because the focus of this test is optimizing self-response, we will not conduct a NRFU operation in this test site.
The 2015 Census Test in the Savannah site also will continue Census Bureau efforts to make it easier for respondents to respond by allowing them to do so without providing a pre-assigned User Identification (ID) number associated with their address. This “non-ID” option was successfully implemented in the 2014 Census Test, but the response rates were lower for the non-ID panels in that test. However, the response rates for non-ID cases were determined not only by the respondent participation, but also on our ability to match the respondent-provided address information to the sample address from the Master Address File (MAF). In the Savannah site, building on the work from the 2014 Census Test, we will test our ability to improve the non-ID process by conducting real-time processing of responses lacking a pre-assigned User ID. In the 2014 Census Test, this was done via back-end processing; not while respondents were on-line. In the 2015 Census Test, for respondents who do not have an ID or do not use a pre-assigned User ID to complete their census form online, we will attempt to search for their address in the MAF to determine if it matches
The Test in the Savannah site is comprised of four phases: Communication, “Notify Me,” Self-response, and Focus groups.
“
For people responding via the Internet or on paper, we will offer telephone questionnaire assistance. On-line respondents will be able to do this directly through the Internet instrument, or by phoning the telephone questionnaire assistance number. People who prefer not to respond via a paper form or on the Internet also can call this number and complete the questionnaire for their household with a telephone agent.
In these focus groups, participants will be asked about their experiences with the 2015 Census Test, including: Their reactions and thoughts about being contacted by the Census Bureau by email and text messages, the perceived legitimacy of these contacts; their opinions on the use of administrative records by the Census Bureau; and the use of targeted Internet advertisements. Participants will also be asked about their general concerns with government collection and protection of confidential data. We will try to ascertain and discuss the outreach, promotion, media/mode or method that informed the respondent about the “Notify Me” option and/or the Census Test. We also will ask if the ability to respond without having to provide a pre-assigned User ID made the respondent more likely to participate. At the end of the focus groups, we may be asking participants for whom we have acquired additional data from a commercial third party to verify whether this information is accurate.
The Census Bureau Phone Center will recruit for these focus groups using existing phone number information we have for a sample of addresses in the 2015 Census Test. Phone Center staff will use screener questions that include the following requirements: (1) Focus group participants are required to have personally responded to the 2015 Census Test, (2) to be employed outside the Federal Government, and (3) to speak English.
The focus groups will be conducted in person, and all interviews will be tape-recorded to facilitate later analyses of the results. Participants will be asked to sign consent forms and give permission to be recorded. All participants will be informed that their response is voluntary and that the information they provide is confidential. Respondents will receive a $75 stipend after the group concludes.
The 2015 Census Test to be conducted in portions of Maricopa County, AZ will test alternative methods for conducting NRFU operations that are designed to increase efficiency and reduce costs. Rapid changes in technology over the past decade now provide the Census Bureau with an opportunity to use automation to conduct NRFU field operations during the 2020 Census. The Census Bureau is researching and testing the best contact strategies and methods for field data collection, case assignment management, and field staff administrative functions. In addition, the research in utilizing administrative records, including government and third party sources, seeks to test and determine the best methodologies for using administrative records in support of NRFU, adaptive design, and enumeration.
We also will be studying rules for determining which non-responding units will be visited, and how to collect information from households that do not self-respond. For instance, the Census Bureau will vary the approach to visiting households that have administrative records to determine the housing unit status (
The materials mailed to the respondents will inform them that the survey is mandatory in accordance with Title 13, United States Code, Sections 141 and 193. This information also will be available via a hyperlink from within the Internet instrument.
The results of the 2015 Census Test from both sites will help guide the design of additional 2020 Decennial Census testing later this decade. Testing in 2015 is necessary to build on the findings from the 2014 Census Test and to establish recommendations for contact strategies, response options, and field operation efficiencies that can be further refined and tested in later studies. At this point in the decade, the Census Bureau needs to acquire evidence showing whether the strategies being tested can reduce the cost per housing unit during a decennial census, while still providing high quality and accuracy of the census data.
Along with other results, the response rates to paper and Internet collection will be used to help inform 2020 Decennial program planning and
The specific goal for the Non-ID Processing research is to continue evaluating enhancements to the Census Bureau's process to collect address information needed for real-time matching and geocoding of Non-ID responses. Testing enhancements to Non-ID processing will inform planning for the 2020 Census design, as well as the infrastructure required to support large scale, real-time processing of electronic Non-ID response data submitted via the Internet or a Census-provided questionnaire application designed for mobile devices.
The goal of the advertising and outreach component of the Savannah site Test is twofold; first, we are supporting the entire OSR test by educating respondents and motivating self-response in an effort increase response rates. Secondarily, this is our first opportunity to evaluate the effects of new advertising media on response rates. Specifically we are interested in assessing digital and targeted digital advertising, mediums the Census Bureau did not employ in the 2010 Census but that are now available due to the evolution of technology. Results of this test will inform additional tests and will help the Census Bureau begin planning for the 2020 Census communications campaign.
The data collected from households and individuals during the 2015 Census Test will be used to research and evaluate new methodologies and systems to plan the 2020 Census. The Census Bureau will not publish any tabulations or population estimates using the results from this test. However, methodological papers may be written that include summary tallies of response characteristics or problems identified, and responses may be used to inform future research studies building upon the results of these tests. The Census Bureau plans to make the evaluation results of this study available to the general public.
In the Maricopa County site, where the Census Bureau will conduct NRFU, the 2015 Census Test is designed to collect information to:
• Research the cost and quality impacts of differing approaches to removing workload from the NRFU universe through the use of administrative records information.
• Research the cost and quality impacts of new NRFU contact strategies that make use of adaptive design and a re-engineered management structure employing an Area Operations Support Center housed at the Regional Office, automated payroll, automated training, and minimal face-to-face contact between enumerators and supervisors. For these experimental panels enumerators also provide work-time availability in advance, and the system assigns them the optimal number of cases to attempt each day, as well as the routing they should employ.
We are continuing our research on differing approaches to removing workload from the NRFU universe. In one approach we will remove all cases (both occupied and vacant) from the NRFU workload when we have administrative records data for the address. In a second approach we will make one contact attempt (for those cases considered occupied based on administrative records) before removing them from NRFU. The goal is to determine how these approaches vary regarding costs and quality measures. Results from both of these alternative strategies will be compared to a control panel that will conduct NRFU operations similar to how it was done in the 2010 Census. The testing will also obtain detailed data on when and how enumerators use proxy respondents.
The Census Bureau will conduct an additional NRFU data collection activity in the Maricopa site with enumerator-owned commercially provided mobile devices. The use of employee owned equipment/services is commonly referred to as “Bring Your Own Device” or BYOD. After selecting enumerators for this study, a sample of up to 5,000 households will be contacted at the end of the NRFU field operation using this methodology. These will be additional households not included in the other test activities (
• Design, develop, deploy, and support secure software solutions that can be installed on employee's personally owned commercially available mobile devices;
• Conduct interviews of respondents using these employee owned mobile devices; and
• Capture lessons learned for future operations, including: focus groups with a sub-set of the respondents, questionnaires for the enumerators, and collecting feedback from the local census office.
Focus groups also will be conducted in the Maricopa site to ask respondents about their experiences with the 2015 Census Test. Respondents will be recruited into groups with regard to their treatment and demographic characteristics (
All focus groups will be tape-recorded to facilitate a summary of the results. Participants will be asked to sign consent forms and give permission to be recorded. All participants will be informed that their response is voluntary and that the information they provide is confidential. Respondents will receive a $75 stipend after the focus group concludes.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
United States Patent and Trademark Office, Commerce.
Notice.
The United States Patent and Trademark Office (USPTO) implemented a pilot program (Extended
Eugenia A. Jones, Senior Legal Advisor, Office of Patent Legal Administration, Office of the Deputy Commissioner for Patent Examination Policy, by telephone at (571) 272-7727, or by mail addressed to: Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450, marked to the attention of Eugenia A. Jones.
Inquiries regarding this notice may be directed to the Office of Patent Legal Administration, by telephone at (571) 272-7701, or by electronic mail at
On December 8, 2010, after considering written comments from the public, the USPTO changed the missing parts examination procedures in certain nonprovisional applications by implementing a pilot program (
The USPTO is further extending the Extended Missing Parts Pilot Program until December 31, 2015. The USPTO may further extend the Extended Missing Parts Pilot Program, or may discontinue the pilot program after December 31, 2015, depending on the results of the program. The requirements of the program, which have not been modified, are reiterated below. Applicants are strongly cautioned to review the pilot program requirements before making a request to participate in the Extended Missing Parts Pilot Program.
The USPTO cautions all applicants that, in order to claim the benefit of a prior provisional application, the statute requires a nonprovisional application filed under 35 U.S.C. 111(a) to be filed within 12 months after the date on which the corresponding provisional application was filed.
In order for an applicant to be provided a 12-month (non-extendable) time period to pay the search and examination fees and any required excess claims fees in response to a Notice to File Missing Parts of Nonprovisional Application under the Extended Missing Parts Pilot Program, the applicant must satisfy the following conditions: (1) The applicant must submit a certification and request to participate in the Extended Missing Parts Pilot Program with the nonprovisional application on filing, preferably by using Form PTO/AIA/421, titled “Certification and Request for Extended Missing Parts Pilot Program”; (2) the application must be an original (
As required for all nonprovisional applications, the applicant will need to satisfy filing date requirements and publication requirements. In the rulemaking to implement the PLT and title II of the PLTIA, the Office provided that an application (other than an application for a design patent) filed on or after December 18, 2013, is not required to include a claim to be entitled to a filing date.
As noted above, applicants should request participation in the Extended Missing Parts Pilot Program by using Form PTO/AIA/421. For utility patent applications, the applicant may file the application and the certification and request electronically using the USPTO electronic filing system, EFS-Web, and selecting the document description of “Certification and Request for Missing Parts Pilot” for the certification and request on the EFS-Web screen. Form PTO/AIA/421 is available on the USPTO Web site at
The utility application including the certification and request to participate in the pilot program may also be hand-carried to the USPTO or filed by mail, for example, by Priority Mail Express® in accordance with 37 CFR 1.10. However, applicants are advised that, effective November 15, 2011, as provided in the Leahy-Smith America Invents Act, a new additional fee of $400.00 for a non-small entity ($200.00 for a small entity) is due for any nonprovisional utility patent application that is not filed by EFS-Web.
For plant patent applications, the applicant must file the application including the certification and request to participate in the pilot program by mail or hand-carried to the USPTO since plant patent applications cannot be filed electronically using EFS-Web.
If the applicant satisfies the requirements (discussed above) on filing of the nonprovisional application and the application is in condition for publication, the USPTO will send the applicant a Notice to File Missing Parts of Nonprovisional Application that sets a 12-month (non-extendable) time period to submit the search fee, the examination fee, any excess claims fees (under 37 CFR 1.16(h)-(j)), and the surcharge under 37 CFR 1.16(f) (for the late submission of the search fee and examination fee). The 12-month time period will run from the mailing date, or notification date for e-Office Action participants, of the Notice to File Missing Parts. For information on the e-Office Action program,
For a detailed discussion regarding treatment of applications that are not in condition for publication, processing of improper requests to participate in the program, and treatment of authorizations to charge fees,
Applicants are reminded that the disclosure of an invention in a provisional application should be as complete as possible because the claimed subject matter in the later-filed nonprovisional application must have support in the provisional application in order for the applicant to obtain the benefit of the filing date of the provisional application.
Furthermore, the nonprovisional application as originally filed must have a complete disclosure that complies with 35 U.S.C. 112(a) and is sufficient to support the claims submitted on filing and any claims submitted later during prosecution. New matter cannot be added to an application after the filing date of the application.
Applicants are also advised that the extended missing parts period does not affect the 12-month priority period provided by the Paris Convention for the Protection of Industrial Property (Paris Convention). Accordingly, any foreign filings must, in most cases, still be made within 12 months of the filing date of the provisional application if the
For additional reminders,
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by February 12, 2015.
Fred Licari, 571-372-0493.
In addition, JSS plans on collecting Civilian Employer Information (CE) from Service members. Defense Manpower Data Center (DMDC) will be ceasing its CEI Web site as of October 1, 2012. The service components as a result have been tasked to take over the collection of CEI prior to this date.
JSS in particular helps the Yellow Ribbon Reintegration Program and (in the future) also help Employer Support for the Guard and Reserve, reporting program activities, as required by a congressional mandate.
Written comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
In notice document 2014-30753 appearing on pages 34-35 in the issue of January 2, 2015, make the following correction:
On page 34, in the second column, under the
Defense Acquisition University, DoD.
Meeting notice.
The Department of Defense is publishing this notice to announce a Federal Advisory Committee meeting of the Defense Acquisition University Board of Visitors. This meeting will be open to the public.
Wednesday, January 28, 2015, from 9:00 a.m. to 12:00 p.m.
DAU Headquarters, 9820 Belvoir Road, Fort Belvoir, VA 22060.
Caren Hergenroeder, Protocol Director, DAU. Phone: 703-805-5134. Fax: 703-805-5940. Email:
This meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
Pursuant to 5 U.S.C. 552b and 41 CFR 102-3.140 through 102-3.165, and the availability of space, this meeting is open to the public. However, because of space limitations, allocation of seating will be made on a first-come, first served basis. Persons desiring to attend the meeting should call Ms. Caren Hergenroeder at 703-805-5134.
All written statements shall be submitted to the Designated Federal Officer for the Defense Acquisition University Board of Visitors, and this individual will ensure that the written statements are provided to the membership for their consideration.
Statements being submitted in response to the agenda mentioned in this notice must be received by the Designated Federal Officer at least five calendar days prior to the meeting which is the subject of this notice. Written statements received after this date may not be provided to or considered by the Defense Acquisition University Board of Visitors until its next meeting. Committee's Designated Federal Officer or Point of Contact: Ms. Christen Goulding, 703-805-5412,
Department of Defense, Defense Intelligence Agency, National Intelligence University.
Notice of closed meeting.
The Department of Defense is publishing this notice to announce that the following Federal Advisory Committee meeting of the National Intelligence University Board of Visitors has been scheduled. The meeting is closed to the public.
Tuesday, January 27, 2015 (7:00 a.m. to 5:00 p.m.) and Wednesday, January 28, 2015 (8:00 a.m. to 12:00 p.m.).
National Intelligence University, Joint Base Anacostia-Bolling, Washington, DC 20340-5100.
Dr. David R. Ellison, President, DIA National Intelligence University, Washington, DC 20340-5100, Phone: (202) 231-3344.
Due to difficulties beyond the control of the Department of Defense, the Designated Federal Officer was unable to submit the
This meeting is being held pursuant to the provisions of Subsection (d) of Section 10 of Public Law 92-463, as amended by section 5 of Public Law 94-409.
The entire meeting is devoted to the discussion of classified information as defined in 5 U.S.C. 552b(c)(1) and therefore will be closed. Pursuant to 41 CFR 102-3.105(j) and 102-3.140, and section 10(a)(3) of the Federal Advisory Committee Act of 1972, the public or interested organizations may submit written statements to the National Intelligence University Board of Visitors about its mission and functions. Written statements may be submitted at any time or in response to the stated agenda of a planned meeting of the National Intelligence University Board of Visitors. All written statements shall be submitted to the Designated Federal Officer for the National Intelligence University Board of Visitors, and this individual will ensure that the written statements are provided to the membership for their consideration. Contact information for the Designated Federal Officer can be obtained from the GSA's FACA Database—
Department of Defense.
Notice of meeting.
The Department of Defense is publishing this notice to announce the following Federal Advisory Committee meeting of the Judicial Proceedings since Fiscal Year 2012 Amendments Panel (“the Judicial Proceedings Panel” or “the Panel”). The meeting is open to the public.
A meeting of the Judicial Proceedings Panel will be held on Friday, January 30, 2015. The Public Session will begin at 9:00 a.m. and end at 5:00 p.m.
One Liberty Center, Suite 150, Conference Room, 875 North Randolph Street, Arlington VA 22203.
Ms. Julie Carson, Judicial Proceedings Panel, One Liberty Center, 875 N. Randolph Street, Suite 150, Arlington, VA 22203. Email:
This public meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
Department of the Army, DoD.
Notice of Availability.
The Department of the Army announces the availability of the Draft Programmatic Environmental Impact Statement (PEIS) pursuant to the National Environmental Policy Act of 1969 (NEPA) to analyze the potential impacts of training and mission support activities on the environmental resources of Fort Campbell and the surrounding region. The Draft PEIS analyzes the No Action Alternative, four distinct and separate Proposed Action Alternatives, and a fifth Proposed Action Alternative that combines two or more separate alternatives. The Proposed Action would meet the Senior Commander's Soldier training requirements, support the Range Complex Master Plan, and streamline the NEPA analysis process for routine range and training land actions occurring at Fort Campbell.
Comments must be received by February 27, 2015 to be considered in the preparation of the Final PEIS.
Please send written comments to Mr. Gene Zirkle, NEPA/Wildlife Program Manager, Environmental Division, Building 2159 13th Street, Fort Campbell, Kentucky 42223; or by email to
Please contact Mr. Gene Zirkle, NEPA/Wildlife Program Manager, Environmental Division, 270-798-9854, during normal working business hours Monday through Friday, 7:30 a.m. to 4:00 p.m. CST; or by email to
The Draft PEIS evaluates environmental and socioeconomic impacts of implementing proposed training and mission support activities at Fort Campbell and to the surrounding region. The resource areas considered for evaluation include air quality, airspace, biological resources, cultural resources, energy, facilities,
Fort Campbell covers 105,068 acres in Kentucky and Tennessee. Fort Campbell is home to the 101st Airborne Division ((Air Assault (101ABN DIV (AASLT)), the 5th Special Forces Group, 160th Special Operations Aviation Regiment (SOAR), and other tenant units. The mission of Fort Campbell is primarily to support and train the units stationed on the installation in preparation for a variety of assigned combat and combat related missions.
The purpose of the Proposed Action is to meet Senior Commander training requirements and provide forces that train on Fort Campbell with state-of-the-art and modernized equipment. The action would also implement site-specific range modernization needs contained within the Range Complex Master Plan. The action would also serve to streamline the NEPA analysis process for routine range and training land actions occurring at Fort Campbell that are currently not covered under a previous NEPA analysis or program/plan. The Draft PEIS analyzes the potential environmental impacts of the No Action Alternative—continuing existing training missions and environmental programs, and maintaining existing environmental conditions through current operational controls. The Proposed Action Alternatives include four distinct and separate alternatives and one alternative combining two or more separate alternatives:
• Alternative 1—Site-Specific Projects in Support of Soldier Training.
• Alternative 2—Implement the Use of Adaptable Use Zones to Facilitate Future Modernization and Range Facility Construction.
• Alternative 3—Streamline Review of Routine Range and Training Land Actions.
• Alternative 4—Programmatically Evaluate the Reactivation of Installation—Controlled Airspace.
• Alternative 5—Implement Two or More Proposed Action Alternatives.
Federally recognized Indian tribes, federal, state, and local agencies, organizations, and the public are invited to be involved in the Draft PEIS comment period by participating in meetings and/or submitting written comments regarding the Draft PEIS. Written comments will be accepted within 45 days of publication of the Notice of Availability in the
The Draft PEIS is available for review in the following local libraries:
• Clarksville-Montgomery County Library; 350 Pageant Lane, Suite 404, Clarksville, TN 37042.
• Christian County Library; 101 Bethel Street, Hopkinsville, KY 42240.
• Robert F. Sink Library; Building 38, Screaming Eagle Blvd., Fort Campbell, KY 42223.
• John L. Street Library; 244 Main Street, Cadiz, KY 42211.
• Stewart County Public Library; 102 Natcor Drive, Dover, TN 37058.
The Draft PEIS can also be viewed at the following Web site:
Please submit written comments to Mr. Gene Zirkle, NEPA/Wildlife Program Manager, Environmental Division, Building 2159 13th Street, Fort Campbell, KY 42223; or by email to
Office of Career Technical, and Adult Education (OCTAE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before March 16, 2015.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For specific questions related to collection activities, please contact Michelle Meier, 202-245-7890.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Department of Energy.
Notice of Open Meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Hanford. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, February 4, 2015, 8:30 a.m.-5:00 p.m.; Thursday, February 5, 2015, 8:30 a.m.-3:00 p.m.
Red Lion Hanford House, 802 George Washington Way, Richland, WA 99352.
Kristen Skopeck, Federal Coordinator, Department of Energy Richland Operations Office, 825 Jadwin Avenue, P.O. Box 550, A7-75, Richland, WA 99352; Phone: (509) 376-5803; or Email:
• Potential Draft Advice
Worker Health and Safety Protection Related to Chemical Vapor Exposures
• Discussion Topics
Central Plateau Inner Area Principles
Hanford Advisory Board Committee Reports
Tri-Party Agreement Agencies' Updates
Board Business
Take notice that on December 30, 2014, Equitrans, L.P. (Equitrans), filed an application pursuant to section 7(c) of the Natural Gas Act (NGA) and Part 157 of the Commission's Regulations, for a certificate of public convenience and necessity to own, construct, and operate certain pipeline and compression facilities located in West Virginia and Ohio (Ohio Valley Connector Project). Equitrans also requests authority to own, operate, and maintain the proposed facilities under its Part 284, Subpart G blanket transportation certificate pursuant to the terms and conditions of Equitrans' FERC Gas Tariff. The filing may also be viewed on the web at
Any questions regarding this application should be directed to Paul W. Diehl, Senior Counsel, Midstream, EQT Corporation, 625 Liberty Avenue, Suite 1700, Pittsburgh, PA 15222. Telephone (412) 395-5540, fax (412) 553-7781, and email:
Equitrans proposes to construct 50 miles of pipeline and 36,000 horsepower compression facilities located in West Virginia and Ohio. The project will provide up to 850,000 dekatherms per day of additional firm transportation service to mid-continent and Gulf Coast markets. The Project will provide tie-ins with Rockies Express Pipeline, LLC, Texas Eastern Transmission, LP (TETCO), and existing Equitrans Mainline and Sunrise Transmission System facilities. The estimated cost of these facilities will be $416.00 million and Equitrans proposes to create a separate rate zone for the Project. Equitrans proposes an in-service date of June 2016.
On June 20, 2014, the Commission staff granted Equitrans' request to use the National Environmental Policy Act (NEPA) Pre-Filing Process and assigned Docket No. PF14-13-000 to staff activities involving the proposed facilities. Now, as of the filing of this application on December 30, 2014, the NEPA Pre-Filing Process for this project has ended. From this time forward, this proceeding will be conducted in Docket No. CP15-41-000, as noted in the caption of this Notice.
Pursuant to Section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule will serve to notify
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 5 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
Motions to intervene, protests and comments may be filed electronically via the internet in lieu of paper; see, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings.
Comment Date: January 28, 2015.
On November 18, 2014, OHP Energy, LLC filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Applegate River Dam Hydroelectric Project (Applegate Project or project) to be located on the Applegate River, near Medford in Jackson County, Oregon. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission. The project would occupy 15.8 acres of U.S. Bureau of Land Management, 14.6 acres of U.S. Army Corps of Engineers (Corps), and 26.3 acres of U.S. Forest Service's lands.
The proposed project would utilize head from the existing Applegate dam, reservoir, and a low level intake pipe owned and operated by the Corps, and consist of the following new facilities: (1) A multi-level withdrawal structure to withdraw water from the reservoir at centerline elevations of 1,933, 1,955 and 1,967 feet mean sea level; (2) two 750-foot-long steel penstocks with diameters of 66-inches and 84-inches coupled with turbine shut-off valves at the intersection with the powerhouse and a bypass to the tailrace; (3) a 55- by 55-foot powerhouse containing two vertical Francis turbine units rated for a total of capacity of 10 megawatts; (4) two 20-foot-long integral steel draft tubes located within the powerhouse; (5) a 40-foot-long, 40-foot-wide open channel concrete tailrace; (6) an underground 15-mile-long, 35-kilovolt transmission line; (7) a substation; and (8) appurtenant facilities.
The estimated annual generation of the Applegate Project would be 28 gigawatt-hours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for electronic review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “NSPS for Municipal Waste Combustors (40 CFR part 60, subparts Ea and Eb) (Renewal)” (EPA ICR No. 1506.13, OMB Control No. 2060-0210) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before February 12, 2015.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2014-0045, to (1) EPA online using
EPA's policy is that all comments received will be included in the public
Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before February 12, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418-2991.
To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
Finally, the Order also broadens the existing enforcement process by permitting incumbent local exchange carriers (LECs) to file complaints alleging that the attachment rates demanded by electric utilities are unreasonable. The Order also encourages incumbent LECs that benefit from lower pole attachment costs to file data at the Commission that demonstrate that the benefits are being passed on to consumers.
Federal Communications Commission.
Notice; correction
The Enforcement Bureau published a document in the
Joy M. Ragsdale, 202-418-1697.
In the
Joy M. Ragsdale, Attorney Advisor, Federal Communications Commission, Enforcement Bureau, Investigations and Hearings Division, Room 4-C330, 445 12th Street SW., Washington, DC 20554. Joy Ragsdale may be contacted by telephone at (202) 418-1697 or by email at
Federal Communications Commission.
Notice; correction
The Enforcement Bureau published a document in the
Joy M. Ragsdale, 202-418-1697.
In the
Joy M. Ragsdale, Attorney Advisor, Federal Communications Commission, Enforcement Bureau, Investigations and Hearings Division, Room 4-C330, 445 12th Street SW., Washington, DC 20554. Joy Ragsdale may be contacted by telephone at (202) 418-1697 or by email at
Federal Communications Commission.
Notice; correction
The Enforcement Bureau published a document in the
Joy M. Ragsdale, 202-418-1697.
In the
Joy M. Ragsdale, Attorney Advisor, Federal Communications Commission, Enforcement Bureau, Investigations and Hearings Division, Room 4-C330, 445 12th Street SW., Washington, DC 20554. Joy Ragsdale may be contacted by telephone at (202) 418-1697 or by email at
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Monitoring and Reporting System for the Division of Community Health's Cooperative Agreement Programs—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
In September 2014, the Division of Community Health (DCH), Centers for Disease Control and Prevention (CDC), announced 93 awards under three new cooperative agreement programs authorized by the Public Health Service Act and the Prevention and Public Health Fund of the Affordable Care Act (FOA DP14-1417, FOA DP14-1418, and FOA DP14-1419PPHF14). The new programs are designed to address chronic diseases and risk factors for chronic diseases, including physical inactivity, poor diet, obesity, and tobacco use. The programs will provide support for implementation of broad, evidence- and practice-based policy and environmental improvements in a mix of 93 large and small cities, urban rural areas, tribes, multi-sectorial community coalitions, and racial and ethnic communities experiencing chronic disease disparities. Awardees include a combination of 41 state, local, and tribal governmental agencies and 52 non-governmental (private sector) entities.
CDC is seeking OMB approval to collect information from the new DCH awardees utilizing an electronic Policy, Environment, Programmatic, and Infrastructure Database (PEPID) designed to enable the accurate, reliable, uniform and timely submission to CDC of each awardee's work plan and progress reports. Monitoring allows CDC to determine whether an awardee is meeting performance goals, to make adjustments in the type and level of technical assistance provided to them, and to provide oversight of the use of federal funds. The burden per response for routine, semi-annual reporting through PEPID is three hours. The burden estimate also includes a one-time allocation of 15 hours for initial population of the PEPID system, which is annualized over the period of the information collection request.
CDC is also requesting OMB approval to conduct targeted, special purpose information collections on an as-needed basis. Due to substantial interest in the new cooperative agreement programs, CDC estimates that each DCH awardee could be asked to participate in one special purpose information collection per year to supplement routine progress reporting. Each special purpose information collection request will be submitted to OMB for approval through the Change Request mechanism, and will include the data collection instrument(s) and a description of purpose and methods. The ability to conduct special purpose data collections will enable CDC to effectively manage programmatic activities and respond to inquiries. The estimated burden per response for each special data request is six hours.
OMB approval is requested for three years. Participation is required for cooperative agreement awardees. There are no costs to respondents other than their time. The total estimated annualized burden hours are 1,596.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit either electronic or written comments on the collection of information by February 12, 2015.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Section 1701(a)(4) of the Public Health Service Act (42 U.S.C. 300u(a)(4)) authorizes FDA to conduct research relating to health information. Section 1003(d)(2)(C) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 393(b)(2)(c)) authorizes FDA to conduct research relating to drugs and other FDA regulated products in carrying out the provisions of the FD&C Act.
Prescription drug advertising regulations (21 CFR 202.1) require that broadcast (TV or radio) advertisements present the product's major risks in either audio or audio and visual parts of the advertisement; this is often called the “major statement.” There is concern that as currently implemented in DTC ads, the major statement is often too long, which may result in reduced consumer comprehension, minimization of important risk information and, potentially, therapeutic non-compliance due to fear of side effects. At the same time, there is concern that DTC TV ads do not include adequate risk information or leave out important information. These are conflicting viewpoints. A possible resolution is to limit the risks in the major statement to those that are serious and actionable, and include a disclosure to alert consumers that there are other product risks not included in the ad. For example, the disclosure could be, “This is not a full list of risks and side effects. Talk to your doctor and read the patient labeling for more information.” The Office of Prescription Drug Promotion plans to investigate the effectiveness of this “limited risks plus disclosure” strategy through empirical research.
Our primary hypothesis is that, relative to inclusion of the full major statement, providing limited risk information along with the disclosure about additional risks will promote improved consumer perception and understanding of serious and actionable drug risks. We will also investigate other questions such as whether overall drug risk and benefit perceptions are affected by these changes. To examine differences between experimental conditions, we will conduct inferential statistical tests such as analysis of variance. With the sample size described further in this document, we will have sufficient power to detect small-to-medium sized effects in the main study.
Participants will be consumers who self-identify as having been diagnosed with one of three possible medical conditions: Depression, high cholesterol, or insomnia. All participants will be 18 years of age or older. We will exclude individuals who work in healthcare or marketing settings because their knowledge and experiences may not reflect those of the average consumer. Recruitment and administration of the study will take place over the Internet. Participation is estimated to take approximately 30 minutes.
Within medical condition, participants will be randomly assigned to view one of four possible versions of a DTC ad, as depicted in table 1. One version will present the full major statement without the disclosure regarding additional risks (Conditions C, G, and K). This version will implement existing ads in the marketplace. Stimuli variations for the other three versions will be achieved by replacing the audio track of the original ad with the revised risk and disclosure statements described previously. Thus, a second version of the ad will include the full major statement plus the disclosure about additional risks (Conditions A, E, and I). A third version will include an abbreviated statement of risks without the disclosure about additional risks (Conditions D, H, and L). The fourth version will include an abbreviated statement of risks as well as the disclosure about additional risks (Conditions B, F, and J).
After viewing the ad, participants will respond to questions about information in the ad. Measures are designed to assess perception and understanding of product risks and benefits; perception and understanding of the disclosure about additional risks; perceptions of product quality; intention to seek more information about the product; and perceptions of trust/skepticism regarding product claims and the sponsor. The questionnaire is available upon request.
In the
FDA's specific responses to the comments are divided into sections. The first section addresses pharmaceutical industry comments from the Pharmaceutical Research and Manufacturers of America (PhRMA), Abbvie, Pfizer, and Eli Lilly and Company. The second section addresses comments from other organizations, including the Patient, Consumer, and Public Health Coalition, Washington Legal Foundation, Consumers Union, and Coalition for Healthcare Communication. The third section addresses comments from individuals (names indicated in-text when available). Many commenters indicated support for this research. We appreciate this support. Comments that are not PRA-relevant (
a.
b.
c.
d.
Regarding choice of medical conditions, we considered many variables in choosing the conditions to test, including acute versus chronic conditions. We acknowledge that the type of condition (for example, acute, symptomatic, chronic, silent) may interact with the risk profile of the product (for example, very risky to less risky). With these variables in mind, we chose conditions that represent chronic and symptomatic diseases and a range of risk profiles.
In considering how to allocate its limited resources for research, FDA must make choices and has identified its initial hypothesis as a useful one to help improve understanding of how different approaches in DTC television advertisements can impact consumer perception and understanding of drug risks. Once this proposed research is complete and published, the results will facilitate further consideration and analysis, including by outside entities, and may suggest additional topics for research.
A First Amendment analysis is likewise outside the scope of the current proposed research and FDA therefore declines to redesign the study along the lines suggested by the comment.
FDA estimates the burden of this collection of information as follows:
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given of the following meeting:
After Committee discussions, members of the public will have an opportunity to comment. Because of the Committee's full agenda and timeframe in which to cover the agenda topics, public comment will be limited. All public comments will be included in the record of the ACOT meeting. Meeting summary notes will be posted on Department's organ donation Web site at
The draft meeting agenda will be posted on
The public can join the meeting by:
1. (Audio Portion) Calling the Conference Phone Number (888-324-4391) and providing the Participant Code (2426); and
2. (Visual Portion) Connecting to the ACOT Adobe Connect Pro Meeting using the following URL and entering as GUEST:
The allocation of time may be adjusted to accommodate the level of expressed interest. Persons who do not file an advance request for a presentation, but desire to make an oral statement, may request it during the public comment period. Public participation and ability to comment will be limited to time as it permits.
Patricia Stroup, MBA, MPA, Executive
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Late notification due to delayed response from panel members.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Arthritis and Musculoskeletal and Skin Diseases Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to Public Law 92-463, notice is hereby given that the Substance Abuse and Mental Health Services Administration's (SAMHSA) Center for Substance Abuse Prevention (CSAP) Drug Testing Advisory Board (DTAB) will meet on February 5, 2015, from 11:00 a.m. to 5:00 p.m., and February 6, 2015, from 9:00 a.m. to 2:00 p.m. E.S.T. The DTAB will convene in closed sessions on these two days.
On February 5, 2015, from 11:00 a.m. to 5:00 p.m., and February 6, 2015, from 9:00 a.m. to 2:00 p.m., the Board will meet in closed session to discuss confidential hair testing best practices and data, as well as proposed revisions to the Mandatory Guidelines for Federal Workplace Drug Testing Programs. Therefore, this meeting is closed to the public as determined by the Administrator, SAMHSA, in accordance with 5 U.S.C. 552b(c)(4), 5 U.S.C. 552b(c)(9)(B), and 5 U.S.C. App. 2, Section 10(d).
Meeting information and a roster of DTAB members may be obtained by accessing the SAMHSA Advisory Committees Web site,
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Trusted Traveler Programs and U.S. APEC Business Travel Card. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before February 12, 2015 to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, at 202-325-0265.
This proposed information collection was previously published in the
The purpose of all of these programs is to provide prescreened travelers expedited entry into the United States. The benefit to the traveler is less time spent in line waiting to be processed. These Trusted Traveler Programs are provided for in 8 CFR 235.7 and 235.12.
This information collection also includes the U.S. Asia-Pacific Economic Cooperation (APEC) Business Travel Card (ABTC) Program, which is a voluntary program that allows U.S. citizens to use fast-track immigration lanes at airports in the 20 other APEC member countries. This program is mandated by the Asia-Pacific Economic Cooperation Business Travel Cards Act of 2011, Public Law 112-54, and provided for by 8 CFR 235.13 and 8 CFR 103.7(b)(1)(ii)(N).
The data is collected on the applications and kiosks for the Trusted Traveler Programs. Applicants may apply to participate in these programs by using the Global On-line Enrollment System (GOES) at
After arriving at the Federal Inspection Services area of the airport, participants in Global Entry can undergo a self-service inspection process using a Global Entry kiosk. During the self-service inspection, participants have their photograph and fingerprints taken, submit identifying information, and answer several questions about items they are bringing into the United States. When using the Global Entry kiosks, participants are required to declare all articles being brought into the United States pursuant to 19 CFR 148.11.
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Crewman's Landing Permit (CBP Form I-95). This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before February 12, 2015 to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, at 202-325-0265.
This proposed information collection was previously published in the
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: General Declaration (CBP Form 7507). This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before February 12, 2015 to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, at 202-325-0265.
This proposed information collection was previously published in the
CBP Form 7507 is authorized by 19 U.S.C. 1431, 1433, and 1644a; 39 U.S.C. 602(b) and provided for by 19 CFR 122.43, 122.48, 122.54, 122.73, and 122.144. This form is accessible at:
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of Inspectorate America Corporation, as a commercial gauger and laboratory.
Notice is hereby given, pursuant to CBP regulations, that Inspectorate America Corporation has been approved to gauge petroleum and certain petroleum products and accredited to test petroleum and certain petroleum products for customs purposes for the next three years as of June 24, 2014.
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1331 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.12 and 19 CFR 151.13, that Inspectorate America Corporation, 16025-C Jacintoport Blvd., Houston, TX 77015, has been approved to gauge petroleum and certain petroleum products and accredited to test petroleum and certain petroleum products for customs purposes, in accordance with the provisions of 19 CFR 151.12 and 19 CFR 151.13. Inspectorate America Corporation is approved for the following gauging procedures for petroleum and certain petroleum products per the American Petroleum Institute (API) Measurement Standards:
Inspectorate America Corporation is accredited for the following laboratory analysis procedures and methods for petroleum and certain petroleum products set forth by the U.S. Customs and Border Protection Laboratory Methods (CBPL) and American Society for Testing and Materials (ASTM):
Anyone wishing to employ this entity to conduct laboratory analyses and gauger services should request and receive written assurances from the entity that it is accredited or approved by the U.S. Customs and Border Protection to conduct the specific test or gauger service requested. Alternatively, inquiries regarding the specific test or gauger service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344-1060. The inquiry may also be sent to
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of approval of International Marine Consultants as a commercial gauger.
Notice is hereby given, pursuant to CBP regulations, that International Marine Consultants, has been approved to gauge petroleum and certain petroleum products for customs purposes for the next three years as of September 19, 2014.
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.13, that International Marine Consultants, #429 Padre Rufo St., San Juan, PR 00917, has been approved to gauge petroleum and certain petroleum products for customs purposes, in accordance with the provisions of 19 CFR 151.13. International Marine Consultants is approved for the following gauging procedures for petroleum and certain petroleum products from the American Petroleum Institute (API):
Anyone wishing to employ this entity to conduct gauger services should request and receive written assurances from the entity that it is approved by the U.S. Customs and Border Protection to conduct the specific gauger service requested. Alternatively, inquiries regarding the specific gauger service this entity is approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344-1060. The inquiry may also be sent to
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of approval of Inspectorate America Corporation, as a commercial gauger.
Notice is hereby given, pursuant to CBP regulations, that Inspectorate America Corporation has been approved to gauge petroleum and certain petroleum products for customs purposes for the next three years as of July 29, 2014.
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1331 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.13, that Inspectorate America Corporation, 11346 Pennywood Ave., Baton Rouge, LA 70809, has been approved to gauge petroleum and certain petroleum products for customs purposes, in accordance with the provisions of 19 CFR 151.13. Inspectorate America Corporation is approved for the following gauging procedures for petroleum and certain petroleum products per the American Petroleum Institute (API) Measurement Standards:
Anyone wishing to employ this entity to conduct gauger services should request and receive written assurances from the entity that it is approved by the U.S. Customs and Border Protection to conduct the specific gauger service requested. Alternatively, inquiries regarding the specific gauger service this entity is approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344-1060. The inquiry may also be sent to
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of Intertek USA, Inc., as a commercial gauger and laboratory.
Notice is hereby given, pursuant to CBP regulations, that Intertek USA, Inc. has been approved to gauge petroleum and certain petroleum products and accredited to test petroleum and certain petroleum products for customs purposes for the next three years as of July 30, 2014.
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1331 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.12 and 19 CFR 151.13, that Intertek USA, Inc., 2632 Ruby Ave., Gonzales, LA 70737, has been approved to gauge petroleum and certain petroleum products and accredited to test petroleum and certain petroleum products for customs purposes, in accordance with the provisions of 19 CFR 151.12 and 19 CFR 151.13. Intertek USA, Inc. is approved for the following gauging procedures for petroleum and certain petroleum products per the American Petroleum Institute (API) Measurement Standards:
Intertek USA, Inc. is accredited for the following laboratory analysis procedures and methods for petroleum and certain petroleum products set forth by the U.S. Customs and Border Protection Laboratory Methods (CBPL) and American Society for Testing and Materials (ASTM):
Anyone wishing to employ this entity to conduct laboratory analyses and gauger services should request and receive written assurances from the entity that it is accredited or approved by the U.S. Customs and Border Protection to conduct the specific test or gauger service requested. Alternatively, inquiries regarding the specific test or gauger service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344-1060. The inquiry may also be sent to
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of Intertek USA, Inc., as a commercial gauger and laboratory.
Notice is hereby given, pursuant to CBP regulations, that Intertek USA, Inc., has been approved to gauge petroleum and certain petroleum
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.12 and 19 CFR 151.13, that Intertek USA, Inc., 6050 Egret Ct., Benicia, CA 94510, has been approved to gauge petroleum and certain petroleum products and accredited to test petroleum and certain petroleum products for customs purposes, in accordance with the provisions of 19 CFR 151.12 and 19 CFR 151.13. Intertek USA, Inc. is approved for the following gauging procedures for petroleum and certain petroleum products from the American Petroleum Institute (API):
Intertek USA, Inc. is accredited for the following laboratory analysis procedures and methods for petroleum and certain petroleum products set forth by the U.S. Customs and Border Protection Laboratory Methods (CBPL) and American Society for Testing and Materials (ASTM):
Anyone wishing to employ this entity to conduct laboratory analyses and gauger services should request and receive written assurances from the entity that it is accredited or approved by the U.S. Customs and Border Protection to conduct the specific test or gauger service requested. Alternatively, inquiries regarding the specific test or gauger service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344-1060. The inquiry may also be sent to
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of approval of Inspectorate America Corporation, as a commercial gauger.
Notice is hereby given, pursuant to CBP regulations, that Inspectorate America Corporation has been approved to gauge petroleum and certain petroleum products for customs purposes for the next three years as of May 14, 2014.
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1331 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.13, that Inspectorate America Corporation, 101 Widgeon Drive, St. Rose, LA 70087, has been approved to gauge petroleum and certain petroleum products for customs purposes, in accordance with the provisions of 19 CFR 151.13. Inspectorate America Corporation is approved for the following gauging procedures for petroleum and certain petroleum products per the American Petroleum Institute (API) Measurement Standards:
Anyone wishing to employ this entity to conduct gauger services should request and receive written assurances from the entity that it is approved by the U.S. Customs and Border Protection to conduct the specific gauger service requested. Alternatively, inquiries regarding the specific gauger service this entity is approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344-1060. The inquiry may also be sent to
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This notice advises the public of the quarterly Internal Revenue Service interest rates used to calculate interest on overdue accounts (underpayments) and refunds (overpayments) of customs duties. For the calendar quarter beginning January 1, 2015, the interest rates for overpayments will be 2 percent for corporations and 3 percent for non-corporations, and the interest rate for underpayments will be 3 percent for both corporations and non-corporations. This notice is published for the convenience of the importing public and U.S. Customs and Border Protection personnel.
Michael P. Dean, Revenue Division, Collection and Refunds Branch, 6650 Telecom Drive, Suite #100, Indianapolis, Indiana 46278; telephone (317) 614-4882.
Pursuant to 19 U.S.C. 1505 and Treasury Decision 85-93, published in the
The interest rates are based on the Federal short-term rate and determined by the Internal Revenue Service (IRS) on behalf of the Secretary of the Treasury on a quarterly basis. The rates effective for a quarter are determined during the first-month period of the previous quarter.
In Revenue Ruling 2014-29, the IRS determined the rates of interest for the calendar quarter beginning January 1, 2015, and ending on March 31, 2015. The interest rate paid to the Treasury for underpayments will be the Federal short-term rate (1%) plus two percentage points (2%) for a total of three percent (3%) for both corporations and non-corporations. For corporate overpayments, the rate is the Federal short-term rate (1%) plus one percentage point (1%) for a total of two percent (2%). For overpayments made by non-corporations, the rate is the Federal short-term rate (1%) plus two percentage points (2%) for a total of three percent (3%). These interest rates are subject to change for the calendar quarter beginning April 1, 2015, and ending June 30, 2015.
For the convenience of the importing public and U.S. Customs and Border Protection personnel the following list of IRS interest rates used, covering the period from before July of 1974 to date, to calculate interest on overdue accounts and refunds of customs duties, is published in summary format.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Development (HUD).
Notice of a Federal Advisory Committee Meeting: Manufactured Housing Consensus Committee (MHCC).
This notice sets forth the schedule and proposed agenda for a teleconference meeting of the MHCC, General Subcommittee. The teleconference meeting is open to the public. The agenda provides an opportunity for citizens to comment on the business before the MHCC.
The teleconference meeting will be held on February 11, 2015, 1:00 p.m. to 4:00 p.m. Eastern Standard Time (EST). The teleconference numbers are: U.S. toll-free: 1-877-336-1829, and Access Code: 8764141.
Pamela Beck Danner, Administrator and Designated Federal Official (DFO), Office of Manufactured Housing Programs, Department of Housing and Urban Development, 451 Seventh Street SW., Room 9166, Washington, DC 20410, telephone 202-708-6423 (this is not a toll-free number). Persons who have difficulty hearing or speaking may access this number via TTY by calling the toll-free Federal Information Relay Service at 800-877-8339.
Notice of this meeting is provided in accordance with the Federal Advisory Committee Act, 5. U.S.C. App. 10(a)(2) through implementing regulations at 41 CFR 102-3.150. The MHCC was established by the National Manufactured Housing Construction and Safety Standards Act of 1974, (42 U.S.C. 5401 et. seq.) as amended by the Manufactured Housing Improvement Act of 2000 (Pub. L. 106-569). According to 42 U.S.C. 5403, as amended, the purposes of the MHCC are to:
• Provide periodic recommendations to the Secretary to adopt, revise, and interpret the Federal manufactured housing construction and safety standards;
• Provide periodic recommendations to the Secretary to adopt, revise, and interpret the procedural and enforcement regulations, including regulations specifying the permissible scope and conduct of monitoring; and
• Be organized and carry out its business in a manner that guarantees a fair opportunity for the expression and consideration of various positions and for public participation.
Office of the Secretary, Interior.
Meeting Notice.
The Department of the Interior, Office of the Secretary is announcing a public meeting of the
February 4, 2015, at 1:00 p.m.
Endeavor Room of the Captain Cook Hotel, 939 W. 5th Avenue, Anchorage, Alaska.
Dr. Philip Johnson, Department of the Interior, Office of Environmental Policy and Compliance, 1689 “C” Street, Suite 119, Anchorage, Alaska, (907) 271-5011.
The
The
Fish and Wildlife Service, Interior.
Notice of document availability.
We, the U.S. Fish and Wildlife Service, announce the availability of the Draft Recovery Plan for Baker's Larkspur (
We must receive any comments on the draft recovery plan on or before March 16, 2015.
You may obtain a copy of the recovery plan from our Web site at
Jennifer Norris, Field Supervisor, at the above street address or telephone number (see
Recovery of endangered or threatened animals and plants to the point where they are again secure, self-sustaining members of their ecosystems is a primary goal of our endangered species program and the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531
We listed Baker's larkspur throughout its entire range on January 26, 2000 (65 FR 4156). The species is endemic to Marin and Sonoma Counties, California, and is currently known from one small historical occurrence along Marshall-Petaluma Road in west Marin County. The remaining historical occurrence of Baker's larkspur occurs on decomposed shale in the mixed woodland plant community at an elevation range of 295 feet (ft) (90 meter (m)) to 672 ft (205 m) in moderately moist, shaded conditions on a shallow veneer of soil along an extensive north-facing slope. These habitat requirements limit the availability of suitable reintroduction sites with appropriate habitat conditions and compatible land use. Although habitat conversion and road maintenance were historically responsible for decreasing numbers, those threats have been curtailed. Because of the extreme range restriction of this already-narrow endemic, and its small population size, the plant is highly vulnerable to extinction from random events, including wildfire, herbivory, disease and pest outbreaks, and human disturbance.
The purpose of a recovery plan is to provide a framework for the recovery of species so that protection under the Act is no longer necessary. A recovery plan includes scientific information about the species and provides criteria that enable us to gauge whether downlisting or delisting the species is warranted. Furthermore, recovery plans help guide our recovery efforts by describing actions we consider necessary for each species' conservation and by estimating time and costs for implementing needed recovery measures.
The goal of this recovery plan is to improve the status of Baker's larkspur so that it can be downlisted. Due to the current lack of information about the species' biology and habitat requirements, the magnitude of current threats, and the precarious environment where the single historical population of the species persists, we are unable to determine appropriate delisting criteria; therefore, we focus on meeting the goal of downlisting. To meet the recovery goal of downlisting, the following objectives have been identified:
1. Expand the existing populations of Baker's larkspur and establish additional self-sustaining populations of Baker's larkspur throughout its known ecological and
2. Ensure existing and future populations are protected from incompatible uses, such as road maintenance.
3. Reduce herbivory by slugs, snails, and gophers to the point that it does not affect the species at a population level.
As Baker's larkspur meets reclassification criteria, we will review its status and consider it for downlisting on the Federal Lists of Endangered and Threatened Wildlife and Plants.
We solicit written comments on the draft recovery plan described in this notice. All comments received by the date specified above will be considered in development of a final recovery plan for Baker's larkspur. You may submit written comments and information by mail or in person to the Sacramento Fish and Wildlife Office at the above address (see
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We developed this recovery plan under the authority of section 4(f) of the Act, 16 U.S.C. 1533(f). We publish this notice under section 4(f) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of availability and request for comment; permit application, draft environmental assessment, proposed habitat conservation plan.
This notice advises the public that we, the U.S. Fish and Wildlife Service (Service), have prepared a draft environmental assessment (EA) under the National Environmental Policy Act of 1969, as amended (NEPA), in response to an application from Wright Solar Park, LLC (the applicant) for an incidental take permit (ITP) pursuant to the Endangered Species Act of 1973, as amended (Act). The applicant has prepared the draft Wright Solar Park Habitat Conservation Plan (HCP) to describe and implement a conservation plan that will minimize and mitigate environmental effects associated with the construction, operation, maintenance, and decommissioning of an up-to-200-megawatt photovoltaic power generating facility and implementation of conservation actions associated with the Habitat Conservation Plan in Merced County, California. We also announce a 60-day public comment period on the permit application, including the draft EA and the proposed HCP. We request data, comments, new information, or suggestions from the public, other concerned governmental agencies, the scientific community, Tribes, industry, or any other interested party.
To ensure consideration, please send your written comments by March 16, 2015.
Please address written comments to Mike Thomas, Chief, Conservation Planning Division, Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, CA 95825. Alternatively, you may send comments by facsimile to (916) 414-6713.
Mike Thomas, Chief, Conservation Planning Division, or Eric Tattersall, Deputy Assistant Field Supervisor, at the address in
This notice advises the public that we, the U.S. Fish and Wildlife Service (Service), have prepared a draft environmental assessment (EA) under the National Environmental Policy Act of 1969, as amended (NEPA), in response to an application from Wright Solar Park, LLC (the applicant) for an incidental take permit (ITP) pursuant to the Endangered Species Act of 1973, as amended (Act). The application addresses the proposed incidental take (take) of three animal species proposed as “covered species” within a 5,181-acre permit area during a proposed permit term of 40 years. The applicant has prepared the draft Wright Solar Park Habitat Conservation Plan (HCP) to describe and implement a conservation plan that will minimize and mitigate environmental effects associated with the construction, operation, maintenance, and decommissioning of an up-to-200-megawatt photovoltaic power generating facility and implementation of conservation actions associated with the Habitat Conservation Plan in Merced County, California. We also announce a 90-day public comment period on the permit application, including the draft EA and the proposed HCP. We request data, comments, new information, or suggestions from the public, other concerned governmental agencies, the scientific community, Tribes, industry, or any other interested party.
We publish this notice under the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321-4347
You may obtain copies of the draft EA and the draft HCP from the individuals in
Section 9 of the Act (16 U.S.C. 1531-1544
Regulations governing permits for endangered and threatened species are at 50 CFR 17.22 and 17.32, respectively. Section 10(a)(1)(B) of the Act contains provisions for issuing such incidental take permits to non-Federal entities for the take of endangered and threatened species, provided the following criteria are met:
(1) The taking will be incidental;
(2) The applicants will minimize and mitigate the impact of such taking to the maximum extent practicable;
(3) The applicants will develop a proposed HCP and ensure that adequate funding for the HCP will be provided;
(4) The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and
(5) The applicants will carry out any other measures that the Service may require as being necessary or appropriate for the purposes of the HCP.
The draft HCP addresses, and the applicant seeks incidental take authorization for, three animal species (two federally endangered and one federally threatened). The proposed permit would provide take authorization for all species identified in the draft HCP as covered species.
The following two federally listed as endangered species are proposed to be included as covered species in the proposed HCP:
The following federally listed as threatened species is proposed to be included as a covered species in the proposed HCP:
Central California distinct population segment of the California tiger salamander (
Implementation of activities proposed for coverage under the proposed ITP includes the following general categories:
(1) Construction and operation activities within solar sites;
(2) Management and maintenance activities within movement corridors;
(3) Management activities within the areas designated for conservation (conservation sites), including monitoring and reporting actions;
(4) Activities associated with implementation of the conservation program specified in the draft HCP;
(5) Decommissioning; and
(6) Implementation of the conservation program.
Construction-related activities could include grading and compaction, trenching, paving of access roads, installation of solar arrays, meteorological stations, transmission lines, septic leech fields, fencing, and landscaping. Construction of solar facilities is anticipated to be completed over a 26-month period from the commencement of the initial development, and is anticipated to be complete by late 2016. Operation-related activities could include solar panel maintenance, on-site parking, operation of solar modules, inspection, repair of equipment, and operation of lighting. Typical activities associated with decommissioning of the solar energy facility include removal of all solar electric systems, buildings, cabling, electrical components; breaking up of concrete pads and foundations; removal of access roads; additional grading; and replacement of soil disturbed from decommissioning. Preservation/enhancement and conservation plan management activities could include vegetation control (
The proposed covered activities related to development, operations, maintenance and decommissioning of the solar sites would result in the permanent or temporary disturbance of up to 2,731 acres of existing land cover within the proposed 5,181-acre permit area. The proposed covered activities related to management of the conservation sites would also result in some disturbance of land cover, but overall these actions are expected to benefit the covered species. The solar site parcels encompass 2,731 acres, and conservation sites total 2,450 acres. The covered lands within the solar park area consist of low rolling hills, and are currently actively used as dry-farmed agricultural land. Surrounding land uses include open space, rangeland, active and inactive agricultural land, and some existing and potential urban development. The proposed HCP conservation strategy prescribes conditions for implementing each covered activity that avoid or minimize potential take of the covered species, and identifies mitigation for species impacts that cannot be avoided.
Our proposed permit issuance decision triggers compliance with NEPA, which requires that environmental information be available to public officials and citizens before Federal decisions are made and before Federal actions are taken. We prepared the draft EA to inform the public of the proposed HCP; our proposed permit action; alternatives to that action; the environmental impacts of the alternatives, including the proposed action; and any irreversible commitments of resources; and to address comments received during early public scoping efforts.
The Service is providing notice of the availability of our draft EA, which evaluates the impacts of the Proposed Action Alternative (including the HCP), and a No Action Alternative.
We request data, comments, new information, or suggestions from the public, other concerned governmental agencies, the scientific community,
(1) Biological information concerning the species;
(2) Relevant data concerning the species;
(3) Additional information concerning the range, distribution, population size, and population trends of the species;
(4) Current or planned activities in the subject area and their possible impacts on the species; and
(5) The presence of archeological sites, buildings and structures, historic events, sacred and traditional areas, and other historic preservation concerns, which are required to be considered in project planning by the National Historic Preservation Act; and
(6) Identification of any other environmental issues that should be considered with regard to the proposed transmission line and permit action.
You may submit your comments and materials by one of the methods listed in
Before including your address, phone number, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—might be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Issuance of an incidental take permit is a Federal proposed action subject to compliance with NEPA. We will evaluate the application, associated documents, and any public comments we receive to determine whether the application meets the requirements of NEPA regulations and section 10(a) of the Act. If we determine that those requirements are met, we will issue a permit to the applicant for the incidental take of desert tortoise. We will make our final permit decision no sooner than 30 days after the public comment period closes.
Bureau of Indian Affairs, Interior.
Notice of request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Assistant Secretary—Indian Affairs is seeking comments on the renewal of Office of Management and Budget (OMB) approval for the collection of information titled “Tribal Energy Resource Agreements” (TERAs) under the Office of Indian Energy and Economic Development Office (IEED) authorized by OMB Control Number 1076-0167. This information collection expires March 31, 2015.
Submit comments on or before March 16, 2015.
You may submit comments on the information collection to Mr. Stephen Manydeeds, Chief, Division of Energy and Mineral Development, 13922 Denver West Parkway, Suite 200, Lakewood, CO 80401; facsimile: (303) 969-5273; email:
Mr. Stephen Manydeeds, telephone: (720) 407-0600.
The Energy Policy Act of 2005, 25 U.S.C. 3503 authorizes the Secretary of the Interior to approve individual Tribal Energy Resource Agreements (TERAs). The intent of these agreements is to promote tribal oversight and management of energy and mineral resource development on tribal lands and further the goal of Indian self-determination. A TERA offers a tribe an alternative for developing energy-related business agreements and awarding leases and granting rights-of-way for energy facilities without having to obtain further approval from the Secretary.
This information collection conducted under TERA regulations at 25 CFR 224 will allow IEED to determine the capacity of tribes to manage the development of energy resources on tribal lands. Information collection:
• Enables IEED to engage in a consultation process with tribes that is designed to foster optimal pre-planning of development proposals and speed up the review and approval process for TERA agreements;
• Provides wide public notice and opportunity for review of TERA agreements by the public, industry, and government agencies;
• Ensures that the public has an avenue for review of the performance of tribes in implementing a TERA;
• Creates a process for preventing damage to sensitive resources as well as ensuring that the public has fully communicated with the tribe in the petition process;
• Ensures that a tribe is fully aware of any attempt by the Department of the Interior to resume management authority over energy resources on tribal lands; and
• Ensures that the tribal government fully endorses any relinquishment of a TERA.
The Assistant Secretary—Indian Affairs requests your comments on this collection concerning: (a) The necessity of this information collection for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) The accuracy of the agency's estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used; (c) Ways we could enhance the quality, utility, and clarity of the information to be collected; and (d) Ways we could minimize the burden of the collection of the information on the respondents.
Please note that an agency may not conduct or sponsor, and an individual need not respond to, a collection of information unless it has a valid OMB Control Number.
It is our policy to make all comments available to the public for review at the location listed in the
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on December 8, 2014, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of One-E-Way, Inc. of Pasadena, California. A supplement was filed on December 24, 2014. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain wireless headsets by reason of infringement of certain claims of U.S. Patent No. 7,865,258 (“the `258 patent”) and U.S. Patent No. 8,131,391 (“the `391 patent”). The complaint further alleges that an industry in the United States exists or is in the process of being established as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, is avaiable for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain wireless headsets by reason of infringement of one or more of claims 3, 4, 8, 10, and 11 of the ‘258 patent and claims 1-6 and 10 of the ‘391 patent, and whether an industry in the United States exists or is in the process of being established as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2014).
By order of the Commission.
U.S. International Trade Commission.
Summary of Commission practice relating to administrative protective orders.
Since February 1991, the U.S. International Trade Commission (“Commission”) has issued an annual report on the status of its practice with respect to violations of its administrative protective orders (“APOs”) under title VII of the Tariff Act of 1930, in response to a direction contained in the Conference Report to the Customs and Trade Act of 1990. Over time, the Commission has added to its report discussions of APO breaches in Commission proceedings other than under title VII and violations of the Commission's rules including the rule on bracketing business proprietary information (“BPI”) (the “24-hour rule”), 19 CFR 207.3(c). This notice provides a summary of breach investigations completed during calendar year 2013. This summary addresses four proceedings under section 337 of the Tariff Act of 1930. There were no breach investigations in title VII proceedings or rules violation investigations completed in 2013. The Commission intends that this report inform representatives of parties to Commission proceedings as to some specific types of APO breaches encountered by the Commission and the corresponding types of actions the Commission has taken.
Carol McCue Verratti, Esq., Office of the General Counsel, U.S. International Trade Commission, telephone (202) 205-3088. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal at (202) 205-1810. General information concerning the Commission can also be obtained by accessing its Web site (
Representatives of parties to investigations or other proceedings conducted under title VII of the Tariff Act of 1930, section 337 of the Tariff Act of 1930, the North American Free Trade Agreement (NAFTA) Article 1904.13, and safeguard-related provisions such as sections 202 of the Trade Act of 1974, may enter into APOs that permit them, under strict conditions, to obtain access to BPI (title VII) and confidential business information (“CBI”) (safeguard-related provisions and section 337) of other parties or non-parties.
Since 1991, the Commission has published annually a summary of its actions in response to violations of Commission APOs and the 24-hour rule.
As part of the effort to educate practitioners about the Commission's current APO practice, the Commission Secretary issued in March 2005 a fourth edition of
The current APO form for antidumping and countervailing duty investigations, which was revised in March 2005, requires the applicant to swear that he or she will:
(1) Not divulge any of the BPI disclosed under this APO or otherwise obtained in this investigation and not otherwise available to him or her, to any person other than—
(i) Personnel of the Commission concerned with the investigation,
(ii) The person or agency from whom the BPI was obtained,
(iii) A person whose application for disclosure of BPI under this APO has been granted by the Secretary, and
(iv) Other persons, such as paralegals and clerical staff, who (a) are employed or supervised by and under the direction and control of the authorized applicant or another authorized applicant in the same firm whose application has been granted; (b) have a need thereof in connection with the investigation; (c) are not involved in competitive decision making for an interested party which is a party to the investigation; and (d) have signed the acknowledgment for clerical personnel in the form attached hereto (the authorized applicant shall also sign such acknowledgment and will be deemed responsible for such persons' compliance with this APO);
(2) Use such BPI solely for the purposes of the above-captioned Commission investigation or for judicial or binational panel review of such Commission investigation;
(3) Not consult with any person not described in paragraph (1) concerning BPI disclosed under this APO or otherwise obtained in this investigation without first having received the written consent of the Secretary and the party or the representative of the party from whom such BPI was obtained;
(4) Whenever materials
(5) Serve all materials containing BPI disclosed under this APO as directed by
(6) Transmit each document containing BPI disclosed under this APO:
(i) With a cover sheet identifying the document as containing BPI,
(ii) with all BPI enclosed in brackets and each page warning that the document contains BPI,
(iii) if the document is to be filed by a deadline, with each page marked “Bracketing of BPI not final for one business day after date of filing,” and
(iv) if by mail, within two envelopes, the inner one sealed and marked “Business Proprietary Information—To be opened only by [name of recipient]”, and the outer one sealed and not marked as containing BPI;
(7) Comply with the provision of this APO and section 207.7 of the Commission's rules;
(8) Make true and accurate representations in the authorized applicant's application and promptly notify the Secretary of any changes that occur after the submission of the application and that affect the representations made in the application (
(9) Report promptly and confirm in writing to the Secretary any possible breach of this APO; and
(10) Acknowledge that breach of this APO may subject the authorized applicant and other persons to such sanctions or other actions as the Commission deems appropriate, including the administrative sanctions and actions set out in this APO.
The APO further provides that breach of an APO may subject an applicant to:
(1) Disbarment from practice in any capacity before the Commission along with such person's partners, associates, employer, and employees, for up to seven years following publication of a determination that the order has been breached;
(2) Referral to the United States Attorney;
(3) In the case of an attorney, accountant, or other professional, referral to the ethics panel of the appropriate professional association;
(4) Such other administrative sanctions as the Commission determines to be appropriate, including public release of, or striking from the record any information or briefs submitted by, or on behalf of, such person or the party he represents; denial of further access to business proprietary information in the current or any future investigations before the Commission, and issuance of a public or private letter of reprimand; and
(5) Such other actions, including but not limited to, a warning letter, as the Commission determines to be appropriate.
APOs in safeguard investigations contain similar though not identical provisions.
The APOs in section 337 investigations differ from those in title VII investigations as there is no set form and provisions may differ depending on the investigation and the presiding administrative law judge. However, in practice, the provisions are often quite similar. Any person seeking access to CBI during a section 337 investigation including outside counsel for parties to the investigation, secretarial and support personnel assisting such counsel, and technical experts and their staff who are employed for the purposes of the investigation is required to read the APO, agree to its terms by letter filed with the Secretary of the Commission indicating that he agrees to be bound by the terms of the Order, agree not to reveal CBI to anyone other than another person permitted access by the Order, and agree to utilize the CBI solely for the purposes of that investigation.
In general, an APO in a section 337 investigation will define what kind of information is CBI and direct how CBI is to be designated and protected. The APO will state what persons will have access to the CBI and which of those persons must sign onto the APO. The APO will provide instructions on how CBI is to be maintained and protected by labeling documents and filing transcripts under seal. It will provide protections for the suppliers of CBI by notifying them of a Freedom of Information Act request for the CBI and providing a procedure for the supplier to take action to prevent the release of the information. There are provisions for disputing the designation of CBI and a procedure for resolving such disputes. Under the APO, suppliers of CBI are given the opportunity to object to the release of the CBI to a proposed expert. The APO requires a person who discloses CBI, other than in a manner authorized by the APO, to provide all pertinent facts to the supplier of the CBI and to the administrative law judge and to make every effort to prevent further disclosure. The APO requires all parties to the APO to either return to the suppliers or destroy the originals and all copies of the CBI obtained during the investigation.
The Commission's regulations provide for certain sanctions to be imposed if the APO is violated by a person subject to its restrictions. The names of the persons being investigated for violating an APO are kept confidential unless the sanction imposed is a public letter of reprimand. 19 CFR 210.34(c)(1). The possible sanctions are:
1. An official reprimand by the Commission.
2. Disqualification from or limitation of further participation in a pending investigation.
3. Temporary or permanent disqualification from practicing in any capacity before the Commission pursuant to 19 CFR 201.15(a).
4. Referral of the facts underlying the violation to the appropriate licensing authority in the jurisdiction in which the individual is licensed to practice.
5. Making adverse inferences and rulings against a party involved in the violation of the APO or such other action that may be appropriate. 19 CFR 210.34(c)(3).
Commission employees are not signatories to the Commission's APOs and do not obtain access to BPI through APO procedures. Consequently, they are not subject to the requirements of the APO with respect to the handling of CBI and BPI. However, Commission employees are subject to strict statutory and regulatory constraints concerning BPI and CBI, and face potentially severe penalties for noncompliance.
Upon finding evidence of an APO breach or receiving information that there is a reason to believe one has occurred, the Commission Secretary notifies relevant offices in the agency that an APO breach investigation has commenced and that an APO breach investigation file has been opened. Upon receiving notification from the Secretary, the Office of the General Counsel (“OGC”) prepares a letter of inquiry to be sent to the possible breacher over the Secretary's signature to ascertain the facts and obtain the possible breacher's views on whether a breach has occurred.
Sanctions for APO violations serve three basic interests: (a) Preserving the confidence of submitters of BPI/CBI that the Commission is a reliable protector of BPI/CBI; (b) disciplining breachers; and (c) deterring future violations. As the Conference Report to the Omnibus Trade and Competitiveness Act of 1988 observed, “[T]he effective enforcement of limited disclosure under administrative protective order depends in part on the extent to which private parties have confidence that there are effective sanctions against violation.” H.R. Conf. Rep. No. 576, 100th Cong., 1st Sess. 623 (1988).
The Commission has worked to develop consistent jurisprudence, not only in determining whether a breach has occurred, but also in selecting an appropriate response. In determining the appropriate response, the Commission generally considers mitigating factors such as the unintentional nature of the breach, the lack of prior breaches committed by the breaching party, the corrective measures taken by the breaching party, and the promptness with which the breaching party reported the violation to the Commission. The Commission also considers aggravating circumstances, especially whether persons not under the APO actually read the BPI/CBI. The Commission considers whether there have been prior breaches by the same person or persons in other investigations and multiple breaches by the same person or persons in the same investigation.
The Commission's rules permit an economist or consultant to obtain access to BPI/CBI under the APO in a title VII or safeguard investigation if the economist or consultant is under the direction and control of an attorney under the APO, or if the economist or consultant appears regularly before the Commission and represents an interested party who is a party to the investigation. 19 CFR 207.7(a)(3)(B) and (C); 19 CFR 206.17(a)(3)(B) and (C). Economists and consultants who obtain access to BPI/CBI under the APO under the direction and control of an attorney nonetheless remain individually responsible for complying with the APO. In appropriate circumstances, for example, an economist under the direction and control of an attorney may be held responsible for a breach of the APO by failing to redact APO information from a document that is subsequently filed with the Commission and served as a public document. This is so even though the attorney exercising direction or control over the economist or consultant may also be held responsible for the breach of the APO. In section 337 investigations, technical experts and their staff who are employed for the purposes of the investigation are required to sign onto the APO and agree to comply with its provisions.
The records of Commission investigations of alleged APO breaches in antidumping and countervailing duty cases, section 337 investigations, and safeguard investigations are not publicly available and are exempt from disclosure under the Freedom of Information Act, 5 U.S.C. 552.
The two types of breaches most frequently investigated by the Commission involve the APO's prohibition on the dissemination of BPI or CBI to unauthorized persons and the APO's requirement that the materials received under the APO be returned or destroyed and that a certificate be filed indicating which action was taken after the termination of the investigation or any subsequent appeals of the Commission's determination. The dissemination of BPI/CBI usually occurs as the result of failure to delete BPI/CBI from public versions of documents filed with the Commission or transmission of proprietary versions of documents to unauthorized recipients. Other breaches have included the failure to bracket properly BPI/CBI in proprietary documents filed with the Commission, the failure to report immediately known violations of an APO, and the failure to adequately supervise non-lawyers in the handling of BPI/CBI.
Occasionally, the Commission conducts APOB investigations that involve members of a law firm or consultants working with a firm who were granted access to APO materials by the firm although they were not APO signatories. In many of these cases, the firm and the person using the BPI/CBI mistakenly believed an APO application had been filed for that person. The Commission determined in all of these cases that the person who was a non-signatory, and therefore did not agree to be bound by the APO, could not be found to have breached the APO. Action could be taken against these persons, however, under Commission rule 201.15 (19 CFR 201.15) for good cause shown. In all cases in which action was taken, the Commission decided that the non-signatory was a person who appeared regularly before the Commission and was aware of the requirements and limitations related to APO access and should have verified his or her APO status before obtaining access to and using the BPI/CBI. The Commission notes that section 201.15 may also be available to issue sanctions to attorneys or agents in different factual circumstances in which they did not technically breach the APO, but when their actions or inactions did not demonstrate diligent care of the APO materials even though they appeared regularly before the Commission and were aware of the importance the Commission placed on the care of APO materials.
Counsel participating in Commission investigations have reported to the Commission potential breaches involving the electronic transmission of public versions of documents. In these cases, the document transmitted appears to be a public document with BPI or CBI omitted from brackets. However, the confidential information is actually retrievable by manipulating codes in software. The Commission has found that the electronic transmission of a public document containing BPI or CBI in a recoverable form was a breach of the APO.
Counsel have been cautioned to be certain that each authorized applicant files within 60 days of the completion of an import injury investigation or at the conclusion of judicial or binational review of the Commission's determination a certificate that to his or her knowledge and belief all copies of BPI/CBI have been returned or destroyed and no copies of such material have been made available to any person to whom disclosure was not specifically authorized. This requirement applies to each attorney, consultant, or expert in a firm who has been granted access to BPI/CBI. One firm-wide certificate is insufficient.
In addition, attorneys who are signatories to the APO representing
One attorney at the first firm breached an APO when he transferred to other law firms a draft complaint which he believed contained only public information, but instead included attachments containing CBI from a previous Commission section 337 investigation. Two attorneys at the firm to which the draft complaint had been first transferred also breached the APO. The lead attorney in this second law firm was responsible for the transfer of the draft complaint containing the CBI to a third law firm which was expected to use the document to draft a complaint in a new section 337 investigation. Upon learning that there might be CBI included in the draft complaint and its attachments, the lead attorney and another attorney in that firm assigned a non-signatory attorney to confirm whether documents were not redacted. The lead attorney at the third law firm to which the draft complaint was ultimately transferred and five other attorneys at that law firm were signatories to the complaint that was filed in the new section 337 investigation which included the attachments containing CBI from the original section 337 investigation.
The draft complaint was prepared by paralegals at the first law firm. They were expected to use only public information from the record of a previous Commission section 337 investigation and from public information obtained from the USPTO. The paralegals mistakenly included documents from the previous investigation that contained CBI, although the pages were clearly marked as containing CBI. The attorney responsible for the draft complaint did not check to be sure all the information in the complaint was public. He supervised the preparation of two USB drives, on which the assembled documents were copied, to be given to attorneys in two other law firms for use in a public filing for a future section 337 investigation. The Commission issued a warning letter to the attorney. In doing so, the Commission considered several mitigating circumstances, including the unintentional nature of the breach, that the attorney did not directly disclose the CBI to a non-signatory to the APO, that the attorney took immediate steps to investigate the situation that led to the inclusion of the CBI in the materials forwarded to the second firm, and that the attorney had not previously breached a Commission APO. The attorney received the warning letter for his breach because it was ultimately his responsibility to ensure that the draft complaint contained no CBI subject to the APO in the original section 337 investigation.
The Commission issued private letters of reprimand to two attorneys in the second law firm. The lead attorney was held responsible for the breach involving the transfer of the CBI to the non-signatories at the third law firm. The Commission found that the attorney was ultimately responsible for ensuring that the materials to be transferred to non-signatories for use in a matter unrelated to the original Commission investigation did not contain materials that were subject to the APO. The Commission considered certain mitigating circumstances; namely, the attorney was not responsible for the initial collection of the documents and was merely an intermediary in the chain of responsibility for passing the documents from one law firm to another, the firm took immediate steps to investigate its role in the breach, including locating and securing copies of the CBI at issue, and the attorney had not previously breached a Commission APO.
The lead attorney and a second attorney in the law firm were both found responsible for involving a non-signatory attorney in the investigation of the original APO breach. In reaching its decision to issue private letters of reprimand to both attorneys, the Commission considered the presence of aggravating circumstances. First, due to their actions, a non-signatory had access to and could have read the CBI. In addition, the breach was not inadvertent or unintentional and the Commission was not informed of this breach until the lead attorney responded to the Commission's request for information regarding the original breach. Finally, the Commission found that by involving the non-signatory in the investigation of the APO breach, the attorneys were interpreting the APO without seeking Commission guidance.
The Commission considered whether good cause existed, pursuant to Commission rule 201.15(a), to sanction the non-signatory attorney in the second firm who was assigned to investigate the initial APO breach. The Commission did not sanction the attorney but issued a warning letter. It considered the mitigating circumstances that the attorney exercised some caution by not actually reading the CBI documents and that he had not previously breached a Commission APO. The Commission noted that the attorney was aware that he was a non-signatory to the APO and noted that his actions directly contributed to the disclosure of CBI by agreeing to review the CBI documents as part of the investigation into the APO breach.
The Commission considered whether to sanction six attorneys at the third law firm because they were signatories to the public complaint which was filed in a new section 337 investigation, and which included the attachments containing CBI which were subject to an APO in an earlier investigation. Since none of the attorneys in the third firm were signatories to the APO in the original section 337 investigation the Commission did not find that they breached the APO but, instead, considered whether there was good cause to sanction them under Commission rule 201.15(a). The Commission determined that there was good cause to sanction the lead attorney and, thus, issued a private letter of reprimand to the lead attorney. The Commission noted that the attorney's actions directly led to the disclosure of CBI, which was clearly marked as such, by including the CBI as public exhibits to a complaint in a Commission investigation unrelated to the original section 337 investigation. It was ultimately the lead attorney's responsibility to ensure that the materials that were used in the filing of an unrelated complaint contained only materials that were not subject to the APO in the original investigation. The Commission noted certain mitigating circumstances; namely, the attorney was not responsible for the initial collection of the documents in question but was merely in the chain of receiving parties of the documents being transmitted from one law firm to another; the breach was unintentional; his law firm promptly investigated the circumstances of the breach and took immediate corrective measures to ensure that access to the CBI was restricted; he had not previously breached a Commission APO; and his firm assured the
The Commission also issued warning letters to the remaining five attorneys at the third law firm who were not signatories to the original APO and who had signed the complaint in the new unrelated investigation. Two of the five attorneys participated in filing the complaint. The Commission stated that the actions of the two attorneys directly led to the disclosure of CBI, which was clearly marked as such, by including the CBI as public exhibits to a complaint in a Commission investigation unrelated to the original section 337 investigation. In issuing warning letters, the Commission noted the same mitigating factors mentioned above with regard to the lead attorney in the third firm who received a private letter of reprimand.
The confidential version of the ID was filed by a paralegal at the law firm under the supervision of the two attorneys, both of whom had subscribed to the APO. The law firm later discovered the disclosure and notified the opposing party. The CBI was publicly available for six weeks. The law firm requested the district court to restrict access to the electronic filing and the district court complied. The district court notified the law firm that the court did not track access to ECF documents and could not determine who, if anyone had accessed the ID electronically. The law firm conducted an inquiry into whether any of the employees of the party it represented in the district court litigation had accessed the ID. The opposing party also conducted an inquiry into whether any of its employees had accessed the ID. From these inquires, the law firm is not aware of any unauthorized access to the CBI.
The Commission took into consideration the following mitigating factors: The breach was inadvertent; neither the attorneys at issue nor the law firm as a whole have breached a Commission APO in the past; the law firm discovered its own breach and took prompt steps to try to cure the breach; and the law firm implemented actions to improve internal procedures to make this type of breach less likely in the future. The Commission noted, however, that the law firm was not able to demonstrate whether anyone improperly accessed the CBI while it was publicly available so the Commission presumes public access to the confidential documents. Thus, in accordance with past Commission practice, the Commission issued private letters of reprimand to the two attorneys.
Counsel for the opposing party contacted the Secretary to the Commission to notify the Secretary that public versions of certain documents, specifically the public versions of a response to a petition for review and summary of the response, filed by the attorney in question contained CBI. The Secretary's office promptly removed the CBI documents from the public record. The attorney subsequently re-filed the public version documents without the CBI. An audit trail for the CBI documents showed that the documents were accessed by a non-party to the investigation.
The Commission issued a private letter of reprimand to the attorney for the APO breach. The Commission noted as mitigating factors that once the attorney was notified that the public version of the documents contained CBI the attorney moved quickly to cure the disclosure, the disclosure of the CBI was inadvertent, the attorney has not been involved in any alleged APO breach in the past two years, and the attorney had the ALJ's instruction not to over-redact in mind while preparing the public versions of the brief. However, the Commission points out that the aggravating factors were that the breach was discovered by opposing counsel and not the alleged breaching attorney, unauthorized persons accessed the CBI at issue, and the attorney acted unilaterally in deciding that certain information did not constitute CBI without seeking guidance from the Commission.
The law firm had internal practices and procedures regarding the protection of CBI governed by an APO including policies regarding the maintenance and transport of CBI. In some cases, the law firm did let its personnel perform work at home involving CBI as long as they used and kept the CBI in a locked facility, which could not be accessed by others. The paralegal had such an arrangement in his home.
The provisions of the APO did not specifically prohibit the transport of documents containing CBI to a home office or require personal custody and maintenance of the CBI in a locked facility of the home office after such transport. The lead attorney promptly notified the proper authorities after learning of the theft.
The Commission issued a letter to the lead attorney notifying the attorney that the Commission does not consider the law firm or lead attorney to have breached the APO, but the letter does recommend that the law firm review its procedures regarding the protection of CBI, and the law firm's enforcement of such procedures.
By order of the Commission.
Community Oriented Policing Services (COPS) Office, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Community Oriented Policing Services (COPS) Office, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional days until February 12, 2015.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
—Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
—Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
—Enhance the quality, utility, and clarity of the information to be collected; and/or
—Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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Under the Violent Crime and Control Act of 1994, the U.S. Department of Justice COPS Office would require the completion of the COPS Progress Report by recipients of COPS hiring and non-hiring grants. Grant recipients must complete this report in order to inform COPS of their activities with their awarded grant funding.
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The estimated public burden associated with this collection is 2000 hours. It is estimated that respondents will take up to 25 minutes each quarter to complete the quarterly progress report. The burden hours for collecting respondent data sum to 2000 hours (1200 respondents × .4167 hours × 4 times annually = 2000 hours).
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405B, Washington, DC 20530.
On January 7, 2015, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Northern District of Indiana in the lawsuit entitled
In August 2010, the United States filed suit against ARG Corporation (“ARG”) and Norbert Toubes under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) for the recovery of response costs incurred at the South Bend Lathe Superfund Site (the “Site”), in South Bend, Indiana. The Consent Decree resolves ARG's and Mr. Toubes' CERCLA liability for past response costs at the Site for a total of $500,000. ARG and Mr. Toubes are required to pay $250,000 on February 1, 2015 and $250,000 on August 1, 2015.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $4.25 (25 cents per page reproduction cost) payable to the United States Treasury.
National Aeronautics and Space Administration.
Notice of intent to grant exclusive license.
