[Federal Register Volume 60, Number 91 (Thursday, May 11, 1995)]
[Rules and Regulations]
[Pages 25492-25551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11143]
[[Page 25491]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 9, et al.
Universal Waste Rule (Hazardous Waste Management System; Modification
of the Hazardous Waste Recycling Regulatory Program); Final Rule
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules
and Regulations
[[Page 25492]]
ENVIRONMENTAL PROTECTION
40 CFR Parts 9, 260, 261, 262, 264, 265, 266, 268, 270, and 273
[FRL-5201-3]
RIN 2050-AD19
Universal Waste Rule (Hazardous Waste Management System;
Modification of the Hazardous Waste Recycling Regulatory Program)
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: On February 11, 1993, the Environmental Protection Agency
proposed new streamlined hazardous waste management regulations
governing the collection and management of certain widely generated
wastes (batteries, pesticides and thermostats) known as universal
wastes (58 FR 9346). Additional information was noticed for comment on
June 20, 1994 (59 FR 31568). Today's final rule promulgates streamlined
universal waste management regulations which are very similar to the
February 11, 1993 proposal.
The new streamlined hazardous waste management regulations
promulgated today govern the collection and management of certain
widely generated wastes identified as universal wastes. This final rule
will greatly facilitate the environmentally-sound collection and
increase the proper recycling or treatment of hazardous waste nickel
cadmium and other batteries, certain hazardous waste pesticides, and
mercury-containing thermostats. The current RCRA regulations have been
a major impediment to national collection and recycling campaigns for
these wastes. This rule will greatly ease the regulatory burden on
retail stores and others that wish to collect or generate these wastes.
It should greatly facilitate programs developed to reduce the quantity
of these wastes going to municipal solid waste landfills or combustors.
It will, also, assure that the wastes subject to this system will go to
appropriate treatment or recycling facilities pursuant to the full
hazardous waste regulatory controls. It also will serve as a prototype
system to which EPA may add other similar wastes in the future. A
petition process is also included through which additional wastes could
be added to the universal waste regulations in the future. These
regulations are set forth in 40 CFR part 273.
EFFECTIVE DATE: This final rule is effective on May 11, 1995.
ADDRESSES: The official record for this rulemaking is identified as
Docket Numbers F-93-SCSP-FFFFF and F-94-SCSA-FFFFF and is in the EPA
RCRA Docket, located in Room M2616, U.S. EPA (5305), 401 M Street SW.,
Washington, DC. 20460. The docket is open from 9 a.m. to 4 p.m., Monday
through Friday, excluding Federal holidays. To review docket materials,
the public must make an appointment by calling (202) 260-9327. The
public may copy a maximum of 100 pages from any regulatory docket at no
cost. Additional copies cost $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For information concerning this final
rule contact the RCRA Hotline toll free at (800) 424-9346. In the
Washington, DC. metropolitan area, call (703) 412-9810. For further
information regarding specific aspects of this notice, contact the
Office of Solid Waste (5304), U.S. EPA, 401 M Street SW., Washington,
DC. 20460. Additional copies of this rule and supporting documentation
(e.g., fact sheet and summary of requirements) are available by mail by
calling the RCRA Hotline. A supporting document containing the Agencies
response to comments is available for review in the Docket for this
rule.
SUPPLEMENTARY INFORMATION:
Outline
I. Background
II. Relationship to Other Agency Activities
A. Mercury-Containing Lamps
B. Redefinition of Solid Waste
C. Possible Revisions to the Hazardous Waste Characteristics
III. Summary of Final Universal Waste Regulations
A. Structure of Final Rule
B. Summary of Universal Waste Requirements
1. Wastes Covered Under the Universal Waste System
2. Requirements for Participants in the Universal Waste System
a. Small and Large Quantity Handlers of Universal Waste
b. Transporters of Universal Waste
c. Destination Facilities
3. Import Requirements
4. Petitions to Include Other Wastes under part 273
IV. Detailed Discussion of Final Rule
A. Goals of Final Rule
B. Scope of Final Rule
1. Recycling Versus Recycling or Disposal
2. Wastes Included in Final Rule
a. Hazardous Waste Batteries
b. Lead-Acid Batteries
c. Hazardous Waste Pesticides
d. Hazardous Waste Thermostats
e. Other Wastes Suggested By Commenters
f. Used Mercury-Containing Equipment
g. Spent Antifreeze
3. Conditionally Exempt Small Quantity Generator Waste
C. Adding Additional Wastes in the Future
1. Procedures For Adding New Wastes
2. Factors for Evaluating New Wastes
a. Final factor 40 CFR 273.81(a)
b. Final factor 40 CFR 273.81(b)
c. Final factor 40 CFR 273.81(c)
d. Final factor 40 CFR 273.81(d)
e. Final factor 40 CFR 273.81(e)
f. Final factor 40 CFR 273.81(f)
g. Final factor 40 CFR 273.81(g)
h. Final factor 40 CFR 273.81(h)
i. Proposed factors not included in the final rule
D. Participants in the Universal Waste System
1. Small and Large Quantity Handlers of Universal Waste
2. Transporters
3. Destination Facilities
E. Universal Waste Handler Requirements
1. Prohibitions
a. Prohibition on Disposal
b. Prohibition on Treatment
c. Prohibition on Shipments of Universal Wastes
2. Notification
3. Waste Management
a. Universal Waste Batteries
b. Universal Waste Pesticides
c. Universal Waste Thermostats
4. Labeling/Marking
5. Accumulation time requirements
6. Employee Training
7. Response to Releases
8. Off-site Shipments
9. Tracking Universal Waste Shipments
10. Exports
F. Transporter Requirements
G. Destination Facility Requirements
H. Imports of Universal Waste
I. Land Disposal Restrictions
J. Regenerated batteries
V. State Authority
A. Applicability of Rules in Authorized States
B. Effect on State Authorization
C. Comments regarding the proposed rule
D. Universal Waste State Authorization issues
1. Addition of New Universal Wastes to State Programs
2. Authorization for individual universal wastes
3. Interstate Transportation
VI. Executive Order 12866--Regulatory Impacts
VII. Regulatory Flexibility Analysis
VIII. Paperwork Reduction Act
IX. Unfunded Mandates
I. Background
Under Subtitle C of the Resource Conservation and Recovery Act
(RCRA), the Environmental Protection Agency (EPA) has promulgated
regulations setting forth the framework of the nation's hazardous waste
management program. These regulations are found in parts 260 through
279 of title 40 of the Code of Federal Regulations. These regulations
first identify what wastes are considered hazardous and thus are
subject to the hazardous waste regulations. Requirements are then set
forth for hazardous waste generators, transporters, and owners and
operators [[Page 25493]] of treatment, storage, and disposal facilities
(TSDs).
On February 11, 1993, the Environmental Protection Agency proposed
to add to the hazardous waste regulations a set of streamlined
requirements for collecting certain widely-dispersed hazardous wastes
(58 FR 8102), which were called ``universal wastes.'' These wastes
share several characteristics:
--They are frequently generated in a wide variety of settings other
than the industrial settings usually associated with hazardous wastes;
-- They are generated by a vast community, the size of which poses
implementation difficulties for both those who are regulated and the
regulatory agencies charged with implementing the hazardous waste
program; and
-- They may be present in significant volumes in non-hazardous waste
management systems.
In the preamble to the proposal, known as the ``universal waste''
proposal, the Agency explained a number of reasons why it believed that
a streamlined regulatory system was appropriate for these wastes. See
58 FR 8102 for a detailed discussion.
230 comments were received on the proposal from environmental
groups, companies involved in universal waste management, state and
local environmental and agricultural agencies, and trade associations.
Comments received on the proposed rule were in general very supportive
of the basic concepts behind the proposed regulations and of the
proposed regulatory approach. Commenters did suggest numerous specific
changes to the regulatory requirements that they believed would make
them easier to comply with and to implement, more protective of the
environment, and more successful at achieving the goals of the
universal waste program.
Additional information on costs and benefits of the proposal was
made available for public comment on June 20, 1994 (59 FR 31568).
Eleven comments were received on this additional information and the
Agency's responses to these comments are available in the docket for
this rule (See Addresses section above). The Agency's responses to each
of the comments are included here.
This rule finalizes the streamlined universal waste management
system proposed on February 11, 1993 (58 FR 8102). In general, the
final rule is very similar to the proposal. Although some of the
details of the regulatory structure have changed, the basic approach
adopted in the final rule and the majority of the particulars is the
same as that proposed. A summary of the final rule is included in
section III of this preamble. The following sections of the preamble
discuss in detail the major comments received on each of the issues
raised in the proposed rule, any differences between the proposal and
the final rule, and the Agency's reasons for making the changes. The
final regulatory text is set forth at the end of this notice. These
regulatory changes will be codified into the printed version of Title
40 of the Code of Federal Regulations in its next update, which will be
revised as of July 1, 1995.
II. Relationship to Other Agency Activities
II.A. Mercury-Containing Lamps
During development of the proposed universal waste rule it was
suggested that spent fluorescent light bulbs (known as fluorescent
lamps) might be appropriately managed under the universal waste
regulations. Mercury is used in the production of fluorescent lamps,
and as a result, a relatively high percentage of these lamps are
hazardous waste when spent because they exhibit the toxicity
characteristic for mercury. At the time of the proposal, the Agency
decided that further investigation into the issue of mercury-containing
lamps was necessary before proposing changes to the regulations
governing management of these lamps. Thus, in the February 11, 1993
universal waste proposal the Agency explained that it was not proposing
to include fluorescent lamps in the universal waste regulations but
requested comment on several issues (58 FR 8110). First, EPA requested
comment on the risks posed by these lamps in landfills or municipal
waste combustors. Second, EPA requested information on the risks of
current or developing mercury recovery technology.
A number of comments were received addressing the mercury-
containing lamps issue. Many of the commenters argued that these lamps
should be included in the universal waste final rule. Several
commenters also suggested other regulatory alternatives for regulating
management of these lamps. A number of comments also addressed the
questions that the Agency asked in the proposal about the risks of
various management methods.
On July 27, 1994, the Agency published a proposed rule specifically
addressing the management of spent mercury-containing lamps (59 FR
38288). Information received in comments on the universal waste
proposal was used in developing the proposal on lamp management.
Two options for changing the regulations governing mercury-
containing lamps were included in the July 27, 1994 proposal. The
Agency requested comment on a number of issues, including which of the
two options should be implemented. One option was to conditionally
exempt these lamps from regulation as hazardous waste. Under this
option, mercury-containing lamps would not be considered hazardous
waste provided they are disposed of in municipal solid waste landfills
that meet certain requirements, or are recycled at mercury reclamation
facilities that meet certain requirements. In addition, generators
would be required to maintain documentation identifying the disposal or
recycling facility to which the lamps were sent.
The second option proposed was to add mercury-containing lamps to
the universal waste regulations. Under this option, mercury-containing
lamps that fail the toxicity characteristic would continue to be
regulated as hazardous waste, but would be subject to the streamlined
universal waste regulations promulgated today instead of the full
hazardous waste regulations. The July 27, 1994, proposed regulatory
text for including mercury-containing lamps in the universal waste
regulations was based on the February 11, 1993, proposed universal
waste regulations. In the July 27, 1994, proposal the Agency explained
that it expected to promulgate final universal waste regulations prior
to promulgating a final rule on mercury-containing lamps. It was noted
that if the Agency selected the universal waste option for management
of mercury-containing lamps, the final regulations would be consistent
with the final universal waste rule (59 FR 38295).
Thus, if in the future final rule on mercury-containing lamps the
Agency decides to add them to the universal waste regulations, the
requirements proposed on July 27, 1994, would be revised to be
consistent with the universal waste regulations promulgated today. For
example, instead of using the terminology for universal waste handlers
from the proposed rule (generators and consolidation points), the
terminology from today's final rule would be used (small and large
quantity handlers of universal waste). The concepts governing
management of mercury-containing lamps from the proposed universal
waste option (e.g., waste management controls, quantity limits for
notification), revised as appropriate in response to comments, would be
incorporated into the [[Page 25494]] universal waste regulatory
structure promulgated today.
All of the comments submitted on the universal waste proposal that
addressed the issue of how mercury-containing lamps should be regulated
and the questions concerning the risks of managing these wastes have
been included in the docket for the July 27, 1994, proposal on mercury-
containing lamps (docket number F-94-FLEP-FFFFF). The Agency will
respond to those comments in the final rule on mercury-containing lamps
together with comments submitted in response to the July 27, 1994,
proposal.
II.B. Redefinition of Solid Waste
Over the past several years EPA has been exploring ways of
clarifying the ``definition of solid waste'' regulations, which are the
regulations that govern hazardous waste recycling. The goals of this
effort are to eliminate disincentives for hazardous waste recycling,
ensure that hazardous waste recycling is environmentally protective,
address areas of underregulation, and simplify the definition of solid
waste regulations to make them easier to comply with and to implement.
In mid-1992 the Agency formed a Definition of Solid Waste Task Force
which met over the course of a year with representatives of industry,
environmental groups, states, and EPA regional offices to discuss
possible options. The Task Force has published a final report
recommending various regulatory changes that could be made to
accomplish the goals of the project. The report is entitled ``Re-
engineering RCRA for Recycling: The Definition of Solid Waste Task
Force Report and Recommendations,'' EPA publication
# EPA 530-R-94-016, and is available by calling the RCRA Hotline listed
above in the For Further Information section of this notice. It is
expected that the Agency will make decisions on how to act on the Task
Force's recommendations within the next several months.
Today's universal waste rule arises out of some of the same past
Agency efforts as does the redefinition of solid waste project, and has
similar goals. The two projects are not concurrent, however, and each
is now in a different stage of development. While this is the final
rule setting up the structure of the universal waste regulations, the
redefinition of solid waste is a longer term project that has not yet
reached the point of regulatory revisions. Several issues raised by the
universal waste rule and the redefinition project make it important
that the reader understand the interaction between these two projects.
First, the Universal Waste Rule is designed to accomplish three
general goals. These goals consist of encouraging resource conservation
while ensuring adequate protection of human health and the environment,
improving implementation of the current subtitle C hazardous waste
regulatory program, and providing incentives for individuals and
organizations to collect the unregulated portions of these universal
waste streams and manage them using the same systems developed for the
regulated portion, thereby removing these wastes from the municipal
waste stream. As discussed earlier, the goals of the Redefinition of
Solid Waste Force include eliminating disincentives for hazardous waste
recycling, ensuring that hazardous waste recycling is environmentally
protective, addressing areas of underregulation, and simplifying the
definition of solid waste regulations to make them easier to comply
with and to implement. In the universal waste proposal the Agency did
not propose to make any changes to the regulations governing facilities
recycling universal wastes (destination facilities), and has not done
so in this final rule. Facilities recycling universal wastes are thus
subject to the same regulations as any other hazardous waste recycler.
A number of commenters suggested that the Agency should lessen the
regulatory requirements for universal waste recyclers to encourage
recycling. Although the Agency agrees that encouraging safe recycling
of these wastes is an important objective, it would be premature to
make any changes to the recycling regulations at this time.
As part of the redefinition of solid waste project, the Agency and
other interested parties have expended a great deal of effort analyzing
this issue and discussing the best ways to accomplish this goal. It
would not make sense to make any changes to the recycling regulations
now, since the final results of the project are not available. Any
changes made now would not realize the benefit of the efforts put into
the project. In addition, making changes now could be very disruptive,
since it is likely that the recycling regulations will be revised again
shortly after the universal waste regulations are in place (i.e.,
incorporated into state regulations).
The Agency's goals for universal waste recycling are the same as
for all other hazardous waste recycling. Thus, when the Agency makes
changes to the recycling regulations as part of the redefinition of
solid waste project, these changes will also be applied to universal
waste recycling.
Second, the Definition of Solid Waste Task Force recommendations
discuss a category of recycling called ``product stewardship.''
Depending on the direction taken by the Agency in this area there may
be some similarities to, or overlap with, the universal waste
regulations. Any regulatory changes that are made in this area as part
of the redefinition of solid waste will take into account the status of
the universal waste regulations (e.g., what wastes have been added, how
many states have implemented the regulations, and how well the system
is working). The Agency will ensure that the product stewardship
portion of the redefinition effort is coordinated with the universal
waste regulations as necessary and will not disrupt existing programs.
II.C. Possible Revisions to the Hazardous Waste Characteristics
EPA believes the approach in this rulemaking is a useful new
approach to easing the burden while encouraging the proper management
of wastes that pose a hazard if mismanaged. There may be certain
hazardous wastes, however, for which relief beyond that provided by the
universal waste rule may be appropriate. One approach for doing so is
through reexamination of the existing toxicity characteristic. EPA is
going to expeditiously investigate what sort of effort would be
involved in developing modifications to the characteristics, what sort
of resources would be needed to do that, and consider the benefits of
such an effort against the benefits of other regulatory improvements
EPA is considering. A rulemaking to modify the characteristics might
potentially affect a significant quantity of currently regulated and
currently unregulated waste.
III. Summary of Final Universal Waste Regulations
The part 273 regulations for managing universal wastes promulgated
today are substantively very similar to those proposed on February 11,
1993. Thus, the requirements that a person managing universal wastes
must follow under this final rule are very similar to those that they
would have been required to follow under the regulations as proposed.
However, in response to comments from the public on the proposal, the
Agency has made a number of changes to the regulations that the Agency
believes will improve the environmental protectiveness of the rule,
make it easier for the regulated community to comply with the
requirements, and make it easier for [[Page 25495]] implementing
agencies to implement the universal waste program.
III.A. Structure of the Final Rule
Although the final universal waste rule requirements are
substantively very similar to those proposed, the final rule may at
first appear to be quite different from the proposal because two major
structural changes have been made to the universal waste regulations,
40 CFR part 273. First, the terms used to refer to some of the
participants in the universal waste system have been changed in the
final rule. To make the final regulation easier to use and less
repetitive, the basic organization of the regulation has also been
changed from the proposal.
The first major revision to the structure of the regulation is that
the terms used to refer to some of the participants in the universal
waste system have been changed. Specifically, in the proposal there
were four types of regulated persons that manage universal waste:
Generators, consolidation points, transporters, and destination
facilities. In the final rule there are also four types of regulated
persons. The transporter and destination facility categories are
retained as they were proposed. However, the persons who would have
been included in the proposed generator and consolidation point
categories will now fit into either the category of small quantity
handlers of universal waste (SQHUWs) or the category of large quantity
handlers of universal waste (LQHUWs). Under the proposal, the
categories of generator and consolidation point were distinguished by
the way wastes came to be at the facility. Generators generated the
waste themselves on-site, and consolidation points received the waste
from off-site. Under the final rule, the categories of large and small
handlers of universal waste are distinguished by the amount of waste
accumulated on-site at any time. LQHUWs accumulate 5,000 kilograms or
more total of universal wastes. SQHUWs accumulate less than 5,000
kilograms total.
The Agency decided to make this change for several reasons. First,
numerous commenters suggested that there should be a third category of
universal waste handler: front-line collectors of universal waste who
collect small quantities of universal waste, largely from consumers and
small businesses. These commenters pointed out that such collectors
would frequently be retail-type operations (e.g., a department or
specialty store that has a spent battery collection box) participating
in national or regional collection programs. Such front-line collectors
would likely accumulate only small quantities of universal waste
because only a minor portion of their business is devoted to managing
waste, and because they would ship wastes frequently using package
shipping services or similar systems set up by the collection programs.
Under the proposal, these front-line collectors would have been subject
to the more stringent consolidation point requirements because they
receive wastes from off-site generators.
These commenters argued that front-line collectors should be
subject to less stringent requirements than the proposed consolidation
point requirements for several reasons. One reason was that the
universal waste they would have on-site would pose limited risk due to
the small quantities involved. Another reason was that some of the
requirements would inhibit the participation of many retail-type
operations (such as the large retail chains), thereby greatly limiting
the success of universal waste collection programs in removing these
wastes from non-hazardous waste management systems.
The Agency agrees with the concept that the activities of persons
such as front-line collectors managing small quantities of universal
waste pose less risk and require less stringent standards than those
managing larger quantities of universal waste. Instead of adding an
additional category of front-line collectors with less stringent
standards, however, the Agency decided to extend this concept to all
persons both generating and collecting universal waste. Thus, under the
final rule, persons accumulating large quantities of universal waste
(5,000 kg or more total of universal waste accumulated on-site) are
called large quantity handlers of universal waste, and are subject to
more stringent requirements than small quantity handlers of universal
wastes, who are persons accumulating less than 5,000 kg total of
universal waste. A handler's designation as a large quantity handler of
universal waste is retained through the end of the calendar year in
which 5,000 kilograms or more total of universal waste is accumulated.
Another reason the Agency decided to restructure the categories of
persons managing universal wastes was in response to comments received
on the issue of recordkeeping for universal waste shipments. The Agency
had proposed that a manifest be required for shipments from final
consolidation points to destination facilities, based on the concept
that such shipments would be larger shipments and thus require closer
tracking. In addition to other issues, a number of commenters pointed
out that it is not necessarily true that shipments from consolidation
points to destination facilities will be larger shipments. For example,
shipments between consolidation points or between generators and
destination facilities may also be large shipments.
The Agency agrees that it does not necessarily make sense from a
risk perspective to require recordkeeping for certain shipments based
solely on the type of universal waste management activity conducted by
the shipper and receiver (i.e., whether the shipper generates or
collects universal waste or whether the receiver collects or disposes
of universal waste) rather than on the quantity of universal waste
handled. Thus, the Agency has decided to require recordkeeping of
LQHUWs but not SQHUWs, and to define the categories by the quantities
of waste managed.
The second major change to the structure of the rule is that it has
been reorganized. Part 273 of the proposed rule included some general
provisions in the first subpart, and then each subsequent subpart
included the regulations applicable to persons managing each specific
type of universal waste. For example, subpart B covered universal waste
batteries, and included requirements for generators, transporters,
consolidation points, and destination facilities. Subpart C covered
universal waste pesticides, and also included requirements for
generators, transporters, consolidation points, and destination
facilities.
A number of commenters pointed out that this organization was
unnecessarily repetitive, particularly since the majority of the
requirements for each type of participant in the universal waste system
was the same. In other words, the requirements for generators of
batteries (or transporters, consolidation points, or destination
facilities) were basically the same as the requirements for generators
of pesticides (or transporters, consolidation points, or destination
facilities). These commenters also noted that the rule would become
even more repetitive if additional wastes were added in the future,
since a new subpart would have to be added for each new universal
waste. These commenters suggested that the rule would be easier to use
if it were structured such that general requirements were presented
together, followed by specific differences for persons managing
particular universal wastes.
The Agency agrees with these commenters and has revised the final
rule accordingly. Subpart A of the final rule includes general
provisions such as [[Page 25496]] applicability and definitions.
Subpart B includes requirements applicable to Small Quantity Handlers
of Universal Waste. Subpart C includes requirements for Large Quantity
Handlers of Universal Waste. Subpart D covers the requirements for
transporters of universal waste. Subpart E sets forth standards for
destination facilities. Subparts F and G, respectively, include
standards for imports of universal waste and petitions to include other
wastes under Part 273.
Subparts B through E of the final rule now include all of the
requirements applicable to one type of universal waste manager,
regardless of what type of universal waste is being managed. Thus, a
universal waste manager who may be handling more than one type of
universal waste need only read the one section applicable to his or her
activities. Requirements that are different for particular waste types
are noted within the regulatory text. For example, the waste management
sections for small and large handlers each include a subsection setting
forth the requirements applicable to management of a particular
universal waste. Subsection (c) addresses batteries, subsection (d)
pesticides, and (e) thermostats.
The Agency believes reorganization makes the final rule more user-
friendly, and thus will encourage participation in universal waste
collection programs. The Agency also believes that the regulatory
sections within the subparts are laid out simply and clearly, making it
easier to find any particular part of the regulation.
Although this reorganization does remove much of the redundancy of
the regulation (and will avoid adding repetition in the future if new
universal wastes are added to the regulations), readers may note that
the small and large quantity handler subparts of the rule remain
somewhat repetitive. This is because, although these two groups share
many of the same requirements, in three sections, the requirements are
different. These sections are notification, tracking, and employee
training. One possibility would have been to have only one handler
subpart, and specify the different requirements for small and large
quantity handlers within each of these three sections. However, the
Agency believes that the regulation will be easier for handlers to
follow if they determine once whether they are small or large handlers,
and then read only the regulations applicable to their category. Thus,
the Agency has decided to retain two different subparts for small and
large quantity handlers.
Figure 1 illustrates the structure of the final universal waste
management system.
BILLING CODE 6560-50-P
[[Page 25497]]
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BILLING CODE 6560-50-C
[[Page 25498]]
III.B. Summary of Universal Waste Requirements
This section provides a summary of the final universal waste
regulations, 40 CFR part 273. Table 1 presents a simplified overview of
the types of participants in the universal waste system and the
requirements applicable to each type of participant. Each of the
universal waste requirements is discussed in more detail in the later
sections of this preamble.
BILLING CODE 6560-50-P
[[Page 25499]]
[GRAPHIC][TIFF OMITTED]TR11MY95.011
BILLING CODE 6560-50-C
[[Page 25500]]
III.B.1. Wastes Covered Under the Universal Waste System
Three types of wastes are covered under the universal waste
regulations: hazardous waste batteries, hazardous waste pesticides that
are either recalled or collected in waste pesticide collection
programs, and hazardous waste thermostats. Other wastes may be added to
the universal waste regulations in the future, but at this time only
these three wastes are included.
III.B.2. Requirements for Participants in the Universal Waste System
As illustrated in Table 1, there are four types of participants in
the universal waste system: Small Quantity Handlers of Universal Waste,
Large Quantity Handlers of Universal Waste, Universal Waste
Transporters, and Destination Facilities. Each of these participants is
described below.
Although there are ten basic universal waste management
requirements, individual participants in the universal waste system are
not subject to all ten requirements. Only those requirements that have
been determined to be appropriate for a given type of participant are
included in the regulations for that participant. Throughout the
universal waste regulations, each of these ten basic requirements is
addressed in regulatory sections using the same section headings. For
example, the same requirements are addressed in the off-site shipments
section for SQHUWs as are addressed in the off-site shipments sections
for LQHUWs, transporters, and destination facilities. In some cases not
all issues within a section were determined to be necessary for each
type of participant, so some sections do not address every issue
addressed in other sections with the same heading.
III.B.2.a. Small and Large Quantity Handlers of Universal Waste
There are two types of handlers of universal waste. The first type
of handler is a person who generates, or creates, universal waste. This
is a person who uses batteries, pesticides, or thermostats and who
eventually decides that they are no longer usable and thus are waste.
Contractors or repair people who decide that batteries or thermostats
are no longer usable and remove them from service also generate
universal waste, and thus are handlers of universal waste. The second
type of handler is a person who receives universal waste from
generators or other handlers, consolidates the waste, and then sends it
on to other handlers, recyclers, or treatment/disposal facilities.
Universal waste handlers accumulate universal waste, but do not treat,
recycle, or dispose of the waste. Each separate location (e.g.,
generating location or collecting location) is considered a separate
universal waste handler. Thus, if one company has several locations at
which universal waste is generated or collected, each location is a
separate handler.
There are two sets of regulations for handlers of universal waste.
Subpart B of part 273 sets forth the requirements that small quantity
handlers of universal waste must follow. SQHUWs do not accumulate 5,000
kilograms or more total (all universal waste categories combined) of
universal waste at their location at any time. Subpart C of part 273
sets forth the requirements that large quantity handlers of universal
waste must follow. LQHUWs accumulate 5,000 kilograms or more total (all
universal waste categories combined) of universal waste at any time.
This designation as a large quantity handler of universal waste is
retained through the end of the calendar year in which 5,000 kilograms
or more total of universal waste is accumulated, at any one time. The
Agency realizes that some handlers of universal waste who would
generally qualify as a small quantity handler may have a one-time, or
infrequent, occasion to accumulate 5,000 kg of universal waste, at any
one time, on-site, thus requiring them to comply with the large
quantity handler regulations in today's rule. The Agency did not intend
to require these handlers to comply with the more stringent large
quantity handler requirements during subsequent years in which they do
not accumulate 5,000 kilograms or greater. The Agency clarifies in the
definition of large quantity handler of universal waste, that this
designation is retained by the handler for the remainder of the
calendar year in which 5,000 kilograms or more of universal waste was
accumulated. A handler may reevaluate his status as a large quantity
handler of universal waste in the following calendar year.
Subparts B and C each include eleven sections (see Table 1; Note:
the ``Applicability'' section is not included in this table). Because
most of the requirements are the same for SQHUWs and LQHUWs, they are
described together. The first sections (40 CFR 273.10 and 273.30) are
called ``applicability,'' and explain who the subpart B and C
requirements apply to. The second sections, ``prohibitions'' (40 CFR
273.11 and 273.31), prohibit handlers from disposing of, diluting, or
treating universal waste except in certain circumstances. The third
sections, ``notification,'' are different for SQHUWs and LQHUWs. 40 CFR
273.12 notes that SQHUWs are not required to notify EPA of their
universal waste activities and are not required to obtain an EPA
identification number. 40 CFR 273.32 requires LQHUWs to notify EPA and
to obtain an EPA identification number.
The fourth sections, ``waste management'' (40 CFR 273.13 and
273.33), explain the requirements SQHUWs and LQHUWs must follow when
handling universal waste. They require that universal waste be managed
in a way that prevents releases to the environment, specify packaging
requirements for universal wastes, and set forth procedures that must
be followed when handling batteries (e.g. sorting battery types, mixing
battery types, disassembling battery packs, removing electrolyte,
etc.), and when removing mercury-containing ampules from thermostats.
The next sections, ``labeling/marking'' (40 CFR 273.14 and 273.34),
require handlers to label or mark universal wastes or containers of
universal waste to identify the type of universal waste (e.g., used
batteries, pesticides). The ``accumulation time limit'' sections (40
CFR 273.15 and 273.35) limit the time that handlers may accumulate
universal waste to one year (with one exception), and require handlers
to be able to demonstrate that wastes are not accumulated for more than
one year. The seventh sections, ``employee training'' (40 CFR 273.16
and 273.36), are somewhat different for SQHUWs and LQHUWs. SQHUWs must
distribute basic handling and emergency information to employees
handling universal waste. LQHUWs must ensure that employees are
familiar with waste handling and emergency procedures as appropriate
based on their responsibilities.
The eighth sections are entitled ``response to releases'' (40 CFR
273.17 and 273.37) and require handlers to immediately contain any
releases of universal waste and to handle residues appropriately. The
``off-site shipments'' sections (40 CFR 273.18 and 273.38) require
handlers to send universal waste only to persons within the universal
waste system and specify procedures to be followed when a shipment is
rejected by the receiving facility. The ninth sections, ``tracking
universal waste shipments'' (40 CFR 273.19 and 273.39), are different
for SQHUWs and LQHUWs. SQHUWs do not have any requirements. LQHUWs must
maintain basic records documenting shipments received at the facility
and shipments sent from the facility. The last sections, ``exports''
(40 CFR 273.20 and 273.40), [[Page 25501]] specify notification
procedures that must be followed when handlers ship universal wastes to
foreign destinations.
III.B.2.b. Transporters of Universal Waste
The requirements for transporters of universal waste are found in
subpart D of part 273. See Table 1. Transporters are persons who
transport universal waste from handlers of universal waste to other
handlers, destination facilities, or foreign destinations. A
transporter may be an independent shipper contracted to transport the
waste, or may be a handler who self-transports the waste. A universal
waste handler who self-transports his waste becomes a transporter for
those self-transportation activities and is subject to the requirements
of subpart D of this rule.
The universal waste rule does include some specific requirements
for transporters. However, the basic approach to transportation under
the universal waste system is that no hazardous waste manifests are
required, and transporters must comply with the Department of
Transportation (DOT) requirements that would be applicable to the waste
if it were being transported as a product. For example, if transporting
universal waste batteries, the transporter must comply with the
appropriate DOT requirements, which are based on whether the particular
battery type is a DOT hazardous material, and if so, which DOT
hazardous material requirements apply to the specific battery type.
The universal waste transporter requirements consist of seven
sections. The first, ``applicability'' (40 CFR 273.50), explains to
whom the transporter requirements apply. ``Prohibitions'' (40 CFR
273.51), prohibits transporters from disposing of, diluting, or
treating universal waste. The third section, ``waste management'' (40
CFR 273.52), explains that transporters must comply with applicable DOT
requirements if the waste they are transporting is a hazardous material
under DOT regulations. The fourth section, entitled ``accumulation time
limits'' (40 CFR 273.53), notes that transporters may store waste for
up to ten days at a transfer facility during the course of
transportation. Transfer facilities are transportation related
facilities such as loading docks, parking areas, and storage areas. If
a transporter stores waste for more than ten days at one location, the
transporter must comply with the appropriate universal waste handler
rules while storing the waste.
The fifth transporter section, ``response to releases'' (40 CFR
273.54), requires transporters to immediately contain any releases of
universal waste and to handle residues appropriately. ``Off-site
shipments'' (40 CFR 273.55) prohibits transporters from transporting
universal waste to any place other than a universal waste handler,
destination facility, or foreign destination. Finally, ``exports'' (40
CFR 273.56), requires transporters to follow certain requirements for
exports of hazardous waste.
III.B.2.c. Destination Facilities
The requirements for destination facilities are found in subpart E
of part 273. See Table 1. Destination facility means a facility that
treats, disposes of, or recycles a particular category of universal
waste, except those management activities described in paragraphs (a)
and (c) of Secs. 273.13 and 273.33. A facility at which a particular
category of universal waste is only accumulated, is not a destination
facility for purposes of managing that category of universal waste.
The universal waste rules include only two specific universal waste
requirements for destination facilities. In general, however, these
facilities are subject to the same requirements that are applicable to
treatment, storage, and disposal facilities under the full hazardous
waste regulations. This includes permitting as well as general facility
standards and unit specific requirements. In addition to the full
hazardous waste requirements, there are three sections specifying
universal waste requirements for destination facilities. For the most
part these requirements simply mirror universal waste handler
requirements for receipt of universal waste, since destination
facilities also receive universal waste.
First, ``standards for destination facilities'' (40 CFR 273.60)
indicates which of the full hazardous waste regulations destination
facilities must follow. These are the same full hazardous waste
regulations these facilities would be subject to if they were handling
non-universal hazardous wastes. Specifically, facilities that treat,
dispose of, and recycle universal wastes, except for those activities
described in paragraphs (a) and (c) of Secs. 273.13 and 273.33, are
subject to the permitting or interim status requirements of 40 CFR
parts 264 or 265. Facilities that recycle universal waste without
accumulating the waste before it is recycled are subject to the
recycling requirements of 40 CFR 261.6(c)(2).
Second, ``off-site shipments'' (40 CFR 273.61) sets forth
procedures for rejecting a shipment of universal waste. Finally,
``tracking universal waste shipments'' (40 CFR 273.62) requires
destination facilities to retain the same records for receipt of
universal waste shipments that LQHUWs are required to retain. By
documenting receipt of universal waste shipments, these records
complete documentation of shipments sent from handlers.
III.B.3. Import Requirements
Subpart F of the universal waste regulations clarifies the
requirements for universal wastes that are imported. In general, once
universal waste enters the United States it is subject to the same
universal waste requirements it would be if it had been generated in
the United States.
III.B.4. Petitions to Include Other Wastes Under Part 273
Subpart G of part 273 includes two sections setting forth the
procedures to be used to petition the Agency to add additional wastes
to the universal waste regulations. Further requirements are specified
in 40 CFR 260.20 and 260.23.
IV. Detailed Discussion of Final Rule
IV.A. Goals of Final Rule
In the proposed part 273 regulations, EPA proposed a set of special
requirements for universal hazardous wastes which were designed to
accomplish three general goals. One goal was to encourage resource
conservation, while ensuring adequate protection of human health and
the environment. Another broad goal defined in the proposal was to
improve implementation of the current subtitle C hazardous waste
regulatory program. And, the final goal, by simplifying the
requirements and encouraging collection of these hazardous wastes, EPA
hoped to provide incentives for individuals and organizations to
collect the unregulated portions of these universal waste streams
(e.g., from households or CESQGs) and manage them using the same
systems developed for the regulated portion, thereby removing these
wastes from the municipal waste stream and minimizing their input of
hazardous constituents to municipal landfills, combustors, and
composting projects. Each of these goals is discussed below.
The first goal for the universal waste rule stated in the proposal
was to encourage resource conservation. EPA believes that today's final
rule serves to stimulate achievement of this goal. While today's final
rule applies to both universal wastes destined for recycling and those
destined for disposal, as proposed, several features of the rule remove
major obstacles faced by persons [[Page 25502]] desiring to recycle
these wastes. Today's final rule reduces the management requirements
for generators, consolidation points (in the final rule referred to as
small and large quantity handlers of universal waste), and
transporters. Destination facilities must continue to meet all
requirements, except manifesting requirements, of the subtitle C
regulations. By relaxing the standards for these handlers, collection
of universal waste is simplified, thereby, encouraging participation in
collection programs. The Agency believes that the ability to access
large quantities of universal waste from central collection centers may
encourage the development and use of safe and effective ways to recycle
these wastestreams. Conversely, limiting the rule to universal waste
destined for recycling only, may discourage the use and development of
recycling technologies as universal waste handlers may be hesitant to
participate in a program that requires knowledge that their universal
waste is recycled.
The second goal of today's final rule is to improve implementation
of the hazardous waste program. EPA believes that today's rule, as
modified in response to comments, will have significant impacts on
waste management practices nationwide. Implementation of the hazardous
waste program will be improved by the simplified set of requirements
set forth in the rule. The provisions are now written such that they
are more easily understood by handlers of universal wastes. The Agency
believes that today's final rule is protective of human health and the
environment, will be clear and easily understood by the diverse
community which is targeted in this rule, and will not require
expending unreasonable amounts of time and effort to understand the
applicable requirements. The final rule also allows the part 273
regulations to be applied to all universal wastes, regardless of
whether they are destined for recycling or disposal. Thus, compliance
and enforcement procedures are easier to implement. Finally, because
the final rule does not require that universal waste handlers count
those universal wastes managed under part 273 toward their monthly
quantity determination, today's rule will greatly simplify the
procedures used to determine monthly hazardous waste generation rates
for universal waste handlers, thus facilitating the implementation of
the regulations.
The third goal of today's final rule is to separate universal waste
from the municipal waste stream. Under the full subtitle C regulations,
the management of waste differs based on the waste's generation source.
