Potential Adverse Impacts Under the Definition of Solid Waste 

Exclusions (Including Potential Disproportionate Adverse Impacts 

to Minority and Low-Income Populations)

Volume 1 – Hazard Characterization

December 2014

Office of Solid Waste and Emergency Response

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue

Washington D.C. 20460
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Table of Contents

1 Introduction .............................................................................................................................. 2

1.1 Background .......................................................................................................................2

1.2 Overview of Approach......................................................................................................3

1.3 EPA Response to Peer Review Comments.......................................................................4

1.4 EPA Response to Public Comments.................................................................................4

1.5 Purpose and Organization of Document ...........................................................................5

2 Hazard Characterization......................................................................................................... 7

2.1 Overview of Scenarios under the DSW Exclusion ...........................................................7

2.2 General Hazards Associated with Hazardous Secondary Material.................................12

2.2.1 Types and Quantities of Hazardous Secondary Materials.......................................13

2.2.2 Hazardous Properties of HSMs: Solvents and Electric Arc Furnace Dust .............16

2.2.3 Media, Exposure Route, and Health Effects Hazard Associated with Recycling 

of HSM....................................................................................................................17

2.2.4 Hazards Associated with Recycling of HSM...........................................................23

2.3 Regulatory Comparison - Summary of Comparative Results by Facility Type and 

Scenario...........................................................................................................................31

2.4 Summary of Comparative Results by Facility Type and Scenario .................................38

2.5 Likelihood of Hazards under Scenarios..........................................................................47

2.5.1 Role of Non-Compliance in Potentially Increased Hazards....................................47

2.5.2 Potentially Increased Hazards under 2008 DSW Exclusions..................................48

2.5.3 Potential Reductions and Transfers of Hazards by Facility Type and Scenario......69

2.5.4 Other Impacts...........................................................................................................71

2.5.5 Trade-Offs Between Increased and Decreased Hazards..........................................88

2.5.6 Regulatory Changes In The 2014 DSW Final Rule That Address The Potential 

Adverse Impacts To Human Health And The Environment From The Current 

DSW Exclusions......................................................................................................88

2.5.7 Implementation Measures That Address The Potential Adverse Impacts To 

Human Health And The Environment From from Hazardous Secondary 

Material Recycling ..................................................................................................91

Appendix A: Comparison of Regulatory Requirements under 2008 DSW Final Rule to RCRA 

and Other Federal Regulations

Appendix B: Acronyms and Abbreviations

Appendix C: Glossary

Appendix D: EPA Response to Peer Review Comments
2

1 Introduction

1.1 Background

On October 30, 2008, the U.S. 

Environmental Protection 

Agency (EPA) published final 

revisions to the definition of solid 

waste that excludes certain 

hazardous secondary materials1

from regulation under Subtitle C 

of the Resource Conservation and 

Recovery Act (RCRA), as 

amended (73 FR 64663). 

Specifically, EPA amended 40 

CFR Part 261 to provide that 

hazardous secondary materials (HSMs) reclaimed under the control of the generator are not solid 

wastes if specified requirements are met. EPA also amended Part 261 to provide that HSMs that 

are generated and then transferred to another person for the purpose of reclamation, including 

exports, are not solid waste, provided that specified conditions are met. In addition, EPA 

finalized other amendments to address particular issues (e.g., established standards in Part 260 to 

enable a person to apply to EPA for a formal determination that a HSM is not discarded (i.e., 

non-waste) and therefore not a solid waste). 

On January 29, 2009, the Sierra Club submitted an administrative petition to EPA requesting that 

the definition of solid waste (DSW) rule be repealed. The petition argues that the revised 

regulations are unlawful and that they increase threats to public health and the environment 

without producing compensatory benefits and, therefore, should be repealed. In addition, the 

petition disagrees with the Agency’s findings that the rule would have no adverse environmental 

impacts, including no adverse impact to minority or low-income communities.

Under the 2008 DSW final rule, EPA determined that the conditions of the rule would prevent 

any increase in risk, and therefore there would be no disproportionate adverse impacts to 

minority or low-income communities. However, the 2008 analysis did not take into account 

whether the conditions of the rule would operate as effectively in the real world as the more 

detailed requirements of the RCRA hazardous waste regulations. One of the most common 

criticisms of the January 2010 draft environmental justice methodology was that it glossed over 

some of the important protections of the hazardous waste regulations, particularly public 

participation requirements.

After receiving the petition and communicating with stakeholders, EPA proposed revision to the 

rule on July 22, 2011. The proposal modifies EPA’s 2008 Definition of Solid Waste (DSW) rule 

to improve accountability and oversight of hazardous materials recycling, while allowing for 

 

1 A hazardous secondary material is any material that would be a hazardous waste if discarded.

Types of Exclusions Established by October 2008 

DSW Final Rule

 Generator-Controlled Exclusion (GCE) -

Materials that are generated and transferred to 

another company for legitimate reclamation 

under specific conditions;

 Transfer-Based Exclusion (TBE) - Materials 

that are generated and legitimately reclaimed 

under the control of the generator (i.e., generated 

and reclaimed on-site, by the same company, or 

under “tolling” agreements); and

 Petition-Based Exclusion (PBE)- Materials that 

EPA or an authorized state determines to be 

non-wastes through a case-by-case petition 

process.
3

important flexibilities that will promote its economic and environmental benefits. EPA proposed 

to improve safeguards through:

 Replacing the transfer-based exclusion with alternate hazardous recyclable materials 

standard.

 Adding a regulatory definition of “contained” and additional recordkeeping requirements 

for generator-controlled exclusion.

 Making all four legitimacy factors mandatory and requiring documentation.

 Applying the regulatory definition of legitimate recycling to all hazardous waste and 

hazardous secondary material recycling.

 Requesting comment on applying the contained standard, notification, and recordkeeping 

for speculative accumulation to existing recycling exclusions.

In addition, EPA proposed to encourage recycling through:

 Alternative standard that allows generators a longer accumulation time (one year) if there 

is a reclamation plan in place.

 Retaining the generator-controlled exclusion for recycling performed on-site, at the same 

company, or under certain tolling agreements.

 Providing a petition process for instances where legitimacy factors are not met, but 

recycling is still legitimate.

 Requesting comment on a targeted exclusion for higher-value hazardous solvents which 

are re-manufactured into commercial-grade products.

As part of the 2011 proposal, EPA published a draft Environmental Justice Analysis of the 2008 

rule, which included an analysis of the potential disproportionate impacts of the 2008 DSW final 

rule. This report revises the EJ Analysis to reflect the 2014 final rule.

1.2 Overview of Approach

The methodology for the EJ Analysis described in this document is based on the one used in the 

2011 draft analysis, modified based on:

 Comments from an external peer review of the draft EJ Analysis

 Comments from the general public and other stakeholders.

 Updated data. 

The methodology also adheres to existing Federal and EPA-specific guidance on how to 

incorporate EJ into the Agency’s process for developing regulations and how to conduct analyses 

that incorporate EJ considerations. This includes, in particular, EPA’s Action Development 

Process and Interim Guidance on Considering Environmental Justice During the Development of 

an Action. This document describes the approach and results of the analysis. The draft analyses 

and results presented in this report will be used to inform the identification of potential 

preventive and mitigation strategies.
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1.3 EPA Response to Peer Review Comments

From December 2010 to January 2011, an EPA contractor, organized and facilitated an 

independent letter peer review of EPA’s Preliminary Draft Definition of Solid Waste Final Rule 

Environmental Justice Analysis, following the guidelines in EPA's Peer Review Handbook, Third 

Edition (http://www.epa.gov/peerreview/). 

Three independent experts conducted the review:

 Dr. Dorothy M. Daley, University of Kansas

 Dr. Deeohn Ferris, Sustainable Community Development Group, Inc.

 Dr. Diane S. Henshel, Henshel EnviroComm Consulting and Indiana University

In general, the reviewers thought that the Draft Definition of Solid Waste Final Rule 

Environmental Justice Analysis adequately reviews, presents, analyzes, and summarizes the 

available data. 

This document reflects EPA’s response to these comments. EPA’s response to specific peer 

review comments and how they were reflected in this document is contained in Appendix D.

1.4 EPA Response to Public Comments

Public comments were submitted on www.regulations.gov or in the Federal Register notice 

under docket number EPA-HQ-RCRA-2010-0742 for the 2011 DSW proposal. Specific changes 

to this document in response to those comments include:

 Separated the analysis into two volumes to help better distinguish the analysis of 

potential impacts to all potentially affected communities (Volume 1: Hazard 

Characterization) from the analysis of the potential for disproportionate impacts to minor 

and/or low-communities (Volume 2: Assessment of Disproportionate Adverse Impacts)

 Added examples of uncovered waste piles of electric arc furnace dust (K061) and 

additional documentation of risks posed by this material.

 Added a reference to ingestion pathway via contaminated produce and contaminated fish.

 Expanded discussion of risks from transboundary movement and exports

 Removed the derived-from rule from the potential impacts discussion

 Clarified language on potential impacts from smaller generators

 Added a discussion of the role of non-compliance in increased hazards

 Added an analysis of baseline impacts at non-recycling Subtitle C facilities and expanded 

the discussion of tradeoffs between increased and decreased hazards under the rule

 Expanded explanation of how the determine “disproportionate” is defined for the 

purposes of this analysis
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 Expanded explanation of how certain sites served as surrogates for possible future DSW 

facility locations and should not be presumed to reflect actual DSW facility behaviors

 Updated the damage case facilities based on the revised damage case study

 Added a sensitivity analysis of impacts within a 1-kilomter radius

 Added documentation of the geocoding software

 Added a discussion of how water bodies are treated under the apportionment 

methodology

 Added documentation of the “affected population ratio” methodology

 Updated the analysis with the 2010 census data

 Updated the analysis using two times the poverty level to determine “low income” 

populations

A full discussion of EPA’s response to comments on the environmental justice analysis can 

be found in Chapter 3 of the response to comment document, located in the docket for the 

2014 DSW final rule.

1.5 Purpose and Organization of Document

This report presents EPA’s characterization of the hazards addressed by the 2008 DSW 

exclusions (Volume 1 of the DSW environmental justice analysis). The remainder of this 

volume is organized as follows:

 Section 2 describes the hazards associated with HSMs when generated and managed 

under the current DSW exclusions, including the types, quantities, and health hazards 

associated with HSMs and the types of hazards (e.g., releases) that could occur at 

generator, transporter, and intermediate and reclaimer facilities managing such materials, 

including:

o Section 2.1, Overview of Scenarios under the DSW Exclusion, describes the 

scenarios that EPA used to identify and analyze the hazards associated with 

managing HSMs under the hazardous waste regulations and under the current 

DSW exclusions.

o Section 2.2, General Hazards Associated with Hazardous Secondary Material, 

describes the general hazards associated with HSMs when managed by recycling. 

o Section 2.3, Regulatory Comparison - Summary of Comparative Results by 

Facility Type and Scenario, presents the results of EPA’s comparison of the full 

RCRA Subtitle C hazardous waste regulations (baseline scenario) to the federal 

regulations applicable to facilities operating under the current DSW exclusions.

o Section 2.4, Summary of Comparative Results by Facility Type and Scenario, 

summarizes the key regulatory differences and consequences described in Section 

2.3 of this report.

o Section 2.5, Likelihood of Hazards under Scenarios, presents EPA’s analysis of 

the likelihood of changes in hazards for each type of facility (generators, 
6

transporters, and intermediate and reclamation facilities) and each scenario 

described in Section 2.1 of this report 
7

2 Hazard Characterization

2.1 Overview of Scenarios under the DSW Exclusion

This section describes the scenarios that EPA used to identify and analyze the hazards associated 

with managing HSMs under the hazardous waste regulations and under the current DSW 

exclusions. Generators, transporters, and intermediate and reclamation facilities may manage 

HSMs in several different ways both under hazardous waste regulations, and under the current 

DSW exclusions. Each scenario represents a different combination (or set of combinations) of 

baseline and DSW practices. Hazardous waste management practices reflect ways that 

generators and facilities are managing HSMs under the existing hazardous waste regulations 

(i.e., before they claim an exclusion). The DSW practices reflect ways that these same 

generators and facilities are managing, or might manage, HSMs after they claim an exclusion 

under the current DSW exclusions.

In developing these scenarios, EPA first reviewed the current state of generation of recyclable 

hazardous wastes and management practices for those waste, including on-site and off-site 

storage, transportation, treatment, disposal, and recycling. For off-site recycling, EPA 

considered recycling in both domestic and foreign facilities. EPA then analyzed each provision 

of the DSW rule and identified how it might impact generation and management practices. EPA 

then grouped the possible changes in hazardous waste generation and management resulting 

from the rule into eight scenarios based on observed similarities.

Under the current DSW regulations, there are three types of conditional exclusions from the 

RCRA Subtitle C hazardous waste regulations for persons who generate or reclaim HSMs. 

These are described in the box to the right. EPA established different requirements for each type 

of exclusion. These different 

requirements are expected to affect how 

each type of generator/facility modifies its 

generation and management of HSMs

based on the type of exclusion claimed. 

The scenarios below were developed 

based on the expected impacts of the 

Generator-Controlled Exclusion (GCE) 

and Transfer-Based Exclusion (TBE), and 

each scenario describes whether it is 

applicable to facilities operating under the 

GCE, TBE, or both. Petition-Based 

Exclusions are not considered in this 

analysis because they are granted on a 

case-by-case basis, and the exact nature of 

such exclusions cannot be determined 

until petitions are granted. In addition, at 

the time this report was prepared, no 

petitions for a non-waste exclusion have been submitted. The type of exclusion claimed under 

each scenario is used in Section 2.4 of this report to help compare the regulatory framework 

between hazardous waste regulations and the current DSW exclusions.

Types of Currently DSW Exclusions 

 Generator-Controlled Exclusion (GCE) -

Materials that are generated and transferred to 

another company for legitimate reclamation under 

specific conditions;

 Transfer-Based Exclusion (TBE) - Materials 

that are generated and legitimately reclaimed 

under the control of the generator (i.e., generated 

and reclaimed on-site, by the same company, or 

under “tolling” agreements); and

 Petition-Based Exclusion (PBE) - Materials that 

EPA or an authorized state determines to be nonwastes through a case-by-case petition process.
8

For each scenario, EPA also considered whether the facility is permitted under RCRA, and the 

descriptions below identify the potential RCRA-permit status of the facility. The RCRA permit 

status of facilities under each scenario is used in Section 2.4 of this report to help compare the 

regulatory framework between the hazardous waste regulations and the current DSW exclusions

EPA has identified the following eight scenarios that it considers likely to occur. Note that EPA 

identified additional potential scenarios, but deemed them unlikely to occur. These scenarios are 

briefly described at the end of this section, but are not addressed further in this document.

Scenario 1: Generator continues current recycling practices under GCE or TBE. This 

scenario involves a generator that has been reclaiming its HSM under the hazardous waste 

regulations, and opts to continue these practices under either the GCE or TBE. This could 

include, for example, a generator that reclaims onsite under hazardous waste regulations and 

claims the GCE to continue reclaiming on site, or a generator that exports its HSM under the 

hazardous waste regulations and claims the TBE to continue exporting the HSM.

Scenario 2: Generator switches from off-site treatment/disposal to on-site reclamation. 

This scenario involves a generator that has been shipping its HSM to an off-site Treatment, 

Storage, or Disposal Facility (TSDF) for treatment then disposal under the hazardous waste 

regulations, but opts to reclaim that HSM onsite under the GCE. 

Scenario 3: Generator switches from off-site treatment/disposal to off-site recycling under 

the control of the generator. This scenario involves a generator that has been shipping its HSM 

to an off-site TSDF for treatment followed by disposal under the hazardous waste regulations, 

but opts to ship that HSM to an off-site facility that it controls for reclamation under the GCE. 

Scenario 4: Generator switches from off-site treatment/disposal to off-site recycling at a 

RCRA-permitted facility. This scenario involves a generator that has been shipping its HSM to

an off-site TSDF for treatment followed by disposal under the hazardous waste regulations, but 

opts to ship that HSM to an off-site RCRA-permitted TSDF for reclamation under the TBE. 

Scenario 5: Generator switches from off-site treatment/disposal to off-site recycling at a 

U.S. facility without a RCRA permit. This scenario involves a generator that has been 

shipping its HSM to an off-site TSDF for treatment followed by disposal under the hazardous 

waste regulations, but opts to ship that HSM to an off-site facility in the U.S. without a RCRA 

permit for reclamation under the TBE. 

Scenario 6: Generator switches from off-site disposal to exporting for recycling. This 

scenario involves a generator that has been shipping its HSM to an off-site TSDF for disposal 

under the hazardous waste regulations, but opts to ship that HSM to for recycling to a facility 

outside the U.S. for reclamation under the TBE. 

Scenario 7: Generator switches from off-site recycling at a facility without a permit2to 

another type of recycling under the current DSW exclusions. This scenario involves a 

generator that has been shipping its HSM for reclamation to an off-site TSDF in the U.S. without 

a RCRA permit under the hazardous waste regulations, but opts to have the HSM reclaimed at a 

different type of facility under the TBE. This could include, for example, a generator that ships 

HSM offsite for reclamation at a TSDF in the U.S. without a RCRA permit under hazardous 

 

2 Under the RCRA hazardous waste regulations, facilities that recycle immediately without storing the hazardous 

waste do not need a RCRA permit.
9

waste regulations, but changes its practice to ship the HSM offsite for reclamation at a RCRA 

permitted facility under the TBE, or changes its practice to export the HSM for reclamation at a 

recycling facility outside the U.S. under the TBE.

Scenario 8: Generator switches from off-site recycling at a RCRA-permitted facility or 

exporting waste for reclamation to another country to another type of recycling under the 

current DSW exclusions. This scenario involves a generator that has been shipping its HSM to

an off-site RCRA-permitted TSDF or exporting it to a foreign reclamation facility under the 

hazardous waste regulations, but opts to have the HSM reclaimed at a different type of facility 

under the GCE or TBE. This could include, for example, a generator that changes its practice to 

reclaim the HSM onsite or at an off-site facility (without a permit) under its control, and claims 

the GCE. The generator also may choose to ship its HSM offsite for reclamation at either a 

recycling facility in the U.S. without a RCRA permit or a reclamation facility outside the U.S.

and claim the TBE. Similarly, a generator that exports HSM for reclamation at a reclamation 

facility outside the U.S. under hazardous waste regulations, may change its practice to reclaim 

the HSM onsite or at an off-site facility under its control, and claim the GCE. The generator also 

may choose to ship its HSM offsite for reclamation at either a RCRA-permitted TSDF or a 

recycling facility in the U.S. without a RCRA permit and claim the TBE. 

Unlikely Scenarios: As mentioned above, EPA identified additional potential scenarios that it 

deemed unlikely to occur. These unlikely scenarios include:

 A generator that has been reclaiming HSMs onsite under the hazardous waste regulations, 

but opts to ship that HSM to an off-site facility that it controls for reclamation under the 

GCE. EPA believes this scenario is unlikely because switching from on-site recycling to 

off-site recycling is likely to result in additional transportation costs. Generators that 

make this type of change are unlikely to do so as a result of the current DSW exclusions.

 A generator that has been reclaiming HSMs onsite under the hazardous waste regulations, 

but opts to ship that HSM to an off-site RCRA-permitted TSDF, an off-site recycling 

facility in the U.S. without a RCRA permit, or a reclamation facility outside the U.S. for 

reclamation under the TBE. EPA believes this scenario is unlikely because switching 

from on-site recycling to off-site recycling is likely to result in additional transportation 

costs. Generators that make this type of change are unlikely to do so as a result of the 

current DSW exclusions.

Both of these unlikely scenarios are based largely on the assumption that transportation costs 

would discourage generators from switching from on-site to off-site reclamation under the 

exclusions. Although HSM under the exclusions is no longer a hazardous waste, it likely would 

still qualify as a DOT hazardous material and be subject to transportation requirements similar to 

those applicable to hazardous waste. Because of this, EPA assumes that, in general, generators 

under the exclusions face the same general level of transportation costs as under hazardous waste 

regulations, and therefore are unlikely to find a financial benefit to switching to off-site 

reclamation.

In addition, other factors also may discourage these generators from switching to off-site 

reclamation. EPA assumes that generators currently reclaiming HSM onsite have invested time 

and resources to purchase and operate reclamation equipment. The costs and inconvenience of 

shutting down such operations and dismantling and removing the equipment could be a 

disincentive to switching to off-site reclamation. In addition, some generators’ reclamation 
10

activities and equipment may be highly integrated into their manufacturing or other processes, 

such that a change in HSM management would be infeasible or impractical. For example, some 

generators may be operating distillation units and feeding the distillate back into production

processes as a key ingredient. Further, some generators may have pre-existing agreements to 

receive HSM from off-site sources for reclamation or to supply the reclaimed HSM to third 

parties. 

EPA recognizes that these assumptions may not apply to all generators performing reclamation 

onsite. EPA acknowledges that, in some instances, generators may have sufficient incentive to 

switch to off-site reclamation. For example, if the cost of off-site reclamation is low enough, 

these lower costs could offset the additional costs of transportation and other costs associated 

with switching to off-site reclamation, and provide the generator with an incentive to switch to 

off-site reclamation. 

Table 2.1. Scenarios under Baseline and DSW Exclusions

Baseline DSW Practices

Scenario 1: Generator continues current recycling practices

Generator reclaims material onsite under 

hazardous waste regulations

Generator reclaims material onsite 

under GCE 

Generator sends material offsite for 

reclamation to RCRA-permitted facility 

under hazardous waste regulations

Generator sends material offsite for 

reclamation at a RCRA-permitted 

facility under TBE

Generator exports material under 

hazardous waste regulations for 

reclamation in another country

Generator exports material under 

the TBE for reclamation in another 

country

Scenario 2: Generator switches from off-site disposal to on-site reclamation

Generator sends material offsite to a 

RCRA permitted facility for incineration 

or landfilling under hazardous waste 

regulations

Generator reclaims material onsite 

under GCE 

Scenario 3: Generator switches from off-site disposal to off-site recycling

under the control of the generator

Generator sends material offsite to a 

RCRA permitted facility for incineration 

or landfilling under hazardous waste 

regulations

Generator sends material offsite for 

reclamation at a facility that it 

controls under GCE

Scenario 4: Generator switches from off-site disposal to off-site recycling at a RCRApermitted facility

Generator sends material offsite to a 

RCRA permitted facility for incineration 

or landfilling under hazardous waste 

regulations

Generator sends material offsite for 

reclamation at a RCRA-permitted 

facility under TBE
11

Table 2.1. Scenarios under Baseline and DSW Exclusions

Baseline DSW Practices

Scenario 5: Generator switches from off-site disposal to off-site recycling at a U.S. facility 

without a RCRA permit

Generator sends material offsite to a 

RCRA permitted facility for incineration 

or landfilling under hazardous waste 

regulations

Generator sends material offsite for 

reclamation at a facility in the U.S.

without a RCRA permit under TBE

Scenario 6: Generator switches from off-site disposal to exporting for recycling

Generator sends material offsite to a 

RCRA permitted facility for incineration 

or landfilling under hazardous waste 

regulations

Generator exports material under 

the TBE for reclamation in another 

country

Scenario 7: Generator switches from off-site recycling at a facility without a permit to 

another type of recycling under the current DSW exclusions

Generator sends material offsite for 

reclamation at a facility in the U.S.

without a RCRA permit under 

hazardous waste regulations

 Generator sends material offsite 

for reclamation at a facility under 

GCE, or

 Generator exports material under 

the TBE for reclamation in 

another country, or

 Generator sends material offsite 

for reclamation at a RCRA 

permitted facility under TBE, or

 Generator sends material offsite 

for reclamation at a facility in the 

U.S. without a RCRA permit 

under TBE
12

Table 2.1. Scenarios under Baseline and DSW Exclusions

Baseline DSW Practices

Scenario 8: Generator switches from off-site recycling at a RCRA-permitted facility or 

exporting waste for recycling to another type of recycling under the current DSW 

exclusions

Generator sends material offsite for 

reclamation to RCRA-permitted facility

under hazardous waste regulations

 Generator reclaims material 

onsite under GCE, or

 Generator sends material offsite 

for reclamation at a facility that 

it controls under GCE, or

 Generator sends material offsite 

for reclamation at a facility in the 

U.S. without a RCRA permit 

under TBE, or

 Generator exports material under 

the TBE for reclamation in 

another country

Generator exports material under 

hazardous waste regulations for 

reclamation in another country

 Generator reclaims material 

onsite under GCE, or

 Generator sends material offsite 

for reclamation at facility under 

GCE, or

 Generator sends material offsite 

for reclamation at a RCRA 

permitted facility under TBE, or

 Generator sends material offsite 

for reclamation at a facility in the 

U.S. without a RCRA permit 

under TBE

2.2 General Hazards Associated with Hazardous Secondary Material

This section describes the general hazards associated with HSMs when managed by recycling.3 

In this section, EPA presents the potential hazards associated with HSMs independent of health 

and safety and regulatory controls that might be placed on HSMs. Communities in which 

generation, transportation, or reclamation of HSM under the DSW final rule is conducted may be 

at risk of exposure to the hazards associated with HSM. Section 2.2.1 identifies the types, 

quantities, and properties of HSM that are generated and reclaimed nationally and describes their 

chemical and physical properties. Because of the wide variety of HSMs that may be recycled, 

not all of them are addressed in this section. Section 2.2.1 also identifies the types of HSMs that

are the focus of this section, and provides the reasoning behind why these materials were 

selected based on their quantities and properties. Section 2.2.2 contains a description of the 

hazards associated with selected HSMs based on their properties. While this section focuses on 

 

3

 While the term recycling is used throughout this document, the current DSW exclusions is limited to reclamation 

activities.
13

the hazards associated with these HSMs, the EJ analysis presented in this report covers all HSMs 

that may be recycled under the DSW exclusions. Section 2.2.3 describes the processes 

associated with the generation, storage, and recycling of the selected HSMs, and how those 

processes can result in potential hazards to human health and the environment. 

2.2.1 Types and Quantities of Hazardous Secondary Materials

This section describes the types, quantities, and properties of HSMs evaluated It identifies the 

types and quantities of HSMs generated, and using that information, identifies two specific 

HSMs that are the selected as the focus of this report—spent solvents and electric arc furnace 

dust. It also describes the quantities and characteristics of these two wastes that resulted in their 

selection as a focus of this report. For the selected wastes, Section 2.2.2 describes their 

properties, including the potential human health and environmental hazards they pose, 

contamination pathways, and human health effects. 

Types and Quantities of Hazardous Secondary Material

Each year, many types of hazardous waste are recycled, each possessing distinct quantities and 

properties. In 2007, over 370 types of hazardous waste codes contained in 40 CFR Part 261

were recycled. These waste codes include a wide variety of materials, including aqueous streams 

referred to as wastewaters and streams that contain organic liquids or physically solid materials 

referred to as nonwastewaters. These materials also include a wide variety of wastes from 

manufacturing and other processes, and they contain many different chemicals, including 

halogenated organic compounds, non-halogenated organic compounds, metals, and other 

contaminants. 

In 2007, about 16,000 facilities generated 32.3 million tons of hazardous waste. Of these 32.3 

million tons of waste, about 2 million tons were recycled. Figure 1 shows that the waste codes 

associated with the largest amounts of recycled hazardous wastes in 2007 were electric arc 

furnace dust (i.e., waste code K061) and spent solvents (i.e., waste codes F001 through F005). 
14

EPA’s An Assessment of Environmental Problems Associated With Recycling of Hazardous 

Secondary Materials (hereafter referred to as the Environmental Problems Study) contains 

information about environmental damage cases and the types of potential hazards from the 

mismanagement of HSMs.4 Specifically, the Environmental Problems Study examines 250 

facilities in which environmental damage5of some kind occurred from some type of recycling 

activity, and that appeared to clearly fit within the scope of the study, which include the 

following types of cases: (1) cases where environmental damage can be attributed to some type 

 

4

 This document was originally published in January 2007 in support of the 2008 DSW final rule. Since the 

Environmental Problems Study was published in 2007, EPA has continued to compile and assess new information 

on environmental problems associated with the recycling of HSMs (including information submitted through public 

comment as part of the DSW rulemaking process) and, based on this information, has updated the study on several 

occasions. The latest version of the Environmental Problems Study is dated December 2014.

5

 In this context, EPA used the term “environmental damage” broadly to include leaks, spills, dumps, or other types 

of releases of hazardous substances into the environment that were serious enough to require some type of cleanup 

action. The term also includes situations in which materials were abandoned (e.g., in warehouses) without having 

been actually released into the environment, but which posed potential threats and thus required removal actions that 

were conducted by one or more government agencies, and involved expenditure of public funds. 

Preliminary Draft - Do Not Cite 8

Figure 1: Hazardous Waste Recycled in 

2007

Sources: 2007 Biennial Report – GM Onsite and Offsite Forms

ORCR's Draft Export/Import Database

F1_5

F003 TCMT

F006

F037

TCORICR

Remaining 370 Waste 

Code Groups

F005

D007

KXXX

K171

K088 

K061

D001 

D008 

K061 - Electric arc furnace dust

F1_5 - Mixture of F001-F005 solvents

D001 - Ignitable waste

D008 - Lead waste

TCMT - Mixed toxicity characteristic metals

F003 - Spent non-halogenated solvents

TCORICR - Mixed toxicity characteristic organics

F006 - Wastewater treatment sludges

K088 - Spent potliners

F037 - Petroleum refinery primary sludges

K171 - Spent hydrotreating catalyst

KXXX - Mixture of K waste code wastes

D007 - Chromium waste

F005 - Spent non-halogenated solvents

Remaining 370 Waste Code Groups

8%

36%

13%

10%

8%

6%
15

of recycling activity, (2) cases that have occurred within the current environmental regulatory 

and liability systems (i.e., cases in which some form of environmental damage appears to have 

occurred during or after the year 1982), and (3) cases involving recycling of regulated hazardous 

wastes or HSMs that are specifically excluded from RCRA regulation. Therefore, the 

Environmental Problems Study is not intended to assess environmental damage associated with 

facilities that are currently implementing the 2008 DSW final rule. This is because the limited 

number of notification facilities and the short amount of time these facilities have been 

employing the 2008 DSW final rule might not be representative of a full implementation of the 

regulation. The Environmental Problems Study, however, is intended to assess the potential for 

future environmental damage and EJ impacts under the current DSW exclusions. 

The most common types of secondary materials associated with the damage cases evaluated in 

the Environmental Problems Study were scrap metals (25%), batteries (17%), spent solvents 

(17%), and used oil (16%).6

Selection of two HSMs as the Focus of this Report

EPA selected two materials, solvents and electric arc furnace dust, as a focus of this report 

because they represent a relatively large amount of HSMs that would be eligible for exclusion 

under the current DSW exclusions, as well as represent a variety of characteristics of HSMs, as 

described below.

Specifically, solvent wastes were selected as a focus of this report because of their prevalence in 

the damage cases documented in the Environmental Problems Study (i.e., 42 damage cases that 

involve the use of solvents in recycling operations, or identify solvents as a potential source of 

contamination), the large amount of solvents currently recycled (i.e., 3.23 million tons recycled 

in 2007), and the potential hazards posed by solvents. The potential hazards posed by solvents 

are discussed in Section 2.2.2 of this report. In addition, solvents that are recycled are typically

in a liquid state, and usually contain volatile organic chemicals, which present particular 

management challenges associated with the storage of liquids and fugitive air emissions. 

Solvents also include both halogenated and non-halogenated organic chemicals, which represent 

a broad range of chemicals and associated hazards. 

Electric arc furnace dust is a focus of this report because it was the most commonly recycled 

material in 2007 (i.e., 11.63 million tons recycled in 2007) . In addition, several damage cases 

documented in the Environmental Problem Study (i.e., a total of six damage cases) involve the 

use of electric arc furnace dust in recycling operations, or identify electric arc furnace dust as a 

potential source of contamination. Furthermore, selecting electric arc furnace dust complements

the selection of solvent wastes because these two types of HSMs represent a variety of 

characteristics of HSMs. Electric arc furnace dust is usually in a solid state and presents 

different management challenges than liquid solvents. Electric arc furnace dust is also often 

present as a dust, which presents hazards associated with wind-blown dust. In addition, this 

HSM contains metals, a class of potential contaminants that is generally considered to pose 

hazards different from the organic chemicals found in solvents. 

 

6

 EPA. 2012. An Assessment of Environmental Problems Associated With Recycling of Hazardous Secondary 

Materials.
16

By selecting solvents and electric arc furnace dust, this report can assess a variety of potential 

hazards and management challenges. The potential hazards associated with solvents and electric 

arc furnace dust and their recycling are discussed further below.

Other secondary materials associated with damage cases, including scrap metals and used oil, are 

not a focus of this report because they are already covered by exclusions or special management 

standards and their regulation and management are not expected to be significantly impacted by 

the current DSW exclusions. Batteries are not a focus because they are not currently recycled in 

the quantities similar to electric arc furnace dust and solvents. In addition, batteries are subject 

to the Universal Waste standards, which facilitate the environmentally sound collection and 

proper recycling or treatment of these wastes. The management of hazardous wastes already 

subject to the Universal Waste standards is not expected to be impacted by the current DSW 

exclusions as wastes subject to full hazardous waste regulatory controls prior to the DSW final 

rule promulgation. 

2.2.2 Hazardous Properties of HSMs: Solvents and Electric Arc Furnace Dust

This section provides an overview of the hazardous properties of the two HSMs that are the 

focus of this report: solvents and electric arc furnace dust. It discusses the media, exposure 

routes, and health effects to understand the hazardous properties of these HSMs and how they 

can impact human health and the environment. It then presents an overview of the health effects 

associated with solvents and electric arc furnace dust, including the specific health effects 

associated with selected chemicals they contain, including whether they are expected to present a 

fire or explosion hazard. 

The chemicals used as solvents can generally be classified into two broad groups: halogenated 

volatile organics and non-halogenated volatile organics. The chemicals within these groups tend 

to share similar characteristics, manufacturing processes, uses, and health effects. Because these 

groups contain a variety of chemicals, this report identifies a single chemical from each group

that is generally representative of the characteristics and health effects of the group, and 

describes the specific health effects for them. More detailed information about the health effects 

for other solvent chemicals can be found in other sources, such as EPA’s Integrated Risk 

Information System (IRIS) at http://www.epa.gov/IRIS/ and the Agency for Toxic Substances 

and Disease Registry Web site (http://www.atsdr.cdc.gov/). 

For electric arc furnace dust, the health effects are expected to be related to the toxic metals it 

contains. 40 CFR Part 261, Appendix VII, “Basis for Listing Hazardous Waste,” indicates that 

electric arc furnace dust is listed as hazardous because of lead, hexavalent chromium, and 

cadmium. This report describes the health effects associated with each of these metals.

Other hazardous properties of other secondary materials commonly associated with damage 

cases, such as scrap metals, used oil, non-ferrous metals, mercury lamps and mercury-containing 

equipment, and lead-acid batteries are not a focus of this report because they are already covered 

by exclusions or special management standards when recycled, and their management is not 

expected to be impacted by the current DSW exclusions.
17

2.2.3 Media, Exposure Route, and Health Effects Hazard Associated with Recycling 

of HSM

Toxic wastes are characterized using risk assessment; therefore, this section uses terminology 

that is common in risk assessment. A risk assessment usually begins with hazard identification, 

which is the process of determining whether exposure to a chemical agent can cause an increase 

in the incidence of a particular adverse health effect (e.g., cancer, birth defects) and whether the

adverse health effect is likely to occur in humans. Exposure assessment includes the 

identification of which media, such as soil, air, or water, might come into contact with humans or 

other receptors. The media affects the exposure routes, such as inhalation or skin contact, that 

should be considered. The exposure route affects the type of symptoms the exposed person or 

other receptor experiences. For example, contamination in air could result in inhalation 

exposures that have respiratory effects, while contamination in water could result in ingestions

that have gastrointestinal effects. For each example hazard within a category, the most prevalent 

exposure media are discussed below, as well as the health effects associated with different 

exposure routes. The media, exposure routes, and 

health effects are important to determining the 

extent to which recycling under the current DSW 

exclusions impacts the communities in which HSM 

generation, transportation, and reclamation occur.

Exposure Media (air, water, and soil) - Accidents 

and improper handling of HSMs have the potential 

to contaminate water, air, and soil. Of the 

recycling-related damage cases, soil contamination 

occurred at 75% of the sites, making it the most 

common type of damage to environmental media. 

Groundwater contamination occurred at 46% of the 

sites, surface water contamination occurred at 27% 

of the sites, and air contamination occurred at 26% 

of the sites. Note that sites may be counted more 

than once in these results, since in many cases more 

than one type of damage occurred.7

Exposure Route - Exposure routes include 

inhalation, dermal (skin), eye, and ingestion (oral). 

Ingestion can include ingestion of contaminated 

produce from home gardens, or ingestion of toxic 

constituents that are bioaccumulated in fish. The 

frequency and duration of potential exposure are

also an important consideration. For example, 

acute exposures are short term, high dose 

exposures, while chronic exposures are long term, 

lower dose exposures.

 

7

 EPA. 2012. An Assessment of Environmental Problems Associated With Recycling of Hazardous Secondary 

Materials.

Exposure Routes by Media

Contaminated Soil:

 Dermal (skin contact with 

contaminated soil)

 Oral (ingestion of contaminated soil)

 Inhalation (volatilization of 

contaminants from soil)

 Eye (windblown dust, volatilization of 

contaminants from soil)

Contaminated Air:

 Inhalation (windblown dust)

 Eye (windblown dust)

 Dermal (skin contact with 

contaminated air or windblown dust)

 Oral (ingestion of contaminated food)

Contaminated Water:

 Oral (ingestion of contaminated water

or aquatic food sources)

 Dermal (skin contact with 

contaminated water)

 Inhalation (volatilization of 

contaminants from water)

 Eye (volatilization of contaminants 

from water)
18

Health Effects – Ignitable and reactive wastes pose physical hazards, such as explosion and fire,

which have the potential to directly cause bodily harm. Explosions and fire also can create 

exposure pathways for chemical exposures and sources of environmental contamination. For 

example, toxic fumes from a fire can have effects on a population nearby and toxic releases from 

the event can result in longer term lower level exposures that may be related to chronic effects. 

Toxic wastes also can cause other types of adverse human health effects, which EPA breaks into 

two broad categories: cancer and non-cancer. The non-cancer health effects can be classified 

according to what biological system or organ is affected; for example, developmental, 

reproductive, neurological, immune system, circulatory system, liver, gastrointestinal, or other 

effects. Health effects also can have clinical descriptions, such as blurred vision, nausea, and 

headache. In general, the sometimes extensive list of clinical symptoms can be grouped based 

on what biological system is being affected to cause the symptom set.

Solvents

Solvents may contaminate soil or groundwater from leaks, spills, or other releases. Because they 

tend to be volatile, they also are likely to be released to the air by advection and dispersion into 

the atmosphere. Solvents may cause exposure by all of the routes considered in this report, 

including inhalation, dermal (skin), eye, and ingestion (oral). Solvent chemicals may have both 

acute and chronic health effects, and may be ignitable or explosive, presenting fire hazards.

Solvents can generally be divided between halogenated and non-halogenated based on their use 

and potential hazards. For halogenated and non-halogenated solvents, the sections below 

describe the chemicals typically contained in them, and the hazards associated with an example 

that is representative of the type of solvent.

Halogenated Solvents

Agents - Halogenated solvents used in degreasing include:8

tetrachloroethylene (PERC), trichloroethylene, methylene 

chloride, 1,1,1-trichloroethane, carbon tetrachloride, and 

chlorinated fluorocarbons.

Dry cleaning solvents and brake cleaners include halogenated 

solvents, such as tetrachloroethylene (PERC), 

trichloroethylene, methylene chloride, 1,1,1-trichloroethane, 

1,1,2-trichloroethane, 1,2,2-trifluoroethane, orthodichlorobenzene, trichlorofluoromethane, 1,1,2-

trichloroethane, and chlorobenzene.

Example agent - tetrachloroethylene (PERC). 

Environmental Fate9– Tetrachloroethylene is volatile and 

releases can be airborne. When released into the subsurface, it 

may contaminate soil and groundwater. Releases to surface soil and water also may volatilize 

resulting in releases to the atmosphere. Soil and water bacteria will break it down slowly, so in 

 

8 http://web.mit.edu/environment/ehs/topic/rcra_ref/epa_nonspecific.html

http://www.hsia.org/

9 http://www.npi.gov.au/substances/tetrachloroethylene/environmental.html

Examples of Halogenated 

Solvents Uses:

 Brake cleaners

 Dry cleaning

 Food processing 

 Household cleaners

 Metal cleaning 

 Synthesis of other 

chemicals

 Water repellants

 Silicone lubricants

 Spot removers
19

soil and subsurface water, it may last for months to years. When released into the atmosphere, it 

may be moderately degraded by reaction with photochemically produced hydroxyl radicals. 

Environmental Toxicity – Based on fish studies, tetrachloroethylene is expected to be toxic to 

aquatic life. It does bioaccumulate in fish to a limited extent. Chronic and acute effects on 

plants, birds, or land animals have not been determined, but appear to be low.

Acute Exposure Human Health Effects10–

 Inhalation – Irritating to the upper respiratory tract. Giddiness, headache, intoxication, 

nausea, and vomiting may follow the inhalation of large amounts, while massive amounts 

can cause breathing arrest, liver and kidney damage, and death. Concentrations of 600 

parts per million (ppm) and more can affect the central nervous system after a few 

minutes. 

 Ingestion – Not highly toxic by this route because of low water solubility. Used as an 

oral dosage for hookworm (1 to 4 ml). Causes abdominal pain, nausea, diarrhea, 

headache, and dizziness. 

 Skin Contact – Causes irritation to the skin. Symptoms include redness, itching, and 

pain. May be absorbed through the skin with possible systemic effects. 

 Eye Contact – Causes irritation, redness, and pain. 

 Aggravation of Pre-existing Conditions – Persons with pre-existing skin disorders or eye 

problems or impaired liver or kidney function may be more susceptible to the effects of 

this substance. The use of alcoholic beverages enhances the toxic effects.

Chronic exposure human health effects – May cause liver, kidney, or central nervous system 

damage after repeated or prolonged exposures. Reasonably anticipated to be a human 

carcinogen based on animal studies. 

Fire - Not considered to be a fire hazard, but becomes hazardous in a fire situation because of 

vapor generation and possible degradation to phosgene (highly toxic) and hydrogen chloride 

(corrosive). Vapors are heavier than air and collect in low-lying areas. 

Explosion - Not considered an explosive hazard. Containers may explode, however, when 

involved in a fire.

Non-Halogenated Solvents

Agents11- Paint thinners include: acetone, xylene, ethyl acetate, ethyl benzene, ethyl ether, 

methyl isobutyl, ketone, n-butyl alcohol, cyclohexane, and methanol.

Carburetor dip cleaner includes: cresols, cresylic acid, and nitrobenzene.

Lacquer thinners include: toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine, 

benzene, 2-ethoxyethanol, and 2-nitropropane.

 

10 http://www.jtbaker.com/msds/englishhtml/t0767.htm; http://www.epa.gov/iris/subst/0106.htm; 

http://www.epa.gov/ttn/atw/hlthef/tet-ethy.html; and 

http://www.atsdr.cdc.gov/ToxProfiles/tp.asp?id=265&tid=48

11 http://www.dep.state.fl.us/northeast/waste/HWdeterminations.htm
20

Example agent - benzene. 

Environmental Fate12– When released to the soil or water, benzene will rapidly begin to 

volatilize. However, benzene also migrates in soil and in groundwater. Its airborne levels can be 

reduced by rain or water spray. Benzene in the atmosphere will photo-degrade with a calculated 

half-life of 13.4 days. This is accelerated in polluted atmospheres containing nitrogen or sulfur 

oxides. By-products include phenol, nitrophenols, nitrobenzene, formic acid, and peroxyacetyl 

nitrate. It is a "precursor" hydrocarbon leading to the formation of photochemical smog. 

Benzene biodegrades in soils and groundwaters (half-life 16-28 days) under aerobic conditions. 

Limited degradation occurs under anaerobic conditions. 

Environmental Toxicity13– Benzene has high acute toxic effects on aquatic life. Long-term 

effects on marine life can mean shortened lifespan, reproductive problems, lower fertility, and 

changes in appearance or behavior. It can cause death in plants and roots, and damage to the 

leaves of many agricultural crops.

Acute exposure human health effects14–

 Inhalation – Excessive inhalation may result in heartbeat irregularities and adverse 

central nervous system effects, including headache, sleepiness, dizziness, nausea, loss of 

coordination, and, in extreme conditions, coma and/or death. Additional adverse 

inhalation effects also may include long-term damage to the blood forming system, 

kidney and liver damage, and/or cancer (leukemia).

 Ingestion – Ingestion of benzene may result in adverse central nervous system effects,

including headache, sleepiness, dizziness, nausea, loss of coordination, and, in extreme 

conditions, coma and/or death. Ingestion also may cause kidney and liver damage and 

blood disorders. Small amounts, if aspirated into the lungs, may cause mild to severe

pulmonary injury.

 Skin – Benzene may be rapidly absorbed through the skin. Prolonged and/or repeated 

skin contact may cause mild to severe irritation/dermatitis and chemical blistering. 

Prolonged contact also may cause skin sensitization and secondary skin infections.

 Eye – Contact with liquid and high concentrations of vapors are irritating to the eyes.

Chronic exposure human health effects – Long-term exposure has been associated with certain 

types of leukemia. The International Agency for Research on Cancer (IARC) and the 

Occupational Safety and Health Administration (OSHA) consider benzene to be a human 

carcinogen. EPA has classified benzene as a Group A, known human carcinogen for all routes. 

Chronic exposures have been reported to cause bone marrow abnormalities and adverse blood 

effects, including anemia. Progressive deterioration of the hematopoietic function expressed as a 

decrease in absolute lymphocyte count is the most sensitive indicator of benzene exposure. 

 

12 http://www.npi.gov.au/substances/benzene/environmental.html

13 http://www.npi.gov.au/substances/benzene/environmental.html

14 http://www.novachem.com/productservices/docs/Benzene_MSDS_EN.pdf

http://www.atsdr.cdc.gov/ToxProfiles/tp.asp?id=40&tid=14

http://www.cdc.gov/exposurereport/data_tables/Benzene_ChemicalInformation.html
21

Benzene also may cause fetotoxicity and teratogenicity. Chromosomal aberrations have been 

noted in animal tests.

Fire and Explosion - Fire and container explosion hazards are serious when benzene is exposed 

to heat or flame. Vapor is heavier than air and may spread long distances. Distant ignition and 

flashback are possible. Flammable liquid and vapor can accumulate static charge which can 

form an ignitable vapor-air mixture in a storage tank. Benzene will float on water and may travel 

to distant locations and/or spread fire.

Electric arc furnace dust

Agents15- Electric arc furnace dust is comprised of a variety of metals, including iron, cadmium, 

zinc, calcium oxide, magnesium oxide, lead, silicone, manganese, copper, chromium, and 

aluminum. This review focuses on electric arc furnace dust generally, as well as the hazards of 

hexavalent chromium, lead, and cadmium because these are the constituents for which electric 

arc furnace dust was listed as a hazardous waste. The specific composition of electric arc 

furnace dust varies depending upon the type of material production from which it was generated 

(e.g., carbon steel or stainless steel manufacturing) and furnace additives. 

Environmental Fate8– Based on its various constituents, electric arc furnace dust is expected to 

be hazardous to the environment, and toxic to fish, animals, and plants. It is also likely to persist 

in the environment for a long time, due to the insoluble and non-biodegradable nature of the 

toxic metals it contains. Individual constituents (e.g., cadmium) may bioaccumulate in 

organisms via dissolved metal in the water column or through consumption of prey containing 

bioaccumulated metals.

Acute exposure human health effects16–

 Inhalation – Respiratory tract irritation and/or sensitization (development of an allergy or 

sensitivity to a substance) may occur from acute inhalation exposure. 

 Ingestion – Though ingestion is unlikely, it can lead to abdominal pain, vomiting, fever, 

and diarrhea. Ingestion of large amounts also can elevate lead levels in the body;

however, most health effects occur only after prolonged exposure to lead (see below). 

 Eye – Electric arc furnace dust can cause irritation or inflammation of the eye; rubbing 

the eye upon exposure can damage the cornea.

 Dermal – Electric arc furnace dust can cause irritation, skin lesions, and/or allergic 

reactions of the skin. 

Chronic exposure human health effects – Excessive, repeated exposure to electric arc furnace 

dust may cause allergic sensitization in the form of dermatitis and asthma, lung inflammation 

and damage (e.g., pneumonia, bronchitis, and siderosis [chronic inflammation of the lung]), nasal 

perforation and nasal cavity damage, eye inflammation, permanent central nervous system 

damage, kidney damage, liver damage, gout (inflammation of the joints), and lead poisoning. 

 

15

 Cascade Steel Rolling Mills, Inc. 2001. Material safety data sheet: Electric arc furnace dust. Available online at 

http://www.cascadesteel.com/documents/mill/msds/eaf_dust.pdf.

16

 Gerdau Amisteel. 2008. Material safety data sheet: steel mill electric arc furnace dust. Available online at 

http://www.gerdauameristeel.com/products/msds/docs/MillEnglish/Steel%20Mill%20Electric%20Arc%20Furnace%20Dust%20MSDS%20(NA)%2012-8-08.pdf
22

The carcinogenicity of electric arc furnace dust as a whole has not been determined, though 

hexavalent chromium may cause cancer. Furthermore, a study by Garaj-Vrhovac17 et al. 

indicates that electric arc furnace dust can cause deoxyribonucleic acid (DNA) damage. 

Fire18– Electric arc furnace dust is not flammable.

Hexavalent Chromium19

Acute exposure human health effects –

 Inhalation – Chronic exposure via inhalation to hexavalent chromium may develop 

asthma or other respiratory problems, such as coughing, wheezing, chronic sneezing, 

bronchitis, and nasal perforation (holes). Intermediate and chronic occupational exposure 

to hexavalent chromium may cause death due to noncancerous respiratory disease. 

Occupational (work) exposure to hexavalent chromium can cause abdominal pain, 

nausea, and vomiting, most likely due to ingestion from breathing through the mouth. 

Workers exposed to hexavalent chromium have experienced severe liver effects, such as 

cirrhosis. Eye exposure to aerosols or dusts may cause eye effects, such as conjunctivitis 

(inflammation of the inner membrane of the eyelids). High-level acute exposure to 

hexavalent chromium may lead to dizziness, headache, and weakness. Workers exposed 

to hexavalent chromium have experienced changes in hormones and complications 

during pregnancy. Occupational exposure to hexavalent chromium also may cause 

respiratory system cancers, primarily in the bronchi and nose. 

 Ingestion – Ingestion of hexavalent chromium may lead to death. Subjects who died of 

oral exposure experienced various symptoms, including respiratory effects, such as 

severe bronchitis and pulmonary edema (fluid in the lungs), cardiopulmonary effects,

such as lowered blood pressure and heart rate, and gastrointestinal effects, such as nausea 

and vomiting. Acute ingestion may also affect the blood, leading to effects, such as 

anemia. Kidney damage and liver damage (evidenced by symptoms, such as jaundice) 

may occur upon acute, high-level oral exposure. In humans, evidence of cancer from oral 

exposure is mixed, while hexavalent chromium has caused cancer in animals. Chronic 

dermal exposure may lead to ulcerated skin, dermatitis, and burns. 

Lead

Acute exposure human health effects –

Generally, the toxicity of lead does not depend on the route of exposure (e.g., inhalation or 

ingestion). Chronic exposure to high levels of lead may cause cerebrovascular disease, increased 

blood pressure and other cardiovascular problems, gastrointestinal effects, anemia (a blood 

disorder with symptoms, such as weakness and fatigue), dental caries (cavities) in children, 

 

17

 Garaj-Vrohovac, V; Oreščanin, V; Ruk, D; et al. 2008. In vitro assessment of genotoxic effects of electric arch 

furnace dust on human lymphocytes using the alkaline comet assay. J Environ Sci and Health Part A 44:279-287.

18

 Cascade Steel Rolling Mills, Inc., 2001

19

 ATSDR. 2009. Toxicological profile for chromium. Available online at 

http://www.atsdr.cdc.gov/ToxProfiles/TP.asp?id=62&tid=17#bookmark07. 
23

kidney effects, lowered intelligence quotient (IQ) and other neurotoxic effects (e.g., dizziness, 

memory loss), and hormonal effects.20

Cadmium21

Acute exposure human health effects –

 Inhalation – Short-term, high-level inhalation exposure to cadmium can cause death in 

humans several days after exposure, ultimately caused by respiratory failure or other 

respiratory disease. In general, inhalation exposure to large amounts of cadmium causes 

extreme respiratory irritation, which initially may begin with mild irritation of throat and 

mucous membranes, but up to 10 hours later becomes more severe with flu-like 

symptoms, such as chills and cough. Several days later, symptoms include wheezing, 

persistent cough, malaise, anorexia, nausea, and abdominal pain. The initial flu-like 

symptoms do not occur with a low-level, chronic exposure to cadmium. However, 

chronic inhalation exposure over years can lead to decreases in lung function, 

emphysema and dyspnea (shortness of breath), or possibly death. Lung function may 

recover after time, if exposure is removed. There is some evidence that bones may be 

affected (e.g., through the development of osteoporosis) after chronic exposure to 

cadmium. Cadmium is strongly linked to kidney effects when exposure levels are high, 

while there is weak evidence that cadmium can affect the immune system. Animal 

studies show that inhaled cadmium can affect the offspring of exposed mothers by 

lowering their body weight, their ability to survive, and their neurobehavioral function 

(e.g., motor activity). Long-term exposure to cadmium may cause cancer, most likely in 

the lung. 

 Ingestion – Ingesting large quantities of cadmium can cause death. High oral cadmium 

exposure has been associated with cardiovascular effects, such as heart attack and high 

blood pressure. Human and animal studies show that large ingested amounts of cadmium 

cause gastrointestinal disturbances, such as nausea, vomiting, and abdominal cramps. 

Cadmium ingestion can cause anemia if dietary iron intake is low. Oral exposure is also 

associated with bone and kidney effects and neurological effects, such as lowered IQ. 

Reproductive effects similar to those seen after inhalation exposure may occur, but 

information on effects in offspring of orally-exposed animals/humans is limited. Most 

cancer studies have not found an increase in cancer among people or animals exposure 

orally to cadmium. Cadmium has been shown to cause DNA damage. 

2.2.4 Hazards Associated with Recycling of HSM

This section describes some of the general activities that facilities commonly perform in 

handling HSMs, as well as some of the potential exposure media that may be associated with 

them. These hazards may impact the communities in which these facilities are located. The 

facilities described in this section include:

 Generators of HSM;

 

20

 ATSDR. 2007. Toxicological profile for lead: Health effects. Available online at 

http://www.atsdr.cdc.gov/toxprofiles/tp13-c3.pdf. 

21 ATSDR. 2009. Toxicological profile for cadmium: Health effects. Available online at 

http://www.atsdr.cdc.gov/toxprofiles/tp5-c3.pdf
24

 Transporters of HSM; and

 Intermediate and reclamation facilities of HSM.

Note that the descriptions in this section are intended to be general and do not capture all of the 

different handling practices and hazards that may occur at a given site. 

This section also uses the hazard information from Section 2.2.2 of this report to identify 

potential hazards associated with the activities identified in this section. These hazards are being 

considered independently of any regulation to mitigate the potential effects of these hazards. 

Regulatory considerations are discussed in Section 2.3 of this report.

Potential hazards for solvents and electric arc furnace dust are summarized in Table 2.2.

Facility Type HSM Fire Explosion Soil Water Air

Particulate 

Wind 

Dispersal

Generators Solvents     

Electric 

Arc 

Furnace 

Dust

  

Transporters Solvents     

Electric 

Arc 

Furnace 

Dust

  

Intermediate/ 

reclamation 

facilities

Solvents     

Electric 

Arc 

Furnace 

Dust

  

Generators

Activities

A generator may generate HSM from a variety of activities, such as manufacturing, processing, 

cleaning, degreasing, and service industries. Figure 1 shows the most commonly recycled 

HSMs. Generators may temporarily accumulate HSM at or near the point of generation (e.g., in 

containers) before transferring them to another location onsite (e.g., to centralized accumulation), 

or they may be transferred to another location onsite immediately after it is generated. HSM 

may be transferred onsite using manual equipment (e.g., a hand trolley or cart), machinery (e.g., 

forklift or truck), or piping, tanks and other interconnected equipment or means of conveyance. 

At centralized accumulation areas onsite, HSM may be held in containers, tanks, or other units. 

Various operations also are performed (e.g., opening and closing containers to add HSM, filling 

tanks using piping or portable equipment). Periodically, off-site transporters will collect the 

HSM for off-site transportation. Some generators do not operate centralized accumulation areas; 

rather, the off-site transporter collects the HSM at or near the point of generation.
25

Some generators reclaim their HSM onsite. For solvents, distillation is the process used most 

frequently to recycle spent solvents. The process separates chemicals by the addition of heat, 

which causes the more volatile compounds, typically the solvent to be recovered, to vaporize. 

The vaporized solvent is then condensed back into liquid and reused. This process results in a 

residue that may contain solvents or other chemicals and may require subsequent management as 

a hazardous waste. Systems used for on-site distillation may include fixed or mobile trailer 

systems brought to the facility by a vendor. 