This notice is issued in accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i). NASA hereby gives notice of its intent to grant an exclusive license in the United States to practice the inventions described and claimed in USPN 6,133,036, Preservation of Liquid Biological Samples, NASA Case No. MSC-22616-2 and USPN 6,716,392, Preservation of Liquid Biological Samples, NASA Case No. MSC-22616-3 to Coated Preservative Products, LLC, having its principal place of business in Warner Robins, GA. The patent rights in these inventions have been assigned to the United States of America as
The prospective exclusive license may be granted unless within fifteen (15) days from the date of this published notice, NASA receives written objections including evidence and argument that establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7. Competing applications completed and received by NASA within fifteen (15) days of the date of this published notice will also be treated as objections to the grant of the contemplated exclusive license.
Objections submitted in response to this notice will not be made available to the public for inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Objections relating to the prospective license may be submitted to Patent Counsel, Office of Chief Counsel, NASA Johnson Space Center, 2101 NASA Parkway, Mail Code AL, Houston, Texas 77058; Phone (281) 483-3021; Fax (281) 483-6936.
Ms. Michelle P. Lewis, Technology Transfer and Commercialization Office, Johnson Space Center, 2101 NASA Parkway, Mail Code AO52, Houston, TX 77058, Phone (281) 483-8051. Information about other NASA inventions available for licensing can be found online at
National Science Foundation.
Notice and request for comments.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the National Science Foundation (NSF) will publish periodic summaries of proposed projects.
Written comments on this notice must be received by March 16, 2015 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 4201 Wilson Boulevard, Suite 1265, Arlington, Virginia 22230; telephone (703) 292-7556; or send email to
Comments are invited on (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
(c) Enter into contracts or other arrangements, or modifications thereof, for the carrying on, by organizations or individuals in the United States and foreign countries, including other government agencies of the United States and of foreign countries, of such scientific or engineering activities as the Foundation deems necessary to carry out the purposes of this Act, and, at the request of the Secretary of Defense, specific scientific or engineering activities in connection with matters relating to international cooperation or national security, and, when deemed appropriate by the Foundation, such contracts or other arrangements or modifications thereof, may be entered into without legal consideration, without performance or other bonds and without regard to section 5 of title 41, U.S.C.
National Science Foundation.
Notice and request for comments.
Under the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501
Written comments on this notice must be received by March 16, 2015, to be assured consideration. Comments received after that date will be considered to the extent practicable. Send comments to address below.
Suzanne H. Plimpton, Reports Clearance
ERCs conduct world-class research with an engineered systems perspective that integrates materials, devices, processes, components, control algorithms and/or other enabling elements to perform a well-defined function. These systems provide a unique academic research and education experience that involves integrative complexity and technological realization. The complexity of the systems perspective includes the factors associated with its use in industry, society/environment, or the human body.
ERCs enable and foster excellent education, integrate research and education, speed knowledge/technology transfer through partnerships between academe and industry, and prepare a more competitive future workforce. ERCs capitalize on diversity through participation in center activities and demonstrate leadership in the involvement of groups underrepresented in science and engineering.
Centers are required to submit annual reports on progress and plans, which will be used as a basis for performance review and determining the level of continued funding. To support this review and the management of a Center, ERCs also are required to submit management and performance indicators annually to NSF via a data collection Web site that is managed by a technical assistance contractor. These indicators are both quantitative and descriptive and may include, for example, the characteristics of center personnel and students; sources of cash and in-kind support; expenditures by operational component; characteristics of industrial and/or other sector participation; research activities; education activities; knowledge transfer activities; patents, licenses; publications; degrees granted to students involved in Center activities; descriptions of significant advances and other outcomes of the ERC effort. Such reporting requirements will be included in the cooperative agreement which is binding between the academic institution and the NSF.
Each Center's annual report will address the following categories of activities: (1) Vision and impact, (2) strategic plan, (3) research program, (4) innovation ecosystem and industrial collaboration, (5) education, (6) infrastructure (leadership, management, facilities, diversity) and (7) budget issues.
For each of the categories the report will describe overall objectives for the year, progress toward center goals, problems the Center has encountered in making progress towards goals and how they were overcome, plans for the future and anticipated research and other barriers to overcome in the following year, and specific outputs and outcomes.
In accordance with the Federal Advisory Committee Act (Pub., L. 92-463, as amended), the National Science Foundation announces the following meeting:
9:30 a.m., Tuesday, January 27, 2015.
NTSB Conference Center, 429 L'Enfant Plaza SW., Washington, DC 20594.
The one item is open to the public.
Telephone: (202) 314-6100.
The press and public may enter the NTSB Conference Center one hour prior to the meeting for set up and seating.
Individuals requesting specific accommodations should contact Rochelle Hall at (202) 314-6305 or by email at
The public may view the meeting via a live or archived webcast by accessing a link under “News & Events” on the NTSB home page at
Schedule updates, including weather-related cancellations, are also available at
Candi Bing at (202) 314-6403 or by email at
Terry Williams, (202) 314-6100 or by email at
Nuclear Regulatory Commission.
Notice of the OMB review of information collection and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The NRC published a
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The public may examine and have copied for a fee publicly-available documents, including the final supporting statement, at the NRC's Public Document Room, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The OMB clearance requests are available at the NRC's Web site:
Comments and questions should be directed to the OMB reviewer listed below by February 12, 2015. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Vlad Dorjets, Desk Officer, Office of Information and Regulatory Affairs (3150-XXXX), NEOB-10202, Office of Management and Budget, Washington, DC 20503.
Comments can also be emailed to
The NRC Clearance Officer is Tremaine Donnell, 301-415-6258.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of the OMB review of information collection and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The NRC published a
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The public may examine and have copied for a fee publicly-available documents, including the final supporting statement, at the NRC's Public Document Room, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The OMB clearance requests are available at the NRC's Web site:
Comments and questions should be directed to the OMB reviewer listed below by February 12, 2015February 12, 2015. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Vlad Dorjets, Desk Officer, Office of Information and Regulatory Affairs (3150-0047), NEOB-10202, Office of Management and Budget, Washington, DC 20503.
Comments can also be emailed to
The NRC Clearance Officer is Tremaine Donnell, 301-415-6258.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Order; modification.
The U.S. Nuclear Regulatory Commission (NRC) has issued a general license to the STP Nuclear Operating Company, authorizing the operation of the South Texas Project Electric Generating Station Independent Spent Fuel Storage Installation (ISFSI), in accordance with its regulations. The Order is being issued to STPNOC to impose additional security requirements because STPNOC has identified near term plans to store spent fuel in an ISFSI under the general license provisions of the NRC's regulations. The Order was issued on December 30, 2014, and became effective immediately.
Please refer to Docket ID NRC-2014-0281 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain-available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
L. Raynard Wharton, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-287-9196; email:
Pursuant to § 2.106 of title 10 of the
The NRC has issued a general license to STPNOC, authorizing the operation of an ISFSI, in accordance with the Atomic Energy Act of 1954, as amended and 10 CFR part 72. This Order is being issued to STPNOC because STPNOC has identified near-term plans to store spent fuel in an ISFSI under the general license provisions of 10 CFR part 72. The Commission's regulations at 10 CFR 72.212(b)(5), 10 CFR 50.54(p)(1), and 10 CFR 73.55(c)(5) require licensees to maintain safeguards contingency plan procedures to respond to threats of radiological sabotage and to protect the spent fuel against the threat of radiological sabotage, in accordance with 10 CFR part 73, appendix C. Specific physical security requirements are contained in 10 CFR 73.51 or 73.55, as applicable.
Inasmuch as an insider has an opportunity equal to, or greater than, any other person, to commit radiological sabotage, the Commission has determined these measures to be prudent. Comparable Orders have been issued to all licensees that currently store spent fuel or have identified near-term plans to store spent fuel in an ISFSI.
On September 11, 2001, terrorists simultaneously attacked targets in New York, NY, and near Washington, DC, using large commercial aircraft as weapons. In response to the attacks and intelligence information subsequently obtained, the Commission issued a number of Safeguards and Threat Advisories to its licensees to strengthen licensees' capabilities and readiness to respond to a potential attack on a nuclear facility. On October 16, 2002, the Commission issued Orders to the licensees of operating ISFSIs, to place the actions taken in response to the Advisories into the established regulatory framework and to implement additional security enhancements that emerged from NRC's ongoing comprehensive review. The Commission has also communicated with other Federal, State, and local government agencies and industry representatives to discuss and evaluate the current threat environment in order to assess the adequacy of security measures at licensed facilities. In addition, the Commission has
As a result of its consideration of current safeguards and security requirements, as well as a review of information provided by the intelligence community, the Commission has determined that certain additional security measures (ASMs) are required to address the current threat environment, in a consistent manner throughout the nuclear ISFSI community. Therefore, the Commission is imposing requirements, as set forth in Attachments 1 and 2 of this Order, on all licensees of these facilities. These requirements, which supplement existing regulatory requirements, will provide the Commission with reasonable assurance that the public health and safety, and the environment, continue to be adequately protected, and that the common defense and security continue to be adequately protected, in the current threat environment. These requirements will remain in effect until the Commission determines otherwise.
The Commission recognizes that licensees may have already initiated many of the measures set forth in Attachments 1 and 2 to this Order, in response to previously issued Advisories, or on their own. It also recognizes that some measures may not be possible or necessary at some sites, or may need to be tailored to accommodate the specific circumstances existing at STPNOC's facility, to achieve the intended objectives and avoid any unforeseen effect on the safe storage of spent fuel.
Although the ASMs implemented by licensees in response to the Safeguards and Threat Advisories have been sufficient to promote the common defense and security and to provide reasonable assurance of adequate protection of public health and safety, in light of the continuing threat environment, the Commission concludes that these actions should be embodied in an Order, consistent with the established regulatory framework.
To provide assurance that STPNOC is implementing prudent measures to achieve a consistent level of protection to address the current threat environment, STPNOC's general license issued pursuant to 10 CFR 72.210 shall be modified to include the requirements identified in Attachments 1 and 2 to this Order. In addition, pursuant to 10 CFR 2.202, I find that, in light of the common defense and security circumstances described above, the public health, safety, and interest require that this Order be effective immediately.
Accordingly, pursuant to Sections 53, 103, 104, 147, 149, 161b, 161i, 161o, 182, and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202 and 10 CFR parts 50, 72, and 73,
A. STPNOC shall comply with the requirements described in Attachments 1 and 2 to this Order, except to the extent that a more stringent requirement is set forth in the South Texas Project Electric Generating Station's physical security plan. STPNOC shall demonstrate its ability to comply with the requirements in Attachments 1 and 2 to the Order no later than 365 days from the date of this Order or 90 days before the first day that spent fuel is initially placed in the ISFSI, whichever is earlier. STPNOC must implement these requirements before initially placing spent fuel in the ISFSI. Additionally, STPNOC must receive written verification from the NRC (Office of Nuclear Material Safety and Safeguards) that it has adequately demonstrated compliance with these requirements before initially placing spent fuel in the ISFSI.
B. 1. STPNOC shall, within twenty (20) days of the date of this Order, notify the Commission: (1) if it is unable to comply with any of the requirements described in Attachments 1 and 2; (2) if compliance with any of the requirements is unnecessary, in its specific circumstances; or (3) if implementation of any of the requirements would cause STPNOC to be in violation of the provisions of any Commission regulation or the facility license. The notification shall provide STPNOC's justification for seeking relief from, or variation of, any specific requirement.
2. If STPNOC considers that implementation of any of the requirements described in Attachments 1 and 2 to this Order would adversely impact the safe storage of spent fuel, STPNOC must notify the Commission, within twenty (20) days of this Order, of the adverse safety impact, the basis for its determination that the requirement has an adverse safety impact, and either a proposal for achieving the same objectives specified in Attachments 1 and 2 requirements in question, or a schedule for modifying the facility, to address the adverse safety condition. If neither approach is appropriate, STPNOC must supplement its response to Condition B.1 of this Order to identify the condition as a requirement with which it cannot comply, with attendant justifications, as required under Condition B.1.
C. 1. STPNOC shall, within twenty (20) days of this Order, submit to the Commission a schedule for achieving compliance with each requirement described in Attachments 1 and 2.
2. STPNOC shall report to the Commission when it has achieved full compliance with the requirements described in Attachments 1 and 2.
D. All measures implemented or actions taken in response to this Order shall be maintained until the Commission determines otherwise.
STPNOC's response to Conditions B.1, B.2, C.1, and C.2, above, shall be submitted in accordance with 10 CFR 72.4. In addition, submittals and documents produced by STPNOC as a result of this Order, that contain Safeguards Information as defined by 10 CFR 73.22, shall be properly marked and handled, in accordance with 10 CFR 73.21 and 73.22.
The Director, Office of Nuclear Material Safety and Safeguards, may, in writing, relax or rescind any of the above conditions, for good cause.
In accordance with 10 CFR 2.202, STPNOC must, and any other person adversely affected by this Order may, submit an answer to this Order within 20 days of its publication in the
The answer may consent to this Order. If the answer includes a request for a hearing, it shall, under oath or affirmation, specifically set forth the matters of fact and law on which STPNOC relies and the reasons as to why the Order should not have been issued. If a person other than STPNOC requests a hearing, that person shall set forth with particularity the manner in which his/her interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f).
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave
To comply with the procedural requirements of E-Filing, at least ten 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC's guidance available on the NRC's public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) first class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary of the Commission, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
If a hearing is requested by STPNOC or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), STPNOC may, in addition to requesting a hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the immediate effectiveness of the Order on the grounds that the Order, including the need for immediate effectiveness, is not based on adequate evidence, but on mere suspicion, unfounded allegations, or error.
In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions as specified in Section III shall be final twenty (20) days from the date this Order is
For the Nuclear Regulatory Commission.
1. These additional security measures (ASMs) are established to delineate an independent spent fuel storage installation (ISFSI) licensee's responsibility to enhance security measures related to authorization for unescorted access to the protected area of an ISFSI in response to the current threat environment.
2. Licensees whose ISFSI is collocated with a power reactor may choose to comply with the U.S. Nuclear Regulatory Commission (NRC)-approved reactor access authorization program for the associated reactor as an alternative means to satisfy the provisions of sections B through G below. Otherwise, licensees shall comply with the access authorization and fingerprinting requirements of section B through G of these ASMs.
3. Licensees shall clearly distinguish in their 20-day response which method they intend to use in order to comply with these ASMs.
1. The licensee shall develop, implement and maintain a program, or enhance its existing program, designed to ensure that persons granted unescorted access to the protected area of an ISFSI are trustworthy and reliable and do not constitute an unreasonable risk to the public health and safety for the common defense and security, including a potential to commit radiological sabotage.
a. To establish trustworthiness and reliability, the licensee shall develop, implement, and maintain procedures for conducting and completing background investigations, prior to granting access. The scope of background investigations must address at least the past three years and, as a minimum, must include:
i. Fingerprinting and a Federal Bureau of Investigation (FBI) identification and criminal history records check (CHRC). Where an applicant for unescorted access has been previously fingerprinted with a favorably completed CHRC, (such as a CHRC pursuant to compliance with orders for access to safeguards information) the licensee may accept the results of that CHRC, and need not submit another set of fingerprints, provided the CHRC was completed not more than three years from the date of the application for unescorted access.
ii. Verification of employment with each previous employer for the most recent year from the date of application.
iii. Verification of employment with an employer of the longest duration during any calendar month for the remaining next most recent two years.
iv. A full credit history review.
v. An interview with not less than two character references, developed by the investigator.
vi. A review of official identification (
vii. Licensees shall confirm eligibility for employment through the regulations of the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, and shall verify and ensure, to the extent possible, the accuracy of the provided social security number and alien registration number, as applicable.
b. The procedures developed or enhanced shall include measures for confirming the term, duration, and character of military service for the past three years, and/or academic enrollment and attendance in lieu of employment, for the past five years.
c. Licensees need not conduct an independent investigation for individuals employed at a facility who possess active “Q” or “L” clearances or possess another active U.S. Government-granted security clearance (
d. A review of the applicant's criminal history, obtained from local criminal justice resources, may be included in addition to the FBI CHRC, and is encouraged if the results of the FBI CHRC, employment check, or credit check disclose derogatory information. The scope of the applicant's local criminal history check shall cover all residences of record for the past three years from the date of the application for unescorted access.
2. The licensee shall use any information obtained as part of a CHRC solely for the purpose of determining an individual's suitability for unescorted access to the protected area of an ISFSI.
3. The licensee shall document the basis for its determination for granting or denying access to the protected area of an ISFSI.
4. The licensee shall develop, implement, and maintain procedures for updating background investigations for persons who are applying for reinstatement of unescorted access. Licensees need not conduct an independent reinvestigation for individuals who possess active “Q” or “L” clearances or possess another active U.S. Government granted security clearance,
5. The licensee shall develop, implement, and maintain procedures for reinvestigations of persons granted unescorted access, at intervals not to exceed five years. Licensees need not conduct an independent reinvestigation for individuals employed at a facility who possess active “Q” or “L” clearances or possess another active U.S. Government granted security clearance,
6. The licensee shall develop, implement, and maintain procedures designed to ensure that persons who have been denied unescorted access authorization to the facility are not allowed access to the facility, even under escort.
7. The licensee shall develop, implement, and maintain an audit program for licensee and contractor/vendor access authorization programs that evaluate all program elements and include a person knowledgeable and practiced in access authorization program performance objectives to assist in the overall assessment of the site's program effectiveness.
1. In a letter to the NRC, the licensee must nominate an individual who will review the results of the FBI CHRCs to
2. No person may have access to Safeguards Information (SGI) or unescorted access to any facility subject to NRC regulation, if the NRC has determined, in accordance with its administrative review process based on fingerprinting and an FBI identification and CHRC, that the person may not have access to SGI or unescorted access to any facility subject to NRC regulation.
3. All fingerprints obtained by the licensee under this Order, must be submitted to the Commission for transmission to the FBI.
4. The licensee shall notify each affected individual that the fingerprints will be used to conduct a review of his/her criminal history record and inform the individual of the procedures for revising the record or including an explanation in the record, as specified in the “Right to Correct and Complete Information,” in section F of these ASMs.
5. Fingerprints need not be taken if the employed individual (
1. A licensee shall not base a final determination to deny an individual unescorted access to the protected area of an ISFSI solely on the basis of information received from the FBI involving: an arrest more than one (1) year old for which there is no information of the disposition of the case, or an arrest that resulted in dismissal of the charge, or an acquittal.
2. A licensee shall not use information received from a CHRC obtained pursuant to this Order in a manner that would infringe upon the rights of any individual under the First Amendment to the Constitution of the United States, nor shall the licensee use the information in any way that would discriminate among individuals on the basis of race, religion, national origin, sex, or age.
1. For the purpose of complying with this Order, licensees shall, using an appropriate method listed in 10 CFR 73.4, submit to the NRC's Division of Facilities and Security, Mail Stop T-03B46M, one completed, legible standard fingerprint card (Form FD-258, ORIMDNRCOOOZ) or, where practicable, other fingerprint records for each individual seeking unescorted access to an ISFSI, to the Director of the Division of Facilities and Security, marked for the attention of the Division's Criminal History Check Section. Copies of these forms may be obtained by writing the Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by calling 301-415-5877, or by email to
2. The NRC will review submitted fingerprint cards for completeness. Any Form FD-258 fingerprint record containing omissions or evident errors will be returned to the licensee for corrections. The fee for processing fingerprint checks includes one re-submission if the initial submission is returned by the FBI because the fingerprint impressions cannot be classified. The one free re-submission must have the FBI Transaction Control Number reflected on the re-submission. If additional submissions are necessary, they will be treated as initial submittals and will require a second payment of the processing fee.
3. Fees for processing fingerprint checks are due upon application. The licensee shall submit payment of the processing fees electronically. To be able to submit secure electronic payments, licensees will need to establish an account with Pay.Gov (
4. The Commission will forward to the submitting licensee all data received from the FBI as a result of the licensee's application(s) for CHRCs, including the FBI fingerprint record.
1. Prior to any final adverse determination, the licensee shall make available to the individual the contents of any criminal history records obtained from the FBI for the purpose of assuring correct and complete information. Written confirmation by the individual of receipt of this notification must be maintained by the licensee for a period of one (1) year from the date of notification.
2. If, after reviewing the record, an individual believes that it is incorrect or incomplete in any respect and wishes to change, correct, or update the alleged deficiency, or to explain any matter in the record, the individual may initiate challenge procedures. These procedures include either direct application by the individual challenging the record to the agency (
1. The licensee shall develop, implement, and maintain a system for personnel information management with appropriate procedures for the protection of personal, confidential information. This system shall be designed to prohibit unauthorized access to sensitive information and to prohibit modification of the information without authorization.
2. Each licensee who obtains a criminal history record on an individual pursuant to this Order shall establish and maintain a system of files and procedures, for protecting the record and the personal information from unauthorized disclosure.
3. The licensee may not disclose the record or personal information collected and maintained to persons other than the subject individual, his/her representative, or to those who have a need to access the information in performing assigned duties in the process of determining suitability for unescorted access to the protected area of an ISFSI. No individual authorized to have access to the information may re-disseminate the information to any other individual who does not have the appropriate need to know.
4. The personal information obtained on an individual from a CHRC may be transferred to another licensee if the gaining licensee receives the individual's written request to re-disseminate the information contained in his/her file, and the gaining licensee verifies information such as the individual's name, date of birth, social security number, sex, and other applicable physical characteristics for identification purposes.
5. The licensee shall make criminal history records, obtained under this section, available for examination by an authorized representative of the NRC to determine compliance with the regulations and laws.
Nuclear Regulatory Commission.
Director's decision under 10 CFR 2.206; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has issued a director's decision with regard to a petition dated April 29, 2012, filed by Mr. Barry Quigley (the petitioner), requesting that the NRC take action with regard to Braidwood Station, Units 1 and 2, and Byron Station, Units 1 and 2. The petitioner's requests and the director's decision are included in the
Please refer to Docket ID NRC-2012-0203 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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•
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Notice is hereby given that the Director, Office of Nuclear Reactor Regulation, has issued a director's decision (ADAMS Accession No. ML14239A313), on a petition filed by the petitioner on April 20, 2012 (ADAMS Accession No. ML12130A318).
The petitioner requested that the NRC immediately shutdown Braidwood Station, Units 1 and 2, and Byron Station, Units 1 and 2, until all turbine building (TB) high-energy line break (HELB) concerns were identified and those important to safety were corrected.
As the basis of the request, the petitioner asserted:
• An adequate supply of combustion air for the emergency diesel generators (EDGs) is threatened because the combustion air can be diluted with steam. Although the combustion air is drawn from an air shaft (not the TB), it is also the same air shaft that supplies ventilation for the EDG room. Under certain conditions, the ventilation damper alignment is such that steam that enters the EDG room from the ventilation exhaust can back flow into the inlet air shaft. From there it can be drawn into the engine, potentially starving the engine of air.
• The effects of high temperature in the engineered safeguards features (ESF) switchgear (SWGR) rooms on the protective relaying setpoints have not been evaluated. The concern is that high temperatures could alter the setpoints such that protective actions occur under normal loading conditions.
• The current method of analysis for TB HELB uses a “lumped volume” approach wherein the mass and energy (M&E) of the ruptured line mixes instantly with the entire volume before flowing into the areas of concern. Because this substantially reduces the energy flow, it does not always give conservative results. For example, the petitioner's preliminary assessment using the
• There has been no structured and detailed review of the licensing requirements for HELB.
On May 14, 2012, the petitioner and the licensee met with the NRC's Petition Review Board. The meeting provided the petitioner and the licensee an opportunity to provide additional information and to clarify issues cited in the petition. On November 15, 2012, the petitioner and the licensee again met with the NRC's Petition Review Board at the request of the Petition Review Board. The transcripts of these meetings were treated as supplements to the petition and are available in the ADAMS (Accession Nos. ML 12145A633 and ML 12347A354, respectively).
The NRC sent a copy of the proposed director's decision to the petitioner and the licensee for comment on June 18, 2014. The petitioner and the licensee were asked to provide comments within 30 days on any part of the proposed director's decision that was considered to be erroneous or any issues in the petition that were not addressed. The staff did not receive any comments on the proposed director's decision.
The Director of Nuclear Reactor Regulation has determined that the request, to require immediate shutdown of Braidwood Station, Units 1 and 2, and Byron Station, Units 1 and 2, until all turbine building (TB) high-energy line break (HELB) concerns were identified and those important to safety were corrected be denied. The Director of Nuclear Reactor Regulation has determined to partially grant the petition in that the licensing basis requirements for high energy line break were reviewed during the review of the application for the Braidwood/Byron measurement uncertainty recapture uprate, which was completed in the February 7, 2014 (ADAMS accession No. ML13281A000). The reasons for this decision are explained in the director's decision NRC-2012-0203 pursuant to Section 2.206 of Title 10 of the
The NRC will file a copy of the director's decision with the Secretary of the Commission for the Commission's review in accordance with 10 CFR 2.206. As provided by this regulation, the director's decision will constitute the final action of the Commission 25 days after the date of the decision unless the Commission, on its own motion, institutes a review of the director's decision in that time.
For the Nuclear Regulatory Commission.
On January 6, 2015, members of the Temporary Emergency Committee of the Board of Governors of the United States Postal Service met in Washington, DC, via teleconference, and voted unanimously to move their previously announced January 7, 2015, meeting to January 6, 2015. In addition, the members voted to close the meeting to public observation and to revise the items to be considered. The Committee determined that no earlier public notice was possible.
1. Strategic Issues.
2. Pricing.
3. Financial Matters.
4. Governors' Executive Session.
The General Counsel of the United States Postal Service certified that the meeting might be closed under the Government in the Sunshine Act.
Requests for information about the meeting should be addressed to the Secretary of the Board, Julie S. Moore, at 202-268-4800.
In accordance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 which provides opportunity for public comment on new or revised data collections, the Railroad Retirement Board (RRB) will publish periodic summaries of proposed data collections.
Under section 3(f)(3) of the Railroad Retirement Act (RRA), the total monthly benefits payable to a railroad employee and his/her family are guaranteed to be no less than the amount which would be payable if the employee's railroad service had been covered by the Social Security Act. This is referred to as the Social Security Overall Minimum Guarantee, which is prescribed in 20 CFR 229. To administer this provision, the Railroad Retirement Board (RRB) requires information about a retired employee's spouse and child(ren) who would not be eligible for benefits under the RRA but would be eligible for benefits under the Social Security Act if the employee's railroad service had been covered by that Act. The RRB obtains the required information by the use of Forms G-319, Statement Regarding Family and Earnings for Special Guaranty Computation, and G-320, Student Questionnaire for Special Guaranty Computation. One response is required of each respondent. Completion is required to obtain or retain benefits. The RRB proposes non-burden impacting editorial changes to Forms G-319 and G-320.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
On January 27, 1976, the Commission adopted Rule 11a1-1(T)—Transactions Yielding Priority, Parity, and Precedence (17 CFR 240.11a1-1(T)) under the Securities Exchange Act of 1934 (15 U.S.C. 78a
Without these requirements, it would not be possible for the Commission to monitor its mandate under the Exchange Act to promote fair and orderly markets and ensure that exchange members have, as the principal purpose of their exchange memberships, the conduct of a public securities business.
There are approximately 663 respondents that require an aggregate total of 19 hours to comply with this rule. Each of these approximately 663 respondents makes an estimated 20 annual responses, for an aggregate of 13,260 responses per year. Each response takes approximately 5 seconds to complete. Thus, the total compliance burden per year is 19 hours (13,260 x 5 seconds/60 seconds per minute/60 minutes per hour = 19 hours). The approximate cost per hour is $323, resulting in a total cost of compliance for the annual burden of $6,137 (19 hours @$323).
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: Pamela Dyson, Acting Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549, or send an email to:
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold an Open Meeting on Wednesday, January 14, 2015 at 10:00 a.m., in the Auditorium, Room L-002.
The subject matter of the Open Meeting will be:
• The Commission will consider whether to adopt rules under the
• The Commission will consider whether to adopt Regulation SBSR under the Exchange Act to provide for regulatory reporting of security-based swap information and the public dissemination of security-based swap transaction, volume, and pricing information by registered SDRs.
• The Commission will consider whether to propose certain new rules, rule amendments, and guidance to Regulation SBSR under the Exchange Act to address, among other things, the reporting duties for cleared and platform-executed security-based swap transactions.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted, or postponed, please contact:
The Office of the Secretary at (202) 551-5400.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, January 15, 2015 at 2:00 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or her designee, has certified that, in her opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matter at the Closed Meeting.
Commissioner Gallagher, as duty officer, voted to consider the items listed for the Closed Meeting in closed session.
The subject matter of the Closed Meeting will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the fees for NYSE ArcaBook to: (1) Establish eligibility requirements for redistribution on a managed non-display basis and add an access fee for managed non-display data recipients, operative on January 1, 2015; and (2) establish a fee cap for redistributor internal support use, operative on March 1, 2015. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the fees for NYSE ArcaBook, as set forth on the NYSE Arca Equities Proprietary Market Data Fee Schedule (“Fee Schedule”), as follows:
• To establish eligibility requirements for redistribution of market data on a Managed Non-Display basis and establish an access fee for Managed Non-Display data recipients, operative on January 1, 2015; and
• To establish a fee cap for redistributor internal support use, operative on March 1, 2015.
Non-Display Use of NYSE Arca Equities market data means accessing, processing, or consuming NYSE Arca Equities market data delivered via direct and/or Redistributor
A Redistributor approved for Managed Non-Display Services is required to report to the Exchange on a monthly basis the data recipients that are receiving NYSE ArcaBook through the Redistributor's Managed Non-Display Service. A data recipient receiving NYSE ArcaBook through a Redistributor's Managed Non-Display Service does not have any reporting requirements.
Currently, to be approved for Managed Non-Display Services, a Redistributor of the Managed Non-Display Services must be approved under the Unit-of-Count policy.
The proposed eligibility requirements for the provision of Managed Non-Display Services would be similar to the eligibility requirements for the Unit-of-Count Policy in that they would require the Redistributor to manage and control the access to NYSE ArcaBook for data recipients' non-display applications and not allow for further internal distribution or external redistribution of the information by data recipients. In addition, to be eligible to provide Managed Non-Display Services, the Redistributor would be required to (a) host the data recipients' non-display applications in equipment located in the Redistributor's data center and/or hosted space/cage and (b) offer NYSE ArcaBook in the Redistributor's own messaging formats (rather than using raw message formats) by reformatting and/or altering NYSE ArcaBook prior to retransmission without affecting the integrity of NYSE ArcaBook and without rendering NYSE ArcaBook inaccurate, unfair, uninformative, fictitious, misleading or discriminatory. The proposed eligibility requirements are similar to data distribution models currently in use and align the Exchange with other markets.
The reporting requirements associated with the Managed Non-Display Service would not change. A Redistributor approved for Managed Non-Display Service would be required to report to the Exchange on a monthly basis the data recipients that are receiving NYSE ArcaBook through the Redistributor's Managed Non-Display Service. A data recipient receiving NYSE ArcaBook through a Redistributor's Managed Non-Display Service would continue not to have any reporting requirements.
In addition, the Exchange proposes to adopt an Access Fee of $1,000/month applicable only to data recipients that receive NYSE ArcaBook from an approved Redistributor of Managed Non-Display Services, operative January 1, 2015. Currently, data recipients are required to pay an Access Fee of $2,000/month to receive NYSE ArcaBook, which has not been charged to data recipients of Managed Non-Display Services of NYSE ArcaBook. Because the purpose of an access fee is to charge data recipients for access to the Exchange's proprietary market data, the Exchange believes it is appropriate to charge an access fee to all data recipients, including recipients of Managed Non-Display Services.
The Exchange currently charges a Professional User Fee of $40/month. This user fee generally applies to each display device that has access to NYSE ArcaBook. The Exchange proposes to establish a Redistributor Support Fee Cap of $2,000/month, the equivalent of fees payable for 50 Professional Users per month, effective as of March 1, 2015, and to add the Redistributor Support Fee Cap to the Fee Schedule.
The proposed cap on user fees would apply to a Redistributor's internal users who receive the NYSE ArcaBook data feed and provide support to the Redistributor for the NYSE ArcaBook data feed in the areas of customer service, data quality, development, software product management, product development, programming, technical operations, technical support, and sales. These internal users would be required to be located on the Redistributor's premises or to access NYSE ArcaBook only on the Redistributor's platform. Internal users using NYSE ArcaBook in connection with trading, investment advice, newsroom activities, research, algorithmic programming for trading systems, free trials/sales promotions, personal use, or to perform any other functions not related to the provision of support functions to the Redistributor's external customers would not be included in the Redistributor Support Fee Cap.
Redistributors would have to request that their Professional User Fees related to such internal support functions be counted towards the Redistributor
The proposed Redistributor Support Fee Cap would be operative March 1, 2015.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange believes that revising the eligibility requirements for Managed Non-Display Services so that the requirements are more closely aligned with the nature of the services being provided is reasonable. The proposed additional requirements for hosting in the Redistributor's data center and for reformatting and/or altering the market data prior to retransmission are also consistent with similar requirements of other markets for the provision of managed data.
The Exchange believes that the proposed Access Fee for Managed Non-Display Services is reasonable, because the data is of value to recipients, and it is reasonable to charge them a lower access fee because they are receiving the data through a Redistributor in a controlled form rather than from the Exchange in raw form. The Exchange believes that the proposed fee directly and appropriately reflects the significant value of using non-display data in a wide range of computer-automated functions relating to both trading and non-trading activities and that the number and range of these functions continue to grow through innovation and technology developments. NASDAQ and Phlx also both offer managed non-display data solutions and charge access fees for such services.
The Exchange believes that it is reasonable to establish the Redistributor Support Fee Cap. The purpose of the Professional User Fee is to charge for each use of NYSE ArcaBook data feed. The Exchange believes it is appropriate to charge user fees for employees who provide internal support functions at Redistributors because the business model of Redistributors is distributing data, and as a related function, providing support functions for such distribution of data. Accordingly, the internal support functions at a Redistributor contribute to the value that such Redistributor provides to its own customers, and are therefore an integral part of a Redistributor's business model. While such internal use is a value to a Redistributor and its customers, the Exchange recognizes that internal support functions differ from other uses of NYSE ArcaBook, which is why the Exchange provides for a Redistributor Support Fee Cap. The Exchange believes it is reasonable to establish a fee cap to reflect the value that such support functions serve within a Redistributor. While the NYSE anticipates that only the largest vendors would devote sufficient personnel to administrative functions to take advantage of the proposed increased fee cap, in the Exchange's view, limiting the fee exposure of its largest vendors does not unreasonably discriminate against other vendors under Section 603(a)(2) of Regulation NMS.
The fees are also equitable and not unfairly discriminatory because they will apply to all data recipients that choose to subscribe to the feeds.
The Exchange notes that NYSE ArcaBook is entirely optional. The Exchange is not required to make NYSE ArcaBook available or to offer any specific pricing alternatives to any customers, nor is any firm required to purchase NYSE ArcaBook. Firms that do purchase NYSE ArcaBook do so for the primary goals of using it to increase revenues, reduce expenses, and in some instances compete directly with the Exchange (including for order flow); those firms are able to determine for themselves whether NYSE ArcaBook or any other similar products are attractively priced or not.
Firms that do not wish to purchase NYSE ArcaBook at the new prices have a variety of alternative market data products from which to choose,
The decision of the United States Court of Appeals for the District of Columbia Circuit in
In fact, the legislative history indicates that the Congress intended that the market system `evolve through the interplay of competitive forces as unnecessary regulatory restrictions are removed' and that the SEC wield its regulatory power `in those situations where competition may not be sufficient,' such as in the creation of a `consolidated transactional reporting system.'
As explained below in the Exchange's Statement on Burden on Competition, the Exchange believes that there is substantial evidence of competition in the marketplace for proprietary market data and that the Commission can rely upon such evidence in concluding that the fees established in this filing are the product of competition and therefore satisfy the relevant statutory standards. In addition, the existence of alternatives to these data products, such as consolidated data and proprietary data from other sources, as described below, further ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can select such alternatives.
As the
For these reasons, the Exchange believes that the proposed fees are reasonable, equitable, and not unfairly discriminatory.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. An exchange's ability to price its proprietary market data feed products is constrained by actual competition for the sale of proprietary market data products, the joint product nature of exchange platforms, and the existence of alternatives to the Exchange's proprietary data.
The market for proprietary data products is currently competitive and inherently contestable because there is fierce competition for the inputs necessary for the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with one another for listings and order flow and sales of market data itself, providing ample opportunities for entrepreneurs who wish to compete in any or all of those areas, including producing and distributing their own market data. Proprietary data products are produced and distributed by each individual exchange, as well as other entities, in a vigorously competitive market. Indeed, the U.S. Department of Justice (“DOJ”) (the primary antitrust regulator) has expressly acknowledged the aggressive actual competition among exchanges, including for the sale of proprietary market data. In 2011, the DOJ stated that exchanges “compete head to head to offer real-time equity data products. These data products include the best bid and offer of every exchange and information on each equity trade, including the last sale.”
Moreover, competitive markets for listings, order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products and therefore constrain markets from overpricing proprietary market data. Broker-dealers send their order flow and transaction reports to multiple venues, rather than providing them all to a single venue, which in turn reinforces this competitive constraint. As a 2010 Commission Concept Release noted, the “current market structure can be described as dispersed and complex” with “trading volume . . . dispersed among many highly automated trading centers that compete for order flow in the same stocks” and “trading centers offer[ing] a wide range of services that are designed to attract different types of market participants with varying trading needs.”
If an exchange succeeds in its competition for quotations, order flow, and trade executions, then it earns trading revenues and increases the value of its proprietary market data products because they will contain greater quote and trade information. Conversely, if an exchange is less successful in attracting quotes, order flow, and trade executions, then its market data products may be less desirable to customers using them in support of order routing and trading decisions in light of the diminished content; data products offered by competing venues may become correspondingly more attractive. Thus, competition for quotations, order flow, and trade executions puts significant pressure on an exchange to maintain both execution and data fees at reasonable levels.
In addition, in the case of products that are also redistributed through market data vendors, such as Bloomberg and Thompson Reuters, the vendors themselves provide additional price discipline for proprietary data products because they control the primary means of access to certain end users. These vendors impose price discipline based upon their business models. For example, vendors that assess a
Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, proprietary market data and trade executions are a paradigmatic example of joint products with joint costs. The decision of whether and on which platform to post an order will depend on the attributes of the platforms where the order can be posted, including the execution fees, data availability and quality, and price and distribution of data products. Without a platform to post quotations, receive orders, and execute trades, exchange data products would not exist.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's platform for posting quotes, accepting orders, and executing transactions and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs.
Moreover, an exchange's broker-dealer customers generally view the costs of transaction executions and market data as a unified cost of doing business with the exchange. A broker-dealer will only choose to direct orders to an exchange if the revenue from the transaction exceeds its cost, including the cost of any market data that the broker-dealer chooses to buy in support of its order routing and trading decisions. If the costs of the transaction are not offset by its value, then the broker-dealer may choose instead not to purchase the product and trade away from that exchange. There is substantial evidence of the strong correlation between order flow and market data purchases. For example, in November 2014 more than 80% of the transaction volume on each of NYSE Arca Equities and the Exchange's affiliates New York Stock Exchange LLC (“NYSE”) and NYSE MKT LLC (“NYSE MKT”), was executed by market participants that purchased one or more proprietary market data products (the 20 firms were not the same for each market). A supra-competitive increase in the fees for either executions or market data would create a risk of reducing an exchange's revenues from both products.
Other market participants have noted that proprietary market data and trade executions are joint products of a joint platform and have common costs.
Analyzing the cost of market data product production and distribution in isolation from the cost of all of the inputs supporting the creation of market data and market data products will inevitably underestimate the cost of the data and data products because it is impossible to obtain the data inputs to create market data products without a fast, technologically robust, and well-regulated execution system, and system and regulatory costs affect the price of both obtaining the market data itself and creating and distributing market data products. It would be equally misleading, however, to attribute all of an exchange's costs to the market data portion of an exchange's joint products. Rather, all of an exchange's costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products.
As noted above, the level of competition and contestability in the market is evident in the numerous alternative venues that compete for order flow, including 12 equities self-regulatory organization (“SRO”) markets, as well as various forms of ATSs, including dark pools and electronic communication networks (“ECNs”), and internalizing broker-dealers. SRO markets compete to attract order flow and produce transaction reports via trade executions, and two FINRA-regulated Trade Reporting Facilities compete to attract transaction reports from the non-SRO venues.
Competition among trading platforms can be expected to constrain the aggregate return that each platform earns from the sale of its joint products, but different trading platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. For example, some platforms may choose to pay rebates to attract orders, charge relatively low prices for market data products (or provide market data products free of charge), and charge relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower rebates (or no rebates) to attract orders, setting relatively high prices for market data products, and setting relatively low prices for accessing posted liquidity. For example, BATS and Direct Edge, which previously operated as ATSs and obtained exchange status in 2008 and 2010, respectively, have provided certain market data at no charge on their Web sites in order to attract more order flow, and use revenue rebates from resulting additional executions to maintain low execution charges for their users.
The large number of SROs, ATSs, and internalizing broker-dealers that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, ATS, and broker-dealer is currently permitted to produce and sell proprietary data products, and many currently do or have announced plans to do so, including but not limited to the Exchange, NYSE, NYSE MKT, NASDAQ OMX, BATS, and Direct Edge.
The fact that proprietary data from ATSs, internalizing broker-dealers, and vendors can bypass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products. By way of example, BATS and NYSE Arca both published proprietary data on the Internet before registering as exchanges. Second, because a single order or transaction report can appear in an SRO proprietary product, a non-SRO proprietary product, or both, the amount of data available via proprietary products is greater in size than the actual number of orders and transaction reports that exist in the marketplace. With respect to NYSE ArcaBook, competitors offer a close substitute product.
Those competitive pressures imposed by available alternatives are evident in the Exchange's proposed pricing.
In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid and inexpensive. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TrackECN, BATS Trading and Direct Edge. As noted above, BATS launched as an ATS in 2006 and became an exchange in 2008, while Direct Edge began operations in 2007 and obtained exchange status in 2010. As noted above, LavaFlow ECN provides market data to its subscribers at no charge.
In setting the proposed fees, the Exchange considered the competitiveness of the market for proprietary data and all of the implications of that competition. The Exchange believes that it has considered all relevant factors and has not considered irrelevant factors in order to establish fair, reasonable, and not unreasonably discriminatory fees and an equitable allocation of fees among all users. The existence of numerous alternatives to the Exchange's products, including proprietary data from other sources, ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can elect these alternatives or choose not to purchase a specific proprietary data product if the attendant fees are not justified by the returns that any particular vendor or data recipient would achieve through the purchase.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 7, 2014, the New York Stock Exchange LLC (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Article III, Section 4 of the Bylaws to provide that Non-Affiliated Directors would not be removed for cause if they are acting in good faith in exercising their responsibilities as directors related to the functions and responsibilities of NYSE Regulation delegated to it under the Delegation Agreement. The Exchange also proposes to make a conforming change to the Bylaws so that the title of the Bylaws would read “Seventh Amended and Restated Bylaws of NYSE Regulation, Inc.”
Currently, Article III, Section 4 of the Bylaws provides that the Exchange may only remove Non-Affiliated Directors for “cause.” The Exchange proposes to amend Article III, Section 4 so that “cause” would not encompass “decisions or actions taken in good faith by a Non-Affiliated Director in his or her capacity as a Director of [NYSE Regulation] and related” to NYSE Regulation's delegated regulatory functions and responsibilities under the Delegation Agreement. The Exchange stated that this proposed amendment to the Bylaws would make explicit that conduct consistent with a Non-Affiliated Director's duties and responsibilities related to NYSE Regulation's delegated functions and responsibilities would not constitute grounds for removal.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission notes that the proposed amendment to the Bylaws would make explicit that conduct consistent with a Non-Affiliated Director's duties and responsibilities related to NYSE Regulation's delegated functions and responsibilities would not constitute grounds for such director's removal from NYSE Regulation's Board of Directors. The Exchange stated that the proposed amendment to the Bylaws would provide Non-Affiliated Directors of NYSE Regulation with reasonable assurances that actions or decisions, which were consistent with their fiduciary duty and which such Non-Affiliated Directors believed, in good faith, to be the proper exercise of NYSE Regulation's delegated functions and responsibilities, could not be used as a basis to remove those directors from office. The Exchange believes that the proposal would remove uncertainty surrounding this issue and would contribute to a more effective, efficient, and orderly decision-making process by NYSE Regulation's Board of Directors. Based on the foregoing, the Commission believes the proposed rule change is consistent with the Act.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend the pilot program in Rule 1059, Accommodation Transactions, to allow cabinet trading to take place below $1 per option contract under specified circumstances (the “pilot program”).
The text of the proposed rule change is set forth below. Proposed new language is in italics; proposed deletions are in brackets.
(a)-(b) No change.
• • •
.01 No change.
.02 Limit Orders Priced Below $1: Limit orders with a price of at least $0 but less than $1 per option contract may trade under the terms and conditions in Rule 1059 above in each series of option contracts open for trading on the Exchange, except that:
(a)-(c) No change.
(d) Unless otherwise extended, the effectiveness of the Commentary .02 terminates January 5, [2015]
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to extend the pilot program in Commentary .02 of Exchange Rule 1059, Accommodation Transactions, which sets forth specific procedures for engaging in cabinet trades, to allow the Commission adequate time to consider permanently allowing transactions to take place on the Exchange in open outcry at a price of at least $0 but less than $1 per option contract.
On December 30, 2010, the Exchange filed an immediately effective proposal that established the pilot program being extended by this filing. The pilot program allowed transactions to take place in open outcry at a price of at least $0 but less than $1 per option contract until June 1, 2011.
The Exchange believes that allowing a price of at least $0 but less than $1 will continue to better accommodate the closing of options positions in series that are worthless or not actively traded, particularly due to recent market conditions which have resulted in a significant number of series being out-of-the-money. For example, a market participant might have a long position in a call series with a strike price of $100 and the underlying stock might now be trading at $30. In such an instance, there might not otherwise be a market for that person to close-out its position even at the $1 cabinet price (
The Exchange hereby seeks to extend the pilot period for such $1 cabinet trading until January 5, 2016. The Exchange seeks this extension to allow the procedures to continue without interruption.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. The proposal does not raise any issues of intra-market competition because it applies to all options participants in the same manner.
Written comments were neither solicited nor received.
Because the foregoing rule does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, provided that the self-regulatory organization has given the Commission written notice of its intent to file the proposed rule change at least five business days prior to the date of filing of the proposed rule change or such shorter time as designated by the Commission,
Under Rule 19b-4(f)(6) of the Act,
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-Phlx-2015-03 and should be submitted on or before February 3, 2015.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the imported objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6469). The mailing address is U.S. Department of State, SA-5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522-0505.
By virtue of the authority vested in me as Secretary of State, including Section 1 of the State Department Basic Authorities Act, as amended (22 U.S.C. 2651a), and Executive Order 13313, dated July 31, 2003, and to the extent authorized by law, I hereby delegate to the Under Secretary for Arms Control and International Security the authority to make findings, including certifications, determinations, and assessments, and to submit the Report on Compliance With the Treaty on Conventional Armed Forces in Europe, consistent with Condition 5(C) of the Resolution of Advice and Consent to Ratification of the Document Agreed Among the States Parties to the Treaty on Conventional Armed Forces in Europe of November 19, 1990 (the “Flank Document”).
Any act, executive order, regulation or procedure subject to, or affected by, this delegation shall be deemed to be such act, executive order, regulation or procedure as amended from time to time.
Notwithstanding this delegation of authority, the Secretary, the Deputy Secretary, or the Deputy Secretary for Management and Resources may at any time exercise any authority or function delegated by this delegation of authority.
This delegation of authority shall be published in the
The Shipping Coordinating Committee (SHC) will conduct an open meeting at 9:00 a.m. on Wednesday, February 4, 2015, in the Alexander Hamilton Room on the 9th floor of the Ballston Common Plaza, 4200 Wilson Blvd., Arlington, VA 20598-7200. The USCG Offices in the Ballston Commons Plaza are located above the Ballston Common Mall. The primary purpose of the meeting is to prepare for the second Session of the International Maritime Organization's (IMO) Sub-Committee on Ship Design and Construction to be held at the IMO Headquarters, United Kingdom, February 16-20, 2015.
The agenda items to be considered include:
Members of the public may attend this meeting up to the seating capacity of the room. To facilitate the building security process, and to request reasonable accommodation, those who plan to attend should contact the meeting coordinator, LT Stephanie Waller, by email at
Please note that due to security considerations, two valid, government issued photo identifications must be presented to gain entrance to USCG Offices. This location is accessible by taxi, privately owned conveyance, and public transportation (located near the Ballston Metro Station). Additional information regarding this and other IMO SHC public meetings may be found at:
This document was received for publication by the Office of the Federal Register on January 7, 2015.
National Highway Traffic Safety Administration, DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before February 12, 2015.
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: NHTSA Desk Officer.
For additional information or access to background documents, contact Charlene Doyle, Office of Regulatory Analysis and Evaluation, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., NVS-431, Washington, DC 20590. Ms. Doyle's phone number is 202-366-1276.
Before a Federal agency can collect certain information from the public, it must receive approval from the Office of Management and Budget (OMB). In compliance with these requirements, this notice announces that the following information collection request has been forwarded to OMB. A
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended and 49 CFR 1.95.
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before February 12, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission may be obtained by emailing
Notification of Citizens Coinage Advisory Committee January 27-28, 2015, public meeting.
Pursuant to United States Code, Title 31, section 5135(b)(8)(C), the United States Mint announces the Citizens Coinage Advisory Committee (CCAC) public meeting scheduled for January 27-28, 2015.
In accordance with 31 U.S.C. 5135, the CCAC:
Advises the Secretary of the Treasury on any theme or design proposals relating to circulating coinage, bullion coinage, Congressional Gold Medals, and national and other medals.
Advises the Secretary of the Treasury with regard to the events, persons, or places to be commemorated by the issuance of commemorative coins in each of the five calendar years succeeding the year in which a commemorative coin designation is made.
Makes recommendations with respect to the mintage level for any commemorative coin recommended.
William Norton, United States Mint Liaison to the CCAC; 801 9th Street NW; Washington, DC 20220; or call 202-354-7200.
Any member of the public interested in submitting matters for the CCAC's consideration is invited to submit them by fax to the following number: 202-756-6525.
31 U.S.C. 5135(b)(8)(C).
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA, or the Agency) is publishing a final rule that revises several recycling-related provisions associated with the definition of solid waste used to determine hazardous waste regulation under Subtitle C of the Resource Conservation and Recovery Act (RCRA). The purpose of these revisions is to ensure that the hazardous secondary materials recycling regulations, as implemented, encourage reclamation in a way that does not result in increased risk to human health and the environment from discarded hazardous secondary material.
This final rule is effective on July 13, 2015.
EPA has established a docket for this action under Docket ID No. EPA-HQ-RCRA-2010-0742. All documents in the docket are listed in the
Tracy Atagi, Office of Resource Conservation and Recovery, Materials Recovery and Waste Management Division, MC 5304P, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460, at (703) 308-8672, (
Entities potentially affected by today's action include over 5,000 industrial facilities in 634 industries (at the 6-digit North American Industry Classification System (NAICS) code level) that generate or recycle hazardous secondary materials (HSM). Most of these 634 industries have relatively few entities that are potentially affected. The top-5 economic sectors (at the 2-digit NAICS code level) with the largest number of potentially affected entities are as follows: (1) 41% in NAICS code 33—the manufacturing sector, which consists of metals, metal products, machinery, computer & electronics, electrical equipment, transportation equipment, furniture, and miscellaneous manufacturing subsectors, (2) 23% in NAICS code 32—the manufacturing sector, which consists of wood products, paper, printing, petroleum & coal products, chemicals plastics & rubber products, and nonmetallic mineral products manufacturing subsectors, (3) 3.0% in NAICS code 92—the public administration sector, (4) 2.9% in NAICS code 61—the educational services sector, and (5) 2.8% in NAICS code 54—the professional, scientific and technical services sector.
Information on the estimated future economic impacts of today's action is presented in section XXI of this notice, as well as in the RIA available in the docket for today's action.
These regulations are promulgated under the authority of sections 2002, 3001, 3002, 3003, 3004, 3007, 3010, and 3017 of the Solid Waste Disposal Act of 1970, 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.”
In today's rule, EPA is revising a number of provisions related to the definition of solid waste as it applies to the regulation of hazardous waste under Subtitle C of RCRA (42 U.S.C. 6921 through 6939(e)). These revisions affect certain types of hazardous secondary materials that are currently conditionally excluded from the definition of solid waste when reclaimed. These exclusions were promulgated in October 2008 (73 FR 64688, October 30, 2008) and were intended to encourage the recovery and reuse of valuable resources as an alternative to land disposal or incineration, while at the same time maintaining protection of human health and the environment. In response to concerns raised by stakeholders about potential increases in risks to human health and the environment from hazardous secondary materials, today's rule revises the 2008 DSW final rule in order to ensure that the rule, as implemented, encourages reclamation in a way that protects human health and the environment from the
The six major regulatory areas are summarized below.
Under today's final rule, EPA is retaining the exclusion for hazardous secondary materials that are legitimately reclaimed under the control of the generator (“generator-controlled exclusion”), with certain revisions from the 2008 DSW final rule. These revisions include (1) adding a codified definition of “contained,” (2) adding recordkeeping requirements for same-company and toll manufacturing reclamation, (3) making notification a condition of the exclusion, (4) adding a requirement to document that recycling under the exclusion is legitimate, and (5) adding emergency preparedness and response conditions. In addition, we have amended the speculative accumulation provisions to add a recordkeeping requirement. This requirement applies to all persons subject to speculative accumulation.
The generator-controlled exclusion (40 CFR 261.4(a)(23)) excludes certain hazardous secondary materials (
EPA is replacing the exclusions at 40 CFR 261.4(a)(24) and (25) for hazardous secondary materials that are transferred from the generator to other persons for the purpose of reclamation with an exclusion for hazardous secondary materials sent for reclamation to a verified recycler. By this change, EPA intends to promote safe and sustainable reclamation of these materials. Under this new exclusion, generators who want to recycle their hazardous secondary materials without having them become hazardous wastes must send their materials to either a RCRA-permitted reclamation facility or to a verified recycler of hazardous secondary materials who has obtained a solid waste variance from EPA or the authorized state. In order to obtain a variance from EPA or the authorized state, the recycler must (1) demonstrate their recycling is legitimate; (2) have financial assurance in place to properly manage the hazardous secondary material when the facility closes; (3) not be subject to a formal enforcement action in the previous three years and not be classified as a significant non-complier under RCRA Subtitle C, or must provide credible evidence that the facility will manage the hazardous secondary materials properly; (4) have the proper equipment and trained personnel, and meet emergency preparedness and response conditions to safely recycle the material; (5) manage the residuals from recycling properly; and (6) take steps to protect nearby communities and reduce risk of potential unpermitted releases of the hazardous secondary material to the environment (
EPA is also finalizing an exclusion from the definition of solid waste for certain higher-value solvents transferred from one manufacturer to another for the purpose of extending the useful life of the solvent by remanufacturing the spent solvent back into the commercial grade solvent. This remanufacturing exclusion will help promote sustainable materials management by extending the productive use of these materials, which reduces the need for raw materials used and the environmental impacts associated with production of these materials. In addition, EPA is also making clear that a rulemaking petition pursuant to 40 CFR 260.20 can be submitted for adding other higher-value hazardous secondary materials that are destined to be remanufactured into similarly higher-value products. Further discussion of this exclusion can be found in section VII of this preamble.
In this final rulemaking, EPA is codifying in its regulations at 40 CFR 261.2(g) the long-standing policy that hazardous secondary materials found to be sham recycled are discarded and solid wastes, thereby prohibiting materials that are sham recycled from being excluded from the definition of solid waste.
In addition, EPA has changed the definition of legitimate recycling in § 260.43 to make clear that all four factors identified in § 260.43 must be met, but also to provide some flexibility in determining legitimacy for certain types of recycling. In particular, in cases where there is no analogous product made from raw materials, EPA has clarified that the product of recycling is still a legitimate product when it meets widely recognized commodity standards (
Today's rule finalizes revisions to the solid waste variances and non-waste determinations found in 40 CFR 260.30-260.34 in order to ensure protection of human health and the environment and foster greater consistency on the part of implementing agencies. Revisions include (1) requiring facilities to send a notice to the Administrator (or State Director, if the state is authorized) and
EPA is not finalizing revisions to the pre-2008 recycling exclusions and exemptions to include the contained standard or to require notification.
RCRA gives EPA the authority to regulate hazardous wastes (see RCRA sections 3001-3004). The original statutory designation of the subtitle for the hazardous waste program was Subtitle C and the national hazardous waste program is referred to as the RCRA Subtitle C program. Subtitle C is codified at 42 U.S.C. 6921 through 6939f. Subtitle C regulations are found at 40 CFR parts 260 through 279. Hazardous wastes are those that, because of their quantity, concentration, physical, or chemical characteristics, may (1) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or (2) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed (see RCRA section 1004(5)). Hazardous wastes are a subset of solid wastes.
Materials that are not solid wastes are not subject to regulation as hazardous wastes under RCRA Subtitle C. Thus, the definition of solid waste plays a key role in defining the scope of EPA's authorities under Subtitle C of RCRA. The statute defines “solid waste” as “. . . any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and
Since 1980, EPA has interpreted “solid waste” under its Subtitle C regulations to encompass both materials that are destined for final, permanent treatment and placement in disposal units, as well as certain materials that are destined for recycling (see 45 FR 33090-95, May 19, 1980; 50 FR 604-656, January 4, 1985 (see in particular pages 616-618)). EPA has offered three arguments in support of this interpretation:
• The statute and the legislative history suggest that Congress expected EPA to regulate certain materials that are destined for recycling as solid and hazardous wastes (see 45 FR 33091, citing numerous sections of the statute and
• Hazardous secondary materials stored or transported prior to recycling have the potential to present the same types of threats to human health and the environment as hazardous wastes stored or transported prior to disposal. In fact, EPA has found that recycling operations have accounted for a number of significant damage incidents. For example, hazardous secondary materials destined for recycling were involved in one-third of the first 60 filings under RCRA's imminent and substantial endangerment authority and in 20 of the initial 160 hazardous material sites listed for potential clean up under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (48 FR 14474, April 4, 1983). Congress also cited some damage cases which involve recycling (H.R. Rep. 94-1491, 94th Cong., 2d Sess., at 17, 18, 22). Additional data (
• Excluding all hazardous secondary materials destined for recycling would allow materials to move in and out of the hazardous waste management system depending on what any person handling the hazardous secondary materials intended to do with them, which is inconsistent with the RCRA mandate to track hazardous wastes and control them from “cradle to grave.”
Hence, RCRA confers on EPA the authority to regulate discarded hazardous secondary materials even if they are destined for recycling and may be beneficially reused. The Agency has therefore developed in part 261 of 40 CFR a definition of “solid waste” for Subtitle C regulatory purposes. (Note: This definition is narrower than the definition of “solid waste” for RCRA endangerment and information-gathering authorities. (See 40 CFR 261.1(b)). Also
EPA has consistently asserted that hazardous secondary materials are not excluded from regulation as solid wastes merely because of a claim that they will be recycled. EPA has consistently considered hazardous secondary materials intended for “sham recycling” (
Because the interpretation of what constitutes a solid waste is the foundation of the hazardous waste regulatory program, there has been quite a bit of litigation over the meaning of “solid waste” under Subtitle C of RCRA. Specifically, industries representing mining and oil refining interests challenged EPA's January 1985 regulatory definition of solid waste. In 1987, the D.C. Circuit held that EPA exceeded its authority “in seeking to bring materials that are not discarded or otherwise disposed of within the compass of `waste' ” (
At the same time, the Court held that recycled materials could be regulated as discarded materials. The Court mentioned at least two examples of recycled materials that may be regulated as wastes, noting that used oil can be considered a solid waste (824 F.3d at 1187 (fn 14)). Also, the Court suggested that materials disposed of and recycled as part of a waste management program may be regulated as solid wastes (824 F. 2d at 1179).
Subsequent decisions by the D.C. Circuit also indicate that some materials destined for recycling may be considered “discarded.” In particular, the Court held that emission control dust from steelmaking operations listed as hazardous waste “K061” is a solid waste, even when sent to a metals reclamation facility, at least where that is the treatment method required under EPA's land disposal restrictions program (
It also is worth noting that two other Circuits also have held that EPA may regulate as solid wastes under RCRA at least some materials destined for reclamation rather than final discard. The U.S. Court of Appeals for the Eleventh Circuit found that “[i]t is unnecessary to read into the term ‘discarded’ a congressional intent that the waste in question must finally and forever be discarded” (
In 1998, EPA promulgated a rule in which EPA regulated hazardous secondary materials recycled by reclamation within the mineral processing industry, the “LDR Phase IV rule” (63 FR 28556, May 26, 1998), under Subtitle C of RCRA. In that rule, EPA promulgated a conditional exclusion for all types of mineral processing hazardous secondary materials destined for reclamation. As a condition of the exclusion, EPA prohibited the land-based storage of these mineral processing secondary materials prior to reclamation because it considered hazardous secondary materials from the mineral processing industry that were stored on the land to be solid wastes (63 FR 28581, May 26, 1998). The conditional exclusion decreased regulation over spent materials stored prior to reclamation, but increased regulation over by-products and sludges that exhibit a hazardous characteristic and that are stored prior to reclamation. EPA noted that the statute does not authorize it to regulate “materials that are destined for immediate reuse in another phase of the industry's ongoing production process.” EPA, however, took the position that hazardous secondary materials that are removed from a production process for storage are not “immediately reused,” and therefore are “discarded” (63 FR 28580, May 26, 1998).
The mining industry challenged the rule, and the D.C. Circuit vacated the provisions that expanded EPA regulation over characteristic by-products and sludges destined for reclamation (
In its most recent opinion dealing with the definition of solid waste,
EPA's reasoning was that market participants, consistent with the EPA-required conditions in the rule, would treat the excluded materials more like valuable products than like negatively-valued wastes and, thus, would manage them in ways inconsistent with discard. In addition, the fertilizers derived from these recycled feedstocks are chemically indistinguishable from analogous commercial products made from raw materials (350 F.3d at 1269). The Court held that EPA's explanation that market participants manage materials in ways inconsistent with discard, and the fact that the levels of contaminants in the recycled fertilizers were “identical” to the fertilizers made with virgin raw materials (also called “the identity principle”) as reasonable. The Court also held that this interpretation of “discard” was reasonable and consistent with the statutory purpose. The Court noted that the identity principle was defensible because the differences in health and environmental risks between the two types of fertilizers are so slight as to be substantively meaningless.
In addition, the Court stated that it “need not consider whether a material could be classified as a non-discard exclusively on the basis of the market-participation theory” (350 F.3d at 1269). The Court only determined that the combination of market participants' treatment of the materials, EPA-required management standards, and the “identity principle” constitutes a reasonable set of tools to establish that
Prompted by concerns articulated in various Court opinions decided up to that point, in October 2003, EPA proposed a rule which defined those circumstances under which hazardous secondary materials would be excluded from RCRA's hazardous waste regulations because they are generated and reclaimed in a continuous process within the same industry. In addition, the Agency also clarified in a regulatory context the concept of “legitimate recycling,” which has been a key component of RCRA's regulatory program for hazardous material recycling, but which up to that point, had been implemented without specific regulatory criteria (68 FR 61558, October 28, 2003).
In response to the October 2003 DSW proposal, a number of commenters criticized the Agency for not having conducted a study of the potential impacts of the proposed regulatory changes. These commenters expressed the general concern that deregulating hazardous secondary materials that are reclaimed in the manner proposed could result in the mismanagement of these materials and could create new cases of environmental damage that would require remedial action under federal or state authorities. Some of the commenters further cited a number of examples of environmental damage that were attributed to hazardous secondary material recycling, including sites listed on the Superfund National Priorities List (NPL).
Other commenters to the 2003 DSW proposal expressed the view that the great majority of these cases of recycling-related environmental problems occurred before RCRA, CERCLA, or other environmental programs were established in the early 1980s. These commenters argued that these environmental programs—most notably, RCRA's hazardous waste regulations and the liability provisions of CERCLA—have created strong incentives for proper management of recyclable hazardous secondary materials and recycling residuals. Several commenters further noted that, because of these developments, industrial recycling practices have changed substantially since the early 1980s and present day generators and recyclers are much better environmental stewards than in the pre-RCRA/-CERCLA era. Thus, they argued that cases of “historical” recycling-related environmental damage are not particularly relevant when modifying the current RCRA hazardous waste regulations for hazardous secondary materials recycling.
In light of these comments on the 2003 DSW proposal, and in deliberating on how to proceed with the rulemaking effort, the Agency decided that additional information on hazardous secondary material recycling would benefit its regulatory decision-making and would provide stakeholders with a clearer picture of the hazardous secondary material recycling industry in this country. Accordingly, the Agency examined three issues that we believed were of particular importance to revising the definition of solid waste:
• How do responsible generators and recyclers of hazardous secondary materials ensure that recycling is done in an environmentally safe manner?
• To what extent have hazardous secondary material recycling practices resulted in environmental problems since enactment of major waste management statutes, and why?
• Are there certain economic forces or incentives specific to hazardous secondary material recycling that can explain why environmental problems can sometimes originate from such recycling activities?
Reports documenting these studies are available in the docket for the 2008 DSW final rule under the following titles:
In the study of successful recycling, EPA found that responsible recycling practices used by generators and recyclers to manage hazardous secondary materials fall into two general categories. The first category includes the audit activities and inquiries performed by a generator of a hazardous secondary material to determine whether the entity to which it is sending such material is equipped to manage it responsibly without the risk of releases or other environmental damage. These recycling and waste audits of other companies' facilities are common to those generators that responsibly recycle in the hazardous secondary materials market. The second category of responsible recycling practices consists of the control practices that ensure responsible management of any given shipment of hazardous secondary material, such as the contracts under which the transaction takes place and the tracking systems that can inform a generator that its hazardous secondary material has been properly managed.
The goal of the environmental problems study was to identify and characterize environmental problems associated with some types of hazardous secondary material recycling that are relevant for the purpose of this rulemaking effort. To address commenters' concerns that historic damages are irrelevant to current practices because environmental programs (post-RCRA and -CERCLA implementation) have created strong incentives for proper management of recyclable hazardous secondary materials, EPA only included cases where damages occurred after 1982. The study identifies 208 cases in which environmental damages of some kind occurred from some type of recycling activity and that otherwise fit the scope of the study.
The Agency has determined that the occurrence of certain types of environmental problems associated with post-1982 recycling practices shows that discard has occurred. In particular, instances where hazardous secondary materials were abandoned (
In addition, the pattern of environmental damages that resulted from the mismanagement of recyclable
The market forces study used accepted economic theory to describe how various market incentives can influence a firm's decision-making process when recycling hazardous secondary materials. This study helps explain some of the possible fundamental economic drivers of both successful and unsuccessful recycling practices.
As pointed out by some commenters to the 2003 DSW proposed rule, the economic forces shaping the behavior of firms that recycle hazardous secondary materials are often different from those at play in manufacturing processes using virgin materials. The market forces study used economic theory to provide information on how certain characteristics can influence three different recycling models to encourage or discourage an optimal outcome. The three recycling models examined were (1) commercial recycling, where the primary business of the firm is the recycling of hazardous secondary materials that are accepted from off-site industrial sources (which usually pay a fee); (2) industrial intra-company recycling, where firms generate hazardous secondary materials as by-products of their main production processes and recycle the hazardous secondary materials for sale or for their own reuse in production; and (3) industrial inter-company recycling, where firms either use or recycle hazardous secondary materials obtained from other firms, with the objective of reducing the cost of their production inputs. The report also looked at how the outcome from each model is potentially affected by three market characteristics: (1) The value of the recycled product, (2) the price stability of recycling output or inputs, and (3) the net worth of the firm.
An individual firm's decision-making is based on many factors and extrapolating a firm's likely behavior from a few factors could be an over-simplification. However, when used in conjunction with other information, the economic theory can be quite illuminating. For example, according to the market forces study, industrial intra- and inter-company recyclers have more flexibility in adjusting to unstable recycling markets (
On the other hand, in certain types of commercial recycling, the product has low value, the prices are unstable, and/or the firm has a low net worth. Facilities in these situations can be more susceptible to environmental problems from the over-accumulation or mishandling of hazardous secondary materials, especially when compared to recycling by a well-capitalized firm that yields a product with high value. In short, commercial recyclers depend on revenue from two sources: (1) Accepting hazardous secondary materials for recycling, and (2) selling the recycled product. When recycled product prices fall, commercial recyclers rely on profits from accepting hazardous waste, which can result in over-accumulation, mismanagement, sham recycling, and abandonment of hazardous secondary materials. Further, because these facilities often have little capital at risk, they can go bankrupt leaving environmental damages behind. These predicted outcomes appear to be supported by the results of the environmental problems study, which showed the vast majority of environmental damages—approximately 94%—occur at off-site commercial recyclers.
However, as shown by the study of successful recycling, generators who could otherwise bear a large liability from poorly-managed recycling at other companies have addressed this issue by carefully examining the recyclers to which they send their hazardous secondary materials, such as through audits to ensure that they are technically and financially capable of performing the recycling. In addition, we have seen that successful recyclers (both commercial and industrial) have often taken advantage of mechanisms, such as long-term contracts to help stabilize price fluctuations, allowing recyclers to plan their operations more effectively.
Further discussion of the recycling studies, including the methodology and limitations of the studies, can be found in the March 2007 DSW supplemental proposal (72 FR 14178-83) and the October 2008 DSW final rule (73 FR 64673-74), and the studies themselves can be found in the docket for the 2008 DSW final rule (EPA-HQ-RCRA-2002-0031-0355).
In March 2007, EPA published a supplemental proposal that provided the public the opportunity to comment on these studies. The Agency also re-structured the proposed rule and proposed (1) two exclusions for hazardous secondary materials recycled under the control of the generator (one exclusion would apply to hazardous secondary materials managed in non-land-based units, and the other exclusion would apply to hazardous secondary materials managed in land-based units) and (2) an exclusion for hazardous secondary materials transferred to another party for reclamation. The Agency also proposed a non-waste determination petition process, and re-proposed the legitimacy criteria, with certain modifications (72 FR 14172, March 26, 2007).
For the exclusions of hazardous secondary materials reclaimed under the control of the generator, EPA described three circumstances under which we believed that discard does not take place and where the potential for environmental releases is low. The three situations involve hazardous secondary materials that are generated and legitimately reclaimed at the generating facility, legitimately reclaimed at a different facility within the same company, or legitimately reclaimed through a tolling arrangement. Under all three circumstances, the hazardous secondary materials must be generated and reclaimed within the United States or its territories. Because the hazardous secondary material generator in these situations still retains control of the hazardous secondary materials, finds value in them, and intends to use them, EPA proposed to exclude these materials from the definition of solid waste and, thus, from regulation under Subtitle C of RCRA, provided the reclamation is legitimate and the
For the exclusion of hazardous secondary materials transferred to another party for reclamation (referred to as the transfer-based exclusion), the Agency proposed conditions that, when met, would indicate that these hazardous secondary materials were not discarded. Specifically, the generator would need to make reasonable efforts, a form of due diligence, to determine that its hazardous secondary materials would be properly and legitimately recycled (and that the hazardous secondary material would not be discarded). Another condition would require the reclamation facility to have adequate financial assurance (thus demonstrating that the hazardous secondary material would not be abandoned). In addition, EPA proposed that both the generator and reclaimer would be required to maintain shipping records (to demonstrate that the hazardous secondary material was sent for reclamation and was received by the reclaimer). Furthermore, the reclaimer would be subject to additional storage and residual management standards (to address the instances of discard observed at off-site reclamation facilities in the damage cases). Finally, facilities operating under the transfer-based exclusion must also submit notification to their regulatory authority.
In addition, the 2007 DSW supplemental proposal included a case-by-case non-waste determination petition process that would allow applicants to receive a formal determination from EPA that their hazardous secondary materials were not discarded and therefore were not solid wastes. The case-by-case petition process would allow EPA or the authorized state to take into account the particular fact pattern of the recycling and to determine that the hazardous secondary materials in question were not solid wastes. The petition process for the non-waste determination was the same as that for the variances from the definition of solid waste found at 40 CFR 260.31.
Finally, EPA proposed a definition of legitimate recycling that restructured the legitimacy factors originally proposed in October 2003. The proposed legitimacy factors would be used to determine that the recycling of hazardous secondary materials is not a “sham” and thus, does not constitute discard.
In October 2008, EPA promulgated a final rule largely as proposed in March 2007, with some revisions and clarifications, including (1) clarifying that hazardous secondary materials held at a transfer facility for less than 10 days are considered to be in transport (and therefore such transfer facilities are not considered to be storing the hazardous secondary materials for the purpose of the DSW exclusion), (2) allowing the use of intermediate facilities that store hazardous secondary materials for more than 10 days under the transfer-based exclusion, provided the facilities comply with the same conditions applicable to reclamation facilities, (3) codifying financial assurance language in 40 CFR 261 subpart H for the transfer-based exclusion applicable to intermediate and reclamation facilities without RCRA permits, (4) requiring facilities operating under the generator-controlled and/or the transfer-based exclusion to notify their regulatory authority prior to operating under the exclusion and every other year thereafter, and (5) making legitimacy a condition of the exclusions and the non-waste determinations in that rule, but not finalizing the legitimacy language for all recycling activities.
On January 29, 2009, the Sierra Club submitted an administrative petition under RCRA section 7004(a), 42 U.S.C. 6974(a), to the Administrator of EPA requesting that the Agency repeal the October 2008 revisions to the definition of solid waste rule and stay the implementation of the rule.
The administrative petition was submitted at the same time that the American Petroleum Institute (API) and Sierra Club filed judicial Petitions for Review under RCRA section 7006(a), 42 U.S.C. 6976(a) challenging the rule in the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit). These cases, designated as Docket Nos. 09-1038 and 1041, respectively, are currently before the D.C. Circuit.
The Sierra Club petition argued that the revised regulations are unlawful and that they increase threats to public health and the environment without producing compensatory benefits and, therefore, should be repealed. Among other things, the petition singled out the lack of regulatory definitions for key conditions of the rule and disagreed with the Agency's findings that the rule would have no adverse environmental impacts, including the finding there would be no adverse impact to environmental justice communities or children's health.
On March 6, 2009, a coalition of industry associations (“industry coalition”) submitted a letter to the Administrator of EPA in response to the Sierra Club petition. This letter requested that EPA deny Sierra Club's petition on the grounds that the 2008 DSW final rule comports with court cases construing the scope of the definition of solid waste under RCRA, and that the 2008 DSW final rule achieves significant economic and conservation benefits, while imposing significant controls on the hazardous secondary material recycling industry that are fully protective of the environment. The letter also responds to each of the specific points raised by Sierra Club in its petition.
In response to Sierra Club's administrative petition and the industry coalition's letter to the Administrator of EPA, a May 27, 2009,
In the May 27, 2009,
Thirty-three people spoke at the public meeting and approximately 4,000 written comments were received, of which the majority were from private citizens who wrote in via a mass email campaign to repeal the rule. The remaining comments came from state and local governments (17), companies that generate hazardous secondary materials that are recycled (
Many of the commenters (including those at the public meeting and those who responded with written comments) expressed strong concerns that the Agency did not adequately address environmental justice in the rulemaking. In response to the concerns over the environmental justice analysis, EPA committed to perform a more rigorous and thorough analysis of the environmental justice impacts of the 2008 DSW final rule. On January 15, 2010, EPA released for public input a draft methodology for conducting the DSW Environmental Justice Analysis. The draft methodology was presented to the National Environmental Justice Advisory Committee (NEJAC) and discussed at three public roundtable meetings, and was used to develop the draft environmental justice analysis for the DSW rulemaking.
On September 7, 2010, EPA signed a settlement agreement with the Sierra Club under which the Sierra Club agreed to withdraw their administrative petition and EPA agreed to (1) prepare a notice of proposed rulemaking to be signed no later than June 30, 2011,
The Sierra Club's administrative petition included a request to immediately stay and revoke the 2008 DSW final rule. To support this request, the petition asserted that the damage case study demonstrates that hazardous waste recycling has caused substantial harm to health and the environment and that the 2008 DSW final rule increases the likelihood of greater future harm. The petition also asserted that the 2008 DSW final rule does not account for the possibility that unstable recycling markets or financial conditions increase the risk of hazardous waste abandonment. In addition, the petition asserted that the 2008 DSW final rule will not substantially increase recycling and that the economic benefits are few and will only accrue to deregulated industries. Furthermore, the petition claimed that there would be job losses in the hazardous waste treatment industry and increased worker health problems as a result of the rule.
EPA addressed Sierra Club's request to revoke the 2008 DSW final rule in whole and stay its implementation in the May 27, 2009, public meeting notice, which continues to reflect EPA's current thinking. In that notice, EPA stated at 74 FR 25202:
The scope of possible changes to the definition of solid waste is governed by the concept of “discard.” As discussed in the preamble to the DSW final rule, EPA used the concept of discard as the central organizing idea behind the October 2008 revisions to the definition of solid waste. As stated in RCRA section 1004(27), “solid waste” is defined as “. . . any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and
For example, in the DSW final rule, EPA determined that if the generator maintains control over the recycled hazardous secondary material and if the material is legitimately recycled under the standards established in the final rule and not
Because the final revisions to the definition of solid waste are closely tied to EPA's interpretation of the concept of “discard,” EPA does not plan to repeal the rule in whole or stay its implementation. Such an action could result in hazardous secondary materials that are not discarded being regulated as hazardous wastes. In particular, EPA does not expect to repeal either the exclusion for hazardous secondary materials reclaimed under the control of the generator or the non-waste determination petition process.
Today's final rule includes several changes to the generator-controlled exclusion and to the non-waste determination petition process, but, for the reasons stated above, EPA did not stay the rule and is not withdrawing either provision.
Finally, the Sierra Club's petition asserted that EPA's conclusion that the 2008 DSW final rule would have no adverse environmental impacts, and therefore would have no disproportional adverse impacts to minority and low-income communities, is unsupported by the administrative record. In response to these comments and similar comments by other stakeholders at the June 2009 public meeting, EPA committed to producing an expanded analysis of the potential disproportionate impacts of the 2008 DSW final rule. A draft methodology for the analysis was shared with the public in January 2010, and three public roundtable discussions were held to discuss the draft methodology and were addressed in the development of the draft DSW environmental justice analysis.
As part of the development of the 2011 DSW proposal, EPA conducted a revised environmental justice analysis, following the methodology discussed with stakeholders during the 2010 roundtable discussions. The purpose of the draft DSW environmental justice analysis was two-fold. First, the analysis represents a systematic examination of the potential for an increase in adverse impacts under the 2008 DSW final rule (considered independently from which communities might be impacted). Second, the analysis includes a demographic assessment, characterizing the extent any potential adverse impacts are likely to affect minority and/or low-income communities. The results of this analysis were intended to inform EPA's decision-making on which regulatory options to pursue, within the scope of the Agency's authority to regulate hazardous waste.
The results of the draft DSW environmental justice analysis demonstrate that hazardous secondary material recycling can pose significant potential hazards to human health and the environment, and that it is reasonable to conclude that the potential for hazards from hazardous secondary materials recycling adversely impacting human health and the environment could increase under the 2008 DSW final rule. Of particular concern are (1) the absence of required measures (
Moreover, the analysis demonstrates that some of the communities potentially impacted are minority and low-income communities, and in most cases, the populations potentially impacted are disproportionately minority and/or low income. In particular, the population-level analysis shows a statistically significant potential disproportionate impact to minority and low-income populations. In addition, underlying vulnerabilities traditionally associated with minority and low-income communities can pose the potential to exacerbate potential adverse impacts of the 2008 DSW final rule. The ability of communities to participate in the decision-making process and the potential for multiple and cumulative effects are of particular concern.
The analysis has undergone peer review, and the draft environmental justice analysis and peer review comments were presented for public comment as part of the supporting documentation for the 2011 DSW proposal.
On July 22, 2011, EPA published a proposal to revise the definition of solid waste. Comments were requested, and the comment period was extended until October 20, 2011. In September 2011, EPA held two public meetings to accept public comment on the proposal in Philadelphia, PA and in Chicago, IL. The goal of the 2011 DSW proposal was to re-examine the 2008 DSW final rule to determine if any changes are needed to ensure that the rule, as implemented, protects human health and the environment from the mismanagement of hazardous secondary materials, while at the same time promote sustainability by encouraging the reclamation of such materials. The proposed rule consisted of six possible actions, which are summarized below.
In the 2011 DSW proposal, EPA proposed to retain the exclusion for hazardous secondary materials reclaimed under the control of the generator found at 40 CFR 261.4(a)(23), with certain revisions. Proposed revisions to the 2008 DSW rule generator-controlled exclusion include (1) adding a regulatory definition of “contained,” (2) making notification a condition of the exclusion, (3) adding a recordkeeping requirement for speculative accumulation, and (4) adding a recordkeeping requirement for reclamation under toll manufacturing agreements. In addition, EPA requested comment on other ways to strengthen the generator-controlled exclusion in order to protect human health and the environment.
EPA proposed to replace the exclusion for hazardous secondary materials that are transferred from the generator to other persons for the purpose of reclamation found at 40 CFR 261.4(a)(24) and(25) with an alternative Subtitle C regulatory scheme. EPA's analyses of potential hazards posed by the 2008 DSW rule indicate that, when implemented, the transfer-based exclusion may adversely impact human health and the environment from hazardous secondary materials that may become discarded, and that minority and low-income populations may be disproportionately affected by these impacts.
