Environmental Justice Analysis

of the Definition of Solid Waste Rule

DRAFT FOR PUBLIC COMMENT

June 30, 2011

Office of Solid Waste and Emergency Response

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue

Washington D.C. 20460
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June 30, 2011 Draft – Do not Cite or Quote

Executive Summary

To achieve the goals of Executive Order 12898, Federal Actions to Address Environmental 

Justice in Minority Populations and Low-Income Populations, EPA must consider environmental 

justice when developing a regulation. Because decisions involving a regulation must be 

informed by a consideration of a number of different issues, an environmental justice analysis is 

one of several analyses the Agency uses when developing regulations. The environmental 

justice analysis may be qualitative and/or quantitative and is designed to provide the appropriate 

information on disproportionately high and adverse impacts to minority and/or low-income 

populations to decision-makers. To the extent an environmental justice analysis reveals potential 

disproportionately high adverse impacts on minority and/or low-income populations, this result 

can affect how EPA uses its policy discretion in pursuing specific regulatory options or engaging 

the public in the implementation of regulations.

In October 2008, EPA published the Definition of Solid Waste (DSW) final rule which, among 

other things, sought to increase the levels of hazardous secondary materials recycling.1,2 

Recycling hazardous secondary materials fulfills two goals of the Resource Conservation and 

Recovery Act (RCRA) by reducing the consumption of raw materials and by reducing the 

volume of waste materials that must be treated and disposed. Recycling can mean less air, water, 

and soil pollution caused by extracting, refining, and processing of raw materials. However, the 

goals of resource conservation and waste reduction must never occur at the expense of one of the 

other fundamental goal of RCRA: protecting human health and the environment from hazardous 

waste management.

The 2008 DSW final rule revised the definition of solid waste under RCRA for certain types of 

hazardous secondary materials being recycled. The hazardous secondary materials recycled 

under the DSW final rule would no longer be regulated as hazardous waste, as long as certain 

conditions were met. The intended effect of the DSW rule was to encourage safe recycling of 

hazardous secondary material and answer long-standing questions about the RCRA definition of 

solid waste.

In January 2009, the Sierra Club submitted an administrative petition3requesting EPA revoke the 

DSW rule. The petition raised a number of issues questioning the protectiveness of the rule, 

particularly for minority and low-income communities. In June 2009, EPA held a public 

meeting asking for comment on the issues raised in the petition. Many of the commenters echoed 

Sierra Club’s concern about potential disproportionate impacts to minority and low-income 

 

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

2 A material is recycled if it is used, reused, or reclaimed. RCRA hazardous waste regulation makes an important 

distinction between materials that are used or reused without reclamation and those that must be reclaimed before 

being reused. A material is reclaimed if it is processed to recover a usable product or if it is regenerated. For 

information on what constitutes legitimate recycling, refer to Attachment A of this document. 

3 The Sierra Club petition is available at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2009-

0315-0002 .
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communities from the rule, and the adequacy of EPA’s analysis of the potential for these impacts 

under the 2008 DSW final rule. 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. 

In response to comments by Sierra Club and other stakeholders, EPA committed to producing an 

expanded analysis of the potential disproportionate impacts of the 2008 DSW final rule. A draft 

methodology for the analysis was shared with the public in January 2010, and three public 

roundtable discussions were held to discuss the draft methodology.

4

 EPA considered the 

comments raised in those discussions and conducted the new analysis.

The methodology for the DSW environmental justice analysis consists of six steps:

Summary of DSW EJ Methodology

Step 1: Hazard 

characterization

Includes two phases: (1) identifying potential hazards that could pose risks to 

human health and the environment from the recycling of hazardous secondary 

materials, including accidental releases of hazardous constituents and (2) 

analyzing the likelihood of such hazards occurring under the requirements of 

the DSW exclusions as compared to the pre-2008 DSW hazardous waste 

regulations.

Step 2: Identification of 

potentially affected 

communities

Modeling the locations of facilities (including potential new facilities) that are 

likely to choose to take advantage of the 2008 DSW final rule.

Step 3: Demographics of 

potentially affected 

communities

Mapping the location of the facilities modeled in Step 2 and identifying the 

demographics (e.g., minority population and income level) of the surrounding 

communities.

Step 4: Identifying other 

factors that affect 

vulnerability in 

potentially affected 

communities 

Identifying important vulnerability factors. These include factors that may 

increase the likelihood of “damages” (i.e., release of contamination to any 

environmental media or abandoned materials that require cleanup, injury to a 

person such as a worker or resident, or damage to property such as a fire), such 

as the likelihood that a facility is sited within a community, or the likelihood of 

health risks in the event of releases. Examples include the presence of other 

pollution sources and any information about the public health of the 

surrounding population.

Step 5: Information 

synthesis: assessment of 

disproportional impact

Synthesizing all the information to characterize whether the DSW rule will 

facilitate the occurrence of any adverse impacts and whether some population 

groups (e.g., minority or low income populations) would be overrepresented in 

the impacted communities.

Step 6: Identification of 

potential preventive and 

mitigation strategies

Identifying potential strategies to prevent non-compliance and releases to the 

environment and also strategies to mitigate any impacts identified under Step 

5.

 

4U.S. EPA. Draft Environmental Justice Methodology for the Definition of Solid Waste Rule, January 2010, 

http://www.epa.gov/epawaste/hazard/dsw/ej.htm
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The draft environmental justice analysis of the DSW rule was peer reviewed, and then revised 

based on peer review comments. The next steps will be to obtain public comments on the 

revised draft analysis as part of a new proposal requesting comment on further revisions to the 

definition of solid waste. Below is a summary of findings from the revised draft analysis.

Finding 1: Hazardous Secondary Material Recycling Does Pose Significant Potential 

Hazards

The first step of the DSW environmental justice analysis methodology is hazard characterization, 

which includes both identifying the potential hazards that discarded hazardous secondary

materials recycling could pose to human health and the environment, and evaluating the 

likelihood of such hazards resulting in increased risk under the 2008 DSW final rule. EPA 

conducted the first part of the hazard assessment, identifying the potential hazards that discarded 

hazardous secondary materials recycling could pose to human health and the environment,

independent of any presumption or consideration of health and safety or regulatory controls. In 

the second part of the hazard assessment, EPA considered such controls in conjunction with the 

hazards identified in the first part to assess the likelihood of such hazards resulting in increased 

risk.

Hazardous secondary materials sent to recycling are physically and chemically similar, if not 

identical, to many of the hazardous wastes sent for treatment and disposal. The most commonly

recycled hazardous secondary materials are spent solvents and electric arc furnace dust (which is 

recycled to reclaim metals). Spent solvents present particular management challenges associated 

with storage of liquids containing volatile organic chemicals and include both halogenated and 

non-halogenated organic chemicals, which represent a broad range of chemicals and associated 

hazards. Electric arc furnace dust is usually in a solid state and presents a different management 

challenges, including storage in waste piles and the potential for wind-blown dust, and can 

contain high concentrations of toxic metals. 

These two classes of hazardous secondary materials (as well as other hazardous secondary

materials that are recycled) can pose risks via a wide variety of exposure routes and include a 

range of potential adverse health effects, both carcinogenic and non-carcinogenic, and a potential 

for acute impacts such as fire and explosions for certain types of hazardous secondary materials, 

such as solvents.

Finding 2: Possibility of Hazards from Hazardous Secondary Materials Recycling 

Adversely Impacting Human Health and the Environment is Increased under the 2008 

DSW Final Rule

The second part of the hazard characterization step —determining whether these hazards could 

result in increased risk to human health and the environment —is a complex issue because of the 

interactions between how the regulations are written and how they are implemented. Under the 

2008 DSW final rule, EPA presumed that the conditions of the rule would prevent any increase 

in risk. In particular, the condition that the hazardous secondary materials be “contained” was 

intended to address this issue, because if the material is not released to the environment, then 

there would be no increased exposure, and therefore no increased risk. 
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However, what the 2008 analysis failed to take into account was whether the conditions of the 

rule —including the “contained” standard —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, which were not considered under the 2008 DSW final rule.

A more detailed comparative analysis of the regulatory requirements under the 2008 DSW final 

rule with the hazardous waste regulations reveals potentially significant gaps in environmental 

protection under the 2008 DSW final rule. Examples of these gaps include the absence of 

measures to ensure compliance, incentives to accumulate larger volumes of hazardous secondary

materials, the potential for increased releases such as during storage and transportation of waste, 

the lack of prescriptive standards for waste storage and containment, potential issues associated 

with the interstate transport of HSM for recycling, and reduction in access to information and the 

opportunity for public participation. The specific gaps vary depending on the baseline scenario 

and the post-DSW scenario being considered, and in some cases, there is also a potential for 

increased benefits, primarily from resource conservation and from reduced transportation 

distances.5 

 

5

 By reporting the potential for increased benefits under certain scenarios, EPA does not intend to imply that such 

benefits could justify increased risk to human health and the environment from discarded hazardous secondary 

material. Promoting resource conservation and recovery is a major goal of RCRA, but this goal does not supersede 

the mandate to assure that hazardous waste management practices are protective of human health and the 

environment.
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Summary of Potential Impacts of the 2008 DSW Final Rule

Under Different Recycling Scenarios

Hazardous Waste 

Baseline DSW Practices Summary of Potential Impacts

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

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

No change in risk at recycling facility.

Generator exports 

material under 

hazardous waste 

regulations for 

recycling 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.

No change in risk at recycling facility.
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Hazardous Waste 

Baseline DSW Practices Summary of Potential Impacts

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

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 reduced transportation risk

due to switch from off-site disposal to 

on-site recycling

Potential reduced risk in communities 

surrounding existing off-site 

treatment/disposal facilities.

Potential increased resource 

conservation benefits due to switch 

from disposal to recycling and reduction 

of miles traveled.

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 generatorcontrolled exclusion

Potential increased risk at generator

due to longer accumulation times, 

greater quantities, lack of explicit 

preventative measures.

Potential increased risk in 

communities surrounding generator offsite recycling facilities

Potential increased resource 

conservation benefits due to switch 

from disposal to recycling and reduction 

of miles traveled (if distance to 

reclamation facilities is closer).

Potential reduced risk in communities 

surrounding existing off-site 

treatment/disposal facilities.
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Hazardous Waste 

Baseline DSW Practices Summary of Potential Impacts

Scenario 4: Generator switches from off-site disposal to off-site recycling at RCRA-permitted facility

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 RCRApermitted facility under 

transfer-based 

exclusion

Potential increased risk at generator

due to longer accumulation times, greater 

quantities, lack of explicit preventative 

measures

Potential increased resource 

conservation benefits due to switch from 

disposal to recycling and reduction of 

miles traveled (if distance to reclamation

facilities is closer).

Potential increased resource 

conservation benefits due to switch from 

disposal to recycling.

Potential reduced risk in communities 

surrounding existing off-site 

treatment/disposal facilities.

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 risk at recycler due 

to longer accumulation times, greater 

quantities, lack of explicit preventative 

measures.

Potential increased resource 

conservation benefits due to switch from 

disposal to recycling.

Potential reduced risk in communities 

surrounding existing off-site 

treatment/disposal facilities.
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Hazardous Waste 

Baseline DSW Practices Summary of Potential Impacts

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 risk at recycler due 

to longer accumulation times, greater 

quantities, lack of explicit preventative 

measures.

Potential increased resource 

conservation benefits due to switch from 

disposal to recycling.

Potential reduced risk in communities 

surrounding existing off-site 

treatment/disposal facilities.
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Hazardous Waste 

Baseline DSW Practices Summary of Potential Impacts

Scenario 7: Generator switches from off-site recycling at a facility without a permit6to another type 

of recycling under the 2008 DSW final rule

Generator sends 

material offsite for 

recycling at a facility

in the United States

without a RCRA 

permit under 

hazardous waste 

regulations

Generator sends 

material offsite for 

recycling at a facility

under generatorcontrolled exclusion, or

Generator exports 

material under the 

transfer-based 

exclusion for recycling

in another country, or

Generator sends 

material offsite for 

recycling at a RCRA 

permitted facility under 

transfer-based 

exclusion, or

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 risk at new recycler 

due to longer accumulation times, and 

greater quantities accumulated.

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.

Potential reduced risk in communities 

surrounding previously used off-site 

recycling facility.

 

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

waste do not need a RCRA permit.
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Hazardous Waste 

Baseline DSW Practices Summary of Potential Impacts

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 

recycling to RCRApermitted facility

under hazardous 

waste regulations or 

exporting waste for 

recycling in another 

country

Generator reclaims 

material onsite under 

generator-controlled 

exclusion, or

Generator sends 

material offsite for 

recycling at a facility

that it controls under 

generator-controlled 

exclusion, or

Generator sends 

material offsite for 

recycling 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 recycling

in another country

Same as corresponding scenarios 2 – 6, 

but with no resource conservation 

benefits.

Finding 3: Many of the Communities Potentially Impacted by this Increase in Risk of 

Adverse Impacts are Minority and Low-Income Communities, and in Some Cases the 

Populations Potentially Impacted are Disproportionately Minority and/or Low Income 

The second and third steps of the DSW environmental justice analysis methodology together 

help determine whether the potential adverse impacts detailed above are likely to occur 

disproportionately in minority and low-income communities. 

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 EPA that they will be managing hazardous 

secondary materials under the 2008 DSW final rule (hereafter referred to as “notification 

facilities”);
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2. Facilities in EPA’s An Assessment of Environmental Problems Associated with 

Recycling of Hazardous Secondary Materials7, many of which operated under exclusions 

or reduced regulations (hereafter referred to as “damage case facilities”);

3. 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 (hereafter referred to as 

“hazardous waste facilities”); and

4. Facilities currently recycling non-hazardous industrial waste (e.g., antifreeze) that could 

most easily switch or expand to recycling under the 2008 DSW final rule (hereafter 

referred to as non-hazardous industrial waste facilities”).

The third step characterized the demographics of the communities within a three kilometer radius 

around these facilities, and determined whether they were disproportionately minority or lowincome compared to the nation as a whole, and compared to the population in the state. 

Disproportionality was evaluated both at the community and at the population level.

For the community-level analysis, the question is whether the communities in a facility category

had a higher or lower percentage of minority and/or low-income population as compared to the 

comparison population (i.e., national or state population). In general, some communities will 

have a higher percentage than the comparison population and some will have a lower percentage. 

As long at these differences have a regular distribution, they would not indicate disproportionate 

impact. However, if the number of communities with a higher percentage of minority and/or 

low-income population is greater than that of the comparison populations, then there is a 

potential for disproportionate impact. The higher the average difference between the potentially 

affected communities and the comparison group, the greater the potential disproportionality.

In the chart below, the only category that consistently demonstrates the potential for 

disproportionate impact are the damage case facilities. For both the national and the state 

comparison populations, more than 50% of the damage case facilities are located in communities 

with minority and low-income populations that have a higher representation than the comparison 

populations. In addition, the average difference in these cases (i.e., the average amount that the 

damage case facilities have a higher-than-average percentage of minorities or low-income 

populations) ranges from 6-8%.

 

7

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

the mismanagement of the hazardous secondary materials. It is available online at: 

http://www,regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2002-0031-0355 .
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Community-Level Analysis of Potential Disproportionate Impacts 

of 2008 DSW Rule to Minority and Low-Income Communities

Highlighted Values Indicate Potential Disproportionate Impact

National 

Comparison

% communities 

with higher 

minority

representation

(average 

difference)

National 

Comparison

% communities 

with higher lowincome 

representation

(average 

difference)

State Comparison

% communities 

with higher 

minority

representation

(average 

difference)

State

Comparison

% communities 

with higher lowincome 

representation

(average 

difference)

Notification 

Facilities

(40 total)

7.5%

(-20.7%)

32.5%

(-2.0%)

50.0% (IA)

(3.1%)

20.0% (NJ)

(-11.0%)

31.3% (PA)

(-2.3%)

64.0% (IA)

(1.7%)

0% (NJ)

(-3.7%)

50% (PA)

(2.6%)

Damage Case 

Facilities 

(217 total)

53%

(8.2%)

65%

(5.9%)

55.8%

(8.2%)

69%

(6.7%)

Hazardous Waste 

Facilities

(2,677 total)

42%

(0.9%)

48%

(1.5%)

47.9%

(4.0%)

50.6%

(1.8%)

Non-Hazardous 

Industrial Waste 

Facilities

(25 total)

36%

(-5.0%)

40%

(-0.5%)

36%

(-2.55%)

44%

(-0.3%)

The population-level analysis examines the demographics of the total potentially affected 

population as compared to the total comparison population to determine (1) whether there is a 

substantially greater probability of members in a population group of concern (minority or lowincome) being present as compared to members of the comparison population, and (2) whether 

members of the population group of concern comprised a substantially greater proportion of the 

potentially affected population than the comparison populations. These two comparisons are 

referred to as (1) the Affected Population Ratio, and (2) the Demographic Ratio. In both cases, if 

the ratio is greater than 1.0, then there is a potential for disproportionate impact to the population 

of concern, and the larger the ratio, the greater the disproportionality. 
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Population-Level Analysis of Potential Disproportionate Impacts 

of 2008 DSW Rule to Minority and Low-Income Communities

Highlighted Values Indicate Potential Disproportionate Impact to Population of Concern

All Results Statistically Significant (p-value <0.05)

National 

Comparison

Minority

Population

Affected Population 

Ratio

Demographic Ratio

National 

Comparison

Low-Income 

Population

Affected Population 

Ratio

Demographic Ratio

State 

Comparison

Minority

Population

Affected Population 

Ratio

Demographic Ratio

State 

Comparison

Low-Income 

Population

Affected Population 

Ratio

Demographic Ratio

Notification 

Facilities

(40 total)

0.70

0.76

1.05

1.04

1.80 (IA)

1.76 (IA)

1.02 (NJ)

1.01 (NJ)

1.46 (PA)

1.47 (PA)

1.34 (IA)

1.32 (IA)

0.64 (NJ)

0.65 (NJ)

1.74 (PA)

1.63 (PA)

Damage Case 

Facilities 

(217 total)

2.87

1.86

1.98

1.80

2.59

1.64

2.04

1.90

Hazardous 

Waste Facilities

(2,677 total)

1.90

1.80

1.39

1.50

1.94

2.04

1.47

1.83

Non-Hazardous 

Industrial Waste 

Facilities

(25 total)

1.19

1.12

1.16

1.14

1.34

1.20

1.17

1.15

The population-level analysis shows a greater incidence of potential disproportionate impact to 

minority and low-income populations than the community-level analysis. For the populationlevel analysis, the potential for disproportionate impact (i.e., ratios greater than one) occur under 

all categories, while the community-level analysis exhibits the potential for disproportionate 

impact only in the damage case facility category. This difference can occur when the population 

of those communities that do have a greater percentage of minority or low-income individuals 

also have a significantly higher total population that those communities that do not. In other 

words, for all categories of facilities except the damage case facilities, the facilities of concern do 

not appear to be disproportionately located in minority or low-income communities, but the 

facilities that are located in minority and low-income communities have the potential to impact 

much larger populations than those which are not, resulting in an overall potential 

disproportionate impact to minority and low-income populations as a whole.
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Finding 4: Underlying Vulnerabilities Traditionally Associated with Minority and LowIncome Communities Pose the Potential to Exacerbate Potential Adverse Impacts of the 

DSW Rule

In addition to considering the potential for the 2008 DSW final rule to result in adverse impacts 

that disproportionately affect minority and low-income communities, the DSW EJ analysis also 

considers other factors that could affect the impacts of the rule, based on categories from EPA’s 

interim guidance on incorporating environmental justice into rulemaking.8These factors are 

described under five broad categories: (1) susceptible populations, (2) multiple and cumulative 

effects, (3) unique exposure pathways, (4) ability to participate in the decision-making process, 

and (5) physical infrastructure. All of these factors have the potential to exacerbate the potential 

for adverse impacts to minority and low-income communities, but two of these factors are of 

particular concern to the 2008 DSW final rule: ability to participate in the decision-making 

process, and multiple and cumulative effects.

Ability to Participate in the Decision-Making Process

A key element of environmental justice is ensuring that all people have an opportunity for 

meaningful involvement in decision-making which may impact them. Certain groups may not 

have historically participated in decision-making because of economic (e.g., income), social 

(e.g., language barriers, education levels, distrust of government), and infrastructural reasons 

(e.g., access to public transportation). In addition, community organizations representing such 

groups may face higher barriers to participation than government or private sector entities. For 

example, taking advantage of existing public participation mandates may require a significant

investment of community resources or volunteer effort, while government and private sector 

entities may have more resources or paid staff to perform these functions. A critical concern is 

whether, and the extent to which, communities have the ability to influence the types and number 

of regulated activities taking place in their community as well as the requirements, conditions, 

and parameters by which such activities must operate (e.g., permit conditions). Under the 2008 

DSW final rule, facilities claiming an exclusion must submit an initial and biennial notification 

to EPA or the state, providing general facility information and describing hazardous secondary

material types and activities under the exclusion. 

However, under the 2008 DSW final rule this information is not made directly available to 

potentially affected communities, and facilities and regulators are not required to solicit or 

consider community input into the decision-making process as is the case with RCRA permitted 

facilities. Thus by removing the RCRA permitting requirement for facilities that manage 

excluded hazardous secondary materials, the 2008 DSW final rule also removed one of the key

provisions for allowing communities to participate in the regulatory process (at least as it 

concerns the management of the hazardous secondary materials excluded under the rule). 

