[Federal Register Volume 88, Number 154 (Friday, August 11, 2023)]
[Proposed Rules]
[Pages 54537-54548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16752]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, 262, 263, 264, 265, 266, 267, 268 and 270

[EPA-HQ-OLEM-2023-0320; FRL: 10001-01-OLEM]
RIN: 2050-AH29


Used Drum Management and Reconditioning Advance Notice of 
Proposed Rulemaking

AGENCY: Environmental Protection Agency.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The U.S. Environmental Protection Agency (the EPA) is 
soliciting information and requesting comments to assist in the 
potential development of non-regulatory and regulatory options that 
would ensure the proper management of used industrial containers that 
held hazardous chemicals or hazardous waste, up to and including the 
drum reconditioning process. Options could include revising the 
Resource Conservation and Recovery Act (RCRA) regulations or other, 
non-regulatory options. This Advance Notice of Proposed Rulemaking 
(ANPRM) does not propose any regulatory requirements or change any 
existing regulatory requirements.

DATES: Comments must be received on or before September 25, 2023.

ADDRESSES: Comments. You may send comments, identified by Docket ID No. 
EPA-HQ-OLEM-2023-0320, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Office of Resource Conservation and Recovery Docket, Mail Code 
28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
     Hand Delivery or Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday--Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov, including any personal information 
provided. For detailed instructions on sending comments see the 
``instructions'' heading of the SUPPLEMENTARY INFORMATION section of 
this document.

FOR FURTHER INFORMATION CONTACT: For questions about this action, 
contact Kaitlin Franssen, Materials Recovery and Waste Management 
Division, Office of Resource Conservation and Recovery (MC 5303P), 
Environmental Protection Agency, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460; telephone number: (202) 566-0487; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 
    Instructions: Submit your comments, identified by Docket ID No. 
EPA-HQ-OLEM-2023-0320, at https://www.regulations.gov (our preferred 
method), or the other methods identified in the ADDRESSES section. Once 
submitted, comments cannot be edited or removed from the docket. The 
EPA may publish any comment received to its public docket. Do not 
submit to EPA's docket at https://www.regulations.gov any information 
you consider to be Confidential Business Information (CBI), Proprietary 
Business Information (PBI), or other information whose disclosure is 
restricted by statute. Multimedia submissions (audio, video, etc.) must 
be accompanied by a written comment. The written comment is considered 
the official comment and should include discussion of all points you 
wish to make. The EPA will generally not consider comments or comment 
contents located outside of the primary submission (i.e., on the web, 
cloud, or other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the 
full EPA public comment policy; information about CBI, PBI, or 
multimedia submissions; and general guidance on making effective 
comments.
    Preamble acronyms and abbreviations. The EPA uses multiple acronyms 
and terms in this preamble. While this list may not be exhaustive, to 
ease the reading of this preamble and for reference purposes, the EPA 
defines the following terms and acronyms here:

ANPRM Advance Notice of Proposed Rulemaking
CAA Clean Air Act
CFR Code of Federal Regulation
CWA Clean Water Act
CBI Confidential Business Information
CFR Code of Federal Regulations
DOT Department of Transportation
EPA U.S. Environmental Protection Agency
FR Federal Register
[deg]F degrees Fahrenheit
HMR Hazardous Material Regulations
IBC Intermediate Bulk Container
LQG Large Quantity Generator
NPDES National Pollutant Discharge Elimination System
OMB Office of Management and Budget
PBI Proprietary Business Information
POTWs Publicly-Owned Treatment Works
PPE Personal Protective Equipment
RCRA Resource Conservation and Recovery Act
SOPs Standard Operating Procedures
SPCC Spill Prevention, Control, and Countermeasures
TSDF Treatment, Storage, and Disposal Facility

    Organization of this Document: The following outline is provided to 
aid in locating information in this preamble.
I. General Information
    A. What is the purpose of this ANPRM?
    B. Does this action apply to me?
II. Background
III. Overview of the ANPRM and Request for Comments
    A. ANPRM Overview
    B. Non-Regulatory Options
    C. Regulatory Summary Table
IV. Environmental Justice
V. Used Drum Generator and Transporter Issues
    A. Emptying Containers
    B. Shipping of Non-RCRA Empty Containers
    C. Container Packaging (Integrity)
VI. Drum Reconditioner Issues
    A. Acceptance, Storage, Handling, and Management of Non-RCRA 
Empty Containers
    B. Emissions From Drum Furnaces
    C. Management and Mismanagement of Wastewaters and Other Wastes 
Generated From Drum Reconditioning
    D. Emergency Response Training
    E. Permitting
VII. End-of-Life Management
VIII. Transportation Equipment Cleaning Facilities
IX. Statutory and Executive Order Reviews

I. General Information

A. What is the purpose of this ANPRM?

    An advance notice of proposed rulemaking (ANPRM) is a notice 
intended to solicit information from the public as the EPA considers 
proposing a future rule or action. The EPA plans to use this ANPRM as a 
preliminary way to explore the regulatory and/or non-regulatory options 
for dealing with the

[[Page 54538]]

issues surrounding the management of used containers, such as metal or 
plastic drums, across their lifecycle, to ensure protection of human 
health and the environment. Management issues across the lifecycle of 
used containers can occur at industrial facilities, with hazardous 
waste generators, and with generators of used containers, as well as 
with transporters and receiving facilities (i.e., drum reconditioners). 
This ANPRM will refer to any facilities sending used drums/containers 
to drum reconditioners as ``used drum generators.'' As a first step for 
this ANPRM, the EPA published a report studying the drum reconditioning 
industry and documented certain damages such as environmental releases, 
fires, explosions, and employee injuries that occurred at these 
facilities. This report \1\ is available in the docket to this ANPRM.
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    \1\ EPA 2022 Drum Reconditioner Damage Case Report, September 
2022, EPA-530-R-22-003. https://www.epa.gov/hw/drum-reconditioner-damage-case-report.
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    The name of this ANPRM is Used Drum Management and Reconditioning 
Advance Notice of Proposed Rulemaking. This document is the same ANPRM 
as the ANPRM entitled the Drum Reconditioner Advance Notice of Proposed 
Rulemaking that had been published in the Fall 2022 and Spring 2023 
Regulatory Agenda (RIN 2050-AH29). The EPA has decided to change the 
name of this ANPRM to be more descriptive than the original title and 
to reflect the breadth of all the topics covered by this ANPRM.

B. Does this action apply to me?

    Entities that may be interested in this ANPRM or potentially may be 
affected by the EPA's evaluation of the information and comments 
received include, especially, owners and operators of drum 
reconditioning facilities, communities where these facilities or 
operations exist, container transporters, used drum generators, 
chemicals manufacturers, waste or hazardous waste generators, 
industrial facilities, and environmental action organizations.