Under the proposed alternative Subtitle C requirements, the hazardous recyclable materials would be managed in accordance with the current RCRA Subtitle C requirements, including
EPA also requested comment on alternative approaches that would address the concerns regarding the potential risk under the transfer-based exclusion to human health and the environment from discarded hazardous secondary material, such as including additional conditions.
In addition, EPA requested comment on an exclusion from the definition of solid waste for certain types of higher-value solvents sent for remanufacturing into similarly higher-value products. Further, the action requested comment on a petition process for adding other higher-value hazardous secondary materials that are destined to be remanufactured into similarly higher-value products.
EPA also proposed revisions to the definition of legitimacy found at 40 CFR 260.43 for the purpose of distinguishing genuine recycling from “sham recycling.” Proposed revisions to the 2008 DSW final rule legitimacy definition include (1) applying the codified “legitimacy” definition to all hazardous secondary material recycling activities; (2) making all legitimacy factors mandatory, with a petition process for those instances that a factor is not met even when the recycling is legitimate; and (3) requiring documentation of legitimacy.
EPA also proposed revisions to the case-by-case solid waste variances and non-waste determinations found at 40 CFR 260.30-260.34 in order to ensure protection of human health and the environment and foster greater consistency among the implementing agencies. Proposed revisions affect both the non-waste determinations from the 2008 DSW final rule and pre-2008 existing variances. Specific proposed revisions include (1) requiring facilities which were granted a variance to re-apply for the variance in the event of a change in circumstances that affects how that hazardous secondary material meets the criteria for the variance; (2) requiring facilities to re-notify every two years with updated information; (3) revising the criteria for the partial reclamation variance to clarify when the variance applies and to require, among other things, that all the criteria for this variance must be met; (4) revising the criteria for the non-waste determination in 40 CFR 260.34 to require that petitioners demonstrate why the existing solid waste exclusions would not apply to their hazardous secondary materials; and (5) designating the Regional Administrator as the EPA recipient of petitions for variances and non-waste determinations.
Finally, EPA requested comment on revisions that would affect other (pre-2008) solid waste exclusions and hazardous waste exemptions for recyclable materials. These possible revisions include (1) recordkeeping for speculative accumulation as applicable; (2) requiring facilities to re-notify every two years with updated information on their operating status under the various exclusions and exemptions; and (3) containment standards for excluded hazardous secondary materials.
This final rule is effective on July 13, 2015.
In today's final rule, EPA is retaining and revising the conditional exclusion from the definition of solid waste at 40 CFR 261.4(a)(23) for those hazardous secondary materials that are legitimately reclaimed within the United States or its territories under the control of the generator. Revisions to the generator-controlled exclusion include (1) adding a codified definition of “contained;” (2) adding recordkeeping requirements for same company and toll manufacturing reclamation; (3) making notification a condition of the exclusion; (4) adding a requirement to document that recycling under the exclusion is legitimate; and (5) adding emergency preparedness and response conditions. In addition, we have amended the speculative accumulation provisions to add a recordkeeping requirement. A discussion of the public comments on the July 2011 DSW proposal and the Agency's responses can be found in section XIV of this preamble and the full response to comment document in the docket for this rulemaking.
The definition of “hazardous secondary material generated and reclaimed under the control of the generator” is found at 40 CFR 261.4(a)(23) for both land-based and non-land-based units, since the requirements for both types of units are the same. A land-based unit is defined in 40 CFR 260.10 as an area where hazardous secondary materials are placed in or on the land before recycling, but this definition does not include land-based production units. Examples of land-based units include surface impoundments and piles. Examples of non-land-based units include tanks, containers, and containment buildings.
Hazardous secondary materials are considered “under the control of the generator” under the following circumstances:
• They are generated and then reclaimed at the generating facility; or
• they are generated and reclaimed at different facilities, if the generator certifies that the hazardous secondary materials are sent either to a facility controlled by the generator or to a facility under common control with the generator, and that either the generator or the reclaimer has acknowledged responsibility for the safe management of the hazardous secondary materials. In addition, the generating and receiving facilities must maintain at their facilities for no less than three years records of hazardous secondary materials sent or received under this exclusion. The records must contain the name of the transporter, the date of the shipment, and the type and quantity of the hazardous secondary material shipped or received. The requirements may be satisfied by routine business records (
• they are generated and reclaimed pursuant to a written agreement between a tolling contractor and toll manufacturer, if the tolling contractor certifies that it has entered into a tolling contract with a toll manufacturer and that the tolling contractor retains ownership of, and responsibility for, the hazardous secondary materials generated during the course of the manufacture, including any releases of hazardous secondary materials that occur during the manufacturing process. The tolling contractor and the toll manufacturer must maintain at their facilities for no less than three years records of hazardous secondary materials sent or received under this exclusion. The records must contain the name of the transporter, the date of the shipment, and the type and quantity of the hazardous secondary material shipped or received. The requirements may be satisfied by routine business records (
Materials subject to material-specific management conditions under the other exclusions of 40 CFR 261.4(a) when reclaimed and spent lead-acid batteries are not eligible for the generator-controlled exclusion at 40 CFR 261.4(a)(23).
In addition, materials managed under the generator-controlled exclusion at 40 CFR 261.4(a)(23) must be contained, may not be speculatively accumulated, and are subject to a notification provision and documentation of legitimacy determinations, which must be maintained on site. Furthermore, the generator must satisfy certain emergency preparedness and response conditions. These conditions and any changes from the 2008 DSW final rule are explained below.
In the 2008 DSW final rule, EPA determined that if the generator maintains control over the recycled hazardous secondary material, the material is legitimately recycled under the conditions of the exclusion, and the material is not speculatively accumulated within the meaning of EPA's regulations, then the hazardous secondary material is not discarded. Under these circumstances, the hazardous secondary material is being treated as a valuable commodity rather than as a waste. By maintaining control over, and potential liability for, the recycling process, the generator ensures that the hazardous secondary materials are not discarded (
In today's final rule, EPA reaffirms its determination that when a generator legitimately recycles hazardous secondary materials under its control under the conditions of the exclusion, the generator has not abandoned the material and has every opportunity and incentive to maintain oversight of, and responsibility for, the hazardous secondary material that is reclaimed.
EPA is however making several revisions to the generator-controlled exclusion, the rationale for each of which is explained below.
Under the generator-controlled exclusion, hazardous secondary materials must be contained pursuant to the definition in 40 CFR 260.10, regardless of whether they are stored in land-based units or non-land-based units. Under that definition, a hazardous secondary material is contained if it is managed in a unit that meets the following criteria: (1) The unit is in good condition, with no leaks or other continuing or intermittent unpermitted releases of the hazardous secondary materials to the environment, and is designed, as appropriate for the hazardous secondary material, to prevent releases of the hazardous secondary materials to the environment. Unpermitted releases are releases that are not covered by a permit (such as a permit to discharge to water or air) and may include, but are not limited to, releases through surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures; (2) the unit is properly labeled or otherwise has a system (such as a log) to immediately identify the hazardous secondary materials in the unit; and (3) the unit holds hazardous secondary materials that are compatible with other hazardous secondary materials placed in the unit and is compatible with the materials used to construct the unit and addresses any potential risks of fires or explosions. Hazardous secondary materials in units that meet the applicable requirements of 40 CFR parts 264 or 265 are presumptively contained.
The codification of these regulatory criteria will help regulatory authorities and facilities operating under the exclusion to determine whether a unit adequately controls the movement of hazardous secondary materials. The contained standard is a key provision for determining that a hazardous secondary material is not discarded. Hazardous secondary materials that are not contained and are instead released to the environment are not destined for recycling and are clearly discarded.
In today's final rule, EPA is retaining the “contained” condition based on the rationale that hazardous secondary materials released to the environment are not destined for recycling and are clearly discarded, but is adding a regulatory definition of contained to make it easier for implementing agencies and the regulatory community to determine that a material is contained. In the preamble to the 2008 DSW final rule (73 FR 64681), the Agency stated that a hazardous secondary material is “contained” if it is placed in a unit that controls the movement of the hazardous secondary materials out of the unit and into the environment. However, EPA did not provide more specific guidance on how an implementing agency or the regulated community would determine if a unit did adequately control the movement of hazardous secondary materials and meet the contained standard.
As EPA noted in the 2011 DSW proposal and as reflected in many of the public comments, of particular concern is the lack of preventative measures in the contained standard in the 2008 DSW final rule. This is noted as a major regulatory gap in EPA's assessment of the potential for adverse impacts from the 2008 DSW final rule, including adverse impacts to minority and low income communities. Given that the contained standard is one of the major requirements for determining that hazardous secondary materials reclaimed under the generator-controlled exclusion are not discarded, this lack of specificity could undermine the exclusion. That is, if the primary or only way to determine that the hazardous secondary material is not contained is to wait until it is released to the environment, then the 2008 DSW final rule increases the likelihood of discard for these materials.
The Agency therefore is adding a regulatory definition of “contained” that resolves this uncertainty without sacrificing the flexibility that would allow the implementing authority to take into account a wide variety of case-specific circumstances when necessary. This definition specifies factors which, if met, demonstrate that the hazardous secondary materials in a unit are handled as valuable raw materials, intermediates, or products and thus are not being discarded. We note that the elements of the contained definition are all measures that are used to prevent releases and ensure operation and maintenance of the storage unit in the same manner as a production unit.
If these criteria were not met, the materials remaining in the unit would be considered solid and hazardous wastes and the unit would be subject to the appropriate hazardous waste regulations.
Also, to clarify the regulatory status of units from which releases have occurred, the Agency is also adding to 40 CFR 261.4(a)(23) the following language: (1) A hazardous secondary material released to the environment is discarded and a solid waste unless it is immediately recovered for the purpose of reclamation; and (2) hazardous secondary material managed in a unit with leaks or other continuing or intermittent unpermitted releases of the hazardous secondary material to the environment is discarded and a solid waste.
Under today's rule, generators, reclaimers, tolling contractors, and toll manufacturers operating under the generator-controlled exclusion at 40 CFR 261.4(a)(23) are required to submit a notification prior to operating under these exclusions and by March 1 of each even-numbered year thereafter to their regulatory authority. Facilities must also notify their regulatory authority within 30 days of stopping management of hazardous secondary materials under the rule. The notification provisions are found at 40 CFR 260.42.
The substance of the notification provisions is essentially the same as that under the 2008 DSW final rule. However, under today's rule, such notification is a condition of the exclusion rather than a requirement. At issue here are not the specifics of the notification in 40 CFR 260.42, but rather the consequences an entity would face for failing to notify. Thus, if notification is a requirement under the authority of RCRA section 3007 (as specified under the 2008 DSW final rule), it means that failure to notify would constitute a violation of the notification regulations. On the other hand, if notification is a condition of the exclusion, it means failure to notify would potentially result in the loss of the exclusion for the hazardous secondary materials (
EPA is finalizing the notification provision as a condition of the generator-controlled exclusion because it is the only formal indication of a facility's intent to reclaim a hazardous secondary material under the conditional exclusion rather than to discard it. For example, if during an inspection of a large quantity generator of hazardous waste, EPA were to discover a hazardous secondary material that had been stored on-site for more than 90 days without a RCRA permit (an act that would typically be a violation of the hazardous waste regulations), a previously filed notification would be an indication that the facility was planning to reclaim the hazardous secondary material under the conditions of the exclusion. Absent such a notification, it would be difficult for the facility to justify its true intentions for the hazardous secondary material. Failure to meet the notification provision would be a strong indication that the facility either did not intend to comply with or was unaware of the provisions of the exclusion, since it failed to comply with the first step for claiming the exclusion. In both cases, the lack of notification shows that the hazardous secondary material may be discarded. Making notification a condition of the rule would further discourage facilities from trying to evade enforcement by not notifying because the costs of not notifying could be significantly higher than if notification remains a requirement. Finally, notification is important for informing regulators and the public about hazardous secondary materials activity and, without such notification, regulators are unable to effectively monitor compliance. This notification condition will keep regulators and the public informed about hazardous secondary materials activity and will enable effective compliance monitoring.
Under today's rule, all persons subject to the speculative accumulation requirements at 40 CFR 261.1(c)(8) (including, but not limited to, persons operating under the generator-controlled exclusion at § 261.4(a)(23)) must place materials subject to those requirements in a storage unit with a label indicating the first date that the material began to be accumulated. If placing a label on the storage unit is not practicable, the accumulation period must be documented through an inventory log or other appropriate method. This provision will allow inspectors and other regulatory authorities to quickly ascertain how long a facility has been storing an excluded hazardous secondary material, and, therefore, whether that facility is in compliance with the accumulation time limits of § 261.1(c)(8).
EPA notes that the speculative accumulation provision only applies to persons who are accumulating hazardous secondary materials. Processes involving hazardous secondary materials being returned to the original process via pipes are not considered to accumulate hazardous secondary materials and thus the speculative accumulation provision (and recordkeeping therein) would not apply to these scenarios.
Today's exclusion for tolling and “same-company” recycling requires recordkeeping for shipments sent and received under the exclusion. The records must contain the name of the transporter, the date of the shipment, and the type and quantity of hazardous secondary material shipped or received. These records may consist of normal business records. Such recordkeeping will facilitate enforcement of the exclusion and will allow tracking of hazardous secondary materials to ensure that these materials remain under the control of the generator and are not discarded.
Persons performing the recycling of hazardous secondary materials under the generator-controlled exclusion of 40 CFR 261.4(a)(23) must maintain documentation of their legitimacy determination on-site. Documentation must be a written description of how the recycling meets all four factors in 40 CFR 260.43(a), except as otherwise noted in 40 CFR 260.43(d). Documentation must be maintained for three years after the recycling operation has ceased.
The Agency has determined that requiring documentation under the generator-controlled exclusion to demonstrate that the hazardous secondary materials are legitimately recycled and not discarded is appropriate because this exclusion is generic and can be used by a wide variety of industries recycling any of a number of hazardous secondary materials.
Many of the environmental and human health damages identified by the environmental problems study were caused by fires and explosions and the lack of specific requirements to prevent and respond to such problems is a significant gap in the 2008 DSW exclusion.
EPA finds that planning and preparing for an emergency demonstrates a generator's intent to not only protect human health and the environment but to reduce potential loss of valuable hazardous secondary materials. In the absence of such requirements, hazardous secondary materials pose a greater risk of being released and discarded to the environment.
Therefore, EPA is adding a condition to the generator-controlled exclusion that generators must follow certain emergency preparedness and response regulations, found in 40 CFR part 261 subpart M, which are dependent on the amount of hazardous secondary material the generator accumulates on site at any time. Under the final rule, generators that accumulate less than or equal to 6,000 kg of hazardous secondary material on site must meet regulations like the emergency preparedness and response regulations currently required for small quantity generators of hazardous waste. Generators that accumulate more than 6,000 kg of hazardous secondary material on site must meet regulations like the emergency preparedness regulations currently required for large quantity generators of hazardous waste. EPA chose to set the threshold at 6,000 kg based on the current hazardous waste generator regulations, which require generators that accumulate greater than 6,000 kg of hazardous waste on site to comply with large quantity generator regulations, including emergency preparedness and response regulations. EPA finds that generators that accumulate greater amounts of hazardous secondary material on site inherently pose greater risk to human health and the environment from a potential release caused by a fire or explosion and thus it is more appropriate for these generators to take additional steps to prepare for such events.
Specifically, EPA is requiring that generators that accumulate less than or equal to 6,000 kg of hazardous secondary material on site comply with the emergency preparedness and response requirements equivalent to those in part 265 subpart C, which discuss maintaining appropriate emergency equipment on site, having access to alarm systems, maintaining needed aisle space, and making arrangements with local emergency authorities. A generator must also have a designated emergency coordinator who must respond to emergencies and must post certain information next to the telephone in the event of an emergency.
For generators that accumulate more than 6,000 kg of hazardous secondary material on site, EPA is requiring that generators comply with requirements equivalent to those in part 265 subparts C and D, which includes all the requirements already discussed above for those accumulating less than or equal to 6,000 kg, as well as requiring a contingency plan and sharing the plan with local emergency responders. EPA recommends that the contingency plan be based on the National Response Team's Integrated Contingency Plan Guidance (One Plan), discussed in the
EPA has determined that adding these emergency preparedness and response conditions to the generator-controlled exclusion meets the goals of the Chemical Safety EO and also will ensure that those facilities managing hazardous secondary material under the exclusion will be doing so in a manner that allows them to safely recycle the hazardous secondary material and limit loss of materials that are supposed to be recycled into the environment. These provisions are the common-sense steps that a facility that manages hazardous materials should take to reduce risk to their workers and the public. Additionally, EPA has determined that structuring the emergency preparedness and response conditions of the generator-controlled exclusion after the existing hazardous waste requirements serves to reduce burden on generators, as generators are likely already familiar and complying with this regulations.
Based on comments received and further assessment, EPA has decided to replace the 2008 DSW exclusion for hazardous secondary materials that are transferred for the purpose of legitimate reclamation (
The 2008 exclusion for hazardous secondary materials that are transferred for the purpose of legitimate reclamation, which EPA is withdrawing today and replacing with the verified recycler exclusion, applied to hazardous secondary materials (
General conditions for hazardous secondary material generators, reclaimers, and intermediate facilities
• Entities must submit a notification prior to operating under the exclusion and by March 1 of each even-numbered year thereafter reporting types and quantities of hazardous secondary materials being reclaimed, and
• hazardous secondary materials managed at such facilities must not be speculatively accumulated as defined in § 261.1(c)(8) and must be legitimately reclaimed as specified in § 260.43.
Conditions applicable to generators of hazardous secondary materials included the following:
• Containment of such hazardous secondary materials,
• reasonable efforts, a form of due diligence, to ensure that the intermediate facility or reclaimer intends to properly manage and legitimately recycle the hazardous secondary material, and
• retention of records of off-site shipments for three years.
Conditions applicable to intermediate facilities and reclaimers included the following:
• Containment of hazardous secondary materials,
• transmittal of confirmations of receipt to generators,
• retention of records for hazardous secondary materials received and sent off-site,
• financial assurance equivalent to that required of hazardous waste facilities, and
• (for reclaimers) proper management of any residuals generated from the reclamation activities.
In addition, for any hazardous secondary materials excluded under 40 CFR 261.4(a)(24) generated and then exported to another country for reclamation, the exporter must notify and obtain consent from the receiving country and file an annual report per 40 CFR 261.4(a)(25).
In the 2008 DSW rule, EPA determined that, absent specific conditions, it is reasonable to conclude that transfers of hazardous secondary materials to third-party recyclers generally involve discard except for instances where EPA has evaluated and promulgated a case-specific exclusion that a hazardous secondary material is not a solid waste. Generators of hazardous secondary materials who do not reclaim these materials themselves often ship these materials to a commercial facility or another manufacturer for reclamation in order to avoid the costs of disposing of the material. Because of the low commercial value and the high potential liability associated with most types of hazardous secondary materials (
Evidence of hazardous secondary materials not being managed as a valuable product is shown in the results of the environmental problems study, found in the docket of the 2008 DSW final rule. Of the 208 damage cases discussed in the 2008 DSW final rule, 195 (or approximately 94%) were from reclamation activities of off-site third-party recyclers, with clear instances of discard resulting in risk to human health and the environment, including cases of large-scale soil and ground water contamination with remediation costs in some instances in the tens of millions of dollars (73 FR 64673).
In addition, the market forces study in the docket for the 2008 DSW final rule supports the conclusion that the pattern of discard at off-site third-party reclaimers is a result of inherent differences between commercial recycling and normal manufacturing. As opposed to manufacturing, where the cost of raw materials or intermediates (or inputs) is greater than zero and revenue is generated primarily from the sale of the output, hazardous secondary materials recycling can involve generating revenue primarily from the receipt of the hazardous secondary materials. Recyclers of hazardous secondary materials in this situation thus respond differently than traditional manufacturers to economic forces and incentives, accumulating more inputs (hazardous secondary materials) than can be processed (reclaimed). In addition, commercial recyclers have less flexibility than in-house recyclers in changing how they manage their hazardous secondary materials (
The 2008 DSW final rule attempted to address this pattern of adverse impacts to human health and the environment from hazardous secondary materials transferred to a third party for recycling by setting conditions for the transfer-based exclusion. The intent of these conditions was to define when transfers to third-party recyclers would not result in discard. The link between each of the conditions and their ability to prevent discard is discussed in detail in the 2008 DSW final rule preamble at 73 FR 64675-79.
However, EPA failed to take into account how the conditions of the 2008 transfer-based exclusion would work when actually implemented. EPA's analysis of the 2008 DSW final rule was based on the assumption that DSW conditions would be implemented to the same degree as Subtitle C hazardous waste regulations, without taking into consideration whether the 2008 DSW rule would provide EPA and the authorized states the ability for the same level of oversight as the fully applicable Subtitle C hazardous waste regulations, which leads to the second part of EPA's rationale for its 2011 proposal to replace the transfer-based exclusion with an alternative Subtitle C regulatory scheme.
Before excluding hazardous secondary materials that have already been determined to be hazardous wastes when discarded, the Agency needs adequate assurance that the conditional exclusion will not result in discarded hazardous materials posing significant risks to human health and the environment (
Over the years, EPA has developed many such conditional exclusions (found in 40 CFR 261.4(a)). In each of these cases, EPA did so by examining the specific hazardous secondary material or the specific recycling practice, or both, before making a determination that the hazardous secondary material is not solid waste. However, unlike these types of specific transfer-based exclusions from the definition of solid waste, the 2008 transfer-based exclusion in 40 CFR 261.4(a)(24) and (25) did not focus on the chemical or physical properties of any particular type of hazardous secondary material or on how it is typically managed. Instead, the transfer-based exclusion is broadly applicable to a wide range of hazardous spent materials and listed by-products and sludges. Thus, while other solid waste exclusions were developed based on EPA's knowledge of the specific hazardous secondary materials, the industries generating them, or the current recycling management practice for those hazardous secondary materials, the 2008 DSW transfer-based exclusion relied entirely on the conditions that were developed by EPA operating as the Agency anticipates they should. The conditions themselves were developed in a reasoned manner,
However, the conditions for the transfer-based exclusion in the 2008 DSW final rule lack several important implementation provisions that the Subtitle C requirements for treatment, storage, and disposal facilities provide. These provisions ensure a greater level of oversight, which ensures that EPA or the state has reviewed a facility's planned operations before management begins and which allows public participation in the environmental decision-making process, thereby increasing the likelihood of compliance and decreasing the potential for risk to human health and the environment from discarded hazardous secondary material. EPA has performed a detailed regulatory comparison of the 2008 DSW final rule with the fully applicable Subtitle C hazardous waste regulations, identifying significant differences that could lead to the potential for an increased likelihood of environmental and public health hazards, including fires/explosion, soil and water contamination, air emissions, and abandoned hazardous secondary materials.
Based on this reconsideration of the DSW transfer-based exclusion conditions, EPA has determined that hazardous secondary materials transferred off-site to third party reclaimers for the purpose of legitimate reclamation are most appropriately covered under a system that allows for oversight and public participation prior to the start of operations to help ensure that (1) the hazardous secondary material will be legitimately reclaimed and not discarded and (2) the potential risk of releases from the facility impacting the surrounding community will be minimized. The need for such additional oversight and public participation is demonstrated by (1) evidence of past damage cases leading to significant risk to human health and the environment from hazardous secondary materials originally intended for recycling and (2) the underlying perverse incentives of the recycling market to over-accumulate such hazardous secondary materials intended for recycling, resulting in discard of the material. In other words, the transfer-based exclusion can exacerbate financial incentives for small and/or inexperienced businesses to take in more hazardous secondary materials than they actually can use, mishandle it, and even go out of business, as shown by the fact that bankruptcies or other types of business failures were associated with 66% of the recycling damage cases, resulting in multi-million dollar cleanups.
At the same time, as EPA noted in the 2011 DSW proposal and as was echoed in the public comments, EPA has also carefully monitored the implementation of the 2008 DSW final rule since it came into effect in December 2008, and to date, no environmental problems have been reported by states related to 2008 transfer-based exclusion. As of April 2014, a total of 65 facilities are operating under the transfer-based exclusion, 56 of which are generators transferring off-site and 7 which are reclamation facilities.
In addition, it should be noted that the Department of Environmental Protection for the State of Pennsylvania (PA DEP), where 27 of the 65 facilities operating under the transfer-based exclusion are located, commented strongly in favor of keeping the transfer-based exclusion: “PA DEP has experienced no compliance problems or issues of any nature with those generators or reclamation facilities operating under this conditional exclusion, known as the transfer-based exclusion. In addition, under the transfer-based exclusion, large quantities of hazardous solvents have been diverted to reclamation and reuse rather than being burned for energy recovery, resulting in greater resource conservation.”
Given that the transfer-based exclusion has been achieving its intended purpose of encourage safe, legitimate recycling, withdrawing the transfer-based exclusion and replacing it with RCRA Subtitle C hazardous waste requirements is unnecessary and would result in hazardous secondary material that is currently being legitimately recycled and not discarded being regulated as hazardous waste. Because Subtitle C regulation would be more stringent that the current exclusion, if EPA were to finalize the alternative Subtitle C standards, Pennsylvania (and other states that have adopted the 2008 DSW rule) would have to regulate this material as hazardous waste, despite the
However, it is important to note that the comments from PA DEP went on to recommend that the transfer-based exclusion be limited to RCRA-permitted facilities. Because all recycling under the transfer-based exclusion has been (to date) performed at RCRA-permitted facilities, EPA is unable to extrapolate what would happen at facilities without RCRA Subtitle C permits if the transfer-based exclusion were fully implemented. Given the evidence of past damage cases leading to significant risk to human health and the environment from hazardous secondary materials originally intended for recycling and the underlying perverse incentives of the recycling market to over-accumulate such hazardous secondary materials intended for recycling, resulting in discard of the material, additional oversight of recycling beyond the self-implementing measures of the transfer-based exclusion is needed to ensure that the hazardous secondary material is legitimately recycled and not discarded.
To address this issue, EPA is requiring as a condition of the new verified recycler exclusion that generators must send their hazardous secondary materials to a RCRA-permitted recycler or intermediate facility
In addition, as described below, the verified recycler exclusion retains those conditions from the 2008 transfer-based exclusion that EPA determined are necessary to properly identify hazardous secondary material that is legitimately recycled and not discarded, and also includes the new conditions that apply to the generator-controlled exclusion being finalized today.
EPA expects that all facilities that are currently recycling hazardous secondary materials under the 2008 transfer-based exclusion will be able to continue to recycle these materials under the verified recycler exclusion, because all recycling under the transfer-based exclusion is being done at RCRA-permitted facilities, which also qualify for the verified recycler exclusion. Moreover, the additional conditions of the verified recycler exclusion address the regulatory gaps EPA identified in the 2011 DSW proposal that could have resulted in significant risk to human health and the environment from discarded material, if the 2008 DSW had been fully implemented to include facilities without RCRA permits or other regulatory oversight prior to beginning recycling.
Finally, EPA notes that facilities managing excluded hazardous secondary materials under the verified recycling exclusion are still potentially subject to RCRA enforcement actions if they fail to meet the conditions of the exclusion. Persons that handle these hazardous secondary materials are responsible for maintaining the exclusion by ensuring that the conditions are met. If the hazardous secondary materials are not managed pursuant to these restrictions, they are not excluded. They would then be considered solid and hazardous wastes if they were listed or they exhibited a hazardous waste characteristic for RCRA Subtitle C purposes.
The conditions discussed below describe EPA's evaluation of each of the conditions under the 2008 transfer-based exclusion that EPA is retaining in the verified recycler exclusion, as well as the additional conditions EPA has determined are necessary to address the regulatory gaps identified in the transfer-based exclusion in order to ensure that the verified recycler exclusion identifies hazardous secondary materials that are legitimately recycled and not discarded. By including these conditions, EPA is identifying those hazardous secondary materials that will be legitimately recycled and not discarded.
Furthermore, under today's rule, all persons subject to the speculative accumulation requirements at 40 CFR 261.1(c)(8) (including, but not limited to, persons operating under the verified recycler exclusion at § 261.4(a)(24)) must place materials subject to those requirements in a storage unit with a label indicating the first date that the material began to be accumulated. If placing a label on the storage unit is not practicable, the accumulation period must be documented through an inventory log or other appropriate method.
This provision will allow inspectors and other regulatory authorities to quickly ascertain how long a facility has been storing an excluded hazardous secondary material, and, therefore, whether that facility is in compliance with the accumulation time limits of § 261.1(c)(8).This provision is being retained in the verified recycler exclusion to ensure that the hazardous secondary materials will be recycled rather than discarded through speculative accumulation and abandonment.
• The name, address, and EPA ID number (if applicable) of the facility;
• The name and telephone number of a contact person;
• The NAICS code of the facility;
• The exclusion under which the hazardous secondary materials will be managed;
• When the facility expects to begin managing the hazardous secondary materials in accordance with the exclusion;
• A list of hazardous secondary materials that will be managed according to the exclusion (reported as the EPA hazardous waste numbers that would apply if the hazardous secondary materials were managed as hazardous waste);
• For each hazardous secondary material, whether the material, or any portion thereof, will be managed in a land-based unit;
• The quantity of each hazardous secondary material to be managed annually; and
• The certification (included in EPA form 8700-12) signed and dated by an authorized representative of the facility.
If a facility has submitted a notification, but then subsequently stops managing hazardous secondary materials in accordance with the exclusion, the facility must re-notify the Regional Administrator within 30 days using the same EPA Form 8700-12. We consider a facility to have `stopped' managing hazardous secondary materials when a facility no longer generates, manages and/or reclaims hazardous secondary materials under the exclusion and does not expect to manage any amount of hazardous secondary material under the exclusion for at least one year. Of course, a facility could certainly choose to begin managing hazardous secondary materials again and would simply have to submit a notification in compliance with 40 CFR 260.42.
This notification condition is the same as the notification condition for the generator-controlled exclusion and is an indication that the facility is planning to legitimately recycle the hazardous secondary materials and not discard them. As with the generator-controlled exclusion, EPA is finalizing the notification provision as a condition of the transfer-based exclusion because it is the only formal indication of a facility's intent to reclaim a hazardous secondary material under the conditional exclusion rather than to discard it. For further discussion on the notification, including examples of when a facility must re-notify that it has stopped managing hazardous secondary materials, see section V.B.2 of today's preamble.
Therefore, EPA is requiring that generators must follow certain emergency preparedness and response regulations under the verified recycler exclusion. These regulations are found in 40 CFR part 261 subpart M and are dependent on the amount of hazardous secondary material the generator accumulates on site at any time.
Specifically, EPA is requiring that generators that accumulate less than or equal to 6,000 kg of hazardous secondary material on site comply with the emergency preparedness and response requirements equivalent to those in part 265 subpart C, which discuss maintaining appropriate emergency equipment on site, having access to alarm systems, maintaining needed aisle space, and making arrangements with local emergency authorities. A generator must also have a designated emergency coordinator who must respond to emergencies and must post certain information next to the telephone in the event of an emergency.
For generators that accumulate more than 6,000 kg of hazardous secondary material on site, EPA is requiring that they comply with requirements equivalent to those in part 265 subparts C and D, which includes all the requirements already discussed above for those accumulating less than or equal to 6,000 kg, as well as requiring a contingency plan and sharing the plan with local emergency responders. EPA
EPA has determined that adding these emergency preparedness and response conditions meets the goals of the Chemical Safety EO and also will ensure that those facilities managing hazardous secondary material under the exclusion will be doing so in a manner that allows them to safely recycle the hazardous secondary material and limit loss into the environment of materials that are supposed to be recycled. These provisions are the common-sense steps that a facility that manages hazardous materials should take to reduce risk to their workers and the public. Additionally, structuring the emergency preparedness and response conditions of the verified recycler exclusion after the existing hazardous waste requirements serves to reduce burden on generators, as generators are already familiar and complying with this regulations.
Note that in the case of a permitted facility the management of the hazardous secondary materials must be addressed under the RCRA part B permit or interim status standards. In other words, if the permit standards do not extend to the hazardous secondary materials being reclaimed, then the reclamation or intermediate facility is required to either modify the permit to cover those materials or obtain a solid waste variance from EPA or the authorized state before operating under the exclusion.
This condition addresses the major regulatory gap in the transfer-based exclusion of lack of oversight and public participation for hazardous secondary material recycling facilities that do not have RCRA permits. Given the evidence of past damage cases leading to significant risk to human health and the environment from hazardous secondary materials originally intended for recycling and the underlying perverse incentives of the recycling market to over-accumulate such hazardous secondary materials intended for recycling, resulting in discard of the material, additional oversight of recycling beyond the self-implementing measures of the transfer-based exclusion are needed to ensure that the hazardous secondary material is legitimately recycled and not discarded.
This condition replaces the self-implementing “reasonable efforts” environmental audits of the recycling facility required under the 2008 transfer-based exclusion. EPA has determined that it more appropriate for the state or EPA to make the determination that a facility can safely and legitimately recycle hazardous secondary material. While EPA has found that many large companies do conduct environmental audits of recycling facilities, many smaller generators would not have the technical expertise or resources to conduct such an effort.
In addition, hazardous secondary material generators are required to maintain confirmations of receipt from each reclaimer and intermediate facility for all off-site shipments of hazardous secondary materials in order to verify that the hazardous secondary materials reached their intended destination and were not discarded. These receipts must be maintained at the generating facility for a period of three years. Specifically, the hazardous secondary material generator must maintain documentation of receipt that includes the name and address of the reclaimer or intermediate facility, the type and quantity of hazardous secondary materials received, and the date which the hazardous secondary materials were received. The Agency is not requiring a specific template or format for confirmations of receipt and anticipates that routine business records (
We recognize that, in some cases, reclamation of a hazardous secondary material may involve more than one
The recordkeeping requirements are the same as those in the 2008 transfer-based exclusion and Agency continues to believe that the recordkeeping requirements in today's rule comprise the minimum information needed to enable effective oversight to ensure the hazardous secondary materials were sent for reclamation and were not discarded.
Hazardous secondary materials may be stored for up to 10 days at a transfer facility and still be considered in transit. However, if the facility stores the hazardous secondary materials for more than 10 days, then it would be considered an intermediate facility and subject to the conditions in 40 CFR 261.4(a)(24)(vi). While at the transfer facility, the hazardous secondary materials must continue to meet all applicable DOT standards. Hazardous secondary materials may be consolidated for shipping, but cannot be intermingled in a way that would constitute waste management. This provision is unchanged from the 2008 transfer-based exclusion and describes the intersection of the RCRA and DOT requirements for these shipments.
For hazardous secondary materials that, after being received by the reclaimer or intermediate facility, are subsequently sent off-site for further reclamation, reclaimers and intermediate facilities must document the name and address of the hazardous secondary material generator, when the shipment occurred, who the transporter was, the name and address of the subsequent reclaimer and, if applicable, each subsequent intermediate facility, and the type and quantity of hazardous secondary materials in the shipment. This recordkeeping requirement may be fulfilled by ordinary business records, such as bills of lading.
Reclaimers and intermediate facilities must also send confirmations of receipt to the hazardous secondary material generator for all off-site shipments of hazardous secondary materials received at the facility in order to verify for the hazardous secondary material generator that their materials reached the intended destination and were not discarded. Specifically, the reclaimer (or each reclaimer, when more than one reclamation step is required) and, if applicable, each intermediate facility, must send documentation of receipt to the hazardous secondary material generator that includes the name and address of the reclaimer or intermediate facility, the type and quantity of the hazardous secondary materials received and the date which the hazardous secondary materials were received. The Agency is not requiring a specific template or format for confirmations of receipt and anticipates that routine business records (
In addition, reclaimers and intermediate facilities must also meet the recordkeeping requirements under financial assurance discussed below in this section.
An “analogous raw material” is a material for which a hazardous secondary material substitutes and which serves the same function and has similar physical and chemical properties as the hazardous secondary material. A raw material that has significantly different physical or chemical properties would not be considered analogous even if it serves the same function. For example, a metal-bearing ore might serve the same function as a metal-bearing air pollution control dust, but because the physical properties of the dust would make it more susceptible to wind dispersal, the two would not be considered analogous. Similarly, hazardous secondary materials with high levels of toxic volatile chemicals would not be considered analogous to a raw material that does not have these volatile chemicals or that has only minimal levels of volatile chemicals. Storage conditions for reclamation facilities and intermediate facilities that operate under today's exclusion demonstrate that the materials are not discarded, but instead are treated valuable commodities which would be used and not lost to the environment.
This condition is the same as the parallel condition in the 2008 transfer-based exclusion and is based on the fact that the great majority of damage cases documented in the environmental problems study occurred at commercial reclamation and intermediate storage facilities, and mismanagement of hazardous secondary materials was found to be a cause of environmental problems in approximately 40% of the incidents. Accordingly, EPA has determined that this condition for storage is necessary and appropriate for reclamation facilities and intermediate facilities that take advantage of this exclusion to show that storage of these materials is not just another way of disposing of them. In addition, it will establish an expectation for the owner/operators of such facilities that they must manage hazardous secondary materials in a manner at least as protective as they would an analogous raw material and in such a way that materials would not be released into the environment.
This condition is the same as the parallel condition in the 2008 transfer-based exclusion and the purpose of this condition is to clarify the regulatory status of these waste materials and to emphasize in explicit terms that residuals that are generated from the reclamation of hazardous secondary materials must be managed properly so that the reclamation operation does not become another way of avoiding waste management and simply becomes another way of discarding unwanted material. The study of recent (
The financial assurance requirement has been retained in 40 CFR part 261 subpart H because the substance of the requirement is unchanged from the financial assurance requirement for the 2008 DSW transfer-based exclusion. However, the financial assurance condition is now one of the criteria that is evaluated under the verified recycler solid waste variance, allowing the state or EPA to verify that the financial assurance obtained by the reclamation facility or intermediate facility is sufficient and accessible (in contrast, the financial assurance condition in the 2008 DSW transfer-based exclusion was self-implementing and not subject to review by EPA or the authorized state prior to the facility beginning operation).
A detailed discussion of the 40 CFR part 261 subpart H financial assurance provisions can be found in the 2008 DSW final rule at 73 FR 64692-8, October 30, 2008.
Specifically, to qualify for the solid waste variance, the facility must address the following criteria:
(1) The intermediate or reclamation facility must demonstrate that the reclamation process for the hazardous secondary materials is legitimate pursuant to § 260.43;
(2) The intermediate or reclamation facility must satisfy the financial assurance condition in § 261.4(a)(24)(vi)(F);
(3) The intermediate or reclamation facility must not be subject to a formal enforcement action in the previous three years and must not be classified as a significant non-complier under RCRA Subtitle C, or must provide credible evidence that the facility will manage the hazardous secondary materials properly. Credible evidence may include a demonstration that the facility has taken remedial steps to address the violations and prevent future violations, or that the violations are not relevant to the proper management of the hazardous secondary materials;
(4) The intermediate or reclamation facility must have the equipment and trained personnel to safely manage the hazardous secondary material and must meet emergency preparedness and response requirements;
(5) If residuals are generated from the reclamation of the excluded hazardous secondary materials, the reclamation facility must have the permits required (if any) to manage the residuals, have a contract with an appropriately permitted facility to dispose of the residuals, or present credible evidence that the residuals will be managed in a manner that is protective of human health and the environment; and
(6) The intermediate or reclamation facility must address the potential for risk to proximate populations from unpermitted releases of the hazardous secondary material to the environment (including releases that are not covered by a permit, such as a permit to discharge to water or air, and may include, but are not limited to, potential releases through surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures), and must include consideration of potential cumulative risks from other nearby potential stressors.
The rationale for each of these criteria is discussed below.
Criterion (1) is based on the first reasonable efforts question in the 2008
Criterion (2) is based on the second reasonable efforts question in the 2008 transfer-based exclusion and addresses whether the facility has the necessary financial assurance to cover the costs of managing any hazardous secondary materials that remain if the facility closes. If a facility was found to have failed to meet the condition to have financial assurance, then it also would have failed to show a good faith effort towards demonstrating that it intends to recycle the hazardous secondary materials (or, in the case of the intermediate facility, properly store the hazardous secondary material) and not discard them. Note that the second reasonable efforts question also required the generator to verify that the regulatory authority had been notified by the recycler under the 2008 transfer-based exclusion, but under the verified recycler exclusion, the state or EPA can verify that directly, thus, it is not included here.
Criterion (3) is based on the third reasonable efforts question in the transfer-based exclusion and focuses on the compliance history of the recycler or the intermediate facility (to the extent that the hazardous secondary material generator uses an intermediate facility). The language of this requirement has been simplified from the corresponding reasonable efforts question because the information is submitted to the regulatory agency who already has access to the pertinent enforcement information, rather than obtained by the generator who would need to rely on publicly-available data. This criterion requires that the facility must either not be subject to a formal enforcement action in the previous three years and not be classified as a significant non-complier under RCRA Subtitle C, or must provide credible evidence that the facility will manage the hazardous secondary materials properly.
“Formal enforcement” is a written document that mandates compliance and/or initiates a criminal, civil or administrative process, with or without appeal rights before a trial of fact that results in an enforceable agreement or order and an appropriate sanction. For EPA, formal enforcement action is a referral to the U.S. Department of Justice for the commencement of a criminal or civil action in the appropriate U.S. District Court, or the filing of an administrative complaint, or the issuance of an order, requiring compliance and a sanction. For states, formal enforcement action is a referral to the state's Attorney General for the commencement of a criminal, civil or administrative action in the appropriate forum, or the filing of an administrative complaint, or the issuance of an order, requiring compliance and a sanction. “Significant non-complier” is a defined term in EPA's Hazardous Waste Civil Enforcement Response Policy and means the violators have caused actual exposure or a substantial likelihood of exposure to hazardous waste or hazardous waste constituents; are chronic or recalcitrant violators; or deviate substantially from the terms of a permit, order, agreement, or from the RCRA statutory or regulatory requirements. In evaluating whether there has been actual or likely exposure to hazardous waste or hazardous waste constituents, EPA and the states consider both the environmental and human health concerns, including the potential exposure of workers to hazardous waste or hazardous waste constituents. For both terms, see EPA's Hazardous Waste Civil Enforcement Response Policy (Dec. 2003) at
While a facility being designated as a significant non-complier and/or the subject of a formal enforcement action does not automatically mean that the facility would not reclaim the hazardous secondary materials properly, it does raise questions that we believe the facility requesting the variance should address. That is, if any formal enforcement actions were taken against the facility in the previous three years for such non-compliance and the facility was alleged to be a significant non-complier, the facility must adequately explain how it has resolved any issues or how the reclamation facility will properly manage the hazardous secondary materials to avoid future violations and/or enforcement actions.
Criterion (4) is based on the fourth reasonable efforts question from the 2008 transfer-based exclusion and addresses the technical capability of the recycler or intermediate facility, the most basic requirement for ensuring proper and legitimate recycling of hazardous secondary materials. If a reclamation or intermediate facility was found to have no equipment or inadequate equipment for storing the hazardous secondary material or was found to have personnel who have not been trained for reclaiming the hazardous secondary materials, it raises serious questions as to whether the facility would properly manage such materials and avoid discarding them to the environment. This criterion also includes the addition of verifying that the facility meets the new emergency preparedness and response condition discussed earlier.
Criterion (5) is based on the fifth reasonable efforts question in the 2008 transfer-based exclusion and addresses another major cause of environmental problems from recycling hazardous secondary materials: the management of residuals. This criterion relates to discard through the concept that a generator or reclaimer may actually be discarding hazardous secondary materials through the release of residuals from the recycling process. While the product made from recycling may be a legitimate product, the whole recycling process could be considered discard if hazardous constituents from the recycled hazardous secondary materials are released to the environment. Roughly one-third of the damage cases documented in EPA's environmental problems study were caused by mismanagement of the residuals from recycling. To address criterion (5), the petitioner would need to demonstrate that the reclamation facility has practices in place to ensure that residuals are managed in a manner that is protective of human health and the environment and according to applicable federal or state standards.
Criterion (6) is a new standard not included in the 2008 transfer-based exclusion and is a case-specific performance-based criterion that addresses the risk to proximate populations from unpermitted releases of the hazardous secondary material to the environment (including releases that are not covered by a permit, such as a permit to discharge to water or air, and may include, but are not limited to, potential releases through surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures), and must include consideration of potential cumulative risks from other nearby potential stressors. The purpose of this criterion is to specifically address the differences in the preventative measures between a RCRA-permitted facility as compared to a facility managing excluded hazardous secondary material, including the lack of prescriptive standards for storage and containment (including air emissions standards). In addition, this criterion would address the finding that many of the populations
The steps the petitioner would take to address this criterion would depend on case-specific circumstances. For example, a facility that is recycling a hazardous secondary material that is not particularly mobile in the environment (
The process for obtaining a verified recycler solid waste variance is the same as that for the other solid waste variances found in 40 CFR 260.30. In order to obtain a variance, a facility that manages hazardous secondary materials that would otherwise be regulated under 40 CFR part 261 as either a solid waste or a hazardous waste must apply to the Administrator or the authorized state per the procedures described in 40 CFR 260.33, which EPA is amending today to apply to verified recyclers and intermediate facilities. The application must address the relevant criteria discussed in detail above. The Administrator or authorized state will evaluate the submission and issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be provided by newspaper advertisement or radio broadcast in the locality where the facility is located. The Administrator or authorized state will accept comment on the tentative decision for 30 days and may also hold a public hearing. The Administrator or authorized state will issue a final decision after receipt of comments and after the hearing (if held). If the application is denied, the facility may still pursue a solid waste variance or exclusion (for example, one of the solid waste variances under 40 CFR 260.30 or solid waste exclusions under 40 CFR 261.4). (Note that today's rule includes several modifications to the variances procedure in 40 CFR 260.33, which would also apply in this case. For further discussion see Section IX of today's preamble).
As with the generator-controlled exclusion (and the 2008 transfer-based exclusion), units managing hazardous secondary materials excluded under the verified recycler exclusion are not subject to the closure regulations in 40 CFR parts 264 and 265 subpart G. However, when the use of these units is ultimately discontinued, owners and operators of reclamation facilities and intermediate facilities must manage any remaining hazardous secondary materials, including any residues that are not reclaimed, as hazardous waste and remove or decontaminate contaminated containment system components, equipment structures, and soils. These hazardous secondary materials and residues, if no longer intended for reclamation, would also no longer be eligible for the exclusion (which only applies to hazardous secondary materials that are reclaimed). Failure to remove these materials within a reasonable time frame after operations cease could cause the facility to become subject to the full Subtitle C requirements if the Agency determines that reclamation is no longer feasible. While this final rule does not set a specific time frame for these activities, they typically should be completed within the time frames established for analogous activities. For example, the requirements for product tanks under 40 CFR 261.4(c) allow 90 days for removal of hazardous material after the unit ceases to be operated for manufacturing. This time frame should serve as a guideline for regulators in determining, on a case-by-case basis, whether owners and operators of reclamation facilities and intermediate facilities have completed these activities within a reasonable time frame. In any event, these hazardous secondary materials remain subject to the speculative accumulation restrictions in 40 CFR 261.4(a)(8), which includes both a time limitation of recycling 75% of the hazardous secondary material within a year and a requirement that the facility be able to show there is a feasible means of recycling the hazardous secondary material.
Today, EPA is also finalizing an exclusion from the definition of solid waste for higher-value solvents transferred from one manufacturer to another for the purpose of extending the useful life of the original solvent product by keeping such materials in commerce to reproduce a commercial grade of the original solvent product provided that certain conditions are met. For the purpose of this preamble discussion, EPA is defining this process as “remanufacturing.” Remanufacturing that conforms to these conditions would not involve discard, and therefore the hazardous secondary materials would not be regulated as solid waste. As with all recycling-related exclusions and exemptions, such excluded hazardous secondary materials would also need to be recycled legitimately. (A discussion of the public comments on the July 2011 proposal and the Agency's responses can be found in section XVI of this preamble and the full response to comment document is in the docket for the rulemaking.)
In finalizing this conditional exclusion, EPA's objective is to encourage sustainable materials management by identifying specific types of transfers of hazardous secondary materials to third parties, that under appropriate conditions, do not involve discard and can result in extending the useful life of a commercial-grade chemical. Remanufacturing these higher-value hazardous secondary materials can have a significantly lower environmental impact than manufacturing these chemicals for a one-time use and then transferring them for disposal. Thus, remanufacturing allows the hazardous secondary material product to be used again, lowering their life-cycle environmental impacts significantly.
Specifically, EPA has determined that, under appropriate conditions, the potential for discard in inter-company remanufacturing transfers for certain higher-value spent solvents would be low because they will be incorporated into the manufacturing process rather than accumulated or disposed of. Once these solvents are remanufactured to commercial grade, they can be used as replacements for virgin commercial grade solvents. The economic incentive for a company receiving the spent solvents would be to sell or directly use (avoiding purchase of virgin product) the remanufactured solvent products to realize an economic value. The company sending these higher-value spent solvents for remanufacturing is expected to have little economic incentive to pay the receiving company more than a nominal amount of money,
Once remanufacturing processes are in place, EPA expects that solvent remanufacturers would be competitive with other solvent manufacturers even in the event of a downturn in the sizable chemical market. Companies would also have the flexibility to redirect remanufacturing capacity to manufacturing should it ever make economic sense to do so, leaving little economic reason to accumulate unsold or unused remanufactured solvents.
The conditional exclusion for remanufacturing applies to hazardous spent solvents that are currently regulated as hazardous wastes because their recycling involves reclamation. Only the following 18 spent solvents are eligible for the remanufacturing exclusion: Toluene, xylenes, ethylbenzene, 1,2,4-trimethylbenzene, chlorobenzene, n-hexane, cyclohexane, methyl tert-butyl ether, acetonitrile, chloroform, chloromethane, dichloromethane, methyl isobutyl ketone, NN-dimethylformamide, tetrahydrofuran, n-butyl alcohol, ethanol, and/or methanol.
These 18 solvents are used in large volumes as chemical manufacturing aids, chemical processing aids, and chemical formulation aids (generally referred to as “processing aids” for the purpose of this rule). The processing aid solvents assist in the reaction, extraction, purification, and blending of ingredients and reactive products, but are not themselves reacted. These processing aid solvents, once used, can then be remanufactured to commercial grade again. These higher-value solvents were selected because there are existing markets for all these solvents to be remanufactured to serve similar purposes to those of the original commercial-grade materials.
Note that, as explained below, these hazardous spent solvents are only eligible if they are remanufactured to serve certain types of chemical functions, and if their originating use was of a specific type. This restriction limits the exclusion to higher-value materials and processes that resemble manufacturing rather than waste management.
Hazardous spent solvents are particularly appropriate for the remanufacturing exclusion because they are derived from a non-renewable resource (petroleum), and they are manufactured in the industrial chemicals sector, which, according to EPA's report on sustainable materials management, ranks third overall as far as direct adverse overall impact to the environment.
In addition, remanufacturing these spent solvents represents an opportunity for risk reduction. Risk is a function of hazard and exposure, and, from a hazard perspective, all of these chemicals have suspected or recognized hazardous health effects associated with their manufacture, processing, and use.
In addition, some of these solvents are building block and primary intermediate chemicals, making them difficult to replace. Until lower-risk substitutes for these solvents are found, it is appropriate from a health risk standpoint to minimize the volume of solvents manufactured and to limit exposure to those already manufactured. This is the intention of the remanufacturing exclusion.
The exclusion can reduce exposure to these solvents in three ways. First, the exclusion would extend the useful life of existing solvents, which would reduce the health risks associated with their manufacture by slowing the rate at which they are manufactured. Second, the exclusion would reduce exposure to solvents already manufactured by reducing the fuel blending of spent solvents. That is, remanufacturing a spent solvent will eliminate the need for blending it with another spent solvent to satisfy the fuel-ratio requirements of incinerators and cement kilns. This, in turn, will reduce the fugitive emissions associated with unloading and loading containers of volatile solvents at fuel-blending facilities.
After remanufacturing, the continuing use of the solvent is limited to reacting, extracting, purifying, or blending chemicals (or for rinsing out the process lines associated with these functions), or using them as ingredients in a product in the pharmaceutical, organic chemical, plastics and resins manufacturing sectors, or the paint and coatings sector. Furthermore, the continuing use of the solvent, after remanufacturing, cannot involve cleaning or degreasing oil, grease, or similar material from textiles, glassware, metal surfaces, or other articles.
EPA has selected these chemical functions because the remanufactured chemical product should serve a similar functional purpose as the original commercial-grade material so that it can substitute for virgin product, since it is this substitution that displaces some manufacturing of virgin product and fosters a system where the original solvent remains in commerce and is not discarded. In these functions, the solvents do not get contaminated by substances, such as inks and greases that are difficult to separate, but only get mixed with pure product ingredients, from which they can be separated readily in a commercially feasible manner.
Furthermore, manufacturing and processing operations can be more easily controlled in terms of exposure and releases, whereas the spent solvents from downstream uses, such as degreasing and cleaning operations are of inherently lower-value and these downstream operations result in more widespread exposure and releases and a higher potential for discard.
In addition, more environmental benefits will be obtained by maximizing the number of times a chemical product can be used at high-purity grade as an
The remanufacturing exclusion is limited to companies whose primary business is manufacturing, rather than waste management, as indicated by particular NAICS codes. Four manufacturing sectors are eligible for the remanufacturing exclusion: Pharmaceutical manufacturing (NAICS 325412), basic organic chemical manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS 325211), and the paints and coatings manufacturing sectors (NAICS 325510). Manufacturers within these four sectors all use one or more of the 18 identified solvents as chemical manufacturing, processing, and formulation aids in high volumes. Based on the Toxics Release Inventory information, these four sectors are also closely associated with the chemical functions identified in the exclusion and currently use a high volume of the solvents for the functional purposes included in this exclusion.
EPA is limiting the remanufacturing exclusion to companies whose business is primarily manufacturing because the nature of the exclusion relies on the fact that the eligible spent solvents are indistinguishable from a risk perspective from the virgin chemicals that manufacturers in these sectors are already accustomed to handling—no special equipment and personal training beyond what the facility already has would be needed. Chemical manufacturers in these sectors are also subject to the Occupational Safety and Health Act (OSHA) and Clean Air Act (CAA) standards that cover the management of these chemicals.
Facilities operating under the remanufacturing exclusions must meet the following conditions.
Hazardous secondary material generators and remanufacturers must submit a notification prior to operating under the exclusion and by March 1 of each even-numbered year thereafter using EPA form 8700-12 to the EPA Regional Administrator or the State Director, in an authorized state. Additionally, these facilities would have to notify within 30 days of stopping management of hazardous secondary materials under the exclusion.
The intent of the notification condition is to provide basic information to the regulatory agencies about who will be managing the hazardous secondary spent solvents under the remanufacturing exclusion. The specific information included in the notification—that is, the information on EPA form 8700-12—enables regulatory agencies to monitor compliance and to ensure that the hazardous secondary spent solvents are managed in accordance with the exclusion and not discarded.
A key issue for the remanufacturing exclusion is how the facilities operating under the exclusion would demonstrate that they meet the requirements (
The hazardous secondary material generator is also required to make arrangements with the remanufacturer to jointly develop this plan and to verify the appropriateness of the hazardous spent solvents for the remanufacturing process before claiming the exclusion, thus helping ensure that the hazardous spent solvents will be remanufactured and not discarded.
Finally, to help ensure that the remanufacturer is a legitimate remanufacturer, the plan must include a certification from the remanufacturer stating “on behalf of [insert remanufacturer facility name], I certify that this facility is a remanufacturer under the pharmaceutical manufacturing (NAICS 325412), basic organic chemical manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS 325211), and/or the paints and coatings manufacturing sectors (NAICS 325510), and will accept the spent solvent(s) for the sole purpose of remanufacturing into commercial-grade solvent(s) that will be used for reacting, extracting, purifying, or blending chemicals (or for rinsing out the process lines associated with these functions) or for use as product ingredients. I also certify that the remanufacturing equipment, vents, and tanks are equipped with and are operating air emission controls in compliance with CAA regulations under 40 CFR part 60, part 61 or part 63,
One of the issues raised in the comments was concern that the remanufacturing plan would stifle competitiveness by locking the generator into a single remanufacturer for their hazardous spent solvents. That was not the Agency's intention, and EPA would like to clarify that the remanufacturing plan can be updated any time to reflect a new remanufacturer without triggering a re-notification requirement on the part of the generator. (If the new remanufacturer has not notified before, then he would need to do so under the exclusion.) As long as the remanufacturing plan that is kept on-site reflects the current practices, including making sure that there is a remanufacturer that will accept the hazardous spent solvents, the generator would be in compliance with this condition.
Under the remanufacturing exclusion, generators and remanufacturers need to maintain at the facility records of shipments of hazardous spent solvents for a period of three years. Specifically, for each shipment of hazardous spent solvent, the generator and remanufacturer need to maintain documentation of when the shipment occurred, who the transporter was, and the type and quantity of the hazardous spent solvent in the shipment. This recordkeeping requirement may be
In addition, generators must maintain confirmations of receipt for all off-site shipments of hazardous spent solvent in order to verify that the hazardous spent solvent reached their intended destination and were not discarded. These receipts must be maintained at the facility for a period of three years from when they were created. Specifically, the documentation of receipt would include the name and address of the remanufacturer, and the type and quantity of hazardous spent solvents and date that the hazardous spent solvents were received. The Agency is not requiring a specific template or format for confirmation of receipt since routine business records (
This provision is necessary so all parties responsible for the excluded hazardous spent solvent would be able to demonstrate that the materials were in fact sent for remanufacturing and arrived at the intended facility and were not discarded in transit.
Basic good management practices dictate that solvents, whether virgin or spent, are best stored in tanks or containers that possess inherent controls to address issues, such as volatile air emissions, leaks, and fires or explosions. Solvents present particular management challenges associated with the storage of liquids containing volatile organic chemicals and include both halogenated and non-halogenated organic chemicals, which represent a broad range of chemicals and associated hazards.
By focusing on higher-value spent solvents going to remanufacturing, the remanufacturing exclusion reduces the chance of mismanagement of the spent solvents. However, given the history of spent solvent mismanagement, as demonstrated in the damage cases found in environmental problems study, EPA has determined that it is appropriate to make an explicit condition that spent solvents excluded under the remanufacturing exclusion be stored prior to remanufacturing in tanks or containers that are labeled and that meet technical standards that will ensure the hazardous spent solvents will go to remanufacturing and will not be discarded via leaks, spills or explosions.
For ease of implementation, EPA is establishing explicit tank and container standards in 40 CFR part 261 subparts I and J. These technical standards are the same as those found in 40 CFR part 264 subparts I and J, except that the part 261 subparts I and J specify that the material is “hazardous secondary material” rather than hazardous waste, omit references to RCRA permitting requirements, and include other minor conforming changes, as discussed below. Although the 40 CFR part 264 tank and container standards were developed for hazardous wastes, an analysis of the full set of technical requirements under subparts I and J shows that they are comparable to product storage standards, including regulations promulgated under OSHA, DOT, and industry standards.
During remanufacturing and storage prior to remanufacturing, good management practices also include effective controls of hazardous air emissions. Under the remanufacturing exclusion, this is ensured by requiring that the remanufacturer certifies, as part of the remanufacturing plan, that the remanufacturing equipment, vents, and tanks are equipped with and are operating air emission controls in compliance with CAA regulations under 40 CFR part 60, part 61 or part 63.
The air emission requirements on remanufacturing equipment, vents, and tanks will ensure that the remanufactured solvents do not become discarded through fires and explosions, guard against the volatilization of hazardous spent solvents, and protect workers, handlers and transporters from spent solvent emissions. EPA notes that most manufacturers in the pharmaceutical manufacturing (NAICS 325412), basic organic chemical manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS 325211), and the paints and coatings manufacturing sectors (NAICS 325510) will already have their solvent management practices covered under the CAA regulations, but for any remanufacturer that is not covered under CAA, 40 CFR part 261 subparts AA, BB, and CC will ensure that they meet good management practices appropriate for solvent management.
In modifying the tank and container standards and the air emission standards to apply specifically to solvents being remanufactured under the remanufacturing exclusion, EPA has made other minor conforming regulatory changes to 40 CFR part 261. These changes include (1) reserving certain subparts, such as subparts K through L and N though Z, in order to maintain the same numbering as is found in part 264 for the tank and container standards and the air emission standards, (2) codifying 40 CFR 261.197 to address termination of the remanufacturing exclusion (rather than closure, as is required in part 264), and (3) deleting references to the uniform hazardous waste manifest in 40 CFR 261.1086 because manifest requirements are not applicable under the remanufacturing exclusion.
In addition to the other conditions, hazardous spent solvents under the remanufacturing exclusion are subject to the speculative accumulation restrictions in 40 CFR 261.1(c)(8). Speculative accumulation ensures that the hazardous spent solvents are remanufactured and not discarded.
Units managing excluded hazardous spent solvent are not subject to the closure regulations in 40 CFR parts 264 and 265 subpart G. However, when the use of these units is ultimately discontinued, all owners and operators must manage any remaining hazardous spent solvents that are not remanufactured as hazardous waste and remove or decontaminate all hazardous residues and contaminated containment system components, equipment structures, and soils. These hazardous spent solvents and residues, if no longer
As EPA noted in the 2011 DSW proposal, it is possible that other hazardous secondary materials, industry sectors, and/or functional uses beyond those being finalized today may also be suitable candidates for the remanufacturing exclusion if they involve the transfer of a higher-value hazardous secondary material from one manufacturer to another, for the purpose of remanufacturing a material with significant commercial value. In the 2011 DSW proposal, EPA requested comment on whether to also include a specific petition process, similar to 40 CFR 260.20, where petitioners may apply to EPA to request a hazardous secondary material, industry sector, and/or functional use be added to the exclusion.
After reviewing the comments, EPA has determined that a separate rulemaking petition process is not necessary and that the current process in 40 CFR 260.20, including the administrative procedure for processing the petition would be the best vehicle for addressing additional hazardous secondary materials, industry sectors, and/or functional uses to the remanufacturing exclusion. Given the variety of hazardous secondary materials, manufacturing processes, and markets for potential remanufactured materials, a general process gives the most flexibility for petitioners to submit information on potential excluded materials.
In addition, the Agency would like to encourage the research, development, and demonstration of innovative recycling processes that could be used to recover higher-value hazardous secondary materials. Therefore EPA encourages companies to explore using the existing regulatory flexibilities, such as treatability study exemptions in 40 CFR 261.4(e) and (f) and research development and demonstration permits allowed under 40 CFR 270.65, to assess and develop recycling technologies to facilitate remanufacturing of higher-value materials.
In submitting a rulemaking petition under 40 CFR 260.20, petitioners must include (1) the petitioner's name and address, (2) a statement of the petitioner's interest in the proposed action, (3) a description of the proposed action, including (where appropriate) suggested regulatory language, and (4) a statement of the need and justification for the proposed action, including any supporting tests, studies, and other information. With respect to the fourth factor, EPA would encourage petitioners to provide any information they believe demonstrates that their hazardous secondary material is suited for a solid waste exclusion under the remanufacturing exclusion. Below are some considerations that may assist petitioners in developing their petitions; however, these are guidelines only and should not constrain suggested rulemaking revisions if the petitioner otherwise has information that the hazardous secondary material should be excluded from regulation.
(1) Is the hazardous secondary material generated from a manufacturing process that results in minimal contamination, and does the hazardous nature of the hazardous secondary material stem chiefly from the inherent nature of the commercial product that is to be recovered, and not from any contamination?
For example, the remanufacturing exclusion being promulgated today is focused on materials that originated from using commercial grade solvents for reacting, extracting, purifying, or blending chemicals (or for rinsing out the process lines associated with these functions) in the pharmaceutical manufacturing, organic chemical manufacturing, plastics and resins manufacturing, or paint and coatings sector. As a result, the solvents in question are only lightly contaminated, chiefly with other commercial-grade chemicals or minor impurities. Moreover, because the hazardous nature of the material stems from the recycled product (or at least a significant portion of the recycled product) and not from the contamination, the remanufacturing exclusion helps reduce overall risk by keeping hazardous chemicals in commerce, rather than discarding them.
(2) Does the hazardous secondary material present a similar risk profile as an analogous raw material or product and require no special storage or handling beyond what is normally used for the analogous raw material or product?
For example, the spent solvents eligible for the remanufacturing exclusion present the same risk profile as solvent products. The same tanks, containers, and transportation standards that are used for solvent products also work for the spent solvents intended for remanufacturing.
(3) Is there any special equipment or personnel training required for the remanufacturing of the material or for the management of the residuals?
For example, under the remanufacturing exclusion being promulgated today, the same distillation columns used to manufacture solvents from raw materials can be used to remanufacture spent solvents. The still bottoms generated from both processes can be managed in a similar fashion.
(4) Is the market for the remanufactured product stable enough to ensure that neither the hazardous secondary material nor the remanufactured products are over-accumulated?
For example, the remanufacturing exclusion being promulgated today focuses on solvents that are known to be widely used in a variety of industries for the purposes described.
EPA has a long-standing policy that all recycling of hazardous secondary materials must be legitimate, including both excluded recycling and the recycling of regulated hazardous wastes. The legitimacy provision in today's final rule is designed to distinguish between real recycling activities—legitimate recycling—and “sham” recycling, an activity undertaken by an entity to avoid the requirements of managing a hazardous secondary material as a hazardous waste. Because of the economic advantages in managing hazardous secondary materials as recycled materials rather than as hazardous wastes, there is an incentive for some handlers to claim they are recycling when, in fact, they are conducting waste treatment and/or disposal.
In this final rulemaking, EPA is codifying in its regulations the requirement that all recycling must be legitimate by adding a prohibition on sham recycling to 40 CFR 261.2(g). In addition, EPA has changed the definition of legitimate recycling in § 260.43. The new definition specifies four factors that must be met for recycling to be legitimate. However, it also provides new ways that a facility can show that it meets factors 3 and 4 of the legitimacy standard.
The four legitimacy factors are as follows:
• Factor 1: Legitimate recycling must involve a hazardous secondary material that
• Factor 2: The recycling process must produce a valuable product or intermediate.
• Factor 3: The generator and the recycler must manage the hazardous secondary material as a valuable commodity when it is under their control.
• Factor 4: The product of the recycling process must be comparable to a legitimate product or intermediate.
Under the RCRA Subtitle C definition of solid waste, many existing hazardous secondary materials are not solid wastes and, thus, are not subject to RCRA's cradle to grave management system if they are recycled. The basic idea behind this construct is that recycling of such materials often more closely resembles normal industrial manufacturing than waste management. However, since there can be significant cost savings from managing hazardous secondary materials outside the RCRA Subtitle C regulatory system, some handlers may claim that they are recycling, when, in fact, they are conducting waste treatment and/or disposal in the guise of recycling. For example, a facility whose primary business was mixing electric arc furnace dust (K061) with agricultural lime for sale as a micronutrient lost its customers and could not sell its product, but continued to accept K061 even though there was no prospect of it being used to produce a product. To guard against practices like these, EPA has long articulated the need to distinguish between “legitimate” (
The prohibition on sham recycling being finalized in this rulemaking is consistent with the Agency's longstanding policy and interpretation of legitimate recycling that has been expressed in those earlier preamble discussions and policy statements. The January 4, 1985, preamble to the definition of solid waste regulations established EPA's concept of legitimacy and described several indicators of sham recycling.
On April 26, 1989, the Office of Solid Waste (OSW) issued a memorandum that consolidated preamble statements concerning legitimate recycling that had been articulated previously into a list of criteria to be considered in evaluating legitimacy [OSWER directive 9441.1989(19)]. This memorandum, known to many as the “Lowrance Memo,” has been a primary source of guidance for the regulated community and for implementing agencies in distinguishing between legitimate and sham recycling for many years. The October 2003 and March 2007 DSW proposals and the October 2008 DSW final rule also all include extensive discussions of EPA's legitimacy policy.
In the 2008 DSW final rule, EPA promulgated a codified legitimacy requirement for the specific exclusions in that rulemaking. Today's final rule expands that legitimacy requirement to all hazardous secondary material recycling, as the Agency proposed to do in the July 22, 2011, proposal (76 FR 44094). Section VIII.B discusses these final legitimacy provisions and describes the requirements. Section VIII.C discusses the changes EPA made from the proposed regulations. A discussion of the public comments on the July 2011 proposal and Agency responses can be found in section XVII of this preamble and the full response to comment document is in the docket for the rulemaking.
This section discusses the rationale and the requirements being finalized in this rulemaking for ensuring that all recycling of hazardous secondary material is legitimate.
In today's final rule, EPA is retaining its long-standing policy that all recycling of hazardous secondary materials must be legitimate. If a facility is engaged in sham recycling, this, by definition, is not real recycling and that hazardous secondary material is being discarded and is a solid waste. Today, we are codifying that the legitimate recycling provision applies to all hazardous secondary materials that are excluded or exempted from Subtitle C regulation because they are recycled and that it also applies to recyclable hazardous wastes that remain subject to the hazardous waste regulations. However, instead of changing the language of each recycling exclusion or exemption to include the requirement as we proposed in the 2011 DSW proposal, we have instead added language in § 261.2(g) that specifically prohibits sham recycling to ensure that all recycling, including recycling under the pre-2008 exclusions is legitimate (
EPA has determined that the four legitimacy factors being codified in 40 CFR 260.43 are substantively the same as the existing legitimacy policy. These factors are a simplification and clarification of the policy statements in the 1989 Lowrance Memo and in various DSW
In developing the codified legitimacy language, we did not intend to raise questions about the status of general legitimacy determinations that underlie existing exclusions from the definition of solid waste (
Some stakeholders have raised concerns with the application of the codified legitimacy factors to these existing waste-specific and industry specific exclusions. In particular, as we noted in the October 2003 DSW proposal and the March 2007 DSW supplemental proposal, EPA has examined in depth a number of waste-specific and industry-specific recycling activities and has promulgated specific regulatory exclusions or provisions that address the legitimacy of these practices in much more specific terms than the general legitimacy factors as described in 40 CFR 260.43.
EPA expects that the vast majority of recycling being performed under these existing exclusions is currently being undertaken conscientiously and would be considered legitimate under the new legitimacy provision with no further action required on the part of the company. If a company is meeting the conditions of its exclusion while managing the hazardous secondary material responsibly and using it to make a legitimate product, that company would not have to change any
One example is the regulation for zinc fertilizers made from recycled hazardous secondary materials. If the hazardous secondary material recycled under the exclusion contains recoverable amounts of zinc, which provides a useful contribution to the recycled product (factor 1) and results in a valuable product,
Another example is shredded circuit boards excluded under 40 CFR 261.4(a)(14). Shredded circuit boards that contain recoverable metals that provide a useful contribution to the product of the recycling process (factor 1) and go to a recycling process that produces a valuable metal product (factor 2) would meet these legitimacy factors. In addition, under the exclusion, the shredded circuit boards must be stored in containers sufficient to prevent a release to the environment prior to recovery (factor 3) and must be free of mercury switches, mercury relays and nickel-cadmium and lithium batteries (factor 4).
Another example is hazardous secondary materials recycled in a “closed-loop” production process under 40 CFR 261.4(a)(8). Under this exclusion, the hazardous secondary material is reused within the production process from which it came, thus providing a useful contribution to the product (factor 1) and also producing a valuable product or intermediate (factor 2) (assuming that the production process is, by definition, producing a product). Since the closed-loop exclusion requires tank storage and that the entire process through completion of reclamation is closed by being entirely connected with pipes and other comparable enclosed means of conveyance, this management would be considered to meet factor 3, management of the hazardous secondary material as a valuable commodity. The product of this type of recycling process would be comparable to a legitimate product or intermediate because the hazardous secondary materials being recycled are returned to the original process from which they were generated to be reused (factor 4).
Another example is spent wood preserving solutions and wastewaters that have been reclaimed and reused onsite in the production process for their original intended purpose under § 261.4(a)(9). Reclaimed wood preservatives that are used to treat wood would be making a useful contribution to the product (factor 1) and would produce a valuable product (factor 2). The conditions of the exclusion include a requirement that they are managed to prevent releases, and include specific standards for drip pads that manage the material (factor 3). The product of this type of recycling process would be comparable to a legitimate product or intermediate because the hazardous secondary materials being recycled are returned to the original process from which they were generated to be reused (factor 4).
Another example is the long-standing exclusion for excluded scrap metal (processed scrap metal, unprocessed home scrap metal, and unprocessed prompt scrap metal) being recycled (40 CFR 261.4(a)(13)). Excluded scrap metal that contains recoverable metals would provide a useful contribution to the product of the recycling process (factor 1) and, as long as the recycling process produces a valuable metal product (factor 2), the recycling would meet the first two legitimacy factors. If the recycler uses appropriate handling and good management practices to store and manage the excluded scrap metal to prevent releases of hazardous secondary materials to the environment, the recycler would generally meet factor 3 for managing the scrap metal as a valuable commodity.
EPA notes that managing scrap metal as a valuable commodity can include situations where it is stored on the ground. Scrap metal stored on the ground is subject to occasional precipitation runoff that consists essentially of water, with trace amounts of hazardous constituents. As long as the hazardous secondary material itself is not swept away by the runoff, this transport via precipitation runoff would not generally be a concern. However, if metal dust, debris and pieces of scrap metal were released into the environment, for example, by metal falling into a waterway (as has happened in one damage case documented by EPA), this would not be considered managed as a valuable commodity. Finally, as long as the recovered metal meets widely-recognized commodity standards/specifications for the metal product, factor 4 would be satisfied.
The conditions developed for the recycling exclusions in § 261.4(a) were found to be necessary under material-specific rulemakings that determined when the particular hazardous secondary material in question is not a solid waste. When EPA originally made the decision that these materials are not solid waste, the Agency took into account the relevant factors about the hazardous secondary materials, including how the material was managed and what toxic chemicals were present.
In the 2011 DSW proposal, EPA explicitly did not reopen comment on any substantive provisions of the previous recycling exclusions or exemptions and facilities with pre-2008 exclusions can generally follow the normal good business practices that were considered when the exclusions were granted and still be considered to be legitimate recycling. If the facility is complying with the terms of the exclusion and following industry best practices to engage in legitimate recycling activity, this would generally not raise questions as to its legitimacy. All these examples support EPA's determination that most current recycling under existing exclusions is legitimate, and that companies complying with the conditions of exclusions would generally not need to take action to show that their recycling meets the legitimacy factors.
However, at the same time, these material-specific exclusions from the definition of solid waste do not negate the basic requirement that the hazardous secondary material must be legitimately recycled. Recycling that is not legitimate is not recycling at all, but rather “sham recycling”—discard in the guise of recycling. Regarding the existing exclusions in the regulations, EPA acknowledges that, in establishing a specific exclusion, we have already determined in the rulemaking record that the specific recycling practice is excluded from the definition of solid waste provided all the conditions of the rule are met. However, the Agency has always enforced its rules on the basis that any recycling must be legitimate (See
For example, under EPA's historic guidance, a facility could not plausibly claim the zinc fertilizer product exclusion at 40 CFR 261.4(a)(21) for a hazardous secondary material that contained absolutely no or minimal levels of zinc, even if all the conditions of the zinc fertilizer exclusion were met. The exclusion was developed to encourage legitimate recycling of zinc-containing hazardous secondary materials and the legitimacy provision prevents hazardous waste from being discarded into purported fertilizer in the name of recycling when the hazardous secondary material provides no recognizable benefit to the product.
Similarly, if a facility accepted zinc-containing hazardous waste, claiming to make zinc fertilizer, but failed to produce a product that was actually sold or was otherwise valuable, such a process would not be legitimate recycling in the historic legitimacy guidance, even if the management conditions and the constituent levels in the zinc fertilizer exclusion were met. The consequences of the latter example are illustrated in one of the damage cases in the environmental problems study. A facility whose primary business was mixing electric arc furnace dust (K061) with agricultural lime for sale as a micronutrient lost its customers and could not sell its product. However, the facility continued to accept K061, and, after approximately seven months, the facility had accepted over 60,000 tons of this hazardous waste and stored it on the ground in piles up to 30 feet high, with no prospect of it being used to produce a product and, thus, legitimately recycled. While the initial recycling of the K061 hazardous waste was legitimate, when the facility failed to produce a product that was actually sold, the K061 could no longer be considered legitimately recycled. Even if the recycler were to claim that the material may be recycled at some point in the future, the material was being speculatively accumulated and thus, a solid and hazardous waste at that point.
In summary, all hazardous secondary materials recycling and hazardous waste recycling, whether such recycling remains under hazardous waste regulations or is excluded from the definition of solid waste, must be legitimate. This has been our long-standing policy and it is well known throughout the regulated community and the implementing state regulatory agencies. To reinforce that concept and make it clear in the regulations, we are today codifying our policy that hazardous secondary materials being sham recycled are discarded and thus, are solid waste. To do this, EPA has decided to codify the following statement in § 261.2 (the definition of solid waste) instead of adding a reference to legitimacy in each of the recycling exclusions and exemptions (as was suggested in the proposed rule): “A hazardous secondary material found to be sham recycled is considered discarded and a solid waste. Sham recycling is recycling that is not legitimate recycling as defined in § 260.43.”
For persons interested in an in-depth analysis of the evolution of EPA's concept of legitimate recycling from policy and preamble statements to regulations, EPA provided this analysis in the 2008 DSW final rule that described how the promulgated legitimacy factors compare to the previous primary guidance on legitimacy and the Lowrance Memo. EPA continues to maintain that the legitimate recycling provision is substantively the same as existing policy because we developed the legitimacy factors in 40 CFR 260.43 by closely examining the questions and sub-questions in the Lowrance Memo and in the
The structure of the legitimacy standard codified in the 2008 DSW final rule (specifically for the exclusions promulgated in that rulemaking) had two parts. The first part included a requirement that hazardous secondary materials being recycled must provide a useful contribution to the recycling process or to the product of the recycling process and a requirement that the product of the recycling process must be valuable. At the time, EPA considered those two factors to make up the core of legitimacy and, therefore, a process that did not conform to them could not be a legitimate recycling process, but would be considered sham recycling. The second part of legitimacy in the 2008 DSW final rule included two factors that must be considered, but not necessarily met, when a recycler is making a legitimacy determination. In this final rule, the Agency is changing the structure and the application of the legitimate recycling provision so that all four factors are written as mandatory requirements that must be met, except as otherwise noted. The Agency has determined that this action will improve the effectiveness and protectiveness of the legitimacy provision. The Agency's experience with implementing the legitimate recycling structure finalized in the 2008 DSW final rule has led us to this realization. Even though we stressed the importance of considering each factor in the 2008 DSW final rule, some stakeholders continue to be under the mistaken impression that the factors defined as “to be considered” were actually optional and could be ignored. We made it clear in the 2008 DSW final rule that failing to meet a “non-mandatory” factor could, in some cases, be enough to determine that a recycling process is not legitimate. We did not intend for the “to-be-considered” factors
However, to address concerns raised, both factor 3 (managed as a valuable commodity) and factor 4 (products must have comparable levels of hazardous constituents) have been revised from the 2008 DSW final rule to add flexibility to address situations where the recycling is legitimate, but the specific situation might not meet the legitimacy factor . For example, under factor 3, we proposed and are finalizing the following language to more closely reflect the intent of the provision: “Where there is an analogous raw material, the hazardous secondary material, must be managed, at a minimum, in a manner consistent with the management of the raw material or in an equally protective manner.” Thus, a generator or recycler would meet this factor if their hazardous secondary material is stored in a different manner than the analogous raw material, as long as that storage is as protective as the way the analogous raw material is stored.
Under factor 4, we have also added more explanation and flexibility for situations where there is no analogous product to compare to the product made from hazardous secondary materials. For example, in some cases, the Agency will consider a product of a recycling process that meets widely-recognized commodity standards/specifications, such as scrap metal, to meet factor 4. Within factor 4, the Agency is also creating a provision for hazardous secondary materials that are recycled by being returned to the original process from which they were generated, such as in a closed-loop recycling process, to meet the factor. The specific changes to factor 3 and factor 4 are described in greater detail below.
In making all legitimacy factors mandatory requirements, the first sentence of the regulatory language of both factors was revised to indicate that these factors must be met. For factor 3, the first sentence now reads as follows: “The generator and the recycler must manage the hazardous secondary material as a valuable commodity when it is under their control.” For factor 4, the first sentence now reads as follows: “The product of the recycling process must be comparable to a legitimate product or intermediate.”
In the 2011 DSW proposal, we proposed a petition process for facilities that believe their recycling is legitimate despite not meeting one or both of these two factors. After review and consideration of the public comment on this issue, the Agency has decided that instead of a petition process, facilities that do not meet factor 4 and yet are still legitimately recycling must notify the Regional Administrator (or State Director, if the state is authorized) and keep documentation and a certification in their files explaining how the recycling is still legitimate.
(1) Legitimate recycling must involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process. The hazardous secondary material provides a useful contribution if it:
(i) Contributes valuable ingredients to a product or intermediate; or
(ii) Replaces a catalyst or carrier in the recycling process; or
(iii) Is the source of a valuable constituent recovered in the recycling process; or
(iv) Is recovered or regenerated by the recycling process; or
(v) Is used as an effective substitute for a commercial product.
This factor expresses the principle that hazardous secondary materials must contribute value to the recycling process. Providing a useful contribution is an essential element to legitimate recycling because real or legitimate recycling is not occurring if the hazardous secondary material being added or recovered does not add to the process. This factor is intended to prevent the practice of adding a hazardous secondary material to a recycling process simply as a means of disposing of it, or recovering only small amounts of a constituent, which EPA would consider sham recycling.