Communities with lower participation levels may experience greater adverse impacts from 

environmental decision-making because their input has not been considered fully, particularly if 

 

8 U.S. EPA Interim Guidance on Considering Environmental Justice During the Development of an Action July 

2010. http://www.epa.gov/environmentaljustice/resources/policy/considering-ej-in-rulemaking-guide-07-2010.pdf
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competing interests are set forth more effectively. This effect is most likely to occur in 

communities that have traditionally been excluded from the decision-making process.

Multiple and Cumulative Effects

Minority, low-income, and indigenous communities that have been affected by multiple 

pollution sources may be at risk for increased health consequences. Potential sources of 

pollution can include, for example, industrial facilities, landfills, transportation-related air 

emissions, poor housing conditions (e.g., lead-based paint), leaking underground tanks, 

pesticides, and incompatible land uses. In particular, releases of contaminants that may occur 

over long periods of time, such as leaking septic tanks or underground storage tanks, may be less

likely to be diagnosed quickly, and tend to be addressed more slowly, and thus pose a higher 

health risk, in low income communities. 

An analysis of the cumulative effects from multiple stressors can provide a more complete 

evaluation of a population’s health risks from pollutants. For example, an analysis of discrete 

stressors and effects on a population might conclude that nearby pollution sources are within 

regulatory limits; however, an analysis of cumulative effects might determine that a person’s 

collective exposure to a contaminant from multiple sources exceeds a health-based limit.

An examination of the facilities that have notified under the 2008 DSW final rule shows that 

multiple environmental hazards are a potential concern for communities around these facilities. 

All have multiple facilities reporting to EPA, either under RCRA, the Clean Air Act (CAA), or 

Comprehensive Environmental Response, Compensation and Liability Act, (CERCLA - also 

known as Superfund) within a three-kilometer radius of the facility. Twenty-six of the forty 

facilities had communities with cancer rates greater than the 80th percentile, and twenty-seven 

showed a greater than the 80th percentile in neurological hazard rates. Twenty-seven facilities 

also had no hospital facilities within the three kilometer area.

Finding 5: There are Potential Preventative and Mitigative Steps that EPA Could Explore 

to Address the Potential Adverse Impacts to Minority and Low-Income Communities

The sixth and final step of the DSW environmental justice analysis is to identify potential 

strategies to prevent non-compliance and releases to the environment and to mitigate potential 

adverse impacts that have been identified in the analysis. 

1. Regulatory Changes

Regulatory changes to the 2008 DSW final rule were made according to EPA’s authority under 

RCRA to regulate discarded material. As discussed in the preamble to the 2008 DSW final rule, 

EPA used the concept of discard as the central organizing idea behind the October 2008 

revisions to the definition of solid waste. 

As stated in RCRA section 1004(27), “solid waste” is defined as “... any garbage, refuse, sludge 

from a waste treatment plant, water supply treatment plant, or air pollution control facility and 

other discarded material...resulting from industrial, commercial, mining and agricultural 
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activities.” In exercising its discretion in the 2008 DSW final rule to define what constitutes 

“discard” for hazardous secondary materials reclamation in the 2008 DSW final rule, EPA 

included an explanation of how each provision of the final rule relates to discard (73 FR 64676–

64679). 

While the concept of discard also is the central organizing principle in this proposed rule since 

EPA only has authority under RCRA to regulate materials that have been discarded, the Federal 

Register notice announcing the June 2009 public meeting identified areas or opportunities to 

revise the 2008 DSW final rule in ways that could increase environmental protection, including 

in environmental justice communities, while still appropriately defining when a hazardous 

secondary material being reclaimed is a solid waste and subject to hazardous waste regulation

(74 FR 25202). 

The purpose of the new 2011 DSW proposal is to provide notice and the opportunity to comment 

on potential regulatory revisions to address the potential for adverse impacts to human health and 

the environment from discarded material, including disproportionate impacts to minority and low 

income communities.

In particular, the proposed withdrawal of the transfer-based exclusion and its replacement with 

an alternative Subtitle C standard would be one way of addressing the concerns regarding thirdparty recyclers, including the impact of longer accumulation times, the lack of preventative 

measures under the containment standard, the lack of public participation requirements, the lack 

of RCRA air standards, and concerns regarding certain transportation issues. In addition, the 

proposed codification of the “contained” standard would be one way of addressing the lack of 

preventative measures and the lack of RCRA air standards under the generator-controlled 

exclusion. Proposed additional recordkeeping requirements for speculative accumulation and 

legitimacy would help ensure that hazardous secondary material is being legitimately recycled 

and not simply discarded through over-accumulation and abandonment, and recordkeeping under 

the tolling and same-company provisions will help ensure that the hazardous secondary materials 

meet their intended destinations.

2. Implementation Measures

In addition to considering regulatory changes to address potential adverse impacts of the 2008 

DSW final rule, EPA can take steps in implementing the 2008 DSW rule that would help 

mitigate any potential adverse impacts. These steps include closely monitoring the facilities 

notifying under the 2008 DSW final rule, making information about the DSW facilities available 

to the public, and working with the 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 at the same time that revisions to 

the rule are under consideration.
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Table of Contents

1 Introduction ................................................................................................................................ 1

1.1 Background .......................................................................................................................1

1.2 EPA Response to Peer Review Comments.......................................................................2

1.2.1 Immediate revisions that have already been incorporated into this document ..........4

1.2.2 Revisions deferred until after the public comments are received..............................4

1.2.3 Revisions EPA does not agree with or otherwise not intend to pursue .....................5

1.2.4 Comments that EPA has determined are not applicable............................................5

1.3 Purpose and Organization of Document............................................................................... 6

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

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

2.2 General Hazards Associated with Hazardous Secondary Material.................................13

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

2.2.2 Hazardous Properties of HSMs: Solvents and Electric Arc Furnace Dust .............15

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

of HSM....................................................................................................................16

2.2.4 Hazards Associated with Recycling of HSM...........................................................22

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

Scenario...........................................................................................................................29

2.4 Summary of Comparative Results by Facility Type and Scenario .................................37

2.5 Likelihood of Hazards under Scenarios..........................................................................46

2.5.1 Potentially Increased Hazards under DSW Exclusions...........................................46

2.5.2 Potential Reductions and Transfers of Hazards by Facility Type and Scenario......68

2.5.3 Other Impacts...........................................................................................................70

3 Identification of Potentially Affected Communities................................................................ 74

3.1 Facilities that Have Already Notified EPA that They Will Be Managing 

Hazardous Secondary Materials under the 2008 DSW Final Rule (40 CFR § 

260.42) ............................................................................................................................74

3.2 Facilities Currently Generating or Managing Hazardous Secondary Materials that 

May Choose to Operate under the DSW Rule................................................................75

3.2.1 Facilities Currently Managing Recyclable Hazardous Wastes................................75

3.2.2 Facilities Currently Generating Recyclable Hazardous Wastes ..............................78

3.2.3 Facilities Currently Generating or Managing Hazardous Wastes that May 

Choose to Operate under the DSW Rule.................................................................80

3.3 Facilities Not Currently Generating or Managing Hazardous Secondary Materials 

that May Choose to Reclaim them under the 2008 DSW Final Rule ............................81

4 Analysis of Demographics of Potentially Affected Communities........................................... 82

4.1 Demographic Data Sources.............................................................................................82

4.2 Methodology ...................................................................................................................84

4.2.1 Selection of EJ Characteristics for Analysis............................................................84

4.2.2 Areal Apportionment Method..................................................................................84
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4.2.3 Comparison of Demographic Characteristics of Affected Population versus 

Comparison Population ...........................................................................................85

4.2.4 Statistical Analysis...................................................................................................86

4.3 Statistical Comparison of Demographic Characteristics of Affected Population 

versus Comparison Population .......................................................................................86

4.4 Results of Demographic Analysis...................................................................................88

4.4.1 Notification Facilities...............................................................................................89

4.4.2 Damage Case Facilities............................................................................................96

4.4.3 Hazardous Waste Facilities......................................................................................99

4.4.4 Non-Hazardous Industrial Waste Facilities...........................................................105

5 Other Factors that Affect Vulnerability in Communities....................................................... 108

5.1 Overview of Factors that Affect Vulnerability .............................................................108

5.1.1 Susceptible Populations.........................................................................................108

5.1.2 Multiple and Cumulative Effects...........................................................................108

5.1.3 Unique Exposure Pathways ...................................................................................110

5.1.4 Ability to Participate in Decision-Making Process................................................110

5.1.5 Physical Infrastructure ...........................................................................................111

5.2 Summary of Analysis of Factors that Affect Vulnerability for 40 Notification 

Facilities........................................................................................................................112

6 Conclusions............................................................................................................................ 117

6.1 Information Synthesis: Assessment of Disproportionate Impact..................................117

6.1.1 Hazardous Secondary Material Recycling Does Pose Significant Potential 

Hazards..................................................................................................................117

6.1.2 Possibility of Hazards from Hazardous Secondary Materials Recycling 

Adversely Impacting Human Health and the Environment Is Increased under 

the 2008 DSW Final Rule .....................................................................................117

6.1.3 Many of the Communities Potentially Impacted by this Potential Increase in 

Risk of Adverse Impacts are Minority and Low-Income Communities, and in 

Some Cases the Populations Potentially Impacted Are Disproportionately

Minority and/or Low Income ................................................................................130

6.1.4 Underlying Vulnerabilities Traditionally Associated with Minority and LowIncome Communities Pose the Potential to Exacerbate Potential Adverse 

Impacts of the DSW Rule......................................................................................133

6.2 Potential Preventative and Mitigative Steps that EPA Could Explore to Address 

the Potential Adverse Impacts to Minority and Low-Income Communities................135

6.2.1 Regulatory Changes...............................................................................................135

6.2.2 Implementation Measures......................................................................................136

Attachment A. Comparison of Regulatory Requirements under DSW to RCRA and Other 

Federal Regulations .................................................................................................................... A-1

Attachment B. Waste and Facility Classification Methodology................................................. B-1

Attachment C. Waste Code Group Methodology....................................................................... C-1
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Attachment D. Methodology for Identifying Potentially Recyclable Hazardous Wastes.......... D-1

Attachment E. Statistical Calculations.........................................................................................E-2

Attachment F. Acronyms and Abbreviations..........................................................................F-1

Attachment G. Glossary............................................................................................................G-1

List of Tables

Table 1.1. Summary of DSW EJ Methodology ............................................................................. 2

Table 2.1. Scenarios under Baseline and DSW Exclusions......................................................... 10

Table 2.2. Summary of Potential Hazards................................................................................... 23

Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations 

(HWRs) and DSW Exclusions by Scenario.................................................................................. 38

Table 2.4. Potential Incremental Hazards under DSW Rule: Generators.................................... 54

Table 2.5. Potential Incremental Hazards under DSW Rule: Transporters................................. 58

Table 2.6. Potential Incremental Hazards under DSW Rule: Intermediate and Reclamation 

Facilities........................................................................................................................................ 65

Table 2.7. Potential Reduction in Hazards under DSW Rule...................................................... 72

Table 4.1. Data Source Files from the 2000 U.S. Census Used for the DSW EJ Analysis......... 83

Table 4.4.1.1. National Demographic Comparison for Notification Facilities............................ 91

Table 4.4.1.2. DSW Rule National Demographic Comparison Analysis of Statistical 

Significance for Notification Facilities......................................................................................... 91

Table 4.4.1.3. Iowa Demographic Comparison for Notification Facilities ................................. 92

Table 4.4.1.4. DSW Rule Iowa Demographic Comparison Analysis of Statistical Significance 

for Notification Facilities.............................................................................................................. 92

Table 4.4.1.5. New Jersey Demographic Comparison for Notification Facilities....................... 93

Table 4.4.1.6. DSW Rule New Jersey Demographic Comparison Analysis of Statistical 

Significance for Notification Facilities......................................................................................... 93

Table 4.4.1.7. Pennsylvania Demographic Comparison for Notification Facilities.................... 94

Table 4.4.1.8. DSW Rule Pennsylvania Demographic Comparison Analysis of Statistical 

Significance for Notification Facilities......................................................................................... 94

Table 4.4.1.9. Urban Demographic Comparison for Notification Facilities ............................... 95

Table 4.4.1.10. DSW Rule National Demographic Comparison Analysis of Statistical 

Significance (Urban) for Notification Facilities........................................................................... 95

Table 4.4.1.11. Rural Demographic Comparison for Notification Facilities............................... 96
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Table 4.4.1.12. DSW Rule National Demographic Comparison Analysis of Statistical 

Significance (Rural) for Notification Facilities ............................................................................ 96

Table 4.4.2.1. National Demographic Comparison for Damage Case Facilities......................... 98

Table 4.4.2.2 DSW Rule National Demographic Comparison Analysis of Statistical 

Significance for Damage Case Facilities...................................................................................... 98

Table 4.4.2.3. State Demographic Comparison for Damage Case Facilities............................... 99

Table 4.4.3.1. National Demographic Comparison for Hazardous Waste Facilities................. 101

Table 4.4.3.2. National Demographic Comparison Analysis of Statistical Significance for 

Hazardous Waste Facilities......................................................................................................... 101

Table 4.4.3.3. State Demographic Comparison for Hazardous Waste Facilities....................... 102

Table 4.4.3.5. Urban Demographic Comparison for Hazardous Waste Facilities..................... 103

Table 4.4.3.7. Rural Demographic Comparison for Hazardous Waste Facilities...................... 104

Table 4.4.4.1. National Demographic Comparison for Non-Hazardous Industrial Waste 

Facilities...................................................................................................................................... 106

Table 4.4.4.2. National Demographic Comparison Analysis of Statistical Significance for NonHazardous Industrial Waste Facilities ........................................................................................ 106

Table 4.4.4.3. State Demographic Comparison for Non-Hazardous Industrial Waste Facilities

107

Table 5.1. Other Factors that Affect Vulnerability in Communities Affected By Recycling 

Notification Facilities.................................................................................................................. 114

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste 

and Generators of Hazardous Secondary Materials under DSW Generator-Controlled Exclusion

A-15

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste 

and Generators of...................................................................................................................... A-42

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage 

Facilities and Hazardous Secondary Material Intermediate and Reclamation Facilities under 

DSW Transfer-Based Exclusion............................................................................................... A-65
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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 materials9from 

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 committed to conducting 

an expanded analysis of the environmental justice (EJ) impacts of the 2008 DSW final rule. This 

draft analysis is presented in this document.

1.2 Overview of Approach

The Agency published the Draft Environmental Justice Methodology for the Definition of Solid 

Waste Final Rule, which lays out a general approach for analyzing EJ issues under the 2008 

DSW final rule, in January of 2010. EPA modified the methodology through interaction with the 

general public and other stakeholders. 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. The methodology includes six 

steps, as described in Table 1.1.

 

9 A hazardous secondary material is any material that would be a hazardous waste if discarded.
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Table 1.1. Summary of DSW EJ Methodology

Overview of DSW Environmental Justice Methodology

Step 1: Hazard 

characterization

Includes two phases: (1) identifying potential hazards that could pose risks 

to human health and the environment from the recycling of hazardous 

secondary materials, including sudden and non-sudden accidental releases 

of hazardous constituents and (2) analyzing the likelihood of such hazards 

occurring under the requirements of the DSW exclusions as compared to 

the pre-2008 DSW hazardous waste regulations.

Step 2: Identification of 

potentially affected 

communities

Modeling the locations of facilities (including potential new facilities) that 

are likely to choose to take advantage of the DSW rule.

Step 3: Demographics of 

potentially affected 

communities

Mapping the location of the facilities modeled in Step 2 and identifying the 

demographics (e.g., minority population and income level) of the 

surrounding communities.

Step 4: Identifying other 

factors that affect 

vulnerability in 

potentially affected 

communities 

Identifying important vulnerability factors. These include factors that may 

increase the likelihood of “damages” (i.e., release of contamination to any 

environmental media or abandoned materials that require cleanup, injury to 

a person such as a worker or resident, or damage to property such as a fire), 

such as the likelihood that a facility is sited within a community, or the 

likelihood of health risks in the event of releases. Examples include the 

presence of other pollution sources and any information and data about the

public health of the surrounding population.

Step 5: Information 

synthesis: assessment of 

disproportional impact

Synthesizing all the information to characterize whether the DSW rule will 

facilitate the occurrence of any adverse impacts and whether some 

population groups (e.g., minority or low income populations) would be

overrepresented in the impacted communities.

Step 6: Identification of 

potential preventive and 

mitigation strategies

Identifying potential strategies to prevent non-compliance and releases to 

the environment and also strategies to mitigate any impacts identified under 

Step 5.

This document describes the approach and results of Steps 1 through 5. The draft analyses and 

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

and mitigation strategies under Step 6.

1.2 EPA Response to Peer Review Comments

From December 2010 to January 2011, Eastern Research Group, Inc. (ERG), 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/). 

In the first stage of this process, ERG searched for and identified qualified candidates who, 

collectively, met the following technical selection criteria provided by EPA and who had no 

conflict of interest in performing the review: 

 Knowledge, expertise, and experience with conducting Environmental Justice analyses

 Familiarity with RCRA
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 Expertise in statistics

 Familiarity with EPA’s Solid Waste Rule

After EPA confirmed that the credentials of the pool of candidate reviewers proposed by ERG 

fulfilled EPA’s selection criteria, ERG then selected three experts from this pool to conduct 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

ERG provided the reviewers with a charge prepared by EPA, which asked for their individual 

comments on the various aspects of the document, and with review instructions prepared by

ERG. Reviewers were also provided with EPA's Interim Guidance on Considering 

Environmental Justice During the Development of an Action, as well as a link to EPA's web site 

(http://www.epa.gov/epawaste/hazard/dsw/rulemaking.htm) for additional background 

information.

Reviewers then worked independently over a four-week period to prepare individual written 

comments, which they submitted to ERG. ERG checked the reviewers’ written comments to 

ensure that each reviewer had provided a substantive response to each charge question within 

their area of expertise. ERG did not edit the reviewers’ comments in any way, but did format 

reviewers’ comments as needed for consistency in this final peer review summary report. 

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. 

All reviewers offered suggestions for improving the readability of the document, including 

adding a glossary and list of abbreviations and acronyms, making the transition from different 

sections more clear, and better explaining the figures. Two of the three reviewers said that the 

potential regulatory scenarios were plausible. The third reviewer noted that the “unlikely” 

scenario of a generator switching from managing hazardous secondary material within the 

United States to exporting it for recycling under the DSW rule was not necessarily unlikely and 

thought that the potential impacts in foreign countries should be discussed. The reviewer also 

offered two additional scenarios for EPA to consider: (1) a generator that consistently functions 

in violation of the regulations and (2) a generator that goes out of business after accumulating 

hazardous secondary materials. 

One reviewer noted that the document did not include any discussion or analysis of the 

implications of each assumption for total exposure and estimated changes in risk values for the 

potential environmental justice communities. Another reviewer suggested taking the example 

situations and quantifying the potential impact on the neighboring community. 

The reviewers offered suggestions for improvements, but generally agreed with EPA’s analysis 

of demographics of potentially affected communities. Two reviewers said that comparing 

potentially affected areas to non-affected areas would be useful. Two reviewers said that 

comparing host metropolitan areas for facilities would be useful. One reviewer suggested that at 
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least one other stressor, such as TRI facilities or road density, should be added to the analysis. 

One reviewer suggested assessing the environmental justice impacts of the baseline (RCRA’s 

approach to recycling and disposal).

EPA’s initial response to each of the peer review comments can be found in Appendix H to this 

document. EPA’s responses fall into four general categories:

1. Immediate revisions that have already been incorporated into this document.

2. Decisions deferred until after the public comments are received.

3. Revisions EPA does not agree with or otherwise not intend to pursue.

4. Comments that are “not applicable” either because they are general comments not 

requiring a response, or because they are comments pertaining to the 2008 DSW final 

rule rather on the analysis

If the public would like to commit on how EPA addressed the peer review comment or on what 

additional analyses EPA should perform, these commits should be submitted to docket number 

EPA-HQ-RCRA-2010-0742 as part of the comments on the upcoming proposal. Information on 

how to submit comments can be found at www.regulations.gov or in the Federal Register notice 

for the new 2011 DSW proposal.

1.2.1 Immediate revisions that have already been incorporated into this document

The majority of revisions that have already been incorporated into this document are editorial 

and formatting changes to improve consistency and readability. Other changes include 

clarifications of terms and analytic approaches to make the analysis more transparent. For a full 

list of revisions that have done in response to peer review comments, see Attachment H.

1.2.2 Revisions deferred until after the public comments are received.

In many cases, EPA has deferred a decision on making a suggested revision until the Agency

receives public comments on the new proposal. EPA’s decision to defer these changes is based 

on a consideration of the need to use resources efficiently and the need to incorporate public 

comments into the development of the environmental justice analysis.

Most of the deferred revisions are ones that would affect the demographic analysis presented in 

Chapter 4 of this report. Because reviewers generally agreed with EPA approach to this analysis, 

EPA has determined that it is adequate for the purposes of obtaining public comment. In order 

to make efficient use of resources, EPA plans to make all adjustments to the analysis at the same 

time (responding to both peer review and public comments). Examples of adjustments EPA will 

consider include:

 Perform the demographic analysis using different radius lengths besides 3 kilometers

 Use twice the poverty level, instead of the poverty level, to designate “low income” 

populations

 Consider other toxic stressors, such as TRI facilities, in a cluster analysis
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 Consider additional damage cases in the analysis

For a full list of revisions that EPA has deferred until after EPA receives public comment can be 

found in Attachment H.