II. Background

    Drum reconditioning facilities recondition metal and plastic drums 
and intermediate bulk containers (IBCs) for resale and reuse by 
cleaning, restoring, testing, and certifying these industrial 
containers. These containers previously held a variety of materials 
including hazardous waste, chemicals, paints, resins, tars, adhesives, 
foods, oils, soaps, solvents, or related materials. The two main 
processes used for reconditioning are burning off residue from metal 
drums in a drum furnace and washing metal or plastic drums or 
containers with water and/or a caustic solution to clean out residues.
    On September 8, 2022, the EPA published a Drum Reconditioner Damage 
Case Report that described the EPA's understanding of how the drum 
reconditioning industry operates and documents damage case incidents at 
facilities that have caused significant harm to human health and the 
environment. The report also serves to inform domestic policymakers, 
enforcement officials, and the public about the regulatory and waste 
issues surrounding drum reconditioning facilities and serves as the 
EPA's first step to gather information and engage stakeholders on 
approaches to address and mitigate these issues.
    The report examined the existing RCRA regulations, particularly the 
empty container provision (Title 40 of the Code of Federal Regulation 
(CFR) in Sec.  261.7), which exempts from regulation hazardous waste 
residues that remain in a drum or other container as long as (1) All 
wastes have been removed that can be removed using the practices 
commonly employed to remove materials from that type of container, 
e.g., pouring, pumping, and aspirating, AND (2) no more than 2.5 
centimeters (one inch) of residue remains or no more than 3% by weight 
remains if the container is less than or equal to 119 gallons or no 
more than 0.3% by weight remains if the container is more than 119 
gallons. This exemption also states that a container or an inner liner 
removed from a container that has held an acute hazardous waste listed 
in Sec. Sec.  261.31 or 261.33(e) is empty if: (i) The container or 
inner liner has been triple rinsed using a solvent capable of removing 
the commercial chemical product or manufacturing chemical intermediate; 
(ii) the container or inner liner has been cleaned by another method 
that has been shown in the scientific literature, or by tests conducted 
by the generator, to achieve equivalent removal; or (iii) in the case 
of a container, the inner liner that prevented contact of the 
commercial chemical product or manufacturing chemical intermediate with 
the container, has been removed. In this ANPRM, we use the term ``RCRA 
empty'' to mean that a container has been emptied to meet these 
definitions in the empty container provision. The report found that 
despite this provision, and the fact that drums sent to a non-permitted 
facility should be RCRA empty, non-permitted drum reconditioners are 
still inadvertently receiving containers of hazardous waste that are 
not RCRA empty. Due to the large number of containers that 
reconditioners process, some of these facilities are likely receiving 
and managing significant quantities of hazardous waste residues. This 
volume of residue creates a potentially significant risk to the workers 
and the environment. Additionally, even if receiving only RCRA empty 
containers, because of the large volume of residues, drum 
reconditioners are still potentially receiving and managing significant 
quantities of hazardous waste residues without being subject to RCRA 
hazardous waste regulations.
    In addition to RCRA, drum reconditioners may be subject to certain 
regulations under the Clean Air Act (CAA) and Clean Water Act (CWA). 
Section 129 of the CAA regulations may apply to drum furnaces that 
process RCRA empty containers. These furnaces may be required to obtain 
permits under CAA state plan requirements. Under CWA Section 301, it is 
unlawful for any person to discharge any pollutant into waters of the 
United States without authorization under specific provisions of the 
CWA, including Section 402 (which establishes the National Pollutant 
Discharge Elimination System (NPDES)). CWA Section 307 requires new and 
existing industrial users to pre-treat wastewater discharged to 
Publicly-Owned Treatment Works (POTWs) to prevent pollutants in excess 
of certain limits from passing through POTWs. Either of these CWA 
regulations may apply to drum reconditioners who use washing methods to 
clean out their containers. Detailed background information about how 
RCRA, CAA, and CWA regulations apply to this industry can be found in 
the introduction to the EPA's Drum Reconditioner Damage Case Report.
    The report's findings indicate an estimated national drum 
reconditioning universe of 181 facilities with approximately 40 million 
total metal and plastic containers being processed each year. The data 
also indicates that approximately 35% of drums are reconditioned using 
drum furnaces, and the remaining 65% of containers are reconditioned 
through washing methods. Of the total 181 drum reconditioning 
facilities identified by the EPA, 86 had one or more reported damage 
cases, representing 47.5% of the total industry. The EPA's data also 
indicates that 25% of drum reconditioners that are currently operating 
have had damage cases, 23 facilities experienced damage cases between 
2011 and the present, and 58 of the 86 facilities that experienced

[[Page 54539]]

damage cases had at least one incident occur after the empty container 
provision, found in 40 CFR 261.7, was promulgated in 1980. Damages 
include fires; drum explosions; hazardous waste spills; leaking caused 
by improper storage of drums/containers; employee injuries; air, water, 
or soil contamination; and various combinations of these incidents.
    The EPA is evaluating the generation, transportation, and 
management of used containers, some of which are non-RCRA empty, to 
assess the extent to which regulatory or non-regulatory actions could 
reduce the risk of damages. Essentially, all aspects of the used 
container lifecycle (i.e., generation, transport, and reconditioning) 
can ultimately contribute to environmental contamination. The 
reconditioning of used containers is a vital part of the waste 
management industry and reduces waste overall, but not without 
unintended, serious consequences. The EPA seeks input through this 
ANPRM on what further Agency action, regulatory or otherwise, is needed 
to prevent future damage to human health and the environment from all 
entities involved in the used container lifecycle.

III. Overview of the ANPRM and Request for Comments

A. ANPRM Overview

    The EPA is publishing this ANPRM to facilitate public involvement 
on this critical issue of used container management and to provide a 
mechanism for engaging with industry, as well as with affected 
communities, and to offer a structured opportunity for public comment 
on how the public believes the EPA should address the issues outlined 
in the 2022 EPA Drum Reconditioner Damage Case Report, as well as those 
summarized in Section II of this ANRPM. The EPA plans to use this ANPRM 
as a preliminary way to explore the potential regulatory and/or non-
regulatory options for dealing with the issues at used drum generators, 
transporters, and reconditioners. This ANPRM is not a proposal and no 
changes to the regulations will be promulgated or implemented without 
the proper notice-and-comment rulemaking process and required analyses.
    This ANPRM is organized in order of the potentially affected 
parties: used drum generators, transporters, and reconditioners, and 
then by potential issues involving these parties. The EPA is seeking 
comment on how to address all information and issues discussed in this 
ANPRM.

B. Non-Regulatory Options

    The EPA is looking at potential options to address information and 
issues documented in its Drum Reconditioner Damage Case Report and 
outlined in this ANPRM. In addition to potential regulatory changes, 
the EPA is interested in whether increasing compliance assistance and 
enforcement of the empty container regulations at used drum generators 
could help reduce the number of non-RCRA empty containers that are 
shipped to drum reconditioners and other waste management facilities. 
Regarding the CAA and CWA statutes, the EPA may also consider non-
regulatory approaches at drum reconditioners to address drum furnace 
emissions and wastewater discharge/handling issues, such as increased 
inspections, compliance assistance, or voluntary standards and best 
practices. The development of Standard Operating Procedures (SOPs) 
(Section V.B and VI.A) at used drum generators, transporters, and drum 
reconditioners could also be a non-regulatory option for achieving 
better compliance with existing regulations and requirements. The 
Agency is aware of similar SOPs, guidelines, and certifications 
produced and distributed by the Reusable Industrial Packaging 
Association (RIPA) which aims to ``create uniform operating principles 
for the reusable industrial packaging community.'' \2\ The EPA requests 
comment on other existing industry standards or SOPs that may be 
available for the drum reconditioning industry.
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    \2\ Responsible Packaging Management, Reusable Industrial 
Packaging Association (RIPA), 2010: https://www.reusablepackaging.org/wp-content/uploads/Responsible-Packaging-Management-2010.pdf.
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    The EPA also seeks information on any state compliance assistance 
programs that have focused on these areas, as well as any industry 
initiatives or actions, such as incentive programs, that have been 
successful in decreasing the number of non-RCRA empty containers and/or 
the amounts of hazardous residues that are shipped from used drum 
generators. In addition, the EPA is also interested in learning about 
whether there have been advancements in drum handling or cleaning 
technologies that industry may have developed, or is pursuing, that 
would help make the reconditioning process cleaner or more efficient 
and would be more protective of human health and the environment.

C. Regulatory Summary Table

    In addition to non-regulatory actions, this ANPRM provides detail 
on the potential regulatory options the Agency could consider taking in 
a future rulemaking. The following table outlines and summarizes the 
issues that the Agency considers the most pressing and is currently 
exploring and considering. These options are discussed in more detail 
in the Section indicated in the table.

                                  Table 1--Potential Future Regulatory Options
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                                     Issue that would be     Potential future regulatory
   Potentially affected parties           addressed                    action                   See section
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Used Drum Generators and            Risks posed by         Reduce the ``one-inch''         V.A.
 Transporters.                       contamination from     regulatory limit for defining  V.A.
                                     residues remaining     RCRA empty containers.         V.A.
                                     in non-RCRA empty     Require rinsing for all
                                     containers.            containers before they would
                                                            be considered RCRA empty.
                                                           Require empty drums to meet
                                                            structural integrity
                                                            requirements prior to
                                                            shipment.
                                    Non-RCRA empty drums   Add/strengthen regulatory       V.B.
                                     being sent to drum     requirements for used drum
                                     reconditioners.        generators to ensure all
                                                            waste has been removed from
                                                            containers using commonly
                                                            employed practices prior to
                                                            being sent to reconditioners,
                                                            such as:
                                                            SOPs for drum
                                                            emptying..
                                                            Certification of
                                                            empty drums..
                                                            Employee training....