That is, waste generated by consumers in their homes is not regulated
under RCRA Subtitle C when discarded, because it is excluded from the
definition of hazardous waste under 40 CFR 261.4(b)(1). Conversely, the
same waste would be subject to RCRA Subtitle C regulation if generated
by commercial establishments, industries and other non-exempt
generators. Wastes covered under the universal waste regulations
(batteries, pesticides, and mercury thermostats) are examples of wastes
that are generated by both groups. Because the waste itself is the
same, and therefore looks the same to waste handlers, universal waste
that belongs in a hazardous waste system may be entering municipal
solid waste landfills or combustors instead. The Agency believes that
today's rule is practical enough that, as an infrastructure develops
for collecting universal waste, all categories of handlers will manage
their universal waste under the part 273 requirements. Therefore, in
the final rule, management of universal waste is material-specific
rather than source-specific, therefore, universal waste, regardless of
the source of generation, should be easily managed under today's final
rule.
IV.B. Scope of Final Rule
This section discusses the scope of the final universal waste rule.
The first section discusses the question raised in the proposal of
whether the universal waste system should be limited to wastes that are
recycled, or should include both wastes that are recycled and wastes
that are treated and disposed. The second section discusses each of the
wastes that have been included in the final rule, and several wastes
that have not been included. The third section addresses another
question raised in the proposal, whether Conditionally Exempt Small
Quantity Generators (CESQGs) should be required to manage their
universal wastes under the universal waste system or have the option of
managing the waste under the existing CESQG exemption.
IV.B.1. Recycling Versus Recycling or Disposal
The Agency requested comment in the proposed universal waste rule
on whether the streamlined universal waste regulations should cover
wastes that are to be either recycled or disposed of, or whether they
should be limited only to wastes that are to be recycled. The Agency
discussed three options: (1) Limiting the regulations to recycled
wastes only; (2) allowing management of wastes that are to be either
recycled or disposed of; or (3) a hybrid of options 1 and 2 under which
generators and transporters could manage waste that was to be either
recycled or disposed of under the streamlined universal waste
regulations, but the streamlined regulations would be available only to
consolidation points that send wastes on for recycling.
The proposed regulatory text was crafted following option 2: the
streamlined regulations would be applicable to both recycled and
disposed of wastes. Although limiting the regulations to recycled
wastes might encourage recycling, which the Agency supports, the Agency
explained that at the time it believed that not limiting the
regulations was the best option for a number of reasons. The vast
majority of commenters who addressed this issue agreed that the
universal waste regulations should be available for both wastes that
are recycled and wastes that are disposed of. Commenters generally
agreed with the Agency's basis for not limiting the regulations and
also discussed additional supporting factors. Based on these comments,
the Agency has decided to include both recycled and disposed of
universal wastes under the final universal waste regulations of part
273. The main reasons that commenters supported this approach and that
the Agency has chosen this approach for the final rule are discussed
below.
Not limiting the universal waste system to recycled waste makes the
regulations much less complex and more user friendly, thus encouraging
participation in universal waste collection programs. Persons are more
likely to be willing to participate in collection programs if they are
not required to determine whether recycling is available and cost
effective, particularly in situations where recycling markets and
capacity are volatile. In these cases it may not actually be possible
to make such a determination early in the collection system, and the
determination may vary over time, making compliance and enforcement
difficult. The Agency believes, and commenters agreed, that less
complex regulations will increase collection of universal wastes.
Increased collection under the universal waste regulations will result
in increased environmentally protective management of universal wastes
at Subtitle C hazardous waste facilities. The Agency believes that the
environmental benefits to be obtained from improved management of these
wastes, whether it is recycling or treatment and disposal, outweigh the
possible increases in [[Page 25503]] recycling that might occur if the
regulations were limited.
Not limiting the regulations also avoids one problem that the
Agency and the regulated community have had difficulties with in the
past. Regulations that are based on the intent of a person to do
something in the future are very difficult to enforce, and sometimes
even make it difficult for regulated persons to know what regulations
they should be following. The Agency believes, and commenters agreed,
that the compliance and implementation difficulties that are inherent
in requirements that vary depending on a future action (e.g., recycling
or disposal) make distinguishing between wastes to be recycled and
wastes to be disposed of infeasible under the universal waste
regulations.
Several commenters argued that limiting the regulations to recycled
waste might, in fact, discourage collection and recycling. Commenters
believed that persons are not likely to be willing to collect wastes
for potential recycling under the universal waste regulations if they
are vulnerable to liability for full Subtitle C violations, if, at a
later time, they determine that recycling is not available. Given the
volatility of recycling markets and capacities, particularly for
recycling technologies that are under development and not fully
established, this is a real concern. One commenter also pointed out
that some universal wastes are likely to be collected in mixtures of
recyclable wastes and non-recyclable wastes (e.g., mixed batteries).
Such wastes would have to be managed under the full hazardous waste
regulations, thus nullifying the benefits of the universal waste
regulations, inhibiting collection of even the recyclable wastes, and
ultimately limiting recycling. The Agency agrees with these commenters
that the difficulties inherent in having two systems based on the
ultimate disposition of the waste is not practical and may, in some
cases, actually inhibit recycling.
Several commenters argued that providing streamlined regulations
only for recycled wastes would provide an even greater incentive than
already exists for persons managing wastes to claim that they are
recycling, when their operations may be sham rather than legitimate
recycling. This would make it even more difficult for both persons
shipping wastes to recyclers and regulating agencies to determine
whether persons claiming to be recycling (or sending wastes to
recycling), are legitimately recycling. The Agency's experience has
been that it is not an easy task to determine whether an operation is a
legitimate or sham recycler. The added incentive for sham recycling,
and the increased importance of distinguishing legitimate from sham
recycling would further complicate a system limited to recycled wastes,
making it less effective in accomplishing the goals of removing waste
from non-hazardous waste management systems and improving
implementation of the hazardous waste regulations.
Numerous commenters pointed out that there may be a number of
wastes for which the universal waste system would be successful in
greatly improving waste management practices, but for which recycling
is not available because it is not either technologically or
economically feasible. Waste pesticides are a good example. Recycling
is rarely, if ever, an option and incineration is frequently the only
management option available. If the universal waste regulations were
limited to wastes that are recycled, waste pesticides could not be
included. This would greatly limit the environmental benefits to be
obtained from collection and proper management of pesticides, and other
similar wastes, under the universal waste regulations. These
commenters, and the Agency, agree that the benefits of encouraging
proper management for such wastes far outweigh the possible increases
in recycling that might occur if the regulations were limited.
Finally, the Agency notes that the treatment standards of the land
disposal restrictions program specifically require recycling for many
wastes included in the final universal waste rule, including lead-
containing batteries, cadmium-containing batteries, and high
concentration mercury wastes such as high-mercury batteries and
thermostats. Land disposal, and treatment followed by land disposal, is
not allowed for these wastes. Under the final rule, all universal
wastes must go to a destination facility for any treatment, recycling,
or disposal. The land disposal restrictions, including the treatment
standards, are fully applicable to destination facilities. Thus, for
these universal wastes recycling is actually mandatory. The Agency
notes that in cases such as these the land disposal restrictions
program has been used to require recycling for particular hazardous
wastes where it has been determined to be the best demonstrated
available technology (BDAT). These requirements continue to apply under
the universal waste regulations.
IV.B.2. Wastes Included in Final Rule
In the universal waste proposal, hazardous waste batteries and
suspended and/or cancelled pesticides that are recalled were included
as universal wastes in the proposed regulatory text. In the preamble,
the Agency suggested several additional waste types for which it
believed regulation under the universal waste system might be
appropriate. The waste types discussed included spent antifreeze, paint
residues, used thermometers, and used thermostats. The Agency requested
comment on whether these wastes should be included in the universal
waste system, and on what requirements would be appropriate to include
in the regulations to ensure that management under the universal waste
regulations was protective of human health and the environment.
Specific waste management requirements for thermostats were discussed
in some detail. The Agency has decided to include three waste
categories in the final universal waste rule: hazardous waste
batteries, certain hazardous waste pesticides, and hazardous waste
thermostats. These wastes are exempt from 40 CFR parts 262--270, except
as specified in 40 CFR part 273. These wastes are now subject to the
new part 273 regulations and, therefore, are not fully regulated under
the current hazardous waste regulations. The universe of wastes
included in each of these categories is discussed in detail in the
subsections below. Comments received on each of the waste categories
and the Agency's responses to these comments are also discussed. Also
discussed are several waste types for which a number of comments were
received, but that were not included in the final universal waste rule.
IV.B.2.a. Hazardous Waste Batteries
The Agency proposed to include all batteries that are hazardous
waste in the universal waste regulations, to encourage collection and
proper management of these wastes. The main reason for including all
batteries was to simplify the regulations and make them easy to comply
with. The Agency requested comment on several issues, including the
proposed definition of battery, whether the regulation should
distinguish between ``wet'' and ``dry'' batteries, whether the
regulation should distinguish between various sizes of batteries, and
how lead-acid batteries should be addressed. This latter issue is
discussed in detail in the following section of this preamble.
[[Page 25504]]
The Agency has decided to generally retain the proposed approach to
including batteries in the final rule. Thus, all batteries that are
hazardous waste may be managed under the final universal waste
regulations. However, based on comments received, the final definition
of battery has been revised from the proposal. A number of commenters
raised questions concerning the proposed definition and suggested
various revisions. Several commenters also recommended using a standard
definition that is already in use and accepted by major industry
groups. One commenter identified the American National Standards
Institute (ANSI) standard definitions for battery and cell, and
recommended using a combination of the two.
The Agency agrees that a recognized, standard definition for
battery is most likely to properly identify the universe of articles
that should be covered by the universal waste regulations. The Agency's
intent is to include those items commonly understood to be batteries,
without inadvertently including other items or excluding some
particular type of battery. A standard definition is most likely to
accomplish this. Thus, the Agency has chosen to use a combination of
the American National Standards Institute (ANSI) standard definitions
for battery and electrochemical cell to define the term battery in the
final rule. (See ``The New IEEE Standard Dictionary of Electrical and
Electronics Terms,'' Fifth Edition, published by the Institute of
Electrical and Electronics Engineers, Inc., IEEE Standard 1000-1992.)
The definition of battery in the final rule is ``a device consisting of
one or more electrically connected electrochemical cells which is
designed to receive, store, and deliver electric energy. An
electrochemical cell is a system consisting of an anode, cathode, and
an electrolyte, plus such connections (electrical and mechanical) as
may be needed to allow the cell to deliver or receive electrical
energy. The term battery also includes an intact, unbroken battery from
which the electrolyte has been removed.''
As suggested by commenters, the final definition has been revised
to specify that a battery must store electrical energy in addition to
receiving and delivering electrical energy. This distinction is to
ensure that gas-powered or electric generators are not included. The
definition has also been expanded to clarify that the definition of
battery does include batteries from which the electrolyte has been
removed. This was clearly the intent of the proposal, which
specifically allowed removing electrolyte from batteries. Commenters
did not object to electrolyte removal, but were concerned that it be
clear that batteries may not be crushed or broken to remove
electrolyte. Note also that the waste management requirements for
batteries prohibit breaking batteries during electrolyte removal.
With respect to the question of whether the universal waste
regulations should distinguish between ``wet'' and ``dry'' batteries
(batteries with a liquid vs. non-liquid electrolyte), those commenters
who addressed this issue agreed that no distinction should be made. The
Agency has decided to include both types of batteries in the regulation
based on these comments and the argument that including all hazardous
waste batteries greatly simplifies the regulations, making them easier
to comply with and thus encouraging collection and improved management.
Similarly, the Agency has decided to include all sizes of batteries in
the final rule. Few commenters addressed this question, and again the
Agency believes that not limiting the universal waste system will
result in improved management of all batteries, regardless of size.
Finally, a number of commenters raised questions about which types
of batteries exhibit characteristics of hazardous waste and therefore
would be covered under the universal waste system. Several commenters
requested that the Agency specify which battery types are hazardous. A
few commenters provided some data on various types of batteries, but
the Agency did not find the data to be comprehensive enough to make
broad generalizations about whether various battery types are always or
never hazardous. In addition, the Agency found it was not possible to
commit the resources that would be required to conduct sufficient
testing of numerous brands, sizes, and ages of batteries to make any
broad generalizations. Furthermore, even if resources were available,
it would likely not be possible to make definitive determinations in
any case.
As a result, the Agency has decided to retain the proposed approach
of using the term ``hazardous waste batteries'' to identify the
universe of batteries that may be managed under the universal waste
regulations. As is true under all of the hazardous waste regulations,
it remains up to the generator (handler) of batteries to determine
whether they must be managed under the hazardous waste regulations at
all. If so, then the universal waste regulations apply. However, the
Agency continues to believe that the universal waste regulations are
simple and basic enough that it will be easier and more efficient to
manage all kinds of batteries, and particularly mixed batteries, under
the universal waste system rather than making individual determinations
about batteries or battery types.
Of course, where sufficient information is available for a
generator (or other handler) to determine that a particular battery is
not hazardous, then that battery need not be managed under the
universal waste regulations. However, one of the Agency's goals for the
universal waste system has been to reduce the complexity and burden of
complying with the hazardous waste regulations for these wastes. One of
the major difficulties with the hazardous waste regulations has been
hazardous waste determinations in cases where wastes are generated in
small quantities by large numbers of people who are not familiar with
the specific composition of the waste. Batteries are a classic example
of this problem. Thus, the Agency hopes that the universal waste
regulations are sufficiently improved to allow persons to manage
batteries within the universal waste system without placing too much
emphasis on whether they are hazardous or not. Obviously, in cases
where it is known that batteries are not hazardous this is not
necessary. But where it is not known, it is hoped that resources will
be spent on improved management rather than on extensive, initial
analytical work.
The Agency would like to note that the Universal Waste Rule applies
only to hazardous waste batteries as defined in 40 CFR 260.10 and
273.6, and not to the unit or device in which the battery is contained.
There may be a situation in which a regulated business is sending a
device containing a battery to a facility to be repaired. At this
point, the device would not be considered a universal waste as: (1) The
device is still a product, and therefore not yet a solid waste; and (2)
the device does not fall into any of the current categories of
universal waste (hazardous waste batteries, thermostats, and certain
pesticides). If, however, the person (either the original generator or
the repair facility) decides to dispose of the device, he must
determine if the entire device is or is not a hazardous waste.
IV.B.2.b. Lead-Acid Batteries
In the proposed rule, EPA proposed to maintain the current
exemption for lead-acid batteries under subpart G, part 266. Under
these regulations, persons who generate, transport, or collect spent
lead-acid batteries, or who store them but do not reclaim them (other
than spent batteries that are to be regenerated) are not subject to the
[[Page 25505]] hazardous waste regulations. Persons who accumulate
spent lead-acid batteries before reclaiming them (e.g. cracking, and/or
smelting the batteries) must notify EPA and obtain a RCRA permit for
that storage. Under the universal waste proposal, persons had the
option of continuing to manage lead-acid batteries under the part 266,
subpart G exemption or under the part 273 requirements. The existing
recycling program for automotive lead-acid batteries currently in
place, which operates under this exemption, has been extremely
successful, with recycling rates in excess of 90% nationwide. By
retaining the part 266, subpart G exemption, the Agency believes that
this program can continue to operate without unnecessary modifications
nor an adverse effect on the environment. Therefore, in today's final
rule, the subpart G, part 266 exemption has been retained. Therefore,
handlers of spent lead-acid batteries are who are managing them under
the requirements of Sec. 266.80 are not subject to the requirements
under 40 CFR part 273. However, handlers of spent lead-acid batteries
who are not managing them under the Sec. 266.80 requirements are
subject to the requirements under 40 CFR part 273.
In addition, 40 CFR 266.80 (a) and (b) have been revised to clarify
that lead-acid batteries that are regenerated remain exempt from the
hazardous waste regulations throughout the management cycle. Since the
final rule retains the lead-acid battery provisions of 40 CFR 266.80,
it is most appropriate to also include regenerated lead-acid batteries
so that all lead-acid batteries may be managed similarly. However,
since the activities of a regeneration facility are more similar to a
facility that accumulates waste than a facility that processes a waste
to recover a usable product, batteries that are regenerated have also
been exempted from the requirements for lead-acid battery reclamation
facilities (for further discussion of regenerated batteries, see
section IV.J. of today's preamble).
Most commenters agreed that the current exemption for lead-acid
batteries under subpart G of 40 CFR part 266 should be retained.
Commenters agreed that by maintaining this exemption, the current
recycling program for automotive lead-acid batteries can continue to
operate successfully.
A few commenters, however, argued that EPA should consolidate all
requirements applicable to batteries into one set of regulations to
reduce confusion on the part of handlers as to which requirements must
be complied with for proper management. Some commenters stated that
extending the part 266 exemption to all batteries would be the most
appropriate, while others express a desire for all batteries to be
incorporated into part 273. Others recommended a combination of the two
by incorporating the part 266 exemption into the part 273 regulations.
The Agency believes that retaining the exemption under part 266,
subpart G will not make the management of hazardous waste batteries
overly confusing or complex. The part 266, subpart G exemption is
primarily used for the reclamation of automotive lead-acid batteries,
which are easily identifiable. As such, the Agency believes separate
management of this waste stream is simple to accomplish and therefore
does not place a burden on handlers managing these batteries.
It was noted by one commenter that automotive batteries of various
formulations are currently under development for use in electric
vehicles, and thus, in the future, the chemistry of automotive
batteries (eg., lead-acid versus other formulations) may not be as
easily identifiable as it is at this time. The Agency would like to
clarify that under the hazardous waste regulations as revised by
today's addition of part 273, if the handler believes a battery is a
hazardous waste but is not clear whether the battery is lead-acid or
another chemical formulation, the battery should be managed under part
273 regulations. The Agency believes, however, that the final part 273
requirements are simple and straightforward enough that management of
any mixed battery types, including electric vehicle batteries, will not
be overly burdensome.
Another commenter expressed concern regarding the management of
small (non-automotive) lead-acid batteries. The Agency expects that
small, sealed dry cell lead-acid batteries will likely be handled under
the part 273 regulations along with other hazardous waste batteries,
therefore eliminating the need for the handler to separate these
batteries from other hazardous waste batteries. Managing small sealed
lead-acid batteries together with other hazardous waste batteries under
part 273 is acceptable under the final rule.
IV.B.2.c. Hazardous Waste Pesticides
Among the wastes proposed to be included in the universal waste
regulations was a narrowly limited set of hazardous waste pesticides.
Specifically, the proposed rule established streamlined requirements
for the collection of unused pesticides that are suspended or canceled
under section 6 of the Federal Insecticide, Fungicide, and Rodenticide
Act (FIFRA) and recalled, and that are collected for discard. FIFRA
regulates pesticides from initial distribution by producers to ultimate
disposal. As proposed, to meet the applicability criteria of part 273,
the pesticides were required to be: (a) Part of a voluntary or
mandatory recall under FIFRA section 19(b); or (b) owned by a
registrant responsible for conducting a recall under FIFRA section
19(b); or (c) part of a registrant-conducted recall of a canceled or
suspended pesticide under FIFRA section 6. A number of changes have
been made to the universe of pesticides covered in the universal waste
rule and in the corresponding regulatory text, which was proposed to
delineate which pesticides were or were not subject to the requirements
of part 273.
First, in the final rule, the Agency has expanded and organized the
applicability section for pesticides into four subsections, as follows:
(1) Pesticides covered under part 273; (2) pesticides not covered under
part 273; (3) generation of hazardous waste pesticides; and (4)
pesticides that are not wastes. The Agency decided to restructure the
pesticides applicability section in this way because several commenters
stated that it was difficult to determine which pesticides were covered
or which pesticides were not covered under the proposed rule. For
example, the proposal Sec. 273.20(a) included Secs. 273.20(a) (2) and
(3) which both described hazardous waste pesticides not covered under
part 273. Similarly, Sec. 273.21(a) included Sec. 273.21(a)(2) which
described recalled pesticides that never become hazardous wastes and
thus are never generated. The Agency agrees that these and other
sections could confuse readers attempting to determine whether their
pesticides were covered under part 273. The Agency believes that the
restructured applicability section for pesticides, 40 CFR 273.3, will
be much more clear and less cumbersome in that all of the provisions
addressing which pesticides are covered are now located in one section
and the section is clearly organized to assist readers in making this
determination.
Second, the universe of pesticides included under the final
universal waste regulations has been expanded. This expansion is
codified in Sec. 273.3(a), which describes the types of hazardous waste
pesticides that are considered universal wastes and may be managed
under part 273. The first paragraph of this Sec. 273.3(a)(1) rewords,
but essentially retains, the proposed [[Page 25506]] regulatory text
from Sec. 273.20(a)(1) that described the recalled pesticides that are
subject to FIFRA recall procedures and were proposed to be managed as
universal wastes. The second paragraph of this Sec. 273.3(a)(2), has
been added to the final rule and describes the universe of pesticides
that has been added to the universal waste regulations in addition to
the recalled pesticides described above. Specifically, the Agency has
broadened this section to include unused pesticide products that are
collected and managed as part of a waste pesticide collection program.
These unused pesticide products are generally materials that are no
longer useful for their intended purpose. Frequently, they are
agricultural pesticides that have been banned for use on crops or are
obsolete and have been replaced by newer products. They may also be
pesticides that have become damaged (e.g., exposed to temperature
extremes) or that are no longer needed due to factors such as changes
in cropping patterns.
Ultimately, farmers nationwide have accumulated these materials in
their sheds or barns for many years. To encourage the removal of unused
pesticide products from long term accumulation on the farm, a number of
state agricultural departments have implemented programs to collect and
properly dispose of these materials. By including unused pesticide
products under part 273, farmers will be able to ship their universal
waste pesticides to the collection programs without needing to meet the
full requirements under 40 CFR parts 260 through 272.
Several factors prompted the Agency to include unused pesticide
products that are collected and managed as part of waste pesticide
collection programs into the part 273 universal waste management
standards. One factor for including unused pesticide products was that
unused pesticide products are generated by a wide variety of generators
and are present in large amounts in the agricultural community. Another
factor was that potential risks posed by the presence of unused
pesticide products during accumulation and transport are similar to the
risks posed by recalled pesticides during accumulation and transport.
Finally, the inclusion of unused pesticides under part 273 will greatly
facilitate participation and implementation of state programs that are
currently collecting the unused pesticide products found on farms.
Most of the commenters addressing pesticide related portions of the
proposed rule supported including such unused pesticide products in the
final rule. These commenters specifically argued that unused pesticides
posed risks similar to risks posed by pesticides already included under
the proposed regulations. Some commenters, argued that if the proposed
pesticide regulations for recalled pesticides could be expanded to
include stocks of unused pesticide products, state approved programs
currently collecting unused pesticide products could greatly improve
participation by farmers. These commenters indicated that certain
current requirements under 40 CFR parts 260 through 272 had deterred
many farmers from participating in, and benefitting from, waste
pesticide collection programs, and that streamlined requirements under
part 273 would remove many such barriers to participation.
Third, the Agency has developed a subsection under the final rule
which describes the types of pesticides that are not covered under part
273. Paragraph 273.3(b)(1) reiterates that qualifying hazardous waste
pesticides can be regulated in compliance either with 40 CFR parts 260
through 272 or with part 273. For example, farmers managing hazardous
waste pesticides in compliance with 40 CFR 262.70 are not subject to
the regulations of part 273. Under Sec. 273.3(b)(2) of the final rule,
hazardous waste pesticides that do not meet the conditions described in
Sec. 273.3(a) are required to comply with the full hazardous waste
regulations in 40 CFR part 260 through 272. This provision has been
retained from Sec. 273.20(a)(2) of the proposed rule. Similarly,
Secs. 273.3(b) (3) and (4), which describe recalled pesticides that are
not yet solid wastes and therefore are not subject to the hazardous
waste regulations including part 273, have also been retained from the
proposed regulatory text from Sec. 273.21(a)(2). Again, the Agency
recodified these paragraphs in one subsection of the final rule to make
it clearer to the reader which types of hazardous wastes are not
covered under part 273 standards of the final rule.
The text in the applicability section for universal waste
pesticides was complex in the proposed rule. Part 273.21(a)
(``Generation of Hazardous Waste Pesticides), the Agency proposed
criteria to establish the date at which waste pesticides are generated,
but also included criteria to distinguish when pesticides are or are
not solid wastes and, therefore, not subject to the hazardous waste
regulations. To clarify the applicability section of the final rule,
the final rule text separates these criteria into two separate
paragraphs (Secs. 273.3 (c) and (d)), as described below.
Section 273.3(c) will help readers determine the date at which a
recalled or unused pesticide becomes a waste. Understanding this factor
is important since a pesticide that has not become a waste also has not
become a hazardous waste and is not covered under part 273 (see also
preamble discussion on Secs. 273.3 (b) and (d)). The text in
Sec. 273.3(c)(1) simplifies but retains the meaning of text in
Sec. 273.21(a)(1) of the proposed rule. Section 273.3(c)(1) states that
a recalled pesticide becomes a waste on the first date on which two
conditions occur. These conditions are: (1) The generator of the
recalled pesticide agrees to participate in the recall; and, (2) the
person conducting the recall decides to discard the pesticide or burn
the pesticide for energy recovery. For example, if a farmer decides to
participate in a recall and sends the recalled pesticide back to the
registrant for reclamation and reformulation, the pesticide would be
considered an unused commercial chemical product being reclaimed and
therefore would not be a solid waste (or hazardous waste) under RCRA
section 261.1. A recalled pesticide sent by a recall participant to the
recall facility does not become a waste until the registrant makes a
decision to discard the pesticide (e.g., burn for energy recovery).
Once a decision to discard the pesticide or burn the pesticide for
energy recovery is made, both conditions of Sec. 273.3(c)(1) have been
met and the registrant becomes the generator of the universal waste.
Section 273.3(c)(2), describing when an unused pesticide products
becomes a waste, has been added to the final rule to accommodate the
changes mentioned above to the proposed regulatory text from
Sec. 273.20(a).
Section 273.3(d)(1) of the final rule further explains the
decision-making role played by the person conducting the recall of a
pesticide in determining whether the pesticide becomes a waste. The
regulatory language established in the final rule is retained from
Sec. 273.21(a)(2) in the proposed rule. The final rule also adds
Sec. 273.3(d)(2) describing the generator's role in determining whether
a pesticide is a waste. This addition accommodates the expansion of the
applicability section at Sec. 273.3(a)(2), mentioned earlier. This
decision-making process remains as proposed and is specific to
pesticides involved in a recall. Recalled pesticides are covered by
procedures under FIFRA section 19(b) and 6(g). Other situations are
covered generally under Sec. 261.2. [[Page 25507]]
IV.B.2.d. Hazardous Waste Thermostats
In the proposed rule, the Agency requested comment on whether used
mercury-containing thermostats should be added to the universal waste
regulations. The Agency specifically requested comment on whether used
mercury-containing thermostats fit the factors proposed to be used to
evaluate whether new candidate wastes are suitable for inclusion under
part 273. In addition, the Agency asked for comment on whether the
universal waste requirements proposed for universal waste batteries
would be appropriate for managing used mercury-containing thermostats.
Commenters overwhelmingly supported adding mercury-containing
thermostats to the universal waste regulations. Commenters agreed that
mercury-containing thermostats are an appropriate waste type to manage
under the universal waste system and that they meet the criteria
proposed for adding wastes to the part 273 regulations. Commenters
argued that thermostats are generated in a wide variety of settings by
a large number of generators, since they can be generated at almost any
building, including commercial, industrial, agricultural, community,
and household buildings. Commenters asserted that thermostats are
likely to be managed in the municipal waste stream because they are
small, generated infrequently, and usually generated by persons not
familiar with the hazardous waste regulations or hazardous waste
management systems.
Several commenters described a ``reverse distribution'' or ``take
back'' system that is under development by one thermostat manufacturer.
A trade association representing manufacturers of thermostats indicated
that all of the members intend to participate in this collection
system, thus making the system industry-wide and allowing collection of
virtually all brands of thermostats used in the United States. The
``take back'' system will be used to collect used mercury-containing
thermostats to recover the mercury and reuse it in the production of
new thermostats. The manufacturer implementing the ``take back'' system
has developed packaging, marking, and labeling procedures that will be
required for participation in the program that will ensure that the
waste mercury thermostats are appropriately handled. The information
provided indicated that the nation-wide waste mercury thermostat
collection and recycling program would greatly reduce the amount of
mercury that is now being managed in the municipal waste stream across
the United States.
Commenters further argued that mercury-containing thermostats
present relatively low risk during accumulation and transport because
they are designed to protect the ampules that contain mercury from
breakage. One commenter explained that ampules are attached to a bi-
metal strip designed to absorb shocks. The commenter further explained
that ampules are also enclosed within plastic or metal outer casings
that protect them further from breakage. This commenter described
experience with warrantee take back programs and indicated that less
than .01% of new mercury thermostats returned to them are returned due
to breakage of the ampules. Commenters also stated that during
accumulation, waste mercury thermostats are not subject to
deterioration, therefore, the risk of mercury release will not increase
as accumulation time increases. The packaging, marking, and labeling
procedures that will be part of the industry ``take back'' program
provide further evidence that the risks during accumulation and
transport will be low.
The Agency agrees with commenters that used mercury-containing
thermostats meet the proposed (and final) factors for adding new wastes
to the universal waste regulations and that these wastes are
appropriate to be managed under the universal waste system. The Agency
recognizes that due to the administrative burden, costs, and stigma
associated with managing these wastes under the full hazardous waste
regulations, it is not likely that a ``take back'' system such as that
described by commenters will be implemented if compliance with the full
hazardous waste regulations is required of participants. Thus, the
Agency has included mercury-containing thermostats in the final
universal waste regulations promulgated today. It should be noted that
universal wastes, including mercury-containing thermostats, are exempt
from regulation under both the 40 CFR 262-270 and 40 CFR part 273 if
they are household waste (see 40 CFR 261.4(b)(1)), therefore the
possible burden of compliance with the current Subtitle C regulations
lies with generators, transporters and storage facilities currently
regulated under 40 CFR parts 262-270.
One commenter suggested a regulatory definition to identify what
wastes are covered under the universal waste regulations. The Agency
agrees that a definition is necessary, and has included the following
definition in 40 CFR 273.6 of the final rule: ``thermostat means a
temperature control device that contains metallic mercury in an ampule
attached to a bimetal sensing element, and mercury-containing ampules
that have been removed from these temperature control devices in
compliance with the requirements of 40 CFR 273.13(c)(2) or
273.33(c)(2).'' This definition differs slightly from the definition
that was recommended by the commenter. The commenter suggested limiting
the definition to wall-mounted thermostats, rather than extending the
definition to all temperature control devices that contain metallic
mercury in ampules. The commenter expressed concern that difficulties
may arise when managing small wall-mounted thermostats together with
other mercury thermostats. The Agency recognizes the commenter's
concerns, but points out that universal waste handlers are not required
to accept any type of universal waste that they are not prepared to
manage. Thus, if a collection program is designed only to handle a
certain type of thermostat, only that type of thermostat should be
accepted by the operators of the program. The Agency does not want to
limit the possibility that other collection programs may be developed
for other types of thermostats, or that different types of thermostats
could be managed separately (i.e., transport and accumulate wall-
mounted and other thermostats separately). Thus, the definition has not
been limited to wall-mounted thermostats.
In addition, the definition suggested by the commenter has been
expanded in the final rule to include mercury-containing ampules that
have been removed from thermostats. As is discussed in section IV.E.3.c
of this preamble, requirements for managing thermostats under the
universal waste rule have been drafted to allow removal of ampules as
long as certain conditions are met. In order to allow management of the
ampules under the universal waste system once they have been removed
from the thermostat casing, it was necessary to include them in the
definition of thermostat. The definition specifies that the ampules
must be removed following the universal waste handler waste management
conditions set forth in Sec. 273.13(c)(2) or Sec. 273.33(c)(2).
Finally, with the exception of the issue of ampule removal,
commenters overwhelmingly supported applying the requirements proposed
for universal waste batteries to used mercury-containing thermostats.
Thus, in the final rule, persons managing universal waste thermostats
are subject to the same basic requirements as persons managing other
universal wastes: [[Page 25508]] requirements for small and large
quantity handlers, transporters, and destination facilities. Specific
waste management requirements have been added to the small and large
quantity handler sections to address the commenter's concerns about
ampule removal. These requirements are discussed in detail in section
IV.E.3.c of this preamble, entitled waste management.
IV.B.2.e. Other Wastes Suggested by Commenters
A number of commenters suggested additional wastes that they
believed should be added to the universal waste regulations. For
example, wastes suggested included electronic components, photographic
wastes, aerosol cans, solvent contaminated rags and wipers, treated
wood, auto shredder fluff, and a number of others. Several wastes were
suggested by numerous commenters and merit further discussion. These
are spent lamps (lighting waste), used mercury containing equipment,
and antifreeze. Spent lamps are discussed in section II.A, of this
preamble, entitled mercury-containing lamps. Used mercury-containing
equipment and spent antifreeze are discussed in the following sections
of this preamble.
Although many of the wastes suggested may be appropriate candidates
for the universal waste system in the future, the Agency has decided to
include only three wastes in this final rule: hazardous waste
batteries, thermostats, and certain unused pesticides. This decision
was made because, first, with a few exceptions discussed below,
commenters provided only very limited information about the suggested
waste(s), current management of the waste(s), and appropriate waste
management controls that could be used to develop universal waste
regulations for the waste(s). Most commenters did not evaluate how the
suggested waste(s) compared against the factors proposed to add new
wastes to the universal waste regulations. For most suggested wastes,
the Agency did not feel that it had sufficient information to consider
adding the waste to the universal waste regulations at this time.
Unlike unused pesticide products and mercury-containing thermostats on
which we have a body of information, adding other suggested waste types
would require additional research to determine appropriate waste
management practices and other issues related to these wastes. Second,
in this final rule the factors used to evaluate candidate wastes to
determine whether they are appropriate to be added to the universal
waste regulations have been revised from those proposed.
Finally, the universal waste system is a new program. The Agency
believes it is important to begin implementation with a limited number
of waste types, and conduct at least an initial assessment of how the
program is working before adding a great deal of new wastes. Thus, due
to resource constraints, the Agency has decided to add only the above-
named wastes and focus it's efforts on promulgating the basic structure
of the regulations, while initially including only a few wastes in the
program. If determined necessary, revisions to the regulatory structure
could be made at the same time that new wastes are added.
The fact that the Agency has decided not to add a commenter's
suggested waste to the universal waste regulations at this time does
not mean that the Agency will not consider adding the waste at some
time in the future. In fact, commenters are encouraged to assess
whether their suggested wastes fit the final evaluation factors, and if
so, to submit a petition making that demonstration and including
suggested waste management controls that could be used to develop
universal waste regulations for the waste. Petitions should follow the
procedures set forth in 40 CFR 260.20, 260.23, 273.80, and 273.81 as
revised by this final rule.
IV.B.2.f. Used Mercury-Containing Equipment
In addition to supporting the addition of mercury-containing
thermostats to the universal waste regulations, a number of commenters
suggested expanding the scope of this waste type to be a category of
wastes including other mercury-containing equipment. Commenters pointed
out that thermostats are a form of mercury switch, and that there are
many other types of mercury switches that may present issues similar to
those for thermostats. Other items commenters identified as mercury-
containing equipment that should be included were gauges, manometers,
relays, and circuit boards. Commenters also noted that some of these
items may contribute substantial amounts of mercury to non-hazardous
waste management systems.
Although the Agency believes that adding a broader category of
mercury-containing equipment to the universal waste rule may ultimately
be the best way to approach this issue, at this time only mercury-
containing thermostats have been included in the final rule. In
addition to the reasons discussed above for limiting this final rule to
batteries, pesticides, and thermostats, the Agency does not believe
that it has sufficient information at this time to add the broader
category to the universal waste regulations. Specifically, the universe
of wastes that would fit into such a category is not clearly
identified. The Agency does not know exactly what types of wastes would
be included if it were to add such a category. For example, it is not
known how much mercury might be in such equipment. It is possible that
there are some pieces of equipment that have very large amounts of
mercury that may be of more concern for management under the universal
waste regulations than equipment with small amounts of mercury. It is
also not known how various types of mercury-containing equipment are
constructed, and thus it is not known whether the mercury is
sufficiently contained to provide some assurance that the mercury would
not be released during management under the universal waste system.
Similarly, it is not known what type of waste management controls would
be appropriate to include in the universal waste regulations for the
broader category.
The Agency would welcome a petition to add some form of broad
category of mercury-containing equipment to the universal waste rule.
In developing such a broad category, the Agency would be particularly
interested in several issues. First, suggestions on how to define the
category to limit it to wastes appropriate for the universal waste
system would be useful. Second, the Agency would need a listing of the
types of equipment that would be included in the category, and general
information about the amounts of mercury contained in each and how the
equipment is constructed to protect the mercury from release. Third, it
would be helpful to know whether there is some mercury quantity limit
that might be used to ensure that the risks of managing the wastes
under the universal waste rule are low (relative to other hazardous
wastes), while at the same time including as many of these wastes as is
appropriate. Fourth, the Agency would appreciate suggested waste
management requirements that, taking into account the construction of
the mercury-containing equipment, would minimize the risks of managing
these wastes under the universal waste regulations. Finally, any
available information about systems that are used or could be used to
collect these wastes would be useful (e.g., reverse distribution
systems). [[Page 25509]]
IV.B.2.g. Spent Antifreeze
In the preamble to the universal waste rule the Agency suggested
that used antifreeze might be a good candidate for addition to the
universal waste regulations. Comment was requested on whether spent
antifreeze fit the factors for addition to the universal waste rule,
and on what specific management requirements would be appropriate if
spent antifreeze were added. Numerous comments were received addressing
this issue, but commenters disagreed on both whether used antifreeze
should be added to the universal waste system at this time and on what
requirements would be appropriate.
A number of commenters argued that spent antifreeze did fit the
proposed factors and should be added to the rule. Several commenters
addressed each of the proposed factors in turn and maintained that
antifreeze fit them all. A number of other commenters, however,
questioned how frequently spent antifreeze actually fails the toxicity
test and is thus hazardous waste. They noted that one of the factors
proposed to be used to evaluate new wastes for addition to the
universal waste system was whether or how frequently the waste was
hazardous. They argued that regulation under the universal waste rule
would imply a presumption that used antifreeze is hazardous, making
management of that portion of spent antifreeze that is not hazardous
more difficult. Several of these commenters also predicted that the
lead levels in used vehicle antifreeze will diminish over time as more
and more vehicles are produced with cooling systems that have little or
no exposed lead solder. They thus believe that less and less antifreeze
will fail the toxicity characteristic over time.