1.2.3 Revisions EPA does not agree with or otherwise not intend to pursue

In a few cases, EPA does not plan to make revisions in response to comment either because the 

Agency does not agree with the comment, or because the Agency has already determined that 

such a revision is not feasible giving the timeframe and resources available. Examples of such 

revisions include:

 Perform a separate baseline analysis of environmental justice impacts of RCRA Subtitle 

C. EPA did not pursue this because 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.

 Perform a quantitative risk analysis at an “example” DSW facility. 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.

 Verify the coordinates of the DSW facilities using Global Positioning System (GPS) EPA

did not pursue this because it is not feasible giving the time and resources available. EPA 

addressed this comment by noting the potential inaccuracies in the facility addresses.

For a full list of revisions that EPA does not intend to pursue can be found in Attachment H.

1.2.4 Comments that EPA has determined are not applicable

In some cases EPA has determined a comment is not applicable because either it is a general 

statement that does not require a response, or because it is a comment that is more specific to the 

2008 DSW final rule than to the analysis itself. For a full list of comments that EPA has 

determined are not applicable, see Attachment H.
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1.3 Purpose and Organization of Document

This report presents EPA’s draft analysis of EJ issues under the 2008 DSW final rule, which has 

been performed in accordance with the DSW EJ Analysis Methodology presented in Table 1.1. 

The remainder of this report is organized as follows:

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

under the 2008 DSW final rule. It first describes 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. 

It then presents a qualitative analysis that compares the control of these hazards under the 

2008 DSW final rule to the hazardous waste regulations (i.e., baseline). The chapter 

examines all reasonably likely scenarios in which HSMs may potentially be generated, 

transported, and reclaimed under the baseline and 2008 DSW final rule, and qualitatively

assesses their potential impacts and hazards respectively, and identifies potential 

incremental hazards and hazard reduction the 2008 DSW final rule.

 Chapter 3 identifies those facilities that already have claimed the DSW exclusion (i.e., 

facilities that have submitted a notification to EPA or the state), and that may be likely to 

manage waste under the DSW exclusion. EPA believes that facilities most likely to 

claim the exclusion are those that are currently generating or reclaiming their HSM under

the existing hazardous waste regulations. In addition, some facilities currently recycling 

non-hazardous industrial waste that is similar in character and/or composition to HSMs

have equipment and processes that may be easily adapted to recycling HSMs, and 

therefore may be likely to begin recycling HSMs under the DSW exclusion.

 Chapter 4 presents an analysis of demographic data about the communities surrounding 

the facilities identified in Chapter 3. EPA performed the analysis by examining the 

demographics of the community surrounding each facility, including race, income level, 

and children under five years old. EPA then compared the demographics of each 

community to those at the national and state levels, and by urban and rural communities, 

to identify communities that may potentially have EJ concerns.

 Chapter 5 describes other factors that could affect the vulnerability of communities, such 

as populations susceptible to DSW hazards, multiple and cumulative effects of releases 

and contamination, and unique exposure pathways. 

 Chapter 6 summarizes the conclusions from the EJ draft analysis described in this report.

 
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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 HSM under the hazardous waste regulations (the baseline) and DSW exclusions. 

Generators, transporters, and intermediate and reclamation facilities may manage HSMs in 

several different ways both under existing hazardous waste regulations, referred to as the 

baseline, and under the 2008 DSW exclusions. Each scenario represents a different combination 

(or set of combinations) of baseline and DSW practices. The baseline 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 2008 DSW final rule.

EPA developed these scenarios based on input from EPA staff with expertise in hazardous waste 

generation, recycling, and the provisions of the DSW rule. 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. This analysis included 

reviewing comments on the proposed 

rule and comments submitted during the 

litigation process as well as the 

judgment of EPA staff. EPA then 

grouped the possible changes in 

hazardous waste generation and 

management resulting from the rule into 

8 scenarios based on observed 

similarities.

Under the 2008 DSW final rule, EPA 

promulgated three types of conditional exclusions from the 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. At the time this report was prepared,

no petitions for a non-waste exclusion under the 2008 DSW rule had 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 2008 DSW final rule.

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.
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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 2008 DSW final rule.

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 the baseline and claims the GCE to 

continue reclaiming onsite, or a generator that exports its HSM under the baseline 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 offsite TSDF for treatment followed by /disposal under the hazardous waste regulations, 

but opts to ship that HSM to an offsite 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 offsite TSDF for treatment followed by /disposal under the hazardous waste regulations, but 

opts to ship that HSM to an offsite 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 offsite TSDF for treatment followed by disposal under the hazardous 

waste regulations, but opts to ship that HSM to an offsite facility in the United States 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 offsite TSDF for disposal 

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

outside the United States for reclamation under the TBE. 

Scenario 7: Generator switches from off-site recycling at a facility without a permit10 to 

another type of recycling under the 2008 DSW final rule. This scenario involves a generator 

that has been shipping its HSM for reclamation to an offsite TSDF in the United States without a 

RCRA permit under the hazardous waste regulations, but opts to have the hazardous secondary

material 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 United States without a 

 

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

waste do not need a RCRA permit.
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RCRA permit in the baseline, 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 

2008 DSW final rule. This scenario involves a generator that has been shipping its HSM to an 

offsite RCRA-permitted TSDF or exporting it to a foreign reclamation facility under the 

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

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

practice to reclaim the hazardous secondary material onsite or at an offsite facility (without a 

permit) under its control, and claims the GCE. The generator may also choose to ship its HSM 

offsite for reclamation at either a recycling facility in the United States without a RCRA permit 

or a reclamation facility outside the United States and claim the TBE. Similarly, a generator that 

exports HSM for reclamation at a reclamation facility outside the United States in the baseline, 

may change its practice to reclaim the HSM onsite or at an offsite facility under its control, and 

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

a RCRA-permitted TSDF or a recycling facility in the United States 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 offsite 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 2008 DSW final rule.

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

regulations, but opts to ship that HSM to an offsite RCRA-permitted TSDF, an offsite 

recycling facility in the United States without a RCRA permit, or a reclamation facility

outside the United States 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 2008 DSW final rule.

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 the baseline, and 

therefore are unlikely to find a financial benefit to switching to off-site reclamation.

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

reclamation. EPA assumes that generators currently reclaiming HSM on site 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 
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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 

on site. 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
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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 

United States 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 2008 DSW final rule

Generator sends material offsite for 

reclamation at a facility in the United 

States 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 

United States without a RCRA 

permit under TBE
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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 2008 DSW final rule

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 

United States 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 

United States without a RCRA 

permit under TBE
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2.2 General Hazards Associated with Hazardous Secondary Material

This section describes the general hazards associated with HSMs when managed by recycling.11 

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 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 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, the most recent year for which comprehensive information about the 

generation and management of hazardous waste is available, over 370 types of hazardous waste 

codes contained in 40 CFR 261 were recycled. These waste codes include a wide variety of 

materials, including aqueous streams, referred to as wastewaters, 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, nonhalogenated organic 

compounds, metals, and other contaminants. 

In 2007, about 16,000 facilities generated 32.3 million tons of hazardous waste. Of this, some 2 

million tons were recycled. Figure 1 shows the waste codes associated with the largest amounts 

of recycled hazardous wastes in 2007 were electric arc furnace dust and spent solvents. 

 

11 While the term recycling is used throughout this document, the 2008 DSW final rule was limited to reclamation 

activities.
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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%

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

Secondary Materials (hereafter referred to as the Environmental Problems Study; U.S. EPA, 

2007) contains information about environmental damage cases and the types of potential hazards 

from the mismanagement of HSMs.12 The most common types of secondary materials 

associated with the damage cases evaluated in the Environmental Problems Study were scrap 

metals (17%), used oil (15%) solvents (14%) and non-ferrous metals (13%).

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 2008 DSW final rule, 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, the large amount of 

solvents currently recycled, and the potential hazards posed by solvents. The potential hazards 

 

12

 This document is available online at: http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2002-

0031-0355 .
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posed by solvents are discussed in the Section 2.2.2. 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 nonhalogenated 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. In addition, 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. For example, electric arc furnace dust may be stored in waste piles, while 

solvents are generally stored in tanks or drums. 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. 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 2008 DSW final rule. Non-ferrous metals are not a focus because they are less prevalent in 

the damage cases than solvents, and are not currently recycled in the quantities similar to electric 

arc furnace dust. In addition, some HSM containing non-ferrous metals, such as mercury lamps 

and mercury-containing equipment, are also covered under the Universal Waste regulations, 

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 2008 DSW final rule as wastes subject to full hazardous 

waste regulatory controls prior to the DSW rule promulgation. Lead-acid batteries are similarly

not a focus of this report because they are also subject to the Universal Waste standards. 

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 study: 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 nonhalogenated 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 
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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

 Eye

Contaminated Water:

 Oral (ingestion of contaminated 

water)

 Dermal (skin contact with 

contaminated water)

 Inhalation (volatilization of 

contaminants from water)

 Eye (volatilization of contaminants 

from water)

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

and Disease Registry website (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 2008 DSW final rule.

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 DSW rule 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 and 
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groundwater contamination events accounted for 77% of cases, surface water contamination 

accounted for 17% of cases, and releases to the air accounted for 11% cases.

Exposure Route - Exposure routes include inhalation, dermal (skin), eye, and ingestion (oral). 

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.

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 can also 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 can also 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 nonhalogenated 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:13

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.

 

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

http://www.hsia.org/

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
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Example agent - tetrachloroethylene (PERC). 

Environmental Fate14– 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 may also volatilize resulting in releases to the atmosphere. Soil and water bacteria 

will break it down slowly, so in 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 Effects15–

 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

Agents16- Paint thinners include: acetone, xylene, ethyl acetate, ethyl benzene, ethyl ether, 

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

 

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

15 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
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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.

Example agent - benzene. Environmental Fate17– 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 photodegrade 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 ground waters (half-life 16-28 days) 

under aerobic conditions. Limited degradation occurs under anaerobic conditions. 

Environmental Toxicity18– 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 effects19

 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 may also 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 may also 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 may also 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 

 

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

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

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

19 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
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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. 

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

noted in animal tests.

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

Agents20- 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 effects21

 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 can also 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 

 

20Cascade 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.

21Gerdau 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
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damage, kidney damage, liver damage, gout (inflammation of the joints), and lead poisoning. 

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-Vrhovac22 et al. 

indicates that electric arc furnace dust can cause DNA damage. 

Fire23– Electric arc furnace dust is not flammable.

Explosion11– Accumulation of dust can lead to explosion if near an ignition source. 

Hexavalent Chromium24– 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 may also 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 – 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, kidney effects, lowered IQ and other neurotoxic effects (e.g., dizziness, memory loss), 

and hormonal effects.25

Cadmium26– 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 

 

22Garaj-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.

23Cascade Steel Rolling Mills, Inc., 2001

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

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

25ATSDR. 2007. Toxicological profile for lead: Health effects. Available online at 

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

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

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

 Transporters of HSM

 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 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.

Potential hazards for solvents and electric arc furnace dust (K061) are summarized in Table 2.2.
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Table 2.2. Summary of Potential Hazards

Facility Type HSM Fire Explosion Soil Water Air

Particulate 

Wind 

Dispersal

Residues 

from

Reclamation

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 above 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 on-site (e.g., to centralized 

accumulation), or they may be transferred to another location on-site immediately after it is 

generated. HSM may be transferred on-site 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 on-site, 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 offsite transportation. Some generators do not operate centralized accumulation areas; 

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

Some generators reclaim their HSM on-site. 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 on-site, 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, other containers, or waste piles.
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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 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 (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 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). 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 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.

 Residues from on-site reclamation. The reclamation processes described above could 

result in a hazardous waste that requires further treatment before land disposal in 

accordance with RCRA Subtitle C.

Electric Arc Furnace Dust

 Fires and explosions. Accumulation of dust can lead to an explosion if near an ignition 

source.

 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 
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during accumulation or transfer, since it is often present in dust form, and may be stored 

in uncovered waste piles. 

 Soil and groundwater contamination can occur. During transfer, spills due to human 

error or deterioration of transport equipment.

Transporters

Activities

HSM may be shipped off-site 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, 

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 

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

explosions. 

Electric Arc Furnace Dust

 Fires and explosions. Accumulation of dust can lead to explosion if near an ignition 

source. 

 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, since it is often present in dust form.

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, waste piles, 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 above in Section 3.2.1.
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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 

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.

 Residues from on-site reclamation. The reclamation processes described above could 

result in a hazardous waste that requires further treatment before land disposal in 

accordance with RCRA Subtitle C.

Electric Arc Furnace Dust

 Fires and explosions. Accumulation of dust can lead to explosion if near an ignition 

source.

 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, since it is often present in dust form, and may be stored 

in waste piles. 

 Soil and groundwater contamination can occur. During transfer, spills due to human 

error or deterioration of transport equipment. 
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References:

U.S. EPA (2007) An Assessment of Environmental Problems Associated With Recycling of 

Hazardous Secondary Materials. (EPA-HQ-RCRA-2002-0031-0355).

http://www.regulations.gov/search/Regs/home.html#documentDetail?R=09000064801f3efb

U.S. 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

U.S. 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
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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 (baseline scenario) 

to the federal regulations applicable to facilities 

operating under the 2008 DSW final rule; in 

addition, this comparison also includes the Clean 

Air Act (CAA), the Clean Water Act, 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 Administration

(OSHA). 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 2008 DSW final rule:

1. Generators

2. Transporters

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 the baseline and 

2008 DSW scenarios, identifies the possible 

consequences of these differences, and indicates,

under which of the 8 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 

summary of comparative results is 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 

2008 DSW rule. A more detailed comparative 

analysis of the regulatory provisions is presented 

in Attachment 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
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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 on-site for longer periods of

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

accumulated at any given time (All scenarios).27 The hazardous waste regulations and the 

DSW exclusions set forth time limits for generators to accumulate HSM on-site. Specifically, 

the hazardous waste regulations require generators to ship hazardous waste off-site 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 hazardous secondary

material within one calendar year. This means that generators under the DSW exclusions could 

accumulate 75% of their HSM on-site 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. 

 

27 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 off-site. 

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 2008 DSW final rule

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
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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 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.

28

 

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, some 

generators may change in status 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, 1 kg or more of acute hazardous waste in a calendar month, or 100 

kg or more 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. 

 

28Air 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

 Regulation of Residues

 Security

 Financial Assurance

 Requirement for a Permit 

 Public Involvement
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 It is a conditionally exempt small quantity generator (CESQG) if it generates less than 

100 kg of hazardous waste in a calendar month. 

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 generatorcontrolled exclusion 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 on-site 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 transfer-based exclusion 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-and-consent, 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 generator-controlled exclusion, 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.
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Reclamation under the generator-controlled exclusion is not subject to the “derived-from 

rule,” as is reclamation under the hazardous waste regulations (Scenarios 1, 2, 3 and 8). 

The hazardous waste regulations state that any material derived from a listed hazardous waste is 

also a listed hazardous waste. This is called the “derived-from” rule. It means that residues from 

the reclamation of a listed hazardous waste are they themselves that listed hazardous waste. The 

GCE does not address how residues from the reclamation process should be managed and is 

therefore not comparable to the hazardous waste regulations in this regard. As a result, 

generators under the exclusion could identify residuals to be a new point of generation for the 

purposes of applying the hazardous waste determination requirements of 40 CFR 262.11. This 

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 once 

they exit recovery units operated under the 2008 DSW final rule, provided they do not exhibit a 

characteristic. As a result, such wastes could exit Subtitle C regulation.

The DSW exclusions require all generators to notify EPA of their HSM generation and 

management activities biennially, whereas the hazardous waste regulations require 

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.

Offsite 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.”29 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 172.101,30

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 generatorcontrolled exclusion and the transfer-based exclusion:

 Generator-Controlled Exclusion. Prior to and during offsite transport, hazardous HSMs

GCE that qualify as a DOT hazardous material would be subject to comparable 

transportation requirements as hazardous waste in regard to packing, labeling, marking, 

 

29

 All hazardous wastes are listed in Part 172 as DOT hazardous material and therefore are automatically subject to 

the DOT regulations as applicable. 

30

 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).
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placarding, parking and driving. Specifically, the DOT regulations apply similarly to 

hazardous waste and other types of DOT hazardous materials, such as excluded 

hazardous secondary material, 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.

 Transfer-Based Exclusion. Onsite handling and offsite shipments of HSMs that qualify

as a DOT hazardous material would be TBE 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.

Onsite handling and offsite transportation of DSW-excluded material that no longer 

qualifies as a DOT hazardous material would not be subject to regulation comparable to 

hazardous waste shipments (Scenarios 1, 3, 4, 5, 6, 7, and 8). Under the generator-controlled 

exclusion or transfer-based exclusion, transportation requirements for excluded HSMs GCE the 

TBE 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. 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 generator-controlled exclusion 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) 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.
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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.

Reclamation under the transfer-based exclusion is not subject to the “derived-from rule,” 

as is reclamation under the hazardous waste regulations (Scenarios 1, 4, 5, 6, 7 and 8). The 

hazardous waste regulations state that any material derived from a listed hazardous waste is also 

a listed hazardous waste. This is called the “derived-from” rule. It means, for example, that 

residues from the reclamation of a listed hazardous waste remain that listed hazardous waste. 

The TBE states that residuals must be managed as hazardous waste if they exhibit a 

characteristic or are listed. Hence, the derived-from rule does not apply to the residuals from the 

reclamation of hazardous secondary materials under the DSW exclusion. This means that the

residuals exiting the reclamation unit constitutes a new point of generation for the purposes of 

applying the hazardous waste determination requirements of 40 CFR 262.11. If the residuals 

exhibit a hazardous characteristic, or they themselves are a listed hazardous waste, they would be 

considered hazardous wastes (unless otherwise exempted) and would have to be managed 

accordingly. If they did not exhibit a hazardous characteristic, or were not themselves a listed 

hazardous waste, they would need to be managed in accordance with applicable state or federal 

requirements for non-hazardous wastes.

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 2008 DSW final rule.

Some hazardous secondary materials 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 transfer-based exclusion, 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 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 exclusion 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 transfer-based exclusion 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 
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HSMs in the unit. The hazardous waste regulations prescribe specific design, installation, 

operating, 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 

hazardous secondary materials can be managed and contained. 

The transfer-based exclusion 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 DSW transfer-based exclusions require containment 

of HSMs, they do 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 hazardous secondary material may be diverted from permitted off-site facilities to 

being exported for reclamation under the transfer-based exclusion, which does not require

a permit. However, the importing facility must pass generators’ “reasonable efforts” audit 

(Scenario 6 and 8). As described above, permitted facilities are subject to prescriptive permit 

requirements covering the design, construction, operation, air emission controls, financial 

assurance, 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.

Some hazardous secondary materials may be diverted from unpermitted off-site reclaimers 

under the hazardous waste regulations to different off-site reclaimers under the transferbased exclusion (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.

31

 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.

 

31

 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.
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 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. 

They are summarized by facility type and scenario.
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Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by 

Scenario

Scenarios Generatorsb Transporters Intermediate and 

Reclamation Facilities

1. Generator continues 

current reclamation

practices (where 

allowed under DSW)c

HSM can be accumulated on-site for longer 

periods of time under exclusions, resulting in 

potentially greater aggregate quantities on-site 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

Unlike HWRs, the GCE does not extend 

“derived-from” rule to residuals potentially

resulting in materials exiting Subtitle C

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 offsite RCRA permitted 

facility under TBE 

The GCE and TBE do not 

extend “derived-from” rule 

to residuals, as do HWRs, 

potentially resulting in 

residuals exiting Subtitle C

2. Generator switches 

from off-site treatment 

HSM can be accumulated on-site for longer 

periods of time under GCE, resulting in 

N/A N/A
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Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by 

Scenario

Scenarios Generatorsb Transporters Intermediate and 

Reclamation Facilities

then disposal at a 

RCRA facility to on-site 

reclamation under 

generator-controlled 

exclusion 

potentially greater quantities on-site 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 hazardous waste 

regulation

Off-site management at permitted facility is more 

stringently regulated than reclamation under the 

GCE (e.g., no permit or public involvement is 

required) 

The GCE does not extend “derived-from” rule to

residuals of reclamation, as do the HWRs, 

potentially resulting in some materials exiting 

RCRA Subtitle C

DSW exclusions require all generators to notify

EPA biennially, whereas HWRs require biennial 

reporting only LQGs
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Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by 

Scenario

Scenarios Generatorsb Transporters Intermediate and 

Reclamation Facilities

3. Generator switches 

from off-site disposal at 

a RCRA facility to offsite reclamation under 

generator-controlled 

exclusiond

HSM can be accumulated on-site for longer 

periods of time under GCE, resulting in 

potentially greater quantities on-site 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 hazardous waste 

regulation

Off-site management at permitted facility is more 

stringently regulated than reclamation under the 

GCE (e.g., no permit or public involvement is 

required) 

The GCE does not extend “derived-from” rule to

residuals of reclamation, as do the HWRs, 

potentially resulting in some materials exiting 

RCRA Subtitle C

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
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Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by 

Scenario

Scenarios Generatorsb Transporters Intermediate and 

Reclamation Facilities

4. Generator switches 

from off-site disposal at 

a RCRA facility to offsite permitted 

reclamation at a U.S. 

facility under transferbased exclusion

HSM can be accumulated on-site for longer 

periods of time under exclusion, resulting in 

potentially greater quantities on-site 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 hazardous waste 

regulation

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 (offsite 

recycler still RCRA 

permitted)

The TBE does not extend 

“derived-from” rule to

residuals of reclamation, as 

do the HWRs, potentially

resulting in some materials 

exiting Subtitle C
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Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by 

Scenario

Scenarios Generatorsb Transporters Intermediate and 

Reclamation Facilities

5. Generator switches 

from off-site disposal at 

a RCRA facility to offsite reclamation at a 

U.S. facility without a 

RCRA permit under 

transfer-based 

exclusion

HSM can be accumulated on-site for longer 

periods of time under exclusions, resulting in 

potentially greater quantities on-site 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 hazardous waste 

regulation

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

The TBE does not extend 

“derived-from” rule to

residuals of reclamation, as 

do the HWRs, potentially

resulting in some materials 

exiting RCRA Subtitle C
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Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by 

Scenario

Scenarios Generatorsb Transporters Intermediate and 

Reclamation Facilities

6. Generator switches 

from off-site disposal at 

a RCRA facility to 

exporting for 

reclamation under 

transfer-based 

exclusion

HSM can be accumulated on-site for longer 

periods of time under exclusion, resulting in 

potentially greater quantities on-site 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 hazardous waste 

regulation

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

The TBE does not extend 

“derived-from” rule to

residuals, as do the HWRs, 

potentially resulting in 

materials exiting Subtitle C 
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Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by 

Scenario

Scenarios Generatorsb Transporters Intermediate and 

Reclamation Facilities

7. Generator switches 

from off-site 

reclamation at a facility 

without a permit (no 

storage) to offsite 

reclamation under 

transfer-based 

exclusione

HSM can be accumulated on-site for longer 

periods of time under exclusions, resulting in 

potentially greater quantities on-site 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 hazardous waste 

regulation

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). 