When electric arc furnace dust is recycled onsite, the recycling typically consists of collecting 

electric arc furnace emissions in a bag filter, conveying dust to a hopper, physically processing it 

by briquetting and feeding it back into the electric arc furnace that generated the waste. Prior to 

recycling, it may be stored in bins, drums, or other containers.

Potential Hazards

Following are possible hazards associated with the generator activities described above for 

solvents and electric arc furnace dust:

Solvents

 Fires and explosions. Solvent wastes, especially non-halogenated solvents, are often 

highly flammable and can ignite to create fires and explosions. Because solvents also 

tend to be volatile, air emissions may ignite to cause fires and explosions if ignited, 

resulting in injury or property damage. Fires and explosions also may evolve other toxic 

or hazardous gasses. 

 Volatile organic air emissions during accumulation and transportation onsite. Under 

certain conditions, solvents held in tanks or containers could volatilize and escape to the 

atmosphere through open container lids, uncovered tanks, leaks (e.g., from valves and 

pumps) and vents, container breathing (a process that can cause air containing solvents to 

move out of a container or tank as the air in a container expands and contracts due to 

changes temperature), and waste transfer. 

 Wind dispersal of particulate matter during accumulation and transportation onsite. Wind 

dispersal can occur if the HSM is in the form of a dust or small, dry particles, adequate 

controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts). 

Soil or other solid media contaminated with solvents may be susceptible to wind 

dispersal.

 Soil, groundwater, and air contamination from liquid releases during accumulation and 

transportation onsite. During accumulation, a number of factors could lead to a release, 

such as tank overflows or overtopping; leaks from damaged or deteriorated containers or 

tanks; complete failure of tank or container integrity; and run on/run off from the storage 

area. During transfer, releases could include spills, overflows, and leaks from human 

error or deterioration of transport equipment (e.g., leaking pipes). Solvent wastes are 

susceptible to such releases because they are commonly in la liquid state. 

 Air emissions from reclamation. The solvent reclamation processes described above use 

the addition of heat to accomplish desired chemical reactions (e.g., vaporization of 

organics, melting of metals). These processes can produce air emissions from various 

locations, such as stacks, equipment leaks, and vents.
26

Electric Arc Furnace Dust

 Wind dispersal of particulate matter during accumulation and transportation onsite. Wind 

dispersal can occur if the HSM is in the form of a dust or small, dry particles, adequate 

controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts). 

Electric arc furnace dust, in particular, might be susceptible to wind dispersal during 

accumulation or transfer, because it is often present in dust form. 

For example, one of the damage cases identified in the Environmental Problems Study 

identifies electric arc furnace dust as a potential source of contamination because the 

electric arc furnace dust waste pile at a manufacturing facility did not have wind 

controls.

22

 Airborne exposure to lead, chromium, or cadmium particulate escaping from 

mismanaged emission control dusts is another pathway of concern.23 These minute 

particles could be dispersed by wind if waste dusts are piled in the open.24 As a result, 

the health of persons who inhale the airborne particulates would be jeopardized.25 Note 

that, prior to its listing as a hazardous waste, electric arc furnace dust was stored in waste 

piles.26 Although EPA does not believe that storage of electric arc furnace dust in waste 

piles is not a common practice currently, the exclusions promulgated in the 2008 Final 

Rule might result in such storage absent the legitimacy criteria. 

 Soil and groundwater contamination may occur during accumulation and transportation 

onsite. During transfer, spills due to human error or deterioration of transport equipment

also may occur.

Transporters

Activities

HSM may be shipped offsite by a variety of modes (e.g., highway, rail, water). The most 

prevalent is by highway using a wide variety of trucks (e.g., vacuum trucks or trailers, pump 

tankers, vans, dump trucks, tractor trailers). A transporter may pick up loads from multiple 

generators (i.e., less than truck load shipments) or it may pick up a full truckload from a single 

generator. During a shipment, a transporter may perform various activities, such as 

consolidating, re-routing, or transferring shipments.

Potential Hazards

Following are possible hazards associated with the transportation activities described above for 

solvents and electric arc furnace dust:

General (both solvents and electric arc furnace dust)

 Vehicle air emissions. Transportation vehicles emit pollution as a result of combustion of 

fuel and fuel evaporation. Primary air pollutants include carbon monoxide, 

 

22

 The site was operational from 1970 until the late 1980's and produced liquid and dry zinc sulfate fertilizers 

utilizing electric arc furnace dust from the primary production of steel as a raw material.

23

 K061 Listing document, p. 11.

24

 Ibid.

25

 Ibid.

26

 K061 Listing document.
27

hydrocarbons, nitrogen oxides, and particulate matter. These pollutants can lead to 

adverse health effects in children and adults, and worsen environmental problems 

(e.g., increasing the amount of greenhouse gases in the atmosphere).

 Traffic accidents. Accidents involving trucks containing HSM may result in releases of 

the HSM. This can result in contamination of soil and water, air emissions, fires, and 

explosions. In addition, accidents during the transport of HSM may cause fatalities, 

injuries, and property damage ,even if the HSM is not released.

 Traffic congestion and noise. Transportation vehicles can contribute to increased levels 

of traffic congestion and noise along the transportation route. These effects can worsen 

the quality of life of people working or residing nearby.

Solvents

 Fires and explosions. Solvent wastes are often flammable, and can ignite to create fires 

and explosions. Because solvent HSM also tends to be volatile, air emissions may cause 

fires and explosions if ignited, causing injury or property damage. Fires and explosions 

also may evolve other toxic or hazardous gasses. 

 Volatile air emissions. During loading, unloading, and transport, volatile air emissions 

may escape from valves, pumps, hoses, tank trucks, drums, and other containers. Under 

certain conditions, solvents held in tank trucks or drums could volatilize and escape to the 

atmosphere through open container lids, uncovered tanks, leaks and vents, container 

breathing (a process that can cause air containing solvents to move out of a container or 

tank as the air in a container expands and contracts due to changes in temperature), and 

container filling (as the air in a container is displaced by the liquid added to the 

container). Under some conditions, volatile air emissions may ignite to cause fires and 

explosions. 

Electric Arc Furnace Dust

 Air emissions of metals. During the electric arc furnace dust recycling process, the high 

temperatures used may cause volatile metals, such as lead and zinc, to volatilize and be 

emitted in the flue gas from the facility.

 Wind dispersal of particulate matter during loading and transportation. Wind dispersal 

can occur if the HSM is in the form of a dust or small, dry particles, adequate controls are 

not in place, and certain climatic conditions prevail (e.g., strong wind gusts). Electric arc 

furnace dust, in particular, might be susceptible to wind dispersal during loading or 

transfer, because it is often present in dust form. Airborne exposure to lead, chromium, 

or cadmium particulate escaping from mismanaged emission control dusts is another 

pathway of concern.27 These minute particles could be dispersed by wind if waste dusts 

are improperly handled during transportation.28 As a result, the health of persons who 

inhale the airborne particulates would be jeopardized.29

 

27

 K061 Listing document, p. 11.

28

 Ibid.

29

 Ibid.
28

Intermediate and Reclamation Facilities

Activities

Intermediate and reclamation facilities periodically receive HSM from off-site sources. The 

HSM may be placed in storage units at the facility until it is ready for reclamation or transfer to a 

reclamation facility. Facilities may store the HSM in containers, tanks, or other units in 

accordance with applicable regulations. 

In addition, processing of the HSM may be performed before reclamation. This may include, for 

example, aggregation/consolidation of the HSM to facilitate the reclamation process, filtration of 

other physical processes to remove impurities, or other processing steps. This may be performed 

in tanks, containers, or other equipment. HSM may be transported from on-site storage and 

processing units to the reclamation unit using machinery (e.g., trucks) or pipes, tanks, and other 

equipment.

For solvents, distillation is the process used most frequently to recycle spent solvents. The 

process separates chemicals by the addition of heat, which causes the more volatile compounds, 

typically the solvent to be recovered, to vaporize. The vaporized solvent is then condensed back 

into liquid and reused. This process results in a residue that may contain solvents or other 

chemicals, and may require subsequent management as a hazardous waste. 

Off-site management of electric arc furnace dust is most frequently conducted using processes to 

separate and recover metals, such as High Temperature Metals Recovery (HTMR). In the 

HTMR process, electric arc furnace dust is mixed with coal or coke, the mixture is pelletized, 

and heated in a furnace to reduce iron and nickel oxides. The resulting material is then fed to an 

electric arc furnace, where volatile metals, such as lead and zinc, are removed from the flue gas, 

and metal and slag are separated and removed.

Potential Hazards

The hazards for off-site recycling facilities are generally the same as those for on-site recycling 

processes, which are described in Section 2.2.1 of this report.

Solvents

 Fires and explosions. Solvent wastes are often flammable, and can ignite to create fires 

and explosions. Because solvent HSM also tends to be volatile, air emissions may cause 

fires and explosions if ignited, causing injury or property damage. Fires and explosions 

may also evolve other toxic or hazardous gasses. 

 Volatile organic air emissions during accumulation and transportation on-site. Under 

certain conditions, solvents held in tanks or containers could volatilize and escape to the 

atmosphere through open container lids, uncovered tanks, leaks and vents, container 

breathing (a process that can cause air containing solvents to move out of a container or 

tank as the air in a container expands and contracts due to changes in temperature), and 

container filling (as the air in a container is displaced by liquid added to the container). 

Under some conditions, volatile air emissions may ignite to cause fires and explosions. 

 Wind dispersal of particulate matter during accumulation and transportation on-site. 

Wind dispersal can occur if the HSM is in the form of a dust or small, dry particles, 

adequate controls are not in place, and certain climatic conditions prevail (e.g., strong 
29

wind gusts). Soil or other solid media contaminated with solvents may be susceptible to 

wind dispersal.

 Soil, groundwater, and air contamination from liquid releases during accumulation and 

transportation on-site. During accumulation, a number of factors could lead to a release, 

such as tank overflows or overtopping, leaks from damaged or deteriorated containers or 

tanks, complete failure of tank or container integrity, and run on/run off from the storage 

area. During transfer, releases could include spills, overflows, and leaks from human 

error or deterioration of transport equipment (e.g., leaking pipes). Solvent wastes are 

susceptible to such releases since they are commonly in a liquid state. 

 Air emissions from reclamation. The solvent reclamation processes described above use 

the addition of heat to accomplish the desired chemical reactions (e.g., vaporization of 

organics, melting of metals). These processes can produce air emissions from various 

locations, such as stacks, equipment leaks, and process vents.

Electric Arc Furnace Dust

 Wind dispersal of particulate matter during accumulation and transportation on-site. 

Wind dispersal can occur if the HSM is in the form of a dust or small, dry particles, 

adequate controls are not in place, and certain climatic conditions prevail (e.g., strong 

wind gusts). Electric arc furnace dust in particular might be susceptible to wind dispersal 

during accumulation or transfer, because it is often present in dust form. Airborne 

exposure to lead, chromium, or cadmium particulate escaping from mismanaged emission 

control dusts is another pathway of concern.30 These minute particles could be dispersed 

by wind if waste dusts are piled in the open or placed in unsecure landfills.31 As a result, 

the health of persons who inhale the airborne particulates would be jeopardized.32 Note 

that, prior to its listing as a hazardous waste, electric arc furnace dust was typically 

dumped in the open at on-site or off-site disposal facilities (i.e., in waste piles).

33

 

However, electric arc furnace dust is no longer managed in waste piles.

 Soil and groundwater contamination may occur. For example, prior to its listing as a 

hazardous waste, electric arc furnace dust waste was typically disposed of by being 

dumped in the open; thus, posing a realistic possibility of migration of chromium, lead, 

and cadmium to underground drinking water sources. 34 During transfer, spills due to 

human error or deterioration of transport equipment also may occur. 

References:

EPA. 2014. An Assessment of Environmental Problems Associated With Recycling of 

Hazardous Secondary Materials. 

 

30

 K061 Listing document, p. 11.

31

 Ibid.

32

 Ibid.

33

 K061 Listing document, p. 5.

34

 K061 Listing document, p. 3.
30

EPA. 2008. Definition of Solid Waste Final Rule. Federal Register Volume 73 Page 64663. 

October 30, 2008. http://www.epa.gov/wastes/hazard/dsw/index.htm

EPA. Hazardous Waste List

http://www.epa.gov/epawaste/hazard/wastetypes/listed.htm

(link to 40 CFR 261.31 contains specific chemicals)

CDC. 2010a. National Report on Human Exposure to Environmental Chemicals, Halogenated 

solvents -

http://www.cdc.gov/exposurereport/data_tables/HalogenatedSolvents_ChemicalInformation.html

Other halogenated solvents -

http://www.cdc.gov/exposurereport/data_tables/OtherHalogenatedSolvents_ChemicalInformatio

n.html

ATSDR. Toxic Substances Portal

Main page to access Tox Profiles

http://www.atsdr.cdc.gov/toxprofiles/index.asp#bookmark05

Source: Delisting Petition for Treated K061, Max Environmental Technologies, Inc. (Hazardous 

Waste Management Services), Yukon, PA, CEC Project 210966, 11/2003. 

http://www.depweb.state.pa.us/pubpartcenter/lib/pubpartcenter/EQB/2004/yukon_delisting_petit

ion.pdf
31

2.3 Regulatory Comparison - Summary of Comparative Results by Facility Type and 

Scenario

This section presents the results of EPA’s 

comparison of the full RCRA Subtitle C 

hazardous waste regulations to the federal 

regulations applicable to facilities operating 

under the current DSW exclusions. This 

comparison also includes the Clean Air Act 

(CAA); the Clean Water Act (CWA); the 

Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA); the 

Emergency Planning and Community Right-toKnow Act (EPCRA); the Hazardous Materials

Transportation Act (HMTA); and the 

Occupational Safety and Health Act (OSH Act). 

EPA compared the regulatory requirements under 

each of the scenarios described in Section 2.1 of 

this report for the three types of facilities that 

could manage HSMs under the current DSW 

exclusions:

1. Generators;

2. Transporters; and

3. Intermediate and Reclamation Facilities.

This section describes the key regulatory 

differences applicable to each type of facility 

(i.e., generator, transporter, and intermediate and 

reclamation facilities) under hazardous waste 

regulations and current DSW exclusions, 

identifies the possible consequences of these 

differences, and indicates, under which of the 

eight scenarios these differences and 

consequences could occur. It also notes where

the differences are dependent on whether the 

DSW exclusion is the TBE or the GCE. The 

comparative results are presented in a table that 

summarizes the regulatory differences and 

consequences by facility type and scenario.

This section only summarizes the key regulatory 

differences that may lead to a change in impacts 

to human health and the environment under the 

current DSW exclusions. A more detailed 

comparative analysis of the regulatory provisions 

is presented in Appendix A.

DSW Regulations Compared to Full 

Subtitle C Regulation

Resource Conservation and Recovery Act 

(RCRA) Definition of Solid Waste 

Exclusions

 Generator-Controlled Exclusion

 Transfer-Based Exclusion

Clean Air Act (CAA)

 CAA Title V Air Quality Permitting 

Process

 CAA Standards for Area Sources Not 

Subject to Title V Permit

 Chemical Accident Prevention 

Provisions

Clean Water Act (CWA)

 Oil Pollution Prevention

Comprehensive Environmental Response, 

Compensation, and Liability Act 

(CERCLA) 

 Release Notification (RQs)

Emergency Planning and Community 

Right-to-Know Act (EPCRA) 

 Release Notification 

Hazardous Materials Transportation Act 

(HMTA) 

 Overview and Applicability

 Hazardous Materials Regulations

 Transportation of Hazardous Materials

 Driving and Parking Rules

Occupational Safety and Health Act 

(OSH Act)

 Process Safety Management of Highly 

Hazardous Chemicals

 Hazardous Waste Operations and 

Emergency Response

 Hazard Communication
32

Generators

Following is a discussion of the key differences and consequences in the federal regulation of 

generators of hazardous waste and generators of HSM under the DSW exclusions.

The DSW exclusions allow generators to accumulate HSM onsite for longer periods of time 

than the hazardous waste regulations, which could lead to greater quantities being 

accumulated at any given time (All scenarios).35 The hazardous waste regulations and the 

DSW exclusions set forth time limits for generators to accumulate HSM onsite. Specifically, the 

hazardous waste regulations require generators to ship hazardous waste offsite every 90 or 

180/270 days (depending on generator size and type of activity involved), whereas the DSW 

exclusions require generators to recycle (or ship for recycling) 75% of their HSM within one

calendar year. This means that generators under the DSW exclusions could accumulate 75% of 

their HSM onsite for a calendar year and 25% for potentially longer periods. In addition, the 

DSW exclusions do not include a quantity limit for on-site accumulation, in contrast to the 

hazardous waste regulations for small quantity generators (SQGs). 

The DSW exclusions require that material be “contained,” but do not prescribe specific 

technical standards for containment in contrast to the hazardous waste regulations (All 

scenarios). The hazardous waste regulations and the DSW exclusions require containment of 

HSM in the unit. The hazardous waste regulations prescribe specific design, installation, 

operating, and closure standards to address containment (e.g., storage limits, standards for 

container and tank design, operation, and inspection frequency). Prescriptive requirements tend 

to facilitate inspection and enforcement, which helps to prevent releases. The DSW exclusions 

do not include prescriptive requirements. The DSW exclusions allow more flexibility in how 

HSMs can be contained. Some generators and facilities under the DSW exclusions may choose 

to follow the hazardous waste regulations for their units, particularly if they operate other units 

that are subject to the hazardous waste regulations. 

In addition, the GCE allows generators to manage their HSM in land-based units (e.g., surface 

impoundments, piles), but the exclusion does not prescribe containment standards. The 

 

35

 For generators that switch from off-site management to on-site recycling (Scenarios 2 and 8), there is the 

possibility that there might be smaller volumes of HSM accumulated, if recycling can occur more quickly than 

accumulation of enough material for a shipment to be sent offsite. 

DSW Scenarios

1. Generator continues current recycling practices

2. Generator switches from off-site disposal to on-site reclamation

3. Generator switches from off-site disposal to off-site recycling under the control of the generator 

4. Generator switches from off-site disposal to off-site recycling at a RCRA-permitted facility

5. Generator switches from off-site disposal to off-site recycling at a U.S. facility without a RCRA permit

6. Generator switches from off-site disposal to exporting for recycling

7. Generator switches from off-site recycling at a facility without a permit to another type of recycling 

under the current DSW exclusions

8. Generator switches from off-site recycling at a RCRA-permitted facility or exporting waste for recycling 

to another type of recycling under the current DSW exclusions
33

hazardous waste regulations do not allow generators to manage hazardous waste in land-based 

units, unless they have a permit or interim status, which prescribe facility and unit design, 

operating and other standards.

The DSW exclusions do not include requirements for generators to control air emissions

from their operations, in contrast to the hazardous waste regulations (All scenarios). While 

the DSW exclusions require containment of the HSM, they do not include explicit requirements 

for control of air emissions. The hazardous waste regulations prescribe specific design, 

operating, and other standards for controlling air releases from process vents, equipment leaks, 

and storage units by large quantity generators, whereas the DSW exclusions do not include such 

prescriptive requirements.

36

 

Some generators operating under the DSW 

exclusions may be required to get a permit under 

the CAA regulations. Where facilities are 

subject to the CAA, requirements to control air 

emissions are comparable to the hazardous waste 

regulations. However, facilities not subject to 

the CAA permitting requirements would not be 

required to provide a comparable level of control 

for air emissions from process vents, leaks, and 

storage units as the hazardous waste regulations.

As a result of the DSW exclusions, the 

hazardous waste generators status of some 

generators may change under the hazardous 

waste regulations and be subject to less 

stringent hazardous waste regulation (All 

scenarios). Under the hazardous waste 

regulations, a site that generates hazardous waste 

must determine its generator status by counting 

the quantity of hazardous waste that it produces during any given calendar month:

 It is a large quantity generator (LQG) if it generates 1,000 kg or more of hazardous waste

in a calendar month, more than 1 kg of acute hazardous waste in a calendar month, or 

more than 100 kg of any residue, soil, waste or other debris resulting from the cleanup of 

any acute hazardous waste. 

 It is a small quantity generator (SQG) if it generates greater than 100 kg but less than 

1,000 kg of hazardous waste in a calendar month. 

 It is a conditionally exempt small quantity generator (CESQG) if it generates 100 kg or 

less of hazardous waste in a calendar month, 1 kg or less of acute hazardous waste in a 

 

36Air emission regulations for process vents, equipment leaks, and storage units are applicable to 90-day 

generators/TSDFs managing hazardous secondary materials having a time-weighted, annual average total organic 

concentration of 10 parts per million by weight (ppmw) or greater, organic concentrations of at least 10 percent in 

contact or contained in “equipment” for at least 300 hours/calendar year, and/or an average volatile organic 

concentration equal to or exceeding 500 ppmw, respectively. While spent solvents are expected to equal or exceed

these thresholds triggering organic air emission controls, it is highly unlikely units handling K061 will be subject.

Regulatory Requirements Considered

 Legitimate Recycling

 Storage Time Limit

 Containment

 Air Emissions

 Emergency Preparedness and Response

 Personnel Training

 Reporting and Recordkeeping

 Offsite Transportation 

 Exports

 Security

 Financial Assurance

 Requirement for a Permit 

 Public Involvement
34

calendar month, or 100 kg or less of any residue, soil, waste or other debris resulting 

from the cleanup of any acute hazardous waste. 

LQGs are generally subject to more stringent requirements than SQGs. For example, LQGs 

must prepare and follow a contingency plan for emergencies, conduct recurring personnel 

training on emergency procedures, and comply with the full breadth of tank systems standards 

and air emission controls as applicable, whereas SQGs do not. SQGs are subject to more 

stringent requirements than CESQGs, who are exempt from the hazardous waste regulation, 

provided they meet certain requirements.

A generator operating under a DSW exclusion would not be required to count its excluded HSM 

in determining its generator status under the hazardous waste regulations. As a result, the 

generator may change to a different status (e.g., from LQG to SQG or CESQG) because it would 

have less hazardous waste to count and therefore, would be subject to less stringent hazardous 

waste requirements. 

Generator on-site reclamation may be less stringently regulated under the GCE than the 

hazardous waste regulations (Scenarios 1, 2, and 8). The hazardous waste regulations require 

LQG reclaimers to comply with the air emission controls (e.g., for process vents on reclamation 

units). In addition, generators that reclaim hazardous waste onsite are required to obtain a permit 

if they store the waste for longer than 90 days for LQGs, or 180/270 days for SQGs (depending 

on type of activity involved), pending reclamation. The permitting process requires public 

involvement. The GCE does not include prescriptive requirements for air emissions; rather it 

requires that the material be “contained.” It also does not require a permit or public involvement. 

In addition, it allows generators to manage their HSM in land-based units without a permit or 

interim status, unlike the hazardous waste regulations, which require a permit or interim status 

for the management of hazardous waste in land-based units.

The hazardous waste regulations and TBE require comparable procedures for exports 

(Scenario 1). The hazardous waste regulations require an exporter of hazardous waste to fulfill 

the notice-and-consent requirements prior to export, submit an annual report summarizing export 

activities, and keep specified records. The TBE also requires generators to perform notice-andconsent, annual reporting, and recordkeeping. It also requires generators to perform reasonable 

efforts to audit the reclaimer. Note that the GCE does not address exports because it requires 

that the material be generated and reclaimed within the U.S. and territories. 

Some generators may switch from off-site reclamation or treatment/disposal at a RCRApermitted facility to reclamation under the GCE, which does not require a permit 

(Scenarios 2, 3, and 8). Some generators may divert their HSM from off-site reclamation or 

treatment then disposal at a RCRA-permitted facility to on-site reclamation. RCRA-permitted 

facilities are subject to prescriptive standards/conditions covering the design, construction, 

operation, financial assurance, emergency preparedness, and closure of the facility. They also 

are subject to public involvement in the permitting process. The GCE does not require 

prescriptive standards, a permit, or public involvement. In addition, it allows generators to 

manage their HSM in land-based units without a permit or interim-status. Reclaimers and 

treatment and disposal facilities must have a permit to manage hazardous waste in land-based 

units.

The DSW exclusions require all generators to notify EPA of their HSM generation and 

management activities biennially, whereas the hazardous waste regulations require 
35

biennial reporting only for LQGs (All Scenarios). The hazardous waste regulations and DSW 

exclusions have comparable requirements for initial and biennial submittals in regard to 

frequency and types of information submitted. However, the DSW notification requirement 

applies to generators regardless of size. The biennial reporting requirement in the hazardous 

waste regulations applies only to LQGs. Notifications or other types of reporting helps the 

regulatory agency to plan and prioritize inspections, making enforcement more effective and 

potentially increasing compliance.

Transporters

Following is a discussion of the key differences and consequences in the federal regulation of 

hazardous waste shipments and shipments of DSW-excluded HSMs.

Off-site transport of DSW-excluded material that qualifies as a DOT hazardous material is 

generally subject to transportation-related regulation comparable to hazardous waste 

shipments (Scenarios 1, 3, 4, 5, 6, 7, and 8). The DOT regulations set forth requirements for 

DOT hazardous material shipments in regard to the use of shipping papers, packaging, labeling, 

marking, placarding, parking, and driving. The DOT regulations apply to all hazardous wastes,

as well as other materials, including commercial products, that qualify as a DOT “hazardous 

material.”37 A material qualifies as a DOT hazardous material if it: (1) is listed in the Table in 

49 CFR 172.101 (e.g., compounds), (2) is listed in the Appendices to the Table in 49 CFR 

172.101,38 or (3) meets one or more of the hazard classifications (e.g., flammable liquid). 

Following is a further discussion of the DOT requirements with regard to the GCE and the TBE:

 GCE. Prior to and during off-site transport, hazardous HSMs that qualify as a DOT 

hazardous material would be subject to comparable transportation requirements as 

hazardous waste in regard to packing, labeling, marking, placarding, parking, and 

driving. Specifically, the DOT regulations apply similarly to hazardous waste and other 

types of DOT hazardous materials, such as excluded HSM, in regard to these activities. 

An exception, however, is that the excluded material would not be subject to the 

hazardous waste manifest requirements for chain-of-custody tracking and confirmation of 

receipt.

 TBE. On-site handling and off-site shipments of HSMs that qualify as a DOT hazardous 

material would be subject to DOT regulation and must comply with comparable 

transportation requirements as hazardous waste in regard to packaging, labeling, marking, 

placarding, parking, driving, and tracking. Note that the TBE requires recordkeeping of 

all off-site shipments by the generator and reclamation facility, and a confirmation of 

receipt must be sent from the reclaimer to the generator. These recordkeeping and 

transmittal requirements are comparable to the hazardous waste manifest requirements 

for chain-of-custody tracking and confirmation of receipt.

On-site handling and off-site transportation of DSW-excluded material that no longer 

qualifies as a DOT hazardous material would not be subject to regulation comparable to 

 

37

 All hazardous wastes are listed in Part 172 as DOT hazardous material and therefore are automatically subject to 

the DOT regulations as applicable. 

38

 A hazardous substance (including hazardous wastes and other substances) listed in the appendices must comply 

with DOT packaging, labeling and other regulations if it exceeded its reportable quantity (RQ).
36

hazardous waste shipments (Scenarios 1, 3, 4, 5, 6, 7, and 8). Under the GCE or TBE, 

transportation requirements for excluded HSMs that do not qualify as a DOT hazardous material 

would not be comparable to those for hazardous waste in regard to packing, labeling, marking, 

placarding, parking, or driving (or tracking, for shipments under the GCE). An excluded 

material would not need to comply with the DOT regulations if it is not listed in the Table in 49 

CFR 172.101, is not listed in (or otherwise does not exceed its reportable quantity in) the 

Appendices to the table, and does not meet any hazard classification. 

Further, the Reportable Quantities (RQs) contained in 49 CFR Part 172 that trigger the DOT 

hazardous materials requirements are potentially different for hazardous waste and non-waste. A 

material-specific RQ is used to determine whether a hazardous waste or other hazardous 

substances must comply with the DOT requirements (i.e., if the hazardous substance exceeds its 

RQ, it must comply). In some cases the RQ for a hazardous waste would be lower because it is a 

hazardous waste than the RQ if the material were not considered a hazardous waste. In these 

cases, a greater quantity of material would be required to exceed the RQ if the material were a

non-waste. This could result in some excluded materials not triggering the RQ requirements (at 

the lower level) and therefore, not needing to comply with RQ-related DOT packaging and other 

regulations.

The GCE does not require tracking of off-site shipments, in contrast to the hazardous 

waste regulations (Scenarios 3 and 8). The hazardous waste regulations require the 

manifesting of all off-site shipments, which provides for chain-of-custody tracking of shipments 

and generator confirmation that the shipment has been received by the designated facility. By 

contrast, the DSW GCE does not require tracking of shipments (e.g., from the generating site to 

an off-site reclamation facility owned by the generator) or recordkeeping that could serve a 

comparable purpose. Further, if the shipment were subject to DOT regulation, a shipping paper 

must accompany it. However, the destination facility need not keep a copy of it for three years 

or transmit to the original generator site (or place in its company files) the confirmation of 

receipt. Therefore, a generator making off-site shipments under the GCE would not be 

documenting that its excluded material reached the intended destination intact, as is required by 

the manifest regulations.

Intermediate and Reclamation Facilities

Following is a discussion of the key differences and consequences in the federal regulation of 

hazardous waste storage facilities and HSM intermediate and reclamation facilities under the 

TBE.

The provisions on residuals under the TBE are intended to clarify that residuals from reclamation 

are subject to the waste characterization requirements and cannot simply be discarded as nonhazardous waste. However, designating the residuals as a newly generated waste raises the 

possibility that some residuals from the recovery process that were considered hazardous under 

full RCRA Subtitle C regulation would no longer be considered hazardous upon exiting recovery 

units operated under the current DSW exclusions.

Some HSMs may be diverted from off-site reclamation, treatment then disposal at a 

permitted facility under the hazardous waste regulations to off-site reclamation under the 

TBE, which is allowable without a RCRA permit; however, generator audits are required 

in those cases (Scenarios 5 and 8). Permitted facilities are subject to prescriptive permit 

requirements and self-imposed conditions covering the design, construction, operation, financial 
37

assurance, closure, and post-closure of the facility and hazardous waste management units. They 

also are subject to public involvement during the permitting process. Reclamation under the 

TBE would be subject to fewer requirements, including no requirement for a permit or public 

involvement. Thus, reclamation under the TBE is not subject to emergency preparedness and 

response, personnel training, or prescriptive requirements for containment. However, the TBE

requires the generator to perform a “reasonable efforts” audit of facilities that do not have a 

RCRA permit covering management of the material. The generator audit must focus on 

specified areas (e.g., the reclaimer’s compliance history). In addition, facilities must obtain 

financial assurance. In general, however, facilities under the TBE would be subject to fewer 

prescriptive requirements, no public involvement, and possibly less regulatory oversight than 

permitted facilities.

The TBE requires that material be “contained,” but does not prescribe specific standards 

for containment in contrast to the hazardous waste regulations (Scenarios 5 and 8). The 

hazardous waste regulations and TBE require containment of the HSMs in the unit. The 

hazardous waste regulations prescribe specific design, installation, operating, and closure and 

post-closure standards to address containment. Prescriptive requirements could facilitate 

inspection and enforcement, which could help to prevent releases. The TBE does not contain 

prescriptive requirements for containment. The exclusion requires that the material be managed 

in a manner that is at least as protective as that employed for analogous raw material and be 

contained. As such, the TBE is performance oriented and allows more flexibility in how HSMs 

can be managed and contained. 

The TBE does not include standards for controlling air emissions from process vents, 

equipment leaks, or storage units in contrast to the hazardous waste regulations (Scenarios 

5 and 8). While the TBE requires containment of HSMs, it does not include explicit 

requirements for control of air emissions whereas the hazardous waste regulations set forth 

prescriptive design, operating, and other standards to control air releases from process vents, 

leaks, and storage units. The TBE does not include such prescriptive requirements. 

Some reclaimers operating under the DSW exclusions may be required to get a permit under the 

CAA regulations. Where such facilities are subject to the CAA, requirements to control air 

emissions are comparable to the hazardous waste regulations. However, facilities not subject to 

CAA permitting would not be required to provide a comparable level of control of air emissions 

from process vents, leaks, and storage units as the hazardous waste regulations.

Some HSM may be diverted from permitted off-site facilities to being exported for 

reclamation under the TBE, which does not require a permit. However, the importing 

facility must pass generators’ “reasonable efforts” audit (Scenarios 6 and 8). As described 

above, permitted facilities are subject to prescriptive permit requirements covering the design, 

construction, operation, air emission controls, financial assurance, and closure and post-closure 

of the entire facility. They also are subject to public involvement during the permitting process. 

Under the TBE, the HSM may be exported to a foreign facility, which is not subject to a permit 

or public involvement. However, the exclusion would require generators to make reasonable 

efforts to audit the facility before exporting the material to a foreign facility. In addition, the 

TBE requires generators to perform notice-and-consent activities. Note that, even though 

hazardous wastes are currently exported to other nations for reclamation, EPA has not received 

any notification indicating that HSMs will be exported under the 2008 DSW final rule. Based on 
38

this facility behavior, EPA does not anticipate that a significant amount of HSMs will be 

exported under the TBE of the current DSW exclusions. 

Some HSMs may be diverted from unpermitted off-site reclaimers under the hazardous 

waste regulations to different off-site reclaimers under the TBE (Scenario 7). Under the 

hazardous waste regulations, reclaimers that do not store hazardous waste pending reclamation 

are not subject to the prescriptive hazardous waste requirements (e.g., for design, operation,

financial assurance, closure of the facility or units), except as otherwise specified.

39

 They also 

are not subject to a hazardous waste permit or public involvement. 

Under the TBE, off-site reclaimers are, among other things: 

 Required to manage the HSM in a manner that is at least as protective as analogous raw 

material, contain the material, have financial assurance, and keep specified records. In 

addition, unless it has a RCRA permit covering management of the material, it must pass 

a generator audit before it can receive the generator’s material.

 Allowed to store HSM without a permit or prescriptive standards, unlike hazardous waste 

reclaimers, which are subject to a permit if they store HSM.

The TBE generally includes more stringent requirements than the hazardous waste regulations 

for reclaimers that do not store the HSM before reclamation. It includes less stringent 

requirements for reclaimers that store the HSM before reclamation.

2.4 Summary of Comparative Results by Facility Type and Scenario

Table 2.3 summarizes the key regulatory differences and consequences described in Section 2.3

of this report. They are summarized by facility type and scenario.

 

39

 In some cases, reclaimers can be subject to prescriptive requirements. For example, reclamation units at a facility 

subject to RCRA permitting must comply with applicable air emission controls for process vents, as specified.
39

Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs)

and the Definition of Solid Waste (DSW) Exclusions by Scenario a

Scenarios Generators b Transporters Intermediate and 

Reclamation Facilities

1. Generator continues 

current reclamation

practices (where 

allowed under DSW)c

HSM can be accumulated onsite for longer periods 

of time under exclusions, resulting in potentially 

greater aggregate quantities onsite at any given 

time

Exclusions require containment, but do not include 

prescriptive standards, whereas HWRs are 

prescriptive

GCE allows management of HSM in land-based 

units without a permit or interim-status, unlike 

HWRs

Generators could change in status (e.g., LQG to 

SQG) as a result of exclusions and be subject to 

less stringent HWRs

Export procedures under HWRs and TBE are 

comparable

DSW exclusions require all generators to notify 

EPA biennially, whereas HWRs require biennial 

reporting only for LQGs

When transported 

offsite, excluded HSMs 

that qualify as DOT 

hazardous material 

would be subject to 

DOT transportation 

regulations that are 

comparable to HWRs

Some excluded material 

may no longer qualify as 

a DOT hazardous 

material and be subject 

to DOT transportation 

regulations (e.g., no 

standards for packaging, 

marking, labeling)

There is no change in 

storage methods or 

recycling practices for HSM 

that has been diverted from 

off-site RCRA permitted 

facility under HWRs to 

off-site RCRA permitted 

facility under TBE
40

Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs)

and the Definition of Solid Waste (DSW) Exclusions by Scenario a

Scenarios Generators b Transporters Intermediate and 

Reclamation Facilities

2. Generator switches 

from off-site treatment 

then disposal at a 

RCRA facility to on-site 

reclamation under 

GCE

HSM can be accumulated onsite for longer periods 

of time under GCE, resulting in potentially greater 

quantities onsite at any given time

The GCE requires HSM to be “contained,” but 

does not include prescriptive standards, whereas 

HWRs are prescriptive

GCE allows management of HSM in land-based 

units without a permit or interim-status, unlike 

HWRs

Generators could change in status (e.g., from LQG

to SQG) as a result of exclusion and be subject to 

less stringent HWRs

Off-site management at permitted facility is more 

stringently regulated than reclamation under the 

GCE (e.g., no permit or public involvement is 

required)

DSW exclusions require all generators to notify 

EPA biennially, whereas HWRs require biennial 

reporting only LQGs

N/A N/A
41

Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs)

and the Definition of Solid Waste (DSW) Exclusions by Scenario a

Scenarios Generators b Transporters Intermediate and 

Reclamation Facilities

3. Generator switches 

from off-site disposal at 

a RCRA facility to 

off-site reclamation

under GCE d

HSM can be accumulated onsite for longer periods 

of time under GCE, resulting in potentially greater 

quantities onsite at any given time

The GCE requires HSM to be “contained,” but 

does not include prescriptive standards, whereas 

HWRs are prescriptive

GCE allows management of HSM in land-based 

units without a permit or interim-status, unlike 

HWRs

Generators could change in status (e.g., from LQG

to SQG) as a result of exclusions and be subject to 

less stringent HWRs

Off-site management at permitted facility is more 

stringently regulated than reclamation under the 

GCE (e.g., no permit or public involvement is 

required) 

DSW exclusions require all generators to notify 

EPA biennially, whereas HWRs require biennial 

reporting only LQGs

Excluded materials that 

qualify as DOT 

hazardous material 

would be subject to 

comparable DOT 

transportation 

regulations as hazardous 

waste, except that the 

GCE does not require 

manifest or other

tracking of off-site 

shipments to samecompany reclaimer or 

between tolling 

contractor and toll 

manufacturer 

Some excluded material 

may no longer qualify as 

a DOT hazardous 

material and be subject 

to DOT transportation 

regulations (e.g., no 

standards for packaging, 

marking, labeling)

N/A
42

Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs)

and the Definition of Solid Waste (DSW) Exclusions by Scenario a

Scenarios Generators b Transporters Intermediate and 

Reclamation Facilities

4. Generator switches 

from off-site disposal at 

a RCRA facility to 

off-site permitted 

reclamation at a U.S. 

facility under TBE

HSM can be accumulated onsite for longer periods 

of time under exclusion, resulting in potentially 

greater quantities onsite at any given time

The TBE requires HSM to be “contained,” but 

does not include prescriptive standards, whereas 

HWRs are prescriptive

Generators could change in status (e.g., from LQG

to SQG) as a result of exclusion and be subject to 

less stringent HWRs

DSW exclusions require all generators to notify 

EPA biennially, whereas HWRs require biennial 

reporting only LQGs

Excluded materials that 

qualify as DOT 

hazardous material 

would be subject to 

comparable DOT 

transportation 

regulations as hazardous 

waste

Some excluded material 

may no longer qualify as 

a DOT hazardous 

material and be subject 

to DOT transportation 

regulations (e.g., no 

standards for packaging, 

marking, labeling) 

There is no change in 

storage methods or 

recycling practices under 

the exclusion (off-site 

recycler still RCRA 

permitted)
43

Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs)

and the Definition of Solid Waste (DSW) Exclusions by Scenario a

Scenarios Generators b Transporters Intermediate and 

Reclamation Facilities

5. Generator switches 

from off-site disposal at 

a RCRA facility to 

off-site reclamation at a 

U.S. facility without a 

RCRA permit under 

TBE

HSM can be accumulated onsite for longer periods 

of time under exclusions, resulting in potentially 

greater quantities onsite at any given time

The TBE requires HSM to be “contained,” but 

does not include prescriptive standards, whereas 

HWRs are prescriptive

Generators could change in status (e.g., from LQG

to SQG) as a result of exclusions and be subject to 

less stringent HWRs

DSW exclusions require all generators to notify 

EPA biennially, whereas HWRs require biennial 

reporting only LQGs

Excluded materials that 

qualify as DOT 

hazardous material 

would be subject to 

comparable DOT 

transportation 

regulations as hazardous 

waste

Some excluded material 

may no longer qualify as 

a DOT hazardous 

material and be subject 

to DOT transportation 

regulations (e.g., no 

standards for packaging, 

marking, labeling)

Facilities under the TBE 

would not have a permit

and thus, would be less 

stringently regulated than 

permitted facilities (e.g., no 

public involvement, fewer 

prescriptive requirements). 

However, facilities must 

pass “reasonable efforts” 

audit and obtain financial 

assurance under TBE

TBE requires HSM to be 

“contained” and managed in 

a manner that is at least as 

protective as that employed 

for analogous raw material, 

but does not include 

prescriptive standards, 

whereas HWRs are 

prescriptive
44

Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs)

and the Definition of Solid Waste (DSW) Exclusions by Scenario a

Scenarios Generators b Transporters Intermediate and 

Reclamation Facilities

6. Generator switches 

from off-site disposal at 

a RCRA facility to 

exporting for 

reclamation under TBE

HSM can be accumulated onsite for longer periods 

of time under exclusion, resulting in potentially 

greater quantities onsite at any given time

The TBE requires HSM to be “contained,” but 

does not include prescriptive standards, whereas 

HWRs are prescriptive

Generators could change in status (e.g., from LQG

to SQG) as a result of exclusions and be subject to 

less stringent HWRs

Export procedures under HWRs and TBE are 

comparable 

DSW exclusions require all generators to notify 

EPA biennially, whereas HWRs require biennial 

reporting only LQGs

Excluded materials that 

qualify as DOT 

hazardous material 

would be subject to 

comparable DOT 

transportation 

regulations as hazardous 

waste 

Some excluded material 

may no longer qualify as 

a DOT hazardous 

material and be subject 

to DOT transportation 

regulations (e.g., no 

standards for packaging, 

marking, labeling)

Facilities that receive 

imports under the TBE are 

not required to obtain a 

permit. However, facility 

must pass “reasonable 

efforts” audit under TBE
45

Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs)

and the Definition of Solid Waste (DSW) Exclusions by Scenario a

Scenarios Generators b Transporters Intermediate and 

Reclamation Facilities

7. Generator switches 

from off-site 

reclamation at a facility 

without a permit (no 

storage) to off-site 

reclamation under TBE

e

HSM can be accumulated onsite for longer periods 

of time under exclusions, resulting in potentially 

greater quantities onsite at any given time

The TBE requires HSM to be “contained,” but 

does not include prescriptive standards, whereas 

HWRs are prescriptive

Generators could change in status (e.g., from LQG

to SQG) as a result of exclusions and be subject to 

less stringent HWRs

Export procedures under HWRs and TBE are 

comparable 

DSW exclusions require all generators to notify 

EPA biennially, whereas HWRs require biennial 

reporting only LQGs

Excluded materials that 

qualify as DOT 

hazardous material 

would be subject to 

comparable DOT 

transportation 

regulations as hazardous 

waste 

Some excluded material 

may no longer qualify as 

a DOT hazardous 

material and be subject 

to DOT transportation 

regulations (e.g., no 

standards for packaging, 

marking, labeling)

The TBE is more stringent

than the HWRs in situations 

where HSM is not stored 

before reclamation (e.g., the 

TBE requires financial 

assurance, containment, 

protective management and 

generator audit, whereas 

HWRs do not require a 

permit, financial assurance, 

etc.). However, the HWRs 

are more stringent in some 

aspects than the TBE in 

situations where the HSM is 

stored before reclamation

(e.g., the HWRs require a 

permit, whereas the TBE 

does not). 

8. Generator switches 

from off-site 

reclamation at a RCRA 

facility to another type 

of reclamation under 

the current DSW 

exclusions

Refer to Scenarios 2 through 6 for regulatory differences and consequences applicable to Scenario 8. 

Scenarios 2 through 6 involve generators switching from off-site permitted disposal to another type of 

reclamation under the DSW exclusions. Scenario 8 involves generators switching from off-site permitted 

reclamation to another type of reclamation under DSW exclusions. As such, Scenarios 2 through 6 include 

the same types of regulatory differences and consequences as Scenario 8.

a Abbreviations used in the above table include the following: HSM = hazardous secondary material; HWRs = hazardous waste regulations; GCE = generatorcontrolled exclusion; TBE = transfer-based exclusion; LQGs = large quantity generators; SQGs = small quantity generators. 
46

b Under the GCE, generators may perform reclamation onsite or send it offsite to a same-company reclaimer or toll manufacturer under its control. This column 

addresses these off-site facilities (i.e., same-company reclaimers and toll manufacturers) as generators.

c This scenario includes generators that continue their current practices under the exclusions by either reclaiming onsite; shipping to a permitted, off-site 

reclamation facility; or exporting the material for reclamation.

d This scenario includes generators switching from off-site disposal to sending the material to either a same-company reclaimer or toll manufacturer under the 

GCE. 

e This scenario includes generators switching from off-site reclamation at a facility without a permit to another type of reclamation under the TBE, including 

either off-site reclamation at a RCRA-permitted facility, off-site reclamation at a facility without a permit, or export of the material to a company in another 

country.
47

2.5 Likelihood of Hazards under Scenarios

This section presents EPA’s analysis of the likelihood of changes in hazards under the current

DSW exclusions for each type of facility (generators, transporters, and intermediate and 

reclamation facilities) and each scenario described in Section 2.1 of this report. The analysis was 

based on the changes in management practices for HSM described in Section 2.1, the hazards 

identified in Section 2.2, and the regulatory comparison presented in Section 2.3. The discussion 

includes a description of each hazard, and whether the likelihood of the hazard is increased, 

decreased, or might be transferred between communities. 

2.5.1 Role of Non-Compliance in Potentially Increased Hazards

Some of the potential increased hazards discussed in Section 2.5.2 are related to EPA’s ability to 

oversee and enforce against non-compliant facilities. The analysis of how enforcement is linked

to potential increased hazards is not meant to imply that all facilities are assumed to be noncompliant under the 2008 scenarios, but rather it evaluates the potential for increased noncompliance in the subset of facilities that may choose it when feasible. The role of compliance 

monitoring in influencing environmental behavior both as a specific deterrence and a general 

deterrence to bad behavior is well documented.40 

Moreover, as discussed in more detail in EPA’s recycling market forces study41, because of the 

low commercial value and the high potential liability cost associated with most types of 

hazardous secondary materials (i.e., spent materials and listed hazardous waste by-products and 

sludges), the economic incentive for “sham recycling” is particularly high for these types of 

materials, particularly at third-party recyclers. As opposed to manufacturing, where the cost of 

raw materials or intermediates (or inputs) is greater than zero and revenue is generated primarily 

from the sale of the output, hazardous secondary materials recycling can involve generating 

revenue primarily from the receipt of the hazardous secondary materials. Recyclers of hazardous 

secondary materials in this situation thus respond differently than traditional manufacturers to 

economic forces and incentives, accumulating more inputs (hazardous secondary materials) than 

can be processed (reclaimed). In addition, commercial recyclers have less flexibility than inhouse recyclers in changing how they manage their hazardous secondary materials (e.g., during 

price fluctuations, in-house recyclers can more easily switch from recycling to disposal or from 

recycled inputs to virgin inputs, while commercial recyclers cannot switch to disposal without 

obtaining a RCRA permit). In other words, third-party recyclers have economic incentives to 

accumulate waste beyond their ability to deal with it, which can lead to non-compliance even at 

facilities that accepted the hazardous secondary materials for recycling with good intentions.

The manner in which market forces can contribute to adverse impacts at commercial hazardous 

secondary materials recyclers is illustrated by the current situation with Cathode Ray Tube 

(CRT) recycling. The CRT final rule conditionally excluded CRTs and CRT glass from being a 

solid waste under the hazardous waste regulation when sent to recycling. (40 CFR 261.4(a)(22)). 

By all accounts, implementation of CRT recycling under the CRT rule went smoothly for a 

 

40 See 2010 EPA Definition of Solid Waste Rulemaking: Compliance Research Background Document, EPA-HQRCRA-2010-0742-0014.

41 See 2006 EPA A Study of Potential Effects of Market Forces on the Management of Hazardous Secondary 

Materials Intended for Recycling (EPA-HQ-RCRA-2002-0031-0358)
48

number of years, primarily because CRT glass had positive value and could be easily recycled 

into new CRTs. However, as demand for flat panel technologies has replaced consumer demand 

for CRTs, the market for CRT recycling has recently collapsed, and recyclers who in 2004 would 

receive $200/ton in payment for processed CRT glass now are faced with a greater than $200/ton 

cost for disposing of it.42 Because of rising costs, negative economic incentives, and shifts in 

CRT glass markets, some CRT processors and recyclers are choosing to collect and store the 

glass indefinitely rather than pay to recycle (or dispose) the CRT glass, which have led to cases 

of stockpiling, mismanagement, and abandonment.43 

2.5.2 Potentially Increased Hazards under 2008 DSW Exclusions

EPA analyzed the information in the preceding sections of this report to determine whether the 

hazards associated with the generation, transportation, and reclamation of HSM would 

potentially increase under the DSW exclusions. EPA considered hazards to increase where it 

determined that either the probability of the hazard occurring or the potential magnitude of the 

hazard increased. In some cases, the hazard may increase at one facility, while decreasing at 

another facility. For example, changing the management of their HSM from off-site incineration 

to on-site reclamation is likely to increase potential hazards at the reclamation facility, while 

decreasing them at the incineration facility. This section discusses only the potential increases in 

hazards. Potential decreases in hazards are discussed in Section 2.5.3, and an analysis of tradeoffs between is discussed in Section 2.5.4.

This analysis was based on the changes in management practices for HSM described in the 

Scenarios in Section 2.1; the general hazards associated with the generation, transportation, 

storage, and reclamation of HSM presented in Section 2.2, and the regulatory differences 

between the hazardous waste regulations and DSW exclusions identified in Section 2.3. 

Through this analysis of hazards, EPA determined that these regulatory differences 

(e.g., differences in stringency and scope), and the resulting changes in behavior by facilities 

generating and managing HSMs, could result in an increase in potential hazards under the DSW 

exclusions. EPA presents this analysis for generators, transporters, and intermediate and 

reclamation facilities. For each type of hazard, the Scenarios from Section 2.1 under which it 

might increase are identified.

Generators

Fires and Explosions (Scenarios 1 through 8). Some HSMs, such as solvents, are often 

flammable, and can ignite to create fires and explosions. HSMs also may contain volatile 

chemicals, which can be released to the air, and if flammable, these air emissions may cause fires 

and explosions if ignited, causing injury or property damage. Fires and explosions also may 

 

42 March 18, 2013, New York Times, “Unwanted Electronic Gear Rising in Toxic Piles” 

http://www.nytimes.com/2013/03/19/us/disposal-of-older-monitors-leaves-a-hazardoustrail.html?pagewanted=all&_r=0 (last accessed 4/11/13).

43 See EPA (2014) Federal Response to CRT Recycling Concerns. Powerpoint presentation at 2014 e-SCRAP 

Conference, October 22, 2014, p 6.
49

involve other toxic or hazardous gasses. Fire and explosion hazards under the 2008 DSW 

exclusions could increase for generators because of the following:

 HSM can be accumulated longer, and potentially greater quantities can be accumulated 

onsite. 44 A longer accumulation period means that there is a greater likelihood for 

release of the HSM. For example, there is a greater likelihood that solvents could be 

inadvertently commingled in a container or storage area with incompatible materials and 

wastes, such as oxidizers, which could cause an explosion or fire hazard. There is also a 

greater likelihood that solvents could be stored near ignition sources (e.g., open flames) 

or be stored in excessive heat, which could increase fire and explosion hazards. Longer 

storage also increases the likelihood that drums or other containers could leak due to 

corrosion, accidents, or other causes over time. The leaked material could then volatilize 

or be exposed to an ignition source, resulting in a fire or explosion.

Greater accumulation quantities also mean that the magnitude of a potential fire or 

explosion could be greater. Generators also could be responsible for managing a greater 

number of tanks and containers to contain the greater volume or may overload/overfill 

accumulation units while attempting to manage the greater volume using existing tank 

and container capacity, which could make it more difficult to ensure the HSM is 

contained. For example, the generator may need to spend more effort to make sure the 

covers of a greater number of containers are kept tightly closed to prevent the escape of 

potentially combustible vapors.

 No explicit containment standards. The 2008 DSW exclusions do not include explicit

standards for containment of HSM in tanks and containers, in contrast to the hazardous 

waste regulations. In addition, the GCE allows management of HSM in land-based units 

without a permit or interim-status, unlike the HWRs. Consequently, generators might not 

take the same steps to minimize the potential for fires and explosions. The hazardous 

waste regulations prescribe specific design and operating standards and air emission 

controls for tanks and containers, including keeping these units tightly covered and using 

vent systems (e.g., fixed roof, flares) if needed. In addition, the hazardous waste 

regulations require that certain units be provided with a means to protect against the 

formation and ignition of vapors within the tank if the waste being stored or treated is 

ignitable or reactive. These controls, which could be helpful in preventing fires and 

explosions and the emission of potentially combustible vapors to the atmosphere, are not 

specifically required under the DSW exclusions. The hazardous waste regulations also 

include procedures for segregating reactive, ignitable and incompatible wastes, and for 

locating ignitable and reactive wastes at least 15 meters from the facility’s property line, 

which can reduce the likelihood of fires and explosions, or reduce the risk of them 

impacting nearby properties and individuals on those properties. Finally, unlike the 

hazardous waste regulations, the DSW exclusions allow generators to accumulate their 

HSMs in land-based units, including surface impoundments and waste piles, provided the 

HSMs are contained in such land-based units. The hazardous waste regulations, on the 

other hand, provide that only permitted and interim-status facilities can operate these 

 

44

 For generators that switch from off-site management to on-site recycling (Scenarios 2 and 8), there is the 

possibility that there might be smaller volumes of HSM accumulated, if recycling can occur more quickly than 

accumulation of enough material for a shipment to be sent offsite. 
50

land-based units, and they must follow explicit requirements for containment of the waste 

during operation, closure and post-closure care. The DSW exclusions do not require 

explicit containment requirements for these or other unit types.

 Generator drop in status. A generator operating under a DSW exclusion would not be 

required to count its excluded HSM in determining its hazardous waste generator status. 

As a result, the generator’s classification may change from a LQG to a SQG or CESQG

because it would have less hazardous waste to count toward its monthly total and 

therefore, be subject to less stringent hazardous waste requirements. For example, SQGs 

are subject to less stringent requirements for tank systems, the control of air emissions, 

personnel training, contingency planning, and emergency procedures. As a result, a 

generator that drops from LQG to SQG generally would become less stringently 

regulated in regard to the prevention and control of fire and explosion hazards. Examples 

of regulatory differences between LQGs and SQGs that might impact fire and explosion 

hazards include:

o The SQG’s HSM and hazardous waste would no longer be subject to air emission 

controls that are designed to prevent the escape of potentially combustible vapors 

from containers and tanks.

o The SQG would not be required to provide on-going personnel training in 

emergency procedures (e.g., fire control), or to maintain a contingency plan that 

spells out these procedures and identifies the location of emergency equipment 

(e.g., fire equipment). 

o Some LQGs and SQGs could become CESQGs under the exclusion. CESQGs 

generally are not subject to the full hazardous waste regulations provided they 

meet certain requirements.

 Generator on-site reclamation under the GCE may be less stringently regulated than 

permitted reclamation or treatment then disposal under the hazardous waste regulations. 

Unlike the hazardous waste regulations, the GCE does not require a permit, public 

involvement, or explicit HSM management requirements. For example, the GCE does 

not require generators to follow explicit standards for containment (e.g., no explicit 

standards for secondary containment, run-on/run-off controls, and inspections), 

contingency planning or procedures, or personnel training for emergencies (e.g., how to 

address fires and explosions). If HSM is diverted from permitted reclamation or 

treatment then disposal under the hazardous waste regulations to reclamation under the 

GCE, there is no assurance that the generator will carry out comparable activities. 

 HSM could be increasingly diverted from hazardous waste management and disposal to 

on-site reclamation under the GCE. On-site reclamation could increase the risk of fires 

and explosions at generator facilities due to increased volumes accumulated and air 

emissions from reclamation processes, the use of heat in reclamation processes, and the 

potential mixing of wastes for reclamation. For example, the reclamation of solvents 

typically involves the use of distillation, which requires the application of heat. Solvents 

generally become more volatile as the temperature increases, which could lead to greater 

air emissions that, if not adequately captured, recovered, or destroyed could be a source 

for a fire or explosion.
51

Soil and Water Contamination (Scenarios 1 through 8). During on-site accumulation, HSM 

releases can occur from factors, such as spills due to human error or deterioration of equipment; 

tank overflows or overtopping; leaks from damaged or deteriorated containers or tanks; complete 

failure of tank or container integrity; and run on/run off from the storage area. During on-site 

transfer, releases could include spills, overflows, and leaks from human error or deterioration of 

transport equipment (e.g., leaking pipes). Solvent wastes are especially susceptible to such 

releases because they are commonly in a liquid state. Soil and water contamination hazards 

under the DSW exclusions could increase because of the following:

 HSM can be accumulated longer, and potentially greater quantities can be accumulated 

onsite. 45 A longer accumulation period means that there is a greater likelihood for 

inadvertent mismanagement of the HSM, such as spills and leaks due to human error or 

equipment malfunction. There is also a greater likelihood that over time, accumulation 

units could deteriorate due to corrosion, accidents, or mishandling, which could cause a 

release. 