[[Page 54540]]

 
                                                           Add regulatory language         V.B.
                                                            further clarifying ``commonly
                                                            employed practices'' and
                                                            distinguishing between
                                                            pourable and non-pourable
                                                            wastes.
                                                           Require used drum generators    V.B.
                                                            to track and/or keep records
                                                            of shipments of empty drums.
                                    Risk of fires/         Require drum labeling or other  V.C.
                                     explosions from        documentation conveying the
                                     incompatible,          hazard posed by the drum
                                     reactive, or           residues.
                                     ignitable residues.
Drum Reconditioners...............  Non-RCRA empty drums   Add specific regulatory         VI.A.
                                     being sent to drum     requirements or conditions     VI.A
                                     reconditioners.        for a permit exemption for
                                                            all drum reconditioners such
                                                            as:
                                                            SOPs for screening
                                                            drums prior to acceptance..
                                                            Designated non-RCRA
                                                            empty container storage
                                                            areas..
                                                            Rejected shipment
                                                            procedures..
                                                            Discrepancy reports..
                                                            Container management
                                                            plans..
                                    Risks posed by
                                     contamination from
                                     residues remaining
                                     in non-RCRA empty
                                     containers and in
                                     RCRA empty
                                     containers.
                                                           Require waste analysis plans    VI.A.
                                                            for characterizing rinsate
                                                            from RCRA empty containers.
                                    Stockpiling and        Require all conditioners to     VI.A.
                                     eventual abandonment   conduct regular inspections
                                     of drums.              and maintain inventory of
                                                            drums (RCRA empty and non-
                                                            RCRA empty).
                                                           Require reconditioners to       VI.A.
                                                            obtain financial assurance.
                                    Emissions from drum    Add regulatory requirements     VI.B.
                                     furnaces.              for drum furnaces, such as:
                                                            Controls or emission
                                                            factor limits for drum
                                                            furnaces..
                                                            Limiting the use of
                                                            drum furnaces to containers
                                                            that hold non-hazardous
                                                            residues.
                                                            Requiring pre-
                                                            treatment (for example,
                                                            triple rinsing) of containers
                                                            prior to burning.
                                                            Require a RCRA permit
                                                            for drum furnaces that burn
                                                            containers with residues that
                                                            would be considered hazardous
                                                            waste under 40 CFR part 261
                                                            by revising or removing the
                                                            empty container provision in
                                                            40 CFR 261.7.
                                    Environmental          Require wastewaters from        VI.C.
                                     releases to soil,      rinsing containers to be
                                     groundwater and        managed in tanks and
                                     surface water from     containers, rather than in
                                     contaminants in        land-based units, and to be
                                     mismanaged             discharged only in accordance
                                     wastewaters.           with sections 301 and 402, or
                                                            section 307 of the Clean
                                                            Water Act (CWA).
                                                           Limit discharges to surface     VI.C.
                                                            impoundments to rinsate from
                                                            drums that only held non-
                                                            hazardous materials.
                                                           Prohibit sewer disposal of      VI.C.
                                                            rinsate from drums that
                                                            previously contained
                                                            hazardous materials.
                                    Risk of fires/         Require contingency planning    VI.D & VI. E.
                                     explosions from        and employee training in
                                     incompatible,          responding to emergencies.
                                     reactive, or
                                     ignitable residues.
                                    Lack of regulatory     Require a RCRA Subtitle C       VI.F.
                                     oversight and public   Permit or a variance.
                                     participation.
Drum End-of-Life Management         Risk from              Limit 40 CFR 261.7 empty        VII.
 Facilities (e.g., scrap yards and   contaminated scrap     container provision to
 landfills).                         metal and plastic      containers sent to drum
                                     when recycled or       reconditioners (possibly
                                     land disposed.         coupled with new regulatory
                                                            requirements for
                                                            reconditioning).
                                                           Require containers to be truly  VII.
                                                            empty (not just ``RCRA
                                                            empty'') before going to
                                                            scrap recycling or disposal.
                                                           Require containers with any     VII.
                                                            amount of hazardous residues
                                                            (including crushed or
                                                            shredded containers) to meet
                                                            the hazardous debris
                                                            alternative treatment
                                                            standards in 40 CFR 268.45
                                                            prior to being land disposed.
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    In addition to asking for comment on the substance of possible 
future regulatory requirements to address the issues described above, 
the EPA is also requesting comment on the approach for these 
requirements. One possible approach would be to simply remove the empty 
container provision, which would impose full RCRA Subtitle C 
requirements on residues in drums from the point they are generated to 
the point that the drums no longer contain any residue.\3\ Among other 
outcomes, such a comprehensive change would require drum reconditioners 
that only process RCRA empty containers, as we currently define empty, 
to obtain a RCRA permit

[[Page 54541]]

and would require companies that attempt to empty drums to count any 
remaining residue towards their monthly hazardous waste generator 
status and to use a hazardous waste manifest and transporter for 
shipments of, in most cases, nearly empty drums. However, the risk 
posed by drums containing residue during storage and transport may not 
require such extensive regulation to ensure protection of human health 
and the environment. Additionally, requiring a RCRA permit for drum 
reconditioners that only process RCRA empty containers could undermine 
the entire system of reconditioning drums for re-use, potentially 
resulting in an unintended increase in mismanagement and abandonment of 
drums containing residue.
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    \3\ Absent the empty container provision in 40 CFR 261.7, a drum 
that had held listed hazardous waste, or that had held a material 
exhibiting one or more characteristics that would be considered 
hazardous waste when disposed of, would need to either meet the 
hazardous debris alternative treatment standards in 40 CFR 268.45 or 
receive a determination per 40 CFR 261.3(f)(2) from the Regional 
Administrator that the drum is no longer contaminated with hazardous 
waste.
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    Some of the potential regulatory changes discussed in the table 
above could be added as conditions to the generator regulations in 40 
CFR part 262, to the exemptions from RCRA permitting in 40 CFR 264.1(g) 
and 40 CFR 265.1(c), and/or to the empty container provision 40 CFR 
261.7 itself. The advantage of adding conditions to the existing 
regulations is that they can be tailored to address the specific risks 
posed by drums containing hazardous waste residue, and the consequence 
of not meeting these conditions would be full hazardous waste 
regulation. The EPA could also create specific management standards for 
[emptied] containers in 40 CFR part 266, as has been done in the past 
for other specific hazardous wastes and specific types of hazardous 
waste management facilities. Implementing the potential regulatory 
changes by adding a new subpart to 40 CFR part 266 would have the 
advantage of maintaining all the requirements for containers with 
residue in one place in the regulations.
    Finally, the EPA could use the variance procedures in 40 CFR part 
260 to develop a variance from permitting requirements for drum 
reconditioners, provided certain criteria are met. The advantage of 
using such an approach is that it would increase regulatory oversight 
of drum reconditioners (because the EPA or the authorized state would 
need to review and approve the variance petitions) and would also allow 
for public notice and comment.
    While each of the approaches for adding possible regulatory 
requirements to [emptied] drums containing residue has both advantages 
and disadvantages from a practical standpoint, they all would have the 
same goal: to ensure protection of human health and the environment 
from the management of hazardous residues in [emptied] containers.

IV. Environmental Justice

    The EPA understands that drum reconditioning facilities may raise 
significant environmental justice concerns for communities that 
experience disproportionate and adverse human health and environmental 
burdens, and the Agency intends to ensure any decisions made reflect 
the importance of protecting the health and well-being of communities 
who have suffered environmental injustices. Conducted as part of the 
Drum Reconditioner Damage Case Report, a preliminary analysis using 
EPA's EJSCREEN tool indicated 94.2% of drum reconditioning facilities 
with damage cases are located in communities that already bear an 
environmental burden from other sources of pollution, exhibit 
characteristics of social vulnerability, or both, with many facilities 
located in areas where people of color and low-income populations are 
specifically impacted.\4\ Emissions from drum furnaces and drum 
cleaning operations, and wastewater discharges from washing operations 
can threaten the facility's surrounding communities and environment, 
and the high level of damage incidents also puts communities with 
environmental justice concerns directly in harm's way, considering the 
frequency with which emergencies (such as fires and explosions) and 
abandonment of hazardous materials occur at drum reconditioning 
facilities.
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    \4\ EPA 2022 Drum Reconditioner Damage Case Report, September 
2022, EPA-530-R-22-003. https://www.epa.gov/hw/drum-reconditioner-damage-case-report.
---------------------------------------------------------------------------

    It is clear from the damage case report that these hazards directly 
affect the well-being of the communities nearest drum reconditioners. 
For instance, in one case, investigators found a drum reconditioning 
facility had thousands of abandoned drums on site, many of which were 
full and leaking. Investigators even found a bicycle and children's 
toys strewn amongst the abandoned drums, demonstrating that vulnerable 
community members such as children were directly exposed to the unknown 
chemicals spilling from the abandoned drums because the facility had 
accepted non-RCRA empty drums and failed to control access to the 
property.\5\ In another case, a drum reconditioner in a low-income, 
primarily minority community, dumped the contents of drums--which 
should have been empty--onto the soil and dug holes on their site to 
bury hazardous chemicals, leading to widespread soil and water 
contamination and extensive onsite and offsite damage.\6\
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    \5\ EPA, Damage Case Report, Drumco Drum Dump, [page 87].
    \6\ EPA, Damage Case Report, Martin Aaron, Inc., [page 130].
---------------------------------------------------------------------------

    Many of the possible solutions the EPA is seeking comment on in 
this ANPRM could help address these environmental justice concerns when 
enacted. Any changes that lead to better compliance, fewer releases, 
and/or stricter controls would most directly benefit the communities 
nearest these facilities. For instance, stricter enforcement of 
existing air or water permits, and expansion of RCRA permit 
requirements to reconditioners that process RCRA empty containers that 
still contain residue, could help address some of the environmental 
justice concerns detailed earlier in this section. Localized air 
emissions and water discharge issues could be mitigated through 
stricter controls on those reconditioners that are already required to 
obtain air and/or water permits. Likewise, requiring drum 
reconditioners that process empty containers to obtain a RCRA 
Treatment, Storage, and Disposal Facility (TSDF) permit, or requiring 
such facilities to obtain a variance, would provide a mechanism for 
community engagement, as the RCRA permitting process and the variance 
process requires notice and comment to facilitate public participation 
before a permit or variance is issued. Implementing these, or any of 
the other potential changes discussed in this ANPRM, would likely 
result in environmental justice benefits by reducing the negative 
effects caused by facilities located in overburdened communities.
    Finally, it should be noted that the EPA has limited ability to 
influence the siting of these facilities because those decisions fall 
primarily to state and local authorities (e.g., land use decisions like 
zoning are controlled mostly at the local level). However, the EPA is 
interested in establishing policies within its authority that would 
address the environmental justice concerns associated with this 
industry; in particular, the EPA is requesting public comment on 
additional ways the Agency could promote environmental justice under 
our existing authorities. The EPA also encourages commenters providing 
input on separate issues and solutions discussed in the rest of the 
ANPRM to incorporate environmental justice considerations into their 
feedback.

