[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.
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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].
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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.
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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\
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\8\ EPA, Damage Case Report, Chief Supply/Greenway
Environmental. [page 63]
\9\ EPA, Damage Case Report, Superior Barrel and Drum Co. [page
177]
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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\
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\10\ EPA, Damage Case Report, Central Steel Drum Co., [p. 60].
\11\ EPA, Damage Case Report, Chief Supply/Greenway
Environmental, [p. 63].
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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\
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\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].
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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\
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\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.
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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.
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\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.
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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].
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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\
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\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.
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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].
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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\
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\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].
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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.
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\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.
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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