Commenters also recommended a wide range of management requirements
for spent antifreeze if it were to be added to the universal waste
system. Some commenters believed that the requirements proposed for
batteries and pesticides were generally appropriate. A number of
commenters also maintained that the antifreeze recycling pattern is
very different from the limited recycling or treatment and disposal
options available for wastes such as batteries and pesticides. They
described antifreeze recycling as requiring less sophisticated
technology and being practiced at many dispersed locations rather than
a few centralized facilities. They did not believe that the universal
waste regulatory structure was appropriate to accommodate this type of
waste management pattern.
Several commenters argued that because antifreeze is a high volume
liquid, the management requirements should be somewhat different than
those included in the proposal. Some commenters argued that
requirements for used antifreeze should be based on the small quantity
generator regulations. Many others suggested requirements similar to
the used oil management standards of 40 CFR part 279. Some commenters
suggested specific sets of requirements that they believed were
appropriate for used antifreeze management.
Spent antifreeze is not included in the final universal waste rule.
The Agency made this decision for several reasons. First, because the
Agency did not request specific comments on issues related to spent
antifreeze, the comments received were not focussed on any particular
issues and provide little clear direction for the Agency to move
forward with this issue at this time. As suggested by several
commenters, the Agency does not believe it would be wise to add spent
antifreeze to the universal waste regulations without first proposing
and accepting comment on specific management standards.
Second, commenters opinions on whether spent antifreeze should be
added to the universal waste regulations ranged so widely that it is
clear that more investigation into this issue is necessary before
promulgating final regulations. Specifically, some additional
information on the frequency with which used antifreeze exhibits the
toxicity characteristic may be available and should be reviewed prior
to making a decision on how to address antifreeze. In addition, the
Agency should also investigate further suggestions that improved
handling by generators (e.g., managing antifreeze only in dedicated
containers) could reduce the rate at which antifreeze exhibits the
toxicity characteristic. Similarly, opinions on appropriate management
standards also varied so greatly that the Agency recognizes it would
not be possible, based on the information available at this time, to
develop management requirements that adequately address the issues
raised by commenters.
Third, many commenters argued that the question of how antifreeze
recycling is regulated is central to the development of appropriate
management standards. As explained in section II.B of this preamble,
entitled Redefinition of Solid Waste, the general question of how
recycling should be regulated is being addressed in a larger forum and
is outside the scope of today's final rule. The Agency believes that it
may be necessary to proceed somewhat further with this effort before it
will be possible to determine how best to address the issue of
antifreeze management.
Finally, for this initial final rule, the Agency decided to focus
its efforts and available resources on wastes for which commenters
demonstrated more agreement about the major issues of whether to
include the waste and appropriate management requirements. Once the
basic structure of the universal waste system is in place, it may be
more clear whether and how more controversial wastes such as antifreeze
may fit into the system. Thus, spent antifreeze has not been included
in this final rule, but the Agency has not ruled out adding it in the
future if it seems appropriate and if it appears possible to develop
requirements that would improve management of used antifreeze.
IV.B.3. Conditionally Exempt Small Quantity Generator Waste
In the proposed part 273 regulations, the Agency proposed to retain
the 261.5 CESQG conditional exemption from the hazardous waste
regulations for universal wastes. Under this approach, CESQGs would
have the option of managing universal wastes under either part 273 or
Sec. 261.5. Thus, CESQGs would not be required to manage their
universal waste under part 273. However, the Agency requested comment
on whether this approach should be retained, or whether CESQGs should
be required to manage their universal wastes under part 273. In the
final rule, the Agency has decided to retain the approach proposed and
is allowing CESQGs the option of handling their universal wastes under
part 273 or under the CESQG exemption in Sec. 261.5.
Most commenters responding to this request for comment argued that
CESQGs should be allowed flexibility in managing their universal
wastes. Commenters stated that CESQGs should have the option of
managing these wastes as universal wastes under part 273 if they so
choose, or to continue to handle these wastes in compliance with the
requirements of the CESQG exemption under Sec. 261.5. Commenters argued
that this option would allow each CESQG the flexibility to select the
disposal method that is least costly and best meets the needs of its
business. They also argued that CESQGs often do not have ready access
to new information and markets for their wastes and therefore should
not be required to manage their universal wastes under part 273 to the
exclusion of other existing waste management options. Many commenters
pointed out that as [[Page 25510]] an infrastructure develops for the
universal waste collection systems, CESQGs are likely to voluntarily
participate in such programs. Other commenters stated that management
under part 273 should be mandatory in order to reduce confusion related
to how these waste types should be handled and to ensure protection of
the environment.
The Agency believes that allowing individual CESQGs to choose the
regulatory option that best meets their circumstances will aid in
assuring effective collection, management and disposal of universal
wastes. Requiring compliance with part 273 would be an added
administrative and cost burden for CESQGs, many of whom may be small
businesses and small organizations. In addition, compliance with some
aspects of the program may be difficult for these generators. The
Agency believes that as an infrastructure develops for protectively
handling these wastes, CESQG waste is most likely to be incorporated
into the universal waste system through voluntary efforts, state or
local programs, and the availability of convenient collection systems
rather than through additional regulatory requirements. Therefore, in
the final rule, the Agency has retained the opportunity for CESQGS to
manage their wastes under either the CESQG exemption or under part 273.
The option for CESQGs to send their universal wastes to a universal
waste handler or destination facility has been added to 40 CFR
261.5(f)(3)(vi) and 261.5(g)(3)(vi) as was proposed. As was proposed at
40 CFR 273.10(b)(1)(ii) and 40 CFR 273.20(b)(1)(ii), 40 CFR 273.5(a)(2)
has been added to the final rule to clarify that CESQGs may, at their
option, manage their universal wastes under part 273.
Further, the Agency is retaining the intent of the proposed
requirement that if universal wastes from CESQGs are commingled with
universal wastes from larger, regulated hazardous waste generators, and
the commingled waste is a hazardous waste under 40 CFR 261.3 (i.e., is
listed or exhibits a characteristic), the commingled waste must be
managed under the part 273 requirements. As explained in the proposal,
this provision is included to clarify this point for persons managing
universal waste, but is actually merely a restatement of existing
hazardous waste requirements.
In the proposed universal waste rule, the Agency also proposed not
to require hazardous waste generators to count those universal wastes
managed under the part 273 requirements toward the monthly quantity
calculation used to determine generator regulatory status (i.e., CESQG,
SQG, LQG). Today's final rule retains the approach as proposed. Section
261.5 has been redrafted to clarify this point.
One commenter was concerned that this exclusion would cause more
hazardous waste to be sent to non-subtitle C facilities because more
generators would be CESQGs if universal wastes are not counted. The
remainder of the commenters agreed with excluding universal wastes
managed under part 273 from the generator's calculation of monthly
generation rates to determine generator status.
The Agency does not believe that excluding universal wastes from
the generator's calculation of monthly generation rates will have a
significant impact on the amount of hazardous waste sent to non-
subtitle C facilities. The volume of universal wastes typically
generated by any one generator is not large. Thus, the Agency believes
that the number of generators that will move from the regulated SQG
category to the conditionally exempt SQG category will be small.
More importantly, the Agency believes that on balance, encouraging
generators to manage their wastes under part 273 by allowing generators
not to count those universal wastes managed under part 273 will likely
increase the overall quantity of hazardous waste recycled or disposed
of at Subtitle C facilities. Excluding universal hazardous wastes that
are managed under part 273 from the generator's monthly quantity
determination will encourage generators to manage wastes under the
universal waste rule, and therefore maximize the benefits to the
environment by redirecting these hazardous wastes from non-hazardous
waste management to more protective management. The Agency strongly
believes that the benefits of capturing these universal wastes for safe
handling outweighs the potential risks of small quantities. Therefore
today's final rule retains this exclusion.
In addition, as other waste types are considered for inclusion in
part 273, they will be evaluated according to the criteria in
Sec. 273.81. Part 273.81(d) states that ``systems to be used for
collecting the waste (including packaging, marking, and labeling
practices) would ensure close stewardship of the waste.'' EPA believes
that this criterion, the other criteria included under Sec. 273.81(a)-
(h), and the petition and rulemaking procedures for adding new wastes
to the universal waste system will ensure that any wastes added in the
future will be managed in an environmentally protective manner.
One commenter stated that it is not clear that SQGs and LQGs should
use the same procedures for determining generator status as that used
by CESQGs since the regulatory language explaining the calculation is
located in Sec. 261.5, which applies to CESQGs. Although the language
in Sec. 261.5(c) makes it clear that the counting procedures apply to
all generators (``the quantity determination of this part and parts 262
through 266, 268, and 270''), the Agency agrees that it might be easier
for SQGs and LQGs to find the counting procedures if they were
referenced in part 262. Thus, this rule revises Sec. 262.10 by adding a
new paragraph (b) to read ``40 CFR 261.5 (c) and (d) must be used to
determine the applicability of provisions of this part that are
dependent on calculations of the quantity of hazardous waste generated
per month.''
Finally, as proposed, the final rule adds part 273 to the list of
parts in Sec. 262.11(d) where exclusions or restrictions for hazardous
waste management are found. In addition, to clarify that Sec. 261.5
provides additional exclusions as discussed above, the final rule also
adds part 261 to this list. Thus, Sec. 262.11(d) now reads ``If the
waste is determined to be hazardous, the generator must refer to parts
261, 264, 265, 266, 269, and 273 of this chapter for possible
exclusions or restrictions pertaining to management of the specific
waste.''
IV.C. Adding Additional Wastes in the Future
The proposed universal waste rule included a process for adding
additional waste types to the universal waste system in the future. The
process consisted of procedures for persons to petition the Agency
requesting the addition of new waste types, procedures for the Agency
to use in responding to petitions, and factors to be used to evaluate
whether a new waste type is appropriate to be added to the system. The
final rule includes a similar process, but based on the comments
addressing this issue some changes have been made to both the
procedures and the factors. In addition, the Agency has decided to
allow states the flexibility to add additional wastes to their state
list of universal wastes without requiring the waste to be added at the
federal level. The following two sections discuss changes made to the
petition procedures and the factors. [[Page 25511]]
IV.C.1. Procedures for Adding New Wastes
In the proposed universal waste rule, EPA proposed that any person
may petition to have additional hazardous wastes added to the part 273
universal waste regulations. Proposed regulations governing the
petition process were found in Secs. 260.20, 260.34, and 273.2.
Detailed procedures for submitting and reviewing petitions, however,
are set forth in existing 40 CFR 260.20 and were only referenced in the
proposed regulatory text. These procedures are the same procedures that
are used for submitting and reviewing all petitions for regulatory
amendments to the hazardous waste regulations.
The proposed rule indicated that in order for a petitioner to be
successful, it must be demonstrated that regulation under the universal
waste system is appropriate and that the part 273 requirements will
improve waste management practices for the waste. This demonstration
was to be made by submitting information to support the factors listed
in Sec. 273.2 (a) and (b).
In today's final rule, the procedures for submitting petitions
remain substantially unchanged, although several minor revisions have
been made. First, the requirements for petitions for inclusion of other
wastes under part 273 have been moved from Sec. 273.2 in the proposal
to subpart G of part 273 in today's final rule. The Agency believes
that putting the petition requirements in a separate subpart makes them
easier to locate, and thus makes the entire regulation easier to
follow. In addition, the proposed Sec. 260.34, entitled ``Petitions to
amend part 273 to include additional hazardous wastes'' has been
renumbered to be Sec. 260.23 in the final rule. This change has been
made to keep the sections of part 260 that discuss regulatory
amendments together.
Second, the petition procedures have been revised to allow
petitions to add categories of waste as well as individual wastes to
the universal waste system. This revision was made in response to
comments. It was suggested that the term ``waste'' may be more limiting
than the Agency intended. Use of the term ``waste category'' will allow
petitioners to submit a group of wastes such as ``hazardous waste
batteries'' instead of petitioning for each type of hazardous waste
battery individually (hazardous waste nickel-cadmium batteries,
hazardous waste lithium batteries, etc.). One commenter also suggested
that a category of wastes such as unused products in original packaging
might be appropriately managed under the universal waste system. The
Agency agrees with these comments and has incorporated this suggestion
into the final rule.
Third, to clarify the Agency's goals for the universal waste
program (which the petition factors are designed to address) and to
clarify the standard that will be used to make decisions on petitions,
the final rule has been revised to read: ``the decision will be based
on the weight of evidence showing that regulation under part 273 is
appropriate for the waste or category of waste, will improve management
practices for the waste or category of waste, and will improve
implementation of the hazardous waste program.'' This language merely
reflects more closely the goals discussed in the proposal for the
universal waste system than did the language in the proposed rule.
Fourth, many commenters expressed concern that petitions seeking a
regulatory amendment to add new hazardous wastes to part 273 must
contain quantitative information on each of the factors outlined in the
proposed rule under Sec. 273.2 (found in Sec. 273.81 in the final
rule). Commenters believed that the proposed rule was not clear on
whether or not information must be submitted to address every one of
the factors or only some of the factors. The Agency agrees that the
proposal was confusing on this point. As suggested by several
commenters, the Agency also agrees that it may not be possible or
appropriate to address each of the factors for any particular waste or
waste category. Thus, the petition process regulations (found in both
Secs. 273.80 and 260.23 of the final rule) have been revised to clarify
that: (1) A petition should address as many of the factors as are
appropriate for the waste or waste category addressed in the petition;
and (2) the decision to grant or deny a petition will be based on the
weight of evidence showing that regulation under part 273 is
appropriate for the waste or category of waste, will improve management
practices for the waste or category of waste, and will improve
implementation of the hazardous waste program.
Thus, the Agency clarifies in the final rule that an individual
waste would not be disqualified from inclusion under part 273 merely
because every factor was not addressed. Rather, the Agency will
consider the overall weight of the evidence demonstrating that the
goals of the universal waste system would be met by adding the
particular waste or waste category to the universal waste system. Thus,
a waste that several of the factors demonstrate very strongly would
accomplish the Agency's goals may be more likely to be added to the
universal waste system than a waste that all of the factors weakly
support.
In addition to concern about the number of factors that must be
addressed, commenters also expressed concern that the proposal was
vague with regard to the quality and quantity of data that must be
submitted regarding each of the factors. In response, the Agency
reiterates that decisions will be made based on the weight of the
evidence demonstrating, using the listed factors, that the Agency's
goals for the universal waste system will be met. Thus, the quantity of
data submitted is not as critical as how strongly the data supports
these goals. Of course, the more complete the data are, the more likely
it is that they will demonstrate that the Agency's goals would be met.
The Agency also notes that although quantitative data are desirable,
due to the nature of the wastes likely to be appropriate for the
universal waste system the Agency recognizes that direct quantitative
data about these wastes and their management may not be available.
Thus, quantitative data are not necessarily required for a successful
petition. Any information that can be extrapolated from available
related quantitative data is recommended, as would be any estimates
that can be developed based on available qualitative information. In
addition, as discussed in the proposal, the Agency will take into
consideration the quality and completeness of the data submitted by the
petitioner as a way to set priorities among the many various waste
streams that may be suggested for this program. If a petitioner's
request is complete and supporting data are adequate, EPA is likely to
evaluate the request and determine whether to propose a regulatory
amendment sooner than if a request has only minimal information.
Fifth, commenters expressed confusion concerning the process for
submitting a petition. In Sec. 273.80 of today's final rule, the Agency
more fully details the process for submitting a petition. The substance
of the requirements have not changed. Section 273.80(b) reiterates that
the petitioner must follow the requirements in Sec. 260.20(b) (Subpart
C--Rulemaking Petitions), which sets forth general requirements which
apply to all such rulemaking petitions. As proposed, the regulatory
language in Sec. 260.20(a) also has been amended to add reference to
the part 273 requirements. As discussed above, Sec. 273.80(b) also
specifies that the petition should address as many of the factors
listed in Sec. 273.81 as are appropriate for the waste or waste
category addressed in the petition. It should also be noted that the
procedures [[Page 25512]] for submitting petitions and for the Agency's
review of and response to petitions for regulatory amendments are
described in detail in Sec. 260.20.
In response to some confusion expressed by commenters,
Sec. 273.80(c) clarifies that the Administrator will evaluate petitions
using the factors listed in 40 CFR 273.81 and that the Administrator
will grant or deny a petition using these same factors. This
clarification reiterates the procedures proposed in Sec. 260.34 of the
proposal and included in Sec. 260.23 of the final rule. As discussed
above, Sec. 273.80(c) also explains that the Administrator's decision
will be based on the weight of evidence showing that regulation under
part 273 is appropriate for the waste or category of waste, will
improve management practices for the waste or category of waste, and
will improve implementation of the hazardous waste program.
Sixth, petitioners expressed concern about the length of time it
may take for the Agency to evaluate petitions. Many commenters
suggested that a time limit be set for such evaluations and that, in
addition, petitions be released for public comment. While the Agency
agrees that it is important for petitions to be considered in a timely
manner, the Agency has decided to continue to follow the general
procedures for responding to petitions for regulatory amendments set
forth in Sec. 260.20 of the hazardous waste regulations. As with all
petitions submitted under Sec. 260.20, a specific time limit is not
defined for the review process. Although the Agency expects to review
and respond to petitions within a reasonable timeframe, due to
competing priorities and other statutory and court ordered mandates the
Agency is not able to commit to a definitive review schedule.
Committing to such a schedule would also not be possible because the
Agency has no previous experience with this program and is not able to
predict the number and depth of petitions that may be submitted, and
thus the workload that will be required to respond to them.
With respect to public comment on the Agency's response to
petitions and on proposals to add new wastes to the universal wastes
system, Sec. 260.20 specifies that the Agency will make a tentative
decision to grant or deny a petition and publish that determination in
the Federal Register for written public comment. Any persons who have
additional information relevant to a particular petition would be able
to submit the information for the Agency's review. The Agency may also
hold an informal public hearing to consider oral comments on the
tentative decision.
For any waste or waste category that the Agency tentatively decides
to add to the universal waste system, the Agency will propose
regulatory requirements that would apply to management of the waste
under the universal waste system. Comments would be solicited on the
tentative decision to add the waste or waste category, and on the
appropriateness and practicality of the requirements. After reviewing
and responding to any comments submitted, the Agency would publish a
final rule amending the universal waste regulations to include the new
waste unless the tentative decision was reversed (in which case a
denial would be published). For any waste or waste category the Agency
tentatively decides not to add to the universal waste system, the
Agency would publish a tentative decision to deny the petition and
request comment. A public hearing may be held. After reviewing and
responding to comments, the Agency would publish a final denial, unless
the tentative decision was reversed (in which case a subsequent
proposal to add the new waste would be required).
Finally, as is discussed in detail in Section V of this preamble,
entitled ``State Authority,'' it should be noted that States may apply
for and be granted authorization to implement any part of today's
amendments to the hazardous waste regulations. This includes the
petition process for inclusion of additional wastes in the universal
waste program. Thus, in States authorized for the universal waste
regulations and the petition process, petitions may be submitted to the
State agency to regulate management of a waste or waste category under
the universal waste regulations within that State. The State agency
would then grant or deny petitions, using the criteria established for
evaluating wastestreams for inclusion in the program. If a petition is
granted, the waste would be managed under the streamlined universal
waste requirements within that state. However, the full hazardous waste
regulations would apply once the waste is transported out of the state
in which it is considered universal waste into other states that have
not included the waste in their universal waste programs (or states
that are not authorized for or do not have universal waste programs).
Thus, manifests and hazardous waste transporters would be required for
the shipment out of the state, and all subsequent management must be at
RCRA treatment, storage, and disposal facilities.
IV.C.2. Factors for Evaluating New Wastes
The proposed universal waste rule included two sets of factors to
be used to evaluate whether candidate wastes are appropriate to be
added to the part 273 universal waste regulatory system. The first set
of factors was designed to determine whether the waste presents a
problem to human health and the environment due to its presence in the
municipal waste stream or due to other, widespread management
practices. The second set of factors was designed to determine whether
the universal waste system would satisfactorily address the problem
presented by the hazardous waste.
In response to a number of issues raised by commenters concerning
the proposed factors, the Agency has substantially revised the factors
for the final rule. Major issues raised by commenters and the changes
made to the factors are discussed below.
First, in the final rule, the two sets of proposed factors have
been consolidated into one set of factors. This change was made in
response to several comments pointing out that having two separate sets
of factors was potentially confusing, particularly because the content
of the two sets seemed to overlap. The Agency agrees with these
commenters, and believes that having only one set of factors will
eliminate possible confusion, making it easier for the regulated
community and regulating agencies to implement the evaluation factors.
In addition, as discussed further below, the Agency has revised the
factors to focus more on a positive showing that regulation under the
universal waste system would improve waste management practices rather
than a negative showing that a waste is being managed improperly.
Combining the two sets of factors assists with this change of focus.
Second, the Agency has added text to the general introduction to
the final petition factors (40 CFR 273.80) and revised 40 CFR 260.34(b)
to clarify that not all of the factors must be either addressed or
demonstrated in a petition in order for an individual waste to be added
to part 273. The text clarifies that the Agency will consider the
overall weight of evidence presented in determining whether regulation
under the universal waste system is appropriate for the waste, and
whether the part 273 regulations will further the Agency's goals of
improving management practices for the waste and improving
implementation of the hazardous waste program. [[Page 25513]]
This change was made in response to several commenters who
indicated that there was some confusion regarding whether all factors
must be addressed for inclusion under part 273. In addition, the text
of proposed 40 CFR 260.34, which indicated that all factors must be
addressed, contradicted the preamble which suggested that not all
factors must be addressed. The Agency chose this approach because it
does not believe that each and every factor must be met in order for a
waste to be appropriate for the universal waste system, and for
regulation of the waste under part 273 to improve waste management and
implementation. Thus, the Agency will make decisions based on the
weight of evidence showing that regulation of a particular waste under
part 273 will further the Agency's goals for the program. It seems
likely, however, that the more factors a petition addresses the more
likely it is that there will be a substantial amount of supporting
evidence.
The Agency notes, however, that resources for making changes to the
hazardous waste regulations are limited, and that these resources must
be focused on areas where the most improvement can be made. In fact,
the Agency does not expect to have the resources to add great numbers
of wastes to the universal waste system. Therefore, the Agency will
prioritize addition of new wastes to the universal waste system based
on the strength of the case made that addition of a particular waste
will further the goals discussed above. For example, as suggested by
one commenter, the Agency would give priority to a waste that is
generated in higher volumes nationally, that a greater percentage of
the waste is hazardous, or that are generated by a larger number of
generators. Priority would be given because addition of such a waste to
the universal waste system is likely to improve overall waste
management and implementation more than addition of a waste that does
not meet these factors. In addition to adding to the strength of such a
case, the completeness and quality of supporting data submitted by a
petitioner may also affect the Agency's prioritization in that the
Agency may not itself be able to expend a great deal of resources
gathering additional data.
Third, the Agency notes that the final rule has been revised to
allow petitions to add, and the addition of, categories of waste to the
universal waste system as well as individual waste types (see 40 CFR
273.80, 273.81, 260.20, and 260.23). This change was made at the
suggestion of one commenter who pointed out that there may be broad
categories of waste that could fit well into the universal waste system
but that are identified by characteristics other than a single waste
classification. For example, wastes that remain in their original
product packaging (e.g., unused products) are easily identifiable, and
presumably the packaging provides protection since it was designed to
protect the product during storage and transportation. The Agency
agrees with the commenter that some categories of waste may be
appropriate for addition to the universal waste system and thus has
made this change. It should be noted that a petition to add any
category of waste would have to make the same demonstration for the
category that a petition would have to make for an individual waste
type.
The following sections discuss each of the factors included in the
final rule and any changes made from the proposal. The final section
discusses proposed factors that are not included in the final rule.
IV.C.2.a. Final Factor 40 CFR 273.81(a)
The Agency has revised proposed Sec. 273.2(a)(1), which addressed
the idea that a waste should either be a listed hazardous waste, or
that a proportion of the waste should exhibit one or more
characteristics of hazardous waste in order to be considered for
addition to the universal waste system. In the final rule, this factor,
which is now Sec. 273.81(a), has been revised by adding a parenthetical
statement discussing wastes that are hazardous due only to exhibiting
characteristics. Numerous commenters expressed concern that the Agency
would be adding wastes to the universal waste system that are not
already hazardous. The Agency is clarifying, and would like to
emphasize, that only wastes that are hazardous (i.e., are listed or
exhibit one or more characteristics of hazardous waste) are subject to
the universal waste regulations. This is because the universal waste
regulations are part of the RCRA hazardous waste regulations, under
which only wastes that are hazardous are regulated. This has been
further clarified by adding a definition of the term ``universal
waste'' (see 40 CFR 273.6 and 260.10), specifically identifying only
hazardous wastes as universal wastes (e.g., hazardous waste batteries).
The Agency understands that this may be confusing in cases where a
waste added to the universal waste system is identified using a generic
name (e.g., battery, thermostat), but only a portion of the waste
stream actually exhibits a characteristic and is thus hazardous. For
example, some battery types exhibit one or more characteristics and are
hazardous, while others may not. The Agency has used the generic term
hazardous waste battery in the universal waste regulation for several
reasons. One reason is that, when appropriate, the Agency wishes to
encourage persons to manage both regulated waste and unregulated waste
in the same collection systems, to eliminate duplication of collection
systems, and to eliminate excess effort identifying, documenting, and
keeping separate regulated waste and unregulated waste. As long as all
commingled waste is managed in a system that meets the requirements of
the universal waste regulations, such efforts are not necessary.
Another reason for using a generic term is to make the system
flexible, so that the regulation does not have to be revised every time
a waste (such as a particular battery type) either becomes hazardous or
is no longer hazardous due to changes in manufacturing practices or
technology. A final reason is that the Agency will likely not be able
to make across the board hazardous waste determinations for entire
categories of waste and must leave that responsibility to individual
waste generators. For example, as the chemistry in a type of battery
changes over time and varies from manufacturer to manufacturer, some
older batteries may exhibit characteristics while some newer batteries
do not. Given such a situation, it would not be possible for the Agency
to identify individually which batteries are hazardous and which are
not. Thus, the Agency stresses that although generic terms may be used
in some cases, the term will be modified with the phrase ``hazardous
waste'' and only those wastes that are hazardous (are listed or exhibit
characteristics) are subject to hazardous waste regulation, including
the universal waste rule.
IV.C.2.b. Final Factor 40 CFR 273.81(b)
To retain and expand on the concept included in proposed
Sec. 273.2(a)(2) and discussed in the proposal preamble that universal
wastes are typically generated by a wide variety of types of
generators, the Agency has added another factor to the final rule.
Final Sec. 273.81(b) indicates that wastes that are good candidates for
the universal waste system would not be exclusive to a specific
industry or group of industries, and would commonly be generated by a
wide variety of types of establishments (including, for example,
households, retail and commercial businesses, service businesses,
office complexes, conditionally exempt small quantity generators, small
businesses, government organizations, as well as [[Page 25514]] large
industrial facilities). This factor is also similar to one proposed by
a commenter who suggested that positive demonstrations, such as this
one, should be utilized in place of negative showings that wastes are a
``problem'' or pose risks because such negative factors will inhibit
persons from petitioning to add their wastes or products. This factor
will assist petitioners and the Agency in determining whether a waste
is appropriate to be added to the universal waste system.
This new factor also addresses an issue raised by several
commenters; whether industrial wastes could be added to the universal
waste system. As was discussed in the preamble to the proposal, the
Agency does not believe that wastes that are generated primarily in an
industrial setting are appropriate for the universal waste system. In
this context, the term industrial setting, however, is used to describe
locations where large production-type operations are conducted and
where large quantities of waste are generated. The Agency believes that
wastes that are primarily generated in such settings can be managed
under the current hazardous waste regulations because such facilities
are usually set up to comply with the applicable requirements. The new
factor makes it clear that wastes appropriate for addition to the
universal waste system should be generated by a wide variety of types
of establishments, which could include, but should not be exclusively,
large industrial operations. One of the problems the universal waste
rule is designed to address is that a relatively large portion of some
waste types are exempt from the hazardous waste regulations (i.e., are
generated by households and CESQGs) and are indistinguishable from the
regulated portion of the waste. This ``look alike'' problem makes
implementation of the program for these wastes extremely difficult. For
example, batteries are probably the classic example of a waste type
that is generated by all types of establishments, including large
industrial operations. The Agency points out that some wastes
commenters described as ``industrial'' might be appropriate for the
universal waste system as indicated by the new factor. For example, a
large percentage of antifreeze is generated by do-it-yourselfer
households, while other portions are generated by CESQGs, small
businesses, service businesses, government organizations, as well as
large industrial facilities. The Agency envisions that most wastes that
meet the new factor would be post-user wastes rather than residues from
production or other industrial operations.
IV.C.2.c. Final Factor 40 CFR 273.81(c)
The Agency has essentially retained the proposed factor,
Sec. 273.2(a)(3), which addressed the number of generators of a
candidate waste, as final factor 273.81(c). This factor will assist in
identifying wastes that are appropriate for addition to the universal
waste system. The text of the factor has been revised to indicate that
universal wastes should be generated by a large number of generators,
but that the number 1,000 is an example rather than a hard and fast
number. In fact, the Agency believes that in general universal wastes
should be generated by many more than 1,000 generators. The goal of the
universal waste program is to capture wastes that due to their
widespread nature are difficult to manage under the current hazardous
waste regulations. The Agency believes that a waste must be generated
by a large number of generators in order for regulation under the
universal waste system to contribute largely to improving management
practices and to improving implementation of the hazardous waste
program. Because of this, the Agency does not anticipate adding wastes
to the universal waste system that are generated by a small number of
generators (e.g., less than 1,000) in large volumes, as was suggested
by one commenter.
In fact, to further assist in identifying wastes that are
appropriate for the universal waste system, the Agency has added a
qualifier to the final factor clarifying that wastes that are
appropriate to be added to the universal waste system are frequently
generated in relatively small quantities by each generator. This
concept comes from proposed Sec. 273.2(a)(4)(iv), which was generally
interpreted by commenters to mean that only wastes generated by small
quantity hazardous waste generators would be considered for addition to
the universal waste system. The revised Sec. 273.81(c) should clarify
that the Agency would consider wastes that are generated in relatively
small quantities by each generator, regardless of the total quantity of
all hazardous wastes generated by the generator. For example, even a
very large industrial generator of large volumes of hazardous waste may
generate relatively small quantities of batteries. It should be
clarified that this factor is intended only as a gross indicator of
quantities generated. Specifically, the term ``relatively'' is used to
contrast small quantities of universal wastes with the quantities in
which large volume industrial hazardous wastes can sometimes be
generated, e.g., tens of thousands of pounds or gallons per month.
The Agency also confirms, as was suggested by one commenter, that
the factor concerning number of generators could be applied
prospectively in cases where newly developed products are likely to be
appropriate for the universal waste system. Thus, if a newly developed
product (or redesigned product) can be shown to be likely to be
produced and disposed of in such a way as to be appropriate for the
universal waste system, a petition could be submitted even before there
are actually a large number of generators of the waste.
IV.C.2.d. Final Factor 40 CFR 273.81(d)
The final rule retains as Sec. 273.81(d) the factor proposed as
Sec. 273.2(b)(2) which indicates that collection systems that ensure
close stewardship would make a waste a more likely candidate for
addition to the universal waste system. All of the comments addressing
this factor were positive. The Agency emphasizes, however, that this
factor is not intended to be biased toward collection systems run by
product manufacturers. Although manufacturers may have easy access to
information about products that may assist them in developing
collection programs, the goal of this factor is to facilitate addition
of wastes to the universal waste system that are most likely to be
collected, and to be collected in a manner that ensures good management
of the waste. Thus, any collection system that would ensure good
stewardship would be a favorable factor, regardless of what
organizations run the program. The Agency also notes that the economics
of collecting and recycling or disposing of a waste can provide some
insight into the stewardship that may be provided a waste. For example,
if a waste can be recycled at profit, it may be more likely that
collectors will maintain close stewardship of the waste.
IV.C.2.e. Final Factor 40 CFR 273.81(e)
Proposed factor 273.2(b)(1), which addressed the risk posed by the
waste during accumulation and transport, has been retained largely as
it was proposed. The final factor, Sec. 273.81(e), has been revised to
clarify that good candidate wastes for the universal waste system would
pose relatively low risks compared to other hazardous wastes during
accumulation and transport. This revision should clarify that, although
it is possible that a candidate universal waste may pose more risk than
other non-hazardous wastes during [[Page 25515]] accumulation and
transport (since they are identified as hazardous), wastes appropriate
for the universal waste system should pose relatively less risk than
other hazardous wastes since the universal waste accumulation and
transport requirements are relatively less stringent than the existing
hazardous waste regulations. Examples of reasons a waste might pose
relatively low risk during accumulation and transport include the
construction or physical form of the product or waste, packaging of the
waste, chemical characteristics of the waste, ease of containment, and
standard handling procedures for the waste.
The final factor (Sec. 273.81(e)) also addresses, as did the
proposed version, the concept that waste management requirements
appropriate for the universal waste regulations can be used to mitigate
risks posed by accumulation and transport of the waste. This part of
the factor has been clarified to indicate that petitioners should
suggest or reference waste management requirements specific for the
candidate waste that could be added to the universal waste regulations
(or that are independently applicable, e.g., DOT requirements) that
would protect human health and the environment from risks posed by the
waste during accumulation and transport. Such waste management
requirements may include volume reduction incident to collection
activities. The activities should be designed to ensure that these
management practices do not dilute the hazardous constituents or
release them to the environment. For example, if mercury-containing
lamps were considered for addition to the universal waste system,
crushing might be allowed as appropriate management if the crushing
process was performed in a controlled unit which did not allow any
releases of mercury or other hazardous constituents to the environment.
IV.C.2.f. Final Factor 40 CFR 273.81(f)
The Agency has revised and combined proposed Sec. 273.2(b)(3) and
part of proposed Sec. 273.2(a)(2), which addressed, respectively,
whether addition to the universal waste system would facilitate removal
of the waste from the municipal waste stream and the presence of the
waste in the municipal waste stream. The revised factor,
Sec. 273.80(f), addresses whether ``regulation of the waste under part
273 will increase the likelihood that the waste will be diverted from
non-hazardous waste management systems (e.g., the municipal waste
stream, non-hazardous commercial or industrial waste stream, municipal
sewer or stormwater systems) to recycling, treatment, or disposal in
compliance with Subtitle C of RCRA.''
The Agency combined the two proposed factors to reduce the
duplication that several commenters pointed out existed in the two sets
of factors. The revised factor encompasses the concepts included in
both the proposed factors, in that it would be necessary to show that
some portion of a waste is being managed in non-hazardous waste
management systems in order to argue that regulation under part 273
would increase the likelihood of diversion from these systems.
The revised final factor also addresses diversion of waste from
non-hazardous waste management systems generally, rather than
specifically from the municipal waste stream. This revision was made in
response to a number of commenters who pointed out that the goal of the
universal waste system should be to improve management of wastes that
are managed in any type of non-hazardous waste system, such as, for
example, disposal through municipal sewer systems. These commenters
suggested that the term implied that the only waste management system
the agency was interested in removing hazardous wastes from was the
municipal solid waste stream. The Agency agrees that the term
``municipal waste stream'' was too specific and could have been
interpreted to prevent addition of wastes to the universal waste system
that may be primarily managed in non-hazardous waste systems other than
the municipal solid waste system. This was not the Agency's intent.
Thus, the revised factor uses the term ``non-hazardous waste management
systems'' and provides some examples to clarify this point.
In addition, the revised factor focuses more on a positive showing
that regulation under the universal waste system will improve waste
management, rather than a negative showing that the waste is being
managed improperly. Several commenters argued that requiring such a
negative showing would discourage potential petitioners from seeking
the benefits of the universal waste system. For example, commenters
argued that manufacturers and generators would not want to develop and
submit data that demonstrate that their used products or wastes are
``problem'' wastes that are managed illegally and pose significant
risks to human health or the environment. Requiring submission of such
data would force petitioners to stigmatize their wastes, and could
potentially subject them to significant liabilities in the future.
It should also be noted that diversion of unregulated portions of a
waste, such as household waste and CESQG waste, from non-hazardous
waste management systems could be a reason to add a waste to the
universal waste system. For example, in some cases it may be likely
that facilitating the collection of commingled regulated and
unregulated waste would encourage development of collection systems
that could divert significant quantities of the waste, including
unregulated waste, from non-hazardous waste management systems. Such a
showing would not require petitioners to focus on management of
regulated waste in non-hazardous waste management systems.
IV.C.2.g. Final Factor 40 CFR 273.81(g)
Proposed factor 273.2(b)(5) addressing improved implementation of
the hazardous waste program has been essentially retained in the final
rule as Sec. 273.81(g). Commenters supported the factor as proposed.
The final factor has been revised only to clarify that improving
compliance with the hazardous waste program is an important facet of
improving implementation of the program. Thus, the final factor
specifies that if regulation of a waste under the universal waste
system is likely to improve both implementation and compliance, a waste
would be a stronger candidate for addition to the system.
IV.C.2.h. Final Factor 40 CFR 273.81(h)
Finally, one commenter requested additional guidance on what other
factors might be addressed under the proposed factors that discussed
``other appropriate information'' and ``such other factors as may be
appropriate'' (proposed Secs. 273.2(a)(6) and 273.2(b)(6)). These
factors have been combined in the final rule as Sec. 273.81(h), which
addresses ``such other factors as may be appropriate.'' In response,
there is no list of specific subjects that the Agency expects might be
addressed under this factor. The Agency retained this factor because it
believes that it is likely that for any particular waste or waste
category there may be unique factors which would demonstrate that
regulation under the universal waste system is: Appropriate for the
waste or category of waste; will improve management practices for the
waste or category of waste; and will improve implementation of the
hazardous waste program. These unique factors might result from
physical or chemical characteristics of the waste, characteristics of
waste generators (e.g., [[Page 25516]] organization or distribution of
generators), characteristics of collection programs, or other aspects
of the waste or its management. The Agency does not mean to imply that
petitioners must address other factors, but believes that it is
important to be able to take unique factors into account if such
factors exist.
IV.C.2.i. Proposed Factors Not Included in the Final Rule
First, the proposed factor 273.2(a)(4), which addressed typical
generation sites, is not included in the final rule. Commenters
overwhelmingly argued that the proposed factor would unintentionally
limit universal wastes because there are few wastes generated at such
locations, and would limit universal wastes to wastes generated by
small businesses, many of which would be CESQGs anyway. The Agency had
intended that this factor would assist in identifying wastes that are
generated in situations that make them more difficult to manage and
thus the universal waste system could improve management. However, the
Agency agrees that the proposed factor was overly restrictive, and that
many wastes appropriate for the universal waste system may not be
generated primarily at the types of locations described. The Agency
recognizes that although universal wastes may frequently be generated
by large organizations, due to the small quantity and type of waste
generated at any one location, regulation under the universal waste
system may be appropriate if the goals of the system would be advanced.