The TBE does not extend 

“derived-from” rule to

residuals of reclamation, as 

do the HWRs, potentially

resulting in some materials 

exiting Subtitle C
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Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by 

Scenario

Scenarios Generatorsb Transporters Intermediate and 

Reclamation Facilities

8. Generator switches 

from off-site 

reclamation at a RCRA 

facility to another type 

of reclamation under 

the 2008 DSW final rule

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 include the following: HSM = hazardous secondary material; HWRs = hazardous waste regulations; GCE = generator-controlled exclusion; TBE 

= transfer-based exclusion; LQGs = large quantity generators; SQGs = small quantity generators. 

b Under the GCE, generators may perform reclamation on-site or send it off-site 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 on-site, 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.
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2.5 Likelihood of Hazards under Scenarios

This section presents EPA’s analysis of the likelihood of changes in hazards under the 2008 

DSW final rule for each type of facility (generators, transporters, and intermediate and 

reclamation facilities) and each scenario described in Section 2.1. 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. Potentially increased hazards are discussed in 

section 2.55.1, while section 2.55.2 presents EPA’s discussion of potential reductions and 

transfers of hazards.

2.5.1 Potentially Increased Hazards under 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 onsite 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 2.55.2.

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, as well as 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 HSM, 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 HSM, such as solvents, are often 

flammable, and can ignite to create fires and explosions. HSM may also 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 may also 

involve other toxic or hazardous gasses. Fire and explosion hazards under the DSW exclusions

could increase for generators because of the following:

 HSM can be accumulated longer, and potentially greater quantities can be accumulated 

on-site. 32 A longer accumulation period means that there is a greater likelihood for 

 

32 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 off-site. 
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release of the HSM. For example, there is 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 could also be responsible for managing a greater 

number of tanks and containers to contain the greater volume or may overload/overfill 

storage 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 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 HWRs 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 HSM in land-based units, including 

surface impoundments and waste piles, provided the HSMs are contained in such landbased units. The hazardous waste regulations, on the other hand, provide that only

permitted and interim-status facilities can operate these 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 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 
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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 ongoing 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. 

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 since they are commonly in a liquid state. Soil and water contamination hazards under 

the DSW exclusions could increase because of the following:
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 HSM can be accumulated longer, and potentially greater quantities can be accumulated 

on-site. 33 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 exclusion does 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 generator status under the hazardous waste 

regulations; and therefore, it could drop in status (e.g., from LQG to 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 ongoing 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.

 

33 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 off-site. 
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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 on-site. 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 

on-site. 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. 

 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 generator status under the hazardous waste 

regulations; therefore, it could change its regulatory status (e.g., from LQG to SQG) and 
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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 onsite 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 can also 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, since 

it is often present in dust form and may be stored 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 

on-site. 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 

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 HWRs. The GCE does not prescribe wind 
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dispersal controls for land-based units as do the HWRs. For example, the HWRs 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 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.

Residues from Reclamation (Scenarios 1 through 3 and 8). Reclamation processes (e.g., 

distillation and high temperature metals recovery) could result in a hazardous waste residue that 

requires further treatment before land disposal in accordance with the RCRA Subtitle C

regulations. The hazardous waste regulations state that any material derived from a listed 

hazardous waste is also a listed hazardous waste. This is called the “derived-from” rule. It 

means, for example, that residues from the reclamation of a listed hazardous waste remain that

listed hazardous waste. The GCE does not address how residues from the reclamation process 

should be managed and is therefore not comparable to the hazardous waste regulations in this 

regard. As a result, generators under the exclusion could identify the point at which residuals 

exit the unit to be a new point of generation for the purposes of applying the hazardous waste 

determination requirements of 40 CFR 262.11. This 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 when exiting recovery units operated under the DSW 

rule, unless such residue was also a listed hazardous waste. As a result, such wastes could exit 

Subtitle C regulation.

Abandoned Materials (Scenarios 1 through 3 and 8). A significant number of the 

environmental damage cases evaluated by the Agency 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 

on-site. 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. For example, a generator acting under the 2008 DSW final rule could go

out of business with 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 
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regulations, the GCE does not require a permit, public involvement, or explicit HSM 

management standards. The hazardous waste regulations do require generators to obtain 

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 on-site. 

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.
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Table 2.4. Potential Incremental Hazards under DSW Rule: Generators

Regulatory Differences under DSW Rulea

Potential Incremental Hazards

Fire/

Explosion

Soil/Water 

Contamination

Volatile 

Air 

Emissions

Particulate 

Wind 

Dispersal

Residues 

from 

Reclamation

Abandoned 

Materials

Scenario 1: Generator continues current reclamation practicesb

HSM accumulated longer, potentially

greater quantities on-site 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

No derived-from rule, listed residues 

potentially exit Subtitle C X

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

HSM accumulated longer, potentially

greater quantities on-site 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

No derived-from rule, listed residues 

potentially exit Subtitle C X

Scenario 3: Generator switches from off-site disposal to off-site recycling under the control of the generatord

HSM accumulated longer, potentially

greater quantities on-site X X X X X

No explicit containment standards X X X X

Potential generator change in regulatory

status X X X X
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Table 2.4. Potential Incremental Hazards under DSW Rule: Generators

Regulatory Differences under DSW Rulea

Potential Incremental Hazards

Fire/

Explosion

Soil/Water 

Contamination

Volatile 

Air 

Emissions

Particulate 

Wind 

Dispersal

Residues 

from 

Reclamation

Abandoned 

Materials

Scenario 4 through 8: Generator switches to off-site recycling

HSM accumulated longer, potentially

greater quantities on-site 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

No derived-from rule, listed residues 

potentially exit Subtitle C 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 on-site, 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.
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Transporters

Fires and Explosions (Unlikely for all Scenarios). Some HSM, 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 may also evolve other toxic or hazardous gasses. 

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 offsite 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 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, 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 may

also be susceptible to resuspension and wind dispersal.

HSM under the exclusions that qualify 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 
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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 HSMs to an unaffiliated offsite reclaimer under the 

TBE. In such cases, the likelihood of HSM being abandoned could increase.
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Table 2.5. Potential Incremental Hazards under DSW Rule: Transporters

Regulatory Differences under DSW RuleaPotential Incremental Hazards

Fire/Explosion Volatile Air, 

Emissions, Soil/ 

Water 

Contamination, 

and Wind 

Dispersal

Abandoned 

Materials

Scenario 1: Generator continues current reclamation practicesb

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 generatorc

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 DSWd

No waste codes on shipping papers

HSM that no longer qualifies as DOT hazardous material or triggers RQ X
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Table 2.5. Potential Incremental Hazards under DSW Rule: Transporters

Regulatory Differences under DSW RuleaPotential Incremental Hazards

Fire/Explosion Volatile Air, 

Emissions, Soil/ 

Water 

Contamination, 

and Wind 

Dispersal

Abandoned 

Materials

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 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.
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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 may also 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 may also 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 
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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 since 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 exclusion 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. 

 HSM 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 
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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 on-site. 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 
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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 can 

also 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. 

Residues from Reclamation (Scenarios 1 and 4, 5, 7, and 8). Reclamation processes 

(e.g., distillation and high temperature metals recovery) could result in a hazardous waste 

residue that requires further treatment before land disposal in accordance with the RCRA 
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Subtitle C regulations. The hazardous waste regulations state that any material derived 

from a listed hazardous waste is also a listed hazardous waste. This is called the 

“derived-from” rule. It means, for example, that residues from the reclamation of a listed 

hazardous waste are listed hazardous waste. The GCE does not address how residues 

from the reclamation process should be managed and is therefore not comparable to the 

hazardous waste regulations in this regard. As a result, generators under the exclusion 

could identify residuals to be a new point of generation for the purposes of applying the 

hazardous waste determination requirements of 40 CFR 262.11. This raises the 

possibility that some residuals from recovery process that were considered hazardous 

under full RCRA Subtitle C regulation would no longer be considered hazardous for 

recovery units operated under the DSW rule, unless such residue was also a listed 

hazardous waste. As a result, such wastes could exit Subtitle C regulation.

Abandoned Materials (Scenarios 5 and 8). A significant number of the environmental 

damage cases evaluated by the Agency 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 

clean up 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 

on- site 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.
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Table 2.6. Potential Incremental Hazards under DSW Rule: Intermediate and Reclamation Facilities

Regulatory Differences under DSW 

Rulea

Potential Incremental Hazards

Fire/ 

Explosion

Soil/Water 

Contamination

Volatile Air 

Emissions

Particulate 

Wind 

Dispersal

Residues 

from 

Reclamation

Abandoned 

Materials

Scenario 1: Generator continues current reclamation practicesb

Change from RCRA-permitted to 

unpermitted management facilities 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 X X

No derived-from rule, listed residues 

potentially exit Subtitle C 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 generatorc

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

No derived-from rule, listed residues 

potentially exit Subtitle C 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

No explicit containment standards X X X X
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Table 2.6. Potential Incremental Hazards under DSW Rule: Intermediate and Reclamation Facilities

Regulatory Differences under DSW 

Rulea

Potential Incremental Hazards

Fire/ 

Explosion

Soil/Water 

Contamination

Volatile Air 

Emissions

Particulate 

Wind 

Dispersal

Residues 

from 

Reclamation

Abandoned 

Materials

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 X X

No derived-from rule, listed residues 

potentially exit Subtitle C X

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 X

No derived-from rule, listed residues 

potentially exit Subtitle C

Scenario 7: Generator switches from off-site reclamation at a facility without a permit to another type of recycling under 

DSWd

HSM increasingly diverted from 

hazardous waste management and 

disposal to reclamation under the TBE X X X X X

No derived-from rule, listed residues 

potentially exit Subtitle C 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

No explicit containment standards X X X X

No explicit standards for controlling air 

emissions X X
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Table 2.6. Potential Incremental Hazards under DSW Rule: Intermediate and Reclamation Facilities

Regulatory Differences under DSW 

Rulea

Potential Incremental Hazards

Fire/ 

Explosion

Soil/Water 

Contamination

Volatile Air 

Emissions

Particulate 

Wind 

Dispersal

Residues 

from 

Reclamation

Abandoned 

Materials

HSM increasingly diverted from 

hazardous waste management and 

disposal to reclamation under the TBE X X X X X X

No derived-from rule, listed residues 

potentially exit Subtitle C 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 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.
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2.5.2 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 HSM. However, the biennial reporting 

requirement in the hazardous waste regulations applies only to LQGs. The DSW notification 

requirement applies to generators regardless of amount of waste generated. 

Under the DSW exclusions, EPA and state regulators will have a greater knowledge of the types 

and quantities of HSM 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 

clean up HSM 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 is also 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 resulting 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, 8). Under 40 CFR part 262, LQGs and 

SQGs are prohibited from accumulating hazardous waste on-site 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 

on-site 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 rule. Rather, these generators would manage their 

materials in accordance with the 2008 DSW final rule. In regard to on-site 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.
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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 clock 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 2008 

DSW final rule. 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 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 off-site 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 on-site or 

off-site under the rule might change its 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 off-site under the 180/270-day

clock 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 clean up 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 

required to obtain financial assurance. The financial assurance requirements will decrease the 
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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 2008 

DSW final rule 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 clean up 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. 

2.5.3 Other Impacts

Environmental Hazards from Hazardous Waste Treatment and Disposal (Scenarios 2 

through 6). The 2008 DSW final rule 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” since 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 2008 DSW final rule. 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).

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 
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greenhouse gasses. It could also 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 2008 DSW final rule. 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.
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Table 2.7. Potential Reduction in Hazards under DSW Rule

Differences under DSW Rulea

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 practicesb

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

Scenario 7: Generator switches from off-site reclamation at a facility without a permit to another type of recycling under DSWd
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Table 2.7. Potential Reduction in Hazards under DSW Rule

Differences under DSW Rulea

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

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.
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3 Identification of Potentially Affected Communities

This section identifies the facilities that may likely begin recycling HSMs under the 2008 DSW

final rule. These facilities include:

1. Facilities that have already notified EPA that they will be managing HSMs under the 

2008 DSW final rule;

2. Facilities currently generating or managing HSMs that may choose to operate under 

the 2008 DSW final rule; and

3. Facilities not currently generating or managing HSMs that may choose to begin 

reclaiming them under the 2008 DSW final rule.

EPA conducted its EJ analysis on the facilities identified in this Section. The EJ analysis is 

described in Section 4 of this report. For each of the above categories, EPA identified key

information about the facilities needed to conduct the EJ analysis, such as their location and 

quantities and types of HSMs generated and managed. 

3.1 Facilities that Have Already Notified EPA that They Will Be Managing Hazardous 

Secondary Materials under the 2008 DSW Final Rule (40 CFR § 260.42)

As of August 30, 2010, 40 facilities submitted notifications to EPA that they would manage their

HSM under the 2008 DSW final rule (hereafter referred to as “notification facilities”). These 

include facilities from Iowa, New Jersey, Pennsylvania, and the Virgin Islands. Because the 

2008 DSW final rule is deregulatory in nature, it is only effective in states and territories that are 

not authorized to implement their own RCRA base programs, and those states with authorized 

programs that modify their programs to adopt it. As of August 30, only New Jersey and 

Pennsylvania have adopted the 2008 DSW final rule. The RCRA hazardous waste program in 

Iowa and the Virgin Islands are not authorized to implement their own programs. 

This report examines the 40 facilities that notified as of August 30, 2010 that they are following 

the 2008 DSW final rule. EPA maintains a list of notification facilities at

http://www.epa.gov/epawaste/hazard/dsw/notify-sum.pdf. For each of the 40 notification

facilities, EPA compiled information from data sources, such as their notification forms and

other environmental reporting data sources, such as the RCRA Site Identification (Site ID) 

Forms of the most recent Biennial Report (BR) filed by the facility between 2001 and 2007.34 If 

the facility did not file a 2001-2007 BR, EPA obtained information from the Handler Module in 

RCRAInfo or from the Facility Registry System (FRS) database in Envirofacts (at 

http://www.epa.gov/enviro/html/fii/fii_query_java.html). 

From these data sources, EPA compiled the following information: 

 Facility location address (i.e., street address, city, State, and zip code);

 Primary North American Industry Classification System (NAICS) code and

NAICS code description.

EPA then compiled information on facility location coordinates (i.e., latitude and longitude)

from the FRS database in Envirofacts. Where such data were not available from these sources, 

EPA used the facility address and geocoding software to identify the facility latitude and 

 

34

 At this time, the most recent available BR data are for reporting year 2007. It is anticipated that the 2009 BR data 

will become available in December 2010.
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longitude. EPA recognizes that facility addresses and location coordinate information sometimes 

are not the same as the location in which HSM generation, storage, or reclamation activities 

might occur. For example, the FRS may have location information for a corporate headquarters 

rather than production and processing facilities. However, field investigation of potentially

thousands of facility locations to verify and correct GIS coordinates was beyond the scope of this 

analysis. 

The success rate of the geocoding is dependent on the quality of the location address data. The 

most accurate coordinates were obtained when the street address could be recognized and located 

by the geocoding software. Generally, about 70 to 80 percent of the addresses were recognized 

and located by the geocoding software. In instances in which addresses could not be geocoded 

(e.g., inaccurate or missing street addresses, PO boxes or rural routes), EPA used internet 

searches of company websites or internet business listings to obtain more specific facility

location addresses or facility coordinates. 

EPA further determined whether any of the notification facilities was one of the 219 damage 

cases, including the 218 damage cases included in the Environmental Problems Study or the one 

additional damage case identified by EPA based on information received after promulgation of 

the 2008 DSW final rule. Based on this review, none of the 40 notification facilities is a damage 

case facility.

3.2 Facilities Currently Generating or Managing Hazardous Secondary Materials that 

May Choose to Operate under the DSW Rule

EPA identified the facilities that are currently generating or managing recyclable hazardous 

wastes (including intermediate storage facilities) that may be likely to begin operating under the 

2008 DSW final rule. EPA assumed that these facilities may choose to operate under this rule, 

regardless of whether the State is likely to adopt the rule.

35

 This assessment was made based on 

a review of each facilities hazardous waste generation and management activities as reported in 

the 2007 RCRA Hazardous Waste Biennial Report, which is the most comprehensive and current 

information available about such activities. For this analysis, EPA assumed that facilities that 

currently manage HSMs by recycling, or that generate recyclable hazardous wastes at large 

enough quantities to make it economically justifiable, would switch to reclamation under the 

2008 DSW final rule.36 

3.2.1 Facilities Currently Managing Recyclable Hazardous Wastes

Facilities that currently manage hazardous wastes may begin recycling them under the 2008 

DSW final rule. This includes facilities that are currently reclaiming hazardous wastes under the 

hazardous waste regulations that may switch to recycling under the 2008 DSW final rule. It also 

includes facilities that manage hazardous wastes by other management methods, such as 

incineration or solidification/stabilization that may switch to reclamation under the 2008 DSW

final rule. 

 

35

 Page 18 of EPA’s Draft Environmental Justice Methodology for the Definition of Solid Waste Final Rule, dated 

January 13, 2010.

36

 Page 17 of EPA’s Draft Environmental Justice Methodology for the Definition of Solid Waste Final Rule, dated 

January 13, 2010.
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To identify and collect information about facilities currently managing recyclable hazardous 

waste that may begin managing them under the DSW exclusions, EPA conducted the following 

steps:

1. Compiled information on hazardous wastes managed by facilities. To compile 

information on hazardous wastes managed by facilities (i.e., wastes generated and 

managed on-site, and wastes received from off-site for management), EPA collected 

information from Section 2 (On-site Management) of Waste Generation and 

Management (GM) and from Waste Received from Off-site (WR) Forms of the BR. 

This allowed EPA to capture facilities that filed a BR, reporting their own hazardous 

waste management activities. In addition, EPA referred to Section 3 (Off-Site 

Shipment) of the GM Forms to identify any hazardous waste management facility that 

did not file a BR, but is reflected in a generator’s BR. From these data sources, EPA

compiled the following information, as applicable:

 Reporting year;

 Biennial Report form (i.e., GM or WR);

 Page and subpage number;

 Source code (GM Form only);

 Source code description (GM Form only);

 Form code;

 Form code description;

 Classification as wastewater or nonwastewater;

 EPA hazardous waste codes representing the waste;

 Waste code group;

 Waste description;

 On-site or off-site management indicator;

 Management method code;

 Management method code description;

 Quantity of hazardous waste managed, by management method code;

 Indicator of whether the hazardous waste was managed through recycling 

activities (i.e., recycled); and

 Indicator of whether the waste is considered a “recyclable hazardous waste.”

In classifying the wastes as “wastewaters” or “nonwastewaters,” EPA used a 

methodology that relies on some of the data reported to the BR to determine if such 

waste is a wastewater or nonwastewater. Attachment C-1 describes this 

methodology.

The waste code group is a single, mutually exclusive code assigned to the waste. It 

was created to help avoid double counting of waste streams with multiple hazardous 

waste codes. Attachment C-2 presents the logic that was used to define these waste 

code groups.

For purposes of this analysis, “recycling” activities are those associated with the 

management of wastes using one of the following management methods: metals 

recovery (BR management method code H010), solvents recovery (BR management 

method code H020), and other recovery (BR management method code H039).
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In determining whether a waste is considered a “recyclable hazardous waste,” EPA 

used the methodology developed for the (Regulatory Impact Analysis) RIA of the 

2008 DSW final rule. Attachment C-3 describes the RIA methodology. Note that 

this methodology was only applied to HSMs managed through methods other than 

recycling (i.e., methods other than metals recovery, solvents recovery, and other 

recovery). All HSMs reported as recycled were assumed to be recyclable regardless 

of their characteristics.

2. Identified facilities that manage recyclable hazardous wastes. EPA identified 

facilities currently managing recyclable hazardous wastes by referring to data 

compiled under Step 1. EPA identified recyclable hazardous wastes based on the 

characteristics of those wastes, as well as the amount of HSM generated. EPA 

generally considered HSMs that could be identified as acids based on their source or 

form codes as recyclable. For other HSMs, EPA identified those that appeared to be 

solvent or metal-bearing materials based on the source codes, form codes, 

management method codes, or other information. In general, solvent and metalbearing materials that were identified as production process nonwastewaters were 

considered recyclable, while other types of HSMs were not considered recyclable. 