Further, greater accumulation quantities mean there is greater likelihood that

accumulation units could be filled beyond capacity and release HSM from overtopping. 

In addition, a greater quantity of HSM to be managed could make it more difficult for the 

generator to contain and detect releases, and the potential magnitude of a release could be 

greater. 

 No explicit containment standards. The DSW exclusions do not include explicit 

standards for containment of HSM in tanks, containers, containment buildings, and landbased units as do the hazardous waste regulations. The hazardous waste regulations, for 

example, include land-based unit design requirements for liners and leachate collection 

and removal systems, dikes, and run-on/run-off systems. They also include operating 

controls and practices to prevent spills and overflows (e.g., maintenance of sufficient 

freeboard in uncovered tanks), as well inspection requirements (e.g., tank 

owner/operators must inspect overfill/spill control equipment and tanks to detect 

corrosion and releases). Because the DSW exclusions do not include such explicit 

requirements, there is less assurance that generators will adopt comparable controls and 

procedures to prevent release and respond to them if they occur. Finally, unlike the 

hazardous waste regulations, the DSW exclusions allow generators to accumulate their 

HSM in land-based units including surface impoundments and waste piles, provided the 

HSMs are contained in such land-based units. However, the DSW exclusions do not 

require explicit containment requirements for these or other unit types. The use of landbased units may increase the likelihood of releases to soil, groundwater, and surface 

water. For example, precipitation and run-on/runoff from land-based units may cause 

contaminants to leach or be carried out of the unit and contaminate environmental media.

 Generator drop in status. A generator under a DSW exclusion would not be required to 

count its excluded HSM in determining its hazardous waste generator status under the 

hazardous waste regulations; and therefore, it could drop in status (e.g., from LQG to 

 

45

 For generators that switch from off-site management to on-site recycling (Scenarios 2 and 8), there is the 

possibility that there might be smaller volumes of HSM accumulated, if recycling can occur more quickly than 

accumulation of enough material for a shipment to be sent offsite. 
52

SQG) and be subject to less stringent requirements. Examples of regulatory differences 

between LQGs and SQGs include:

o SQGs would no longer need to comply with as many explicit tank design and 

operating requirements (e.g., liner, leachate collection and removal system, 

controls and practices to prevent spills and overflows).

o SQGs would no longer need to provide on-going personnel training in emergency 

procedures (e.g., response to groundwater contamination), or to maintain a 

contingency plan that spells out these procedures and identifies the location of 

emergency equipment.

o Some LQGs and SQGs could become CESQGs under the exclusion. CESQGs 

generally are not subject to the full hazardous waste regulations provided they 

meet certain requirements.

 Generator on-site reclamation under the GCE may be less stringently regulated than 

permitted reclamation or treatment then disposal under the hazardous waste regulations. 

Unlike the hazardous waste regulations, the GCE does not require a permit, public 

involvement, or explicit HSM management requirements. For example, the GCE does 

not require generators to follow explicit standards for containment (e.g., no explicit 

standards for secondary containment, run-on/run-off controls, or inspections), 

contingency planning or procedures, or personnel training for emergencies (e.g., how to 

address groundwater releases). If HSM is diverted from permitted reclamation or 

disposal under the hazardous waste regulations to reclamation under the GCE, there is no 

assurance that the generator will carry out comparable activities. 

 HSM could be increasingly diverted from off-site hazardous waste management to onsite reclamation under the GCE. The additional processing required for on-site 

reclamation could result in more releases to soil and water at generator facilities. For 

example, recycling by distillation of a solvent may require filtration, distillation, 

condensation, or other processing. As the solvent is passed through the pipes, valves, and 

other equipment used in the distillation process, the likelihood of a release through leaks 

and spills increases. 

Volatile Air Emissions (Scenarios 1 through 8). Volatile organic air emissions can occur 

during accumulation and transportation onsite. For example, solvents held in tanks or containers 

could volatilize and escape to the atmosphere through open container lids, uncovered tanks, leaks 

and vents, breathing losses, and container filling and emptying. Volatile emission hazards under 

the DSW exclusions could increase because of the following:

 HSM can be accumulated longer, and potentially greater quantities can be accumulated 

onsite. A longer accumulation period could increase the inadvertent mismanagement of 

the HSM, such as leaving container lids off of containers, which would allow greater 

escape of emissions. In addition, it is possible that there could be greater opening and 

closing of tanks and containers as HSM is added, transferred, and removed from units. 

There is also a greater likelihood that accumulation units could deteriorate due to 

corrosion, accidents, or mishandling, which could cause a release. In addition, a greater 

quantity of HSM to be managed could make it more difficult for the generator to contain 

and detect releases, and the potential magnitude of a release would be greater. 
53

 No explicit containment standards. The DSW exclusions do not include explicit 

standards for containment of volatile organic emissions as do the hazardous waste 

regulations. For example, LQGs may need to install a fixed roof to help control air 

pollutant emissions from tanks, or use containers that meet applicable DOT regulations. 

Because the exclusions do not include explicit requirements, there is less assurance that 

generators will follow controls that will be comparable to the hazardous waste 

requirements.

 Generator drop in status. A generator under a DSW exclusion would not be required to 

count its excluded HSM in determining its hazardous waste generator status under the 

hazardous waste regulations; therefore, it could change its regulatory status (e.g., from 

LQG to SQG) and be subject to less stringent requirements. For example, SQGs would 

no longer need to comply with air emission controls described above. This could result 

in increased air emissions.

 Generator on-site HSM management prior to on-site reclamation under the GCE may be 

less stringently regulated than permitted reclamation or treatment then disposal under the 

hazardous waste regulations. Unlike the hazardous waste regulations, the GCE does not 

require a permit, public involvement, or explicit HSM management requirements. For 

example, the GCE does not require generators to follow explicit standards for 

containment (e.g., no explicit standards for secondary containment, run-on/run-off 

controls, or inspections), contingency planning or procedures, or personnel training for 

emergencies (e.g., how to address fires). If HSM is diverted from permitted reclamation 

or disposal under the hazardous waste regulations to reclamation under the GCE, there is 

no assurance that the generator will carry out comparable activities. 

 HSM could be increasingly diverted from hazardous waste management and disposal to 

on-site reclamation under the GCE. The additional processing required for on-site 

reclamation could result in more air emissions at generator facilities. For example, 

recycling by distillation of a solvent may require filtration, distillation, condensation, or 

other processing. As the solvent is passed through the pipes, valves, and other equipment 

used in the distillation process, volatile emissions from fittings, valves, and process 

equipment could increase. In addition, many reclamation processes, such as distillation 

of solvents, require the application of heat. Solvents generally become more volatile as 

the temperature increases, which could lead to greater air emissions. Changes in 

temperature also can increase breathing losses from tanks and equipment, leading to 

increased air emissions.

Particulate Wind Dispersal (Scenarios 1 through 8). Wind dispersal can occur during 

accumulation and on-site movement of the HSM if the HSM is in the form of a dust or small, dry 

particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong 

wind gusts). For example, electric arc furnace dust might be susceptible to wind dispersal, 

because it is often present in dust form and may be accumulated in land-based units such as 

waste piles. Wind dispersal hazards under the DSW exclusions could increase because of the 

following:

 HSM can be accumulated longer, and potentially greater quantities can be accumulated 

onsite. A longer accumulation period means that there is a greater likelihood for 

inadvertent mismanagement of the HSM, such as failure to ensure waste piles are covered 
54

or wet to control dust. Further, greater accumulation quantities mean there is greater 

likelihood that accumulation units could be filled beyond capacity and release HSM. In 

addition, a greater quantity of HSM to be managed could make it more difficult for the 

generator to contain and detect releases, and the potential magnitude of a release could be 

greater. 

 No explicit containment standards. The DSW exclusions do not include explicit 

standards for control of wind dispersal of particulates as do the hazardous waste 

regulations. For example, generators must keep their containers closed when not filling 

or emptying them. In addition, tank systems of LQGs must have wind dispersal controls, 

if needed. Further, the GCE allows generators to manage their HSM in land-based units 

without a permit or interim status, unlike the hazardous waste regulations. The GCE does 

not prescribe wind dispersal controls for land-based units as do the hazardous waste 

regulations. For example, the hazardous waste regulations require that surface 

impoundments be designed and operated to prevent wind and wave action. Because the 

exclusions do not include explicit requirements, there is less assurance that generators 

will follow controls that will be comparable to the hazardous waste management unit

requirements.

 Generator drop in status. A generator under a DSW exclusion would not be required to 

count its excluded material in determining its hazardous waste generator status under the 

hazardous waste regulations; therefore, it change its regulatory status (e.g., from LQG to 

SQG) and be subject to less stringent requirements. For example, SQGs would no longer 

need to comply with the wind dispersal requirements for tanks, which only apply to 

LQGs.

Abandoned Materials (Scenarios 1 through 3 and 8). A significant number of the 

environmental damage cases evaluated by EPA involve abandoned materials. EPA believes that 

bankruptcies and other business failures were responsible for a number of the cases involving 

abandoned materials. Abandoned HSMs under the DSW exclusions could increase because of 

the following:

 HSM can be accumulated longer, and potentially greater quantities can be accumulated 

onsite. A greater accumulation quantity could mean that the quantity of material 

abandoned could be greater, increasing the magnitude of problems associated with 

abandoned materials, such as the extent of contamination of environmental media and 

cleanup costs. In the case where a generator goes out of business, there may be 

potentially greater quantities of accumulated, non-processed, and possibly not 

appropriately contained HSM on the property. 

 Generator on-site reclamation under the GCE may be less stringently regulated than 

permitted reclamation or disposal under the hazardous waste regulations. The GCE does 

not require financial assurance for reclamation under the generator’s control. Similarly, 

the hazardous waste regulations do not require financial assurance for generators that 

perform reclamation in their 90- and 180-day tanks and containers. In this respect, the 

likelihood for abandonment of materials due to financial hardship under the GCE and the

hazardous waste regulations is comparable. However, unlike the hazardous waste 

regulations, the GCE does not require a permit, public involvement, or explicit HSM 

management standards. The hazardous waste regulations do require generators to obtain 
55

a permit if they store their hazardous waste for longer than 90 days for LQGs or 180/270 

days for SQGs (depending on type of activity involved), pending reclamation onsite. 

These generators would be subject to a number of permit conditions that would reduce 

the likelihood of abandoned materials (e.g., financial assurance requirements, corrective 

action, closure notification and plans). Hence, the likelihood for abandonment of HSMs 

due to financial hardship under the GCE is not comparable to the hazardous waste 

regulations when the HSM is stored (for more than 90 or 180/270 days, depending on 

generator size and type of activity involved), pending on-site reclamation.
56

Table 2.4. Potential Incremental Hazards under the Current DSW Exclusions: Generators

Regulatory Differences under

the DSW Final Rule a

Potential Incremental Hazards

Fire/

Explosion

Soil/Water 

Contamination

Volatile Air 

Emissions

Particulate 

Wind 

Dispersal

Abandoned 

Materials

Scenario 1: Generator continues current reclamation practices b

HSM accumulated longer, potentially 

greater quantities onsite X X X X X

No explicit containment standards X X X X

Potential generator change in regulatory 

status X X X X

On-site generator reclamation potentially 

less stringently regulated X X X X X

c

Scenario 2: Generator switches from off-site disposal to on-site reclamation

HSM accumulated longer, potentially 

greater quantities onsite X X X X X

No explicit containment standards X X X X

Potential generator change in regulatory 

status X X X X

On-site generator reclamation potentially 

less stringently regulated X X X X X

Scenario 3: Generator switches from off-site disposal to off-site recycling under the control of the generator d

HSM accumulated longer, potentially 

greater quantities onsite X X X X X

No explicit containment standards X X X X

Potential generator change in regulatory 

status X X X X

Scenarios 4 through 8: Generator switches to off-site recycling e

HSM accumulated longer, potentially 

greater quantities onsite X X X X

No explicit containment standards X X X X
57

Table 2.4. Potential Incremental Hazards under the Current DSW Exclusions: Generators

Regulatory Differences under

the DSW Final Rule a

Potential Incremental Hazards

Fire/

Explosion

Soil/Water 

Contamination

Volatile Air 

Emissions

Particulate 

Wind 

Dispersal

Abandoned 

Materials

Potential generator change in regulatory 

status X X X X

On-site generator reclamation potentially 

less stringently regulated X X X X X

a These differences were identified by comparing the federal regulations applicable to hazardous waste generators and generators of DSW-excluded materials. 

See Section 2.3 of this report for additional information.

b Abandonment of HSMs could be more likely to occur under the GCE than hazardous waste regulations for reclaimers that store their HSM pending 

reclamation. 

c This scenario includes generators that continue their current practices under the exclusions by either reclaiming onsite; shipping to a permitted, off-site 

reclamation facility; or exporting the material for reclamation.

d This scenario includes generators switching from off-site disposal to sending the material to either a same-company reclaimer or toll manufacturer under the 

GCE. 

e Scenario 7 includes generators switching from off-site reclamation at a facility without a permit to another type of reclamation under the TBE, including either 

off-site reclamation at a RCRA-permitted facility, off-site reclamation at a facility without a permit, or export of the material to a company in another country.
58

Transporters

Fires and Explosions (Unlikely for all Scenarios). Some HSMs, such as solvents, 

contain volatile chemicals, which can be released to the air, and, if flammable, these air 

emissions may cause fires and explosions if ignited, causing injury or property damage. 

Fires and explosions also may evolve other toxic or hazardous gases. 

HSM that is flammable or explosive would qualify as a DOT hazardous material and be 

subject to comparable DOT regulation (e.g., for packaging, labeling, marking, placarding, 

parking, and driving) when transported offsite, regardless of whether the material is 

regulated as hazardous waste or DSW-excluded material. Note, however, that the DSW 

exclusions do not require the use of a manifest or other document that provides RCRA 

waste codes at 40 CFR Part 261. All hazardous waste off-site shipments must be 

accompanied by a manifest that includes waste codes. Waste codes could be helpful to 

emergency responders in fully characterizing the hazards of a released material and 

taking an appropriate response action during a fire or explosion. However, the DOT 

hazardous material requirements are specifically designed to help emergency responders 

to characterize the hazards of materials being transported, so it is unlikely that the lack of 

waste codes would seriously impede an emergency response. 

Volatile Air Emissions, Soil, Water, and Particulate Wind Dispersal (Scenarios 1, 3, 

4, 5, 6, 7, and 8). During loading, unloading, and transport, volatile air emissions from 

solvents may escape from valves, pumps, hoses, tank trucks, drums, and other containers. 

Under certain conditions, solvents held in tank trucks or drums could volatilize and 

escape to the atmosphere (e.g., through open container lids, uncovered tanks, leaks and 

vents). Leaks and spills during transfer of HSM, leaky or improperly closed containers, 

or accidents could result in release of HSM to loading area soil, groundwater, or surface 

water. Further, wind dispersal of HSM (e.g., electric arc furnace dust) can occur if it is in 

the form of a dust or small, dry particles, adequate controls are not in place, and certain 

climatic conditions prevail (e.g., strong wind gusts). For example, dust in hopper rail 

cars or roll-off dumpsters that are not properly covered could blow out and result in 

inhalation exposures (when traveling through communities) and/or contaminate the 

surrounding environment during transport. Contaminated soil or other solid media also 

may be susceptible to re-suspension and wind dispersal.

HSM under the DSW exclusions that qualifies as a DOT hazardous material would be 

subject to generally comparable transportation requirements as hazardous waste in regard 

to packing, labeling, marking, placarding, parking, and driving. Specifically, the DOT 

regulations impose comparable requirements on hazardous waste as it does on other types 

of DOT hazardous materials in regard to these activities. Therefore, such DOT-regulated 

shipments of hazardous waste and excluded material would address releases of materials 

in comparable ways.

However, excluded HSM that does not qualify as a DOT hazardous material would not 

be subject to transportation requirements that are comparable to hazardous waste in 

regard to packing, labeling, marking, placarding, parking or driving, or reporting releases 

of RQs to the National Response Center. Transporters of such excluded HSM would not 

be required to follow comparable procedures to address potential releases of materials, 

including vapors, liquids, solids, or particulate matter. For example, transporters might 
59

use less expensive packaging that is more likely to leak or be ruptured in an accident, 

contaminating soil and water, or releasing volatile emissions. 

Abandoned Materials (Scenario 3). A shipment of HSM may be abandoned during 

transit for a number of reasons. Abandonment could occur, for example, if there is a 

transportation accident and released/contaminated materials are left by the roadside, the 

transporter cannot find the destination facility, or the transporter otherwise decides not to 

fulfill its obligation to deliver the HSM. EPA established the hazardous waste manifest 

system as a means of ensuring that hazardous wastes are tracked from “cradle to grave.” 

Under the manifest system, each party to the shipment must sign and keep a copy of the 

manifest, and the generator must be notified of its receipt by the destination facility, 

increasing each party’s accountability over the shipment and reducing the likelihood of 

abandoned shipments. The GCE does not include a requirement for a hazardous waste 

manifest. Where generators reclaim HSM under the GCE, but the generation and 

reclamation facilities are in different locations, the HSM must be transported offsite. 

Similarly, generators may transport HSM to an unaffiliated off-site reclaimer under the 

TBE. In such cases, the likelihood of HSM being abandoned could increase.
60

Table 2.5. Potential Incremental Hazards under the Current DSW Exclusions: Transporters

Regulatory Differences under

the DSW Final Rule a

Potential Incremental Hazards

Fire/Explosion

Volatile Air, 

Emissions, Soil/ 

Water 

Contamination, 

and Wind 

Dispersal

Abandoned 

Materials

Scenario 1: Generator continues current reclamation practices b

No waste codes on shipping papers

HSM that no longer qualifies as DOT hazardous material or triggers RQ X

Scenario 2: Generator switches from off-site disposal to on-site reclamation

Not applicable

Scenario 3: Generator switches from off-site disposal to off-site recycling under the control of the generator c

No waste codes on shipping papers

HSM that no longer qualifies as DOT hazardous material or triggers RQ X

No tracking document required X

Scenario 4: Generator switches from off-site disposal to off-site recycling at a RCRA-permitted facility

No waste codes on shipping papers

HSM that no longer qualifies as DOT hazardous material or triggers RQ X

Scenario 5: Generator switches from off-site disposal to off-site recycling at a U.S. facility without a RCRA permit

No waste codes on shipping papers

HSM that no longer qualifies as DOT hazardous material or triggers RQ X

Scenario 6: Generator switches from off-site disposal to exporting for recycling

No waste codes on shipping papers

HSM that no longer qualifies as DOT hazardous material or triggers RQ X

Scenario 7: Generator switches from off-site recycling at a facility without a permit to another type of recycling under DSW

d

No waste codes on shipping papers
61

Table 2.5. Potential Incremental Hazards under the Current DSW Exclusions: Transporters

Regulatory Differences under

the DSW Final Rule a

Potential Incremental Hazards

Fire/Explosion

Volatile Air, 

Emissions, Soil/ 

Water 

Contamination, 

and Wind 

Dispersal

Abandoned 

Materials

HSM that no longer qualifies as DOT hazardous material or triggers RQ X

Scenario 8: Generator switches from off-site recycling at a RCRA-permitted facility to another type of recycling under 

DSW

No waste codes on shipping papers

HSM that no longer qualifies as DOT hazardous material or triggers RQ X

a These differences were identified by comparing the federal regulations applicable to hazardous waste shipments and shipments of DSW-excluded materials. 

See Section 2.3 of this report for additional information.

b This scenario includes generators that continue their current practices under the exclusions by either reclaiming onsite; shipping to a permitted, off-site 

reclamation facility; or exporting the material for reclamation.

c This scenario includes generators switching from off-site disposal to sending the material to either a same-company reclaimer or toll manufacturer under the 

GCE. 

d This scenario includes generators switching from off-site reclamation at a facility without a permit to another type of reclamation under the TBE, including 

either off-site reclamation at a RCRA-permitted facility, off-site reclamation at a facility without a permit, or export of the material to a company in another 

country.
62

Intermediate and Reclamation Facilities

Fires and Explosions (Scenarios 1, and 4 through 8). Some HSM, such as solvents, 

are often flammable, and can ignite to create fires and explosions. HSM also may 

contain volatile chemicals, which can be released to the air, and, if flammable, these air 

emissions may cause fires and explosions if ignited, causing injury or property damage. 

Fires and explosions also may evolve other toxic or hazardous gasses. Fire and explosion 

hazards under the DSW exclusions could increase because of the following:

 Change from RCRA-permitted to unpermitted management facilities (Scenarios

1, 5, and 8). Some HSMs may be diverted from off-site reclamation or disposal at 

a facility permitted under the hazardous waste regulations to off-site reclamation, 

which does not require a permit. Permitted facilities are subject to prescriptive 

permit requirements covering the design, construction, operation, financial 

assurance, closure and post-closure of the facility, including hazardous waste 

management units. They also are subject to public involvement in the permitting 

process. Reclamation under the DSW exclusion would be subject to fewer 

requirements, including no requirement for a permit or public involvement. For 

example, reclamation under the exclusion is not subject to emergency 

preparedness and response, personnel training, or prescriptive requirements for 

containment. These requirements could reduce the likelihood of fires and 

explosions, reduce their magnitude, or increase the ability of facilities to respond 

to them and reduce the damage caused. 

 No explicit containment standards (Scenarios 1, 5, and 8). The hazardous waste 

regulations and TBE require containment of HSM in the unit. The hazardous 

waste regulations prescribe design, installation, operating, closure and postclosure standards to address containment, whereas the TBE does not. The 

exclusion requires that the HSM be managed in a manner that is at least as 

protective as that employed for analogous raw material and be contained. As

such, the TBE allows more flexibility in how HSMs can be managed and 

contained. These controls, which could be helpful in preventing fires and 

explosions and the emission of potentially combustible vapors to the atmosphere, 

are not specifically required under the DSW exclusions. 

 No explicit standards for controlling air emissions (Scenarios 1, 5, and 8). The 

TBE does not include standards for controlling air emissions from process vents, 

equipment leaks, or storage units as do the hazardous waste regulations. While 

the DSW exclusions require containment of HSM, they do not include explicit 

requirements for control of air emissions. The hazardous waste regulations and 

TBE require containment of HSM in the unit. The hazardous waste regulations 

set forth prescriptive design, operating and other standards to control air releases 

for process vents, leaks, and storage units. The TBE does not include prescriptive 

requirements. These controls, which could be helpful in preventing fires and 

explosions and the emission of potentially combustible vapors to the atmosphere, 

are not specifically required under the DSW exclusions. 

 HSM could be increasingly diverted from hazardous waste management to 

reclamation under the TBE (Scenarios 1, and 4 through 8). Increased reclamation 
63

could increase the risk at reclamation sites of fires and explosions due to 

increased air emissions, the use of heat in reclamation processes, and the potential 

mixing of wastes for reclamation. For example, the reclamation of solvents 

typically involves the use of distillation, which requires the application of heat. 

Solvents generally become more volatile as the temperature increases, which 

could lead to greater air emissions that could be a source for a fire or explosion.

Soil and Water Contamination (Scenarios 1, and 4 through 8). Soil and groundwater

contamination from HSM releases can occur during accumulation and transportation 

onsite. During accumulation, a number of factors could lead to a release (e.g., run-off 

from the storage area, tank overflows, leaks from damaged or deteriorated containers or 

tanks, or complete failure of tank). During transfer, releases could include spills, 

overflows, and leaks from human error or deterioration of transport equipment (e.g., 

leaking pipes). For example, solvents are susceptible to such releases because they are 

commonly in a liquid state. Soil and water contamination hazards under the DSW 

exclusions could increase because of the following:

 Change from RCRA-permitted to unpermitted management facilities (Scenarios

1, 5, and 8). Some HSMs may be diverted from off-site reclamation or disposal at 

a permitted facility under the hazardous waste regulations to off-site reclamation 

under the TBE, which does not require a permit. Permitted facilities are subject to 

prescriptive permit requirements covering the design, construction, operation, 

financial assurance, closure and post-closure of the facility, including hazardous 

waste management units. They also are subject to public involvement in the 

permitting process. Reclamation under the TBE would be subject to fewer 

requirements, including no requirement for a permit or public involvement. For 

example, reclamation under the TBE is not subject to emergency preparedness 

and response, personnel training, or prescriptive requirements for containment. 

These requirements could reduce the likelihood of leaks and spills that could 

result in soil or water contamination, reduce their magnitude, or increase the 

ability of facilities to respond to them and reduce the damage caused. 

 No explicit containment standards (Scenarios 1, 5, and 8). The hazardous waste 

regulations and TBE require containment of HSM in the unit. The hazardous 

waste regulations prescribe specific design, installation, operating, closure and 

post-closure standards to address containment, whereas the TBE does not. The 

exclusion requires that the material be managed in a manner that is at least as 

protective as that employed for analogous raw material and be contained. As 

such, the TBE allows more flexibility in how HSMs can be managed and 

contained. These controls, which could reduce the likelihood of leaks and spills 

that could result in soil or water contamination, reduce their magnitude, or 

increase the ability of facilities to respond to them and reduce the damage caused, 

are not specifically required under the DSW exclusions. 

 HSMs could be increasingly diverted from hazardous waste management to 

reclamation under the TBE (Scenarios 1, and 4 through 8). Increased reclamation 

could increase the risk at reclamation sites of leaks and spills that could result in 

soil or water contamination or increase their magnitude. The additional 

processing required for on-site reclamation could result in more releases to soil 
64

and water. For example, recycling by distillation of a solvent may require 

filtration, distillation, condensation, or other processing. As the solvent is passed 

through the pipes, valves, and other equipment used in the distillation process, the 

likelihood of a release through leaks and spills increases. 

Volatile Air Emissions (Scenarios 1, and 4 through 8). Volatile organic air emissions 

can be released during accumulation, transportation, and reclamation onsite. Under 

certain conditions, solvents held in tanks or containers could volatilize and escape to the 

atmosphere (e.g., through open container lids, uncovered tanks, leaks and vents, and 

breathing losses). This also could occur during the reclamation process. Volatile 

emission hazards under the DSW exclusions could increase because of the following:

 Change from RCRA-permitted to unpermitted management facilities (Scenarios

1, 5, and 8). Some HSMs may be diverted from off-site reclamation or disposal at 

a permitted facility under the hazardous waste regulations to off-site reclamation 

under the TBE, which does not require a permit. Permitted facilities are subject to 

prescriptive permit requirements covering the design, construction, operation, 

financial assurance, closure, and post-closure of the facility, including hazardous 

waste management units. They also are subject to public involvement in the 

permitting process. Reclamation under the TBE would be subject to fewer 

requirements, including no requirement for a permit or public involvement. For 

example, reclamation under the exclusion is not subject to emergency 

preparedness and response, personnel training, or prescriptive requirements for 

containment. These requirements could reduce the likelihood of volatile air 

emissions or reduce their magnitude. 

 No explicit containment standards (Scenarios 1, 5, and 8). The hazardous waste 

regulations and TBE require containment of HSM in the unit. The hazardous 

waste regulations have explicit design, installation, operating, closure, and postclosure standards to address containment, whereas the TBE does not. The 

exclusion requires that the HSM be managed in a manner that is at least as 

protective as that employed for analogous raw material and be contained. As 

such, the TBE allows more flexibility in how HSMs can be managed and 

contained. These controls, which could be helpful in preventing volatile air 

emissions, are not specifically required under the DSW exclusions. 

 No explicit standards for controlling air emissions (Scenarios 1, 5, and 8). The 

TBE does not include standards for controlling air emissions from process vents, 

equipment leaks, or storage units as do the hazardous waste regulations. While 

the DSW exclusions require containment of HSM, they do not include explicit 

requirements for control of air emissions. The hazardous waste regulations and 

TBE require containment of HSM in the unit. The hazardous waste regulations 

set forth explicit design, operating and other standards to control air releases for 

process vents, leaks, and storage units. These controls, which could be helpful in 

preventing volatile air emissions, are not specifically required under the DSW 

exclusions. 

 HSM could be increasingly diverted from hazardous waste management to 

reclamation under the TBE (Scenarios 1, and 4 through 8). The additional 
65

processing required for on-site reclamation could result in more air emissions at 

reclamation sites. For example, recycling by distillation of a solvent may require 

filtration, distillation, condensation, or other processing. As the solvent is passed 

through the pipes, valves, and other equipment used in the distillation process, 

volatile emissions from fittings, valves, and process equipment could increase. In 

addition, many reclamation processes, such as distillation of solvents, require the 

application of heat. Solvents generally become more volatile as the temperature 

increases, which could lead to greater air emissions. Changes in temperature also 

can increase breathing losses from tanks and equipment, leading to increased air 

emissions.

Particulate Wind Dispersal (Scenarios 1, and 4 through 8). Wind dispersal can occur 

if the HSM is in the form of a dust or small, dry particles, adequate controls are not in 

place, and certain climatic conditions prevail (e.g., strong wind gusts). Soil or other solid 

media contaminated with solvents or other contaminants may be susceptible to wind 

dispersal. Electric arc furnace dust, in particular, might be susceptible to wind dispersal

because it is often present in dust form and may be stored in waste piles. Wind dispersal

contamination hazards under the DSW exclusions could increase because of the 

following:

 Change from RCRA-permitted to unpermitted management facilities (Scenarios

1, 5, and 8). Some HSMs may be diverted from off-site reclamation or disposal at 

a permitted facility under the hazardous waste regulations to off-site reclamation 

under the TBE, which does not require a permit. Permitted facilities are subject to 

explicit permit requirements covering the design, construction, operation, 

financial assurance, closure, and post-closure of the facility and hazardous waste 

management units. They also are subject to public involvement in the permitting 

process. Reclamation under the TBE would be subject to fewer requirements, 

including no requirement for a permit or public involvement. For example, 

reclamation under the exclusion is not subject to emergency preparedness and 

response, personnel training, or explicit requirements for containment. These 

requirements could reduce the likelihood of wind dispersal of HSM, reduce their 

magnitude, or increase the ability of facilities to respond to them and reduce the 

damage caused. 

 No explicit containment standards (Scenarios 1, 5, and 8). The hazardous waste 

regulations and TBE require containment of HSM in the unit. The hazardous 

waste regulations contain explicit design, installation, operating, closure and postclosure standards to address containment, whereas the TBE does not. The 

exclusion requires that the HSM be managed in a manner that is at least as 

protective as that employed for analogous raw material and be contained. As 

such, the TBE allows more flexibility in how HSMs can be managed and 

contained. These controls, which could reduce the likelihood of wind dispersal of 

HSM, or increase the ability of facilities to respond to them and reduce the 

damage caused, are not specifically required under the DSW exclusions. 

.
66

Abandoned Materials (Scenarios 5 and 8). A significant number of the environmental 

damage cases evaluated by EPA involve abandoned materials. EPA believes that

bankruptcies and other business failures could be responsible for a number of these cases. 

Abandoned materials at intermediate and reclamation sites under the DSW exclusions 

could increase because of the following:

 The TBE requires facilities to obtain financial assurance for closure and accidents. 

By obtaining financial assurance, a facility is demonstrating that even if events 

beyond its control make its operations uneconomical, funds will be available to 

cleanup abandoned materials.

These requirements are more stringent than the hazardous waste regulations that 

apply to reclaimers that do not store the hazardous waste pending reclamation; 

such reclaimers are not required to obtain financial assurance. In addition, they 

are comparable to the financial assurance requirements applicable to permitted 

reclaimers. However, permitted reclaimers also are subject to other requirements 

that could prevent abandonment of HSM, including corrective action during each 

permit renewal. They also are subject to periodic inspections by EPA and state 

regulatory personnel.

 HSM could be increasingly diverted from hazardous waste management to 

reclamation under the TBE, which may result in greater quantities accumulated 

onsite at these facilities. A greater accumulation quantity could mean that the 

quantity of HSM abandoned could be greater, increasing the magnitude of 

problems associated with abandoned materials, such as the extent of 

environmental contamination and cleanup costs.
67

Table 2.6. Potential Incremental Hazards under the DSW Final Rule: Intermediate and Reclamation Facilities

Regulatory Differences under

the DSW Final Rule a

Potential Incremental Hazards

Fire/ 

Explosion

Soil/Water 

Contaminatio

n

Volatile Air 

Emissions

Particulate 

Wind 

Dispersal

Abandoned 

Materials

Scenario 1: Generator continues current reclamation practices b

Change from RCRA-permitted to 

unpermitted management facilities X X X X X

No explicit containment standards X X X X

No explicit standards for controlling air 

emissions X X

HSM increasingly diverted from 

hazardous waste management and 

disposal to reclamation under the TBE X X X X

Scenario 2: Generator switches from off-site disposal to on-site reclamation

Not applicable

Scenario 3: Generator switches from off-site disposal to off-site reclamation under the control of the generator c

Not applicable

Scenario 4: Generator switches from off-site disposal to off-site recycling at a RCRA-permitted facility

HSM increasingly diverted from 

hazardous waste management and 

disposal to reclamation under the TBE X X X X X

Scenario 5: Generator switches from off-site disposal to off-site recycling at a U.S. facility without a RCRA permit

Change from RCRA-permitted to 

unpermitted management facilities X X X X X

No explicit containment standards X X X X

No explicit standards for controlling air 

emissions X X

HSM increasingly diverted from 

hazardous waste management and 

disposal to reclamation under the TBE X X X X
68

Table 2.6. Potential Incremental Hazards under the DSW Final Rule: Intermediate and Reclamation Facilities

Regulatory Differences under

the DSW Final Rule a

Potential Incremental Hazards

Fire/ 

Explosion

Soil/Water 

Contaminatio

n

Volatile Air 

Emissions

Particulate 

Wind 

Dispersal

Abandoned 

Materials

Scenario 6: Generator switches from off-site disposal to exporting for reclamation

HSM increasingly diverted from 

hazardous waste management and 

disposal to reclamation under the TBE X X X X

Scenario 7: Generator switches from off-site reclamation at a facility without a permit to another type of recycling under 

DSW d

HSM increasingly diverted from 

hazardous waste management and 

disposal to reclamation under the TBE X X X X

Scenario 8: Generator switches from off-site reclamation a RCRA-permitted facility to another type of recycling under 

DSW

Change from RCRA-permitted to 

unpermitted management facilities X X X X X

No explicit containment standards X X X X

No explicit standards for controlling air 

emissions X X

HSM increasingly diverted from 

hazardous waste management and 

disposal to reclamation under the TBE X X X X

a These differences were identified by comparing the federal regulations applicable to storage facilities operating under the hazardous waste regulations and 

intermediate/reclamation facilities operating under the DSW exclusions. See Section 2.3 of this report for additional information.

b This scenario includes generators that continue their current practices under the exclusions by either reclaiming onsite; shipping to a permitted, off-site 

reclamation facility; or exporting the material for reclamation.

c This scenario includes generators switching from off-site disposal to sending the material to either a same-company reclaimer or toll manufacturer under the 

GCE. 

d This scenario includes generators switching from off-site reclamation at a facility without a permit to another type of reclamation under the TBE, including 

either off-site reclamation at a RCRA-permitted facility, off-site reclamation at a facility without a permit, or export of the material to a company in another 

country.
69

2.5.3 Potential Reductions and Transfers of Hazards by Facility Type and Scenario

Generators

Abandoned Materials (All Scenarios). The hazardous waste regulations and DSW exclusions 

have comparable requirements for initial and biennial submittals in regard to frequency and types 

of information submitted, such as quantities and types of HSMs. However, the biennial 

reporting requirement in the hazardous waste regulations applies only to LQGs. The DSW 

notification requirement applies to generators regardless of the amount of waste generated. 

Under the DSW exclusions, EPA and state regulators will have a greater knowledge of the types 

and quantities of HSMs being generated and managed by SQGs. They could use this 

information when developing compliance activities, such as inspections and outreach, resulting 

in better compliance and reduced risk of abandoned materials. In addition, a greater knowledge 

of HSM types and quantities at these smaller sites will give regulators a better idea of how to 

remove and cleanup HSMs in a protective manner if it were abandoned. The biennial 

notification requirement, along with the requirement for sites to notify EPA if they cease to 

operate under the exclusions, will give regulators an indication when these SQGs are closing or 

have closed so that the regulators can take appropriate action at these sites at that time (e.g., 

compliance assistance) to ensure the HSM is not abandoned. The information submitted in 

notifications also is publicly available. The general public can use this information to better 

understand the generation and management of HSM in their communities. 

Transporters

Reduction in Transportation Accidents, Pollution, Traffic, and Noise (Scenarios 1 

through 8). Following are potential changes under the DSW exclusion that could result in a 

reduced frequency of off-site shipments from generator sites and a decrease in transportation 

hazards:

 Longer generator accumulation periods are allowed, reducing the number of shipments 

made to reclaimers (Scenarios 1, 3, 4, 5, 6, 7, and 8). Under 40 CFR Part 262, LQGs and 

SQGs are prohibited from accumulating hazardous waste onsite for more than 90 or 

180/270 days (depending on type of activity involved), respectively, without a permit or 

interim status. SQGs also must ensure that the quantity of hazardous waste accumulated 

onsite does not exceed 6,000 kilograms. To avoid exceeding these accumulation limits, 

generators may need to make numerous off-site shipments of hazardous waste during the 

year (e.g., less than every 90 days for LQGs).

Generators operating under an exclusion of the DSW final rule are not subject to the 

40 CFR Part 262 generator standards, including the accumulation volume or time limits, 

for their HSMs managed under the DSW final rule. Rather, these generators would 

manage their materials in accordance with the current DSW exclusions. In regard to onsite accumulation, they must ensure that their HSMs are not “speculatively accumulated.” 

This means that a generator accumulating HSM must be able to show that, during a 

calendar year, the amount of such material that is recycled or transferred to a different 

site for recycling is at least 75% by weight or volume of the amount of the HSM present 

at the beginning of the period.
70

This speculative accumulation provision gives generators greater flexibility to determine 

the appropriate timing of their off-site shipments. This could allow them to take 

advantage of economies of scale in transporting their HSM. In general, unit 

transportation costs decrease as the amount of material transported increases. Generators 

that make fewer, larger shipments will pay less in transportation costs than those that 

must rely on more, smaller shipments for the same amount of waste. 

For example, a generator that had to make four small off-site shipments each year under 

the 90-day accumulation time limit might be able to make one or two larger off-site 

shipments each year under the DSW exclusion, provided the speculative accumulation 

provision is satisfied. 

Fewer shipments would result in a reduction in the total number of trucks on the road and 

a decrease in the total number of miles traveled by trucks carrying the HSM. This would 

cause a corresponding decrease in the incidence of transportation-related accidents, and 

adjacent community exposures to air emissions from the waste on the roads, air emissions 

from truck operation, and traffic. 

These hazard reductions could occur, for example, when generators switch from off-site 

reclamation under the hazardous waste regulations to off-site reclamation under the 

current DSW exclusions. They also could occur when generators switch from off-site 

treatment and disposal under the hazardous waste regulations to off-site reclamation 

under the DSW final rule. 

 Generators may switch to on-site reclamation, reducing or eliminating their off-site 

shipments of HSM (Scenarios 2 and 8). Some generators might opt to switch from offsite treatment, disposal, or reclamation under the hazardous waste regulations to on-site 

reclamation under the DSW final rule. On-site reclamation could reduce the number of 

off-site shipments each year. For example, the generator would not need to ship its 

reclaimed materials offsite within the 90 days (for LQGs) or 180/270 days (for SQGs) as 

required for hazardous waste. Rather, it could ship the HSM offsite less frequently. Less 

frequent shipments could result in a corresponding decrease in the incidence of 

transportation-related accidents, air emissions from the waste on the roads, air emissions 

from truck operation, and traffic. 

 Change in generator status results in fewer off-site shipments of all hazardous waste 

produced by that facility (Scenarios 1 through 8). A generator that reclaims onsite or 

offsite under the DSW final rule might change its hazardous waste generator status and 

thereby make fewer off-site hazardous waste shipments each year. For example, a 

generator that drops from being a LQG to a SQG would be able to ship its hazardous 

wastes offsite under the 180/270-day accumulation time limit instead of every 90 days. 

Fewer off-site shipments could result in the hazard reductions described above.

Intermediate and Reclamation Facilities

Releases from Reclamation (Scenario 7). The TBE requires facilities to obtain financial 

assurance for closure and accidents. By obtaining financial assurance, a facility is demonstrating 

that even if the facility declares bankruptcy, funds will be available to cleanup abandoned HSMs. 

These requirements are more stringent than the hazardous waste regulations that apply to 

reclaimers that do not store the hazardous waste pending reclamation; such reclaimers are not 
71

required to obtain financial assurance. The financial assurance requirements will decrease the 

likelihood that the economic burden for the cleanup of abandoned materials will fall on the 

public.

In addition, the TBE requires generators to make reasonable efforts to evaluate a reclamation 

facility before shipping excluded material to it when the facility’s management of the HSM 

would not be addressed under a RCRA Part B permit or interim-status standard. The hazardous 

waste regulations do not require such reasonable efforts. For example, the TBE requires 

generators to determine that the facility has not been classified as a significant non-complier with 

RCRA Subtitle C and that it has the equipment and trained personnel to safely recycle the HSM. 

The generator must affirmatively answer these and other questions listed at 40 CFR 

261.4(a)(24)(v)(B) for the facility. EPA expects these determinations by generators to motivate 

reclaimers to improve their environmental performance (e.g., properly train their personnel) and 

address outstanding violations and prevent future ones. These efforts also will help to ensure 

that the HSMs are managed at facilities that are qualified to reclaim them safely. In this respect, 

the TBE could reduce environmental hazards in comparison with the hazardous waste 

regulations for reclamation facilities that are not subject to a RCRA permit. EPA recognizes that 

not all generators will have the same ability to perform efforts audits, and the efficacy of these 

efforts will depend on their ability. For example, small or independent generators may have 

fewer financial resources or staff to use to conduct such audits, and may be more likely to miss 

indications that reclaimers are not legitimately recycling HSM. 

Abandoned Materials (Scenario 7). EPA believes that bankruptcies and other business failures 

(intended or unintended) could be responsible for abandonment of HSM at a number of former 

reclamation facilities. Abandoned materials at intermediate and reclamation sites under the 

current DSW exclusions could increase due to reduced regulatory requirements under the DSW 

exclusions. However, the TBE requires facilities to obtain financial assurance for closure and 

accidents. The financial assurance demonstrates that even if a facility goes into bankruptcy, 

funds will be available to cleanup abandoned materials, and the financial burden for cleanup will 

not fall on the public. These requirements are more stringent than the hazardous waste 

regulations that apply to reclaimers that do not store the hazardous waste pending reclamation; 

such reclaimers are not required to obtain financial assurance. 

2.5.4 Other Impacts

Environmental Hazards from Hazardous Waste Treatment and Disposal (Scenarios 2 

through 6). The current DSW exclusions could make reclamation more appealing than 

treatment and disposal for some generators. For example, the rule would lessen the barriers to 

reclamation, such as regulatory burdens and manifesting/permitting costs, and thereby make 

reclamation more cost-competitive. In addition, the rule lessens the stigma associated with 

reclaiming “hazardous waste” because the material to be reclaimed is considered to be 

“hazardous secondary material.” As a result, HSMs might be diverted increasingly from 

treatment and disposal to reclamation under the current DSW exclusions. This could shift 

hazards associated with the management of HSM from some communities to others. For 

example, a reduction of hazards in one community (e.g., HSM diverted away from a distant 

incinerator) could translate to an increase in hazards in another community (e.g., HSM redirected 

to a nearby reclaimer using distillation). Thus, diversion of HSMs from treatment and disposal 

to reclamation may result in some environmental justice benefits. 
72

Greater reclamation could reduce the quantity of hazardous wastes sent to incineration, burning 

for energy recovery, and landfilling. This could reduce the amount of emissions from 

incinerators, boilers, and industrial furnaces, reducing emissions of hazardous air pollutants and 

greenhouse gasses. It also could reduce the risk of contamination of groundwater and air 

emissions from landfills. However, there could be some offsetting environmental impacts from 

increased reclamation. For example, there could be air emissions and increased energy use from 

such reclamation methods as solvents distillation. 

Environmental Hazards from Mining Operations and Air Pollution from Energy Usage 

(Scenarios 2 through 6). As indicated earlier, HSMs might be diverted increasingly from 

treatment and disposal to reclamation under the current DSW exclusions. As the quantity of a 

reclaimed material increases, the demand for the corresponding virgin material could decrease. 

This, in turn, could result in a reduction in the exploration, development, extraction, refining, and 

processing of the virgin material, which could help to preserve the natural environment and 

generate less air, water, and soil pollution associated with extraction and processing activities. 

For example, etchant suppliers could increasingly receive and recycle electroplating sludge from 

printed circuit board manufacturers, lessening the demand for copper from mining and the 

associated environmental footprint and effects of mining operations. 

In addition, when increasing quantities of HSMs are reclaimed, less energy might be needed to 

extract, transport, and process the raw materials. When energy demand decreases, fewer fossil 

fuels are burned and less contaminants from energy generation and material transportation are

emitted into the atmosphere. For example, less energy is normally needed to re-melt metals for 

recycling than to produce virgin metal from ore; hence, less greenhouse gases and other air 

emissions could be generated from recycling than using raw materials to produce similar 

products. 

Finally, some manufacturing plants generate large quantities of waste while producing a “virgin” 

product. These wastes must be managed in accordance with applicable solid and hazardous 

waste regulations, which could involve incineration and landfilling. Greater reclamation could 

reduce the demand for virgin products, and hence, lessen the generation of solid and hazardous 

wastes from their manufacturing.
73

Table 2.7. Potential Reduction in Hazards under the Current DSW Exclusions

Differences under

the DSW Final Rule a

Potentially Decreased Hazards

Transportation 

Accidents, 

Pollution,

Traffic, Noise

Releases from

Reclamation

(e.g., fires, soil 

contamination)

Abandoned 

Materials

Environmental 

Hazards from 

Treatment and 

Disposal

Air Pollution 

from Energy 

Usage

Environmental 

Hazards from 

Mining 

Operations

Scenario 1: Generator continues current reclamation practices b

Longer generator accumulation periods, fewer 

off-site shipments of HSM X

Change in generator status, fewer shipments of 

hazardous waste

X

Biennial notifications from SQGs to EPA under 

DSW exclusions 

X

Scenario 2: Generator switches from off-site disposal to on-site reclamation

Change in generator status, fewer shipments of 

hazardous waste X

HSM increasingly diverted from treatment and 

disposal to on-site reclamation under exclusion X X

Reduced mining and energy use because of 

increased reclamation X X

Biennial notifications from SQGs to EPA under 

DSW exclusions X

Scenario 4: Generator switches from off-site disposal to off-site recycling at a RCRA-permitted facility

Longer generator accumulation periods, fewer 

off-site shipments of HSM X

Change in generator status, fewer shipments of 

hazardous waste X
74

Table 2.7. Potential Reduction in Hazards under the Current DSW Exclusions

Differences under

the DSW Final Rule a

Potentially Decreased Hazards

Transportation 

Accidents, 

Pollution,

Traffic, Noise

Releases from

Reclamation

(e.g., fires, soil 

contamination)

Abandoned 

Materials

Environmental 

Hazards from 

Treatment and 

Disposal

Air Pollution 

from Energy 

Usage

Environmental 

Hazards from 

Mining 

Operations

Scenario 7: Generator switches from off-site reclamation at a facility without a permit to another type of recycling under DSW d

Longer generator accumulation periods, fewer 

off-site shipments of HSM X

Change in generator status, fewer shipments of 

hazardous waste X

HSM increasingly diverted from unpermitted 

reclamation under HWRs to reclamation under 

the TBE, which may be more stringent

X X

Biennial notifications from SQGs to EPA under 

DSW exclusions X

Scenario 8: Generator switches from off-site reclamation a RCRA-permitted facility to another type of recycling under DSW

Longer generator accumulation periods, fewer 

off-site shipments of HSM X

Change in generator status, fewer shipments of 

hazardous waste X

Biennial notifications from SQGs to EPA under 

DSW exclusions X

a These differences were identified by comparing the federal regulations and potential consequences under the hazardous waste regulations and the DSW exclusions.

b This scenario includes generators that continue their current practices under the exclusions by either reclaiming on-site; shipping to a permitted, off-site reclamation 

facility; or exporting the material for reclamation.

c This scenario includes generators switching from off-site disposal to sending the material to either a same-company reclaimer or toll manufacturer under the GCE. 

d This scenario includes generators switching from off-site reclamation at a facility without a permit to another type of reclamation under the TBE, including either off-site 

reclamation at a RCRA-permitted facility, off-site reclamation at a facility without a permit, or export of the material to a company in another country.
75

Summary of Potential Impacts the Current DSW Exclusions

under Different Recycling Scenarios

Hazardous Waste 

Regulations Current DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks/Other Benefits

Scenario 1: Generator continues current recycling practices

Generator recycles

material onsite under 

hazardous waste 

regulations

Generator recycles

material onsite under 

generator-controlled 

exclusion

Potential increased risk at 

generator due to longer 

accumulation times, greater 

quantities, lack of explicit 

preventative measures. 

Potential increased risks 

include fires/explosions, 

environmental contamination 

and human exposure, and 

abandoned materials. 

Potential reduced risk at 

small generators of 

abandoned materials due to 

more frequent

reporting and increased 

data on generator activities, 

HSM quantities and types.

Potential reduced risk of 

non-compliant behavior 

at small generators and 

permit-exempt recyclers

due to greater reporting and 

self-disclosure.

Generator sends 

material offsite for 

recycling to RCRApermitted facility 

under hazardous 

waste regulations

Generator sends material 

offsite for recycling at a 

RCRA-permitted facility 

under transfer-based 

exclusion

Potential increased risk at 

generator due to longer 

accumulation times, greater 

quantities, lack of explicit 

preventative measures. 

Potential increased risks 

include fires/explosions, 

environmental contamination 

and human exposure, and 

abandoned materials. 

Potential reduced risk at 

small generators of 

abandoned materials due to 

more frequent

reporting and increased 

data on generator activities, 

HSM quantities and types.

Potential reduced risk 

during transportation due 

to less frequent offsite 
76

Hazardous Waste 

Regulations Current DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks/Other Benefits

Potential increased risk 

during transportation if 

HSM no longer qualifies as 

DOT hazardous material or 

does not trigger RQ. 

Potential increased risks 

include environmental 

contamination and potential 

human exposure. 

No change in risk at 

recycling facility.

shipments of HSM. 

Potential reduced risks 

include fewer 

transportation accidents, 

and less pollution, traffic 

and noise.

Potential reduced risk of 

non-compliant behavior 

at small generators due to 

greater reporting and selfdisclosure

Generator exports 

material under 

hazardous waste 

regulations for 

recycling or 

reclamation in 

another country

Generator exports material 

under the transfer-based 

exclusion for recycling in 

another country

Potential increased risk at 

generator due to longer 

accumulation times, greater 

quantities, lack of explicit 

preventative measures. 

Potential increased risks 

include fires/explosions, 

environment contamination 

and human exposure, and 

abandoned materials. 

Potential increased risk 

during transportation if 

HSM no longer qualifies as 

DOT hazardous material or 

does not trigger RQ. 

Potential increased risks 

include environmental 

Potential reduced risk at 

small generators of 

abandoned materials due to 

more frequent

reporting and increased 

data on generator activities, 

HSM quantities and types.

Potential reduced risk of 

non-compliant behavior 

at small generators due to 

greater reporting and selfdisclosure

Potential reduced risk 

during transportation due 

to less frequent offsite 

shipments of HSM. 

Potential reduced risks 
77

Hazardous Waste 

Regulations Current DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks/Other Benefits

contamination and potential 

human exposure. 

No change in risk at 

recycling facility.

include fewer 

transportation accidents, 

and less pollution, traffic 

and noise.

Scenario 2: Generator switches from off-site disposal to on-site reclamation

Generator sends 

material offsite to a 

RCRA permitted 

facility for treatment 

followed by 

landfilling under 

hazardous waste 

regulations

Generator recycles

material onsite under 

generator-controlled 

exclusion

Potential increased risk to 

human health and the 

environment at generator

due to longer accumulation 

times, greater quantities, lack 

of explicit preventative 

measures. Potential increased 

risks include fires/explosions, 

environmental contamination 

and human exposure, and 

abandoned materials. 

Potential reduced risk at 

small generators of 

abandoned materials due to 

more frequent

reporting and increased 

data on generator activities, 

HSM quantities and types.

Potential reduced risk of 

non-compliant behavior 

at small generators due to 

greater reporting and selfdisclosure

Potential reduced risk 

during transportation due 

to less frequent offsite 

shipments of HSM. 

Potential reduced risks 

include fewer 

transportation accidents, 

and less pollution, traffic 

and noise.
78

Hazardous Waste 

Regulations Current DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks/Other Benefits

Potential reduced risk in 

communities surrounding 

existing off-site 

treatment/disposal 

facilities.

Potential increased 

resource conservation

and environmental 

benefits due to greater 

quantities of HSM being 

reclaimed and less 

environmental damage 

from mining and energy 

consumption.

Scenario 3: Generator switches from off-site disposal to off-site recycling under the control of the generator

Generator sends 

material offsite to a 

RCRA permitted 

facility for treatment 

followed by 

landfilling under 

hazardous waste 

regulations

Generator sends material 

offsite for recycling at a 

facility that it controls 

under generator-controlled 

exclusion

Potential increased risk at 

generator due to longer 

accumulation times, greater 

quantities, lack of explicit 

preventative measures. 

Potential increased risks 

include fires/explosions, 

environmental contamination 

and human exposure, and 

abandoned materials. 

Potential increased risk

during transportation if 

Potential reduced risk at 

small generators of 

abandoned materials due to 

more frequent

reporting and increased 

data on generator activities, 

HSM quantities and types.

Potential reduced risk of 

non-compliant behavior 

at small generators due to 

greater reporting and selfdisclosure
79

Hazardous Waste 

Regulations Current DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks/Other Benefits

HSM no longer qualifies as 

DOT hazardous material, 

does not trigger RQ, and/or is 

not accompanied by a 

tracking document. Potential 

increased risks include 

environmental contamination 

and potential human 

exposure, and abandoned 

materials. 

Potential increased risk in 

communities surrounding 

generator off-site recycling 

facilities

Potential reduced risk 

during transportation due 

to less frequent offsite 

shipments of HSM. 

Potential reduced risks 

include fewer 

transportation accidents, 

and less pollution, traffic 

and noise.

Potential reduced risk in 

communities surrounding 

existing off-site 

treatment/disposal 

facilities.

Potential increased 

resource conservation

and environmental 

benefits due to greater 

quantities of HSM being 

reclaimed and less 

environmental damage 

from mining and energy 

consumption

Scenario 4: Generator switches from off-site disposal to off-site recycling at RCRA-permitted facility

Generator sends 

material offsite to a 

RCRA permitted

Generator sends material 

offsite for recycling at a 

RCRA-permitted facility 

Potential increased risk at 

generator due to longer 

accumulation times, greater 

Potential reduced risk at 

small generators of 
80

Hazardous Waste 

Regulations Current DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks/Other Benefits

facility for treatment 

followed by 

landfilling under 

hazardous waste 

regulations

under transfer-based 

exclusion

quantities, lack of explicit 

preventative measures. 

Potential increased risks 

included fires/explosions, 

environmental contamination 

and human exposure, and 

abandoned materials. 

Potential increased risk 

during transportation if 

HSM no longer qualifies as 

DOT hazardous material or 

does not trigger RQ. 

Potential increased risks 

include environmental 

contamination and potential 

human exposure. 

abandoned materials due to 

more frequent

reporting and increased 

data on generator activities, 

HSM quantities and types.

Potential reduced risk of 

non-compliant behavior 

at small generators due to 

greater reporting and selfdisclosure

Potential reduced risk 

during transportation due 

to less frequent offsite 

shipments of HSM. 

Potential reduced risks 

include fewer 

transportation accidents, 

and less pollution, traffic 

and noise.

Potential reduced risk in

communities surrounding 

existing off-site 

treatment/disposal 

facilities.

Potential increased

resource conservation
81

Hazardous Waste 

Regulations Current DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks/Other Benefits

and environmental 

benefits due to greater 

quantities of HSM being 

reclaimed and less 

environmental damage 

from mining and energy 

consumption

Scenario 5: Generator switches from off-site disposal to off-site recycling at a U.S. facility without a RCRA permit

Generator sends 

material offsite to a 

RCRA permitted 

facility for treatment 

followed by 

landfilling under 

hazardous waste 

regulations

Generator sends material 

offsite for recycling at a 

facility in the United States 

without a RCRA permit 

under transfer-based 

exclusion

Potential increased risk at 

generator due to longer 

accumulation times, greater 

quantities, lack of explicit 

preventative measures. 

Potential increased risks 

include fires/explosions, 

environmental contamination 

and human exposure, and 

abandoned materials. 

Potential increased risk 

during transportation if 

HSM no longer qualifies as 

DOT hazardous material or 

does not trigger RQ. 

Potential increased risks 

include environmental 

contamination and potential 

human exposure. 

Potential reduced risk at 

small generators of 

abandoned materials due to 

more frequent

reporting and increased 

data on generator activities, 

HSM quantities and types.

Potential reduced risk 

during transportation due 

to less frequent offsite 

shipments of HSM. 

Potential reduced risks 

include fewer 

transportation accidents, 

and less pollution, traffic 

and noise.