Thus, the Agency decided to delete this factor. However, as discussed
above, one concept from the proposed factor has been clarified and
added to another final factor. Specifically, the idea that universal
wastes are frequently generated in relatively small quantities by any
one generator has been added to final Sec. 273.81(c).
Second, the proposed factor 273.2(a)(5), which addressed the risk
posed by management of the waste in the municipal waste stream (e.g.,
municipal waste combustors or landfills), is also not included in the
final rule. The Agency agrees with numerous commenters who pointed out
that any waste that has been identified as hazardous waste (i.e., is
either listed or exhibits one or more characteristics), by definition
could pose a risk to human health or the environment under non-
hazardous waste management scenarios. The purpose of identifying wastes
as hazardous waste is to identify those that pose such risks. Since
only hazardous wastes are eligible for the universal waste system, the
Agency decided it is not necessary to require any additional
demonstration of risk for typical management scenarios. The Agency also
agrees with commenters who argued that requiring such a demonstration
of risk would inhibit petitioners because they would be unwilling to
stigmatize their products or wastes or increase future liabilities by
highlighting the risks posed by the products or wastes in non-hazardous
management systems.
Third, the proposed factor 273.2(b)(4), which addressed the
availability of recycling technologies, is also not included in the
final rule. Commenters were divided on this issue, but the Agency
agrees with several points made by commenters opposing the use of this
factor. Several commenters argued that recycling technology is quickly
developing and that the availability of volumes of input material is a
major factor in driving this development. Thus, using the prior
existence of recycling technology as a factor for adding wastes to the
universal waste system may inhibit collection of volumes of potentially
recyclable wastes and thus may actually inhibit development of
technologies for recycling. The Agency thus believes it is appropriate
to evaluate wastes for addition to the universal waste system based on
other factors, such as whether waste management practices for a waste
will be improved, regardless of whether the waste is recycled or
treated and disposed of under existing Subtitle C requirements.
Other commenters argued that the environmental benefits of removing
hazardous wastes from non-hazardous waste management systems should not
be lost only because a recycling technology has not yet been developed
for a particular waste type. Although the Agency encourages
environmentally protective recycling of hazardous wastes, this argument
is convincing. The Agency would prefer to get hazardous wastes out of
non-hazardous waste management systems as soon as possible, rather than
waiting for a recycling technology to develop, which in some cases may
be technologically or economically unlikely.
IV.D. Participants in the Universal Waste System
The following three sections describe the four regulatory
categories of participants in the final universal waste management
system: Small quantity handlers of universal waste, large quantity
handlers of universal waste, transporters, and destination facilities.
The differences between these categories and the proposed categories of
generators, consolidation points, transporters, and destination
facilities are also described.
IV.D.1. Small and Large Quantity Handlers of Universal Waste
In the proposed rule, regulated persons managing universal waste
were categorized into four categories: Generators, consolidation
points, transporters, and destination facilities. In the final rule
there are also four types of regulated persons. The transporter and
destination facility categories are retained essentially as they were
proposed. The persons who would have been included in the proposed
generator and consolidation point categories will now fit into either
the category of small quantity handlers of universal waste (SQHUWs) or
the category of large quantity handlers of universal waste (LQHUWs).
Under 40 CFR 273.6 of the final rule, a Universal Waste Handler is
defined to mean a generator of universal waste or the owner or operator
of a facility, including all contiguous property, that receives
universal waste from other universal waste handlers, accumulates
universal waste, and sends universal waste to another universal waste
handler, to a destination facility, or a foreign destination. The
Agency further clarifies the definition of Universal Waste Handler by
stating that a Universal Waste Handler does not mean: (1) A person who
treats (except under the provisions of Sec. 273.13 (a) or (c), or
273.33 (a) or (c)), disposes of, or recycles universal waste; or (2) a
person engaged in the off-site transportation of universal waste by
air, rail, highway, or water, including a universal waste transfer
facility (see preamble discussion under sections IV.E.8 of today's
rule).
In the final rule, the term Universal Waste Handler is subdivided
into two categories: Small Quantity Handler of Universal Waste (SQHUW)
and Large Quantity Handler of Universal Waste (LQHUW). Part 273.6
defines a Small Quantity Handler of Universal Waste to mean a universal
waste handler, as defined above, who does not accumulate 5,000
kilograms or more total of universal waste (batteries, pesticides, or
thermostats, calculated collectively) at any time. A Large Quantity
Handler of Universal Waste is defined in Sec. 273.6 to mean a universal
waste handler (as defined above) who accumulates 5,000 kilograms or
more total of waste (batteries, pesticides, or thermostats, calculated
collectively) at any time. The 5,000 kg accumulation cut-off level does
not refer to any one category of universal waste, calculated separately
but refers to the total quantity [[Page 25517]] of universal waste
accumulated on-site. Thus, a universal waste handler who accumulates
one or more categories of universal waste (batteries, pesticides, or
thermostats) must determine their status as a small or large quantity
handler of universal waste by calculating the total quantity of all
universal waste categories accumulated on-site.
The Agency decided to make this change for several reasons. First,
numerous commenters suggested that there should be a third category of
universal waste handler: front-line collectors of universal waste who
collect small quantities of universal waste, largely from consumers and
small businesses. These commenters pointed out that such collectors
would frequently be retail-type operations (e.g., a department or
specialty store that has a spent battery collection box) participating
in national or regional collection programs. Such front-line collectors
would likely accumulate only small quantities of universal waste
because they are not principally in the business of managing waste and
because they would ship wastes frequently using package shipping
services or similar systems set up by the collection programs.
These commenters argued that front-line collectors should be
subject to less stringent requirements than the proposed consolidation
point requirements for several reasons. One reason was that the
universal waste they would have on-site would pose limited risk due to
the small quantities involved. Another reason was that some of the
requirements would inhibit the participation of many retail-type
operations (such as the large retail chains) which would greatly limit
the success of universal waste collection programs in removing these
wastes from the solid waste stream.
The Agency agrees with the concept that the activities of persons
such as front-line collectors managing small quantities of universal
waste pose less risk and require less stringent standards than those
managing larger quantities of universal waste. Therefore, instead of
adding an additional category of front-line collectors with less
stringent standards, the Agency decided to extend this concept to all
persons both generating and collecting universal waste. Thus, under the
final rule, persons accumulating large quantities of universal waste
(5,000 kilograms or more accumulated on-site) are subject to more
stringent requirements than persons accumulating small quantities.
The second reason the Agency decided to restructure the categories
of persons managing universal wastes was in response to comments
received on the issue of recordkeeping for universal waste shipments.
The Agency had proposed that a manifest be required for shipments from
final consolidation points to destination facilities, based on the
concept that such shipments would be larger shipments and thus require
closer tracking. In addition to other issues, a number of commenters
pointed out that it is not necessarily true that shipments from
consolidation points to destination facilities will be larger
shipments. For example, shipments between consolidation points or
between generators and destination facilities may also be large
shipments.
The Agency agrees that it does not necessarily make sense from a
risk perspective to require recordkeeping for certain shipments based
solely on the type of universal waste management activity conducted by
the shipper and receiver (i.e., whether the shipper generates or
collects universal waste or whether the receiver collects or disposes
of universal waste). The Agency believes that the appropriate variable
for applying more stringent requirements is the quantity of waste
managed, not whether waste is generated or received from off-site.
Therefore, under the final rule the level of requirements applied to
any handler (i.e., small or large quantity handler requirements) is
based purely on how much universal waste is managed at the location.
Requirements for SQHUWs and LQHUWs, including notification requirements
are found in subparts B and C, respectively, of today's final rule.
These requirements are discussed in detail in this preamble under
section IV.E., Universal Waste Handler Requirements.
IV.D.2. Transporters
In the final rule, transporter is defined as ``a person engaged in
the off-site transportation of universal waste by air, rail, highway,
or water.'' This definition remains substantially unchanged from the
proposed definition, except that the term ``universal waste'' has
replaced the term ``hazardous waste.'' Persons meeting the definition
of transporter are subject to the universal waste transporter
requirements of subpart D of part 273. Using the term ``universal
waste'' merely clarifies that the part 273 transporter requirements
apply only to shipments of universal waste.
The universe of persons covered by the transporter definition is
the same as that covered by the proposed definition, and includes those
persons who transport wastes from one universal waste handler to
another, to a destination facility, or to a foreign destination. In
response to several commenters' questions about self-transportation of
universal waste by generators, the final rule also clarifies in 40 CFR
273.18(b) and 273.38(b) that any handler who self-transports universal
waste from his facility to another handler, a destination facility, or
a foreign destination, becomes a universal waste transporter for those
self-transportation activities and is subject to the requirements of
subpart D of this rule. The purpose of this language is simply to
clarify, for any handlers who might be unsure, that a handler
transporting his or her own universal waste off-site is regulated the
same as anyone else would be transporting that universal waste off-
site.
IV.D.3. Destination Facilities
In the proposed part 273 regulations, a destination facility was
defined as ``a hazardous waste treatment, storage, recycling, or
disposal facility which: (1) Has received a permit (or interim status)
in accordance with the requirements of parts 270 and 124 of this
chapter, (2) has received a permit (or interim status) from a state
authorized in accordance with part 271 of this chapter, or (3) is a
recycler regulated under 40 CFR 261.6 (c)(2). If a waste is destined
for a facility in an authorized state which has not yet obtained
authorization to regulate that particular waste as hazardous, then the
designated facility must be a facility allowed by the receiving state
to accept such waste.''
Many commenters argued that this definition should be revised to
include only facilities that are actually recycling or disposing of
universal wastes. For example, they argue that a facility that only
receives shipments of used hazardous waste batteries, consolidates
them, and then ships them to a recycling facility should not be defined
to be a ``destination facility'' just because it is already a RCRA
permitted or interim status facility due to other activities conducted
at the facility. Commenters pointed out that non-permitted facilities
conducting the exact same universal waste management activities would,
under the proposed rule, be defined as consolidation points and would
be subject to the less stringent consolidation point requirements.
Commenters argued that it does not make sense to regulate facilities
differently that are conducting the same universal waste management
activities.
Commenters further noted that defining a destination facility in
terms of whether or not it has a RCRA permit would require any facility
operating under a RCRA Part B permit to manage this waste under the
full Subtitle C [[Page 25518]] regulations instead of the less
stringent requirements contained in the proposed part 273 regulations,
whether or not they are actually treating or recycling the universal
waste. Commenters also pointed out that this definition would provide
an incentive for managing universal waste at unpermitted facilities
with less experience in hazardous waste management and would inhibit
management at permitted facilities that have hazardous waste management
experience as well as oversight from regulating agencies. Commenters
stated that although the proposed rule provided flexibility for most
managers of universal waste, the proposed definition of destination
facility would restrict the ability of permitted facilities to manage
universal wastes.
The Agency agrees with these commenters and did not intend for the
destination facility requirements under part 273 to apply to permitted
hazardous waste facilities serving solely as consolidation areas for a
particular category of universal waste. The Agency agrees that the more
stringent destination facility requirements should apply only to those
facilities that actually treat, recycle and/or dispose of a particular
category of universal waste. Permitted facilities that only consolidate
a particular category of universal waste, but do not treat, recycle,
and/or dispose of this particular category of waste, should be subject
to the small or large quantity handler of universal waste requirements
under part 273, as appropriate. Thus these facilities would be subject
to the same requirements as any other facility that conducts the same
universal waste management activities.
Thus, in today's Final Rule, the definition of destination facility
has been revised to clarify this point. In Sec. 273.6 of the final
rule, destination facility is defined as ``* * *a facility that treats,
disposes of, or recycles a particular category of universal waste
except those management activities described in paragraphs (a) and (c)
of Secs. 273.13 and 273.33. A facility at which a particular category
of universal waste is only accumulated, is not a destination facility
for purposes of managing that category of universal waste.'' By
defining a destination facility based on the universal waste management
activity conducted at the facility rather than by whether the facility
has a RCRA permit for other waste management activities, the final rule
indicates that only facilities that actually treat, dispose of, or
recycle a particular category of universal waste must comply with the
destination facility requirements at Sec. 273.60. The universal waste
handler definition (Sec. 273.6) has also been structured to conform to
this change and includes all facilities that accumulate a particular
category of universal waste but do not treat, dispose of, or recycle
them. Thus, such facilities must comply with only the appropriate
universal waste handler requirements for managing that particular
category of universal waste regardless of whether they have a permit
for management of other hazardous wastes or other categories of
universal waste which they do treat, recycle, and/or dispose.
Therefore, a facility which only accumulates a particular category of
universal waste is a universal waste handler for that particular
category of universal waste. However, if this facility also treats,
recycles, and/or disposes of another category of universal waste, that
facility is a destination facility for that particular category of
universal waste and must comply with the destination facility
requirements for that category of waste.
IV.E. Universal Waste Handler Requirements
As described in Section III, Summary of Final Universal
Regulations, subparts B and C of part 273 set forth the final
requirements for small and large quantity handlers of universal waste.
Each of these subparts consists of ten sections. All but three of the
sections include requirements that are the same for both small and
large quantity handlers of universal waste. However, the notification
and tracking sections for LQHUWs include regulatory requirements, while
these same sections for SQHUWs merely explain that small quantity
handlers are not subject to notification and tracking requirements.
Also, the employee training section for large quantity handlers of
universal waste includes more extensive requirements than does the
employee training section for small quantity handlers of universal
waste.
The requirements included in the final rule for each of the ten
universal waste handler sections are discussed in detail in the
following subsections of this preamble. Any changes made from the
proposed rule, comments received on the proposed requirements, and the
Agency's responses to these comments are also discussed.
IV.E.1. Prohibitions
In the proposed rule, the Agency proposed three prohibitions that
were applicable to generators, transporters, and consolidation points
managing universal waste. First, these handlers were prohibited from
diluting or disposing of universal waste, except that the existing
Sec. 262.70 provision allowing farmers to dispose of waste pesticides
from their own use on their own farms was retained. Second, handlers
were prohibited from treating waste, except by removing electrolytes
from batteries or responding to releases. Third, handlers were
prohibited from sending or taking universal waste to a place other than
a consolidation point, destination facility, or foreign destination. In
the final rule, the three prohibitions have been revised in response to
comment as discussed below, and are applied to small quantity handlers
of universal waste, large quantity handlers of universal waste, and
transporters of universal waste. The final prohibitions for small and
large quantity handlers of universal waste are found, respectively, in
Secs. 273.11 and 273.31 of this final rule. The handlers to which the
prohibitions apply under the final rule are the same as under the
proposal since the universe of small and large quantity handlers of
universal waste under the final rule is the same as the universe of
generators and consolidation points under the proposal. (See section
IV.D.1 of today's preamble for a full discussion of universal waste
handlers).
IV.E.1.a. Prohibition on Disposal
The first proposed prohibition is related to dilution and disposal
of universal waste and has essentially been retained in the final rule,
although dilution has been moved and included in the second prohibition
concerning treatment. Thus, the first prohibition now simply prohibits
handlers from disposing of universal waste. In the proposal, farmers
disposing of waste pesticides from their own use on their own farms, in
compliance with 40 CFR 262.70 were exempted from the part 273
management standards. In the final rule, management under 40 CFR 262.70
is still permissible, however it is not written as an exemption. Part
273.3(b)(1) states that farmers using this exemption are not covered
under part 273. As proposed, the 40 CFR 262.70 provision allowing
farmers to dispose of waste pesticides from their own use on their own
farms has been retained. Commenters generally did not disagree with the
prohibition on disposal. A number of commenters added that the proposed
prohibition on disposal is reasonable. Thus the Agency has retained the
prohibition essentially as proposed at Secs. 273.11 and 273.31 of
today's final rule.
IV.E.1.b. Prohibition on Treatment
The second proposed prohibition on treatment of universal waste has
been retained in the final rule, but several [[Page 25519]] revisions
have been made. As mentioned above, the dilution prohibition was moved
from the first prohibition and combined with the second treatment
prohibition. This change clearly separates disposal activities from
treatment activities, since dilution is a form of treatment. Further,
by combining the treatment and dilution prohibitions into the same
provision it is further clarified that exceptions identified to the
treatment prohibition also apply to the dilution prohibition. Also, the
proposed treatment prohibition included one exception allowing the
removal of electrolyte from batteries as long as certain requirements
were met. (See proposed Secs. 273.11(d)(2) and 273.11(e)(1)).
Commenters generally supported the exception on electrolyte removal.
Thus, the substance of this exception has been retained. In the final
rule, however, the electrolyte removal exception has been made part of
a more general exception for routine battery management activities,
which has been added for small and large quantity handlers of universal
waste under sections 273.13(a)(2)(vii) and 273.33(a)(2)(vii). This more
general exception allows handlers of universal waste batteries to
conduct routine battery management activities as long as the casing of
each individual battery is not breached and remains closed and intact.
Routine battery management activities include sorting batteries by
type, mixing battery types in one container, discharging batteries,
regenerating used batteries, disassembling battery packs, removing
batteries from discarded consumer products, or removing electrolyte
from batteries. The types of battery management activities that are
allowed under the exception and the requirements that must be met are
referenced in the prohibitions section and detailed in the waste
management section. (See, for example, 40 CFR 273.11(b), 273.13(a)(2)
and (3), and 273.33(a)(2) and (3) of the final rule.) The requirements
for battery management are discussed further in section IV.E.3.a of the
preamble, waste management.
Numerous commenters argued that the treatment prohibition could be
construed to preclude persons collecting batteries from performing
activities that are necessary and essential to battery collection and
management. Second, commenters believed that such management activities
do not pose an appreciable risk to the environment because the battery
casings remain intact and thus there is no increase risk of exposure or
release of battery contents to the environment. Finally, commenters
argued that these activities are necessary to facilitate proper
recycling. Therefore, the Agency has added text to the prohibitions
section under Sec. 273.11(b) which prohibits treatment of universal
waste batteries except in response to releases or management of
batteries as provided in Secs. 273.13(a)(2) and 273.33(a)(2). These
sections allow certain battery management activities provided that the
casing of each individual battery is not breached and the battery
remains closed and intact.
In response to comment, another exception to the treatment
prohibition has been added to the final rule that allows certain
thermostat management activities. This exception allows handlers to
remove mercury-containing ampules from thermostats. As with the battery
management exception, these activities must meet certain requirements
referenced in the prohibitions section and detailed in the waste
management section. (See, for example, 40 CFR 273.11(b), 273.13(c)(2)
and (3), and 273.33(c)(2) and (3). The requirements for ampule removal
are discussed further in section, IV.E.3.c, waste management, of
today's preamble.
This exception for ampule removal has been added to the final rule
in response to a comment. The commenter argued that all the mercury is
located within the ampule not the entire thermostat and, therefore,
only the mercury ampule, not the entire used mercury containing
thermostat, should be regulated. The commenter also argued that removal
of used mercury ampules from the thermostats will be done by trained
personnel in a setting where appropriate health and safety measures
have been instituted. The Agency agrees with the commenter and has
included a thermostat management exception for small and large quantity
handlers of universal waste, 40 CFR 273.13(c) and 40 CFR 273.33(c), who
conduct mercury ampule removal activities, provided that they meet the
regulatory provisions of part 273 for mercury ampule removal. For
further discussion regarding mercury ampule removal, please refer to
section IV.E.3.c, waste management.
Finally, some commenters were concerned that the proposed treatment
prohibition, for all universal waste types, unfairly limited universal
waste management activities of generators. These commenters stated that
under full Subtitle C regulation, generators are allowed to treat
hazardous waste in accumulation containers (Sec. 262.34(a) and (d)),
therefore, compliance with full Subtitle C requirements is less
restrictive for generators than the streamlined part 273 standards. The
Agency disagrees with the commenters and revises the prohibition
provisions of today's final rule with the modifications mentioned
above. The Agency points out that the existing accumulation provisions
are available only to regulated generators who have EPA identification
numbers and are complying with the full part 262 requirements including
90- or 180-day accumulation time limits (and permitting for exceeding
these limits), 40 CFR 262.34 accumulation unit standards, biennial
reports, and manifests. The Agency does not believe it is appropriate
to allow a similar provision for generators who are not required to
comply with the part 262 controls, but are instead following the
streamlined requirements of the universal waste regulations.
IV.E.1.c. Prohibition on Shipments of Universal Wastes
The third proposed prohibition on sending or taking universal waste
to a place other than specifically identified locations (e.g.,
generators could take their universal waste only to a consolidation
point, destination facility, or foreign destination) has been
substantially retained in the final rule, with minor modifications. In
the final rule, this prohibition has been moved to new sections
entitled off-site shipments. (See 40 CFR 273.18(a) and 273.38(a).) In
the final rule, this provision has been revised to fit the categories
of universal waste handlers used in the final rule. (See section IV.D.1
of today's preamble for a full discussion on universal waste handlers).
The prohibition has been substantially retained in the final rule, but
has been modified to allow shipment to any universal waste handler. The
off-site shipment prohibition is discussed in detail in section IV.E.8
of this preamble entitled off-site shipments.
IV.E.2. Notification
In the proposed rule, the Agency required generators and
consolidation points accumulating more than 20,000 kg of hazardous
waste batteries at any time to notify EPA of their waste management
activities. EPA requested comment on the proposed approach not to
require generators of universal waste pesticides to notify, and the
proposed notification quantity limits.
The notification requirement in the proposed rule consisted of a
letter to the EPA Regional Administrator identifying the generator's
facility. Specifically, generators and consolidation points
accumulating more than 20,000 kg of hazardous waste batteries at any
one [[Page 25520]] time were required to send a one-time written
notification to the EPA Regional Administrator describing their
hazardous waste battery accumulation activities. EPA would then assign
an EPA identification number. Information required in the written
notification included: (1) The generator's or consolidation point's
name and mailing address; (2) the name and business telephone number of
the person at the generator's or consolidation point's site who should
be contacted regarding the battery accumulation activity; (3) the
address or physical location of the battery accumulation activity; and
(4) a statement indicating that the generator or consolidation point
accumulates more than 20,000 kilograms of hazardous waste batteries.
Alternately, a generator or consolidation point could apply to the EPA
Regional Administrator using EPA Form 8700-12, ``Notification of
Regulated Waste Activity,'' and checking the appropriate box indicating
that they are a hazardous waste generator or consolidation point.
The Agency did not propose notification requirements for generators
and consolidation points handling only hazardous waste pesticides that
are suspended and/or canceled and recalled. As discussed in the
preamble to the proposed rule (58 FR 8121), the Agency considered the
requirements for identifying recall participants and recordkeeping,
authorized by FIFRA section 19(b), to provide sufficient information
concerning the identity and location of persons managing these
pesticides. In addition, FIFRA section 6(g) requires notice to EPA and
appropriate state and local officials of the location, quantities, and
possession of pesticides that are suspended or canceled under FIFRA
section 6.
Based on commenters' support for the Agency's decision not to
require the part 273 notification requirements for generators or
consolidation points accumulating recalled pesticides, the Agency has
decided to retain this exemption. Thus, under the final rule a person
who handles only (e.g., does not manage other universal waste) recalled
universal waste pesticides as described in 40 CFR 273.3(a)(1) and who
has sent notification to EPA as required under FIFRA section 19(b) and
6(g) is not required to notify under Sec. 273.32 of today's rule.
In the final rule, the Agency has also decided to retain the
notification provisions for hazardous waste batteries found in the
proposed rule, with some minor revisions. In the final rule, the
notification requirements have been modified by: (1) Expanding the
notification requirements to accommodate additions to the applicability
section of the rule; (2) incorporating the revisions made in the final
rule regarding the categorization of generators and consolidation
points; (3) reducing the 20,000 kilogram cut-off level for
notification; and (4) clarifying that cut-off for the notification
requirements apply on a ``site-by-site'' basis. These modifications are
discussed below.
First, the Agency has broadened the applicability of the final rule
to include, along with hazardous waste batteries, unused pesticide
products and used mercury-containing thermostats. Thus, in the final
rule, notification requirements previously required only for hazardous
waste batteries also apply to unused pesticide products and used
mercury-containing thermostats under Secs. 273.3 and 273.4
respectively. A full discussion regarding the expansion of the
universal waste rule to unused pesticides products and used mercury-
containing thermostats can be found in sections IV.E.3.b and IV.E.3.c,
respectively, of today's preamble.
Second, the final rule has been revised from the proposed rule such
that generators and consolidation points are now designated as
universal waste handlers. The persons who would have been included in
the proposed generator and consolidation point categories will now fit
into either the category of small quantity handlers of universal waste
(defined in Sec. 273.6 as a universal waste handler who accumulates
less than 5,000 kilograms total of universal waste (batteries,
pesticides, or thermostats, calculated collectively) at any time) or
the category of large quantity handlers of universal waste (defined as
in Sec. 273.6 as a universal waste handler who accumulates 5,000
kilograms or more total of universal waste (batteries, pesticides, or
thermostats, calculated collectively) at any time). Thus, under the
final rule, universal waste handlers accumulating large quantities of
universal waste are subject to more stringent requirements than persons
accumulating small quantities.
The Agency believes that the appropriate variable for applying more
stringent requirements is the quantity of waste managed, not whether
the waste is generated or collected. The Agency selected 5,000
kilograms of accumulated waste as the cutoff for this notification
requirement (i.e., as the cut-off between small and large quantity
handlers of universal waste) because the universal waste rule is
designed for wastes that present a relatively low risk during
collection (compared to other hazardous waste), and thus it is
appropriate to have a higher cut off limit for this notification
requirement than applies under the full hazardous waste regulations
(i.e., the conditionally exempt small quantity generator limit of 1,000
kg). Further information regarding small and large quantity handlers of
universal waste, can be found in section IV.D.1 of the preamble.
A third modification made to the notification requirements reduces
the notification cut-off level from 20,000 kilograms to 5,000 kilograms
total of universal waste. In the proposal, as stated above, generators
or consolidation points accumulating more than 20,000 kilograms of
universal waste batteries would have been required to notify EPA. Under
today's final rule, the applicability of part 273 has been expanded to
also include unused pesticide products and thermostats. Thus, under the
final rule, universal waste handlers accumulating 5,000 kilograms or
more total of universal waste (batteries, pesticides, or thermostats)
at any one time are required to notify EPA of this activity. Therefore,
a universal waste handler who accumulates 5,000 kilograms or more total
of universal waste at any one time is designated a large quantity
handler of universal waste and is subject to the notification
requirements of 40 CFR 273.32. However, a universal waste handler who
does not accumulate 5,000 kilograms total of universal waste (e.g.,
batteries, pesticides, or thermostats, calculated collectively, at any
one time) is designated a small quantity handler of universal waste and
is not subject to any notification requirements under part 273. The
Agency points out that since the universe for generators and
consolidation points and universal waste handlers are the same, the
only difference between the proposed notification requirements and the
notification requirements of this final rule is the cut-off level.
Thus, the notification provisions in today's rule have not changed
substantially. In addition, as explained previously, handlers of
recalled pesticides only need notify if they have not already notified
under FIFRA.
The Agency's decision to reduce the cut-off level was based on
recommendations by a number of commenters. Although some commenters
generally supported the 20,000 kilogram cut-off level, several
commenters recommended that EPA reduce the level because the 20,000
kilogram cut-off was excessive and that most generators or
consolidation points would not accumulate such large amounts of
universal waste. These commenters suggested reducing the
[[Page 25521]] notification quantity limit to 1,000 kilograms. Another
commenter recommended reducing the 20,000 kilogram notification limit
to 5,000 kilograms total because the reduction eliminates the small
one-time collections and average size generators while ensuring that
regulatory agencies are aware of the larger generators and more
permanent consolidation points. The Agency agrees with the commenter
and believes that such a quantity level is appropriate. EPA believes
that the amount of universal waste that a facility is accumulating is a
good indicator of the quantities of waste that the facility is
handling, is easily verified by regulating agencies through an
inspection of the facility, and is a good indicator of the risk posed
by management of universal waste at the facility.
The Agency also believes that the 5,000 kilogram quantity limit
will not obstruct people managing universal waste from participating in
the universal waste collection program because the recordkeeping
requirements for large quantity handlers of universal waste is basic
enough to be fulfilled by standard business records. Thus, handlers
will arrange universal waste management activities to achieve
efficiency rather than to avoid regulatory requirements. To achieve
efficiency, those facilities handling large quantities in short periods
of time will naturally accumulate these large quantities in order to
take advantage of the economies of scale available from making fewer
large shipments of universal waste, as opposed to numerous small
shipments. The Agency, however, would like to emphasize that all
handlers who anticipate accumulating 5,000 kilograms or more total of
universal hazardous waste at any one time must send written
notification to the Regional Administrator, and receive an EPA
Identification Number before exceeding the 5,000 kg quantity limit.
Finally, the Agency has clarified in the final rule that the
notification requirement is a one-time notification for facilities
accumulating 5,000 kilograms or more total of universal waste,
calculated collectively on-site. The Agency believes clarification is
necessary because a number of commenters raised the question of whether
or not notification is necessary only when a particular site exceeds
the cut-off limit or if notification is required if an entire company
accumulates greater than the cut-off limit at all of its sites
combined. Commenters specifically recommended that the cut-off figure
apply on a location, or ``site-by-site'' basis and not on a company-
wide basis. The Agency agrees with commenters' recommendation to
require notification on a ``site-by-site'' basis only. The Agency
believes the notification requirement in the proposed rule, and in
today's final rule, already addresses this concern. In addition, the
Agency clarifies that renotification is not required for large quantity
handlers who have previously notified. This means that if a large
quantity handler of universal waste has already notified EPA of his
hazardous waste management activities and has received an EPA
identification number, he is not required to re-notify under 40 CFR
273.32.
The final rule maintains the notification requirements of the
proposal, but has reduced the 20,000 kilogram cut-off level to 5,000
kilograms as discussed previously. The notification requirements of
Sec. 273.32 recognize that a person may own several non-contiguous
properties which accumulate universal waste independently of each
other. The notification requirement under Sec. 273.32 does not require
a company owning non-contiguous properties to add together the total
quantity of universal waste accumulated at each non-contiguous property
and subsequently notify EPA if the total quantity of universal waste
for all non-contiguous properties equals or exceeds 5,000 kilograms.
As written, the 5,000 kilogram cut-off level applies only to the
total amount of all categories of universal waste accumulated at one
site. Non-contiguous property is viewed as a separate site. Thus, a
person who owns or operates two or more universal waste management
facilities located on pieces of property which are non-contiguous
should not add together the quantities of all universal waste
accumulated at all of his facilities to determine if he exceeds the
5000 kilogram cut-off level. Owners or operators should consider each
facility separately and is responsible for calculating the quantity of
universal waste at each facility separately. If the 5,000 kg cut-off
level is exceeded for the universal waste accumulated at one facility,
he would be required to notify EPA of his universal waste activities.
If the quantity of universal waste at this facility is less than the
5,000 kg cut-off, notification would not be necessary. In other words,
the owner or operator of a facility, including all contiguous property,
that accumulates 5,000 kilograms or more total of universal waste, is
subject to the notification requirements of Sec. 273.32.
On the other hand, non-contiguous properties owned by the same
person but connected by a right-of-way which he controls and to which
the public does not have access, are considered on-site property. Thus,
a person who owns or operates two or more universal waste management
facilities located on pieces of property which are connected by a
right-of-way which he controls and to which the public does not have
access, should add together the quantities of all universal waste
accumulated at these facilities to determine if he exceeds the 5000
kilogram cut-off level. If the quantity of universal waste at his on-
site facilities is greater than the 5,000 kg cut-off, notification
would be necessary, if the owner has not already notified. The Agency
believes that this clarification will redress any further confusion
caused by the proposed notification requirements.
IV.E.3. Waste Management
The final waste management requirements for small and large
handlers of universal waste are found in Secs. 273.13 and 273.33 of
this final rule. The subsections of Secs. 273.13 and 273.33 address
waste management issues specific to each waste category. Subsection (a)
consists of requirements for universal waste battery management,
subsection (b) consists of requirements for universal waste pesticide
management, and subsection (c) consists of requirements for universal
waste thermostat management. The three waste category-specific
provisions are discussed in the following three subsections of this
preamble.
Each of the subsections set forth a general performance standard
requiring that handlers ``manage universal waste in a way that prevents
releases of any universal waste or component of a universal waste to
the environment.'' The universal waste proposal included a similar
provision, which was proposed for management of universal waste
batteries. The proposed provision, however, required that persons
manage batteries ``in a way that minimizes releases* * *'' Several
commenters argued that the requirement to minimize releases was too lax
and in essence allowed releases. They pointed out that such a standard
implied that releases could occur, as long as the handler attempted to
minimize them. These commenters suggested that the standard should be
changed to require management in such a way that prevents releases. The
Agency agrees with this point, and stresses that releases of universal
waste or universal waste components to the environment are not allowed
under the universal waste [[Page 25522]] regulations. For example,
management in a container that has signs of visible leakage would
unquestionably be out of compliance. The standard of performance for
universal waste management is to prevent any release and therefore,
leakages that are not visible are also not permissible. Thus, the
Agency has revised the text of the provision to clarify that universal
waste batteries, pesticides and thermostats are to be managed in such a
way as to prevent releases.
In the final rule, this performance standard is applied to all
universal waste rather than only to batteries. Thermostats are included
because the Agency had discussed applying the proposed requirements for
battery management to thermostats and commenters generally supported
this approach. Pesticides are included simply to make it clear that
releases are to be prevented, although this requirement is actually
redundant.
IV.E.3.a. Universal Waste Batteries
Subsection (a) of the small and large quantity handlers of
universal waste management sections sets forth requirements for the
management of universal waste batteries. Three provisions are included.
The first provision of Secs. 273.13(a)(1) and 273.33(a)(1) address
containment of leaking or damaged batteries. The Agency added this
provision to the final rule after reviewing comments on the issue of
waste management requirements for batteries. Commenters disagreed on
this subject. A number of commenters argued that the management
requirements proposed for batteries were sufficient to ensure that
universal waste battery management will be protective of human health
and the environment. They believed that the general performance
standard concerning releases and the prohibitions were sufficient and
urged the Agency not to impose additional waste management
requirements. In fact, several commenters argued that batteries should
be subject to regulations like those of subpart G of 40 CFR part 266,
which includes no requirements for handlers other than recyclers.
Several other commenters, however, argued that more stringent
controls should be imposed on battery waste management. They believed
that the proposed general performance standard and other requirements
were inadequate to protect against environmental damage. These
commenters recommended various additional requirements including
accumulation of batteries on surfaces that can contain releases,
detailed employee training, financial assurance, temperature and
ventilation controls, water run-on and run-off controls, fire/explosion
and security precautions.
In response to these comments the Agency has decided to add to the
final rule a containment provision requiring that handlers ``contain
any universal waste battery that shows evidence of leakage, spillage,
or damage that could cause leakage under reasonably foreseeable
conditions in a container. The container must be closed, structurally
sound, compatible with the contents of the battery, and must lack
evidence of leakage, spillage, or damage that could cause leakage under
reasonably foreseeable conditions.'' This means that the containers
must be in good condition (no severe rusting, apparent structural
defects, or deterioration). The Agency believes that this requirement
will ensure that any potential releases to the environment from
universal waste batteries are prevented. The Agency further believes
that this requirement is specific enough to provide clear direction to
handlers of universal waste batteries on how to prevent releases.
Because the requirement is not technically difficult to follow, the
Agency is confident that universal waste handlers will be able to
comply. Although the Agency has added this new containment requirement
for batteries, the Agency is sensitive to concerns that overly
burdensome requirements will discourage participation in the universal
waste system, resulting in decreased quantities of these wastes being
collected for proper management. The Agency is confident that this
requirement is rigorous enough to protect human health and the
environment from the risks of battery management, but at the same time
will not present a barrier to participation in universal waste
collection programs.
The second provision of the waste management section for batteries,
Secs. 273.13(a)(2) and 273.33(a)(2), specifies conditions that must be
met by handlers conducting these activities. This provision also
identifies certain battery management activities that may be conducted
by handlers. This provision was added in response to numerous
commenters who all argued that certain activities that might be
considered treatment, and thus banned under the prohibition on
treatment of universal waste, are necessary to quality battery
management and pose no increased health or environmental risks.
Commenters mentioned the following activities: sorting batteries by
type; mixing battery types in one container; discharging batteries so
as to remove the electric charge; disassembling batteries or battery
packs into individual batteries or cells; and removing batteries from
discarded consumer products. According to these commenters, these
activities are essential to effective battery management. For example,
battery types are mixed in containers at collection points to avoid the
complexity of requiring those dropping off batteries to identify and
manage battery types separately. Collected mixed batteries must be
sorted by type in order to send them to the appropriate destination
facilities for proper recycling or treatment. Batteries must be removed
from discarded consumer products to make shipping and handling
economical. Discharging batteries may be conducted as a safety
precaution prior to accumulation or shipping.
The Agency agrees with commenters that these activities are an
important part of battery management and should be allowed under the
universal waste regulations. The Agency also agrees with commenters'
point that as long as the metal or plastic casing of each individual
battery or cell is not breached and remains closed and intact, the risk
of releases to the environment is not increased by these activities.
Thus, the Agency has added this new provision to the final rule
specifying that handlers may conduct the battery management activities
listed above as long as the battery or cell casings are not breached
and remain closed and intact.
The Agency notes that it has removed the 40 CFR 261.6 exemption for
used batteries that are to be regenerated and has added a provision
specifying that facilities regenerating used batteries are subject to
the part 273 standards for small or large quantity handlers of
universal waste. The Agency believes that regeneration of batteries is
a management activity that should also be exempted from the treatment
prohibitions. Thus, regeneration of used batteries has also been
included as part of the management activities mentioned above for
universal waste batteries (For further discussion regarding regenerated
batteries, please refer to section IV.J of the preamble). To resolve
commenters' concerns that these activities might be banned under the
general prohibition on treatment, in the final rule the Agency has also
revised the treatment prohibition to specifically exempt these
activities. Removing electrolyte, which was allowed under the proposed
rule and not opposed by commenters, has also been included in this
provision as an allowable activity.
The third provision of the waste management section for batteries
[[Page 25523]] 273.13(a)(3) and 273.33(a)(3), has been expanded from a
proposed provision discussing how electrolyte removed from batteries is
regulated (see, for example, proposed 40 CFR 273.11(e)(1)). The final
provision has been expanded to address not only electrolyte, but any
non-universal waste generated in the process of managing universal
wastes. These non-universal wastes could include any solid waste
generated in the battery management activities discussed above (e.g.,
plastic or metal battery pack construction materials or consumer
electronics hulks from which batteries have been removed). The
provision has been expanded to address these other wastes because
commenters raised the issue of battery management activities and the
same issues arise with wastes generated in these activities as with
electrolyte.