For example, wastewaters generally tend to be dilute waste streams with low levels of 

materials and generally are not recycled because insufficient material can be 

recovered to make the recycling economically feasible. Additionally, cleanup wastes 

and treatment residuals generally are contaminated with other materials, such as soil 

or other solids that often render recycling infeasible. EPA’s approach to identifying 

recyclable materials generally follows the approach used in the RIA prepared in 

support of the 2008 DSW final rule. A detailed description of the methodology

applied for this analysis is contained in Attachment C.

3. Compiled information about location coordinates. EPA then compiled information 

on facility location coordinates (i.e., latitude and longitude) from the FRS database in 

Envirofacts. Where such data were not available, EPA used the facility address and 

geocoding software to identify the facility latitude and longitude. EPA recognizes 

that facility addresses and location coordinate information sometimes are not the 

same as the location in which HSM generation, storage, or reclamation activities 

might occur. For example, the FRS may have location information for a corporate 

headquarters rather than production and processing facilities. However, field 

investigation of potentially thousands of facility locations to verify and correct GIS 

coordinates was beyond the scope of this analysis. The success rate of the geocoding 

is dependent on the quality of the location address data. The most accurate 

coordinates were obtained when street addresses could be recognized and located by

the geocoding software. Generally, about 70 to 80 percent of the addresses can be 

recognized and located by the geocoding software. In instances where addresses 

could not be geocoded (e.g., inaccurate or missing street addresses, PO boxes or rural 

routes), EPA used internet searches of company websites or internet business listings 

to obtain more accurate facility location addresses or facility coordinates.

4. Excluded facilities that submitted notification to EPA indicating that they would be 

managing hazardous secondary materials under the DSW Rule. From the list of 

facilities developed, EPA identified and excluded those facilities that already notified 
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EPA that they would be managing HSMs under the 2008 DSW final rule, since these 

facilities are being analyzed under Section 3.1 of this document (“Facilities that Have 

Already Notified EPA that They Will Be Managing Hazardous Secondary Materials 

under the 2008 DSW Final Rule”).

3.2.2 Facilities Currently Generating Recyclable Hazardous Wastes

Facilities that currently generate hazardous wastes may begin recycling them under the 2008 

DSW final rule. This includes facilities that are currently recycling hazardous wastes under the 

hazardous waste regulations that may switch to recycling them under the 2008 DSW final rule. 

It also includes facilities that manage hazardous wastes by other management methods, such as 

incineration or solidification/stabilization that may switch to recycling under the 2008 DSW final 

rule. 

To identify and collect information about facilities currently managing recyclable hazardous 

waste that may begin managing them under the DSW exclusions, EPA performed the following 

steps:

1. Compiled information on hazardous wastes generated by the facilities. To compile 

information on hazardous wastes generated by facilities and on the management 

methods associated with each of these materials, EPA collected information from

Section 1 (Generation), Section 2 (On-site Management), and Section 3 (Off-site 

Shipment) of the GM Forms. From these data sources, EPA compiled the following 

information:

 Reporting year;

 Biennial Report form (i.e., GM);

 Page and subpage number;

 Source code;

 Source code description;

 Form code;

 Form code description;

 Classification as wastewater or nonwastewater;

 EPA hazardous waste codes representing the waste;

 Waste code group;

 Waste description;

 Quantity of hazardous waste generated; 

 On-site or off-site management indicator;

 Management method code;

 Management method code description;

 Quantity of recyclable hazardous waste managed, by management method code;

 Indicator of whether the waste was managed through recycling activities 

(i.e., recycled); and

 Indicator of whether the waste is considered a “recyclable hazardous waste.”

In classifying the waste as a “wastewaters” or “nonwastewaters,” EPA used a 

methodology that relies on some of the data reported to the BR to determine if the 

waste is a wastewater or nonwastewater. Attachment C-1 describes this 

methodology.
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The waste code group is a single, mutually exclusive code assigned to the wastes. It 

was created to help avoid double counting of waste quantities for waste streams with 

multiple hazardous waste codes. Attachment C-2 presents the logic that would be 

used to define these waste code groups.

For purposes of this analysis, “recycling” activities are those associated with the 

management of wastes using one of the following management methods: metals 

recovery (BR management method code H010), solvents recovery (BR management 

method code H020), and other recovery (BR management method code H039).

In determining whether a waste is considered a “recyclable hazardous waste,” EPA 

used the methodology developed for the RIA of the DSW Rule. Attachment C-3

describes the RIA methodology. Note that this methodology only applied to wastes 

managed through methods other than recycling (i.e., methods other than metals 

recovery, solvents recovery, and other recovery). 

2. Identified facilities that generate recyclable hazardous wastes. EPA identified 

facilities currently generating recyclable hazardous wastes by referring to data 

compiled under Step 1. EPA identified recyclable hazardous wastes based on the 

characteristics of those materials, and the amount generated. EPA generally

considered wastes that could be identified as acids based on their source or form 

codes as recyclable. For other wastes, EPA identified those wastes that appeared to 

be solvent or metal-bearing based on source codes, form codes, management method 

codes, or other information. In general, solvent and metal-bearing materials that were 

identified as production process nonwastewaters were considered recyclable, while 

other types of wastes were not considered recyclable. For example, wastewaters 

generally tend to be dilute wastes with low levels of recyclable materials and 

generally are not recycled because insufficient material is recovered to make the 

recycling economically feasible. Cleanup wastes and treatment residuals generally 

are contaminated with other materials, such as soil or other solids that often render 

recycling infeasible. EPA’s approach to identifying recyclable materials generally 

follows the approach used in the RIA prepared in support of the 2008 DSW final rule. 

A detailed description of the methodology applied for this analysis is contained in 

Attachment C.

3. Compiled information about location coordinates. EPA then compiled information 

on facility location coordinates (i.e., latitude and longitude) from the FRS database in 

Envirofacts. Where such data were not available, EPA used the facility address and 

geocoding software to identify the facility latitude and longitude. EPA recognizes 

that facility addresses and location coordinate information sometimes are not the 

same as the location in which HSM generation, storage, or reclamation activities 

might occur. For example, the FRS may have location information for a corporate 

headquarters rather than production and processing facilities. However, field 

investigation of potentially thousands of facility locations to verify and correct GIS 

coordinates was beyond the scope of this analysis. The success rate of the geocoding 

is dependent on the quality of the location address data. The most accurate 

coordinates were obtained when street addresses could be recognized and located by 

the geocoding software. Generally, about 70 to 80 percent of the addresses can be 

recognized and located by the geocoding software. In instances in which addresses 
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could not be geocoded (e.g., inaccurate or missing street addresses, PO boxes or rural 

routes), EPA used internet searches of company websites or internet business listings 

to obtain more accurate facility location addresses or facility coordinates.

4. Excluded facilities that submitted notification to EPA indicating that they would be 

managing hazardous secondary materials under the DSW Rule. From the list of 

facilities developed, EPA identified and excluded facilities that already notified EPA 

that they would be managing HSMs under the DSW Rule, since these facilities are 

being analyzed under Section 3.1 of this document (“Facilities that Have Already 

Notified EPA that They Will Be Managing Hazardous Secondary Materials under the 

2008 DSW Final Rule”).

3.2.3 Facilities Currently Generating or Managing Hazardous Wastes that May 

Choose to Operate under the DSW Rule

Not all facilities that currently generate or manage recyclable hazardous wastes will choose to 

begin to do so under the 2008 DSW final rule. EPA believes that facilities will primarily choose 

to do so when it is less expensive to recycle their hazardous wastes under the 2008 DSW final 

rule than to manage them under the hazardous waste regulations. EPA assumed that all facilities 

currently generating or managing hazardous waste by recycling will continue to manage those 

wastes by recycling under the DSW exclusion. For facilities using other management methods, 

EPA identified which facilities may choose to operate under the 2008 DSW final rule based on 

the amount of recyclable hazardous waste generated or managed by the facility. Facilities that 

generate or manage more than a truckload of recyclable hazardous waste (25 tons) annually are 

assumed to begin managing that waste by recycling under the 2008 DSW final rule (hereafter 

referred to as “hazardous waste facilities”).

Facilities that generate or manage less than a truckload (25 tons) of waste in a calendar year were 

assumed to be unlikely to conduct activities under the 2008 DSW final rule. For facilities that 

manage their wastes off-site, transportation costs are usually a significant factor in waste 

management costs. In addition, the costs of transporting a full truckload are usually significantly 

less than those for a partial truckload per unit of material shipped. EPA assumed that the higher 

unit transportation costs associated with less than truckload shipments would outweigh the 

additional costs needed to meet the legitimacy criteria of the 2008 DSW final rule. For facilities 

that manage their wastes on-site, EPA assumed that the expense associated with purchasing, 

installing, starting up, and operating an on-site hazardous waste recycling unit for less than 

truckload amounts of waste annually would make on-site recycling economically infeasible.

Transporters haul materials in many different types of vehicles, including tankers, 18-wheel box 

and flatbed trucks, and vacuum tankers. DOT regulations specify that trucks must weigh less 

than 80,000 pounds, which, when the weight of the tractor is factored in, leaves a maximum of 

50,000 pounds, or 25 tons, for material. For liquid shipments, tanker trucks have a capacity of 

7,000 gallons, which (depending on the density of the liquid), translates to roughly 24 tons. 

Based on this, EPA assumed that a full truckload of hazardous waste would contain about 25 

tons of waste. However, the actual amount of hazardous waste in a full truckload will vary based 

on factors such as the density of the waste, the packaging, and other factors. Of the 10,229 

facilities that generated potentially recyclable waste in 2007, some 2,755 generated truckload 

quantities of potentially recyclable hazardous wastes (i.e., >= 25 tons of potentially recyclable 

hazardous wastes). 
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3.3 Facilities Not Currently Generating or Managing Hazardous Secondary Materials 

that May Choose to Reclaim them under the 2008 DSW Final Rule

In addition to facilities currently generating or managing hazardous waste, some facilities that do 

not currently generate or manage hazardous waste may begin recycling HSM under the 2008 

DSW final rule. EPA identified commercial facilities that currently manage nonhazardous 

industrial waste using processes similar to those used for hazardous waste recycling as those 

most likely to begin reclaiming HSM under the 2008 DSW final rule. These include recyclers of 

used oil, antifreeze, scrap metals, and precious metals. Because these facilities likely can begin 

accepting HSMs for recycling with few modifications to their current processes, these facilities 

face few barriers to begin reclaiming HSMs under the 2008 DSW final rule. EPA assumed that 

such facilities would begin reclaiming HSM under the 2008 DSW final rule for this analysis. 

EPA did not identify other types of facilities not currently generating or managing hazardous 

wastes that may begin reclaiming HSM under the 2008 DSW final rule. 

EPA identified commercial non-hazardous industrial waste recycling facilities by identifying 

used oil, antifreeze, scrap metal, and precious metal recycling facilities in the following data 

sources:

 EPA databases (e.g., Wastewise Database, TRI);

 Department of Energy’s report entitled “Used Oil Re-Refining Study to Address 

Energy Policy Act of 2005 Section 1838;” 

 Chartwell’s “Directory & Atlas of Solid Waste Disposal Facilities;”

 Waste Business Journal Databases;

 Hazardous Waste Consultant; and

 Internet research (e.g., State Web sites, company Web sites); and

EPA then excluded:

 Facilities that submitted notification to EPA indicating that they would be 

managing HSMs under the 2008 DSW final rule;

 Facilities that reported generating or managing hazardous wastes in 2007 to the 

hazardous waste BR

 Facilities that appeared to conduct only physical separation and processing rather 

than recycling, such as scrap metal shredders.

EPA then compiled general information about the facilities from the data sources listed above. 

The information compiled included the types of waste recycled and facility address. EPA then 

performed geocoding using facility location address information. EPA recognizes that facility

addresses and location coordinate information sometimes are not the same as the location in 

which HSM generation, storage, or reclamation activities might occur. For example, the FRS 

may have location information for a corporate headquarters rather than production and 

processing facilities. However, field investigation of potentially thousands of facility locations 

to verify and correct GIS coordinates was beyond the scope of this analysis. 
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4 Analysis of Demographics of Potentially Affected Communities

EPA analyzed the demographics of the potentially affected communities identified through the 

activities described in Section 3 of this report. The demographics analyzed included racial 

minorities, children under five, and people with income below the poverty level. EPA 

determined the demographics for the population within a 3-km radius around each facility. 

EPA then compared these demographics to those for the state in which the facility was located, 

and also for the nation as a whole.

4.1 Demographic Data Sources

U.S. EPA collected demographic data from the U.S. Census Bureau’s 2000 Decennial Database, 

including Summary File 1 (SF 1) and Summary File 3 (SF 3). The SF 1 data provides 

information at the most precise level available to the public, the block level. Each block is 

approximately the size of a city block. SF 3 provides data at the next most precise level, the 

block group level. Each block group is comprised of several blocks. SF 1 data is based on data 

collected from all persons and households within the block. SF 3 data is a sample data of 

generally 1 in 6 households within a block group that includes information about more 

characteristics of the people and households surveyed. EPA conducted its analysis using the 

most precise data set available for the characteristics analyzed. SF 1 data was used for the 

following demographics:

 Population;

 Population density;

 Minority population;

 American Indian and Alaska Native (AIAN) population; and

 Children under five years of age 

SF 1 does not include data on the number of Americans below poverty. Therefore SF3 data was 

used for analysis of this demographic. Because SF3 data for county populations and population 

density can be different than SF1 data for the same location, EPA also used SF3 population and 

population density information for analyses related to the poverty level. 

All demographic variables were further divided into urban and rural populations. The U.S. 

Census Bureau defines urban in several ways. EPA used their most general and easily applicable 

definition, which is, “all territory, population and housing units in urbanized areas and in places 

of more than 2.500 persons outside of urbanized areas.” This encompasses all regions with a 

population density greater than 1,000 people per square mile with a minimum residential 

population of 50,000 people. All areas that meet these criteria are considered urban for this 

analysis, and all other areas are considered rural.

When determining what defined minority population, EPA first identified the population with the 

Census racial category “White alone, not Hispanic or Latino.” The minority population was then 

calculated by subtracting this number from the total population. The American Indian and 

Alaska Native (AIAN) population is based on Census data for those with this category alone or 

in combination with any other category. 
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Table 4.1. Data Source Files from the 2000 U.S. Census Used for the DSW EJ Analysis

Summary File 1 Data Summary File 3 Data

Total 

Population

Population 

Density

Minority 

Population

American 

Indian and 

Alaska Native 

Population

Children 

Under Five

Total 

Population

Population 

Density

Population 

Below 

Poverty 

Level

National Total X X X X X X X X

National Urban X X X X X X X X

National Rural X X X X X X X X

State Total X X X X X X X X

State Urban X X X X X X X X

State Rural X X X X X X X X

County Total X X X X X X X X

County Urban X X X X X X X X

County Rural X X X X X X X X
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4.2 Methodology

This section describes the methodology used to develop the EJ Analysis for the 2008 DSW final

rule, including selection of the EJ characteristics for analysis, using the areal apportionment 

method to determine the characteristics of the communities surrounding each facility, and 

conducting a statistical analysis of these results to determine how the demographic 

characteristics compare to those on a state and national level, in both urban and rural 

communities. 

4.2.1 Selection of EJ Characteristics for Analysis

EPA selected minority, American Indian and Alaska Native, children under five, and below 

poverty as demographics for the analysis. These demographics were selected based on the Sierra 

Club petition, comments received in response to this petition and during public forums 

discussing the 2008 DSW final rule and EJ analysis, and a review of past EJ analyses conducted 

by EPA and other entities, including:

 EPA’s “Environmental Justice Smart Enforcement Assessment Tool” (EJ SEAT);

 EPA’s “Toolkit for Assessing Potential Allegations of Environmental Justice” (EJ Toolkit); 

and;

 Chapter 3 of “Toxic Wastes and Race at Twenty - 1987-2007: Grassroots Struggles to 

Dismantle Environmental Racism in the United States,” prepared by the United Church of 

Christ, document the work by Dr. Paul Mohai and Dr. Robin Saha.

4.2.2 Areal Apportionment Method

In order to perform the analysis of the demographic makeup of potentially affected communities, 

EPA used the ESRI geospatial software ArcMap. Geographic coordinate points (latitude, 

longitude) were imported into the program and projected onto a U.S. map using a North 

American Datum 1983 projection, which accounts for the natural curvature of the Earth. The 

underlying data used in the ArcMap program was the 2000 U.S. Census data, as described in 

Section 4.1. Once the buffers were created around each facility, data was extracted at the block 

level for SF1 data for the total population, minority population, American Indian/Alaska Native 

(AIAN) population, and children under five, and at the block group level for SF3 data for 

population below poverty. To extract all the relevant demographic data, decennial census data 

from the SF1 and SF3 datasets were converted to feature layers on top of a national map. Once 

the map was created, a model was created from the ModelBuilder application in ArcToolbox to 

create the algorithm for the analysis.

For the Environmental Justice analysis, EPA used a three-kilometer buffer for each facility

(notification, damage case, hazardous waste, and non-hazardous waste) as an approximation of 

the potential area that could be affected by an acute release scenario (such as a fire or explosion) 

at a reclamation facility. While some EJ analysis use other buffer distances, such as 1- or 2-km 

buffers, assessment of multiple buffers is beyond the scope of this analysis. For each facility, 

EPA used ArcMap to draw a 3-km radius around the facility, and determined the demographic 

characteristics of the communities within that circle. Each 3-km radius encompassed discrete or 

partial census blocks or block groups, and some census blocks or block groups were only 

partially within the circle. EPA estimated the demographics of the population within each circle 

using the Areal Apportionment Method (AAM) also known as the area-weighted method. 
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The population numbers for each demographic category were not a simple sum of the population 

contained in every block or block group intersected by the buffer. It was a weighted sum in 

which the population in the block or block group was multiplied by the proportion of area 

contained with the buffer region. For example, if 100% of the block was contained within the 

buffer region than 100% of the population was tallied; however, if 50% of the block was 

contained within the buffer then only 50% of that population was tallied. If the buffer contained 

three block groups, one completely contained and the others partially contained the calculation 

would be the following:

Block group 1: Total population of 50, 100% contained in buffer

Block group 2: Total population 50, 50% contained in buffer

Block group 3: Total population 30, 30% contained in buffer

Total population for the buffer = (1 * 50) + (0.5 * 50) + (0.3 * 30) = 84

The degree of hazards presented by HSM generation and management activities are typically 

related to the distance of receptors from the HSM. EPA used the areal apportionment method 

because it provides an estimate of the socioeconomic characteristics close to specific locations, 

such as facilities addresses. The Census data used for this analysis is based on administratively

determined boundaries including census blocks and block groups. The Census blocks and block 

groups can vary significantly in size and shape. When used for EJ analyses, they may provide 

inaccurate results, particularly when they are large or irregularly shaped, resulting in inclusion of 

populations that are not within the 3-km radius EPA used for this analysis. 

While AAM will not provide the exact characteristics of the populations within the 3-km radius, 

it provides an adjustment for the limitations of available census data and the geographic 

boundaries provided by the census. EPA considered other methods, such as including the entire 

population of all census blocks or block groups where any part of it was contained within the 3-

km radius, and including only those where the entire area of the block or block group was 

contained within the 3-km radius. However, these methods do not adjust for census blocks or 

block groups that cross the 3-km boundary and have areas (and associated populations) both 

inside and outside the 3-km radius, some of which could be potentially large. In addition, the 

AAM approach used by EPA for this analysis is consistent with other EJ tools and analyses, 

including those discussed in Section 4.2.1. AAM assumes that all populations are equally

distributed within a block or block group. An accurate analysis of the impact of this assumption 

could not be conducted with the information available from the sources used for this analysis.

 

4.2.3 Comparison of Demographic Characteristics of Affected Population versus 

Comparison Population 

The demographics of the population within a 3-km area of each facility were compared to those 

at a national and state level. The national-level comparison is intended to capture any regional 

disproportionality (for example, if the potentially affected communities are all located in states 

with minority and/or low-income populations that are higher than the national average). The 

state-level comparison is intended to capture any disproportionality occurring within the state. 

(In most cases, the RCRA program is implemented by the state.)
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In addition, comparisons were done for urban and rural populations to check if the tendency to 

locate industrial facilities in urban populations was a factor. For urban and rural comparisons, 

the demographics for the population within the 3-km zone around each facility were compared to 

those for the total urban or rural population for the state in which the facility was located. Where 

the 3-km zone contained both urban and rural populations, the overall population density for the 

3-km zone calculated, and if it was found to meet the U.S. Census definition of urban (greater 

than 1,000 persons per square mile), the entire population within the 3-km zone was considered 

to be urban. For some facilities, the 3-km area around it included populations from other states. 

For the state comparisons, the populations in other states were included as if they were in the 

state in which the facility was located. Most facilities analyzed were not in areas with large 

AIAN populations. EPA did not analyze facilities on tribal lands as a separate category.

4.2.4 Statistical Analysis

The next section describes the approach used for defining the affected and comparison 

populations for the demographic groups (i.e. minorities, American Indian/Alaska Native, persons 

below poverty or children under five) within a three-km buffer of each facility, and for 

comparing the demographic characteristics of the affected and comparison populations.

The affected populations are those within the 3-km buffer zones around the facilities analyzed. 