Potential reduced risk at 

recycler due to 

requirements for financial 
82

Hazardous Waste 

Regulations Current DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks/Other Benefits

Potential increased risk at 

recycler due to longer 

accumulation times, greater 

quantities, lack of explicit 

preventative measures. 

Potential increased risks 

include fire/explosion, 

environmental contamination, 

and human exposure. 

assurance and generator 

audits of recyclers under 

transfer-based exclusion. 

Potential reduced risks 

include fewer releases from 

reclamation and reduced

frequency of

Potential reduced risk of 

non-compliant behavior 

at small generators and 

permit-exempt recyclers

due to greater reporting and 

self-disclosure

Potential reduced risk in 

communities surrounding 

existing off-site 

treatment/disposal 

facilities.

Potential increased 

resource conservation 

and environmental 

benefits due to greater 

quantities of HSM being 

reclaimed and less 

environmental damage 

from mining and energy 

consumption
83

Hazardous Waste 

Regulations Current DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks/Other Benefits

Scenario 6: Generator switches from off-site disposal to exporting for recycling

Generator sends 

material offsite to a 

RCRA permitted 

facility for treatment 

followed by 

landfilling under 

hazardous waste 

regulations

Generator exports material 

under the transfer-based 

exclusion for recycling in 

another country

Potential increased risk at 

generator due to longer 

accumulation times, greater 

quantities, lack of explicit 

preventative measures. 

Potential increased risks 

include fires/explosions, 

environmental continuation 

and human exposure, and 

abandoned materials. 

Potential increased risk 

during transportation if 

HSM no longer qualifies as 

DOT hazardous material or 

does not trigger RQ. 

Potential increased risks 

include environmental 

contamination and potential 

human exposure. 

Potential increased risk at 

recycler due to greater 

quantities of HSM being 

received. Potential increased 

risks include fires/explosions, 

environmental contamination 

and human exposure. 

Potential reduced risk at 

small generators of 

abandoned materials due to 

more frequent

reporting and increased 

data on generator activities, 

HSM quantities and types.

Potential reduced risk of 

non-compliant behavior 

at small generators due to 

greater reporting and selfdisclosure

Potential reduced risk 

during transportation due 

to less frequent offsite 

shipments of HSM. 

Potential reduced risks 

include fewer 

transportation accidents, 

and less pollution, traffic 

and noise.

Potential reduced risk in

communities surrounding 

existing off-site 

treatment/disposal 

facilities.
84

Hazardous Waste 

Regulations Current DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks/Other Benefits

Potential increased 

resource conservation 

and environmental 

benefits due to greater 

quantities of HSM being 

reclaimed and less 

environmental damage 

from mining and energy 

consumption

Scenario 7: Generator switches from off-site recycling at a facility without a permit to another type of recycling under the 

2008 DSW final rule
85

Hazardous Waste 

Regulations Current DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks/Other Benefits

Generator sends 

material offsite for 

recycling at a facility 

in the United States 

that recycles without

a RCRA permit under 

hazardous waste 

regulations

Generator sends material 

offsite for reclamation at a 

facility under generatorcontrolled exclusion, or

Generator exports material 

under the transfer-based 

exclusion for reclamation 

in another country, or

Generator sends material 

offsite for reclamation at a 

RCRA permitted facility 

under transfer-based 

exclusion, or

Generator sends material 

offsite for reclamation at a 

facility in the United States 

without a RCRA permit 

under transfer-based 

exclusion.

Potential increased risk at 

generator due to longer 

accumulation times, greater 

quantities, lack of explicit 

preventative measures. 

Potential increased risks 

include fires/explosions, 

environmental contamination 

and human exposure, and 

abandoned materials. 

Potential increased risk 

during transportation if 

HSM no longer qualifies as 

DOT hazardous material or 

does not trigger RQ. 

Potential increased risks 

included environmental 

contamination and potential 

human exposure. 

Potential increased risk at 

new recycler due to longer 

accumulation times, and 

greater quantities 

accumulated. Potential 

increased risks include 

fires/explosions, 

environmental contamination 

and human exposure under 

GCE.

Potential reduced risk at 

small generators of 

abandoned materials due to 

more frequent

reporting and increased 

data on generator activities, 

HSM quantities and types.

Potential reduced risk of 

non-compliant behavior 

at small generators due to 

greater reporting and selfdisclosure

Potential reduced risk 

during transportation due 

to less frequent offsite 

shipments of HSM. 

Potential reduced risks 

include fewer 

transportation accidents, 

and less pollution, traffic 

and noise.

Potential reduced risk at 

recycler due to 

requirements for financial 

assurance and generator 

audits of recyclers under 

transfer-based exclusion. 

Potential reduced risks 
86

Hazardous Waste 

Regulations Current DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks/Other Benefits

Potential reduced risk at 

new recycler due to 

“contained” standard, 

legitimacy condition and (for 

the transfer-based exclusions) 

reasonable efforts audit and 

financial assurance 

conditions.

include fewer releases from 

reclamation and reduced

frequency of abandoned 

materials.

Potential reduced risk in

communities surrounding 

previously used off-site 

recycling facility.

Potential increased 

resource conservation 

and environmental 

benefits due to greater 

quantities of HSM being 

reclaimed and less 

environmental damage 

from mining and energy 

consumption
87

Hazardous Waste 

Regulations Current DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks/Other Benefits

Scenario 8: Generator switches from off-site recycling at a RCRA-permitted facility or exporting waste for recycling to 

another type of recycling under the 2008 DSW final rule

Generator sends 

material offsite for 

reclamation to 

RCRA-permitted 

facility under 

hazardous waste 

regulations or exports

waste for reclamation 

in another country

Generator reclaims 

material onsite under 

generator-controlled 

exclusion, or

Generator sends material 

offsite for reclamation at a 

facility that it controls 

under generator-controlled 

exclusion, or

Generator sends material 

offsite for reclamation at a 

facility in the United States 

without a RCRA permit 

under transfer-based 

exclusion, or

Generator exports material 

under the transfer-based 

exclusion for reclamation 

in another country

Same as corresponding 

scenarios 2 – 6

Same as corresponding 

scenarios 2 – 6, but with 

no resource conservation 

benefits.
88

2.5.5 Trade-Offs Between Increased and Decreased Hazards

EPA finds that, overall, the potential for an increase in hazards under the 2008 DSW rule 

resulting in adverse impacts to adjacent communities outweighs the potential decrease in 

hazards. Increased hazards include events that can directly impact risk to human health and the 

environment from hazardous secondary materials, including fires, explosions, soil and 

groundwater contamination, volatile air emissions, and particulate wind dispersal. In contrast 

most of the decreased hazards are indirect, either in their potential risks or their impacts to public 

health, or both, and are of a lower magnitude (for example, reduction in transportation accidents, 

pollution, traffic, and noise).

The decreased hazard associated with the 2008 DSW rule most directly associated with the 

hazards posed by the hazardous secondary material itself is increased hazardous waste treatment 

and disposal. However, the hazards posed by additional shipments to these already-established 

facilities are not comparable to the potential risks from the establishment of new recycling 

facilities without the Subtitle C controls under the 2008 DSW rule. The RCRA Subtitle C 

facilities are already integrated into the community, and have gone through the appropriate 

RCRA permitting process, including public participation, and are subject to requirements 

necessary to ensure protection of human health and the environment. In contrast, the potential 

for recycling facilities without RCRA permits to be established without prior regulatory 

oversight or community involvement carry a high risk of over-accumulation and abandonment of 

hazardous secondary materials, due to the economic incentives of commercial recycling and lack 

of restrictions on these materials that a permit would provide. 

2.5.6 Regulatory Changes In The 2014 DSW Final Rule That Address The Potential 

Adverse Impacts To Human Health And The Environment From The Current 

DSW Exclusions

The 2014 DSW final rule includes regulatory changes to the 2008 DSW final rule that address 

the potential adverse impacts from the current DSW exclusions, including potential adverse 

impacts to minority and low-income communities. As discussed in further detail in the 

preamble to the 2014 DSW final rule, these changes were made according to EPA’s authority 

under RCRA to regulate discarded material. Because of these changes, the 2014 DSW final rule 

is expected to increase the level of environmental protection for all affected populations without 

having any disproportionately high and adverse human health or environmental effects on any 

population, including any minority or low-income population.

Below is a summary of the major changes to the current DSW exclusions promulgated in the 

2014 DSW final rule, and how they address the potential adverse impacts to human health and 

the environment (including impacts to minority and low-income populations).

Replacement of the Transfer-Based Exclusion with Verified Recycler Exclusion

The withdrawal of the transfer-based exclusion and its replacement with the verified recycler 

exclusion addresses the concerns regarding third-party recyclers. Under the new exclusion, 

generators must send their hazardous secondary materials to a RCRA-permitted reclaimer or to a 
89

verified hazardous secondary materials reclaimer who has obtained a solid waste variance from 

EPA or the authorized state. 

For reclaimers without a RCRA permit, in order to obtain a variance and become verified, the 

third-party reclaimer must address criteria that essentially mirrors the criteria under the 

reasonable efforts condition in the transfer-based exclusion. This includes: (1) demonstrate their 

recycling is legitimate, (2) must have financial assurance in place to properly manage the 

hazardous secondary material, (3) must not have had any formal enforcement actions for RCRA 

violations in the previous three years and is not classified as a significant non-complier with 

RCRA Subtitle C, or must provide credible evidence that the facility will manage the hazardous 

secondary materials properly, (4) must have the proper equipment, trained personnel, and meet 

emergency preparedness and response requirements to safely reclaim the material, (5) must 

manage the residuals from reclamation properly, and (6) must address risk to nearby 

communities from potential releases of the hazardous secondary material and in consideration of 

existing environmental stressors. 

Before a variance can be granted, it will also go through a public notice and comment process, 

allowing communities the opportunity to have a voice in the environmental decisions that may 

affect them.

Because of the additional oversight, public participation and controls under the verified recycler 

exclusion, the potential for increased adverse impact under Scenarios 4, 5, and 6 and the off-site 

options under Scenarios 1, 7, and 8 is minimized. 

Codified “Contained” Standard

In addition, the codification of the “contained” standard addresses the lack of preventative 

measures and the lack of RCRA air standards under the generator-controlled exclusions. Under 

the 2014 DSW final rule, the HSM must be contained in a unit (including a land-based unit) that 

meets the following criteria:

(1) The unit is in good condition, with no leaks or other continuing or intermittent unpermitted 

releases of the hazardous secondary materials to the environment, and is designed, as appropriate 

for the hazardous secondary material, to prevent releases of the hazardous secondary materials to 

the environment. Unpermitted releases are releases that are not covered by a permit (such as a 

permit to discharge to water or air) and may include, but are not limited to, releases through 

surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, 

fugitive air emissions, and catastrophic unit failures;

(2) The unit is properly labeled or otherwise has a system (such as a log) to immediately identify 

the hazardous secondary materials in the unit; and 

(3) The unit holds hazardous secondary materials that are compatible with other hazardous 

secondary materials placed in the unit and is compatible with the materials used to construct the 

unit and addresses any potential risks of fires or explosions. Hazardous secondary materials in 

units that meet the applicable requirements of 40 CFR parts 264 or 265 are presumptively 

contained. 
90

This contained definition provided both the regulated community and the implementing agencies 

with an approach that helps address the potential for fires/explosions, environmental 

contamination and human exposure under the generator-controlled exclusions in Scenarios 1, 2, 

3, 7 and 8.

Emergency Preparedness 

New emergency preparedness and response requirements under the generator-controlled 

exclusion and the verified recycler exclusion address the risk of fires, explosions and other 

accidents. Specifically, EPA is requiring that generators that accumulate less than or equal to 

6,000 kg of hazardous secondary material on site comply with the emergency preparedness and 

response requirements equivalent to those in part 265 subpart C, which discuss maintaining 

appropriate emergency equipment on site, having access to alarm systems, maintaining needed 

aisle space, and making arrangements with local emergency authorities. A generator must also 

have a designated emergency coordinator who must respond to emergencies and must post 

certain information next to the telephone in the event of an emergency. For generators that 

accumulate more than 6,000 kg of hazardous secondary material on site, EPA is requiring that 

generators comply with requirements equivalent to those in part 265 subparts C and D, which 

includes all the requirements already discussed above for those accumulating less than or equal 

to 6,000 kg, as well as requiring a contingency plan and sharing the plan with local emergency 

responders.

These new requirements help address the potential for fires/explosions, environmental 

contamination and human exposure under in Scenarios 1, 2, 3, 4, 6, 7 and 8.

Additional Recordkeeping Requirements For Speculative Accumulation and for Transfers 

Under the Tolling and Same-Company Provisions Under the Generator-Controlled 

Exclusion

Under the 2014 DSW final rule, all persons subject to the speculative accumulation requirements 

of 40 CFR § 261.1(c)(8) (including, but not limited to, persons operating under the generatorcontrolled exclusion)) must place materials subject to those requirements in a storage unit with a 

label indicating the first date that the material began to be accumulated. If placing a label on the 

storage unit is not practicable, the accumulation period must be documented through an 

inventory log or other appropriate method. This provision will allow inspectors and other 

regulatory authorities to quickly ascertain how long a facility has been storing an excluded 

hazardous secondary material, and, therefore, whether that facility is in compliance with the 

accumulation time limits..

In addition, the 2014 DSW final rule includes revisions to the generator-controlled exclusion for 

tolling and “same-company” recycling that require recordkeeping for shipments sent and 

received under the exclusion. The records must contain the name of the transporter, the date of 

the shipment, and the type and quantity of hazardous secondary material shipped or received. 

These records may consist of normal business records. Such recordkeeping will facilitate 

enforcement of the exclusion and will allow tracking of hazardous secondary materials to ensure 

that these materials remain within the control of the generator and are not discarded.
91

Together, these provisions help address the concern that the HSM could become abandoned 

under the generator-controlled exclusions in Scenarios 1, 2, 3, 7 and 8.

2.5.7 Implementation Measures That Address The Potential Adverse Impacts To 

Human Health And The Environment from Hazardous Secondary Material 

Recycling

In addition to the regulatory changes to address potential adverse impacts of hazardous 

secondary materials recycling, EPA can take non-regulatory steps to help mitigate the potential 

adverse impacts. These steps include closely monitoring the facilities notifying under the 2014

DSW final rule, making information about the DSW facilities available to the public, and 

working with states and EPA Regions to ensure they have the information they need to ensure 

compliance with the provisions of the rule, and making available to the public information about 

the facilities that have notified. EPA has begun this process for the states and territories 

currently operating under the 2008 DSW final rule, and plans to continue these efforts in order to 

help prevent potential adverse impacts under the 2014 DSW final rule.

In particular, the notification condition will allow EPA (and the public) to know exactly who is 

operating under the DSW exclusions. EPA has the authority to inspect these facilities and 

enforce Subtitle C regulations if the facilities are not meeting the conditions of the exclusions. 

This enforcement authority, coupled with the new condition that EPA is imposing requiring 

third-party recyclers be verified prior to operating under the exclusion, will help ensure that 

recyclers operating the DSW exclusions are capable of safely and legitimately recycling 

hazardous secondary materials prior to beginning operations, and that they continue to do so as 

long as they operate under the exclusions.
A-1

Appendix A: Comparison of Regulatory Requirements 

under 2008 DSW Final Rule to RCRA and Other Federal 

Regulations
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[Page intentionally left blank.]
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1. Introduction

This Appendix presents a comparison of the federal regulations applicable to: (1) generators and 

permitted storage facilities operating under the federal hazardous waste regulations and 

(2) generators, intermediate facilities, and reclamation facilities operating under the current

Definition of Solid Waste (DSW) exclusions. The purpose of the comparison is to determine if 

the federal regulations applicable to generators and facilities operating under the current DSW 

exclusions are “comparable” to the federal regulations applicable to hazardous waste generators 

and permitted storage facilities operating under the federal hazardous waste regulations. For 

purposes of this analysis, a regulation is “comparable” to another regulation if they both have the 

same general objectives and apply to the same types of facilities.

Section 2 of this Appendix describes the methodology used to develop the comparison, Section 3 

summarizes the key findings of the comparison, Section 4 presents the tables used to compare 

the regulations, and Section 5 presents a summary of the federal regulations included in the 

comparison. 

2. Methodology

EPA developed three tables for purposes of comparing the federal regulations:

 Table 1 compares the federal regulations applicable to generators of hazardous waste and 

generators of hazardous secondary material (HSM) under the generator-controlled 

exclusion (GCE).

 Table 2 compares the federal regulations applicable to generators of hazardous waste and 

generators of HSM under the transfer-based exclusion (TBE).

 Table 3 compares the federal regulations applicable to hazardous waste storage facilities 

and HSM intermediate and reclamation facilities under the TBE.

46

Each table includes three columns. Column 1 of the tables presents the hazardous waste 

regulations and other federal regulations applicable to hazardous waste generators or storage 

facilities. Column 2 presents the conditions and requirements of the current DSW exclusions

and other federal regulations applicable to HSM generators and facilities operating under the 

exclusions. Column 3 briefly compares these regulations to determine if the federal regulations 

applicable to generators and facilities operating under the current DSW exclusions (Column 2) 

are comparable to the federal regulations applicable to hazardous waste generators and permitted 

storage facilities operating under the federal hazardous waste regulations (Column 1).

To prepare the tables, EPA first reviewed the federal hazardous waste regulations and identified 

those requirements most relevant to the generation, storage, and reclamation of HSM (e.g., 

storage time limits for generators). EPA then summarized these requirements in Column 1 of the 

 

46 EPA compares hazardous waste storage facilities to HSM facilities because hazardous waste storage facilities are 

the most analogous type of facility under the hazardous waste regulations. Specifically, if an intermediate facility 

operated under the hazardous waste regulations (i.e., by storing hazardous waste), it would be subject to the 

hazardous waste storage requirements, including a storage permit. If a reclamation facility stored hazardous waste 

pending reclamation, it would be subject to the hazardous waste storage requirements, including a storage permit.
A-4

tables and included a heading above each requirement (or group of requirements) to briefly 

describe it (e.g., “storage time limit,” “personnel training”).

EPA then reviewed the current DSW exclusions to see if they contain any conditions or 

requirements that generally correspond to the hazardous waste requirements in the table. EPA 

summarized the exclusions’ requirements and conditions in Column 2 of the table where 

relevant, to present a side-by-side comparison of the hazardous waste requirements and 

corresponding DSW conditions and requirements. In Column 3 of the table, EPA briefly 

examines the hazardous waste requirements and the DSW conditions and requirements to clarify 

the extent to which they are comparable.

In addition, EPA reviewed other federal regulations to determine if they contain requirements 

that have a similar objective as these hazardous waste and the current DSW exclusions

requirements (e.g., federal regulations that require personnel training and/or emergency response 

similar to the hazardous waste regulations). EPA summarized these federal requirements in the 

tables where appropriate. Specifically, if a federal requirement applies to generators and/or 

storage facilities operating under the hazardous waste regulations, it is summarized in Column 1 

of the tables, where relevant. If it applies to generators and/or facilities operating under the 

current DSW exclusions, it is summarized in Column 2 of the tables, where relevant. In Column 

3 of the tables, EPA briefly discusses the extent to which these federal requirements are 

comparable to the relevant hazardous waste requirements. 

3. Summary of Key Findings

Following is a summary of the findings of the comparative analysis presented in the tables of 

Section 4 of this Appendix. The findings are summarized under the headings used in the 

comparative tables. 

3.1 Legitimate Recycling

EPA has set forth criteria for determining legitimate recycling under the hazardous waste 

regulations and the current DSW exclusions. Refer to Section 5.1 of this Appendix for a 

summary of the legitimacy requirements and policies under the hazardous waste regulations and 

Section 5.2 for the legitimacy requirements and conditions under the current DSW exclusions.

3.2 Storage Time Limit

The hazardous waste regulations and the current DSW exclusions set forth time limits for 

generators to accumulate hazardous secondary material onsite. However, the current DSW 

exclusions allows generators to accumulate HSM onsite for longer periods of time. In addition, 

the current DSW exclusions does not include a quantity limit for on-site accumulation, as do the 

hazardous waste regulations for small quantity generators (SQGs). 
A-5

3.3 Containment

The hazardous waste regulations and the current DSW exclusions require containment of HSM

in the unit. The hazardous waste regulations prescribe design, operating, and other standards for 

containment (e.g., standards for container integrity, periodic inspections). Prescriptive 

requirements could facilitate inspection and enforcement, which could help to prevent releases. 

On the other hand, the current DSW exclusions does not include prescriptive requirements—

rather, it provides a general performance standard. As such, the current DSW exclusions allow 

more flexibility in how HSMs can be contained. This could result in less protective containment 

than the hazardous waste regulations. However, some generators and facilities under the 

exclusions may choose to follow the hazardous waste regulations for their units anyways, 

particularly those that are otherwise subject to the hazardous waste regulations.

In addition, the GCE allows generators to manage their HSM in land-based units (e.g., surface 

impoundments, waste piles) but the exclusion does not prescribe containment standards. The 

hazardous waste regulations do not allow generators to manage hazardous waste in land-based 

units, unless they have a permit or interim status, under which they must comply with 

prescriptive design, operating, and other unit-specific standards.

3.4 Air Emissions

Some generators and facilities under the hazardous waste regulations and the current DSW 

exclusions may be subject to the federal Clean Air Act (CAA) regulatory program for air 

emissions from stationary sources. Under the CAA program, the states and EPA issue operating 

permits to certain “major” stationary sources of hazardous air pollutants (HAPs) under 40 CFR 

Parts 70 and 71. A major source is a source that emits more than 10 tons per year (TPY) of any 

single HAP or more than 25 TPY of HAPs in total. A number of smaller sources (e.g., “area” 

sources) also may be required to obtain a permit under the federal program. In addition, area 

sources not subject to a Title V permit may still be subject to CAA regulation, depending on the 

applicability provisions of the particular rule. The area source would be required to notify EPA 

(or the delegated state agency) whether it is subject to the regulation, typically 120 days 

following promulgation of a CAA rule applicable to that source, 

Some generators and facilities under the current DSW exclusions may be subject to CAA 

requirements that control air emissions from process vents, equipment leaks, or storage units in a 

manner that is comparable to the hazardous waste regulations. For example, 40 CFR Part 63, 

Subparts OO, PP, and QQ require air emission controls for tanks, containers, and surface 

impoundments, respectively, at facilities subject to a CAA permit, as specified. These subparts 

impose the same types of requirements as the hazardous waste regulations for process vents, 

equipment leaks, and storage units (e.g., design, operating, monitoring standards).

However, there are two important differences between the CAA regulations and hazardous waste 

regulations. First, their applicability to the regulated universe differs in some respects. For 

example, many of the CAA regulations apply to specified industries. EPA has issued rules 

covering over 80 categories of major industrial sources, such as chemical plants, oil refineries, 

aerospace manufacturers, and steel mills, as well as categories of smaller sources, such as dry 

cleaners, commercial sterilizers, secondary lead smelters, and chromium electroplating facilities. 

The hazardous waste regulations apply to all facilities regardless of industry. Therefore, some 

generators and facilities under the current DSW exclusions may not be subject to the CAA 

regulations. Second, some CAA regulations apply to the overall emissions for an entire facility,
A-6

but not necessarily to its individual process vents, leaks, and storage units. This will depend on 

the particular CAA regulation in question. For example, at a facility that is considered a “major” 

source under CAA and also conducts reclamation of solvent under the DSW final rule, their 

CAA permit may apply limits to the overall site emissions, and not to the specific solvent 

recovery unit. By contrast, the hazardous waste regulations include requirements that apply 

specifically to process vents, equipment leaks, and storage units, as specified. Because of these 

differences, it is likely that a number of generators and facilities under the current DSW 

exclusions will not be subject to air emission controls comparable to the hazardous waste 

regulations for process vents, equipment leaks, or storage units.

3.5 Emergency Preparedness and Response

The hazardous waste regulations require generators and storage facilities to prepare for and 

respond to emergencies. The current DSW exclusions, on the other hand, does not require 

emergency preparedness and response. However, materials managed under the current DSW 

exclusions that are no longer contained in a unit (i.e., released) and not immediately recovered 

would no longer be excluded. They would need to be cleaned up and be subject to full RCRA 

Subtitle C regulation if hazardous, including the preparedness and response requirements of the 

hazardous waste regulations, as applicable. 

In addition, other federal regulations may require emergency preparedness and response at 

generators and facilities operating under the hazardous waste regulations and the current DSW 

exclusions:

 CAA Chemical Accident Prevention Provisions. 40 CFR Part 68 requires a stationary 

source (e.g., a building, plant) that meets applicable criteria to develop and implement a 

risk management program. As part of the program, the stationary source must either 

develop an emergency response program (i.e., for facility personnel to respond) or make 

arrangements with off-site response organizations.

 Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA)/Emergency Planning and Community Right-to-Know Act (EPCRA) 

Notification. 40 CFR Parts 302 and 355 require facilities to immediately notify the 

National Response Center and local/state officials (if applicable) of a release of a 

hazardous substance or extremely hazardous substance equal to or exceeding its 

reportable quantity (RQ). 

 Clean Water Act (CWA) Oil Pollution Prevention. 40 CFR Part 112 requires a nontransportation-related facility that meets specified criteria to perform emergency planning 

and response for oil discharges, including development of a Spill Prevention, Control, 

and Countermeasure (SPCC) Plan. The SPCC Plan must address such elements as 

discharge prevention measures; countermeasures for discharge discovery, response, and 

cleanup; and personnel responsibilities (e.g., for addressing discharges). 

 Occupational Safety and Health Act (OSH Act). The Process Safety Management (PSM) 

Standards (29 CFR 1910.119) and Hazardous Waste Operations and Emergency 

Response (HAZWOPER) Standards (29 CFR 1910.120(p)(8) and (q)) require facilities 

meeting specified criteria either to develop and follow an emergency response program 

(i.e., for facility personnel to respond) or to prepare an evacuation plan for the entire plant 

(i.e., for off-site personnel to respond). In addition, the Hazard Communication Standard
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(HazCom) (29 CFR 1910.1200) requires a facility to provide information to its 

employees about any chemical (except hazardous waste) which is a physical or health 

hazard to which they are exposed, by means of a hazard communication program, labels,

and other forms of warning, material safety data sheets, and information and training 

(e.g., hazards detection, emergency procedures). 

Each of the above regulations requires a level of emergency preparedness and/or response that is 

at least partially comparable to the hazardous waste regulations. However, it is likely that these 

regulations will not provide a level of emergency preparedness and protection that is comparable 

to the hazardous waste regulations for all generators and facilities under the current DSW 

exclusions. This is explained further below: 

 The Chemical Accident Prevention Provisions and Oil Pollution Prevention regulations 

(i.e., SPCC Plan requirements) apply to a targeted universe of facilities; therefore, a 

number of generators and facilities under the current DSW exclusions may not be subject 

to them. The Chemical Accident Prevention Provisions apply to facilities that that have 

more than a threshold quantity of a “regulated substance.” The provisions list 140 toxic 

and flammable substances subject to regulation. Generators and facilities that do not 

have any of these 140 chemicals above the quantity thresholds would not be subject to 

these provisions. 

The requirement for an SPCC Plan under the Oil Pollution Prevention regulations 

generally applies to non-transportation-related facilities with aboveground oil storage 

capacity of more than 1,320 gallons that could reasonably be expected to discharge oil to 

navigable waters or adjoining shorelines. Hence, these criteria would not apply to 

generators and facilities that are not expected to discharge oil to navigable waters or 

adjoining shorelines, do not generate or store oil-related substances, or meet minimum 

storage capacity thresholds.

 The Chemical Accident Prevention Provisions, PSM Standard, and HAZWOPER 

Standard give facilities the option of either developing an emergency response program 

or making alternative arrangements (e.g., evacuation plans, arrangements with off-site 

authorities). Facilities that opt to make alternative arrangements are not required to 

address a number of the elements required by the hazardous waste regulations 

particularly for large quantity generators (LQGs) and storage facilities (e.g., procedures 

and equipment for containing and cleaning up a release).

 The definition of “emergency response” under the Chemical Accident Prevention 

Provisions, PSM Standard, and HAZWOPER Standard applies to releases that threaten 

safety or health (i.e., fire, explosion, or chemical exposure). This definition does not 

necessarily encompass environmental contamination to the same extent as the hazardous 

waste regulations. As such, generators and facilities subject to these regulations may not 

be prepared for, or respond to, a release of a hazardous substance that contaminates the 

environment, but does not threaten human health (e.g., spills or leaks surface water or to 

the ground that may also contaminate groundwater, that are not in the vicinity of 

employees at the facility). On the other hand, the hazardous waste regulations require 

emergency preparedness and response for any emergencies affecting human health or the 

environment.
A-8

 The HAZWOPER Standard for emergency response programs at 29 CFR 1910.120(p)(8) 

applies only to generators of hazardous waste and permitted or interim-status hazardous 

waste facilities. Hazardous waste generators and facilities are required to have an 

emergency response program or evacuation plan to address emergencies in the area 

where hazardous waste is stored or disposed of. As such, generators and facilities under 

the current DSW exclusions would not necessarily be subject to this standard (i.e., unless 

they otherwise qualify as a hazardous waste generator or facility). Note, however, that 

generators and facilities under the current DSW exclusions would be subject to the 

HAZWOPER Standard at 29 CFR 1910.120(q). This standard requires an emergency 

response program or evacuation plan if the facility requires an emergency response for a 

release of a hazardous substance from personnel outside of the immediate area of the 

release (e.g., designated on-site personnel or off-site response agencies).

3.6 Personnel Training

The hazardous waste regulations require LQGs and storage facilities to provide recurrent training 

on emergencies, at a minimum. SQGs must provide employee familiarization. The current 

DSW exclusions does not require personnel training or familiarization. However, some 

generators and facilities under the current DSW exclusions may nonetheless qualify as a 

hazardous waste generator or storage facility and therefore be subject to the hazardous waste 

regulations’ training requirements. Portions of the hazardous waste regulations’ personnel 

training may be relevant to handling the excluded materials (e.g., familiarization on chemical 

hazards, emergency response). 

In addition, other federal regulations require personnel training at generators and facilities under 

the hazardous waste regulations and the current DSW exclusions:

 CAA Chemical Accident Prevention Provisions. 40 CFR Part 68 sets forth training 

requirements for stationary sources (e.g., buildings, plants) that meet applicable criteria. 

Facilities with a process eligible for Program 1 (e.g., has not had accidental release of a 

regulated substance within the past five years with off-site consequences as specified) 

need not provide training. Facilities with a process subject to Program 2 or 3 (e.g., has 

had accidental release of a regulated substance from a process within the past five years 

with off-site consequences as specified) must provide recurring personnel training on 

operations and emergency procedures. 

 CWA Oil Pollution Prevention. 40 CFR Part 112 requires a non-transportation-related 

facility that meets specified criteria to provide personnel training on topics, such as 

operation and maintenance of facility and equipment to prevent discharges, discharge 

procedure protocols, and elements of the SPCC Plan. 

 Hazardous Materials Transportation Act (HMTA) Hazardous Materials Regulations 

(HMR). 49 CFR Part 172, Subpart H requires a facility that employs “hazmat 

employees” to provide initial and recurrent training. The training must cover general 

awareness/familiarization, function-specific training, safety, security awareness, and indepth security. A hazmat employee is a person who is involved in the transportation of 

U.S. Department of Transportation (DOT) hazardous materials as specified (e.g., loading, 

preparation for transportation, operation of a transportation vehicle). 
A-9

 OSH Act. The PSM Standard (29 CFR 1910.119) and the HAZWOPER Standard (29 

CFR 1910.120(p) and (q)) require facilities either to train their employees on their 

emergency response program or, if they have opted to develop an evacuation plan instead 

of an emergency response program, they must train their employees on evacuations. In 

addition, HazCom (29 CFR 1910.1200) requires familiarization and training on 

emergency recognition, hazards, and protective measures.

Each of the above regulations requires personnel training that is at least partially comparable to 

the hazardous waste regulations. However, it is likely that a number of generators and facilities 

under the current DSW exclusions will not be subject to personnel training requirements that are 

fully comparable to the hazardous waste training requirements, as explained below: 

 The Chemical Accident Prevention Provisions and Oil Pollution Prevention regulations 

apply to a targeted universe of facilities or activities, and hence, a number of generators 

and facilities under the current DSW exclusions may not be subject to them. The 

Chemical Accident Prevention Provisions apply to facilities that that have more than a 

threshold quantity of a “regulated substance.” The provisions list 140 toxic and 

flammable substances subject to regulation. Generators and facilities that do not have 

any of these 140 chemicals above the quantity thresholds would not be subject to these 

provisions. The HMR require training of “hazmat employees” (i.e., a person who is 

involved in the transportation of DOT hazardous materials as specified). In a number of 

cases, HMR training may be at least partially comparable to training under the hazardous 

waste regulations, particularly for SQGs. However, the HMR training requirements are 

not as prescriptive as the hazardous waste regulations for LQGs and storage facilities; 

therefore, it is uncertain that HMR training would address comparable topics as the 

hazardous waste regulations for LQGs and storage facilities. In addition, it is important 

to note that, if a facility employs personnel that are not “hazmat” employees, such 

employees would not be required to receive HMR training. For example, some facilities 

use outside contractors to prepare and ship their HSM offsite. 

 The PSM and HAZWOPER Standards require facilities to train their employees on 

emergencies. Facilities that have prepared an emergency response program must train 

employees on how to implement it. This would generally be comparable to the 

hazardous waste training required of generators and storage facilities under the hazardous 

waste regulations. However, facilities that have opted to develop an evacuation plan 

instead of an emergency response program are required to train employees on 

evacuations only. Such training would not cover a number of elements required by the 

hazardous waste regulations particularly for LQGs and storage facilities (e.g., use of 

emergency equipment, how to respond to fires and groundwater contamination).

 HazCom requires facilities to familiarize and train their employees on emergency 

recognition, hazards, and protective measures. However, HazCom has limited training 

requirements with regard to emergency procedures. The employer must provide 

employees with training on recognizing hazardous incidents and how to evacuate during 

an emergency.47 In this regard, HazCom training may be comparable to training under 

the hazardous waste regulations particularly for SQGs. However, the hazardous waste 

 

47

 This is OSHA’s interpretation of the HazCom regulations dated June 6, 1991.
A-10

regulations require LQGs and storage facilities to provide more extensive training on 

emergencies (e.g., use of emergency equipment, how to respond to fires and groundwater 

contamination). These topics may be outside the scope of a facility’s HazCom training. 

3.7 Reporting and Recordkeeping

The hazardous waste regulations require generators and storage facilities to notify EPA to 

receive an EPA identification number. In addition, LQGs and storage facilities must submit a 

Biennial Report describing their hazardous wastes and activities. The current DSW exclusions

require each generator and facility to submit an initial and biennial notification describing its 

HSMs and activities under the exclusion. Therefore, the hazardous waste regulations and the 

current DSW exclusions include comparable initial and biennial notification requirements.

In addition, the hazardous waste regulations and DSW TBE require generators and facilities to 

maintain specified information as necessary to demonstrate compliance.

3.8 Off-Site Transportation

The hazardous waste regulations require the manifesting of all off-site shipments (i.e., chain-ofcustody tracking of shipments) and compliance with applicable DOT regulations for packing, 

labeling, marking, and placarding of shipments. The DSW GCE does not include requirements 

for off-site shipments (e.g., shipments from the generating site to a reclamation facility owned by 

the same generator). The DSW TBE includes requirements for packing, recordkeeping of 

shipments from the generator to the reclaimer, and transmittal of confirmation of receipt from the 

facility to the generator.

In addition, the DOT regulations set forth requirements for DOT hazardous materials in regard to 

the use of shipping papers, packing, labeling, marking, placarding, parking, and driving, among 

other things. The DOT regulations apply to all hazardous wastes, as well as other materials that 

qualify as a DOT “hazardous material.”48 A material qualifies as a DOT hazardous material if it: 

(1) is listed in the Table in 49 CFR 172.101 (e.g., compounds), (2) is listed in the Appendices to 

the Table in 49 CFR 172.101,49 or (3) meets one or more of the hazard classifications 

(e.g., flammable liquid). 

Following is a further discussion of the DOT requirements regarding each exclusion under the 

current DSW exclusions:

 GCE. HSMs under the GCE that qualify as a DOT hazardous material would be subject 

to comparable transportation requirements as hazardous waste in regard to packing, 

labeling, marking, placarding, parking, and driving. Specifically, the DOT regulations 

apply similar to hazardous waste and other types of DOT hazardous materials, such as 

excluded material, in regard to these activities. However, the excluded material would 

not be subject to comparable requirements for off-site tracking. Under the DOT 

regulations, a shipping paper must accompany a shipment of DOT hazardous material. 

The shipper and transporter must keep a copy, but the destination facility need not keep a 

copy or transmit a confirmation of receipt to the generator. Therefore, the generator 

 

48

 All hazardous wastes are listed in 49 CFR Part 172 as DOT hazardous materials and therefore, are automatically 

subject to the DOT regulations as applicable. 

49

 A hazardous substance (including hazardous wastes and other substances) listed in the Appendices would be a 

DOT hazardous material subject to regulation if it exceeded its reportable quantity (RQ).
A-11

would not know whether its excluded material reached the intended destination intact, as 

is required by the hazardous waste manifest regulations.

 TBE. HSMs under the TBE that qualify as a DOT hazardous material would be subject 

to comparable transportation requirements as hazardous waste in regard to packing, 

labeling, marking, placarding, parking, driving, and tracking. Note that the TBE requires 

recordkeeping of all off-site shipments by the generator and reclamation facility and a 

confirmation of receipt must be sent from the reclaimer to the generator. These 

recordkeeping and transmittal requirements are comparable to the hazardous waste 

manifest requirements for chain-of-custody tracking and confirmation of receipt. 

In addition, it is important to note that excluded HSMs under the GCE or TBE that do not qualify 

as a DOT hazardous material would not be subject to comparable transportation requirements as 

hazardous waste in regard to packing, labeling, marking, placarding, parking, or driving (or 

tracking, for shipments under the GCE). That is, an excluded material would not be a DOT 

hazardous material subject to regulation if it is not listed in the Table in 49 CFR 172.101, is not 

listed in (or otherwise does not exceed its RQ in) the Appendices to the table, and does not meet 

any hazard classification. 

Further, the RQs contained in 49 CFR Part 172 that trigger the DOT hazardous materials 

requirements are potentially different for hazardous waste and non-waste. A material-specific 

RQ is used to determine whether a hazardous waste or other hazardous substances must comply 

with the DOT requirements (i.e., if the hazardous substance exceeds its RQ, it must comply). In 

some cases the RQ for a hazardous waste would be lower because it is a hazardous waste than 

the RQ if the material were not considered a hazardous. In these cases, a greater quantity of 

material would be required to exceed the RQ if the material were a non-waste. This could result 

in some excluded materials not triggering the RQ requirements (at the lower level) and therefore,

not needing to comply with RQ-related DOT packaging and other regulations.

3.9 Exports

The hazardous waste regulations require an exporter of hazardous waste to notify EPA about 

their intention to export waste and receive EPA consent prior to export. They also must submit 

an annual report summarizing export activities, including the amount and types of waste 

exported and the facilities receiving the waste. In addition, the facility must keep records

describing the waste exported. 

Under the GCE, exports are not allowed, and the HSM must be reclaimed within the U.S. 

The TBE allows generators to export excluded material and requires them to notify EPA about 

their intention to export waste and receive EPA consent prior to export. They also must submit 

an annual report summarizing export activities, including the amount and types of waste 

exported and the facilities receiving the waste. In addition, the facility must keep records 

describing the waste exported. Therefore, the hazardous waste regulations and TBE include 

generally comparable export requirements. 

Note that, even though hazardous wastes are currently exported to other nations for treatment, 

disposal, or reclamation, EPA has not received any notification indicating that HSMs will be 

exported under the 2008 DSW final rule. Based on this facility behavior, EPA does not 

anticipate that a significant amount of HSMs will be exported under the TBE of the current DSW 

exclusions. 
A-12

3.11 Security 50

The hazardous waste regulations require storage facilities to prevent the unknowing and 

unauthorized entry of persons and livestock onto the active portion of the facility. The TBE does 

not address security at facilities. 

3.12 Financial Assurance

The hazardous waste regulations and TBE require facilities to have and maintain a cost estimate 

and obtain financial assurance for closure. In addition, facilities must have and maintain liability 

coverage for sudden accidental occurrences and, if applicable, non-sudden accidental 

occurrences. A variety of financial instruments are identified for these purposes (e.g., trust fund, 

surety bond). Therefore, the hazardous waste regulations and TBE have comparable financial 

assurance requirements for closure and accidental occurrences.

3.13 Requirement for a Permit

The hazardous waste regulations require storage facilities, including facilities that store 

hazardous waste prior to reclamation, to obtain a hazardous waste permit that includes 

requirements for facility and unit design, construction, operation, closure, and post-closure care, 

as applicable. In addition, any facility that manages hazardous waste in a land-based unit is 

subject to the requirement for a permit. By contrast, the GCE allows generators to manage HSM 

in land-based units without a permit. 

The TBE requires facilities either to obtain a RCRA permit and manage HSMs in the permitted 

units or comply with its conditions and pass an audit by the generators. Generators must make 

reasonable efforts to ensure that their HSMs will be safely and legitimately managed and 

reclaimed.

The RCRA permit and TBE share some key similarities, but there also are some key differences. 

Examples include the following: 

 Similarities. A hazardous waste permit and TBE impose requirements on facilities to 

ensure protective operation (e.g., permit requirements, exclusion conditions). In addition, 

a hazardous waste permit and the TBE rely on similar processes for compliance 

assurance (e.g., state inspections and reviews of facility submittals). Whereas a state may 

inspect storage facilities more often than facilities under the exclusion, the exclusion 

requires generator audits to supplement the state’s compliance oversight and assure 

compliance. Finally, a hazardous waste permit and the TBE both require financial 

assurance for closure and sudden and non-sudden occurrences.

 Differences. A hazardous waste permit can be revoked or denied to prevent facility 

operation. Under the TBE, a generator audit does not result in denial of the ability to 

operate. However, a generator must not send its materials to a facility that fails its audit, 

essentially denying the facility the ability to manage the materials under the exclusion. In 

 

50

 Paragraphs 3.11 through 3.14 describe the comparative findings presented in Table 3 for storage facilities under 

the hazardous waste regulations and intermediate/reclamation facilities under the transfer-based exclusion. The 

issues discussed in these paragraphs (e.g., security, financial assurance) do not apply to generators of hazardous 

waste or hazardous secondary materials, and hence, they are not addressed in Tables 1 or 2 or in these paragraphs.
A-13

addition, states have a lead role in administering the hazardous waste permitting and 

enforcement process. Under the TBE, states and generators both have important roles to 

evaluate facility compliance. 

3.14 Public Involvement

The hazardous waste regulations require storage facilities, including facilities that store 

hazardous waste prior to reclamation, to undergo the hazardous waste permitting process, which 

includes public involvement (e.g., public notice and comment on draft permits). 

Under the GCE, a generator that manages HSM in land-based units would not be subject to the 

permitting process, which differs from the hazardous waste regulations. Under the TBE, a 

permit is not needed for storage of excluded materials. As a result, such facilities could operate 

and store the materials under the exclusion without public involvement. 

3.15 Enforcement

The hazardous waste regulations include prescriptive generator and facility standards (e.g., 

labeling, container integrity), which facilitate inspections and enforcement actions. The GCE 

and TBE do not include prescriptive requirements. Therefore, it may be more difficult for 

regulator and facility personnel to inspect for compliance under these exclusions.

4. Comparative Tables

Following are tables that compare federal regulations applicable to: (1) generators and permitted 

storage facilities operating under the federal hazardous waste regulations and (2) generators, 

intermediate facilities, and reclamation facilities operating under the current DSW exclusions. 

The purpose of the comparison is to determine if the federal regulations applicable to generators 

and facilities operating under the current DSW exclusions are comparable to the federal 

regulations applicable to hazardous waste generators and permitted storage facilities operating 

under the federal hazardous waste regulations. 

Three tables are presented:

 Table 1 compares the federal regulations applicable to generators of hazardous waste and 

generators of HSM under the GCE.

 Table 2 compares the federal regulations applicable to generators of hazardous waste and 

generators of HSM under the TBE.

 Table 3 compares the federal regulations applicable to hazardous waste storage facilities 

and HSM intermediate and reclamation facilities under the TBE.
14

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

1. Legitimate Recycling

HWRs: EPA has issued policy statements to clarify legitimate recycling 

(e.g., in Federal Register notices). In addition, respondents in an 

enforcement action who raise a claim that a certain material is not a solid 

waste must demonstrate that there is a known market or disposition for the 

material and that they meet the terms of the exclusion or exemption, as 

specified. (40 CFR 261.2(f)) 

GCE: Reclamation of the 

material must be legitimate, as 

specified at 40 CFR 260.43 

(40 CFR 261.2(a)(2)(ii) and 

261.4(a)(23)(v)). 40 CFR 

260.43 spells out the 

legitimacy criteria that must be 

met. 

EPA has set forth criteria for determining 

legitimate recycling under the HWRs and 

DSW final rule. The DSW final rule 

codifies these criteria for the exclusions, 

which provides greater clarity and 

enforceability. 

2. Storage Time Limit

HWRs: LQG cannot accumulate waste 

onsite for more than 90 days without a 

permit or being in compliance with the 

interim status standards. (40 CFR 

262.34)

HWRs: SQG cannot 

accumulate waste onsite for 

more than 180 or 270 days 

without a permit or being in 

compliance with the interim 

status standards and must not 

exceed 6,000 kilograms onsite. 

(40 CFR 262.34)

GCE: Generator must recycle 

(or ship for recycling) 75% of 

the HSM within one calendar 

year and meet other criteria as 

specified. (40 CFR 

261.2(a)(2)(ii) and 

261.4(a)(23)(iii))

The GCE allows generators to accumulate 

HSM onsite for longer periods of time 

than the HWRs. In addition, the GCE 

does not include a quantity limit for onsite accumulation, as does the HWRs for 

SQGs.
A-15

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

3. Containment

HWRs: Generator must meet design, operating, inspection, and closure 

standards for containers, tanks, containment buildings, and drip pads. 

Generators cannot accumulate HSM in land-based units without a permit 

or interim status. (40 CFR 262.34 and 40 CFR Parts 264, 265, and 270)

GCE: HSM must be 

contained. Generators can 

manage HSM in land-based 

units (e.g., surface 

impoundments, waste piles). 

(40 CFR 261.2(a)(2)(ii) and 

261.4(a)(23)(i))

The HWRs and GCE require containment 

of HSM in the unit. The HWRs prescribe 

design, operating, and other standards for 

containment, whereas the GCE does not. 

As such, the GCE allows more flexibility 

in how HSMs can be contained. This 

could result in more or less effective 

containment than the HWRs, depending 

on the containment methods used by the 

generator under the exclusion. In 

addition, prescriptive requirements may be 

more conducive to inspection and 

enforcement, which could help to prevent 

a release.

The GCE also allows generators to 

manage HSM in land-based units, unlike 

the HWRs, which require a permit or 

interim status that prescribe facility and 

unit-specific standards.
A-16

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

4. Air Emissions

HWRs: LQGs must comply with 

standards to control air emissions. 

These include standards for the design, 

operation, monitoring, testing, and 

recordkeeping of:

 Process vents associated with 

specified treatment technologies (40 

CFR Parts 264 and 265, Subpart 

AA);

 Equipment leaks (40 CFR Parts 264 

and 265, Subpart BB); and

 Emissions from tanks, surface 

impoundments, and containers (40 

CFR Parts 264 and 265, Subpart 

CC).

HWRs: No air emission 

standards for SQGs.

GCE: HSM must be 

contained. (40 CFR 

261.2(a)(2)(ii) and 

261.4(a)(23)(i))

The HWRs and GCE require containment 

of HSM in the unit. The HWRs prescribe 

design, operating, and other standards for 

control of air emissions, whereas the GCE 

does not. As such, the GCE allows more 

flexibility in how HSMs can be contained. 

This could result in more or less effective 

containment than the HWRs, depending 

on the containment methods used by the 

generator under the exclusion. In 

addition, see “Other Federal Regulations” 

below for additional discussion.
A-17

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

Other Federal Regulations:

CAA (Air Emission Standards): The states and EPA issue operating permits to certain “major” stationary 

sources of hazardous air pollutants (HAPs) under 40 CFR Parts 70 and 71. A major source is a source that 

emits more than 10 tons per year (TPY) of any single HAP or more than 25 TPY of HAPs in total. A 

limited number of smaller sources (e.g., “area” sources) also may be required to obtain a permit under the 

federal program. 

In addition, EPA has established technical standards for the control of air emissions from stationary 

sources, which permit writers include in a permit to control emissions as appropriate. Some of these 

standards could address air emissions from process vents, equipment leaks, tanks, and other units. 

Potentially applicable standards can be found in various parts of 40 CFR, such as: 

 Part 60: “Standards of Performance for New Stationary Sources (NSPS).” This part regulates 

emissions from stationary sources of criteria pollutants for which EPA has established National 

Ambient Air Quality Standards (NAAQS); and

 Part 63: “National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source 

Categories.” This part regulates emissions of HAPs from source categories. 

These parts set forth design, operating, monitoring, testing, and/or recordkeeping standards, as specified.

The federal CAA permitting and technical 

standards could potentially address air 

emissions from process vents, equipment 

leaks, and/or storage units at some of the 

facilities operating under the GCE. These 

CAA standards include comparable types 

of controls as the HWRs, e.g., design, 

operating, and monitoring. However, the 

CAA permitting and technical standards 

under the federal program would not apply 

to facilities that:

 Have emissions below specified 

thresholds (e.g., emit less than 10 TPY 

of any single HAP or 25 TPY of HAPs 

in total); or

 Do not meet other applicability criteria 

(e.g., are not in a regulated industry).
A-18

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

5. Emergency Preparedness and Response

HWRs: LQGs must:

 Have emergency equipment (e.g., 

alarms, fire protection, spill 

containment);

 Designate an emergency 

coordinator; and

 Have an emergency plan to address 

any release or other emergency, and 

emergency procedures for:

 Notifying on-site and off-site 

personnel;

 Controlling the emergency (e.g., 

identifying, assessing and 

containing the release); and

 Taking other actions as 

specified (e.g., ensuring proper 

management of recovered 

material). (40 CFR 262.34 and 

Part 265, Subparts C and D)

HWRs: SQGs must:

 Have emergency 

equipment (e.g., alarms, 

fire protection, spill 

containment);

 Designate an emergency 

coordinator; and

 Respond to any emergency 

(e.g., extinguish fires, 

contain and clean up 

releases, notify off-site 

emergency personnel as 

applicable). (40 CFR 

262.34 and 40 CFR Part 

265, Subpart C)

GCE: No comparable 

provisions.

The GCE does not include provisions on 

emergency preparedness and response. 

However, materials under the GCE that 

are no longer contained in a unit (i.e., 

released) and not immediately recovered 

would no longer be excluded. They would 

need to be cleaned up and be subject to 

RCRA Subtitle C regulation if hazardous, 

including the HWR preparedness and 

response requirements, as applicable. 

In addition, see “Other Federal 

Regulations” below for additional 

discussion.
A-19

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

Other Federal Regulations:

CAA (Chemical Accident Prevention): A facility that is a stationary source that has more than a threshold 

quantity of a “regulated substance” in a process (e.g., storage) must develop and implement a risk 

management program, including a Risk Management Plan (RMP). Facilities with a process subject to 

Program 2 or 3 (e.g., a process that has had an accidental release within the past five years with off-site 

consequences as specified) must prepare an emergency response program that includes an emergency plan 

(e.g., procedures for notifying off-site parties, providing medical treatment, responding to an accidental 

release), emergency response equipment, and personnel training. 

However, a facility whose employees will not respond to the release need not prepare an emergency 

response program if it makes alternative arrangements. It must either be included in its community 

emergency response plan or coordinate response actions with the local fire department. There also must be 

a mechanism for notifying emergency responders. 

Note that the Chemical Accident Prevention provisions list 140 toxic and flammable regulated substances 

subject to regulation, with threshold quantities ranging from 500 to 20,000 pounds. (40 CFR Part 68.)

The Chemical Accident Prevention 

provisions for an emergency response 

program set forth generally comparable 

elements as the HWRs for SQG and LQG 

preparedness and prevention (e.g., an 

emergency plan, emergency equipment, 

and coordination with off-site responders). 

The provisions for alternative 

arrangements are not comparable to the 

HWRs for LQGs or SQGs. They do not 

require emergency equipment, an 

emergency plan, or basic efforts by on-site 

personnel to control the emergency (e.g., 

extinguishing a fire).

Note that a generator would be subject to 

the Chemical Accident Prevention 

provisions if it has more than a threshold 

quantity of a 40 CFR Part 68-regulated 

substance in a process (e.g., storage). 

Only a subset of these facilities (e.g., those 

subject to Program 2 or 3) would be 

required to have an emergency response or 

evacuation plan.
A-20

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

CERCLA/EPCRA (Emergency Notification): 

 A generator must immediately notify the National Response Center (NRC) of a release of a CERCLA 

hazardous substance (including hazardous waste) equal to or exceeding its reportable quantity in any 

24-hour period. (40 CFR Part 302)

 A generator must immediately notify the NRC and local/state officials of a release of a reportable 

quantity of any extremely hazardous substance (EHS) or CERCLA hazardous substance (including 

hazardous waste). (40 CFR Part 355)

These CERCLA/EPCRA provisions 

require notification to off-site personnel as 

do the HWRs. These notification 

provisions could effectively address some 

emergencies (e.g., if local responders 

respond immediately and control the 

emergency, such as local fire or hazmat 

personnel).

However, they do not require emergency 

equipment, on-site coordination, or basic 

efforts to control an emergency (e.g., 

containing and cleaning up the release). 

Therefore, these provisions are not 

comparable to the HWRs for preparedness 

and response.
A-21

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

CWA (Oil Pollution Prevention): A generator that is a “non-transportation-related facility” that could 

reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities 

and that meets other applicability criteria must perform emergency planning and response for oil 

discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan. The SPCC Plan must 

address such elements as discharge prevention measures; countermeasures for discharge discovery, 

response, and cleanup; personnel responsibilities (e.g., for addressing discharges); and plans and procedures 

for responding to discharges. (40 CFR Part 112) 

The SPCC requirements set forth 

generally comparable elements as the 

HWRs for emergency preparedness and 

response for oil discharges. This includes 

emergency equipment, personnel 

responsibilities for addressing discharges, 

training, and emergency plans/procedures 

(e.g., countermeasures for discharge 

response and cleanup, notification to 

off-site agencies/personnel).

A generator must prepare an SPCC Plan if 

it meets specified applicability criteria 

(e.g., a non-transportation-related facility 

with aboveground oil storage capacity of 

more than 1,320 gallons that could 

reasonably be expected to discharge 

petroleum-based solvents to navigable 

waters or adjoining shorelines in quantities 

that may be harmful). These criteria 

would not apply to certain types of 

generators (e.g., sites that are not near 

navigable waters, do not generate/store 

oil-related substances, or meet minimum 

storage capacity thresholds). 
A-22

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

OSH Act (Process Safety Management or PSM): A facility that has a process (e.g., use, storage, handling) 

which involves a “highly hazardous chemical” at or above the specified quantity must have an evacuation 

plan for the entire plant addressing evacuation procedures, alarm systems, personnel responsibilities, 

evacuation training, off-site notification, and procedures to be followed by facility personnel who remain to 

operate critical equipment before evacuation. The facility also would need to handle small releases. Highly 

hazardous chemicals include toxic and reactive highly hazardous chemicals which present a potential for a 

catastrophic event at or above the threshold quantity. (29 CFR 1910.38 and 1910.119) 

The PSM provisions require generally 

comparable elements as the HWRs for 

SQG preparedness and response. The 

evacuation plan must include on-site 

response coordination, off-site 

notification, alarms, and handling of small 

releases. However, the PSM provisions 

are not generally comparable to the HWR 

requirements for LQG preparedness and 

response. The PSM provisions do not 

require a plan for the facility to 

control/contain the emergency.

A facility must comply with these 

regulations if it meets the specified 

applicability criteria (e.g., if it 

accumulates a highly hazardous chemical 

onsite above its threshold quantity). 29 

CFR 1910.119, Appendix A, lists 

approximately 140 toxic and reactive 

highly hazardous chemicals subject to 

regulation.
A-23

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

OSH Act (Hazardous Waste Operations and Emergency Response 

(HAZWOPER)): Generators of hazardous waste must have an emergency 

response program if it is required by EPA or state to have its employees 

engage in emergency response or if it directs its employees to engage in 

emergency response. Generators must prepare emergency response 

program that includes an emergency response plan (e.g., personnel roles, 

coordination with outside parties, emergency alerting and response, 

emergency equipment), training for emergency response employees, and 

procedures for handling emergency incidents (e.g., alarms). (29 CFR 

1910.120(p)(8))

If the generator will evacuate employees and will not allow them to assist 

in the response, it need not prepare a response program. Rather, it must 

prepare an evacuation plan for the entire plant. The plan must address 

evacuation procedures, alarm systems, personnel responsibilities, 

evacuation training, off-site notification, and procedures to be followed by 

facility personnel who remain to operate critical equipment before 

evacuation. The generator also would need to have procedures for 

handling small releases. (29 CFR 1910.38 and 1910.120(p)(8))

29 CFR 1910.120(p)(8) does 

not apply to sites that are not 

hazardous waste generators or 

treatment, storage, and 

disposal facilities (TSDFs).