[[Page 54542]]

V. Used Drum Generator and Transporter Issues

A. Emptying Containers

    Used drum generators are responsible for the hazardous waste they 
generate, including ensuring its proper disposal. This responsibility 
extends to hazardous waste that is sent to a drum reconditioner in a 
non-RCRA empty container. As discussed in Section II, the RCRA 
regulatory definition of ``empty'' for regular hazardous waste 
containers (40 CFR 261.7) has two parts: (1) All wastes have been 
removed that can be removed using the practices commonly employed to 
remove materials from that type of container, e.g., pouring, pumping, 
and aspirating, AND (2) no more than 2.5 centimeters (one inch) of 
residue remains or no more than 3% by weight remains if the container 
is less than or equal to 119 gallons or no more than 0.3% by weight 
remains if the container is more than 119 gallons. This section also 
states that a container or an inner liner removed from a container that 
has held an acute hazardous waste listed in Sections 261.31 or 
261.33(e) is empty if: (i) the container or inner liner has been triple 
rinsed using a solvent capable of removing the commercial chemical 
product or manufacturing chemical intermediate; (ii) the container or 
inner liner has been cleaned by another method that has been shown in 
the scientific literature, or by tests conducted by the generator, to 
achieve equivalent removal; or (iii) in the case of a container, the 
inner liner that prevented contact of the commercial chemical product 
or manufacturing chemical intermediate with the container, has been 
removed.
    As part of increasing awareness around this issue, the EPA could 
emphasize the first part of that definition to ensure that used drum 
generators, transporters, and state regulators are all aware that to be 
RCRA empty, a container must meet all parts of the definition. The 
Agency could add regulatory language or guidance explaining the type of 
practices commonly used to remove residues from containers for both 
solid and liquid materials. Another option is to take a similar 
approach as California and add language explaining what it means to 
empty drums that held pourable versus non-pourable hazardous residues 
to meet the RCRA empty definition.\7\
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    \7\ See Title 22, California Code of Regulations, section 
66261.7: Contaminated Containers for specific language.
---------------------------------------------------------------------------

    A regulatory revision to address this issue might amend the second 
part of the empty container definition (i.e., change the amount that 
can remain to less than 2.5 centimeters (1 inch)) by changing the 
residue level that would still be considered RCRA empty before it 
leaves the used drum generator site. Alternatively, the regulations 
could be modified to require some rinsing of a drum that held non-acute 
hazardous waste, similar to the requirement to triple rinse containers 
that held P-listed (acutely toxic) hazardous waste.
    The EPA is taking comment on all options discussed in this section. 
In particular, the EPA is interested in any comments on what would be 
an adequate amount of rinsing and any data that drum reconditioners, 
chemical manufacturers, or others may have on the degree of rinsing 
that is necessary to remove common types of hazardous waste, such as 
spent solvents, U-listed and P-listed commercial chemical products, 
etc. In addition, the EPA seeks public comment on whether the empty 
container regulations should be modified to account for different 
characteristics that may make some materials harder to remove than 
others, such as viscosity.

B. Shipping of Non-RCRA Empty Containers

    The EPA is considering requiring used drum generators to have SOPs 
that they would use before shipping containers off site for 
reconditioning. Following the SOPs would ensure that drums are RCRA 
empty as currently defined in 40 CFR 261.7 and that the used drum 
generators don't intentionally or inadvertently ship drums that are not 
RCRA empty. The SOPs could also include procedures for non-RCRA empty 
containers, including the requirement to manifest ones with regulated 
hazardous residues to an appropriate RCRA-permitted TSDF if the used 
drum generator cannot empty the container enough to meet the empty 
container definition. The TSDF could then accept the non-RCRA empty 
containers and finish the process of emptying them before sending them 
on to a drum reconditioner. If the TSDF can ensure the drums are RCRA 
empty, then they would not need to be manifested from the TSDF to the 
drum reconditioner. The EPA and state implementing agencies could 
emphasize having and using the SOP when they do inspections of used 
drum generators.
    The EPA is also interested in whether requiring labeling (similar 
to 40 CFR 262.17(a)(5)(i)) of empty drums would help ensure proper 
management not only by the used drum generator, but also by the 
transporter and drum reconditioner, particularly regarding the 
management of incompatible or potentially ignitable residues. In 
addition, if a non-RCRA empty container comes into a facility, then the 
information on the label would likely be very helpful in making an 
accurate hazardous waste determination for the facility to send that 
non-RCRA empty container on to a TSDF. Another possibility would be to 
allow the use of a nationally recognized electronic system, such as a 
bar-coding system or QR coding system that is part of a company's waste 
profiling system, to include the information that would be needed to 
ensure proper management of the containers. The Agency is interested in 
real-world examples of how such electronic systems could be used to 
provide the same information as a label.
    A real-life example of where the lack of information of what was 
left in a container had tragic consequences was when an employee was 
killed in an explosion at a drum reconditioner when incompatible wastes 
were mixed (potentially due to their lack of labeling). The explosion 
also severely damaged the facility and caused the company to declare 
bankruptcy.\8\ Lack of information about a container's origins (i.e., 
who sent it, and from where, contents, etc.) can also create issues 
such as difficulty for employees at reconditioning facilities to 
determine proper handling procedures and proper personal protective 
equipment (PPE), challenges with spill response and clean up during 
transportation or upon arrival at the drum reconditioner as the nature 
of the chemicals remaining in the drum are unknown, and the inability 
of reconditioners to inform their local first responders of the likely 
hazardous materials present on site. In the preceding example and in 
other cases, drum reconditioners have ceased operations and left 
unlabeled drums of unknown material in place when they closed.\9\
---------------------------------------------------------------------------

    \8\ EPA, Damage Case Report, Chief Supply/Greenway 
Environmental. [page 63]
    \9\ EPA, Damage Case Report, Superior Barrel and Drum Co. [page 
177]
---------------------------------------------------------------------------

    The EPA is aware that the Department of Transportation (DOT) 
labeling requirements may continue to apply to packagings of hazardous 
materials even after they have been emptied, but the EPA is interested 
in whether additional labeling should be required for used containers 
beyond the DOT requirements. The EPA could consider addressing labeling 
issues by establishing more stringent labeling criteria, such as making 
the empty

[[Page 54543]]