The comparison population is the population selected for comparison with the affected 

population to evaluate whether there is a significant difference between them with respect to 

demographic characteristics. This implies that it is a group of people that could have been 

equally likely to be affected if the facility was in alternative location. For this analysis, different 

comparison populations are considered, including state populations, national populations, and 

urban and rural populations for the state in which the facility is located.

For comparison of urban and rural populations, if the three-km buffer for the facility was located 

in a majority urban area, then the entire affected population was considered to be urban, 

otherwise it was considered to be rural. 

4.3 Statistical Comparison of Demographic Characteristics of Affected Population 

versus Comparison Population

As described above, the goal of this disparity analysis was to assess two comparisons: 

a) Whether there was a substantially greater probability of members in a population group 

(e.g., minority populations) being affected than members of a comparison population 

group (i.e., non-Hispanic White), and

b) Whether members of the population group of interest (e.g., minority population)

comprised a substantially greater proportion of the affected population than of the nonaffected population in the selected buffer regions.

This document refers to comparison (a) as the “Affected Population Ratio” and comparison (b)

as the “Demographic Ratio.” The methodology for calculating these ratios is described in 

Attachment E.

EPA tested these comparisons for statistical significance to identify the probability that the 

observed differences could have arisen due to chance. A statistical significance test result can be 

expressed either as a probability (p-value) that an outcome could have been the result of chance, 
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or as the number of standard deviations from the mean value. For individual counties, states, and 

the nation as a whole, EPA conducted two statistical tests for significance, the Kendall test and 

Fisher’s Exact test. The Kendall test is the standard test for large samples.37 Fisher’s Exact test

is conditional on the total numbers of affected, non-affected, demographic group G, and nondemographic group G populations (Kendall and Stuart, 1973 sections 33.19 and 33.20).38

Attachment E includes the methodology used to calculate the results of these tests. 

For variables with a normal distribution, approximately 95% of the values are within two 

standard deviations of the mean, so this indicates that there would be only a 5% or less 

probability of a value outside this range.

39

 EPA also calculated the corresponding number of 

standard deviations (SD) based on each test. Attachment E includes the methodology used to 

calculate the number of standard deviations. The SD indirectly provides a statistical test since 

the SDs have a standard normal distribution under the hypothesis of homogeneity (i.e., no ethnic 

group disparity), for large samples (i.e., when n is large). 

Fisher’s Exact test tests whether there is a difference between Group G and other people in their 

probability of being inside the boundary area. The smaller the p-value (i.e., the closer to zero), 

the stronger the difference, also shown is the equivalent number of standard deviations based on 

a standard normal distribution40. In some cases the Fisher’s Exact tests cannot be calculated. 

Kendall test results are provided when the Fisher’s Exact test p-values are too small to compute 

readily (e.g., below 10-300), which in turn prevents computation of “equivalent” SD values. The 

Kendall test results provide a close approximation of the Fisher’s Exact test results. These 

statistics provide information about the statistical significance of any observed disparity.

To summarize and evaluate the disparities for different states two additional statistical 

procedures were used. As detailed in Attachment E, the Mantel-Haenszel method was to estimate 

a common Affected Population Ratio (APR) and a common Demographic Ratio (DR), under the 

assumption that all states have the same underlying ratios. These ratios are weighted averages of 

the state-specific ratios. They differ from the nationwide Affected Population Ratio and 

Demographic Ratio because they only include states that have at least one facility and because 

the statistical calculation is different. As detailed in Attachment E, the Cochran-MantelHaenszel test, a generalization of the standard chi-square test, was used to test the null 

hypothesis of no disparity in every state against the alternative hypothesis of a disparity in one or 

more states. The p-value for this test is provided. 

 

37 Apart from the very small bias adjustment factor of n/(n-1), the Kendall test is mathematically equivalent to a 

standard chi-square test.

38 The Kendall and the chi-square tests are approximations to the Fisher Exact test.

39 Consistent with several court-approved precedents in Title VII discrimination cases, a 2-sided significance test is 

used, i.e., EPA test the hypothesis that the population ratio pr1/pr2 = 1 against the alternative hypothesis that pr1/pr2 

≠ 1. This alternative hypothesis means that either demographic group G populations are more adversely affected 

(pr1/pr2 > 1) or non-affected demographic group G populations are more adversely affected (pr1/pr2 < 1). If, 

instead, the goal of the analysis were to test only whether demographic group G populations were more adversely 

affected, then the alternative hypothesis would be pr1/pr2 > 1 and the probabilities of chance occurrence (p-values) 

would be halved (assuming that the estimated ratio pr1/pr2 exceeds 1). 

40 The "equivalent" number of standard deviations for Fisher's Exact test do not exactly equal SD but they are 

approximately equal.
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EPA selected these statistical analyses and tests based on technical literature and their historical 

use in EJ analyses and Title VII discrimination cases41,42,43,44. 

4.4 Results of Demographic Analysis

This section contains the results for the demographic analyses for the DSW EJ analysis. This 

analysis focused on four sets of facilities:

1. Results for notification facilities; the results are presented in Section 4.3.1. 

2. Results for damage case facilities; the results are presented in Section 4.3.2.

3. Results for hazardous waste facilities; the results are presented in Section 4.3.3.

4. Results for non-hazardous industrial waste facilities; the results are presented in 

Section 4.3.4.

For each set of facilities, bar charts, demographic comparison tables, and statistical analysis 

tables are presented. The bar charts provide a histogram for each demographic analyzed of the 

percentage of the populations around each facility that show the indicated demographic. For 

example, Figure 4.4.1.1 shows information about the % minority, % AIAN, % below poverty, 

and % children under 5 for the communities with a 3-km radius around the notification facilities. 

About 55% of the communities around notification facilities had a minority population between 

0 and 10%, 18% of them had a minority population between 11 and 20% in the surrounding 

communities, 10% of the facilities had between 21 and 30% minority populations, another 10% 

had between 31 and 40%, 5% had between 41 and 50%, while 2% had between 51 and 60%. 

The demographic comparison tables present the analyses discussed in Section 4.2.3. For 

example, Table 4.4.1.1 compares the % minority, % AIAN, % below poverty, % children under 

5, % Black or African American, % Asian, % Native Hawaiian and Other Pacific Islander, and % 

Some Other Race for the communities with a 3-km radius around the notification facilities to the 

corresponding national % . This table shows that for the 40 notification facilities, 3 had a % 

minority in the community around the facility greater than the national % minority, while 37 had 

a % minority less than the national %, and none had the same percentage. The mean difference

between the % minority in the communities around notification facilities and the national % was 

-20.68% (meaning on average, the % minority in communities around notification facilities was 

20.68% less than the national average) while the median difference was -26.33%.For each 

demographic comparison table, a statistical analysis table presents the analyses discussed in 

Section 4.3. For example, Table 4.4.1.2 shows the results of analysis of statistical significance of 

the national demographic comparison for the notification facilities. Where values could not be 

computed, the table shows “N/A”. For a description of why values could not be computed in all 

cases please see Section 4.3 and Attachment E.

 

41 Biddle, Richard E. “Disparate Impact Reference Trilogy for Statistics”, 46 Labor Law J 651. November 1995. 

42 EPA Office of Civil Rights, “Draft Revised Investigation Guidance”, Federal Register, Vol 65. No. 124, June 27, 

2000, pp. 39667ff. http://www.epa.gov/civilrights/docs/frn_t6_pub06272000.pdf

43 EPA Office of Civil Rights 1998. Title VI Administrative Complaint re: Louisiana Department of Environmental 

Quality; Permit for Proposed Shintech Facility; Draft Revised Demographic Information. April, 1998. 

http://www.epa.gov/civilrights/shinfileapr98.htm

44 US Department of Justice, Civil Rights Division. 2001. Title VI Legal Manual. January 11, 2001. 

http://www.justice.gov/crt/cor/coord/vimanual.php
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4.4.1 Notification Facilities 

This section presents the demographic results for the 40 notification facilities as of July 30, 2010. 

This includes facilities in Iowa, Pennsylvania, and New Jersey. The demographics for the 

notification facility in the Virgin Islands were not reviewed for this report. 

The demographics were analyzed at a national and state-wide level. In addition, the 

demographics were compared at an urban and rural level. 

For the national level analyses, the demographics analyzed included six race or ethnicity 

categories, including minority, American Indian and Alaska Native, Black or African American, 

Native Hawaiian or other Pacific Islander, Hispanic or Latino, or some other race. These race 

and ethnicity categories are those identified by the U.S. Census for 2000. In addition, 

demographics for persons below the poverty level income and children under five years of age 

were analyzed. EPA also conducted statistical analysis at the national level to determine the 

significance of selected results, including minority, American Indian and Alaska Native, persons 

below poverty, and children under five.

State level analyses are presented for each state individually. In addition, urban, and rural results 

presented are based on a comparison of the demographics for each facility to the overall urban 

and rural populations for the state in which the facility is located. 

EPA acknowledges that a selection bias may exist for the notification facilities. The statistical 

analyses focus on whether the population demographics near each group of facilities are different 

from the population demographics elsewhere in the same state or in the US as a whole. The 

factors that influence whether a facility chooses to be a “notification” facility, or whether a 

facility becomes a damage case, might include the population demographics near the facility, but 

might also include other factors such as the state or region, the type or size of the facility, or 

other factors. EPA did not investigate these additional factors that might influence whether 

facilities become notification facilities. EPA analyzed the notification facilities separately from 

other facility categories, in part, to isolate factors that might result in a selection bias. 
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Figure 4.4.1.1. Demographics for Notification Facilities
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Table 4.4.1.1. National Demographic Comparison for Notification Facilities

Number of 

Facilities with 

% 

Demographics 

Greater Than

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Less Than Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Equal to Area 

Comparison

Mean 

Difference

Median 

Difference

% Minority 3 37 0 -20.68% -26.33%

% Below 

Poverty 13 27 0 -1.95% -3.89%

% American 

Indian 0 40 0 -1.27% -1.34%

% Children 5 

Years and 

Under 32 8 0 0.78% 0.74%

% Black or 

African 

American 10 30 0 -4.85% -10.70%

% Asian 6 34 0 -2.21% -3.29%

% Native 

Hawaiian and 

Other Pacific 

Islander 1 39 0 -0.24% -0.25%

% Some 

Other Race 3 37 0 -4.49% -5.79%

% Hispanic 3 37 0 -9.61% -11.88%

Table 4.4.1.2. DSW Rule National Demographic Comparison Analysis of Statistical Significance for 

Notification Facilities

Demographic Group

Affected 

Population 

Ratio

Demographic 

Ratio 

Fisher 

Exact Test 

P-value

Equivalent 

No. of 

Standard 

Deviations 

(SD)

Probability

(Affected)

Kendall 

Test 

Statistic

Kendall 

Test PValue

Minority (all except non-Hispanic 

whites) 0.68644 0.75962 N/A N/A 0.00209 -123.07 ~0

Persons below poverty 1.04874 1.04271 8.28E-33 11.93 0.00205 12.00 3.48E-33

American Indians and Alaska Natives 0.44680 0.44993 N/A N/A 0.00209 -51.40 ~0

Children under age 5 0.97325 0.97497 1.99E-07 5.20 0.00209 -5.18 2.19E-07
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Table 4.4.1.3. Iowa Demographic Comparison for Notification Facilities

Iowa-Level Comparison

Number of 

Facilities with 

% 

Demographics 

Greater Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Less Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Equal to Area 

Comparison

Mean 

Difference

Median 

Difference

% Minority 7 7 0 3.14% 0.00%

% Below 

Poverty 9 5 0 1.66% 1.49%

% 

American 

Indian 0 14 0 -0.49% -0.53%

% 

Children 5 

Years and 

Under 14 0 0 2.08% 1.88%

Table 4.4.1.4. DSW Rule Iowa Demographic Comparison Analysis of Statistical Significance for 

Notification Facilities

Demographic Group

Affected 

Population 

Ratio

Demographic 

Ratio 

Fisher 

Exact Test 

P-value

Equivalent 

No. of 

Standard 

Deviations 

(SD)

Probability

(Affected)

Kendall 

Test 

Statistic

Kendall 

Test PValue

Minority (all except non-Hispanic 

whites) 1.80337 1.75639 ~0 N/A 0.04190 70.94 ~0

Persons below poverty 1.33562 1.31367 1.06E-213 31.20 0.04039 32.44 8.62E-231

American Indians and Alaska Natives 1.10201 1.10621 4.57E-03 2.84 0.04190 2.87 4.09E-03

Children under age 5 1.12103 1.11786 3.06E-25 10.38 0.04190 10.55 5.35E-26
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Table 4.4.1.5. New Jersey Demographic Comparison for Notification Facilities

New Jersey-Level Comparison

Number of 

Facilities with 

% 

Demographics 

Greater Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Less Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Equal to Area 

Comparison

Mean 

Difference

Median 

Difference

% Minority 2 8 0 -11.04% -14.77%

% Below 

Poverty 0 10 0 -3.69% -3.60%

% 

American 

Indian 2 8 0 -0.27% -0.39%

% Children 

5 Years and 

Under 7 3 0 0.46% 0.62%

Table 4.4.1.6. DSW Rule New Jersey Demographic Comparison Analysis of Statistical Significance for 

Notification Facilities

Demographic Group

Affected 

Population 

Ratio

Demographic 

Ratio 

Fisher 

Exact Test 

P-value

Equivalent 

No. of 

Standard 

Deviations 

(SD)

Probability

(Affected)

Kendall 

Test 

Statistic

Kendall 

Test PValue

Minority (all except non-Hispanic 

whites) 1.02002 1.01341 9.65E-05 3.90 0.02001 3.90 9.50E-05

Persons below poverty 0.63593 0.65123 N/A N/A 0.01990 -42.85 ~0

American Indians and Alaska Natives 1.20658 1.21020 2.57E-10 6.32 0.02001 6.51 7.32E-11

Children under age 5 0.94612 0.94857 1.68E-08 5.64 0.02001 -5.60 2.09E-08
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Table 4.4.1.7. Pennsylvania Demographic Comparison for Notification Facilities

Pennsylvania-Level Comparison

Number of

Facilities with 

% 

Demographics 

Greater Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Less Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Equal to Area 

Comparison

Mean 

Difference

Median 

Difference

% Minority 5 11 0 -2.27% -9.14%

% Below 

Poverty 8 8 0 2.56% 1.07%

% 

American 

Indian 1 15 0 -0.25% -0.32%

% Children 

5 Years 

and Under 14 2 0 1.12% 1.27%

Table 4.4.1.8. DSW Rule Pennsylvania Demographic Comparison Analysis of Statistical Significance for 

Notification Facilities

Demographic Group

Affected 

Population 

Ratio

Demographic 

Ratio 

Fisher 

Exact Test 

P-value

Equivalent 

No. of 

Standard 

Deviations 

(SD)

Probability

(Affected)

Kendall 

Test 

Statistic

Kendall 

Test PValue

Minority (all except non-Hispanic 

whites) 1.46523 1.37643 ~0 N/A 0.02416 87.44 ~0

Persons below poverty 1.73464 1.63336 ~0 N/A 0.02379 114.85 ~0

American Indians and Alaska Natives 1.45628 1.46994 1.92E-53 15.39 0.02416 16.41 1.70E-60

Children under age 5 1.11977 1.11497 2.14E-52 15.23 0.02416 15.48 4.41E-54
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Table 4.4.1.9. Urban Demographic Comparison for Notification Facilities

Number of 

Facilities with 

% 

Demographics 

Greater Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Less Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Equal to Area 

Comparison

Mean 

Difference

Median 

Difference

% 

Minority 8 11 21 1.06% -2.41%

% Below 

Poverty 11 7 22 3.08% 1.95%

% 

American 

Indian, 

Alaskan 

Native 10 9 21 0.08% 0.11%

% 

Children 

Under 5 11 8 21 0.21% 0.29%

Table 4.4.1.10. DSW Rule National Demographic Comparison Analysis of Statistical Significance (Urban)

for Notification Facilities

Demographic Group

Affected 

Population 

Ratio

Demographic 

Ratio 

Fisher 

Exact Test 

P-value

Equivalent 

No. of 

Standard 

Deviations 

(SD)

Probability

(Affected)

Kendall 

Test 

Statistic

Kendall 

Test PValue

Minority (all except non-Hispanic 

whites) 0.63987 0.73342 N/A N/A 0.00224 -139.67 ~0

Persons below poverty 1.15212 1.13116 7.65E-243 33.28 0.00213 33.88 1.42E-251

American Indians and Alaska Natives 0.54980 0.55235 N/A N/A 0.00224 -35.50 4.58E-276

Children under age 5 0.95535 0.95825 4.85E-16 8.12 0.00224 -8.07 7.28E-16
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Table 4.4.1.11. Rural Demographic Comparison for Notification Facilities

Number of 

Facilities with % 

Demographics 

Greater Than 

Area Comparison

Number of 

Facilities with 

% 

Demographics 

Less Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Equal to Area 

Comparison

Mean 

Difference

Median 

Difference

% 

Minority 18 1 21 17.59% 13.31%

% 

American 

Indian, 

Alaskan 

Native 7 14 19 -0.07% -0.11%

% 

Children 

Under 5 14 7 19 0.22% 0.22%

% Below 

Poverty 10 12 18 0.60% -0.43%

Table 4.4.1.12. DSW Rule National Demographic Comparison Analysis of Statistical Significance (Rural)

for Notification Facilities

Demographic Group

Affected 

Population 

Ratio

Demographic 

Ratio 

Fisher 

Exact Test 

P-value

Equivalent 

No. of 

Standard 

Deviations 

(SD)

Probability

(Affected)

Kendall 

Test 

Statistic

Kendall 

Test PValue

Minority (all except non-Hispanic 

whites) 0.63788 0.66953 N/A N/A 0.00152 -38.60 ~0

Persons below poverty 0.52947 0.55745 N/A N/A 0.00176 -49.69 0.00E+00

American Indians and Alaska Natives 0.21126 0.21486 N/A N/A 0.00152 -35.94 8.67E-283

Children under age 5 1.03348 1.03140 1.63E-02 2.40 0.00152 2.41 1.59E-02

4.4.2 Damage Case Facilities

This section presents the demographic results for the 217 damage case facilities. The 

demographics were analyzed at a national and state level. The demographics analyzed 

included minority, American Indian and Alaska Native, persons below poverty level 

income, and children under five years of age. In addition, a statistical analysis was 

conducted at the national level to determine the significance of the results. State level 

analyses are based on a comparison of the demographics for each facility to the overall 

populations for the state in which the facility is located.
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Figure 4.4.2.1. Demographics for Damage Case Facilities
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Table 4.4.2.1. National Demographic Comparison for Damage Case Facilities

Number of 

Facilities with 

% 

Demographics 

Greater Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Less Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Equal to Area 

Comparison

Mean 

Difference

Median 

Difference

% Minority 115 102 0 8.18% 2.92%

% Below 

Poverty 142 75 0 5.92% 3.74%

% American 

Indian, 

Alaska 

Native 64 153 0 -0.11% -0.57%

% Children 

5 Years and 

Under 118 99 0 0.01% 0.08%

Table 4.4.2.2 DSW Rule National Demographic Comparison Analysis of Statistical

Significance for Damage Case Facilities

Demographic Group

Affected 

Population 

Ratio

Demographic 

Ratio 

Fisher 

Exact 

Test Pvalue

Equivalent 

No. of 

Standard 

Deviations

(SD)

Probability

(Affected)

Kendall 

Test 

Statistic

Kendall 

Test PValue

Minority (all except non-Hispanic whites) 2.87394 1.86337 ~0 N/A 0.02712 1,536.00 ~0

Persons below poverty 1.97568 1.80578 ~0 N/A 0.02659 787.97 ~0

American Indians and Alaska Natives 0.97121 0.97085 2.21E-22 9.73 0.02712 -9.69 3.36E-22

Children under age 5 0.98874 0.98921 1.63E-15 7.97 0.02712 -7.96 1.79E-15
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Table 4.4.2.3. State Demographic Comparison for Damage Case Facilities

Number of 

Facilities with 

% 

Demographics

Greater Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Less Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Equal to Area 

Comparison

Mean 

Difference

Median 

Difference

% Minority 121 96 0 8.18% 4.18%

% Below 

Poverty 150 67 0 6.74% 5.24%

% American 

Indian, 

Alaska 

Native 107 110 0 -0.01% -0.01%

% Children 5 

Years and 

Under 116 101 0 0.05% 0.18%

Table 4.4.2.4 State Demographic Comparison Analysis of Statistical 

Significance for Damage Case Facilities

Demographic Group

Affected 

Population 

Ratio

Demographic 

Ratio 

Cochran-MantelHaenszel P-value

Minority (all except non-Hispanic whites) 2.589046 1.640755 ~0

Persons below poverty 2.041337 1.901897 ~0

American Indians and Alaska Natives 1.071715 1.075276 1.2E-120

Children under age 5 0.981033 0.981294 1.97E-42

4.4.3 Hazardous Waste Facilities 

This section presents the demographic results for 2,677 facilities that reported generating or

managing hazardous wastes in 2007 that may choose to operate under the 2008 DSW final rule

(hazardous waste facilities). The demographics were analyzed at a national and state-wide level. 

In addition, the demographics were compared at an urban and rural level. 

For the national level analyses, the demographics analyzed included minority, American Indian 

and Alaska Native, persons below poverty level income, and children under five years of age. 

EPA also conducted statistical analysis at the national level to determine the significance of 

selected results, including minority, American Indian and Alaska Native, persons below poverty, 

and children under five.