Facilities that do not qualify as a 

hazardous waste generator would not be 

subject to 29 CFR 1910.120(p)(8). 

However, some generators under the GCE 

may nonetheless qualify as an LQG or 

SQG based on the quantity of hazardous 

waste generated and be subject to 29 CFR 

1910.120(p)(8). Portions of the 

emergency response program under 29 

CFR 1910.120(p)(8) could apply to 

excluded materials at such a site (e.g., 

availability of emergency response 

equipment, such as absorbent, if needed). 

Note that the emergency response 

requirements under 29 CFR 

1910.120(p)(8) are comparable to the 

requirements at 29 CFR 1910.120(q), 

which are presented below. 
A-24

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)): A facility is required to 

establish an emergency response program if it has employees who are responsible for emergency response 

operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous 

waste) without regard to the location of the hazard (e.g., anywhere at the facility), such as designated 

response employees. The program must include an emergency response plan (e.g., personnel roles, 

emergency equipment, and coordination with outside parties, emergency alerting and response), training for 

emergency response employees, and procedures for handling emergency incidents. (29 CFR 1910.120(q))

If the facility will evacuate employees and will not allow employees to assist in response, it need not 

prepare an emergency response plan. It must prepare an evacuation plan for the entire plant. The plan must 

address evacuation procedures, alarm systems, personnel responsibilities, evacuation training, off-site 

notification, and procedures to be followed by facility personnel who remain to operate critical equipment 

before evacuation. (29 CFR 1910.38 and 1910.120(q))

The HAZWOPER regulations require 

generally comparable elements as the 

HWRs for LQG and SQG preparedness 

and response. This includes, for example, 

an emergency response plan, emergency 

equipment, and on-site coordination of 

emergency responses. 

In addition, the evacuation plan is 

generally comparable to the HWR 

requirements for SQG preparedness and 

response. The evacuation plan must 

include on-site response coordination, offsite notification, and alarms. However, 

the evacuation plan is not comparable to 

the HWR requirements for LQG 

preparedness and response. The plan does 

not include sufficient procedures for the 

facility to address (e.g., control) 

emergency.

Note that 29 CFR 1910.120(q) would not 

apply to generators under the GCE unless 

they have on-site response personnel, as 

specified. 
A-25

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

OSH Act (Hazard Communication): Facilities must provide information to their employees about any 

chemical (except hazardous waste) which is a physical or health hazard to which they are exposed, by 

means of a hazard communication program, labels and other forms of warning, material safety data sheets, 

and information and training (e.g., hazards detection, emergency procedures). Hazardous wastes are 

exempt from these provisions. (29 CFR 1910.1200).

A generator under the GCE would be 

subject to the Hazard Communication 

Standard (HazCom) for any excluded 

material and other chemicals that pose a 

physical or health hazard. (A generator of 

hazardous waste would not be subject to 

29 CFR 1910.1200 for its hazardous 

waste, but for non-waste chemicals.)

However, the HazCom provisions do not 

require emergency equipment, 

coordination with off-site personnel, or 

basic actions to control an emergency. 

Rather, they require information sharing 

and training. As such, these provisions are 

not comparable to the HWR requirement 

for LQG or SQG preparedness and 

response.
A-26

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

6. Personnel Training

HWRs: LQGs must provide personnel training and SQGs must provide 

familiarization on emergency response and job duties. At a minimum, 

this must address emergency procedures. LQGs must provide recurrent 

training. (40 CFR 262.34 and 265.16)

GCE: No comparable 

provisions.

The GCE does not include provisions on 

personnel training. However, some 

generators under the exclusion may 

nonetheless qualify as a LQG or SQG 

based on the quantity of hazardous waste 

they generate during the month and 

therefore, be subject to the HWR. 

Portions of the HWR personnel training 

may be relevant to handling the excluded 

materials (e.g., familiarization on chemical 

hazards). In addition, see “Other Federal 

Regulations” below for additional 

discussion.
A-27

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

Other Federal Regulations:

CAA (Chemical Accident Prevention): A facility that is a stationary source that has more than a threshold 

quantity of a “regulated substance” in a process (e.g., storage) must develop and implement a risk 

management program, including a Risk Management Plan (RMP). 

Facilities with a process eligible for Program 1 (e.g., has not had accidental release of a regulated substance 

within the past five years with off-site consequences as specified) are not required to provide training. 

Generators with a process subject to Program 2 or 3 (e.g., has had accidental release of a regulated 

substance from a process within the past five years with off-site consequences as specified) must provide 

recurring personnel training on operations and emergency procedures. (40 CFR Part 68)

The Chemical Accident Prevention 

provisions require facilities in Program 2 

and 3 to provide recurring personnel 

training on job operations and emergency 

procedures. These topics are generally 

comparable to those required by the 

HWRs for LQG and SQG training. 

A generator would be subject to the 

Chemical Accident Prevention provisions 

if it has more than a threshold quantity of 

a 40 CFR Part 68-regulated substance in a 

process (e.g., storage). Note that only a 

subset of these facilities would need to 

provide training (i.e., facilities in 

Program 1 are exempt from training 

requirements). Note that 40 CFR Part 68 

lists 140 toxic and flammable regulated 

substances, with threshold quantities 

ranging from 500 to 20,000 pounds.
A-28

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

CWA (Oil Pollution Prevention): A generator that is a “non-transportation-related facility” that could 

reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities 

and that meets other applicability criteria must perform emergency planning and response for oil 

discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan. The Plan must 

provide for personnel training on topics such as operation and maintenance of facility and equipment to 

prevent discharges, discharge procedure protocols, and elements of the Plan. (40 CFR Part 112) 

A generator’s SPCC Plan would address 

comparable topics as the HWRs for 

on-going personnel training for oil. This 

includes operation and maintenance of the 

facility and equipment, discharge 

procedures, and how to carry out the 

SPCC Plan. 

A generator must prepare an SPCC Plan if 

it meets the specified applicability criteria 

(e.g., a non-transportation-related facility 

with aboveground oil storage capacity of 

more than 1,320 gallons that could 

reasonably be expected to discharge 

petroleum-based solvents to navigable 

waters or adjoining shorelines in quantities 

that may be harmful).
A-29

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

HMTA (Hazardous Materials Transportation): A generator would be subject to regulation under the 

HMTA (including the personnel training requirements as applicable) if it transported, or offered for 

transportation, a DOT hazardous material, i.e., a material that: (1) is listed in the Table in 49 CFR 172.101 

(e.g., compounds), (2) is listed in the Appendices to the Table in 49 CFR 172.101, or (3) meets one or more 

of the hazard classifications (e.g., flammable liquid). 

49 CFR Part 172 provides that all RCRA hazardous wastes are DOT hazardous materials, as specified. A 

HSM excluded from the definition of solid waste is neither a solid nor hazardous waste; therefore, it would 

not qualify as a DOT hazardous material on the basis of being a hazardous waste. Rather, an excluded 

material would qualify as a DOT hazardous material if it is otherwise listed in 49 CFR Part 172 (e.g., as a 

compound or element) or meets a hazard class. It is possible that some excluded materials will not qualify 

as a DOT hazardous material. This includes material that is not listed and does not meet any hazard class.

A generator that employs “hazmat employees” must provide initial and recurrent training. A hazmat 

employee is a person who is involved in the transportation of DOT hazardous materials as specified 

(e.g., loading, preparation for transportation, operation of a transportation vehicle). The training must cover 

general awareness/familiarization, function-specific training, safety, security awareness, and in-depth 

security. In particular, the safety training must include emergency response information (i.e., information 

that can be used in the mitigation of an incident involving hazardous materials, such as health hazards, risks 

of fire/explosions, methods for handling fires/spills). (49 CFR 172, Subpart H) 

Generators under the GCE that employ 

hazmat employees must train them on a 

recurrent basis as required by 49 CFR 

Part 172, Subpart H. The training must 

address function-specific, safety and 

emergency response topics, among other 

things. These topics are generally 

comparable to the topics required by the 

HWRs for LQG and SQG training as they 

pertain to transportation-related activities.

Generators whose employees are not 

involved in transportation activities 

(e.g., because they do not make off-site 

shipments, contractors are used to 

prepare/transport the material, or the 

material is not DOT hazardous material) 

would not qualify as hazmat employees 

and not receive such training.
A-30

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

OSH Act (Process Safety Management): A generator that has a process (e.g., use, storage, handling) which 

involves a “highly hazardous chemical” at or above specified quantity must provide initial and refresher 

training of personnel involved in operating a process (e.g., job-related operating procedures, health hazards, 

emergency operations, evacuations). (29 CFR 1910.119)

The Process Safety Management 

provisions require initial and refresher 

training on topics related to job-related 

operations and emergencies. These topics 

are generally comparable to the topics 

required by the HWRs for LQG and SQG 

training.

A generator must comply with the Process 

Safety Management provisions if it meets 

the specified applicability criteria (e.g., a 

generator that accumulates a highly 

hazardous chemical onsite above its 

threshold quantity).
A-31

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

OSH Act (Hazardous Waste Operations and Emergency Response 

(HAZWOPER)): Generators must have an emergency response program if 

it is required by EPA or state to have its employees engage in emergency 

response or if it directs its employees to engage in emergency response. 

The program must include training on emergency response (e.g., elements 

of the response plan, standard operating procedures, and procedures for 

handling emergency incidents). These provisions apply to hazardous 

waste generators and TSDFs only. (29 CFR 1910.120(p)(8))

29 CFR 1910.120(p)(8) does 

not apply to sites that are not 

hazardous waste generators or 

TSDFs.

Under the GCE, generators that do not 

otherwise qualify as a hazardous waste 

generator would not be subject to 29 CFR 

1910.120(p)(8). 29 CFR 1910.120(p)(8) 

applies only to hazardous waste generators 

and TSDFs. 

On the other hand, generators under the 

exclusion that continue to be LQGs or 

SQGs under the HWRs would be subject 

to 29 CFR 1910.120(p)(8). Some of the 

training topics under the 29 CFR 

1910.120(p)(8) could be relevant to the 

excluded material. These provisions 

require training on operating and 

emergency procedures. These topics are 

generally comparable to the topics 

required by the HWRs for SQG training. 

However, these provisions do not require 

recurrent training, as do the HWRs for 

LQG training. Therefore, they are not 

comparable to the HWRs for LQG 

training.
A-32

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)): A facility is required to 

establish an emergency response program if it has employees who are responsible for emergency response 

operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous 

waste) without regard to the location of the hazard (e.g., anywhere at the facility). The facility’s program 

must provide initial and recurrent training as relevant to personnel responsibilities (e.g., first responder, on 

scene incident commander). This includes, for example, hazard detection, responsibilities for emergency 

response, and safety. (29 CFR 1910.120(q))

The HAZWOPER regulations require 

initial and recurrent training on hazard 

detection, emergency response, and safety, 

among other things. These topics are 

comparable to the topics required by the 

HWRs for LQG and SQG training, as it 

relates specifically to emergency response 

personnel. A generator must comply with 

the HAZWOPER regulations if it meets 

the specified applicability criteria (e.g., a 

generator that has employees responsible 

for responding to on-site releases 

regardless of location).
A-33

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

OSH Act (Hazard Communication): Employers must provide information to their employees about any 

chemical which is a physical or health hazard to which they are exposed, by means of a hazard 

communication program, labels and other forms of warning, material safety data sheets, and information 

and training. Employees must be informed of operations in their work area where hazardous chemicals are 

present, among other things. Employee training must include methods and observations for detecting 

releases, hazards in the work area, and measures employees can take to protect themselves (e.g., emergency 

procedures). (29 CFR 1910.1200)

The Hazard Communication Standard 

(HazCom) requires familiarization and 

training on emergency recognition, 

hazards, and protective measures, which is 

comparable to the topics of HWR training 

for SQGs. However, they are somewhat 

less rigorous than the HWR training 

requirements for LQGs. There is no 

schedule for follow-up training under 

HazCom. Therefore, HazCom training is 

not comparable to the HWRs for LQG 

training.

A generator must comply with these 

regulations for any chemicals which could 

pose a physical or health hazard in the 

work place, except for hazardous waste. 

Generators would be subject to these 

requirements for their excluded materials, 

as well as other chemicals that are not 

hazardous waste (e.g., chemical products).
A-34

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

7. Reporting and Recordkeeping

HWRs: Reporting to EPA on waste management activities:

 Notification (40 CFR 262.12)

 Biennial Report for LQGS only (40 CFR 262.41)

 Exception report (40 CFR 262.42)

HWRs: Recordkeeping for three years (40 CFR 262.40)

GCE: Initial and Biennial 

notifications (40 CFR 260.42) 

The HWR and GCE have comparable 

requirements for initial and biennial 

submittals in regard to frequency and 

types of information submitted. However, 

the GCE biennial notification requirement 

applies to generators regardless of size. 

The HWR’s biennial reporting 

requirement applies only to LQGs. 

The GCE does not require exception 

reporting or recordkeeping.

8. Off-Site Transportation

HWRs: Shipments must be manifested (40 CFR 262, Subpart B) and 

comply with DOT requirements for packing, labeling, marking, and 

placarding. (40 CFR 262.30-.33)

GCE: No comparable 

provisions.

The GCE does not include transportation. 

See “Other Federal Regulations” below 

for additional discussion.
A-35

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

Other Federal Regulations: 

HMTA: A generator would be subject to regulation under the HMTA if it transported, or offered for 

transportation, a DOT hazardous material, i.e., a material that: (1) is listed in the Table in 49 CFR 172.101 

(e.g., compounds), (2) is listed in the Appendices to the Table in 49 CFR 172.101, or (3) meets one or more 

of the hazard classifications (e.g., flammable liquid). 

RCRA hazardous wastes are DOT hazardous materials because they are listed in 49 CFR Part 172. A HSM

excluded from the definition of solid waste is neither a solid nor hazardous waste; therefore, it would not 

qualify as a DOT hazardous material on the basis of being a hazardous waste. Rather, an excluded material 

would qualify as a DOT hazardous material if it is otherwise listed in 49 CFR Part 172 (e.g., as a compound 

or element) or meets a hazard classification. It is possible that some excluded materials will not qualify as a 

DOT hazardous material. This includes a HSM that is not listed and does not meet any hazard class. 

Shipments of DOT hazardous materials (including hazardous waste) must comply with applicable 

transportation provisions. This includes, for example, the regulations for shipping papers (or manifest), 

packing, labeling, marking, and placarding (49 CFR Parts 171-180), as well as requirements for driving and 

parking. (49 CFR Part 397).

Excluded materials qualifying as a DOT 

hazardous material would be subject to 

transportation requirements comparable to 

hazardous waste, except for tracking of 

shipments. Under the HWRs, a manifest 

is required to track the waste from 

generator to designated facility and a 

confirmation of receipt is sent from the 

facility to the generator. The hazardous 

materials regulations do not require 

transmittal of confirmation.

Note that some excluded materials may 

not qualify as a DOT hazardous material. 

They would not need to be transported in 

accordance with the hazardous materials 

regulations.

9. Exports

HWRs: Reporting under 40 CFR Part 262, Subpart E or H:

 Perform notice and consent

 Submit annual report

 Keep records

GCE: No comparable 

provisions for exports.

The GCE does not include comparable 

provisions for notice and consent for 

exports. This is because the exclusion 

requires that the material be generated and 

reclaimed within the U.S. and territories.

11. Requirement for a Permit
A-36

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

HWRs: RCRA permit is required for managing hazardous waste in landbased units. (40 CFR Part 270)GCE: No comparable 

provisions.

The HWRs require a permit for managing 

HSM in land-based units. The permit 

would prescribe facility and unit-specific 

standards (e.g., design, operation, 

emergency prevention). In addition, 

public involvement would be required as 

part of the permitting process. The GCE 

allows generators to manage HSM in landbased units without a permit. 

12. Public Involvement in Permit Process

HWRs: Facility managing hazardous waste in land-based units must 

undergo RCRA permitting process, which includes public involvement 

(e.g., public notice and comment for draft permit decision; public hearing 

if requested). (40 CFR Parts 270 and 124)

GCE: No comparable 

provisions.

Generator that manage HSM under the 

GCE in land-based units would not be 

subject to public involvement 

requirements, unlike the HWRs.
A-37

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Generator-Controlled 

Exclusion (GCE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity Generators 

(SQGs)

Other Federal Regulations:

Facilities managing HSMs may be subject to other permitting programs that include public involvement. 

Examples include the Clean Air Act (CAA) operating permitting program and Clean Water Act (CWA) 

National Pollutant Discharge Elimination System (NPDES) permitting program.

Facilities under GCE may be subject to the 

CAA NPDES, and/or other permitting 

programs. If so, the public may have an 

opportunity to comment on aspects of 

their draft permit that relate to 

management of the excluded material.

13. Enforcement and Compliance

HWRs: EPA’s National Program 

Manager (NPM) Guidance for Fiscal 

Year 2010 provides that the EPA 

Regions and states must annually inspect 

at least 20% of the LQG universe, so 

that the entire universe is inspected in 

five years.

HWRs: No comparable 

guidance. 

GCE: No comparable 

guidance.

HWRs: The HWRs include prescriptive generator standards (e.g., 

labeling, container integrity), which could facilitate inspections and 

enforcement actions.

GCE: The GCE does not 

include prescriptive standards, 

but performance based 

requirements. 

It may be more difficult for regulators and 

facilities to inspect for compliance under 

the GCE because it does not spell out 

prescriptive standards. This differs from 

the HWRs, which lay out prescriptive 

standards. 
A-38

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

1. Legitimate Recycling

HWRs: EPA has issued policy statements to clarify legitimate 

recycling (e.g., in Federal Register notices). In addition, 

respondents in an enforcement action who raise a claim that a 

certain material is not a solid waste must demonstrate that there is a 

known market or disposition for the material and that they meet the 

terms of the exclusion or exemption, as specified. (40 CFR 

261.2(f)) 

TBE: Reclamation of the 

material must be legitimate, as 

specified at 40 CFR 260.43 

(261.4(a)(24)(iv)). 40 CFR 

260.43 spells out the 

legitimacy criteria that must be 

met. Generator must perform 

reasonable efforts to ensure 

proper and legitimate recycling 

by reclaimer, as specified 

(40 CFR 261.4(a)(24)(v)(B))

EPA has set forth consistent criteria on 

legitimate recycling under the HWR and 

DSW final rule. The DSW final rule 

codifies these criteria for the exclusions, 

which provides greater clarity and 

enforceability. In addition, a generator’s 

reasonable efforts under the TBE 

reinforce the criteria and encourage 

compliance by reclaimers.

2. Storage Time Limit

HWRs: LQG cannot accumulate waste 

for more than 90 days without a permit 

or being in compliance with the interim 

status standards. (40 CFR 262.34)

HWRs: SQG cannot 

accumulate waste for 

more than 180 or 270 

days without a permit or 

being in compliance with 

the interim status 

standards; must not 

exceed 6,000 kilograms

onsite. 40 CFR 262.34)

TBE: Generator must recycle 

(or ship for recycling) 75% of 

the HSM within one calendar 

year and meet other criteria as 

specified. (261.4(a)(24)(i))

The TBE allows generators to 

accumulate HSM onsite for longer 

periods of time than the HWRs. In 

addition, the TBE does not include a 

quantity limit for on-site accumulation, 

as does the HWRs for SQGs.
A-39

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

3. Containment

HWRs: Generator must meet design, operating, inspection, and 

closure standards for containers, tanks, and containment buildings. 

(40 CFR 262.34 and 40 CFR Part 265, Subparts I, J, and DD)

TBE: HSM must be contained 

(40 CFR 261.4(a)(24)(v)(A))

Both the HWRs and TBE require 

containment of HSM in the unit. The 

HWRs prescribe design, operating, and 

other standards for containment, whereas 

the TBE does not. As such, the TBE 

allows greater flexibility in how HSMs

can be contained. This could result in 

more or less effective containment than 

the HWRs, depending on the 

containment methods used by the 

generator under the exclusion. In 

addition, prescriptive requirements may 

be more conducive to inspection and 

enforcement, which could help to 

prevent a release.
A-40

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

4. Air Emissions

HWRs: LQGs must comply with 

standards to control air emissions. 

These include standards for the design, 

operation, monitoring, testing, and 

recordkeeping of:

 Process vents associated with 

specified treatment technologies 

(40 CFR Parts 264 and 265, 

Subpart AA);

 Equipment leaks (40 CFR Parts 

264 and 265, Subpart BB); and

 Emissions from tanks, surface 

impoundments, and containers 

(40 CFR Parts 264 and 265, 

Subpart CC).

HWRs: No air emission 

standards for SQGs.

TBE: HSM must be contained. 

(40 CFR 261.2(a)(2)(ii) and 

261.4(a)(23)(i))

The HWRs and TBE require 

containment of HSM in the unit. The 

HWRs prescribe design, operating, and 

other standards for containment of air 

emissions, whereas the TBE does not. 

As such, the TBE allows more flexibility 

in how HSMs can be contained. This 

could result in more or less effective 

containment than the HWRs, depending 

on the containment methods used by the 

generator under the exclusion. In 

addition, see “Other Federal 

Regulations” below for additional 

discussion.
A-41

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

Other Federal Regulations:

CAA: The states and EPA issue operating permits to certain “major” stationary sources of hazardous 

air pollutants (HAPs) under 40 CFR Parts 70 and 71. A major source is a source that emits more 

than 10 tons per year (TPY) of any single HAP or more than 25 TPY of HAPs in total. A limited 

number of smaller sources (e.g., “area” sources) also may be required to obtain a permit under the 

federal program. 

In addition, EPA has established technical standards for the control of air emissions from stationary 

sources, which permit writers include in a permit to control emissions as appropriate. Some of these 

standards could address air emissions from process vents, equipment leaks, tanks, and other units. 

Potentially applicable standards can be found in various parts of 40 CFR, such as: 

 Part 60: “Standards of Performance for New Stationary Sources (NSPS).” This part regulates 

emissions from stationary sources of criteria pollutants for which EPA has established National 

Ambient Air Quality Standards (NAAQS); and

 Part 63: “National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source 

Categories.” This part regulates emissions of hazardous air pollutants (HAPs) from source 

categories. 

These parts set forth design, operating, monitoring, testing, and/or recordkeeping standards, as 

specified.

The federal CAA permitting and 

technical standards could potentially 

address air emissions from process vents, 

equipment leaks, and/or storage units at 

some of the facilities operating under the 

TBE. These CAA standards include 

comparable types of controls as the 

HWRs, e.g., design, operating, and 

monitoring. However, the CAA 

permitting and technical standards under 

the federal program would not apply to 

facilities that:

 Have emissions below specified 

thresholds (e.g., emit less than 10 

TPY of any single HAP or 25 TPY of 

HAPs in total); or

 Do not meet other applicability 

criteria (e.g., are not in a regulated 

industry).
A-42

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

5. Emergency Preparedness and Response

HWRs: LQGs must:

 Have emergency equipment 

(e.g., alarms, fire protection, spill 

containment);

 Designate an emergency 

coordinator; and

 Have an emergency plan to address 

any release or other emergency, 

and emergency procedures for:

 Notifying on-site and off-site 

personnel;

 Controlling the emergency 

(e.g., identifying, assessing and 

containing the release); and

 Taking other actions as 

specified (e.g., ensuring proper 

management of recovered 

material). (40 CFR 262.34 and 

Part 265, Subparts C and D)

HWRs: SQGs must:

 Have emergency 

equipment 

(e.g., alarms, fire 

protection, spill 

containment);

 Designate an 

emergency 

coordinator; and

 Respond to any 

emergency 

(e.g., extinguish 

fires, contain and 

cleanup releases, 

notify off-site 

emergency 

personnel as 

applicable). (40 

CFR 262.34 and 40 

CFR Part 265, 

Subpart C)

TBE: No comparable 

provisions.

The TBE does not include provisions on 

emergency preparedness and response. 

However, materials under the TBE that 

are no longer contained in a unit 

(i.e., released) and not immediately 

recovered would no longer be excluded. 

They would need to be cleaned up and 

be subject to RCRA Subtitle C 

regulation if hazardous, including the 

HWR preparedness and response 

requirements, as applicable. 

In addition, see “Other Federal 

Regulations” below for additional 

discussion.
A-43

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

Other Federal Regulations:

CAA (Chemical Accident Prevention): A facility that is a stationary source that has more than a 

threshold quantity of a “regulated substance” in a process (e.g., storage) must develop and implement 

a risk management program, including a Risk Management Plan (RMP). Facilities with a process 

subject to Program 2 or 3 (e.g., a process that has had an accidental release within the past five years 

with off-site consequences as specified) must prepare an emergency response program that includes 

an emergency plan (e.g., procedures for notifying off-site parties, providing medical treatment, 

responding to an accidental release), emergency response equipment, and personnel training. 

However, a facility whose employees will not respond to the release need not prepare an emergency 

response program if it makes alternative arrangements. It must either be included in its community 

emergency response plan or coordinate response actions with the local fire department. There also 

must be a mechanism for notifying emergency responders. 

Note that the Chemical Accident Prevention provisions list 140 toxic and flammable regulated 

substances subject to regulation, with threshold quantities ranging from 500 to 20,000 pounds. 

(40 CFR Part 68.)

The Chemical Accident Prevention 

provisions for an emergency response 

program set forth generally comparable 

elements as the HWRs for SQG and 

LQG preparedness and prevention (e.g., 

an emergency plan, emergency 

equipment, and coordination with offsite responders). 

The provisions for alternative 

arrangements are not comparable to the 

HWRs for LQGs or SQGs. They do not 

require emergency equipment, an 

emergency plan, or basic efforts by 

on-site personnel to control the 

emergency (e.g., extinguishing a fire).

Note that a generator would be subject to 

the Chemical Accident Prevention 

provisions if it has more than a threshold 

quantity of a 40 CFR Part 68-regulated 

substance in a process (e.g., storage). 

Only a subset of these facilities 

(e.g., those subject to Program 2 or 3) 

would be required to have an emergency 

response or evacuation plan.
A-44

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

CERCLA/EPCRA (Emergency Notification): 

 A generator must immediately notify the National Response Center (NRC) of a release of a 

CERCLA hazardous substance (including hazardous waste) equal to or exceeding its reportable 

quantity in any 24-hour period. (40 CFR Part 302)

 A generator must immediately notify the NRC and local/state officials of a release of a 

reportable quantity of any extremely hazardous substance (EHS) or CERCLA hazardous 

substance (including hazardous waste). (40 CFR Part 355)

These CERCLA/EPCRA provisions 

require notification to off-site personnel 

as do the HWRs. These notification 

provisions could effectively address 

some emergencies (e.g., if local 

responders respond immediately and 

control the emergency, such as local fire 

or hazmat personnel).

However, they do not require emergency 

equipment, on-site coordination, or basic 

efforts to control an emergency 

(e.g., containing and cleaning up the 

release). Therefore, these provisions are 

not comparable to the HWRs for 

preparedness and response.
A-45

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

CWA (Oil Pollution Prevention): A generator that is a “non-transportation-related facility” that 

could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful 

quantities and that meets other applicability criteria must perform emergency planning and response 

for oil discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan. The 

SPCC Plan must address such elements as discharge prevention measures; countermeasures for 

discharge discovery, response, and cleanup; personnel responsibilities (e.g., for addressing 

discharges); and plans and procedures for responding to discharges. (40 CFR Part 112) 

The SPCC requirements set forth 

generally comparable elements as the 

HWRs for emergency preparedness and 

response for oil discharges. This 

includes emergency equipment, 

personnel responsibilities for addressing 

discharges, training, and emergency 

plans/procedures (e.g., countermeasures 

for discharge response and cleanup, 

notification to off-site 

agencies/personnel).

A generator must prepare an SPCC Plan 

if it meets specified applicability criteria 

(e.g., a non-transportation-related facility 

with aboveground oil storage capacity of 

more than 1,320 gallons that could 

reasonably be expected to discharge 

petroleum-based solvents to navigable 

waters or adjoining shorelines in 

quantities that may be harmful). These 

criteria would not apply to certain types 

of generators (e.g., sites that are not near 

navigable waters, do not generate/store 

oil-related substances, or meet minimum 

storage capacity thresholds). 
A-46

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

OSH Act (Process Safety Management): A facility that has a process (e.g., use, storage, handling) 

which involves a “highly hazardous chemical” at or above the specified quantity must have an 

evacuation plan for the entire plant addressing evacuation procedures, alarm systems, personnel 

responsibilities, evacuation training, off-site notification, and procedures to be followed by facility 

personnel who remain to operate critical equipment before evacuation. The facility also would need 

to handle small releases. Highly hazardous chemicals include toxic and reactive highly hazardous 

chemicals which present a potential for a catastrophic event at or above the threshold quantity. (29 

CFR 1910.38 and 1910.119) 

The Process Safety Management (PSM) 

provisions require generally comparable 

elements as the HWRs for SQG 

preparedness and response. The 

evacuation plan must include on-site 

response coordination, off-site 

notification, alarms, and handling of 

small releases. However, the PSM 

provisions are not generally comparable 

to the HWR requirements for LQG 

preparedness and response. The PSM 

provisions do not require a plan for the 

facility to control/contain the emergency.

A facility must comply with these 

regulations if it meets the specified 

applicability criteria (e.g., if it 

accumulates a highly hazardous 

chemical onsite above its threshold 

quantity). 29 CFR 1910.119, Appendix 

A, lists approximately 140 toxic and 

reactive highly hazardous chemicals 

subject to regulation.
A-47

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

OSH Act (Hazardous Waste Operations and Emergency Response 

(HAZWOPER)): Generators of hazardous waste must have an 

emergency response program if it is required by EPA or state to 

have its employees engage in emergency response or if it directs its 

employees to engage in emergency response. Generators must 

prepare emergency response program that includes an emergency 

response plan (e.g., personnel roles, coordination with outside 

parties, emergency alerting and response, emergency equipment), 

training for emergency response employees, and procedures for 

handling emergency incidents (e.g., alarms). (29 CFR 

1910.120(p)(8))

If the generator will evacuate employees and will not allow them to 

assist in the response, it need not prepare a response program. 

Rather, it must prepare an evacuation plan for the entire plant. The 

plan must address evacuation procedures, alarm systems, personnel 

responsibilities, evacuation training, off-site notification, and 

procedures to be followed by facility personnel who remain to 

operate critical equipment before evacuation. The generator also 

would need to have procedures for handling small releases. (29 

CFR 1910.38 and 1910.120(p)(8))

29 CFR 1910.120(p)(8) does 

not apply to sites that are not 

hazardous waste generators or 

treatment, storage, and 

disposal facilities (TSDFs).

Facilities that do not qualify as a 

hazardous waste generator would not be 

subject to 29 CFR 1910.120(p)(8). 

However, some generators under the 

TBE may nonetheless qualify as an LQG 

or SQG based on the quantity of 

hazardous waste generated and be 

subject to 29 CFR 1910.120(p)(8). 

Portions of the emergency response 

program under 29 CFR 1910.120(p)(8) 

could apply to excluded materials at such 

a site (e.g., availability of emergency 

response equipment, such as absorbent, 

if needed). 

Note that the emergency response 

requirements under 29 CFR 

1910.120(p)(8) are comparable to the 

requirements at 29 CFR 1910.120(q), 

which are presented below. 
A-48

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)): A facility is 

required to establish an emergency response program if it has employees who are responsible for 

emergency response operations for releases of, or substantial threats of releases of, hazardous 

substances (including hazardous waste) without regard to the location of the hazard (e.g., anywhere 

at the facility), such as designated response employees. The program must include an emergency 

response plan (e.g., personnel roles, emergency equipment, and coordination with outside parties, 

emergency alerting and response), training for emergency response employees, and procedures for 

handling emergency incidents. (29 CFR 1910.120(q))

If the facility will evacuate employees and will not allow employees to assist in response, it need not 

prepare an emergency response plan. It must prepare an evacuation plan for the entire plant. The 

plan must address evacuation procedures, alarm systems, personnel responsibilities, evacuation 

training, off-site notification, and procedures to be followed by facility personnel who remain to 

operate critical equipment before evacuation. (29 CFR 1910.38 and 1910.120(q))

The HAZWOPER regulations require 

generally comparable elements as the 

HWRs for LQG and SQG preparedness 

and response. This includes, for 

example, an emergency response plan, 

emergency equipment, and on-site 

coordination of emergency responses. 

In addition, the evacuation plan is 

generally comparable to the HWR 

requirements for SQG preparedness and 

response. The evacuation plan must 

include on-site response coordination, 

off-site notification, and alarms. 

However, the evacuation plan is not 

comparable to the HWR requirements 

for LQG preparedness and response. 

The plan does not include sufficient 

procedures for the facility to address 

(e.g., control) emergency.

Note that 29 CFR 1910.120(q) would not 

apply to generators under the TBE unless 

they have on-site response personnel, as 

specified. 
A-49

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

OSH Act (Hazard Communication): Facilities must provide information to their employees about 

any chemical (except hazardous waste) which is a physical or health hazard to which they are 

exposed, by means of a hazard communication program, labels and other forms of warning, material 

safety data sheets, and information and training (e.g., hazards detection, emergency procedures). 

Hazardous wastes are exempt from these provisions. (29 CFR 1910.1200).

A generator under the TBE would be 

subject to the Hazard Communication 

Standard (HazCom) for any excluded 

material and other chemicals that pose a 

physical or health hazard. (A generator 

of hazardous waste would not be subject 

to 29 CFR 1910.1200 for its hazardous 

waste, but for non-waste chemicals.)

However, the HazCom provisions do not 

require emergency equipment, 

coordination with off-site personnel, or 

basic actions to control an emergency. 

Rather, they require information sharing 

and training. As such, these provisions 

are not comparable to the HWR 

requirement for LQG or SQG 

preparedness and response.
A-50

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

6. Personnel Training

HWRs: LQGs must provide personnel training and SQGs must 

provide familiarization on emergency response and job duties. At 

a minimum, this must address emergency procedures. LQGs must 

provide recurrent training. (40 CFR 262.34 and 265.16)

TBE: No comparable 

provisions.

The TBE does not include provisions on 

personnel training. However, some 

generators under the exclusion may 

nonetheless qualify as a LQG or SQG 

based on the quantity of hazardous waste 

they generate during the month and 

therefore, be subject to the HWR. 

Portions of the HWR personnel training 

may be relevant to handling the excluded 

materials (e.g., familiarization on 

chemical hazards). In addition, see 

“Other Federal Regulations” below for 

additional discussion.
A-51

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

Other Federal Regulations:

CAA (Chemical Accident Prevention): A facility that is a stationary source that has more than a 

threshold quantity of a “regulated substance” in a process (e.g., storage) must develop and implement 

a risk management program, including a Risk Management Plan (RMP). 

Facilities with a process eligible for Program 1 (e.g., has not had accidental release of a regulated 

substance within the past five years with off-site consequences as specified) are not required to 

provide training. Generators with a process subject to Program 2 or 3 (e.g., has had accidental 

release of a regulated substance from a process within the past five years with off-site consequences 

as specified) must provide recurring personnel training on operations and emergency procedures. 

(40 CFR Part 68)

The Chemical Accident Prevention 

provisions require facilities in Program 2 

and 3 to provide recurring personnel 

training on job operations and 

emergency procedures. These topics are 

generally comparable to those required 

by the HWRs for LQG and SQG 

training. 

A generator would be subject to the 

Chemical Accident Prevention 

provisions if it has more than a threshold 

quantity of a 40 CFR Part 68-regulated 

substance in a process (e.g., storage). 

Note that only a subset of these facilities 

would need to provide training (i.e., 

facilities in Program 1 are exempt from 

training requirements). Note that 40 

CFR Part 68 lists 140 toxic and 

flammable regulated substances, with 

threshold quantities ranging from 500 to 

20,000 pounds.
A-52

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

CWA (Oil Pollution Prevention): A generator that is a “non-transportation-related facility” that 

could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful 

quantities and that meets other applicability criteria must perform emergency planning and response 

for oil discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan. The 

Plan must provide for personnel training on topics such as operation and maintenance of facility and 

equipment to prevent discharges, discharge procedure protocols, and elements of the Plan. (40 CFR 

Part 112) 

A generator’s SPCC Plan would address 

comparable topics as the HWRs for 

on-going personnel training for oil. This 

includes operation and maintenance of 

the facility and equipment, discharge 

procedures, and how to carry out the 

SPCC Plan. 

A generator must prepare an SPCC Plan 

if it meets the specified applicability 

criteria (e.g., a non-transportation-related 

facility with aboveground oil storage 

capacity of more than 1,320 gallons that 

could reasonably be expected to 

discharge petroleum-based solvents to 

navigable waters or adjoining shorelines 

in quantities that may be harmful).
A-53

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

HMTA (Hazardous Materials Transportation): A generator would be subject to regulation under the 

HMTA (including the personnel training requirements as applicable) if it transported, or offered for 

transportation, a DOT hazardous material, i.e., a material that: (1) is listed in the Table in 49 CFR 

172.101 (e.g., compounds), (2) is listed in the Appendices to the Table in 49 CFR 172.101, or (3) 

meets one or more of the hazard classifications (e.g., flammable liquid). 

49 CFR Part 172 provides that all RCRA hazardous wastes are DOT hazardous materials, as 

specified. A HSM excluded from the definition of solid waste is neither a solid nor hazardous waste; 

therefore, it would not qualify as a DOT hazardous material on the basis of being a hazardous waste. 

Rather, an excluded material would qualify as a DOT hazardous material if it is otherwise listed in 

49 CFR Part 172 (e.g., as a compound or element) or meets a hazard class. It is possible that some 

excluded materials will not qualify as a DOT hazardous material. This includes material that is not 

listed and does not meet any hazard class.

A generator that employs “hazmat employees” must provide initial and recurrent training. A hazmat 

employee is a person who is involved in the transportation of DOT hazardous materials as specified 

(e.g., loading, preparation for transportation, operation of a transportation vehicle). The training 

must cover general awareness/familiarization, function-specific training, safety, security awareness, 

and in-depth security. In particular, the safety training must include emergency response information 

(i.e., information that can be used in the mitigation of an incident involving hazardous materials, 

such as health hazards, risks of fire/explosions, methods for handling fires/spills). (49 CFR 172, 

Subpart H) 

Generators under the TBE that employ 

hazmat employees must train them on a 

recurrent basis as required by 49 CFR 

Part 172, Subpart H. The training must 

address function-specific, safety and 

emergency response topics, among other 

things. These topics are generally 

comparable to the topics required by the 

HWRs for LQG and SQG training as 

they pertain to transportation-related 

activities.

Generators whose employees are not 

involved in transportation activities 

(e.g., because they do not make off-site 

shipments, contractors are used to 

prepare/transport the material, or the 

material is not DOT hazardous material) 

would not qualify as hazmat employees 

and not receive such training.
A-54

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

OSH Act (Process Safety Management): A generator that has a process (e.g., use, storage, handling) 

which involves a “highly hazardous chemical” at or above specified quantity must provide initial and 

refresher training of personnel involved in operating a process (e.g., job-related operating 

procedures, health hazards, emergency operations, evacuations). (29 CFR 1910.119)

The Process Safety Management 

provisions require initial and refresher 

training on topics related to job-related 

operations and emergencies. These 

topics are generally comparable to the 

topics required by the HWRs for LQG 

and SQG training.

A generator must comply with the 

Process Safety Management provisions 

if it meets the specified applicability 

criteria (e.g., a generator that 

accumulates a highly hazardous 

chemical onsite above its threshold 

quantity).
A-55

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

OSH Act (Hazardous Waste Operations and Emergency Response 

(HAZWOPER)): Generators must have an emergency response 

program if it is required by EPA or state to have its employees 

engage in emergency response or if it directs its employees to 

engage in emergency response. The program must include training 

on emergency response (e.g., elements of the response plan, 

standard operating procedures, and procedures for handling 

emergency incidents). These provisions apply to hazardous waste 

generators and TSDFs only. (29 CFR 1910.120(p)(8))

29 CFR 1910.120(p)(8) does 

not apply to sites that are not 

hazardous waste generators or 

TSDFs.

Under the TBE, generators that do not 

otherwise qualify as a hazardous waste 

generator would not be subject to 29 

CFR 1910.120(p)(8). 29 CFR 

1910.120(p)(8) applies only to hazardous 

waste generators and TSDFs. 

On the other hand, generators under the 

exclusion that continue to be LQGs or 

SQGs under the HWRs would be subject 

to 29 CFR 1910.120(p)(8). Some of the 

training topics under the 29 CFR 

1910.120(p)(8) could be relevant to the 

excluded material. These provisions 

require training on operating and 

emergency procedures. These topics are 

generally comparable to the topics 

required by the HWRs for SQG training. 

However, these provisions do not require 

recurrent training, as do the HWRs for 

LQG training. Therefore, they are not 

comparable to the HWRs for LQG 

training.
A-56

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)): A facility is 

required to establish an emergency response program if it has employees who are responsible for 

emergency response operations for releases of, or substantial threats of releases of, hazardous 

substances (including hazardous waste) without regard to the location of the hazard (e.g., anywhere 

at the facility). The facility’s program must provide initial and recurrent training as relevant to 

personnel responsibilities (e.g., first responder, on scene incident commander). This includes, for 

example, hazard detection, responsibilities for emergency response, and safety. (29 CFR 

1910.120(q))

The HAZWOPER regulations require 

initial and recurrent training on hazard 

detection, emergency response, and 

safety, among other things. These topics 

are comparable to the topics required by 

the HWRs for LQG and SQG training, as 

it relates specifically to emergency 

response personnel. A generator must 

comply with the HAZWOPER

regulations if it meets the specified 

applicability criteria (e.g., a generator 

that has employees responsible for 

responding to on-site releases regardless 

of location).
A-57

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)
A-58

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

OSH Act (Hazard Communication): Employers must provide information to their employees about 

any chemical which is a physical or health hazard to which they are exposed, by means of a hazard 

communication program, labels and other forms of warning, material safety data sheets, and 

information and training. Employees must be informed of operations in their work area where 

hazardous chemicals are present, among other things. Employee training must include methods and 

observations for detecting releases, hazards in the work area, and measures employees can take to 

protect themselves (e.g., emergency procedures). (29 CFR 1910.1200)

The Hazard Communication Standard 

(HazCom) requires familiarization and 

training on emergency recognition, 

hazards, and protective measures, which 

is comparable to the topics of HWR 

training for SQGs. However, they are 

somewhat less rigorous than the HWR 

training requirements for LQGs. There 

is no schedule for follow-up training 

under HazCom. Therefore, HazCom 

training is not comparable to the HWRs 

for LQG training. 

A generator must comply with these 

regulations for any chemicals which 

could pose a physical or health hazard in 

the work place, except for hazardous 

waste. Generators would be subject to 

these requirements for their excluded 

materials, as well as other chemicals that 

are not hazardous waste (e.g., chemical 

products).
A-59

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

7. Reporting and Recordkeeping

HWRs: Reporting to EPA on waste management activities:

 Notification (40 CFR 262.12)

 Biennial report for LQGs only (40 CFR 262.41)

 Exception report (40 CFR 262.42)

HWRs: Recordkeeping for three years (40 CFR 262.40)

TBE: Reporting on HSM

activities:

 Initial and biennial 

notifications (40 CFR 

260.42)

 Records of reasonable 

efforts if requested (40 

CFR 261.4(a)(24)(v)(C))

TBE: Recordkeeping for three 

years:

 Records of reasonable 

efforts (40 CFR 

261.4(a)(24)(v)(C))

 Records of off-site 

shipments and 

confirmations of receipt 

(40 CFR 

261.4(a)(24)(v)(D) and 

(E))

The HWRs and TBE have comparable 

requirements for initial and biennial 

submittals in regard to frequency and 

types of information submitted. 

However, the TBE biennial notification 

requirement applies to generators 

regardless of size. The HWRs’ biennial 

reporting requirement applies only to 

LQGs. 

The TBE does not require exception 

reporting or recordkeeping.

The TBE includes records of reasonable 

efforts performed by the generator to 

ensure that reclamation is legitimate and 

the excluded material will be managed in 

a protective manner. This is not required 

by the HWRs.
A-60

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

8. Off-site Transportation

HWRs: Shipments must be manifested (40 CFR 262, Subpart B) 

and comply with DOT requirements for packing, labeling,

marking, and placarding. (40 CFR 262.30-.33)

TBE: Recordkeeping of offsite shipments and 

confirmations of receipt (40 

CFR 261.4(a)(24)(v)(D)) and 

compliance with DOT packing 

requirements (40 CFR 

261.4(a)(24)(ii))

The HWRs and TBE are comparable in 

regard to packing requirements and 

tracking of shipments from generator to 

reclaimer. Refer to “Other Federal 

Regulations” below for an additional 

discussion.

Other Federal Regulations:

HMTA: A generator would be subject to regulations under the HMTA if it transported, or offered for 

transportation, a DOT hazardous material, i.e., a material that: (1) is listed in the Table in 49 CFR 

172.101 (e.g., compounds), (2) is listed in the Appendices to the Table in 49 CFR172.101, or (3) 

meets one or more of the hazard classifications (e.g., flammable liquid). 

RCRA hazardous wastes are DOT hazardous materials because they are listed in 49 CFR Part 172. 

A HSM excluded from the definition of solid waste is neither a solid nor hazardous waste; therefore, 

it would not qualify as a DOT hazardous material on the basis of being a hazardous waste. Rather, 

an excluded material would qualify as a DOT hazardous material if it is otherwise listed in 49 CFR 

Part 172 (e.g., as a compound or element) or meets a hazard classification. It is possible that some 

excluded materials will not qualify as a DOT hazardous material. This includes a HSM that is not 

listed and does not meet any hazard class. 

Shipments of DOT hazardous materials (including hazardous waste) must comply with applicable 

transportation provisions. This includes, for example, the regulations for shipping papers (or 

manifest), packing, labeling, marking, and placarding (49 CFR Parts 171-180), as well as 

requirements for driving and parking (49 CFR Part 397).

Excluded materials under the TBE that 

qualify as a DOT hazardous material 

would be subject to transportation 

requirements comparable to hazardous 

waste. (See the above requirement for 

off-site tracking.) 

Note that some excluded materials may 

not qualify as a DOT hazardous material. 

They would not need to be transported in 

accordance with the regulations under 

the HMTA.
A-61

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and

Generators of Hazardous Secondary Materials under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW Transfer-Based 

Exclusion (TBE) and Other 

Federal Regulations: 

Hazardous Secondary 

Material (HSM) Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators (LQGs) Small Quantity 

Generators (SQGs)

9. Exports

HWRs: Reporting under 40 CFR Part 262, Subpart E or H:

 Perform notice and consent

 Submit annual report

 Keep records

TBE: Reporting under 40 CFR 

261.4(a)(25):

 Perform notice and 

consent

 Submit annual report

 Keep records

The HWRs and TBE include comparable 

requirements for notice and consent, 

annual reporting, and recordkeeping for 

exports.

11. Enforcement and Compliance

HWRs: EPA’s National Program 

Manager (NPM) Guidance for Fiscal 

Year 2010 provides that the EPA 

Regions and states must annually 

inspect at least 20% of the LQG 

universe, so that the entire universe is 

inspected in five years.

HWRs: No comparable 

guidance.

TBE: No comparable 

guidance.
A-62

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

1. Legitimate Recycling

HWRs: EPA has issued policy statements to clarify 

legitimate recycling (e.g., in Federal Register

notices). In addition, respondents in an 

enforcement action who raise a claim that a certain 

material is not a solid waste must demonstrate that 

there is a known market or disposition for the 

material and that they meet the terms of the 

exclusion or exemption, as specified. (40 CFR 

261.2(f))

TBE: Reclamation of the material must 

be legitimate, as specified at 40 

CFR260.43 (40 CFR 261.4(a)(24)(iv)). 

40 CFR 260.43 spells out the legitimacy 

criteria that must be met. Facility must 

perform reasonable efforts to ensure 

proper and legitimate recycling by 

reclaimer, as specified (40 CFR 

261.4(a)(24)(v)(B)).

EPA has set forth consistent criteria on legitimate 

recycling under the HWR and the current DSW 

exclusions. The current DSW exclusions codifies these 

criteria, which provides greater clarity and enforceability. 

In addition, a generator’s reasonable efforts under the 

TBE reinforce the criteria and encourage compliance by 

reclaimers.

2. Containment

HWRs: Facility must meet storage design and 

operating standards for hazardous waste 

management units (e.g., containment, inspections) 

(40 CFR Part 264, Subparts I-L and DD)

TBE: Facility must manage material in a 

manner that is at least as protective as that 

employed for analogous raw material and 

must be contained (40 CFR 

261.4(a)(24)(vi)(D))

Both the HWRs and TBE require containment of HSM in 

the unit. The HWRs prescribe design, operating, and 

other standards for containment, whereas the TBE does 

not. As such, the TBE allows greater flexibility in how 

HSMs can be managed and contained. This could result 

in more or less effective containment than the HWRs, 

depending on the containment methods used by facilities 

under the exclusion. In addition, prescriptive 

requirements may be more conducive to inspection and 

enforcement, which could help to prevent a release.
A-63

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

3. Air Emissions

HWRs: Facility must meet air emission standards 

for storage (40 CFR Part 264, Subparts AA-CC) 

and recycling (40 CFR Part 264, Subparts AA and 

BB)

TBE: Facility must manage material in a 

manner that is at least as protective as that 

employed for analogous raw material and 

must contained (40 CFR 

261.4(a)(24)(vi)(D))

Both the HWRs and TBE require containment of HSM in 

the unit. The HWRs prescribe design, operating, and 

other standards for containment, whereas the TBE does 

not. As such, the TBE allows greater flexibility in how 

HSMs can be managed and contained. This could result 

in more or less effective containment than the HWRs, 

depending on the containment methods used by facilities 

under the exclusion. In addition, see “Other Federal 

Regulations” below for additional discussion.
A-64

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

Other Federal Regulations:

CAA: The states and EPA issue operating permits to certain “major” stationary sources of 

hazardous air pollutants (HAPs) under 40 CFR Parts 70 and 71. A major source is a source that 

emits more than 10 tons per year (TPY) of any single HAP or more than 25 TPY of HAPs in 

total. A limited number of smaller sources (e.g., “area” sources) also may be required to obtain a 

permit under the federal program. 

In addition, EPA has established technical standards for the control of air emissions from 

stationary sources, which permit writers include in a permit to control emissions as appropriate. 

Some of these standards could address air emissions from process vents, equipment leaks, tanks,

and other units. Potentially applicable standards can be found in various parts of 40 CFR, such 

as: 

 Part 60: “Standards of Performance for New Stationary Sources (NSPS).” This part 

regulates emissions from stationary sources of criteria pollutants for which EPA has 

established National Ambient Air Quality Standards (NAAQS); and

 Part 63: “National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source 

Categories.” This part regulates emissions of hazardous air pollutants (HAPs) from source 

categories. 

These parts set forth design, operating, monitoring, testing, and/or recordkeeping standards, as 

specified.

The federal CAA permitting and technical standards could 

potentially address air emissions from process vents, 

equipment leaks, and/or storage units at some of the 

facilities operating under the TBE. These CAA standards 

include comparable types of controls as the HWRs, e.g., 

design, operating, and monitoring. However, the CAA 

permitting and technical standards under the federal 

program would not apply to facilities that:

 Have emissions below specified thresholds (e.g., emit 

less than 10 TPY of any single HAP or 25 TPY of 

HAPs in total); or

 Do not meet other applicability criteria (e.g., are not in 

a regulated industry).
A-65

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

4. Emergency Preparedness and Response

HWRs: Facilities must:

 Have emergency equipment (e.g., alarms, fire 

protection);

 Designate an emergency coordinator; and

 Have an emergency plan to address any release 

or other emergency, and emergency procedures 

for:

 Notifying on-site and off-site personnel;

 Controlling the emergency 

(e.g., identifying, assessing and containing 

the release); and

 Taking other actions if specified 

(e.g., ensuring proper management of 

recovered material). (40 CFR Part 264, 

Subpart C and D)

TBE: No comparable provisions. The TBE does not include provisions on emergency 

preparedness and response. However, materials under the 

TBE that are no longer contained in a unit (i.e., released) 

and not immediately recovered would no longer be 

excluded. They would need to be cleaned up and be 

subject to RCRA Subtitle C regulation if hazardous, 

including the HWR preparedness and response 

requirements, as applicable. 

In addition, see “Other Federal Regulations” below for 

additional discussion.
A-66

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

Other Federal Regulations:

CAA (Chemical Accident Prevention): A facility that is a stationary source that has more than a 

threshold quantity of a “regulated substance” in a process (e.g., storage) must develop and 

implement a risk management program, including a Risk Management Plan (RMP). Facilities 

with a process subject to Program 2 or 3 (e.g., a process that has had an accidental release within 

the past five years with off-site consequences as specified) must prepare an emergency response 

program that includes an emergency plan (e.g., procedures for notifying off-site parties, 

providing medical treatment, responding to an accidental release), emergency response 

equipment, and personnel training. 

However, a facility whose employees will not respond to the release need not prepare an 

emergency response program if it makes alternative arrangements. It must either be included in 

its community emergency response plan or coordinate response actions with the local fire 

department. There also must be a mechanism for notifying emergency responders. 

Note that the Chemical Accident Prevention provisions list 140 toxic and flammable regulated 

substances subject to regulation, with threshold quantities ranging from 500 to 20,000 pounds. 

(40 CFR Part 68.)

The Chemical Accident Prevention provisions for an 

emergency response program set forth generally 

comparable elements as the HWRs for facility 

preparedness and prevention (e.g., an emergency plan, 

emergency equipment, and coordination with off-site 

responders). 

The provisions for alternative arrangements are not 

comparable to the HWRs for facilities. They do not 

require emergency equipment, an emergency plan, or 

basic efforts by on-site personnel to control the 

emergency (e.g., extinguishing a fire).

Note that a facility would be subject to the Chemical 

Accident Prevention provisions if it has more than a 

threshold quantity of a 40 CFR Part 68-regulated 

substance in a process (e.g., storage). Only a subset of 

these facilities (e.g., those subject to Program 2 or 3) 

would be required to have an emergency response or 

evacuation plan.
A-67

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

CERCLA/EPCRA (Emergency Notification): 

 A facility must immediately notify the National Response Center (NRC) of a release of a 

CERCLA hazardous substance (including hazardous waste) equal to or exceeding its 

reportable quantity in any 24-hour period. (40 CFR Part 302)

 A facility must immediately notify the NRC and local/state officials of a release of a 

reportable quantity of any extremely hazardous substance (EHS) or CERCLA hazardous 

substance (including hazardous waste). (40 CFR Part 355)

These CERCLA/EPCRA provisions require notification 

to off-site personnel as do the HWRs. These notification 

provisions could effectively address some emergencies 

(e.g., if local responders respond immediately and control 

the emergency, such as local fire or hazmat personnel).

However, they do not require emergency equipment, onsite coordination, or basic efforts to control an emergency 

(e.g., containing and cleaning up the release). Therefore, 

these provisions are not comparable to the HWRs for 

preparedness and response.
A-68

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

CWA (Oil Pollution Prevention): A facility that is a “non-transportation-related facility” that 

could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in 

harmful quantities and that meets other applicability criteria must perform emergency planning 

and response for oil discharges, including a Spill Prevention, Control, and Countermeasure 

(SPCC) Plan. The SPCC Plan must address such elements as discharge prevention measures; 

countermeasures for discharge discovery, response, and cleanup; personnel responsibilities (e.g., 

for addressing discharges); and plans and procedures for responding to discharges. (40 CFR Part 

112) 

The SPCC requirements set forth generally comparable 

elements as the HWRs for emergency preparedness and 

response for oil discharges. This includes emergency 

equipment, personnel responsibilities for addressing 

discharges, training, and emergency plans/procedures 

(e.g., countermeasures for discharge response and 

cleanup, notification to off-site agencies/personnel).

 

A facility must prepare an SPCC Plan if it meets specified 

applicability criteria (e.g., a non-transportation-related 

facility with aboveground oil storage capacity of more 

than 1,320 gallons that could reasonably be expected to 

discharge petroleum-based solvents to navigable waters or 

adjoining shorelines in quantities that may be harmful). 

These criteria would not apply to certain types of facilities 

(e.g., facilities that are not near navigable waters, do not 

store oil-related substances, or meet minimum storage 

capacity thresholds). 
A-69

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

OSH Act (Process Safety Management): A facility that has a process (e.g., use, storage, 

handling) which involves a “highly hazardous chemical” at or above the specified quantity must 

have an evacuation plan for the entire plant addressing evacuation procedures, alarm systems, 

personnel responsibilities, evacuation training, off-site notification, and procedures to be 

followed by facility personnel who remain to operate critical equipment before evacuation. The 

facility also would need to handle small releases. Highly hazardous chemicals include toxic and 

reactive highly hazardous chemicals which present a potential for a catastrophic event at or 

above the threshold quantity. (29 CFR 1910.38 and 1910.119) 

The Process Safety Management (PSM) provisions 

require generally comparable elements as the HWRs for 

facility preparedness and response. The evacuation plan 

must include on-site response coordination, off-site 

notification, alarms, and handling of small releases. 

However, the PSM provisions are not generally 

comparable to the HWR requirements for facility 

preparedness and response. The PSM provisions do not 

require a plan for the facility to control/contain the 

emergency.