Paragraphs (i) through (v) of § 260.43(a)(1) list five ways that a hazardous secondary material can provide a useful contribution: (i) Contributing valuable ingredients to a product or intermediate; (ii) replacing a catalyst or carrier in the recycling process; (iii) providing a valuable constituent to be recovered; (iv) being regenerated; or (v) being used as an effective substitute for a commercial product. Any one of these can demonstrate that the hazardous secondary material provides a useful contribution.
An important note in applying this factor is that not every constituent or component of the hazardous secondary material has to make a contribution to the recycling activity to meet the useful contribution factor. For example, a legitimate recycling operation involving precious metals might not recover all of the components of the hazardous secondary material, but would recover precious metals with sufficient value to consider the recycling process legitimate. In addition, the recycling activity does not have to involve the hazardous component of the hazardous secondary materials if the value of the contribution of the non-hazardous component justifies the recycling activity. One example of this factor from an existing exemption is where hazardous secondary materials containing large amounts of zinc, a non-hazardous component, are recycled into zinc micronutrient fertilizers. However, in cases where the hazardous component is not being used or recycled, the Agency stresses that the recycler is responsible for the proper management of any hazardous residuals of the recycling process.
In a situation where more than one hazardous secondary material is used in a single recycling process and the hazardous secondary materials are mixed or blended as a part of the process, each hazardous secondary material would need to satisfy the useful contribution factor. This requirement prevents situations where a worthless hazardous secondary material could be mixed with valuable and useful hazardous secondary materials in an attempt to disguise and dispose of it. In addition, a situation in which hazardous secondary materials that can be useful to a process, but are added to that process in much greater amounts than needed to make the end-product or to otherwise provide its useful contribution, would also be sham recycling.
Another way the usefulness of the hazardous secondary material's contribution could be demonstrated is by looking at the efficiency of the material's use in the recycling process—that is, how much of the constituent in a hazardous secondary material is actually being used. As an example, if there is a constituent in the hazardous secondary material that could add value to the recycling process, but, due to process design, most of it is not being
When evaluating a hazardous secondary material's useful contribution, the process can be compared to typical industry recovery rates from raw materials to determine if the recycling process is reasonably efficient. This method should involve an examination of the overall process, not just a single step of the process. For example, if one step in the process recovers a small percentage of the constituent, but the overall process recovers a much larger percentage, the Agency would consider the overall efficiency of the recycling process in determining whether hazardous secondary materials are providing a useful contribution.
The recycling process must produce a valuable product or intermediate. The product or intermediate is valuable if it is: (i) Sold to a third party or (ii) used by the recycler or the generator as an effective substitute for a commercial product or as an ingredient or intermediate in an industrial process.
This factor expresses the principle that the product or intermediate coming out of the recycling process should be a material of value, either to a third party who buys it from the recycler, or to the generator or recycler itself, who can use it as a substitute for another material that it would otherwise have to buy or obtain for its industrial process. Legitimate recycling is not occurring if the product or intermediate from the process is not of use to anyone and, therefore, is not a real product. This factor is intended to prevent the practice of running a hazardous secondary material through an industrial production process to make something just for the purpose of avoiding the costs of hazardous waste management, rather than for the purpose of using the product or intermediate of the recycling activity. Such a practice would be sham recycling.
For the purpose of this factor, a recyclable product may be considered “valuable” if it can be shown to have either economic value or intrinsic value to the end user. Evaluations of “valuable” for the purpose of this factor should be done on a case-by-case basis, but one way to determine that the recycling process yields a valuable product would be if the product of the recycling process is sold to a third party. This transaction could include money changing hands or, in other circumstances, may involve trade or barter. A recycler that has not yet arranged for the sale of its product to a third party could establish value by demonstrating that it can replace another product or intermediate that is available in the marketplace. A product of the recycling process may be sold at a loss in some circumstances, but the recycler should be able to demonstrate how the product is clearly valuable to the purchaser.
EPA also knows that many recycling processes produce outputs that are not sold or traded to another party, but are instead used by the generator or recycler. A product of the recycling process may be used as a feedstock in a manufacturing process, but have no established monetary value in the marketplace. Such recycled products or intermediates would be considered to have intrinsic value, though it might be less straightforward in this situation to demonstrate value if it is necessary to do so. Demonstrations of intrinsic value could involve showing that the product of the recycling process or intermediate replaces an alternative product that would otherwise have to be purchased or could involve a showing that the product of the recycling process or intermediate meets specific product specifications or specific industry standards. Another approach could be to compare the product or intermediate's physical and chemical properties or efficacy for certain uses with those of comparable products or intermediates made from raw materials.
Some recycling processes may consist of multiple steps that may occur at separate facilities. In some cases, each processing step will yield a valuable product or intermediate, such as when a metal-bearing hazardous secondary material is processed to reclaim a precious metal and is then put through another process to reclaim a different mineral. When each step in the process yields a valuable product or intermediate that is salable or usable in that form, the recycling activity would conform to this factor.
Like the other factors, this factor should be examined and evaluated on a case-by-case basis looking at the specific facts of a recycling activity. If, for instance, a recycling activity produces a product or intermediate that is used by the recycler itself, but does not serve any purpose and is just being used so that the product or intermediate appears valuable, that would be an indicator of sham recycling. An example of this would be a recycler that reclaims a hazardous secondary material and then uses that material to make blocks or building materials for which it has no market and then “uses” those building materials to make a warehouse in which it stores the remainder of the building materials that it is unable to sell.
The generator and the recycler must manage the hazardous secondary material as a valuable commodity when it is under their control. Where there is an analogous raw material, the hazardous secondary material must be managed, at a minimum, in a manner consistent with the management of the raw material or in an equally protective manner. Where there is no analogous raw material, the hazardous secondary material must be contained. Hazardous secondary materials that are released to the environment and are not recovered immediately are discarded.
This factor expresses the principle that hazardous secondary materials being recycled should be managed in the same manner as other valuable materials. This factor requires those making a legitimacy determination to look at how the hazardous secondary material is managed before it enters the recycling process. In EPA's view, a recycler will value hazardous secondary materials that provide an important contribution to its process or product and, therefore, will manage those hazardous secondary materials in a manner consistent with how it manages a valuable feedstock. If, on the other hand, the recycler does not manage the hazardous secondary materials as it would a valuable feedstock, the hazardous secondary materials might not be recycled, but rather released into the environment and discarded, thereby indicating sham recycling.
This factor may be particularly important in the case where a recycler has been paid by a generator to take its materials as a result of the economic incentives in the hazardous secondary materials market. By looking at the management of the hazardous secondary material before it enters the recycler's process, the entity making the
This factor addresses the management of hazardous secondary materials in two distinct situations. The first situation is when a hazardous secondary material is analogous to a raw material which it is replacing in the process. In this case, the hazardous secondary material should be managed prior to recycling similarly to the way the analogous raw materials are managed in the course of normal manufacturing, or in an equally protective manner.
EPA expects that all parties handling hazardous secondary materials destined for recycling—generators, transporters, intermediate facilities and reclamation facilities—will handle them in generally the same manner in which valuable raw materials would otherwise be handled if used in the process. “Analogous raw material” is a raw material for which the hazardous secondary material substitutes and which serves the same function and has similar physical and chemical properties as the hazardous secondary material.
EPA proposed and is finalizing an addition to the language of this factor as compared to the 2008 DSW final rule to include the words “or in an equally protective manner.” This change means that a recycling process would meet this factor if the hazardous secondary material is stored in a different manner than the analogous raw material as long as that storage was as protective as the way the analogous raw material was stored.
For example, a hazardous secondary material in powder form that is shipped in a woven super sack in good condition (
In addition, managing a hazardous secondary material in a manner consistent with the management of an analogous raw material can include situations where the raw material and the hazardous secondary material (
The second situation the factor addresses is the case where there is no analogous raw material that the hazardous secondary material is replacing. This could be either because the process is designed around a particular hazardous secondary material—that is, the hazardous secondary material is not replacing anything—or it could be because of physical or chemical differences between the hazardous secondary material and the raw material that are too significant for them to be considered “analogous.”
Hazardous secondary materials that have significantly different physical or chemical properties when compared to the raw material would not be considered analogous even if they serve the same function because it may not be appropriate to manage them in the same way. In this situation, the hazardous secondary material would have to be contained for this factor to be met. The term “contained” as discussed in section V of this preamble, means that the unit in which the material is stored is in good condition, with no leaks or releases to the environment, and that the unit is designed to prevent such releases. In addition, to meet the contained standard, the unit must be labeled or have a system to identify the hazardous secondary material in it and must not hold incompatible materials or pose a risk of fires. Hazardous secondary materials in units that meet the applicable requirements of 40 CFR parts 264 or 265 are presumed to be contained. Land-based units can meet the definition of contained.
The requirement that a hazardous secondary material be contained when there is no analogous raw material to compare it to is consistent with the idea that normal manufacturing would ensure that the valuable material inputs are managed properly, rather than allow them to be released into the environment.
An example of when this provision would be used would be if a manufacturer decided to replace a dry raw material in its process with a liquid having the same constituents. It would not be sufficient, nor would it make sense, for the liquid to be managed in supersacks, like a dry material might. Instead, the liquid would have to be contained (for example, in a tank or container).
An important part of this factor is the statement in the regulatory text clarifying that hazardous secondary materials that are released to the environment and are not recovered immediately are discarded. Valuable feedstocks or products should not be allowed to escape into the environment through poor management and this factor clarifies that those hazardous secondary materials that are released (and are not immediately recovered) are clearly discarded and a solid waste. Either a large release or ongoing releases of smaller amounts could indicate that, in general, the hazardous secondary material is not being managed as a valuable product, which could indicate sham recycling. Hazardous secondary materials that are immediately recovered before they disperse into the environment—air, soil, or water—and are reintroduced in the recycling process are not discarded. This determination on factor 3 must be made on a case-by-case basis, however.
In EPA's 2008 DSW final rule, this factor was one of the two factors that was “to be considered” rather than one of the two mandatory factors because EPA believed that there may be some situations in which this factor was not met, but the recycling was still legitimate. With the addition of the language clarifying that the materials can be managed in a different way than the analogous raw material as long as that management system is equally protective, EPA has determined that there is no reason that a facility that is legitimately using a hazardous secondary material that has value to them in a recycling process would not meet this factor. EPA's intent with this factor is that hazardous secondary materials are managed in the same manner as materials that have been purchased or obtained at some cost, as raw materials are. Just as it is good business practice to ensure that raw materials enter the manufacturing process rather than being spilled or released, we would expect hazardous secondary materials to be managed effectively and efficiently in order that their full value to the manufacturing process would be realized.
The product of the recycling process must be comparable to a legitimate product or intermediate:
(i) Where there is an analogous product or intermediate, the product of the recycling process is comparable to a legitimate product or intermediate if:
(A) The product of the recycling process does not exhibit a hazardous characteristic (as defined in part 261 subpart C) that analogous products do not exhibit, and
(B) The concentrations of any hazardous constituents found in Appendix VIII of part 261 of this chapter that are in the product or
(ii) Where there is no analogous product, the product of the recycling process is comparable to a legitimate product or intermediate if:
(A) The product of the recycling process is a commodity that meets widely recognized commodity standards and specifications (
(B) The hazardous secondary materials being recycled are returned to the original process or processes from which they were generated to be reused (
(iii) If the product of the recycling process has levels of hazardous constituents that are not comparable to or unable to be compared to a legitimate product or intermediate per subparagraphs (i) or (ii) of this paragraph, the recycling still may be shown to be legitimate, if it meets the requirements specified below. The person performing the recycling must conduct the necessary assessment and prepare documentation showing why the recycling is, in fact, still legitimate. The recycling can be shown to be legitimate based on lack of exposure from toxics in the product, lack of the bioavailability of the toxics in the product, or other relevant considerations which show that the recycled product does not contain levels of hazardous constituents that pose a significant human health or environmental risk. The documentation must include a certification statement that the recycling is legitimate and must be maintained on-site for three years after the recycling operation has ceased. The person performing the recycling must notify the Regional Administrator of this activity using EPA Form 8700-12.
This factor requires that those making a legitimacy determination look at the concentrations of the hazardous constituents found in the product made from hazardous secondary materials and, except where otherwise specified, compare them to the concentrations of hazardous constituents in analogous products. A product that contains high levels of hazardous constituents that originate in a hazardous secondary material feedstock could indicate that the recycler incorporated hazardous constituents into the final product when they were not needed to make that product effective as a way to avoid proper disposal of that material, which would be sham recycling. This factor, therefore, is designed to determine when toxics that are “along for the ride” are discarded in a final product and the hazardous secondary material is not being legitimately recycled.
As proposed, factor 4 was unsatisfactory to many of the stakeholders of this rulemaking. Many representatives from the industrial sector argued that they would not be able to meet factor 4 or would not be able to easily know if they met factor 4. EPA had expected that a small number of facilities would have this concern and had proposed a petition process to address this problem, but many commenters argued that petitions would take a long time to be processed, creating uncertainty in the industrial sector, and that a petition process would be a drain on state and industry resources.
As a result of comments received on the proposal, EPA has made some revisions to this factor to ensure that long-standing legitimate recycling processes will still be considered legitimate under this factor. The requirements that are being promulgated today are described in full below and include different requirements for when there is an analogous product and when there is not, provisions for using widely-recognized commodity standards and specifications to meet this factor, a provision to address recycling that includes hazardous secondary materials being put back into the process from which they came, and a documentation, certification and notification process for facilities that cannot meet these requirements, but still believe their recycling is legitimate. A full description of how the requirement being finalized differs from what was proposed in the 2011 DSW proposal can be found in section VIII.C.3 of the preamble.
In addition to these changes, EPA has also retained the proposed language of this factor that states that the concentrations of hazardous constituents in the product of the recycling process must be “comparable to” or lower than those found in analogous products. This is a change from the 2008 DSW final rule, which used language stating that the concentrations of hazardous constituents should not be “significantly higher” than concentrations in analogous products.
Factor 4 starts with the statement that the product of the recycling process made from hazardous secondary materials must be comparable to a legitimate product or intermediate. It is important to note that the comparison that EPA is requiring here involves the product that comes out of a recycling process. That is, a recycler will ordinarily compare the product of the recycling process to an analogous product made of raw materials. For example, if a recycling process produces paint, the levels of hazardous constituents in the paint will be compared with the levels of the same constituents found in similar paint made from virgin raw materials.
However, a recycler is also allowed to perform this evaluation by comparing the hazardous constituents in the hazardous secondary material feedstock with those in an analogous raw material feedstock. If the hazardous secondary material feedstock contains concentrations of hazardous constituents that are comparable to or lower than the concentrations in the raw material feedstock, then the end product of the recycling process would not contain excess hazardous constituents “along for the ride” either. This method of showing that the product meets factor 4 is acceptable. There may be cases in which it is easier to compare feedstocks than it is to compare products because the recycler knows that the hazardous secondary material is very similar in profile to the raw material. A comparison of feedstocks may also be easier in cases where the recycler creates an intermediate which is later processed again and may end up in two or more products, when there is no analogous product, or when production of the product of the recycling process has not yet begun. Note, however, that EPA is allowing other ways to make the comparable demonstration in cases where there is no analogous product, as described below in section VIII.B.6.b.
The hazardous characteristics are found in 40 CFR part 261 subpart C and are used to identify those materials that are hazardous wastes, but that EPA has not specifically listed in part 261 subpart D. The characteristics are ignitability, corrosivity, reactivity, and toxicity. The toxicity characteristic includes a list of 40 contaminants and the levels at which the material would be considered hazardous waste when tested using the Toxicity Characteristic Leaching Procedure. If a product produced with hazardous secondary material exhibited a characteristic of hazardous waste that an analogous product did not exhibit, this would be an indication that sham recycling could be occurring as a significant hazardous constituent or characteristic would be in the product only as a result of the recycling of the hazardous secondary material. This requirement is in § 260.43(a)(4)(i)(A). In most cases, a recycler will be familiar enough with the material it is producing to be able to easily determine whether it would meet any of these characteristics, but if there are any questions, the methods for testing for the characteristics are found in 40 CFR part 261 subpart C.
In addition to this requirement, the product of the recycling process must also meet § 260.43(a)(4)(i)(B). This paragraph can be met in two ways. The first way is if the concentrations of any hazardous constituent (as defined by Appendix VIII to part 261) that is in the recycled product is comparable to or lower than those found in analogous products. This provision is what EPA proposed in the 2011 DSW proposal, which included a discussion of how meeting product specifications could indicate that a recycling process is legitimate, as well as a request for comments on how EPA should determine what “comparable” levels of hazardous constituents are when determining the legitimacy of a recycling process. In response to comments received on this point, EPA has added to this paragraph that the product of the recycling process would be comparable if it meets widely-recognized commodity standards that include levels that specifically address the hazardous constituents that are in the product.
As stated above, the first part of § 260.43(a)(4)(i)(B) is similar to the provision that EPA proposed in the 2011 DSW proposal. In this provision, EPA has decided to finalize language replacing the terms “significant” and “significantly elevated,” which were promulgated in the 2008 DSW final rule, with the phrase “comparable to or lower” because it more clearly reflects the intent of this factor. “Comparable to or lower than” means that any contaminants present in the product made from hazardous secondary materials are present at levels at or lower than the levels contained in an analogous product, or if higher, would be within a small acceptable range. This language is consistent with the Identification of Non-Hazardous Secondary Materials that are Solid Wastes final rule (76 FR 15456, March 21, 2011). However, we are not changing the basic meaning of this factor. Operationally, the terms “comparable” and “not significant” or “not significantly elevated” are the same for hazardous secondary materials recycling and the examples the Agency provided in the 2008 DSW final rule preamble that explained how the Agency envisions this factor working are still appropriate. Those examples are repeated here.
• If paint made from reclaimed solvent contains significant amounts of cadmium, but the same type of paint made from virgin raw materials does not contain cadmium, it could indicate that the cadmium serves no useful purpose and is being passed though the recycling process and discarded in the product. Thus, the levels of cadmium would not be considered “comparable” and the paint would fail this legitimacy factor, unless the recycler can conduct the necessary analysis and prepare documentation stating why the recycling is still legitimate. In addition, the recycler would need to certify and provide notice to the implementing agency of this activity.
• If a lead-bearing hazardous secondary material was reclaimed and then that material was used as an ingredient in making ceramic tiles and the amount of lead in the tiles was significantly higher than the amount of lead found in similar tiles made from virgin raw materials, the recycler should look more closely at the factors to determine the overall legitimacy of the process. The significantly higher levels of lead may indicate that the recycled product is not comparable to an analogous product and, thus, the recycling process is really a sham. Alternatively, the recycler may be able to demonstrate the recycling is still legitimate even though it does not contain lead at comparable levels by, for example, showing the toxics are not bioavailable. If this is the case, the recycler would need to document the analysis and certify the legitimacy of the recycling practice, as well as provide notice to the implementing agency.
• If zinc galvanizing metal made from hazardous secondary materials that are reclaimed contains 500 parts per million (ppm) of lead, while the same zinc product made from raw materials typically contains 475 ppm, the levels would be considered comparable since they are within a small acceptable range and, thus, the product would meet this factor. If, on the other hand, the lead levels in the zinc product made from reclaimed hazardous secondary materials were considerably higher, these levels may not be comparable, and would require the recycler to look more closely at this factor since it may indicate that the product was being used to illegally dispose of the lead and that the activity is sham recycling, unless the recycler can conduct the necessary assessment and prepare documentation stating why the recycling is still legitimate. In addition, the recycler would need to certify and provide notice to the implementing agency of this activity.
• If a “virgin” solvent contains no detectable amounts of barium, while spent solvent that has been reclaimed contains a minimal amount of barium (
The second part of § 260.43(a)(4)(i)(B) relies not on a comparison of levels of hazardous constituents between a product of the recycling process and an analogous product, but on the product of the recycling process meeting widely-recognized commodity standards and specifications. In this case, meeting a widely-recognized standard and specification would indicate that the recycling is legitimate if that standard and specification includes levels for the hazardous constituents that are found in the product of the recycling process.
EPA decided that using a product's ability to meet product specifications as an indicator of legitimate recycling would make the determination of legitimate recycling straight-forward in many cases where the product of the recycling is clearly a commodity in wide use in commerce. Although not spelled out in the regulatory language used in the 2008 DSW final rule, consideration of whether the product of a recycling process meets quality specifications has been part of the legitimacy determination since the Lowrance Memo in 1989, which included several questions to this effect as part of its determination of whether there is a guaranteed market for the product (
However, despite the value of product standards, EPA did not want to state that meeting any product specification was an indicator of legitimacy because any recycler could design its own specification and point to that as a way to circumvent the requirement. Therefore, this requirement requires that the commodity standards being met be widely-recognized. By “widely-recognized commodity standard,” EPA
In addition, for this part of factor 4, the commodity standards and specifications being referenced must specifically address those hazardous constituents that may be different between the analogous product and the product generated from using the hazardous secondary material in the recycling process. EPA is making this explicit in the regulations to avoid a situation in which a product from a process that is recycling hazardous secondary materials meets a widely-recognized product specification, but does not include any levels for the hazardous constituents that are in the hazardous secondary material. A product specification could have been developed without any thought that the feedstock for that product might include some hazardous constituents that could be toxic to human health and the environment and, therefore, not include them. We are concerned with the potential that the analogous product could be substituted with the recycled product without full disclosure of potential toxics that may be in the recycled product. Using a standard or specification that does not address the hazardous constituents of concern to demonstrate meeting factor 4 of the legitimacy requirements where there is an analogous product would ignore the primary concern of this factor and would allow elevated levels of toxics from the hazardous secondary material into the final product.
EPA had not previously identified a separate methodology for meeting factor 4 in the situation where there is no analogous product, but the support in the comments in response to EPA's request for input on the use of product specifications made it clear that this approach could be effective in the case where there is no analogous product. Therefore, EPA is stating in § 260.43(a)(4)(ii)(A) that a product of the recycling process is comparable to a legitimate product or intermediate when “the product of the recycling process is a commodity that meets widely-recognized commodity standards and specifications.” EPA gives the example in the regulatory text of commodity specification grades for common metals, which would be relevant to scrap metal recyclers, among other metal recyclers.
As stated above for paragraph (A), EPA decided that using a product's ability to meet product standards and specifications as an indicator of legitimate recycling would make the determination of legitimate recycling more straight-forward in many cases where the product of the recycling is clearly a commodity in wide use in commerce. This would limit uncertainty from recyclers about whether their processes are legitimate.
However, despite the value of product standards and specifications, EPA did not want to state that meeting any product standard or specification was an indicator of legitimacy because any recycler could design its own specification and point to that as a way to circumvent the requirement. Therefore, this requirement requires that the commodity standards and specifications being met be widely-recognized. By “widely-recognized commodity standard and specification,” EPA means a standard or specification that is used throughout an industry to describe a certain product and that is widely-available to anyone producing the product. A specific example of such a widely-recognized standard agency would be ASTM International, which has standards covering a wide variety of manufactured goods. Note, for this part of factor 4, the commodity standard or specification must be widely recognized, but would not necessarily address a specific hazardous constituent, since there is no analogous product to compare it to. EPA has determined that recycled products that do not have analogous products can “stand alone” in that they are not substitutes for virgin products and thus, either succeed or fail based on their inherent characteristics, including any hazardous constituents contained therein. Therefore, EPA has determined that market forces appropriately dictate whether these types of recycled products meet the technical provisions of factor 4.
EPA also wanted to address the situation in which a manufacturing process produces a hazardous secondary material that is then recycled back into the process from which they were generated. In some cases, the product is always manufactured using this kind of feedback loop and, therefore, there is no analogous product with which it can be compared. EPA has included in today's final rule a provision that states that when “hazardous secondary materials being recycled are returned to the original process or processes from which there were generated to be reused, the product of the recycling process is comparable to a legitimate product or intermediate.” That is, in those situations, the recycling process meets factor 4.
Recycling that takes place under EPA's closed loop recycling exclusion at § 261.4(a)(8) would be an example of manufacturing that would consistently include the hazardous secondary material being returned to the original process from which it was generated and that would meet the legitimacy factors being discussed here. Another situation about which commenters expressed concern was mineral processing to produce primary metals, because these processes always include materials looping back into the process to ensure that all the valuable metals that can be extracted from the ore are being collected for use. For example, in precious metals production, hazardous secondary materials from various stages in the process contain concentrations of both precious metals and hazardous constituents that are higher than concentrations in ore. The concentrations of hazardous constituents and precious metals in these hazardous secondary materials vary depending on the makeup of the ore from which they came. In order to glean the most valuable product from processing the ore, these hazardous secondary materials are routinely put back into the production units that process the virgin materials and are put
EPA has determined that recycling hazardous secondary materials in this manner is not a concern as far as “toxics along for the ride” are concerned because the hazardous secondary materials came out of the very same process and contain the same hazardous constituents that are already in the manufacturing process. These hazardous constituents originated in the raw materials of the process that are being used with or without the recycling loop. Prohibiting the recycling of hazardous secondary materials in these situations because of factor 4 would not be changing the amount or nature of hazardous constituents in the product that comes out of the manufacturing process. In addition, that kind of prohibition would be misguided from a resource conservation perspective because it could limit the recycling of these materials back into a process, which leads to a more efficient process and therefore conserves the use of raw materials in manufacturing.
EPA recognizes, however, that despite these changes, there may still be instances where recycling is legitimate, but is unable to meet the technical provisions of factor 4 as it is written because the product of the recycling process has levels that are not comparable to analogous products or because the product of the recycling process cannot be compared to an analogous product, but does not fit under § 260.43(a)(4)(ii).
It is critical that the legitimacy regulations be flexible enough to allow for situations like this, particularly with the regulations applying to all recycling. In this final rulemaking, EPA has replaced the petition process that it proposed in the 2011 DSW proposal with a documentation, certification and notice process for factor 4.
Specifically, when a recycling facility has determined that it must take advantage of the documentation, certification and notice process, either because the product of the recycling process has levels that are not comparable to analogous products or because the product of the recycling process cannot be compared to an analogous product (and § 260.43(a)(4)(ii) does not apply), it must determine that its recycling process is legitimate despite the levels of hazardous constituents in the product. The regulatory text for this provision explains that in doing this analysis, the facility making the determination can consider “lack of exposure from toxics in the product, lack of the bioavailability of the toxics in the product, or other relevant considerations which show that the recycled product does not contain levels of hazardous constituents that pose a significant human health or environmental risk.”
A consideration of lack of exposure from the toxics in a product would involve an assessment of the process to determine if the hazardous constituents are likely to come into contact with humans or the environment in a way that will harm them. For example, a product that is more of an intermediate in a recycling process and stays within an industrial setting where it is contained and where everyone coming into contact with it is familiar with any hazards that it poses could be considered a candidate for this certification because there is limited exposure to human health and the environment from the product. A consumer product, on the other hand, that will be leaving an industrial setting and entering the market where certain hazardous constituents may not be expected and may not have limited exposure to human health and the environment is unlikely to be eligible for this exception to factor 4.
For example, as previously explained in the 2008 DSW final rule and the 2011 DSW proposed rule, EPA has determined that the reuse of lead contaminated foundry sands may or may not be legitimate, depending on the use. The use and reuse of foundry sands for mold making in a facility's sand loop using a non-thermal reclamation process under normal industry practices has been found to be legitimate because the sand is part of an industrial process where there is little chance of the hazardous constituents being released into the environment or causing damage to human health and the environment when it is kept inside, because there is lead throughout the foundry's process, and because there is a clear value to reusing the sand, even though the levels of hazardous constituents in the sands may not be comparable to the analogous product. However, in the case of lead contaminated foundry sand used as children's play sand, the same high levels of lead would disqualify this use from being considered legitimate recycling.
An assessment of lack of the bioavailability of toxics in the product could be a more complicated analysis that would examine whether the hazardous constituents in the final product are bound up with the other constituents in such a way that they would not be released when coming into contact with humans or the environment over the lifetime of the product. Although this would be a sophisticated assessment, a facility wishing to perform this kind of analysis to inform a legitimacy determination under this certification process can do so.
EPA has included the phrase “other relevant considerations which show that the recycled product does not contain levels of hazardous constituents that pose a significant human health or environmental risk” in the regulation to account for other situations that may arise. An example that was submitted in the comments to the proposal that could be an “other relevant consideration” in making this determination is when the reclaimed product contains compounds that are not in analogous products, but the products exhibit similar physical and chemical risk profiles and therefore are not posing an increased risk. There may be other considerations regarding factor 4 like these that could also be relevant to the legitimacy of a recycling process; however, the Agency thinks these are limited.
After determining that its process is still legitimate, the recycling facility would prepare documentation explaining its assessment. This should take the form of a description of the process in question and an explanation of the analysis performed to determine legitimacy, including any relevant diagrams and flow charts, as well as any
The documentation and certification of legitimate recycling would have to be maintained or available on-site for as long as the recycling process is operating at the site and for three years after the recycling operation has ceased.
In addition to preparing and maintaining this documentation, the recycling facility would notify its Regional Administrator (or State Director, in authorized states) that it is taking advantage of this provision by reporting the type of hazardous secondary material and the recycling process being used to produce a product with elevated levels of hazardous constituents (or a product that has no widely-known commodity standards for the hazardous constituents) through EPA Form 8700-12, otherwise known as the Site ID form.
EPA has decided to finalize this self-implementing certification process rather than the proposed petition process to reduce burden on facilities who are taking advantage of this provision, as well as on the regulatory agencies implementing the regulations. Because this requirement for documentation and a certification that must be maintained on-site does not include an approval process, facilities do not have to wait for any decisions from their implementing agencies about whether their recycling is legitimate.
However, the notification aspect of the legitimacy regulations being finalized today adds some limited, but important, oversight to a process that would otherwise be taking place out of sight of the regulating agencies all together, that is, the decision that a recycling process that does not meet factor 4 is still legitimate. The notification gives EPA and the authorized states information about which recycling facilities are producing products from recycled hazardous secondary materials that have elevated levels of hazardous constituents when compared to non-recycled products (or are producing recycled products that have no non-recycled analogue and no widely recognized commodity specifications). This notification facilitates oversight and inspections of the recycling facility concerning the legitimacy of the recycling process, allowing EPA and authorized states to continue to use existing authorities to determine whether the recycling is legitimate.
EPA has chosen this approach because it maintains the self-implementing nature of the regulations, while providing enough information to EPA and the authorized states to gather the necessary information. In these ways, this approach addresses the main concerns raised by the stakeholders in the comments to this rulemaking.
A facility that claims to be operating a recycling process that is legitimate under this provision could be subject to an enforcement action if the Agency determines that the recycling is sham. As always, a facility with questions about the regulated status of its hazardous secondary material can contact its implementing agency for assistance in making a waste determination.
In today's final rule, EPA is codifying the requirement that all hazardous secondary material recycling must be legitimate. However, instead of amending the text of each recycling exemption and exclusion, we are instead codifying a provision in § 261.2(g) that states that any hazardous secondary material found to be sham recycled is discarded and thus, a solid waste. This more clearly reflects our intent and our long-standing policy that only those facilities truly recycling should be eligible for an exclusion based on recycling the hazardous secondary materials. We did not intend to cause facilities that are legitimately recycling to revisit their practices or for state agencies to revisit past legitimacy determinations. However, we do want to make clear that sham recycling is not real recycling and thus, any hazardous secondary material being sham recycled is a solid and potentially a hazardous waste. By making a clear statement in the definition of solid waste, the Agency is placing the appropriate emphasis on this issue, that is, that sham recycling is discard.
When the Agency codified the legitimacy standard in the 2008 DSW final rule, we did not require specific documentation regarding the legitimacy determination, although the regulatory language stated that persons claiming to be excluded from hazardous waste regulation because they are engaged in reclamation must be able to demonstrate that the recycling is legitimate. In the 2011 DSW proposal, we proposed to require that persons who perform recycling include documentation in their paperwork to explain how their hazardous secondary materials are legitimately recycled.
After reviewing the public comments, we have decided that, as a general matter, documentation of legitimacy is not necessary for most hazardous secondary materials recycling. Instead, we will continue to rely on the current provision in § 261.2(f) that requires respondents to demonstrate that the material is not a waste. Section 261.2(f) requires persons claiming that materials are not solid waste or are conditionally exempt from RCRA Subtitle C regulation to provide appropriate documentation of these claims.
However, we are finalizing two exceptions to the general case where documentation of legitimate recycling is not required. The first is that we are finalizing a requirement for facilities reclaiming hazardous secondary materials under the control of the generator, that is, any facility claiming the exclusion at § 261.4(a)(23), to document the legitimacy of the reclamation process. We have determined that it is important for those facilities to document the legitimacy of their recycling process, given the wide variety of hazardous secondary materials and industrial processes that can claim to be operating under the generator-controlled exclusion with relatively few conditions. After implementing the DSW exclusions in several states since its promulgation in October 2008, we have determined that documentation of legitimacy for this particular exclusion is important in ensuring compliance and will make oversight and enforcement more effective. We are therefore requiring that persons who perform reclamation under the control of the generator to include documentation and explain how their hazardous secondary materials are legitimately reclaimed. We expect this documentation to be a narrative description, which could include photographs or other illustrations or process diagrams of how the reclamation of their hazardous
The other exception where documentation is required is for those facilities whose product made from recycled hazardous secondary materials does not meet factor 4, but would still be considered a legitimately recycled product. Those facilities would need to maintain documentation as to why, in fact, the recycling is still legitimate as it relates to factor 4. For a more detailed explanation of that documentation requirement, refer to section VIII.B.6 above.
In the 2011 DSW proposal, EPA's proposed factor 4 contained two main requirements to ensure that hazardous constituents were not “along for the ride” and being discarded in a final product under the guise of recycling. The proposed regulation stated that the product of the recycling process would have to have concentrations of hazardous constituents that are at levels comparable to or lower than those found in analogous products. In addition, the proposal stated that the product of the recycling process could not exhibit a hazardous characteristic that analogous products did not also exhibit.
Although this approach would provide a way for operations that are legitimate, but don't meet factor 4 to still operate, commenters from both the industrial sector, as well as from state regulatory agencies, commented that this approach was not ideal. Commenters from industry suggested that there would be more petitioners under this provision than EPA had anticipated because certain large sectors of industry would likely be uncertain about whether their recycling would meet the factor as written and would be compelled to petition their implementing agencies. Commenters provided some real world examples to illustrate their concerns with factor 4 that EPA closely examined when redrafting the language for this provision.
Commenters also were concerned that the petition process itself might take too long if the implementing agencies receive petitions from many facilities and that the response time might end up being very lengthy. Several of the states that could be responsible for replying to these petitions also commented that they were not in favor of a petition process because the resources that would be required to respond to the petitions are not available in the state program offices.
EPA made several changes to factor 4 in response to these comments and has determined that factor 4, as we are finalizing it today, better addresses the wide variety of industrial recycling processes. There are four main changes to the final language of factor 4 as compared to the 2011 DSW proposed regulation.
First, instead of the two basic proposed provisions that depend on a comparison with an analogous product, factor 4 as finalized acknowledges that sometimes there is no analogous product available for a comparison. Subparagraph (i) covers how a recycling process meets the factor if there is an analogous product whereas subparagraph (ii), which was not part of the proposed regulatory language, covers how a product with no analogous product can meet factor 4.
Secondly, the finalized regulatory language has provisions for how widely-recognized industry standards and specifications can be used to meet factor 4. EPA took comment on the usefulness of specifications for evaluating hazardous constituents in the product and has determined that as long as the standards and specifications being relied upon are widely recognized industry wide standards and specifications for a product (and in the case of (i), that they address the hazardous constituents in question), meeting them would be appropriate to show that hazardous constituents are not being discarded under the guise of recycling. This should make determinations regarding factor 4 simpler for a wide range of industries producing common industrial commodities. EPA did not intend to interfere with long-standing legitimate recycling in these industries and this addition to the regulatory language should clarify for those industries that when they are meeting the extensive commodity standards and specifications for their products, they meet factor 4 as well.
The third change is the addition under § 260.43(a)(4)(ii)(B) of language that states that hazardous secondary materials that are being recycled by being returned to the original process(es) from which they were generated meet factor 4. In closed loop recycling and in several other kinds of recycling, such as in mining and mineral processing, hazardous secondary materials generated from an industrial process are regularly returned to that same process to remove more of the valuable constituent from them. The hazardous constituents in the secondary material are no different than what is already in the process and returning them makes the entire manufacturing process more efficient since it requires fewer raw materials.
EPA has stated in the past that it would not consider this practice a concern from the perspective of factor 4 because the comparison in question is supposed to be between final products, but it was clear from the comments to the proposal that this question was still a concern to many facilities. When adding subparagraph (ii) for situations where there is no analogous product for a comparison, EPA also added this language to make it clear that processes in which the hazardous secondary materials are returned to the original process do meet factor 4.
Collectively, these changes to the language of factor 4 are an improvement from EPA's 2011 proposal as the changes clarify when factor 4 is met for a wide variety of industrial processes. Furthermore, a generator can use its knowledge of the materials it uses and of the recycling process to make legitimacy determinations under factor 4. Thus, testing would be rarely required for a recycler to meet this factor because it would only be necessary when the product of the recycling does not meet widely-recognized specifications, is not an in-process material, and when the recycler does not sufficiently know what is in their final product to make a determination using generator knowledge.
Finally, EPA has changed proposed factor 4 to require any facility that does not meet the technical provisions of this
The certification process requires that a facility go through the same thought process and assessment about hazardous constituents that are incorporated into the final product that would have been required by the petition process (and that is currently consistent with the Agency's legitimacy policy in the Lowrance Memo). However, instead of having to submit a petition to an implementing agency when the process is legitimate despite not meeting the technical provisions of factor 4, the facility can document and certify the assessment that it has done and submit a notification on the Site ID form. This is a minimal burden, particularly as the Site ID form is a form that many of these facilities are already submitting to EPA for other reasons. In addition, these facilities are not left waiting for a response from an agency as they may have had to under the proposed petition procedure.
All in all, these changes to factor 4 will make this part of the legitimacy requirement consistent with the current policy in the Lowrance Memo and
The Agency is finalizing today several modifications to the regulation of solid waste variances and non-waste determinations at 40 CFR 260.31(c), 40 CFR 260.33, and 40 CFR 260.34 to ensure protection of human health and the environment and foster greater consistency on the part of implementing agencies. These final revisions include:
(1) Revise 40 CFR 260.33(c) to require facilities to send a notice to the Administrator (or the State Director, if the state is authorized) in the event of a change in circumstances that affects how a hazardous secondary material meets the relevant criteria upon which a variance or non-waste determination has been based. The Administrator may issue a determination that the hazardous secondary material continues to meet the relevant criteria of the variance or non-waste determination or may require the facility to re-apply for the variance or non-waste determination;
(2) Include a provision at 40 CFR 260.33(d) that variances and non-waste determinations shall be effective for a fixed term not to exceed ten years. No later than six months prior to the end of this term, facilities must re-apply if they want to maintain the variance or non-waste determination;
(3) Include a provision at 40 CFR 260.33(e) stating that facilities receiving a variance or non-waste determination must provide notification as required by 40 CFR 260.42;
(4) Revise the criteria for the partial reclamation variance in 40 CFR 260.31(c) to clarify when the variance applies and to require, among other things, that the all criteria for this variance must met; and
(5) Revise the criteria for the non-waste determination in 40 CFR 260.34 to require that petitioners explain or demonstrate why their hazardous secondary materials cannot meet, or should not have to meet, the existing DSW exclusions under 40 CFR 261.2 or 261.4.
A discussion of the public comments on the 2011 DSW proposal and Agency responses can be found in section XVIII of this preamble and the full response to comment document is in the docket for the rulemaking.
Under the current regulatory framework, 40 CFR 260.30 provides the Administrator with the authority to grant a variance from the definition of solid waste or a non-waste determination on a case-by-case basis if the hazardous secondary materials are recycled in a particular manner. The practical effect of both the solid waste variances and the non-waste determinations is the same; once a petition is granted by EPA, or the authorized state, the hazardous secondary material is not regulated as a solid or hazardous waste. The procedures for these variances and non-waste determinations are found in 40 CFR 260.33.
In today's rule, EPA is finalizing three changes to 40 CFR 260.33. First, EPA is requiring in 40 CFR 260.33(c) that facilities send a notice to the Administrator (or the State Director, if the state is authorized) in the event of a change in circumstances that affect how a hazardous secondary material meets the relevant criteria upon which a variance or non-waste determination has been based. Second, EPA is establishing in 40 CFR 260.33(d) an effective term limit of ten years for variances and non-waste determinations unless the petitioner re-applies to the Agency to have the variance or non-waste determination renewed. Third, EPA is requiring in 40 CFR 260.33(e) that facilities re-notify every two years under 40 CFR 260.42.
EPA is modifying 40 CFR 260.33(c) to require, in the event of a change in circumstances that affects how a hazardous secondary material meets the relevant criteria contained in 40 CFR 260.31, 260.32, or 260.34 upon which a variance or non-waste determination has been based, the applicant must send a description of the change in circumstances to the Administrator (or the State Director, if the state is authorized). The Administrator then may issue a determination that the hazardous secondary material continues to meet the relevant criteria of the variance or non-waste determination or may require the facility to re-apply for the variance or non-waste determination.
The requirement that the hazardous secondary materials must continue to meet the relevant criteria of a solid waste variance or non-waste determination is inherent in the regulations. Failure to meet the criteria could indicate that the hazardous secondary materials are discarded and a solid waste and would trigger the need to re-examine the circumstances of the recycling. EPA is codifying this change to 40 CFR 260.33(c) to ensure that if there are changes that may impact how the hazardous secondary material meets the relevant criteria, that such changes be considered by the regulatory authority to ensure that those criteria continue to be met. This requirement will ensure clarity and consistency by providing an administrative procedure for reconsidering a variance or non-waste determination in the event that
In some cases, a full re-application for a variance or non-waste determination may not be necessary. Under today's final rule, in the event of a change, the facility must send a description of the change in circumstances to the regulatory authority and it is the regulatory authority that will determine whether the facility must re-apply for a variance or non-waste determination. This change in procedure allows the regulatory authority to avoid spending unnecessary resources re-reviewing petitions where the change in circumstances is found to be of no consequence to the original variance or non-waste determination the regulatory authority has granted.
EPA is adding a provision to 40 CFR 260.33(d) that solid waste variances and non-waste determinations shall be effective for a fixed term not to exceed ten years. No later than six months prior to the end of this term, facilities must re-apply for a variance or non-waste determination if they want to maintain the variance or non-waste determination. A facility may continue to operate under an expired variance or non-waste determination if they have submitted an application for a new variance or non-waste determination six months prior to the end of the term limit and have not yet received a final decision on that application from their regulatory authority.
Variances and non-waste determinations are granted based on the case-by-case circumstances of a particular hazardous secondary material being recycled. Many of the variance and non-waste determination criteria specifically consider factors such as, the manner in which the hazardous secondary material is recycled, the market factors of the recycling process, the value of the hazardous secondary material, and contractual arrangements. However, these factors do not remain static and, instead, tend to change and evolve over time. It is therefore prudent that regulatory authorities periodically review these case-by-case situations to ensure that the hazardous secondary material continues to meet the criteria of the variance or non-waste determination.
Variances and non-waste determinations are granted for a fixed term not to exceed ten years from the date the facility is granted a variance or non-waste determination. If, for example, due to a change in circumstances, a facility is required to re-apply for a variance or non-waste determination within the 10-year time limit of its initial petition, then an automatic re-application would not be initiated until ten years after its second variance or non-waste determination is granted, unless otherwise specified by the regulatory authority. Additionally, regulators may stipulate time limits of less than 10 years, if warranted.
EPA is adding a provision to 40 CFR 260.33(e) to require facilities receiving variances or non-waste determinations to send a notification of this activity prior to operating under the regulatory provision and by March 1 of each even-numbered year thereafter to the Regional Administrator (or State Director, if the state is authorized) using EPA Form 8700-12 in compliance with 40 CFR 260.42. Additionally, these facilities must notify within 30 days of stopping management of hazardous secondary materials under the variance or non-waste determination.
The intent of the notification is to enable variances and non-waste determinations to be tracked nationally and over time, which facilitates state-to-state consistency in determinations. Additionally, notifications enable effective oversight of facilities receiving variances and non-waste determinations because it provides regulatory authorities with a mechanism for receiving regularly updated information (such as information regarding quantities of hazardous secondary materials managed under the determination). Additionally, this information can be used to identify facilities which may have undergone changes to their reclamation process significant enough to trigger a review of the determination under 40 CFR 260.33(c).
EPA finds that the notification requirement under 40 CFR 260.42 has worked well in enabling regulatory authorities to monitor compliance of facilities operating under the 2008 DSW final rule. Regulatory authorities receive information on the name and location of the facilities operating under the exclusion and the types and quantities of hazardous secondary materials the facility is managing, which allows the regulatory authority to prioritize inspections, as well as create a list of facilities that would benefit from training and compliance assistance on the rule. Additionally, notification has allowed regulatory authorities to identify problems so as to intervene early to prevent potential mismanagement. EPA is convinced of the value of the notification provision in ensuring proper implementation of its rules. Therefore, notification for variances and non-waste determinations will increase transparency and oversight of facilities receiving a variance or non-waste determination.
The “partial reclamation” variance in 40 CFR 260.30(c) applies to hazardous secondary materials that have been reclaimed, but must be reclaimed further before the materials are completely recovered (
In this final rule, EPA is revising the partial reclamation variance provision of 40 CFR 260.31(c) to clarify when partially-reclaimed materials are not solid waste because they are commodity-like. The objectives of the revisions are to clarify the regulatory language, foster consistent application of the variance criteria, and emphasize that the variance should be granted only when partial reclamation has produced a commodity-like material. EPA's modifications to 40 CFR 260.31(c) include: (1) Revising the introductory text to clarify when the variance applies; (2) revising the introductory text to require that all of the decision criteria must be met; (3) revising the language of all of the decision criteria to provide greater clarity; and (4) eliminating the sixth criterion, “other relevant factors.”
When the partial reclamation variance was promulgated in 1985, EPA's original intent was to provide a mechanism for determining if a hazardous secondary material had undergone sufficient reclamation (a type of processing) to produce a material that was more like a commodity than a solid waste. The variance would be applicable if the material was commodity-like, even though some further reclamation was required before the material became a commercial product. EPA intended that the variance would be applied at the point that the commodity-like material was produced. After that point, the material would be managed as a commodity rather than as a solid and hazardous waste. Prior to the point that partial reclamation produced a commodity-like material, the material would have to be managed as a hazardous waste.
However, EPA has become aware that authorized states across the country have applied the variance provision differently in similar circumstances. These differences may be due to: (1) The wide discretion allowed to the regulatory authority to weigh any or all of the decision criteria in any way it sees fit; (2) lack of clarity in the decision criteria themselves; or (3) the general sixth criterion “other relevant factors.”
As a result, variances have been granted under 40 CFR 260.31(c) for some materials that are not commodity-like. Therefore, EPA is finalizing revisions to the variance criteria to address the inconsistency among authorized states, remove ambiguities, and clearly convey the intent of the partial reclamation variance that only partially reclaimed hazardous secondary materials that have produced commodity-like materials are eligible for a variance from classification as solid waste. Consistent and appropriate application of the partial reclamation variance is necessary so that the hazardous waste program provides the level of protection of human health and the environment required by the RCRA statute in all communities in all areas of the country.
An illustration of how the revised variance provision would be applied to a commonly reclaimed hazardous waste example is included in the “Background Document: Providing Context—The Example of F006 Electroplating Sludges,”
EPA revised the introductory text of 40 CFR 260.31(c) to clarify when a partial reclamation variance is applicable and to identify what factors must be used to make a determination that a partially-reclaimed material is commodity-like. The revised text states:
The Administrator may grant requests for a variance from classifying as a solid waste those hazardous secondary materials that have been partially reclaimed, but must be reclaimed further before recovery is completed, if the partial reclamation has produced a commodity-like material. A determination that a partially-reclaimed material for which the variance is sought is commodity-like will be based on whether the hazardous secondary material is legitimately recycled as specified in § 260.43 of this part and on whether all of the following decision criteria are satisfied:
To make a determination that a partially-reclaimed material is commodity-like, EPA revised the introductory text to require that such a determination will be based on whether the hazardous secondary material is legitimately recycled and whether all the decision criteria are satisfied.
Each criterion under 40 CFR 260.31(c) has been revised to begin with the word “whether” to require that the regulatory authority must make a yes or no determination as to whether the material meets each criterion. In addition, each criterion has been revised to clarify and incorporate the characteristics of a commodity-like material.
The first criterion in 40 CFR 260.31(c)(1) asks whether the degree of partial reclamation the material has undergone is substantial as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste. By using a partial reclamation process other than the process that generated the hazardous waste, the more likely that the material will be commodity-like. Changes from the original language of the criterion include (1) replacing the general word “processing” with the words “partial reclamation”; and (2) removing from the criterion ambiguity that could lead a regulatory authority to apply the variance after the initial partial reclamation process when a commodity-like material is not produced until completion of further reclamation.
The second criterion in 40 CFR 261.31(c)(2) asks whether the partially-reclaimed material has sufficient economic value that it will be purchased for further reclamation. Changes from the original language of the criteria include: (1) Adding the word “partially-” before the word “reclaimed” to clarify that the criterion applies to the partially-reclaimed material, not the fully-reclaimed material produced later in the process; and (2) revising the wording to reflect the fundamental characteristic that a commodity-like material has sufficient economic value that it will be purchased for further reclamation. EPA notes that the value of a material produced at a later stage of reclamation cannot be used to justify a variance for the partially-reclaimed material produced earlier in the process. In other words, the criterion must be applied to the “partially-reclaimed” material at the specific point in the reclamation process where application of the variance is requested. Evidence to support this criterion may include sales information; demand for the materials; and business contracts, such as contracts specifying quantities of material sold, details of the transaction, and the effective price paid for the partially-reclaimed material by purchasers. The price paid for the partially-reclaimed material should be calculated after subtracting transportation costs and any other goods or services rendered in exchange for the material purchased.
The third criterion in 40 CFR 260.31(c)(3) asks whether the partially-reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials and which is used in subsequent production steps. Changes from the original language of the criteria include (1) adding the word “partially-” before the word “reclaimed” to clarify that the criterion applies to the partially-reclaimed material, not the fully-reclaimed material produced later in the process; and (2) replacing the phrase “is like an analogous raw material” with the phrase “is a viable substitute for a product or intermediate produced from virgin or raw materials which is used in subsequent production steps.” This revision is intended to demonstrate that a partially-reclaimed, commodity-like material is one that will be used as a viable substitute for a product or intermediate in production. Evidence to support this criterion would include a comparison of the physical and chemical characteristics of the partially-reclaimed material being considered for the variance to those of products or intermediates produced from virgin raw materials.
The fourth criterion in 40 CFR 260.31(c)(4) asks whether there is a market for the partially-reclaimed material as demonstrated by known customer(s) who are further reclaiming the material (
The fifth criterion in 40 CFR 260.31(c)(5) asks whether the partially-reclaimed material is handled to minimize loss. Changes from the original language of the criteria includes adding the word “partially-” before the word “reclaimed” to clarify that the criterion applies to the partially-reclaimed material, not the fully-reclaimed material produced later in the process. Specifically, this criterion requires evaluation of how the partially-reclaimed material is handled before it is further reclaimed. Handling a partially-reclaimed material to minimize loss indicates that the material is commodity-like. Generally, persons handling hazardous secondary materials with little or no economic value do not have the same incentives to minimize loss as persons handling commodities. The management of materials produced at later stages of the reclamation process is not relevant to whether the partially-reclaimed material is eligible for a variance. Evidence to support this criterion may include documentation of facility procedures used to minimize loss (
Finally, in today's final rule, EPA is removing the sixth criterion in 40 CFR 260.31(c)(6), which allowed the regulatory authority to consider other relevant factors when deciding whether a partially-reclaimed materials is commodity-like. When the partial reclamation variance was promulgated in 1985, EPA believed that this criterion could help determine whether a material is commodity-like. However, based on experience with the variance provision, EPA has learned that this criterion may have contributed to different determinations of whether the same partially-reclaimed material is commodity-like. Accordingly, EPA has determined that the appropriate and complete set of criteria to consider when determining whether a partially-reclaimed material is commodity-like are criteria (1)-(5).
In today's final rule, EPA is adding a criterion to non-waste determinations in 40 CFR 260.34 that require facilities applying for a non-waste determination to explain or demonstrate why they cannot meet, or should not have to meet, the existing DSW exclusions under 40 CFR 261.2 or 261.4.
The final rule does not supersede any of the pre-2008 solid waste exclusions or other prior solid waste determinations or variances, including determinations made in letters of interpretation and inspection reports. If a hazardous secondary material has been determined not to be a solid waste for whatever reason, such a determination remains in effect, unless the authorized state decides to revisit the regulatory determination under their current authority. In addition, if a hazardous secondary material has been excluded from hazardous waste regulations—for example, under the Bevill exclusion in 40 CFR 261.4(b)(7)—the regulatory status of that material will not be affected by today's rule.
However, there are two revisions to the regulations that, while they do not directly affect the regulatory status of excluded hazardous secondary materials, may impact facilities' responsibilities under an existing exclusion. These two revisions are (1) a new recordkeeping requirement for speculative accumulation; and (2) a documentation, certification, and notification requirement for recycling processes which are legitimate despite having levels of hazardous constituents that are not comparable to or unable to be compared to a legitimate product. These requirements must be met by the effective date of the rule, which is July 13, 2015.
Under the revised speculative accumulation requirement in § 261.1(c)(8), all persons subject to the speculative accumulation requirements (for example, persons reclaiming characteristic by-products and sludges under 40 CFR 261.2(c)(3) and persons reclaiming hazardous secondary
The codification of the prohibition of sham recycling (§ 261.2(g)), and the definition of legitimate recycling (§ 260.43) being finalized today will not impose any new requirements on persons recycling under the pre-2008 recycling exclusions, except in the case where the product of the recycling process (1) has levels of hazardous constituents that are not comparable to or lower than those in a legitimate product (
In this case, the person performing the recycling must conduct the necessary analysis and prepare documentation stating why the recycling is still legitimate. Persons may consider exposure from toxics in the product, the bioavailability of the toxics in the product, and other relevant considerations which show that the recycled product does not contain levels of hazardous constituents that pose a significant human health or environmental risk. The documentation must include a certification statement that the recycling is legitimate and must be maintained on-site. The person performing the recycling must also notify his Regional Administrator (or State Director, if the state is authorized) of this activity using EPA Form 8700-12.
Because today's rule includes more stringent standards for the generator-controlled exclusion at 40 CFR 261.4(a)(23), facilities that are currently managing hazardous secondary materials under these provisions must ensure they are complying with the more stringent standards by the effective date of the rule, which is July 13, 2015 (or in an authorized state, by the effective date in that state). The new provisions include (1) complying with the regulatory definition of “contained” found in 40 CFR 260.10; (2) maintaining shipping records for reclamation under same-company and toll manufacturing agreements; (3) (for the person performing the recycling) documenting how the recycling meets all four factors of the legitimacy definition in 40 CFR 260.43,
Under the new regulatory definition of contained, a hazardous secondary material is contained if it is managed in a unit (which can include a land-based unit such as a pile) that meets the following criteria: (1) The unit is in good condition, with no leaks or other continuing or intermittent unpermitted releases of the hazardous secondary materials to the environment, and is designed, as appropriate for the hazardous secondary material, to prevent releases of the hazardous secondary material to the environment. Unpermitted releases are releases that are not covered by a permit (such as a permit to discharge to water or air) and may include, but are not limited to, releases through surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures; (2) the unit is properly labeled or otherwise has a system (such as a log) to immediately identify the hazardous secondary materials in the unit; and (3) the unit holds hazardous secondary materials that are compatible with other hazardous secondary materials placed in the unit and is compatible with the materials used to construct the unit and addresses any potential risks of fires or explosions. Hazardous secondary materials in units that meet the applicable requirements of 40 CFR part 264 or 265 (
Under the new requirements to document shipments for reclamation performed under the same-company and toll manufacturing provisions of the generator-controlled exclusion at 40 CFR 261.4(a)(23), generating and receiving facilities must maintain records of hazardous secondary materials sent or received under this exclusion at their facilities for no less than three years. The records must contain the name of the transporter, the date of the shipment, and the type and quantity of the hazardous secondary material shipped or received. The requirements may be satisfied by routine business records (
Persons performing the recycling of hazardous secondary materials under the generator-controlled exclusion of 40 CFR 261.4(a)(23) must also maintain documentation of their legitimacy determination on-site. Documentation must be a written description of how the recycling meets all four factors in 40 CFR 260.43(a). Documentation must be maintained for three years after the recycling operation has ceased.
The Agency is not requiring any particular format for the documentation of legitimacy; however, we expect that the recycler would have written documentation describing the recycling process and how it meets each legitimacy factor. For example:
• Useful contribution legitimacy factor—the recycler would document how the hazardous secondary material(s) provides a useful contribution to the recycling process or to the product or intermediate of the recycling process. The regulatory text for this factor provides five ways in which a useful contribution can be achieved. The recycler would need to document how the hazardous secondary material(s) add value and/or are useful to the recycling process in one or more of these ways: (i) Contributing valuable ingredients to a product or intermediate; (ii) replacing a catalyst or carrier in the recycling process; (iii) providing a valuable constituent to be recovered; (iv) being regenerated; or (v) being used as an effective substitute for a commercial product. For example, if the hazardous secondary material is a source of a valuable constituent, such as a precious metal, the document would explain the specific precious metal(s) recovered and their value to the process.
• Valuable product or intermediate legitimacy factor—the recycler would explain how the product or intermediate made from hazardous secondary material is valuable, either in a monetary sense or through its intrinsic value. If the product made from hazardous secondary material is sold, the
• Managed as a valuable commodity legitimacy factor—the recycler would include a description of how the hazardous secondary material is managed and explain how this management is similar or provides equivalent protection to the management of an analogous raw material. That is, the documentation would describe how the hazardous secondary material is stored and handled prior to being inserted into the recycling process. Where there is no analogous raw material, the recycler would explain how the management of the hazardous secondary material ensures that the material is contained as discussed in 40 CFR 260.10.
Comparison of comparability of the product of recycling to a legitimate product factor—the recycler would include any data or information that shows that (1) the levels of hazardous constituents in the product are comparable to or lower than those found in analogous products, or are comparable to levels that meet widely-recognized commodity standards (in the case where the commodity standards include levels that specifically address those hazardous constituents), or (2) if there is no analogous product, that the product meets widely recognized commodity standards, or that hazardous secondary materials being recycled are returned to the original process or processes from which they were generated to be reused. If the product of the recycling process has levels of hazardous constituents that are not comparable to or unable to be compared to a legitimate product, but the recycling is still legitimate, the person performing the recycling must conduct the necessary analysis and prepare documentation stating why the recycling is, in fact, still legitimate. Persons can consider exposure from toxics in the product, the bioavailability of the toxics in the product, and other relevant considerations which show that the recycled product does not contain levels of hazardous constituents that pose a significant human health or environmental risk. The documentation must include a certification statement that the recycling is legitimate and must be maintained on-site. In addition, the person performing the recycling must notify his Regional Administrator (or the State Director, if the state is authorized) of this activity using EPA Form 8700-12.
Finally, under the new standards for emergency preparedness and response found in 40 CFR part 261 subpart M, generators that accumulate less than or equal to 6,000 kg of hazardous secondary material on site must comply with the emergency preparedness and response requirements equivalent to those in part 265 subpart C, which discuss maintaining appropriate emergency equipment on site, having access to alarm systems, maintaining needed aisle space, and making arrangements with local emergency authorities. A generator must also have a designated emergency coordinator who must respond to emergencies and must post certain information next to the telephone in the event of an emergency. For generators that accumulate more than 6,000 kg of hazardous secondary material on site, EPA is requiring that generators comply with requirements equivalent to those in part 265 subparts C and D, which includes all the requirements already discussed above for those accumulating less than or equal to 6,000 kg, as well as requiring a contingency plan and sharing the plan with local emergency responders.
Because today's rule replaces the transfer-based exclusion at 40 CFR 261.4(a)(24) and (25) with a verified recycler exclusion, facilities that are currently managing hazardous secondary materials under the transfer-based exclusion at 40 CFR 261.4(a)(24) must meet the terms of the verified recycler exclusion by the effective date of the rule, which is July 13, 2015 (or in an authorized state, by the effective date in that state). That is, facilities operating under the transfer-based exclusion who wish to continue operating under the verified recycler exclusion must send in a new notification form and meet the additional conditions in the verified recycler exclusion, including the emergency preparedness and response condition. In addition, any reclamation facility or intermediate facility that does not have a RCRA permit or is not operating under interim status must stop managing the hazardous secondary material under the transfer-based exclusion until they apply for and receive a variance from either EPA or the authorized state under the verified recycling exclusion. (As of February 2014, there were no facilities without a RCRA Subtitle C permit recycling under the transfer-based exclusion, so EPA does not expect this impact to occur).
Because the verified recycler exclusion is limited to recycling in the United States, facilities exporting hazardous secondary material under 40 CFR 261.4(a)(25) must cease operating under this exclusion by the effective date of the rule. The facility must notify his Regional Administrator (or State Director, if the state is authorized) using EPA Form 8700-12 that they have stopped managing hazardous secondary materials under the exclusion in accordance with 40 CFR 260.42(b). Facilities must submit this notification within 30 days of stopping management of hazardous secondary materials under this exclusion. Note that facilities that manage hazardous secondary materials under both the export exclusion at 40 CFR 261.4(a)(25) and the transfer-based exclusion at 40 CFR 261.4(a)(24) and/or and the generator-controlled exclusion at 40 CFR 261.4(a)(23) would not notify that they have stopped managing hazardous secondary materials, but would instead update their notification to make it clear they are no longer using the export exclusion at 40 CFR 261.4(a)(25).
In the 2008 DSW final rule, EPA deferred the question of whether spent petroleum catalysts should be eligible for the exclusions pending further consideration of the pyrophoric properties of the spent petroleum catalysts (73 FR 64714). EPA noted that the Agency was planning to propose—in a separate rulemaking from the 2008 DSW final rule—an amendment to its hazardous waste regulations to conditionally exclude from the definition of solid waste spent hydrotreating and hydrorefining catalysts generated in the petroleum refining industry when these hazardous secondary materials are reclaimed. Spent hydrotreating and hydrorefining catalysts generated in the petroleum refining industry are routinely recycled by regenerating the catalyst so that it may be used again as a catalyst. When regeneration is no longer possible, these spent catalysts are either treated and disposed of as listed hazardous wastes or sent to RCRA-permitted reclamation facilities, where metals, such as vanadium, molybdenum, cobalt, and nickel are reclaimed from the spent catalysts. EPA originally added spent
It was largely because of these pyrophoric properties that the spent petroleum catalysts exhibit that EPA deferred the question of whether spent petroleum catalysts should be included in the 2008 DSW final rule exclusions. While spent petroleum catalysts can be a valuable source of recoverable metals, the risk of these hazardous secondary materials spontaneously igniting when in contact with air is not a property that most metal recyclers would be expected to address, and thus, present additional risks that are not presented by other types of metal-bearing hazardous secondary materials and therefore may be most appropriately managed as hazardous waste when recycled.
Under today's final rule, EPA has added a regulatory definition of the “contained” standard as it applied to the generator controlled exclusion (40 CFR 261.4(a)(23)) and to the verified recycler exclusion (40 CFR 261.4(a)(24)). This new definition includes a requirement to address the risk of fires and explosions. This provision addresses the pyrophoric properties of the spent petroleum catalysts (as well as other types of ignitibility or reactivity) for the purposes of the generator-controlled exclusion and the verified recycler exclusion. Therefore, EPA has revised the generator-controlled exclusion to allow spent petroleum catalysts to be eligible for that exclusion, and is also allowing spent petroleum catalysts to be eligible for the verified recycler exclusion.
A primary purpose of today's final rule is to encourage the safe, beneficial reclamation of hazardous secondary materials. In 1999, Congress enacted the Superfund Recycling Equity Act (SREA), explicitly defining those hazardous substance recycling activities that may be exempted from liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (CERCLA section 127). Today's final rule does not change the universe of recycling activities that could be exempted from CERCLA liability pursuant to CERCLA section 127. Today's final rule only changes the definition of solid waste for purposes of the RCRA Subtitle C requirements. The final rule also does not limit or otherwise affect EPA's ability to pursue potentially responsible persons under section 107 of CERCLA for releases or threatened releases of hazardous substances.
EPA received hundreds of comments on the July 2011 DSW proposal, most of which were quite detailed and raised multiple issues. Below is an overview of some of the major comments on general aspects of the proposals and a summary of EPA's responses to those comments. For a complete discussion of all the comments and EPA's responses to those comments, please see
EPA received many comments that asserted that EPA has no authority to regulate legitimate recycling, because commenters believe that hazardous secondary materials sent for recycling are not discarded and therefore, are not solid wastes. The comments state that EPA has misread the intent of Congress, citing previous court cases, noting the “analysis of the statute reveals clear Congressional intent to extend EPA's authority only to materials that are truly discarded, disposed of, thrown away, or abandoned” (
Specifically, many of the comments cite the
Many commenters took issue with EPA's decision to withdraw the transfer-based exclusion. These comments criticize EPA's rationale that “subsequent activities are more likely to involve discard, given that the generator has relinquished control of the hazardous secondary material” (72 FR 14178). In particular, commenters cited Safe Food and Fertilizer, stating that the D.C. Circuit addressed an argument by the petitioners in the case that “material that is transferred to another firm or industry for subsequent recycling” is discarded and subject to RCRA regulation. 350 F.3d 1263, 1268 (D.C. Cir. 2003). The court said:
[W]e have never said that RCRA compels the conclusion that material destined for recycling in another industry is necessarily `discarded.' . . . Although ordinary language seems inconsistent with treating immediate reuse within an industry's ongoing industrial process as a `discard' . . . the converse is not true. As firms have ample reasons to avoid complete vertical integration . . . firm-to-firm transfers are hardly good indicia of a `discard' as the term is ordinarily understood. Id.
EPA disagrees with the comments that Congress did not intend to give EPA the authority to regulate hazardous waste recycling. As EPA noted in the July 2011 DSW proposal, the RCRA statute and the legislative history suggest that Congress expected EPA to regulate as solid and hazardous wastes certain materials that are destined for recycling (
EPA also disagrees with comments that EPA cannot consider the fact that the generator has relinquished control of the hazardous secondary material (along with other factors that indicate discard) in deciding to withdraw the transfer-based exclusion. EPA's authority to regulate such transfers is clear: As the Court noted in
EPA's record for today's rulemaking demonstrates that third-party recycling of hazardous secondary materials has been and continues to be part of the waste disposal problem. As noted in the July 2011 DSW proposal, EPA has already evaluated these hazardous
In addition, the market forces study in the docket for the 2008 DSW final rule supports the conclusion that the pattern of discard at off-site, third-party reclaimers is a result of inherent differences between commercial recycling and normal manufacturing. As opposed to manufacturing, where the cost of raw materials or intermediates (or inputs) is greater than zero and revenue is generated primarily from the sale of the output, hazardous secondary materials recycling can involve generating revenue primarily from the receipt of the hazardous secondary materials. Recyclers of hazardous secondary materials in this situation may thus respond differently from traditional manufacturers to economic forces and incentives, accumulating more inputs (hazardous secondary materials) than can be processed (reclaimed). In addition, commercial third-party recyclers have less flexibility than in-house recyclers in changing how they manage their hazardous secondary materials (
Many commenters raised issues with EPA's use of the environmental problems study as part of the record for today's rule.
Other commenters argued that the large majority of damage cases identified by EPA were caused by either a lack of knowledge of RCRA, blatant disregard for the law, or unavoidable accidents. These commenters noted that many of the damage cases involved civil or criminal violations, indicating that the problem was non-compliance with the regulations, not from a lack of regulations.
Another commenter disagreed with EPA's negative portrayal of the waste management industry and argued that EPA should have conducted more research to obtain an understanding of the necessary and positive role of the hazardous waste management industry.
The Agency maintains that the scope of the environmental problems study is appropriate for the purpose of the DSW rulemaking effort. Specifically, we continue to find that 1982 is an appropriate cut-off year for the damage case study as it best reflects the point where companies became aware of their responsibilities and liabilities for safe management of their hazardous secondary materials intended for recycling.
As to the issue that there are facilities in the report that began operations prior to 1982, we agree that the facilities themselves may have begun operating earlier than the timeframe. However, the methodology for the analysis only includes facilities where the recycling operations occurred after 1982, and the environmental damages associated with those operations occurred after 1982. As a result, more than 600 damage cases were removed from consideration, leaving only those cases that EPA was confident have a clear link between post-1982 recycling practices and environmental damage.
Of the damage cases that met our criteria, we agree that for certain types of damage, such as groundwater or soil contamination, determining when exactly the damage occurred and which property owner caused the damage is difficult. However, in general, the damage cases include multiple types of damage and certain damage, such as abandonment of materials or observed violations of proper storage and containment, can be easily attributed to current facility owners and to post-1982 activities. For example, Alco Pacific, a lead recycling facility may have started operations in 1954, but it was 1990 when the company abandoned 98 drums and left over 1,300 cubic yards of lead-contaminated rubber debris and sand with no containment to prevent dispersal from wind or rainwater. Additionally, it was 1989 when Myers Drum, a drum reconditioning facility, was found to be storing 95% of their 20,000 drums on their side and that spillage, sump overflows, and structural failures were observed. In 1986, Continental Steel, which manufactured wire and rod products from scrap metal, abandoned their facility leaving 220 drums of product material and 50 containers of lead-cadmium batteries on-site. These damages occurred well after RCRA and CERCLA became effective.
Regarding the lack of information in some of its damage cases, as EPA stated in its 2007 environmental problem
EPA also disagrees with the commenter who argued that the environmental problems study only demonstrates non-compliance of existing regulations and therefore does not justify the promulgation of tighter requirements under today's final rule. On the contrary, the frequency of the damage cases, including violations of regulations demonstrates the need for greater, not less, oversight.
Furthermore, as part of a separate analysis, EPA has considered whether recycling of hazardous secondary materials under the 2008 DSW final rule could result in increased risk to human health and the environment and determined it is a complex issue because of the interactions between how the regulations are written and how they are implemented. Under the 2008 DSW final rule, EPA presumed that the conditions of the rule would prevent any increase in risk. However, what the 2008 DSW analysis failed to take into account was whether the conditions of the rule would operate as effectively in the real world as the more detailed requirements of the RCRA hazardous waste regulations.
A more detailed comparative analysis of the regulatory requirements under the 2008 DSW final rule with the hazardous waste regulations reveals potentially significant gaps in environmental protection under the 2008 DSW final rule. Examples of these gaps include the absence of measures to ensure compliance, incentives to accumulate larger volumes of hazardous secondary materials, the potential for increased releases, such as during storage and transportation of the hazardous secondary materials, the lack of prescriptive standards for storage and containment, potential issues associated with the interstate transport of hazardous secondary materials for recycling, and reduction in access to information and the opportunity for public participation. RCRA is a preventative statute and by design seeks to prevent damage before it occurs; relying solely on enforcement without addressing the root causes of the damage could needlessly increase the frequency, severity, and cost of damage cases. Therefore, EPA has chosen to finalize the changes to the 2008 DSW final rule being promulgated today.
Finally, EPA disagrees with comments stating we have not considered the positive role of the hazardous waste management industry. In development of the DSW rulemakings, the Agency specifically conducted a study of successful recycling that examined how responsible generators and recyclers of hazardous secondary materials ensures that recycling is done in an environmentally safe manner.
Although at least one commenter supported the analysis titled “Correlation of Recycling Damage Cases with Regulatory Exclusions, Exemptions, or Alternative Standards,”
Many commenters pointed out that EPA only identified seven exclusions that were “likely” correlated to some damage cases, yet EPA in its 2011 DSW proposal considered adding requirements to 32 exclusions. These commenters argued that this record was insufficient for justifying additional conditions.
Some commenters also took issue with how EPA assigned regulatory exclusions to certain damage cases. For example, a few commenters said that none of the five damage cases correlated to precious metals involved recycling of in-process secondary materials as part of precious metals mining and primary mineral processing, but rather involved off-site entities that were attempting to recover precious metals from photographic film, circuit boards, and other secondary materials generated by industry.
One commenter said that EPA identifies 35 cases that allegedly involve spent batteries; however, two of these involve non-lead batteries and thus are irrelevant and a third involves printed circuit boards. This commenter goes on to say that, of the remaining 32 lead-acid battery-related facilities for which EPA has identified known dates of operation, none began business operations after the 1982 and 1985 adoption of the RCRA regulations that control lead-acid battery collection and recycling. This commenter believed that the primary contamination at these sites almost certainly pre-dated RCRA and thus EPA cannot use these cases to support changes to 40 CFR 266.80. Another commenter said that none of the environmental damage associated with 52 damage cases could be shown to be the result of companies “likely” operating under the 261.4(a)(13) scrap metal exclusion and/or the 261.6(a)(3)(ii) scrap metal recycling exemption.
A few commenters argued that EPA has not compared the number of damage cases to the total number of recyclers and thus we do not know what percentage of all facilities the damage cases represent. Another commenter noted that the 132 damage cases that EPA correlated to the pre-2008 recycling exclusions makes up only 2.5% of the 5,321 facilities that EPA estimates are using the exclusions (a total number which this commenter believes EPA underestimates).
The goal of EPA's analysis to correlate damage cases with existing exclusions was to assess whether certain hazardous secondary material recycling exclusions, exemptions, or alternate standards are adequately protecting human health and the environment. Because the majority of exclusions, exemptions, and alternative standards do not include notification requirements, EPA does not have precise data regarding which and how many facilities are recycling hazardous secondary materials under reduced regulation. This lack of data hinders EPA's ability to collect information regarding what regulations a specific facility was operating under when damage occurred. Because this information is limited, the Agency had developed a methodology that correlates the type of hazardous secondary materials identified in the damage cases to regulations that likely governed the management of the hazardous secondary material. EPA used this methodology to identify patterns related to the types of hazardous secondary material involved in damage cases and whether those materials were likely to be managed under an exclusion, exemption, or alternate standard.
EPA understands commenters' concerns regarding the limitations of this analysis, including that EPA could only correlate with confidence 7 of the 32 recycling exclusions to damage cases in its environmental problems study. This result is more a lack of precision in the data and less that some recycling exclusions have no damage cases. For example, because notification is not required for these exclusions, we can only conservatively identify damage case correlations where the type of hazardous secondary material very clearly matches to an exclusion (
Regarding other comments on the analysis, including comments on specific damage case-to-exclusion pairings and on comparing the number of damage cases to the total number of affected entities, EPA agrees with commenters that more information is needed prior to taking final action on specific conditions of the pre-2008 recycling provisions. EPA finds it may need to consider each exclusion in terms of evaluating specific regulatory gaps and whether additional conditions are needed to ensure protection of human health and the environment. Therefore, we are not finalizing specific conditions for the pre-2008 recycling provisions in today's rule and are instead deferring action until EPA can more adequately address commenters' concerns, including comments on the record. Before the Agency would take any such action, the Agency would provide the regulated community, as well as other stakeholders the opportunity for notice and comment.
In its July 2011 DSW proposal, EPA proposed or solicited comment on certain changes to the 2008 DSW exclusion from the definition of solid waste for hazardous secondary materials legitimately reclaimed under the control of the generator. The first change was adding a regulatory definition of “contained” for units storing hazardous secondary materials. The definition included factors which, if met, would demonstrate that the unit was contained. Under the proposal, a storage unit is contained if it is in good condition, with no leaks or other continuing or intermittent unpermitted releases of the hazardous secondary material to the environment, and is designed, as appropriate for the hazardous secondary materials to prevent releases of hazardous secondary material to the environment. Such releases may include, but are not limited to, releases through surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures. The unit must also be properly labeled or otherwise have a system (such as a log) to immediately identify the hazardous secondary materials in the unit. Finally, the unit must not hold incompatible materials and must address any potential risks of fires or explosions. The definition also stated that hazardous secondary materials stored in units that meet the applicable requirements of 40 CFR parts 264 or 265 are considered to be contained.
The second change concerned new recordkeeping requirements for speculative accumulation, “same-company” recycling, and recycling under certain tolling arrangements. With respect to speculative accumulation, EPA proposed to require generators and reclaimers operating under the generator-controlled exclusion to post accumulation start dates to allow inspectors and other regulatory authorities to quickly ascertain how long hazardous secondary materials had been in storage. If placing a label on the storage unit is not practicable, the first date that the excluded hazardous secondary material began to be accumulated must be entered in an inventory log. We also solicited comment on whether to add the proposed recordkeeping requirement to the general speculative accumulation provision at 40 CFR 261.1(c)(8), thereby extending the requirement to all recyclers subject to that provision. We also proposed a recordkeeping requirement for tolling contractors and toll manufacturers operating under the tolling exclusion, which would require maintaining records of hazardous secondary materials sent or received pursuant to the tolling contract. We also solicited comment on whether to add a similar recordkeeping requirement to generators and reclaimers operating under the “same-company” exclusion.
The third change concerned making notification a condition rather than a requirement of the exclusions. In addition, we proposed two structural changes. These were (1) placing the requirements for land-based units and non-land-based units in one regulatory provision (40 CFR 261.4(a)(23)), since the requirements for both types of units are the same; and (2) placing most definitions applicable to the generator-controlled exclusion in 40 CFR 261.4(a)(23) (together with the requirements) instead of in 40 CFR 260.10.
Many commenters supported all or some of these changes, either as proposed or with suggested modifications. Their comments are discussed below in reference to the specific changes that the Agency proposed. Some commenters, however, stated that EPA did not have the authority to impose conditions (particularly the “contained” standard) on hazardous secondary materials recycled under the control of the generator. These commenters generally believed that materials recycled under these exclusions are not discarded, and that EPA provided no new evidence that would justify the proposed changes. According to these commenters, the proposed changes are tantamount to treating the materials as wastes instead of valuable commodities, and are inconsistent with the ABR decision. One commenter noted that generators already have incentives to prevent releases of hazardous secondary materials because of potential liability, corporate values of stewardship and environmental responsibility, and public relations.
The Agency has determined that the conditions proposed in our July 2011 DSW proposal are needed in order to ensure that the exclusion operates as intended and does not result in discarded hazardous secondary material posing significant risk to human health and the environment. We agree that generators and reclaimers operating under the generator-controlled exclusion have incentives to ensure that the hazardous secondary materials are safely managed. Nevertheless, the conditions we proposed are needed to ensure that the generator-controlled exclusion will correctly function to exclude only hazardous secondary material that is not discarded.
Specifically, the proposed “contained” requirement is a key provision for determining whether a hazardous secondary material is being managed as a valuable commodity. Such materials that are not contained and are instead released to the environment are not destined for recycling and are clearly discarded. The proposed definition specifies factors which, if met, demonstrate that the hazardous secondary materials in a unit are handled as valuable raw materials, intermediates, or products and thus are not discarded. We note that the criteria in proposed 40 CFR 261.4(a)(23)(i) are all performance measures, as opposed to specific technical standards, suggested by commenters in response to the June 2009 public meeting on the 2008 DSW final rule. These criteria also exemplify practices discussed in the preamble to the 2008 DSW final rule regarding containment of hazardous secondary materials, such as ways to prevent releases and operation and maintenance of the storage unit in the same manner as a production unit.
The proposed recordkeeping requirement for speculative accumulation (which would require posting of accumulation start dates on the storage unit or in an inventory log) would allow inspectors and other regulatory authorities to quickly ascertain how long a facility has been storing an excluded hazardous secondary material, and whether the storage time exceeds existing limits under 40 CFR 261.1(c)(8). If such limits have been exceeded, the material would be discarded. The proposed recordkeeping requirement for the tolling exclusion (which would require records of shipments sent and received under tolling contracts) would also aid regulatory agencies in determining if tolling contractors and manufacturers are in compliance with the requirements for the exclusion and whether the hazardous secondary materials in question have been properly accounted for. A similar requirement to keep records of shipments sent and received under “same-company” recycling (for which the Agency solicited comment in the July 2011 DSW proposal) would serve the same purpose. Finally, submitting a notification to EPA is the only formal indication of a facility's prospective intent to reclaim a hazardous secondary material under this exclusion. For these reasons, EPA has determined that its proposed changes to the generator-controlled exclusion are necessary to demonstrate that hazardous secondary materials have not been discarded. The changes are therefore within the Agency's RCRA authority.
One commenter noted that the proposed rule would allow lead-acid battery recyclers to operate under the generator-controlled exclusion instead of the requirements in 40 CFR 266.80(b). This commenter believed that the latter requirements, specifically tailored to battery recyclers, are more appropriate for these facilities.
In response to this comment, it was not the Agency's intent that spent lead-acid batteries be managed under the generator-controlled exclusion. The 2008 DSW final rule contained a provision (40 CFR 261.2(c)(4)(iv)) stating that spent lead-acid batteries were not eligible for the generator-controlled exclusion (nor were materials subject to material-specific standards under 261.4(a) or the listed hazardous wastes K171 or K172). The omission of this provision from the July 2011 DSW proposal as related to spent lead-acid batteries and material-specific standards was inadvertent, and EPA is therefore retaining it in this final rule (see 40 CFR 261.4(a)(23)(ii)(E)). However, for reasons discussed in section XI of this preamble, listed hazardous wastes K171 and K172 should be eligible for the generator-controlled exclusion; therefore, we are not including those wastes in this provision.