State, urban, and rural results presented are based on a comparison of the demographics for each 

facility to the overall state, or state urban and rural populations for the state in which the facility 

is located. 
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Figure 4.4.3.1. Demographics for Hazardous Waste Facilities
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Table 4.4.3.1. National Demographic Comparison for Hazardous Waste Facilities

Number of 

Facilities with % 

Demographics 

Greater Than 

Area Comparison

Number of 

Facilities with % 

Demographics 

Less Than Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Equal to Area 

Comparison

Mean 

Difference

Median 

Difference

% 

Minority 1,136 1,541 0 0.86% -6.01%

% Below 

Poverty 1,286 1,391 0 1.47% -0.48%

% 

American 

Indian, 

Alaska 

Native 510 2,167 0 -0.32% -0.64%

% 

Children 5 

Years and 

Under 1,422 1,255 0 0.16% 0.08%

Table 4.4.3.2. National Demographic Comparison Analysis of Statistical

Significance for Hazardous Waste Facilities

Demographic Group

Affected 

Populatio

n Ratio

Demographic 

Ratio

Fisher 

Exact 

Test Pvalue

Equivalent 

No. of 

Standard 

Deviations 

(SD)

Probability

(Affected)

Kendall 

Test 

Statistic

Kendall 

Test PValue

Minority (all except nonHispanic whites) 1.90237 1.80019 ~0 N/A 0.26228 3,261.18 ~0

Persons below poverty 1.39409 1.50456 ~0 N/A 0.25859 1,213.27 ~0

American Indians and 

Alaska Natives 0.69881 0.63465 N/A N/A 0.26228 -363.41 ~0

Children under age 5 1.03565 1.04546 ~0 N/A 0.26228 89.64 ~0
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Table 4.4.3.3. State Demographic Comparison for Hazardous Waste Facilities

Number of 

Facilities with % 

Demographics 

Greater Than 

Area Comparison

Number of 

Facilities with % 

Demographics 

Less Than Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Equal to Area 

Comparison

Mean 

Difference

Median 

Difference

% 

Minority 1,282 1,395 0 3.98% -0.93%

% Below 

Poverty 1,354 1,323 0 1.80% 0.08%

% 

American 

Indian, 

Alaska 

Native 1180 1,497 0 -0.04% -0.07%

% 

Children 5 

Years and 

Under 1,446 1,231 0 0.18% 0.13%

Table 4.4.3.4 DSW Rule State Demographic Comparison Analysis of Statistical 

Significance for Hazardous Waste Facilities

Demographic Group

Affected 

Population 

Ratio

Demographic 

Ratio 

Cochran-MantelHaenszel P-value

Minority (all except non-Hispanic whites) 1.936274897 2.044116269 ~0

Persons below poverty 1.465870832 1.827905054 ~0

American Indians and Alaska Natives 0.979481817 0.967933377 1.0644E-126

Children under age 5 1.050498787 1.08002965 ~0
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Table 4.4.3.5. Urban Demographic Comparison for Hazardous Waste Facilities

Number of 

Facilities with % 

Demographics 

Greater Than 

Area Comparison

Number of 

Facilities with % 

Demographics 

Less Than Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Equal to Area 

Comparison

Mean 

Difference

Median 

Difference

% 

Minority 902 765 0 6.81% 2.48%

% Below 

Poverty 899 722 0 2.71% 1.16%

% 

American 

Indian, 

Alaska 

Native 884 783 0 0.12% 0.02%

% 

Children 5 

Years and 

Under 893 774 0 0.15% 0.13%

Table 4.4.3.6 DSW Rule Urban Demographic Comparison Analysis of Statistical 

Significance for Hazardous Waste Facilities

Demographic Group

Affected 

Population 

Ratio

Demographic 

Ratio 

Cochran-MantelHaenszel P-value

Minority (all except non-Hispanic whites) 1.717148 1.836249 ~0

Persons below poverty 1.409003 1.829035 ~0

American Indians and Alaska Natives 1.057927 1.106797 ~0

Children under age 5 1.029881 1.052575 ~0
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Table 4.4.3.7. Rural Demographic Comparison for Hazardous Waste Facilities

Number of 

Facilities with % 

Demographics 

Greater Than 

Area Comparison

Number of 

Facilities with % 

Demographics 

Less Than Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Equal to Area 

Comparison

Mean 

Difference

Median 

Difference

% 

Minority 598 412 0 7.01% 1.26%

% Below 

Poverty 543 513 0 1.24% 0.15%

% 

American 

Indian, 

Alaska 

Native 324 686 0 -0.66% -0.27%

% 

Children 5 

Years and 

Under 670 340 0 0.58% 0.51%

Table 4.4.3.8 Rural Demographic Comparison Analysis of Statistical 

Significance for Hazardous Waste Facilities

Demographic Group

Affected 

Population 

Ratio

Demographic 

Ratio 

Cochran-MantelHaenszel P-value

Minority (all except non-Hispanic whites) 2.009832 1.841061 ~0

Persons below poverty 1.183461 1.1821 ~0

American Indians and Alaska Natives 0.723588 0.710313 ~0

Children under age 5 1.127013 1.134586 ~0
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4.4.4 Non-Hazardous Industrial Waste Facilities

This section presents the demographic results for 25 facilities not currently generating or 

managing hazardous wastes that may choose to begin reclaiming HSM under the 2008 DSW 

final rule (non-hazardous industrial waste facilities). The demographics were analyzed at a 

national and state level. The demographics analyzed included minority, American Indian and 

Alaska Native, persons below poverty level income, and children under five years of age. In 

addition, a statistical analysis was conducted at the national level to determine the significance of 

the results. State level analyses are based on a comparison of the demographics for each facility

to the overall populations for the state in which the facility is located. 

Figure 4.4.3.1. Demographics for Non-Hazardous Industrial Waste Facilities 
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Table 4.4.4.1. National Demographic Comparison for Non-Hazardous Industrial 

Waste Facilities

Number of 

Facilities with 

% 

Demographics 

Greater Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Less Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Equal to Area 

Comparison

Mean 

Difference

Median 

Difference

% Minority 9 16 0 -4.95% -11.62%

% American 

Indian, 

Alaskan 

Native 1 24 0 -0.79% -0.88%

% Children 

Under 5 10 15 0 0.04% -0.79%

% Below 

Poverty 10 15 0 -0.45% -1.98%

Table 4.4.4.2. National Demographic Comparison Analysis of Statistical

Significance for Non-Hazardous Industrial Waste Facilities

Demographic Group

Affected 

Populatio

n Ratio

Demographic 

Ratio 

Fisher 

Exact 

Test Pvalue

Equivalent 

No. of 

Standard 

Deviations 

(SD)

Probability

(Affected)

Kendall 

Test 

Statistic

Kendall

Test PValue

Minority (all except nonHispanic whites) 1.18887 1.12364 ~0 N/A 0.00189 60.13 ~0

Persons below poverty 1.15970 1.13811

6.25E297 36.83 0.00192 37.515.76E308

American Indians and 

Alaska Natives 0.45624 0.45943 N/A N/A 0.00189 -48.01 ~0

Children under age 5 1.00282 1.00264

6.03E01 0.52 0.00189 0.526.04E01
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Table 4.4.4.3. State Demographic Comparison for Non-Hazardous Industrial 

Waste Facilities

Number of 

Facilities with 

% 

Demographics 

Greater Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Less Than 

Area 

Comparison

Number of 

Facilities with 

% 

Demographics 

Equal to Area 

Comparison

Mean 

Difference

Median 

Difference

% 

Minority 9 16 0 -2.55% -5.36%

% Below 

Poverty 11 14 0 -0.26% -2.11%

% 

American 

Indian, 

Alaskan

Native 10 15 0 -0.12% -0.16%

% 

Children 

Under 5 12 13 0 0.25% -0.05%

Table 4.4.4.4 State Demographic Comparison Analysis of Statistical 

Significance for Non-Hazardous Industrial Waste Facilities

Demographic Group

Affected 

Population 

Ratio

Demographic 

Ratio 

Cochran-MantelHaenszel P-value

Minority (all except non-Hispanic whites) 1.347097 1.206525 ~0

Persons below poverty 1.169246 1.146543 ~0

American Indians and Alaska Natives 0.834828 0.834945 2.72E-27

Children under age 5 1.035238 1.033043 1.69E-10
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5 Other Factors that Affect Vulnerability in Communities

Environmental justice means that all people, regardless of race, color, national origin, or income, 

receive fair treatment and equal environmental protection, and have the opportunity for 

meaningful involvement in decisions that will affect the environment and/or the health of their 

community. The previous chapters of this report present a detailed analysis of a number of 

indicators related to the facilities and surrounding communities that could be impacted under the 

2008 DSW final rule. However, because of the broad and encompassing definition of EJ, there 

are many other ways to examine factors that could affect the vulnerabilities of communities.

This chapter examines a number of additional factors that could affect the vulnerabilities of 

communities under the 2008 DSW final rule. Section 5.1 identifies and briefly describes some 

additional factors not analyzed in the previous chapters, while Section 5.2 summarizes data that 

EPA has compiled on some of these factors to characterize the vulnerabilities of communities 

surrounding the 40 notification facilities.

5.1 Overview of Factors that Affect Vulnerability

This section identifies additional factors that could affect a community’s vulnerability under the 

rule. These factors are described under four broad categories:

 Susceptible Populations

 Multiple and Cumulative Effects

 Unique exposure pathways

 Ability to Participate in the Decision-Making Process

 Physical Infrastructure

While this report does not attempt to quantify all the potential factors that could affect a 

community’s vulnerability to environmental pollutants, the following discussion is intended to 

give an overview of other considerations that may apply in some cases. The health of 

community can be looked at in many ways. EPA selected specific factors for analysis based on 

their relevance to the risks associated with HSM reclamation and the availability of information 

about those factors from reliable information sources such as the EJView tool.

5.1.1 Susceptible Populations

Susceptible populations are groups that are at a relatively high risk of suffering the adverse 

effects of environmental hazards. Certain factors may render different groups less able to resist 

or tolerate an environmental stressor. These susceptibility factors may be intrinsic in nature 

(e.g., based on age, sex, genetics, and race). For example, young children, pregnant women, 

nursing mothers, and the elderly may be more likely to suffer health consequences from a toxic 

chemical exposure than healthy adults. The proximity of children under five to facilities that 

may begin operating under the 2008 DSW final rule is presented in Section 4, although there are 

likely other types of susceptible populations in these communities as well.

5.1.2 Multiple and Cumulative Effects

Minority, low-income, and indigenous communities that have been impacted by multiple 

environmental hazards may be at risk for increased adverse health consequences. Environmental 

hazards can include, for example, industrial facilities, landfills, transportation-related air 

pollution, poor housing, leaking underground tanks, pesticides, and incompatible land uses. An 

analysis of the cumulative effects from multiple stressors can provide a more complete 

evaluation of a population’s health risks from pollutants. For example, an analysis of discrete 
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stressors and effects on a population might conclude that nearby pollution sources are within 

regulatory limits; however, the cumulative effects might result in a person’s aggregate exposure 

to a particular contaminant from multiple sources exceeding a health-based limit.

Some factors may provide data on the potential sources of cumulative stress, such as the total 

number of facilities that may emit environmental pollutants. Other factors may provide data on 

environmental conditions that could cause stress (e.g., transport routes, such as water or air 

quality or meteorological conditions). Finally, other factors may provide data on potential or 

actual human exposures to stressors, such as health data. Examples of factors include the 

following:

Existing Pollution Sources

 Number of facilities reporting to EPA – EPA’s Envirofacts database keeps track of 

regulated facility data from 14 data systems. Examples are listed below. The number of 

regulated facilities within a community can indicate the number or proximity of pollution 

sources. 

o Resource Conservation and Recovery Act Information (RCRAInfo) – contains 

information on facilities that generate, transport, treat, store or dispose of 

hazardous waste. This factor is examined in Section 5.2. 

o Air Facility System (AFS) - contains compliance and permit data for stationary

sources regulated by EPA, state and local air pollution agencies. This factor is 

examined in Section 5.2. 

o Comprehensive Environmental Response, Compensation & Liability Information 

System (CERCLIS) – contains information on hazardous waste sites, potentially

hazardous waste sites and remedial activities across the nation, including sites that 

are on the National Priorities List (NPL) or being considered for the NPL. This 

factor is examined in Section 5.2. 

Environmental Quality Factors

 Non-Point Source Air Emissions - The CAA requires EPA to set National Ambient Air 

Quality Standards (NAAQSs) for pollutants considered harmful to public health and the 

environment. EPA has set NAAQSs for six principal pollutants, which are called 

“criteria” pollutants (e.g., carbon monoxide, ozone, particulate matter). In addition, the 

CAA requires EPA to identify and list all air pollutants (not already identified as criteria 

pollutants) that “may reasonably be anticipated to result in an increase in mortality or an 

increase in serious irreversible or incapacitating reversible illness.” For each hazardous 

air pollutant (HAP) identified, EPA was to then promulgate national emissions standards 

for hazardous air pollutants (NESHAPs). The quantity of these pollutants in the local 

atmosphere can help to indicate cumulative air hazards. This factor is examined in 

Section 5.2 for a limited number of criteria pollutants and HAPs.

Health-Related Factors

 Cancer – The threat of cancer can be measured based on the total cancer risk per million, 

by tract or county, as determined by the 2002 National-Scale Air Toxics Assessment 

(NATA). NATA is EPA’s ongoing comprehensive evaluation of air toxics in the 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. NATA assessments do not 
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incorporate refined information about emission sources, but rather, use general 

information about sources to develop estimates of risks which are more likely to 

overestimate impacts than underestimate them. NATA provides estimates of the risk of 

cancer and other serious health effects from breathing (inhaling) air toxics in order to 

inform both national and more localized efforts to identify and prioritize air toxics, 

emission source types, and locations which are of greatest potential concern in terms of 

contributing to population risk.45 This factor is examined in Section 5.2.

 Non-cancer – The threat of a non-cancer illness (neurological or respiratory) can be 

measured based on the sum of hazard quotients that affect the same target organ, by tract 

or county, as determined by the 2002 NATA. See above for a description of NATA. 

This factor is examined in Section 5.2.

5.1.3 Unique Exposure Pathways

Other susceptibility factors may stem from unique pathways for exposure. For example, certain 

lifestyle patterns may present unique exposure pathways, such as relative source contributions 

for people that get a significant portion of their diet from food they grow or catch themselves. 

For example, some indigenous peoples that use fishing and hunting to provide food for their 

families may be more susceptible to contaminants found in the natural environment, such as

chemicals that bioaccumulate in flora or fish. Section 4 of this report includes information about 

the American Indian and Alaska native populations in proximity to facilities that may generate or 

manage HSM under the 2008 DSW final rule. While this does not automatically correspond to 

individuals experiencing unique exposures pathways, it does indicate that such exposures might 

occur. 

5.1.4 Ability to Participate in Decision-Making Process

A key element of environmental justice is ensuring that all people have an opportunity for 

meaningful involvement in decision-making. Certain groups may not have participated in 

decision making historically because of economic (e.g., income), social (e.g., language barriers, 

education levels, distrust of government), and structural reasons. A critical concern is whether, 

and the extent to which, communities have the ability to influence the types and number of 

regulated activities taking place in their community, as well as the requirements, conditions, and 

parameters by which they must operate (e.g., permit conditions). 

Under the 2008 DSW final rule, facilities claiming an exclusion must submit an initial and 

biennial notification to EPA or the state, providing general facility information and describing 

the HSM types and activities. Thus, under both the existing hazardous waste regulations and the 

2008 DSW rule, EJ communities have a similar ability to identify the facilities that are recycling 

HSM in their communities, and the types and amounts of waste recycled. 

However, the existing hazardous waste regulations require some hazardous waste recycling 

facilities to get a RCRA permit. Permitted facilities are subject to public involvement during the 

permitting process, and facilities and regulators are required to solicit and consider community

input into the permitting decision-making process. Under the 2008 DSW final rule, HSM 

reclaimers may not be subject to permitting requirements, and EJ communities may not have the 

same opportunities be informed about the siting and permitting of HSM reclaimers and 

participate in the decision-making process. Thus, by removing the RCRA permitting 

requirement, the 2008 DSW final rule also inadvertently removed one of the key provisions 

allowing the community to participate in the regulatory process. Communities with lower 

 

45 For additional information on NATA, go to: http://www.epa.gov/ttn/atw/natamain/.
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participation levels may experience greater adverse impacts because their input has not been 

considered fully, particularly if competing interests are set forth more effectively. This effect is 

most likely to occur in communities that have traditionally been excluded from the decision 

making process. However, not all hazardous waste recycling facilities are required to get permits 

under the hazardous waste regulations. EPA did not analyze the impact of the 2008 DSW rule 

on permitting in EJ communities. 

In addition to the permitting process, the DSW Rule requires that generators make reasonable 

efforts to ensure that their hazardous secondary materials are safely and legitimately recycled. 

When HSM reclaimers are located in EJ communities, and the generators of the wastes are small 

businesses, the generators’ ability to conduct reasonable efforts determinations may be impacted. 

Not all generators will have the same ability to perform reasonable efforts audits, and the 

efficacy of these efforts will depend on the ability of the generator. 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. 

EPA did not analyze whether HSM reclaimers managing waste from small or independent 

generators were more likely to be located in EJ communities.

There are a number of factors that can measure the ability of a community to gain access to 

information or to meaningfully participate in the decision-making process. There also are factors 

that can measure whether and how well the community appears to be able to participate in the 

environmental decision-making process. Examples of possible factors include the following: 

 Education level – Persons with less education may be generally less likely to participate 

in environmental decision-making. Because of less education, they may not be able to

fully understand the information in local newspapers, notices, and other written media. 

They may also be less informed about events within their communities. This factor is 

examined in Section 5.2.

 English literacy – People who cannot speak or read English well may be less informed 

about activities of interest in their community because they cannot fully understand the 

information in local newspapers, broadcasts, notices, and other media, unless such 

information has been translated into a language that they are comfortable with. A lack of 

English literacy is an indicator that members of the community are immigrants or foreign 

born46. Immigrant status, particularly new immigrants and undocumented workers and 

residents may experience significant communication barriers to participating in decision 

making. This factor is examined in Section 5.2.

 Communication channels – Some regulations require that regulated entities issue public 

announcements of their proposed actions and solicit public comments. Without such 

communication channels, meaningful community involvement is less likely. 

5.1.5 Physical Infrastructure

The physical infrastructure of a community can contribute to making some residents more 

vulnerable to environmental hazards. Physical infrastructure can include, for example, public 

buildings (proximity to hospitals), safe drinking water, sewage treatment, public transportation, 

and communication systems (e.g., telephones, Internet access). Access to such infrastructure

 

46 According to the U.S. Census 2007 American Community Survey, approximately 20% of the population spoke a 

language other than English at home. About half of these speakers reported not speaking English “very well.” 

People speaking at a level below “very well” (ranging from well to not at all) are considered to need English 

assistance in some situations. In addition, more than half of non-English language speakers were foreign born. 
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may affect a community’s ability to avoid exposures to harmful pollutants or, if they are already 

exposed, to detect the exposure, get proper treatment, or take other mitigating steps.

For example, some groups or communities have insufficient access to health care facilities. 

Those without access may go undiagnosed and untreated. People without easy access to health 

care facilities include those without health insurance and those unable to travel to health care 

facilities. For example, low-income groups and some elderly and disabled individuals, with 

limited or no access to private transportation, may need public transportation to access health 

care facilities. If nearby public transportation does not exist, they may not be able to receive the 

level of health care that they need.

Examples of possible factors include the following: 

 Number of hospitals – Some groups, such as inner city residents or indigenous 

populations, might not live near a hospital and therefore have to travel longer distances 

for medical care; this may limit the frequency and quality of care they receive. 

Communities with more hospitals have a wider selection of medical resources from 

which to choose; they can select the type and quality of health care appropriate for their 

particular needs. This factor is examined in Section 5.2.

 Medically underserved – Some groups may differ in the level and quality of health care 

they traditionally receive. This may be due to cultural differences, treatment disparities 

stemming from socio-economic barriers (e.g., lack of insurance) or other factors. This 

factor is examined in Section 5.2.

5.2 Summary of Analysis of Factors that Affect Vulnerability for 40 Notification 

Facilities

EPA has compiled data on some of the factors described above to characterize the vulnerabilities 

of communities potentially affected by the 2008 DSW rule. Specifically, EPA has compiled 

these data on the communities surrounding the 40 notification facilities. While EPA does not 

have information to know whether or not these results would reflect or represent all of the 

facilities that may eventually have claimed an exclusion under the 2008 DSW final rule, EPA

believes it provides preliminary information regarding the possible extent of multiple exposures 

to the 40 notification facilities. EPA did not analyze factors that affect vulnerability for 

communities around damage case facilities because these facilities represent historical hazards, 

and may not be indicative of facilities that will generate and manage HSM under the 2008 DSW 

rule in the future. In addition, EPA did not analyze factors that affect vulnerability for 

communities around hazardous waste facilities and non-hazardous industrial waste facilities

because these analyses were beyond the scope of this analysis. The results of this data collection 

are summarized in Table 5.1.

Because of the potential for adverse impacts to communities located around DSW facilities, each 

of the factors described in Section 5.1 has the potential to exacerbate those adverse impacts. 

While EPA has not attempted to quantify or determining the potential disproportionality of every

possible factors, Table 5.1 does demonstrate that some communities around DSW facilities are 

potentially affected by these factors. 