A facility must comply with these regulations if it meets 

the specified applicability criteria (e.g., if it accumulates a 

highly hazardous chemical onsite above its threshold 

quantity). 29 CFR 1910.119, Appendix A, lists 

approximately 140 toxic and reactive highly hazardous 

chemicals subject to regulation.
A-70

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

OSH Act (Hazardous Waste Operations and 

Emergency Response (HAZWOPER)): Permitted 

and interim-status TSDFs are required to have a 

safety and health program designed to identify, 

evaluate and control safety and health hazards for 

the purpose of employee protection, to provide for 

emergency response, and to address other elements 

as specified (e.g., material handling program, 

training). It also must have an emergency response 

program, including the development of an 

emergency response plan (e.g., personnel roles, 

emergency alerting and response, emergency 

equipment), training for emergency response 

employees, and procedures for handling emergency 

incidents (e.g., alarms). (29 CFR 1910.120(p))

Facilities must have an emergency response 

program if it is required by EPA or state to have its 

employees engage in emergency response or if it 

directs its employees to engage in emergency 

response. The program must include an emergency 

response plan (e.g., personnel roles, coordination 

with outside parties, emergency alerting and 

response, emergency equipment), training for 

emergency response employees, and procedures for 

handling emergency incidents (e.g., alarms). These 

provisions apply to hazardous waste generators and 

TSDFs only. These provisions are not applicable if 

29 CFR 1910.120(p) does not apply to 

sites that are not permitted or interimstatus TSDFs.

Under the TBE, facilities that do not otherwise qualify as 

a permitted or interim-status TSDF would not be subject 

to 29 CFR 1910.120(p). However, some facilities under 

the exclusion may nonetheless be subject to a permit or 

interim status because of their management of hazardous 

waste and be subject to 29 CFR 1910.120(p). Portions of 

the emergency response program under 29 CFR 

1910.120(p) could apply to excluded materials at such a 

site (e.g., availability of emergency response equipment, 

such as absorbent, if needed). 

Note that the emergency response requirements under 29 

CFR 1910.120(p) are comparable to the requirements at 

29 CFR 1910.120(q), which are presented below. 
A-71

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

all workers are evacuated. (29 CFR 

1910.120(p)(8))

OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)): A facility is 

required to establish an emergency response program if it has employees who are responsible for 

emergency response operations for releases of, or substantial threats of releases of, hazardous 

substances (including hazardous waste) without regard to the location of the hazard (e.g., 

anywhere at the facility), such as designated response employees. The program must include an 

emergency response plan (e.g., personnel roles, emergency equipment, and coordination with 

outside parties, emergency alerting and response), training for emergency response employees, 

and procedures for handling emergency incidents. (29 CFR 1910.120(q))

If the facility will evacuate employees and will not allow employees to assist in response, it need 

not prepare an emergency response plan. It must prepare an evacuation plan for the entire plant. 

The plan must address evacuation procedures, alarm systems, personnel responsibilities, 

evacuation training, off-site notification, and procedures to be followed by facility personnel 

who remain to operate critical equipment before evacuation. (29 CFR 1910.38 and 1910.120(q))

The HAZWOPER regulations require generally 

comparable elements as the HWRs for preparedness and 

response. This includes, for example, an emergency 

response plan, emergency equipment, and on-site

coordination of emergency responses. However, the 

evacuation plan is not comparable to the HWR 

requirements. The plan does not include sufficient 

procedures for the facility to address (e.g., control) 

emergency.

Note that 29 CFR 1910.120(q) would not apply to 

facilities under the TBE unless they have on-site response 

personnel, as specified. 

OSH Act (Hazard Communication): Facilities must provide information to their employees 

about any chemical (except hazardous waste) which is a physical or health hazard to which they 

are exposed, by means of a hazard communication program, labels and other forms of warning, 

material safety data sheets, and information and training (e.g., hazards detection, emergency 

procedures). Hazardous wastes are exempt from these provisions. (29 CFR 1910.1200).

A facility under the TBE would be subject to the Hazard 

Communication Standard (HazCom) for any excluded 

material and other chemicals that pose a physical or health 

hazard. (A TSDF managing hazardous waste would not

be subject to 29 CFR 1910.1200 for its hazardous waste, 

but for non-waste chemicals.)

However, the HazCom provisions do not require 

emergency equipment, coordination with off-site 

personnel, or basic actions to control an emergency. 

Rather, they require information sharing and training. As 
A-72

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

such, these provisions are not comparable to the HWR 

requirements for preparedness and response.

5. Security

HWRs: Prevention of unauthorized entry. (40 CFR 

264.14)

TBE: No comparable provisions. Facilities under the TBE would not be required to prevent 

unauthorized entry, as is the case under the HWRs.

6. Personnel Training

HWRs: Personnel training on emergency response 

and job duties must be conducted. At a minimum, 

this must include training on emergency 

procedures. Facilities must provide recurrent 

training. (40 CFR 264.16)

TBE: No comparable provisions. The TBE does not include provisions on personnel 

training. However, some facilities under the exclusion 

may nonetheless be subject to a permit or interim-status 

standards because of their hazardous waste management 

activities. Portions of the HWR personnel training may 

be relevant to handling the excluded materials (e.g., 

familiarization on chemical hazards). In addition, see 

“Other Federal Regulations” below for additional 

discussion.
A-73

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

Other Federal Regulations:

CAA (Chemical Accident Prevention): A facility that is a stationary source that has more than a 

threshold quantity of a “regulated substance” in a process (e.g., storage) must develop and 

implement a risk management program, including a Risk Management Plan (RMP). 

Facilities with a process eligible for Program 1 (e.g., has not had accidental release of a regulated 

substance within the past five years with off-site consequences as specified) are not required to 

provide training. Facilities with a process subject to Program 2 or 3 (e.g., has had accidental 

release of a regulated substance from a process within the past five years with off-site 

consequences as specified) must provide recurring personnel training on operations and 

emergency procedures. (40 CFR Part 68)

The Chemical Accident Prevention provisions require 

facilities in Program 2 and 3 to provide recurring 

personnel training on job operations and emergency 

procedures. These topics are generally comparable to 

those required by the HWRs for facility training. 

A facility would be subject to the Chemical Accident 

Prevention provisions if it has more than a threshold 

quantity of a 40 CFR Part 68-regulated substance in a 

process (e.g., storage). Note that only a subset of these 

facilities would need to provide training (i.e., facilities in 

Program 1 are exempt from training requirements). Note 

that 40 CFR Part 68 lists 140 toxic and flammable 

regulated substances, with threshold quantities ranging 

from 500 to 20,000 pounds.
A-74

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

CWA (Oil Pollution Prevention): A facility that is a “non-transportation-related facility” that 

could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in 

harmful quantities and that meets other applicability criteria must perform emergency planning 

and response for oil discharges, including a Spill Prevention, Control, and Countermeasure 

(SPCC) Plan. The Plan must provide for personnel training on topics such as operation and 

maintenance of facility and equipment to prevent discharges, discharge procedure protocols, and 

elements of the Plan. (40 CFR Part 112) 

A facility’s SPCC Plan would address comparable topics 

as the HWRs for ongoing personnel training for oil. This 

includes operation and maintenance of the facility and 

equipment, discharge procedures, and how to carry out the 

SPCC Plan. 

A facility must prepare an SPCC Plan if it meets the 

specified applicability criteria (e.g., a non-transportationrelated facility with aboveground oil storage capacity of 

more than 1,320 gallons that could reasonably be 

expected to discharge petroleum-based solvents to 

navigable waters or adjoining shorelines in quantities that 

may be harmful).

OSH Act (Process Safety Management): A facility that has a process (e.g., use, storage, 

handling) which involves a “highly hazardous chemical” at or above the specified quantity must 

provide initial and refresher training of personnel involved in operating a process (e.g., jobrelated operating procedures, health hazards, emergency operations, evacuations). (29 CFR 

1910.119)

The PSM provisions require initial and refresher training 

on topics related to job-related operations and 

emergencies. These topics are generally comparable to 

the topics required by the HWRs for LQG and SQG 

training.

A facility must comply with these regulations if it meets 

the specified applicability criteria (e.g., a facility that 

accumulates a highly hazardous chemical onsite above its 

threshold quantity).
A-75

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

OSH Act (Hazardous Waste Operations and 

Emergency Response (HAZWOPER)): Facilities 

must have an emergency response program if it is 

required by EPA or state to have its employees 

engage in emergency response or if it directs its 

employees to engage in emergency response. The 

program must include, among other things, training 

on job duties and emergency response (e.g., 

elements of the response plan, procedures for 

handling emergency incidents). Training on job 

duties must be recurrent training. These provisions 

apply to hazardous waste TSDFs only. (29 CFR 

1910.120(p))

29 CFR 1910.120(p) does not apply to 

facilities that are not hazardous waste 

TSDFs.

Facilities that are not subject to a permit or interim status 

would not be subject to 29 CFR 1910.120(p)(8). 

However, facilities under the exclusion may continue to 

manage hazardous waste under a permit or interim status 

and be subject to 29 CFR 1910.120(p). Some of the 

training topics under the 29 CFR 1910.120(p) could be 

relevant to the excluded material. These provisions 

require training on job duties and emergency procedures. 

These topics are generally comparable to the topics 

required by the HWRs. However, these provisions do not 

require recurrent training on emergency response, as do 

the HWRs for facilities. Therefore, they are not 

comparable to the HWR training requirements.

OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)): A facility is 

required to establish an emergency response program if it has employees who are responsible for 

emergency response operations for releases of, or substantial threats of releases of, hazardous 

substances (including hazardous waste) without regard to the location of the hazard (e.g., 

anywhere at the facility). The facility’s program must provide initial and recurrent training as 

relevant to personnel responsibilities (e.g., first responder, on scene incident commander). This 

includes, for example, hazard detection, responsibilities for emergency response, and safety. (29 

CFR 1910.120(q))

The HAZWOPER regulations require initial and recurrent 

training on hazard detection, emergency response, and 

safety, among other things. These topics are comparable 

to the topics required by the HWRs for facilities, as it 

relates specifically to emergency response personnel. A 

facility must comply with these regulations if it meets the 

specified applicability criteria (e.g., a facility that has 

employees responsible for responding to on-site releases 

regardless of location).
A-76

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

OSH Act (Hazard Communication): Employers must provide information to their employees 

about any chemical which is a physical or health hazard to which they are exposed, by means of 

a hazard communication program, labels and other forms of warning, material safety data sheets, 

and information and training. Employees must be informed of operations in their work area 

where hazardous chemicals are present, among other things. Employee training must include 

methods and observations for detecting releases, hazards in the work area, and measures 

employees can take to protect themselves (e.g., emergency procedures). (29 CFR 1910.1200)

The Hazard Communication Standard (HazCom) requires 

familiarization and training on emergency recognition, 

hazards, and protective measures. These provisions less 

rigorous than the HWR training requirements for 

facilities. There is no schedule for follow-up training 

under HazCom. Therefore, HazCom training is not 

comparable to the HWR training requirements.

A facility must comply with these regulations for any 

chemicals which could pose a physical or health hazard in 

the work place, except for hazardous waste. Facilities 

under the TBE would be subject to these requirements for 

their excluded materials, as well as other chemicals that 

are not hazardous waste (e.g., chemical products).
A-77

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

7. Reporting and Recordkeeping

HWRs: Reporting to EPA:

 Notification (40 CFR 264.11)

 Biennial report (40 CFR 264.75)

 Manifesting reports (40 CFR 264.72 and 

264.76)

HWRs: Operating record (40 CFR 264.73)

TBE: Initial and biennial notification 

(40 CFR 260.42) and recordkeeping of all 

shipments received onsite and received 

onsite and sent offsite. (40 CFR 

261.4(a)(24)(vi)(A))

The HWR and TBE have comparable requirements for 

initial and biennial submittals in regard to frequency and 

types of information submitted. 

The TBE does not require recordkeeping comparable to 

an operating record.

8. Financial Assurance

HWRs: Financial assurance must be obtained. (40 

CFR Part 264, Subpart H)

TBE: Financial assurance must be 

obtained. (40 CFR 261.4(a)(24)(vi)(F))

The HWR and TBE include comparable requirements for 

financial assurance.
A-78

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

10. Requirement for a Permit

HWRs: RCRA permit is required for storage. (40 

CFR Part 270)

TBE: Facility must either obtain RCRA 

permit and manage HSMs in the 

permitted units (40 CFR Part 270) or must 

comply with TBE conditions and pass an 

audit by the generator, who makes 

reasonable efforts to ensure their HSM

will be safely and legitimately managed. 

(40 CFR 261.4(a)(24)(v)(B))

The RCRA permit and TBE share some key similarities 

and differences, e.g.:

Similarities

 RCRA permit and TBE impose requirements on 

facilities to ensure protective operation (e.g., RCRA 

permit conditions, TBE conditions);

 RCRA permit and TBE rely on similar processes for 

compliance assurance (e.g., state inspections and 

reviews of facility submittals). Whereas a state may 

inspect TSDFs more often than TBE facilities, the TBE 

requires generator audits to supplement state’s 

compliance oversight and assure compliance.

 RCRA permit and TBE both require financial

assurance for closure and sudden and non-sudden 

occurrences.

Differences

 RCRA permit can be revoked or denied to prevent 

facility operation. Under the TBE, generator audit 

does not result in denial of ability to operate. Rather, 

generators must not send materials to a facility that 

fails an audit, essentially denying it the ability to 

manage the materials under the exclusion.

 States have lead role in administering the RCRA 

permitting and enforcement process. Under the TBE, 
A-79

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

states and generators both have lead roles to evaluate 

facility compliance. 
A-80

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

11. Public Involvement in Permit Process

HWRs: Facility must undergo RCRA permitting 

process, which includes public involvement 

(e.g., public notice and comment for draft permit 

decision; public hearing if requested). (40 CFR 

Part 270 and 124)

TBE: Facility must either undergo RCRA 

permitting process, including public 

involvement, or be subject to generator 

audits. Generator audits do not involve 

the general public.

The TBE is not comparable to the HWRs for public 

involvement. Under the HWRs, a facility must obtain a 

permit to store HSMs. The RCRA permitting process 

includes public involvement. Under the TBE, a permit is 

not needed for storage of excluded materials. As a result, 

the facility could operate and store the materials under the 

TBE without public involvement. 

In addition, see “Other Federal Regulations” below for 

additional discussion.

Other Federal Regulations:

Facilities managing HSMs may be subject to other permitting programs that include public 

involvement. Examples include the Clean Air Act (CAA) operating permitting program and 

Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permitting 

program.

Facilities under the TBE may be subject to the CAA, 

NPDES, and/or other permitting programs. If so, the 

public may have an opportunity to comment on aspects of 

their draft permit that relate to management of the 

excluded material. For example, a draft CAA operating 

permit may include requirements related to the control of 

air emissions from storage tanks holding excluded 

materials. The public could comment on these aspects of 

the proposed permit.
A-81

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material 

Intermediate and Reclamation Facilities under the DSW Transfer-Based Exclusion

Hazardous Waste Regulations (HWRs) and 

Other Federal Regulations: Hazardous Waste 

Storage Facilities

DSW Transfer-Based Exclusion (TBE) 

and Other Federal Regulations: 

Hazardous Secondary Material (HSM) 

Intermediate and Reclamation 

Facilities

Notes (e.g., issues regarding applicability, comments 

on comparability)

12. EPA/State Oversight and Enforcement

HWRs: RCRA section 3007(c) requires annual 

inspections of federal TSDFs. RCRA section 

3007(d) requires annual inspections of state and 

local TSDFs. RCRA section 3007(e) requires that 

other TSDFs be inspected no less than every two

years.

EPA’s National Program Manager (NPM) 

Guidance for Fiscal Year 2010 establishes 

performance expectations and activities related to 

the TSDF universe for the EPA Regions and states:

 Inspect at least once every two years each 

operating TSDF; and

 Annually inspect each TSDF operated by states 

or local governments (for Regions only).

The HWRs include prescriptive standards for 

facilities, including the requirement for a permit, 

which could facilitate inspections and enforcement 

actions. 

TBE: For RCRA-permitted facilities, 

requirements would be the same. 

For unpermitted DSW facilities, no 

comparable requirements.

The TBE does not include prescriptive 

standards, but performance based 

requirements. 

It may be more difficult for regulators and facilities to 

inspect for compliance under the TBE because it does not 

spell out prescriptive standards. This differs from the 

HWRs, which lay out prescriptive standards.
82

5. Summary of Federal Regulations

This section summarizes the federal regulations that are compared and discussed in this 

Appendix. These include the following:

5.1 Resource Conservation and Recovery Act (RCRA) Hazardous Waste Regulations

5.1.1 Hazardous Waste Generator Standards

5.1.2 Hazardous Waste Storage Standards

5.2 Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste 

(DSW) Exclusions

5.2.1 Generator-Controlled Exclusion

5.2.2 Transfer-Based Exclusion

5.3 Clean Air Act (CAA)

5.3.1 CAA Title V Air Quality Permitting Process

5.3.2 CAA Standards for Area Sources Not Subject to Title V Permit

5.3.3 Chemical Accident Prevention Provisions

5.4 Clean Water Act (CWA) – Oil Pollution Prevention

5.5 Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA) – Release Notification

5.6 Emergency Planning and Community Right-to-Know Act (EPCRA) – Release 

Notification

5.7 Hazardous Materials Transportation Act of 1975 (HMTA) 

5.7.1 Overview and Applicability

5.7.2 Hazardous Materials Regulations

5.7.3 Transportation of Hazardous Materials; Driving and Parking Rules

5.8 Occupational Safety and Health Act (OSH Act) 

5.8.1 Process Safety Management of Highly Hazardous Chemicals

5.8.2 Hazardous Waste Operations and Emergency Response

5.8.3 Hazard Communication
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5.1 Resource Conservation and Recovery Act (RCRA) Hazardous Waste 

Regulations

Subtitle C of the Resource Conservation and Recovery Act (RCRA), as amended, authorizes 

EPA to develop and implement a national hazardous waste regulatory program. EPA has

established hazardous regulations at 40 CFR Parts 260 through 279. Following is a summary of 

some of the regulations applicable to hazardous waste generators and storage facilities.

5.1.1 Hazardous Waste Generator Standards (40 CFR Part 262)

A hazardous waste generator is any person, by site, whose act or process produces hazardous 

waste or whose act first causes a hazardous waste to become subject to regulation. Generators 

are divided into three categories based on the quantity of waste they produce during the month:

 A large quantity generator (LQG) is a site that generates 1,000 kilogram (kg) or more of 

hazardous waste in a calendar month, more than 1 kg of acute hazardous waste in a 

calendar month, or more than 100 kg of any residue, soil, waste or other debris resulting 

from the cleanup of any acute hazardous waste. (261.5(e) and 262.34(a))

 A small quantity generator (SQG) is a site that generates greater than 100 kg but less than 

1,000 kg of hazardous waste in a calendar month. (262.34(d))

 A conditionally exempt small quantity generator (CESQG) is a site that generates 100 kg 

or less of hazardous waste in a calendar month, 1 kg or less of acute hazardous waste in a 

calendar month, or 100 kg or less of any residue, soil, waste or other debris resulting 

from the cleanup of any acute hazardous waste. (261.5(a))

LQGs and SQGs must comply with the standards of 40 CFR Part 262, as applicable. Following 

is a summary of some of the generator standards.

Legitimate Recycling

EPA has issued policy statements to clarify legitimate recycling under the RCRA hazardous 

waste program. In particular, EPA issued a memorandum on April 26, 1989, that consolidated 

preamble statements concerning legitimate recycling that had been articulated previously into a 

list of criteria to be considered in evaluating legitimacy [OSWER Directive 9441.1989(19)]. 

This memorandum has been a primary source of guidance for the regulated community and for 

implementing agencies in distinguishing between legitimate and sham recycling.

As explained in the memorandum, a legitimacy determination involves evaluating case-specific 

information to determine whether or not a secondary material being recycled is in effect being 

used as a commodity, rather than as a waste. The memorandum identified six criteria to be 

considered in evaluating this fundamental question, explaining that each recycling scenario is 

likely to require a case-specific evaluation. The memorandum further explained that, depending 

on the case-specific facts and circumstances, certain criteria may weigh more heavily than others 

in making legitimacy determinations. 

In addition, 40 CFR 261.2(f) provides that respondents in an enforcement action who raise a 

claim that a certain material is not a solid waste must demonstrate that there is a known market 

or disposition for the material and that they meet the terms of the exclusion or exemption, as 

specified. 
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Storage Time Limit

Generators must comply with the storage time limits at 40 CFR 262.34, as specified:

 LQGs may accumulate hazardous waste onsite for 90 days or less without a permit or 

interim status, provided that specified standards are met. (262.34(a))

 SQGs may accumulate hazardous waste onsite for 180 days or less without a permit or 

interim status, provided that the quantity of waste accumulated onsite never exceeds 

6,000 kg and other standards are met, as specified. If the SQG’s waste must be 

transported 200 miles or more for off-site treatment, storage, or disposal, it may 

accumulate the hazardous waste onsite for 270 days or less without a permit or interim 

status, provided that specified standards are met. (262.34(d) and (e))

Containment

40 CFR 262.34(a) and (d) provide that LQGs and SQGs may accumulate their hazardous waste 

in containers and tanks in accordance with 40 CFR Part 265, Subparts I and J, respectively. In 

addition, LQGs may accumulate their hazardous waste in containment buildings in accordance 

with 40 CFR Part 265, Subpart DD. The purpose of these standards is to contain the waste in the 

unit, among other things. Section 5.2 of this Appendix gives examples of some of these 

standards.

Air Emission Standards

40 CFR 262.34(a) requires LQGs to comply with the air emission standards for containers and 

tanks at 40 CFR Part 265, Subparts AA, BB, and CC, as applicable. SQGs are not subject to 

these subparts. Section 5.2 of this Appendix summarizes the Subpart AA through CC 

requirements.

Emergency Preparedness and Response

Emergency Equipment. 40 CFR 262.34(a) and (d) require LQGs and SQGs to comply with the 

preparedness and prevention requirements of 40 CFR Part 265, Subpart C. Subpart C requires 

that they be equipped with, test, and maintain emergency equipment, including internal and 

external communications and alarm systems, fire control equipment, and water, if needed for the 

hazards posed by waste handled at the facility.

Emergency Plan and Response. 40 CFR 262.34(a) requires LQGs to comply with the 

contingency plan and emergency procedures of 40 CFR Part 265, Subpart D. Subpart D requires 

that they designate an emergency coordinator and have a contingency plan designed to minimize 

hazards to human health or the environment from fires, explosions, or any unplanned sudden or 

non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface 

water. The emergency coordinator must carry out the following procedures whenever there is a 

fire, release, and explosion:

 Notify on-site and off-site personnel/agencies as specified;

 Identify, assess, and control releases, fires or explosions and related hazards;

 Take other actions as specified (e.g., ensure treatment, storage, or disposal of recovered 

waste).
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40 CFR 262.34(d) requires SQGs to designate an emergency coordinator and post emergency 

information next to the telephone (e.g., location of fire extinguisher). In the event of a fire, 

explosion or other release, the emergency coordinator must notify appropriate off-site 

personnel/agencies and control/cleanup to the fire, release or other emergency (e.g., contain the 

flow of hazardous waste).

Personnel Training

40 CFR 262.34(a) requires LQGs to comply with the personnel training requirements of 40 CFR 

265.16. LQGs must provide initial training and annual review, which teach facility personnel to 

perform their duties in a way that ensures the facility’s compliance with applicable RCRA 

requirements. It must ensure, at a minimum, that personnel are able to respond effectively to 

emergencies. Specified records must be kept.

40 CFR 262.34(d) requires SQGs to ensure that all employees are thoroughly familiar with 

proper waste handling and emergency procedures relevant to their responsibilities during normal 

facility operations and emergencies.

Reporting and Recordkeeping

Notification. Under 40 CFR 262.12, a generator must not treat, store, dispose of, transport, or 

offer for transportation, hazardous waste without having received an EPA identification (ID)

number from EPA. The generator may obtain an ID number by submitting a RCRA Subtitle C 

Site Identification Form (EPA Form 8700-12) to EPA.

Biennial Report. 40 CFR 262.41 requires LQGs to prepare and submit a Biennial Report to 

EPA by March 1 of each even numbered year. The Biennial Report must be submitted on EPA 

Form 8700–13A/B and include information about the generator, hazardous wastes generated, onsite management, and off-site shipments. SQGs are not required to submit a Biennial Report.

Exception Report. Under 40 CFR 262.42, a generator must submit an Exception Report to EPA 

if has not received a copy of the manifest from the designated facility within 45 days (for LQGs) 

or 60 days (for SQGs) of the date the waste was accepted by the initial transporter. The 

Exception Report must explain the generator’s efforts to locate the waste and the results of those 

efforts. 

Recordkeeping. 40 CFR 262.40 requires generators to retain the following documents for three 

years:

 Manifests;

 Biennial Report (LQGs only); and

 Results of waste analyses, tests, and other determinations.

Off-Site Transportation

Manifest System. Under 40 CFR Part 262, Subpart B, generators must prepare a hazardous 

waste manifest for all off-site shipments, give it to initial the transporter, and retain a copy. The 

transporter must ensure that the manifest accompanies the shipment to the designated facility and 

retain a copy. The designated facility must note discrepancies, retain a copy and send a copy 

back to the generator to confirm receipt.
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U.S. Department of Transportation (DOT) Requirements. 40 CFR 262.30 through 262.33 

require generators to comply with the following DOT requirements for the waste before it is 

transported offsite:

 Packaging requirements at 49 CFR Parts 173, 178, and 179; and

 Labeling, marking, and placarding requirements at 49 CFR Part 172.

Exports

Under 40 CFR Part 262, Subparts E and H, a primary exporter must provide notice to EPA of its 

intent to export hazardous waste. The shipment cannot take place until the receiving country 

consents (e.g., tacit or written) to the shipment. The primary exporter must comply with the 

requirements for use of a tracking document (e.g., manifest), as specified. In addition, exports to 

countries in the Organization for Economic Cooperation and Development (OECD) must occur 

under the conditions of a contract, as specified. The primary exporter must file an annual report 

by March 1 of each year to EPA, summarizing the types, quantities, frequency, and ultimate 

disposition of all hazardous waste exported. The primary exporter must keep a copy of specified 

documents (e.g., each notification, annual report). 

Enforcement and Compliance

EPA’s National Program Manager (NPM) Guidance for Fiscal Year 2010 establishes

performance expectations and activities related to the LQG universe for the EPA Regions and 

states. It requires that they annually inspect at least 20% of the LQG universe, so that the entire 

universe is inspected in five years unless approval to deviate from this requirement is approved.51 

5.1.2 Hazardous Waste Storage Standards (40 CFR Parts 264 and 265)

A facility that treats, stores of disposes of hazardous waste must comply with the technical 

requirements of 40 CFR Part 264 or 265. Part 264 establishes requirements for treatment, 

storage or disposal facilities (TSDFs) that have received a RCRA permit under Part 270. Part 

265 establishes requirements for TSDFs that are under interim status until either a RCRA permit 

is issued or closure and post-closure responsibilities are fulfilled. Following is a summary of 

some of the requirements applicable to facilities that store hazardous waste.

Legitimate Recycling

Section 5.1.1 of this Appendix summarizes the requirements and policy related to the legitimate 

recycling of hazardous waste.

Containment

Facilities must store their hazardous waste in containers, tanks, surface impoundments, waste 

piles, or containment buildings in accordance with 40 CFR Part 264 or 265, Subparts I, J, K, L, 

or DD, respectively. The purpose of these standards is to contain the waste, among other things. 

Following are examples of standards for the design, operation, inspection, and closure/postclosure of these units.

Design Standards 

 

51 “FY 2010 Office of Enforcement and Compliance Assurance (OECA) National Program Manager (NPM) 

Guidance April 23, 2009.” See page 44.
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 Liners and leachate collection and removal systems

 Air emission controls

 Other control measures (e.g., dikes, run-on/run-off systems)

Operating Standards 

 Controls and practices to prevent spills and overflows (e.g., maintenance of sufficient 

freeboard in uncovered tanks)

 Controls to prevent wind dispersal of particulate matter

 Special procedures for storing ignitable, reactive waste, and incompatible waste (e.g., 

waste segregation)

Monitoring and Inspection Standards 

 Periodic inspections to detect leaks and ensure the unit is in good working order (e.g., 

at least weekly for containers)

 Periodic monitoring of leakage rates from surface impoundments and waste piles

Closure and Post-Closure Care Standards 

 Removal or decontamination of all waste residues, contaminated containment system 

components, contaminated soils, and structures/equipment contaminated with waste

 Elimination of free liquids

 Performance of post-closure care, if applicable (e.g., maintenance and monitoring)

Air Emission Standards

EPA has established air emission standards at 40 CFR Parts 264 and 265, Subparts AA, BB, and 

CC. They apply to LQG and TSDF containers, tanks, and other units as specified. They are 

summarized below.

Air Emission Standards for Process Vents at 40 CFR Parts 264 and 265, Subpart AA

Parts 264 and 265, Subpart AA applies to process vents associated with distillation, fractionation, 

thin-film evaporation, solvent extraction, or air or steam stripping operations that manage 

hazardous wastes with organic concentrations of at least 10 parts per million by weight (ppmw), 

if these operations are conducted in specified units (e.g., units subject to permitting 

requirements). Facilities must design, operate, monitor, and maintain their process vents to 

either (1) reduce total organic emissions from all affected process vents at the facility below 

specified levels or (2) reduce, by use of a control device, total organic emissions from all 

affected process vents at the facility by 95 weight percent. 

Air Emission Standards for Equipment Leaks at 40 CFR Parts 264 and 265, Subpart BB

Parts 264 and 265, Subpart BB applies to equipment that contains or contacts hazardous wastes 

with organic concentrations of at least 10 percent by weight that are managed in specified unit 

types (e.g., units subject to permitting requirements). Facilities must comply with the design, 

operation, inspection, monitoring, testing, maintenance, and recordkeeping standards for 

specified types of equipment (e.g., pumps, compressors, pressure relief devices). 
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Air Emission Standards for Tanks, Surface Impoundments, and Containers at 40 CFR 

Parts 264 and 265, Subpart CC

Parts 264 and 265, Subpart CC applies to tanks, surface impoundments, and containers, except as 

otherwise specified.

Tanks. Facilities must control air pollutant emissions from tanks in accordance with Tank Level 

1 or Tank Level 2 controls, as specified (e.g., installing a fixed roof). 

Surface Impoundments. Facilities must control air pollutant emissions from surface 

impoundments by using either a floating membrane cover or a cover that is vented through a 

closed-vent system to a control device, as specified.

Containers. Facilities must control air pollutant emissions from containers in accordance with 

Container Level 1, 2, or 3 standards (e.g., use of containers that meet applicable DOT 

regulations).

Emergency Preparedness and Response

Emergency Equipment. Facilities must comply with the preparedness and prevention 

requirements of Subpart C of 40 CFR Parts 264 and 265. Subpart C requires that they be 

equipped with, test, and maintain emergency equipment, including internal and external 

communications and alarm systems, fire control equipment, and water, if needed for the hazards 

posed by waste handled at the facility.

Emergency Plan and Response. Facilities must comply with the contingency plan and 

emergency procedures of Subpart D of 40 CFR Parts 264 and 265. Subpart D requires that they 

designate an emergency coordinator and have a contingency plan designed to minimize hazards 

to human health or the environment from fires, explosions, or any unplanned sudden or nonsudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water. 

The emergency coordinator must carry out procedures for responding to fires, releases, and 

explosions, including:

 Notify on-site and off-site personnel/agencies as specified;

 Identify, assess, and control releases, fires or explosions and related hazards;

 Taking other actions as specified (e.g., ensure treatment, storage, or disposal of recovered 

waste).

Security

Facilities must prevent the unknowing entry, and minimize the possibility for the unauthorized 

entry, of persons or livestock onto the active portion of the facility, unless specified otherwise, as 

required by 40 CFR 264.14 and 265.14. This must include a surveillance system or barrier 

(e.g., fence).

Personnel Training

Facilities must comply with the personnel training requirements of 40 CFR 264.16 or 265.16. 

Facilities must provide initial training and annual review, which teach facility personnel to 

perform their duties in a way that ensures the facility’s compliance with applicable requirements. 

It must ensure, at a minimum, that personnel are able to respond effectively to emergencies. 

Specified records must be kept.
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Reporting and Recordkeeping

Notification. Under 40 CFR 264.11 and 265.11, every facility must apply to EPA for an EPA 

identification number in accordance with the EPA notification procedures.

Biennial Report. 40 CFR 264.75 and 265.75 require facilities to prepare and submit a single 

copy of a biennial report to EPA by March 1 of each even numbered year. The report must 

include information about the facility, wastes received (e.g., from offsite), management and 

disposal methods.

Discrepancy Report. 40 CFR 264.71 and 265.71 require a facility that receives an off-site 

shipment to note discrepancies between the waste and manifest. The facility must attempt to 

reconcile the discrepancy. If it cannot, it must submit a Discrepancy Report to EPA within 15 

days, explaining the discrepancy and efforts to resolve it.

Recordkeeping. 40 CFR 264.73 and 265.73 require facilities to record and maintain the 

following information in an operating record (e.g., waste and unit descriptions, emergency 

incidents, inspection/monitoring results, notices and certifications).

Financial Assurance

40 CFR Parts 264 and 265, Subpart H requires facilities to have and maintain a cost estimate for 

closure and, if applicable, post-closure. They also must obtain financial assurance for closure 

and, if applicable, post-closure. 

In addition, facilities must maintain liability coverage for sudden accidental occurrences of at 

least $1 million per occurrence with an annual aggregate of at least $2 million. Facilities with a 

surface impoundment, landfill, land treatment facility, or disposal miscellaneous unit as specified 

also must maintain liability coverage for non-sudden accidental occurrences in an amount of at 

least $3 million per occurrence with an annual aggregate of at least $6 million.

Subpart H identifies a variety of financial instruments for these purposes (e.g., trust fund, surety 

bond).

Requirement for a Permit

40 CFR Part 270 requires a facility owner/operator to obtain a permit to treat, store or dispose of 

hazardous waste. Owner/operators must have a permit during the active life (including closure 

period) of their hazardous waste management units. Owner/operators of surface impoundments, 

landfills, land treatment units, and waste pile units also must have post-closure permits, unless 

they demonstrate closure by removal or decontamination s specified. The permit specifies the 

requirements to which the facility is subject. 

Public Involvement in the Permit Process

The RCRA permitting process is laid out at 40 CFR Parts 124 and 270. Following its basic 

elements, including public involvement methods:

 Applicant holds a public meeting with the public prior to submitting the Part B RCRA 

permit application to EPA (e.g., to explain its facility).

 The facility submits a Part A and Part B permit application to EPA or authorized state 

permitting agency that contains the information required in Part 270, Subpart B. 
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 Permitting agency will issue a public notice that an application has been received and 

where it is available for public review. The agency will review the application for 

completeness and send a written notification to the applicant indicating whether the 

application is complete.

 Once an application is complete, the agency will tentatively decide whether to issue or 

deny the permit. If it decides to issue a permit, it will prepare a draft permit that contains 

requirements and conditions as specified. If it decides to deny the permit, it will issue a 

notice of intent to deny.

 The permitting agency will provide public notice of its intent to issue or deny the permit, 

along with a fact sheet. The notice must be circulated in specified media (e.g., local 

papers, etc.) and allow at least 45 days for public comment.

 The permitting agency will hold a public hearing whenever it receives written notice of 

opposition to a draft permit and a request for a hearing, as specified. Whenever possible, 

it will schedule a hearing at a location convenient to the nearest population center to the 

proposed facility. 

 After the close of the public comment period, the agency will either issue or deny the 

permit. It also must prepare a written response to comments and make it publicly 

available.

EPA/State Oversight and Enforcement

RCRA section 3007(c) requires annual inspections of federal TSDFs. RCRA section 3007(d) 

requires annual inspections of state and local TSDFs. RCRA section 3007(e) requires that other 

TSDFs be inspected no less than every 2 years. 

EPA’s National Program Manager (NPM) Guidance for Fiscal Year 2010 establishes 

performance expectations and activities related to the TSDF universe for the EPA Regions and 

states. It requires that they inspect at least once every two years each operating TSDF, as 

required under RCRA section 3007(e), i.e., 50% of the TSDF universe annually. It also requires 

the EPA Regions to annually inspect each TSDF operated by states or local governments as 

required under RCRA section 3007(d).52 

5.2 Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste 

(DSW) Exclusions 

5.2.1 Generator-Controlled Exclusion (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)) 

The GCE excludes from the definition of solid waste those HSMs which remain under the 

control of the generator when legitimately reclaimed. The exclusion can be claimed for 

materials that are: 

 Generated and reclaimed at the generating facility;

 

52 “FY 2010 Office of Enforcement and Compliance Assurance (OECA) National Program Manager (NPM) 

Guidance April 23, 2009.” See pages 43 and 45.
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 Generated and reclaimed at different facilities, if the reclaiming facility is controlled by 

the generator or if both the generating facility and the reclaiming facility are controlled 

by a person as defined in 40 CFR 260.10; and

 Generated pursuant to a written contract between a tolling contractor and a toll 

manufacturer and is reclaimed by the tolling contractor. A tolling contractor means a 

person who arranges for the production of a product or intermediate made from specified 

unused materials through a written contract with a toll manufacturer. Toll manufacturer 

means a person who produces a product or intermediate made from specified unused 

materials pursuant to a written contract with a tolling contractor.

The conditions and requirements of the exclusion are summarized below.

Legitimate Recycling

The GCE requires the reclamation of HSM to be legitimate, as specified under 40 CFR 260.43. 

40 CFR 260.43(a) provides that persons regulated under 40 CFR 260.34 or claiming to be 

excluded from hazardous waste regulation under sections 261.2(a)(2)(ii), 261.4(a)(23), (24), or 

(25) because they are engaged in reclamation must be able to demonstrate that the recycling is 

legitimate. Hazardous secondary material that is not legitimately recycled is discarded material 

and is a solid waste. In determining if their recycling is legitimate, persons must address the 

requirements of 40 CFR 260.43(b) and must consider the requirements of 40 CFR 260.43(c).

40 CFR 260.43(b) provides that legitimate recycling must involve a hazardous secondary 

material that provides a useful contribution to the recycling process or to a product or 

intermediate of the recycling process, and the recycling process must produce a valuable product 

or intermediate as specified.

40 CFR 260.43(c) identifies factors that must be considered in making a determination as to the 

overall legitimacy of a specific recycling activity. These factors relate to how the generator and 

reclaimer should manage the material (e.g., as a valuable commodity) and how closely the 

product of the recycling process resembles analogous products. In making a determination that a 

hazardous secondary material is legitimately recycled, persons must evaluate all factors and 

consider legitimacy as a whole. If, after careful evaluation of these other considerations, one or 

both of the factors are not met, then this fact may be an indication that the material is not 

legitimately recycled. However, the factors do not have to be met for the recycling to be 

considered legitimate. In evaluating the extent to which these factors are met and in determining 

whether a process that does not meet one or both of these factors is still legitimate, persons can 

consider other relevant factors.

Storage Time Limit

The GCE requires that the material not be speculatively accumulated, as defined in 40 CFR 

261.1(c)(8). 40 CFR 261.1(c)(8) provides that a material is “accumulated speculatively” if it is 

accumulated before being recycled. A material is not accumulated speculatively, however, if the 

person accumulating it can show that the material is potentially recyclable and has a feasible 

means of being recycled; and that—during the calendar year (commencing on January 1)—the 

amount of material that is recycled, or transferred to a different site for recycling, equals at least 

75 percent by weight or volume of the amount of that material accumulated at the beginning of 

the period. 
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Containment

The GCE requires that the material be contained.

Air Emission Standards

The GCE requires that the material be contained.

Emergency Preparedness and Response

The GCE does not require emergency preparedness and response.

Personnel Training

The GCE does not require personnel training.

Reporting and Recordkeeping

The GCE requires notification to EPA in accordance with 40 CFR 260.42. 40 CFR 260.42 

requires hazardous secondary material generators, tolling contractors, toll manufacturers, 

reclaimers, and intermediate facilities managing hazardous secondary materials which are 

excluded from regulation under 40 CFR 261.2(a)(2)(ii), 261.4(a)(23), (24), or (25) to send a 

notification prior to operating under the exclusion(s) and by March 1 of each even numbered 

year thereafter to EPA using EPA Form 8700–12. The form must include the following types of 

information:

 Information about the claimant and exclusion being claimed;

 Description of the materials to be managed under the exclusion (e.g., quantity); and

 Description of management methods.

Off-Site Transportation

The GCE does not include provisions for off-site transportation.

Exports

The GCE does not include provisions for exporting material outside the U.S. The exclusion 

requires that the material be generated and reclaimed within the U.S. or its territories.

5.2.2 Transfer-Based Exclusion (40 CFR 261.4(a)(24) and (25))

The TBE excludes from the definition of solid waste those HSMs that are generated and 

subsequently transferred to another company or person for the purpose of legitimate reclamation. 

The conditions and requirements of the exclusion are summarized below.

5.2.2.1 Generators (40 CFR 261.4(a)(24) and (25))

Legitimate Recycling

40 CFR 261.4(a)(24)(iv) requires that the reclamation of the material be legitimate, as specified 

under 40 CFR 260.43. Section 5.1.1 of this Appendix on RCRA summarizes the requirements 

for legitimate recycling under 40 CFR 260.43.

In addition, 40 CFR 261.4(a)(24)(v)(B) requires that, prior to arranging for transport of HSMs to 

a reclamation facility (and any intermediate facility) where the management of the hazardous 

secondary materials is not addressed under a RCRA Part B permit or interim status standards, the 

generator must make reasonable efforts to ensure that each reclaimer intends to properly and 
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legitimately reclaim the HSM and not discard it, and that each facility will manage the HSM in a 

manner that is protective of human health and the environment. Reasonable efforts must be 

repeated at a minimum of every three years. 40 CFR 261.4(a)(24)(v)(B) sets forth a series of 

questions about the facility that the generator must affirmatively answer. 

Storage Time Limit

40 CFR 261.4(a)(24)(i) provides that the material must not be speculatively accumulated, as 

defined in 40 CFR 261.1(c)(8). Section 5.1..1 of this Appendix on RCRA summarizes the 

speculative accumulation provisions of 40 CFR 261.1(c)(8).

Containment

40 CFR 261.4(a)(24)(v)(A) requires that the material be contained.

Air Emission Standards

40 CFR 261.4(a)(24)(v)(A) requires that the material be contained.

Emergency Preparedness and Response

The TBE does not include provisions for emergency preparedness and response.

Personnel Training

The TBE does not require personnel training.

Reporting and Recordkeeping

Reporting. The TBE requires notification to EPA in accordance with 40 CFR 260.42. Section5.

2.1 of this Appendix on RCRA summarizes the notification requirement and types of information 

that must be submitted.

The generator also must make documentation and certification of its reasonable efforts available 

upon request by a regulatory authority within 72 hours, or within a longer period of time as 

specified by the regulatory authority, as required by 40 CFR 261.4(a)(24)(v)(C). 

Recordkeeping. 40 CFR 261.4(a)(24)(v)(C) requires the generator to maintain for a minimum 

of three years documentation and certification that reasonable efforts were made for each 

reclamation facility and, if applicable, intermediate facility where the management of the HSMs

is not addressed under a RCRA Part B permit or interim status standards prior to transferring 

HSM. The certification statement must include specified information.

40 CFR 261.4(a)(24)(v)(D) and (E) require the generator to maintain at the generating facility 

for no less than three years records of all off-site shipments of HSMs and confirmations of 

receipt from each reclaimer and, if applicable, each intermediate facility for all off-site shipments 

of HSMs.
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Off-Site Transportation

40 CFR 261.4(a)(24)(ii) requires the material not be handled by any person or facility other than 

the HSM generator, the transporter, an intermediate facility or a reclaimer, and, while in 

transport, not be stored for more than 10 days at a transfer facility, and be packaged according to 

applicable DOT regulations at 49 CFR Parts 173, 178, and 179 while in transport.

40 CFR 261.4(a)(24)(v)(D) requires the generator to maintain at the generating facility for no 

less than three years records of all off-site shipments of HSMs. For each shipment, these records 

must, at a minimum, contain the following information: 

 Name of the transporter and date of the shipment; 

 Name and address of each reclaimer and, if applicable, the name and address of each 

intermediate facility to which the HSM was sent; and

 The type and quantity of HSM in the shipment.

40 CFR 261.4(a)(24)(v)(E) requires the generator to maintain at the generating facility for no 

less than three years confirmations of receipt from each reclaimer and, if applicable, each 

intermediate facility for all off-site shipments of HSMs. Confirmations of receipt must include 

the following information:

 Name and address of the reclaimer (or intermediate facility);

 Type and quantity of the HSMs received; and

 Date which the HSMs were received. 

This requirement may be satisfied by routine business records (e.g., financial records, bills of 

lading, copies of DOT shipping papers, or electronic confirmations of receipt).

Exports

40 CFR 261.4(a)(25) provides that HSM that is exported from the U.S. and reclaimed at a 

reclamation facility located in a foreign country is not a solid waste, provided that the HSM

generator complies with the applicable requirements of 40 CFR 261.4(a)(24)(i)–(v) (excepting 

paragraph (a)(24)(v)(B)(2) for foreign reclaimers and foreign intermediate facilities). The 

generator also must comply with 40 CFR 261.4(a)(25). 

Under 40 CFR 261.4(a)(25), the generator must notify EPA of an intended export before the 

HSM is scheduled to leave the U.S., as specified. The export of HSM is prohibited unless the 

receiving country consents (written or tacit) to the intended export. When the receiving country 

consents to the receipt of the export, EPA will send an Acknowledgment of Consent (AOC) to 

the generator. An AOC must accompany the shipment. The generator must file an annual report 

with EPA no later than March 1 of each year, summarizing the types, quantities, frequency and 

destination of all materials exported. The generator must keep a copy of the AOC and comply 

with the notification requirements of 40 CFR 260.42. Section 5.2.1 of this Appendix on RCRA 

summarizes the types of information that must be submitted under 40 CFR 260.42.

5.2.2.2 Intermediate and Reclamation Facilities (40 CFR 261.4(a)(24))

Legitimate Recycling
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40 CFR 261.4(a)(24)(iv) requires that the reclamation of the material be legitimate, as specified 

under 40 CFR 260.43. In addition, generators must make reasonable efforts as applicable to 

ensure that each facility intends to properly and legitimately reclaim the HSM and not discard it, 

and that each facility will manage the HSM in a manner that is protective of human health and 

the environment. Section 5.1.2 of this Appendix summarizes the requirements for legitimate 

recycling. 

Containment

40 CFR 261.4(a)(24)(vi)(D) requires the reclaimer and intermediate facility to manage the HSM

in a manner that is at least as protective as that employed for analogous raw material and must be 

contained. An ‘‘analogous raw material’’ is a raw material for which a HSM is a substitute and 

serves the same function and has similar physical and chemical properties as the HSM.

Air Emission Standards

Section 5.1.2 of this Appendix on RCRA summarizes the requirement to contain the material.

Emergency Preparedness and Response

The TBE does not include requirements for emergency preparedness and response.

Security

The TBE does not include requirements for security.

Personnel Training

The TBE does not require personnel training.

Reporting and Recordkeeping

Reporting. The TBE requires notification to EPA in accordance with 40 CFR 260.42. Section 

5.1.2 of this Appendix on RCRA summarizes the notification requirement and types of 

information that must be submitted.

Recordkeeping. 40 CFR 261.4(a)(24)(vi)(A) requires the reclaimer and intermediate facility to 

maintain at their facility for no less than three years records of all shipments of HSM that were 

received at the facility and, if applicable, all shipments of HSMs that were received and 

subsequently sent offsite from the facility for further reclamation. 

Financial Assurance

40 CFR 261.4(a)(24)(vi)(F) requires the reclaimer and intermediate facility to have financial 

assurance as required under Subpart H of 40 CFR Part 261.

Subpart H requires facilities to have and maintain a cost estimate for closure. They also must 

obtain financial assurance for closure.

In addition, facilities must have and maintain liability coverage for sudden accidental 

occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at 

least $2 million. A facility with land-based units used to manage HSMs must have and maintain 

liability coverage for non-sudden accidental occurrences in the amount of at least $3 million per 

occurrence with an annual aggregate of at least $6 million.

Subpart H identifies a variety of financial instruments for these purposes (e.g., trust fund, surety 

bond).
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Requirement for a Permit

The TBE does not require the intermediate or reclamation facility to obtain a permit. However, 

if the facility does not have a permit, it must undergo reasonable efforts by generators that intend 

to send their material to it, as required by 40 CFR 261.4(a)(24)(v)(B). The generators must 

affirmatively answer all of the following questions for each reclamation facility and any 

intermediate facility:

 Does the available information indicate that the reclamation process is legitimate 

pursuant to 40 CFR 260.43?

 Does the publicly available information indicate that the reclamation facility and any 

intermediate facility that is used by the HSM generator notified the appropriate 

authorities of HSMs reclamation activities pursuant to 40 CFR 260.42 and have they 

notified the appropriate authorities that the financial assurance condition is satisfied per 

40 CFR 261.4(a)(24)(vi)(F)?

 Does publicly available information indicate that the reclamation facility or any 

intermediate facility that is used by the HSM generator has not had any formal 

enforcement actions taken against the facility in the previous three years for violations of 

the RCRA hazardous waste regulations and has not been classified as a significant noncomplier with RCRA Subtitle C? If the reclamation facility or any intermediate facility 

that is used by the HSM generator has had a formal enforcement action taken against the 

facility in the previous three years for violations of the RCRA hazardous waste 

regulations and has been classified as a significant non-complier with RCRA Subtitle C, 

does the HSM generator have credible evidence that the facilities will manage the HSMs

properly?

 Does the available information indicate that the reclamation facility and any intermediate 

facility that is used by the HSM generator have the equipment and trained personnel to 

safely recycle the HSM?

 If residuals are generated from the reclamation of the excluded HSMs, does the 

reclamation facility have the permits required (if any) to manage the residuals? If not, 

does the reclamation facility have a contract with an appropriately permitted facility to 

dispose of the residuals? If not, does the HSM generator have credible evidence that the 

residuals will be managed in a manner that is protective of human health and the 

environment?

Public Involvement in the Permit Process

The TBE does not include methods for public involvement. 

5.3 Clean Air Act (CAA)

This section gives an overview of the Clean Air Act (CAA) regulation of emissions from 

stationary sources. It also describes the CAA regulations related to chemical accident 

prevention. A “stationary source” means any building, structure, facility, or installation which 

emits or may emit any air pollutant (e.g., factories, manufacturing plants). 

5.3.1 CAA Title V Air Quality Permitting Process 
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Title V of the Clean Air Act authorizes EPA to establish minimum elements to be included in all 

state and local operating permit programs and then assist the state and local governments in 

developing their programs. Most Title V permits are issued by state and local permitting 

authorities under 40 CFR Part 70. However, EPA also issues some Title V permits (e.g., to 

sources in Indian country) under 40 CFR Part 71. The permit program involves public 

participation. Draft Title V permits issued by authorized state agencies are published for public 

review and comment prior to issuance of a permit. 

All “major” stationary sources emitting certain air pollutants are required to obtain Title V 

operating permits. A major source for hazardous air pollutants is defined as a source that emits 

more than 10 tons per year of any single Hazardous Air Pollutant (HAP) or more than 25 tons 

per year of HAPs in total. In addition, a limited number of area sources (i.e., sources that do not 

meet the criteria for a major source) also may be required to obtain a permit under the federal 

regulatory program, e.g.: 

 Hazardous waste combusters;

 Portland cement manufacturers;

 Mercury cell chlor-alkali plants;

 Secondary lead smelters;

 Carbon black production; 

 Chemical manufacturing: chromium compounds; 

 Primary copper smelting;

 Secondary copper smelting;

 Nonferrous metals area sources;

 Glass manufacturing; and

 Electric arc furnace (EAF) steelmaking facilities.

Title V operating permits contain air emissions permit limits, control requirements, and operating 

requirements for regulated air emissions sources. Potentially applicable requirements that could 

be included in a permit can be found in various parts of 40 CFR, such as: 

 Part 60: “Standards of Performance for New Stationary Sources (NSPS).” This part 

regulates emissions from stationary sources of criteria pollutants for which EPA has 

established National Ambient Air Quality Standards (NAAQS); and

 Part 63: “National Emission Standards for Hazardous Air Pollutants (NESHAP) for 

Source Categories.” This part regulates emissions of hazardous air pollutants (HAPs) 

from source categories. 

The table below gives examples of CAA technical standards that could be included in a permit to 

control air emissions. These standards could potentially apply to some facilities claiming a DSW 

exclusion and address emissions from process vents, equipment leaks, and/or emissions from 

tanks, surface impoundments and containers. 
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Also, state agencies have the regulatory authority to issue permits to minor sources of air 

emissions. Emissions thresholds for the definition of “minor source” vary among state 

regulatory programs.
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Examples of Technical Standards under the Clean Air Act

Standards of Performance for New Stationary Sources at 40 CFR Part 60

Subpart Ka—Standards of Performance for Storage Vessels for Petroleum Liquids. The provisions of this 

subpart apply to each petroleum liquids storage vessel which has a storage capacity greater than 151,412 

liters (40,000 gallons) 

Subpart Kb—Standards of Performance for Volatile Organic Liquid Storage Vessels (Including Petroleum 

Liquid Storage Vessels). The provisions of this subpart apply to each volatile organic liquids storage 

vessel with a capacity greater than or equal to 75 cubic meters (m3) (approx. 20,000 gallons) 

Subpart VV and Subpart VVa—Standards of Performance for Equipment Leaks of VOC in the Synthetic 

Organic Chemicals Manufacturing Industry. The provisions of this subpart apply to affected facilities in 

the synthetic organic chemicals manufacturing industry, including production of chemical compounds as 

specified. These subparts include design, operating and other standards applicable to process vents and 

equipment leaks.

Subpart NNN—Standards of Performance for Volatile Organic Compound (VOC) Emissions From 

Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation Operations. The provisions of 

this subpart apply to distillation unit vent streams and to combinations of a distillation unit and its 

associated recovery systems at facilities in the synthetic organic chemical manufacturing industry. 

National Emission Standards for Hazardous Air Pollutants from Source Categories at 40 CFR Part 

63

Subpart F—National Emission Standards for Organic Hazardous Air Pollutants From the Synthetic 

Organic Chemical Manufacturing Industry. The provisions of this subpart apply to facilities that 

manufacture as a primary product one or more of the synthetic organic chemicals listed in the subpart, as 

specified.

Subpart G—National Emission Standards for Organic Hazardous Air Pollutants From the Synthetic 

Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and 

Wastewater. The provisions of this subpart apply to synthetic organic chemical manufacturing industry 

facilities that are covered under Part 63, Subpart F (above).

Subpart H—National Emission Standards for Organic Hazardous Air Pollutants for Equipment Leaks. 

The provisions of this subpart apply to synthetic organic chemical manufacturing industry facilities that 

are covered under Part 63, Subpart F (above). 

Subpart DD—National Emission Standards for Hazardous Air Pollutants from Off-Site Waste and 

Recovery Operations. The provisions of this subpart apply to facilities that are major sources of hazardous 

air pollutants and that receive “off-site material” for treatment (e.g., a waste or used solvent). 

Subparts OO, PP, QQ, WW – National Emission Standards for Tanks (Level 1), Containers, Surface 

Impoundments, and Storage Vessels (Level 2). These subparts apply to the control of air emissions for the 

specified unit types for which another subpart of Parts 60-63 references the use of these subparts for such 

air emission control.

Subpart TT—National Emission Standards for Equipment Leaks—Control Level 1 and Subpart UU—

National Emission Standards for Equipment Leaks—Control Level 2. The provisions of these subparts 

apply to the control of air emissions from equipment leaks for which another subpart references the use of 

these subparts for such air emission control.
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5.3.2 CAA Standards for Area Sources Not Subject to Title V Permit

Area sources not subject to a Title V permit may still be subject to CAA regulation, depending 

on the applicability provisions of the particular regulation. The area source would be required to 

notify EPA (or the delegated state agency) typically 120 days following promulgation, whether it 

is subject to the regulation. Some CAA regulations could apply to the types of facilities that 

could claim a DSW exclusion. For more information on area sources and applicable regulations, 

go to: http://www.epa.gov/ttn/atw/area/compilation.html.

5.3.3 Chemical Accident Prevention Provisions

The Clean Air Act authorizes requirements for owner/operators of stationary sources concerning 

the prevention of accidental releases. These requirements are codified at 40 CFR Part 68, 

“Chemical Accident Prevention Provisions.” An owner/operator of a stationary source (e.g., a 

building or plant) that has more than a threshold quantity of a regulated substance in a process 

(e.g., storage) must comply with Part 68. “Regulated substances” are toxic and flammable 

substances with threshold quantities listed in section 68.130.53 There are 140 regulated 

substances with threshold quantities ranging from 500 to 20,000 pounds.

Part 68 requires the owner/operator of a stationary source to develop a risk management plan 

(RMP) that describes the facility’s risk management program. The RMP is made available to 

federal, state, and local government agencies and the public. The owner/operator must develop 

its risk management program in accordance with the following program requirements:

 Program 1: Processes which would not affect the public in the case of a worst-case 

release and with no accidents with specified off-site consequences within the past five 

years are eligible for Program 1.

 Program 2: Processes not eligible for Program 1 or subject to Program 3 are placed in 

Program 2.

 Program 3: Processes not eligible for Program 1 and meeting other requirements 

(e.g., they are classified in one of ten specified North American Industrial Classification 

System (NAICS) codes) are placed in Program 3.