Another commenter noted that the text of proposed 40 CFR 261.4(a)(23)(i)(B) could initially be read to suggest that hazardous secondary materials may be transferred to a location outside the United States or its territories as long as the foreign receiving facility is under the control of the generator. It is not until one reads proposed 40 CFR 261.4(a)(23)(ii)(A) that the reader learns that the receiving facility must be in the United States or its territories. This commenter suggested revising the introductory text of 40 CFR 261.4(a)(23) to refer to recycling within the United States or its territories and deleting the subsequent condition.
EPA agrees with this commenter who suggested modifying the introductory text of the generator-controlled exclusion to include a reference to the requirement that hazardous secondary materials legitimately reclaimed under the exclusions must be recycled within the United States or its territories. We have therefore revised 40 CFR 261.4(a)(23) to read as follows: “Hazardous secondary material generated and legitimately reclaimed within the United States or its territories and under the control of the generator, provided that the material complies with paragraphs (a)(23)(i) and (ii) of this section.” We have also deleted the condition in proposed CFR 261.4(a)(23)(ii)(A) and renumbered the following subparagraphs.
In the 2008 DSW final rule, EPA promulgated an exclusion from the definition of solid waste for hazardous secondary materials that are generated and legitimately reclaimed at the generating facility. In the July 2011 DSW proposal, the Agency did not propose any changes to the scope of this exclusion. Commenters on the proposal generally supported excluding on-site recycling from the definition of solid waste, stating that such recycling did not involve discard and was not likely to pose environmental risks. However, one commenter argued that the exclusion for hazardous secondary materials recycled under the control of the generator was too broad and should be narrowed to materials recycled under a “continuous industrial process,”
EPA has determined that if hazardous secondary materials are generated and legitimately reclaimed at the generating facility (as well as a facility within the same company) under the conditions specified in today's rule, these materials have not been discarded. We do not agree with the comment that the exclusion should be limited to recycling of hazardous secondary materials under a “continuous industrial process,”
In the 2008 DSW final rule, EPA promulgated an exclusion from the definition of solid waste for hazardous secondary materials that were generated and legitimately reclaimed off-site by the same “person” as defined in 40 CFR 260.10, if the generator performed one of two certifications. Under the first certification, the generating facility certified that it controlled the reclaiming facility; under the second certification, the generating facility certified that it was under common control with the reclaiming facility. In the July 2011 DSW proposal, the Agency solicited comment on whether to add a recordkeeping requirement to this exclusion that would require both the generating and reclaiming facilities to retain records for no less than three years of all hazardous secondary material shipped under the exclusion. The records would have to contain information which could be satisfied by routine business records (
Some commenters supported this exclusion. They believed that generators using the exclusion have strong incentives to ensure that hazardous secondary materials are not discarded by maintaining control over, and potential liability for, the reclamation process. However, other commenters believed that any off-site transport of hazardous secondary materials involved environmental risks that should be addressed by (at the least) requiring a hazardous waste manifest or by subjecting “same-company” off-site recycling to the proposed alternative Subtitle C standards for hazardous secondary materials that are transferred for the purpose of reclamation. Some commenters said that when hazardous secondary materials are transported off-site, the generator has little de facto control over such materials.
One commenter noted that proposed 40 CFR 261.4(a)(23)(i)(B) omitted the alternative certification for same-company recycling that occurs when the generating facility and the reclaiming facility are under common control. This certification was included in the 2008 DSW final rule.
The Agency continues to find that same-company recycling does not involve discard since it occurs under the control of the generator. Such control means that both the generating facility and the reclamation facility are familiar with the hazardous secondary materials and the company would be ultimately liable for any mismanagement of the hazardous secondary materials. Under these circumstances, the incentive to avoid such mismanagement would be sufficiently strong to greatly reduce the risks of transport, thus rendering unnecessary the use of the hazardous waste manifest or requiring the hazardous secondary materials to be reclaimed under the verified recycling exclusion. However, as noted above, the Agency solicited comment in its July 2011 DSW proposal on a recordkeeping requirement that would require both the generating and reclaiming facilities to retain records for no less than three years of all hazardous secondary material shipped under the exclusion. The records would have to contain the name of the transporter, the date of the shipment, and the type and quantity of the hazardous secondary material shipped or received under the exclusion. This requirement could be satisfied by routine business records (
The Agency also agrees with the commenter who suggested that the alternative certification for facilities under common control that was included in the 2008 DSW final rule should be added to the exclusion. The omission of this provision from the July 2011 DSW proposal was inadvertent and the Agency will therefore simply retain the alternative certification in the regulations (see 40 CFR 261.4(a)(23)(i)(B)).
In its July 2011 DSW proposal, EPA proposed to add a recordkeeping requirement to the exclusion for hazardous secondary materials legitimately reclaimed under certain contractual tolling arrangements. Specifically, we proposed to require the tolling contractor to maintain at its facility for no less than three years records of all hazardous secondary materials received pursuant to the
Those commenters who addressed the proposed recordkeeping requirement generally supported it, but many commenters believed that the tolling exclusion should be eliminated and that tolling should be regulated under EPA's proposed alternative Subtitle C regulatory standards for hazardous recyclable materials. Another commenter argued that if the Agency retained the tolling exclusion, we should require use of the hazardous waste manifest, financial assurance, and other Subtitle C requirements. Some of these commenters emphasized the absence of utilization of the tolling exclusion and said that federal regulations should address activities of national importance. One commenter noted that the exclusion could result in an inefficient use of enforcement resources as regulators would have to be trained and familiar with a regulatory concept with which they are not familiar. Another commenter argued that the assumption of liability for mismanagement by the tolling contractor was unlikely and could result in litigation. Other commenters emphasized environmental concerns with the tolling exclusion. These commenters doubted that recycling under tolling arrangements was actually under the “control” of the tolling contractor, given that a different corporate entity at a different physical location operates the production process. Some commenters raised similar concerns with the risks involved in off-site transportation of hazardous secondary materials that were raised in connection with “same-company” recycling.
Some commenters, on the other hand, urged EPA to retain the exclusion for tolling contracts. These commenters argued that hazardous secondary materials legitimately reclaimed under the tolling exclusion are managed as valuable products and not discarded. They also said that utilization of the exclusion could increase with time, particularly if more states picked up EPA's revisions to the definition of solid waste and if regulatory uncertainty were avoided. One commenter noted that the economic incentives under tolling contracts are such that there is no incentive for discard, since the tolling manufacturer is paid when it returns the hazardous secondary material to the contractor. Some commenters indicated that eliminating the tolling exclusion, by requiring tolling contractors to obtain RCRA storage permits, would operate as a severe disincentive to reclamation under tolling arrangements.
EPA generally agrees with the commenters who supported retention of the tolling exclusion. We find that hazardous secondary materials are not discarded if they are legitimately reclaimed under the conditions specified in our tolling exclusion, particularly since participants in tolling contracts have strong incentives to handle such materials as valuable commodities rather than mismanage them. We also have determined that the conditions of the generator-controlled tolling exclusion, including the recordkeeping requirement for hazardous secondary materials sent and received under tolling contracts, are sufficient to prevent discard, thus rendering unnecessary the use of the hazardous waste manifest or other RCRA permit requirements for reclaimers. We have also concluded that retention or elimination of this exclusion should not depend on how frequently the exclusion is currently utilized, because determining frequency of utilization in the future is necessarily speculative. Additional states could pick up EPA's revisions to the definition of solid waste, and tolling arrangements could become more common due to increases in certain kinds of manufacturing or other technological developments. Regulatory authorities would then become more familiar with implementation of the provision. We are also concerned that eliminating the tolling exclusion could discourage the reclamation of valuable hazardous secondary materials that might otherwise be destroyed by incineration. This result would be inconsistent with our goal of encouraging the sustainable management of hazardous secondary materials. For these reasons, we are retaining the tolling exclusion in this final rule and finalizing the proposed recordkeeping requirement for this exclusion (see 40 CFR 261.4(a)(23)(i)(C)).
In its July 2011 DSW proposal, EPA proposed a regulatory definition of the contained standard. Under this proposed definition, a unit storing hazardous secondary materials is “contained” if it is in good condition, with no leaks or other continuing or intermittent unpermitted releases of the hazardous secondary materials to the environment, and is designed, as appropriate for the hazardous secondary materials, to prevent releases of hazardous secondary materials to the environment. Such releases may include, but are not limited to, releases through surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures. The unit must also be properly labeled or otherwise have a system (such as a log) to immediately identify the hazardous secondary materials in the unit. Finally, the unit must not hold incompatible materials and must address any potential risks of fires or explosions. Hazardous secondary materials stored in units that meet the applicable requirements of 40 CFR parts 264 or 265 are considered to be contained.
In addition, the Agency also proposed placing the requirements for land-based units and non-land-based units in one regulatory provision (40 CFR 261.4(a)(23)), since the requirements for both types of units are the same. To clarify the regulatory status of units from which releases have occurred, the Agency also proposed a provision stating that: (1) A hazardous secondary material released to the environment is discarded and a solid waste unless it is immediately recovered for the purpose of reclamation and (2) hazardous secondary material managed in a unit with leaks or other continuing or intermittent releases of the hazardous
Many commenters (particularly states) supported the codification of the contained standard. Under the 2008 DSW final rule, these commenters argued the only definitive way to determine whether a material was contained was an evaluation after a release had already occurred. They believed that codifying a definition of “contained” would make it easier for regulatory authorities and the regulated community to decide whether a unit meets the standard. Some commenters, however, believed that a regulatory definition of “contained” was not needed because the concept of what is contained was self-evident: To the extent clarification is needed, it could be provided in guidance.
EPA agrees with those commenters who argued that codification of the contained standard is desirable. Based on comments and inquiries received from regulatory authorities and the regulated community after promulgation of the 2008 DSW final rule, we have determined that merely requiring that a unit be “contained” (without providing a regulatory definition) does not give regulatory certainty about how to comply with the standard. The number of comments and inquiries to this effect would seem to refute the idea that the concept of contained is self-evident. It was never the Agency's intent that violation of the standard could be addressed only after a significant release and subsequent environmental damage had occurred. More detailed regulatory criteria, such as those proposed in our July 2011 DSW proposal, will help all affected parties determine whether a unit adequately controls the movement of hazardous secondary materials. Such determinations will be of great benefit to regulatory authorities and to facilities operating under the generator-controlled exclusion. We are therefore retaining the codification of contained in this final rule.
Some commenters believed that storage in land-based units should be prohibited completely under the generator-controlled exclusion. Other commenters supported allowing land-based units, but only if the Agency required periodic inspections, groundwater monitoring, or other measures. Other commenters emphasized that the Agency had no jurisdiction over land-based production units, and requested that EPA clarify in the preamble that we do not regulate such units.
EPA does not agree that land-based units should be categorically prohibited under the generator-controlled exclusion. We have determined that hazardous secondary materials, if they are stored in land-based units that meet the conditions specified in today's rule, have not been discarded. That is, if they are legitimately reclaimed as specified in today's rule, if they are contained and not speculatively accumulated, and if they have submitted the required notification, they are being managed as valuable commodities, rather than wastes. Indeed, the ABR decision expressed criticism of EPA for prohibiting any land placement, even “for a few minutes”. 208 F.3rd at 1051. EPA interprets the court's discussion as a warning to the Agency to examine all factors, not just one (
Some commenters believed that the proposed standard was still too imprecise, or not sufficiently protective. These commenters generally suggested that EPA require storage units to meet the standards of 40 CFR 262.34(a)(1), or parts 264 or 265 for tanks, containers, or containment buildings. Some of these commenters argued that since hazardous secondary materials sent for reclamation were identical in composition to analogous materials sent for disposal, the storage standards should be the same for both disposal and recycling. Another commenter noted that EPA was considering tank standards for solvents under the proposed remanufacturing exclusion, and said that standards at least as stringent should be considered for other hazardous secondary materials sent for reclamation. Commenters also emphasized the ease of enforceability and implementation of standards with which the regulatory authorities and the regulated community are already familiar.
In response to those commenters who suggested Subtitle C requirements for non-land-based units (such as tanks, containers and containment buildings) that store hazardous secondary materials under the generator-controlled exclusion, the Agency also finds that imposing these requirements is unnecessary for such materials meeting the conditions of the exclusion promulgated today. EPA is aware that implementation of program requirements would be simpler if units storing hazardous waste and those storing hazardous secondary materials were subject to the same requirements, and we are also aware that the chemical composition of hazardous secondary materials sent for disposal can be similar to that of hazardous secondary materials sent for legitimate recycling. Nevertheless, hazardous secondary materials that are legitimately reclaimed under the control of the generator have not been discarded, and such materials have value that provides generators with strong incentives to maintain safe management and handling. Imposing the Subtitle C requirements on these hazardous secondary materials could discourage legitimate reclamation, encourage disposal, and would be inconsistent with EPA's goal of fostering sustainable materials management. In response to the commenter who suggested that such requirements should be imposed because the Agency was considering them for the remanufacturing exclusion, we note that the generator-controlled exclusion covers a wide variety of hazardous secondary materials, rather than the solvents covered by the remanufacturing exclusion, for which tanks or container standards are appropriate for reasons described in section VII of this preamble.
Some commenters believed that the proposed regulatory definition of
In the preamble to the 2011 DSW proposal, EPA stated that certain units may be subject to occasional precipitation runoff that consists essentially of water, with trace amounts of hazardous constituents. The Agency noted that as long as such runoff does not contain hazardous secondary materials (
Another commenter, however, argued that the existence of stormwater runoff (regulated under the Clean Water Act) or fugitive air emissions and dust (regulated under the Clean Air Act) does not mean that materials are not being managed as a valuable commodity and so cannot be used to justify a determination that a hazardous secondary material is subject to the fully applicable Subtitle C RCRA requirements. This interpretation would amount to an illegal expansion of RCRA authority, according to the commenter. The commenter also noted that EPA's distinction between runoff containing hazardous constituents and runoff containing the waste itself was irrelevant and that EPA should return to the “significant release” standard of the 2008 DSW final rule. Another commenter suggested that the Agency specify what concentration of hazardous secondary material would need to be detected to constitute a release.
EPA does not agree with those commenters who argued that the proposed definition of “contained” imposed a strict, categorical, and impracticable “no leaks” standard, either for land-based units or non-land-based units. We note that the language of the proposed definition reads that the unit must be in good condition, “with no leaks or
Nor does EPA agree with those commenters who appeared to believe that any release should lead to loss of the generator-controlled exclusion and full regulation under RCRA Subtitle C. A single release that is quickly cleaned up would not generally affect the regulatory status of the hazardous secondary materials still contained in the unit. For example, sometimes a hazardous secondary material may escape from primary containment and may be captured by secondary containment or some other mechanism that would prevent the hazardous secondary materials from being released to the environment or would allow immediate recovery of the materials. In that case, the unit would not be subject to the RCRA hazardous waste regulations and the hazardous secondary materials in the unit would still be excluded from the definition of solid waste, even though any such materials that had been released and not immediately recovered would be considered discarded.
With respect to precipitation runoff, the Agency does not agree with those commenters who said that even trace amounts of hazardous substances (such as through stormwater runoff) should be considered illegal releases from storage units. Some units are inevitably subject to occasional precipitation runoff that consists essentially of water, with trace amounts of hazardous constituents. As long as the hazardous secondary material itself is not swept away by the runoff, this transport via precipitation runoff would not be a release of such a material and the unit could be considered contained. A contrary interpretation could place all such units under Subtitle C regulation and eliminate their eligibility for the generator-controlled exclusion, which is not the Agency's intent. EPA has determined that hazardous secondary materials placed in such units that are destined for legitimate recycling have not been discarded if they meet the conditions of these exclusions. EPA also agrees with the commenter who said that the existence of stormwater runoff (regulated under the Clean Water Act) and fugitive air emissions and dust (regulated under the Clean Air Act) does not automatically mean that materials are not being managed as a valuable commodity.
EPA also does not agree with the commenter who suggested that the Agency should return to the “significance” criterion for determining whether a release has occurred (in part to distinguish between runoff containing hazardous constituents and runoff containing the hazardous secondary material itself). The Agency does not agree that using this criterion, without further definition, would clarify this distinction. We also do not find that it is practicable to establish a concentration of hazardous secondary materials that could be used to determine whether a release has occurred, since such appropriate concentrations would vary for different materials and a single concentration limit would not be flexible enough to allow an accurate determination of “contained” for the wide variety of hazardous secondary materials.
A few commenters suggested that EPA establish a petition process or a site-specific variance for facilities to demonstrate the appropriateness of site-specific alternative storage standards for their units (including land-based units). Some commenters believed that our reference to 40 CFR parts 264 and 265 meant that units were required to comply with those provisions. One of these commenters suggested that we specify that units meeting the requirements of 40 CFR parts 264 or 265 are “presumptively” contained. Other commenters said that the proposed definition of “contained” seemed more appropriate for hazardous secondary materials in flowable form, but not for solid materials such as scrap metal, for which a container is not necessarily needed. One of these commenters suggested that we clarify that a “unit” may include a designated location.
A few commenters suggested editorial revisions to the definition of contained. One commenter said that EPA should
In response to those commenters who suggested a mechanism (such as a petition process or variance) to provide alternative or site-specific containment requirements for certain facilities, such a mechanism is unnecessary because the definition of “contained' in today's rule establishes minimum requirements that all units storing hazardous secondary materials should be able to meet. We have designed the “contained” criteria to be flexible enough to cover a wide range of units.
In response to comments that suggested the reference to 40 CFR parts 264 and 265 means that units were required to comply with those provisions, EPA did not intend to imply that meeting such standards was required. In response to the commenter who suggested stating that units meeting the applicable requirements of 40 CFR parts 264 or 265 are “presumptively” contained, EPA agrees that this language better reflects EPA's intent than the proposed language and is changing the proposed definition of “contained” accordingly. However, we do not agree with the commenter who suggested adding that solid hazardous secondary materials may be stored in “designated locations.” We have determined that our definition of “contained” (which includes land-based units) is sufficiently flexible to cover solid material, such as scrap metal or furnace bricks which are not stored in tanks, containers, or containment buildings. We have also made clear in the preamble the circumstances under which such materials could be considered “contained.”
For the reasons stated above, EPA is finalizing the definition of “contained” as proposed, but replacing the statement that “hazardous secondary materials meeting the applicable requirements of 40 CFR parts 264 or 265 are considered to be contained” with “hazardous secondary materials that meet the applicable requirements of 40 CFR parts 264 or 265 are presumptively contained” (see 40 CFR 260.10).
EPA agrees with commenters who suggested editorial changes to the definition of contained and has incorporated these changes into today's rule.
In the July 2011 proposal, EPA proposed to make the notification requirement in 40 CFR 260.42 a condition, rather than a requirement, of the generator-controlled exclusion in 40 CFR 261.4(a)(23). At issue are the consequences an entity would face for failing to notify. Thus, notification as a requirement of the exclusion means that failure to notify would constitute a violation of the notification regulations. On the other hand, notification as a condition of the exclusion means failure to notify could potentially result in the loss of the exclusion for the hazardous secondary materials (
Commenters were split on this issue. Many commenters supported EPA's proposed change to make notification a condition of the exclusion. These commenters argued that notification as a condition would decrease the incentives for a facility to evade enforcement by not notifying. A few commenters agreed that states would use enforcement discretion to distinguish between facilities that failed to notify due to an inadvertent oversight or from a blatant disregard for the requirement. One commenter urged EPA to clarify that a facility submitting a notification does not need to wait for any response from the implementing agency prior to using exclusion.
On the other hand, many commenters did not support this proposed change and argued that notification should remain a requirement of the exclusion, as it is currently. These commenters argued that notification, or the absence thereof, is not indicative of discard and that the information of who is using the exclusion should not impact the determination of whether a material is discarded. Some commenters argued that enforcement discretion is not exercised in a consistent and reasonable manner and that the proposed change would subject generators who are legitimately recycling their hazardous secondary materials to undue severe enforcement consequences. Other commenters argued that there are innocent reasons why a facility would not notify, for example, because of confusion surrounding the point when a virgin material becomes a secondary material. Still other commenters believed that it is highly unrealistic to believe that any facility operating under the provisions would intentionally fail to notify EPA in an attempt to evade enforcement. Other commenters argued that there is already sufficient incentive to notify because facilities' would already incur significant penalties under RCRA 3007 for failing to notify. Additionally, one commenter noted that making notification a condition of the exclusion differs from how other paperwork violations are treated.
EPA agrees with commenters who supported making notification a condition of the exclusion. The notification provision is the only formal indication of a facility's intent to reclaim a hazardous secondary material under the conditional exclusion. For example, if during an inspection of a large quantity generator of hazardous waste, EPA were to discover a hazardous secondary material that had been stored on-site for more than 90 days without a RCRA permit (an act that would typically be a violation of the hazardous waste regulations), a previously filed notification would be an indication that the facility was planning to reclaim the hazardous secondary material under the conditions of the exclusion. Absent such notification, it would be difficult for the facility to justify its true intentions for the hazardous secondary material. Failure to meet the notification provision is a strong indication that the facility either did not intend to comply with or was unaware of the provisions of the exclusion. In both cases, the lack of notification could indicate that the hazardous secondary material was being mismanaged.
EPA agrees with commenters that making notification a condition of the rule would further discourage facilities from trying to evade enforcement by not notifying because, under the final rule, the costs and consequences of not notifying are significantly higher than if notification remains a requirement. Notification is essential to keep
In response to opposing comments, EPA does not agree that failing to notify is not indicative of discard. As noted, notification serves as a formal declaration that a facility is not managing a hazardous waste but, rather, an excluded hazardous secondary material under the conditions of the exclusion. Notification, thus, documents the generator's decision to not discard its hazardous secondary materials, which is the inherent first step in any exclusion from the definition of solid waste.
EPA also does not agree that the notification condition would be inappropriately enforced. EPA notes that notification as a condition subjects only those generators who failed to notify to enforcement consequences; generators who submit notifications as required, and meet the conditions of the final rule exclusions, would not face enforcement consequences. EPA does not find this to be unduly burdensome to the regulated community.
EPA also finds that the commenter's example of an innocent reason for failing to notify (because of confusion surrounding the point when a virgin material becomes a secondary material) as further reason to strengthen the notification provision. That is, in order to comply with the final rule, a generator must know which hazardous secondary materials are being managed according to the specific conditions of the exclusion. In other words, a generator has to make a choice to manage hazardous secondary materials under the conditions of the rule before they are considered “excluded.” (Notification, in fact, clearly documents this choice.) Therefore, EPA finds it difficult to believe that a generator could innocently fail to notify under the final rule because the generator is unclear about when a virgin material becomes a hazardous secondary material that it must manage under the exclusion. These ambiguities must be resolved prior to the facility availing itself of the exclusion.
EPA also disagrees with commenters that argued it is highly unrealistic to believe that any facility operating under the provisions would intentionally fail to notify EPA, as well as commenters that argued that sufficient incentives to notify already exist. We note that there is likely an economic incentive for some facilities to fail to notify and simply consider the paperwork violation as a cost of doing business. Where an economic incentive exists, EPA maintains that regulation is appropriate in order to adequately discourage undesirable behavior.
Finally, although notification as a condition may differ from how other paperwork requirements are applied in the hazardous waste regulations, it does not differ from how other paperwork requirements are applied in conditional exclusions from the definition of solid waste. For example, notification is a condition of the zinc fertilizer exclusion in 40 CFR 261.4(a)(20). Additionally, EPA confirms that the conditional exclusions at 40 CFR 261.4(a)(23) and 40 CFR 261.4(a)(27) are self-implementing and thus facilities do not need to wait for any response from the implementing agency prior to using exclusion.
In the July 2011 DSW proposal, EPA proposed to amend the generator-controlled exclusion to require persons operating under the exclusion to place a label on the storage unit indicating the first date that the excluded hazardous secondary material began to be accumulated. In cases where placing a label on the storage unit is not practicable (
Since the same arguments for tracking accumulation start dates could be made more broadly for all recycling subject to the speculative accumulation limits, EPA also requested comment on whether to add this recordkeeping requirement to the speculative accumulation provision in 40 CFR 261.1(c)(8) itself. The Agency did not propose or solicit comment on changing the substantive requirements of the speculative accumulation provision, such as the time allowed for storage or the amount that is required to be recycled within a calendar year.
Many commenters, particularly states, supported the proposed recordkeeping requirement and also supported extending the requirement to all persons currently subject to the speculative accumulation requirements at 40 CFR 261.1(c)(8). These commenters generally believed that posting accumulation start dates (or using some other mechanism, such as an inventory log) provides assurance both to generators and inspectors that the generator in question is in compliance with the speculative accumulation provision, and that the proposed requirement would not be burdensome to the regulated community. One commenter supported requiring accumulation start dates to be posted in storage areas within a specified number of feet from the storage unit, since reference to logs distant from storage units could make enforcement difficult. Facilities that prefer a centrally located log could maintain such a “master” log in addition to the record maintained near the actual storage unit, this commenter suggested.
Some commenters, however, opposed the proposed recordkeeping provision for speculative accumulation, either for the generator-controlled exclusion or for other persons subject to 40 CFR 261.1(c)(8). Some of these commenters argued that 40 CFR 261.2(f) already requires respondents in enforcement actions who are claiming that a material is not a solid waste to demonstrate that they meet the terms of an exclusion or
After evaluating the comments received, EPA has concluded that the proposed recordkeeping requirements for speculative accumulation provide considerable benefits to both regulatory authorities and the regulated community and that the burden on the regulated community will be minimal. Posting accumulation start dates (or using another mechanism, such as an inventory log) is a simple and effective way to provide useful information about likely compliance with the speculative accumulation provision, and that the cost to facilities does not outweigh this benefit. We also find that all of the reasons for adopting this requirement for the generator-controlled exclusion apply equally to the question of whether to adopt it for all persons subject to 40 CFR 261.1(c)(8). In response to the commenter who supported also requiring the posting of accumulation start dates in storage areas within a specified number of feet from the storage unit, EPA is not convinced that such a requirement would be necessary for all facilities, and the appropriate distance from the storage unit might also vary for different facilities. We are therefore not adopting this requirement.
In response to those commenters who argued that the proposed recordkeeping requirement is redundant with § 261.2(f), we note that that provision applies to respondents in enforcement actions and does not provide specific guidance on how to determine compliance with the speculative accumulation provisions in the case of routine inspections. We therefore do not agree that the proposed recordkeeping requirement is redundant with 40 CFR 261.2(f). Today's revision to the speculative accumulation provision at 40 CFR 261.1(c)(8) does not entail submitting notifications to EPA, posting the quantity of the hazardous secondary material and the time it was generated, or posting finish dates. The final definition of “contained” specifies that a unit must be properly labeled or otherwise have a system (such as a log) to immediately identify the hazardous secondary materials in the unit. Neither such a label nor the posting of an accumulation start date requires detailed information. In response to the commenters who were concerned about hazardous secondary materials that were continuously recycled without prior storage, we agree with those commenters and are revising the proposed recordkeeping requirement to allow “other appropriate methods” to be used to document the accumulation period.
For the reasons given above, EPA is amending 40 CFR 261.1(c)(8) to require that all persons subject to that provision must place materials in a storage unit with a label indicating the first date that the excluded hazardous secondary material began to be accumulated. If placing a label on the storage unit is not practicable, the accumulation period must be documented through an inventory log or other appropriate method.
Environmental and community organizations, as well as many state commenters, supported withdrawing the transfer-based exclusion because this would remove the possibility of hazardous secondary materials being sent to unpermitted reclaimers without a manifest. These commenters agreed with EPA's rationale that transfers of most types of hazardous secondary materials to other companies for reclamation involve discard, and that the 2008 DSW transfer-based exclusion could result in adverse impacts to human health and the environment from discarded material. Commenters noted that, prior to reclamation occurring, hazardous secondary materials have limited inherent value. Some commenters in particular were concerned about how the transfer-based exclusion made the generator responsible for verifying the safety and legitimacy of the recycler's operations, when most generators would not have the expertise to make such a determination. One commenter examined the compliance history of the facilities currently operating under the 2008 DSW exclusions and noted that a large percentage have been the subject of enforcement actions in the past five years, and many have been subject to clean-up authorities under either RCRA or CERCLA for past contamination.
Most states supported the alternative hazardous waste standards as a replacement for the transfer-based exclusion as an approach that would help encourage recycling, while maintaining protection of human health and the environment. States generally supported the longer accumulation period, but some state commenters suggested replacing it with the speculative accumulation limits. Finally, while, as noted above, environmental groups supported removing the transfer-based exclusion because of the potential hazards from third-party recycling, they did not support the alternative standards because they believed that the longer accumulation times would not be as protective as full Subtitle C regulation.
In contrast, most industry commenters and a few states opposed replacing the transfer-based exclusion with alternative hazardous waste standards. These commenters argued that the withdrawal would significantly hinder reclamation and therefore, the lifecycle environmental benefits from recycling, contrary to the resource conservation goals of RCRA. One commenter reported that retaining the generator-controlled exclusion but not allowing off-site transfers limits generator flexibility if, due to unforeseen circumstances (
Commenters also argued that EPA's record does not support repealing the transfer-based exclusion, stating that EPA did not present any new data that the 2008 DSW transfer-based exclusion would cause environmental harm and noting that the 2011 DSW proposal stated that facilities currently operating under the exclusion do not appear to have any problems from hazardous materials recycling. Comments included discussions of the conditions of the 2008 DSW transfer-based exclusion and
As discussed in more detail in Section VI of this preamble, EPA has identified several regulatory gaps in the 2008 transfer-based exclusion that could result in significant risk to human health and the environment from discarded material. Specifically, the conditions for the transfer-based exclusion for recyclers lack the ability to provide oversight before management begins and do not allow public participation in the environmental decision-making process, thereby decreasing the likelihood of compliance and increasing the potential for risk to human health and the environment from discarded hazardous secondary material. The evidence of past damage cases at third-party recycling facilities leading to significant risk to human health and the environment from hazardous secondary materials originally intended for recycling and the underlying perverse incentives of the recycling market to over-accumulate such hazardous secondary materials intended for recycling, resulting in discard of the material, demonstrates the need for such additional oversight and public participation. In other words, the transfer-based exclusion can exacerbate financial incentives for small and/or inexperienced businesses to take in more hazardous secondary materials than they actually can use, mishandle it, and even go out of business, as shown by the fact that bankruptcies or other types of business failures were associated with 66% of the recycling damage cases, resulting in multi-million dollar cleanups.
At the same time, as EPA noted in the 2011 DSW proposal and as was echoed in the public comments, EPA has also carefully monitored the implementation of the 2008 DSW final rule since it came into effect in December 2008, and to date, no environmental problems have been reported at facilities claiming the DSW exclusions. As of April 2014, a total of 65 facilities are operating under the transfer-based exclusion, 56 of which are generators transferring off-site and 7 which are reclamation facilities.
However, the fact that the comments from PA DEP went on to recommend that the transfer-based exclusion be limited to RCRA-permitted recycling facilities also supports EPA's determination that the self-implementing measures of the transfer-based exclusion have the potential to result in significant risk to human health and the environment. Because all recycling under the transfer-based exclusion has been (to date) performed at RCRA permitted facilities, EPA is unable to extrapolate what would happen at facilities without a RCRA Subtitle C permit if the transfer-based exclusion were fully implemented. Given the evidence of past damage cases leading to significant risk to human health and the environment from hazardous secondary materials originally intended for recycling and the underlying perverse incentives of the recycling market to over-accumulate such hazardous secondary materials intended for recycling, resulting in discard of the material, additional oversight of recycling beyond the self-implementing measures of the transfer-based exclusion are needed to ensure that the hazardous secondary material is legitimately recycled and not discarded.
EPA is therefore replacing the transfer-based exclusion currently found in 40 CFR 261.4(a)(24) and (25) with the verified recycler exclusion in 40 CFR 261.4(a)(24). This replacement strikes an appropriate balance between encouraging the safe and legitimate recycling of hazardous secondary materials and allowing the appropriate oversight to ensure the exclusion works as intended. It also addresses the issue of allowing a generator flexibility to recycle on site or off site as circumstances require (as long as the generator notifies under both the generator-controlled exclusion and the verified recycler exclusion). As discussed in section VI. D of the preamble, the verified recycler exclusion retains the conditions from the transfer-based exclusion that were intended to help identify hazardous secondary material that is legitimate
In the July 2011 DSW proposal, EPA requested comments on excluding 18 spent solvents when they are remanufactured back into higher value commercial-grade solvents under the conditions of the exclusion. The solvents were: Toluene, xylenes, ethylbenzene, 1,2,4-trimethylbenzene, chlorobenzene, n-hexane, cyclohexane, methyl tert-butyl ether, acetonitrile, chloroform, chloromethane, dichloromethane, methyl isobutyl ketone, N,N-dimethylformamide, tetrahydrofuran, n-butyl alcohol, ethanol, and methanol. EPA chose these 18 spent solvent chemicals to limit the exclusion to higher-value materials and processes that resemble manufacturing more than waste management. EPA also requested comment on whether there are other solvents, chemicals or other types of hazardous secondary materials that should be included in the remanufacturing exclusion. In particular, EPA requested comments on opportunities for remanufacturing other types of non-renewable hazardous secondary materials, such as metal catalysts or other types of metal-bearing hazardous secondary materials.
Many commenters supported the current list of spent solvents and did not support expanding the list in any way. These commenters cautioned against expanding the list of chemicals until EPA could determine the effectiveness of this exclusion. Several other comments did not focus on adding solvents or other hazardous secondary materials, but focused on the toxicity or market structure of the 18 listed spent solvents. One commenter questioned the claim of “higher-value” for chloroform, chloromethane, ethyl benzene, xylene, methanol and MTBE. Another commenter stated they no longer use many of the 18 listed spent solvents because the solvents are defined as a toxic substance and a hazardous air pollutant under other environmental statutes. The commenter continued by saying that members of their association now use more “environmentally friendly” solvents.
The remaining commenters discussed adding solvents or other hazardous secondary materials. Some commenters suggested expanding the solvent list to include benzene, acetone, isopropyl alcohol, or all solvents used in reactors, extractors, purifiers or blending equipment in pharmaceutical, organic, chemical, or plastics and resins manufacturing. Finally other commenters suggested adding additional hazardous secondary materials that were not solvents. The hazardous secondary materials suggested for addition were metal-bearing hazardous secondary material, F006 and spent hydroprocessing catalysts.
EPA agrees with those commenters who supported the remanufacturing exclusion and limiting it to the list of 18 spent solvents, at least at this point in time. EPA determined that these 18 spent solvents are good candidates for remanufacturing because they are used in large volumes as processing aids and because there are existing markets for all these solvents to be remanufactured to serve similar purposes to those of the original commercial-grade materials. EPA does not agree with comments that suggested adding chemicals to the list, but did not provide specific data or information that would lead the Agency to add these chemicals to the list at this point in time. While EPA may expand the list of eligible hazardous secondary materials for the remanufacturing exclusion based on additional data (see section VII of this preamble), the currently available information only supports the inclusion of the proposed list of 18 spent solvents.
EPA disagrees with those commenters who did not support including many of the identified solvents on the list because of their toxicity. In the 2011 DSW proposal, EPA acknowledged that the eligible solvents have suspected or recognized hazardous health effects associated with their manufacture, processing, and use.
Under the 2011 DSW proposal, EPA identified the operations of four manufacturing sectors as candidates for the remanufacturing exclusion. The eligible sectors were pharmaceutical manufacturing (NAICS 325412), basic organic chemical manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS 325211), and the paints and coatings manufacturing sector (NAICS 325510). These four sectors were selected because their primary business is manufacturing rather than waste management. Furthermore, these sectors are closely associated with the chemical functions identified in the remanufacturing exclusion and currently use a high volume of the solvents identified for the functional purposes included in this exclusion. EPA also asked for comment on whether there were other industry sectors that should be included in the remanufacturing exclusion.
Several commenters suggested specific industries for EPA to add to the remanufacturing exclusion. The suggested industries were K061 recyclers, the biofuels sector, recyclers with a part B permit like Safety-Kleen, petroleum refineries (NAICS 324110), petrochemical manufacturers (NAICS 325110), synthetic rubber manufacturers (NAICS 325212), fiber glass manufacturers, and electronic manufacturers. K061 recyclers and the biofuels sector were suggested due to their active markets and potential impacts on the environment if hazardous secondary materials were managed improperly. Companies, such as Safety-Kleen, with a part B permit, were suggested because these recyclers encourage sustainable materials management through remanufacturing. Petroleum refineries (NAICS 324110), petrochemical manufacturers (NAICS 325110) and synthetic rubber
EPA acknowledges that the industry sectors that were nominated for inclusion in the remanufacturing exclusion participate in recycling activities; however, these sectors' recycling activities do not include the types of practices or functions that were within the scope of the remanufacturing exclusion. Under the remanufacturing exclusion, a manufacturer may send their hazardous secondary material to another manufacturer, from one of the permissible industry sectors, provided that the remanufacturer uses the hazardous secondary material in one of the four permissible functions. The commenters all suggested industries that send their hazardous secondary materials to a third party, who is not necessarily a manufacturer, but a facility that would recover the solvent or other hazardous secondary material and who would then sell the recycled product to another person.
As discussed in the market forces study, it is generally in the best interest of commercial third party recyclers to maximize the amount of hazardous secondary material they can accept to increase profits. This market structure creates a perverse market incentive to over-accumulate hazardous secondary materials, which can result in discard, which the remanufacturing exclusion seeks to avoid. In contrast, the market forces study shows that facilities engaged in industrial intra-company recycling, where companies generate hazardous secondary materials as by-products of their main production processes and recycle the hazardous secondary materials used in production, have more flexibility in waste management decisions than a commercial recycler does. When a commercial recycler's primary or entire income is from accepting hazardous secondary materials for recycling and selling recycled products, there is no economic alternative if the market crashes to stay in business unless the company can afford the cost of a hazardous waste management permit and the cost of becoming a hazardous waste disposal facility. Remanufacturers, on the other hand, as a type of intra-industry recycler, profit primarily from the sale of their product and can switch their inputs between raw materials and hazardous secondary materials if market conditions shift.
It is also not clear that the suggested industry sectors will know what function their hazardous secondary materials will be used for after remanufacturing. As discussed previously, the remanufacturing exclusion encourages higher-value materials to be remanufactured and then used in high-value processes again. Furthermore, this exclusion focuses on the functions of aiding chemical manufacturing and processing because the solvents performing these functions retain their original physical and chemical properties. In these functions, the solvents are not contaminated by substances, such as inks and greases, which are difficult to separate, but only mixed with pure product ingredients, from which they can be separated readily in a commercially feasible manner. Unfortunately, the suggested industry sectors provided by commenters do not appear to coincide with the intent of remanufacturing hazardous secondary materials that retain their original physical and chemical properties. Therefore, these additional sectors will not be included in the remanufacturing exclusion.
However, EPA notes that these sectors would be eligible to participate in the verified recycler exclusion (40 CFR 261.4(a)(24)) if they meet the conditions of that exclusion.
In the July 2011 DSW proposal, EPA did not specifically include regulatory language for the remanufacturing exclusion, but EPA did include a streamlined version of the scope, applicability and conditions of the exclusion followed by a very detailed explanation of the exclusion that included the reasoning for each condition.
Many commenters said they were unable to comment on the remanufacturing exclusion because there was no regulatory language included in the proposal. Almost all commenters supported the concept of the remanufacturing exclusion, but requested that EPA re-propose the remanufacturing exclusion in a separate rulemaking with regulatory text, so commenters could accurately comment on the exclusion.
The preamble language discussing the remanufacturing exclusion contained adequate detail and information to allow comment on the proposed remanufacturing exclusion. In the July 2011 DSW proposal, the remanufacturing exclusion was presented in a narrative form that closely resembles the regulatory language being finalized today. The proposed rule also included a large amount of detail on the scope, applicability, and conditions of the remanufacturing exclusion. The proposal laid out exactly what solvents, industry sectors, and chemical functions were permissible in the remanufacturing exclusion. The proposal then clearly stated what was required for the notification, remanufacturing plan, records of shipments and confirmations of receipts, tanks and container management standards and the speculative accumulation requirement. EPA has determined that between the narrative and detailed explanation of the remanufacturing exclusion, commenters were provided more than enough information to comment on the remanufacturing exclusion, and thus, we are finalizing it in today's final rule.
Comments from industry across the board (including waste management companies) vehemently opposed codifying the legitimacy provision at § 260.43 for the pre-2008 recycling exclusions and exemptions, arguing that this action, combined with making factor 3 and factor 4 mandatory, is a drastic change in policy and likely will end much of the current recycling that is occurring under RCRA. Industry commenters argued that this would be a huge administrative burden with little environmental benefit and that recycling has been taking place under these exclusions largely without problems for many years. Some industry commenters expressed their opinion that the codified legitimacy factors are significantly different than EPA's existing legitimacy policy and therefore, the legitimacy analysis that would have to be undertaken is not substantively the same. Other commenters opined that applying the codified legitimacy standard to the pre-2008 exclusions and exemptions would function as a disincentive to recycling by adding
Many of the specific industry commenters on this issue were scrap metal recyclers who argued that although they have been legitimately recycling for decades, expecting them to prove that their recycling operations were legitimate for the first time would be prohibitively expensive, time-consuming and unworkable. The scrap metal recycling industry had particular issues with factor 4 as drafted in the 2011 DSW proposal and had many questions on how to do the comparable demonstration.
With respect to the states, a number of states were supportive of codifying one legitimacy standard for all hazardous secondary material recycling activities. They argued that codifying the legitimacy provision would give industry and states a definitive standard to evaluate recycling and that industries operating under the pre-2008 recycling exclusions and exemptions should not have any problems documenting compliance with the legitimate recycling provision of § 260.43, if their recycling is truly legitimate. On the other hand, a number of states, the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), and the Northeast Waste Management Officials' Association (NEWMOA) all expressed concerns over applying the codified legitimacy standard to certain long-standing recycling exclusions, including lead-acid batteries, circuit boards, scrap metal, and closed loop recycling, with one state arguing that this additional regulatory burden was not necessary for the 2008 pre-existing exclusions and exemptions.
Several environmental and community organizations supported codification of the legitimate recycling provision for all hazardous secondary materials recycling, but did not provide a detailed explanation of their position. In addition, whereas one environmental organization acknowledged that EPA did not solicit comment on the elimination of these exclusions, this organization stated that they believed a re-examination of all of the exclusions by the Agency, including the pre-2008 exclusions and exemptions should be conducted as soon as possible.
In response to the many comments that were submitted, the Agency is making a number of changes to the 2011 DSW proposal. Specifically, EPA is codifying a general statement in § 261.2(g) that makes it clear that a hazardous secondary material found to be sham recycled is discarded and thus, is a solid waste. However, we are not codifying a reference to the legitimacy provisions at 40 CFR 260.43 in each of the pre-2008 recycling exclusions/exemptions, as we proposed to do in the 2011 DSW proposal. On further reflection, we have determined that the sham recycling prohibition in § 261.2(g) more clearly defines the Agency's view on legitimate recycling and the pre-2008 recycling exclusions and exemptions. We also agree with those commenters who pointed out that we generally looked at the legitimacy of the recycling activity when we promulgated the material-specific or industry-specific exclusions and, therefore, we are not requiring facilities to revisit past legitimacy determinations. However, by codifying a prohibition on sham recycling that applies to all hazardous secondary materials being recycled, we are confirming that we expect anyone operating under a recycling exclusion or exemption to do so legitimately. (As we discuss later in this section and in section VIII, the Agency also has made a number of other revisions to the legitimacy standard to address the concerns raised in the comments.)
Many industry commenters argued that EPA or the states have already made legitimate recycling determinations for their specific recyclable materials. Some commenters also noted that EPA considered legitimacy at the time their material-specific exclusion was promulgated and had already made legitimacy determinations for those recyclable materials (
In response to the concerns expressed that the codified legitimacy factors would lead to practices previously considered legitimate now being considered sham operations, in general, the Agency is clarifying that it does not intend for the current recycling legitimacy determinations to change due to the codification of the legitimacy factors. We consider the factors we are finalizing today to be consistent with the criteria in the Lowrance Memo and previous preamble statements on legitimate recycling. Therefore, we generally do not anticipate that implementing agencies will revisit past legitimacy determinations. If recycling was considered legitimate under the Lowrance Memo, its status should not change as a result of today's rule. To make its intent more clear, the Agency is codifying a prohibition against sham recycling in § 261.2(g) instead of adding a provision in each of the pre-2008 exclusions and exemptions referring to the legitimacy provision in § 260.43. This codification will give implementing agencies a clear regulatory statement that can be used to enforce against sham recyclers, yet not require the vast majority of recyclers that are performing legitimate recycling under the pre-2008 exclusions and exemptions to revisit previously-made legitimacy determinations.
Any existing legitimate recycling determination should not change due to the codification of the legitimacy factors. In addition, examples that were provided in the public comments helped inform our decision-making and led us to revise factor 4 significantly to address this issue. The final regulatory text is consistent with the pre-existing legitimacy guidance and the manner in which legitimacy determinations have been made by the EPA Regions and authorized states. Thus, we do not expect implementing agencies to revisit past legitimacy determinations.
Regarding the existing exclusions and exemptions in the regulations, EPA acknowledges that, in establishing a specific exclusion or exemption, we have already determined in the rulemaking record that the specific recycling practice is excluded from the definition of solid waste provided all the conditions of the rule are met. However, the Agency has always enforced its rules on the basis that any recycling must be legitimate (See
For the most part, states commenting on this part of the proposal supported all the legitimacy factors being mandatory (the exceptions being Tennessee and Louisiana), although several states went on to say that they either opposed the petition process or are concerned about it for the following reasons: (1) The resources necessary for addressing incoming petitions, (2) the possibility of using the petition process as a potential backdoor out of legitimacy, and/or (3) the potential for the petition process to lead to inconsistencies among states on legitimacy determinations. Most states have supported making all four factors mandatory in past proposals and continue to do so here, arguing that codifying the legitimacy factors in the rule (instead of only in rule preamble and in policy documents) will provide clearer instruction to the regulated community and will strengthen the ability of state programs to enforce the criteria in situations where recycling is not legitimate. This, the states claim, will reduce the potential risk to human health and the environment from mismanagement of hazardous secondary materials and from elevated concentrations of contaminants in recycled products. They also argue that making all four factors mandatory will remove a serious flaw in the enforceability of legitimacy. Other commenters noted that requiring all four legitimacy factors to be met is critical to ensure reclamation is being conducted at a qualified facility and to minimize the potential for creation of future damage cases. Most states found it hard to conceive of a legitimate recycler that would not be able to satisfy all four factors.
Although some commenters representing the hazardous waste recycling industry did support making all the factors mandatory, the majority of industry commenters did not support this provision. Those commenters who did support a requirement that all four factors be met argued that this structure would be fairer and more enforceable. On the other hand, many of the commenters that argued against making all factors mandatory stated that this would discourage much of the current recycling and would be too hard to meet. Commenters particularly singled out factor 4 (toxics along for the ride) as problematic for implementation. Specifically, we got comments from multiple members of the mining and mineral processing industry arguing that factor 4 is not applicable to their industry and from scrap metal recyclers asking how factor 4 would apply at their facilities.
Many commenters also argued that the petition process was not an adequate mechanism for those processes that do not meet all four factors because there will be too many petitions for the states and EPA to be able to process and because shutting down recycling operations during the time spent waiting for petitions to be processed would be very expensive and wasteful.
Another important consideration is what the Agency has learned since implementing the 2008 DSW final rule, which finalized the legitimacy factors as a condition of the generator-controlled and transfer-based exclusions, with two factors that are mandatory and two factors that must be considered. Since that rule became effective, the Agency has become aware of a misconception regarding the “to be considered” factors. It has become clear that some industry stakeholders believe those factors to be less important, stating that they are optional or even can be ignored. This was not the Agency's intention at all. The Agency tried to make it clear that they must be considered and could, in fact, indicate sham recycling on their own. However, through public comment and stakeholder meetings, we have repeatedly heard that industry views these factors as optional.
Another argument against making all the factors mandatory requirements is that the overall determination is made on a case-by-case basis, which is often facility-specific, and not all legitimate recycling can fit into such a rigid system. Commenters argue that making all four factors mandatory removes the flexibility necessary for the broad universe of hazardous secondary materials being recycled.
After much consideration and review of the public comments, the Agency has decided to make all four legitimacy factors mandatory with adjustments to the factors themselves to account for the variability and diversity of legitimate hazardous secondary material recycling. As explained above in sections VIII.B.5 and VIII.B.6, we have adjusted the regulatory language of factor 4 to build in more flexibility for meeting this factor,
In addition, instead of a petition process for those legitimate recycling scenarios that don't meet factor 4, we are finalizing a documentation, certification, and notification process. We continue to find that legitimacy determinations are best made on a case-by-case basis, which has always been the case, with the facts of a specific recycling situation in hand. If a person has any questions as to the legitimacy of a particular recycling activity, he can always approach the appropriate regulatory agency for assistance in making a legitimacy determination.
When the Agency codified the legitimacy standard in the 2008 DSW final rule, we did not require specific documentation regarding the legitimate recycling determination. In the 2011 DSW proposal, in addition to proposing that the legitimacy standard apply to all
ASTSWMO, NEWMOA, and most other states supported requiring documentation of legitimate recycling for both the generator and recycler (with exceptions noted in their comments about certain long-standing recycling exclusions and exemptions, including lead-acid batteries, circuit boards, scrap metal, and closed loop recycling). Most state environmental agencies cited the ability to implement and enforce the RCRA recycling program as the primary reason why documentation is needed. However, a few states did not support requiring documentation for any of the pre-2008 recycling exclusions and exemptions. One state agreed that some documentation may be necessary for inspections, but also stated that common business records would likely suffice in most cases. An environmental organization coalition suggested we provide a consistent format and require documentation of both generators and recyclers. Industry generally opposed the documentation requirement and felt that it would pose significant practical challenges, especially for factor 4. Some industry commenters felt that “up-front” documentation is not necessary since EPA can rely on § 261.2(f) for documentation. Other commenters argued that for companies that rely heavily on the existing exclusions and exemptions, it would be easy to inadvertently miss documenting every instance (
Other commenters objected to any recordkeeping requirements documenting that a recycling activity is legitimate, arguing the policy is not new so, therefore, no new documentation should be required. They argued that since EPA already believes most recycling is legitimate, requiring documentation for all recycling is overly burdensome, expensive, and not necessary. Some industry commenters argued that EPA offered no evidence in the record that documenting the legitimacy of a recycling practice would have any additional environmental benefit. A few commenters asserted that requiring documentation for all recycling might actually cause more non-compliance, especially for the more frequently used recycling exclusions, such as the use/reuse and closed-loop recycling exclusions.
Finally, there was ample confusion in the comments on who would be required to put together and provide the documentation. The Agency proposed that the requirement would apply to the “persons performing the recycling.” That is, if the generator sent his hazardous secondary materials off-site to a recycler, then the recycler would be the one responsible for maintaining the documentation. If, on the other hand, the generator recycled his hazardous secondary materials on-site, then the generator would be responsible for documenting that the recycling activity was legitimate. However, some commenters still expressed confusion over who would be responsible for the documentation.
As discussed previously, the Agency has determined that, for purposes of the existing pre-2008 recycling exclusions and exemptions, documentation is not required, unless the facility has determined it is legitimately recycling, but does not meet Factor 4. In the vast majority of cases, recycling under the existing exclusions is legitimate and documentation is not necessary. The Agency has previously acknowledged the legitimacy of these recycling practices when it first promulgated the material-specific and industry-specific exclusions and exemptions, when at that time it took into consideration the legitimacy of the recycling practices. After review of the public comment, the Agency has determined that routine documentation of legitimacy is an unnecessary burden for persons legitimately recycling under the pre-2008 recycling exclusions and exemptions.
However, the Agency is requiring documentation on legitimacy determinations under two circumstances: (1) Persons operating under the generator-controlled exclusion originally finalized in the 2008 DSW final rule, and (2) persons legitimately recycling under any recycling exclusion or exemption where the hazardous constituents in the recycled products are not comparable or are unable to be compared to those in analogous products (unless the recycled product meets widely recognized commodity specifications or the hazardous secondary material is returned to the production process). In these cases, the persons recycling would be required to keep documentation of the legitimacy of their recycling.
Specifically, the Agency has determined that requiring documentation under the generator-controlled exclusion is appropriate because this exclusion is generic and can be used by a wide variety of industries recycling any of a number of hazardous secondary materials. In addition, as explained above in section VIII.B.6.c, the Agency has also determined that documentation is necessary for those rare cases of legitimate recycling that has significantly higher levels of hazardous constituents in the recycled product than in an analogous product, or has no analogous product, has no widely-recognized commodity specifications for the recycled product, and is not returned to the production process. In those cases, due to the self-implementing nature of the legitimacy determinations, it is important that the recycler perform the proper assessment and document how the recycling is still legitimate.
Finally we would note that 40 CFR 261.2(f) applies whenever a person is claiming that a hazardous secondary material is not a solid waste, which oftentimes is because the material is being recycled. Section 261.2(f) states that, in the context of an enforcement action to implement Subtitle C of RCRA, a person claiming that a material is not a solid waste or is conditionally exempt from regulation is responsible for showing that they meet the terms of the exclusion or exemption and must provide appropriate documentation to show why they are eligible. For the legitimacy requirement finalized today, under § 261.2(f), in the event of an enforcement action, persons claiming that their recycling activity is legitimate would have the burden to provide documentation showing how the
Many commenters supported the regulatory language revisions to factor 3, particularly the following additional italicized language: “Where there is an analogous raw material, the hazardous secondary material, must be managed, at a minimum, in a manner consistent with the management of the raw material
The Agency disagrees with the comments that the revised contained standard is more stringent and thus, results in a more stringent factor 3. First, as noted by the commenters, the contained standard only applies in cases where there is no analogous raw material to compare the management of the hazardous secondary material to. More importantly, however, as explained in more detail is section V, while the revised contained standard is more clear and more definitive, it is not more stringent, but is consistent with the contained standard previously discussed and described in the preamble to the 2008 DSW final rule. Thus, EPA finds that overall the revisions to factor 3 are reasonable and consistent with the Agency's previous positions on legitimacy. Therefore, the Agency is finalizing the regulatory language for factor 3 as proposed and has determined the added flexibility will allow existing legitimate recycling to continue without any negative impact on environmental protection.
In the 2011 DSW proposal, EPA proposed to change the wording within the regulatory language for factor 4 from “significant” and “significantly elevated” to “comparable to or lower than” and explained that this language more clearly reflects the intent of this factor. In addition to this language change, other proposed changes to the legitimacy provision impact the design and implementation of factor 4. The proposal to make all four legitimacy factors mandatory led many commenters to discuss specific concerns they had about factor 4 and what problems they would have meeting the factor as it was proposed. In this section, EPA examines some of those comments, as well as provides the Agency's responses and the changes that were made to the proposal in this final rule to make factor 4 more workable.
In concert with many of the comments about the difficulties of meeting the proposed factor 4, EPA also received many comments about its proposed petition process for when a recycling process does not meet either factor 3 or factor 4. EPA is thus, also addressing those comments in this section of the preamble because the documentation, certification and notification process that will be replacing the proposed petition process is found within factor 4 of the legitimacy provision.
EPA's proposal to change the language within factor 4 that describes the comparison of levels of contaminants between products made from recycling of hazardous secondary materials and products using raw materials was supported by most of the states that commented on factor 4 and opposed by many of the industry commenters. The states that supported the change stated that the term “comparable” is better because it is more specific, though several of these commenters also asked for further guidance on the language.
Industry commenters who opposed this change to factor 4 stated that there was not a good reason in the preamble for the change in the language and that they do not think that “comparable” means the same thing as “not significantly higher,” arguing that if the terms mean the same thing there was no reason for EPA to change them. Several commenters argued that this change in language makes the factor more stringent and/or less flexible.
EPA is finalizing the proposed language in this factor and using the term “comparable” in discussing levels of hazardous constituents. This term means any contaminants present in the product made from hazardous secondary materials are present at levels comparable to or lower than the levels in the analogous product, although levels can be slightly higher than those found in the analogous product, but must be within a small acceptable range. This change in language is not a change from its long-standing policy and it is also consistent with the legitimacy provisions in the Identification of Non-Hazardous Secondary Materials that are Solid Wastes final rule (76 FR 15456, March 21, 2011).
In response to comments requesting further guidance and those that state that this language change is making factor 4 too stringent, first we have repeated in section VIII of the preamble the examples that we included in the 2008 DSW final rule which explains how the Agency envisions this factor working. Moreover, the additional changes that it made to factor 4 in this final rule, describing several situations under which a product of a recycling process would be considered comparable to a legitimate product or intermediate, address both these concerns. As EPA determined in previous rulemakings, promulgating an exact numerical cut-off for what would be considered “comparable” is not practicable for the legitimacy provision because it applies to a wide variety of recycling scenarios. EPA may provide future guidance on the application of this provision if needed.
Many of the comments that EPA received from industry regarding factor 4 stated that facilities are concerned about this factor, particularly if it were to become mandatory, because it would be difficult to determine if a given recycling process is in compliance. Many of these commenters stated the high cost of testing for 40 CFR part 261 Appendix VIII constituents as one of their concerns.
First, we are reiterating in this final rule that testing of the recycled product is generally not required under factor 4 of legitimacy. A generator can use its knowledge of the materials it uses and of the recycling process to make legitimacy determinations, although they may choose to test if they are uncertain if the product from their hazardous secondary materials contains elevated levels of hazardous constituents when compared to non-recycled products. In addition, factor 4
Many of the comments regarding factor 4, including many of the examples that were sent in to describe the difficulties of complying with factor 4, described recycling situations in which there is no analogous product and argued that it would be very difficult to meet the proposed factor 4 in a situation where there is no analogous product.
After examining the comments submitted, including the examples provided, EPA agrees with the commenters that the design of proposed factor 4 did not adequately take into consideration recycling scenarios that either always includes some form of recycled hazardous secondary material or that would be considered closed loop recycling. As a result of these comments, EPA modified the structure of factor 4 to include provisions specifically for the situation where there are no analogous products, (found in § 260.43(a)(4)(ii)). The finalized provisions state that when there is no analogous product, the product of the recycling process is comparable to a legitimate product or intermediate when the product is a commodity meeting widely recognized commodity standards and specifications or when the hazardous secondary materials being recycling are returned to the original process or processes from which they were generated.
This change to factor 4 provides the necessary flexibility to those persons who recycle hazardous secondary materials for which there is not an analogous product for comparison. However, EPA has also included a documentation, certification, and notice provision for cases that do not fit these two scenarios. Under this provision, the recycler can perform an assessment of the hazardous secondary material and still determine that its recycling is legitimate despite not meeting factor 4. This finding must be documented and certified by a responsible facility official and a copy kept on-site for as long as the recycling continues, and for 3 years after the recycling operations cease. Also, a notice of this finding must be sent to the appropriate Regional Administrator (or State Director, in an authorized state), using the Site ID form.
As stated above in this section, many commenters argued that the petition process was not an adequate mechanism for relief for those processes that do not meet all four factors and therefore, they opposed the proposed petition process. They argued that there would be too many petitions for the states and EPA to process efficiently, which could result in shutting down recycling operations during the time spent waiting for petitions to be processed, which would be very expensive and wasteful. States were particularly concerned about the amount of resources that would be needed to process the incoming petitions.
In response to the arguments presented by the commenters in opposition to the petition process and the concerns with how implementation of the petition process could impact recycling, EPA is not finalizing the petition process in this final rule. Instead, EPA has made two changes to its proposal to account for the situations that the petition process was meant to cover. The first is the additional provisions in factor 4 (already discussed above in this section) that describe the specific situations in which EPA considers a product of a recycling process to be comparable to an analogous product or intermediate. The second is the documentation, certification, and notice provision for products that have levels of hazardous constituents that are not comparable to or lower than an analogous product or intermediate or that are unable to be compared, but which are not covered by the new provisions.
Under the documentation, certification, and notice process, a recycler must determine that its recycling is still legitimate despite the levels of hazardous constituents in the recycled product not being comparable to those in an analogous product or intermediate. This determination can take into account exposure of toxics in the product, bioavailability of toxics in the product or other relevant considerations that show the recycled product does not contain levels of hazardous constituents that pose a risk to human health or the environment. The facility then must prepare documentation explaining its assessment and include a certification that the recycling is legitimate. In addition, the facility would need to notify the appropriate Regional Administrator (or State Director, in an authorized state) of this finding.
This provision is a less burdensome process for both recyclers and the states implementing the RCRA program because it maintains the self-implementing nature of the legitimacy requirement. However, because facilities will still have to provide notice to the regulatory agency, it also allows implementing agencies to perform oversight and inspections of recycling facilities if they are concerned about the legitimacy of a specific recycling process.
In the July 2011 DSW proposed rule, EPA proposed several modifications to the existing regulations for solid waste variances and non-waste determinations in 40 CFR 260.31(c), 40 CFR 260.33 and 40 CFR 260.34 to ensure protection of human health and the environment and foster greater consistency on the part of implementing agencies.
In the July 2011 DSW proposal, EPA proposed to revise 40 CFR 260.33(c) to require facilities to re-apply for a variance in the event of a change in circumstances that affects how a material meets the criteria upon which a solid waste variance has been based, as is currently required for non-waste determinations. Additionally, EPA requested comment on whether to require variances and non-waste determinations to be renewed periodically, and, if so, what time period would be appropriate (
The majority of commenters supported EPA's proposed change to require facilities to re-apply for a variance in the event of change in circumstances that affects how a hazardous secondary material meets the criteria upon which a solid waste variance has been based. The commenters believe the change promoted clarity and consistency in the regulations and that it made sense to ensure the hazardous secondary materials continued to meet the conditions of the exclusion over time. Other commenters, however, while supporting such a provision, urged EPA to require a re-certification rather than a full application process so as to reduce the burden on states and the regulated community.
A few commenters disagreed with this provision, as they argued that administrative authorities already use discretion to review changes in circumstances.
EPA agrees with the majority of commenters that finalizing a requirement to require facilities to take action in the event of a change in circumstances will ensure the hazardous secondary material remains eligible for a variance and continues to meet the variance criteria over time. EPA also agrees with those commenters that suggested ways to reduce the administrative burden on states and the regulated community. Therefore, in today's final rule, EPA is requiring that, in the event of a change, the facility must send a description of the change to the regulatory authority and the regulatory authority will determine whether the facility must re-apply for a variance. This change in procedure allows both the regulatory authority and regulated community to avoid spending unnecessary resources where the change in circumstances is found to be of no consequence to the original variance that the regulatory authority has granted. EPA notes that re-applying for a variance should be less burdensome than the initial application because a facility would only have to update its original application.
EPA disagrees with those commenters who opposed this change on the basis that regulatory authorities already use discretion to review changes in circumstances. First, the changes that EPA made to the final rule would not automatically require a person to re-apply for the variance, but make the regulatory authority aware of the change so that an informed decision could be made as to whether the variance is still appropriate. Moreover, relying on case-by-case discretion to require notice in the event of a change could allow certain hazardous secondary materials to remain excluded from regulation under Subtitle C of RCRA, even though based on the changed circumstances, the variance is no longer appropriate, and could present a risk to human health and the environment. It would also contradict the Agency's goal to foster greater consistency on the part of implementing agencies.
A number of commenters did not support requiring periodic renewals of variances and non-waste determinations. Commenters opposed this change because of the additional burden on both the states and the regulated community and the fact that this would not be needed if EPA finalized its proposed change to require a renewal or recertification in the event of a change. Additionally, some commenters argued that the administrative authority already has discretion to set renewal timeframes as a condition of the variance. One commenter argued that facilities make significant business investments based on regulatory certainty and, thus, if variances are subject to repeal, this may prevent investment in recycling activities.
A few commenters, however, supported a renewal requirement and argued that reapplying in the event of a change is not the same as a periodic renewal. This commenter argued that the requirement to re-apply in the event of a change relies almost entirely on the facility to self-report on a change in circumstances, of which the facility may have an economic incentive not to do. Other commenters suggested that generators “re-certify,” rather than re-apply, on an annual or biennial basis that they continue to meet the conditions of a variance or non-waste determination in order to reduce administrative burden.
EPA agrees with the commenters that supported a renewal requirement for solid waste variances and non-waste determinations. Variances and non-waste determinations are granted based on case-specific circumstances of a particular hazardous secondary material being recycled. Many of the variance and non-waste determination criteria specifically consider factors such as, the manner in which the hazardous secondary material is recycled, the market factors of the recycling process, the value of the hazardous secondary material, and contractual arrangements. However, these factors are not static and, instead, change and evolve over time. It is therefore prudent that regulatory authorities periodically review these case-specific situations to ensure that the hazardous secondary material continues to meet the criteria of the variance or non-waste determination. Therefore, EPA is adding a provision to 40 CFR 260.33(d) that solid waste variances and non-waste determinations shall be effective for a fixed term not to exceed 10 years, which is the same term limit for RCRA hazardous waste permits under 40 CFR 270.50(a).
EPA is establishing a time limit of 10 years (rather than two or five years, as suggested in the July 2011 proposal) considering the need to provide regulatory certainty to support business investment, as well as the fact that 10 years is the same as the duration of RCRA permits under 40 CFR 270.50(a). The 10-year time frame also ensures that renewals occur regularly enough in order to evaluate significant changes in recycling processes, technologies, and market factors that may affect the terms of a variance or non-waste determination.
EPA disagrees with those commenters who argued that periodic renewals would not be needed if EPA finalized the proposed change to require notice in the event of a change in circumstances that affect how a hazardous secondary material meets the conditions of a variance or, as currently required for a non-waste determination. As one commenter noted, the requirement to provide notice in the event of a change relies on a facility self-reporting that change and thus, this requirement may not be consistently implemented. A periodic time limit, in this case 10 years, however, triggers a re-review of the circumstances without relying on self-reporting by the facility. Furthermore, EPA disagrees with commenters who opposed this change on the basis that regulatory authorities already use discretion to review changes in circumstances. (See response to this comment in EPA's Response to “Re-Apply for a Variance in the Event of a Change.) Regarding the commenter that argued that periodic renewals would disrupt business investment, EPA finds that a time limit of ten years (rather than two or five years, as suggested in the
In the July 2011 DSW proposal, EPA proposed to add a provision under 40 CFR 260.33 stating that facilities receiving a variance or non-waste determination must provide notification as required under 40 CFR 260.42. This would require facilities to send a notification prior to operating under the regulatory provision and by March 1 of each even-numbered year thereafter to the EPA or the State Director, if the state was authorized, using EPA Form 8700-12.
Commenters were split on this issue. Many commenters supported requiring facilities receiving a solid waste variance or non-waste determination to submit notifications in compliance with 40 CFR 260.42. These commenters believed that the notification would provide updated information about a facility's activities and would enable better compliance monitoring. These commenters also agreed that notification would improve transparency, because the notifications could be available online.
However, many commenters opposed requiring facilities that receive a variance from being a solid waste or non-waste determination to submit notifications. These commenters argued that the act of applying for and receiving a variance or non-waste determination constitutes adequate notification for regulatory authorities. These commenters also argued that notification would increase the burden on facilities and was not necessary if EPA finalized its proposal to require facilities to re-apply in the event of a change.
Although EPA recognizes the arguments both for and against notification, EPA agrees with those commenters who support notification in order to enable better compliance monitoring and to improve transparency. Therefore, EPA is finalizing a requirement in 40 CFR 260.33(e) that facilities receiving a variance or non-waste determination must provide notification as required by 40 CFR 260.42.
This requirement serves to meet EPA's goal to foster greater consistency on the part of implementing agencies and to help ensure the proper implementation of the solid waste variances and non-waste determinations. The intent of the notification is to enable variances and non-waste determinations to be tracked nationally and over time, which facilitates state-to-state consistency in determinations. Additionally, notification enables effective oversight of facilities receiving solid waste variances and non-waste determinations because it provides regulatory authorities with a mechanism for receiving regularly updated information (such as information regarding quantities of hazardous secondary materials managed under the determination). Furthermore, this information can be used to identify facilities which may have undergone changes to their reclamation process significant enough to trigger a review of the determination under 40 CFR 260.33(c).
EPA does not agree that the solid waste variance or non-waste determination application itself constitutes adequate notification. Currently, individual facility applications are not tracked nationally and there exist no consolidated list of facilities operating under a solid waste variance or non-waste determination. Notification, using EPA Form 8700-12, ensures that standard information regarding facilities receiving solid waste variances and non-waste determinations can be collected, stored, and used to enable compliance monitoring and to foster consistency in implementing the regulations.
We also do not agree that the notification requirement is duplicative of the requirement to send notice in the event of a change because the two requirements serve different purposes and require different information. In the event of a change, facilities must send a description of the change in circumstances to EPA or the authorized state, who then make an evaluation as to whether a facility should re-apply for a solid waste variance or non-waste determination. Under 40 CFR 260.42, facilities submit information, such as type and quantity of hazardous secondary material being managed, using EPA Form 8700-12, which enables the information to be entered into EPA's database where it can be accessed by both EPA and state regulatory authorities.
Furthermore, EPA does not agree that notification using EPA Form 8700-12 poses an undue burden. The form is relatively simple to complete and is currently being used for facilities excluded from the definition of solid waste under 40 CFR 261.4(a)(23). Additionally, EPA is currently developing an electronic submission process, which will further reduce reporting burden.
In the July 2011 DSW proposal, EPA proposed to revise the partial reclamation variance provision of 40 CFR 260.31(c) to clarify when partially-reclaimed materials are not solid waste because they are commodity-like. Specifically, EPA proposed to: (1) Revise the introductory text to clarify when the variance applies; (2) revise the introductory text to require that all of the decision criteria must be met; (3) revise the language of all of the decision criteria; and (4) eliminate the sixth criterion, that is, “other relevant factors.”
Many commenters supported EPA's proposed changes to the partial reclamation variance. In fact, two of these commenters argued that existing variances that do not meet the new criteria should be rescinded or revised.
A few commenters, however, did not support the proposed changes. These commenters argued that EPA does not have the record to support its finding that states are inconsistently and incorrectly applying the partial reclamation variance criteria and that variances granted by the states are not protective of human health and the environment. Additionally, one commenter argued that EPA provided no documentation for public review to substantiate how EPA intended the variance criteria to apply when it promulgated the variance in 1985. Another commenter argued that the proposed changes will restrict recycling.
EPA agrees with commenters who supported the proposed changes. Not finalizing the proposed revisions to the partial reclamation variance would only result in a continuation of inconsistency among state determinations, which in some cases, allow partially-reclaimed materials to be excluded from the definition of solid waste when they are
EPA estimates that the states have granted between 15 to 20 partial reclamation variances, including variances granted in Indiana, Louisiana, Ohio, Oregon, Pennsylvania, Texas and Washington. EPA itself has also issued a partial reclamation variance to World Resource Company (WRC) in Arizona. (See list of partial reclamation variances issues by the states in today's docket.) Some of the partial reclamation variances were granted as the Agency intended and have required RCRA Part B storage and treatment permits for the incoming hazardous waste material. Other states, however, have issued partial reclamation variances which contradict the intention of the partial reclamation variance. For example, EPA publicly expressed its disagreement in a November 18, 2010, letter to Indiana's Department of Environmental Management (IDEM) concerning the tentative approval of a facility's request for a partial reclamation variance, a copy of which is found in today's docket. In our letter, we made clear that we did not believe IDEM should grant a partial reclamation variance to incoming hazardous wastes that were not “sufficiently commodity-like to qualify for the variance.”
EPA also disagrees with commenters who argued that EPA's record does not provide adequate basis for how the Agency intended the partial reclamation variance to operate. In the preamble to the 1985 DSW final rule (January 4, 1985; 50 FR 655), the Agency made clear that incoming materials to a partial reclamation facility were hazardous wastes and that the facility processing these incoming materials must obtain appropriate RCRA Part B storage and treatment permits. (Furthermore, these facilities are also subject to biennial reporting under 40 CFR 264.75.) Additionally, the Agency points to the partial reclamation variance it issued to WRC on August 13, 2002 (67 FR 52617) as a public example of the how the Agency intended for the partial reclamation variance to be implemented. In this case, the Agency's partial reclamation variance to WRC for the partial reclamation of F006 electroplating sludges required WRC to obtain RCRA Part B storage and treatment permits for the incoming hazardous waste.
In addition, EPA disagrees that the final rule changes will unnecessarily restrict recycling. Today's changes clarify how the partial reclamation variance has always been intended to operate; thus, any recycling that is consequentially restricted from the variance as a result of the changes was never intended to be excluded from hazardous waste requirements. EPA maintains that hazardous waste must be managed under appropriate hazardous waste requirements in order to ensure protection of human health and the environment.
Most commenters supported the proposed changes to the introductory text, including requiring that all criteria must be met and requiring compliance with the legitimacy criteria in 40 CFR 260.43. One commenter, while supporting the proposed changes said that EPA should define vague words such as “commodity-like,” “sufficient economic value,” and “substantial.” Another commenter said that commodity-like partially-reclaimed material must be marketable to the general public, that is, it must be a material that could be marketed to more than one facility.
Some commenters did not agree that all the criteria must be met. One commenter argued that this conflicts with EPA's 1985 preamble in which EPA said the Regional Administrator can weigh factors and may rely on any or all of them to reach a decision. Additionally, the WRC variance that EPA issued acknowledged that the partial reclamation steps being performed were “not elaborate.” However, the partial reclamation involved by WRC was sufficiently substantial to produce a commodity-like material as verified by contracts, sales, and subsequent management of the commodity-like material. Other commenters believed EPA's proposed changes to the introductory text imposed prescriptive conditions which conflict with the intent of the variance by restricting the administrative authority's decision-making discretion.
EPA agrees with those commenters who supported the proposed changes to the introductory text, including requiring that all criteria must be met and requiring compliance with the legitimacy factors in 40 CFR 260.43. In response to the one commenter who believed that certain terms are vague, it is EPA's intent with this final rule to clarify how the partial reclamation variance should be applied. Although, specific definitions would be difficult to promulgate given the broad applicability of the terms, EPA notes that today's preamble discussion along with today's regulatory revisions to the variance criteria serve to better define how EPA is using these terms in the partial reclamation variance, particularly when a material becomes commodity-like. For example, EPA notes in its preamble that criteria 2-5 define the fundamental characteristics that indicate whether a partially-reclaimed material is “commodity-like.”
Regarding comments that argued against requiring all criteria to be met, EPA has determined that in order to reduce the inconsistency in state-to-state partial reclamation variances, the criteria must be made more prescriptive. Balancing the factors, as was EPA's original direction in 1985, has resulted in subjective interpretations that differ across states and which, in some cases, do not align with the original intent of the partial reclamation variance. EPA finds that requiring all criteria to be met is a more effective framework for determining when a partially-reclaimed material is commodity-like and therefore not a solid waste.
Many commenters supported the changes to the criteria of the partial reclamation variance. However, a few commenters disagreed with inserting the word “whether” at the beginning of each criterion because it implied the criterion was more prescriptive. A few commenters also argued that EPA's proposed insertion of the word “partially” before “reclaimed” disregards the fact that EPA has acknowledged that more than one processing step may be necessary before the inherent value of a usable product is recovered.
EPA agrees with the many commenters that supported the proposed changes to the variance criteria. Regarding EPA's proposed insertion of the word “whether” in each criterion, the intent of this change is to make the criteria more prescriptive in order to reduce the inconsistency of
For the first proposed criterion, two commenters argued that EPA's use of “partial reclamation” in place of “processing” did not provide additional clarification. Another commenter stated the criterion should state EPA's intent on 76 FR 44129 and read “whether the degree of partial reclamation the material has undergone is substantial and the material produced is not the original hazardous waste.” Other commenters were concerned regarding the term “substantial,” because it is subjective and needs a better definition. These commenters argued that EPA has not provided a standard regarding when a material is “no longer the original hazardous waste.”
EPA disagrees with those commenters who argued that EPA's use of “partial reclamation” in place of “processing” did not provide additional clarification. The term “processing” is a broad, general term that can refer to a number of processes, such as the process used to generate the hazardous waste. However, the intention of the partial reclamation variance is to evaluate, specifically, the degree of partial reclamation and therefore it makes sense to use “partial reclamation” in criterion 1. Additionally, this revised language for the first criterion conforms to the revised changes in the introductory text of the partial reclamation variance.
EPA agrees with commenters that adding a clarifying statement to criterion (1) is helpful and has added “as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste” after “substantial.” We believe this language clarifies (and responds to the comment regarding the term “substantial”) that the process used to generate the hazardous waste (such as dewatering of sludge) would not be considered “substantial” under this criterion. Therefore, by emphasizing that the partial reclamation process must be substantial in the first criterion, the Agency is reiterating that the material produced by the partial reclamation process must be commodity-like as supported by also meeting criteria (2)-(5).
Under the final rule, EPA is finalizing the first criterion to read: “Whether the degree of partial reclamation the material has undergone is substantial as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste.”
For the second proposed criterion, one commenter supported EPA's emphasis in the preamble on the existence of contracts for the sale of the partially-reclaimed material. This commenter argued that such emphasis is important to ensure that partial reclaimers do not accumulate significant quantities of material without assurance that a willing buyer actually exists. This commenter stated that an example of excess accumulation risk is shown by the variance recently granted by IDEM to the facility, ShoreMet, in which the variance was granted on the basis that a market for the partially-reclaimed material would exist solely because other reclaimers had sold fully-reclaimed F006 (wastewater treatment sludges from electroplating operations) and F019 (wastewater treatment sludges from aluminum coating processes). This commenter argued that such an analysis does not ensure that ShoreMet can market its partially-reclaimed material.
Another commenter argued that reclamation may involve more than one processing step and that the proposed changes to this criterion limit the administrative authority's ability to consider the value of the partially-reclaimed material and the usable end products. This commenter also argued that the term “value” in 40 CFR 260.43 means sold to a third party or used as an effective substitute, which may not apply here. Still another commenter noted the F006 reclamation guidance
EPA agrees with the commenter that supported EPA's emphasis in the preamble on the existence of contracts for the sale of the partially-reclaimed material as demonstrating the second criterion is being met.
As we have stated previously, the partial reclamation variance is for those hazardous secondary materials that have been partially-reclaimed but, must be reclaimed further, as long as the partial reclamation has produced a commodity-like material. That is, if the partially-reclaimed material is being purchased for further reclamation, the Agency considers the partially-reclaimed material to have sufficient economic value, regardless of how each party calculates the value to be paid. Evidence to support this criterion may include sales information; demand for the materials; and business contracts, such as contracts specifying quantities of material sold, details of the transaction, and the effective price paid for the partially reclaimed material by purchasers (
EPA is making one change to the proposed second criterion. As noted above, EPA understands that reclamation of hazardous waste may involve multiple steps and thus EPA finds it is more appropriate to ensure that the partially-reclaimed material is purchased for “further reclamation” rather than “final reclamation” to allow for processes that use more than one reclamation step in processing the partially-reclaimed material. Therefore, the final second criterion in today's rule reads: “Whether the partially-reclaimed material has sufficient economic value that it will be purchased for further reclamation.”
For the third criterion, one commenter disagreed with the proposed wording change because it restricts the authority's ability to consider the benefit provided by subsequent processing of the partially-reclaimed material and directs the authority only to consider whether it is immediately a substitute or product before further processing. Another commenter suggested replacing the phrase “which feed subsequent production steps” with the phrase “that is used in a subsequent manufacturing process” to be more clear. Still another commenter suggested that this criterion should state more plainly that “it is a substitute for ingredients, intermediates, or commercially available virgin/raw materials.”
EPA maintains that the partial reclamation variance is for those materials that have been partially-reclaimed, but must be reclaimed further, as long as the partial reclamation has produced a commodity-like material. Thus, whether or not a material is produced at a later stage of reclamation as a viable substitute for a product or intermediate is not relevant in determining whether a partially-reclaimed material produced earlier is commodity-like.
EPA agrees with the commenter who suggested replacing the phrase “which feed subsequent production steps,” with the commenters suggested wording, with certain modifications, in order to improve clarity. Therefore, the Agency is modifying this criterion to read, “whether the partially-reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials, which is used in subsequent production steps.” With this clarification, the Agency is making clear that, while multiple steps may be involved in producing a commodity-like material, it is only when the partially-reclaimed material is a viable substitute for a product or intermediate is it considered “commodity-like.”
EPA is not making the suggested change to state that the partially-reclaimed material “is a substitute for ingredients, intermediates, or commercially available virgin/raw materials” because EPA is concerned that this language may introduce confusion in distinguishing between when a partially-reclaimed material is “commodity-like” as compared to raw or virgin material that would need to undergo substantial processing before meeting this definition. Therefore, EPA is maintaining the proposed language to read “is a viable substitute for a product or intermediate produced from virgin or raw materials.”
For the fourth proposed criterion, whether there is a guaranteed market for the partially-reclaimed material, a few commenters argued that EPA is not specific enough to meet its objective and suggested that the criterion should read “whether there is a guaranteed and secure long-term market for the partially-reclaimed material.” These commenters also stated that EPA should include in the final rule more empirical and measurable ways to define this concept, for example including markets with consistent positive profit margins for a minimum of ten years.