In addition, this provision has been expanded to address the
question raised by commenters of how electrolyte (and other generated
non-universal wastes) would fit into the hazardous waste regulations.
Under the final rule the handler who generates hazardous waste
electrolyte or other hazardous wastes are subject to the generator
requirements of 40 CFR part 262. Compliance with the generator
regulations of part 262 is appropriate because a generator begins the
hazardous waste management procedures (e.g., manifesting, shipping to
regulated facilities), which is what would be required for a non-
universal waste generated as a result of universal waste management
which must be moved into the full hazardous waste regulatory system.
Finally, this provision has also been expanded to clarify that if
electrolyte or any other generated non-universal wastes are not
hazardous wastes, they may be managed under applicable solid waste
management regulations. This is always true under the hazardous waste
regulations, but the Agency believes that restating this will make the
regulations more clear and user friendly for battery handlers.
IV.E.3.b. Universal Waste Pesticides
In the proposed universal waste rule, the Agency proposed that
suspended and/or canceled and recalled pesticides managed under the
universal waste regulations must be packaged to meet one of the
following four conditions: (1) The pesticide must be packaged in the
original packaging (container or tank) used to contain the pesticide
when it was being distributed or sold, which must be kept closed and
not leaking; (2) the pesticide must be packaged in the original
packaging and overpacked in a larger container that is closed and non-
leaking; (3) the pesticides must be contained in a tank that meets the
hazardous waste tank requirements; or (4) the pesticides must be
contained in a non-leaking transport vehicle or vessel. The Agency also
requested comment on whether the regulations should allow handlers of
recalled pesticides to repackage universal waste pesticides from
original packaging into other containers (i.e., physically transfer the
pesticide from its original packaging into a different container).
In the final rule, the first, second, and fourth options for
packaging have been substantially revised in response to comments. The
third option, on which very little comment was received, has been
retained as proposed. In addition, because the universe of pesticides
included in the final rule has been expanded (see discussion in section
IV.B.2.c. of this preamble), the packaging requirements in the final
rule are applicable to unused pesticide products collected in
collection programs as well as to suspended and/or canceled and
recalled pesticides.
The first and second proposed packaging options (which were the
only available options if a pesticide was to be managed in containers
or portable tanks rather than tanks or transport vehicles), essentially
required that the pesticide remain in the original packaging used when
it was distributed or sold. If the original packaging was leaking, the
second option required that it be overpacked in a larger, non-leaking
container. However, both options required that original packaging be
used. (See proposed 40 CFR 273.22(a)(1)(i) and 273.23(a)(1)(i).)
In the final rule, these packaging options have been substantially
revised to allow management of pesticides in containers other than
original packaging, as long as certain conditions are met.
Specifically, the first revised option allows pesticides to be managed
in ``a container that remains closed, is structurally sound, compatible
with the pesticide, and that lacks evidence of leakage, spillage, or
damage that could cause leakage under reasonably foreseeable
conditions.'' See 40 CFR 273.13(b)(1) and 273.33(b)(1) of the final
rule. The second revised option requires that a pesticide managed in a
container not meeting the conditions of the first option be overpacked
in a container that does meet the requirements of the first option. See
40 CFR 273.13(b)(2) and 273.33(b)(2) of the final rule.
The result of these revisions is that any universal waste pesticide
that is managed in a container must be managed in a container that is
in good condition (no severe rusting, apparent structural defects, or
deterioration). The good-condition container may be the primary
container (under the first option), or if the primary container is not
acceptable, a good-condition container may be used to overpack the
primary container (i.e., the primary container is placed into a good-
condition overpack container). It should be noted that although
original packaging is no longer required under these revisions,
original packaging may be used to contain pesticides as long as the
original packaging meets the conditions set forth in the options.
The Agency's decision to allow the use of packaging other than
original packaging was based on a couple of factors. First, a number of
commenters pointed out that a significant portion of waste pesticides
found on farms (both recalled pesticides, and unused pesticide products
collected in ``clean sweep'' programs) are in containers other than the
original container. In most cases, the original containers for these
pesticides are no longer available. Commenters argued that limiting the
universal waste rule to those pesticides for which the original
container is available would severely limit the quantities of waste
that could be managed under the universal waste system. In turn, this
would decrease the amounts of pesticides collected from farmers and
others for proper management. Commenters argued that the risks of
releases of these pesticides are likely to be less under the universal
waste regulations than under conditions of long term accumulation on
farms, particularly if the regulations ensure management in good-
condition, non-leaking containers.
The Agency notes that its intent in requiring original packaging
was to ensure that pesticides were managed in appropriate containers.
The Agency believed that original packaging was most likely to remain
in good condition since it was designed to store the pesticide during
its product life. However, based on the comments received, the Agency
now believes that requiring original packaging would unnecessarily
limit the pesticides that can be managed under the universal waste
system, and, at the same time, would not necessarily ensure adequate
containment. Thus, the Agency has developed revised packaging
requirements for containers that ensure that pesticides are managed in
containers that are protective of human health and the environment, and
that pesticides are not prohibited from management under the universal
waste system merely because the original packaging is no longer
available. The [[Page 25524]] Agency agrees with commenters' points and
believes that the revised packaging requirements for containers are
environmentally protective, but flexible enough to accommodate
pesticides collected under recalls as well as waste pesticide
collection programs (``clean sweeps'').
Second, a number of other commenters argued that the proposed
requirements to keep pesticides in original containers that are closed
and non-leaking were not sufficiently protective. These commenters
pointed out that cancellation may sometimes follow suspension by a
considerable period of time, and that pesticide containers may not be
properly maintained over this time period. Similarly, pesticides
collected in ``clean sweep'' programs have frequently been accumulated
for long periods of time. As a result, such containers may deteriorate
or be damaged. These commenters believed that the proposed packaging
provisions requiring that pesticides be kept in closed and non-leaking
containers could be construed to allow the use of original containers
that are damaged, but not yet actually leaking. Although the Agency did
not intend to allow the use of damaged containers, the Agency agrees
that the proposed language could have been interpreted to allow such
containers. To resolve this problem, under the final rule universal
waste pesticides must be contained in containers (or overpack
containers) that remain closed, are structurally sound, compatible with
the pesticides, and that lack evidence of leakage, spillage, or damage
that could cause leakage under reasonably foreseeable conditions. The
Agency believes that this requirement provides sufficient insurance
that pesticide containers will be protective of human health and the
environment.
The same conditions have also been added to the fourth packaging
option, which as proposed, allowed the used of ``non-leaking transport
vehicles or vessels.'' This provision has been revised in the same way
as the first two options since the ``non-leaking'' condition raises the
same issue as the proposed non-leaking container requirements. To
resolve the concern that damaged, but not yet leaking transport
vehicles or vessels could be used to contain pesticides, the final rule
requires that handlers use a transport vehicle or vessel that is
``closed, structurally sound, compatible with the pesticide, and that
lacks evidence of leakage, spillage, or damage that could cause leakage
under reasonably foreseeable conditions.''
The final rule has also been revised to clarify when overpacking is
required for pesticide containers in response to confusion cited by
some commenters regarding these requirements in the proposal. The
Agency believes that the wording of the second revised packaging option
makes it clear that overpacking is required when the primary container
does not meet the good-condition requirements found in the first
revised packaging condition. The Agency believes that this regulatory
structure will be more clear to the reader than the proposed regulatory
structure.
Several commenters addressed the question of whether the universal
waste regulations should allow universal waste handlers to repackage
pesticides (i.e., to transfer pesticides from one container to
another). Most of these commenters supported allowing repackaging. The
Agency generally prefers that handlers overpack leaking or damaged
containers rather than transfer the pesticide to another container
because the risk of spillage is likely to be less when overpacking.
However, the Agency recognizes that in some cases, for example if no
overpack materials are available, it may be preferable to repackage
pesticides than to wait until overpacking is possible. In addition,
there are other controls that will ensure that any repackaging of
universal waste pesticides is conducted in an environmentally
protective manner. For recalled pesticides, the recall procedures under
FIFRA section 19b addresses repackaging. For example, under proposed
regulations at 40 CFR part 165 (58 FR 26857; May 5, 1993) pesticide
recallers would submit a recall plan for approval by the Agency. Part
of the plan would include a description of the responsibilities of the
recaller and pesticide holders with respect to interim storage,
preparation for transportation, and transportation of the pesticide.
For unused pesticide products managed in collection programs, the
pesticide management procedures required by the collection program will
generally address repackaging and, if allowed, will specify precautions
to be taken during repackaging. Because repackaging may be an important
method of cost control for collection programs (e.g., consolidation of
small containers of the same pesticide), the Agency does not wish to
interfere with these practices. The Agency believes that waste
pesticide collection programs will develop responsible procedures and
would like to leave the decision of whether to allow repackaging, and
what requirements to impose, to the collection programs or States.
Based on these factors, the Agency has decided not to prohibit
repackaging in the final universal waste regulations. The Agency points
out, of course, that any spillage of universal waste pesticide is
required to be cleaned up immediately and managed appropriately under
the universal waste release response provisions. The Agency also notes
that any spillage that is not cleaned up would be considered illegal
disposal under the hazardous waste regulations.
IV.E.3.c. Universal Waste Thermostats
In the proposed rule, the Agency requested comment on whether the
waste management requirements proposed for universal waste batteries
would be appropriate for managing mercury-containing thermostats. The
Agency also requested comment on any additional requirements necessary
to ensure that thermostats are collected in a manner that is protective
of human health and the environment.
With the exception of one issue concerning mercury-containing
ampule removal, commenters overwhelmingly supported applying the
requirements proposed for universal waste batteries to used mercury-
containing thermostats. These commenters agreed that the proposed part
273 requirements would facilitate collection and recycling of the
mercury contained in the thermostats. Thus, in the final rule, persons
managing universal waste thermostats are subject to the same basic
requirements as persons managing other universal wastes: Requirements
for small and large quantity handlers, transporters, and destination
facilities. Specific waste management requirements have been added to
the small and large quantity handler sections to address one
commenter's concerns about ampule removal.
A manufacturer of thermostats who is developing a ``take back''
program for mercury-containing thermostats did suggest that some
modifications to the waste management requirements proposed for
batteries were necessary to reflect differences between the proposed
waste mercury thermostat recycling program and procedures envisioned
for battery recycling programs. The commenter expressed concerns as to
whether the waste management provisions proposed for universal waste
batteries would be sufficiently protective of human health and the
environment if applied to the management of mercury-containing
thermostats. Commenters recommended that for safety reasons, such
removal [[Page 25525]] should only be performed by trained personnel in
a setting where appropriate health and safety measures have been
instituted.
Paragraph (c) of Secs. 273.13 and 273.33 include requirements
applicable to handlers of used mercury-containing thermostats.
Subsection (c)(1) requires a universal waste handler to contain any
universal waste thermostat that is leaking in a non-leaking container.
Subsection (c)(2) sets forth requirements for universal waste handlers
who remove mercury-containing ampules from thermostats. These
requirements, based on controls suggested by the commenter, are
designed to ensure that ampule removal is conducted in a safe and
environmentally protective manner.
First, the handler must remove the ampules in a manner designed to
prevent breakage of the ampules. Second, he must remove the ampules
only over or in a containment device (e.g., tray or pan sufficient to
contain any mercury released from an ampule in case of breakage).
Third, he must ensure that a mercury clean-up system is readily
available to immediately transfer any mercury resulting from spills or
leaks from broken ampules, from the containment device to a container
that meets the requirements of 40 CFR 262.34. Fourth, he must
immediately transfer any mercury resulting from spills or leaks from
broken ampules from the containment device to a container that meets
the requirements of 40 CFR 262.34. Fifth, he must ensure that the area
in which ampules are removed is well ventilated and monitored to ensure
compliance with applicable OSHA exposure levels for mercury. Sixth, he
must ensure that employees removing ampules are thoroughly familiar
with proper waste mercury handling and emergency procedures, including
transfer of mercury from containment devices to appropriate containers.
Seventh, he must accumulate removed ampules in closed, non-leaking
containers that are in good condition (no severe rusting, apparent
structural defects, or deterioration); and finally, eighth, he must
pack removed ampules in the container with packing materials adequate
to prevent breakage during accumulation, handling, and transportation.
Handlers not complying with these requirements for ampule removal are
not managing universal waste, and are not subject to part 273. They are
subject to the full hazardous waste requirement of parts 262 through
270. The Agency believes that these procedures ensure that the handler
is removing the mercury ampule from the thermostat casing in a manner
designed to prevent breakage of the ampules and to ensure proper
containment of any spilled or leaked mercury.
The Agency recognizes that in some cases, spills or leaks resulting
from ampule removal may occur. Thus, the Agency has added paragraph
(c)(3) in Secs. 273.13 and 273.33 to address concerns related to
mercury residuals generated as a result of removal of mercury ampules
from the thermostats. If spillage or leakage of mercury from a broken
ampule or during ampule removal occurs, the handler must contain any
universal waste thermostat that is leaking in a non-leaking container.
A universal waste handler must determine whether such spillage or
leakage exhibits a characteristic of hazardous waste. If the waste does
exhibit a characteristic of hazardous waste, the handler is considered
the generator of the mercury resulting from spills or leaks and is
subject to all applicable requirements of 40 CFR parts 260 through 272,
including 40 CFR part 262.
Similar to the battery waste management requirements, the handler
must also determine whether or not any other solid waste (e.g.,
thermostat casing) generated during management activities exhibits a
characteristic of hazardous waste. If the generated waste does exhibit
a characteristic of hazardous waste, it must be managed under the
hazardous waste management requirements mentioned above. If, however,
the generated waste does not exhibit a characteristic of hazardous
waste, it is not subject to the hazardous waste requirements, nor is it
subject to the requirements of part 273. This waste is, however,
required to be handled in compliance with applicable solid waste
regulations and the handler may manage the waste in any way that is in
compliance with applicable federal, state or local solid waste
regulations. The Agency believes the specific requirements for ampule
removal address the commenter's concerns regarding the improper removal
of used mercury-containing ampules and ensure that such activities are
safe and environmentally protective.
The Agency clarifies that if a handler determines that some waste
he or she is managing as universal waste is actually not hazardous
waste (and thus by definition is not universal waste), and it is
therefore not required to be managed under the hazardous waste
regulations, including the universal waste regulations. For example, a
handler who receives shipments of mixed battery types may sort the
batteries to separate the various battery chemistries. If one of the
sorted battery types does not exhibit any characteristics of hazardous
waste, it is not a hazardous waste and the handler may wish to manage
it outside of the hazardous waste regulations.
IV.E.4. Labeling/Marking
In response to suggestions from commenters that the Agency include
marking and labeling requirements in the part 273 regulations, the
Agency has decided to implement marking and labeling requirements that
were not proposed. Although commenters agreed that some form of
labeling and marking requirement be required, commenters'
recommendations on methods used to identify the materials contained
within the tanks or containers differed. For example, one commenter
suggested that EPA should require that all tanks or containers be
marked with the words ``hazardous waste'', ``hazardous material'' or
``waste destined for recycling''. Another recommended that if the
intent of the universal waste rule is to divert wastes into the recycle
stream, the waste should not be labelled ``universal hazardous waste'',
but simply ``Universal Waste.''
Under the final rule, labeling and marking requirements for
universal waste have been included to identify the types of universal
waste being managed. The Agency has added labeling and marking
requirements for universal waste batteries, universal waste mercury-
containing thermostats, and universal waste pesticides. The labeling
requirements vary depending on the type of waste. These requirements
are found in Secs. 273.14 and 273.34 of the final rule. Paragraph (a)
of these sections discusses the marking and labeling requirements for
universal waste batteries. Under the final rule, a universal handler
managing batteries at his facility is required to label each individual
universal waste item or container holding the universal waste with the
words ``Universal Waste--Battery(ies)'', or ``Waste Battery(ies)'', or
``Used Battery(ies).'' Similarly, a universal waste handler managing
used mercury-containing thermostats under part 273 must label each
universal waste item or container holding these universal wastes, with
the words ``Universal Waste--Mercury Thermostat(s)'' or ``Waste Mercury
Thermostat(s)'' or ``Used Mercury Thermostat(s).'' These requirements
are in paragraph (d) of Secs. 273.14 and 273.34 of the final rule.
Labeling and marking requirements similar to those described above
for universal waste batteries and thermostats apply also to universal
waste pesticides. Thus, a person managing universal pesticides must
[[Page 25526]] mark or label his containers with the words ``Universal
Waste--Pesticide(s)'' or ``Waste--Pesticide(s).'' Refer to
Sec. 273.14(c)(2) or Sec. 273.34(c)(2). However, because there are many
types of pesticides posing different management issues, the Agency has
decided to require more specific labeling for pesticides in addition to
the more general label discussed above. Due to differences in
management practices between universal waste pesticides that are a part
of a recall and pesticides that are a part of a state approved
collection program, the requirements for each type of pesticide are
different. Universal waste handlers managing recalled pesticides are
required to mark or label tanks or containers holding the recalled
pesticide with the original FIFRA label that would be required under
FIFRA if the pesticide were a product (refer to Sec. 273.14(b)(1)).
While pesticides in a recall may be located at the individual user
level, a larger volume is likely to be recalled from the dealer/
retailer level. Pesticides shipped to dealers by producers are often
sent in multiple container package units. For example, individual
containers may be shipped grouped together in cartons and/or palleted
and shrink-wrapped in plastic. This extra packaging (e.g., shrink-wrap,
carton) typically is removed only at the time of sale. In the recall
process, these multiple container package units would normally be
shipped back intact. To require pesticide containers to be individually
labeled as waste pesticides would require the dealer to break open such
multiple package units to access the individual containers. EPA
believes it is unnecessary to require that such multiple container
package units be individually labeled merely for the purpose of being
shipped to another universal waste handler as part of a recall.
Accordingly, 40 CFR 273.14(b) permits the required label or marking to
be placed on the outer packaging of multiple container packaged units.
On the other hand, unused pesticides that are universal wastes are
typically products whose registration has been cancelled, which are no
longer marketed, or no longer used by the farmer. Existing stocks often
remain at the user level for extended times, sometimes years, because
there is no formal recall in these circumstances. State collection
programs are intended to collect and properly dispose of such wastes
from the user level and rarely collect from the retail level as with a
recall. Thus, the initial universal waste handler is a user typically
having only single containers of pesticides whose labels may not be
available or may have deteriorated due to adverse conditions or over
time.
Universal waste handlers managing unused pesticide products that
are collected and managed as part of a waste pesticide collection
program have several options for labeling tanks and containers. The
first option is to label the pesticide tank or container with a label
that was on the accompanied product as sold or distributed, if still
legible. Refer to Secs. 273.14(c)(1)(i) or 273.34(c)(1)(i).
The Agency notes that this is the ideal labeling option for unused
pesticide products, but the Agency also recognizes that the FIFRA label
for the unused pesticide products may not be a realistic option because
such a label may not be available. As an alternative, the Agency has
developed additional labeling options under Secs. 273.14(c)(1)(ii) and
(iii) and 273.34(c)(1)(ii) and (iii).
The second option requires that handlers mark or label the
container or containing unit with a label required by the Department of
Transportation under 49 CFR part 172. If neither of these options are
possible, the final option is to use another label that is approved in
advance by the collection program. The Agency believes that these
labeling and marking requirements will provide sufficient information
to ensure that universal waste pesticides can be managed in a safe and
environmentally protective manner, yet provides sufficient flexibility
for universal handlers who are users or dealers, without requiring
undue cost or burden of labeling.
IV.E.5. Accumulation Time Requirements
The final accumulation time requirements for small and large
quantity handlers of universal waste are found in Secs. 273.15 and
273.35 of this final rule. In the proposed universal waste rule,
generators and consolidation points were prohibited from accumulating
universal waste for longer than one year from the date the universal
waste was generated, or received from another facility. Generators and
consolidation points were also required to document that universal
wastes were not accumulated for longer than this time. See proposed
Secs. 273.11(b) and 273.21(c). This accumulation time limitation was
designed to implement, for universal wastes, a statutory prohibition
that is part of the 1984 Hazardous and Solid Waste Amendments to RCRA
(section 3004j). Pursuant to the Land Disposal Restrictions (LDR)
provisions of the Hazardous and Solid Waste Amendments of 1984 (HSWA),
all hazardous wastes listed or identified in accordance with RCRA
section 3001 are prohibited, on specified timetables, from land
disposal. The regulations for the LDR program in 40 CFR part 268 apply
to persons who generate or transport hazardous waste and owners and
operators of hazardous waste treatment, storage, and disposal
facilities, unless they are specifically excluded from regulation in
parts 261 or 268. In addition, the statutory provision prohibits the
storage of restricted hazardous, unless the restricted hazardous wastes
are being accumulated for the purpose of accumulating quantities
necessary for proper recovery, treatment, or disposal. This prohibition
is currently codified for restricted hazardous wastes in 40 CFR 268.50.
For universal wastes, the Agency proposed to simplify this prohibition
by simply prohibiting accumulation for more than one year. The
simplified provision was based on the assumption that the sole reason
for accumulating universal waste for up to one year was to accumulate
the quantities necessary for proper recovery, treatment, or disposal.
In the final rule, the Agency has retained the proposed one year
accumulation limit, but has added an additional provision allowing
accumulation for more than one year if such accumulation is solely for
accumulating such quantities of universal waste as are necessary to
facilitate proper recovery, treatment, or disposal. See Secs. 273.15(b)
and 273.35(b) of the final rule. For any accumulation longer than one
year, the handler must be able to prove that such accumulation is
solely for accumulating quantities necessary to facilitate proper
recovery, treatment, or disposal. Thus, under the final rule it is
assumed that any accumulation up to one year is for this purpose, but
for any accumulation beyond one year the handler bears the burden of
proving that accumulation is solely for this purpose. This approach to
implementing the statutory prohibition is taken directly from existing
40 CFR 268.50(c) (This approach has been held to be consistent with
section 3004(j). Hazardous Waste Treatment Council v. EPA, 886 F.2d
355, 366-68 (D.C. Circuit Court, 1989)). The Agency believes that this
provision will ensure that any universal waste accumulation will meet
the statutory LDR storage prohibition. For further discussion on the
LDR program regarding its applicability to universal waste, see Section
IV.I. of the preamble.
The Agency's decision to revise the accumulation prohibition is
based on numerous commenters' arguments that [[Page 25527]] the one
year accumulation limitation was too restrictive and would not provide
enough time to accumulate sufficient quantities of waste to facilitate
proper recovery, treatment, or disposal. Because universal wastes are
likely generated and managed in relatively small quantities (compared
with other industrial hazardous wastes), the Agency recognizes that an
absolute one year accumulation limit may not be enough time for some
handlers to accumulate sufficient quantities of universal waste to
properly recover, treat, or dispose of the waste. The Agency believes
that the revised accumulation time limit discussed above will allow
additional time for accumulation when it is truly needed, while
retaining the simplified approach to accumulation (as proposed) for the
first year.
A number of other commenters argued that the proposed part 273
provisions should provide a provision analogous to Sec. 262.34(c),
known as the generator satellite accumulation provision. Under this
provision, a generator may accumulate small quantities of hazardous
waste at or near the point of generation before moving it to the
generator accumulation area where accumulation time is limited to 90/
180/270 days. Accumulation time is unlimited at satellite accumulation
points. Commenters argued that universal waste handlers should also be
allowed unlimited accumulation time for small quantities of waste at
points of generation, and that the one year accumulation time limit
would make the universal waste rules more restrictive than the existing
hazardous waste generator regulations.
The Agency has decided not to add a provision analogous to the
satellite accumulation provision to the universal waste regulations for
several reasons. First, under the universal waste final rule, handlers
may already manage their wastes very similarly to management under the
satellite accumulation provision. For example, the proposed and final
universal waste regulations do not limit the location, or number of
locations, at which a handler of universal waste may accumulate
universal wastes. Thus a handler may continue to accumulate universal
wastes at points of generation. A handler may accumulate these wastes
for up to one year (which is two or four times longer than the 90 or
180 days allowed under the existing hazardous waste generator
regulations), and under the revised final regulation a handler may
accumulate universal waste for longer than one year if certain
conditions are met. Further, the quantity of universal waste that can
be accumulated at a point of generation is not limited to 55 gallons (a
handler of universal waste must notify, however, if the total quantity
of universal wastes accumulated on-site equals or exceeds the 5,000
kilogram notification limit). The only substantive additional
requirement under the universal waste rule will be to mark or label the
container (or use an alternate method) to document the earliest date
any universal waste accumulated at the location became a waste.
Second, although the time limit may appear to be a constraint when
compared to the satellite accumulation provision, with the revision
discussed above, handlers of universal waste who need to accumulate
wastes for more than one year to facilitate proper recovery, treatment,
or disposal will have the option to do so. The handler, however, bears
the burden of proving that such activity is solely for the purpose of
accumulation of such quantities of universal waste as necessary to
facilitate proper recovery, treatment, or disposal. In addition, the
Agency points out that the existing satellite accumulation provisions
are available only to regulated generators who have EPA identification
numbers and are complying with the full part 262 requirements including
90- or 180-day accumulation time limits 40 CFR 262.34 accumulation unit
standards, biennial reports, and manifests. The Agency does not believe
it would be appropriate to allow unlimited accumulation time for
handlers of universal waste who are not required to comply with the
part 262 controls, but are instead following the streamlined
requirements of the universal waste regulations.
Third, the Agency points out that one of its major goals in
developing the universal waste regulations is to make the regulation
clear and easy to work with for both the regulated community and
implementing agencies. The Agency believes that having one consistent
time limit for all universal waste managed at one site is important to
this goal. The Agency also notes that handlers of universal waste who
generate extremely small quantities of hazardous waste (<100 kg per
month) would, under the final rule, still have the option to manage
their wastes under the Conditionally Exempt Small Quantity Generator
provisions of 40 CFR 261.5 rather than the universal waste regulations
(or the full Subtitle C regulations).
IV.E.6. Employee Training
The final employee training requirements for small and large
handlers of universal waste are found in Secs. 273.16 and 273.36 of
this final rule. In the proposed rule, the Agency proposed to require
that generators and consolidation points provide basic training on
waste handling and emergency response procedures. The Agency requested
comment on whether these requirements should be further reduced or
eliminated.
The Agency has decided to retain these training requirements in the
final rule for all large quantity handlers of hazardous waste. Thus,
large quantity handlers of universal waste must ensure that all
employees are thoroughly familiar with proper waste handling and
emergency procedures related to their responsibilities during normal
facility operations and emergencies. Small quantity handlers of
universal waste, however, are subject to a less burdensome requirement.
Small quantity handlers of universal waste must inform all employees
that handle or have responsibilities for managing universal waste. The
information must include proper handling and emergency procedures
appropriate to the type(s) of universal waste managed at the facility.
Although most commenters supported EPA's proposed requirements for
basic training of personnel regarding potential safety hazards posed by
universal waste, a number of commenters recommended that the Agency
adopt a two-tier approach for training requirements. These commenters
argued that dissemination of safety instructions would be sufficient
training for employees at front-line collection centers, and the more
comprehensive training requirements should apply only to larger
consolidation points, because the consolidation point will be handling
large quantities of universal waste while small front-line collectors
will manage only small quantities, often in a retail setting.
The Agency believes the final rule mirrors the commenter's
recommendations in that the level of training required for small
quantity handlers of universal waste is less stringent than that for
large quantity handlers of universal waste. The Agency agrees with
commenters that the level of training should be greater for people who
handle larger quantities of universal waste.
Other commenters argued that the cost of implementing a training
program as proposed would be unduly burdensome. Although the Agency
recognizes these commenter's concerns, the Agency believes that the
employee training requirements in the final rule will not be too costly
or burdensome for universal waste handlers. First, in response to these
concerns, the Agency [[Page 25528]] has reduced the training required
for small quantity handlers of universal waste. A small quantity
handler of universal waste must inform all employees that handle or
have responsibility for managing universal waste. The information must
include proper handling and emergency procedures appropriate to the
type or types of universal waste handled at the facility. Although
providing the information through oral communication would be allowed,
the Agency expects that brochures or documents providing such
information have already been or will be developed by trade
associations and the organizations running centralized collections
programs (e.g., battery manufacturers, thermostat manufacturers, and
pesticide registrants). Thus, small quantity handlers of universal
waste participating in these collection programs will be able to
distribute information of higher quality than they would be able to
produce individually with little or no development costs.
Second, the Agency further believes that the training requirements
as proposed will not be unduly burdensome for large quantity handlers
of universal wastes. The Agency points out that the employee training
requirement as proposed, and as retained in the final rule for large
quantity handlers of universal waste, does not require that any records
be kept for training provided to employees, requires only that
employees that have responsibilities for managing universal waste or
for responding to emergencies be trained, and requires only that these
employees be trained as is appropriate for their universal waste
management responsibilities. Thus, employees who only minimally handle
universal waste need only be trained to properly carry out that
activity and to carry out their responsibilities, if any, in case of an
emergency. These requirements are analogous to those currently required
for hazardous waste small quantity generators. They basically require
that the large quantity handler of universal waste provide sufficient
training to ensure that employees are familiar with proper handling
procedures and that employees who would have responsibilities during
emergencies are familiar with emergency procedures.
Finally, a number of commenters maintained that an employee
training requirement is not necessary because training required under
other programs provides adequate assurance that employees will be
sufficiently trained to properly manage universal waste (e.g., OSHA,
worker right-to-know, pesticide licensing, etc.). The Agency continues
to believe that a basic employee training requirement is necessary to
ensure that employees are specifically familiar with waste handling
procedures, including, if appropriate, RCRA requirements. The Agency
notes that any training provided under other programs that would meet
any or all of the part 273 training requirements may be used to fulfill
the RCRA requirements. As long as the substantive standards of the
training provisions are met, the handler has fulfilled the training
requirement. There is no requirement that training provided to meet the
RCRA requirements be separate from other training given to employees.
IV.E.7. Response to Releases
The final response to releases requirements for small and large
quantity handlers of universal waste are found in Secs. 273.17 and
273.37 of this final rule. Under the proposed rule, basic release
response requirements were imposed on universal waste generators,
transporters, and consolidation points. These universal waste
collectors were required to immediately contain all releases of or from
universal wastes, and to appropriately manage any materials resulting
from a release (e.g., cleanup equipment, contaminated soils, etc.).
Specifically, they were required to determine if any of the resulting
materials were hazardous wastes, and if so, manage them under the full
hazardous waste regulations.
In the final rule, these release response requirements have been
retained essentially as proposed for all collectors of universal waste.
Since the categories of collectors have been changed in the final rule,
these requirements are now imposed on small and large quantity handlers
of universal wastes and universal waste transporters. Commenters who
addressed this issue overwhelmingly supported the release response
requirements as proposed. They agreed that the requirements to
immediately contain releases and properly manage residues were
sufficient to protect human health and the environment from any
releases of universal waste that might occur and that facility-wide
corrective action is not necessary for universal waste management.
Under the final rule, as under the proposal, destination facilities
are subject to the full hazardous waste regulations applicable to
treatment, storage, disposal, and recycling facilities. These
regulations include extensive release response requirements.
One commenter argued that collectors should be allowed to send
residues from cleanups along with universal waste to destination
facilities. The Agency disagrees for several reasons and has not
revised the final regulation to allow this. First, cleanup residues are
likely to be quite different in form and composition from the universal
waste they come from. The universal waste regulations are designed
specifically for universal wastes, and are not designed to address the
varied risks that may be posed by cleanup residues. Thus, it is not
appropriate that subsequent collectors manage such residues under the
universal waste regulations. Second, the destination facility to which
universal waste is sent may not be able to, or permitted to, treat or
dispose of cleanup residues. It is not unlikely that universal waste
destination facilities' processes are designed to handle universal
wastes but are not designed to handle residues that may have very
different compositions. Thus, the final rule retains the requirement
that collectors determine whether any residues are hazardous waste, and
if so, manage them under the full hazardous waste regulations.
In the preamble to the proposed rule, the Agency noted that under
the existing hazardous waste regulations hazardous waste facilities are
subject to facility-wide corrective action. The Agency requested
comment on whether some form of corrective action should be imposed on
universal waste collection facilities, which were called consolidation
points in the proposal. The majority of commenters addressing this
issue argued that facility-wide corrective action requirements should
not be imposed on universal waste collectors. They contended that
facility-wide corrective action is currently one of the biggest
barriers to participation in waste management systems, and that if
these requirements are imposed on universal waste collectors it will
prevent many people from participating in universal waste collection
systems. The hazardous waste corrective action requirements could thus
impede development of collection systems and undermine the goals of the
universal waste regulations. Commenters also pointed out that, due to
the relatively low risk nature of wastes identified as universal
wastes, as well as the release response requirements discussed above,
corrective action for universal waste handlers would be unnecessarily
burdensome.
Commenters also agreed that the existing imminent hazard provisions
of RCRA section 7003 provide the Agency sufficient authority to compel
[[Page 25529]] immediate action in response to releases if necessary.
The Agency also notes that any releases of universal waste not cleaned
up would constitute illegal disposal, further allowing action under
RCRA. In addition, any releases of hazardous substances above
reportable quantity (RQ) thresholds must be reported under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), also known as Superfund. Since universal wastes are hazardous
wastes, and thus hazardous substances under CERCLA, reporting for
universal waste releases is required (if over RQs). Such reports
provide notification to the Agency concerning releases and would thus
allow the Agency to take action, if necessary, under either RCRA or
CERCLA.
Although several commenters did argue that facility-wide corrective
action should be imposed on universal waste collectors, the Agency
decided not to do so in the final rule. The Agency agrees with the
commenters' points discussed above, and believes that on balance, given
the desire to encourage participation in the universal waste program,
and the availability of response to release requirements in today's
rule (as well as additional authorities available to impel cleanup if
necessary), the risks of impeding the development of universal waste
collection systems outweigh the risks of not including facility-wide
corrective action requirements. It should be noted that under the final
rule (as under the proposal), full facility-wide corrective action does
apply to destination facilities as part of the treatment, storage, and
disposal facility regulations.
IV.E.8. Off-Site Shipments
The Agency has added new sections in the final rule for small and
large quantity handlers of universal waste and destination facilities,
entitled off-site shipments. It was clear from the comments that off-
site shipments present various issues, thus warranting separate
sections covering these issues. The Agency has included the
requirements for off-site shipments in subpart B (standards for small
quantity handlers of universal waste), subpart C (standards for large
quantity handlers of universal waste), and subpart E (destination
facilities). Including these provisions in separate off-site shipments
sections for each category of person managing universal waste makes the
provision easy to locate, and thus makes the entire regulation easier
to follow. The off-site shipments sections for handlers, found at
Secs. 273.18 and 273.38, address one issue discussed in the proposal,
as well as a new issue raised by commenters. The off-site shipments
section for destination facilities, 40 CFR 273.62, addresses only the
new issue raised by commenters. These two issues are discussed below.
First, in the proposed rule, requirements concerning off-site
shipments of universal waste were found in the prohibitions section of
each of the universal waste handler categories (generator, transporter,
and consolidation point). Generators were allowed to send universal
waste only to consolidation points, destination facilities, or foreign
destinations. Transporters were allowed to transport universal waste
only to consolidation points, destination facilities, or foreign
destinations. Consolidation points were allowed to send universal waste
only to other consolidation points, destination facilities, or foreign
destinations. The prohibitions concerning off-site shipments, in
today's final rule, have been moved into paragraphs (a) of 40 CFR
273.18 and 273.38, the new off-site shipments sections, and, except as
discussed below are substantially retained as proposed.
This off-site shipment provision has also been revised to fit the
new categories of universal waste handlers used in the final rule.
Handlers of both small and large quantities of universal waste are
prohibited from sending or taking universal waste to a place other than
another universal waste handler, a destination facility, or a foreign
destination. This change results in one substantive difference from the
proposed prohibition. Under the proposal, generators were prohibited
from sending universal waste to other generators, and consolidation
points were prohibited from sending universal waste to generators.
Under the final rule, universal waste handlers (which include both
generators and consolidation points, classified by quantity of waste
managed rather than by whether wastes are generated or collected) may
send waste to any other universal waste handler.
The Agency has decided to make this change in response to several
commenters who argued that companies or organizations that generate
universal waste at numerous locations should not be penalized by being
categorized as consolidation points merely because they centralize
their waste by bringing it to one location to facilitate better
management (e.g., bringing waste from unstaffed locations to staffed
locations where waste can be better monitored). Under the proposed
prohibition, such consolidation could only be conducted if the central
location was categorized as a consolidation point, which was based only
on the fact that universal waste was transported to the location. As
discussed earlier in the section of this preamble entitled ``Universal
Waste Handlers (section IV.D.1)--Small and Large Quantity Handlers of
Universal Waste'', the Agency believes that the appropriate variable
for applying more stringent requirements is the quantity of waste
managed, not whether waste is generated on-site or received from off-
site. Thus, the prohibition in the final rule allows shipment to any
universal waste handler, and the level of requirements applicable to
any handler (i.e., small or large quantity handler requirements) is
based purely on how much universal waste is accumulated at the
location.
In addition, a provision has been added to the small and large
quantity handler off-site shipments sections of the final rule, 40 CFR
273.18(b) and 273.38(b), to clarify the language of the proposed off-
site shipment prohibition. Several commenters exhibited some confusion
about the language ``sending or taking'' universal waste. This language
was intended to indicate that handlers could either contract with
someone else to transport their universal waste or transport it
themselves. The language was not intended to imply that handlers who
transport their own universal waste are not subject to the transporter
requirements. In fact, the proposed definition of transporter (which is
retained in the final rule) clearly stated that anyone engaged in off-
site transportation of universal waste is considered a transporter, and
the transporter requirements (proposed and final) make it clear that
any universal waste transporter is subject to the universal waste
transporter requirements. To clarify this point, a paragraph (b) has
been added to the off-site shipments sections of the final rule
clarifying that a handler who self-transports universal wastes off-site
becomes a universal waste transporter for those self-transportation
activities and must comply with the universal waste transporter
requirements while transporting the waste. (See 40 CFR 273.18(b) and
273.38(b)). Paragraph (c) of Secs. 273.18 and 273.38 have been added to
clarify that if a universal waste being offered for off-site
transportation meets the definition of hazardous materials under 49 CFR
171-180, the handler of universal waste must package, label, mark, and
placard the shipment in accordance with the applicable Department of
[[Page 25530]] Transportation regulations under 49 CFR parts 172-180
and must prepare the proper shipping papers. Because persons who offer
for transportation or who transport a hazardous material must do so in
conformance with requirements specified in the Department of
Transportation's Hazardous Materials Regulations, these revisions to
the regulatory text do not constitute new requirements. Rather,
paragraph (c) serves to communicate more clearly that applicable DOT
requirements still apply to all persons managing universal waste.