container provision contingent upon certain labeling standards, which 
would encourage generators sending containers for reconditioning to 
also send accompanying information like waste identification, warning 
placards, or resources for more information about the container's 
previous contents and the non-regulated residues still in the 
container.
    The EPA could also (or alternatively) require that information such 
as the identity of the material and its origins follows the container 
until it is reconditioned. This approach could be performance-based in 
order to allow existing documents, such as hazardous waste manifests or 
bills of lading, to be used as identifying paperwork, so long as they 
provide the required information about the nature of the material, its 
origin, and any other information deemed critical. Information 
presented in a standardized format like this could provide a quick 
reference in the event of a release or emergency, as a specific party 
would be responsible for taking ownership of the leaking/damaged drum. 
For example, a used drum generator would produce a bill of lading that 
details the containers they are sending, the containers' previous 
contents, any relevant warnings, and information about the used drum 
generator, then hand off that document to the driver or other 
transporter, who would then provide it to the reconditioner when the 
containers are delivered. The Agency is interested in receiving 
comments on the extent that existing paperwork could be used for this 
purpose and whether there needs to be additional tracking information 
that directly links each container to its previous contents, perhaps 
through a bar-coding or QR-coding system.
    The EPA has been told by one stakeholder group that this lack of 
labeling information is a major issue for drum reconditioners. 
Therefore, the Agency is requesting further comment on the extent and 
severity of this issue, as well as the anticipated effects of employing 
the strategies outlined in this section and other potential solutions 
to this problem.
    Other potential solutions to used drum generators and TSDFs 
shipping non-RCRA empty containers could be requiring generators and 
TSDFs to certify that the containers sent to drum reconditioners are 
empty per the regulatory definition in 40 CFR 261.7. This certification 
could be included in the shipping papers or in a log maintained at the 
generator or the TSDF. Another option would be to include the 
generator/TSDF's certification that the container is RCRA empty on any 
required labeling. The Agency is interested in whether requiring the 
certification on each individual container's labeling would assist 
inspectors and state implementing agencies.
    As part of requiring an SOP or perhaps as a separate requirement, 
the EPA is interested in whether additional employee training on the 
empty container requirements is needed at used drum generators, 
including hazardous waste generators. If an SOP is required of used 
drum generators, then ensuring employees are properly trained on how to 
empty containers and make sure the containers sent off-site are RCRA 
empty would be a required component of the SOP. Other good management 
practices could be included in the training such as making sure the 
containers that are sent for reconditioning are in good condition and 
not leaking, are properly labeled, etc.
    The EPA is also interested in whether used drum generators should 
be required to track their shipments of empty containers sent off site 
or keep records of these shipments in order to help verify which 
generators have been properly emptying their drums. The EPA could 
consider imposing these requirements in instances where drum 
reconditioners have repeatedly received non-RCRA empty containers from 
used drum generators.
    The EPA is interested in public comment on the need for used drum 
generators to keep records or track their shipments of containers to 
drum reconditioners and when it would be appropriate to impose these 
tracking requirements discussed in this section. For example, if the 
Agency determined it was not necessary as long as used drum generators 
were only sending empty containers, then the EPA could propose only to 
impose the tracking or recordkeeping if there is a history of shipping 
non-RCRA empty containers off site. The EPA expects that bills of 
lading would be sufficient and electronic records would be acceptable 
for this tracking. In addition, the Agency requests comment on how to 
obtain information on facilities that indicate a history of shipping 
non-RCRA empty containers, and how the Agency should establish and 
implement a notification system.

C. Container Packaging (Integrity)

    The physical state of container packaging (i.e., the container 
itself and any accompanying equipment necessary to prevent leakage, 
spills, etc.) also arose as a major issue causing damage cases in the 
drum reconditioning process. This issue occurs when generators of used 
drums or other containers fail to ensure the container itself is in 
good physical shape, such that no leaks or spills are liable to occur. 
Corroded drums and damaged containers are some examples of what the EPA 
would consider to be in improperly or poorly packaged. Failure to 
properly close containers (e.g., securing lids or bungs appropriately) 
may also contribute to this problem.
    In addition, transporters of these improperly packaged containers 
may fail to inspect the packagings offered for transport to ensure they 
meet certain standards. In particular, the DOT's Hazardous Material 
Regulations (HMR) outline specific requirements for containers that 
contain, or once contained, hazardous materials (including hazardous 
waste). Both generators (referred to by DOT as ``offerors'' for 
transportation) and transporters have a responsibility to comply with 
the HMR and its packaging requirements.
    Damaged or otherwise compromised containers are more likely to leak 
or spill hazardous materials than structurally sound containers. Even 
though drums and other industrial containers should be RCRA empty 
before being sent to the drum reconditioner, the residue in a RCRA 
empty container may present an environmental hazard that could be 
released through leaks or other failure points. Even though RCRA empty 
containers are not currently subject to hazardous waste regulation, the 
cumulative residues from many RCRA empty containers may still present 
an environmental hazard, especially when millions of containers are 
being managed. Additionally, in noncompliant scenarios, non-RCRA empty 
containers may be offered for transportation, creating a risk of a 
larger spill if the container or packaging is degraded.
    Potential solutions to the packaging integrity issue include more 
stringent packaging regulations and better inspection practices. In the 
former case, regulatory revisions to the empty container provision 
could introduce special requirements regarding packaging integrity that 
must be met in order for a used drum generator/hazardous waste 
generator to avail themselves of that provision. This regulatory change 
could outline specific requirements for used drum generators in 
preparing their empty containers for shipment and provide an 
enforcement mechanism in cases in which structurally compromised 
containers are improperly prepared for transport. More

[[Page 54544]]

thorough inspections could also help generators offering containers for 
transport and transporters providing the service to identify improper 
container packaging that presents an elevated risk because of its 
degradation or improper closure. Additional actions to address these 
problems could include providing best management practices or other 
resources to consult when packaging a drum or IBC to be transported 
and/or issuing mandatory requirements to ensure that all responsible 
parties verify the integrity of the packaging before it is sent to a 
reconditioner.
    The EPA is requesting comment on the frequency of such voluntary 
practices, the anticipated effect of such regulatory changes, and any 
other information that commenters believe the Agency would need to 
properly inform future action related to container packaging.

VI. Drum Reconditioner Issues

A. Acceptance, Storage, Handling, and Management of Non-RCRA Empty 
Containers

    As mentioned in Section V.A of this preamble, and as concluded in 
the EPA's Drum Reconditioner Damage Case Report, drum reconditioners 
often unintentionally receive containers that previously held a variety 
of materials, including hazardous chemicals, and are managing drums 
with hazardous residues that do not meet the 40 CFR 261.7 definition of 
``empty'' without the required RCRA permit to do so. In such 
situations, the EPA has determined that, though the generator bears 
responsibility for ensuring that a container is, in fact, RCRA empty 
when sent offsite (Section V.A), the receiving entity/drum 
reconditioner also shares responsibility for properly identifying and 
managing containers that do not meet the RCRA empty definition in 
accordance with 40 CFR 261.7 and are responsible for managing the 
container under all pertinent RCRA regulations once it comes under 
their control.
    The residues remaining in these non-RCRA empty containers pose 
numerous risks, as described in previous sections, and as a result of 
issues outlined in the EPA's Drum Reconditioner Damage Case Report and 
listed throughout this ANPRM, the Agency has identified the need to 
explore possible approaches to update, support, and/or complement the 
empty container provision at 40 CFR 261.7. These approaches, discussed 
hereafter, may be used to identify when a non-RCRA empty container is 
sent to a drum reconditioner; to provide a mechanism for drum 
reconditioners to properly and safely store, and then reject, non-RCRA 
empty containers; and/or to update and enforce procedures and practices 
to better manage containers within the scope of the existing 
regulations.
    The EPA's Drum Reconditioner Damage Case Report featured several 
examples of damage cases that were caused by abandoned or stockpiled 
non-RCRA empty containers on drum reconditioner properties. After 
acceptance, these containers were left in various states, but many were 
damaged, unattended, uninspected, and lacked proper container 
management, storage, or secondary containment. One site had 500 drums 
known to be abandoned and approximately 50,000 gallons of abandoned 
hazardous residues, with the estimated cleanup cost for soil and 
groundwater contamination found to be $928,000.\10\ Another site that 
had a drum cleaning operation, along with other operations, with 
several drums, tanks, and other debris abandoned in an open field 
referred to as the ``bone yard,'' had a fire/explosion, which killed an 
employee. Approximately 33,000 gallons of hazardous waste remained 
onsite with many deteriorating containers holding unknown contents 
after the site was abandoned in 2000.\11\
---------------------------------------------------------------------------

    \10\ EPA, Damage Case Report, Central Steel Drum Co., [p. 60].
    \11\ EPA, Damage Case Report, Chief Supply/Greenway 
Environmental, [p. 63].
---------------------------------------------------------------------------

    Potential approaches to address the issues of improper storage and 
abandoned drums could include the EPA requiring drum reconditioners to 
create SOPs to identify, properly store, and reject drums or containers 
that do not meet the RCRA definition of empty per 40 CFR 261.7. These 
SOPs could be specific, and include procedures such as steps to 
evaluate trailers and/or containers integrity/condition and contents 
that arrive on the reconditioner's properties; the inspection of 
shipping documents or labels to confirm that the customer signed a 
certification attesting that the containers are RCRA empty (new 
requirement); verification that the trailer and/or container's contents 
match the bill of lading; confirmation that the containers and/or 
trailers are not leaking; and the use of an arrival log with the date 
of receipt of the containers and/or trailer, the customer's name and 
location where the containers came from, and the container quantity.
    The EPA could also require drum reconditioners to place suspected 
and known non-RCRA empty containers (even those whose contents are not 
yet characterized as hazardous waste) in a designated ``Non-Empty 
Container Storage Area'' immediately after identifying the containers 
as suspected or actual non-RCRA empty containers. The designated drum 
storage area would have to meet management and design specifications, 
such as identification with a marked boundary, either locked and/or 
secured fencing, and signage to clearly delineate the area's purpose. 
The design specifications could include a minimum volume requirement 
for secondary containment, an impervious base surface to prevent or 
capture runoff, minimum aisle space, and/or a canopy, lid, or other 
cover to prevent precipitation from entering the area. The EPA could 
also require inspections of the ``Non-Empty Container Storage Area'' 
that would happen at regular time intervals and could require that a 
drum inventory for RCRA empty and non-RCRA empty containers be 
maintained.
    The EPA has also identified improper management practices and 
handling procedures of non-RCRA empty and RCRA empty containers at drum 
reconditioners that have led to various damage cases including, but not 
limited to, spills and leaks from puncturing or dropping containers, 
and explosions, fires, fumes, and burns from the mixing of incompatible 
wastes. Several higher profile damage cases include a fire that 
occurred when sodium chlorite ignited after an employee punctured a 
steel drum with a forklift, which required 200 emergency workers from 
38 different emergency companies to contain the fire \12\ and an on-
site explosion occurring at another facility when workers attempted to 
repack two drums containing ignitable mixtures.\13\
---------------------------------------------------------------------------