EPA agrees that clarity is needed and has modified the fourth criterion to include examples of how a market for the partially-reclaimed material can be demonstrated. The fourth criterion now reads, “whether there is a market for the partially-reclaimed material as demonstrated by known customer(s) who are further reclaiming the material (
For the fifth proposed criterion, one commenter argued that “minimize loss” should be better defined and that, at a minimum, the partially-reclaimed material should meet the “contained” standard for hazardous secondary materials and be managed exactly like any other commodity.
EPA does not find that the phrase “minimize loss” needs to be better defined. As we have discussed elsewhere and in the preamble to the 2011 July DSW proposal, evidence to support this criterion may include documentation of facility procedures used to minimize loss (
Many commenters supported EPA's proposal to eliminate the sixth criterion concerning other relevant factors. One commenter stated that criterion six has been and is currently being used as a primary basis for granting partial reclamation variances for hazardous secondary materials, and has led to the creation of unfair and illegal advantages for some reclaimers.
A few commenters, however, disagreed with the proposed change. One commenter argued that removing criterion six conflicts with the intent of the partial reclamation variance by restricting the administrative authority's discretion. Other commenters argued that the overall situation should be considered and that an applicant's history of compliance would be an “other relevant factor” that should be considered when evaluating an application for a partial reclamation variance.
EPA agrees with those commenters that supported the elimination of the sixth criterion. The sixth criterion has resulted in subjective interpretations which have led, in the Agency's view, to incorrect application of the partial reclamation variance and therefore, EPA
EPA proposed to revise the criteria for the non-waste determination in 40 CFR 260.34 to require that petitioners explain or demonstrate why their hazardous secondary materials cannot meet, or should not have to meet, the existing DSW exclusions under 40 CFR 261.2 or 40 CFR 261.4.
Many commenters agreed with this proposed change. These commenters noted that, as a practical matter, it would seem facilities seeking such a determination would have already evaluated the existing exclusions and thus, requiring this information should not be overly burdensome.
A few commenters, however, disagreed with this proposed change. One commenter argued that petitioners will be unwilling to provide justification at the risk of disqualification of an accepted exclusion in another state or EPA region for the same process. Another commenter noted that there may be legitimate reasons where the use of an exclusion might be too close to call and the facility wants greater comfort in a determination. A third commenter argued it is unreasonable for EPA to place the burden of interpreting EPA's regulations on those who are regulated prior to consenting to review a request for a non-waste determination.
EPA agrees with those commenters who supported this proposed change to require that petitioners explain or demonstrate why their hazardous secondary materials cannot meet, or should not have to meet, the existing DSW exclusions under 40 CFR 261.2 or 40 CFR 261.4. EPA agrees that this type of evaluation should already have been conducted by facilities that are formally petitioning the state or EPA for a non-waste determination. This provision provides the regulatory authority with the information it needs, while helping to reduce the number of applications because facilities will be forced to evaluate whether an existing self-implementing exclusion may be used.
EPA does not agree with the opposing arguments presented by the commenters as a basis for not finalizing the proposed change. These arguments, including that a facility may want more comfort in a determination and that EPA shouldn't put the burden on facilities to interpret regulations, are precisely why EPA and authorized states would benefit from receiving an explanation or demonstration from the facility why they cannot or should not have to meet an existing exclusion. This information would enable regulatory authorities to review and resolve questions regarding whether a non-waste determination may be warranted. Additionally, EPA does not find convincing the argument that a facility may be unwilling to provide justification at the risk of disqualification of an accepted exclusion in another state or EPA region. In fact, by finalizing this change, EPA is fostering greater consistency in state-to-state interpretations.
In the July 2011 DSW proposal, EPA proposed to change the word “Administrator” to “Regional Administrator” in 40 CFR 260.30, 260.31, 260.32, 260.33, and 260.34. Due to the case-specific nature of the variances and non-waste determinations, EPA believed that these decisions may be better made by the Regional Administrator.
Most of the comments on this issue opposed the proposed change arguing that there are significant differences in regional interpretations just as there are differences in state interpretations and that the change will lead to increased inconsistency in the implementation of variances and non-waste determinations. Other commenters urged EPA to clarify that petitions for solid waste variances and non-waste determinations may be sent to Directors of authorized states, just as the petition process works currently. These commenters argued that states are delegated by EPA to administer the hazardous waste regulations and, therefore, states have a role in reviewing solid waste variance and non-waste determination petitions.
Only a few commenters supported the proposed change.
EPA recognizes the commenters' concerns who argued that designating the Regional Administrator, rather than the Administrator, as the person responsible for evaluating such petitions and deciding whether to grant a solid waste variance or a non-waste determination may increase inconsistency by virtue of there being ten Regional Administrators as compared to the one Administrator. Because the Agency is striving for as much consistency as possible, we have decided not to finalize this proposed change. We would also note that the rule does not change in any way the delegation of authority to states authorized to administer the hazardous waste regulations and thus, authorized states that have adopted these provisions may continue to evaluate and decide whether to grant a solid waste variance or a non-waste determination, as they do currently.
In the July 2011 DSW proposal, EPA requested comment on whether to require states to share copies of any solid waste variance and non-waste determination petitions and the tentative decisions with EPA for review and comment in order to encourage collaboration and national consistency. Formalizing collaboration would have
A number of comments did not support a requirement for states to share copies of solid waste variance and non-waste determination petitions with EPA for comment. These commenters argued that another layer of bureaucracy would delay the process. One commenter was concerned with protecting a company's confidential business information. Another commenter argued that EPA has not made an adequate case for the need for national approvals and that there may be legitimate reasons for arriving at different conclusions, for different variance petitions.
Some commenters, however, supported EPA's efforts to collect solid waste variance and non-waste determination decisions and to share the information with other states.
EPA recognizes commenters' concerns who argued that requiring states to share copies of solid waste variance and non-waste determination petitions with EPA for review and comment would likely increase the duration of the petition process. Therefore, EPA is not codifying this requirement in the final rule. EPA, however, will likely continue to work with the states in order to increase state-to-state consistency in such determinations and may pursue non-regulatory efforts to collect and share solid waste variances and non-waste determinations as part of implementing the final rule.
In the 2011 DSW proposed rule, EPA considered whether additional requirements should be codified for recycling exclusions and exemptions that EPA promulgated prior to the 2008 DSW final rule. Specifically, EPA requested comment on codifying the legitimate recycling standard in 40 CFR 260.43, the contained standard in 40 CFR 260.10, and the notification provision in 40 CFR 260.42 for 32 regulatory provisions that exclude or exempt certain types of recycling from full Subtitle C regulations.
However, EPA explicitly did not reopen comment on any substantive provisions of the regulatory exclusions or exemptions. The inclusion of requirements for legitimacy, containment, and notification were strictly meant as means to better enforce the regulations.
The request for comment stemmed from EPA's analysis of a report it developed as part of the DSW rulemaking, “An Assessment of Environmental Problems Associated with Recycling of Hazardous Secondary Materials” (environmental problems study), which analyzed 218 recycling damage cases.
EPA reviewed and analyzed each damage case in the environmental problems study and determined the regulatory provision that likely, or potentially, governed the management of the hazardous secondary materials.
Many comments in response to EPA's request for comment on whether the Agency should codify additional conditions to the pre-2008 recycling provisions were unfavorable, although a number of comments indicated support for the codification.
Industry commenters, and scrap metal recyclers in particular, strongly opposed adding conditions, arguing that the additional conditions will pose an undue burden on businesses without any environmental benefit and will discourage recycling. For example, commenters argued that scrap metal recyclers go to great lengths to ensure that they do not handle hazardous waste. These commenters said that, if EPA were to add conditions to the scrap metal exclusion, a scrap metal recycler would be required to obtain additional insurance, local licenses, training, new inspection procedures, lawyers, and consultants in order to maintain compliance and to prepare for an inadvertent loss of the exclusion, which would make it a handler of hazardous waste. Commenters argued that many scrap metal businesses are small and family-owned and cannot afford these new requirements and thus, these regulations will severely affect business and jobs.
Many commenters also argued that the contained standard is not necessary or practical and would be expensive. Commenters believed that the one-size-
Regarding notification, many commenters did not support adding notification to the pre-2008 exclusions. These commenters argued that the EPA Form 8700-12 (Site Identification Form) and, in particular the Addendum to the Site Identification Form, which is used to notify under 40 CFR 260.42, is too burdensome for facilities operating under a pre-2008 exemption/exclusion. For example, the Addendum requires facilities to list their hazardous secondary materials using EPA hazardous waste codes. In some cases, particularly for scrap metal recyclers, facilities would be required to determine which secondary material would be considered a hazardous secondary material, which may involve extensive testing in order to determine which hazardous waste code to report on the form. Additionally, the Addendum also requires facilities to report quantities of hazardous secondary material managed under the exclusions, but commenters explained that facilities operating under a pre-2008 exclusion have not generally determined which secondary material would be considered a hazardous secondary material, and therefore, any quantity estimates, which are required on the Addendum, would not be reliable for programmatic decisions. Moreover, commenters argued that notification would be difficult for facilities with multiple excluded processes. For example, one commenter explained that one facility in Tennessee has more than a hundred closed-loop recycling processes and thus it would be extremely onerous to report each process on a notification.
Commenters also argued that it is difficult to estimate the number of facilities operating under the exclusions and thus the impact on the state implementers of the notification program is uncertain. For example, notification would impact all forms of scrap metal handling (junk yards, scrap dealers, steel-makers), generators and handlers managing lead-acid batteries (vehicle repair facilities, retailers) and precious metals destined for reclamation (x-ray facilities, dentists, vets, jewelers). These commenters argued that most states are already under resource constraints and will be unable to cope with the tens of thousands of new forms that would need processing if EPA were to codify notification as a condition of the exclusions. Some state commenters suggested ways to reduce the burden on states, including not requiring periodic notifications on the same day that biennial reports are due and by implementing a process whereby notifications could be submitted electronically. Commenters also noted that the re-notification requirement for excluded facilities would be more stringent than what is currently required for hazardous waste small quantity generators.
EPA did not believe at the time of the proposal that the additional requirements—meeting the legitimate recycling standard, the contained standard, and the notification requirement—would present an undue burden on facilities. As discussed in more detail below, this is because EPA considers certain requirements, like legitimate recycling and containment, inherent in the definition of solid waste recycling exclusions and assumes that the regulated community already meets these standards. Notification was considered to be a simple reporting requirement that would pose minimal additional burden.
However, upon reviewing the comments, EPA has determined that more study is needed before taking action. Therefore, EPA is not making any changes to the language of the 32 recycling exclusions and exemptions at this time. In the case of the legitimacy provision, EPA is instead codifying a general prohibition against sham recycling. In the case of the contained standard and notification requirement, EPA is deferring any action until further study is conducted. EPA's response to comments regarding burden implications of each of the provisions is discussed in more detail below.
(1)
In proposing to codify the legitimate recycling standard for all exclusions, we did not intend to raise questions about the status of general legitimacy determinations that underlie these existing exclusions from the definition of solid waste, or about case-specific determinations that have already been made by EPA or the states. As noted in the comments, EPA generally considered the legitimacy of the recycling process when the original determinations were promulgated, and the Agency did not intend to force companies to have to reexamine long standing legitimate recycling practices. Therefore EPA is not revising the pre-2008 exclusions and exemptions to include a legitimacy requirement.
However, as discussed in section VIII, these material-specific exclusions from the definition of solid waste do not negate the basic requirement that the hazardous secondary material must be legitimately recycled. Therefore, EPA is codifying a general statement in § 261.2(g) that makes it clear that a hazardous secondary material found to be sham recycled is discarded and thus, is a solid waste. By codifying a prohibition on sham recycling that applies to all hazardous secondary materials being recycled, we are confirming that we expect anyone operating under a recycling exclusion or exemption to be doing so legitimately. EPA finds that this will give implementing agencies a clear regulatory statement that can be used to enforce against sham recyclers, yet not require the vast majority of recyclers that are performing legitimate recycling under the pre-2008 exclusions and exemptions to revisit previously-made legitimacy determinations.
Additionally, the Agency has, based on the public comments, made adjustments to the legitimacy factors to build in more flexibility for meeting each factor and thus, ease the use of the
For more information and responses to comments on legitimacy, please see section XVII in today's preamble.
(2)
However, as the commenters' noted, EPA has already promulgated certain management standards for some exclusions based on the case-specific characteristics of the hazardous secondary material or recycling process (
(3)
However, based on comments we received, we understand that using the same notification requirement developed for hazardous secondary materials that were recently excluded in 2008 presents challenges when used for hazardous secondary materials that have been excluded for many decades. For example, the notification provision in 40 CFR 260.42 requires information on types of hazardous secondary materials (using hazardous waste codes) and quantities of these materials. However, as noted by commenters, this is difficult, for example, for scrap metal recyclers, because these facilities currently do not distinguish between non-hazardous scrap metal and scrap metal that would be hazardous waste were it not for the exclusion. Requiring notification in this instance may infer that scrap metal recyclers would be required to extensively test their hazardous secondary material in order to determine if the scrap metal was hazardous, and therefore excluded, and to determine which hazardous waste code to report on the form. Additionally, the notification presents challenges for facilities with numerous closed-loop recycling processes because the form would require these facilities to specifically list each process. We also understand commenters' concerns regarding the burden on states that must review and process these forms. Because the majority of the pre-2008 exclusions and exemptions do not include notification requirements, EPA does not have precise data regarding how many facilities are recycling hazardous secondary materials under these exclusions and exemptions. This lack of data hinders EPA's ability to more precisely estimate the burden on states and whether such a requirement would be environmentally beneficial. Therefore, EPA is deferring action on applying notification to the pre-2008 exclusions and exemptions until we can more adequately address commenters' concerns.
Commenters stated that EPA lacks jurisdiction to add requirements to materials that are not solid wastes and, if EPA is changing its position on the waste status of these materials, the Agency must provide a reasoned explanation for disregarding facts and circumstances that underlay the prior policy. Some commenters argued that EPA had evaluated each of the hazardous secondary materials at the time it promulgated the exclusions and thus, EPA must demonstrate why management in compliance with the existing conditions constitutes discard.
EPA disagrees with comments that argue that EPA does not have the authority to require conditions for hazardous secondary materials being recycled. As noted in the Background section of this preamble, in the Safe Food court case, the D.C. Circuit upheld an EPA rule that excludes from the definition of solid waste hazardous secondary materials used to make zinc fertilizers, and the fertilizers themselves, as long as the recycled materials meet certain handling, storage, and reporting conditions and the resulting fertilizers have concentration levels for certain hazardous constituents that fall below specified thresholds. It is therefore within EPA's discretion to determine conditions under which a hazardous secondary material is not being discarded and thus may be excluded from hazardous waste regulation.
However, EPA agrees that more information is needed before determining whether adding requirements to the pre-2008 exclusions and exemptions is needed to make them more enforceable. EPA's request for comment on this issue was based on conclusions drawn from the environmental problems study, which evaluated over 200 damage cases, and the
Many commenters argued that EPA's record does not support this regulatory change and that EPA failed to conduct a thorough analysis. For example, commenters argued that EPA's record needs to show that significant environmental problems have been caused by a meaningful number of facilities operating in compliance with the pre-2008 exclusions and exemptions. These commenters noted that many of the damage cases involve civil or criminal violations, indicating that the problem was non-compliance with the regulations, not from a lack of regulations. Thus, these commenters believed that EPA already has sufficient authority to enforce against bad actors. Additionally, EPA's own analysis only links damage cases to just seven exclusions, yet EPA is considering adding conditions to 32 exclusions.
EPA disagrees with comments that argue that since the environmental problems study includes cases with civil or criminal violations, this demonstrates existing regulations are adequately enforceable. On the contrary, the frequency of violations in the damage cases may demonstrate the need for greater, not less, oversight, particularly in the case of sham recycling, where discard via over-accumulation of material can become a major problem before the Agency can take action.
For example, in one of the damage cases, a facility whose primary business was mixing electric arc furnace dust (K061) with agricultural lime for sale as a micronutrient lost its customers and could not sell its product. However, the facility continued to accept K061, and, after approximately seven months, the facility had accepted over 60,000 tons of this hazardous waste and stored it on the ground in piles up to 30 feet high, with no prospect of it being used to produce a product and, thus, legitimately recycled. While the initial recycling of the K061 hazardous waste was legitimate, when the facility failed to produce a product that was actually sold, the K061 could no longer be considered legitimately recycled, resulting in significant risk to human health and the environment from discarded material. Therefore EPA is codifying a general probation against sham recycling, in order to prevent such cases from occurring.
However, in the case of containment and notification, EPA agrees with commenters and has determined that additional information about the underlying causes of the damage cases would be useful to determine whether additional regulatory action is needed, or whether the problems should be addressed through some other method, such as outreach and compliance assistance.
EPA also understands commenters' concerns regarding the limitations of the correlation analysis, including the fact that EPA could only correlate with confidence 7 of the 32 recycling exclusions and exemptions to damage cases in its environmental problems study. The analysis was hampered by a lack of precision in the data. For example, because notification is not required for the majority of pre-2008 exclusions and exemptions, we can only conservatively identify damage case correlations where the type of hazardous secondary material very clearly matches to an exclusion (
Although it is difficult to assign specific damage cases to certain exclusions, we note that in the environmental problems study only nine of the damage cases were operating under a RCRA permit at the time of damage. Thus, EPA can generally conclude that the majority of the damage cases were operating outside of RCRA, inferring these facilities were either operating illegally or likely operating under an exclusion, exemption, alternate standard, or no standard at all. In the case of containment and notification, EPA has determined that additional information about the underlying causes of the damage cases would be useful to determine whether additional regulatory action is needed, or whether the problems should be addressed through some other method, such as outreach and compliance assistance.
Industry commenters argued that they did not have adequate time to comment. Further, they had no forewarning of the changes EPA was considering before the proposal was issued. EPA's request for comment did not involve prior discussions with stakeholders, as is typical when developing proposed rules. Moreover, this issue was not part of the 2008 DSW final rulemaking, Sierra Club's petition, or part of EPA's settlement agreement with the Sierra Club. Many commenters urged EPA to meet with industry representatives in order to better understand industry practices.
Commenters also argued that if EPA codified a notification as a condition of the exclusions, thousands of facilities would be at risk of losing the exclusion due to failure to notify, which could result in civil fines and solid waste management fees for the facility. These commenters stated that notification as a condition in this instance presents acute risks to facilities operating under an exclusion, because, up to this point, these facilities have not been required to comply with the RCRA hazardous waste requirements. Thus, commenters said many facilities may fail to notify simply because they were unaware the regulations had changed.
EPA understands commenters that argued they did not have adequate time to comment on applying the contained standard and notification for pre-2008 recycling exclusions and exemptions. Contrary to the legitimate recycling standard, which has been EPA's long-standing policy and has been articulated in the 1989 Lowrance memo and various
Some commenters, including environmental organizations, supported adding conditions to the pre-2008 exclusions and exemptions, arguing that EPA must adopt the regulatory conditions, including the legitimacy standard in light of the risks posed by the 32 recycling exclusions and the historical pattern of environmental contamination at facilities that are exempt from RCRA. These commenters believed that the prevention of one damage case every two years would more than offset the compliance costs. Some state commenters also supported adding conditions to the pre-2008 exclusions and exemptions, although some argued that EPA should exempt certain types of hazardous secondary materials, like scrap metal, spent lead-acid batteries, closed-loop recycling, and printed circuit boards, from the requirements.
Other commenters supported adding notification to the pre-2008 recycling provisions. These commenters argued that states may not be aware of excluded activities unless they are occurring at facilities that are otherwise regulated or are the subject of a citizen complaint. These commenters said that notifications would allow states to periodically evaluate these facilities to ensure they are meeting the terms of the exclusion and that, while the initial burden on states might be quite heavy, the long-term benefit of knowing where these facilities are justifies this burden.
EPA acknowledges commenters who support additional requirements for the pre-2008 exclusions and exemptions in order to avoid potential damage cases and protect human health and the environment. However, based on the comments received, the EPA has determined that it does not have enough information to determine if adding requirements to the existing pre-2008 recycling exclusions and exemptions would be the most effective method for addressing the damage cases or whether a more targeted approach would be more appropriate.
Regarding legitimacy, in lieu of adding a legitimacy requirement to the specific recycling exclusions, EPA is instead codifying a general statement in § 261.2(g) that makes it clear that a hazardous secondary material found to be sham recycled is discarded and thus, is a solid waste. EPA finds that this will give implementing agencies a clear regulatory statement that can be used to enforce against sham recyclers, yet not require the vast majority of recyclers that are performing legitimate recycling under the pre-2008 exclusions and exemptions to revisit previously-made legitimacy determinations. EPA also notes that today's final legitimacy standard includes modifications that address implementation concerns for certain hazardous secondary materials and processes, such as scrap metal and closed-loop recycling. For more information on these modifications, please see the other sections on legitimacy in this preamble.
Regarding the contained standard and notification, for reasons stated above, the Agency is deferring action on applying the contained standard and notification to the pre-2008 exclusions and exemptions in order to consider how best to implement these conditions in the context of the case-specific circumstances of the regulatory provisions.
Under section 3006 of RCRA, EPA may authorize a qualified state to administer and enforce a hazardous waste program within the state in lieu of the federal program, and to issue and enforce permits in the state. A state may receive authorization by following the approval process described in 40 CFR 271.21 (see 40 CFR part 271 for the overall standards and requirements for authorization). EPA continues to have independent authority to bring enforcement actions under RCRA sections 3007, 3008, 3013, and 7003. An authorized state also continues to have independent authority to bring enforcement actions under state law.
After a state receives initial authorization, new federal requirements promulgated under RCRA authority existing prior to the 1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in that state until the state adopts and receives authorization for equivalent state requirements. In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), new federal requirements and prohibitions promulgated pursuant to HSWA provisions take effect in authorized states at the same time that they take effect in unauthorized states. As such, EPA carries out the HSWA requirements and prohibitions in authorized states, including the issuance of new permits implementing those requirements, until EPA authorizes the state to do so.
Authorized states are required to modify their programs only when EPA enacts federal requirements that are more stringent or broader in scope than the existing federal requirements. RCRA section 3009 allows the states to impose standards more stringent than those in the federal program (see also 40 FR 271.1(i)). Therefore, authorized states are not required to adopt federal regulations, both HSWA and non-HSWA, that are considered less stringent than previous federal regulations or that narrow the scope of the RCRA program and Subtitle C hazardous waste regulations would continue to apply in those states.
The regulations finalized in today's notice are not promulgated under the authority of HSWA. Thus, the standards will be applicable on the effective date only in those states that do not have final authorization of their base RCRA programs. Moreover, authorized states are required to modify their programs only when EPA promulgates federal regulations that are more stringent or broader in scope than the authorized state regulations. For those changes that are less stringent, states are not required to modify their program. This is a result of section 3009 of RCRA, which allows states to impose more stringent regulations than the federal program.
The revisions to the definition of solid waste being finalized today are more stringent than those promulgated under the 2008 DSW final rule, so those states which have adopted the 2008 DSW final rule would be required to modify their programs. However, when compared to the federal program that was in place when the 2008 DSW final rule was finalized, many of today's revisions would be considered less stringent (
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it is likely to “raise novel legal or policy issues” under section 3(f)(4) of Executive Order 12866. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action.
In addition, EPA prepared an analysis of the potential costs and benefits associated with this action. This analysis is contained in EPA's background document for today's action titled “Regulatory Impact Analysis” (RIA). A copy of the analysis is available in the docket for this action and the analysis is briefly summarized here. EPA estimates that the 2014 DSW rule will result in a future annual costs savings of $1.0 to $2.0 million per year, depending on discount rate used, as compared to a baseline of full implementation of the 2008 DSW rule. This cost savings is based on the assumption that same number of states would adopt the 2014 DSW rule as would adopt the 2008 DSW rule. However, because the 2014 DSW rule addresses many of the concerns states raised about the 2008 DSW rule, there is a potential that more states would adopt it, thus increasing the upper bound of annual cost savings to $17.5 million to $59 million per year.
In addition to estimating the cost savings of today's action, the RIA also provides qualitative (
The information collection requirements in this rule will be submitted for approval to the Office of Management and Budget (OMB) under the
Several information requirements established for this action are voluntary to the extent that the conditional exclusions being finalized today are voluntary and represent an overall reduction in burden, as compared with the alternative information requirements associated with managing hazardous secondary materials as hazardous waste. The information requirements help ensure that: (1) Entities operating under today's rule are held accountable to the applicable requirements; and (2) inspectors can verify compliance with the conditions of today's rule when needed.
EPA estimates the total annual burden to respondents under the new paperwork requirements as a result of the final rule changes to be 34,454 hours and $68,071 in operations and maintenance costs ($2,378,111, including labor costs), respectively. Burden and costs continuing from the 2008 ICR No. 2310.02 include 2,034 hours and $299 in operations and maintenance ($144,235, including labor costs), respectively. The total annual burden and operations and maintenance costs are estimated at 36,488 hours and $68,370 in operations and maintenance costs, or 109,464 hours and $205,110 in operations and maintenance over three years. Burden is defined at 5 CFR 1320.3(b).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business based on small size standards defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201 for 27 NAICS codes with the largest number of affected entities; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The small entities directly regulated by this final rule are primarily small businesses in the manufacturing sector (
Although this final rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this rule on small entities. Comments were requested, and the comment period was extended once until October 20, 2011. In September 2011, EPA held two public meetings to accept public comment on the proposal in Philadelphia, PA and in Chicago, IL.
This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for state, local, and Tribal governments, in the aggregate, or the private sector in any one year. EPA's RIA for today's action estimates the maximum state government share of future direct costs for complying with today's action is $0.3 million per year. No impacts are expected for local or Tribal governments. Because these direct costs are well below the $100 million annual direct cost threshold, this rule is not subject to the requirements of sections 202 or 205 of UMRA.
This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.
The RIA estimates that the state government share of future annualized direct costs is $0.3 million per year. No added costs are expected for local or tribal governments. Because these direct costs are well below the $25 million Federalism test threshold, EPA concludes that Executive Order 13132 does not apply to today's action.
Subject to the Executive Order 13175 (65 FR 67249, November 9, 2000), EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the regulation and develops a tribal summary impact statement.
EPA has concluded that this action may have tribal implications. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. Under the RCRA statute, the federal government implements hazardous waste regulations directly in Indian Country. Thus, the changes to the hazardous waste regulations promulgated today would not impose any direct costs on tribal governments. In addition, currently there are no facilities operating on land controlled by tribal governments, but if such facilities did locate in such areas, then this action could have tribal implications, to the extent that the rule is intended to address potential adverse impacts of the 2008 DSW final rule.
EPA consulted with tribal officials early in the process of developing this regulation to ensure they had an opportunity for meaningful and timely input into its development. Specifically, tribal representatives participated in the public meetings EPA held on the draft environmental justice methodology and noted that the Bureau of Census data used as the basis for the demographic analysis may undercount indigenous populations. EPA also sent a consultation letter to all federally recognized tribes requesting a consultation on the 2011 DSW proposal and held a tribes-only live webinar on August 11, 2011 to allow tribal official the opportunity to ask questions and offer input into the proposed rule. EPA did not receive formal comments from tribal officials during the consultation process.
This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in EO 12866, and because the Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are contained in the
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. EPA does not expect today's final rule to adversely affect the supply, distribution, or use of energy.
On the contrary, EPA expects that at least two elements of today's final rule may provide future annual energy savings by (a) inducing under today's solvent remanufacturing exclusion larger future annual quantities of industrial processing solvents which get recycled rather than disposed (
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this final rule will not have disproportionately high and adverse human health or
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Reporting and recordkeeping requirements.
Environmental protection, Hazardous waste, Incorporation by reference, Recycling, Solid waste.
For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:
42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6935, 6937, 6938, 6939 and 6974.
The additions read as follows:
(1) The unit is in good condition, with no leaks or other continuing or intermittent unpermitted releases of the hazardous secondary materials to the environment, and is designed, as appropriate for the hazardous secondary materials, to prevent releases of hazardous secondary materials to the environment. Unpermitted releases are releases that are not covered by a permit (such as a permit to discharge to water or air) and may include, but are not limited to, releases through surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures;
(2) The unit is properly labeled or otherwise has a system (such as a log) to immediately identify the hazardous secondary materials in the unit; and
(3) The unit holds hazardous secondary materials that are compatible with other hazardous secondary materials placed in the unit and is compatible with the materials used to construct the unit and addresses any potential risks of fires or explosions.
(4) Hazardous secondary materials in units that meet the applicable requirements of 40 CFR parts 264 or 265 are presumptively contained.
(f) Hazardous secondary materials that are transferred for reclamation under § 261.4(a)(24) and are managed at a verified reclamation facility or intermediate facility where the management of the hazardous secondary materials is not addressed under a RCRA Part B permit or interim status standards.
(c) The Administrator may grant requests for a variance from classifying as a solid waste those hazardous secondary materials that have been partially reclaimed, but must be reclaimed further before recovery is completed, if the partial reclamation has produced a commodity-like material. A determination that a partially-reclaimed material for which the variance is sought is commodity-like will be based on whether the hazardous secondary material is legitimately recycled as specified in § 260.43 of this part and on whether all of the following decision criteria are satisfied:
(1) Whether the degree of partial reclamation the material has undergone is substantial as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste;
(2) Whether the partially-reclaimed material has sufficient economic value that it will be purchased for further reclamation;
(3) Whether the partially-reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials which is used in subsequent production steps;
(4) Whether there is a market for the partially-reclaimed material as demonstrated by known customer(s) who are further reclaiming the material (
(5) Whether the partially-reclaimed material is handled to minimize loss.
(d) The Administrator may grant requests for a variance from classifying as a solid waste those hazardous secondary materials that are transferred for reclamation under § 261.4(a)(24) and are managed at a verified reclamation facility or intermediate facility where the management of the hazardous secondary materials is not addressed under a RCRA Part B permit or interim status standards. The Administrator's decision will be based on the following criteria:
(1) The reclamation facility or intermediate facility must demonstrate that the reclamation process for the hazardous secondary materials is legitimate pursuant to § 260.43;
(2) The reclamation facility or intermediate facility must satisfy the financial assurance condition in § 261.4(a)(24)(vi)(F);
(3) The reclamation facility or intermediate facility must not be subject to a formal enforcement action in the previous three years and not be classified as a significant non-complier under RCRA Subtitle C, or must provide credible evidence that the facility will manage the hazardous secondary materials properly. Credible evidence may include a demonstration that the facility has taken remedial steps to address the violations and prevent future violations, or that the violations are not relevant to the proper management of the hazardous secondary materials;
(4) The intermediate or reclamation facility must have the equipment and trained personnel needed to safely manage the hazardous secondary material and must meet emergency preparedness and response requirements under 40 CFR part 261 subpart M;
(5) If residuals are generated from the reclamation of the excluded hazardous secondary materials, the reclamation facility must have the permits required (if any) to manage the residuals, have a contract with an appropriately permitted facility to dispose of the residuals or present credible evidence that the residuals will be managed in a manner that is protective of human health and the environment, and
(6) The intermediate or reclamation facility must address the potential for risk to proximate populations from unpermitted releases of the hazardous secondary material to the environment (
(c) In the event of a change in circumstances that affect how a hazardous secondary material meets the relevant criteria contained in § 260.31, § 260.32, or § 260.34 upon which a variance or non-waste determination has been based, the applicant must send a description of the change in circumstances to the Administrator. The Administrator may issue a determination that the hazardous secondary material continues to meet the relevant criteria of the variance or non-waste determination or may require the facility to re-apply for the variance or non-waste determination.
(d) Variances and non-waste determinations shall be effective for a fixed term not to exceed ten years. No later than six months prior to the end of this term, facilities must re-apply for a variance or non-waste determination. If a facility re-applies for a variance or non-waste determination within six months, the facility may continue to operate under an expired variance or non-waste determination until receiving a decision on their re-application from the Administrator.
(e) Facilities receiving a variance or non-waste determination must provide notification as required by § 260.42 of this chapter.
(b) * * *
(4) Other relevant factors that demonstrate the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under § 261.2 or § 261.4 of this chapter.
(c) * * *
(5) Other relevant factors that demonstrate the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under § 261.2 or § 261.4 of this chapter.
The revisions read as follows:
(a) Facilities managing hazardous secondary materials under §§ 260.30, 261.4(a)(23), 261.4(a)(24), or 261.4(a)(27) must send a notification prior to operating under the regulatory provision and by March 1 of each even-numbered year thereafter to the Regional Administrator using EPA Form 8700-12 that includes the following information:
(4) The regulation under which the hazardous secondary materials will be managed;
(5) When the facility began or expects to begin managing the hazardous secondary materials in accordance with the regulation;
(6) A list of hazardous secondary materials that will be managed according to the regulation (reported as the EPA hazardous waste numbers that would apply if the hazardous secondary materials were managed as hazardous wastes);
(7) For each hazardous secondary material, whether the hazardous secondary material, or any portion thereof, will be managed in a land-based unit;
(8) The quantity of each hazardous secondary material to be managed annually; and
(9) The certification (included in EPA Form 8700-12) signed and dated by an authorized representative of the facility.
(b) If a facility managing hazardous secondary materials has submitted a notification, but then subsequently stops managing hazardous secondary materials in accordance with the regulation(s) listed above, the facility must notify the Regional Administrator within thirty (30) days using EPA Form 8700-12. For purposes of this section, a facility has stopped managing hazardous secondary materials if the facility no longer generates, manages and/or reclaims hazardous secondary materials under the regulation(s) above and does not expect to manage any amount of hazardous secondary materials for at least 1 year.
The revision reads as follows:
(a) Recycling of hazardous secondary materials for the purpose of the exclusions or exemptions from the hazardous waste regulations must be legitimate. Hazardous secondary material that is not legitimately recycled is discarded material and is a solid waste. In determining if their recycling is legitimate, persons must address all the requirements of this paragraph.
(1) Legitimate recycling must involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process. The hazardous secondary material provides a useful contribution if it:
(i) Contributes valuable ingredients to a product or intermediate; or
(ii) Replaces a catalyst or carrier in the recycling process; or
(iii) Is the source of a valuable constituent recovered in the recycling process; or
(iv) Is recovered or regenerated by the recycling process; or
(v) Is used as an effective substitute for a commercial product.
(2) The recycling process must produce a valuable product or intermediate. The product or intermediate is valuable if it is:
(i) Sold to a third party; or
(ii) Used by the recycler or the generator as an effective substitute for a commercial product or as an ingredient or intermediate in an industrial process.
(3) The generator and the recycler must manage the hazardous secondary material as a valuable commodity when it is under their control. Where there is an analogous raw material, the hazardous secondary material must be managed, at a minimum, in a manner consistent with the management of the raw material or in an equally protective manner. Where there is no analogous raw material, the hazardous secondary material must be contained. Hazardous secondary materials that are released to the environment and are not recovered immediately are discarded.
(4) The product of the recycling process must be comparable to a legitimate product or intermediate:
(i) Where there is an analogous product or intermediate, the product of the recycling process is comparable to a legitimate product or intermediate if:
(A) The product of the recycling process does not exhibit a hazardous characteristic (as defined in part 261 subpart C) that analogous products do not exhibit, and
(B) The concentrations of any hazardous constituents found in appendix VIII of part 261 of this chapter that are in the product or intermediate are at levels that are comparable to or lower than those found in analogous products or at levels that meet widely-recognized commodity standards and specifications, in the case where the commodity standards and specifications include levels that specifically address those hazardous constituents.
(ii) Where there is no analogous product, the product of the recycling process is comparable to a legitimate product or intermediate if:
(A) The product of the recycling process is a commodity that meets widely recognized commodity standards and specifications (
(B) The hazardous secondary materials being recycled are returned to the original process or processes from which they were generated to be reused (
(iii) If the product of the recycling process has levels of hazardous constituents that are not comparable to or unable to be compared to a legitimate product or intermediate per paragraph (a)(4)(i) or (ii) of this section, the recycling still may be shown to be legitimate, if it meets the following specified requirements. The person performing the recycling must conduct the necessary assessment and prepare documentation showing why the recycling is, in fact, still legitimate. The recycling can be shown to be legitimate based on lack of exposure from toxics in the product, lack of the bioavailability of the toxics in the product, or other relevant considerations which show that the recycled product does not contain levels of hazardous constituents that pose a significant human health or environmental risk. The documentation must include a certification statement that the recycling is legitimate and must be maintained on-site for three years after the recycling operation has ceased. The person performing the recycling must notify the Regional Administrator of this activity using EPA Form 8700-12.
42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 6938.
(c) * * *
(4) A material is “reclaimed” if it is processed to recover a usable product, or if it is regenerated. Examples are recovery of lead values from spent batteries and regeneration of spent solvents. In addition, for purposes of § 261.4(a)(23) and (24), smelting, melting, and refining furnaces are considered to be solely engaged in metals reclamation if the metal recovery from the hazardous secondary materials meets the same requirements as those specified for metals recovery from hazardous waste found in § 266.100(d)(1) through (3) of this chapter, and if the residuals meet the requirements specified in § 266.112 of this chapter.
(8) A material is “accumulated speculatively” if it is accumulated before being recycled. A material is not accumulated speculatively, however, if the person accumulating it can show that the material is potentially recyclable and has a feasible means of being recycled; and that—during the calendar year (commencing on January 1)—the amount of material that is recycled, or transferred to a different site for recycling, equals at least 75 percent by weight or volume of the amount of that material accumulated at the beginning of the period. Materials must be placed in a storage unit with a label indicating the first date that the material began to be accumulated. If placing a label on the storage unit is not practicable, the accumulation period must be documented through an inventory log or other appropriate method. In calculating the percentage of turnover, the 75 percent requirement is to be applied to each material of the same type (
The revisions and additions text reads as follows:
(b) * * *
(3) Accumulated, stored, or treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned or incinerated; or
(4) Sham recycled, as explained in paragraph (g) of this section.
(c) * * *
(3)
(4) * * *
(g)
The revisions and addition as follows:
(23) Hazardous secondary material generated and legitimately reclaimed within the United States or its territories and under the control of the generator, provided that the material complies with paragraphs (a)(23)(i) and (ii) of this section:
(i)(A) The hazardous secondary material is generated and reclaimed at the generating facility (for purposes of this definition, generating facility means all contiguous property owned, leased, or otherwise controlled by the hazardous secondary material generator); or
(B) The hazardous secondary material is generated and reclaimed at different facilities, if the reclaiming facility is controlled by the generator or if both the generating facility and the reclaiming facility are controlled by a person as defined in § 260.10 of this chapter, and if the generator provides one of the following certifications: “on behalf of [insert generator facility name], I certify that this facility will send the indicated hazardous secondary material to [insert reclaimer facility name], which is controlled by [insert generator facility name] and that [insert name of either facility] has acknowledged full responsibility for the safe management of the hazardous secondary material,” or “on behalf of [insert generator facility name], I certify that this facility will send the indicated hazardous secondary material to [insert reclaimer facility name], that both facilities are under common control, and that [insert name of either facility] has acknowledged full responsibility for the safe management of the hazardous secondary material.” For purposes of this paragraph, “control” means 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 as defined in § 260.10 shall not be deemed to “control” such facilities. The generating and receiving facilities must both maintain at their facilities for no less than three years records of hazardous secondary materials sent or received under this exclusion. In both cases, the records must contain the name of the transporter, the date of the shipment, and the type and quantity of the hazardous secondary material shipped or received under the exclusion. These requirements may be satisfied by routine business records (
(C) The hazardous secondary material is generated pursuant to a written contract between a tolling contractor and a toll manufacturer and is reclaimed by the tolling contractor, if the tolling contractor certifies the following: “On behalf of [insert tolling contractor name], I certify that [insert tolling contractor name] has a written contract with [insert toll manufacturer name] to manufacture [insert name of product or intermediate] which is made from specified unused materials, and that [insert tolling contractor name] will reclaim the hazardous secondary materials generated during this manufacture. On behalf of [insert tolling contractor name], I also certify that [insert tolling contractor name] retains ownership of, and responsibility for, the
(ii)(A) The hazardous secondary material is contained as defined in § 260.10 of this chapter. A hazardous secondary material released to the environment is discarded and a solid waste unless it is immediately recovered for the purpose of reclamation. Hazardous secondary material managed in a unit with leaks or other continuing or intermittent unpermitted releases is discarded and a solid waste.
(B) The hazardous secondary material is not speculatively accumulated, as defined in § 261.1(c)(8).
(C) Notice is provided as required by § 260.42 of this chapter.
(D) The material is not otherwise subject to material-specific management conditions under paragraph (a) of this section when reclaimed, and it is not a spent lead-acid battery (see § 266.80 and § 273.2 of this chapter).
(E) Persons performing the recycling of hazardous secondary materials under this exclusion must maintain documentation of their legitimacy determination on-site. Documentation must be a written description of how the recycling meets all four factors in § 260.43(a). Documentation must be maintained for three years after the recycling operation has ceased.
(F) The emergency preparedness and response requirements found in subpart M of this part are met.
(24) Hazardous secondary material that is generated and then transferred to a verified reclamation facility for the purpose of reclamation is not a solid waste, provided that:
(i) The material is not speculatively accumulated, as defined in § 261.1(c)(8);
(ii) The material is not handled by any person or facility other than the hazardous secondary material generator, the transporter, an intermediate facility or a reclaimer, and, while in transport, is not stored for more than 10 days at a transfer facility, as defined in § 260.10 of this chapter, and is packaged according to applicable Department of Transportation regulations at 49 CFR parts 173, 178, and 179 while in transport;
(iii) The material is not otherwise subject to material-specific management conditions under this paragraph (a) when reclaimed, and it is not a spent lead-acid battery (see §§ 266.80 and 273.2 of this chapter);
(iv) The reclamation of the material is legitimate, as specified under § 260.43 of this chapter;
(v) The hazardous secondary material generator satisfies all of the following conditions:
(A) The material must be contained as defined in § 260.10. A hazardous secondary material released to the environment is discarded and a solid waste unless it is immediately recovered for the purpose of recycling. Hazardous secondary material managed in a unit with leaks or other continuing releases is discarded and a solid waste.
(B) The hazardous secondary material generator must arrange for transport of hazardous secondary materials to a verified reclamation facility (or facilities) in the United States. A verified reclamation facility is a facility that has been granted a variance under § 260.31(d), or a reclamation facility where the management of the hazardous secondary materials is addressed under a RCRA Part B permit or interim status standards. If the hazardous secondary material will be passing through an intermediate facility, the intermediate facility must have been granted a variance under § 260.31(d) or the management of the hazardous secondary materials at that facility must be addressed under a RCRA Part B permit or interim status standards, and the hazardous secondary material generator must make contractual arrangements with the intermediate facility to ensure that the hazardous secondary material is sent to the reclamation facility identified by the hazardous secondary material generator.
(C) The hazardous secondary material generator must maintain at the generating facility for no less than three (3) years records of all off-site shipments of hazardous secondary materials. For each shipment, these records must, at a minimum, contain the following information:
(
(
(
(D) The hazardous secondary material generator must maintain at the generating facility for no less than three (3) years confirmations of receipt from each reclaimer and, if applicable, each intermediate facility for all off-site shipments of hazardous secondary materials. Confirmations of receipt must include the name and address of the reclaimer (or intermediate facility), the type and quantity of the hazardous secondary materials received and the date which the hazardous secondary materials were received. This requirement may be satisfied by routine business records (
(E) The hazardous secondary material generator must comply with the emergency preparedness and response conditions in subpart M of this part.
(vi) Reclaimers of hazardous secondary material excluded from regulation under this exclusion and intermediate facilities as defined in § 260.10 of this chapter satisfy all of the following conditions:
(A) The reclaimer and intermediate facility must maintain at its facility for no less than three (3) years records of all shipments of hazardous secondary material that were received at the facility and, if applicable, for all shipments of hazardous secondary materials that were received and subsequently sent off-site from the facility for further reclamation. For each shipment, these records must at a minimum contain the following information:
(
(
(
(
(B) The intermediate facility must send the hazardous secondary material to the reclaimer(s) designated by the hazardous secondary materials generator.
(C) The reclaimer and intermediate facility must send to the hazardous secondary material generator confirmations of receipt for all off-site shipments of hazardous secondary materials. Confirmations of receipt must include the name and address of the reclaimer (or intermediate facility), the type and quantity of the hazardous secondary materials received and the date which the hazardous secondary materials were received. This requirement may be satisfied by routine business records (
(D) The reclaimer and intermediate facility must manage the hazardous secondary material in a manner that is at least as protective as that employed for analogous raw material and must be contained. An “analogous raw material” is a raw material for which a hazardous secondary material is a substitute and serves the same function and has similar physical and chemical properties as the hazardous secondary material.
(E) Any residuals that are generated from reclamation processes will be managed in a manner that is protective of human health and the environment. If any residuals exhibit a hazardous characteristic according to subpart C of 40 CFR part 261, or if they themselves are specifically listed in subpart D of 40 CFR part 261, such residuals are hazardous wastes and must be managed in accordance with the applicable requirements of 40 CFR parts 260 through 272.
(F) The reclaimer and intermediate facility have financial assurance as required under subpart H of 40 CFR part 261,
(G) The reclaimer and intermediate facility have been granted a variance under § 260.31(d) or have a RCRA Part B permit or interim status standards that address the management of the hazardous secondary materials; and
(vii) All persons claiming the exclusion under this paragraph (a)(24) of this section provide notification as required under § 260.42 of this chapter.
(27) Hazardous secondary material that is generated and then transferred to another person for the purpose of remanufacturing is not a solid waste, provided that:
(i) The hazardous secondary material consists of one or more of the following spent solvents: Toluene, xylenes, ethylbenzene, 1,2,4-trimethylbenzene, chlorobenzene, n-hexane, cyclohexane, methyl tert-butyl ether, acetonitrile, chloroform, chloromethane, dichloromethane, methyl isobutyl ketone, NN-dimethylformamide, tetrahydrofuran, n-butyl alcohol, ethanol, and/or methanol;
(ii) The hazardous secondary material originated from using one or more of the solvents listed in paragraph (a)(27)(i) of this section in a commercial grade for reacting, extracting, purifying, or blending chemicals (or for rinsing out the process lines associated with these functions) in the pharmaceutical manufacturing (NAICS 325412), basic organic chemical manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS 325211), and/or the paints and coatings manufacturing sectors (NAICS 325510).
(iii) The hazardous secondary material generator sends the hazardous secondary material spent solvents listed in paragraph (a)(27)(i) of this section to a remanufacturer in the pharmaceutical manufacturing (NAICS 325412), basic organic chemical manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS 325211), and/or the paints and coatings manufacturing sectors (NAICS 325510).
(iv) After remanufacturing one or more of the solvents listed in paragraph (a)(27)(i) of this section, the use of the remanufactured solvent shall be limited to reacting, extracting, purifying, or blending chemicals (or for rinsing out the process lines associated with these functions) in the pharmaceutical manufacturing (NAICS 325412), basic organic chemical manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS 325211), and the paints and coatings manufacturing sectors (NAICS 325510) or to using them as ingredients in a product. These allowed uses correspond to chemical functional uses enumerated under the Chemical Data Reporting Rule of the Toxic Substances Control Act (40 CFR parts 704, 710-711), including Industrial Function Codes U015 (solvents consumed in a reaction to produce other chemicals) and U030 (solvents become part of the mixture);
(v) After remanufacturing one or more of the solvents listed in paragraph (a)(27)(i) of this section, the use of the remanufactured solvent does not involve cleaning or degreasing oil, grease, or similar material from textiles, glassware, metal surfaces, or other articles. (These disallowed continuing uses correspond to chemical functional uses in Industrial Function Code U029 under the Chemical Data Reporting Rule of the Toxics Substances Control Act.); and
(vi) Both the hazardous secondary material generator and the remanufacturer must:
(A) Notify EPA or the State Director, if the state is authorized for the program, and update the notification every two years per 40 CFR 260.42;
(B) Develop and maintain an up-to-date remanufacturing plan which identifies:
(
(
(
(
(
(C) Maintain records of shipments and confirmations of receipts for a period of three years from the dates of the shipments;
(D) Prior to remanufacturing, store the hazardous spent solvents in tanks or containers that meet technical standards found in subparts I and J of 40 CFR part 261, with the tanks and containers being labeled or otherwise having an immediately available record of the material being stored;
(E) During remanufacturing, and during storage of the hazardous secondary materials prior to remanufacturing, the remanufacturer certifies that the remanufacturing equipment, vents, and tanks are equipped with and are operating air emission controls in compliance with the appropriate Clean Air Act regulations under 40 CFR part 60, part 61 or part 63; or, absent such Clean Air Act standards for the particular operation or piece of equipment covered by the remanufacturing exclusion, are in compliance with the appropriate standards in 40 CFR part 261 subparts AA (vents), BB (equipment) and CC (tank storage); and
(F) Meet the requirements prohibiting speculative accumulation per 40 CFR 261.1(c)(8).
The additions read as follows:
This subpart applies to hazardous secondary materials excluded under the remanufacturing exclusion at § 261.4(a)(27) and stored in containers.
If a container holding hazardous secondary material is not in good condition (
The container must be made of or lined with materials which will not react with, and are otherwise compatible with, the hazardous secondary material to be stored, so that the ability of the container to contain the material is not impaired.
(a) A container holding hazardous secondary material must always be closed during storage, except when it is necessary to add or remove the hazardous secondary material.
(b) A container holding hazardous secondary material must not be opened, handled, or stored in a manner which may rupture the container or cause it to leak.
(a) Container storage areas must have a containment system that is designed and operated in accordance with paragraph (b) of this section.
(b) A containment system must be designed and operated as follows:
(1) A base must underlie the containers which is free of cracks or gaps and is sufficiently impervious to contain leaks, spills, and accumulated precipitation until the collected material is detected and removed;
(2) The base must be sloped or the containment system must be otherwise
(3) The containment system must have sufficient capacity to contain 10% of the volume of containers or the volume of the largest container, whichever is greater.
(4) Run-on into the containment system must be prevented unless the collection system has sufficient excess capacity in addition to that required in paragraph (b)(3) of this section to contain any run-on which might enter the system; and
(5) Spilled or leaked material and accumulated precipitation must be removed from the sump or collection area in as timely a manner as is necessary to prevent overflow of the collection system.
Containers holding ignitable or reactive hazardous secondary material must be located at least 15 meters (50 feet) from the facility's property line.
(a) Incompatible materials must not be placed in the same container.
(b) Hazardous secondary material must not be placed in an unwashed container that previously held an incompatible material.
(c) A storage container holding a hazardous secondary material that is incompatible with any other materials stored nearby must be separated from the other materials or protected from them by means of a dike, berm, wall, or other device.
The remanufacturer or other person that stores or treats the hazardous secondary material shall manage all hazardous secondary material placed in a container in accordance with the applicable requirements of subparts AA, BB, and CC of this part.
(a) The requirements of this subpart apply to tank systems for storing or treating hazardous secondary material excluded under the remanufacturing exclusion at § 261.4(a)(27).
(b) Tank systems, including sumps, as defined in § 260.10, that serve as part of a secondary containment system to collect or contain releases of hazardous secondary materials are exempted from the requirements in § 261.193(a).
(a) Tank systems must meet the secondary containment requirements of § 261.193, or the remanufacturer or other person that handles the hazardous secondary material must determine that the tank system is not leaking or is unfit for use. Except as provided in paragraph (c) of this section, a written assessment reviewed and certified by a qualified Professional Engineer must be kept on file at the remanufacturer's facility or other facility that stores or treats the hazardous secondary material that attests to the tank system's integrity.
(b) This assessment must determine that the tank system is adequately designed and has sufficient structural strength and compatibility with the material(s) to be stored or treated, to ensure that it will not collapse, rupture, or fail. At a minimum, this assessment must consider the following:
(1) Design standard(s), if available, according to which the tank and ancillary equipment were constructed;
(2) Hazardous characteristics of the material(s) that have been and will be handled;
(3) Existing corrosion protection measures;
(4) Documented age of the tank system, if available (otherwise, an estimate of the age); and
(5) Results of a leak test, internal inspection, or other tank integrity examination such that:
(i) For non-enterable underground tanks, the assessment must include a leak test that is capable of taking into account the effects of temperature variations, tank end deflection, vapor pockets, and high water table effects, and
(ii) For other than non-enterable underground tanks and for ancillary equipment, this assessment must include either a leak test, as described above, or other integrity examination that is certified by a qualified Professional Engineer that addresses cracks, leaks, corrosion, and erosion.
The practices described in the American Petroleum Institute (API) Publication, Guide for Inspection of Refinery Equipment, Chapter XIII, “Atmospheric and Low-Pressure Storage Tanks,” 4th edition, 1981, may be used, where applicable, as guidelines in conducting other than a leak test.
(c) If, as a result of the assessment conducted in accordance with paragraph (a) of this section, a tank system is found to be leaking or unfit for use, the remanufacturer or other person that stores or treats the hazardous secondary material must comply with the requirements of § 261.196.
(a) Secondary containment systems must be:
(1) Designed, installed, and operated to prevent any migration of materials or accumulated liquid out of the system to the soil, ground water, or surface water at any time during the use of the tank system; and
(2) Capable of detecting and collecting releases and accumulated liquids until the collected material is removed.
If the collected material is a hazardous waste under part 261 of this chapter, it is subject to management as a hazardous waste in accordance with all applicable requirements of parts 262 through 265, 266, and 268 of this chapter. If the collected material is discharged through a point source to waters of the United States, it is subject to the requirements of sections 301, 304, and 402 of the Clean Water Act, as amended. If discharged to a Publicly Owned Treatment Works (POTW), it is subject to the requirements of section 307 of the Clean Water Act, as amended. If the collected material is released to the environment, it may be subject to the reporting requirements of 40 CFR part 302.
(b) To meet the requirements of paragraph (a) of this section, secondary containment systems must be at a minimum:
(1) Constructed of or lined with materials that are compatible with the materials(s) to be placed in the tank system and must have sufficient strength and thickness to prevent failure owing to pressure gradients (including static head and external hydrological forces), physical contact with the material to which it is exposed, climatic conditions, and the stress of daily operation (including stresses from nearby vehicular traffic);
(2) Placed on a foundation or base capable of providing support to the secondary containment system, resistance to pressure gradients above and below the system, and capable of preventing failure due to settlement, compression, or uplift;
(3) Provided with a leak-detection system that is designed and operated so that it will detect the failure of either the primary or secondary containment structure or the presence of any release of hazardous secondary material or accumulated liquid in the secondary containment system at the earliest practicable time; and
(4) Sloped or otherwise designed or operated to drain and remove liquids
(c) Secondary containment for tanks must include one or more of the following devices:
(1) A liner (external to the tank);
(2) A vault; or
(3) A double-walled tank.
(d) In addition to the requirements of paragraphs (a), (b), and (c) of this section, secondary containment systems must satisfy the following requirements:
(1) External liner systems must be:
(i) Designed or operated to contain 100 percent of the capacity of the largest tank within its boundary;
(ii) Designed or operated to prevent run-on or infiltration of precipitation into the secondary containment system unless the collection system has sufficient excess capacity to contain run-on or infiltration. Such additional capacity must be sufficient to contain precipitation from a 25-year, 24-hour rainfall event.
(iii) Free of cracks or gaps; and
(iv) Designed and installed to surround the tank completely and to cover all surrounding earth likely to come into contact with the material if the material is released from the tank(s) (
(2) Vault systems must be:
(i) Designed or operated to contain 100 percent of the capacity of the largest tank within its boundary;
(ii) Designed or operated to prevent run-on or infiltration of precipitation into the secondary containment system unless the collection system has sufficient excess capacity to contain run-on or infiltration. Such additional capacity must be sufficient to contain precipitation from a 25-year, 24-hour rainfall event;
(iii) Constructed with chemical-resistant water stops in place at all joints (if any);
(iv) Provided with an impermeable interior coating or lining that is compatible with the stored material and that will prevent migration of material into the concrete;
(v) Provided with a means to protect against the formation of and ignition of vapors within the vault, if the material being stored or treated is ignitable or reactive; and
(vi) Provided with an exterior moisture barrier or be otherwise designed or operated to prevent migration of moisture into the vault if the vault is subject to hydraulic pressure.
(3) Double-walled tanks must be:
(i) Designed as an integral structure (
(ii) Protected, if constructed of metal, from both corrosion of the primary tank interior and of the external surface of the outer shell; and
(iii) Provided with a built-in continuous leak detection system capable of detecting a release within 24 hours, or at the earliest practicable time.
The provisions outlined in the Steel Tank Institute's (STI) “Standard for Dual Wall Underground Steel Storage Tanks” may be used as guidelines for aspects of the design of underground steel double-walled tanks.
(e) [Reserved]
(f) Ancillary equipment must be provided with secondary containment (
(1) Aboveground piping (exclusive of flanges, joints, valves, and other connections) that are visually inspected for leaks on a daily basis;
(2) Welded flanges, welded joints, and welded connections that are visually inspected for leaks on a daily basis;
(3) Sealless or magnetic coupling pumps and sealless valves that are visually inspected for leaks on a daily basis; and
(4) Pressurized aboveground piping systems with automatic shut-off devices (
(a) Hazardous secondary materials or treatment reagents must not be placed in a tank system if they could cause the tank, its ancillary equipment, or the containment system to rupture, leak, corrode, or otherwise fail.
(b) The remanufacturer or other person that stores or treats the hazardous secondary material must use appropriate controls and practices to prevent spills and overflows from tank or containment systems. These include at a minimum:
(1) Spill prevention controls (
(2) Overfill prevention controls (
(3) Maintenance of sufficient freeboard in uncovered tanks to prevent overtopping by wave or wind action or by precipitation.
(c) The remanufacturer or other person that stores or treats the hazardous secondary material must comply with the requirements of § 261.196 of this subpart if a leak or spill occurs in the tank system.
A tank system or secondary containment system from which there has been a leak or spill, or which is unfit for use, must be removed from service immediately, and the remanufacturer or other person that stores or treats the hazardous secondary material must satisfy the following requirements:
(a)
(b)
(2) If the material released was to a secondary containment system, all released materials must be removed within 24 hours or in as timely a manner as is possible to prevent harm to human health and the environment.
(c)
(1) Prevent further migration of the leak or spill to soils or surface water; and
(2) Remove, and properly dispose of, any visible contamination of the soil or surface water.
(d)
(2) A leak or spill of hazardous secondary material is exempted from the requirements of this paragraph if it is:
(i) Less than or equal to a quantity of 1 pound, and
(ii) Immediately contained and cleaned up.
(3) Within 30 days of detection of a release to the environment, a report containing the following information must be submitted to the Regional Administrator:
(i) Likely route of migration of the release;
(ii) Characteristics of the surrounding soil (soil composition, geology, hydrogeology, climate);
(iii) Results of any monitoring or sampling conducted in connection with the release (if available). If sampling or monitoring data relating to the release are not available within 30 days, these data must be submitted to the Regional Administrator as soon as they become available.
(iv) Proximity to downgradient drinking water, surface water, and populated areas; and
(v) Description of response actions taken or planned.
(e)
(2) If the cause of the release was a spill that has not damaged the integrity of the system, the remanufacturer or other person that stores or treats the hazardous secondary material may return the system to service as soon as the released material is removed and repairs, if necessary, are made.
(3) If the cause of the release was a leak from the primary tank system into the secondary containment system, the system must be repaired prior to returning the tank system to service.
(4) If the source of the release was a leak to the environment from a component of a tank system without secondary containment, the remanufacturer or other person that stores or treats the hazardous secondary material must provide the component of the system from which the leak occurred with secondary containment that satisfies the requirements of § 261.193 before it can be returned to service, unless the source of the leak is an aboveground portion of a tank system that can be inspected visually. If the source is an aboveground component that can be inspected visually, the component must be repaired and may be returned to service without secondary containment as long as the requirements of paragraph (f) of this section are satisfied. Additionally, if a leak has occurred in any portion of a tank system component that is not readily accessible for visual inspection (
(f)
The Regional Administrator may, on the basis of any information received that there is or has been a release of hazardous secondary material or hazardous constituents into the environment, issue an order under RCRA section 7003(a) requiring corrective action or such other response as deemed necessary to protect human health or the environment.
40 CFR part 302 may require the owner or operator to notify the National Response Center of certain releases.
Hazardous secondary material stored in units more than 90 days after the unit ceases to operate under the remanufacturing exclusion at 40 CFR 261.4(a)(27) or otherwise ceases to be operated for manufacturing, or for storage of a product or a raw material, then becomes subject to regulation as hazardous waste under parts 261 through 266, 268, 270, 271, and 124 of this chapter, as applicable.
(a) Ignitable or reactive material must not be placed in tank systems, unless the material is stored or treated in such a way that it is protected from any material or conditions that may cause the material to ignite or react.
(b) The remanufacturer or other person that stores or treats hazardous secondary material which is ignitable or reactive must store or treat the hazardous secondary material in a tank that is in compliance with the requirements for the maintenance of protective distances between the material management area and any public ways, streets, alleys, or an adjoining property line that can be built upon as required in Tables 2-1 through 2-6 of the National Fire Protection Association's “Flammable and Combustible Liquids Code,” (1977 or 1981), (incorporated by reference, see § 260.11).
(a) Incompatible materials must not be placed in the same tank system.
(b) Hazardous secondary material must not be placed in a tank system that has not been decontaminated and that previously held an incompatible material.
The remanufacturer or other person that stores or treats the hazardous secondary material shall manage all hazardous secondary material placed in a tank in accordance with the applicable requirements of subparts AA, BB, and CC of this part.
The requirements of this subpart apply to those areas of an entity managing hazardous secondary materials excluded under § 261.4(a)(23) and/or (24) where hazardous secondary materials are generated or accumulated on site.
(a) A generator of hazardous secondary material, or an intermediate or reclamation facility operating under a verified recycler variance under § 260.31(d), that accumulates 6000 kg or
(b) A generator of hazardous secondary material, or an intermediate or reclamation facility operating under a verified recycler variance under § 260.31(d) that accumulates more than 6000 kg of hazardous secondary material at any time must comply with §§ 261.410 and 261.420.
(a)
(b)
(1) An internal communications or alarm system capable of providing immediate emergency instruction (voice or signal) to facility personnel;
(2) A device, such as a telephone (immediately available at the scene of operations) or a hand-held two-way radio, capable of summoning emergency assistance from local police departments, fire departments, or state or local emergency response teams;
(3) Portable fire extinguishers, fire control equipment (including special extinguishing equipment, such as that using foam, inert gas, or dry chemicals), spill control equipment, and decontamination equipment; and
(4) Water at adequate volume and pressure to supply water hose streams, or foam producing equipment, or automatic sprinklers, or water spray systems.
(c)
(d)
(2) If there is ever just one employee on the premises while the facility is operating, he must have immediate access to a device, such as a telephone (immediately available at the scene of operation) or a hand-held two-way radio, capable of summoning external emergency assistance,
(e)
(f)
(i) Arrangements to familiarize police, fire departments, and emergency response teams with the layout of the facility, properties of hazardous secondary material handled at the facility and associated hazards, places where facility personnel would normally be working, entrances to roads inside the facility, and possible evacuation routes;
(ii) Where more than one police and fire department might respond to an emergency, agreements designating primary emergency authority to a specific police and a specific fire department, and agreements with any others to provide support to the primary emergency authority;
(iii) Agreements with state emergency response teams, emergency response contractors, and equipment suppliers; and
(iv) Arrangements to familiarize local hospitals with the properties of hazardous waste handled at the facility and the types of injuries or illnesses which could result from fires, explosions, or releases at the facility.
(2) Where state or local authorities decline to enter into such arrangements, the hazardous secondary material generator or an intermediate or reclamation facility operating under a verified recycler variance under § 260.31(d) must document the refusal in the operating record.
A generator or an intermediate or reclamation facility operating under a verified recycler variance under § 260.31(d) that generates or accumulates 6000 kg or less of hazardous secondary material must comply with the following requirements:
(a) At all times there must be at least one employee either on the premises or on call (
(b) The generator or intermediate or reclamation facility operating under a verified recycler variance under § 260.31(d) must post the following information next to the telephone:
(1) The name and telephone number of the emergency coordinator;
(2) Location of fire extinguishers and spill control material, and, if present, fire alarm; and
(3) The telephone number of the fire department, unless the facility has a direct alarm.
(c) The generator or an intermediate or reclamation facility operating under a verified recycler variance under § 260.31(d) must ensure that all employees are thoroughly familiar with proper waste handling and emergency procedures, relevant to their responsibilities during normal facility operations and emergencies;
(d) The emergency coordinator or his designee must respond to any emergencies that arise. The applicable responses are as follows:
(1) In the event of a fire, call the fire department or attempt to extinguish it using a fire extinguisher;
(2) In the event of a spill, contain the flow of hazardous waste to the extent possible, and as soon as is practicable, clean up the hazardous waste and any contaminated materials or soil;
(3) In the event of a fire, explosion, or other release which could threaten human health outside the facility or when the generator or an intermediate or reclamation facility operating under a verified recycler variance under
(i) The name, address, and U.S. EPA Identification Number of the facility;
(ii) Date, time, and type of incident (
(iii) Quantity and type of hazardous waste involved in the incident;
(iv) Extent of injuries, if any; and
(v) Estimated quantity and disposition of recovered materials, if any.
A generator or an intermediate or reclamation facility operating under a verified recycler variance under § 260.31(d) that generates or accumulates more than 6000 kg of hazardous secondary material must comply with the following requirements:
(a)
(2) The provisions of the plan must be carried out immediately whenever there is a fire, explosion, or release of hazardous secondary material or hazardous secondary material constituents which could threaten human health or the environment.
(b)
(2) If the generator or an intermediate or reclamation facility operating under a verified recycler variance under § 260.31(d) accumulating more than 6000 kg of hazardous secondary material has already prepared a Spill Prevention, Control, and Countermeasures (SPCC) Plan in accordance with part 112 of this chapter, or some other emergency or contingency plan, he need only amend that plan to incorporate hazardous waste management provisions that are sufficient to comply with the requirements of this part. The hazardous secondary material generator or an intermediate or reclamation facility operating under a verified recycler variance under § 260.31(d) may develop one contingency plan which meets all regulatory requirements. EPA recommends that the plan be based on the National Response Team's Integrated Contingency Plan Guidance (“One Plan”). When modifications are made to non-RCRA provisions in an integrated contingency plan, the changes do not trigger the need for a RCRA permit modification.
(3) The plan must describe arrangements agreed to by local police departments, fire departments, hospitals, contractors, and State and local emergency response teams to coordinate emergency services, pursuant to § 262.410(f).
(4) The plan must list names, addresses, and phone numbers (office and home) of all persons qualified to act as emergency coordinator (see paragraph (e) of this section), and this list must be kept up-to-date. Where more than one person is listed, one must be named as primary emergency coordinator and others must be listed in the order in which they will assume responsibility as alternates.
(5) The plan must include a list of all emergency equipment at the facility (such as fire extinguishing systems, spill control equipment, communications and alarm systems (internal and external), and decontamination equipment), where this equipment is required. This list must be kept up to date. In addition, the plan must include the location and a physical description of each item on the list, and a brief outline of its capabilities.
(6) The plan must include an evacuation plan for facility personnel where there is a possibility that evacuation could be necessary. This plan must describe signal(s) to be used to begin evacuation, evacuation routes, and alternate evacuation routes (in cases where the primary routes could be blocked by releases of hazardous waste or fires).
(c
(1) Maintained at the facility; and
(2) Submitted to all local police departments, fire departments, hospitals, and State and local emergency response teams that may be called upon to provide emergency services.
(d
(1) Applicable regulations are revised;
(2) The plan fails in an emergency;
(3) The facility changes—in its design, construction, operation, maintenance, or other circumstances—in a way that materially increases the potential for fires, explosions, or releases of hazardous secondary material or hazardous secondary material constituents, or changes the response necessary in an emergency;
(4) The list of emergency coordinators changes; or
(5) The list of emergency equipment changes.
(e
(f)
(i) Activate internal facility alarms or communication systems, where applicable, to notify all facility personnel; and
(ii) Notify appropriate State or local agencies with designated response roles if their help is needed.
(2) Whenever there is a release, fire, or explosion, the emergency coordinator must immediately identify the character, exact source, amount, and
(3) Concurrently, the emergency coordinator must assess possible hazards to human health or the environment that may result from the release, fire, or explosion. This assessment must consider both direct and indirect effects of the release, fire, or explosion (
(4) If the emergency coordinator determines that the facility has had a release, fire, or explosion which could threaten human health, or the environment, outside the facility, he must report his findings as follows:
(i) If his assessment indicates that evacuation of local areas may be advisable, he must immediately notify appropriate local authorities. He must be available to help appropriate officials decide whether local areas should be evacuated; and
(ii) He must immediately notify either the government official designated as the on-scene coordinator for that geographical area, or the National Response Center (using their 24-hour toll free number 800/424-8802). The report must include:
(A) Name and telephone number of reporter;
(B) Name and address of facility;
(C) Time and type of incident (
(D) Name and quantity of material(s) involved, to the extent known;
(E) The extent of injuries, if any; and
(F) The possible hazards to human health, or the environment, outside the facility.
(5) During an emergency, the emergency coordinator must take all reasonable measures necessary to ensure that fires, explosions, and releases do not occur, recur, or spread to other hazardous secondary material at the facility. These measures must include, where applicable, stopping processes and operations, collecting and containing released material, and removing or isolating containers.
(6) If the facility stops operations in response to a fire, explosion or release, the emergency coordinator must monitor for leaks, pressure buildup, gas generation, or ruptures in valves, pipes, or other equipment, wherever this is appropriate.
(7) Immediately after an emergency, the emergency coordinator must provide for treating, storing, or disposing of recovered secondary material, contaminated soil or surface water, or any other material that results from a release, fire, or explosion at the facility. Unless the hazardous secondary material generator can demonstrate, in accordance with § 261.3(c) or (d) of this chapter, that the recovered material is not a hazardous waste, the owner or operator becomes a generator of hazardous waste and must manage it in accordance with all applicable requirements of parts 262, 263, and 265 of this chapter.
(8) The emergency coordinator must ensure that, in the affected area(s) of the facility:
(i) No secondary material that may be incompatible with the released material is treated, stored, or disposed of until cleanup procedures are completed; and
(ii) All emergency equipment listed in the contingency plan is cleaned and fit for its intended use before operations are resumed.
(9) The hazardous secondary material generator must note in the operating record the time, date, and details of any incident that requires implementing the contingency plan. Within 15 days after the incident, he must submit a written report on the incident to the Regional Administrator. The report must include:
(i) Name, address, and telephone number of the hazardous secondary material generator;
(ii) Name, address, and telephone number of the facility;
(iii) Date, time, and type of incident (
(iv) Name and quantity of material(s) involved;
(v) The extent of injuries, if any;
(vi) An assessment of actual or potential hazards to human health or the environment, where this is applicable; and
(vii) Estimated quantity and disposition of recovered material that resulted from the incident.
The regulations in this subpart apply to process vents associated with distillation, fractionation, thin-film evaporation, solvent extraction, or air or stream stripping operations that manage hazardous secondary materials excluded under the remanufacturing exclusion at § 261.4(a)(27) with concentrations of at least 10 ppmw, unless the process vents are equipped with operating air emission controls in accordance with the requirements of an applicable Clean Air Act regulation codified under 40 CFR part 60, part 61, or part 63.
As used in this subpart, all terms not defined herein shall have the meaning given them in the Resource Conservation and Recovery Act and parts 260-266.
(a) The remanufacturer or other person that stores or treats hazardous secondary materials in hazardous secondary material management units with process vents associated with distillation, fractionation, thin-film evaporation, solvent extraction, or air or steam stripping operations managing hazardous secondary material with organic concentrations of at least 10 ppmw shall either:
(1) Reduce total organic emissions from all affected process vents at the facility below 1.4 kg/h (3 lb/h) and 2.8 Mg/yr (3.1 tons/yr), or
(2) Reduce, by use of a control device, total organic emissions from all affected
(b) If the remanufacturer or other person that stores or treats the hazardous secondary material installs a closed-vent system and control device to comply with the provisions of paragraph (a) of this section the closed-vent system and control device must meet the requirements of § 261.1033.
(c) Determinations of vent emissions and emission reductions or total organic compound concentrations achieved by add-on control devices may be based on engineering calculations or performance tests. If performance tests are used to determine vent emissions, emission reductions, or total organic compound concentrations achieved by add-on control devices, the performance tests must conform with the requirements of § 261.1034(c).
(d) When a remanufacturer or other person that stores or treats the hazardous secondary material and the Regional Administrator do not agree on determinations of vent emissions and/or emission reductions or total organic compound concentrations achieved by add-on control devices based on engineering calculations, the procedures in § 261.1034(c) shall be used to resolve the disagreement.
(a)(1) The remanufacturer or other person that stores or treats the hazardous secondary materials in hazardous secondary material management units using closed-vent systems and control devices used to comply with provisions of this part shall comply with the provisions of this section.
(2) [Reserved]
(b) A control device involving vapor recovery (
(c) An enclosed combustion device (
(d)(1) A flare shall be designed for and operated with no visible emissions as determined by the methods specified in paragraph (e)(1) of this section, except for periods not to exceed a total of 5 minutes during any 2 consecutive hours.
(2) A flare shall be operated with a flame present at all times, as determined by the methods specified in paragraph (f)(2)(iii) of this section.
(3) A flare shall be used only if the net heating value of the gas being combusted is 11.2 MJ/scm (300 Btu/scf) or greater if the flare is steam-assisted or air-assisted; or if the net heating value of the gas being combusted is 7.45 MJ/scm (200 Btu/scf) or greater if the flare is nonassisted. The net heating value of the gas being combusted shall be determined by the methods specified in paragraph (e)(2) of this section.
(4)(i) A steam-assisted or nonassisted flare shall be designed for and operated with an exit velocity, as determined by the methods specified in paragraph (e)(3) of this section, less than 18.3 m/s (60 ft/s), except as provided in paragraphs (d)(4)(ii) and (iii) of this section.
(ii) A steam-assisted or nonassisted flare designed for and operated with an exit velocity, as determined by the methods specified in paragraph (e)(3) of this section, equal to or greater than 18.3 m/s (60 ft/s) but less than 122 m/s (400 ft/s) is allowed if the net heating value of the gas being combusted is greater than 37.3 MJ/scm (1,000 Btu/scf).
(iii) A steam-assisted or nonassisted flare designed for and operated with an exit velocity, as determined by the methods specified in paragraph (e)(3) of this section, less than the velocity, V
(5) An air-assisted flare shall be designed and operated with an exit velocity less than the velocity, V
(6) A flare used to comply with this section shall be steam-assisted, air-assisted, or nonassisted.
(e)(1) Reference Method 22 in 40 CFR part 60 shall be used to determine the compliance of a flare with the visible emission provisions of this subpart. The observation period is 2 hours and shall be used according to Method 22.
(2) The net heating value of the gas being combusted in a flare shall be calculated using the following equation:
(3) The actual exit velocity of a flare shall be determined by dividing the volumetric flow rate (in units of standard temperature and pressure), as determined by Reference Methods 2, 2A, 2C, or 2D in 40 CFR part 60 as appropriate, by the unobstructed (free) cross-sectional area of the flare tip.
(4) The maximum allowed velocity in m/s, V
(5) The maximum allowed velocity in m/s, V
(f) The remanufacturer or other person that stores or treats the hazardous secondary material shall monitor and inspect each control device required to comply with this section to ensure proper operation and maintenance of the control device by implementing the following requirements:
(1) Install, calibrate, maintain, and operate according to the manufacturer's specifications a flow indicator that provides a record of vent stream flow
(2) Install, calibrate, maintain, and operate according to the manufacturer's specifications a device to continuously monitor control device operation as specified below:
(i) For a thermal vapor incinerator, a temperature monitoring device equipped with a continuous recorder. The device shall have an accuracy of ±1 percent of the temperature being monitored in °C or ±0.5 °C, whichever is greater. The temperature sensor shall be installed at a location in the combustion chamber downstream of the combustion zone.
(ii) For a catalytic vapor incinerator, a temperature monitoring device equipped with a continuous recorder. The device shall be capable of monitoring temperature at two locations and have an accuracy of ±1 percent of the temperature being monitored in °C or ±0.5 °C, whichever is greater. One temperature sensor shall be installed in the vent stream at the nearest feasible point to the catalyst bed inlet and a second temperature sensor shall be installed in the vent stream at the nearest feasible point to the catalyst bed outlet.
(iii) For a flare, a heat sensing monitoring device equipped with a continuous recorder that indicates the continuous ignition of the pilot flame.
(iv) For a boiler or process heater having a design heat input capacity less than 44 MW, a temperature monitoring device equipped with a continuous recorder. The device shall have an accuracy of ±1 percent of the temperature being monitored in °C or ±0.5 °C, whichever is greater. The temperature sensor shall be installed at a location in the furnace downstream of the combustion zone.
(v) For a boiler or process heater having a design heat input capacity greater than or equal to 44 MW, a monitoring device equipped with a continuous recorder to measure a parameter(s) that indicates good combustion operating practices are being used.
(vi) For a condenser, either:
(A) A monitoring device equipped with a continuous recorder to measure the concentration level of the organic compounds in the exhaust vent stream from the condenser, or
(B) A temperature monitoring device equipped with a continuous recorder. The device shall be capable of monitoring temperature with an accuracy of ±1 percent of the temperature being monitored in degrees Celsius (°C) or ±0.5 °C, whichever is greater. The temperature sensor shall be installed at a location in the exhaust vent stream from the condenser exit (
(vii) For a carbon adsorption system that regenerates the carbon bed directly in the control device such as a fixed-bed carbon adsorber, either:
(A) A monitoring device equipped with a continuous recorder to measure the concentration level of the organic compounds in the exhaust vent stream from the carbon bed, or
(B) A monitoring device equipped with a continuous recorder to measure a parameter that indicates the carbon bed is regenerated on a regular, predetermined time cycle.
(3) Inspect the readings from each monitoring device required by paragraphs (f)(1) and (2) of this section at least once each operating day to check control device operation and, if necessary, immediately implement the corrective measures necessary to ensure the control device operates in compliance with the requirements of this section.
(g) A remanufacturer or other person that stores or treats hazardous secondary material in a hazardous secondary material management unit using a carbon adsorption system such as a fixed-bed carbon adsorber that regenerates the carbon bed directly onsite in the control device shall replace the existing carbon in the control device with fresh carbon at a regular, predetermined time interval that is no longer than the carbon service life established as a requirement of § 261.1035(b)(4)(iii)(F).
(h) A remanufacturer or other person that stores or treats hazardous secondary material in a hazardous secondary material management unit using a carbon adsorption system such as a carbon canister that does not regenerate the carbon bed directly onsite in the control device shall replace the existing carbon in the control device with fresh carbon on a regular basis by using one of the following procedures:
(1) Monitor the concentration level of the organic compounds in the exhaust vent stream from the carbon adsorption system on a regular schedule, and replace the existing carbon with fresh carbon immediately when carbon breakthrough is indicated. The monitoring frequency shall be daily or at an interval no greater than 20 percent of the time required to consume the total carbon working capacity established as a requirement of § 261.1035(b)(4)(iii)(G), whichever is longer.
(2) Replace the existing carbon with fresh carbon at a regular, predetermined time interval that is less than the design carbon replacement interval established as a requirement of § 261.1035(b)(4)(iii)(G).
(i) An alternative operational or process parameter may be monitored if it can be demonstrated that another parameter will ensure that the control device is operated in conformance with these standards and the control device's design specifications.
(j) A remanufacturer or other person that stores or treats hazardous secondary material at an affected facility seeking to comply with the provisions of this part by using a control device other than a thermal vapor incinerator, catalytic vapor incinerator, flare, boiler, process heater, condenser, or carbon adsorption system is required to develop documentation including sufficient information to describe the control device operation and identify the process parameter or parameters that indicate proper operation and maintenance of the control device.
(k) A closed-vent system shall meet either of the following design requirements:
(1) A closed-vent system shall be designed to operate with no detectable emissions, as indicated by an instrument reading of less than 500 ppmv above background as determined by the procedure in § 261.1034(b) of this subpart, and by visual inspections; or
(2) A closed-vent system shall be designed to operate at a pressure below atmospheric pressure. The system shall be equipped with at least one pressure gauge or other pressure measurement device that can be read from a readily accessible location to verify that negative pressure is being maintained in the closed-vent system when the control device is operating.
(l) The remanufacturer or other person that stores or treats the hazardous secondary material shall monitor and inspect each closed-vent system required to comply with this section to ensure proper operation and maintenance of the closed-vent system by implementing the following requirements:
(1) Each closed-vent system that is used to comply with paragraph (k)(1) of this section shall be inspected and monitored in accordance with the following requirements:
(i) An initial leak detection monitoring of the closed-vent system shall be conducted by the remanufacturer or other person that stores or treats the hazardous secondary
(ii) After initial leak detection monitoring required in paragraph (l)(1)(i) of this section, the remanufacturer or other person that stores or treats the hazardous secondary material shall inspect and monitor the closed-vent system as follows:
(A) Closed-vent system joints, seams, or other connections that are permanently or semi-permanently sealed (
(B) Closed-vent system components or connections other than those specified in paragraph (l)(1)(ii)(A) of this section shall be monitored annually and at other times as requested by the Regional Administrator, except as provided for in paragraph (o) of this section, using the procedures specified in § 261.1034(b) of this subpart to demonstrate that the components or connections operate with no detectable emissions.
(iii) In the event that a defect or leak is detected, the remanufacturer or other person that stores or treats the hazardous secondary material shall repair the defect or leak in accordance with the requirements of paragraph (l)(3) of this section.