Second, in the final rule, paragraphs (d) through (h) have been
added to the small and large quantity handler off-site shipments
sections, and 40 CFR 273.61(a) through (d) have been added to the
destination facility requirements, addressing a new issue raised by
commenters. Specifically, commenters argued that consolidation points
(in the final rule referred to as either small or large quantity
handlers) should be allowed to return shipments of universal waste to
generators (in the final rule referred to as either small or large
quantity handlers) in cases where generators (shipping handlers) send
materials that the collection facility (receiving handler) is not able
or prepared to manage. The Agency agrees with this point and reiterates
that nothing in the universal waste rule is intended to imply that
universal waste handlers are required to accept any particular type of
universal waste, any universal waste that they are not willing or able
to handle, or any particular shipment of universal waste. It should be
noted, however, that there may be other regulations that do require
handlers to accept such waste. For example, under FIFRA regulations,
pesticide recallers are not allowed to return pesticides that are part
of a recall. On the contrary, although persons who choose to manage
universal wastes are subject to the applicable requirements of part
273, no one is required to manage any universal waste.
In response to these concerns, the Agency has added provisions to
part 273 addressing this issue of rejected shipments. Under the final
rule, both the shipper (a small or large quantity handler of universal
waste who is shipping universal waste to another handler or destination
facility) and the receiving facility (a small or large quantity handler
of universal waste, or destination facility, receiving a shipment of
universal waste from another universal waste handler) share certain
responsibilities for the protective handling of the universal wastes
being shipped.
In order to prevent or limit rejected shipments, Secs. 273.18(d)
and 273.38(d) of the final rule specify that a shipper sending
universal waste to a receiving facility must ensure, before the
shipment is sent, that the receiving facility agrees to receive the
load. In addition, Secs. 273.18(e) and 273.38(e) of the final rule
specify that if the shipper sends universal waste to another handler or
destination facility and the shipment is rejected, the shipping handler
must receive the waste back or agree with the receiving facility on a
destination facility to which the shipment will be sent.
Sections 273.18(f), 273.38(f), and 273.61(b) require that if an
unsuitable shipment containing universal waste is received, the
receiving facility, in turn, may reject the full shipment or a portion
of the shipment. Examples of unsuitable shipments include, but are not
limited to: Universal waste that the facility is not willing to handle
(e.g., a load of universal waste batteries that also contains ``junk
rechargeable items''; or, universal waste that the facility is not able
to handle (e.g., universal waste thermostats sent to a battery
reclamation facility). In such a scenario, the receiving facility must
notify the shipper of the rejection and discuss reshipment of the load.
The receiving facility may send the shipment back to the original
shipper or send the shipment to a mutually agreed upon destination
facility. Finally, a handler of universal waste who receives a shipment
of non-hazardous, non-universal waste may handle the waste in any way
that is in compliance with applicable federal or state solid waste
regulations.
Commenters were also concerned about procedures to follow if a
handler receives a shipment of hazardous waste that is not a universal
waste. Sections 273.18(g), 273.38(g), and 273.61(c) have been added to
the final rule to address this scenario. These procedures are actually
not specific to universal waste handlers but merely clarify what anyone
should do if they receive an illegal shipment of hazardous waste.
Specifically, these subsections state that should such a shipment be
received, the receiving facility must immediately notify the
appropriate regional EPA office of the illegal shipment, and provide
the name, address, and phone number of the shipper. The EPA regional
office will provide instructions for managing the hazardous waste.
IV.E.9. Tracking Universal Waste Shipments
Under the proposed universal waste rule the use of a hazardous
waste manifest was required for some shipments of universal wastes, but
not others. Those shipments that required manifests also required the
use of a transporter with an EPA transporter identification number.
More specifically, manifests were required for shipments from
consolidation points to destination facilities, but were not required
for shipments from generators to either destination facilities or
consolidation points or for shipments from one consolidation point to
another. The reasoning behind requiring manifests only for shipments
from consolidation points to destination facilities was that it was
believed that shipments from these ``last'' consolidation points would
be relatively larger shipments and thus warranted a higher level of
tracking and control.
The tracking requirements in the final rule have been substantially
revised from the proposal in response to comments. In general, under
the final rule, manifests are not required for any shipments of
universal waste, but a basic recordkeeping requirement has been added
to track waste shipments arriving at and leaving from handlers of large
quantities of universal waste. In addition, a similar provision has
been added to the destination facility requirements to require
retention of basic documentation of universal waste shipments arriving
at destination facilities. This basic tracking requirement is found in
Secs. 273.39 and 273.62 of the final rule. The required records may
take the form of a log, invoice, manifest, bill of lading, or other
shipping document, and are to be maintained for three years. No
specific form is required for maintaining these records, and the Agency
believes that standard business records that would normally be kept by
any business will fulfill this requirement.
For each shipment of universal waste received at or by a large
quantity handler, the record must include the name and address of the
universal waste handler or foreign shipper from whom the universal
waste was sent; the quantity of each type of universal waste received
(e.g., batteries, pesticides, thermostats); and the date of receipt of
the shipment of universal waste. For each shipment sent from a large
quantity handler, the record must include the name and address of the
universal waste handler, destination facility, or foreign destination
to whom the universal waste was sent; the quantity of each type of
universal waste sent (e.g., batteries, pesticides, thermostats); and
the date the shipment of universal waste left the facility.
[[Page 25531]]
It should also be noted that under the proposal, the owner or
operator of a destination facility would have been required to keep,
for three years, manifests documenting receipt of shipments of
universal wastes from consolidation points. (See proposed 40 CFR
273.14(a) and 273.24(a), and existing 40 CFR 264.71(b)(5) and
265.71(b)(5)). Records of shipments received from generators, without
manifests, would have been required as part of the operating record
(see existing 40 CFR 264.73(b)(1) and 265.73(b)(1)) and biennial report
(see existing 40 CFR 264.75(c) and (d) and 265.75(c) and (d)). Since no
manifests will be used for shipments received by destination
facilities, the final rule requires that the owner or operator of a
destination facility keep the same records for receipt of universal
waste shipments as those kept by handlers of large quantities of
universal wastes. This will complete the record of universal waste
shipments, providing documentation of receipt and allowing comparison
of outgoing shipments from handlers against received shipments at
destination facilities.
The Agency decided to make these changes in the tracking
requirements based on comment received on the issue. First, a number of
commenters opposed requiring manifests and hazardous waste transporters
for any shipments of universal wastes, arguing that the increased costs
and administrative burden of using manifests and hazardous waste
transporters would be a disincentive for collection of universal waste
and would inhibit removal of these wastes from the municipal waste
stream. Many commenters, however, including some of those opposing
manifests, did support some form of tracking requirement to document
transport of universal wastes. These commenters argued that a less
burdensome tracking requirement would not inhibit participation, but
could be used to reduce the liability of persons managing universal
waste, increase enforceability of the universal waste system, and
decrease potential abuses of the streamlined universal waste
requirements. The Agency found these arguments compelling and thus has
revised the final rule to include a basic recordkeeping requirement for
tracking, but not to require use of manifests for any universal waste
shipments.
A number of commenters also pointed out that the proposed approach
of requiring manifests for some shipments but not others, based on the
type of facility originating and receiving the shipment, was overly
complex and would be confusing to participants. Commenters also pointed
out that it is not necessarily true that the shipments for which
manifests would have been required would actually be larger shipments
than those for which manifests were not required. In fact, the
requirement that manifests and hazardous waste transporters be used for
shipments from consolidation points to destination facilities might
increase the administrative burden and cost for such a transportation
pattern such that more universal waste would actually be sent directly
from generators to destination facilities, for which no manifest would
be required. It was not the Agency's intent to make the tracking
requirement complicated or confusing, or to discourage the use of
centralized facilities to consolidate universal waste if that is the
most efficient way to manage these wastes.
To address this concern about complexity, in the final rule, the
Agency has decided to require tracking for all shipments received by
and shipped from handlers of large quantities of universal waste, and
not to require any tracking for handlers of small quantities of
universal wastes. The Agency believes that this tracking requirement is
less complex than the proposed approach because handlers generating
universal wastes will know generally the rates at which they generate
and the procedures used for shipping these wastes, and so will know
whether they are handlers of large or small quantities (i.e., whether
they will be accumulating 5,000 kilograms or more total of universal
waste). Similarly, handlers collecting universal wastes will know,
based on the types of universal waste accepted and the procedures used
for shipping these wastes, whether they are handlers of large or small
quantities. Thus, those persons who know they are handlers of large
quantities will keep records for all shipments received and sent off-
site, regardless of where the shipments come from or are sent to. In
comparison, those persons who know they are handlers of small
quantities will not be required to keep records of any shipments,
although they may, of course, maintain any records they believe are
appropriate based on their individual circumstances.
As discussed elsewhere in this preamble, the Agency has decided to
require tracking (and other requirements such as notification and more
in-depth training) only for handlers of large quantities of universal
waste. This decision was made in order to impose these more protective
requirements only in cases where facilities are handling larger
quantities of universal waste and thus the risks from management of
these wastes are greater. The Agency has decided not to impose these
requirements on handlers of small quantities of universal waste based
on numerous commenters' argument that the administrative burden of
tracking would be such a strong disincentive that retail
establishments, service centers, and other ``front line'' collectors
managing small quantities would not participate in collection programs,
thus undermining the goal of the universal waste program. In addition,
because these operations accumulate smaller quantities of universal
wastes, if managed properly, they will pose less risk than the
accumulation of larger quantities. The Agency believes that the risk
associated with management of small quantities of universal waste is
lower than the management of larger quantities due to the reduced
amount of waste handling involved and the lesser chance of
mismanagement opportunities.
The Agency selected 5,000 kilograms of accumulated waste as the
cutoff for this tracking requirement (i.e., as the cutoff between small
and large handlers), because the universal waste rule is designed for
wastes that present a relatively low risk during collection (compared
to other hazardous wastes), and thus it is appropriate to have a higher
cut off limit for the tracking requirement than applies under the full
hazardous waste regulations (i.e., the conditionally exempt small
quantity generator accumulation limit of 1,000 kg).
Finally, in commenting on the tracking requirements a number of
commenters suggested that the biggest barrier to farmer's participation
in programs to collect and properly manage unused pesticides products
is their unwillingness to sign manifests for the wastes. Several of
these commenters suggested that collection sites should be identified
as the generator for waste pesticides, thus removing any requirement
that farmers act as the generator and sign manifests. The Agency notes
that the issue of when a material becomes a waste, and thus potentially
subject to regulation, is a general concept that applies consistently
to all materials potentially subject to the hazardous waste program and
is much broader than just the universal waste rule. The Agency does not
believe it is appropriate or defensible to try to alter that concept
for specific wastes. The final rule explains the concept that waste
pesticides become wastes at the point the generator decides to discard
them (see Sec. 261.33), but this provision merely clarifies how
[[Page 25532]] the point of generation concept imbedded in the entire
hazardous waste regulatory program applies specifically to waste
pesticides.
In response to these commenters, however, the Agency notes that
under the final rule, manifests are not required for universal waste
shipments. Thus, the major barrier identified to farmers' participation
in waste pesticide collection programs has been removed. Farmers who
decide to discard universal waste pesticides would be considered
universal waste handlers and would be required to comply with the small
or large quantity handler regulations, depending on the amount of waste
pesticides that they accumulate.
IV.E.10. Exports
The final export requirements for small and large handlers of
universal waste are found in Secs. 273.20 and 273.40 of this final
rule. In the universal waste proposed rule, the Agency proposed export
requirements for generators and consolidation points managing hazardous
waste under part 273. As proposed, a generator sending universal waste
to a foreign destination, without first sending the waste to a
consolidation point or destination facility, would be subject to
requirements equivalent to the existing hazardous waste export
requirements, subpart E of part 262, even though a manifest would not
have been required. (See proposed 40 CFR 273.15 and 40 CFR 273.25.)
These requirements included advance notification to the receiving
country and prior consent by the receiving country before the shipment
could occur.
The Agency also proposed export requirements for consolidation
points. However, depending upon the type of foreign facility receiving
the exported hazardous waste (e.g., consolidation point or destination
facility), a manifest may or may not have been required for each
shipment. Shipments from consolidation points requiring a manifest
would have followed the existing subpart E of part 262 export
requirements. Shipments from consolidation points not requiring a
manifest would have followed the export procedures for generators,
which required notification and consent independent of a manifest.
Commenters generally supported EPA's proposal to adopt existing
notification and consent requirements for exports. Thus, in the final
rule, notification and consent requirements have been retained for all
exports, although the proposed provisions have been revised somewhat.
The revisions are discussed below.
First, the export provisions have been revised to apply to the new
categories of universal waste managers used in the final rule.
Generators and consolidation points are now designated as universal
waste handlers, who are classified by quantity of waste managed rather
than by whether wastes are generated or collected. In addition, the
export provision applicable to each type of participant in the
universal waste system has been moved into the subparts of part 273
applicable to each participant. For example, the export requirements
for handlers of small quantities of universal waste are now located in
subpart B, which contains all of the requirements for handlers of small
quantities.
Second, under the final rule, manifests are not required for any
universal waste shipments (see tracking section of preamble for more
detailed discussion). Thus, under the final rule, all universal waste
shipments will follow procedures for notification and consent which, as
proposed, are independent of the manifest procedures. The Agency also
notes that under the tracking requirements of the final rule, large
quantity handlers of universal waste are required to keep records of
where they send waste, and from where they receive universal waste,
including foreign destinations or shippers.
In addition, commenters raised several other issues related to
exports of universal waste. First, one commenter noted that the
proposed export requirements did not conform to the Organization for
Economic Cooperation and Development (OECD) Council Decision on waste
exports. The Agency agrees, and notes that it will shortly promulgate a
rule which will revise the relevant hazardous waste export requirements
to conform to the OECD Council Decision. All pertinent revisions to the
universal waste final regulations for shipments of universal waste to
and from OECD countries pursuant to the OECD Council Decision will be
made in that rule.
Third, the Agency explained in the proposal that it does not have
the authority under RCRA to regulate registrants exporting suspended or
canceled and recalled pesticides to a foreign country for use as a
product. See proposed 40 CFR 273.25(e). One commenter argued that
commercial chemical products (e.g., recalled pesticides exported to
foreign countries) that have been banned for use in the United States
should not be exported to foreign countries because they will
invariably find their way back into the United States. The commenter
further argued that if there are health or environmental reasons for
banning a chemical in the United States, it would undoubtedly pose an
identical health or environmental problem elsewhere.
The Agency sympathizes with the commenter's concerns, but
reiterates that it does not have statutory authority under RCRA to
regulate materials which are products and not wastes. In cases where
the registrant decides to export a suspended or canceled pesticide for
use as a product, the RCRA hazardous waste regulations, including the
export requirements, do not apply because the pesticide would not be a
solid or hazardous waste. To make this clear, the final rule retains
language explaining the non-waste status of pesticides that are to be
used as products. In the final rule, however, this language is no
longer in the export section, but has been moved to the applicability
section for pesticides (see 40 CFR 273.3(b)(4)). This section explains
that pesticides that are to be used, reused, or reclaimed are not solid
wastes and thus are not subject to hazardous waste regulations,
including part 273.
The Agency notes, however, that the requirements of FIFRA section
17(a) do apply in such situations. These requirements include providing
notice to the foreign purchaser that the product is not registered for
use in the United States and cannot be sold in the United States. The
foreign purchaser must sign a purchaser acknowledgement statement
indicating that he is aware of that fact. A copy of the acknowledgement
statement is to be submitted to EPA and thereafter is transmitted to an
appropriate official of the importing country. The product to be
exported must also be packaged according to the specifications of the
foreign purchaser.
IV.F. Transporter Requirements
In the proposed part 273 regulations, the Agency proposed five
provisions addressing requirements for transporters of universal waste.
These five provisions included requirements for condition of the waste,
prohibitions, waste management, storage, and exports. The Agency
requested comment on the application and adequacy of the transporter
requirements proposed in part 273, the in-transit ten-day storage
limit, and the adequacy of DOT shipping requirements and/or the need
for supplemental RCRA requirements for the transport of universal
wastes.
Today's final rule includes requirements for transporters in
subpart D of part 273. The standards include six substantive sections:
prohibitions, waste management, storage time limits, response to
releases, off-site shipments, [[Page 25533]] and exports (Secs. 273.50
through 273.56 of the final rule). Each section of subpart D is
discussed below.
The prohibitions for transporters are found in Sec. 273.51 in
today's final rule and are essentially the same as those presented in
the proposed rule, with one minor modification regarding off-site
shipments of universal waste. In the proposed rule, the prohibitions
section for each of the universal waste handler categories contained
requirements concerning off-site shipments of universal waste. This
provision, in today's final rule, has been moved into a new off-site
shipments section (Sec. 273.55); however, the requirements have been
substantially retained.
Waste management standards for transporters are found in
Sec. 273.52 in today's final rule. Section 273.52 specifies that
transporters must manage universal wastes in compliance with all
applicable U.S. Department of Transportation (DOT) regulations. In the
final rule, new text has been added in response to comments which
indicated a lack of clarity regarding which DOT requirements were being
referenced. In the final rule, the Agency has clarified this matter in
Sec. 273.52 by explicitly directing the reader to the applicable DOT
regulations at 49 CFR parts 171 through 180. In addition, the Agency
also provides the pertinent references for the Department of
Transportation's definition of hazardous materials (49 CFR 171.8) and
the Hazardous Materials Table (49 CFR 172.101). Adding new text to the
waste management section for transporters clarifies the requirements of
the proposed standard but does not add any additional requirements.
The Agency notes that the Hazardous Materials Regulations (HMR, 49
CFR parts 171-180) define a hazardous waste as any material that is
subject to the Uniform Hazardous Waste Manifest Requirements of the
U.S. Environmental Protection Agency specified in 40 CFR part 262. As
shipments of universal waste do not require this manifest, it is not
considered a ``hazardous waste'' by the DOT. However, such material may
still be regulated under the defining criteria for one or more of the
DOT hazard classes. Therefore, for any universal waste shipments,
transporters of universal waste must decide if the waste falls under
any of the other DOT hazard classes in order to determine if compliance
with the DOT requirements under 49 CFR parts 171 through 180 is
required. (A discussion of the manifest is found in the tracking
section of today's preamble at IV.E.9.).
If the waste material does not meet the definition in the HMR for
hazardous waste or any other type of hazardous material, its shipping
description on shipping papers may not include a hazard class or
identification number shown in the HMR.
Storage time limits for transporters are found in Sec. 273.53 of
today's final rule. Under the proposed rule, transporters could only
store universal waste at a transfer facility for ten days or less. This
requirement remains the same in today's final rule. Comments revealed
some confusion about the status of the person handling the waste if the
waste is stored for greater than 10 days. In Sec. 273.53(b), the Agency
has added text clarifying that if the waste is stored for greater than
10 days, the transporter becomes a small or large quantity handler of
universal waste and is subject to the applicable regulations under
subparts B or C of part 273 while storing the universal waste.
Several commenters expressed agreement with the 10 day in-transit
storage time limit. One commenter argued that a longer period for
storage should be allowed, while another commenter stated that the
focus of the rule should be on the total time for the universal waste
to reach its final destination, not the time it is stored in-transit.
Commenters, however, provided little information to justify a longer
in-transit storage time limit. EPA believes that, while the total time
period required for a shipment of universal waste to reach its
specified destination is important, the transportation phase requires
more handling of the universal waste and presents certain exposure
scenarios not likely when only storage of the universal waste is
required. Transportation increases handling and movement of the waste,
increased risk of spills and releases, and a greater likelihood of
public exposure. For these reasons, EPA is continuing to require a ten-
day storage limitation for transporters of universal waste. As stated
above, the text in Sec. 273.53(b) has been revised in order to clarify
that if a transporter stores universal waste for greater than 10 days,
the transporter becomes a small or large quantity handler of universal
waste. Under this circumstance, the small or large quantity handler
requirements apply, which allow for up to one year accumulation.
The fourth section of Subpart D contains the response to release
standards for transporters. In the final rule, these requirements
remain essentially unaltered from those in the proposed rule. These
response to release requirements are found in Sec. 273.54 of today's
rule. Section IV.E.7. of today's preamble contains a full discussion of
this subject.
The off-site shipment provision for transporters is found in
Sec. 273.55 of today's final rule. This requirement was located with
other prohibitions in the ``Transporter Requirements'' section of the
proposed rule. In the final rule, the Agency has moved the requirement
to a new off-site shipments section, Sec. 273.55, under Subpart D. This
modification makes the provision easier to locate, and thus makes the
entire regulation easier to follow. Although the Agency has shifted the
placement of this provision, the requirement has been substantially
retained.
Additionally, in the proposed rule, transporters were only
authorized to transport universal waste to consolidation points or
destination facilities. In today's final rule, the terms generator and
consolidation point have been redefined and replaced with small
quantity handler of universal waste and large quantity handler of
universal waste. In today's final rule, a transporter may transport a
shipment of universal waste to a small quantity handler, large quantity
handler, or destination facility.
The final section of subpart D contains the export requirements for
transporters shipping universal waste to a foreign destination. These
requirements have been moved from the ``Export Requirements'' section
of the proposed rule and are now found in Sec. 273.56 of today's final
rule. This modification makes it easier for transporters shipping
universal waste to a foreign destination to locate the requirements. A
full discussion of this topic is found in section IV.E.10. of this
preamble. Again, although the Agency has relocated this provision, the
requirement has been substantially retained.
IV.G. Destination Facility Requirements
Under the proposed part 273 regulations, destination facilities
were referred to the current parts 264, 265, and 270 and
Sec. 261.6(c)(2) requirements applicable to permitted or interim status
hazardous waste treatment, storage, and disposal (TSD) facilities, or
recycling facilities that do not store hazardous waste prior to
recycling. These sections include notification requirements, general
facility standards, unit-specific management standards, and permitting
requirements.
In the final rule, the requirements for destination facilities
remain substantially unchanged, with two minor modifications and added
provisions related to off-site shipments and recordkeeping. The
destination facility requirements are found in [[Page 25534]] subpart E
of today's final rule. The first modification revises the language of
Sec. 273.60(a) to correlate with the revised definition of destination
facility in the final rule. (In response to comments, EPA has redefined
destination facility to mean ``a facility that treats, disposes of, or
recycles a particular category of universal waste, except those
management activities described in paragraphs (a) and (c) of
Secs. 273.13 and 273.33. A facility at which a particular category of
universal waste is only accumulated, is not a destination facility for
purposes of managing that category of universal waste.'' A full
discussion of this revision can be found at section IV.D.3 of today's
preamble under Universal Waste Handlers - Destination Facilities). The
second modification is that the export requirements applicable to
destination facilities have been moved into subpart E, Sec. 273.63, to
make them easier for destination facility owners and operators to
locate (see III.F.10 of this preamble for a discussion of issues
related to Exports).
In addition to these modifications, two additional provisions have
been added to part 273, subpart E. The first new provision, 40 CFR
273.61, was added in response to several commenters who expressed
concern regarding the authority of destination facilities to reject
shipments of universal waste and the appropriate measures to be taken
if a shipment is rejected. This new requirement is discussed in detail
in the section of this preamble entitled ``Off-site Shipments.''
The second provision added to subpart E of part 273, 40 CFR 273.62,
requires that the owner or operator of a destination facility keep
basic documentation tracking universal waste shipments that arrive at
the destination facility. Under the proposal, owners and operators of
destination facilities would have been required to keep, for three
years, manifests documenting receipt of shipments of universal wastes
from consolidation points. (See proposed 40 CFR 273.14(a) and
273.24(a), and existing 40 CFR 264.71(b)(5) and 265.71(b)(5)). Records
of shipments received from generators, without manifests, would have
been required as part of the operating record (see existing 40 CFR
264.73(b)(1) and (d) and 265.75(c) and (d)).
In the final rule, no manifests will be used for shipments received
by destination facilities (see IV.E.9 of this preamble for a discussion
of tracking issues). Therefore, in Sec. 273.62 of today's final rule,
owners and operators of destination facilities must keep the same
records for receipt of universal waste shipments as those kept by
handlers of large quantities of universal wastes. Section 273.62(a)
requires the owner or operator of a destination facility to keep a
record of universal waste received at the facility. The record must
include information on the name and address of the universal waste
handler or foreign shipper from whom the universal waste was sent; the
quantity of each type of universal waste received; and the date of
receipt of the shipment of universal waste. Section 273.62(b) requires
that these records be retained for at least three years from the date
of receipt of a shipment of universal waste. This provision will
complete the record of universal waste shipments, providing
documentation of receipt and allowing comparison of outgoing shipments
from handlers against received shipments at destination facilities. No
specific form is required for maintaining these records, and the Agency
believes that standard business records that would normally be kept by
any business will fulfill this requirement.
Several commenters requested that EPA relax the destination
facility requirements for recycling facilities in order to stimulate
recycling efforts. Commenters argued that obtaining a RCRA Permit is
time consuming and cost prohibitive and, in most cases unprofitable for
the recycling facilities. They stated, also, that the requirement for
obtaining a RCRA part B permit is a disincentive for recycling
facilities to accept the wastes and assume the associated liabilities.
In addition, one commenter believed that lack of reclamation capacity
is one of the factors limiting recycling efforts, and that one of the
principal causes of this lack of capacity is subtitle C requirements
applicable to reclamation facilities.
While EPA supports recycling, a change to the requirements for
destination facilities that recycle universal waste is beyond the scope
of this regulation which is intended to focus on the collection phase
of universal waste management rather than the final treatment,
disposal, or recycling phase. As discussed in the background section of
this preamble entitled ``Definition of Solid Waste Task Force,'' the
Agency has an ongoing effort to broadly address the question of how
hazardous waste recycling should be regulated. Any modification of
regulatory requirements for recyclers, including universal waste
recyclers, will be a part of this broader effort. Therefore, in today's
final rule, the Agency is maintaining the requirements proposed for
destination facilities that recycle waste.
IV.H. Imports of Universal Waste
Several commenters pointed out that the Agency did not address the
issue of imports in the proposed universal waste rule. This was an
oversight. The Agency intended that once universal waste entered the
country it would be subject to the same universal waste rules as any
other universal waste. To clarify this, the final rule includes import
requirements in 40 CFR 273.70, which is Subpart F of Part 273. Section
273.70 clarifies that universal waste that is imported from another
country must be managed, upon entry into the country, in compliance
with the appropriate universal waste requirements for transporters,
handlers, or destination facilities, depending on the universal waste
management activities conducted within the United States.
For example, if a person imports universal waste into the United
States and only transports the imported waste to a facility owned and
operated by someone else, he is subject to the transporter requirements
of subpart D of part 273. However, if a person imports universal waste
into the United States and subsequently transports the universal waste
to his own facility, the universal waste handler is subject to the
transporter requirements for transport of the universal waste, and to
the small or large handler requirements of subparts B or C for
management at the receiving facility. To determine whether the handler
is a small or large quantity handler, universal waste imported from a
foreign country is counted toward the quantity of waste accumulated as
any other universal waste would be. If the handler is a large quantity
handler of universal waste, he must also comply with the tracking
requirements for receipt of shipments at 40 CFR 273.39(a). If a person
imports the waste into the United States and subsequently transports
the universal waste to his own destination facility, he is subject to
the destination facility Subpart E requirements for management at the
receiving facility.
IV.I. Land Disposal Restrictions
Pursuant to the Land Disposal Restrictions (LDR) provisions of the
Hazardous and Solid Waste Amendments of 1984 (HSWA), all hazardous
wastes listed or identified in accordance with RCRA section 3001
require treatment prior to land disposal, on specified timetables, from
land disposal. The regulations for the LDR program in 40 CFR part 268
apply to persons who generate or transport [[Page 25535]] hazardous
waste and owners and operators of hazardous waste treatment, storage,
and disposal facilities, unless they are specifically excluded from
regulation in parts 261 or 268.
To address the LDR program for universal wastes, the proposed
universal waste rule required that generators, transporters, and
consolidation points managing universal waste comply with all of the
substantive land disposal restrictions requirements, but not the
administrative requirements. These substantive requirements included:
(1) A prohibition on accumulating prohibited wastes directly on the
land (land disposal); (2) a requirement to treat wastes to meet
treatment standards prior to land disposal; (3) a prohibition on
dilution; and (4) a prohibition on waste accumulation except for
purposes of accumulating quantities sufficient for proper recovery,
treatment or disposal. See Universal Waste proposed rule at 58 FR 812
and 8124 for a detailed discussion of how each of these substantive
requirements were to be implemented for universal wastes. Under the
proposal, destination facilities remained subject to all of the part
268 land disposal restrictions.
Commenters overwhelmingly supported the proposed approach of
requiring collectors of universal waste to comply with the substantive
LDR requirements but not the LDR administrative requirements (e.g.,
notification to all handlers of applicable treatment standards). They
agreed that the procedural land disposal restrictions requirements
would be a significant disincentive to persons managing universal waste
under Part 273. Commenters also agreed that due to the unique nature of
universal wastes (i.e., easily identifiable, treatment standards easily
identifiable, contained), the substantive requirements proposed would
be sufficient to ensure that the goals of the land disposal
restrictions program are met for universal waste managed under part
273.
Based on these comments, the final rule generally retains the
proposed approach to ensuring that collectors of universal waste (small
and large handlers and transporters) manage the waste in compliance
with the substantive requirements of the LDR program. Each of the
proposed requirements, comments received on the proposed requirements,
and any changes made in the final rule are discussed in detail in the
sections of this preamble addressing the specific requirements. As in
the proposal, under the final rule, destination facilities are required
to comply with all of the Part 268 LDR requirements for universal
waste, including both the substantive and administrative requirements.
Thus, all universal waste will be treated or disposed of in compliance
with LDR treatment standards and the appropriate documentation
regarding such compliance will be maintained by destination facilities.
A number of commenters did, however, raise specific concerns about
the proposed approach to implementing the LDR requirements for
universal waste. These comments and changes made to the final rule to
address them are discussed in detail in the section IV.E.5 of this
preamble, entitled ``accumulation time limits.''
IV.J. Regenerated Batteries
In the proposed rule, the Agency requested comment on whether the
existing 40 CFR 261.6(a)(3)(ii) exemption from regulation for used
batteries that are returned to a battery manufacturer for regeneration
should be retained, or changed to correspond with the changes proposed
for management of other batteries (58 FR 81250). Although the Agency
expressed concern that having multiple special provisions for batteries
would be confusing for regulated parties and implementing agencies, EPA
proposed to retain the exemption to avoid disrupting the regeneration
of used batteries.
The final rule removes the 40 CFR 261.6 exemption for used
batteries that are to be regenerated, and adds a provision at
Sec. 273.13(a) and 273.33(a) such that facilities regenerating used
batteries are now subject to the part 273 standards for small or large
quantity handlers of universal waste, depending on the quantity of
batteries they accumulate. In effect, this change results in the
management of batteries that are to be regenerated together with all
other batteries under part 273 during collection, and subjects the
regeneration facility to the same requirements as other facilities
receiving batteries but not breaking open battery casings.
40 CFR 266.80(a) and (b) have also been revised to clarify that
lead-acid batteries that are regenerated remain exempt from the
hazardous waste regulations throughout the management cycle. Since the
final rule retains the lead-acid battery provisions of 40 CFR 266.80,
it is most appropriate to also include regenerated lead-acid batteries
so that all lead-acid batteries may be managed similarly. However,
since the activities of a regeneration facility are more similar to a
facility that accumulates waste than a facility that processes a waste
to recover a usable product, batteries that are regenerated have also
been exempted from the requirements for lead-acid battery reclamation
facilities.
The Agency decided to include regenerated batteries under part 273
for several reasons. First, although a number of commenters supported
retaining the exemption, several commenters documented the confusion
that already exists concerning applicability of the current exemption,
and several expressed concern about the additional confusion that would
be added by having multiple provisions for battery management.
Regulating all used batteries under the same provisions will eliminate
this confusion, making it easier for the regulated community and
regulating agencies to implement the battery management regulations. In
addition, regulating all hazardous waste batteries under the same
provisions will eliminate the confusion expressed by several commenters
about how the exemption applies in situations where those handling the
battery do not know whether the battery is regenerable, and thus do not
know whether the battery will be regenerated or recycled. The
applicable requirements will be the same whether the battery is
determined to be regenerable, or is sent on for reclamation at another
facility.
Second, because the risks of accumulating and transporting used
batteries that are to be regenerated (and particularly those that may
or may not be regenerated) are similar to the risks of managing any
other used battery, the two should be regulated similarly. Because the
Agency believes that the risks are low relative to other hazardous
wastes because the battery casings remain intact, both battery types
should be subject to the same basic management standards included in
Part 273.
Third, the Agency does not believe that compliance with part 273
requirements will be overly burdensome for persons managing batteries
that are to be regenerated. As discussed previously, the requirements
for generators, transporters, and consolidation points (which would be
applicable to regenerators) generally consist of basic good management
practices and only require notification or recordkeeping if large
quantities of batteries are managed. In addition, these requirements
would be applicable in any case if a battery is determined not to be
regenerable and thus is otherwise recycled.
Finally, the Agency decided to subject regeneration facilities to
the requirements for small or large quantity handlers of universal
waste, depending on the quantity accumulated) because
[[Page 25536]] the activities conducted by such facilities are
basically the same and thus the risks are basically the same. Both
facilities accumulate batteries, but do not damage the integrity of the
battery casings. Thus, the Agency believes that the regulations
applicable to such facilities should be the same.
V. State Authority
A. Applicability of Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA program within the State. Following
authorization, EPA retains enforcement authority under sections 3008,
3013, and 7003 of RCRA, although authorized States have primary
enforcement responsibility. The standards and requirements for
authorization are found at 40 CFR part 271.
Prior to enactment of the Hazardous and Solid Waste Amendments of
1984 (HSWA), a State with final RCRA authorization administered its
hazardous waste program entirely in lieu of EPA administering the
federal program in that State. The federal requirements no longer
applied in the authorized State, and EPA could not issue permits for
any facilities in that State, since only the State was authorized to
issue RCRA permits. When new, more stringent federal requirements were
promulgated or enacted, the State was obliged to enact equivalent
authorities within specified time frames. However, the new federal
requirements did not take effect in an authorized State until the State
adopted the federal requirements as State law.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which
was added by HSWA, new requirements and prohibitions imposed under HSWA
authority take effect in authorized States at the same time that they
take effect in unauthorized States. EPA is directed by statute to
implement these requirements and prohibitions in authorized States,
including the issuance of permits, until the State is granted
authorization to do so. While States must still adopt HSWA related
provisions as State law to retain final authorization, the HSWA
provisions are implemented by EPA in authorized States in the interim.
B. Effect on State Authorization
Today's amendments to the hazardous waste regulations are not
effective in authorized States since the requirements are not being
promulgated pursuant to HSWA. Thus, the universal waste standards are
applicable as part of the RCRA program upon the effective date only in
those States that do not have final RCRA authorization. In authorized
States, the amendments will not be applicable until the State revises
its program to adopt equivalent requirements under State law and is
authorized by EPA for the amendments.
It should be noted that authorized States are only required to
modify their programs when EPA promulgates Federal standards that are
more stringent or broader in scope than the existing Federal standards.
Section 3009 of RCRA allows States to impose standards more stringent
than, or in addition to those in the Federal program. The amendments in
today's rule are not considered to be more stringent than the existing
Federal requirements. Therefore, authorized States are not required to
modify their programs to adopt requirements equivalent to the
provisions contained in today's rule.
Even though States are not required to adopt today's rule, EPA
strongly encourages them to do so. In addition to the expected benefits
of the universal waste program discussed in the proposed and final
rules, EPA also believes that the new streamlined approach to
management of universal wastes will contribute to more efficient and
effective State programs. For these reasons, States are therefore urged
to adopt today's rule and submit to EPA the program modification for
approval in advance of, or according to, the schedule that applies to
mandatory program revisions pursuant to 40 CFR 271.21(e).
C. Comments Regarding the Proposed Rule
A number of commenters disagreed with the Agency's conclusion that
the universal waste regulations are based on pre-HSWA authorities in
RCRA. Commenters argued that because the universal waste regulations
will further many of the broad goals outlined in HSWA, EPA could
consider the regulation to be part of HSWA authority. In addition,
several commenters stated that the varying effective dates from State
to State will make participation in multi-state universal waste
collection programs more difficult. These commenters urged the Agency
to promulgate the rule as a HSWA rule in order to ease these
difficulties and speed realization of the benefits of the rule.
Several commenters suggested specific changes to the proposed
universal waste regulations that they argued would be more stringent
than the current hazardous waste program and would allow the Agency to
require authorized states to adopt the universal waste program. A
number of commenters also urged the Agency to promulgate the existing
proposed rule as a more stringent rule ensure that authorized States
would be required to adopt the rule, thus ensuring that it would be
effective in all States. They again noted that having the rule
effective in some States but not others would result in implementation
difficulties. The commenters also note that the full benefits which
could be realized from a national universal waste program may not be
achieved if the program is not implemented in all States across the
country.
The Agency agrees with the aim of those commenters who wish to
achieve the uniform application of the universal waste rule that would
be possible if the rule were to be promulgated under HSWA authority.
However, EPA believes that the authority to promulgate today's
amendments is not sufficiently linked to HSWA provisions to be a rule
implementing HSWA. Thus, the Agency believes that the appropriate
authority for promulgation of this rule is non-HSWA.
The Agency agrees with the commenters that because the promulgated
rule is less stringent than the current RCRA program, difficulties may
arise if the universal waste regulations are not adopted by all States.
However, the changes necessary to make the universal waste rule more
stringent would significantly diminish the benefits to be gained from
this rule. Thus, because today's rule is less stringent than the
existing requirements for managing hazardous wastes, authorized States
are not required to adopt the universal waste regulations.
The Agency is encouraged however, by comments on the proposed rule
received from program offices in 28 different States. The overwhelming
response from these State agencies demonstrates strong support for the
universal waste program. The Agency believes that many States will
modify their current State programs to include the provisions of the
final rule, and strongly encourages States to adopt the universal waste
regulations.
As an incentive to encourage States to adopt the universal waste
regulations, and become authorized for them, EPA is planning to use a
streamlined application procedure. This procedure will reduce in scope
several program revision application components. In addition, EPA will
make electronic versions of this rule and its associated authorization
checklists available on the State Authorization Bulletin Board system.