    \12\ EPA, Damage Case Report, Scranton Cooperage/American 
Container Processors/Kearny Steel Container, [p. 173].
    \13\ EPA, Damage Case Report, Aqua-Tech Environmental, 
Incorporated (Groce Laboratories), [p. 37].
---------------------------------------------------------------------------

    To mitigate poor management and handling at drum reconditioners, 
the EPA could require drum reconditioners to create and follow new 
industry-wide SOPs for the receipt and evaluation of all containers to 
ensure they are properly sealed and not leaking, or do not have the 
potential to leak, during storage or prior to the reconditioning 
process. The EPA could also require reconditioners to handle and store 
all containers in a manner that prevents rupture or leaking, which 
could include container integrity inspections and secondary containment 
requirements, prohibition of the consolidation or mixing of materials, 
chemicals, or wastes in all containers, in addition to a requirement 
for mandatory materials handling training for all employees on

[[Page 54545]]

a recurring basis. These requirements could be coupled with used drum 
generator labeling requirements (such as those at 40 CFR 
262.17(a)(5)(i)), as discussed in Section V.C, so handlers and 
reconditioners would know the contents or previous contents of non-RCRA 
empty containers. The Agency could also include a regulatory mechanism 
to provide requirements for drum reconditioners to reject non-RCRA 
empty containers from the transporters.
    The EPA could also require the preparation of a waste analysis 
plan, similar to what is required for RCRA permitted facilities and 
generators who perform treatment (per 40 CFR 264.13, 265.13, and 
268.7); require non-RCRA empty containers containing hazardous waste to 
be sent to permitted TSDFs within a certain timeframe; require the 
creation and maintenance of discrepancy reports where drum 
reconditioners send the report to the used drum generator who sent non-
RCRA empty containers and to the implementing agency such as the EPA or 
state; require the creation of container management plans, which could 
have specific requirements such as weekly inspections, record keeping, 
etc.; and/or require drum reconditioners to have financial assurance to 
demonstrate that they will have the financial resources to respond to 
contamination, clean up releases, address environmental and human 
health risks, or properly close the facility or unit when its 
operational life is over; or provide the appropriate emergency response 
in the case of an accidental release.
    In addition, any of the options listed in this section could be 
combined with developing new or more tailored requirements focusing 
specifically on certain aspects of the RCRA regulations applicable to 
this specific industry (e.g., revising allowable limits in the empty 
container regulations at 40 CFR 261.7, mentioned in Section V.B).
    The EPA could also explore allowing drum reconditioners the option 
of applying for a variance from RCRA hazardous waste permitting if they 
meet certain conditions, such as the creation and use of SOPs in drum 
management areas, more appropriate labeling and handling procedures, 
and other potential requirements discussed in this section and 
throughout the ANPRM. Requiring that drum reconditioners apply for a 
variance, rather than setting up self-implementing procedures, would 
allow more oversight by the regulatory authority and provide a 
mechanism for public notice and comment under the existing variance 
procedures in 40 CFR 260.33.
    The EPA requests comment on the issue of the acceptance, 
management, storage, handling, and improper and potentially unsafe 
practices and procedures at drum reconditioners for containers that do 
not meet the definition of RCRA empty in 40 CFR 261.7. The EPA is 
soliciting information on the prevalence of these problems, existing 
practices and procedures implemented at facilities, and any practical 
difficulties or unintended consequences that may arise from the 
possible regulatory solutions to this problem.

B. Emissions From Drum Furnaces

    Of the estimated 17 million steel drums that went to reconditioning 
in 2021, about 35% were processed in a drum furnace, where the residues 
remaining in the drums are destroyed through incineration.\14\ The 
thermal process applies heat to open head drums that previously 
contained viscous and/or organic materials such as paints, resins, 
tars, and adhesives. These drums are processed through a furnace at 
approximately 1,200 degrees Fahrenheit ([deg]F) to incinerate residues 
of the former contents of the drums. It has been reported that exhaust 
from the combustion process is typically drawn into an afterburner at 
approximately 1,800 [deg]F.\15\
---------------------------------------------------------------------------

    \14\ Reusable Industrial Packaging Association. ``U.S. Packaging 
Reconditioning Industry 2021 Survey and Statistics''. December 2022. 
https://www.reusablepackaging.org/wp-content/uploads/2022/12/Survey-Report-2021.pdf.
    \15\ Sun West Container, A Basco Company. ``Reconditioned Drums 
101''. https://sunwestcontainer.com/blog/reconditioned-drums-101.
---------------------------------------------------------------------------

    Combustion units that process RCRA empty containers are not 
required to get hazardous waste incineration permits because the 
residues remaining within the container are exempt when the container 
is burned (assuming the containers actually meet the RCRA definition of 
``empty'').\16\ Clean Air Act (CAA) section 129 may apply to these 
combustion units, but currently there may not be specific regulatory 
requirements for drum furnaces that process RCRA empty drums. However, 
these combustion units may be required to obtain permits under CAA 
requirements and may also be subject to 40 CFR part 63 subpart EEE (or 
264 subpart O) if burning hazardous waste from non-RCRA empty 
containers.
---------------------------------------------------------------------------

    \16\ EPA 1986. ``Burning Of Residues Remaining in Empty 
Containers,'' memo from Alan S. Corson, Branch Chief, Studies and 
Methods Branch, U.S. Environmental Protection Agency, to Dale D. 
Parker, Executive Secretary Utah Solid and Hazardous Wastes 
Committee, January 7, 1986, RO 12535.
---------------------------------------------------------------------------

    In the EPA's Drum Reconditioner Damage Case Report, several 
facilities with drum furnaces were noted as creating a public nuisance 
through odorous emissions including emissions from drum washing 
operations, failing to keep proper records of Hazardous Air Pollutant 
emissions, and exceeding emission limits for several pollutants, which 
in several instances resulted in penalties resulting from enforcement 
cases under the CAA. In one case, a former employee recounted how the 
facility chose to burn materials before dawn so that nobody would 
observe the dark, black cloud of emissions that resulted.\17\
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    \17\ EPA, Damage Case Report, Columbus Steel Drum Company [p. 
70], Drumco of Arkansas [p. 89], Industrial Container Services--MI, 
LLC [p.119], Meyer Steel Drum, Inc. [p. 137], Mid-America Steel Drum 
Co, Inc.--Saint Francis [p. 144], Mid-America Steel Drum Co, Inc.--
Oak Creek [p. 147].
---------------------------------------------------------------------------

    Possible solutions that the EPA may pursue in a future regulatory 
action to address emissions at drum reconditioners could include 
requiring specific emissions controls or emission factor limits for 
drum furnaces under RCRA section 3004(n) authority to control emissions 
from the management of hazardous waste, limiting the use of drum 
furnaces to containers that held non-hazardous materials, requiring a 
RCRA incineration permit for furnaces that burn containers with 
residues that would be considered hazardous waste under 40 CFR part 261 
(absent the 40 CFR 261.7 empty container provision), and/or requiring 
pre-treatment (for example, triple rinsing) of containers prior to 
burning.
    The EPA requests comment on the issue of emissions from drum 
furnaces, including any information on the prevalence of this problem; 
methods that have been successfully used to address emissions from 
these types of furnaces, including any state air requirements or 
programs that addressed these furnaces; and any practical difficulties 
or unintended consequences that may arise from the possible regulatory 
solutions to this problem.