(iv) The remanufacturer or other person that stores or treats the hazardous secondary material shall maintain a record of the inspection and monitoring in accordance with the requirements specified in § 261.1035 of this subpart.
(2) Each closed-vent system that is used to comply with paragraph (k)(2) of this section shall be inspected and monitored in accordance with the following requirements:
(i) The closed-vent system shall be visually inspected by the remanufacturer or other person that stores or treats the hazardous secondary material to check for defects that could result in air pollutant emissions. Defects include, but are not limited to, visible cracks, holes, or gaps in ductwork or piping or loose connections.
(ii) The remanufacturer or other person that stores or treats the hazardous secondary material shall perform an initial inspection of the closed-vent system on or before the date that the system becomes subject to this section. Thereafter, the remanufacturer or other person that stores or treats the hazardous secondary material shall perform the inspections at least once every year.
(iii) In the event that a defect or leak is detected, the remanufacturer or other person that stores or treats the hazardous secondary material shall repair the defect in accordance with the requirements of paragraph (l)(3) of this section.
(iv) The remanufacturer or other person that stores or treats the hazardous secondary material shall maintain a record of the inspection and monitoring in accordance with the requirements specified in § 261.1035 of this subpart.
(3) The remanufacturer or other person that stores or treats the hazardous secondary material shall repair all detected defects as follows:
(i) Detectable emissions, as indicated by visual inspection, or by an instrument reading greater than 500 ppmv above background, shall be controlled as soon as practicable, but not later than 15 calendar days after the emission is detected, except as provided for in paragraph (l)(3)(iii) of this section.
(ii) A first attempt at repair shall be made no later than 5 calendar days after the emission is detected.
(iii) Delay of repair of a closed-vent system for which leaks have been detected is allowed if the repair is technically infeasible without a process unit shutdown, or if the remanufacturer or other person that stores or treats the hazardous secondary material determines that emissions resulting from immediate repair would be greater than the fugitive emissions likely to result from delay of repair. Repair of such equipment shall be completed by the end of the next process unit shutdown.
(iv) The remanufacturer or other person that stores or treats the hazardous secondary material shall maintain a record of the defect repair in accordance with the requirements specified in § 261.1035 of this subpart.
(m) Closed-vent systems and control devices used to comply with provisions of this subpart shall be operated at all times when emissions may be vented to them.
(n) The owner or operator using a carbon adsorption system to control air pollutant emissions shall document that all carbon that is a hazardous waste and that is removed from the control device is managed in one of the following manners, regardless of the average volatile organic concentration of the carbon:
(1) Regenerated or reactivated in a thermal treatment unit that meets one of the following:
(i) The owner or operator of the unit has been issued a final permit under 40 CFR part 270 which implements the requirements of subpart X of this part; or
(ii) The unit is equipped with and operating air emission controls in accordance with the applicable requirements of subparts AA and CC of either this part or of 40 CFR part 265; or
(iii) The unit is equipped with and operating air emission controls in accordance with a national emission standard for hazardous air pollutants under 40 CFR part 61 or 40 CFR part 63.
(2) Incinerated in a hazardous waste incinerator for which the owner or operator either:
(i) Has been issued a final permit under 40 CFR part 270 which implements the requirements of subpart O of this part; or
(ii) Has designed and operates the incinerator in accordance with the interim status requirements of 40 CFR part 265, subpart O.
(3) Burned in a boiler or industrial furnace for which the owner or operator either:
(i) Has been issued a final permit under 40 CFR part 270 which implements the requirements of 40 CFR part 266, subpart H; or
(ii) Has designed and operates the boiler or industrial furnace in accordance with the interim status requirements of 40 CFR part 266, subpart H.
(o) Any components of a closed-vent system that are designated, as described in § 261.1035(c)(9) of this subpart, as unsafe to monitor are exempt from the requirements of paragraph (l)(1)(ii)(B) of this section if:
(1) The remanufacturer or other person that stores or treats the hazardous secondary material in a hazardous secondary material management unit using a closed-vent
(2) The remanufacturer or other person that stores or treats the hazardous secondary material in a hazardous secondary material management unit using a closed-vent system adheres to a written plan that requires monitoring the closed-vent system components using the procedure specified in paragraph (l)(1)(ii)(B) of this section as frequently as practicable during safe-to-monitor times.
(a) Each remanufacturer or other person that stores or treats the hazardous secondary material subject to the provisions of this subpart shall comply with the test methods and procedural requirements provided in this section.
(b) When a closed-vent system is tested for compliance with no detectable emissions, as required in § 261.1033(l) of this subpart, the test shall comply with the following requirements:
(1) Monitoring shall comply with Reference Method 21 in 40 CFR part 60.
(2) The detection instrument shall meet the performance criteria of Reference Method 21.
(3) The instrument shall be calibrated before use on each day of its use by the procedures specified in Reference Method 21.
(4) Calibration gases shall be:
(i) Zero air (less than 10 ppm of hydrocarbon in air).
(ii) A mixture of methane or n-hexane and air at a concentration of approximately, but less than, 10,000 ppm methane or n-hexane.
(5) The background level shall be determined as set forth in Reference Method 21.
(6) The instrument probe shall be traversed around all potential leak interfaces as close to the interface as possible as described in Reference Method 21.
(7) The arithmetic difference between the maximum concentration indicated by the instrument and the background level is compared with 500 ppm for determining compliance.
(c) Performance tests to determine compliance with § 261.1032(a) and with the total organic compound concentration limit of § 261.1033(c) shall comply with the following:
(1) Performance tests to determine total organic compound concentrations and mass flow rates entering and exiting control devices shall be conducted and data reduced in accordance with the following reference methods and calculation procedures:
(i) Method 2 in 40 CFR part 60 for velocity and volumetric flow rate.
(ii) Method 18 or Method 25A in 40 CFR part 60, appendix A, for organic content. If Method 25A is used, the organic HAP used as the calibration gas must be the single organic HAP representing the largest percent by volume of the emissions. The use of Method 25A is acceptable if the response from the high-level calibration gas is at least 20 times the standard deviation of the response from the zero calibration gas when the instrument is zeroed on the most sensitive scale.
(iii) Each performance test shall consist of three separate runs; each run conducted for at least 1 hour under the conditions that exist when the hazardous secondary material management unit is operating at the highest load or capacity level reasonably expected to occur. For the purpose of determining total organic compound concentrations and mass flow rates, the average of results of all runs shall apply. The average shall be computed on a time-weighted basis.
(iv) Total organic mass flow rates shall be determined by the following equation:
(A) For sources utilizing Method 18.
(B) For sources utilizing Method 25A.
(v) The annual total organic emission rate shall be determined by the following equation:
(vi) Total organic emissions from all affected process vents at the facility shall be determined by summing the hourly total organic mass emission rates (E
(2) The remanufacturer or other person that stores or treats the hazardous secondary material shall record such process information as may be necessary to determine the conditions of the performance tests. Operations during periods of startup, shutdown, and malfunction shall not constitute representative conditions for the purpose of a performance test.
(3) The remanufacturer or other person that stores or treats the hazardous secondary material at an affected facility shall provide, or cause to be provided, performance testing facilities as follows:
(i) Sampling ports adequate for the test methods specified in paragraph (c)(1) of this section.
(ii) Safe sampling platform(s).
(iii) Safe access to sampling platform(s).
(iv) Utilities for sampling and testing equipment.
(4) For the purpose of making compliance determinations, the time-weighted average of the results of the three runs shall apply. In the event that a sample is accidentally lost or conditions occur in which one of the
(d) To show that a process vent associated with a hazardous secondary material distillation, fractionation, thin-film evaporation, solvent extraction, or air or steam stripping operation is not subject to the requirements of this subpart, the remanufacturer or other person that stores or treats the hazardous secondary material must make an initial determination that the time-weighted, annual average total organic concentration of the material managed by the hazardous secondary material management unit is less than 10 ppmw using one of the following two methods:
(1) Direct measurement of the organic concentration of the material using the following procedures:
(i) The remanufacturer or other person that stores or treats the hazardous secondary material must take a minimum of four grab samples of material for each material stream managed in the affected unit under process conditions expected to cause the maximum material organic concentration.
(ii) For material generated onsite, the grab samples must be collected at a point before the material is exposed to the atmosphere such as in an enclosed pipe or other closed system that is used to transfer the material after generation to the first affected distillation, fractionation, thin-film evaporation, solvent extraction, or air or steam stripping operation. For material generated offsite, the grab samples must be collected at the inlet to the first material management unit that receives the material provided the material has been transferred to the facility in a closed system such as a tank truck and the material is not diluted or mixed with other material.
(iii) Each sample shall be analyzed and the total organic concentration of the sample shall be computed using Method 9060A (incorporated by reference under 40 CFR 260.11) of “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication SW-846, or analyzed for its individual organic constituents.
(iv) The arithmetic mean of the results of the analyses of the four samples shall apply for each material stream managed in the unit in determining the time-weighted, annual average total organic concentration of the material. The time-weighted average is to be calculated using the annual quantity of each material stream processed and the mean organic concentration of each material stream managed in the unit.
(2) Using knowledge of the material to determine that its total organic concentration is less than 10 ppmw. Documentation of the material determination is required. Examples of documentation that shall be used to support a determination under this provision include production process information documenting that no organic compounds are used, information that the material is generated by a process that is identical to a process at the same or another facility that has previously been demonstrated by direct measurement to generate a material stream having a total organic content less than 10 ppmw, or prior speciation analysis results on the same material stream where it can also be documented that no process changes have occurred since that analysis that could affect the material total organic concentration.
(e) The determination that distillation, fractionation, thin-film evaporation, solvent extraction, or air or steam stripping operations manage hazardous secondary materials with time-weighted, annual average total organic concentrations less than 10 ppmw shall be made as follows:
(1) By the effective date that the facility becomes subject to the provisions of this subpart or by the date when the material is first managed in a hazardous secondary material management unit, whichever is later, and
(2) For continuously generated material, annually, or
(3) Whenever there is a change in the material being managed or a change in the process that generates or treats the material.
(f) When a remanufacturer or other person that stores or treats the hazardous secondary material and the Regional Administrator do not agree on whether a distillation, fractionation, thin-film evaporation, solvent extraction, or air or steam stripping operation manages a hazardous secondary material with organic concentrations of at least 10 ppmw based on knowledge of the material, the dispute may be resolved by using direct measurement as specified at paragraph (d)(1) of this section.
(a)(1) Each remanufacturer or other person that stores or treats the hazardous secondary material subject to the provisions of this subpart shall comply with the recordkeeping requirements of this section.
(2) A remanufacturer or other person that stores or treats the hazardous secondary material of more than one hazardous secondary material management unit subject to the provisions of this subpart may comply with the recordkeeping requirements for these hazardous secondary material management units in one recordkeeping system if the system identifies each record by each hazardous secondary material management unit.
(b) The remanufacturer or other person that stores or treats the hazardous secondary material must keep the following records on-site:
(1) For facilities that comply with the provisions of § 261.1033(a)(2), an implementation schedule that includes dates by which the closed-vent system and control device will be installed and in operation. The schedule must also include a rationale of why the installation cannot be completed at an earlier date. The implementation schedule must be kept on-site at the facility by the effective date that the facility becomes subject to the provisions of this subpart.
(2) Up-to-date documentation of compliance with the process vent standards in § 261.1032, including:
(i) Information and data identifying all affected process vents, annual throughput and operating hours of each affected unit, estimated emission rates for each affected vent and for the overall facility (
(ii) Information and data supporting determinations of vent emissions and emission reductions achieved by add-on control devices based on engineering calculations or source tests. For the purpose of determining compliance, determinations of vent emissions and emission reductions must be made using operating parameter values (
(3) Where a remanufacturer or other person that stores or treats the hazardous secondary material chooses to use test data to determine the organic removal efficiency or total organic compound concentration achieved by the control device, a performance test plan must be developed and include:
(i) A description of how it is determined that the planned test is going to be conducted when the hazardous secondary material management unit is operating at the highest load or capacity level reasonably expected to occur. This shall include the estimated or design flow rate and organic content of each vent stream and define the acceptable operating ranges of key process and control device parameters during the test program.
(ii) A detailed engineering description of the closed-vent system and control device including:
(A) Manufacturer's name and model number of control device.
(B) Type of control device.
(C) Dimensions of the control device.
(D) Capacity.
(E) Construction materials.
(iii) A detailed description of sampling and monitoring procedures, including sampling and monitoring locations in the system, the equipment to be used, sampling and monitoring frequency, and planned analytical procedures for sample analysis.
(4) Documentation of compliance with § 261.1033 shall include the following information:
(i) A list of all information references and sources used in preparing the documentation.
(ii) Records, including the dates, of each compliance test required by § 261.1033(k).
(iii) If engineering calculations are used, a design analysis, specifications, drawings, schematics, and piping and instrumentation diagrams based on the appropriate sections of “APTI Course 415: Control of Gaseous Emissions” (incorporated by reference as specified in § 260.11) or other engineering texts acceptable to the Regional Administrator that present basic control device design information. Documentation provided by the control device manufacturer or vendor that describes the control device design in accordance with paragraphs (b)(4)(iii)(A) through (G) of this section may be used to comply with this requirement. The design analysis shall address the vent stream characteristics and control device operation parameters as specified below.
(A) For a thermal vapor incinerator, the design analysis shall consider the vent stream composition, constituent concentrations, and flow rate. The design analysis shall also establish the design minimum and average temperature in the combustion zone and the combustion zone residence time.
(B) For a catalytic vapor incinerator, the design analysis shall consider the vent stream composition, constituent concentrations, and flow rate. The design analysis shall also establish the design minimum and average temperatures across the catalyst bed inlet and outlet.
(C) For a boiler or process heater, the design analysis shall consider the vent stream composition, constituent concentrations, and flow rate. The design analysis shall also establish the design minimum and average flame zone temperatures, combustion zone residence time, and description of method and location where the vent stream is introduced into the combustion zone.
(D) For a flare, the design analysis shall consider the vent stream composition, constituent concentrations, and flow rate. The design analysis shall also consider the requirements specified in § 261.1033(d).
(E) For a condenser, the design analysis shall consider the vent stream composition, constituent concentrations, flow rate, relative humidity, and temperature. The design analysis shall also establish the design outlet organic compound concentration level, design average temperature of the condenser exhaust vent stream, and design average temperatures of the coolant fluid at the condenser inlet and outlet.
(F) For a carbon adsorption system such as a fixed-bed adsorber that regenerates the carbon bed directly onsite in the control device, the design analysis shall consider the vent stream composition, constituent concentrations, flow rate, relative humidity, and temperature. The design analysis shall also establish the design exhaust vent stream organic compound concentration level, number and capacity of carbon beds, type and working capacity of activated carbon used for carbon beds, design total steam flow over the period of each complete carbon bed regeneration cycle, duration of the carbon bed steaming and cooling/drying cycles, design carbon bed temperature after regeneration, design carbon bed regeneration time, and design service life of carbon.
(G) For a carbon adsorption system such as a carbon canister that does not regenerate the carbon bed directly onsite in the control device, the design analysis shall consider the vent stream composition, constituent concentrations, flow rate, relative humidity, and temperature. The design analysis shall also establish the design outlet organic concentration level, capacity of carbon bed, type and working capacity of activated carbon used for carbon bed, and design carbon replacement interval based on the total carbon working capacity of the control device and source operating schedule.
(iv) A statement signed and dated by the remanufacturer or other person that stores or treats the hazardous secondary material certifying that the operating parameters used in the design analysis reasonably represent the conditions that exist when the hazardous secondary material management unit is or would be operating at the highest load or capacity level reasonably expected to occur.
(v) A statement signed and dated by the remanufacturer or other person that stores or treats the hazardous secondary material certifying that the control device is designed to operate at an efficiency of 95 percent or greater unless the total organic concentration limit of § 261.1032(a) is achieved at an efficiency less than 95 weight percent or the total organic emission limits of § 261.1032(a) for affected process vents at the facility can be attained by a control device involving vapor recovery at an efficiency less than 95 weight percent. A statement provided by the control device manufacturer or vendor certifying that the control equipment meets the design specifications may be used to comply with this requirement.
(vi) If performance tests are used to demonstrate compliance, all test results.
(c) Design documentation and monitoring, operating, and inspection information for each closed-vent system and control device required to comply with the provisions of this part shall be recorded and kept up-to-date at the facility. The information shall include:
(1) Description and date of each modification that is made to the closed-vent system or control device design.
(2) Identification of operating parameter, description of monitoring device, and diagram of monitoring sensor location or locations used to comply with § 261.1033 (f)(1) and (2).
(3) Monitoring, operating, and inspection information required by § 261.1033(f) through (k).
(4) Date, time, and duration of each period that occurs while the control device is operating when any monitored parameter exceeds the value established in the control device design analysis as specified below:
(i) For a thermal vapor incinerator designed to operate with a minimum residence time of 0.50 second at a minimum temperature of 760 °C, period when the combustion temperature is below 760 °C.
(ii) For a thermal vapor incinerator designed to operate with an organic emission reduction efficiency of 95 weight percent or greater, period when the combustion zone temperature is more than 28 °C below the design average combustion zone temperature established as a requirement of paragraph (b)(4)(iii)(A) of this section.
(iii) For a catalytic vapor incinerator, period when:
(A) Temperature of the vent stream at the catalyst bed inlet is more than 28 °C below the average temperature of the inlet vent stream established as a requirement of paragraph (b)(4)(iii)(B) of this section, or
(B) Temperature difference across the catalyst bed is less than 80 percent of the design average temperature difference established as a requirement of paragraph (b)(4)(iii)(B) of this section.
(iv) For a boiler or process heater, period when:
(A) Flame zone temperature is more than 28 °C below the design average flame zone temperature established as a requirement of paragraph (b)(4)(iii)(C) of this section, or
(B) Position changes where the vent stream is introduced to the combustion zone from the location established as a requirement of paragraph (b)(4)(iii)(C) of this section.
(v) For a flare, period when the pilot flame is not ignited.
(vi) For a condenser that complies with § 261.1033(f)(2)(vi)(A), period when the organic compound concentration level or readings of organic compounds in the exhaust vent stream from the condenser are more than 20 percent greater than the design outlet organic compound concentration level established as a requirement of paragraph (b)(4)(iii)(E) of this section.
(vii) For a condenser that complies with § 261.1033(f)(2)(vi)(B), period when:
(A) Temperature of the exhaust vent stream from the condenser is more than 6 °C above the design average exhaust vent stream temperature established as a requirement of paragraph (b)(4)(iii)(E) of this section; or
(B) Temperature of the coolant fluid exiting the condenser is more than 6 °C above the design average coolant fluid temperature at the condenser outlet established as a requirement of paragraph (b)(4)(iii)(E) of this section.
(viii) For a carbon adsorption system such as a fixed-bed carbon adsorber that regenerates the carbon bed directly on-site in the control device and complies with § 261.1033(f)(2)(vii)(A), period when the organic compound concentration level or readings of organic compounds in the exhaust vent stream from the carbon bed are more than 20 percent greater than the design exhaust vent stream organic compound concentration level established as a requirement of paragraph (b)(4)(iii)(F) of this section.
(ix) For a carbon adsorption system such as a fixed-bed carbon adsorber that regenerates the carbon bed directly on-site in the control device and complies with § 261.1033(f)(2)(vii)(B), period when the vent stream continues to flow through the control device beyond the predetermined carbon bed regeneration time established as a requirement of paragraph (b)(4)(iii)(F) of this section.
(5) Explanation for each period recorded under paragraph (c)(4) of the cause for control device operating parameter exceeding the design value and the measures implemented to correct the control device operation.
(6) For a carbon adsorption system operated subject to requirements specified in § 261.1033(g) or (h)(2), date when existing carbon in the control device is replaced with fresh carbon.
(7) For a carbon adsorption system operated subject to requirements specified in § 261.1033(h)(1), a log that records:
(i) Date and time when control device is monitored for carbon breakthrough and the monitoring device reading.
(ii) Date when existing carbon in the control device is replaced with fresh carbon.
(8) Date of each control device startup and shutdown.
(9) A remanufacturer or other person that stores or treats the hazardous secondary material designating any components of a closed-vent system as unsafe to monitor pursuant to § 261.1033(o) of this subpart shall record in a log that is kept at the facility the identification of closed-vent system components that are designated as unsafe to monitor in accordance with the requirements of § 261.1033(o) of this subpart, an explanation for each closed-vent system component stating why the closed-vent system component is unsafe to monitor, and the plan for monitoring each closed-vent system component.
(10) When each leak is detected as specified in § 261.1033(l) of this subpart, the following information shall be recorded:
(i) The instrument identification number, the closed-vent system component identification number, and the operator name, initials, or identification number.
(ii) The date the leak was detected and the date of first attempt to repair the leak.
(iii) The date of successful repair of the leak.
(iv) Maximum instrument reading measured by Method 21 of 40 CFR part 60, appendix A after it is successfully repaired or determined to be nonrepairable.
(v) “Repair delayed” and the reason for the delay if a leak is not repaired within 15 calendar days after discovery of the leak.
(A) The remanufacturer or other person that stores or treats the hazardous secondary material may develop a written procedure that identifies the conditions that justify a delay of repair. In such cases, reasons for delay of repair may be documented by citing the relevant sections of the written procedure.
(B) If delay of repair was caused by depletion of stocked parts, there must be documentation that the spare parts were sufficiently stocked on-site before depletion and the reason for depletion.
(d) Records of the monitoring, operating, and inspection information required by paragraphs (c)(3) through (10) of this section shall be maintained by the owner or operator for at least 3 years following the date of each occurrence, measurement, maintenance, corrective action, or record.
(e) For a control device other than a thermal vapor incinerator, catalytic vapor incinerator, flare, boiler, process heater, condenser, or carbon adsorption system, the Regional Administrator will specify the appropriate recordkeeping requirements.
(f) Up-to-date information and data used to determine whether or not a process vent is subject to the requirements in § 261.1032 including supporting documentation as required by § 261.1034(d)(2) when application of the knowledge of the nature of the hazardous secondary material stream or the process by which it was produced is used, shall be recorded in a log that is kept at the facility.
(a) The regulations in this subpart apply to equipment that contains
As used in this subpart, all terms shall have the meaning given them in § 261.1031, the Resource Conservation and Recovery Act, and 40 CFR parts 260-266.
(a)(1) Each pump in light liquid service shall be monitored monthly to detect leaks by the methods specified in § 261.1063(b), except as provided in paragraphs (d), (e), and (f) of this section.
(2) Each pump in light liquid service shall be checked by visual inspection each calendar week for indications of liquids dripping from the pump seal.
(b)(1) If an instrument reading of 10,000 ppm or greater is measured, a leak is detected.
(2) If there are indications of liquids dripping from the pump seal, a leak is detected.
(c)(1) When a leak is detected, it shall be repaired as soon as practicable, but not later than 15 calendar days after it is detected, except as provided in § 261.1059.
(2) A first attempt at repair (
(d) Each pump equipped with a dual mechanical seal system that includes a barrier fluid system is exempt from the requirements of paragraph (a) of this section, provided the following requirements are met:
(1) Each dual mechanical seal system must be:
(i) Operated with the barrier fluid at a pressure that is at all times greater than the pump stuffing box pressure, or
(ii) Equipped with a barrier fluid degassing reservoir that is connected by a closed-vent system to a control device that complies with the requirements of § 261.1060, or
(iii) Equipped with a system that purges the barrier fluid into a hazardous secondary material stream with no detectable emissions to the atmosphere.
(2) The barrier fluid system must not be a hazardous secondary material with organic concentrations 10 percent or greater by weight.
(3) Each barrier fluid system must be equipped with a sensor that will detect failure of the seal system, the barrier fluid system, or both.
(4) Each pump must be checked by visual inspection, each calendar week, for indications of liquids dripping from the pump seals.
(5)(i) Each sensor as described in paragraph (d)(3) of this section must be checked daily or be equipped with an audible alarm that must be checked monthly to ensure that it is functioning properly.
(ii) The remanufacturer or other person that stores or treats the hazardous secondary material must determine, based on design considerations and operating experience, a criterion that indicates failure of the seal system, the barrier fluid system, or both.
(6)(i) If there are indications of liquids dripping from the pump seal or the sensor indicates failure of the seal system, the barrier fluid system, or both based on the criterion determined in paragraph (d)(5)(ii) of this section, a leak is detected.
(ii) When a leak is detected, it shall be repaired as soon as practicable, but not later than 15 calendar days after it is detected, except as provided in § 261.1059.
(iii) A first attempt at repair (
(e) Any pump that is designated, as described in § 261.1064(g)(2), for no detectable emissions, as indicated by an instrument reading of less than 500 ppm above background, is exempt from the requirements of paragraphs (a), (c), and (d) of this section if the pump meets the following requirements:
(1) Must have no externally actuated shaft penetrating the pump housing.
(2) Must operate with no detectable emissions as indicated by an instrument reading of less than 500 ppm above background as measured by the methods specified in § 261.1063(c).
(3) Must be tested for compliance with paragraph (e)(2) of this section initially upon designation, annually, and at other times as requested by the Regional Administrator.
(f) If any pump is equipped with a closed-vent system capable of capturing and transporting any leakage from the seal or seals to a control device that complies with the requirements of § 261.1060, it is exempt from the requirements of paragraphs (a) through (e) of this section.
(a) Each compressor shall be equipped with a seal system that includes a barrier fluid system and that prevents leakage of total organic emissions to the atmosphere, except as provided in paragraphs (h) and (i) of this section.
(b) Each compressor seal system as required in paragraph (a) of this section shall be:
(1) Operated with the barrier fluid at a pressure that is at all times greater than the compressor stuffing box pressure, or
(2) Equipped with a barrier fluid system that is connected by a closed-vent system to a control device that complies with the requirements of § 261.1060, or
(3) Equipped with a system that purges the barrier fluid into a hazardous secondary material stream with no detectable emissions to atmosphere.
(c) The barrier fluid must not be a hazardous secondary material with organic concentrations 10 percent or greater by weight.
(d) Each barrier fluid system as described in paragraphs (a) through (c) of this section shall be equipped with a sensor that will detect failure of the seal system, barrier fluid system, or both.
(e)(1) Each sensor as required in paragraph (d) of this section shall be checked daily or shall be equipped with an audible alarm that must be checked monthly to ensure that it is functioning properly unless the compressor is located within the boundary of an unmanned plant site, in which case the sensor must be checked daily.
(2) The remanufacturer or other person that stores or treats the hazardous secondary material shall determine, based on design considerations and operating experience, a criterion that indicates failure of the seal system, the barrier fluid system, or both.
(f) If the sensor indicates failure of the seal system, the barrier fluid system, or both based on the criterion determined under paragraph (e)(2) of this section, a leak is detected.
(g)(1) When a leak is detected, it shall be repaired as soon as practicable, but not later than 15 calendar days after it is detected, except as provided in § 261.1059.
(2) A first attempt at repair (
(h) A compressor is exempt from the requirements of paragraphs (a) and (b) of this section if it is equipped with a closed-vent system capable of capturing and transporting any leakage from the seal to a control device that complies with the requirements of § 261.1060, except as provided in paragraph (i) of this section.
(i) Any compressor that is designated, as described in § 261.1064(g)(2), for no
(1) Is determined to be operating with no detectable emissions, as indicated by an instrument reading of less than 500 ppm above background, as measured by the method specified in § 261.1063(c).
(2) Is tested for compliance with paragraph (i)(1) of this section initially upon designation, annually, and at other times as requested by the Regional Administrator.
(a) Except during pressure releases, each pressure relief device in gas/vapor service shall be operated with no detectable emissions, as indicated by an instrument reading of less than 500 ppm above background, as measured by the method specified in § 261.1063(c).
(b)(1) After each pressure release, the pressure relief device shall be returned to a condition of no detectable emissions, as indicated by an instrument reading of less than 500 ppm above background, as soon as practicable, but no later than 5 calendar days after each pressure release, except as provided in § 261.1059.
(2) No later than 5 calendar days after the pressure release, the pressure relief device shall be monitored to confirm the condition of no detectable emissions, as indicated by an instrument reading of less than 500 ppm above background, as measured by the method specified in § 261.1063(c).
(c) Any pressure relief device that is equipped with a closed-vent system capable of capturing and transporting leakage from the pressure relief device to a control device as described in § 261.1060 is exempt from the requirements of paragraphs (a) and (b) of this section.
(a) Each sampling connection system shall be equipped with a closed-purge, closed-loop, or closed-vent system. This system shall collect the sample purge for return to the process or for routing to the appropriate treatment system. Gases displaced during filling of the sample container are not required to be collected or captured.
(b) Each closed-purge, closed-loop, or closed-vent system as required in paragraph (a) of this section shall meet one of the following requirements:
(1) Return the purged process fluid directly to the process line;
(2) Collect and recycle the purged process fluid; or
(3) Be designed and operated to capture and transport all the purged process fluid to a material management unit that complies with the applicable requirements of §§ 261.1084 through 264.1086 of this subpart or a control device that complies with the requirements of § 261.1060 of this subpart.
(c)
(a)(1) Each open-ended valve or line shall be equipped with a cap, blind flange, plug, or a second valve.
(2) The cap, blind flange, plug, or second valve shall seal the open end at all times except during operations requiring hazardous secondary material stream flow through the open-ended valve or line.
(b) Each open-ended valve or line equipped with a second valve shall be operated in a manner such that the valve on the hazardous secondary material stream end is closed before the second valve is closed.
(c) When a double block and bleed system is being used, the bleed valve or line may remain open during operations that require venting the line between the block valves but shall comply with paragraph (a) of this section at all other times.
(a) Each valve in gas/vapor or light liquid service shall be monitored monthly to detect leaks by the methods specified in § 261.1063(b) and shall comply with paragraphs (b) through (e) of this section, except as provided in paragraphs (f), (g), and (h) of this section and §§ 261.1061 and 261.1062.
(b) If an instrument reading of 10,000 ppm or greater is measured, a leak is detected.
(c)(1) Any valve for which a leak is not detected for two successive months may be monitored the first month of every succeeding quarter, beginning with the next quarter, until a leak is detected.
(2) If a leak is detected, the valve shall be monitored monthly until a leak is not detected for two successive months,
(d)(1) When a leak is detected, it shall be repaired as soon as practicable, but no later than 15 calendar days after the leak is detected, except as provided in § 261.1059.
(2) A first attempt at repair shall be made no later than 5 calendar days after each leak is detected.
(e) First attempts at repair include, but are not limited to, the following best practices where practicable:
(1) Tightening of bonnet bolts.
(2) Replacement of bonnet bolts.
(3) Tightening of packing gland nuts.
(4) Injection of lubricant into lubricated packing.
(f) Any valve that is designated, as described in § 261.1064(g)(2), for no detectable emissions, as indicated by an instrument reading of less than 500 ppm above background, is exempt from the requirements of paragraph (a) of this section if the valve:
(1) Has no external actuating mechanism in contact with the hazardous secondary material stream.
(2) Is operated with emissions less than 500 ppm above background as determined by the method specified in § 261.1063(c).
(3) Is tested for compliance with paragraph (f)(2) of this section initially upon designation, annually, and at other times as requested by the Regional Administrator.
(g) Any valve that is designated, as described in § 261.1064(h)(1), as an unsafe-to-monitor valve is exempt from the requirements of paragraph (a) of this section if:
(1) The remanufacturer or other person that stores or treats the hazardous secondary material determines that the valve is unsafe to monitor because monitoring personnel would be exposed to an immediate danger as a consequence of complying with paragraph (a) of this section.
(2) The remanufacturer or other person that stores or treats the hazardous secondary material adheres to a written plan that requires monitoring of the valve as frequently as practicable during safe-to-monitor times.
(h) Any valve that is designated, as described in § 261.1064(h)(2), as a difficult-to-monitor valve is exempt from the requirements of paragraph (a) of this section if:
(1) The remanufacturer or other person that stores or treats the hazardous secondary material determines that the valve cannot be monitored without elevating the monitoring personnel more than 2 meters above a support surface.
(2) The hazardous secondary material management unit within which the valve is located was in operation before January 13, 2015.
(3) The owner or operator of the valve follows a written plan that requires monitoring of the valve at least once per calendar year.
(a) Pumps and valves in heavy liquid service, pressure relief devices in light liquid or heavy liquid service, and flanges and other connectors shall be monitored within five days by the method specified in § 261.1063(b) if evidence of a potential leak is found by visual, audible, olfactory, or any other detection method.
(b) If an instrument reading of 10,000 ppm or greater is measured, a leak is detected.
(c)(1) When a leak is detected, it shall be repaired as soon as practicable, but not later than 15 calendar days after it is detected, except as provided in § 261.1059.
(2) The first attempt at repair shall be made no later than 5 calendar days after each leak is detected.
(d) First attempts at repair include, but are not limited to, the best practices described under § 261.1057(e).
(e) Any connector that is inaccessible or is ceramic or ceramic-lined (
(a) Delay of repair of equipment for which leaks have been detected will be allowed if the repair is technically infeasible without a hazardous secondary material management unit shutdown. In such a case, repair of this equipment shall occur before the end of the next hazardous secondary material management unit shutdown.
(b) Delay of repair of equipment for which leaks have been detected will be allowed for equipment that is isolated from the hazardous secondary material management unit and that does not continue to contain or contact hazardous secondary material with organic concentrations at least 10 percent by weight.
(c) Delay of repair for valves will be allowed if:
(1) The remanufacturer or other person that stores or treats the hazardous secondary material determines that emissions of purged material resulting from immediate repair are greater than the emissions likely to result from delay of repair.
(2) When repair procedures are effected, the purged material is collected and destroyed or recovered in a control device complying with § 261.1060.
(d) Delay of repair for pumps will be allowed if:
(1) Repair requires the use of a dual mechanical seal system that includes a barrier fluid system.
(2) Repair is completed as soon as practicable, but not later than 6 months after the leak was detected.
(e) Delay of repair beyond a hazardous secondary material management unit shutdown will be allowed for a valve if valve assembly replacement is necessary during the hazardous secondary material management unit shutdown, valve assembly supplies have been depleted, and valve assembly supplies had been sufficiently stocked before the supplies were depleted. Delay of repair beyond the next hazardous secondary material management unit shutdown will not be allowed unless the next hazardous secondary material management unit shutdown occurs sooner than 6 months after the first hazardous secondary material management unit shutdown.
(a) The remanufacturer or other person that stores or treats the hazardous secondary material in a hazardous secondary material management units using closed-vent systems and control devices subject to this subpart shall comply with the provisions of § 261.1033 of this part.
(b)(1) The remanufacturer or other person that stores or treats the hazardous secondary material at an existing facility who cannot install a closed-vent system and control device to comply with the provisions of this subpart on the effective date that the facility becomes subject to the provisions of this subpart must prepare an implementation schedule that includes dates by which the closed-vent system and control device will be installed and in operation. The controls must be installed as soon as possible, but the implementation schedule may allow up to 30 months after the effective date that the facility becomes subject to this subpart for installation and startup.
(2) Any unit that begins operation after July 13, 2015 and is subject to the provisions of this subpart when operation begins, must comply with the rules immediately (
(3) The remanufacturer or other person that stores or treats the hazardous secondary material at any facility in existence on the effective date of a statutory or regulatory amendment that renders the facility subject to this subpart shall comply with all requirements of this subpart as soon as practicable but no later than 30 months after the amendment's effective date. When control equipment required by this subpart cannot be installed and begin operation by the effective date of the amendment, the facility owner or operator shall prepare an implementation schedule that includes the following information: Specific calendar dates for award of contracts or issuance of purchase orders for the control equipment, initiation of on-site installation of the control equipment, completion of the control equipment installation, and performance of any testing to demonstrate that the installed equipment meets the applicable standards of this subpart. The remanufacturer or other person that stores or treats the hazardous secondary material shall keep a copy of the implementation schedule at the facility.
(4) Remanufacturers or other persons that store or treat the hazardous secondary materials at facilities and units that become newly subject to the requirements of this subpart after January 13, 2015, due to an action other than those described in paragraph (b)(3) of this section must comply with all applicable requirements immediately (
(a) A remanufacturer or other person that stores or treats the hazardous secondary material subject to the requirements of § 261.1057 may elect to have all valves within a hazardous secondary material management unit comply with an alternative standard that allows no greater than 2 percent of the valves to leak.
(b) The following requirements shall be met if a remanufacturer or other person that stores or treats the hazardous secondary material decides to comply with the alternative standard of allowing 2 percent of valves to leak:
(1) A performance test as specified in paragraph (c) of this section shall be conducted initially upon designation, annually, and at other times requested by the Regional Administrator.
(2) If a valve leak is detected, it shall be repaired in accordance with § 261.1057(d) and (e).
(c) Performance tests shall be conducted in the following manner:
(1) All valves subject to the requirements in § 261.1057 within the
(2) If an instrument reading of 10,000 ppm or greater is measured, a leak is detected.
(3) The leak percentage shall be determined by dividing the number of valves subject to the requirements in § 261.1057 for which leaks are detected by the total number of valves subject to the requirements in § 261.1057 within the hazardous secondary material management unit.
(a) A remanufacturer or other person that stores or treats the hazardous secondary material subject to the requirements of § 261.1057 may elect for all valves within a hazardous secondary material management unit to comply with one of the alternative work practices specified in paragraphs (b)(2) and (3) of this section.
(b)(1) A remanufacturer or other person that stores or treats the hazardous secondary material shall comply with the requirements for valves, as described in § 261.1057, except as described in paragraphs (b)(2) and (3) of this section.
(2) After two consecutive quarterly leak detection periods with the percentage of valves leaking equal to or less than two percent, a remanufacturer or other person that stores or treats the hazardous secondary material may begin to skip one of the quarterly leak detection periods (
(3) After five consecutive quarterly leak detection periods with the percentage of valves leaking equal to or less than two percent, a remanufacturer or other person that stores or treats the hazardous secondary material may begin to skip three of the quarterly leak detection periods (
(4) If the percentage of valves leaking is greater than two percent, the remanufacturer or other person that stores or treats the hazardous secondary material shall monitor monthly in compliance with the requirements in § 261.1057, but may again elect to use this section after meeting the requirements of § 261.1057(c)(1).
(a) Each remanufacturer or other person that stores or treats the hazardous secondary material subject to the provisions of this subpart shall comply with the test methods and procedures requirements provided in this section.
(b) Leak detection monitoring, as required in §§ 261.1052-261.1062, shall comply with the following requirements:
(1) Monitoring shall comply with Reference Method 21 in 40 CFR part 60.
(2) The detection instrument shall meet the performance criteria of Reference Method 21.
(3) The instrument shall be calibrated before use on each day of its use by the procedures specified in Reference Method 21.
(4) Calibration gases shall be:
(i) Zero air (less than 10 ppm of hydrocarbon in air).
(ii) A mixture of methane or n-hexane and air at a concentration of approximately, but less than, 10,000 ppm methane or n-hexane.
(5) The instrument probe shall be traversed around all potential leak interfaces as close to the interface as possible as described in Reference Method 21.
(c) When equipment is tested for compliance with no detectable emissions, as required in §§ 261.1052(e), 261.1053(i), 261.1054, and 261.1057(f), the test shall comply with the following requirements:
(1) The requirements of paragraphs (b)(1) through (4) of this section shall apply.
(2) The background level shall be determined as set forth in Reference Method 21.
(3) The instrument probe shall be traversed around all potential leak interfaces as close to the interface as possible as described in Reference Method 21.
(4) The arithmetic difference between the maximum concentration indicated by the instrument and the background level is compared with 500 ppm for determining compliance.
(d) A remanufacturer or other person that stores or treats the hazardous secondary material must determine, for each piece of equipment, whether the equipment contains or contacts a hazardous secondary material with organic concentration that equals or exceeds 10 percent by weight using the following:
(1) Methods described in ASTM Methods D 2267-88, E 169-87, E 168-88, E 260-85 (incorporated by reference under § 260.11);
(2) Method 9060A (incorporated by reference under 40 CFR 260.11) of “Test Methods for Evaluating Solid Waste,” EPA Publication SW-846, for computing total organic concentration of the sample, or analyzed for its individual organic constituents; or
(3) Application of the knowledge of the nature of the hazardous secondary material stream or the process by which it was produced. Documentation of a material determination by knowledge is required. Examples of documentation that shall be used to support a determination under this provision include production process information documenting that no organic compounds are used, information that the material is generated by a process that is identical to a process at the same or another facility that has previously been demonstrated by direct measurement to have a total organic content less than 10 percent, or prior speciation analysis results on the same material stream where it can also be documented that no process changes have occurred since that analysis that could affect the material total organic concentration.
(e) If a remanufacturer or other person that stores or treats the hazardous secondary material determines that a piece of equipment contains or contacts a hazardous secondary material with organic concentrations at least 10 percent by weight, the determination can be revised only after following the procedures in paragraph (d)(1) or (2) of this section.
(f) When a remanufacturer or other person that stores or treats the hazardous secondary material and the Regional Administrator do not agree on whether a piece of equipment contains or contacts a hazardous secondary material with organic concentrations at least 10 percent by weight, the procedures in paragraph (d)(1) or (2) of this section can be used to resolve the dispute.
(g) Samples used in determining the percent organic content shall be representative of the highest total organic content hazardous secondary material that is expected to be contained in or contact the equipment.
(h) To determine if pumps or valves are in light liquid service, the vapor pressures of constituents may be obtained from standard reference texts or may be determined by ASTM D-2879-86 (incorporated by reference under § 260.11).
(i) Performance tests to determine if a control device achieves 95 weight percent organic emission reduction shall comply with the procedures of § 261.1034(c)(1) through (4).
(a)(1) Each remanufacturer or other person that stores or treats the hazardous secondary material subject to the provisions of this subpart shall comply with the recordkeeping requirements of this section.
(2) A remanufacturer or other person that stores or treats the hazardous secondary material in more than one hazardous secondary material management unit subject to the provisions of this subpart may comply with the recordkeeping requirements for these hazardous secondary material management units in one recordkeeping system if the system identifies each record by each hazardous secondary material management unit.
(b) Remanufacturer's and other person's that store or treat the hazardous secondary material must record and keep the following information at the facility:
(1) For each piece of equipment to which subpart BB of part 261 applies:
(i) Equipment identification number and hazardous secondary material management unit identification.
(ii) Approximate locations within the facility (
(iii) Type of equipment (
(iv) Percent-by-weight total organics in the hazardous secondary material stream at the equipment.
(v) Hazardous secondary material state at the equipment (
(vi) Method of compliance with the standard (
(2) For facilities that comply with the provisions of § 261.1033(a)(2), an implementation schedule as specified in § 261.1033(a)(2).
(3) Where a remanufacturer or other person that stores or treats the hazardous secondary material chooses to use test data to demonstrate the organic removal efficiency or total organic compound concentration achieved by the control device, a performance test plan as specified in § 261.1035(b)(3).
(4) Documentation of compliance with § 261.1060, including the detailed design documentation or performance test results specified in § 261.1035(b)(4).
(c) When each leak is detected as specified in §§ 261.1052, 261.1053, 261.1057, and 261.1058, the following requirements apply:
(1) A weatherproof and readily visible identification, marked with the equipment identification number, the date evidence of a potential leak was found in accordance with § 261.1058(a), and the date the leak was detected, shall be attached to the leaking equipment.
(2) The identification on equipment, except on a valve, may be removed after it has been repaired.
(3) The identification on a valve may be removed after it has been monitored for two successive months as specified in § 261.1057(c) and no leak has been detected during those two months.
(d) When each leak is detected as specified in §§ 261.1052, 261.1053, 261.1057, and 261.1058, the following information shall be recorded in an inspection log and shall be kept at the facility:
(1) The instrument and operator identification numbers and the equipment identification number.
(2) The date evidence of a potential leak was found in accordance with § 261.1058(a).
(3) The date the leak was detected and the dates of each attempt to repair the leak.
(4) Repair methods applied in each attempt to repair the leak.
(5) “Above 10,000” if the maximum instrument reading measured by the methods specified in § 261.1063(b) after each repair attempt is equal to or greater than 10,000 ppm.
(6) “Repair delayed” and the reason for the delay if a leak is not repaired within 15 calendar days after discovery of the leak.
(7) Documentation supporting the delay of repair of a valve in compliance with § 261.1059(c).
(8) The signature of the remanufacturer or other person that stores or treats the hazardous secondary material (or designate) whose decision it was that repair could not be effected without a hazardous secondary material management unit shutdown.
(9) The expected date of successful repair of the leak if a leak is not repaired within 15 calendar days.
(10) The date of successful repair of the leak.
(e) Design documentation and monitoring, operating, and inspection information for each closed-vent system and control device required to comply with the provisions of § 261.1060 shall be recorded and kept up-to-date at the facility as specified in § 261.1035(c). Design documentation is specified in § 261.1035(c)(1) and (2) and monitoring, operating, and inspection information in § 261.1035(c)(3) through (8).
(f) For a control device other than a thermal vapor incinerator, catalytic vapor incinerator, flare, boiler, process heater, condenser, or carbon adsorption system, the Regional Administrator will specify the appropriate recordkeeping requirements.
(g) The following information pertaining to all equipment subject to the requirements in §§ 261.1052 through 261.1060 shall be recorded in a log that is kept at the facility:
(1) A list of identification numbers for equipment (except welded fittings) subject to the requirements of this subpart.
(2)(i) A list of identification numbers for equipment that the remanufacturer or other person that stores or treats the hazardous secondary material elects to designate for no detectable emissions, as indicated by an instrument reading of less than 500 ppm above background, under the provisions of §§ 261.1052(e), 261.1053(i), and 261.1057(f).
(ii) The designation of this equipment as subject to the requirements of §§ 261.1052(e), 261.1053(i), or 261.1057(f) shall be signed by the remanufacturer or other person that stores or treats the hazardous secondary material.
(3) A list of equipment identification numbers for pressure relief devices required to comply with § 261.1054(a).
(4)(i) The dates of each compliance test required in §§ 261.1052(e), 261.1053(i), 261.1054, and 261.1057(f).
(ii) The background level measured during each compliance test.
(iii) The maximum instrument reading measured at the equipment during each compliance test.
(5) A list of identification numbers for equipment in vacuum service.
(6) Identification, either by list or location (area or group) of equipment that contains or contacts hazardous secondary material with an organic concentration of at least 10 percent by weight for less than 300 hours per calendar year.
(h) The following information pertaining to all valves subject to the requirements of § 261.1057(g) and (h) shall be recorded in a log that is kept at the facility:
(1) A list of identification numbers for valves that are designated as unsafe to monitor, an explanation for each valve stating why the valve is unsafe to monitor, and the plan for monitoring each valve.
(2) A list of identification numbers for valves that are designated as difficult to monitor, an explanation for each valve stating why the valve is difficult to monitor, and the planned schedule for monitoring each valve.
(i) The following information shall be recorded in a log that is kept at the facility for valves complying with § 261.1062:
(1) A schedule of monitoring.
(2) The percent of valves found leaking during each monitoring period.
(j) The following information shall be recorded in a log that is kept at in the facility:
(1) Criteria required in §§ 261.1052(d)(5)(ii) and 261.1053(e)(2) and an explanation of the design criteria.
(2) Any changes to these criteria and the reasons for the changes.
(k) The following information shall be recorded in a log that is kept at the facility for use in determining exemptions as provided in the applicability section of this subpart and other specific subparts:
(1) An analysis determining the design capacity of the hazardous secondary material management unit.
(2) A statement listing the hazardous secondary material influent to and effluent from each hazardous secondary material management unit subject to the requirements in §§ 261.1052 through 261.1060 and an analysis determining whether these hazardous secondary materials are heavy liquids.
(3) An up-to-date analysis and the supporting information and data used to determine whether or not equipment is subject to the requirements in §§ 261.1052 through 261.1060. The record shall include supporting documentation as required by § 261.1063(d)(3) when application of the knowledge of the nature of the hazardous secondary material stream or the process by which it was produced is used. If the remanufacturer or other person that stores or treats the hazardous secondary material takes any action (
(l) Records of the equipment leak information required by paragraph (d) of this section and the operating information required by paragraph (e) of this section need be kept only three years.
(m) The remanufacturer or other person that stores or treats the hazardous secondary material at a facility with equipment that is subject to this subpart and to regulations at 40 CFR part 60, part 61, or part 63 may elect to determine compliance with this subpart either by documentation pursuant to § 261.1064 of this subpart, or by documentation of compliance with the regulations at 40 CFR part 60, part 61, or part 63 pursuant to the relevant provisions of the regulations at 40 part 60, part 61, or part 63. The documentation of compliance under regulations at 40 CFR part 60, part 61, or part 63 shall be kept with or made readily available at the facility.
(a) The regulations in this subpart apply to tanks and containers that contain hazardous secondary materials excluded under the remanufacturing exclusion at § 261.4(a)(27), unless the tanks and containers are equipped with and operating air emission controls in accordance with the requirements of an applicable Clean Air Act regulations codified under 40 CFR part 60, part 61, or part 63.
(b) [Reserved]
As used in this subpart, all terms not defined herein shall have the meaning given to them in the Resource Conservation and Recovery Act and parts 260 through 266 of this chapter.
(1) A container from which all hazardous secondary materials have been removed that can be removed using the practices commonly employed to remove materials from that type of container,
(2) A container that is less than or equal to 119 gallons in size and no more than 3 percent by weight of the total capacity of the container remains in the container or inner liner; or
(3) A container that is greater than 119 gallons in size and no more than 0.3 percent by weight of the total capacity of the container remains in the container or inner liner.
(1) When the remanufacturer or other person that stores or treats the hazardous secondary material is the generator of the hazardous secondary material, the point of material origination means the point where a material produced by a system, process, or material management unit is determined to be a hazardous secondary material excluded under § 261.4(a)(27).
Note to paragraph (1) of the definition of
(2) When the remanufacturer or other person that stores or treats the hazardous secondary material is not the generator of the hazardous secondary material, point of material origination means the point where the remanufacturer or other person that stores or treats the hazardous secondary material accepts delivery or takes possession of the hazardous secondary material.
(a) This section applies to the management of hazardous secondary material in tanks and containers subject to this subpart.
(b) The remanufacturer or other person that stores or treats the hazardous secondary material shall control air pollutant emissions from each hazardous secondary material management unit in accordance with standards specified in §§ 261.1084 through 261.1087 of this subpart, as applicable to the hazardous secondary material management unit, except as provided for in paragraph (c) of this section.
(c) A tank or container is exempt from standards specified in §§ 261.1084 through 261.1087 of this subpart, as applicable, provided that the hazardous secondary material management unit is a tank or container for which all hazardous secondary material entering the unit has an average VO concentration at the point of material origination of less than 500 parts per million by weight (ppmw). The average VO concentration shall be determined using the procedures specified in § 261.1083(a) of this subpart. The remanufacturer or other person that stores or treats the hazardous secondary
(a)
(i) An initial determination of the average VO concentration of the material stream shall be made before the first time any portion of the material in the hazardous secondary material stream is placed in a hazardous secondary material management unit exempted under the provisions of § 261.1082(c)(1) of this subpart from using air emission controls, and thereafter an initial determination of the average VO concentration of the material stream shall be made for each averaging period that a hazardous secondary material is managed in the unit; and
(ii) Perform a new material determination whenever changes to the source generating the material stream are reasonably likely to cause the average VO concentration of the hazardous secondary material to increase to a level that is equal to or greater than the applicable VO concentration limits specified in § 261.1082 of this subpart.
(2)
(3)
(ii)
(A) The averaging period to be used for determining the average VO concentration for the hazardous secondary material stream on a mass-weighted average basis shall be designated and recorded. The averaging period can represent any time interval that the remanufacturer or other person that stores or treats the hazardous secondary material determines is appropriate for the hazardous secondary material stream but shall not exceed 1 year.
(B) A sufficient number of samples, but no less than four samples, shall be collected and analyzed for a hazardous secondary material determination. All of the samples for a given material determination shall be collected within a one-hour period. The average of the four or more sample results constitutes a material determination for the material stream. One or more material determinations may be required to represent the complete range of material compositions and quantities that occur during the entire averaging period due to normal variations in the operating conditions for the source or process generating the hazardous secondary material stream. Examples of such normal variations are seasonal variations in material quantity or fluctuations in ambient temperature.
(C) All samples shall be collected and handled in accordance with written procedures prepared by the remanufacturer or other person that stores or treats the hazardous secondary material and documented in a site sampling plan. This plan shall describe the procedure by which representative samples of the hazardous secondary material stream are collected such that a minimum loss of organics occurs throughout the sample collection and handling process, and by which sample integrity is maintained. A copy of the written sampling plan shall be maintained at the facility. An example of acceptable sample collection and handling procedures for a total volatile organic constituent concentration may be found in Method 25D in 40 CFR part 60, appendix A.
(D) Sufficient information, as specified in the “site sampling plan” required under paragraph (a)(3)(ii)(C) of this section, shall be prepared and recorded to document the material quantity represented by the samples and, as applicable, the operating conditions for the source or process generating the hazardous secondary material represented by the samples.
(iii)
(A) Any EPA standard method that has been validated in accordance with “Alternative Validation Procedure for EPA Waste and Wastewater Methods,” 40 CFR part 63, appendix D.
(B) Any other analysis method that has been validated in accordance with the procedures specified in Section 5.1 or Section 5.3, and the corresponding calculations in Section 6.1 or Section 6.3, of Method 301 in 40 CFR part 63, appendix A. The data are acceptable if they meet the criteria specified in Section 6.1.5 or Section 6.3.3 of Method 301. If correction is required under section 6.3.3 of Method 301, the data are acceptable if the correction factor is within the range 0.7 to 1.30. Other sections of Method 301 are not required.
(iv)
(B) For the purpose of determining C
(
(
(4)
(ii) If test data are used as the basis for knowledge, then the remanufacturer or other person that stores or treats the hazardous secondary material shall document the test method, sampling protocol, and the means by which sampling variability and analytical variability are accounted for in the determination of the average VO concentration. For example, a remanufacturer or other person that stores or treats the hazardous secondary material may use organic concentration test data for the hazardous secondary material stream that are validated in accordance with Method 301 in 40 CFR part 63, appendix A as the basis for knowledge of the material.
(iii) A remanufacturer or other person that stores or treats the hazardous secondary material using chemical constituent-specific concentration test data as the basis for knowledge of the hazardous secondary material may adjust the test data to the corresponding average VO concentration value which would have been obtained had the material samples been analyzed using Method 25D in 40 CFR part 60, appendix A. To adjust these data, the measured concentration for each individual chemical constituent contained in the material is multiplied by the appropriate constituent-specific adjustment factor (f
(iv) In the event that the Regional Administrator and the remanufacture or other person that stores or treats the hazardous secondary material disagree on a determination of the average VO concentration for a hazardous secondary material stream using knowledge, then the results from a determination of average VO concentration using direct measurement as specified in paragraph (a)(3) of this section shall be used to establish compliance with the applicable requirements of this subpart. The Regional Administrator may perform or request that the remanufacturer or other person that stores or treats the hazardous secondary material perform this determination using direct measurement. The remanufacturer or other person that stores or treats the hazardous secondary material may choose one or more appropriate methods to analyze each collected sample in accordance with the requirements of paragraph (a)(3)(iii) of this section.
(b) [Reserved]
(c)
(2) A remanufacturer or other person that stores or treats the hazardous secondary material shall use either direct measurement as specified in paragraph (c)(3) of this section or knowledge of the waste as specified by paragraph (c)(4) of this section to determine the maximum organic vapor pressure which is representative of the hazardous secondary material composition stored or treated in the tank.
(3) Direct measurement to determine the maximum organic vapor pressure of a hazardous secondary material.
(i)
(ii)
(A) Method 25E in 40 CFR part 60 appendix A;
(B) Methods described in American Petroleum Institute Publication 2517, Third Edition, February 1989, “Evaporative Loss from External Floating-Roof Tanks,” (incorporated by reference—refer to § 260.11 of this chapter);
(C) Methods obtained from standard reference texts;
(D) ASTM Method 2879-92 (incorporated by reference—refer to § 260.11 of this chapter); and
(E) Any other method approved by the Regional Administrator.
(4) Use of knowledge to determine the maximum organic vapor pressure of the hazardous secondary material. Documentation shall be prepared and recorded that presents the information used as the basis for the knowledge by the remanufacturer or other person that stores or treats the hazardous secondary material that the maximum organic vapor pressure of the hazardous secondary material is less than the maximum vapor pressure limit listed in § 261.1085(b)(1)(i) of this subpart for the applicable tank design capacity category. An example of information that may be used is documentation that the hazardous secondary material is generated by a process for which at other locations it previously has been determined by direct measurement that the hazardous secondary material's waste maximum organic vapor pressure is less than the maximum vapor pressure limit for the appropriate tank design capacity category.
(d) Procedure for determining no detectable organic emissions for the purpose of complying with this subpart:
(1) The test shall be conducted in accordance with the procedures specified in Method 21 of 40 CFR part 60, appendix A. Each potential leak interface (
(2) The test shall be performed when the unit contains a hazardous secondary material having an organic concentration representative of the range of concentrations for the hazardous secondary material expected to be managed in the unit. During the test, the cover and closure devices shall be secured in the closed position.
(3) The detection instrument shall meet the performance criteria of Method 21 of 40 CFR part 60, appendix A, except the instrument response factor criteria in section 3.1.2(a) of Method 21 shall be for the average composition of the organic constituents in the hazardous secondary material placed in the hazardous secondary management unit, not for each individual organic constituent.
(4) The detection instrument shall be calibrated before use on each day of its use by the procedures specified in Method 21 of 40 CFR part 60, appendix A.
(5) Calibration gases shall be as follows:
(i) Zero air (less than 10 ppmv hydrocarbon in air), and
(ii) A mixture of methane or n-hexane and air at a concentration of approximately, but less than, 10,000 ppmv methane or n-hexane.
(6) The background level shall be determined according to the procedures in Method 21 of 40 CFR part 60, appendix A.
(7) Each potential leak interface shall be checked by traversing the instrument probe around the potential leak interface as close to the interface as possible, as described in Method 21 of 40 CFR part 60, appendix A. In the case when the configuration of the cover or closure device prevents a complete traverse of the interface, all accessible portions of the interface shall be sampled. In the case when the configuration of the closure device prevents any sampling at the interface and the device is equipped with an enclosed extension or horn (
(8) The arithmetic difference between the maximum organic concentration indicated by the instrument and the background level shall be compared with the value of 500 ppmv except when monitoring a seal around a rotating shaft that passes through a cover opening, in which case the comparison shall be as specified in paragraph (d)(9) of this section. If the difference is less than 500 ppmv, then the potential leak interface is determined to operate with no detectable organic emissions.
(9) For the seals around a rotating shaft that passes through a cover opening, the arithmetic difference between the maximum organic concentration indicated by the instrument and the background level shall be compared with the value of 10,000 ppmw. If the difference is less than 10,000 ppmw, then the potential leak interface is determined to operate with no detectable organic emissions.
(a) The provisions of this section apply to the control of air pollutant emissions from tanks for which § 261.1082(b) of this subpart references the use of this section for such air emission control.
(b) The remanufacturer or other person that stores or treats the hazardous secondary material shall control air pollutant emissions from each tank subject to this section in accordance with the following requirements as applicable:
(1) For a tank that manages hazardous secondary material that meets all of the conditions specified in paragraphs (b)(1)(i) through (iii) of this section, the remanufacturer or other person that stores or treats the hazardous secondary material shall control air pollutant emissions from the tank in accordance with the Tank Level 1 controls specified in paragraph (c) of this section or the Tank Level 2 controls specified in paragraph (d) of this section.
(i) The hazardous secondary material in the tank has a maximum organic vapor pressure which is less than the maximum organic vapor pressure limit for the tank's design capacity category as follows:
(A) For a tank design capacity equal to or greater than 151 m
(B) For a tank design capacity equal to or greater than 75 m
(C) For a tank design capacity less than 75 m
(ii) The hazardous secondary material in the tank is not heated by the
(2) For a tank that manages hazardous secondary material that does not meet all of the conditions specified in paragraphs (b)(1)(i) through (iii) of this section, the remanufacturer or other person that stores or treats the hazardous secondary material shall control air pollutant emissions from the tank by using Tank Level 2 controls in accordance with the requirements of paragraph (d) of this section. An example of tanks required to use Tank Level 2 controls is a tank for which the hazardous secondary material in the tank has a maximum organic vapor pressure that is equal to or greater than the maximum organic vapor pressure limit for the tank's design capacity category as specified in paragraph (b)(1)(i) of this section.
(c) Remanufacturers or other persons that store or treats the hazardous secondary material controlling air pollutant emissions from a tank using Tank Level 1 controls shall meet the requirements specified in paragraphs (c)(1) through (4) of this section:
(1) The remanufacturer or other person that stores or treats that hazardous secondary material shall determine the maximum organic vapor pressure for a hazardous secondary material to be managed in the tank using Tank Level 1 controls before the first time the hazardous secondary material is placed in the tank. The maximum organic vapor pressure shall be determined using the procedures specified in § 261.1083(c) of this subpart. Thereafter, the remanufacturer or other person that stores or treats the hazardous secondary material shall perform a new determination whenever changes to the hazardous secondary material managed in the tank could potentially cause the maximum organic vapor pressure to increase to a level that is equal to or greater than the maximum organic vapor pressure limit for the tank design capacity category specified in paragraph (b)(1)(i) of this section, as applicable to the tank.
(2) The tank shall be equipped with a fixed roof designed to meet the following specifications:
(i) The fixed roof and its closure devices shall be designed to form a continuous barrier over the entire surface area of the hazardous secondary material in the tank. The fixed roof may be a separate cover installed on the tank (
(ii) The fixed roof shall be installed in a manner such that there are no visible cracks, holes, gaps, or other open spaces between roof section joints or between the interface of the roof edge and the tank wall.
(iii) Each opening in the fixed roof, and any manifold system associated with the fixed roof, shall be either:
(A) Equipped with a closure device designed to operate such that when the closure device is secured in the closed position there are no visible cracks, holes, gaps, or other open spaces in the closure device or between the perimeter of the opening and the closure device; or
(B) Connected by a closed-vent system that is vented to a control device. The control device shall remove or destroy organics in the vent stream, and shall be operating whenever hazardous secondary material is managed in the tank, except as provided for in paragraphs (c)(2)(iii)(B)(
(
(
(iv) The fixed roof and its closure devices shall be made of suitable materials that will minimize exposure of the hazardous secondary material to the atmosphere, to the extent practical, and will maintain the integrity of the fixed roof and closure devices throughout their intended service life. Factors to be considered when selecting the materials for and designing the fixed roof and closure devices shall include: organic vapor permeability, the effects of any contact with the hazardous secondary material or its vapors managed in the tank; the effects of outdoor exposure to wind, moisture, and sunlight; and the operating practices used for the tank on which the fixed roof is installed.
(3) Whenever a hazardous secondary material is in the tank, the fixed roof shall be installed with each closure device secured in the closed position except as follows:
(i) Opening of closure devices or removal of the fixed roof is allowed at the following times:
(A) To provide access to the tank for performing routine inspection, maintenance, or other activities needed for normal operations. Examples of such activities include those times when a worker needs to open a port to sample the liquid in the tank, or when a worker needs to open a hatch to maintain or repair equipment. Following completion of the activity, the remanufacturer or other person that stores or treats the hazardous secondary material shall promptly secure the closure device in the closed position or reinstall the cover, as applicable, to the tank.
(B) To remove accumulated sludge or other residues from the bottom of tank.
(ii) Opening of a spring-loaded pressure-vacuum relief valve, conservation vent, or similar type of pressure relief device which vents to the atmosphere is allowed during normal operations for the purpose of maintaining the tank internal pressure in accordance with the tank design specifications. The device shall be designed to operate with no detectable organic emissions when the device is secured in the closed position. The settings at which the device opens shall be established such that the device remains in the closed position whenever the tank internal pressure is within the internal pressure operating range determined by the remanufacturer or other person that stores or treats the hazardous secondary material based on the tank manufacturer recommendations, applicable regulations, fire protection and prevention codes, standard engineering codes and practices, or other requirements for the safe handling of flammable, ignitable, explosive, reactive, or hazardous materials. Examples of normal operating conditions that may require these devices to open are during those times when the tank internal pressure exceeds the internal pressure operating range for the tank as a result of loading operations or diurnal ambient temperature fluctuations.
(iii) Opening of a safety device, as defined in § 261.1081, is allowed at any time conditions require doing so to avoid an unsafe condition.
(4) The remanufacturer or other person that stores or treats the hazardous secondary material shall inspect the air emission control equipment in accordance with the following requirements.
(i) The fixed roof and its closure devices shall be visually inspected by the remanufacturer or other person that stores or treats the hazardous secondary material to check for defects that could result in air pollutant emissions. Defects include, but are not limited to, visible cracks, holes, or gaps in the roof sections or between the roof and the tank wall; broken, cracked, or otherwise damaged seals or gaskets on closure devices; and broken or missing hatches, access covers, caps, or other closure devices.
(ii) The remanufacturer or other person that stores or treats the hazardous secondary material shall perform an initial inspection of the fixed roof and its closure devices on or before the date that the tank becomes subject to this section. Thereafter, the remanufacturer or other person that stores or treats the hazardous secondary material shall perform the inspections at least once every year except under the special conditions provided for in paragraph (l) of this section.
(iii) In the event that a defect is detected, the remanufacturer or other person that stores or treats the hazardous secondary material shall repair the defect in accordance with the requirements of paragraph (k) of this section.
(iv) The remanufacturer or other person that stores or treats the hazardous secondary material shall maintain a record of the inspection in accordance with the requirements specified in § 261.1089(b) of this subpart.
(d) Remanufacturers or other persons that store or treat the hazardous secondary material controlling air pollutant emissions from a tank using Tank Level 2 controls shall use one of the following tanks:
(1) A fixed-roof tank equipped with an internal floating roof in accordance with the requirements specified in paragraph (e) of this section;
(2) A tank equipped with an external floating roof in accordance with the requirements specified in paragraph (f) of this section;
(3) A tank vented through a closed-vent system to a control device in accordance with the requirements specified in paragraph (g) of this section;
(4) A pressure tank designed and operated in accordance with the requirements specified in paragraph (h) of this section; or
(5) A tank located inside an enclosure that is vented through a closed-vent system to an enclosed combustion control device in accordance with the requirements specified in paragraph (i) of this section.
(e) The remanufacturer or other person that stores or treats the hazardous secondary material who controls air pollutant emissions from a tank using a fixed roof with an internal floating roof shall meet the requirements specified in paragraphs (e)(1) through (3) of this section.
(1) The tank shall be equipped with a fixed roof and an internal floating roof in accordance with the following requirements:
(i) The internal floating roof shall be designed to float on the liquid surface except when the floating roof must be supported by the leg supports.
(ii) The internal floating roof shall be equipped with a continuous seal between the wall of the tank and the floating roof edge that meets either of the following requirements:
(A) A single continuous seal that is either a liquid-mounted seal or a metallic shoe seal, as defined in § 261.1081; or
(B) Two continuous seals mounted one above the other. The lower seal may be a vapor-mounted seal.
(iii) The internal floating roof shall meet the following specifications:
(A) Each opening in a noncontact internal floating roof except for automatic bleeder vents (vacuum breaker vents) and the rim space vents is to provide a projection below the liquid surface.
(B) Each opening in the internal floating roof shall be equipped with a gasketed cover or a gasketed lid except for leg sleeves, automatic bleeder vents, rim space vents, column wells, ladder wells, sample wells, and stub drains.
(C) Each penetration of the internal floating roof for the purpose of sampling shall have a slit fabric cover that covers at least 90 percent of the opening.
(D) Each automatic bleeder vent and rim space vent shall be gasketed.
(E) Each penetration of the internal floating roof that allows for passage of a ladder shall have a gasketed sliding cover.
(F) Each penetration of the internal floating roof that allows for passage of a column supporting the fixed roof shall have a flexible fabric sleeve seal or a gasketed sliding cover.
(2) The remanufacturer or other person that stores or treats the hazardous secondary material shall operate the tank in accordance with the following requirements:
(i) When the floating roof is resting on the leg supports, the process of filling, emptying, or refilling shall be continuous and shall be completed as soon as practical.
(ii) Automatic bleeder vents are to be set closed at all times when the roof is floating, except when the roof is being floated off or is being landed on the leg supports.
(iii) Prior to filling the tank, each cover, access hatch, gauge float well or lid on any opening in the internal floating roof shall be bolted or fastened closed (
(3) The remanufacturer or other person that stores or treats the hazardous secondary material shall inspect the internal floating roof in accordance with the procedures specified as follows:
(i) The floating roof and its closure devices shall be visually inspected by the remanufacture or other person that stores or treats the hazardous secondary material to check for defects that could result in air pollutant emissions. Defects include, but are not limited to: The internal floating roof is not floating on the surface of the liquid inside the tank; liquid has accumulated on top of the internal floating roof; any portion of the roof seals have detached from the roof rim; holes, tears, or other openings are visible in the seal fabric; the gaskets no longer close off the hazardous secondary material surface from the atmosphere; or the slotted membrane has more than 10 percent open area.
(ii) The remanufacturer or other person that stores or treats the hazardous secondary material shall inspect the internal floating roof components as follows except as provided in paragraph (e)(3)(iii) of this section:
(A) Visually inspect the internal floating roof components through openings on the fixed-roof (
(B) Visually inspect the internal floating roof, primary seal, secondary seal (if one is in service), gaskets, slotted membranes, and sleeve seals (if any) each time the tank is emptied and degassed and at least every 10 years.
(iii) As an alternative to performing the inspections specified in paragraph (e)(3)(ii) of this section for an internal floating roof equipped with two continuous seals mounted one above the
(iv) Prior to each inspection required by paragraph (e)(3)(ii) or (iii) of this section, the remanufacturer or other person that stores or treats the hazardous secondary material shall notify the Regional Administrator in advance of each inspection to provide the Regional Administrator with the opportunity to have an observer present during the inspection. The remanufacturer or other person that stores or treats the hazardous secondary material shall notify the Regional Administrator of the date and location of the inspection as follows:
(A) Prior to each visual inspection of an internal floating roof in a tank that has been emptied and degassed, written notification shall be prepared and sent by the remanufacturer or other person that stores or treats the hazardous secondary material so that it is received by the Regional Administrator at least 30 calendar days before refilling the tank except when an inspection is not planned as provided for in paragraph (e)(3)(iv)(B) of this section.
(B) When a visual inspection is not planned and the remanufacturer or other person that stores or treats the hazardous secondary material could not have known about the inspection 30 calendar days before refilling the tank, the remanufacturer or other person that stores or treats the hazardous secondary material shall notify the Regional Administrator as soon as possible, but no later than seven calendar days before refilling of the tank. This notification may be made by telephone and immediately followed by a written explanation for why the inspection is unplanned. Alternatively, written notification, including the explanation for the unplanned inspection, may be sent so that it is received by the Regional Administrator at least seven calendar days before refilling the tank.
(v) In the event that a defect is detected, the remanufacturer or other person that stores or treats the hazardous secondary material shall repair the defect in accordance with the requirements of paragraph (k) of this section.
(vi) The remanufacturer or other person that stores or treats the hazardous secondary material shall maintain a record of the inspection in accordance with the requirements specified in § 261.1089(b) of this subpart.
(4) Safety devices, as defined in § 261.1081, may be installed and operated as necessary on any tank complying with the requirements of paragraph (e) of this section.
(f) The remanufacturer or other person that stores or treats the hazardous secondary material who controls air pollutant emissions from a tank using an external floating roof shall meet the requirements specified in paragraphs (f)(1) through (3) of this section.
(1) The remanufacturer or other person that stores or treats the hazardous secondary material shall design the external floating roof in accordance with the following requirements:
(i) The external floating roof shall be designed to float on the liquid surface except when the floating roof must be supported by the leg supports.
(ii) The floating roof shall be equipped with two continuous seals, one above the other, between the wall of the tank and the roof edge. The lower seal is referred to as the primary seal, and the upper seal is referred to as the secondary seal.
(A) The primary seal shall be a liquid-mounted seal or a metallic shoe seal, as defined in 40 CFR 261.1081. The total area of the gaps between the tank wall and the primary seal shall not exceed 212 square centimeters (cm
(B) The secondary seal shall be mounted above the primary seal and cover the annular space between the floating roof and the wall of the tank. The total area of the gaps between the tank wall and the secondary seal shall not exceed 21.2 square centimeters (cm
(iii) The external floating roof shall meet the following specifications:
(A) Except for automatic bleeder vents (vacuum breaker vents) and rim space vents, each opening in a noncontact external floating roof shall provide a projection below the liquid surface.
(B) Except for automatic bleeder vents, rim space vents, roof drains, and leg sleeves, each opening in the roof shall be equipped with a gasketed cover, seal, or lid.
(C) Each access hatch and each gauge float well shall be equipped with a cover designed to be bolted or fastened when the cover is secured in the closed position.
(D) Each automatic bleeder vent and each rim space vent shall be equipped with a gasket.
(E) Each roof drain that empties into the liquid managed in the tank shall be equipped with a slotted membrane fabric cover that covers at least 90 percent of the area of the opening.
(F) Each unslotted and slotted guide pole well shall be equipped with a gasketed sliding cover or a flexible fabric sleeve seal.
(G) Each unslotted guide pole shall be equipped with a gasketed cap on the end of the pole.
(H) Each slotted guide pole shall be equipped with a gasketed float or other device which closes off the liquid surface from the atmosphere.
(I) Each gauge hatch and each sample well shall be equipped with a gasketed cover.
(2) The remanufacturer or other person that stores or treats the hazardous secondary material shall operate the tank in accordance with the following requirements:
(i) When the floating roof is resting on the leg supports, the process of filling, emptying, or refilling shall be continuous and shall be completed as soon as practical.
(ii) Except for automatic bleeder vents, rim space vents, roof drains, and leg sleeves, each opening in the roof shall be secured and maintained in a closed position at all times except when the closure device must be open for access.
(iii) Covers on each access hatch and each gauge float well shall be bolted or fastened when secured in the closed position.
(iv) Automatic bleeder vents shall be set closed at all times when the roof is floating, except when the roof is being floated off or is being landed on the leg supports.
(v) Rim space vents shall be set to open only at those times that the roof is being floated off the roof leg supports or when the pressure beneath the rim seal exceeds the manufacturer's recommended setting.
(vi) The cap on the end of each unslotted guide pole shall be secured in the closed position at all times except when measuring the level or collecting samples of the liquid in the tank.
(vii) The cover on each gauge hatch or sample well shall be secured in the closed position at all times except when the hatch or well must be opened for access.
(viii) Both the primary seal and the secondary seal shall completely cover the annular space between the external floating roof and the wall of the tank in a continuous fashion except during inspections.
(3) The remanufacturer or other person that stores or treats the hazardous secondary material shall inspect the external floating roof in accordance with the procedures specified as follows:
(i) The remanufacturer or other person that stores or treats the hazardous secondary material shall measure the external floating roof seal gaps in accordance with the following requirements:
(A) The remanufacturer or other person that stores or treats the hazardous secondary material shall perform measurements of gaps between the tank wall and the primary seal within 60 calendar days after initial operation of the tank following installation of the floating roof and, thereafter, at least once every 5 years.
(B) The remanufacturer or other person that stores or treats the hazardous secondary material shall perform measurements of gaps between the tank wall and the secondary seal within 60 calendar days after initial operation of the tank following installation of the floating roof and, thereafter, at least once every year.
(C) If a tank ceases to hold hazardous secondary material for a period of 1 year or more, subsequent introduction of hazardous secondary material into the tank shall be considered an initial operation for the purposes of paragraphs (f)(3)(i)(A) and (B) of this section.
(D) The remanufacturer or other person that stores or treats the hazardous secondary material shall determine the total surface area of gaps in the primary seal and in the secondary seal individually using the following procedure:
(
(
(
(
(E) In the event that the seal gap measurements do not conform to the specifications in paragraph (f)(1)(ii) of this section, the remanufacturer or other person that stores or treats the hazardous secondary material shall repair the defect in accordance with the requirements of paragraph (k) of this section.
(F) The remanufacturer or other person that stores or treats the hazardous secondary material shall maintain a record of the inspection in accordance with the requirements specified in § 261.1089(b) of this subpart.
(ii) The remanufacturer or other person that stores or treats the hazardous secondary material shall visually inspect the external floating roof in accordance with the following requirements:
(A) The floating roof and its closure devices shall be visually inspected by the remanufacturer or other person that stores or treats the hazardous secondary material to check for defects that could result in air pollutant emissions. Defects include, but are not limited to: Holes, tears, or other openings in the rim seal or seal fabric of the floating roof; a rim seal detached from the floating roof; all or a portion of the floating roof deck being submerged below the surface of the liquid in the tank; broken, cracked, or otherwise damaged seals or gaskets on closure devices; and broken or missing hatches, access covers, caps, or other closure devices.
(B) The remanufacturer or other person that stores or treats the hazardous secondary material shall perform an initial inspection of the external floating roof and its closure devices on or before the date that the tank becomes subject to this section. Thereafter, the remanufacturer or other person that stores or treats the hazardous secondary material shall perform the inspections at least once every year except for the special conditions provided for in paragraph (l) of this section.
(C) In the event that a defect is detected, the remanufacturer or other person that stores or treats the hazardous secondary material shall repair the defect in accordance with the requirements of paragraph (k) of this section.
(D) The remanufacturer or other person that stores or treats the hazardous secondary material shall maintain a record of the inspection in accordance with the requirements specified in § 261.1089(b) of this subpart.
(iii) Prior to each inspection required by paragraph (f)(3)(i) or (ii) of this section, the remanufacturer or other person that stores or treats the hazardous secondary material shall notify the Regional Administrator in advance of each inspection to provide the Regional Administrator with the opportunity to have an observer present during the inspection. The remanufacturer or other person that stores or treats the hazardous secondary material shall notify the Regional Administrator of the date and location of the inspection as follows:
(A) Prior to each inspection to measure external floating roof seal gaps as required under paragraph (f)(3)(i) of this section, written notification shall be prepared and sent by the remanufacturer or other person that stores or treats the hazardous secondary material so that it is received by the Regional Administrator at least 30 calendar days before the date the measurements are scheduled to be performed.
(B) Prior to each visual inspection of an external floating roof in a tank that has been emptied and degassed, written notification shall be prepared and sent by the remanufacturer or other person that stores or treats the hazardous secondary material so that it is received by the Regional Administrator at least 30 calendar days before refilling the tank except when an inspection is not planned as provided for in paragraph (f)(3)(iii)(C) of this section.
(C) When a visual inspection is not planned and the remanufacturer or other person that stores or treats the hazardous secondary material could not have known about the inspection 30 calendar days before refilling the tank, the owner or operator shall notify the Regional Administrator as soon as possible, but no later than seven calendar days before refilling of the tank. This notification may be made by telephone and immediately followed by a written explanation for why the inspection is unplanned. Alternatively, written notification, including the explanation for the unplanned inspection, may be sent so that it is received by the Regional Administrator
(4) Safety devices, as defined in § 261.1081, may be installed and operated as necessary on any tank complying with the requirements of paragraph (f) of this section.
(g) The remanufacturer or other person that stores or treats the hazardous secondary material who controls air pollutant emissions from a tank by venting the tank to a control device shall meet the requirements specified in paragraphs (g)(1) through (3) of this section.
(1) The tank shall be covered by a fixed roof and vented directly through a closed-vent system to a control device in accordance with the following requirements:
(i) The fixed roof and its closure devices shall be designed to form a continuous barrier over the entire surface area of the liquid in the tank.
(ii) Each opening in the fixed roof not vented to the control device shall be equipped with a closure device. If the pressure in the vapor headspace underneath the fixed roof is less than atmospheric pressure when the control device is operating, the closure devices shall be designed to operate such that when the closure device is secured in the closed position there are no visible cracks, holes, gaps, or other open spaces in the closure device or between the perimeter of the cover opening and the closure device. If the pressure in the vapor headspace underneath the fixed roof is equal to or greater than atmospheric pressure when the control device is operating, the closure device shall be designed to operate with no detectable organic emissions.
(iii) The fixed roof and its closure devices shall be made of suitable materials that will minimize exposure of the hazardous secondary material to the atmosphere, to the extent practical, and will maintain the integrity of the fixed roof and closure devices throughout their intended service life. Factors to be considered when selecting the materials for and designing the fixed roof and closure devices shall include: Organic vapor permeability, the effects of any contact with the liquid and its vapor managed in the tank; the effects of outdoor exposure to wind, moisture, and sunlight; and the operating practices used for the tank on which the fixed roof is installed.
(iv) The closed-vent system and control device shall be designed and operated in accordance with the requirements of § 261.1087 of this subpart.
(2) Whenever a hazardous secondary material is in the tank, the fixed roof shall be installed with each closure device secured in the closed position and the vapor headspace underneath the fixed roof vented to the control device except as follows:
(i) Venting to the control device is not required, and opening of closure devices or removal of the fixed roof is allowed at the following times:
(A) To provide access to the tank for performing routine inspection, maintenance, or other activities needed for normal operations. Examples of such activities include those times when a worker needs to open a port to sample liquid in the tank, or when a worker needs to open a hatch to maintain or repair equipment. Following completion of the activity, the remanufacturer or other person that stores or treats the hazardous secondary material shall promptly secure the closure device in the closed position or reinstall the cover, as applicable, to the tank.
(B) To remove accumulated sludge or other residues from the bottom of a tank.
(ii) Opening of a safety device, as defined in § 261.1081, is allowed at any time conditions require doing so to avoid an unsafe condition.