The Agency believes that these [[Page 25537]] efforts, together with
the aforementioned benefits to be gained from adopting the universal
waste regulations, will help encourage most, if not all, States to
adopt the universal waste regulations within a reasonable period of
time.
D. Universal Waste State Authorization Issues
1. Addition of New Universal Wastes to State Programs
The Agency notes that States, if they so choose, may seek
authorization for the portions of Sec. 260.20 that address petitions to
add new universal wastes, and for 40 CFR 260.23 and subpart G of part
273, which address the petition process and include the factors to be
used to evaluate petitions. The authorization of States for the
petition process is similar in many respects to the authorization of
States for the delisting program (see 40 CFR 260.20 and 260.22) or the
variance from classification as a solid waste (see 40 CFR 260.31).
States authorized for the petition process would use evaluation
factors analogous to those in Sec. 273.81 to review petitions and make
decisions as to whether to add hazardous wastes to the State universal
waste regulations. Management standards for these wastes would also be
developed by the State using the criteria in subpart G of part 273. The
individual wastes and management standards would not be subject to the
authorization revision provisions in 40 CFR 271.21, since the State
would already be authorized for the universal waste regulations and the
regulation of hazardous wastes. Moreover, the State rulemaking
procedures, including those addressing public participation, are
equivalent to the rulemaking procedures EPA employs. Of course, a State
could not approve a petition for a waste it is not authorized to
regulate as hazardous. For example, a State could not approve a
petition for a waste that is hazardous due to the Toxicity
Characteristic (TC) if the State is not authorized for the TC. Although
such a petition would properly be directed to EPA for a decision, the
Agency does not expect this situation to occur frequently.
If an authorized State adds new hazardous wastes to its universal
waste program, management of that waste under the universal waste
regulations would only be allowed within that State or other States
that have added the wastes to their universal waste regulations. Thus,
the waste could be collected and consolidated within a State that has
added a waste, but shipments to a State where the universal waste
standards do not apply to that waste would have to comply with the full
hazardous waste requirements (e.g., for transportation, manifests,
interim storage). It should be noted that States are not required to
apply for or obtain authorization to receive and review petitions to
add new wastes. If they so choose, States may apply for and obtain
authorization to implement the part 273 universal waste regulations
other than subpart G. These States would still have the ability to
adopt wastes that EPA adds to its universal waste program.
2. Authorization for Individual Universal Wastes
In order to aid expedited adoption and authorization of as much of
today's rule as possible, States will not be required to apply for and
obtain authorization to implement the universal waste program for all
wastes covered under the federal program. For example, a State could
choose to include in its authorized program batteries and pesticides,
but not thermostats. EPA believes that this approach will aid quick
adoption for those States that may need to make statutory changes to be
able to implement a universal waste program for a particular
wastestream.
To ensure that all the relevant waste management and transportation
standards apply to a particular universal waste, to obtain
authorization for the universal waste rule, EPA will require States to
adopt all the applicable general standards even if they are applying
for authorization for only one universal waste. EPA believes that this
is a rational approach to this type of adoption, and that it will not
be a significant barrier to authorization. This authorization policy
will be reflected in EPA's authorization guidance on this rule.
3. Interstate Transportation
Several commenters noted that interstate transportation of
universal wastes will be complicated if some States have adopted the
universal waste regulations and some have not. Similar complications
will arise if some states add new wastes to their universal waste
regulations but other states do not add the same wastes. The Agency
believes it is important to explain how the regulations will apply
because interstate transportation will be necessary for many universal
wastes since there may be only a few destination facilities that accept
and manage these wastes.
First, a waste which is subject to the universal waste regulations
may be sent to a state where it is not a universal waste, but it would
be subject to the full hazardous waste regulations in states where it
is not regulated as a universal waste. In this scenario, for the
portion of the trip through the originating state, and any other states
where the waste is a universal waste, a transporter with an EPA
identification number per 263.11 (hazardous waste transporter), or a
manifest would not be required. However, for the portion of the trip
through the receiving state, and any other states that do not consider
the waste to be a universal waste, a manifest is required, and the
waste must be moved by a transporter in compliance with 40 CFR part
263. In order for the final transporter and the receiving facility to
fulfill their requirements concerning the manifest (40 CFR 263.20,
263.21, 263.22, 264.71, 264.72, and 264.76 or 265.71, 265.72, and
265.76), the initiating facility should complete a manifest and forward
it to the first transporter to travel in a state where the waste is not
a universal waste. The receiving facility would sign the manifest and
send a copy to the initiating facility. EPA recommends that the
initiating facility note in block 15 of the manifest (Special Handling
Instructions and Additional Information) that the waste is covered
under universal waste regulations in the initiating state but not in
the receiving facility's state.
Second, a hazardous waste generated in a state which does not
regulate it as a universal waste may be sent to a state where it is a
universal waste. In this scenario, the waste must be moved by a
hazardous waste transporter while the waste is in the generator's
state, or any other states where it is not a universal waste. The
initiating facility would complete a manifest and give copies to the
transporter as required under 40 CFR 262.23(a). Transportation within
the receiving state and any other states that regulate the waste as a
universal waste would not require a manifest or be conducted by a
hazardous waste transporter. However, it is the initiating facility's
responsibility to ensure that the manifest is forwarded to the
receiving facility by any non-hazardous waste transporter and sent back
to the initiating facility by the receiving facility. See 40 CFR 262.23
and 262.42. EPA recommends that the generator note in block 15 of the
manifest (Special Handling Instructions and Additional Information)
that the waste is covered under universal waste regulations in the
receiving facility's state but not in the generator's state.
Third, a waste may be transported across a state in which it is
subject to the full hazardous waste regulations [[Page 25538]] although
other portions of the trip may be from, through, and to states in which
it is covered under universal waste regulations. Transport through the
state must be conducted in a hazardous waste transporter and must be
accompanied by a manifest. In order for the transporter to fulfill its
requirements concerning the manifest (subpart B of part 263), the
initiating facility would complete a manifest as required under the
manifest procedures and forward it to the first transporter to travel
in a state where the waste is not a universal waste. The transporter
would deliver the manifest to, and obtain the signature of either the
next transporter or the receiving facility.
As noted previously, States are not required to adopt today's rule.
However, EPA strongly encourages them to do so. As more states adopt
the program, not only will this assist in achieving the most benefits
of the universal waste program, it will also reduce the complexity of
interstate transport of these universal wastes. In the interim, while
states are in the process of adopting today's rule, the Agency plans to
discuss with the states, an approach for coordinating an interim
implementation strategy.
VI. Executive Order 12866--Regulatory Impacts
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.''
Pursuant to the terms of the Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action''
because it raises novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
This section of the preamble summarizes the costs (savings) and the
cost analysis of the final universal waste regulations. Based upon the
cost analysis, the Agency's best estimate is that the universal waste
regulations may result in nationwide annualized savings of
approximately $76 million.
For the cost analysis, EPA estimated the incremental cost
differences between compliance with the full RCRA Subtitle C
requirements (parts 260-272) and the part 273 standards for universal
waste management. The universal wastes examined for this analysis are:
vented nickel-cadmium batteries, sealed nickel-cadmium batteries,
mercuric-oxide batteries, used mercury-containing thermostats,
cancelled and/or suspended pesticides that are recalled, and unused
pesticide products collected in a waste pesticide collection program.
For recalled pesticides only, EPA assumed that a national pesticide
recall producing hazardous waste would occur once every five years. All
other universal wastes were assumed to be generated and disposed of
annually.
For each of these types of waste, the Agency identified and
estimated the costs of all the requirements that should result in an
incremental cost difference between the existing full RCRA Subtitle C
regulations and the part 273 Rule. EPA reviewed how wastes would move
through the RCRA system from the generator to the final treatment or
disposal facility under each regulatory structure, and identified the
areas where compliance costs would differ from the existing RCRA
Subtitle C requirement costs.
The Subtitle C requirements that differ from those required under
part 273 (and therefore produce an incremental savings) include:
Employee training; maintenance costs for a contingency plan; filing
hazardous waste biennial reports; manifest completion and recordkeeping
per shipment; and Land Disposal Restriction Notification. In addition,
shipping and disposal costs were reduced for some of the universal
wastes because common carriers could be used instead hazardous waste
transporters, and the one-year storage limit under part 273 would allow
handlers to ship less often than under the current Subtitle C and
therefore take advantage of economies of scale.
The Agency considered the annual compliance costs that would result
from four different compliance options under the part 273 Rule for
handlers of each type of battery and for thermostats covered in this
analysis: Shipment of wastes by common carriers (trucks) to a
collection facility; shipping wastes directly to a reclamation facility
via common carriers (trucks); shipment of wastes via a parcel carrier
(i.e., UPS); and, for thermostats only, a reverse distribution system
where handlers ship their used thermostats to Honeywell Corporation,
that then has the mercury-containing component (ampule) of the
thermostat reclaimed by a commercial facility.
For each type of waste handler, the Agency identified the least-
cost method of compliance with part 273 in order to determine the
savings that would result from handlers no longer subject to the
requirements of 40 CFR parts 262-270.
The least-cost method of compliance with part 273 yielded annual
national cost estimates (of those elements expected to vary between the
current RCRA Subtitle C requirements and the part 273 requirements) of
$0.3 million for vented nickel-cadmium batteries, $10.3 million for
sealed nickel-cadmium batteries, $1.6 million for mercuric-oxide
batteries, and $1.2 million for used mercury-containing thermostats,
for an annual cost of $13.4 million for battery and thermostat waste.
Subtitle C national annual costs (of those elements expected to vary
between the current RCRA Subtitle C requirements and the part 273
requirements) for battery and thermostat waste are estimated to be
$46.2 million, resulting in an annual savings of $32.9 million per year
for battery and thermostat waste.
For recalled pesticides, part 273 costs (of those elements expected
to vary between the current RCRA Subtitle C requirements and the part
273 requirements) are estimated to be $15.5 million per recall, while
Subtitle C requirement costs (of those elements expected to vary
between the full RCRA Subtitle C requirements and the part 273
requirements) are estimated to be $230.0 million per recall, resulting
in a savings of $214.5 million per recall. Assuming one recall every
five years, and a seven percent discount rate, the annualized savings
for recalled pesticides is $42.7 million per year.
For unused pesticide products collected in a waste pesticide
collection program, part 273 annual costs (of those elements expected
to vary between the current RCRA Subtitle C requirements and the part
273 requirements) are estimated to be $130,000, while Subtitle C
requirement costs (of those elements [[Page 25539]] expected to vary
between the full RCRA Subtitle C requirements and the part 273
requirements) are estimated to be $360,000, resulting in an annual
savings of $230,000 per year for unused pesticide products collected
under waste pesticide collection programs.
Summing up the savings from the various universal wastes, the
Agency's best estimate of the total annualized savings of today's rule
is $76 million. A complete discussion of the cost analysis is available
in the regulatory docket for today's rule.
VII. Paperwork Reduction Act
The information collection requirements in this rule have been
approved by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and have been assigned
control number 2050-0145.
This collection of information has a reporting burden per response
of 0 hours for Small Quantity Handlers of Universal Waste, 4 minutes
for Large Quantity Handlers of Universal Waste, and 12 hours for
Destination Facilities; and an estimated annual recordkeeping burden
averaging 1.6 hours per respondent. These estimates include time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden to Chief, Information Policy Branch; EPA; 401 M St., SW. (Mail
Code 2136); Washington, DC 20460; and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC
20503, marked ``Attention: Desk Officer for EPA.''
Display of OMB Control Numbers
EPA is also amending the table of currently approved information
collection request (ICR) control numbers issued by OMB for various
regulations. This amendment updates the table to accurately display
those information requirements contained in this final rule. This
display of the OMB control number and its subsequent codification in
the Code of Federal Regulations satisfies the requirements of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and OMB's implementing
regulations at 5 CFR part 1320.
The ICR was previously subject to public notice and comment prior
to OMB approval. As a result, EPA finds that there is ``good cause''
under section 553(b)(B) of the Administrative Procedure Act (5 U.S.C.
553(b)(B)) to amend this table without prior notice and comment. Due to
the technical nature of the table, further notice and comment would be
unnecessary. For the same reasons, EPA also finds that there is good
cause under 5 U.S.C. 553(d)(3).
VIII. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980, 5 U.S.C. 601 et seq.,
requires federal agencies to consider ``small entities'' throughout the
regulatory process. Section 603 of the RFA requires an initial
screening analysis to be performed to determine whether small entities
will be affected by the regulation. If affected small entities are
identified, regulatory alternatives must be considered to mitigate the
potential impacts. Small entities as described in the Act are only
those ``businesses, organizations and governmental jurisdictions
subject to regulation.''
The only entities directly subject to today's final rule are small
and large quantity handlers of universal waste batteries, pesticides,
and thermostats (who generate more than 100 kilograms of hazardous
waste), and transporters and collectors of universal waste batteries,
pesticides, and thermostats. Conditionally exempt small quantity
generators (who generate less than 100 kilograms of hazardous waste)
are not directly subject to today's rule. It is likely that some small
and large quantity generators, transporters, and collectors of
universal waste would meet the definition of ``small business'' as
defined by the RFA. However, the Agency does not have an estimate of
the number of such ``small entities.'' However, the universal waste
regulations are expected to result in net savings to any regulated
entities because it reduces requirements overall for these entities.
Thus, since the impacts are positive for all regulated entities,
including ``small entities,'' EPA has determined that small regulated
entities will not be adversely impacted. Accordingly, I hereby certify,
pursuant to 5 U.S.C. 601(b), that this rule will not have a significant
impact on a substantial number of small entities.
IX. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a statement to
accompany any rule where the estimated costs to State, local, or tribal
governments in the aggregate, or to the private sector, will be $100
million or more in any one year. Under section 205, EPA must select the
most cost-effective and least burdensome alternative that achieves the
objective of the rule and is consistent with statutory requirements.
Section 203 requires EPA to establish a plan for informing and advising
any small governments that may be significantly impacted by the rule.
EPA has determined that this rule does not include a Federal
mandate that may result in estimated costs of $100 million or more to
either State, local or tribal governments in the aggregate, or to the
private sector.
List of Subjects
40 CFR Part 260
Administrative practice and procedure, Confidential business
information, Hazardous materials, Recycling, Reporting and
recordkeeping, Waste treatment or disposal.
40 CFR Part 261
Hazardous materials, Recycling, Waste treatment and disposal.
40 CFR Part 262
Administrative practice and procedure, Hazardous materials,
Reporting and recordkeeping.
40 CFR Parts 264 and 265
Hazardous materials, Packaging and containers, Reporting and
recordkeeping requirements, Security measures, Surety bonds, Waste
treatment and disposal.
40 CFR Part 266
Hazardous waste, Management, Spent lead-acid batteries.
40 CFR Part 268
Hazardous waste, Reporting and recordkeeping requirements.
40 CFR Part 270
Hazardous materials, Packaging and containers, Reporting and
recordkeeping requirements, Waste treatment and disposal.
40 CFR Part 273
Hazardous materials, Packaging and containers.
Dated: April 25, 1995.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40 of the Code of
Federal Regulations is amended as follows:
PART 9--[AMENDED]
1. In Part 9:
a. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321, [[Page 25540]] 1326,
1330, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g,
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2,
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542,
9601-9657, 11023, 11048.
b. Section 9.1 is amended by adding a new center heading and new
entries to the table to read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
OMB control
40 CFR citation No.
------------------------------------------------------------------------
* * * * *
Hazardous Waste Management System:
General
260.23................................................... 2050-0145
* * * * *
Standards for Universal Waste Management:
273.14................................................... 2050-0145
273.15................................................... 2050-0145
273.18................................................... 2050-0145
273.32................................................... 2050-0145
273.34................................................... 2050-0145
273.35................................................... 2050-0145
273.38................................................... 2050-0145
273.39................................................... 2050-0145
273.61................................................... 2050-0145
273.62................................................... 2050-0145
273.80................................................... 2050-0145
* * * * *
------------------------------------------------------------------------
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
1. The authority citation for part 260 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6938, 6939, and 6974.
Subpart B--Definitions
2. Section 260.10 is amended by revising the introductory text and
adding, in alphabetical order, definitions for ``battery,''
``destination facility,'' ``pesticide,'' ``thermostat,'' ``universal
waste,'' ``universal waste handler,'' and ``universal waste
transporter'' to read as follows:
Sec. 260.10 Definitions.
When used in parts 260 through 266, 268, and 270 through 273 of
this chapter, the following terms have the meanings given below:
* * * * *
Battery means a device consisting of one or more electrically
connected electrochemical cells which is designed to receive, store,
and deliver electric energy. An electrochemical cell is a system
consisting of an anode, cathode, and an electrolyte, plus such
connections (electrical and mechanical) as may be needed to allow the
cell to deliver or receive electrical energy. The term battery also
includes an intact, unbroken battery from which the electrolyte has
been removed.
* * * * *
Destination facility means a facility that treats, disposes of, or
recycles a particular category of universal waste, except those
management activities described in paragraphs (a) and (c) of
Secs. 273.13 and 273.33 of this chapter. A facility at which a
particular category of universal waste is only accumulated, is not a
destination facility for purposes of managing that category of
universal waste.
* * * * *
Pesticide means any substance or mixture of substances intended for
preventing, destroying, repelling, or mitigating any pest, or intended
for use as a plant regulator, defoliant, or desiccant, other than any
article that:
(1) Is a new animal drug under FFDCA section 201(w), or
(2) Is an animal drug that has been determined by regulation of the
Secretary of Health and Human Services not to be a new animal drug, or
(3) Is an animal feed under FFDCA section 201(x) that bears or
contains any substances described by paragraph (1) or (2) of this
definition.
* * * * *
Thermostat means a temperature control device that contains
metallic mercury in an ampule attached to a bimetal sensing element,
and mercury-containing ampules that have been removed from these
temperature control devices in compliance with the requirements of 40
CFR 273.13(c)(2) or 273.33(c)(2).
* * * * *
Universal Waste means any of the following hazardous wastes that
are managed under the universal waste requirements of 40 CFR part 273:
(1) Batteries as described in 40 CFR 273.2;
(2) Pesticides as described in 40 CFR 273.3; and
(3) Thermostats as described in 40 CFR 273.4.
* * * * *
Universal Waste Handler:
(1) Means:
(i) A generator (as defined in this section) of universal waste; or
(ii) The owner or operator of a facility, including all contiguous
property, that receives universal waste from other universal waste
handlers, accumulates universal waste, and sends universal waste to
another universal waste handler, to a destination facility, or to a
foreign destination.
(2) Does not mean:
(i) A person who treats (except under the provisions of 40 CFR
273.13 (a) or (c), or 273.33 (a) or (c)), disposes of, or recycles
universal waste; or
(ii) A person engaged in the off-site transportation of universal
waste by air, rail, highway, or water, including a universal waste
transfer facility.
* * * * *
Universal Waste Transporter means a person engaged in the off-site
transportation of universal waste by air, rail, highway, or water.
* * * * *
Subpart C--Rulemaking Petitions
3. Section 260.20 paragraph (a) is revised to read as follows:
Sec. 260.20 General.
(a) Any person may petition the Administrator to modify or revoke
any provision in parts 260 through 266, 268 and 273 of this chapter.
This section sets forth general requirements which apply to all such
petitions. Section 260.21 sets forth additional requirements for
petitions to add a testing or analytical method to part 261, 264 or 265
of this chapter. Section 260.22 sets forth additional requirements for
petitions to exclude a waste or waste-derived material at a particular
facility from Sec. 261.3 of this chapter or the lists of hazardous
wastes in subpart D of part 261 of this chapter. Section 260.23 sets
forth additional requirements for petitions to amend part 273 of this
chapter to include additional hazardous wastes or categories of
hazardous waste as universal waste.
* * * * *
4. Section 260.23 is added to read as follows:
Sec. 260.23 Petitions to amend 40 CFR part 273 to include additional
hazardous wastes.
(a) Any person seeking to add a hazardous waste or a category of
hazardous waste to the universal waste regulations of part 273 of this
chapter may petition for a regulatory amendment under this section, 40
CFR 260.20, and subpart G of 40 CFR part 273.
(b) To be successful, the petitioner must demonstrate to the
satisfaction of the Administrator that regulation under the universal
waste regulations of 40 CFR part 273: Is appropriate for the waste or
category of waste; will improve management practices for the waste or
category of waste; and will improve [[Page 25541]] implementation of
the hazardous waste program. The petition must include the information
required by 40 CFR 260.20(b). The petition should also address as many
of the factors listed in 40 CFR 273.81 as are appropriate for the waste
or category of waste addressed in the petition.
(c) The Administrator will grant or deny a petition using the
factors listed in 40 CFR 273.81. The decision will be based on the
weight of evidence showing that regulation under 40 CFR part 273 is
appropriate for the waste or category of waste, will improve management
practices for the waste or category of waste, and will improve
implementation of the hazardous waste program.
(d) The Administrator may request additional information needed to
evaluate the merits of the petition.
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
5. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
Subpart A--General
6. Section 261.5 is amended by revising paragraphs (c), (f)(3), and
(g)(3) to read as follows:
Sec. 261.5 Special requirements for hazardous waste generated by
conditionally exempt small quantity generators.
* * * * *
(c) When making the quantity determinations of this part and 40 CFR
part 262, the generator must include all hazardous waste that it
generates, except hazardous waste that:
(1) Is exempt from regulation under 40 CFR 261.4(c) through (f),
261.6(a)(3), 261.7(a)(1), or 261.8; or
(2) Is managed immediately upon generation only in on-site
elementary neutralization units, wastewater treatment units, or totally
enclosed treatment facilities as defined in 40 CFR 260.10; or
(3) Is recycled, without prior storage or accumulation, only in an
on-site process subject to regulation under 40 CFR 261.6(c)(2); or
(4) Is used oil managed under the requirements of 40 CFR
261.6(a)(4) and 40 CFR part 279; or
(5) Is spent lead-acid batteries managed under the requirements of
40 CFR part 266, subpart G; or
(6) Is universal waste managed under 40 CFR 261.9 and 40 CFR part
273.
* * * * *
(f) * * *
(3) A conditionally exempt small quantity generator may either
treat or dispose of his acute hazardous waste in an on-site facility or
ensure delivery to an off-site treatment, storage or disposal facility,
either of which, if located in the U.S., is:
(i) Permitted under part 270 of this chapter;
(ii) In interim status under parts 270 and 265 of this chapter;
(iii) Authorized to manage hazardous waste by a State with a
hazardous waste management program approved under part 271 of this
chapter;
(iv) Permitted, licensed, or registered by a State to manage
municipal or industrial solid waste;
(v) A facility which:
(A) Beneficially uses or reuses, or legitimately recycles or
reclaims its waste; or
(B) Treats its waste prior to beneficial use or reuse, or
legitimate recycling or reclamation; or
(vi) For universal waste managed under part 273 of this chapter, a
universal waste handler or destination facility subject to the
requirements of part 273 of this chapter.
* * * * *
(g) * * *
(3) A conditionally exempt small quantity generator may either
treat or dispose of his hazardous waste in an on-site facility or
ensure delivery to an off-site treatment, storage or disposal facility,
either of which, if located in the U.S., is:
(i) Permitted under part 270 of this chapter;
(ii) In interim status under parts 270 and 265 of this chapter;
(iii) Authorized to manage hazardous waste by a State with a
hazardous waste management program approved under part 271 of this
chapter;
(iv) Permitted, licensed, or registered by a State to manage
municipal or industrial solid waste;
(v) A facility which:
(A) Beneficially uses or reuses, or legitimately recycles or
reclaims its waste; or
(B) Treats its waste prior to beneficial use or reuse, or
legitimate recycling or reclamation; or
(vi) For universal waste managed under part 273 of this chapter, a
universal waste handler or destination facility subject to the
requirements of part 273 of this chapter.
* * * * *
7. Section 261.6 is amended by removing paragraph (a)(3)(ii) and
redesignating paragraphs (a)(3)(iii) through (a)(3)(vii) as paragraphs
(a)(3)(ii) through (a)(3)(vi).
8. Section 261.9 is added to subpart read as follows:
Sec. 261.9 Requirements for Universal Waste.
The wastes listed in this section are exempt from regulation under
parts 262 through 270 of this chapter except as specified in part 273
of this chapter and, therefore are not fully regulated as hazardous
waste. The wastes listed in this section are subject to regulation
under 40 CFR part 273:
(a) Batteries as described in 40 CFR 273.2;
(b) Pesticides as described in 40 CFR 273.3; and
(c) Thermostats as described in 40 CFR 273.4.
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
9. The authority citation for part 262 continues to read as
follows:
Authority: 42 U.S.C. 6906, 6912(a), 6922, 6923, 6924, 6925, 6937
and 6938.
Subpart A--General
10. Section 262.10 is amended by redesignating existing paragraphs
(b) through (f) as (c) through (g).
11. Section 262.10 is amended by adding a new paragraph (b) to read
as follows:
Sec. 262.10 Purpose, scope and applicability.
* * * * *
(b) 40 CFR 261.5(c) and (d) must be used to determine the
applicability of provisions of this part that are dependent on
calculations of the quantity of hazardous waste generated per month.
* * * * *
12. Section 262.11 is amended by revising paragraph (d) to read as
follows:
Sec. 262.11 Hazardous waste determination.
* * * * *
(d) If the waste is determined to be hazardous, the generator must
refer to parts 261, 264, 265, 266, 268, and 273 of this chapter for
possible exclusions or restrictions pertaining to management of the
specific waste.
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
13. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
[[Page 25542]]
Subpart A--General
14. Section 264.1 is amended by adding a new paragraph (g)(11) as
follows:
Sec. 264.1 Purpose, scope and applicability.
* * * * *
(g) * * *
(11) Universal waste handlers and universal waste transporters (as
defined in 40 CFR 260.10) handling the wastes listed below. These
handlers are subject to regulation under 40 CFR part 273, when handling
the below listed universal wastes.
(i) Batteries as described in 40 CFR 273.2;
(ii) Pesticides as described in 40 CFR 273.3; and
(iii) Thermostats as described in 40 CFR 273.4.
* * * * *
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE AND DISPOSAL FACILITIES
15. The authority citation for part 265 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, 6925, 6935 and 6936.
Subpart A--General
16. Section 265.1 is amended by adding a new paragraph (c)(14) to
read as follows:
Sec. 265.1 Purpose, scope and applicability.
* * * * *
(c) * * *
(14) Universal waste handlers and universal waste transporters (as
defined in 40 CFR 260.10) handling the wastes listed below. These
handlers are subject to regulation under 40 CFR part 273, when handling
the below listed universal wastes.
(i) Batteries as described in 40 CFR 273.2;
(ii) Pesticides as described in 40 CFR 273.3; and
(iii) Thermostats as described in 40 CFR 273.4.
* * * * *
PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
17. The authority citation for part 266 continues to read as
follows:
Authority: Secs. 1006, 2002(a), 3004, and 3014 of the Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C. 6905, 6912(a), 6924, and
6934.
Subpart G--Spent Lead Acid Batteries Being Reclaimed
18. Section 266.80 is amended by revising paragraphs (a) and (b) to
read as follows:
Sec. 266.80 Applicability and requirements.
(a) The regulations of this subpart apply to persons who reclaim
(including regeneration) spent lead-acid batteries that are recyclable
materials (``spent batteries''). Persons who generate, transport, or
collect spent batteries, who regenerate spent batteries, or who store
spent batteries but do not reclaim them (other than spent batteries
that are to be regenerated) are not subject to regulation under parts
262 through 266 or part 270 or 124 of this chapter, and also are not
subject to the requirements of section 3010 of RCRA.
(b) Owners or operators of facilities that store spent lead acid
batteries before reclaiming (other than spent batteries that are to be
regenerated) them are subject to the following requirements.
* * * * *
PART 268--LAND DISPOSAL RESTRICTIONS
19. The authority citation for part 268 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
Subpart A--General
20. Section 268.1 is amended by adding paragraph (f) to read as
follows:
Sec. 268.1 Purpose, scope and applicability.
* * * * *
(f) Universal waste handlers and universal waste transporters (as
defined in 40 CFR 260.10) are exempt from 40 CFR 268.7 and 268.50 for
the hazardous wastes listed below. These handlers are subject to
regulation under 40 CFR part 273.
(1) Batteries as described in 40 CFR 273.2;
(2) Pesticides as described in 40 CFR 273.3; and
(3) Thermostats as described in 40 CFR 273.4.
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
21. The authority citation for part 270 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
Subpart A--General Information
22. Section 270.1 is amended by adding a new paragraph (c)(2)(viii)
to read as follows:
Sec. 270.1 Purpose and scope of these regulations.
* * * * *
(c) * * *
(2) * * *
(viii) Universal waste handlers and universal waste transporters
(as defined in 40 CFR 260.10) managing the wastes listed below. These
handlers are subject to regulation under 40 part CFR 273.
(A) Batteries as described in 40 CFR 273.2;
(B) Pesticides as described in 40 CFR 273.3; and
(C) Thermostats as described in 40 CFR 273.4.
* * * * *
23. Title 40 of the Code of Federal Regulations is amended by
adding part 273 to read as follows:
PART 273--STANDARDS FOR UNIVERSAL WASTE MANAGEMENT
Subpart A--General
273.1 Scope.
273.2 Applicability--batteries.
273.3 Applicability--pesticides.
273.4 Applicability--thermostats.
273.5 Applicability--household and conditionally exempt small
quantity generator waste.
273.6 Definitions.
Subpart B--Standards for Small Quantity Handlers of Universal Waste
273.10 Applicability.
273.11 Prohibitions.
273.12 Notification.
273.13 Waste management.
273.14 Labeling/marking.
273.15 Accumulation time limits.
273.16 Employee training.
273.17 Response to releases.
273.18 Off-site shipments.
273.19 Tracking universal waste shipments.
273.20 Exports.
Subpart C--Standards for Large Quantity Handlers of Universal Waste
273.30 Applicability.
273.31 Prohibitions.
273.32 Notification.
273.33 Waste management.
273.34 Labeling/marking.
273.35 Accumulation time limits.
273.36 Employee training.
273.37 Response to releases.
273.38 Off-site shipments.
273.39 Tracking universal waste shipments.
273.40 Exports.
Subpart D--Standards for Universal Waste Transporters
273.50 Applicability.
273.51 Prohibitions.
273.52 Waste management.
273.53 Accumulation time limits. [[Page 25543]]
273.54 Response to releases.
273.55 Off-site shipments.
273.56 Exports.
Subpart E--Standards for Destination facilities
273.60 Applicability.
273.61 Off-site shipments.
273.62 Tracking universal waste shipments.
Subpart F--Import requirements
273.70 Imports.
Subpart G--Petitions to Include Other Wastes Under 40 CFR Part 273
273.80 General.
273.81 Factors for Petitions to Include Other Wastes under 40 CFR
Part 273.
Authority: 42 U.S.C. 6922, 6923, 6924, 6925, 6930, and 6937.
Subpart A--General
Sec. 273.1 Scope.
(a) This part establishes requirements for managing the following:
(1) Batteries as described in 40 CFR 273.2;
(2) Pesticides as described in 40 CFR 273.3; and
(3) Thermostats as described in 40 CFR 273.4.
(b) This part provides an alternative set of management standards
in lieu of regulation under 40 CFR parts 260 through 272.
Sec. 273.2 Applicability--batteries.
(a) Batteries covered under 40 CFR part 273. (1) The requirements
of this part apply to persons managing batteries, as described in
Sec. 273.6, except those listed in paragraph (b) of this section.
(2) Spent lead-acid batteries which are not managed under 40 CFR
part 266, subpart G, are subject to management under this part.
(b) Batteries not covered under 40 CFR part 273. The requirements
of this part do not apply to persons managing the following batteries:
(1) Spent lead-acid batteries that are managed under 40 CFR part
266, subpart G.
(2) Batteries, as described in Sec. 273.6, that are not yet wastes
under part 261 of this chapter, including those that do not meet the
criteria for waste generation in paragraph (c) of this section.
(3) Batteries, as described in Sec. 273.6, that are not hazardous
waste. A battery is a hazardous waste if it exhibits one or more of the
characteristics identified in 40 CFR part 261, subpart C.
(c) Generation of waste batteries. (1) A used battery becomes a
waste on the date it is discarded (e.g., when sent for reclamation).
(2) An unused battery becomes a waste on the date the handler
decides to discard it.
Sec. 273.3 Applicability--pesticides.
(a) Pesticides covered under 40 CFR part 273. The requirements of
this part apply to persons managing pesticides, as described in
Sec. 273.6, meeting the following conditions, except those listed in
paragraph (b) of this section:
(1) Recalled pesticides that are:
(i) Stocks of a suspended and canceled pesticide that are part of a
voluntary or mandatory recall under FIFRA Section 19(b), including, but
not limited to those owned by the registrant responsible for conducting
the recall; or
(ii) Stocks of a suspended or cancelled pesticide, or a pesticide
that is not in compliance with FIFRA, that are part of a voluntary
recall by the registrant.
(2) Stocks of other unused pesticide products that are collected
and managed as part of a waste pesticide collection program.
(b) Pesticides not covered under 40 CFR part 273. The requirements
of this part do not apply to persons managing the following pesticides:
(1) Recalled pesticides described in paragraph (a)(1) of this
section, and unused pesticide products described in paragraph (a)(2) of
this section, that are managed by farmers in compliance with 40 CFR
262.70. (40 CFR 262.70 addresses pesticides disposed of on the farmer's
own farm in a manner consistent with the disposal instructions on the
pesticide label, providing the container is triple rinsed in accordance
with 40 CFR 261.7(b)(3));
(2) Pesticides not meeting the conditions set forth in paragraph
(a) of this section. These pesticides must be managed in compliance
with the hazardous waste regulations in 40 CFR parts 260 through 272;
(3) Pesticides that are not wastes under part 261 of this chapter,
including those that do not meet the criteria for waste generation in
paragraph (c) of this section or those that are not wastes as described
in paragraph (d) of this section; and
(4) Pesticides that are not hazardous waste. A pesticide is a
hazardous waste if it is listed in 40 CFR part 261, subpart D or if it
exhibits one or more of the characteristics identified in 40 CFR part
261, subpart C.
(c) When a pesticide becomes a waste. (1) A recalled pesticide
described in paragraph (a)(1) of this section becomes a waste on the
first date on which both of the following conditions apply:
(i) The generator of the recalled pesticide agrees to participate
in the recall; and
(ii) The person conducting the recall decides to discard (e.g.,
burn the pesticide for energy recovery).
(2) An unused pesticide product described in paragraph (a)(2) of
this section becomes a waste on the date the generator decides to
discard it.
(d) Pesticides that are not wastes. The following pesticides are
not wastes:
(1) Recalled pesticides described in paragraph (a)(1) of this
section, provided that the person conducting the recall:
(i) Has not made a decision to discard (e.g., burn for energy
recovery) the pesticide. Until such a decision is made, the pesticide
does not meet the definition of ``solid waste'' under 40 CFR 261.2;
thus the pesticide is not a hazardous waste and is not subject to
hazardous waste requirements, including this part 273. This pesticide
remains subject to the requirements of FIFRA; or
(ii) Has made a decision to use a management option that, under 40
CFR 261.2, does not cause the pesticide to be a solid waste (i.e., the
selected option is use (other than use constituting disposal) or reuse
(other than burning for energy recovery), or reclamation). Such a
pesticide is not a solid waste and therefore is not a hazardous waste,
and is not subject to the hazardous waste requirements including this
part 273. This pesticide, including a recalled pesticide that is
exported to a foreign destination for use or reuse, remains subject to
the requirements of FIFRA.
(2) Unused pesticide products described in paragraph (a)(2) of this
section, if the generator of the unused pesticide product has not
decided to discard (e.g., burn for energy recovery) them. These
pesticides remain subject to the requirements of FIFRA.
Sec. 273.4 Applicability--mercury thermostats.
(a) Thermostats covered under 40 CFR part 273. The requirements of
this part apply to persons managing thermostats, as described in
Sec. 273.6, except those listed in paragraph (b) of this section.
(b) Thermostats not covered under 40 CFR part 273. The requirements
of this part do not apply to persons managing the following
thermostats:
(1) Thermostats that are not yet wastes under part 261 of this
chapter. Paragraph (c) of this section describes when thermostats
become wastes.
(2) Thermostats that are not hazardous waste. A thermostat is a
hazardous waste if it exhibits one or more of the characteristics
identified in 40 CFR part 261, subpart C.
(c) Generation of waste thermostats. (1) A used thermostat becomes
a waste [[Page 25544]] on the date it is discarded (e.g., sent for
reclamation).
(2) An unused thermostat becomes a waste on the date the handler
decides to discard it.
Sec. 273.5 Applicability--household and conditionally exempt small
quantity generator waste.
(a) Persons managing the wastes listed below may, at their option,
manage them under the requirements of this part:
(1) Household wastes that are exempt under 40 CFR 261.4(b)(1) and
are also of the same type as the universal wastes defined at 40 CFR
273.6; and/or
(2) Conditionally exempt small quantity generator wastes that are
exempt under 40 CFR 261.5 and are also of the same type as the
universal wastes defined at 40 CFR 273.6.
(b) Persons who commingle the wastes described in paragraphs (a)(1)
and (a)(2) of this section together with universal waste regulated
under this part must manage the commingled waste under the requirements
of this part.
Sec. 273.6 Definitions.
Battery means a device consisting of one or more electrically
connected electrochemical cells which is designed to receive, store,
and deliver electric energy. An electrochemical cell is a system
consisting of an anode, cathode, and an electrolyte, plus such
connections (electrical and mechanical) as may be needed to allow the
cell to deliver or receive electrical energy. The term battery also
includes an intact, unbroken battery from which the electrolyte has
been removed.
Destination facility means a facility that treats, disposes of, or
recycles a particular category of universal waste, except those
management activities described in Sec. 273.13 (a) and (c) and
Sec. 273.33 (a) and (c). A facility at which a particular category of
universal waste is only accumulated, is not a destination facility for
purposes of managing that category of universal waste.
FIFRA means the Federal Insecticide, Fungicide, and Rodenticide Act
(7 U.S.C. 136-136y).
Generator means any person, by site, whose act or process produces
hazardous waste identified or listed in part 261 of this chapter or
whose act first causes a hazardous waste to become subject to
regulation.
Large Quantity Handler of Universal Waste means a universal waste
handler (as defined in this section) who accumulates 5,000 kilograms or
more total of universal waste (batteries, pesticides, or thermostats,
calculated collectively) at any time. This designation as a large
quantity handler of universal waste is retained through the end of the
calendar year in which 5,000 kilograms or more total of universal waste
is accumulated.