C. Management and Mismanagement of Wastewaters and Other Wastes 
Generated From Drum Reconditioning

    One major underlying cause of contamination of soil, groundwater, 
and surface waters at drum reconditioners is the mismanagement of 
wastewaters. The greatest source of wastewater from this industry is 
rinse water from drum cleaning operations. Other sources include 
interior pre-flushes and washes; spent cleaning solutions; exterior 
wash water; leak testing wastewater; compressor condensate; boiler 
blowdown; acid washing emissions

[[Page 54546]]

scrubber water; and label removal. The wastewaters can contain a wide 
variety of pollutants, including volatile organic compounds, semi-
volatile organic compounds, metals, and dioxins and furans.\18\
---------------------------------------------------------------------------

    \18\ EPA 2006. Memorandum to Public Record for the 2006 Effluent 
Guidelines Program Plan: Industrial Container and Drum Cleaning 
Industry, loadings estimates and pass through analysis [DCN 03415], 
September 11, 2006 (updated). https://www.regulations.gov/document?D=EPA-HQ-OW-2004-0032-2392.
---------------------------------------------------------------------------

    Rinse waters from RCRA empty containers are only regulated as 
hazardous waste if they exhibit a hazardous waste characteristic, or if 
the rinsing agent is a listed hazardous waste when used (such as 
certain spent solvents).\19\ Rinse waters can cause environmental 
problems when mismanaged, as evidenced in the large number of drum 
reconditioning damage cases resulting from the mismanagement of 
wastewaters. In some of the damage cases, rinse water was simply dumped 
on the ground, and in others it was discharged to an unlined surface 
impoundment (i.e., pond, lagoon, pit, catchment basin, etc.).\20\ These 
practices can result in the contamination of soil, groundwater, and 
adjacent wetlands with various hazardous constituents, including 
organic compounds, polychlorinated biphenyls, pesticides, and heavy 
metals. In one damage case, wastewater was managed in open concrete 
sumps that were connected by open concrete trenches. Caustic wash water 
from this drum reconditioning process migrated via underground seepage 
to a nearby elementary school property, resulting in the school being 
closed.\21\
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    \19\ EPA 2004. Policy On the Management of Rinsate from Empty 
Containers. Letter from Robert Springer, Director Office of Solid 
Waste, to Casey Coles, Hogan and Hartson, L.L.P, April 12, 2004 (RO 
#14708) https://rcrapublic.epa.gov/rcraonline/details.xhtml?rcra=14708; See also 70 FR 57779, October 4, 2005.
    \20\ EPA, Damage Case Report, Bay Area Drum Co., [p. 45], 
Bayonne Barrel & Drum Co., [p. 47], Callaway & Son Drum Service, [p. 
54], David John Property, [p. 81]; Des Moines Barrel & Drum Co., [p. 
81]; Hassan Barrel Company Inc., [p. 109]; Helms Drum Service, [p. 
111]; Metro Container Corporation, [p. 133]; Miami Drum Service, [p. 
140]; New England Container Co., [p. 155], and, Northwestern Barrel 
Co., [p. 157].
    \21\ EPA, Damage Case Report, Cooper Drum Co., [p. 172].
---------------------------------------------------------------------------

    In other cases, wastewater was discharged to the sewer or to 
surface waters without a permit or in exceedance of permit limits.\22\ 
In one example, workers evacuated the facility for about a half hour 
after ``a horrible smelling orange cloud'' filled the plant after 
residues were washed down the drain, presumably from incompatible 
chemicals being mixed.\23\ In one extreme case, the EPA documented 
illegal dumping of caustic waste into the King County sewer system, 
which ultimately empties into the Puget Sound. The company used a 
hidden drain, and over ten years, lied to regulators to carry out their 
illegal dumping.\24\
---------------------------------------------------------------------------

    \22\ EPA, Damage Case Report, Barrel & Drum Service, Inc., [p. 
42], Container Recyclers of South Jersey, [p. 66], Environmental 
Waste Resources, Inc., [p. 99], and Patrick J. Kelly Drums, Inc., 
[p. 160].
    \23\ EPA, Damage Case Report, Mid-America Steel Drum Co, Inc., 
[p. 142].
    \24\ EPA, Damage Case Report, Seattle Barrel Company, [p. 175].
---------------------------------------------------------------------------

    One process that contributes to the contamination resulting from 
wastewater mismanagement is the discharge of contaminated rinse water 
from cleaning non-RCRA empty containers. Thus, some of the approaches 
discussed in Sections V.A and VII.A to reduce the number of non-RCRA 
empty drums sent to reconditioners and to provide a practical system 
for reconditioners to reject non-RCRA empty drums would also help 
address potential problems presented by wastewater mismanagement.
    However, even without the contribution of residues from non-RCRA 
empty drums, drum reconditioning rinse water could contain significant 
levels of contaminants. If all 12.1 million hazardous material-
containing drums (plastic and steel estimated from RIPA's 2021 Industry 
Survey and Statistics Report) reconditioned each year have up to one-
inch of chemicals remaining after emptying, that would mean residues 
from these drums could amount up to 20.9 million gallons of hazardous 
materials per year.\25\ In addition, the rinsing agent itself may 
present other hazards.
---------------------------------------------------------------------------

    \25\ Based on data from U.S. Packaging Reconditioning Industry 
2021 Survey and Statistics, Reusable Industrial Packaging 
Association, December 20, 2022. Estimate includes 17 million steel 
drums, 61% used for hazmat, and 2.6 million plastic drums, 68% used 
for hazmat. Assumes 1.7 gallons per drum, based on 11.25-inch radius 
for a conventional drum, V= [pi]r\2\h.
---------------------------------------------------------------------------

    Accordingly, other possible regulatory solutions the EPA may 
consider include requiring hazardous wastewaters from RCRA empty drums 
to be managed in tanks and containers rather than in land-based units, 
and to be discharged only in accordance with sections 301 and 402,\26\ 
or section 307,\27\ of the Clean Water Act. The EPA may also consider 
limiting discharges to surface impoundments to rinsate from drums that 
only held non-hazardous substances, and/or prohibiting sewer disposal 
of rinsate from drums that previously contained hazardous materials. 
The EPA may also consider requiring reconditioners to develop and 
follow waste analysis plans so that the drum reconditioner makes an 
informed decision in determining the compliant management method for 
the wastewater, prior to discharge.
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    \26\ Under CWAsec. 301, it is unlawful for any person to 
discharge any pollutant into waters of the United States without 
authorization under specific provisions of the CWA, including sec. 
402 (NPDES).
    \27\ Section 307 Requires new and existing industrial users to 
pre-treat wastewater discharged to Publicly-Owned Treatment Works 
(POTWs) to prevent pollutants in excess of certain limits from 
passing through POTWs.
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    The EPA also requests comment on the issue of mismanagement of 
contaminated wastewaters from empty drums, including any information on 
the prevalence of this problem, the extent current operations rely on 
surface impoundments for wastewater management, and any practical 
difficulties or unintended consequences that may arise from the 
possible regulatory solutions to this problem.
    In addition, the EPA notes that there may be other waste streams 
generated as a result of drum reconditioning, including ash from drum 
furnaces and steel shot from drum cleaning operations, which are 
subject to the hazardous waste determination requirements of 40 CFR 
262.11 and, if hazardous, must be managed according to applicable 
hazardous waste requirements. EPA requests comment on the waste 
characteristics of non-wastewaters generated from reconditioning 
processes and any environmental or public health issues identified from 
their management.

D. Emergency Response

    Another issue the EPA would like to hear from the public about is 
whether there is a need for more information to be made available to 
the public or to emergency responders related to the activities and 
chemicals that may be on site at a drum reconditioner. As evidenced by 
the EPA's Drum Reconditioner Damage Case Report, there have been a 
number of fires and other incidents that require emergency response at 
these industrial facilities. At one facility, a drum exploded in March 
2017, resulting in a multi-alarm fire.\28\ Other drum reconditioners 
have had fires, including one facility that had at least one large fire 
in 2014, heavily damaging the facility and endangering workers, 
firefighters, and nearby residents.\29\ Another facility had a fire 
that occurred after an employee

[[Page 54547]]

punctured a steel drum with a forklift. It required 200 emergency 
workers from 38 different emergency companies to contain the fire. As a 
result of the fire, black smoke was released into the air, water runoff 
was stained a vibrant purple, and a nearby housing development was 
evacuated.\30\ The EPA is interested in hearing from the emergency 
response community and other interested parties on whether a lack of 
information hampered any of these or any other emergency responses, and 
if so, any specifics on what information would be especially critical 
to have (e.g., information on the hazards and/or chemical composition 
of the residues).
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    \28\ EPA, Damage Case Report, Dewitt Barrels, [p. 85].
    \29\ EPA, Damage Case Report, Indianapolis Drum Services, 
[p.113].
    \30\ EPA, Damage Case Report, Scranton Cooperage (now known as 
American Container Processors, Inc.), [p. 173].
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    If there is a need for more information, then the EPA could require 
drum reconditioners to have a contingency plan, similar to the 
requirement for hazardous waste large quantity generators (LQGs). The 
purpose of the plan would be to have all the information in one place 
for the facility and emergency responders to appropriately respond to a 
fire, explosion, or other type of release of materials containing 
hazardous constituents. If the drum reconditioner already has some type 
of emergency plan, such as a Spill Prevention, Control, and 
Countermeasures (SPCC) plan or the ``One Plan,'' \31\ then those plans 
could be deemed sufficient to fulfill the new requirement. The EPA is 
interested in whether drum reconditioners already have emergency plans 
and whether they sufficiently include the hazardous nature of residues 
from RCRA empty or non-RCRA empty containers.
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    \31\ The National Response Team's Integrated Contingency Plan 
Guidance, 61 FR 28642, June 5, 1996, https://www.govinfo.gov/content/pkg/FR-1996-06-05/pdf/96-13712.pdf.
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    Other LQG and or permitting preparedness, prevention, and emergency 
procedures may also be appropriate for drum reconditioners. These 
include proper maintenance and operation of the facility; emergency 
communication equipment; adequate fire suppression systems and water; 
spill control and decontamination equipment; employee access to 
emergency communication devices; adequate aisle space for emergency 
responders; and/or proper arrangements with local emergency responders. 
More details on the LQG and or permitting requirements that could be 
applied to drum reconditioners can be found in 40 CFR part 262, subpart 
M and 40 CFR part 264. The EPA is interested in whether some or all of 
these emergency preparedness procedures are appropriate for drum 
reconditioning facilities.