Following is a summary of the Part 68 requirements relevant to this analysis.

Emergency Preparedness and Response

Owner/operators of a stationary source with a process eligible for Program 1 must designate a 

point of contact for emergency response and at least make arrangements with local response 

authorities. 

Owner/operators of a stationary source with a process subject to Program 2 or 3 have the option 

of either developing an emergency response program or making alternative arrangements, as 

follows:

1. Alternative Arrangements. Owner/operators whose employees will not respond to 

accidental releases of regulated substances need not prepare an emergency response 

program provided that they meet the following:

 

53 These regulated substances are also CERCLA hazardous substances. Facilities subject to Part 68 also would be 

subject to OSHA requirements as applicable (e.g., at 29 CFR 1910.119 and 1910.120).
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 For stationary sources with any regulated toxic substance held in a process above the 

threshold quantity, the stationary source is included in the community emergency 

response plan developed under 42 U.S.C. 11003 (i.e., the Emergency Planning and 

Community Right-To-Know Act of 1986);

 For stationary sources with only regulated flammable substances held in a process 

above the threshold quantity, the owner or operator has coordinated response actions 

with the local fire department; and

 Appropriate mechanisms are in place to notify emergency responders when there is a 

need for a response.

2. Emergency Response Program. Owner/operators subject to Program 2 or 3 that do not 

make the above alternative arrangements must develop an emergency response program 

for protecting human health and the environment. The emergency response program 

must include an emergency response plan that includes procedures for informing the 

public and local emergency response agencies about accidental releases, documentation 

for administering proper first-aid and emergency medical treatment as necessary, and 

procedures/measures for emergency response after an accidental release of a regulated 

substance. It also must include procedures for using and maintaining emergency 

response equipment, personnel training in relevant procedures, and procedures to update 

the plan. 

Personnel Training

Owner/operators of a stationary source with a process eligible for Program 1 are not required to 

conduct personnel training. Owner/operators of a stationary source with a process subject to 

Program 2 or 3 must conduct initial and refresher training for personnel that operate a process. 

The training must cover specified elements (e.g., normal operations, emergency shutdown and 

operations). In addition, owner/operators must train their personnel in relevant procedures under 

their emergency response program (i.e., if the owner/operator develops an emergency response 

program instead of making alternative arrangements, as described above).

5.4 Clean Water Act (CWA) -- Oil Pollution Prevention

The Clean Water Act authorizes requirements to prevent the discharge of oil from nontransportation-related onshore and offshore facilities into or upon the navigable waters of the 

United States or adjoining shorelines and other areas as specified. These requirements are 

codified at 40 CFR Part 112, “Oil Pollution Prevention.”

Part 112 establishes requirements for the preparation and implementation of Spill Prevention, 

Control, and Countermeasure (SPCC) Plans. SPCC Plans are designed to complement existing 

laws, regulations, rules, standards, policies, and procedures pertaining to safety standards, fire 

prevention, and pollution prevention rules. The purpose of an SPCC Plan is to form a 

comprehensive federal/state spill prevention program that minimizes the potential for discharges. 

The SPCC Plan must address all relevant spill prevention, control, and countermeasures 

necessary at the specific facility. 

In general, facilities subject to the SPCC requirements are non-transportation-related, have 

aboveground oil storage capacity of more than 1,320 gallons and completely buried oil storage 

capacity of 42,000 gallons or less, and could reasonably be expected to discharge oil to navigable 
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waters or adjoining shorelines in quantities that may be harmful. “Oil” means oil of any kind or 

in any form (e.g., petroleum, fuel oil, sludge, synthetic oils, mineral oils, oil refuse, or oil mixed 

with wastes other than dredged spoil). 

Emergency Preparedness and Response

The SPCC Plan must detail the equipment, workforce, procedures, and steps to prevent, control, 

and provide adequate countermeasures to a discharge. The Plan must address specified topics, 

such as:

 Discharge prevention measures;

 Countermeasures for discharge discovery, response, and cleanup; 

 Containment and/or diversionary structures and equipment;

 Personnel responsibilities (e.g., for addressing discharges, off-site notifications);

 Plans and procedures for responding to discharges.

Personnel Training

Facilities must provide train their oil-handling personnel in the operation and maintenance of 

equipment to prevent discharges, discharge procedure protocols, applicable pollution control 

laws and regulations, general facility operations and the contents of the facility SPCC Plan. The 

facility must schedule and conduct discharge prevention briefings for its oil-handling personnel 

at least once a year to assure adequate understanding of the SPCC Plan for that facility. Such 

briefings must highlight and describe known discharges or failures, malfunctioning components, 

and any recently developed precautionary measures.

5.5 Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA) – Release Notifications

Notification requirements for releases of a reportable quantity of a hazardous substance are 

authorized under the Comprehensive Environmental Response, Compensation and Liability Act 

of 1980 (CERCLA) and Title III of the Superfund Amendments and Reauthorization Act of 1986 

(SARA). Notification requirements are codified in 40 CFR Part 302, “Designation, Reportable 

Quantities, and Notification.”

Emergency Preparedness and Response

Section 302.6 requires that any person in charge of a vessel or an offshore or an onshore facility 

must, as soon as he or she has knowledge of any release of a hazardous substance (including any 

hazardous waste) from such vessel or facility in a quantity equal to or exceeding the reportable 

quantity (RQ) determined by Part 302 in any 24-hour period, immediately notify the National 

Response Center. Such releases are also subject to state and local reporting under Section 304 of 

the Emergency Planning and Community Right-to-Know Act (EPCRA), also known as Title III 

of SARA. 

5.6 Emergency Planning and Community Right-to-Know Act (EPCRA) –

Release Notifications

Emergency planning and notification requirements for “extremely hazardous substances” (EHSs) 

are authorized under the Comprehensive Environmental Response, Compensation and Liability 

Act of 1980 (CERCLA) and EPCRA (also known as Title III of SARA). Emergency planning 
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and notification requirements for EHSs are codified at 40 CFR 355. Part 355 is titled, 

“Emergency Planning and Notification.”

Emergency Preparedness and Response

Part 355 requires a facility to comply with its emergency release notification requirements if it 

produces, uses, or stores a hazardous chemical and releases a reportable quantity (RQ) of any 

extremely hazardous substances (EHS) or of a hazardous substance as defined by CERCLA 

(including any hazardous waste) at the facility. The facility must immediately notify the 

community emergency coordinator for the local emergency planning committee of any area 

likely to be affected by the release as well as the State Emergency Response Commission of any 

state likely to be affected by the release. The facility also must submit a follow-up notification 

as soon as practicable after the release to provide updated information. 

5.7 Hazardous Materials Transportation Act of 1975 (HMTA)

5.7.1 Overview and Applicability

The transportation of hazardous materials is regulated by the Hazardous Materials Transportation 

Act (HMTA), which is administered by the U.S. Department of Transportation (DOT). HMTA 

provides DOT with a broad mandate to regulate the transport of hazardous materials, with the 

purpose of adequately protecting the U.S. against risk to life and property, which is inherent in 

the commercial transportation of hazardous materials.

DOT regulations that govern the transportation of hazardous materials are applicable to any 

person who transports, ships, causes to be transported or shipped, or who is involved in any way 

with the manufacture or testing of hazardous materials packaging or containers. DOT 

regulations set forth packaging, handling, labeling, marking, placarding, operational, and routing 

standards. These regulations include, among others:

 Hazardous Materials Regulations; and

 Transportation of Hazardous Materials; Driving and Parking Rules.

Following is a summary of these standards.

5.7.2 Hazardous Materials Regulations

DOT’s Hazardous Materials Regulations (HMR) are contained in 49 CFR Parts 100 through 180. 

These regulations pertain to all modes of shipment (e.g., highway, air). Following is a summary 

of selected regulations as relevant to this analysis.

Personnel Training

49 CFR Part 172, Subpart H requires hazmat employers to train hazmat employees to perform 

duties under the HMR. Training must be refreshed periodically and training records retained by 

the employer. The training must cover general awareness/familiarization, function-specific 

training, safety, security awareness, and in-depth security, as specified. In particular, their 

training on safety must include emergency response information (i.e., information that can be 

used in the mitigation of an incident involving hazardous materials, such as health hazards, risks 

of fire/explosions, methods for handling fires/spills). 

A “hazmat employer” is a person who employs or uses at least one hazmat employee and who is 

involved the transportation of hazardous materials as specified. 
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A “hazmat” employee is a person who is employed by a hazmat employer or self-employed and 

who is involved in the transportation of hazardous materials as specified (e.g., loading, 

preparation for transportation, operation of a transportation vehicle).

Off-Site Transportation

49 CFR Part 171 lays out general information, regulations and definitions. It defines “hazardous 

materials” as those materials designated by the Secretary of the Department of Transportation as 

posing an unreasonable threat to the public and the environment. The term "hazardous 

materials" includes all of the following: (1) hazardous substances, (2) hazardous wastes, 

(3) marine pollutants, (4) elevated temperature material, (5) materials identified in 49 CFR 

172.101, and (6) materials that meet the defining criteria for hazard classes and divisions in 

contained in 49 CFR Part 173 (e.g., Class 1 explosives, Class 2 gases).

49 CFR Part 172 lists and classifies those materials that DOT has designated as hazardous 

materials for purposes of transportation and prescribes the requirements for shipping papers, 

package marking, labeling, and transport vehicle placarding applicable to the shipment and 

transportation of those hazardous materials. Following is a summary of some of its subparts:

 Subpart B – Table of Hazardous Materials and Special Provisions. This table 

(located in 49 CFR172.101) designates the materials listed therein as hazardous materials 

for the purpose of transportation of those materials. The purpose of the table is to assign 

proper shipping names, class and division, and guidance for packaging and handling 

requirements for hazardous materials. Note: Additional hazardous materials are listed in 

Appendix A and B to 49 CFR 172.101.

 Subpart C – Shipping Papers. The shipping document for hazardous materials must be 

prepared by the shipper and contain the proper shipping name, the hazard class or 

division of the material(s), ID number, and where appropriate, the packing group. No 

shipper may transport a hazardous material unless it is accompanied by a shipping paper. 

The shipper must certify and retain the shipping paper for two years. Carriers must check 

to ensure that the material offered by the shipper is properly described, carry the shipping 

paper during transportation, and retain a copy for two years. 

 Subpart D – Markings. The basic marking requirement consists of the proper shipping 

name and ID number of the hazardous materials contained in a package. Markings 

should be durable and not be obscured. Additional marking requirements apply 

depending on the material. Shippers may not offer and carriers may not transport unless 

the hazardous material markings apply to the material contained in the package.

 Subpart E – Labeling. Anyone who offers for transportation or transports a hazardous 

material must ensure that the package is properly labeled with the appropriate hazard 

class or division number.

 Subpart F – Placarding. Anyone who offers for transportation or transports a hazardous 

material must comply with applicable placarding requirements. Each bulk packaging, 

freight container, unit load device, transport vehicle, or rail car containing any quantity of 

a hazardous material must be placarded on each side and each end with the applicable 

placarding requirements (specified in 49 CFR 172.504).
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 Subpart G – Emergency Response Information. An emergency response number must 

be monitored at all times during transportation and at facilities where hazardous materials 

are loaded for transportation, stored incidental to transportation, or otherwise handled 

during any phase of transportation. Emergency response information must appear on the 

shipping paper, describing the hazards of the material and procedures to be used in 

mitigation of an incident.

 Subpart I – Security Plans. Each employer must establish and implement a security 

plan and train their relevant employees on the security plan.

49 CFR Parts 173 through180 lay out general requirements for shipments and packagings. They 

also set forth requirements applicable to particular modes of transportation (e.g., rail, public 

highway).

5.7.3 Transportation of Hazardous Materials; Driving and Parking Rules

49 CFR Part 397 is titled, “Transportation of Hazardous Materials, Driving and Parking Rules.” 

Part 397 applies to each motor carrier engaged in the transportation of hazardous materials by a 

motor vehicle that must be marked or placarded under 49 CFR Part 172, as specified. These 

rules apply to each officer or employee who performs supervisory duties related to the 

transportation of hazardous materials and each person who operates the vehicle containing the 

hazardous materials. 

Off-Site Transportation

49 CFR Part 397, Subpart A provides that a motor vehicle that contains hazardous materials 

other than explosive materials and which is located on a public street or highway must be 

attended by its driver, unless the driver is performing duties that are incident and necessary as 

operator of the vehicle. A motor vehicle which contains an explosive material must be attended 

at all times by its driver or a qualified representative of the motor carrier that operates it, except 

as otherwise specified. In addition, a motor vehicle that contains hazardous materials other than 

explosive materials must not be parked near the traveled portion of a public street or highway. A 

motor vehicle which contains explosive materials must not be parked under the circumstances 

specified in the rule (e.g., near or within a tunnel).

Subpart C of Part 397 provides that, for Non-Radioactive Hazardous Materials (NRHM), motor 

carriers must comply with State and Indian Tribe NRHM routing. Placarded and marked 

vehicles that are not subject to NRHM routing from either a State or Indian Tribe must avoid 

heavily populated areas, tunnels, and other specified areas. Deviations are allowed where no 

practical alternative exists or to reach terminals, rest and fueling stops, etc. Deviations for 

operating convenience are not allowed.

5.8 Occupational Safety and Health Act (OSH Act) 

The Occupational Safety and Health (OSH) Act was enacted to "assure safe and healthful 

working conditions for working men and women." The OSH Act establishes the Occupational 

Safety and Health Administration (OSHA) at the federal level and applies to private sector 

workers in the U.S. with few exceptions (e.g., the self-employed). It does not cover employees 

of state and local governments, except in states that have their own occupational safety and 

health plans that cover these workers. It also does not cover worker conditions that are regulated 
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under worker safety or health requirements of other federal agencies. OSHA has established 

occupational safety and health regulations at 29 CFR Part 1910.

5.8.1 Process Safety Management of Highly Hazardous Chemicals

OSHA established requirements for preventing or minimizing the consequences of catastrophic 

releases of toxic, reactive, flammable, or explosive chemicals at 29 CFR 1910.119, “Process 

Safety Management of Highly Hazardous Chemicals.” This standard applies to a process 

(e.g., use, storage, and handling) which involves (1) a chemical listed in Appendix A of section 

1910.119 at or above the specified threshold quantity or (2) a flammable liquid or gas as defined 

in 29 CFR 1910.1200(c) that is onsite in one location in a quantity of 10,000 pounds or more, 

except as specified. These chemicals are referred to as “highly hazardous chemicals.” Relevant 

requirements are described below.

Emergency Preparedness and Response

The employer must establish and implement an evacuation plan for the entire plant. The plan 

must include procedures for reporting a fire or other emergency; emergency evacuation, 

including type of evacuation and exit route assignments; operating critical plant operations 

before evacuation; accounting for all employees after evacuation; and performing rescue or 

medical duties. In addition, the plan must include procedures for handling small releases. 

Employers covered under this standard may also be subject to the hazardous waste and 

emergency response provisions contained in 29 CFR 1910.120 (a), (p) and (q).

Personnel Training

The employer must provide initial and recurrent training to each employee involved in operating 

a process. Employees must be trained in an overview of the process and in operating procedures 

as specified (e.g., safety systems and functions). The training must include emphasis on the 

specific safety and health hazards, emergency operations including shutdown, and safe work 

practices applicable to the employee's job tasks. In addition, employers must train their 

employees on the implementation of an evacuation plan.

5.8.2 Hazardous Waste Operations and Emergency Response (HAZWOPER)

OSHA established “Hazardous Waste Operations and Emergency Response” (HAZWOPER) at 

29 CFR 1910.120. 29 CFR 1910.120(p) includes requirements that apply permitted and interimstatus treatment, storage, and disposal facilities (TSDFs). In addition, hazardous waste 

generators must comply with 29 CFR 1910.120(p)(8) regarding an emergency response program, 

as specified. 29 CFR 1910.120(q) includes requirements that apply to emergency response 

operations for releases of, or substantial threats of releases of, hazardous substances (including 

hazardous waste) without regard to the location of the hazard. The term “emergency response” a 

response effort by employees from outside the immediate release area or by other designated 

responders (i.e., mutual aid groups, local fire departments, etc.) to an occurrence which results, 

or is likely to result, in an uncontrolled release of a hazardous substance. Responses to incidental 

releases of hazardous substances where the substance can be absorbed, neutralized, or otherwise 

controlled at the time of release by employees in the immediate release area, or by maintenance 

personnel are not considered to be emergency responses within the scope of this standard. 

Responses to releases of hazardous substances where there is no potential safety or health hazard 

(i.e., fire, explosion, or chemical exposure) are not considered to be emergency responses. 
A-107

5.8.2.1 HAZWOPER Requirements at 29 CFR 1910.120(p)

29 CFR 1910.120(p) requires permitted and interim-status TSDFs to develop and implement a 

safety and health program that includes specified elements (e.g., medical surveillance, 

decontamination, emergency response). These provisions do not apply to hazardous waste 

generators, except for emergency preparedness and response (i.e., 29 CFR1910.120(p)(8)). 

Specifically, generators who are required by the EPA or state agency to have their employees 

engage in emergency response or who direct their employees to engage in emergency response 

must comply with the requirements for an emergency response program. Relevant requirements 

are described below.

Emergency Preparedness and Response

Employers must develop and implement either an emergency response program or an evacuation 

plan. Employers that develop an emergency response program must have an emergency 

response plan that includes specified elements (e.g., personnel roles, emergency recognition and 

prevention, personal protective equipment, emergency equipment). Such plans need not 

duplicate any of the subjects fully addressed in the employer's contingency planning required by 

permits, such as those issued by EPA. In addition, the employer also must follow procedures for 

handling emergency incidents (e.g., off-site reporting). 

Employers who will evacuate their employees from the worksite location when an emergency 

occurs and who do not permit any of their employees to assist in handling the emergency are 

exempt from the requirements for an emergency response program. Rather, they must establish 

and implement an evacuation plan for the entire plant. The plan must include procedures for 

reporting a fire or other emergency; emergency evacuation, including type of evacuation and exit 

route assignments; operating critical plant operations before evacuation; accounting for all 

employees after evacuation; and performing rescue or medical duties. 

Personnel Training

Employers must provide initial and annual refresher training that is part of the employer’s safety 

and health program. The training must be designed to enable employees to perform their 

assigned duties and functions in a safe and healthful manner so as not to endanger themselves or 

other employees.

In addition, employers must provide training for emergency response employees. Such training 

must include the elements of the emergency response plan, standard operating procedures the 

employer has established for the job, the personal protective equipment to be worn and 

procedures for handling emergency incidents.

5.8.2.2 HAZWOPER Requirements at 29 CFR 1910.120(q)

29 CFR 1910.120(q) sets forth requirements for emergency response programs for hazardous 

substance releases. Relevant requirements are described below.

Emergency Preparedness and Response

Employers must develop and implement either an emergency response program or an evacuation 

plan. Employers that develop an emergency response program must have an emergency 

response plan that includes specified elements (e.g., personnel roles, emergency recognition and 

prevention, personal protective equipment, emergency equipment). The employer also must 
A-108

follow procedures for handling emergency response (e.g., personnel responsibilities), training, 

medical surveillance, protective clothing, and post-emergency response operations.

Employers who will evacuate their employees from the danger area when an emergency occurs, 

and who do not permit any of their employees to assist in handling the emergency are exempt 

from the requirements for an emergency response program. Rather, they must establish and 

implement an evacuation plan for the entire plant. The plan must include procedures for 

reporting a fire or other emergency; emergency evacuation, including type of evacuation and exit 

route assignments; operating critical plant operations before evacuation; accounting for all 

employees after evacuation; and performing rescue or medical duties. 

Personnel Training

Employers must provide initial and refresher training on emergency response. The training must 

be based on the duties and function to be performed by each responder of an emergency response 

organization (e.g., first responders, hazardous materials technicians). Topics to be covered by 

the training differ based on an employee’s duties and functions. Examples of topics include:

 An understanding of what hazardous substances are, and the risks associated with them in 

an incident;

 An understanding of the potential outcomes associated with an emergency created when 

hazardous substances are present;

 The ability to recognize the presence of hazardous substances in an emergency;

 The ability to identify the hazardous substances, if possible; and

 The ability to realize the need for additional resources, and to make appropriate 

notifications to the communication center.

5.8.3 Hazard Communication 

OSHA established the “Hazard Communication” Standard (HazCom) at 29 CFR 1910.1200. 

The purpose of HazCom is to ensure that the hazards of all chemicals produced or imported are 

evaluated, and that information concerning their hazards is transmitted to employers and 

employees. This transmittal of information is to be accomplished by means of comprehensive 

hazard communication programs, which are to include container labeling and other forms of 

warning, material safety data sheets and employee training. 

HazCom applies to any chemical which is known to be present in the workplace in such a 

manner that employees may be exposed under normal conditions of use or in a foreseeable 

emergency. The term “hazardous chemicals” means any chemical which is a physical hazard or 

a health hazard. However, HazCom does not apply to RCRA hazardous waste. 

Relevant requirements are described below.

Emergency Preparedness and Response

HazCom addresses emergency preparedness and response through information dissemination 

and training, as described below.
A-109

Personnel Training

Employers must provide specified information and training to employees. Specifically, 

employees must be informed of the requirements of HazCom, any operations in their work area 

where hazardous chemicals are present, and the location and availability of the written hazard 

communication program, including the required list(s) of hazardous chemicals, and material 

safety data sheets required by this section.

Employers must provide training that includes, at least: 

 Methods and observations that may be used to detect the presence or release of a 

hazardous chemical in the work area (such as monitoring conducted by the employer, 

continuous monitoring devices, visual appearance or odor of hazardous chemicals when 

being released;

 The physical and health hazards of the chemicals in the work area;

 The measures employees can take to protect themselves from these hazards, including 

specific procedures the employer has implemented to protect employees from exposure to 

hazardous chemicals, such as appropriate work practices, emergency procedures, and 

personal protective equipment to be used; and

 The details of the hazard communication program developed by the employer.
B-1

Appendix B: Acronyms and Abbreviations
B-2

[Page intentionally left blank.]
B-1

A

AFS Air Facility System

AIAN American Indian/Alaska Native

B

BR Biennial Report

C

CAA Clean Air Act

CERCLA Comprehensive Environmental Response, Compensation and 

Liability Act

CERCLIS Comprehensive Environmental Response, Compensation and 

Liability Information System

CESQG Conditionally Exempt Small Quantity

CWA Clean Water Act

D

DNA Deoxyribonucleic acid

DOT Department of Transportation

DR Demographic Ratio

DSW Definition of Solid Waste 

E

EAF Electric arc furnace

EHS Extremely Hazardous Substance 

EJ Environmental Justice

EJ SEAT Environmental Justice Smart Enforcement Assessment Tool

EJ Toolkit Toolkit for Assessing Potential Allegations of Environmental 

Justices

EPA Please see U.S. EPA
B-2

EPCRA Emergency Planning and Community Right-to-Know Act

F

FR Federal Register

FRS Facility Registry System

G

GCE Generator-Controlled Exclusion

GIS Geographic Information Systems 

GM Waste Generation and Management

H

HAP Hazardous Air Pollutant

HAZWOPER Hazardous Waste Operations and Emergency Response

HazCom Hazard Communication Standard 

HMR Hazardous Materials Regulations

HMTA Hazardous Materials Transportation Act

HSM Hazardous Secondary Material

HTMR High Temperature Metals Recovery 

HWR Hazardous Waste Regulation

I

IARC International Agency for Research on Cancer

IRIS Integrated Risk Information System

K

K061 Electric arc furnace dust

L

LDR Land Disposal Restrictions 

LQG Large quantity generator
B-3

N

NAAQS National Ambient Air Quality Standards

NAICS North American Industry Classification System

NATA National-Scale Air Toxics Assessment

NBR National Biennial Report

NESHAP

NPDES

National Emissions Standards for Hazardous Air Pollutants

National Pollutant Discharge Elimination System

NPL National Priorities List

NPM National Program Manager

NRC National Response Center

NRHM Non-Radioactive Hazardous Materials

NSPS New Source Performance Standards

O

OECA Office of Enforcement and Compliance

ORCR Office of Resource Conservation and Recovery

OSHA Occupational Safety and Health Administration

OSH Act Occupational Safety and Health Act

OSWER Office of Solid Waste and Emergency Response

P

PBE Petition-Based Exclusion

PC Priority Chemical

PERC

POTW

Tetrachloroethylene

Publicly Owned Treatment Works

ppm Parts per million 

ppmw Parts per million by weight
B-4

PR Population ratio

PSM Process Safety Management

R

RCRA Resource Conservation and Recovery Act

RCRAInfo Resource Conservation and Recovery Act Information

RIA Regulatory Impact Analysis

RMP Risk Management Plan

RQ Reportable Quantities 

S

SD Standard Deviation

SF Summary File

Site ID Site Identification

SOCMI Synthetic Organic Chemical Manufacturing Industry

SPCC Spill Prevention, Control, and Countermeasure

SQG Small quantity generators

T

TBE Transfer-Based Exclusion

TPY Tons per Year

APR Affected Population Ratio

TSDF Treatment, Storage, or Disposal Facility

U

U.S. United States

U.S. EPA United States Environmental Protection Agency

V

VOC Volatile Organic Compound
B-5

W

WR Waste Received from Off-site
C-1

Appendix C: Glossary

A

Air Facility 

System

Contains compliance and permit data for stationary sources 

regulated by EPA, state and local air pollution agencies

American Indian 

Alaska Native

A Census Bureau term that refers to these entity types: American 

Indian reservation, American Indian off-reservation trust land, 

Oklahoma tribal statistical area, joint use area, American Indian 

tribal subdivision, tribal designated statistical area, state 

designated American Indian statistical area, Alaska Native 

Regional Corporation, Alaska Native village, Alaska Native 

village statistical area.

B

Biennial Report All generators and treatment, storage, and disposal (TSD) 

facilities who handle hazardous waste are required to report to the 

EPA Administrator at least once every two years. The data 

collected is used to create the National Biennial Resource 

Conservation and Recovery Act (RCRA) Hazardous Waste 

Report. This data is processed within the RCRA Information 

(RCRAInfo) database.

Block group A statistical subdivision of a census tract. A block group (BG) 

consists of all tabulation blocks whose numbers begin with the 

same digit in a census tract; for example, for Census 2000, BG 3 

within a census tract includes all blocks numbered between 3000 

and 3999. The block group is the lowest-level geographic entity 

for which the Census Bureau tabulates sample data from the 

decennial census.

C

Census Block An area bounded by visible and/or invisible features shown on 

Census Bureau maps. A block is the smallest geographic entity 

for which the Census Bureau collects and tabulates 100-percent 

decennial census data.

Clean Air Act Comprehensive federal law that regulates air emissions from 

stationary and mobile sources. 

Clean Water Act Establishes the basic structure for regulating discharges of 

pollutants into the waters of the United States and regulating 

quality standards for surface waters
C-2

Comprehensive 

Environmental 

Response, 

Compensation 

and Liability Act

Known as CERCLA or Superfund, provides a Federal 

“Superfund” to clean up uncontrolled or abandoned hazardous 

waste sites as well as accidents, spills, and other emergency 

releases of pollutants and contaminants into the environment.

Comprehensive 

Environmental 

Response, 

Compensation 

and Liability 

Information 

System

CERCLIS is EPA’s inventory of abandoned, inactive, or 

uncontrolled hazardous waste sites regulated under the 

Comprehensive Environmental Response, Compensation, and 

Liability Act (CERCLA). It records information about all aspects 

of hazardous waste sites from initial discovery to listing on the 

National Priorities List (NPL).

Conditionally 

Exempt Small 

Quantity 

Generator

Generate 100 kilograms or less per month of hazardous waste, or 

1 kilogram or less per month of acutely hazardous waste

D

D001 Ignitable waste

D007 Chromium waste

D008 Lead waste 

Damages The likelihood of harm or injury to property or a person resulting 

in loss of value or the impairment of usefulness

Damage Case 

Facility

Facilities that highlighted in EPA’s An Assessment of 

Environmental Problems Associated with Recycling of 

Hazardous Secondary Materials

Definition of 

Solid Waste 

A solid waste is any discarded material that is not excluded under 

§261.4(a) or that is not excluded by a variance granted under 

§§260.30 and 260.31 or that is not excluded by a non-waste 

determination under §§260.30 and 260.34.

Definition of 

Solid Waste Rule

The DSW rule creates specific conditions for recycling hazardous 

secondary materials under the Resource Conservation and 

Recovery Act (RCRA).

Definition of 

Solid Waste Final 

Rule (2008)

Revision of the Definition of Solid Waste under RCRA for 

certain types of hazardous secondary materials being recycled
C-3

E

EJ Toolkit Toolkit for Assessing Potential Allegations of Environmental 

Justices

Emergency 

Planning and 

Community 

Right-to-Know 

Act

Establishes requirements for Federal, state and local 

governments, Indian Tribes, and industry regarding emergency 

planning and "Community Right-to-Know" reporting on 

hazardous and toxic chemicals.

Environmental 

Justice

The fair treatment and meaningful involvement of all people 

regardless of race, color, national origin, or income with respect 

to the development, implementation, and enforcement of 

environmental laws, regulations, and policies. 

Environmental 

Justice Smart 

Enforcement 

Assessment Tool 

Created by EPA’s Office of Enforcement and Compliance 

Assurance to serve as a consistent methodology that would enable 

OECA to identify communities or areas experiencing 

disproportionate environmental and public health burdens for the 

purposes of enhancing and focusing OECA’s enforcement and 

compliance in those areas. 

F

F003 Spent non-halogenated solvents

F005 Spent non-halogenated solvents

F006 Wastewater treatment sludges

F037 Petroleum refinery primary sludges 

F1_5 Mixture of F001-F005

Facility Registry 

System

FRS is a centrally managed database that identifies facilities, sites 

or places subject to environmental regulations or of 

environmental interest.

G

GeneratorControlled 

Exclusion

Materials that are generated and transferred to another company 

for legitimate reclamation under specific conditions
C-4

Geographic 

Information 

System

A computer system for the input, storage, processing, 

applications development, retrieval, and maintenance of 

information about the points, lines, and areas that represent the 

streets and roads, rivers, railroads, geographic entities, and other 

features on the surface of the Earth–information that previously 

was available only on paper maps.

H

Hazard 

Communication 

Standard

The HCS became effective in 1986. A fundamental premise of 

the HCS is that employees who may be exposed to hazardous 

chemicals in the workplace have a right to know about the 

hazards and how to protect themselves

Hazardous Air 

Pollutant

HAPs are pollutants that are known or suspected to cause cancer 

or other serious health effects, such as reproductive effects or 

birth defects, or adverse environmental effects.

Hazardous 

Materials 

Regulations

HMRs are issued by the Pipeline and Hazardous Materials Safety 

Administration and govern the transportation of hazardous 

materials by highway, rail, vessel, and air. The HMR address 

hazardous materials classification, packaging, hazard 

communication, emergency response information and training.

Hazardous 

Materials 

Transportation 

Act

Its primary objective is to provide adequate protection against the 

risks to life and property inherent in the transportation of 

hazardous material in commerce by improving the regulatory and 

enforcement authority of the Secretary of Transportation.

Hazardous 

Secondary 

Materials

The DSW rule defines hazardous secondary materials (HSM) as 

those materials that would be classified as hazardous waste, if 

discarded. HSMs can be stored for longer periods of time than 

hazardous materials, but must meet various criteria such as 75% 

of the material must be recycled each year. 

Hazardous 

Waste Facilities

Likely to recycle under the DWS Final Rule, including hazardous 

waste generators producing more than a truckload (25 tons) of 

recyclable hazardous secondary materials annually, and 

hazardous waste recyclers 

Hazardous 

Waste 

Operations and 

Emergency 

Response

Refers to five types of hazardous waste operations conducted in 

the United States under OSHA Standard 1910.120 "Hazardous 

Waste Operations and Emergency Response." The standard 

contains the safety requirements employers must meet in order to 

conduct these operations.
C-5

I

Integrated Risk 

Information 

System

a human health assessment program that evaluates quantitative 

and qualitative risk information on effects that may result from 

exposure to environmental contaminants

K

K061 Electric arc furnace dust

K088 Spent potliners

K171 Spent hydrotreating catalyst

KXXX Mixture of K waste code wastes

L

Land Disposal 

Restrictions

LDR program ensures that toxic constituents present in hazardous 

waste are properly treated before hazardous waste is land 

disposed

Large quantity 

generator

LQG generate 1,000 kilograms per month or more of hazardous 

waste, or more than 1 kilogram per month of acutely hazardous 

waste.

N

National 

Ambient Air 

Quality 

Standards

Standards established by EPA under authority of the Clean Air 

Act (42 U.S.C. 7401 et seq.) that apply for outdoor air throughout 

the country. Primary standards set limits to protect public health, 

including the health of "sensitive" populations such as asthmatics, 

children, and the elderly. Secondary standards set limits to protect 

public welfare, including protection against decreased visibility, 

damage to animals, crops, vegetation, and buildings.

National 

Emissions 

Standards for 

Hazardous Air 

Pollutants

NESHAPS are stationary source standards for hazardous air 

pollutants.

National 

Priorities List

The list of national priorities among the known releases or 

threatened releases of hazardous substances, pollutants, or 

contaminants throughout the United States and its territories. The 

NPL is intended primarily to guide the EPA in determining which 

sites warrant further investigation.
C-6

National 

Response Center

The NRC is the sole federal point of contact for reporting all 

hazardous substances and oil spills. The NRC receives all reports 

of releases involving hazardous substances and oil that trigger the 

federal notification requirements under several laws.

National-Scale 

Air Toxics 

Assessment

U.S. EPA developed the NATA as a state-of-the-science 

screening tool for State/Local/Tribal Agencies to prioritize 

pollutants, emission sources and locations of interest for further 

study in order to gain a better understanding of risks.

New Source 

Performance 

Standards

Section 111 of the Clean Air Act authorized the EPA to develop 

technology based standards which apply to specific categories of 

stationary sources. These standards are found in 40 CFR Part 60. 

The NSPS apply to new, modified and reconstructed affected 

facilities in specific source categories such as manufacturers of 

glass, cement, rubber tires and wool fiberglass.

Non-hazardous 

Industrial Waste 

Facilities

Facilities not currently generating or managing hazardous wastes 

that may choose to begin reclaiming hazardous secondary 

materials under the 2008 DSW Final Rule

North American 

Industry 

Classification 

System

The standard used by Federal statistical agencies in classifying 

business establishments for the purpose of collecting, analyzing, 

and publishing statistical data related to the U.S. business 

economy.

Notification 

Facility

Facility that has notified EPA that it will be managing hazardous 

secondary materials under the 2008 DSW Final Rule

O

Occupational 

Safety and 

Health Act

The primary federal law which governs occupational health and 

safety in the private sector and federal government in the United 

States.

P

Petition-Based 

Exclusion

Materials that EPA or an authorized state determines to be nonwastes through a case-by-case petition process.

Process Safety 

Management

The major objective of process safety management (PSM) of 

highly hazardous chemicals is to prevent unwanted releases of 

hazardous chemicals especially into locations that could expose 

employees and others to serious hazards. An effective process 

safety management program requires a systematic approach to 

evaluating the whole chemical process.
C-7

R

Resource 

Conservation 

and Recovery 

Act

The (RCRA) gives EPA the authority to control hazardous waste 

from the "cradle-to-grave." This includes the generation, 

transportation, treatment, storage, and disposal of hazardous 

waste. RCRA also set forth a framework for the management of 

non-hazardous solid wastes.

Resource 

Conservation 

and Recovery 

Act Information

RCRAInfo is EPA’s comprehensive information system that 

supports the Resource Conservation and Recovery Act (RCRA) 

of 1976 and the Hazardous and Solid Waste Amendments 

(HSWA) of 1984 through the tracking of events and activities 

related to facilities that generate, transport, and treat, store, or 

dispose of hazardous waste. RCRAInfo allows RCRA program 

staff to track the notification, permit, compliance, and corrective 

action activities required under RCRA.

Risk 

Management 

Plan (RMP)

The RMP database stores the risk management plans reported by 

companies that handle, manufacture, use, or store certain 

flammable or toxic substances, as required under section 112(r) of 

the Clean Air Act (CAA).

Rural All territory, population, and housing units located outside of 

urbanized areas and urban clusters.

S

Spill Prevention, 

Control, and 

Countermeasure 

Plan 

The Spill Prevention, Control, and Countermeasure (SPCC) rule 

includes requirements for oil spill prevention, preparedness, and 

response to prevent oil discharges to navigable waters and 

adjoining shorelines. The rule requires specific facilities to 

prepare, amend, and implement SPCC Plans. The SPCC rule is 

part of the Oil Pollution Prevention regulation, which also 

includes the Facility Response Plan (FRP) rule.

Small Quantity 

Generator

SQG generate more than 100 kilograms, but less than 1,000 

kilograms, of hazardous waste per month.

T

Transfer-Based 

Exclusion

Materials that are generated and legitimately reclaimed under the 

control of the generator
C-8

U

Urban For Census 2000, all territory, population, and housing units in 

urbanized areas and urban clusters.

Urban Cluster A densely settled area that has a census population of 2,500 to 

49,999.

Urbanized Area A densely settled area that has a census population of at least 

50,000.

V

Volatile Organic 

Compound

VOCs are organic chemical compounds whose composition 

makes it possible for them to evaporate under normal indoor 

atmospheric conditions of temperature and pressure.
D-1

Appendix D: EPA Response to Peer Review Comments

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

2d 87 Henshel Section 2.3 p 30, third paragraph down – This paragraph needs rewriting 

to make it clearer. A particularly difficult sentence is sentence 3, and the 

logic between sentences 3 and 4 may be faulty. If a material’s reporting 

quantity is lower when it is characterized as hazardous waste then if it is 

characterized as non-waste, as written in sentence 3, then a smaller 

quantity would be needed before it exceeds the reportable quantity as a 

hazardous waste compared to as a non-waste, not a larger quantity (as 

currently written in sentence 3). But this does mean that if the 

implementation of the DSW results in what would otherwise be 

considered hazardous waste being now considered non-waste, then 

indeed more of the same material (now classified as “non-waste”) would 

be required to trigger reporting requirements then would have been true 

if the material were classified as hazardous waste

EPA rewrote the paragraph 

pertaining to the reporting of 

hazardous versus nonhazardous waste to ensure 

greater clarity and consistency.

2d 88 Henshel P 32, end of second full paragraph. A “reasonable” effort is not defined 

or discussed. Without such discussion or clarification, a “reasonable” 

effort remains so open to interpretation that a phone call to the foreign 

facility owner and asking for assurances of safety would more than 

satisfy that requirement, and yet not provide any real assurance that the 

community and workers in the foreign facility would be protected from 

hazardous exposures.

EPA clarified the use of the 

term "reasonable effort" by 

adding an explanatory 

sentence.

2d 90 Henshel As an example of a need to define terms and abbreviations, K061 is 

used in the footnote on page 27 (footnote 25) without any explanation of 

the meaning of the term.

EPA added a definition of the 

term in parenthesis to help 

clarify its meaning. 
D-2

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

2d 91 Henshel When requirements or criteria are referred to, it is important to specify 

and list those requirements or criteria, in the text, a footnote, or an 

inserted box. An example of such a referral to insufficiently explained 

and detailed requirements are on the top of page 28. The details about 

the “SQG” requirements are lacking.

EPA provided the definition 

and criteria to differentiate 

between a SQG and LQG.

5b 165 Ferris What are “structural” reasons as stated in section 5.1.4? EPA added explanatory 

sentences to clarify structural 

reasons that certain groups do 

not participate in the decisionmaking process.

6c 197 Henshel Table numbers are not provided. EPA inserted table numbers 

for reference. 

6c 200 Henshel P 123 Multiple and Cumulative Effects - note the numbers with % above 

70% (most) and above 60% (all but a few!!!) – and a cumulative 

frequency chart might make a nice and very visually effective summary 

of these observations.

Presentation of percentages 

may be misleading given the 

scope of the data.
D-3

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

ESa 34 Henshel In addition, the last sentence on page ix (starts “In addition,...”) is 

unclear and needs rewriting. Similarly the last sentence on page xi 

needs additional clarity. 

TEPA revised the paragraph to 

add clarity and increase 

readability. 

Ga 7 Henshel 1) A glossary, 2) Remembering to define every acronym the first time it 

is used in every chapter, and in the legend for every table, 3) A list of 

abbreviations and acronyms

EPA added acronym 

definitions in the text and 

provided a glossary and a list 

of abbreviations and acronyms 

in an appendix.

Gb 12 Daley A list of acronyms would be extremely helpful. EPA added acronym 

definitions in text and provided 

a glossary and a list of 

abbreviations and acronyms in 

an appendix.

Gb 15 Henshel Needed improvements for clarity: As mentioned above, it would be very 

helpful for the general reader to provide a Table of 

Abbreviations/Acronyms and a Glossary, in addition to remembering to 

follow some other basic rules of clear communication as outlined above 

(Readability). 

EPA added acronym 

definitions in text and provided 

a glossary and a list of 

abbreviations and acronyms in 

an appendix.
D-4

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

Ga 8 Henshel A few diagrammatic algorithms that could help explain two complexities: 

1) The regulations that apply under each condition that increases 

exposure under the new 2008 DSW. This algorithm could be bilaterally 

symmetrical – taking the reader through the process, and when there is 

a change that occurs due to the regulations, the algorithm can identify 

the regulations in play and not in play for each set of exposure 

conditions (as in longer stored waste materials, transport exposure, etc). 

One side of the symmetrical algorithm would identify regulations in play 

before the new 2008 DSW regulations, and the other side would identify 

the regulations in play after the new 2008 DSW regulations. 2) A 

second algorithm that would be useful would be to outline the 

framework, the process used to analyze the environmental justice 

concerns about the 2008 DSW rules. This algorithm could then tersely 

identify each step in the process and the implications for the outcomes 

of each step.

EPA determined that additional 

diagrams and algorithms would 

not add clarity to the topic, and 

may further confuse the 

reader. 

Gb 10 Daley For the most part, the information in the report is clearly presented. 

There are, however, some areas that could be improved. While Figure 1 

is informative, the other figures in the report make little sense to me. 

They either need additional explanation, or they should be removed. 

Figure 4.41.1 is an example of the type of bar chart that can be 

confusing. Perhaps if the base category of White/Non-Hispanic was 

added, the figure would make more sense. As it is now, these figures 

detract rather than add to the report.

EPA added an explanation to 

Section 4.4.

1a 48 Ferris 1.3 minor typo -- see “HSMHSMs” Typographical errors were 

corrected.

2d 86 Henshel Page 3 Inset. Typo or residual undeleted “(“ in explanation for 

Generator-Controlled Exclusion

Typographical errors were 

corrected.
D-5

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

2d 89 Henshel p 32 end of the second bullet there’s a typo, a misplaced period. Typographical errors were 

corrected.

6c 199 Henshel P121 – 7

th line down in paragraph – typo – higher total population 

than.... I believe was intended.

Typographical errors were 

corrected.

Gb 13 Daley Also, there are also several typos and minor mistakes that should be 

addressed. These include: 

(1) Page iv – under the hazardous waste baseline, second row, 

“recycles” should be changed to “recycling” 

(2) Page 2, sec 1.3, bullet 1 – “HSMHSMs” should be changed to “HSM” 

(3) Page 10, top of the page: “as a focus” is written twice. One 

occurrence should be deleted. 

(4) Page 81, section 4.2.3 – “area” should be added after “a 3 km” 

(5) Page 91, section 4.42 – lists 219 damage case facilities. There are 

only 217 reported in the analysis. Either explain the missing cases, or fix 

a typo. 

(6) Attachment A, page A-2, section 1. Toward the end of the first 

paragraph, should read “regulation if” not “regulation is”. 

Typographical errors were 

corrected.

2d 92 Henshel The discussion about reportable quantities (second full paragraph down 

on page 30) needs to be written more clearly. The third sentence in that 

paragraph is particularly problematic.

EPA revised the paragraph to 

add clarity and increase 

readability. 

3c 104 Daley The report however, could be edited to more clearly explain this 

approach. The text on Page 80 and 81 should be streamlined. First, the 

agency should suggest that the 3 km buffer is reasonable given the 

potential for acute exposure from accidental releases. Then, this should 

be followed by a discussion of the area apportionment method. As it 

reads now, it is a bit confusing. 

EPA clarified the language in 

Section 4.2.2 and reorganized 

it to make discussion of the 

areal apportionment method 

more transparent.
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Comment 

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4c 122 Daley Yes, it is fine. It would be beneficial to have some discussion of the 

assumption behind this method. As noted on Page 80, the areal 

apportionment method assumes all populations are equally distributed in 

the block or block group. This assumption will not hold in practice. 

Therefore, some indication of how this assumption influences the 

analysis would be useful. Given the population distribution in the nation, 

how might this assumption bias the analysis? I am not suggesting that 

the agency change their approach, only that they articulate the 

implication of this assumption. 

EPA added language to clarify 

the assumptions underlying the 

areal apportionment method.

Gb 16 Henshel In addition, the excessive use of acronyms makes the document very 

hard for any lay reader to read. It makes the document hard to read for 

even an expert, as one must constantly look for the meaning of the new 

acronyms that pop up pages after they have been defined. It would be 

helpful, should the acronyms stay in such a density, to provide a list of 

acronyms used on each page in a footnote at the bottom of each page.

EPA added acronym 

definitions in the text and 

provided a glossary and a list 

of abbreviations and acronyms 

in an appendix.

Gb 17 Henshel The Wind Dispersal category would be better (and less confusingly) 

labeled as “Particulate [or Dust] Wind Dispersal.”

EPA changed table and 

section heading to "Particulate 

wind dispersal."

Ga 4 Henshel Content: The environmental justice assessment process undergone was 

a reasonably thorough approach to assessing environmental justice 

concerns associated with the 2008 DSW rule. However, there was a lot 

of repetition that seemed to involve just copying and pasting the same 

statements and phrases over and over again, and rarely elaborated in 

depth. 

EPA deleted repetitive 

sentences when not needed 

for clarity.

Gb 18 Henshel There is no need to repeat the exact same phrases multiple times 

without additional elaboration.

EPA deleted repetitive 

sentences when not needed 

for clarity.
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Comment 

No. Reviewer Comment EPA Response

1a 45 Ferris The term “damages” in Step 4 could be explicitly defined. Presumably, 

the language that follows the term “damages” is explanatory but that is 

somewhat unclear.

EPA added the definition of 

damages to Table 1.1. The 

names of the categories of 

facilities were revised for 

consistency throughout the 

document.

2c 69 Daley As mentioned earlier, it would be helpful if the report clarified the 

definition of a damage case or damage facility. As noted on page 10, the 

analysis highlights solvent wastes because of their prevalence in 

damage cases. A definition and some references to RCRA damage 

cases would be helpful, even if provided in a footnote. 

EPA added a footnote to the 

damage cases study and 

revised the names of the 

categories of facilities for 

consistency throughout 

document.

5a 162 Ferris What is the universe of industrial facilities that may be generators of 

HSW and how do they factor into this analysis? How do industrial 

facilities factor into the potential impacts analysis?

EPA added language on 

industrial facilities and how 

they factor into the analysis to 

Section 5.2.2.

ESa 25 Daley Considering the complexity of the document, the Executive Summary is 

relatively clear and easy to read. The “Summary of Potential Impacts” is 

very helpful. It is important to note, however, that the findings in the 

executive summary are not properly numbered: the executive summary 

lists findings 1, 3, and 4, omitting 2. The table and paragraph describing 

“Community Level Analysis of Potential Disproportionate Impacts” is 

difficult to follow. It would be helpful if the Environmental Protection 

Agency (EPA) could identify and describe the four types of facilities in 

this analysis more consistently. For example, the text on page vii could 

be edited to include the following language connecting the text to the 

community analysis tables: 

"The second step of the methodology identified facilities that can 

represent the facilities that are likely to take advantage of the 2008 DSW 

final rule. These facilities are grouped into four different categories: (1) 

facilities that have already notified under the 2008 DSW final

EPA added the missing header 

for Finding 2 as well as revised 

the names of the categories of 

facilities for consistency 

throughout the document.
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Comment 

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rule[Notification facilities], (2) hazardous waste facilities that are likely to 

recycle under the rule (including hazardous waste generators producing 

more than a truckload (25 tons) of recyclable hazardous secondary 

materials annually, and hazardous waste recyclers) to use the rule 

[Hazardous Waste Facilities], (3) facilities from the environmental 

problems study (many of which operated under exclusions or reduced 

regulations)[Damage Facilities], and (4) facilities currently recycling nonhazardous industrial waste (e.g., antifreeze) that could most easily 

switch or expand to recycling under the 2008 DSW final rule [NonIndustrial Hazardous Waste Facilities]."

ESa 26 Daley It is difficult to understand where the categories in the Table on page X 

come from. They should be clearly labeled in the text and - table 

categories: the ordering in the text and the table should be consistent.

EPA revised the names of the 

categories of facilities for 

consistency throughout the 

document.

ESa 27 Daley Also, it would be helpful to define “damage facilities”. EPA added the definition of 

damages to Table 1.1, and 

revised the names of the 

categories of facilities for 

consistency throughout the 

document.

ESa 31 Ferris Summary of DSW EJ Methodology is clear and concise with a couple of 

exceptions. The term “damages” in Step 4 could be explicitly defined. 

Presumably, the language that follows the term “damages” is 

explanatory but that is somewhat unclear.

EPA added the definition of 

damages to Table 1.1, and 

revised the names of the 

categories of facilities for 

consistency throughout the 

document.
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No.

Comment 

No. Reviewer Comment EPA Response

ESa 33 Henshel The executive summary is readable. The executive summary needs to 

include definitions of terms used (for example, “notification facilities,” 

“damage case facilities,” etc). 

EPA added the definition of 

damages to Table 1.1, and 

revised the names of the 

categories of facilities for 

consistency throughout the 

document.

ESb 40 Ferris Does EPA plan to establish a definition or explanation of what 

constitutes legitimate recycling and/or recycler-facility? This could serve 

as notice to generators, receivers, recyclers that the exemptions and 

exclusions are accompanied by affirmative duties that include 

compliance with statutes and regulations?

EPA added the definition of 

damages to Table 1.1, and 

revised the names of the 

categories of facilities for 

consistency throughout the 

document.

1a 47 Ferris Readers reviewing the synopsis of the Sierra Club petition would be 

informed by an abbreviated specific list of issues identified by the Club 

(instead of “raised a number of issues about the protectiveness of the 

rule...”

EPA provided a link to the 

Sierra Club petition.

ESa 30 Ferris Readers reviewing the synopsis of the Sierra Club petition in this 

summary (or, in the relevant section below) would be informed by an 

abbreviated specific list of issues identified by the Club (instead of the 

more generalized “”raised a number of issues about the protectiveness 

of the rule...’ -- especially since the language of the rule emphasizes 

that a number of commenters “echoed”...concern...”

EPA provided a link to the 

Sierra Club petition.

1a 46 Ferris Does “Information” in Step 5 include data? Perhaps strengthening the 

language to “Data and Information...” is more supportive of the Agency’s 

rationale.

EPA clarified that "information" 

includes data.

ESa 32 Ferris Does “Information” in Step 5 include data? Perhaps strengthening the 

language to “Data and Information...” is more supportive of the Agency’s 

rationale.

EPA clarified that "information" 

includes data.
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Comment 

No. Reviewer Comment EPA Response

2 53 Ferris The transition to this section should be clear. It’s not clear that this 

section is distinct from the prior rule discussion (the “Introduction”). This 

is a graphics issue.

EPA inserted a page break 

before Section 2 to be 

consistent with formatting of 

other sections.

3 93 Ferris The transition to this section should be clear. It’s not clear that this 

section is distinct from the prior rule discussion. This is a graphics issue.

EPA inserted a page break 

before Section 2 to be 

consistent with formatting of 

other sections.

4 108 Ferris The transition to this section should be clear. It’s not clear that this 

section is distinct from the prior rule discussion. This is a graphics issue.

EPA inserted a page break 

before Section 2 to be 

consistent with formatting of 

other sections.

5 156 Ferris The transition to this section should be clear. It’s not clear that this 

section is distinct from the prior rule discussion. This is a graphics issue.

EPA inserted a page break 

before Section 2 to be 

consistent with formatting of 

other sections.

6 174 Ferris The transition to this section should be clear. This is a graphics issue. EPA adjusted the formatting 

for section headers to make 

the transition to different 

sections more clear.

6c 202 Henshel 1. page A-4 – second paragraph – last line – “typically 120 days 

following promulgation” of what?

EPA added clarifying language 

to Section 3.4.

6c 203 Henshel 2. Page A-4 still – last paragraph – 5 lines down – please add 

examples here to each type of industry not subject to CAA regulation 

under the 2008 DSW rule.

EPA added clarifying language 

to Appendix A.
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Comment 

No. Reviewer Comment EPA Response

6c 204 Henshel 3. Page A-6 third bullet – clarify if you mean leaks to only ground, to 

surface water, or also leaching to ground water – ie clarify

EPA added clarifying language 

to Appendix A.

6c 205 Henshel 4. Page A-7 last bullet – capitalize OSH. Typographical errors were 

corrected.

6c 206 Henshel 5. Page A-8 first bullet – a great example of spaghetti writing. 

Spaghetti writing makes the report more difficult to read for everyone, 

especially the lay person.

EPA added clarifying language 

to Appendix A.

6c 207 Henshel 6. Page A-9 top of the page. A mention of the differences in 

monitoring would be appropriate here.

The section at the top of A-9 

discusses reporting and 

recordkeeping. EPA 

determined that a discussion of 

monitoring would be out of 

place here.

6c 208 Henshel 7. Page A-10 – second full paragraph (starts... “Further...”) - This 

paragraph needs some clarification, and needs rewriting.

EPA added clarifying language 

to Appendix A.

6c 209 Henshel 8. Page A-10 section 3.9 second two paragraphs. These paragraphs 

are very unclear, and also seem to be internally inconsistent, as written. 

Clarify in these paragraphs what is included in each type of exclusion. A 

good example of a clearly written paragraph is the next paragraph (first 

paragraph of 3.10). This paragraph includes a short but clear definition 

which enables the reader to comprehend the information provided more 

readily. The reader does not have to go searching for the definition, 

which helps reduce reader confusion.

EPA added clarifying language 

to Appendix A.
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Comment 

No. Reviewer Comment EPA Response

6c 210 Henshel 9. Page A-10 last paragraph, first sentence. Add clarifying phrases –

what kind of characteristics, and where are these listed.

EPA added clarifying language 

to Appendix A.

6c 211 Henshel 10. Page A-11. First paragraph needs a sentence inserted clarifying 

what could be exempted. Second paragraph needs clarification in the 

middle sentence – specify briefly or provide example (in parentheses) 

for conditions under which listed waste may not be determined to be 

hazardous waste.

EPA added clarifying language 

to Appendix A.

6c 212 Henshel 11. Table A-11 page A-13 middle column, middle section – This is too 

dense for the average reader referring only to CFR citations and statutes 

(in inconsistent style no less). Provide details or names for these 

sections and their overall regulation titles in clear, jargon-free writing.

No action was taken because 

the level of detail requested 

cannot be presented in a table.

6c 213 Henshel 12. Table A-11 – Overall – this table (and the report) lacks any 

discussion of the implication of these changes due to the adoption of the 

2008 DSW rule. An example might be to evaluate the implication of 

leaking containers, which (under the current vagueness of the 2008 

DSW ruling language) might not be caught for up to 2 years, or maybe 

longer. What kinds of exposures might be increased to what diameter 

population under this scenario?

No action was taken because 

the level of detail requested 

cannot be presented in a table 

The addition of an example, 

such as leaky containers would 

result in an inconsistent level 

of detail in the table. 

6c 214 Henshel 13. Page A -17 – why the changed font size in column 1? EPA made fonts consistent 

throughout the table.
D-13

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Comment 

No. Reviewer Comment EPA Response

6c 215 Henshel 14. Page A-18. Last paragraph in column 1. Include a list of the 140 

toxic and flammable regulated chemicals referred to here, and 

elsewhere in the report. The easiest way to handle this might be a 

footnote, or adding the list to the appendices, and referring to the 

inserted list (footnote, endnote, or appendix) here and whenever else 

this list is referenced.

A reference to the CFR section 

where the chemicals are listed 

is provided. 

6c 216 Henshel 15. Page A-21 first column, second line – missing an article (“the” or 

“a”) between “above” and “specified quantity”.

EPA edited the table to include 

the missing articles.

6c 217 Henshel 16. Page A-26 – last column, first paragraph – this section (and its text 

tie-in) is just calling out for a discussion of the implications of lack of 

required training on personnel at the facility if exposures indeed rise.

Additional discussion would 

not fit into table format. No 

action was taken.

6c 218 Henshel 17. Page A-29 first column – need a space between paragraphs. EPA added spaces between 

paragraphs throughout the 

document for consistency. 

6c 219 Henshel 18. Page A-30 third column, first word “these” needs clarification – to 

which regulations is the writer referring. Do not expect the lay audience 

to know for sure. Same point for page A-32 third column, last 

paragraph, second line and again page A-33 second line.

EPA adjusted the language in 

all places on the table where 

this occurs.

6c 220 Henshel 19. Page A-34 third column second paragraph. This very statement 

again seems to call out for a discussion of the implications of the lack of 

record keeping and exception reporting. It is NOT sufficient to point out 

that the 2008 DSW rule changes the recording and record keeping 

requirements.

No action was taken as 

implications are discussed in 

the main body of the report.