(3) The remanufacturer or other person that stores or treats the hazardous secondary material shall inspect and monitor the air emission control equipment in accordance with the following procedures:
(i) The fixed roof and its closure devices shall be visually inspected by the remanufacturer or other person that stores or treats the hazardous secondary material to check for defects that could result in air pollutant emissions. Defects include, but are not limited to, visible cracks, holes, or gaps in the roof sections or between the roof and the tank wall; broken, cracked, or otherwise damaged seals or gaskets on closure devices; and broken or missing hatches, access covers, caps, or other closure devices.
(ii) The closed-vent system and control device shall be inspected and monitored by the remanufacturer or other person that stores or treats the hazardous secondary material in accordance with the procedures specified in § 261.1087 of this subpart.
(iii) The remanufacturer or other person that stores or treats the hazardous secondary material shall perform an initial inspection of the air emission control equipment on or before the date that the tank becomes subject to this section. Thereafter, the remanufacturer or other person that stores or treats the hazardous secondary material shall perform the inspections at least once every year except for the special conditions provided for in paragraph (l) of this section.
(iv) In the event that a defect is detected, the remanufacture or other person that stores or treats the hazardous secondary material shall repair the defect in accordance with the requirements of paragraph (k) of this section.
(v) The remanufacturer or other person that stores or treats the hazardous secondary material shall maintain a record of the inspection in accordance with the requirements specified in § 261.1089(b) of this subpart.
(h) The remanufacturer or other person that stores or treats the hazardous secondary material who controls air pollutant emissions by using a pressure tank shall meet the following requirements.
(1) The tank shall be designed not to vent to the atmosphere as a result of compression of the vapor headspace in the tank during filling of the tank to its design capacity.
(2) All tank openings shall be equipped with closure devices designed to operate with no detectable organic emissions as determined using the procedure specified in § 261.1083(d) of this subpart.
(3) Whenever a hazardous secondary material is in the tank, the tank shall be operated as a closed system that does not vent to the atmosphere except under either or the following conditions as specified in paragraph (h)(3)(i) or (h)(3)(ii) of this section.
(i) At those times when opening of a safety device, as defined in § 261.1081 of this subpart, is required to avoid an unsafe condition.
(ii) At those times when purging of inerts from the tank is required and the purge stream is routed to a closed-vent system and control device designed and operated in accordance with the requirements of § 261.1087 of this subpart.
(i) The remanufacturer or other person that stores or treats the hazardous secondary material who controls air pollutant emissions by using an enclosure vented through a closed-vent system to an enclosed combustion control device shall meet the requirements specified in paragraphs (i)(1) through (4) of this section.
(1) The tank shall be located inside an enclosure. The enclosure shall be designed and operated in accordance with the criteria for a permanent total enclosure as specified in “Procedure T—Criteria for and Verification of a Permanent or Temporary Total Enclosure” under 40 CFR 52.741, appendix B. The enclosure may have
(2) The enclosure shall be vented through a closed-vent system to an enclosed combustion control device that is designed and operated in accordance with the standards for either a vapor incinerator, boiler, or process heater specified in § 261.1087 of this subpart.
(3) Safety devices, as defined in § 261.1081, may be installed and operated as necessary on any enclosure, closed-vent system, or control device used to comply with the requirements of paragraphs (i)(1) and (2) of this section.
(4) The remanufacturer or other person that stores or treats the hazardous secondary material shall inspect and monitor the closed-vent system and control device as specified in § 261.1087 of this subpart.
(j) The remanufacturer or other person that stores or treats the hazardous secondary material shall transfer hazardous secondary material to a tank subject to this section in accordance with the following requirements:
(1) Transfer of hazardous secondary material, except as provided in paragraph (j)(2) of this section, to the tank from another tank subject to this section shall be conducted using continuous hard-piping or another closed system that does not allow exposure of the hazardous secondary material to the atmosphere. For the purpose of complying with this provision, an individual drain system is considered to be a closed system when it meets the requirements of 40 CFR part 63, subpart RR—National Emission Standards for Individual Drain Systems.
(2) The requirements of paragraph (j)(1) of this section do not apply when transferring a hazardous secondary material to the tank under any of the following conditions:
(i) The hazardous secondary material meets the average VO concentration conditions specified in § 261.1082(c)(1) of this subpart at the point of material origination.
(ii) The hazardous secondary material has been treated by an organic destruction or removal process to meet the requirements in § 261.1082(c)(2) of this subpart.
(iii) The hazardous secondary material meets the requirements of § 261.1082(c)(4) of this subpart.
(k) The remanufacturer or other person that stores or treats the hazardous secondary material shall repair each defect detected during an inspection performed in accordance with the requirements of paragraph (c)(4), (e)(3), (f)(3), or (g)(3) of this section as follows:
(1) The remanufacturer or other person that stores or treats the hazardous secondary material shall make first efforts at repair of the defect no later than 5 calendar days after detection, and repair shall be completed as soon as possible but no later than 45 calendar days after detection except as provided in paragraph (k)(2) of this section.
(2) Repair of a defect may be delayed beyond 45 calendar days if the remanufacturer or other person that stores or treats the hazardous secondary material determines that repair of the defect requires emptying or temporary removal from service of the tank and no alternative tank capacity is available at the site to accept the hazardous secondary material normally managed in the tank. In this case, the remanufacturer or other person that stores or treats the hazardous secondary material shall repair the defect the next time the process or unit that is generating the hazardous secondary material managed in the tank stops operation. Repair of the defect shall be completed before the process or unit resumes operation.
(l) Following the initial inspection and monitoring of the cover as required by the applicable provisions of this subpart, subsequent inspection and monitoring may be performed at intervals longer than 1 year under the following special conditions:
(1) In the case when inspecting or monitoring the cover would expose a worker to dangerous, hazardous, or other unsafe conditions, then the remanufacturer or other person that stores or treats the hazardous secondary material may designate a cover as an “unsafe to inspect and monitor cover” and comply with all of the following requirements:
(i) Prepare a written explanation for the cover stating the reasons why the cover is unsafe to visually inspect or to monitor, if required.
(ii) Develop and implement a written plan and schedule to inspect and monitor the cover, using the procedures specified in the applicable section of this subpart, as frequently as practicable during those times when a worker can safely access the cover.
(2) In the case when a tank is buried partially or entirely underground, a remanufacturer or other person that stores or treats the hazardous secondary material is required to inspect and monitor, as required by the applicable provisions of this section, only those portions of the tank cover and those connections to the tank (
(a)
(b)
(i) For a container having a design capacity greater than 0.1 m
(ii) For a container having a design capacity greater than 0.46 m
(iii) For a container having a design capacity greater than 0.46 m
(2) [Reserved]
(c)
(i) A container that meets the applicable U.S. Department of Transportation (DOT) regulations on
(ii) A container equipped with a cover and closure devices that form a continuous barrier over the container openings such that when the cover and closure devices are secured in the closed position there are no visible holes, gaps, or other open spaces into the interior of the container. The cover may be a separate cover installed on the container (
(iii) An open-top container in which an organic-vapor suppressing barrier is placed on or over the hazardous secondary material in the container such that no hazardous secondary material is exposed to the atmosphere. One example of such a barrier is application of a suitable organic-vapor suppressing foam.
(2) A container used to meet the requirements of paragraph (c)(1)(ii) or (iii) of this section shall be equipped with covers and closure devices, as applicable to the container, that are composed of suitable materials to minimize exposure of the hazardous secondary material to the atmosphere and to maintain the equipment integrity, for as long as the container is in service. Factors to be considered in selecting the materials of construction and designing the cover and closure devices shall include: Organic vapor permeability; the effects of contact with the hazardous secondary material or its vapor managed in the container; the effects of outdoor exposure of the closure device or cover material to wind, moisture, and sunlight; and the operating practices for which the container is intended to be used.
(3) Whenever a hazardous secondary material is in a container using Container Level 1 controls, the remanufacturer or other person that stores or treats the hazardous secondary material shall install all covers and closure devices for the container, as applicable to the container, and secure and maintain each closure device in the closed position except as follows:
(i) Opening of a closure device or cover is allowed for the purpose of adding hazardous secondary material or other material to the container as follows:
(A) In the case when the container is filled to the intended final level in one continuous operation, the remanufacturer or other person that stores or treats the hazardous secondary material shall promptly secure the closure devices in the closed position and install the covers, as applicable to the container, upon conclusion of the filling operation.
(B) In the case when discrete quantities or batches of material intermittently are added to the container over a period of time, the remanufacturer or other person that stores or treats the hazardous secondary material shall promptly secure the closure devices in the closed position and install covers, as applicable to the container, upon either the container being filled to the intended final level; the completion of a batch loading after which no additional material will be added to the container within 15 minutes; the person performing the loading operation leaving the immediate vicinity of the container; or the shutdown of the process generating the hazardous secondary material being added to the container, whichever condition occurs first.
(ii) Opening of a closure device or cover is allowed for the purpose of removing hazardous secondary material from the container as follows:
(A) For the purpose of meeting the requirements of this section, an empty hazardous secondary material container may be open to the atmosphere at any time (
(B) In the case when discrete quantities or batches of material are removed from the container, but the container is not an empty hazardous secondary material container, the remanufacturer or other person that stores or treats the hazardous secondary material shall promptly secure the closure devices in the closed position and install covers, as applicable to the container, upon the completion of a batch removal after which no additional material will be removed from the container within 15 minutes or the person performing the unloading operation leaves the immediate vicinity of the container, whichever condition occurs first.
(iii) Opening of a closure device or cover is allowed when access inside the container is needed to perform routine activities other than transfer of hazardous secondary material. Examples of such activities include those times when a worker needs to open a port to measure the depth of or sample the material in the container, or when a worker needs to open a manhole hatch to access equipment inside the container. Following completion of the activity, the remanufacturer or other person that stores or treats the hazardous secondary material shall promptly secure the closure device in the closed position or reinstall the cover, as applicable to the container.
(iv) Opening of a spring-loaded pressure-vacuum relief valve, conservation vent, or similar type of pressure relief device which vents to the atmosphere is allowed during normal operations for the purpose of maintaining the internal pressure of the container in accordance with the container design specifications. The device shall be designed to operate with no detectable organic emissions when the device is secured in the closed position. The settings at which the device opens shall be established such that the device remains in the closed position whenever the internal pressure of the container is within the internal pressure operating range determined by the remanufacturer or other persons that stores or treats the hazardous secondary material based on container manufacturer recommendations, applicable regulations, fire protection and prevention codes, standard engineering codes and practices, or other requirements for the safe handling of flammable, ignitable, explosive, reactive, or hazardous materials. Examples of normal operating conditions that may require these devices to open are during those times when the internal pressure of the container exceeds the internal pressure operating range for the container as a result of loading operations or diurnal ambient temperature fluctuations.
(v) Opening of a safety device, as defined in 40 CFR 261.1081, is allowed at any time conditions require doing so to avoid an unsafe condition.
(4) The remanufacturer or other person that stores or treats the hazardous secondary material using containers with Container Level 1 controls shall inspect the containers and their covers and closure devices as follows:
(i) In the case when a hazardous secondary material already is in the container at the time the remanufacturer or other person that stores or treats the hazardous secondary material first accepts possession of the container at the facility and the container is not emptied within 24 hours after the container is accepted at the facility (
(ii) In the case when a container used for managing hazardous secondary material remains at the facility for a period of 1 year or more, the remanufacturer or other person that stores or treats the hazardous secondary material shall visually inspect the container and its cover and closure devices initially and thereafter, at least once every 12 months, to check for visible cracks, holes, gaps, or other open spaces into the interior of the container when the cover and closure devices are secured in the closed position. If a defect is detected, the remanufacturer or other person that stores or treats the hazardous secondary material shall repair the defect in accordance with the requirements of paragraph (c)(4)(iii) of this section.
(iii) When a defect is detected for the container, cover, or closure devices, the remanufacturer or other person that stores or treats the hazardous secondary material shall make first efforts at repair of the defect no later than 24 hours after detection and repair shall be completed as soon as possible but no later than 5 calendar days after detection. If repair of a defect cannot be completed within 5 calendar days, then the hazardous secondary material shall be removed from the container and the container shall not be used to manage hazardous secondary material until the defect is repaired.
(5) The remanufacturer or other person that stores or treats the hazardous secondary material shall maintain at the facility a copy of the procedure used to determine that containers with capacity of 0.46 m
(d)
(i) A container that meets the applicable U.S. Department of Transportation (DOT) regulations on packaging hazardous materials for transportation as specified in paragraph (f) of this section.
(ii) A container that operates with no detectable organic emissions as defined in § 261.1081 and determined in accordance with the procedure specified in paragraph (g) of this section.
(iii) A container that has been demonstrated within the preceding 12 months to be vapor-tight by using 40 CFR part 60, appendix A, Method 27 in accordance with the procedure specified in paragraph (h) of this section.
(2) Transfer of hazardous secondary material in or out of a container using Container Level 2 controls shall be conducted in such a manner as to minimize exposure of the hazardous secondary material to the atmosphere, to the extent practical, considering the physical properties of the hazardous secondary material and good engineering and safety practices for handling flammable, ignitable, explosive, reactive, or other hazardous materials. Examples of container loading procedures that the EPA considers to meet the requirements of this paragraph include using any one of the following: a submerged-fill pipe or other submerged-fill method to load liquids into the container; a vapor-balancing system or a vapor-recovery system to collect and control the vapors displaced from the container during filling operations; or a fitted opening in the top of a container through which the hazardous secondary material is filled and subsequently purging the transfer line before removing it from the container opening.
(3) Whenever a hazardous secondary material is in a container using Container Level 2 controls, the remanufacturer or other person that stores or treats the hazardous secondary material shall install all covers and closure devices for the container, and secure and maintain each closure device in the closed position except as follows:
(i) Opening of a closure device or cover is allowed for the purpose of adding hazardous secondary material or other material to the container as follows:
(A) In the case when the container is filled to the intended final level in one continuous operation, the remanufacture or other person that stores or treats the hazardous secondary material shall promptly secure the closure devices in the closed position and install the covers, as applicable to the container, upon conclusion of the filling operation.
(B) In the case when discrete quantities or batches of material intermittently are added to the container over a period of time, the remanufacturer or other person that stores or treats the hazardous secondary material shall promptly secure the closure devices in the closed position and install covers, as applicable to the container, upon either the container being filled to the intended final level; the completion of a batch loading after which no additional material will be added to the container within 15 minutes; the person performing the loading operation leaving the immediate vicinity of the container; or the shutdown of the process generating the material being added to the container, whichever condition occurs first.
(ii) Opening of a closure device or cover is allowed for the purpose of removing hazardous secondary material from the container as follows:
(A) For the purpose of meeting the requirements of this section, an empty hazardous secondary material container may be open to the atmosphere at any time (
(B) In the case when discrete quantities or batches of material are removed from the container, but the container is not an empty hazardous secondary materials container, the remanufacturer or other person that stores or treats the hazardous secondary material shall promptly secure the closure devices in the closed position and install covers, as applicable to the container, upon the completion of a batch removal after which no additional material will be removed from the container within 15 minutes or the person performing the unloading operation leaves the immediate vicinity of the container, whichever condition occurs first.
(iii) Opening of a closure device or cover is allowed when access inside the container is needed to perform routine activities other than transfer of hazardous secondary material. Examples of such activities include those times when a worker needs to open a port to measure the depth of or sample the material in the container, or when a worker needs to open a manhole hatch to access equipment inside the container. Following completion of the activity, the remanufacturer or other person that stores or treats the hazardous secondary material shall promptly secure the closure device in the closed position or reinstall the cover, as applicable to the container.
(iv) Opening of a spring-loaded, pressure-vacuum relief valve, conservation vent, or similar type of pressure relief device which vents to the atmosphere is allowed during normal operations for the purpose of maintaining the internal pressure of the container in accordance with the container design specifications. The device shall be designed to operate with no detectable organic emission when the device is secured in the closed position. The settings at which the device opens shall be established such that the device remains in the closed
(v) Opening of a safety device, as defined in § 261.1081, is allowed at any time conditions require doing so to avoid an unsafe condition.
(4) The remanufacture or other person that stores or treats the hazardous secondary material using containers with Container Level 2 controls shall inspect the containers and their covers and closure devices as follows:
(i) In the case when a hazardous secondary material already is in the container at the time the remanufacturer or other person that stores or treats the hazardous secondary material first accepts possession of the container at the facility and the container is not emptied within 24 hours after the container is accepted at the facility (
(ii) In the case when a container used for managing hazardous secondary material remains at the facility for a period of 1 year or more, the remanufacturer or other person that stores or treats the hazardous secondary material shall visually inspect the container and its cover and closure devices initially and thereafter, at least once every 12 months, to check for visible cracks, holes, gaps, or other open spaces into the interior of the container when the cover and closure devices are secured in the closed position. If a defect is detected, the remanufacturer or other person that stores or treats the hazardous secondary material shall repair the defect in accordance with the requirements of paragraph (d)(4)(iii) of this section.
(iii) When a defect is detected for the container, cover, or closure devices, the remanufacturer or other person that stores or treats the hazardous secondary material shall make first efforts at repair of the defect no later than 24 hours after detection, and repair shall be completed as soon as possible but no later than 5 calendar days after detection. If repair of a defect cannot be completed within 5 calendar days, then the hazardous secondary material shall be removed from the container and the container shall not be used to manage hazardous secondary material until the defect is repaired.
(e)
(i) A container that is vented directly through a closed-vent system to a control device in accordance with the requirements of paragraph (e)(2)(ii) of this section.
(ii) A container that is vented inside an enclosure which is exhausted through a closed-vent system to a control device in accordance with the requirements of paragraphs (e)(2)(i) and (ii) of this section.
(2) The remanufacturer or other person that stores or treats the hazardous secondary material shall meet the following requirements, as applicable to the type of air emission control equipment selected by the remanufacturer or other person that stores or treats the hazardous secondary material:
(i) The container enclosure shall be designed and operated in accordance with the criteria for a permanent total enclosure as specified in “Procedure T—Criteria for and Verification of a Permanent or Temporary Total Enclosure” under 40 CFR 52.741, appendix B. The enclosure may have permanent or temporary openings to allow worker access; passage of containers through the enclosure by conveyor or other mechanical means; entry of permanent mechanical or electrical equipment; or direct airflow into the enclosure. The remanufacturer or other person that stores or treats the hazardous secondary material shall perform the verification procedure for the enclosure as specified in Section 5.0 to “Procedure T—Criteria for and Verification of a Permanent or Temporary Total Enclosure” initially when the enclosure is first installed and, thereafter, annually.
(ii) The closed-vent system and control device shall be designed and operated in accordance with the requirements of § 261.1087 of this subpart.
(3) Safety devices, as defined in § 261.1081, may be installed and operated as necessary on any container, enclosure, closed-vent system, or control device used to comply with the requirements of paragraph (e)(1) of this section.
(4) Remanufacturers or other persons that store or treat the hazardous secondary material using Container Level 3 controls in accordance with the provisions of this subpart shall inspect and monitor the closed-vent systems and control devices as specified in § 261.1087 of this subpart.
(5) Remanufacturers or other persons that store or treat the hazardous secondary material that use Container Level 3 controls in accordance with the provisions of this subpart shall prepare and maintain the records specified in § 261.1089(d) of this subpart.
(6) Transfer of hazardous secondary material in or out of a container using Container Level 3 controls shall be conducted in such a manner as to minimize exposure of the hazardous secondary material to the atmosphere, to the extent practical, considering the physical properties of the hazardous secondary material and good engineering and safety practices for handling flammable, ignitable, explosive, reactive, or other hazardous materials. Examples of container loading procedures that the EPA considers to meet the requirements of this paragraph include using any one of the following: a submerged-fill pipe or other submerged-fill method to load liquids into the container; a vapor-balancing system or a vapor-recovery system to collect and control the vapors displaced from the container during filling operations; or a fitted opening in the top of a container through which the hazardous secondary material is filled and subsequently purging the transfer line before removing it from the container opening.
(f) For the purpose of compliance with paragraph (c)(1)(i) or (d)(1)(i) of this section, containers shall be used that meet the applicable U.S. Department of Transportation (DOT) regulations on packaging hazardous materials for transportation as follows:
(1) The container meets the applicable requirements specified in 49 CFR part 178 or part 179.
(2) Hazardous secondary material is managed in the container in accordance with the applicable requirements
(3) For the purpose of complying with this subpart, no exceptions to the 49 CFR part 178 or part 179 regulations are allowed.
(g) To determine compliance with the no detectable organic emissions requirement of paragraph (d)(1)(ii) of this section, the procedure specified in § 261.1083(d) of this subpart shall be used.
(1) Each potential leak interface (
(2) The test shall be performed when the container is filled with a material having a volatile organic concentration representative of the range of volatile organic concentrations for the hazardous secondary materials expected to be managed in this type of container. During the test, the container cover and closure devices shall be secured in the closed position.
(h) Procedure for determining a container to be vapor-tight using Method 27 of 40 CFR part 60, appendix A for the purpose of complying with paragraph (d)(1)(iii) of this section.
(1) The test shall be performed in accordance with Method 27 of 40 CFR part 60, appendix A of this chapter.
(2) A pressure measurement device shall be used that has a precision of ±2.5 mm water and that is capable of measuring above the pressure at which the container is to be tested for vapor tightness.
(3) If the test results determined by Method 27 indicate that the container sustains a pressure change less than or equal to 750 Pascals within 5 minutes after it is pressurized to a minimum of 4,500 Pascals, then the container is determined to be vapor-tight.
(a) This section applies to each closed-vent system and control device installed and operated by the remanufacturer or other person who stores or treats the hazardous secondary material to control air emissions in accordance with standards of this subpart.
(b) The closed-vent system shall meet the following requirements:
(1) The closed-vent system shall route the gases, vapors, and fumes emitted from the hazardous secondary material in the hazardous secondary material management unit to a control device that meets the requirements specified in paragraph (c) of this section.
(2) The closed-vent system shall be designed and operated in accordance with the requirements specified in § 261.1033(k) of this part.
(3) In the case when the closed-vent system includes bypass devices that could be used to divert the gas or vapor stream to the atmosphere before entering the control device, each bypass device shall be equipped with either a flow indicator as specified in paragraph (b)(3)(i) of this section or a seal or locking device as specified in paragraph (b)(3)(ii) of this section. For the purpose of complying with this paragraph, low leg drains, high point bleeds, analyzer vents, open-ended valves or lines, spring loaded pressure relief valves, and other fittings used for safety purposes are not considered to be bypass devices.
(i) If a flow indicator is used to comply with paragraph (b)(3) of this section, the indicator shall be installed at the inlet to the bypass line used to divert gases and vapors from the closed-vent system to the atmosphere at a point upstream of the control device inlet. For this paragraph, a flow indicator means a device which indicates the presence of either gas or vapor flow in the bypass line.
(ii) If a seal or locking device is used to comply with paragraph (b)(3) of this section, the device shall be placed on the mechanism by which the bypass device position is controlled (
(4) The closed-vent system shall be inspected and monitored by the remanufacturer or other person that stores or treats the hazardous secondary material in accordance with the procedure specified in § 261.1033(l).
(c) The control device shall meet the following requirements:
(1) The control device shall be one of the following devices:
(i) A control device designed and operated to reduce the total organic content of the inlet vapor stream vented to the control device by at least 95 percent by weight;
(ii) An enclosed combustion device designed and operated in accordance with the requirements of § 261.1033(c) of this part; or
(iii) A flare designed and operated in accordance with the requirements of § 261.1033(d) of this part.
(2) The remanufacturer or other person that stores or treats the hazardous secondary material who elects to use a closed-vent system and control device to comply with the requirements of this section shall comply with the requirements specified in paragraphs (c)(2)(i) through (vi) of this section.
(i) Periods of planned routine maintenance of the control device, during which the control device does not meet the specifications of paragraph (c)(1)(i), (ii), or (iii) of this section, as applicable, shall not exceed 240 hours per year.
(ii) The specifications and requirements in paragraphs (c)(1)(i) through (iii) of this section for control devices do not apply during periods of planned routine maintenance.
(iii) The specifications and requirements in paragraphs (c)(1)(i) through (iii) of this section for control devices do not apply during a control device system malfunction.
(iv) The remanufacturer or other person that stores or treats the hazardous secondary material shall demonstrate compliance with the requirements of paragraph (c)(2)(i) of this section (
(v) The remanufacturer or other person that stores or treats the hazardous secondary material shall correct control device system malfunctions as soon as practicable after their occurrence in order to minimize excess emissions of air pollutants.
(vi) The remanufacturer or other person that stores or treats the hazardous secondary material shall operate the closed-vent system such that gases, vapors, or fumes are not actively vented to the control device during periods of planned maintenance or control device system malfunction (
(3) The remanufacturer or other person that stores or treats the hazardous secondary material using a carbon adsorption system to comply with paragraph (c)(1) of this section shall operate and maintain the control device in accordance with the following requirements:
(i) Following the initial startup of the control device, all activated carbon in the control device shall be replaced with fresh carbon on a regular basis in accordance with the requirements of § 261.1033(g) or (h) of this part.
(ii) All carbon that is hazardous waste and that is removed from the control device shall be managed in accordance with the requirements of § 261.1033(n), regardless of the average volatile organic concentration of the carbon.
(4) A remanufacturer or other person that stores or treats the hazardous secondary material using a control device other than a thermal vapor incinerator, flare, boiler, process heater, condenser, or carbon adsorption system to comply with paragraph (c)(1) of this section shall operate and maintain the control device in accordance with the requirements of § 261.1033(j) of this part.
(5) The remanufacturer or other person that stores or treats the hazardous secondary material shall demonstrate that a control device achieves the performance requirements of paragraph (c)(1) of this section as follows:
(i) A remanufacturer or other person that stores or treats the hazardous secondary material shall demonstrate using either a performance test as specified in paragraph (c)(5)(iii) of this section or a design analysis as specified in paragraph (c)(5)(iv) of this section the performance of each control device except for the following:
(A) A flare;
(B) A boiler or process heater with a design heat input capacity of 44 megawatts or greater;
(C) A boiler or process heater into which the vent stream is introduced with the primary fuel;
(ii) A remanufacturer or other person that stores or treats the hazardous secondary material shall demonstrate the performance of each flare in accordance with the requirements specified in § 261.1033(e).
(iii) For a performance test conducted to meet the requirements of paragraph (c)(5)(i) of this section, the remanufacturer or other person that stores or treats the hazardous secondary material shall use the test methods and procedures specified in § 261.1034(c)(1) through (4).
(iv) For a design analysis conducted to meet the requirements of paragraph (c)(5)(i) of this section, the design analysis shall meet the requirements specified in § 261.1035(b)(4)(iii).
(v) The remanufacturer or other person that stores or treats the hazardous secondary material shall demonstrate that a carbon adsorption system achieves the performance requirements of paragraph (c)(1) of this section based on the total quantity of organics vented to the atmosphere from all carbon adsorption system equipment that is used for organic adsorption, organic desorption or carbon regeneration, organic recovery, and carbon disposal.
(6) If the remanufacturer or other person that stores or treats the hazardous secondary material and the Regional Administrator do not agree on a demonstration of control device performance using a design analysis then the disagreement shall be resolved using the results of a performance test performed by the remanufacturer or other person that stores or treats the hazardous secondary material in accordance with the requirements of paragraph (c)(5)(iii) of this section. The Regional Administrator may choose to have an authorized representative observe the performance test.
(7) The closed-vent system and control device shall be inspected and monitored by the remanufacture or other person that stores or treats the hazardous secondary material in accordance with the procedures specified in § 261.1033(f)(2) and (l). The readings from each monitoring device required by § 261.1033(f)(2) shall be inspected at least once each operating day to check control device operation. Any necessary corrective measures shall be immediately implemented to ensure the control device is operated in compliance with the requirements of this section.
(a) The remanufacturer or other person that stores or treats the hazardous secondary material shall inspect and monitor air emission control equipment used to comply with this subpart in accordance with the applicable requirements specified in §§ 261.1084 through 261.1087 of this subpart.
(b) The remanufacture or other person that stores or treats the hazardous secondary material shall develop and implement a written plan and schedule to perform the inspections and monitoring required by paragraph (a) of this section. The remanufacturer or other person that stores or treats the hazardous secondary material shall keep the plan and schedule at the facility.
(a) Each remanufacturer or other person that stores or treats the hazardous secondary material subject to requirements of this subpart shall record and maintain the information specified in paragraphs (b) through (j) of this section, as applicable to the facility. Except for air emission control equipment design documentation and information required by paragraphs (i) and (j) of this section, records required by this section shall be maintained at the facility for a minimum of 3 years. Air emission control equipment design documentation shall be maintained at the facility until the air emission control equipment is replaced or otherwise no longer in service. Information required by paragraphs (i) and (j) of this section shall be maintained at the facility for as long as the hazardous secondary material management unit is not using air emission controls specified in §§ 261.1084 through 261.1087 of this subpart in accordance with the conditions specified in § 261.1080(b)(7) or (d) of this subpart, respectively.
(b) The remanufacturer or other person that stores or treats the hazardous secondary material using a tank with air emission controls in accordance with the requirements of § 261.1084 of this subpart shall prepare and maintain records for the tank that include the following information:
(1) For each tank using air emission controls in accordance with the requirements of § 261.1084 of this subpart, the remanufacturer or other person that stores or treats the hazardous secondary material shall record:
(i) A tank identification number (or other unique identification description as selected by the remanufacturer or other person that stores or treats the hazardous secondary material).
(ii) A record for each inspection required by § 261.1084 of this subpart that includes the following information:
(A) Date inspection was conducted.
(B) For each defect detected during the inspection: The location of the defect, a description of the defect, the date of detection, and corrective action taken to repair the defect. In the event that repair of the defect is delayed in accordance with the requirements of § 261.1084 of this subpart, the remanufacturer or other person that stores or treats the hazardous secondary
(2) In addition to the information required by paragraph (b)(1) of this section, the remanufacturer or other person that stores or treats the hazardous secondary material shall record the following information, as applicable to the tank:
(i) The remanufacturer or other person that stores or treats the hazardous secondary material using a fixed roof to comply with the Tank Level 1 control requirements specified in § 261.1084(c) of this subpart shall prepare and maintain records for each determination for the maximum organic vapor pressure of the hazardous secondary material in the tank performed in accordance with the requirements of § 261.1084(c) of this subpart. The records shall include the date and time the samples were collected, the analysis method used, and the analysis results.
(ii) The remanufacturer or other person that stores or treats the hazardous secondary material using an internal floating roof to comply with the Tank Level 2 control requirements specified in § 261.1084(e) of this subpart shall prepare and maintain documentation describing the floating roof design.
(iii) Remanufacturer or other persons that store or treat the hazardous secondary material using an external floating roof to comply with the Tank Level 2 control requirements specified in § 261.1084(f) of this subpart shall prepare and maintain the following records:
(A) Documentation describing the floating roof design and the dimensions of the tank.
(B) Records for each seal gap inspection required by § 261.1084(f)(3) of this subpart describing the results of the seal gap measurements. The records shall include the date that the measurements were performed, the raw data obtained for the measurements, and the calculations of the total gap surface area. In the event that the seal gap measurements do not conform to the specifications in § 261.1084(f)(1) of this subpart, the records shall include a description of the repairs that were made, the date the repairs were made, and the date the tank was emptied, if necessary.
(iv) Each remanufacturer or other person that stores or treats the hazardous secondary material using an enclosure to comply with the Tank Level 2 control requirements specified in § 261.1084(i) of this subpart shall prepare and maintain the following records:
(A) Records for the most recent set of calculations and measurements performed by the remanufacturer or other person that stores or treats the hazardous secondary material to verify that the enclosure meets the criteria of a permanent total enclosure as specified in “Procedure T—Criteria for and Verification of a Permanent or Temporary Total Enclosure” under 40 CFR 52.741, appendix B.
(B) Records required for the closed-vent system and control device in accordance with the requirements of paragraph (e) of this section.
(c) [Reserved]
(d) The remanufacturer or other person that stores or treats the hazardous secondary material using containers with Container Level 3 air emission controls in accordance with the requirements of § 261.1086 of this subpart shall prepare and maintain records that include the following information:
(1) Records for the most recent set of calculations and measurements performed by the remanufacturer or other person that stores or treats the hazardous secondary material to verify that the enclosure meets the criteria of a permanent total enclosure as specified in “Procedure T—Criteria for and Verification of a Permanent or Temporary Total Enclosure” under 40 CFR 52.741, appendix B.
(2) Records required for the closed-vent system and control device in accordance with the requirements of paragraph (e) of this section.
(e) The remanufacturer or other person that stores or treats the hazardous secondary material using a closed-vent system and control device in accordance with the requirements of § 261.1087 of this subpart shall prepare and maintain records that include the following information:
(1) Documentation for the closed-vent system and control device that includes:
(i) Certification that is signed and dated by the remanufacturer or other person that stores or treats the hazardous secondary material stating that the control device is designed to operate at the performance level documented by a design analysis as specified in paragraph (e)(1)(ii) of this section or by performance tests as specified in paragraph (e)(1)(iii) of this section when the tank or container is or would be operating at capacity or the highest level reasonably expected to occur.
(ii) If a design analysis is used, then design documentation as specified in § 261.1035(b)(4). The documentation shall include information prepared by the remanufacturer or other person that stores or treats the hazardous secondary material or provided by the control device manufacturer or vendor that describes the control device design in accordance with § 261.1035(b)(4)(iii) and certification by the remanufacturer or other person that stores or treats the hazardous secondary material that the control equipment meets the applicable specifications.
(iii) If performance tests are used, then a performance test plan as specified in § 261.1035(b)(3) and all test results.
(iv) Information as required by §§ 261.1035(c)(1) and 261.1035(c)(2), as applicable.
(v) A remanufacturer or other person that stores or treats the hazardous secondary material shall record, on a semiannual basis, the information specified in paragraphs (e)(1)(v)(A) and (B) of this section for those planned routine maintenance operations that would require the control device not to meet the requirements of § 261.1087(c)(1)(i), (ii), or (iii) of this subpart, as applicable.
(A) A description of the planned routine maintenance that is anticipated to be performed for the control device during the next 6-month period. This description shall include the type of maintenance necessary, planned frequency of maintenance, and lengths of maintenance periods.
(B) A description of the planned routine maintenance that was performed for the control device during the previous 6-month period. This description shall include the type of maintenance performed and the total number of hours during those 6 months that the control device did not meet the requirements of § 261.1087(c)(1)(i), (ii), or (iii) of this subpart, as applicable, due to planned routine maintenance.
(vi) A remanufacturer or other person that stores or treats the hazardous secondary material shall record the information specified in paragraphs (e)(1)(vi)(A) through (C) of this section for those unexpected control device system malfunctions that would require the control device not to meet the requirements of § 261.1087(c)(1)(i), (ii), or (iii) of this subpart, as applicable.
(A) The occurrence and duration of each malfunction of the control device system.
(B) The duration of each period during a malfunction when gases, vapors, or fumes are vented from the hazardous secondary material management unit through the closed-vent system to the control device while the control device is not properly functioning.
(C) Actions taken during periods of malfunction to restore a malfunctioning control device to its normal or usual manner of operation.
(vii) Records of the management of carbon removed from a carbon adsorption system conducted in accordance with § 261.1087(c)(3)(ii) of this subpart.
(f) The remanufacturer or other person that stores or treats the hazardous secondary material using a tank or container exempted under the hazardous secondary material organic concentration conditions specified in § 261.1082(c)(1) or (c)(2)(i) through (vi) of this subpart, shall prepare and maintain at the facility records documenting the information used for each material determination (
(2) [Reserved]
(g) A remanufacturer or other person that stores or treats the hazardous secondary material designating a cover as “unsafe to inspect and monitor” pursuant to § 261.1084(l) or § 261.1085(g) of this subpart shall record and keep at facility the following information: The identification numbers for hazardous secondary material management units with covers that are designated as “unsafe to inspect and monitor,” the explanation for each cover stating why the cover is unsafe to inspect and monitor, and the plan and schedule for inspecting and monitoring each cover.
(h) The remanufacturer or other person that stores or treats the hazardous secondary material that is subject to this subpart and to the control device standards in 40 CFR part 60, subpart VV, or 40 CFR part 61, subpart V, may elect to demonstrate compliance with the applicable sections of this subpart by documentation either pursuant to this subpart, or pursuant to the provisions of 40 CFR part 60, subpart VV or 40 CFR part 61, subpart V, to the extent that the documentation required by 40 CFR parts 60 or 61 duplicates the documentation required by this section.
U.S. Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve state implementation plan (SIP) revisions submitted by California to address Clean Air Act (CAA or Act) requirements for the 2006 24-hour fine particulate matter (PM
Any comments must arrive by February 27, 2015.
Submit comments, identified by docket number EPA-R09-OAR-2014-0636, by one of the following methods:
• Federal eRulemaking Portal:
• Email:
• Mail or deliver: Wienke Tax, Office of Air Planning (AIR-2), U.S. Environmental Protection Agency Region 9, 75 Hawthorne Street, San Francisco, CA 94105.
Wienke Tax, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region 9, (415) 947-4192,
Throughout this document, “we,” “us” and “our” refer to the EPA.
On October 17, 2006, the EPA revised the 24-hour national ambient air quality standard (NAAQS or standard) for PM
Following promulgation of a new or revised NAAQS, the EPA is required by CAA section 107(d) to designate areas throughout the nation as attaining or not attaining the NAAQS. On November 13, 2009, the EPA designated the SJV as nonattainment for the 2006 PM
The SJV PM
The local air district with primary responsibility for developing plans to attain the NAAQS in the area is the San Joaquin Valley Air Pollution Control District (SJVAPCD or District). The District works cooperatively with the California Air Resources Board (CARB) in preparing these plans. Authority for regulating sources under state jurisdiction in the SJV is split between the District, which has responsibility for regulating stationary and most area sources, and CARB, which has responsibility for regulating most mobile sources.
Ambient 24-hour PM
In April 2007, the EPA issued the Clean Air Fine Particle Implementation Rule (“2007 PM
In March 2012, the EPA issued a guidance document to aid states in preparing SIPs to meet the Act's attainment planning requirements for the 2006 24-hour PM
California had three years from the effective date of SJV's designation as nonattainment for the 2006 PM
On January 4, 2013, several weeks after the District's adoption of the Plan, the U.S. Court of Appeals for the DC Circuit issued its decision in a challenge to the EPA's 2007 mPM
Consistent with the
On September 18, 2014, the District adopted the “Supplemental Document, Clean Air Act Subpart 4: The 2012 PM
The EPA has longstanding guidance interpreting the subpart 4 requirements for particulate matter nonattainment areas (
Because the 2012 PM
As part of this proposal, the EPA is proposing to determine that the SJV cannot practicably attain the 2006 PM
We are proposing action on two California SIP submittals. The first is the “2012 PM
CAA sections 110(a)(1) and (2) and 110(l) require each state to provide reasonable public notice and opportunity for public hearing prior to the adoption and submittal of a SIP or SIP revision. To meet this requirement, every SIP submittal should include evidence that adequate public notice was given and an opportunity for a public hearing was provided consistent with the EPA's implementing regulations in 40 CFR 51.102.
Both the District and CARB satisfied applicable statutory and regulatory requirements for reasonable public notice and hearing prior to adoption and submittal of the 2012 PM
The District adopted the Supplement after reasonable public notice and hearing.
CAA section 110(k)(1)(B) requires the EPA to determine whether a SIP submittal is complete within 60 days of receipt. This section also provides that any plan that the EPA has not affirmatively determined to be complete or incomplete will become complete by operation of law six months after the date of submittal. The EPA's SIP completeness criteria are found in 40 CFR part 51, Appendix V.
The March 4, 2013 submittal of the 2012 PM
We summarize our evaluation of the 2012 PM
CAA section 172(c)(3) requires that each SIP include a “comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant or pollutants in [the] area. . . .” By requiring an accounting of actual emissions from all sources of the relevant pollutants in the area, this section provides for the base year inventory to include all emissions that contribute to the formation of a particular NAAQS pollutant. For the 2006 24-hour PM
A state should include in its SIP submittal documentation explaining how the emissions data were calculated. In estimating mobile source emissions, a state should use the latest emissions models and planning assumptions available at the time the SIP is developed. California is required to use EMFAC2011 to estimate tailpipe and brake and tire wear emissions of PM
In addition to the base year inventory submitted to meet the requirements of CAA section 172(c)(3), the state must also submit future “baseline inventories” for the projected attainment year and each reasonable further progress (RFP) milestone year, and any other year of significance for meeting applicable CAA requirements. By “baseline inventories” (also referred to as “projected baseline inventories”), we mean projected emissions inventories for future years that account for, among other things, the ongoing effects of economic growth and adopted emissions control requirements. The SIP should include documentation explaining how the emissions projections were calculated.
The planning inventories for direct PM
Each inventory includes emissions from point, area, on-road, and non-road sources. The inventories use EMFAC2011 for estimating on-road motor vehicle emissions (p. B-26). After EMFAC2011 was released in 2011, new information on statewide diesel fuel usage and economic forecasts became available to the State. For the 2012 PM
Table 1 provides a summary of the winter daily average inventories of direct PM
The inventories in the 2012 PM
CAA section 189(a)(1)(B) requires each state in which a Moderate area is located to submit a plan that includes a demonstration either (i) that the plan will provide for attainment by the applicable attainment date, or (ii) that attainment by that date is impracticable. The 2012 PM
Air quality modeling is used to establish emissions attainment targets, the combination of emissions of PM
For demonstrating attainment, the EPA's recommendations for model input preparation, model performance evaluation, use of the model output for the attainment demonstration, and modeling documentation are described in
The EPA recommends that states prepare modeling protocols as part of their modeled attainment demonstrations (Guidance, p. 133). The Guidance (at pp. 133-134) describes the topics to be addressed in this modeling protocol. A modeling protocol should detail and formalize the procedures for conducting all phases of the modeling analysis, such as describing the background and objectives, creating a schedule and organizational structure, developing the input data, conducting model performance evaluations, interpreting modeling results, describing procedures for using the model to demonstrate whether proposed strategies are sufficient to attain the applicable standard, and producing documentation to be submitted for EPA Regional Office review and approval prior to actual modeling.
In addition to a modeled attainment demonstration, which focuses on locations with an air quality monitor, EPA's Guidance describes an Unmonitored Area Analysis (UAA). This analysis is intended to ensure that a control strategy leads to reductions in PM
Finally, as discussed below, the Modeling Guidance recommends supplemental air quality analyses. These may be used as part of a Weight of Evidence analysis (WOEA), which assesses attainment by considering evidence other than the main air quality modeling attainment test. While supplemental analyses can increase confidence in the reliability of the modeling, they are less important for evaluating the impracticability demonstration
A brief description of the modeling in 2012 PM
CARB and the District jointly performed the air quality modeling for the 2012 PM
The air quality modeling and results are summarized in Chapter 4 of the Plan (section 4.5, p. 4-22) and in the WOEA (section 10, p. 62). The Plan's meteorological model and air quality model performance statistics and graphics are available from the CARB Web site (“Meteorology and Air Quality Modeling for the 2012 24-Hour PM
The 2012 PM
The modeling showed that existing State and District control measures are not sufficient to attain the 2006 PM
Given the extensive discussion of modeling procedures, tests, and performance analyses called for in the Modeling Protocol and the good model performance, the EPA finds that the modeling is adequate for purposes of supporting the RACM demonstration, the RFP demonstration, and the demonstration of impracticability in the 2012 PM
While the State included a UAA in the Plan, it makes no difference for the impracticability demonstration we are concerned with here. Any unmonitored peaks with concentrations higher than at the monitors would merely strengthen the case for attainment being impracticable by the required date. A demonstration that attainment is impracticable at monitor locations is sufficient to meet the requirements of section 189(a)(1)(B)(ii). The EPA finds that the supplemental analyses presented in the WOEA are useful in a weight of evidence analysis, and support the demonstration of the impracticability of attainment by 2015.
We note finally that existing ambient air quality monitoring data also support the modeled demonstration that attainment of the 2006 PM
The composition of PM
The 2007 PM
In
The provisions of subpart 4 do not define the term “precursor” for purposes of PM
Section 189(e) of the Act requires that the control requirements for major stationary sources of direct PM
We are evaluating the SJV PM
In the 2012 PM
The 2012 PM
The 2012 PM
Ambient PM
Based on the technical analyses provided in the Plan, the EPA agrees with the State's and District's conclusion that SO
The 2012 PM
The Plan indicates that the ambient contribution of NO
In addition to this evidence on the contribution of NO
The 2012 PM
The Plan further describes the effectiveness of NO
The WOEA includes plots (Figures 16 and 17, p. 19) of ammonia and nitric acid (which contains nitrate) concentrations at two monitoring sites in the SJV (Angiola and Fresno) that were measured during the winter 2000-2001 CRPAQS
The WOEA also considers emissions inventories to support the argument that NO
Based on the range of technical analyses provided in the Plan and other information available to EPA, the EPA agrees with the State's and District's conclusion that NO
The 2012 PM
The Plan indicates that ammonia contributes to ambient concentrations of PM
Next we examine information in the Plan regarding the sensitivity of ambient PM
The Plan's evidence discussed above to support the argument that NO
The 2012 PM
The Plan also notes that, assuming the same rate of improvement in ambient PM
The Plan assumes that additional ammonia control, as modeled, would provide limited benefit for attainment planning purposes. The Plan concludes, based upon the various information and analyses described above, that “ammonia reductions would not significantly contribute to the Valley's attainment of the 2006 PM
After reviewing the information discussed above, EPA believes that the information provided by the State and District in the Plan and Supplement shows that ammonia contributes to a large fraction of measured PM
While EPA finds the modeling and other analyses presented in the 2012 PM
Regarding the Plan's statement that it would take a 34 percent reduction in
In summary, the information provided by the State and District in the Plan and Supplement shows that ammonia contributes to a large fraction of measured PM
While stating that additional ammonia reductions are not necessary, the State nevertheless provided in the Supplement an evaluation of ammonia control measures currently implemented in the SJV and other potential ammonia control measures. We discuss the State's ammonia control evaluation in section D, below (“Reasonably Available Control Measures/Reasonably Available Control Technology”).
The 2012 PM
There are two routes by which VOC can contribute to ambient PM
For the direct contribution of VOC to PM
For the indirect contribution of VOC to PM
Added to this evidence from past studies is the 2012 Plan's current modeling, which indicates a disbenefit from controlling VOC at important geographic locations. This is shown by negative PM
In sum, the information provided by the State and District in the Plan and Supplement shows that: (a) wintertime levels of secondary organic aerosol measured in the SJV are low and therefore the direct products of VOC emissions do not directly contribute significantly to PM
Based on a review of the information provided by the District and other information available to EPA, we propose to determine that at this time VOC emissions do not contribute significantly to ambient PM
CAA section 172(c) under subpart 1 describes the general attainment plan requirement for RACM and RACT, requiring that attainment plan submissions “provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment” of the NAAQS. The attainment planning requirements specific to PM
The terms RACM and RACT are not specifically defined in the Act, nor do the provisions of subpart 4 specify how states are to meet the RACM and RACT requirements. In longstanding guidance, however, the EPA has interpreted the RACM requirement to include any potential control measure for a point, area, on-road and non-road emission source that is technologically and economically feasible (General Preamble at 13540) and is not “absurd, unenforceable, or impracticable” (General Preamble at 13560). The EPA has historically defined RACT as the lowest emission limitation that a particular stationary source is capable of meeting by the application of control technology (
The EPA recommends that states use the following process to identify RACM/RACT:
1. Develop a comprehensive list of available control measures for all source categories in the nonattainment area. In developing this list, the state should identify existing control measures currently being implemented in the area and also include any control measures suggested in public comments.
2. Remove from the list any measure that is unreasonable because emissions from the affected source or source category are insignificant (
3. Evaluate each remaining available control measure for its “reasonableness,” considering technological and economic feasibility and any potentially adverse impacts. The state should provide a reasoned justification if it rejects a listed control measure as unreasonable.
4. Include in its submitted Moderate area attainment plan, in enforceable form, each control measure found to be reasonable unless the measure is already either federally promulgated, part of the state's SIP, or otherwise creditable in SIPs. In areas that demonstrate attainment by the Moderate area attainment date, the state may justify rejection of an otherwise reasonable measure by demonstrating that the measure would not, individually or collectively with other reasonable measures being rejected, advance attainment by one year or more. For areas that demonstrate that attainment by the Moderate area attainment date is impracticable, the state must provide for the implementation of all available control measures that are technologically and economically feasible.
An evaluation of technological feasibility should include consideration of factors such as a source's process and operating conditions, raw materials, physical plant layout, and non-air quality and energy impacts (
An evaluation of economic feasibility should include consideration of factors such as cost per ton of pollution reduced (cost-effectiveness), capital costs, and annualized cost (57 FR 18070, 18074). Absent other indications, the EPA presumes that it is reasonable for similar sources to bear similar costs of emissions reductions. Economic feasibility of RACM and RACT is thus largely informed by evidence that other sources in a source category have in fact applied the control technology, process change, or measure in question in similar circumstances.
The 2012 PM
The evaluation of potential controls in the 2012 PM
The following information is provided in Appendix D for each stationary or area source category or District rule or, for ammonia sources, in Attachment A to the Supplement:
• A description of the sources within the category or sources subject to the rule;
• base year (2007), current year (2012), and projected baseline year emissions (for every year from 2014 to 2019) in the source category or affected by the rule;
• a discussion of the current rule requirements and/or listing and discussion of existing rules, regulations, or other control efforts that address the source category; and
• identification and discussion of potential new controls, including in many cases, a discussion of the technological and economic feasibility of the new controls. Rules adopted by other agencies (including the EPA, South Coast AQMD, and Bay Area AQMD) are discussed and compared to existing SJV rules. Measures proposed by the public for the source category/rule are also identified and discussed. In addition, non-regulatory approaches to reducing emissions in each stationary and area source category are discussed, including the use of incentives, opportunities for technology advancement programs, policy initiatives, and education/outreach programs.
The following information is provided in Appendix C for each major on- and off-road mobile source category:
• A description of the type of sources in the category;
• base year (2007), current year (2012), and projected baseline year emissions (for every year from 2014 to 2019) in the source category;
• a discussion of the current rule requirements and/or listing and discussion of existing rules, regulations, or other control efforts that address the source category; and
• identification and discussion of potential new controls. Measures proposed by the public for the source category/rule are also identified and discussed with the majority of this discussion presented in the responses to comments in Appendix I, pp. I-10 to I-13.
Through this evaluation process, the District identified 5 new control measures for adoption. The 2012 PM
The District also identified a number of source categories for which existing information is inadequate to determine the feasibility of additional controls. These categories and the additional controls to be studied are discussed in section 5.3.3. (p. 5-24). The schedule for these studies is given in Table 5-4 (p. 5-24).
The Plan also includes descriptions of the District's incentive programs
The efforts by the SJV's eight metropolitan planning organizations (MPO)
The Supplement identifies three categories of ammonia (NH
The Supplement also compares Rule 4570 to the Idaho Department of Environmental Quality's (IDEQ) dairy ammonia permit by rule, adopted in 2009 (Idaho rule).
The process followed by the District in the 2012 PM
We have reviewed the District's determination in the 2012 PM
As noted in the General Preamble, Congress recognized that PM precursors may be otherwise controlled and expressly recommended that the EPA consider other provisions of the CAA in addressing precursors (General Preamble at 13542, n. 22). Accordingly, the General Preamble provides that a state may demonstrate in a SIP submittal that control of VOC under other CAA requirements relieves it from the need to adopt additional controls for VOC as a precursor under section 189(e).
We have also reviewed the District's analysis of current and potentially available ammonia controls for the three largest sources of ammonia emissions in the SJV: CAF operations, agricultural fertilizer application, and composting operations. Collectively these sources account for 96 percent of total base year (2007) ammonia emissions.
We note that two of the remaining source categories (open burning and residential wood burning at a combined 2.9 tpd in 2007) are covered by SIP-approved rules that prohibit and/or curtail burning and therefore also reduce ammonia emissions from these sources.
With respect to the Idaho rule, because it is based on a point system and Rule 4570 is based on numbers of BMPs for different components of the CAF operation, it is difficult to compare the requirements in these two rules
In the absence of specific information regarding more stringent ammonia air emission control measures that may be technologically and economically feasible for implementation in the SJV area, we find the District's evaluation of Rule 4565, Rule 4566 and Rule 4570 in comparison to analogous rules adopted elsewhere is adequate to demonstrate that the District is implementing all available control measures for ammonia emissions from CAFs and composting operations that are technologically and economically feasible for implementation in the SJV at this time. We note, however, that the District's analyses of these rules appear to rest on certain assumptions concerning ammonia emissions reductions that are not supported by specific documentation or analyses (
For the foregoing reasons, we propose to find that the 2012 PM
CAA section 189(e) specifically requires that the control requirements applicable to major stationary sources of
CAA section 110(a)(2)(A) provides that each SIP “shall include enforceable emission limitations and other control measures, means or techniques . . . as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirement of the Act.” Section 172(c)(6) of the Act, which applies to nonattainment SIPs, is virtually identical to section 110(a)(2)(A).
Generally, the EPA will approve a State plan that takes emissions reduction credit for a control measure only where the EPA has approved the measure as part of the SIP, or in the case of certain on-road and nonroad measures, where the EPA has issued the related waiver of preemption or authorization under CAA section 209(b) or section 209(e). The EPA has, however, approved enforceable commitments that are limited in scope where circumstances exist that warrant the use of such commitments in place of adopted measures. Commitments approved by the EPA under CAA section 110(k)(3) are enforceable by the EPA and citizens under CAA sections 113 and 304, respectively. In the past, the EPA has approved enforceable commitments and courts have enforced actions against states that failed to comply with them.
Once the EPA determines that circumstances warrant use of an enforceable commitment, the EPA considers three factors in determining whether to approve the use of an enforceable commitment to meet a CAA requirement: (a) Does the commitment address a limited portion of the CAA-required program; (b) is the state capable of fulfilling its commitment; and (c) is the commitment for a reasonable and appropriate period of time.
For purposes of evaluating the 2012 PM
As the term is used here, baseline measures are federal, State, and District rules and regulations adopted prior to January 2012 (
Control strategy measures are the new rules, rule revisions, commitments, and other measures that provide the additional increment of emissions reductions needed beyond the baseline measures to provide for attainment (when applicable), to demonstrate RFP, to meet the RACM/RACT requirement, or to provide for contingency measures.
For the Plan, the District identified and committed to adopt, submit, and implement amendments to four District prohibitory rules as well as to adopt and submit a rule to provide a process for quantifying emission reductions from the use of incentive funds (Rule 9610) (2012 PM
As discussed above, the Plan provides for the vast majority of the emissions reductions necessary for attainment to be achieved by baseline measures. These reductions come from a combination of District, State, and federal stationary and mobile source measures. Over the past two decades, the District has adopted or revised almost 40 prohibitory rules that limit emissions of NO
The State's mobile source measures fall into two categories: Measures for which the State has obtained or has applied to obtain a waiver of federal pre-emption or authorization under CAA section 209 (“section 209 waiver measures” or “waiver measures”) and those for which the State is not required to obtain a waiver or authorization (“non-waiver measures” or “SIP measures”). We believe that credit for emissions reductions from implementation of California mobile source rules that are subject to CAA section 209 waivers or authorizations (
Credit for Federal measures, including those that establish on-road and nonroad standards, notwithstanding their absence in the SIP, is justified by reference to CAA section 110(a)(2)(A), which establishes the following content requirements for SIPs: “* * * enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), * * *, as may be
First, with respect to permanence, we note that, to maintain a waiver, CARB's on-road waiver measures can be relaxed only to a level of aggregate equivalence to the Federal Motor Vehicle Control Program (FMVCP). (CAA section 209(b)(1)). In this respect, the FMVCP acts as a partial backstop to California's on-road waiver measures (
Second, as to enforceability, we note that the waiver process itself bestows enforceability onto California to enforce the on-road or nonroad standards for which the EPA has issued the waiver or authorization. CARB has as long a history of enforcement of vehicle/engine
As to quantifiability, the EPA's historical practice has been to give SIP credit for motor-vehicle-related waiver measures by allowing California to include motor vehicle emissions estimates made by using California's EMFAC (and its predecessors) motor vehicle emissions factor model in SIP inventories. The EPA verifies the emissions reductions from motor-vehicle-related waiver measures through review and approval of EMFAC, which is updated from time to time by California to reflect updated methods and data, as well as newly-established emissions standards. (Emissions reductions from the EPA's motor vehicle standards are reflected in an analogous model known as MOVES.) The EMFAC model is based on the motor vehicle emissions standards for which California has received waivers from the EPA but accounts for vehicle deterioration and many other factors. The motor vehicle emissions estimates themselves combine EMFAC results with vehicle activity estimates, among other considerations. See the 1982 Bay Area Air Quality Plan, and the related EPA rulemakings approving the plan (
Moreover, the EPA's waiver (and authorization) review and approval process is analogous to the SIP approval process. First, CARB adopts its emissions standards following notice and comment procedures at the state level, and then submits the rules to the EPA as part of its waiver request. When the EPA receives new waiver or authorization requests from CARB, the EPA publishes a notice of opportunity for public hearing and comment and then publishes a decision in the
For additional explanation of the EPA's long-standing practice of allowing credit for California “waiver measures” notwithstanding the fact that the measures are not approved into the SIP, please see the EPA's responses to comments challenging this practice in the following final rules: 77 FR 12652, at 12655-12658, March 1, 2012 (final action on San Joaquin Valley 1997 8-Hour Ozone SIP); 77 FR 12674, at 12677-12682, March 1, 2012 (final action on South Coast 1997 8-Hour Ozone SIP); 76 FR 69896, at 69906-69910, November 9, 2011 (final action on San Joaquin Valley 1997 PM
In addition to baseline measures, which according to the District will achieve the vast majority of the direct PM
As discussed above, we generally consider three factors in determining whether to approve the use of an enforceable commitment to meet a CAA requirement. In this case, however, the 2012 PM
CAA section 189(a)(1)(B) requires that each Moderate area attainment plan include a demonstration that the plan provides for attainment by the latest applicable Moderate area deadline or, alternatively, that attainment by the latest applicable attainment date is impracticable. A demonstration that the plan provides for attainment must be based on air quality modeling, and the EPA generally recommends that a demonstration of impracticability also be based on air quality modeling consistent with the EPA's modeling guidance (General Preamble at 13538).
CAA section 188(c) states, in relevant part, that the Moderate area attainment date “shall be as expeditiously as practicable but no later than the end of the sixth calendar year after the area's designation as nonattainment. . . .” For the San Joaquin Valley, which was
In SIP submissions to demonstrate impracticability, the state should document that its required control strategy in the attainment plan represents the application of RACM/RACT to existing sources. The EPA believes it is reasonable to require adoption of all available control measures that are technologically and economically feasible in areas that do not demonstrate timely attainment. The impracticability demonstration will then be based on a showing that the area cannot attain by the applicable date, notwithstanding implementation of the required controls.
The 2012 PM
The impracticability demonstration in the 2012 PM
We have also evaluated the RACM/RACT demonstration and find that it provides for the expeditious implementation of all RACM/RACT that may feasibly be implemented at this time, consistent with the requirements of CAA sections 172(c)(1) and 189(a)(1)(C) for the 2006 PM
Finally, we have evaluated the demonstration in the 2012 PM
In addition to the information in the 2012 PM
Based on this evaluation, we propose to approve the State's demonstration in the 2012 PM
CAA section 172(c)(2) requires nonattainment area plans to provide for reasonable further progress (RFP). In addition, CAA section 189(c) requires PM
RFP has historically been met by showing annual incremental emission reductions sufficient generally to maintain at least linear progress toward attainment by the applicable deadline (Addendum at 42015). As discussed in EPA guidance in the Addendum, requiring linear progress in reductions of direct PM
• The pollutant is emitted by a large number and range of sources,
• the relationship between any individual source or source category and overall air quality is not well known,
• a chemical transformation is involved (
• the emission reductions necessary to attain the PM
The EPA's guidance in the Addendum recommends that requiring linear
• Where there are a limited number of sources of direct PM
• where the relationships between individual sources and air quality are relatively well defined, and/or
• where the emission control systems utilized (
In nonattainment areas characterized by any of these latter conditions, RFP may be better represented as step-wise progress as controls are implemented and achieve significant reductions soon thereafter. For example, if an area's nonattainment problem can be attributed to a few major sources, EPA guidance indicates that “RFP should be met by `adherence to an ambitious compliance schedule' which is likely to periodically yield significant emission reductions of direct PM
Plans for PM
Section 189(c) provides that the quantitative milestones submitted by a state for an area also must be consistent with RFP for the area. Thus, the EPA determines an area's compliance with RFP in conjunction with determining its compliance with the quantitative milestone requirement. Because RFP is an annual emission reduction requirement and the quantitative milestones are to be achieved every 3 years, when a state demonstrates compliance with the quantitative milestone requirement, it will demonstrate that RFP has been achieved during each of the relevant 3 years. Quantitative milestones should consist of elements that allow progress to be quantified or measured objectively. Specifically, states should identify and submit quantitative milestones providing for the amount of emission reductions adequate to achieve the NAAQS by the applicable attainment date (Addendum at 42016).
The CAA does not specify the starting point for counting the 3-year periods for quantitative milestones under CAA section 189(c). In the General Preamble and Addendum, EPA interpreted the CAA to require that the starting point for the first 3-year period be the due date for the Moderate area plan submittal (General Preamble at 13539, Addendum at 42016). In keeping with this historical approach, the EPA is proposing to establish December 31, 2014 as the starting point for the first 3-year period under CAA section 189(c) for the 2006 PM
The RFP demonstration is in Chapter 9, section 9.3 (pp. 9-4 to 9-7) of the 2012 PM
The Plan shows that emissions of direct PM
We are deferring action on the quantitative milestones described on pg. 14 of the Supplement but we are evaluating the Plan with respect to the RFP requirement. Because the District's methodology for calculating “RFP target emission levels” and evaluating “generally linear progress” is premised on a 2019 attainment date, these evaluations are not consistent with the requirements of the Act.
The 2012 PM
Reductions in ammonia emissions from CAF between 2007 and 2012 resulted from the implementation of District Rule 4570 “Confined Animal Operations,” which required implementation of control measures to reduce ammonia in 2008 and required full compliance by affected sources by mid-2012. Although emissions in this category increase after 2012 due to continuing growth in the Valley's dairy industry, overall emissions in 2015 and 2019 remain below the 2007 base year level. The implementation of the District's Rule 4655 “Organic Material Composting Operations” (adopted August 18, 2011) beginning in 2012 most likely resulted in some ammonia reductions (Supplement, p. A-27), but these reductions are not included in the base year or baseline inventories. As discussed in the Supplement (p. A-25), ammonia emissions from manure fertilizer application by dairies may be reduced as a co-benefit from the Central Valley Regional Water Quality Control Board's requirements for reducing nitrate in ground water adopted in 2007. However, because these reductions are not quantified and the control requirements are not in the SIP, no reductions from these controls are included in the inventories at this time.
As discussed above, generally linear reduction in emissions on a yearly basis may not be necessary for RFP where there are a limited number of sources of a precursor and where the emission control systems utilized will result in swift emission reductions. Both of these considerations are relevant for ammonia emissions in the San Joaquin Valley. In such cases, the EPA believes that RFP can be shown by adherence to an ambitious compliance schedule (Addendum at 42015). In this case all ammonia reductions included in the 2012 PM
We are proposing to determine that VOCs do not contribute significantly to ambient PM
In evaluating RFP, we are relying in part on the Plan's analysis of both adopted control measures and additional control measures for wood burning and charbroiling to be adopted in future years, which the Plan indicates will collectively bring the SJV into attainment of the 2006 PM
Under CAA section 172(c)(9), PM
The purpose of contingency measures is to continue progress in reducing emissions while the SIP is being revised to meet the missed RFP milestone or correct continuing nonattainment.
The principle requirements for contingency measures are:
• Contingency measures must be fully adopted rules or control measures that are ready to be implemented quickly upon failure to meet RFP or failure of the area to meet the standard by its attainment date.
• The SIP should contain trigger mechanisms for the contingency measures, specify a schedule for implementation, and indicate that the measures will be implemented without further action by the state or by the EPA. In general, we expect all actions needed to affect full implementation of the measures to occur within 60 days after the EPA notifies the state of a failure.
• The contingency measures should consist of other control measures for the area that are not relied on to demonstrate attainment or RFP.
• The measures should provide for emissions reductions equivalent to approximately one year of reductions needed for RFP calculated as the overall level of reductions needed to demonstrate attainment divided by the number of years from the base year to the attainment year.
Contingency measures can include Federal, state and local measures already scheduled for implementation or already implemented. The CAA requires contingency measures that provide for additional emissions reductions that are not relied on to demonstrate RFP or attainment and thus not included in these demonstrations. In other words, contingency measures are intended to achieve reductions over and beyond those relied on in the RFP and attainment demonstrations. Nothing in the CAA precludes a state from implementing such measures before they are triggered. EPA has approved numerous SIPs under this interpretation.
Contingency measures for failure to meet RFP milestones are described in Section 9-4 of the Plan. The Supplement also discusses the RFP contingency measures in section 5.
We are deferring action on the RFP contingency measures in the 2012 PM
Because we are proposing to approve the State's demonstration that attainment by the applicable Moderate area attainment date of December 31, 2015 is impracticable in the SJV and to reclassify the area to Serious, contingency measures for failure to attain are not required as part of this Moderate area plan. Upon reclassification of the SJV area as a Serious area, California will be required to adopt failure-to-attain contingency measures as part of the Serious area attainment plan for the 2006 PM
The CAA's Nonattainment New Source Review (NNSR) permitting provisions require that emissions from new or modified major stationary sources proposing to construct or modify in a nonattainment area be “offset” by reductions from the same or other sources in the area (CAA section 173(c)). This “offset” requirement ensures that progress toward attaining the NAAQS is maintained while still allowing for the construction and modification of major stationary sources. Generally, the pollutant emitted at the new or modified source must be offset by reductions of the same pollutant. Under certain circumstances, however, the EPA may allow for “interpollutant” offsets—
Where a state intends to provide for such interpollutant trading, the state must provide a technical demonstration that shows the net air quality benefits of the interpollutant trade in the PM
The 2012 PM
An internal inconsistency of the approach used is that dividing the pollutant sensitivities provided in the sensitivity table gives ratios that do not match those provided in the trading ratio table (Appendix H, Tables 1 and 2, p. H-87). For example, for Fresno—1st Street site, the sensitivities given are 0.14 µg/m
The specifics of the Plan's approach pose several difficulties. The Plan states that the sensitivity simulations used 50 percent reductions in emissions from “NSR source categories” (p. H-86). The latter is not defined. If “NSR source categories” are major stationary sources, then a 50 percent reduction in the overall category would be far larger than any likely emission increase or offset. It is not clear that the response of the model to this large a change is representative of the ambient effects that would occur from an actual interpollutant trade or for the aggregate of trades expected to occur. The Plan states that a 50 percent reduction in annual average emissions was used, but it is not clear why this is appropriate for a NAAQS based on a 24-hour average. The Plan provides no rationale for why a 50 percent reduction is appropriate to use for assessing interpollutant ratios, including consideration of the robustness of the ratios under alternative reduction percentages.
Another issue is that in general, the ambient effect of a trade will depend on the location of both the new source and the offset, since transport and atmospheric chemistry depend on location. The Plan implicitly recognizes this by providing ratios for multiple monitor locations, ranging from 3.4 to 8.1. However, the Plan then averages the ratios together, which would seem to guarantee that the final ratio does not reflect any actual trade or impacts at any particular location. A scheme in which the ratio varied by general geographic zone of source and of offset would better address the effect of actual trades. Alternatively, the use of the maximum of the available ratios would have provided a conservative analysis. The Plan's approach examined only design values and only at monitor locations, employing the same general procedure used for the attainment demonstration,
A more general concern with the Plan procedure is that it does not provide an overall rationale for the methodology grounded in the statutory purpose of NSR offsets. The CAA requires that emissions from new or modified major stationary sources be sufficiently offset “so as to represent . . . reasonable further progress” toward attainment of the NAAQS (CAA 173(a)(1)(A)), and the EPA's implementing regulations require that emission offsets provide a “net air quality benefit in the affected area” (40 CFR part 51, Appendix S, sec. IV. A.). The Plan does not explain how this requirement is satisfied when interpollutant trading is used. As mentioned above, the justification for an interpollutant ratio requires a technical demonstration that the new source emission increase and the offset are equivalent in their ambient effect. However, the precise sense in which changes in precursor emissions must be “equivalent” has not been defined; equivalency could be defined in terms of the maximum concentration from the model, the average over time and space of modeled concentrations above the NAAQS, or some other metric. The criteria for assessing equivalency should be provided with a rationale grounded in the underlying goals of NSR offsetting.
Given these inadequacies in the technical demonstration and related documentation for the PM
CAA section 176(c) requires Federal actions in nonattainment and maintenance areas to conform to the SIP's goals of eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of the standards. Conformity to the SIP's goals means that such
Actions involving Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) funding or approval are subject to the EPA's transportation conformity rule, codified at 40 CFR part 93, subpart A. Under this rule, metropolitan planning organizations (MPOs) in nonattainment and maintenance areas coordinate with state and local air quality and transportation agencies, EPA, FHWA, and FTA to demonstrate that an area's regional transportation plans (RTP) and transportation improvement programs (TIP) conform to the applicable SIP. This demonstration is typically done by showing that estimated emissions from existing and planned highway and transit systems are less than or equal to the motor vehicle emissions budgets (budgets) contained in all control strategy SIPs. An attainment, maintenance, or RFP SIP should include budgets for the attainment year, each required RFP year, or the last year of the maintenance plan, as appropriate. Budgets are generally established for specific years and specific pollutants or precursors and must reflect all of the motor vehicle control measures contained in the attainment and RFP demonstrations (40 CFR 93.118(e)(4)(v)).
PM
Transportation conformity trading mechanisms are allowed under 40 CFR 93.124 where a SIP establishes appropriate mechanisms for such trades. The basis for the trading mechanism is the SIP attainment modeling which established the relative contribution of each PM
In general, only budgets in approved SIPs can be used for transportation conformity purposes; however, section 93.118(e) of the transportation conformity rule allows budgets in a submitted SIP to apply for conformity purposes before the SIP is approved under certain circumstances. First, there must not be any other approved SIP budgets that have been established for the same time frame, pollutant, and CAA requirement. Second, the EPA must find that the submitted SIP budgets are adequate for transportation conformity purposes. To be found adequate, the submittal must meet the conformity adequacy requirements of 40 CFR 93.118(e)(4). The criteria for determining adequacy of submitted motor vehicle emissions budgets are provided at 40 CFR § 93.118(e)(4) and (5). The transportation conformity rule, however, does allow submitted motor vehicle emissions budgets that have been found adequate to replace approved budgets if the EPA has limited the duration of its approval to last only until it finds replacement budgets adequate (40 CFR § 93.118(e)(1)).
The 2012 PM
The direct PM
The truck activity estimates in EMFAC2011 used to develop the budgets in the 2012 PM
On October 7, 2014, we received a letter from CARB stating that it intends to revise the previously-submitted 2014 and 2017 budgets to remove reductions resulting from implementation of the Carl Moyer and Proposition IB incentive grant programs but intends to make no other revisions to the budgets. The letter provided the proposed revised budgets. (Table 6 below). These changes make the budgets consistent with the attainment demonstration. The letter also stated that CARB would be taking the revised budgets to its Board in November 2014 for approval and an additional letter from CARB requested in the interim that the EPA consider these budgets under the Agency's
The 2012 PM
We have evaluated the revised budgets against our adequacy criteria in 40 CFR 93.118(e)(4) as part of our review of the budgets' approvability (
Based on the information about re-entrained road dust in the Plan and in accordance with 40 CFR 93.102(b)(3), we propose to concur with the District's finding that re-entrained road dust emissions from paved roads, unpaved roads, and road construction are not significant contributors to the PM
For the reasons discussed in section IV.G., above, we are proposing to approve the State's demonstration that it is impracticable to attain the 2006 PM
For reasons discussed in section IV.H. above, we are proposing to approve the RFP demonstration for 2014 and 2017 in the 2012 PM
CARB has requested that we limit the duration our approval of the budgets only until the effective date of the EPA's adequacy finding for any subsequently submitted budgets. (Letter, James N. Goldstene, Executive Officer, California Air Resources Board, to Jared Blumenfeld, Regional Administrator, EPA Region 9, March 4, 2013). The transportation conformity rule allows us to limit the approval of budgets. (40 CFR 93.118(e)(1)). However, we can consider a state's request to limit an approval of its MVEB only if the request includes the following elements:
○ An acknowledgement and explanation as to why the budgets under consideration have become outdated or deficient;
○ A commitment to update the budgets as part of a comprehensive SIP update; and
○ A request that the EPA limit the duration of its approval to the time when new budgets have been found to be adequate for transportation conformity purposes.
(67 FR 69141 (November 15, 2002) (limiting our prior approval of MVEB in certain California SIPs)).
Because CARB's request does not include all of these elements, we cannot address it at this time. Once CARB has adequately addressed them, we intend to review the information and take appropriate action. If we propose to limit the duration of our approval of the MVEB in the 2012 PM
We have previously approved motor vehicle emissions budgets for the 1997 annual and 24-hour PM
As noted above, the State included a trading mechanism to be used in transportation conformity analyses that would use the proposed budgets in the 2012 Plan
The EPA has reviewed the air quality modeling used to develop the 8:1 NO
We believe that the 2012 PM
Section 188 of the Act outlines the process for classification of PM
We have reviewed the impracticability demonstration in the Plan and Supplement and believe the State has adequately demonstrated that the San Joaquin Valley nonattainment area cannot practicably attain the 2006 PM
In accordance with section 188(b)(1) of the Act, the EPA is proposing to reclassify the SJV area from Moderate to Serious nonattainment for the 2006 24-hour PM
Under section 188(c)(2) of the Act, the attainment date for a Serious area “shall be as expeditiously as practicable but no later than the end of the tenth calendar year beginning after the area's designation as nonattainment. . . .” The SJV area was designated nonattainment for the 2006 PM
Under section 188(e) of the Act, a state may apply to EPA for a single extension of the Serious area attainment date by up to 5 years, which EPA may grant if the state satisfies certain conditions. Before EPA may extend the attainment date for a Serious area under section 188(e), the state must: (1) Apply for an extension of the attainment date beyond the statutory attainment date; (2) demonstrate that attainment by the statutory attainment date is impracticable; (3) have complied with all requirements and commitments pertaining to the area in the implementation plan; (4) demonstrate to the satisfaction of the Administrator that the plan for the area includes the most stringent measures that are included in the implementation plan of any state or are achieved in practice in any state, and can feasibly be implemented in the area; and (5) submit a demonstration of attainment by the most expeditious alternative date practicable.
Upon reclassification as a Serious nonattainment area for the 2006 PM
The Serious area SIP elements that California will be required to submit are as follows:
1. Provisions to assure that the best available control measures (BACM), including best available control technology (BACT) for stationary sources, for the control of direct PM
2. a demonstration (including air quality modeling) that the plan provides for attainment as expeditiously as practicable but no later than December 31, 2019, or where the state is seeking an extension of the attainment date under section 188(e), a demonstration that attainment by December 31, 2019 is impracticable and that the plan provides for attainment by the most expeditious alternative date practicable and no later than December 31, 2024 (CAA sections 188(c)(2) and 189(b)(1)(A));
3. plan provisions that require reasonable further progress (RFP) (CAA 172(c)(2));
4. quantitative milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrate RFP toward attainment by the applicable date (CAA section 189(c));
5. provisions to assure that control requirements applicable to major stationary sources of PM
6. a comprehensive, accurate, current inventory of actual emissions from all sources of PM
7. contingency measures to be implemented if the area fails to meet RFP or to attain by the applicable attainment date (CAA section 172(c)(9)); and
8. A revision to the nonattainment new source review (NSR) program to lower the applicable “major stationary source”
The EPA is currently developing a proposed rulemaking to provide guidance to states on the attainment planning requirements in subparts 1 and 4 of part D, title I of the Act that apply to areas designated nonattainment for PM
Section 189(b)(2) of the Act states, in relevant part, that the state must submit the required BACM provisions “no later than 18 months after reclassification of the area as a Serious Area” and must submit the required attainment demonstration “no later than 4 years after reclassification of the area to Serious.” Thus, if a final reclassification of the area to Serious becomes effective in early 2015, the Act provides the state with up to 18 months after this date (
The Act does not specify a deadline for the State's submittal of nonattainment NSR program revisions to lower the “major stationary source” threshold from 100 tons per year (tpy) to 70 tpy (CAA section 189(b)(3)) following reclassification of a Moderate PM
Eight Indian tribes are located within the boundaries of the San Joaquin Valley PM
We have considered the relevance of our proposal to reclassify the SJV nonattainment area as Serious for the 2006 PM
Elevated PM
Uniformity of classification throughout a nonattainment area is thus a guiding principle and premise when an area is being reclassified. Equally, if the EPA believes it is likely that a given nonattainment area will not attain the PM
In light of the considerations outlined above that support retention of a uniformly-classified PM
The effect of reclassification would be to lower the applicable “major source” threshold for purposes of the nonattainment new source review program and the Title V operating permit program from its current level of 100 tpy to 70 tpy (CAA sections 189(b)(3) and 501(2)(B)) thus subjecting more new or modified stationary sources to these requirements. The reclassification may also lower the
Given the potential implications of the reclassification, the EPA has contacted tribal officials to invite government-to-government consultation on this rulemaking effort.
Under CAA section 110(k)(3), the EPA is proposing to approve the following elements of the 2012 PM
1. The 2007 base year emissions inventories as meeting the requirements of CAA section 172(c)(3);
2. the reasonably available control measures/reasonably available control technology demonstration as meeting the requirements of CAA sections 172(c)(1) and 189(a)(1)(C);
3. the reasonable further progress demonstration as meeting the requirements of CAA section 172(c)(2);
4. the demonstration that attainment by the Moderate area attainment date of December 31, 2015 is impracticable as meeting the requirements of CAA section 189(a)(1)(B)(ii); and
5. SJVUAPCD's commitments to adopt and implement specific rules and measures in accordance with the schedule provided in Chapter 5 of the 2012 PM
In addition, the EPA is proposing to approve the 2014 and 2017 motor vehicle emissions budgets as shown in Table 6 above because they are derived from an approvable RFP demonstration and meet the requirements of CAA section 176(c) and 40 CFR part 93, subpart A, provided the State completes its public review process and adopts and submits these budgets in final form prior to our final action on the Plan and Supplement. The EPA is also proposing to approve, in accordance with 40 CFR 93.124, the trading mechanism as described on p. C-32 in Appendix C of the 2012 PM
The EPA is proposing to disapprove the PM
Finally, pursuant to CAA section 188(b)(1), the EPA is proposing to reclassify the San Joaquin Valley PM
In addition, because the EPA is proposing to similarly reclassify areas of Indian country within the SJV PM
We will accept comments from the public on these proposals for the next 45 days. The deadline and instructions for submission of comments are provided in the
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA because it does not contain any information collection activities.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This proposed action would approve State law as meeting Federal requirements and would not impose additional requirements beyond those imposed by State law. Additionally, the proposed rule would reclassify the SJV nonattainment area as Serious nonattainment for the 2006 PM
This action does not contain an unfunded mandate of $100 million or more as described in UMRA, and does not significantly or uniquely affect small governments. This proposed action would approve State law as meeting Federal requirements and would not impose additional requirements beyond those imposed by State law. Additionally, the proposed action would reclassify the SJV nonattainment area as Serious nonattainment for the 2006 PM
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have Tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes.”
Eight Indian tribes are located within the boundaries of the SJV nonattainment area for the 2006 PM
EPA's proposed approvals of the SIP elements submitted by California to address the 2006 PM
The EPA has concluded that the proposed reclassification might have tribal implications for the purposes of Executive Order 13175, but would not impose substantial direct costs upon the tribes, nor would it preempt Tribal law. We note that none of the tribes located in the SJV nonattainment area has requested eligibility to administer programs under the CAA. The proposed reclassification would affect the EPA's implementation of the new source review program because of the lower “major source” threshold triggered by reclassification (70 tons per year for direct PM
Given the potential implications, the EPA contacted tribal officials during the process of developing this proposed rule to provide an opportunity to have meaningful and timely input into its development. On September 30, 2014, we sent letters to leaders of the seven tribes with areas of Indian country in the SJV nonattainment area inviting government-to-government consultation on the rulemaking effort. We requested that the tribal leaders, or their designated consultation representatives, provide input or request government-to-government consultation by October 27, 2014. We did not receive a response from any of the seven tribes. As noted above, the EPA inadvertently did not send a letter to the Tejon Indian Tribe at the time we sent letters to the other seven tribes. We contacted the chairperson of the Tejon Indian Tribe on December 18, 2014 to offer them an opportunity for government-to-government consultation. We intend to continue communicating with all eight tribes located within the boundaries of the SJV nonattainment area for the 2006 PM
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This proposed action is not subject to Executive Order 13045 because it would only approve a state air quality plan implementing a federal standard and reclassify the SJV nonattainment area as Serious nonattainment for the 2006 PM
This proposed action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
EPA has determined that this action will not have potential disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This proposed action would only approve a state air quality plan implementing a federal standard and reclassify the SJV nonattainment area as Serious nonattainment for the 2006 PM
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Oxides of nitrogen, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
Air pollution control, Incorporation by reference.
42 U.S.C. 7401