E. Training

    An issue related to emergency response is whether employees at drum 
reconditioners are properly trained. The EPA is interested in whether 
emergency responders have found lack of employee training to be part of 
the cause of any of the documented damage cases. The EPA is also 
interested in what training drum reconditioners currently provide to 
their employees with respect to hazards that employees may encounter as 
part of their daily operations and in responding to emergencies that 
may occur.
    Similar to the options for used drum generators, the EPA could 
require employee training at drum reconditioners as a stand-alone 
requirement or as a component of a required SOP (as described in 
Section V.C). The EPA is interested in what the components of training 
at drum reconditioners should include, the frequency that employees 
should be trained, and any other relevant considerations that would go 
into a well-designed training program.

F. Permitting

    Many of the drum reconditioning issues discussed in the previous 
sections could be linked to incomplete regulatory oversight of these 
facilities. Because residues remaining in containers that meet the 
empty container provision in 40 CFR 261.7 are not subject to hazardous 
waste regulations, drum reconditioners who receive containers that meet 
this provision are not subject to RCRA permitting (40 CFR part 270), 
which requires the EPA or authorized state review and approval of their 
operations. Lack of a permit requirement for these facilities also 
means that reconditioners processing RCRA empty drums are not required 
to submit a notification under RCRA, which makes it harder to identify 
these facilities, and poses an additional barrier to regulatory 
oversight. To address these concerns, the EPA could require all drum 
reconditioners to obtain a full RCRA Subtitle C TSDF permit and an EPA 
Identification Number or complete a variance process. The EPA is 
interested in receiving further input on the potential mechanisms, 
anticipated success, and associated burdens of such a requirement.
    Requiring all drum reconditioners to obtain a RCRA permit would 
enable the EPA and its implementation partners to ensure facilities 
have proper controls in place to reduce the likelihood of releases, 
explosions, and other such emergencies. Requiring a RCRA TSDF permit 
would also ensure financial assurance is established, which would help 
provide funding for site remediation if a facility contaminates its 
site, thus reducing the likelihood that already disadvantaged 
communities are further burdened with contaminated properties (e.g., 
brownfields). The RCRA permitting process also provides a mechanism for 
public participation, with notice and comment required before a permit 
is issued.
    The EPA could also consider allowing drum reconditioning facilities 
to apply for a variance from a RCRA hazardous waste permit if certain 
conditions outlined in a variance are met. The RCRA variance procedures 
also provide a mechanism for public notice and comment. The EPA is 
interested in hearing from the public on the potential implementation 
of both a permitting requirement/process and variance procedures. The 
EPA recognizes that these actions could create a significant burden on 
drum reconditioners and could result in unintended consequences of 
discouraging reconditioning and increasing the potential for 
mismanagement and abandonment of emptied drums. The EPA is interested 
in exploring all options to help better protect human health and the 
environment, while maintaining the environmental advantages of 
reconditioning and recycling.

VII. End-of-Life-Management

    Eventually, used drums can no longer function as packaging and must 
be either recycled as scrap or disposed of. At the end of life, the 
used metal drums typically would go to scrapyard that does metal 
recycling or a landfill for disposal. Reconditioning extends the life 
of a drum resulting in both economic and environmental benefits. One 
lifecycle analysis comparing the carbon footprint of a reconditioned 
open head steel drum to a new open head drum shows that the greenhouse 
gas emissions of the lifecycle of a reconditioned drum are less than 
half the greenhouse gas emissions of a newly manufactured drum. For 
tight head steel drums, the greenhouse gas emissions of the 
reconditioned drum are about 65% of those of a newly manufactured drum. 
The advantage of reconditioning a tight head drum is smaller than 
reconditioning an open head drum due to the higher energy use of 
reconditioning a tight head drum, but it still represents a 
significantly lower

[[Page 54548]]

carbon footprint when compared to a newly manufactured drum.\32\
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    \32\ Life Cycle Assessment of Newly Manufactured and 
Reconditioned Industrial Packaging, Ernst & Young, EY, January 2014. 
http://resch-packaging.com/files/Life-Cycle-Analysis-Report-2014.pdf.
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    However, if the EPA in the future revises the regulations affecting 
drum reconditioners, then one possible unintended consequence could be 
to steer used drums away from reconditioners and instead divert them 
straight to scrap recycling or disposal. The RIPA has raised concerns 
about direct-to-scrap management of used industrial containers, 
including the potential for contamination of the scrap metal and 
plastics from the container residues, and the lost environmental 
benefits from container reconditioning.\33\
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    \33\ ``No More Direct To Scrap''; Reusable Industrial Packaging 
Association https://www.reusablepackaging.org/direct-to-scrap/; 
retrieved December 21, 2022.
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    Possible solutions to this potential unintended consequence could 
be to limit the empty container provision found at 40 CFR 261.7 to 
containers sent to reconditioners, and/or require containers to be 
clean of all hazardous residues (and not just be ``RCRA empty'') prior 
to going to scrap recycling or to disposal. In addition, the EPA could 
consider requiring containers with any amount of hazardous residues 
(including crushed or shredded containers) to meet the hazardous debris 
alternative treatment standard in 40 CFR 268.45 prior to being land 
disposed.
    The EPA requests comment on end-of-life management of containers 
with hazardous residues remaining in the containers, including 
information on the extent that residues in scrapped containers pose an 
issue for scrap recycling or disposal, existing industry standards that 
may help prevent contamination from end-of-life containers from posing 
an environmental or public health risk, how end-of-life issues differ 
for different types of containers, and any practical difficulties or 
unintended consequences that may arise from the possible regulatory 
solutions to the problem of contaminated scrapped containers.

VIII. Transportation Equipment Cleaning Facilities

    As with drum reconditioners, transportation equipment (e.g., tanker 
car/rail car) cleaning facilities, which clean out equipment that once 
held RCRA hazardous waste and other hazardous materials, can also be 
the source of contamination and releases. Similar to drum 
reconditioners, these facilities can also potentially manage large 
amounts of hazardous waste residues that remain in the transportation 
equipment each year. Lack of oversight of these facilities, coupled 
with systematic non-compliance stemming from gaps in the regulations, 
may have resulted in environmental and public health impacts to 
communities where these facilities are located. While each individual 
transportation equipment tanker or rail car may pose little risk, the 
EPA estimates that approximately 500 clean out facilities exist, each 
processing thousands of pieces of transportation equipment per year, 
resulting in potentially millions of gallons of unmanaged hazardous 
waste.
    While not specifically included in the scope of this ANPRM, the EPA 
recognizes these facilities have similar issues to drum reconditioners, 
and potential actions stemming from this ANPRM could be applied to 
these transportation equipment cleaning facilities. To further 
investigate, the EPA has started assessing publicly available 
information on these facilities and the Agency aims to gain an 
understanding of the total universe, general practices and procedures, 
waste and tank car operations and management, and potential damage 
cases.
    The Agency is interested in public comment on similar environmental 
problems with transportation equipment clean out facilities and whether 
some of the approaches discussed in this ANPRM for drum reconditioners 
could also be used to address environmental issues at the 
transportation equipment cleaning facilities.

IX. Statutory and Executive Order Reviews

    This action is not a significant regulatory action as defined in 
Executive Order 12866, as amended by Executive Order 14094, and was 
therefore not subject to a requirement for Executive Order 12866 
review. Because this action does not propose or impose any 
requirements, other statutory and executive order reviews that apply to 
rulemaking do not apply. Should the EPA subsequently determine the 
Agency will pursue a rulemaking, the EPA will address all the statutes 
and executive orders as applicable to that rulemaking.
    Nevertheless, the Agency welcomes comments and/or information that 
would help the Agency to assess particularly the following: the 
potential impact of a rule on small entities pursuant to the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601 et seq.) and human health or 
environmental effects on minority or low-income populations pursuant to 
Executive Order 12898, entitled Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994). The Agency will consider 
such comments during the development of any subsequent rulemaking.
    Additional information about statutes and executive orders can be 
found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

Michael S. Regan,
Administrator.
[FR Doc. 2023-16752 Filed 8-10-23; 8:45 am]
BILLING CODE 6560-50-P