6c 221 Henshel 20. Page A-35 first column middle paragraph – clarify, provide more 

detail. Similarly third column second paragraph – specify which 

excluded materials may not qualify as a DOT hazardous material, and 

provide some discussion of the potential implications of this from an EJ 

perspective.

No action was taken as 

implications are discussed in 

the main body of the report
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Comment 

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6c 222 Henshel 21. Page A-36 third column second paragraph – this again needs 

further discussion here and in the text on the possible implication of this 

change due to the 2008 DSW rules. Specifically, would any residues 

from reclamation ever be potentially hazardous and NOT get identified 

as such through the 2008 DSW process.

No action was taken as 

implications are discussed in 

the main body of the report.

6c 223 Henshel 22. Page A-37 GCE: is something missing here? Seems like it. EPA added the missing text.

6c 224 Henshel 23. Page A-49 right hand column, second paragraph – use the full 

citation, not the abbreviated citation. The full citation (ie using the same 

citation format throughout) is more understandable to the lay person.

EPA replaced the abbreviated 

citation with the full citation 

throughout the document.

6c 225 Henshel 24. Page A-52 right column, top line “an SPCC” fix typo Typographical errors were 

corrected.

6c 226 Henshel 25. Page A-61 middle column, top paragraph. Keep citation format 

consistent and summarize the legitimacy criteria in this paragraph, a 

footnote, or the next paragraph.

EPA made the citation format 

consistent throughout the 

document. The table format 

does not have sufficient space

for discussion of legitimacy 

criteria.
D-15

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No.

Comment 

No. Reviewer Comment EPA Response

6c 227 Henshel 26. Page A-63 right column. Provide examples of potential problematic 

emissions that don’t meet threshold criteria and don’t meet other 

applicability criteria. It would be great if the implications of the resultant 

exposure (were this to occur) be determined quantitatively, maybe at the 

mean/lower assumption (9.5 TPY single type HAP) and high assumption 

(24.95 TPY mixed HAP) levels.

Due to insufficient space in 

table format, examples were 

not given. 

6c 228 Henshel 27. Page A-64 – right hand column – No one in this report is discussed 

how much might be released before anything would trigger the need to 

determine if a cleanup is needed. Surely this would help explore the 

potential for a significant disproportionate impact occurring?

There is insufficient space in 

the table format to address this 

issue.

6c 229 Henshel 28. Page A-68, right column, last sentence. Where is the “note below”? 

Probably better to put the note in a footnote on the same page or in the 

right hand column immediately after this paragraph.

EPA removed the reference to 

the "note below." 

6c 230 Henshel 29. Page A-82 on – It is great to have the summary of the Federal 

Regulations here. However, the formatting and depth of each 

discussion is not consistent and needs to be made so. For example, the 

most readable formats start with a sentence or two that talks about the 

relevant regulation(s) more broadly, and then includes a sentence that 

explains the relevance of the regulation to this report/study.

The current contents of 

Appendix A contain sufficient 

description to summarize the 

regulations and their 

implications for this rule. This 

document is not intended to 

provide a thorough description 

of other regulations. Such 

information is available in other 

references. Additional content 

will not be added due to 

limitations on space 
D-16

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Question 

No.

Comment 

No. Reviewer Comment EPA Response

6c 231 Henshel 30. Page A-83 Second paragraph under “Legitimate recycling” – include 

a brief summary of the six criteria referred to here (and elsewhere) and 

not clearly defined. The listing could be in the paragraph, in an offset 

list, in a separated inset box, or in a footnote.

There is insufficient space in 

the table format to address this 

issue.

6c 232 Henshel 31. Page A-84 Top of the page – provide details about standards in 

262.34 (d) and (e). They are not clearly described anywhere. Also 

maintain a consistent formatting for citations.

There is insufficient space in 

the table format to address this 

issue.

6c 233 Henshel 32. Page A-94 Exports first paragraph last two sentences – a) 

remember to keep citations in consistent format. B) To make this 

document most readable, summarize these requirements briefly.

All citations were updated to 

ensure a consistent format. 

Requirements appear to be 

summarized adequately.

6c 234 Henshel 33. Page A-96 – No where is there a discussion of at what point in a 

chain of non-compliance would the chain of permission stop and 

oversight identify a problem that needs to be addressed.

This as an enforcement and 

compliance issue that would 

need to be addressed by 

individual EPA Regional or 

authorized state agencies.

6c 235 Henshel 34. Page A-99 bullets under 5.3.3 In each bullet, first identify the key 

factors that determine whether processes fit as Program 1, 2 or 3 (i.e. 

defined for the appropriate bullet). These three was to characterize a 

process are never clearly defined throughout this whole document. This 

would seem to be the place to put those definitions.

The current contents of 

Appendix A contain sufficient 

description to summarize the 

regulations and their 

implications for this rule. This 

document is not intended to 

provide a thorough description 
D-17

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Question 

No.

Comment 

No. Reviewer Comment EPA Response

of other regulations. Such 

information is available in other 

references. Additional content 

will not be added due to 

limitations on space.

6c 236 Henshel 35. Page A-106 5.8.2 line 3 – TSDFs is an acronym that is never 

defined.

EPA added acronym 

definitions in the text and 

provided a glossary and a list 

of abbreviations and acronyms 

in an appendix.

6c 237 Henshel 36. Appendix B is good to have, as is Appendix C and D. Note that in 

Appendix B, and in a few other places, the writer uses the personal “we” 

instead of a noun. This is formal writing and should not include any first 

person (personal) pronouns anywhere in the document. Search to find 

the “we”s and rewrite to replace the personal pronoun with a clearer 

sentence using the impersonal 3rd person or noun.

EPA eliminated the use of "we" 

throughout the document.

6c 238 Henshel 37. Page B-2 first paragraph. Need to add a sentence that explains 

why it is important to understand what a “wastewater” versus a 

“nonwastewater” is.

Clarifying language was added 

to page B.2.

6c 239 Henshel 38. Page B-3 table bottom: POTW and NPDES is not defined here or 

elsewhere in the document. Acronyms are best spelled out the first time 

they are used in any given chapter, and still it is kind to the read to 

provide a Table of Acronyms and Abbreviations, and spelling out of all 

acronyms in footnotes for any table in which they are used.

EPA added acronym 

definitions in the text and 

provided a glossary and a list 

of abbreviations and acronyms 

in an appendix.

6c 240 Henshel 39. Appendix C is written like an abbreviated technical reference 

manual, but without the definitions usually included in such a manual. 

Most of this section reads like a jargonfest, and is not accessible to the 

lay reader. 

The current contents of 

Appendix A contain sufficient 

description to summarize the 

regulations and their 

implications for this rule. The 

implications of information is 
D-18

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

are explained for the more 

general reader in Section 2 of 

Volume 1.

6c 241 Henshel a. Identify all acronyms and abbreviations. There’s two in the 

second paragraph.

EPA added acronym 

definitions in the text and 

provided a glossary and a list 

of abbreviations and acronyms 

in an appendix. The second 

acronym is a reference code 

from the database used to 

develop the hazardous waste 

facility estimates, and has no 

direct English language 

definition.

6c 242 Henshel b. In the introductory section, explain by the K, F, U, P and D codes 

represent, how they are used, and how understanding the coding was 

needed for the environmental justice analyses.

Information was added to 

glossary.

6c 243 Henshel c. Explain all codes that have no other referent to explain them. For 

example, on page C-5 top line, F037-F038 codes are referred to without 

placing them in any context or defining what these codes cover.

Information was added to 

glossary

6c 244 Henshel d. Table C-1 needs some additional explanation before it will be 

easily read by the lay reader.

The current contents of 

Appendix A contain sufficient 

description to summarize the 

regulations and their 

implications for this rule. This 

document is not intended to 

provide a thorough description 

of other regulations. Such 

information is available in other 

references. Additional content 
D-19

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Question 

No.

Comment 

No. Reviewer Comment EPA Response

will not be added due to 

limitations on space.

6c 245 Henshel 40. Appendix D is written in a way that is essentially understandable. 

However in two places, where groups are moved from the logical 

grouping to a not as obvious grouping, explanation is needed for why 

the move was made. These points are on Page D-3 bottom of the page, 

and on Page D-5 top of the page.

EPA added explanatory 

sentences to clarify the change 

in grouping.

6c 246 Henshel 41. Appendix E needs some clarifying verbiage written in easy to 

understand English. The two ratios could, for example, be easily 

explained by one or two sentences. The description of the tests are 

more theoretical in places. Specific places that clarification is needed 

includes:

A new description of the 

Fischer's Exact test was 

provided.

6c 247 Henshel a. Page E-9 bottom of the last Fisher Exact Test paragraph, there is 

no explanation for why or when the minus sign is removed, nor where 

the minus sign is likely to show up and why.

A new description of the 

Fischer's Exact test was 

provided.

6c 248 Henshel b. Page E-10 – it is not clear what the tables are for the various 

states. Add clarifying language.

A new description of the 

Fischer's Exact test was 

provided.

6c 249 Henshel Since these tests are not always run (but should be) the verbiage should 

include an explanation of why they are not run in some situations in the 

analysis and are run in other, apparently similar situation.

A new description of the 

Fischer's Exact test was 

provided.

Gb 19 Henshel In no scenario was there a consideration of generators who consistently 

function in violation of the regulations once they start handling waste 

under the 2008 DSW rule. As there are such companies, this would 

seem to be a scenario to include, or at least discuss, in an EJ analysis.

EPA expanded the discussion 

of compliance under DSW vs. 

HW regulations.
D-20

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Question 

No.

Comment 

No. Reviewer Comment EPA Response

Gb 20 Henshel No scenario considered the possibility of the impact on the community if 

a generator acting under the 2008 DSW rules goes out of business with 

accumulated, non-processed, possibly not appropriately contained 

excluded hazardous material waste on the property. Yet this situation 

would only happen (legally) under the 2008 regulations, not under the 

previous HSM regulations.

EPA added a discussion of 

generators going out of 

business to Section 2.5.1 of 

document.

1a 50 Ferris In addition to the advantage of adhering to RCRA’s decades old cradleto-grave protective framework, consider whether requiring a streamlined 

notice and record-keeping process for generators, receivers and 

recyclers of HSM benefit EPA and states e.g., monitoring, as well as 

data that shows the environmental and economic benefits of HSW 

exclusions?

N/A (comment on 2008 DSW 

rule)

2b 65 Daley Without adequate record-keeping and environmental protection 

safeguards (streamlined requirements would not be objectionable), the 

international export exclusion/scenario is troubling re potential releases, 

impacts, whether or not the recipient nation has genuine knowledge of 

the contents and consents to the receiving the export; see e.g., Circle of 

Poison and pesticide regulation. 

EPA expanded the discussion 

of exports in the scenarios.

6c 190 Ferris Should record-keeping include quantities of HSW generated? This data 

would be useful for emergency planning and response as well as helpful 

to determining economic and environmental benefit.

N/A (comment on 2008 DSW 

rule)

2a 57 Daley Yes, the scenarios clearly define how EPA thinks facilities may react to 

the rule. Table 2.1 is particularly useful in outlining the baseline and 

potential changes based on the DSW Exclusions. I would however, like 

to know how the EPA developed these scenarios. Are these based on 

professional experience, or did the agency talk with the regulated 

community to get a sense of potential reactions to the DSW Exclusions? 

If it is the latter, could the report provide more detailed information 

regarding the feedback from the regulated community? If it is the 

EPA added discussion of how 

scenarios were chosen to 

Section 2.1.
D-21

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No.

Comment 

No. Reviewer Comment EPA Response

former, it would add value to outline some of the ways in which that 

experience shaped the discussion / selection of the scenarios. 

2a 60 Henshel What is lacking overall from the analysis, from the Hazard 

Characterization step onward, is any discussion or analysis of the 

implications (i.e secondary consequences) of each of these assumptions 

(about the possibility of increased exposure) for total exposure and 

estimated changes in risk values for the potential EJ communities (ie 

those communities within 3 km of each facility, according to this report).

EPA added language 

throughout Section 2 on the 

possibility of increased 

exposure to communities as a 

result of hazards identified.

2c 73 Ferris Does worker training (e.g., protection standards, labeling, handling) or 

the lack of it at relevant/specified facilities factor into the EPA hazard 

analysis?

Worker training is discussed in 

the regulatory comparison 

section. No further action was 

required.

2c 74 Ferris Does emergency response and planning, the existence or lack of these 

programs, factor into the EPA hazard analysis? Similarly, does 

eliminating the requirement for a Manifest (or some version of a tracking 

mechanism) factor into possible increases or reductions in the 

emergency response preparedness and planning, enforcement or 

compliance monitoring? 

Both emergency planning and 

the manifest are discussed in 

the regulatory comparison 

section. No further action was 

required.

2c 77 Ferris Does the EPA hazard analysis factor imposition (or not) of container 

integrity and container management standards into the determination of 

the potential or actual hazards associated with higher storage volumes, 

and/or higher concentrations of HSW? What constitutes a safe 

“container?” Does the analysis factor in whether making storage subject 

EPA added language to 

sections discussing storage 

that applied to containers.
D-22

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Question 

No.

Comment 

No. Reviewer Comment EPA Response

to controls, environmental monitoring and inspections increases or 

reduces community protection?

2b 66 Henshel a. Unlikely” scenario 1: If the cost of recycling off-shore (Africa, 

China) are low enough, these lower costs will offset the additional costs 

of transportation to get the now excluded hazardous waste (which costs 

less also as an excluded waste, and one for which the same expensive 

containers do not have to be bought). This is a reasonable scenario (not 

unlikely) unless the EPA provides calculations to prove that the costs of 

transportation would never be overcome by the reduced costs of 

recycling in Africa or China. It is also disturbing that there is insufficient 

discussion and analysis of EJ concerns for the locations of the recycling 

plant and no discussion and analysis of EJ concerns for the locations 

where recycling is carried out in another country. (This last sentence 

applies as well to the whole report.)

EPA elaborated on exports 

given existing scenarios rather 

than creating a new scenario 

only focused on exports of

wastes to other countries. 

2c 72 Ferris Intervening prior to a release is clearly preferable – the possibility of 

enforcement action prior to a release would be protective and more 

likely in the event that there are clear regulations e.g., storage 

limitations, labeling requirements and requirements related to the 

integrity of storage containers and areas.

EPA added discussion on 

preventive enforcement to the 

enforcement section. 

6c 187 Ferris Is there sufficient analysis of the impacts of storing HSW in land-based 

units such as pits, ponds and lagoons. Should standard RCRA 

regulatory controls apply where HSW is stored in such land-based 

units?

EPA added language about

the impacts of land-based 

storage units in the storage 

section.

2c 79 Henshel Toxicity information: When applicable, endocrine disruption toxicity is not 

even mentioned. Developmental toxicity of heavy metals would also 

seem to be an important, very sensitive effects indictor to mention.

Further research indicated that 

specific contaminates 

discussed did not include 

endocrine disruptors.
D-23

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

2c 80 Henshel p 19 top of the page. There isn’t mention of fugitive emissions (leaks at 

valves, escape at points of transfer) as part of the way in which 

hazardous materials/waste can be released.

The section described by the 

commenter discussed the 

activities that involve HSM. 

Associated hazards, including 

fugitive emissions, are 

discussed on the following 

page.

4g 142 Daley There is considerable selection bias or selection effect in the 

“notification” facilities and likely also in the damage facilities. It is likely 

that these early adopters (notification facilities) are significantly different 

(and non-randomly distributed) compared to the three remaining 

categories. Damage facilities are also likely to be systematically 

different. I am not sure exactly how to address this, but it seems like 

something that the agency needs to consider. Perhaps analyzing a 

comparison group of randomly selected and/or “matched” facilities could 

be useful, in addition to the broader state and national comparisons. 

EPA added discussion on 

selection bias for both 

"notification" facilities and for 

"damage" facilities to Section 

4.4.1.

6c 198 Henshel Population level analysis table results seem to show that there is a 

numbers (sample size) bias in the level of statistical significance. Once 

the notification facilities used in the analysis are pooled, or incorporate 

facilities from other states as will, to increase sample size, chances are 

that these results will also be significant in a pooled state analysis. Thus 

the need to do both pooled state, and divided state, to assess how much 

of the sensitivity might be sample size. It is also important to note that in 

regions with few Blacks, or few minorities, the minority population 

comparisons are always less of a driver than the low income analysis, 

as in these regions, are larger percentage of the low income community 

is white. This is true in Indianapolis, where there is a significantly large 

percentage of poor whites. In Northwest Indiana, however, there are 

more minorities, and minority population comparisons drive the EJ 

analysis results as strongly, or more strongly, than the low income 

analysis.

Discussion on the affects of 

uniform population distribution 

on the analysis was added to 

Section 6.1.4.
D-24

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

ESa 35 Henshel The summary of Finding 4 should include some discussion of the other 

three categories not discussed in the executive summary (example, 

susceptible populations). You might include leaking septics in the list on 

the top of page xiii (under multiple and cumulative effects), as leaking 

septics are more likely to be addressed more slowly, and thus pose a 

higher health risk, in low income communities.

Discussion on leaking septic 

tanks was added to the 

Executive Summary. 

Discussion of additional 

vulnerability factors was not 

provided because analyses for 

these were not available.

5a 160 Ferris Where does immigrant status factor into vulnerability factors? Addition discussion on the 

immigrant status and English 

literacy was added to Section 

5.1.4.

5c 171 Ferris Immigrant status, particularly new immigrants and undocumented 

workers and residents constitute an important additional factor.

Addition discussion on the 

immigrant status and English 

literacy was added to Section 

5.1.4.

5c 173 Henshel Other health endpoints to consider include: low birth weight as a 

measure of embryonic development; some measure of endocrine 

disruption including, and particularly, thyroid disruption, although other 

endocrine function indices should also be considered, such as diabetes; 

and some measure of IQ in children, if this is available.

Review of the specific 

contaminants reviewed in 

Section 2 indicated that none 

were endocrine disruptors. 

2c 78 Ferris Intermediate facilities and off-site HSM self policing may not be effective 

as a means to ensure protection of health and the environment in 

communities whether disproportionately affected or not.

EPA added additional 

discussion on strategies to 

mitigate impacts.
D-25

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

6c 201 Henshel The proposed regulatory and implementation measures section needs 

solid expansion. It’s truly pitiful right now. It should also be noted that 

without regulatory clarification of some of the weaknesses in the 2008 

DSW rule, enforcement is only as strong as the environmental 

consciousness of the administration. Even with revised regulation, 

enforcement and oversight is susceptible to political influence, just 

somewhat less so. Monitoring is not as much a part of the 2008 DSW 

rule, so how could monitoring data be used to help ensure facilities are 

not creating more of an exposure hazard for their communities under the 

new rule?

EPA expanded on the 

discussion of proposed 

regulatory and implementation 

measures in Section 6 in order 

to add clarity.

3c 106 Henshel Other environmental justice analyses have used other diameters to 

define the proximate neighborhoods. On studies of Indianapolis, 

especially, we have tested multiple diameters (all smaller than 3 km –

0.5, 1 and 2 km) and typically found 2 km to be a good cut-off to define 

proximate communities. It would seem that this question should be 

answered in the study, that is, that the study design would test multiple 

possible diameters (or donuts) around the facilities and determine which 

diameter provides the most sensitive distinction. It is quite possible that 

different types of facilities would have different cut-off diameters, based 

on differences in potential for dispersal/distribution of (excluded) 

hazardous waste (i.e. as liquid solvent waste or dust).

EPA determined that a 3-km

radius is commonly used in EJ 

analyses. EPA has added a 

such as the sensitivity at 1-km 

radius.
D-26

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

3c 107 Henshel In conducting similar EJ analyses, using TRI facilities, we discovered 

that we had to truthed the facility addresses to the GPS coordinates by 

on the ground determination of whether the address listed for the facility 

was actually the address of the releasing facility or the address of 

company offices. Even when the two buildings were on the same 

campus, and not separated by miles, the difference between the 

buildings (between the addresses) could be a significant distance (on a 

mile long campus, they could be a mile apart), and thus could affect 

which neighborhoods were included in the proximate circle. From the 

information provided in chapter 3 about the methods used for obtaining 

GPS coordinates, it appears that this truthing was never done or even 

attempted for this analysis. No efforts were apparently made to 

ascertain whether the listed address referred to the hazardous materials 

processing location or to the main offices.

EPA added language in 

Section 3 noting that 

verification of GIS coordinates 

was beyond the feasible scope 

of this analysis.

4g 144 Henshel No – see comments above about problems with addresses linked to 

facilities that have corporate offices away from the processing facilities, 

even when the two buildings are on the same campus.

EPA added language in 

Section 3 noting that 

verification of GIS coordinates 

was beyond the feasible scope 

of this analysis.

4d 128 Henshel It is also appropriate to use the more commonly used cut-off of 2x the 

poverty line, since even families at 2x the poverty line are struggling just 

to provide food and shelter these days. The census determined poverty 

line (that is, above or below the threshold) does not include childcare 

costs, as one example of the kind of critical expenditures that enable 

both parents to work. Thus it would be appropriate to test poverty 

threshold versus 2x*poverty threshold as the criteria for determining bias 

in representation of low income populations with regard to proximity to 

the HSM or DSW facilities.

EPA has revised the analysis 

to use the 2x the poverty line 

standard.
D-27

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

4e 135 Henshel The analysis should be broken out by state for all the analyses, and 

similarly, the notification facility results could be summed across states, 

as was done for the other types of facilities, even though the states 

covered are small in number compared to the total number of states 

represented in the analyses for the other facilities. That discrepancy 

should be pointed out in the legend. Yet there needs to be some way to 

compare across analyses. Only summing across states for most, and 

separating out one subset of data makes it hard to compare across 

results.

An appendix has been added 

showing the breakout by State, 

County, Urban, and Rural for 

all groups for all demographics 

in one table

4d 125 Daley Yes. A statistical analysis of these results is an appropriate method to 

understand patterns in administrative and community level data. These 

patterns can reflect social and environmental disparities and the EPA 

can consider these patterns for future decision making. Note however, 

that the analysis presented in Chapter 4 did not include a comparison 

between community (3 km buffer area) and county level characteristics. 

State, national, and urban and rural were examined, but county 

information was not analyzed in this section of the report. County level 

information and analysis would have added value to this report. 

An appendix has been added 

showing the breakout by State, 

County, Urban, and Rural for 

all groups for all demographics 

in one table.

6c 183 Daley In addition, it would be helpful to have county level comparisons for the 

community analysis. I am less certain that this addition would 

significantly change the conclusions, but it may strengthen the 

recommendations.

An appendix has been added 

showing the breakout by State, 

County, Urban, and Rural for 

all groups for all demographics 

in one table

Gb 11 Daley Why are urban and rural comparison omitted for the damage case 

facilities? Consistent analysis across categories is important. If the 

analysis cannot be performed for some reason, an explanation in the 

text would be helpful.

An appendix has been added 

showing the breakout by State, 

County, Urban, and Rural for 

all groups for all demographics 

in one table.
D-28

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

4e 137 Henshel The first set of analyses for each facility type would be better and more 

clearly represented by box and whisker plots. When using box and 

whisker plots, it is important to explain (for the lay audience) what data is 

represented in each part of the plots at some point in the chapter. With 

that explanation, the box and whisker plots provide more information for 

the comparisons, and provide a visual sense of variability and bias 

around the means.

Additional diagrams and 

algorithms would not add 

clarity to the topic..

4h - 2 148 Daley Option 2 has the strongest potential to add to the ability of the agency to 

draw inferences from their data sources. If statistical analysis indicates 

systematic socioeconomic and demographic differences in area with and 

without facilities, then this provides even stronger evidence of the 

distributional affects of decision making. In addition to this, it would be 

ideal if the agency could model cumulative environmental stressors in 

communities in a more integrated fashion. Rather than simply noting 

multiple stressors in the notification areas, provide some indication of 

cumulative stressors in the other categories as well (damage case 

facilities, hazardous waste, and non-hazardous industrial waste). 

Additional analyses are 

beyond the scope of this effort.

4h - 2 149 Ferris The reviewer is uncertain if this analysis will yield additional useful 

information other than another take on areas where disproportionate 

impacts occur.

The purpose of the analysis is 

to support the DSW 

rulemaking.

4h - 2 150 Henshel Yes – this provides a better comparison group – a counterfactual. Additional analyses are 

beyond the scope of this effort.

4h - 3 151 Daley See 2. above. Additional analyses are 

beyond the scope of this effort.

4h - 3 152 Ferris This comparison may yield information about metropolitan areas where 

disproportionate impacts exist.

Additional analyses are 

beyond the scope of this effort.
D-29

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

4h - 3 154 Ferris Do host metropolitan areas factor in rural areas where capacity, 

including staffing, to oversee HSM facilities may be more limited 

compared to urban and suburban areas.

Language has been added to 

the report clarifying that the 

analysis does not explicitly 

factor in the capacity of local 

governments to oversee HSM 

facilities.

4h - 3 155 Henshel Yes, this also would be a very appropriate comparison to include. Additional analyses are 

beyond the scope of this effort.

4d 127 Henshel Yes, statistical methods are appropriate in general. However, a more 

sensitive analyses seems to be to break the demographics up (quartiles, 

quintiles) into some binned division of the total range, create donuts 

around the facility, and run the analyses as a regression of the 

demographics against proximity. You are able to detect (significantly) 

more subtle shifting of demographics over time.

Additional analyses are 

beyond the scope of this effort.

Gb 21 Henshel The methods for analysis of environmental justice impacts (as in biases 

in the siting) are not as sensitive as might be obtained with using 

regression analysis and grouping the data into maybe quartiles rather 

than doing all analyses on data that has only been divided into two 

categories (ie equivalent of yes/no data).

Additional analyses are 

beyond the scope of this 

effort..
D-30

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

Ga 2 Daley To fully understand the differential impact of the 2008 DSW final rule on 

low income and minority communities and populations, it would be 

helpful to have a meaningful baseline analysis. What if continuing to 

regulate HSM under RCRA has even greater environmental justice 

impacts? The report and analysis do not provide that information. So, 

there is no way to identify if the 2008 DSW rule – while likely to have 

disproportional impacts – is an improvement over current reclamation 

and disposal practices under RCRA. I recognize this analysis would 

entail considerable work, but if HSM regulated under RCRA currently 

has even greater environmental justice impacts, then this would be very 

important to know this as decision making proceeds. 

EPA believes that the 

regulatory comparison 

between hazardous waste 

regulations and the 2008 DSW 

rule already includes a 

qualitative discussion of the 

baseline impacts at hazardous 

waste, since the discussion 

includes the benefits of the 

2008 DSW rule (which would 

mirror the "impacts" of 

hazardous waste regulations). 

In addition, hazardous waste 

facilities are one of the 

categories in the demographic 

analysis. To address this 

comment, EPA added 

discussion to make this 

clearer.

Gc 22 Daley It seems like the document is quite thorough. As noted in my response 

to question Ga, the document would be improved by a assessing the 

Environmental Justice impacts of the baseline – or RCRA’s approach to 

HSM recycling and disposal. 

Such baseline analysis is 

already captured in regulatory 

comparison and in the analysis 

of hazardous waste generators 

and recycling facilities. EPA 

added discussion to make this 

clearer.

4b 118 Ferris In disproportionately affected communities, the issue is not whether 

there will be impacts; rather the issue is what the full extent of the 

hazard impacts will be.

N/A
D-31

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

Ga 1 Daley My overall assessment is that the report manages to present a very 

complex decision making process and analysis in a fairly clear and 

accessible fashion. The discussion of potential hazards and exposure 

pathways seems clear and complete. The eight scenarios are clearly 

laid out. There report is quite detailed. The main points seem to be that 

the 2008 Draft Solid Waste Final Rule (DSW) enables generators to 

store more hazardous secondary material (HSM) for a longer period of 

time, and provides no prescriptive standards to ensure safe 

containment. Transporters of waste and intermediate and reclamation 

facilities are also impacted in ways not necessarily analyzed in the initial 

consideration of the rule change. Decreased transparency and public 

participation provisions combined with deregulation of hazardous 

secondary material to encourage reclamation is likely to have differential 

impacts across the county. The findings from this report present the EPA 

with a challenge. Recycling hazardous secondary material presents 

significant health and environmental hazards, and the 2008 rule change 

is not uniformly health protective. According to this analysis, some 

communities will be more impacted than others, and this differential 

impact has direct environmental justice implications.

N/A 
D-32

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

Ga 5 Henshel In addition, the analysis never included taking the example situations 

(places where greater exposure by the neighbors could occur, for 

example) and quantifying the potential impact on the neighboring 

community (maybe within the 3 km diameter defined “proximity to site” 

area). Using the basic approaches for predictive risk assessment, one 

would take the real situation, make assumptions for the average and 

high end of the range for the increased exposure situation, calculate the 

potential increased exposure to the chemicals, and then calculate the 

potential for increased risk, with average and high end assumptions. At 

least one such scenario calculated for each situation identified as 

potentially increasing exposure under the new regulations would be 

helpful in determining just how critical revising the regulations would be. 

It would have been even better to then recalculate the exposure and risk 

inherent in at least a few scenarios with the assumptions made under 

the recommendations for revision of the 2008 DSW rule, weak and nonspecific as those recommendations were.

Assessment of the full extent 

of the impacts would require a 

formal risk assessment. EPA 

did not pursue this because it 

would be too difficult to pick 

“example” scenarios that would 

cover the range of possibilities, 

and the analysis would be too 

sensitive to potential bias in 

upfront assumptions..

3 95 Ferris Diversion of materials from the waste stream is beneficial (although on it 

face, without safeguards, reclamation falls short of environmental 

justice) and should be accompanied by adequate protections for health 

and the environment.

Further discussion of benefits

has been added.

ESb 39 Ferris The benefits (per language in the Scenarios) don’t balance the potential 

negative impacts. This could be more clearly set forth or demonstrated. 

Although the reviewer does not express agreement that any benefits 

would offset the potential hazards or actual hazards, more clarity or 

quantification of benefits would strengthen the analysis.

Discussion of trade-offs has 

been added.

4d 129 Henshel Given the neighborhoods in which these facilities are placed, it would 

seem to be appropriate to at least consider other toxic stressors, such 

as TRI facilities or road density as part of the EJ analysis looking at 

cumulative exposure potential (based on permit data for the 

HSM/potential DSW facilities for maximal exposure estimates).

Additional analyses are 

beyond the scope of this effort.
D-33

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

5a 157 Daley Yes. The agency has identified a wide range of stressors that can shape 

individual and community vulnerability. Additional resources that the 

agency could consider - particularly if they embark on a more detailed 

county level comparison – include the county health rankings 

(http://www.countyhealthrankings.org/). 

Additional analyses are 

beyond the scope of this effort.

5c 170 Daley If the country level examination is pursued, the agency might be able to 

rely upon data compiled under the country health rankings. Otherwise, 

the data presented in the report seems adequate. 

Additional analyses are 

beyond the scope of this effort.

6c 195 Henshel Table 5.1 would allow for a very nice small cluster analysis (or principal 

component analysis) to look at which emissions and types of facilities 

link with which endpoints, and (using maybe MANOVA) incorporating 

transportation and health care availability would be interesting as 

confounding variables.

Additional analyses are 

beyond the scope of this effort.

2b 62 Daley Is there a significant possibility that small businesses could be more 

vulnerable to sham recycling if many won’t have the capacity and 

staffing to thoroughly assess recyclers?

EPA added discussion of 

"reasonable efforts" audits. 

The supplementary text was 

added to Sections 2.5.2 and 

5.1.4.

2c 70 Ferris The selection of electric arc furnace dust and solvent wastes as national 

HSM proxies appears sound based on the analysis. Excluding used oil, 

non-ferrous metals and scrap metals from the hazard analysis, although 

associated with “damages cases?”

EPA added discussion on 

hazard characterization to 

Section 2.2.2.

3a 97 Ferris Are the facilities that gave notice located; in disproportionately affected 

communities or not? The recycling exclusions should not exacerbate 

impacts or exposures in these communities. A troubling compliance 

history could signal future endangerment of the health and the 

environment.

EPA added to the discussion in 

Section 6.1.4 to clarify the 

results of demographic 

analysis for notification 

facilities. 
D-34

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

3b 99 Daley I cannot comment directly on whether or not the annual marker of 25 

tons of recyclable material is appropriate. The report provided limited 

justification for this cut off point, and while it seems reasonable, 

someone with more applied experience in waste management and 

reclamation may think otherwise

EPA added language to 3.2.3

to explain the 25-ton cut-off, 

and how the number of 

facilities might change with a

1-ton and 100-ton cut off. 

3b 100 Ferris Is the 25-ton threshold empirical? EPA added language to 3.2.3

to explain the 25-ton cut-off, 

and how the number of 

facilities might change with a

1-ton and 100-ton cut off.

4b 116 Ferris Have either the absence of these protections or the “real world” 

limitations on a community’s ability to publicly participate been evaluated 

as an impact upon low income communities and communities of color?

EPA added discussion on 

public participation to the 

executive summary and 

conclusions.

4b 120 Ferris Potential impacts associated with transportation of HSW warrant a 

closer look.

Additional description of the 

hazards associated with 

transportation of HSM has

been added.

4e 132 Henshel There is a lot of detail provided for some of the analyses. Other 

analyses (producing some of the results listed in the tables) do not have 

such clear or extensive or sometimes even any clear statement of how 

some calculations were made. At the very least, a clear, jargonless 

description of how each column in each table was determined should be 

evident in the text in proximity to the tables.

EPA added additional 

descriptions to Section 4.

4e 133 Henshel There needs to be an explanation of why some Fisher’s analytical 

results are listed as N/A.

EPA added additional 

descriptions to Section 4.
D-35

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

5a 161 Ferris Should whether the generator is a small business factor into community 

vulnerability? For example, some small businesses could be less likely 

due to capacity to conduct in-depth due diligence or examinations of 

HSW facilities or how their wastes are recycled.

EPA added discussion on this 

topic to 2.5.2 and 5.1.4.

5b 166 Ferris Ability to participate in the decision making process is a stated 

environmental justice vulnerability; however, this section states explicitly 

(in clear contradiction) that community input is not required of facilities or

regulators.

EPA added discussion on this 

topic to 2.5.2 and 5.1.4.

6c 184 Daley Finally, the report would also benefit from a clear assessment of 

compliance under RCRA and the DSW final rule. If there are no 

prescriptive standards for storing waste while waiting to reclaim/recycle, 

are facilities more likely to have accidents? 

EPA added discussion on this 

topic to the Executive 

Summary and Conclusions 

sections.

6c 193 Ferris Tribes, including Inuits, will need additional resources to staff and 

implement the DSW Rule. Should more cases on Native lands be 

included in the damages cases analysis?

EPA added discussion about 

Tribal representation to 

Section 4.2.2.

ESb 37 Ferris The “Summary of Potential Impacts...Under Different Recycling 

Scenarios” is clear however the accuracy of the presumptions is 

challenged by the language on its face. Pursuant to Hazard 

Characterization, EPA demonstrates and discusses the highly 

hazardous nature of the 2 main sources of reclaimed hazardous 

secondary materials (hereafter HSM) upon which much of the Draft 

DSW Rule analysis is based in addition to the storage hazards including 

leaks, fires and explosions. Container standards do not appear to 

compare with the highly hazardous nature of the 2 main sources upon 

which much of the Draft DSW Rule analysis is based.

EPA added discussion to the 

Executive Summary.
D-36

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

4a 109 Daley The census data that the EPA uses for this analysis is standard. 

Improvements would include relying upon the 2010 census numbers to 

more accurately reflect community composition. If possible, it would be 

ideal to be able to rely upon the American Community Survey (ACS) to 

obtain more detailed and temporal information on community change. 

However, I am not sure that the sample size for the ACS are adequate 

for this facility based approach. It may be that by drilling down to the 

facility level and relying upon survey rather than census data, introduces 

too much variability. 

The analysis has been 

updated with the 2010 census 

data

4b 121 Henshel The same methods and break outs should have been carried out for all 

analyses. There should not have been different protocols and analyses 

used for some types of facilities and not for others. There should have 

been a break out of asian, black, other minority, and possibly immigrant 

populations for all facilities.

The EJ Characteristics 

selected were based on EO 

12898 and 13045. 

4e 136 Henshel The same set of demographics should be tested for all types of facilities 

for all types of analyses. There is no justification for cutting back to 4 

categories of analysis for some analyses, and none is given.

EPA added descriptions of why 

additional demographics were 

analyzed for notification 

facilities. 

4f 140 Ferris Would assessment of an additional number of damages case affect the 

assumptions? 

EPA has updated the damage 

case list.
D-37

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

4h - 3 153 Ferris Has EPA evaluated additional damages cases? Is the pool of 218 

adequate to reveal the widest reasonable range of damages, potential 

damages and types of comparisons?

EPA has updated the list of 

damage cases.

6c 182 Daley An environmental justice analysis of current regulatory practices for 

those states and facilities not adopting the 2008 DSW Final Rule would 

be helpful and may provide guidance if regulatory changes to the DSW 

rule are likely. The assumption seems to be that the status quo before 

the rule is neutral for communities of concern. Given the weight of the 

evidence in the environmental justice literature, this is not likely a 

reasonable assumption.

An analysis of the 

demographics around Subtile 

C disposal facilities has been

added. 

6c 188 Ferris Does the DSW Rule consider the affects of tracking, monitoring and 

enforcement across multiple state lines or, nationally, whether HSW 

transport will operate smoothly across multiple state programs? Is there 

favorable or negative impact on interstate commerce?

EPA added discussion on the 

analysis of interstate tracking, 

monitoring and enforcement in 

the conclusions section of the 

report. 

6c 191 Ferris Has EPA assessed profitability and the viability of end-use markets for 

various HSW and facilities? Would lack of markets affect, encourage or 

discourage a facility from taking steps and investing in protecting health 

and the environment?

A reference the EPA’s An 

assessment of markets and 

the associated with hazardous 

waste recycling is presented in 

the supporting document, "A 

Study of the Potential Effects 

of Market Forces on the 

Management of Hazardous 

Secondary Materials Intended 

for Recycling” has been added

1a 43 Daley Yes, the Introduction is clear. It is easy to follow and well organized. N/A
D-38

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

1a 44 Ferris Summary of DSW EJ Methodology is clear and concise with a couple of 

exceptions.

N/A

1a 49 Ferris In view of the complexity of what is explained, Scenarios are clear N/A

1a 51 Ferris The threat of post facto CERCLA liability is not interchangeable with upfront environmental protection standards and requirements. This 

reviewer does not presume that the entire regulated community is 

villainous; however, any vigor/rigor that a generator, receiver, recycler 

might invest in environmental protection could wane as oversight and 

compliance requirements are reduced or eliminated. 

N/A

1a 52 Henshel No complaints. N/A

2a 58 Ferris The description of potential scenarios is clear. N/A

2a 59 Ferris The chart situated in the “Overview” section, which describes the 3 

relevant exclusions is clear and concise. The applicability of RCRA (or 

not) is readily discernible from the scenarios.

N/A

2b 61 Daley These scenarios seem plausible. They are described in clear and logical 

detail. 

N/A

2c 67 Henshel Two other possible scenarios to address are listed above under “general 

comments”.

N/A

2c 68 Daley Yes, EPA’s analysis of the types and quantities of hazardous secondary 

material is clear. Figure 1 provides a clear justification for the focus on 

solvents and electric arc furnace dust. 

N/A
D-39

Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

2d 81 Daley It seems as if EPA has noted many of the differences between 

hazardous waste regulations and the changes stemming from the 2008 

Draft Solid Waste (DSW) Final Rule. Table 2.3 is a very detailed 

description of the eight likely scenarios and their impact on generators, 

transporters, and intermediate reclamation facilities. This material clearly 

communicates that there is likely to be substantial changes in the 

accumulation and storage of hazardous secondary material (HSM). 

N/A

2d 85 Ferris Audits of reclaimers are not the same as or superior to periodic 

inspections or other agency oversight.

N/A

3a 96 Daley EPA’s approach to identifying facilities that are likely to begin recycling 

hazardous secondary material seems reasonable. I cannot think of 

another category to include. Out of the categories presented (already 

notified; damage facilities; currently generating hazardous secondary 

material, and facilities that may easily expand or switch to reclamation 

because of the DSW final rule), the last three categories seem more 

useful to understanding likely environmental justice impacts. With only 

40 facilities providing notification at the time of the report, it is likely that 

“street level” implementation will be driven by the larger population of 

facilities rather than early adopters. 

N/A

3a 98 Henshel no comment, outside this reviewer's area of expertise N/A

3b 101 Henshel no comment, outside this reviewer's area of expertise N/A

3c 102 Daley EPA is defining a community as a 3 kilometer circle or buffer around one 

of the facilities included in this analysis. The agency then uses census 

information to apportion socio-economic and demographic ratios within 

this radius. This method is superior to simply using standard census 

divisions such as census tracts, blocks, or even zip code aggregation. 

N/A
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3c 103 Daley The operational definition of “a community” is challenging and the 

environmental justice literature has numerous empirical studies at 

different levels of analysis, sometimes providing conflicting and 

competing results. Thus, using a measure of community with stronger 

measurement validity is important. Like all measurements, this is not a 

perfect representation of “a community”, but it is a much improved 

measure over more traditional approaches, i.e., studies that rely upon 

preexisting census designations to ascertain community characteristics. 

Increasingly, a 3 kilometer radius is becoming a standard approach to 

improving the precision of community measures in environmental justice 

and public health research. 

N/A

3c 105 Ferris EPA synchronizes with Professor Paul Mohai and Professor Robin Saha 

who are doing cutting edge demographic analysis. Their work shows 

increasing disproportionality, for example, nationally, people of color 

now make up the majority of those living within 3-km of such facilities 

and that where facilities cluster they make up over two-thirds. These are 

the highest concentrations of people of color ever reported from a 

national study of the distribution of hazardous waste facilities. 

Furthermore, when applying their recommended statistical analysis, it 

was found that racial disparities persist even when controlling for 

socioeconomic factors such as income, housing values, education, and 

employment status.

N/A

4a 111 Henshel Using census data is standard protocol for many EJ analyses. N/A

4b 114 Ferris Without RCRA status or Treatment, Storage and Disposal (TSD) 

protections, communities will many facilities are not required to get a 

permit, provide notice and opportunity to comment, address public input, 

monitor or be subject to protective container standards or storage time 

limits. These are baseline historic protections that, while they do exist, 

as regards most environmental statutes, they haven’t been updated to 

reflect the “real world” since original passage.

N/A
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4b 115 Ferris Furthermore, taking advantage of existing public participation mandates 

commonly requires a massive investment of usually volunteer 

community resources to engage in a process that is time consuming and 

expensive and in which, comparatively, the private sector and 

government stakeholders have extensive resources and dedicated staff.

N/A

4c 124 Henshel It appears, yes. N/A

4e 130 Daley The statistical analysis seems to be properly done. As far as I can tell, 

these are conditional probability calculations. It is a relatively 

straightforward and simple approach. While I am not a statistician, it 

seems like a reasonable way to approach the analysis. It provides the 

agency with two types of information: the chances that a facility exists in 

a buffer area given the demographic and socio-economic composition 

(threshold risk), and the probability of a particular demographic or 

socioeconomic composition given the likelihood of facilities (the 

demographic ratio). 

N/A

4f 138 Daley Yes, I think the assumptions are accurately presented. Footnotes 34 –

37 are important components in the analysis. The report very clearly 

outlines data sources and how the information is aggregated together. 

As already noted, the distributional assumptions of the areal 

apportionment method should be more fully explained.

N/A

4f 139 Ferris Assumptions appear accurate; however at this reading, this reviewer 

cannot determine whether they are thorough.

N/A

4f 141 Henshel [No response provided] N/A

4g 143 Ferris Uncertainties in the data input in the analysis appear to be appropriate. N/A
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Comment 

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4h - 1 145 Daley See 2. below. N/A

4h - 1 146 Ferris The reviewer is uncertain if this analysis will yield additional useful 

information without an assessment of additional cases.

N/A

4h - 1 147 Henshel Your meaning is not fully clear in this question, and it is not clear what 

analyses you would do to address this question, and how you would 

break up the data. I am also concerned that the number of facilities in 

each group might then be so small as to really decrease power to detect 

significant differences.

N/A

5a 158 Ferris The description of other factors that may affect vulnerability is accurate. N/A

5a 159 Ferris The DSW Rule contains sound baseline vulnerability factors. N/A

5a 163 Henshel [No response provided] N/A

5b 164 Ferris The broader discussion is helpful. The report is complex, removing the 

broader discussion will not simplify the report tremendously. The 

broader discussion, however adds thoughtful detail and clearly 

communicates the challenges confronting public and private decision 

makers. 

N/A

5b 167 Ferris The section is clear that lower participation levels can translate into 

experiencing greater negative impacts since “their input has not been 

considered fully, particularly if competing interests are set forth more 

effectively.” 

N/A

5b 169 Henshel It is better to keep the discussion broader. In this kind of document, it is 

important to include the negative results as well as the positive results.

N/A
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5c 172 Ferris Unfunded mandates would affect EPA ability to ensure compliance if 

enforcement is left to states that don’t have the budget to inspect, 

monitor, notify the public or implement public involvement.

N/A

6a 175 Daley Yes, the conclusions seem to stem directly from the analysis presented 

in the report. 

N/A

6a 176 Ferris The analysis and conclusions are extensive. N/A

6a 178 Henshel Yes, the results support EPA’s conclusions, but likely not as well, 

currently, as they might with more extensive EJ analysis carried out on 

the data.

N/A

6b 179 Daley Yes, I think the agency has clearly differentiated between the community 

level analysis – comparing the 3 km buffer area to state, national and 

urban and rural areas, and the population level analysis – exploring the 

threshold risk ratio and the demographic ratio for a larger set of 

categories (minority, poverty, American Indian and Alaska Native, and 

children under 5). 

N/A

6b 180 Ferris The differences between community level and population level analysis 

are clear.

N/A

6b 181 Henshel I think so, but I am not fully sure that my answer comes from the 

readability and clarity of the explanations – I suspect my familiarity with 

the information is affecting my comfort with the descriptions.

N/A

ESa 28 Ferris The Executive Summary is very clear and readable. N/A

ESa 29 Ferris The material is complex and dense which is to be expected in an agency 

rulemaking.

N/A

ESb 36 Daley Yes, the Executive Summary provides an accurate summary of the more 

detailed material presented in the report. 

N/A
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Comment 

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ESb 42 Henshel See above comments. But yes, the Executive Summary does provide a 

reasonably accurate view of the findings and conclusions of this 

analysis.

N/A

Ga 3 Ferris Generally, the DSW Rule is read-able and clear. N/A

Gb 14 Ferris Generally, information in the DSW Rule presented is clear and appears 

to be accurate.

N/A

Gc 23 Ferris The DSW Rule is an extensive document with significant analysis and 

extensive data.

N/A

Gc 24 Henshel This is a nice review of the data. This is a nice first analysis. 

Improvements can be made. This question is a perfect example of the 

redundancy that could be avoided.

N/A

Ga 6 Henshel Readability. Unfortunately, this document is pretty standard for an EPA 

document. If the audience is only technical, the document is usable and 

readable. If the audience is intended to be the EJ communities and 

include a non-technical audience, this document is dense and difficult to 

read. There is also a lot of “spaghetti” logic – explanations that are 

internally referencing without sufficient definition of terms or acronyms. 

The document is missing some key components that would make it 

more readable. These include:

N/A
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Comment 

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Ga 9 Henshel Utility. This analysis and report does demonstrate that there already is a 

bias in the location of the facilities that already produce hazardous 

waste, and this includes a bias in the facilities that might utilize this rule 

to increase storage time and volume of exempted otherwise hazardous 

materials. The environmental justice analysis could have been more 

complete. Further discussion of other approaches are included below. 

The report does make reasonably recommendations for some of the 

ways that the environmental justice concerns might by reduced, 

although the discussion of these abbreviated comments was both vague 

and needed elaboration. 

An analysis of the 

demographics around disposal 

facilities has been added.

4b 112 Daley Yes. The EPA has selected appropriate characteristics to analyze in this 

report. I think it would be a stronger analysis if along with “children under 

five”, “adults over 65” were included in the detailed analysis in chapter 4. 

Given the demographic transitions of the baby boomers into an elderly 

population, it will become more critical to understand differential 

exposure for susceptible populations at both ends of the spectrum. 

The EJ Characteristics 

selected were based on EO 

12898 and 13045. 

6c 196 Henshel The chapter analyses seem to be ignoring the risk ratio data. Since the 

“full” set of analyses (ie Fishers Exact Test, for example) did not actually 

carry out the full set of analyses (separating out Black and Asian, for 

example), it seems that the results might have been stronger with the 

additional analyses.

Discussion of risk ratio data 

was added to the statistical 

analysis section.

4e 134 Henshel Why are the same charts repeated twice? Is this necessary? Additional discussion was 

added to Section 4 to clarify 

charts.
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4a 110 Ferris EPA synchronizes with Professor Paul Mohai and Professor Robin Saha 

who are doing cutting edge demographic analysis. Their work shows 

increasing disproportionality, for example, nationally, people of color 

now make up the majority of those living within 3-km of such facilities 

and that where facilities cluster they make up over two-thirds. These are 

the highest concentrations of people of color ever reported from a 

national study of the distribution of hazardous waste facilities. 

Furthermore, when applying their recommended statistical analysis, it 

was found that racial disparities persist even when controlling for 

socioeconomic factors such as income, housing values, education, and 

employment status.

N/A

4c 123 Ferris EPA synchronizes with Professor Paul Mohai and Professor Robin Saha 

who are doing cutting edge demographic analysis. Their work shows 

increasing disproportionality, for example, nationally, people of color 

now make up the majority of those living within 3-km of such facilities 

and that where facilities cluster they make up over two-thirds. These are 

the highest concentrations of people of color ever reported from a 

national study of the distribution of hazardous waste facilities. 

Furthermore, when applying their recommended statistical analysis, it 

was found that racial disparities persist even when controlling for 

socioeconomic factors such as income, housing values, education, and 

employment status.

N/A

4d 126 Ferris EPA synchronizes with Professor Paul Mohai and Professor Robin Saha 

who are doing cutting edge demographic analysis. Their work shows 

increasing disproportionality, for example, nationally, people of color 

now make up the majority of those living within 3-km of hazardous waste 

facilities and that where facilities cluster they make up over two-thirds. 

These are the highest concentrations of people of color ever reported 

from a national study of the distribution of hazardous waste facilities. 

Furthermore, when applying their recommended statistical analysis, it 

was found that racial disparities persist even when controlling for 

N/A
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Comment 

No. Reviewer Comment EPA Response

socioeconomic factors such as income, housing values, education, and 

employment status.

4e 131 Ferris EPA synchronizes with Professor Paul Mohai and Professor Robin Saha 

who are doing cutting edge demographic analysis. Their work shows 

increasing disproportionality, for example, nationally, people of color 

now make up the majority of those living within 3-km of hazardous waste 

facilities and that where facilities cluster they make up over two-thirds. 

These are the highest concentrations of people of color ever reported 

from a national study of the distribution of hazardous waste facilities. 

Furthermore, when applying their recommended statistical analysis, it 

was found that racial disparities persist even when controlling for 

socioeconomic factors such as income, housing values, education, and 

employment status.

N/A

2 54 Ferris The discussion of hazards associated with mainly the 2 selected vectors 

is clear. Hazards are extensive in contrast to reducing the levels of 

regulatory oversight provided by RCRA. Should all 4 legitimacy factors 

should be mandatory in view of the hazards? What about release 

reporting? Should releases be grounds for losing exclusion and HSW 

status? How is a significant release determined?

N/A (comment on 2008 DSW 

rule)

2 55 Ferris In view of the stated hazards, could managing HSW as a valuable 

commodity influence the generator, receiver, recycler and affect 

compliance? This goes to the concept of legitimacy. Would the 

mandating a showing of economic value militate in favor of safeguards 

against releases, spillage?

N/A (comment on 2008 DSW 

rule)
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2 56 Ferris If wastes that are going to be recycled as hazardous as wastes that are 

not recycled, are both equally likely to be mishandled? Are the 

regulatory and enforcement tools provided by the DSW Rule 

commensurate with the task of ensuring compliance?

N/A (comment on 2008 DSW 

rule)

3 94 Ferris Does the large number of damages cases support granting the transferbased exclusion?N/A (comment on 2008 DSW 

rule)

2b 63 Daley The DSW Rule could inadvertently encourage mismanagement while 

transitioning materials into the recycling stream. Does the Rule apply 

where HSW is recycled into even more toxic products?

N/A (comment on 2008 DSW 

rule)

2b 64 Daley Should notice be the hazard quid pro quo for the exclusions which 

provide the benefit of different (reclamation), streamlined treatment of 

HSW?

N/A (comment on 2008 DSW 

rule)

2c 71 Ferris How and when does enforcement after a “significant” release occur? 

How is the determination made as to what constitutes a significant 

release? Which party has the burden of proof? It would seem that 

placing the burden of proof on the party that causes or is responsible for 

the release should bear the burden of proof opposed to, for example, the 

governmental entity.

N/A (comment on 2008 DSW 

rule)

2c 75 Ferris Would streamlined, but standardized HSW reporting on a Manifest or 

comparable document be feasible, e.g., for state and local government, 

the industry?

N/A (comment on 2008 DSW 

rule)

2c 76 Ferris Compliance with financial assurance can be a high hurdle given 

conditions imposed by the environmental insurance market. All parties 

under this rule should be required to comply with financial assurance. 

Would requiring management standards for reclamation facilities that 

don’t have RCRA permits strengthen the DSW Rule by increasing or 

reducing the potential for environmental releases and/or 

disproportionate negative impacts?

N/A (comment on 2008 DSW 

rule)
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2d 82 Ferris The threat of post facto CERCLA liability is not interchangeable with upfront environmental protection standards, notice and record-keeping 

requirements. Streamlined record, keeping, tracking and monitoring 

would contribute to ensuring that toxic wastes are not dumped illegally 

dumped in disproportionately affected communities and would contribute 

to ensuring that HSW is safely delivered to the recycling facility.

N/A (comment on 2008 DSW 

rule)

2d 83 Ferris The DSW Rule could be characterized, to some extent, as industry selfcertification on HSW, which contrasts sharply with RCRA’s historic 

cradle-to-grave framework and preventative approach to hazardous 

waste management and disposal.

N/A (comment on 2008 DSW 

rule)

2d 84 Ferris Generators and third party reclaimers must file notices – they should be 

required or the HSW should be treated as hazardous waste.

N/A (comment on 2008 DSW 

rule)

4b 113 Ferris Is the preventative approach a reasonable starting point when 

evaluating harm to the environment and public health.

N/A (comment on 2008 DSW 

rule)

4b 117 Ferris Notice requirements inform communities, the public and municipalities 

about how HSW is being managed and recycled. How would the public 

learn about releases, spillage without notice, monitoring, recordkeeping; 

how would they advocate safeguards or alternatives? Streamlined 

requirements would be preferable to none.

N/A (comment on 2008 DSW 

rule)

4b 119 Ferris Should recyclers be required to demonstrate a history of compliance 

prior to benefiting from the exclusions? 

N/A (comment on 2008 DSW 

rule)

5b 168 Ferris Does the importance and/or benefit of recycling override the value of 

public participation especially where disproportionality is an issue? 

Additionally, the studies show that facilities which have notified already 

show multiple facilities, higher disease incidence and a dearth of 

hospitals in the 3-km area.

N/A (comment on 2008 DSW 

rule)
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Comment 

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6a 177 Ferris Arguably, DSW Rule conclusions supporting exclusion of HSW from 

RCRA protections are not thoroughly supported by the analysis as it 

pertains, in particular, to multiple (disproportionate?) impacts, potential 

hazards and public participation.

N/A (comment on 2008 DSW 

rule)

6c 185 Ferris Specific and explicit storage timeframes and container requirements 

would facilitate safer handling by reducing the prospects for potential 

explosions, spills and other uncontrolled releases of HSM.

N/A (comment on 2008 DSW 

rule)

6c 186 Ferris Off-site reclamation – regulatory safeguards that ensure proper 

management of HSW while on-site and during shipment are important.

N/A (comment on 2008 DSW 

rule)

6c 189 Ferris What constitutes “reasonable effort” is not clear. This may not be a 

sufficiently high bar to deter mismanagement of HSW and could 

encourage high risk conduct.

N/A (comment on 2008 DSW 

rule)

6c 192 Ferris Does the DSW Rule facilitate broad adoption by the states and state 

implementation?

N/A (comment on 2008 DSW 

rule)

6c 194 Ferris Encouraging recycling should be possible while retaining a reasonable 

assurance of regulatory protection for health and the environment. 

N/A (comment on 2008 DSW 

rule)

ESb 38 Ferris The Scenarios chart shows several instances involving movement or 

activity related to HSM where it appears that various historic RCRA 

safeguards are not required see e.g., certain scenarios under Scenario 

3; Scenario 5; Scenario 6; Scenario 7; Scenario 8) without, it could be 

said, on balance, assuring a regulatory atmosphere that influences the 

regulated community to handle HSW in ways that prevent hazards. 

Comparatively, streamlined notice and recordkeeping would both 

facilitate emergency planning and response and protect human health 

and the environment.

N/A (comment on 2008 DSW 

rule)

ESb 41 Ferris Regarding DSW Rule controversies about disproportionate negative 

impacts and exposures, would these communities feel more protected 

(versus adding to the burden of already cumulative pollution) if HSW 

N/A (comment on 2008 DSW 

rule)
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Comment 

No. Reviewer Comment EPA Response

were handled similar to those substances categorized under Universal 

Wastes?