On-site means the same or geographically contiguous property which
may be divided by public or private right-of-way, provided that the
entrance and exit between the properties is at a cross-roads
intersection, and access is by crossing as opposed to going along the
right of way. Non-contiguous properties owned by the same person but
connected by a right-of-way which he controls and to which the public
does not have access, are also considered on-site property.
Pesticide means any substance or mixture of substances intended for
preventing, destroying, repelling, or mitigating any pest, or intended
for use as a plant regulator, defoliant, or desiccant, other than any
article that:
(a) Is a new animal drug under FFDCA section 201(w), or
(b) Is an animal drug that has been determined by regulation of the
Secretary of Health and Human Services not to be a new animal drug, or
(c) Is an animal feed under FFDCA section 201(x) that bears or
contains any substances described by paragraph (a) or (b) of this
section.
Small Quantity Handler of Universal Waste means a universal waste
handler (as defined in this section) who does not accumulate more than
5,000 kilograms total of universal waste (batteries, pesticides, or
thermostats, calculated collectively) at any time.
Thermostat means a temperature control device that contains
metallic mercury in an ampule attached to a bimetal sensing element,
and mercury-containing ampules that have been removed from these
temperature control devices in compliance with the requirements of 40
CFR 273.13(c)(2) or 273.33(c)(2).
Universal Waste means any of the following hazardous wastes that
are subject to the universal waste requirements of 40 CFR part 273:
(a) Batteries as described in 40 CFR 273.2;
(b) Pesticides as described in 40 CFR 273.3; and
(c) Thermostats as described in 40 CFR 273.4.
Universal Waste Handler:
(a) Means:
(1) A generator (as defined in this section) of universal waste; or
(2) The owner or operator of a facility, including all contiguous
property, that receives universal waste from other universal waste
handlers, accumulates universal waste, and sends universal waste to
another universal waste handler, to a destination facility, or to a
foreign destination.
(b) Does not mean:
(1) A person who treats (except under the provisions of 40 CFR
273.13 (a) or (c), or 273.33 (a) or (c)), disposes of, or recycles
universal waste; or
(2) A person engaged in the off-site transportation of universal
waste by air, rail, highway, or water, including a universal waste
transfer facility.
Universal Waste Transfer Facility means any transportation-related
facility including loading docks, parking areas, storage areas and
other similar areas where shipments of universal waste are held during
the normal course of transportation for ten days or less.
Universal Waste Transporter means a person engaged in the off-site
transportation of universal waste by air, rail, highway, or water.
Subpart B--Standards for Small Quantity Handlers of Universal Waste
Sec. 273.10 Applicability.
This subpart applies to small quantity handlers of universal waste
(as defined in 40 CFR 273.6).
Sec. 273.11 Prohibitions.
A small quantity handler of universal waste is:
(a) Prohibited from disposing of universal waste; and
(b) Prohibited from diluting or treating universal waste, except by
responding to releases as provided in 40 CFR 273.17; or by managing
specific wastes as provided in 40 CFR 273.13.
Sec. 273.12 Notification.
A small quantity handler of universal waste is not required to
notify EPA of universal waste handling activities.
Sec. 273.13 Waste management.
(a) Universal waste batteries. A small quantity handler of
universal waste must manage universal waste batteries in a way that
prevents releases of any universal waste or component of a universal
waste to the environment, as follows:
(1) A small quantity handler of universal waste must contain any
universal waste battery that shows evidence of leakage, spillage, or
damage that could cause leakage under reasonably foreseeable conditions
in a container. The container must be closed, structurally sound,
compatible with the contents of the battery, and must lack evidence of
leakage, spillage, or damage that could cause leakage under reasonably
foreseeable conditions. [[Page 25545]]
(2) A small quantity handler of universal waste may conduct the
following activities as long as the casing of each individual battery
cell is not breached and remains intact and closed (except that cells
may be opened to remove electrolyte but must be immediately closed
after removal):
(i) Sorting batteries by type;
(ii) Mixing battery types in one container;
(iii) Discharging batteries so as to remove the electric charge;
(iv) Regenerating used batteries;
(v) Disassembling batteries or battery packs into individual
batteries or cells;
(vi) Removing batteries from consumer products; or
(vii) Removing electrolyte from batteries.
(3) A small quantity handler of universal waste who removes
electrolyte from batteries, or who generates other solid waste (e.g.,
battery pack materials, discarded consumer products) as a result of the
activities listed above, must determine whether the electrolyte and/or
other solid waste exhibit a characteristic of hazardous waste
identified in 40 CFR part 261, subpart C.
(i) If the electrolyte and/or other solid waste exhibit a
characteristic of hazardous waste, it is subject to all applicable
requirements of 40 CFR parts 260 through 272. The handler is considered
the generator of the hazardous electrolyte and/or other waste and is
subject to 40 CFR part 262.
(ii) If the electrolyte or other solid waste is not hazardous, the
handler may manage the waste in any way that is in compliance with
applicable federal, state or local solid waste regulations.
(b) Universal waste pesticides. A small quantity handler of
universal waste must manage universal waste pesticides in a way that
prevent releases of any universal waste or component of a universal
waste to the environment. The universal waste pesticides must be
contained in one or more of the following:
(1) A container that remains closed, structurally sound, compatible
with the pesticide, and that lacks evidence of leakage, spillage, or
damage that could cause leakage under reasonably foreseeable
conditions; or
(2) A container that does not meet the requirements of paragraph
(b)(1) of this Section, provided that the unacceptable container is
overpacked in a container that does meet the requirements of paragraph
(b)(1) of this Section; or
(3) A tank that meets the requirements of 40 CFR part 265 subpart
J, except for 40 CFR 265.197(c), 265.200, and 265.201; or
(4) A transport vehicle or vessel that is closed, structurally
sound, compatible with the pesticide, and that lacks evidence of
leakage, spillage, or damage that could cause leakage under reasonably
foreseeable conditions.
(c) Universal waste thermostats. A small quantity handler of
universal waste must manage universal waste thermostats in a way that
prevents releases of any universal waste or component of a universal
waste to the environment, as follows:
(1) A small quantity handler of universal waste must contain any
universal waste thermostat that shows evidence of leakage, spillage, or
damage that could cause leakage under reasonably foreseeable conditions
in a container. The container must be closed, structurally sound,
compatible with the contents of the thermostat, and must lack evidence
of leakage, spillage, or damage that could cause leakage under
reasonably foreseeable conditions.
(2) A small quantity handler of universal waste may remove mercury-
containing ampules from universal waste thermostats provided the
handler:
(i) Removes the ampules in a manner designed to prevent breakage of
the ampules;
(ii) Removes ampules only over or in a containment device (e.g.,
tray or pan sufficient to collect and contain any mercury released from
an ampule in case of breakage);
(iii) Ensures that a mercury clean-up system is readily available
to immediately transfer any mercury resulting from spills or leaks from
broken ampules, from the containment device to a container that meets
the requirements of 40 CFR 262.34;
(iv) Immediately transfers any mercury resulting from spills or
leaks from broken ampules from the containment device to a container
that meets the requirements of 40 CFR 262.34;
(v) Ensures that the area in which ampules are removed is well
ventilated and monitored to ensure compliance with applicable OSHA
exposure levels for mercury;
(vi) Ensures that employees removing ampules are thoroughly
familiar with proper waste mercury handling and emergency procedures,
including transfer of mercury from containment devices to appropriate
containers;
(vii) Stores removed ampules in closed, non-leaking containers that
are in good condition;
(viii) Packs removed ampules in the container with packing
materials adequate to prevent breakage during storage, handling, and
transportation; and
(3)(i) A small quantity handler of universal waste who removes
mercury-containing ampules from thermostats must determine whether the
following exhibit a characteristic of hazardous waste identified in 40
CFR part 261, subpart C:
(A) Mercury or clean-up residues resulting from spills or leaks;
and/or
(B) Other solid waste generated as a result of the removal of
mercury-containing ampules (e.g., remaining thermostat units).
(ii) If the mercury, residues, and/or other solid waste exhibit a
characteristic of hazardous waste, it must be managed in compliance
with all applicable requirements of 40 CFR parts 260 through 272. The
handler is considered the generator of the mercury, residues, and/or
other waste and must manage it is subject to 40 CFR part 262.
(iii) If the mercury, residues, and/or other solid waste is not
hazardous, the handler may manage the waste in any way that is in
compliance with applicable federal, state or local solid waste
regulations.
Sec. 273.14 Labeling/marking.
A small quantity handler of universal waste must label or mark the
universal waste to identify the type of universal waste as specified
below:
(a) Universal waste batteries (i.e., each battery), or a container
in which the batteries are contained, must be labeled or marked clearly
with any one of the following phrases: ``Universal Waste--Battery(ies),
or ``Waste Battery(ies),'' or ``Used Battery(ies);''
(b) A container, (or multiple container package unit), tank,
transport vehicle or vessel in which recalled universal waste
pesticides as described in 40 CFR 273.3(a)(1) are contained must be
labeled or marked clearly with:
(1) The label that was on or accompanied the product as sold or
distributed; and
(2) The words ``Universal Waste-Pesticide(s)'' or ``Waste-
Pesticide(s);''
(c) A container, tank, or transport vehicle or vessel in which
unused pesticide products as described in 40 CFR 273.3(a)(2) are
contained must be labeled or marked clearly with:
(1)(i) The label that was on the product when purchased, if still
legible;
(ii) If using the labels described in paragraph (c)(1)(i) of this
section is not feasible, the appropriate label as required under the
Department of Transportation regulation 49 CFR part 172;
(iii) If using the labels described in paragraphs (c)(1) (i) and
(ii) of this section is not feasible, another label prescribed or
designated by the waste [[Page 25546]] pesticide collection program
administered or recognized by a state; and
(2) The words ``Universal Waste-Pesticide(s)'' or ``Waste-
Pesticide(s).''
(d) Universal waste thermostats (i.e., each thermostat), or a
container in which the thermostats are contained, must be labeled or
marked clearly with any one of the following phrases: ``Universal
Waste--Mercury Thermostat(s),'' or ``Waste Mercury Thermostat(s),'' or
``Used Mercury Thermostat(s)''.
Sec. 273.15 Accumulation time limits.
(a) A small quantity handler of universal waste may accumulate
universal waste for no longer than one year from the date the universal
waste is generated, or received from another handler, unless the
requirements of paragraph (b) of this section are met.
(b) A small quantity handler of universal waste may accumulate
universal waste for longer than one year from the date the universal
waste is generated, or received from another handler, if such activity
is solely for the purpose of accumulation of such quantities of
universal waste as necessary to facilitate proper recovery, treatment,
or disposal. However, the handler bears the burden of proving that such
activity is solely for the purpose of accumulation of such quantities
of universal waste as necessary to facilitate proper recovery,
treatment, or disposal.
(c) A small quantity handler of universal waste who accumulates
universal waste must be able to demonstrate the length of time that the
universal waste has been accumulated from the date it becomes a waste
or is received. The handler may make this demonstration by:
(1) Placing the universal waste in a container and marking or
labeling the container with the earliest date that any universal waste
in the container became a waste or was received;
(2) Marking or labeling each individual item of universal waste
(e.g., each battery or thermostat) with the date it became a waste or
was received;
(3) Maintaining an inventory system on-site that identifies the
date each universal waste became a waste or was received;
(4) Maintaining an inventory system on-site that identifies the
earliest date that any universal waste in a group of universal waste
items or a group of containers of universal waste became a waste or was
received;
(5) Placing the universal waste in a specific accumulation area and
identifying the earliest date that any universal waste in the area
became a waste or was received; or
(6) Any other method which clearly demonstrates the length of time
that the universal waste has been accumulated from the date it becomes
a waste or is received.
Sec. 273.16 Employee training.
A small quantity handler of universal waste must inform all
employees who handle or have responsibility for managing universal
waste. The information must describe proper handling and emergency
procedures appropriate to the type(s) of universal waste handled at the
facility.
Sec. 273.17 Response to releases.
(a) A small quantity handler of universal waste must immediately
contain all releases of universal wastes and other residues from
universal wastes.
(b) A small quantity handler of universal waste must determine
whether any material resulting from the release is hazardous waste, and
if so, must manage the hazardous waste in compliance with all
applicable requirements of 40 CFR parts 260 through 272. The handler is
considered the generator of the material resulting from the release,
and must manage it in compliance with 40 CFR part 262.
Sec. 273.18 Off-site shipments.
(a) A small quantity handler of universal waste is prohibited from
sending or taking universal waste to a place other than another
universal waste handler, a destination facility, or a foreign
destination.
(b) If a small quantity handler of universal waste self-transports
universal waste off-site, the handler becomes a universal waste
transporter for those self-transportation activities and must comply
with the transporter requirements of subpart D of this part while
transporting the universal waste.
(c) If a universal waste being offered for off-site transportation
meets the definition of hazardous materials under 49 CFR parts 171
through 180, a small quantity handler of universal waste must package,
label, mark and placard the shipment, and prepare the proper shipping
papers in accordance with the applicable Department of Transportation
regulations under 49 CFR parts 172 through 180;
(d) Prior to sending a shipment of universal waste to another
universal waste handler, the originating handler must ensure that the
receiving handler agrees to receive the shipment.
(e) If a small quantity handler of universal waste sends a shipment
of universal waste to another handler or to a destination facility and
the shipment is rejected by the receiving handler or destination
facility, the originating handler must either:
(1) Receive the waste back when notified that the shipment has been
rejected, or
(2) Agree with the receiving handler on a destination facility to
which the shipment will be sent.
(f) A small quantity handler of universal waste may reject a
shipment containing universal waste, or a portion of a shipment
containing universal waste that he has received from another handler.
If a handler rejects a shipment or a portion of a shipment, he must
contact the originating handler to notify him of the rejection and to
discuss reshipment of the load. The handler must:
(1) Send the shipment back to the originating handler, or
(2) If agreed to by both the originating and receiving handler,
send the shipment to a destination facility.
(g) If a small quantity handler of universal waste receives a
shipment containing hazardous waste that is not a universal waste, the
handler must immediately notify the appropriate regional EPA office of
the illegal shipment, and provide the name, address, and phone number
of the originating shipper. The EPA regional office will provide
instructions for managing the hazardous waste.
(h) If a small quantity handler of universal waste receives a
shipment of non-hazardous, non-universal waste, the handler may manage
the waste in any way that is in compliance with applicable federal,
state or local solid waste regulations.
Sec. 273.19 Tracking universal waste shipments.
A small quantity handler of universal waste is not required to keep
records of shipments of universal waste.
Sec. 273.20 Exports.
A small quantity handler of universal waste who sends universal
waste to a foreign destination must:
(a) Comply with the requirements applicable to a primary exporter
in 40 CFR 262.53, 262.56(a) (1) through (4), (6), and (b) and 262.57;
(b) Export such universal waste only upon consent of the receiving
country and in conformance with the EPA Acknowledgement of Consent as
defined in subpart E of part 262 of this chapter; and
(c) Provide a copy of the EPA Acknowledgment of Consent for the
shipment to the transporter transporting the shipment for export.
[[Page 25547]]
Subpart C--Standards for Large Quantity Handlers of Universal Waste
Sec. 273.30 Applicability.
This subpart applies to large quantity handlers of universal waste
(as defined in 40 CFR 273.6).
Sec. 273.31 Prohibitions.
A large quantity handler of universal waste is:
(a) Prohibited from disposing of universal waste; and
(b) Prohibited from diluting or treating universal waste, except by
responding to releases as provided in 40 CFR 273.37; or by managing
specific wastes as provided in 40 CFR 273.33.
Sec. 273.32 Notification.
(a)(1) Except as provided in paragraphs (a) (2) and (3) of this
section, a large quantity handler of universal waste must have sent
written notification of universal waste management to the Regional
Administrator, and received an EPA Identification Number, before
meeting or exceeding the 5,000 kilogram storage limit.
(2) A large quantity handler of universal waste who has already
notified EPA of his hazardous waste management activities and has
received an EPA Identification Number is not required to renotify under
this section.
(3) A large quantity handler of universal waste who manages
recalled universal waste pesticides as described in 40 CFR 273.3(a)(1)
and who has sent notification to EPA as required by 40 CFR part 165 is
not required to notify for those recalled universal waste pesticides
under this section.
(b) This notification must include:
(1) The universal waste handler's name and mailing address;
(2) The name and business telephone number of the person at the
universal waste handler's site who should be contacted regarding
universal waste management activities;
(3) The address or physical location of the universal waste
management activities;
(4) A list of all of the types of universal waste managed by the
handler (e.g, batteries, pesticides, thermostats);
(5) A statement indicating that the handler is accumulating more
than 5,000 kilograms of universal waste at one time and the types of
universal waste (e.g, batteries, pesticides, thermostats) the handler
is accumulating above this quantity.
Sec. 273.33 Waste management.
(a) Universal waste batteries. A large quantity handler of
universal waste must manage universal waste batteries in a way that
prevents releases of any universal waste or component of a universal
waste to the environment, as follows:
(1) A large quantity handler of universal waste must contain any
universal waste battery that shows evidence of leakage, spillage, or
damage that could cause leakage under reasonably foreseeable conditions
in a container. The container must be closed, structurally sound,
compatible with the contents of the battery, and must lack evidence of
leakage, spillage, or damage that could cause leakage under reasonably
foreseeable conditions.
(2) A large quantity handler of universal waste may conduct the
following activities as long as the casing of each individual battery
cell is not breached and remains intact and closed (except that cells
may be opened to remove electrolyte but must be immediately closed
after removal):
(i) Sorting batteries by type;
(ii) Mixing battery types in one container;
(iii) Discharging batteries so as to remove the electric charge;
(iv) Regenerating used batteries;
(v) Disassembling batteries or battery packs into individual
batteries or cells;
(vi) Removing batteries from consumer products; or
(vii) Removing electrolyte from batteries.
(3) A large quantity handler of universal waste who removes
electrolyte from batteries, or who generates other solid waste (e.g.,
battery pack materials, discarded consumer products) as a result of the
activities listed above, must determine whether the electrolyte and/or
other solid waste exhibit a characteristic of hazardous waste
identified in 40 CFR part 261, subpart C.
(i) If the electrolyte and/or other solid waste exhibit a
characteristic of hazardous waste, it must be managed in compliance
with all applicable requirements of 40 CFR parts 260 through 272. The
handler is considered the generator of the hazardous electrolyte and/or
other waste and is subject to 40 CFR part 262.
(ii) If the electrolyte or other solid waste is not hazardous, the
handler may manage the waste in any way that is in compliance with
applicable federal, state or local solid waste regulations.
(b) Universal waste pesticides. A large quantity handler of
universal waste must manage universal waste pesticides in a way that
prevents releases of any universal waste or component of a universal
waste to the environment. The universal waste pesticides must be
contained in one or more of the following:
(1) A container that remains closed, structurally sound, compatible
with the pesticide, and that lacks evidence of leakage, spillage, or
damage that could cause leakage under reasonably foreseeable
conditions; or
(2) A container that does not meet the requirements of paragraph
(b)(1) of this section, provided that the unacceptable container is
overpacked in a container that does meet the requirements of paragraph
(b)(1) of this section; or
(3) A tank that meets the requirements of 40 CFR part 265 subpart
J, except for 40 CFR 265.197(c), 265.200, and 265.201; or
(4) A transport vehicle or vessel that is closed, structurally
sound, compatible with the pesticide, and that lacks evidence of
leakage, spillage, or damage that could cause leakage under reasonably
foreseeable conditions.
(c) Universal waste thermostats. A large quantity handler of
universal waste must manage universal waste thermostats in a way that
prevents releases of any universal waste or component of a universal
waste to the environment, as follows:
(1) A large quantity handler of universal waste must contain any
universal waste thermostat that shows evidence of leakage, spillage, or
damage that could cause leakage under reasonably foreseeable conditions
in a container. The container must be closed, structurally sound,
compatible with the contents of the thermostat, and must lack evidence
of leakage, spillage, or damage that could cause leakage under
reasonably foreseeable conditions.
(2) A large quantity handler of universal waste may remove mercury-
containing ampules from universal waste thermostats provided the
handler:
(i) Removes the ampules in a manner designed to prevent breakage of
the ampules;
(ii) Removes ampules only over or in a containment device (e.g.,
tray or pan sufficient to contain any mercury released from an ampule
in case of breakage);
(iii) Ensures that a mercury clean-up system is readily available
to immediately transfer any mercury resulting from spills or leaks from
broken ampules, from the containment device to a container that meets
the requirements of 40 CFR 262.34;
(iv) Immediately transfers any mercury resulting from spills or
leaks from broken ampules from the containment device to a container
that meets the requirements of 40 CFR 262.34; [[Page 25548]]
(v) Ensures that the area in which ampules are removed is well
ventilated and monitored to ensure compliance with applicable OSHA
exposure levels for mercury;
(vi) Ensures that employees removing ampules are thoroughly
familiar with proper waste mercury handling and emergency procedures,
including transfer of mercury from containment devices to appropriate
containers;
(vii) Stores removed ampules in closed, non-leaking containers that
are in good condition;
(viii) Packs removed ampules in the container with packing
materials adequate to prevent breakage during storage, handling, and
transportation; and
(3)(i) A large quantity handler of universal waste who removes
mercury-containing ampules from thermostats must determine whether the
following exhibit a characteristic of hazardous waste identified in 40
CFR part 261, subpart C:
(A) Mercury or clean-up residues resulting from spills or leaks;
and/or
(B) Other solid waste generated as a result of the removal of
mercury-containing ampules (e.g., remaining thermostat units).
(ii) If the mercury, residues, and/or other solid waste exhibit a
characteristic of hazardous waste, it must be managed in compliance
with all applicable requirements of 40 CFR parts 260 through 272. The
handler is considered the generator of the mercury, residues, and/or
other waste and is subject to 40 CFR part 262.
(iii) If the mercury, residues, and/or other solid waste is not
hazardous, the handler may manage the waste in any way that is in
compliance with applicable federal, state or local solid waste
regulations.
Sec. 273.34 Labeling/marking.
A large quantity handler of universal waste must label or mark the
universal waste to identify the type of universal waste as specified
below:
(a) Universal waste batteries (i.e., each battery), or a container
or tank in which the batteries are contained, must be labeled or marked
clearly with the any one of the following phrases: ``Universal Waste--
Battery(ies),'' or ``Waste Battery(ies),'' or ``Used Battery(ies);''
(b) A container (or multiple container package unit), tank,
transport vehicle or vessel in which recalled universal waste
pesticides as described in 40 CFR 273.3(a)(1) are contained must be
labeled or marked clearly with:
(1) The label that was on or accompanied the product as sold or
distributed; and
(2) The words ``Universal Waste--Pesticide(s)'' or ``Waste--
Pesticide(s);''
(c) A container, tank, or transport vehicle or vessel in which
unused pesticide products as described in 40 CFR 273.3(a)(2) are
contained must be labeled or marked clearly with:
(1)(i) The label that was on the product when purchased, if still
legible;
(ii) If using the labels described in paragraph (c)(1)(i) of this
section is not feasible, the appropriate label as required under the
Department of Transportation regulation 49 CFR part 172;
(iii) If using the labels described in paragraphs (c) (1)(i) and
(1)(ii) of this section is not feasible, another label prescribed or
designated by the pesticide collection program; and
(2) The words ``Universal Waste--Pesticide(s)'' or ``Waste--
Pesticide(s).''
(d) Universal waste thermostats (i.e., each thermostat), or a
container or tank in which the thermostats are contained, must be
labeled or marked clearly with any one of the following phrases:
``Universal Waste--Mercury Thermostat(s),'' or ``Waste Mercury
Thermostat(s),'' or ``Used Mercury Thermostat(s).
Sec. 273.35 Accumulation time limits.
(a) A large quantity handler of universal waste may accumulate
universal waste for no longer than one year from the date the universal
waste is generated, or received from another handler, unless the
requirements of paragraph (b) of this section are met.
(b) A large quantity handler of universal waste may accumulate
universal waste for longer than one year from the date the universal
waste is generated, or received from another handler, if such activity
is solely for the purpose of accumulation of such quantities of
universal waste as necessary to facilitate proper recovery, treatment,
or disposal. However, the handler bears the burden of proving that such
activity was solely for the purpose of accumulation of such quantities
of universal waste as necessary to facilitate proper recovery,
treatment, or disposal.
(c) A large quantity handler of universal waste must be able to
demonstrate the length of time that the universal waste has been
accumulated from the date it becomes a waste or is received. The
handler may make this demonstration by:
(1) Placing the universal waste in a container and marking or
labeling the container with the earliest date that any universal waste
in the container became a waste or was received;
(2) Marking or labeling the individual item of universal waste
(e.g., each battery or thermostat) with the date it became a waste or
was received;
(3) Maintaining an inventory system on-site that identifies the
date the universal waste being accumulated became a waste or was
received;
(4) Maintaining an inventory system on-site that identifies the
earliest date that any universal waste in a group of universal waste
items or a group of containers of universal waste became a waste or was
received;
(5) Placing the universal waste in a specific accumulation area and
identifying the earliest date that any universal waste in the area
became a waste or was received; or
(6) Any other method which clearly demonstrates the length of time
that the universal waste has been accumulated from the date it becomes
a waste or is received.
Sec. 273.36 Employee training.
A large quantity handler of universal waste must ensure that all
employees are thoroughly familiar with proper waste handling and
emergency procedures, relative to their responsibilities during normal
facility operations and emergencies.
Sec. 273.37 Response to releases.
(a) A large quantity handler of universal waste must immediately
contain all releases of universal wastes and other residues from
universal wastes.
(b) A large quantity handler of universal waste must determine
whether any material resulting from the release is hazardous waste, and
if so, must manage the hazardous waste in compliance with all
applicable requirements of 40 CFR parts 260 through 272. The handler is
considered the generator of the material resulting from the release,
and is subject to 40 CFR part 262.
Sec. 273.38 Off-site shipments.
(a) A large quantity handler of universal waste is prohibited from
sending or taking universal waste to a place other than another
universal waste handler, a destination facility, or a foreign
destination.
(b) If a large quantity handler of universal waste self-transports
universal waste off-site, the handler becomes a universal waste
transporter for those self-transportation activities and must comply
with the transporter requirements of subpart D of this part while
transporting the universal waste.
(c) If a universal waste being offered for off-site transportation
meets the definition of hazardous materials under 49 CFR 171 through
180, a large [[Page 25549]] quantity handler of universal waste must
package, label, mark and placard the shipment, and prepare the proper
shipping papers in accordance with the applicable Department of
Transportation regulations under 49 CFR parts 172 through 180;
(d) Prior to sending a shipment of universal waste to another
universal waste handler, the originating handler must ensure that the
receiving handler agrees to receive the shipment.
(e) If a large quantity handler of universal waste sends a shipment
of universal waste to another handler or to a destination facility and
the shipment is rejected by the receiving handler or destination
facility, the originating handler must either:
(1) Receive the waste back when notified that the shipment has been
rejected, or
(2) Agree with the receiving handler on a destination facility to
which the shipment will be sent.
(f) A large quantity handler of universal waste may reject a
shipment containing universal waste, or a portion of a shipment
containing universal waste that he has received from another handler.
If a handler rejects a shipment or a portion of a shipment, he must
contact the originating handler to notify him of the rejection and to
discuss reshipment of the load. The handler must:
(1) Send the shipment back to the originating handler, or
(2) If agreed to by both the originating and receiving handler,
send the shipment to a destination facility.
(g) If a large quantity handler of universal waste receives a
shipment containing hazardous waste that is not a universal waste, the
handler must immediately notify the appropriate regional EPA office of
the illegal shipment, and provide the name, address, and phone number
of the originating shipper. The EPA regional office will provide
instructions for managing the hazardous waste.
(h) If a large quantity handler of universal waste receives a
shipment of non-hazardous, non-universal waste, the handler may manage
the waste in any way that is in compliance with applicable federal,
state or local solid waste regulations.
Sec. 273.39 Tracking universal waste shipments.
(a) Receipt of shipments. A large quantity handler of universal
waste must keep a record of each shipment of universal waste received
at the facility. The record may take the form of a log, invoice,
manifest, bill of lading, or other shipping document. The record for
each shipment of universal waste received must include the following
information:
(1) The name and address of the originating universal waste handler
or foreign shipper from whom the universal waste was sent;
(2) The quantity of each type of universal waste received (e.g.,
batteries, pesticides, thermostats);
(3) The date of receipt of the shipment of universal waste.
(b) Shipments off-site. A large quantity handler of universal waste
must keep a record of each shipment of universal waste sent from the
handler to other facilities. The record may take the form of a log,
invoice, manifest, bill of lading or other shipping document. The
record for each shipment of universal waste sent must include the
following information:
(1) The name and address of the universal waste handler,
destination facility, or foreign destination to whom the universal
waste was sent;
(2) The quantity of each type of universal waste sent (e.g.,
batteries, pesticides, thermostats);
(3) The date the shipment of universal waste left the facility.
(c) Record retention. (1) A large quantity handler of universal
waste must retain the records described in paragraph (a) of this
section for at least three years from the date of receipt of a shipment
of universal waste.
(2) A large quantity handler of universal waste must retain the
records described in paragraph (b) of this section for at least three
years from the date a shipment of universal waste left the facility.
Sec. 273.40 Exports.
A large quantity handler of universal waste who sends universal
waste to a foreign destination must:
(a) Comply with the requirements applicable to a primary exporter
in 40 CFR 262.53, 262.56(a)(1) through (4), (6), and (b) and 262.57;
(b) Export such universal waste only upon consent of the receiving
country and in conformance with the EPA Acknowledgement of Consent as
defined in subpart E of part 262 of this chapter; and
(c) Provide a copy of the EPA Acknowledgement of Consent for the
shipment to the transporter transporting the shipment for export.
Subpart D--Standards for Universal Waste Transporters
Sec. 273.50 Applicability.
This subpart applies to universal waste transporters (as defined in
40 CFR 273.6).
Sec. 273.51 Prohibitions.
A universal waste transporter is:
(a) Prohibited from disposing of universal waste; and
(b) Prohibited from diluting or treating universal waste, except by
responding to releases as provided in 40 CFR 273.54.
Sec. 273.52 Waste management.
(a) A universal waste transporter must comply with all applicable
U.S. Department of Transportation regulations in 49 CFR part 171
through 180 for transport of any universal waste that meets the
definition of hazardous material in 49 CFR 171.8. For purposes of the
Department of Transportation regulations, a material is considered a
hazardous waste if it is subject to the Hazardous Waste Manifest
Requirements of the U.S. Environmental Protection Agency specified in
40 CFR part 262. Because universal waste does not require a hazardous
waste manifest, it is not considered hazardous waste under the
Department of Transportation regulations.
(b) Some universal waste materials are regulated by the Department
of Transportation as hazardous materials because they meet the criteria
for one or more hazard classes specified in 49 CFR 173.2. As universal
waste shipments do not require a manifest under 40 CFR 262, they may
not be described by the DOT proper shipping name ``hazardous waste, (l)
or (s), n.o.s.'', nor may the hazardous material's proper shipping name
be modified by adding the word ``waste''.
Sec. 273.53 Storage time limits.
(a) A universal waste transporter may only store the universal
waste at a universal waste transfer facility for ten days or less.
(b) If a universal waste transporter stores universal waste for
more than ten days, the transporter becomes a universal waste handler
and must comply with the applicable requirements of subparts B or C of
this part while storing the universal waste.
Sec. 273.54 Response to releases.
(a) A universal waste transporter must immediately contain all
releases of universal wastes and other residues from universal wastes.
(b) A universal waste transporter must determine whether any
material resulting from the release is hazardous waste, and if so, it
is subject to all applicable requirements of 40 CFR parts 260 through
272. If the waste is determined to be a hazardous waste, the
transporter is subject to 40 CFR part 262. [[Page 25550]]
Sec. 273.55 Off-site shipments.
(a) A universal waste transporter is prohibited from transporting
the universal waste to a place other than a universal waste handler, a
destination facility, or a foreign destination.
(b) If the universal waste being shipped off-site meets the
Department of Transportation's definition of hazardous materials under
49 CFR 171.8, the shipment must be properly described on a shipping
paper in accordance with the applicable Department of Transportation
regulations under 49 CFR part 172.
Sec. 273.56 Exports.
A universal waste transporter transporting a shipment of universal
waste to a foreign destination may not accept a shipment if the
transporter knows the shipment does not conform to the EPA
Acknowledgment of Consent. In addition the transporter must ensure
that:
(a) A copy of the EPA Acknowledgment of Consent accompanies the
shipment; and
(b) The shipment is delivered to the facility designated by the
person initiating the shipment.
Subpart E--Standards for Destination Facilities
Sec. 273.60 Applicability.
(a) The owner or operator of a destination facility (as defined in
40 CFR 273.6) is subject to all applicable requirements of parts 264,
265, 266, 268, 270, and 124 of this chapter, and the notification
requirement under section 3010 of RCRA:
(b) The owner or operator of a destination facility that recycles a
particular universal waste without storing that universal waste before
it is recycled must comply with 40 CFR 261.6(c)(2).
Sec. 273.61 Off-site shipments.
(a) The owner or operator of a destination facility is prohibited
from sending or taking universal waste to a place other than a
universal waste handler, another destination facility or foreign
destination.
(b) The owner or operator of a destination facility may reject a
shipment containing universal waste, or a portion of a shipment
containing universal waste. If the owner or operator of the destination
facility rejects a shipment or a portion of a shipment, he must contact
the shipper to notify him of the rejection and to discuss reshipment of
the load. The owner or operator of the destination facility must:
(1) Send the shipment back to the original shipper, or
(2) If agreed to by both the shipper and the owner or operator of
the destination facility, send the shipment to another destination
facility.
(c) If the a owner or operator of a destination facility receives a
shipment containing hazardous waste that is not a universal waste, the
owner or operator of the destination facility must immediately notify
the appropriate regional EPA office of the illegal shipment, and
provide the name, address, and phone number of the shipper. The EPA
regional office will provide instructions for managing the hazardous
waste.
(d) If the owner or operator of a destination facility receives a
shipment of non-hazardous, non-universal waste, the owner or operator
may manage the waste in any way that is in compliance with applicable
federal or state solid waste regulations.
Sec. 273.62 Tracking universal waste shipments.
(a) The owner or operator of a destination facility must keep a
record of each shipment of universal waste received at the facility.
The record may take the form of a log, invoice, manifest, bill of
lading, or other shipping document. The record for each shipment of
universal waste received must include the following information:
(1) The name and address of the universal waste handler,
destination facility, or foreign shipper from whom the universal waste
was sent;
(2) The quantity of each type of universal waste received (e.g.,
batteries, pesticides, thermostats);
(3) The date of receipt of the shipment of universal waste.
(b) The owner or operator of a destination facility must retain the
records described in paragraph (a) of this section for at least three
years from the date of receipt of a shipment of universal waste.
Subpart F--Import Requirements
Sec. 273.70 Imports.
Persons managing universal waste that is imported from a foreign
country into the United States are subject to the applicable
requirements of this part, immediately after the waste enters the
United States, as indicated below:
(a) A universal waste transporter is subject to the universal waste
transporter requirements of subpart D of this part.
(b) A universal waste handler is subject to the small or large
quantity handler of universal waste requirements of subparts B or C, as
applicable.
(c) An owner or operator of a destination facility is subject to
the destination facility requirements of subpart E of this part.
Subpart G--Petitions to Include Other Wastes Under 40 CFR Part 273
Sec. 273.80 General.
(a) Any person seeking to add a hazardous waste or a category of
hazardous waste to this part may petition for a regulatory amendment
under this subpart and 40 CFR 260.20 and 260.23.
(b) To be successful, the petitioner must demonstrate to the
satisfaction of the Administrator that regulation under the universal
waste regulations of 40 CFR part 273 is: appropriate for the waste or
category of waste; will improve management practices for the waste or
category of waste; and will improve implementation of the hazardous
waste program. The petition must include the information required by 40
CFR 260.20(b). The petition should also address as many of the factors
listed in 40 CFR 273.81 as are appropriate for the waste or waste
category addressed in the petition.
(c) The Administrator will evaluate petitions using the factors
listed in 40 CFR 273.81. The Administrator will grant or deny a
petition using the factors listed in 40 CFR 273.81. The decision will
be based on the weight of evidence showing that regulation under 40 CFR
part 273 is appropriate for the waste or category of waste, will
improve management practices for the waste or category of waste, and
will improve implementation of the hazardous waste program.
Sec. 273.81 Factors for petitions to include other wastes under 40 CFR
part 273.
(a) The waste or category of waste, as generated by a wide variety
of generators, is listed in subpart D of part 261 of this chapter, or
(if not listed) a proportion of the waste stream exhibits one or more
characteristics of hazardous waste identified in subpart C of part 261
of this chapter. (When a characteristic waste is added to the universal
waste regulations of 40 CFR part 273 by using a generic name to
identify the waste category (e.g., batteries), the definition of
universal waste in 40 CFR 260.10 and 273.6 will be amended to include
only the hazardous waste portion of the waste category (e.g., hazardous
waste batteries).) Thus, only the portion of the waste stream that does
exhibit one or more characteristics (i.e., is hazardous waste) is
subject to the universal waste regulations of 40 CFR part 273;
(b) The waste or category of waste is not exclusive to a specific
industry or group of industries, is commonly [[Page 25551]] generated
by a wide variety of types of establishments (including, for example,
households, retail and commercial businesses, office complexes,
conditionally exempt small quantity generators, small businesses,
government organizations, as well as large industrial facilities);
(c) The waste or category of waste is generated by a large number
of generators (e.g., more than 1,000 nationally) and is frequently
generated in relatively small quantities by each generator;
(d) Systems to be used for collecting the waste or category of
waste (including packaging, marking, and labeling practices) would
ensure close stewardship of the waste;
(e) The risk posed by the waste or category of waste during
accumulation and transport is relatively low compared to other
hazardous wastes, and specific management standards proposed or
referenced by the petitioner (e.g., waste management requirements
appropriate to be added to 40 CFR 273.13, 273.33, and 273.52; and/or
applicable Department of Transportation requirements) would be
protective of human health and the environment during accumulation and
transport;
(f) Regulation of the waste or category of waste under 40 CFR part
273 will increase the likelihood that the waste will be diverted from
non-hazardous waste management systems (e.g., the municipal waste
stream, non-hazardous industrial or commercial waste stream, municipal
sewer or stormwater systems) to recycling, treatment, or disposal in
compliance with Subtitle C of RCRA.
(g) Regulation of the waste or category of waste under 40 CFR part
273 will improve implementation of and compliance with the hazardous
waste regulatory program; and/or
(h) Such other factors as may be appropriate.
[FR Doc. 95-11143 Filed 5-10-95; 8:45 am]
BILLING CODE 6560-50-P