In particular, an examination of the facilities that have notified under the 2008 DSW final rule 

shows that multiple environmental hazards are a potential concern for communities around these 

facilities. All have multiple facilities reporting to EPA, either under RCRA, the Clean Air Act 

(CAA), or Comprehensive Environmental Response, Compensation and Liability Act, 

(CERCLA - also known as Superfund) within a three-kilometer radius of the facility. Twenty-
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six of the forty facilities had communities with cancer rates greater than the 80th percentile, and 

twenty-seven showed a greater than the 80th percentile in neurological hazard rates. Twentyseven facilities also had no hospital facilities within the three kilometer area.

In addition, as noted in Section 5.1, one of the specific potential impacts of the 2008 DSW final 

rule is that facilities and regulators are not required to solicit or consider community input into 

the decision-making process regarding DSW facilities, as is the case with RCRA permitted 

facilities. Thus by removing the RCRA permitting requirement for facilities that manage 

excluded hazardous secondary materials, the 2008 DSW final rule also removed one of the key

provisions for allowing communities to participate in the regulatory process (at least as it 

concerns the management of the hazardous secondary materials excluded under the rule). 

Communities with lower participation levels may experience greater adverse impacts from 

environmental decision-making because their input has not been considered fully, particularly if 

competing interests are set forth more effectively. This effect is most likely to occur in 

communities that have traditionally been excluded from the decision-making process.
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Table 5.1. Other Factors that Affect Vulnerability in Communities Affected By Recycling Notification Facilities

Facility

Ability to Participate in 

Decision Making Process Physical Infrastructure Multiple and Cumulative Effects

Percent of Population 

(Within 3 km of the Facility)

Transportation and Health 

Care Availability

(Within 3 km of the Facility)

Health Risks 

(Persons per Million Expected to 

Contract Disease Over a 70 Year Period 

Within the County of the Facility)

Non-Point Source Air Emissions

(Tons Per Year Within the County of the Facility) 

Number of Facilities 

Reporting to EPA 

(Within 3 km of the 

Facility)

Name City State

Education 

Less than 

High School 

Diploma

Non-English 

Speaking

Number of 

Hospitals

Medically 

Underserved Cancer

Neurological 

Hazard

Respiratory 

Hazard

Carbon 

Monoxide Ammonia

Nitrogen 

Oxide

Particulates 

(size < 10 μm)

Particulates 

(size < 2.5 μm)

Sulfur 

Dioxide

Volatile 

Organic 

Compounds RCRA AFS CERCLIS

Curries 12th St 

NW Facility 

IA0000362905 MASON CITY IA 16.5% 3.8% 1 No

21.75 (70.5 

Percentile)

.04 (68.5 

Percentile)

1.67 (71.6 

Percentile) 1,339 2,634 258 5,121 1,008 322 1,200 78 22 1

Curries 9th 

Street Facility 

IAD043490150 MASON CITY IA 15.6% 4.1% 1 No

21.75 (70.5 

Percentile)

.04 (68.5 

Percentile)

1.67 (71.6 

Percentile) 1,339 2,634 258 5,121 1,008 322 1,200 94 36 1

Diamond Vogel 

Paint Co., Inc. 

IAD055803423

BURLINGTO

N IA 20.0% 3.4% 2 Yes

32.37 (90.4 

Percentile)

.08 (93.4 

Percentile)

1.01 (52.3 

Percentile) 592 569 287 4,143 677 329 914 45 21 1

Fres-co System 

USA, Inc 

IAR000007013 RED OAK IA 27.0% 4.3% 0 No

14.31 (32.6 

Percentile)

.03 (40.4 

Percentile)

.58 (31.1 

Percentile) 137 1,367 51 2,865 499 60 261 26 9 0

Iowa Contract 

Fabricators Inc 

IA0000990762 RICEVILLE IA 22.3% 7.5% 2 No

11.34 (14.2 

Percentile)

.02 (17 

Percentile)

.28 (14.5 

Percentile) 497 2,123 70 3,424 647 71 223 3 3 0

Iowa Mold 

Tooling 

Company Inc 

IAD005286539 GARNER IA 11.1% 1.6% 1 No

12.42 (19.2 

Percentile)

.03 (52.2 

Percentile)

.41 (21.2 

Percentile) 597 2,484 67 4,588 846 60 553 11 5 0

John Deere 

Davenport 

Works 

IAD073489726 DAVENPORT IA 8.0% 4.1% 0 No

33.17 (91.1 

Percentile)

.09 (95.3 

Percentile)

2.34 (81.4 

Percentile) 1,071 1,964 1,037 8,066 1,251 1,040 2,990 35 11 0

John Deere 

Des Moines 

Works 

IAD069624500 ANKENY IA 5.4% 6.9% 1 No

26.04 (81.2 

Percentile)

.2 (98.7 

Percentile)

2.56 (83.7 

Percentile) 2,587 1,642 1,717 16,882 2,479 3,003 7,512 18 16 1

John Deere 

Dubuque 

Works 

IAD005269527 DUBUQUE IA 16.9% 2.9% 0 No

23.75 (76.2 

Percentile)

.05 (74.2 

Percentile)

1.56 (69.3 

Percentile) 2,452 4,603 561 8,248 1,477 739 2,368 7 3 2

John Deere 

Engine Works 

IAD000678094 WATERLOO IA 8.8% 8.2% 1 No

27.95 (84.4 

Percentile)

.04 (72.1 

Percentile)

2.13 (78.6 

Percentile) 2,642 2,245 687 7,244 1,351 853 3,007 25 14 0

John Deere 

Waterloo Works 

IAD000805168 WATERLOO IA 19.9% 5.2% 0 No

27.95 (84.4 

Percentile)

.04 (72.1 

Percentile)

2.13 (78.6 

Percentile) 2,642 2,245 687 7,244 1,351 853 3,007 7 5 0

Siegwerk USA 

Co 

IAD078096732

DES 

MOINES IA 30.7% 16.1% 2 Yes

26.04 (81.2 

Percentile)

.2 (98.7 

Percentile)

2.56 (83.7 

Percentile) 2,587 1,642 1,717 16,882 2,479 3,003 7,512 208 141 0

Siegwerk USA 

Co 

IAR000007377

DES 

MOINES IA 9.0% 6.2% 0 No

26.04 (81.2 

Percentile)

.2 (98.7 

Percentile)

2.56 (83.7 

Percentile) 2,587 1,642 1,717 16,882 2,479 3,003 7,512 34 46 1

Vogel Paint & 

Wax Co Inc 

IAD007276728

ORANGE 

CITY IA 16.8% 5.1% 1 No

20.62 (66.4 

Percentile)

.04 (70.6 

Percentile)

.46 (24.6 

Percentile) 1,309 13,326 187 7,169 1,306 226 1,117 10 7 0
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June 30, 2011 Draft - Do Not Cite or Quote 115

Table 5.1. Other Factors that Affect Vulnerability in Communities Affected By Recycling Notification Facilities

Facility

Ability to Participate in 

Decision Making Process Physical Infrastructure Multiple and Cumulative Effects

Percent of Population 

(Within 3 km of the Facility)

Transportation and Health 

Care Availability

(Within 3 km of the Facility)

Health Risks 

(Persons per Million Expected to 

Contract Disease Over a 70 Year Period 

Within the County of the Facility)

Non-Point Source Air Emissions

(Tons Per Year Within the County of the Facility) 

Number of Facilities 

Reporting to EPA 

(Within 3 km of the 

Facility)

Name City State

Education 

Less than 

High School 

Diploma

Non-English 

Speaking

Number of 

Hospitals

Medically 

Underserved Cancer

Neurological 

Hazard

Respiratory 

Hazard

Carbon 

Monoxide Ammonia

Nitrogen 

Oxide

Particulates 

(size < 10 μm)

Particulates 

(size < 2.5 μm)

Sulfur 

Dioxide

Volatile 

Organic 

Compounds RCRA AFS CERCLIS

Aleris Rolled 

Products, Inc 

NJD051415909 CLAYTON NJ 19.9% 6.7% 0 Yes

32.12 (90.1 

Percentile)

.05 (81.8 

Percentile)

4.08 (93 

Percentile) 4,428 688 797 3,015 842 389 6,882 41 5 1

Aluminum 

Shapes LLC 

NJD002338267 CAMDEN NJ 22.3% 12.6% 0 No

39.26 (95.8 

Percentile)

.07 (91.7 

Percentile)

5.09 (95.8 

Percentile) 3,166 720 1,497 2,978 670 504 6,803 187 47 12

Anadigics, Inc. 

NJR000036301 WARREN NJ 7.6% 21.2% 0 No

33.08 (90.9 

Percentile)

.06 (85.4 

Percentile)

4.39 (93.9 

Percentile) 2,055 538 1,047 3,214 560 272 3,907 38 3 0

Melton Sales & 

Service 

NJD981483035

BORDENTO

WN NJ 16.2% 9.9% 0 No

33.54 (91.7 

Percentile)

.06 (87.7 

Percentile)

4.94 (95.4 

Percentile) 6,877 960 1,351 4,869 1,330 454 10,554 7 2 1

Melton Sales & 

Service 

NJR000075796

BURLINGTO

N NJ 14.9% 11.8% 1 No

33.54 (91.7 

Percentile)

.06 (87.7 

Percentile)

4.94 (95.4 

Percentile) 6,877 960 1,351 4,869 1,330 454 10,554 49 9 0

Safety-Kleen 

Systems, Inc 

(Linden Facility) 

NJD002182897 LINDEN NJ 22.9% 32.3% 0 No

51.24 (98.8 

Percentile)

0.11 (96.1 

Percentile)

7.49 (98.6 

Percentile) 1,889 692 1,632 1,600 379 602 8,419 380 71 3

Sancoa 

International 

NJD986629491

LUMBERTO

N NJ 8.0% 7.9% 0 No

33.54 (91.7 

Percentile)

.06 (87.7 

Percentile)

4.94 (95.4 

Percentile) 6,877 960 1,351 4,869 1,330 454 10,554 10 2 0

Siegfried USA 

Incorporated 

NJD064344575 PENNSVILLE NJ 22.5% 6.5% 0 Yes

28.42 (85.1 

Percentile)

.04 (72.9 

Percentile)

3.19 (88.2 

Percentile) 2,366 784 226 1,583 448 156 1,481 13 3 0

Veolia ES 

Technical 

Solutions LLC 

NJD002454544 MIDDLESEX NJ 16.6% 29.8% 1 No

42.44 (97.1 

Percentile)

0.08 (94 

Percentile)

5.89 (97 

Percentile) 2,313 1,110 2,352 4,212 624 688 11,328 207 41 8

Viking Yacht 

Company 

NJD002482545

NEW

GRETNA NJ 21.2% 4.4% 0 No

33.54 (91.7 

Percentile)

.06 (87.7 

Percentile)

4.94 (95.4 

Percentile) 6,877 960 1,351 4,869 1,330 454 10,554 2 1 0

BAE Systems, 

Land & 

Armaments 

PAD003025418 YORK PA 20.8% 3.5% 0 No

38.59 (95.3 

Percentile)

0.09 (94.9 

Percentile)

4.15 (93.3 

Percentile) 10,384 3,488 1,904 17,754 3,425 1,940 8,496 9 3 0

Carpenter 

Technology 

Corporation 

PAD002344315 READING PA 34.6% 31.6% 1 Yes

39.16 (95.7 

Percentile)

.08 (93.1 

Percentile)

3.29 (88.7 

Percentile) 8,000 4,298 1,802 14,280 2,690 2,367 10,315 156 34 0

Cherokee 

Pharmaceutical

s, LLC 

PAD003043353 RIVERSIDE PA 20.1% 5.2% 0 No

23.91 (76.6 

Percentile)

.08 (93.8 

Percentile)

2.04 (77.3 

Percentile) 3,940 1,628 409 4,675 911 800 1,785 19 5 0

Erie Plating Co 

PAD005031448 ERIE PA 22.1% 11.8% 4 No

28.53 (85.3 

Percentile)

0.06 (88.9 

Percentile)

1.32 (63.2 

Percentile) 2,570 822 1,631 7,677 1,279 2,032 9,674 206 38 0

International 

Metals 

Reclamation 

Company, Inc 

ELLWOOD 

CITY PA 17.6% 3.9% 0 No

26.33 (81.9 

Percentile)

0.06 (84 

Percentile)

1.97 (76.4 

Percentile) 1,512 610 451 3,661 647 577 2,071 41 16 0
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June 30, 2011 Draft - Do Not Cite or Quote 116

Table 5.1. Other Factors that Affect Vulnerability in Communities Affected By Recycling Notification Facilities

Facility

Ability to Participate in 

Decision Making Process Physical Infrastructure Multiple and Cumulative Effects

Percent of Population 

(Within 3 km of the Facility)

Transportation and Health 

Care Availability

(Within 3 km of the Facility)

Health Risks 

(Persons per Million Expected to 

Contract Disease Over a 70 Year Period 

Within the County of the Facility)

Non-Point Source Air Emissions

(Tons Per Year Within the County of the Facility) 

Number of Facilities 

Reporting to EPA 

(Within 3 km of the 

Facility)

Name City State

Education 

Less than 

High School 

Diploma

Non-English 

Speaking

Number of 

Hospitals

Medically 

Underserved Cancer

Neurological 

Hazard

Respiratory 

Hazard

Carbon 

Monoxide Ammonia

Nitrogen 

Oxide

Particulates 

(size < 10 μm)

Particulates 

(size < 2.5 μm)

Sulfur 

Dioxide

Volatile 

Organic 

Compounds RCRA AFS CERCLIS

PAD087561015

Jerr-Dan Corp 

PAD047518014

GREENCAST

LE PA 20.1% 3.1% 0 Yes

21.25 (68.6 

Percentile)

0.05 (73.7 

Percentile)

1.75 (73.2 

Percentile) 3,371 4,933 531 8,056 1,420 596 3,645 15 2 0

Jerr-Dan Corp 

Wrecker Div 

PAR000029769

GREENCAST

LE PA 24.5% 3.8% 0 Yes

21.25 (68.6 

Percentile)

.05 (73.7 

Percentile)

1.75 (73.2 

Percentile) 3,371 4,933 531 8,056 1,420 596 3,645 28 12 0

John Maneely 

Co Wheatland 

Tube Division 

PAD004322863 SHARON PA 21.0% 4.6% 0 Yes

22.01 (71.4 

Percentile)

0.07 (90.1 

Percentile)

1.58 (69.6 

Percentile) 2,184 1,036 644 6,286 1,049 797 3,290 49 4 2

John Maneely 

Co Wheatland 

Tube Division 

PAD004338091

WHEATLAN

D PA 29.0% 4.4% 0 No

22.01 (71.4 

Percentile)

0.07 (90.1 

Percentile)

1.58 (69.6 

Percentile) 2,184 1,036 644 6,286 1,049 797 3,290 39 12 1

John Maneely 

Co Wheatland 

Tube Division 

PAR000038067

WHEATLAN

D PA 25.4% 5.6% 0 No

22.01 (71.4 

Percentile)

0.07 (90.1 

Percentile)

1.58 (69.6 

Percentile) 2,184 1,036 644 6,286 1,049 797 3,290 42 12 1

Johnson 

Matthey 

Emissions 

Control 

Technologies 

PAD980829287 WAYNE PA 2.9% 13.0% 0 No

39.04 (95.6 

Percentile)

.08 (92.6 

Percentile)

5.61 (96.5 

Percentile) 3,689 337 1,902 5,456 1,144 2,034 10,014 47 6 0

Johnson 

Matthey 

Emissions 

Control 

Technologies 

PAR000519322 SMITHFIELD PA 27.6% 2.9% 0 Yes

26.6 (82.5 

Percentile)

0.04 (67.6 

Percentile)

1.78 (73.3 

Percentile) 3,522 424 633 4,885 900 1,097 2,749 6 1 0

Piezo Kinetics 

Inc 

PAR000036772

BELLEFONT

E PA 19.3% 4.0% 0 No

26.15 (81.6 

Percentile)

.05 (80.1 

Percentile)

1.91 (75.4 

Percentile) 6,428 953 603 7,483 1,457 1,147 2,911 18 7 0

Spectrum 

Control 

Technology Inc 

PAD043882323

STATE 

COLLEGE PA 5.0% 16.2% 0 No

26.15 (81.6 

Percentile)

0.05 (80.1 

Percentile)

1.91 (75.4 

Percentile) 6,428 953 603 7,483 1,457 1,147 2,911 48 13 0

Triangle 

Circuits 

PAD981037377 OAKMONT PA 13.8% 5.6% 0 No

63.86 (99.5 

Percentile)

0.12 (96.9 

Percentile)

5.34 (96.1 

Percentile) 8,744 499 5,159 8,770 2,071 5,179 22,416 108 36 0

World 

Resources 

Company 

PAD981038227 POTTSVILLE PA 25.1% 4.7% 0 No

22.08 (71.9 

Percentile)

.07 (90.9 

Percentile)

1.87 (74.8 

Percentile) 11,143 998 768 6,657 1,404 2,018 3,623 23 9 1

Source - EPA EJView tool
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote 117

6 Conclusions

6.1 Information Synthesis: Assessment of Disproportionate Impact

The purpose of Step 5 of the DSW environmental justice analysis methodology is to synthesize 

all the information to characterize whether the 2008 DSW final rule will facilitate the occurrence 

of any adverse impacts and whether some population groups (e.g., minority or low income 

populations) would be overrepresented in the impacted communities. Below is a summary of the 

major conclusions from the first four steps of the analysis, as discussed in Chapters 2 – 4 of this 

report.

6.1.1 Hazardous Secondary Material Recycling Does Pose Significant Potential 

Hazards

As discussed in detail in Chapter 2 of this report, the first step of the DSW environmental justice 

analysis methodology is hazard characterization, which includes describing the chemical and 

other properties of hazardous secondary materials and identifying aspects of their management 

that could pose hazards to human health and the environment.

Hazardous secondary materials sent to recycling are physically and chemically similar, if not 

identical, to many of the hazardous wastes sent for treatment and disposal. The most commonly

recycled hazardous secondary materials are spent solvents and electric arc furnace dust (which is 

recycled to reclaim metals). Spent solvents present particular management challenges associated 

with storage of liquids containing volatile organic chemicals and include both halogenated and 

non-halogenated organic chemicals, which represent a broad range of chemicals and associated 

hazards. Electric arc furnace dust is usually in a solid state and presents a different management 

challenges, including storage in waste piles and the potential for wind-blown dust, and can 

contain high concentrations of toxic metals. 

These two classes of hazardous secondary materials (as well as other hazardous secondary

materials that are recycled) can pose risks via a wide variety of exposure routes and include a 

range of potential adverse health effects, both carcinogenic and non-carcinogenic, and a potential 

for acute impacts such as fire and explosions for certain types of hazardous secondary materials, 

such as solvents.

6.1.2 Possibility of Hazards from Hazardous Secondary Materials Recycling 

Adversely Impacting Human Health and the Environment Is Increased under 

the 2008 DSW Final Rule

As discussed in Chapter 2, the second part of the hazard characterization step —determining 

whether these hazards could result in increased risk to human health and the environment under 

the 2008 final rule—is a complex issue because of the interactions between how the regulations 

are written and how they are implemented. Under the 2008 DSW final rule, EPA presumed that 

the conditions of the rule would prevent any increase in risk. In particular, the condition that the 

hazardous secondary materials be “contained” was intended to address this issue, because if the 

material is not released to the environment, then there would be no increased exposure, and 

therefore no increased risk. 
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote 118

However, what the 2008 analysis failed to take into account was whether the conditions of the 

rule —including the “contained” standard —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, which were not considered under the 2008 DSW final rule.

A more detailed comparative analysis of the regulatory requirements under the 2008 DSW final 

rule with the hazardous waste regulations reveals potentially significant gaps in environmental 

protection under the 2008 DSW final rule, particular the absence of measures to ensure 

compliance, incentives to accumulate larger volumes of hazardous secondary materials, the 

potential for increased releases such as during storage and transportation of waste, the lack of 

prescriptive standards for waste storage and containment, and reduction in access to information 

and the opportunity for public participation. The specific gaps and resulting potential risks vary

depending on the baseline scenario and the post-DSW scenario being considered In general, 

potential increased risks under the rule at HSM generators and recyclers include fires/explosions, 

environmental contamination and human exposure, mismanaged residues, and abandoned 

materials. 

In a number of the scenarios examined, potential risks increased at generator and recycler sites 

under the rule. A number of factors caused risks to increase, such as the rule’s lack of explicit 

containment and other preventative requirements and the potential for greater quantities of HSM 

to be accumulated and managed by generators and recyclers. Potential incremental risks include 

fires/explosions, environmental contamination and human exposure (i.e., from releases and other 

accidents), mismanaged residues, and abandoned materials. There also are some changes in risks 

from transportation under the rule. There would be fewer offsite shipments from generators, 

potentially resulting in fewer accidents and less traffic, pollution and noise. However, some 

HSM may no longer be regulated as DOT hazardous material, which could result in fewer

protective measures taken during shipment. In some cases, there is also a potential for 

increased benefits, primarily from resource conservation and from reduced transportation 

distances.47 

 

47 (By reporting the potential for increased benefits under certain scenarios, EPA does not intend to imply that such 

benefits could justify increased risk to human health and the environment from discarded hazardous secondary 

material. Promoting resource conservation and recovery is a major goal of RCRA, but this goal does not supersede 

the mandate to assure that hazardous waste management practices are protective of human health and the 

environment).
Draft – Do not Cite or Quote

Summary of Potential Impacts the 2008 DSW Final Rule

under Different Recycling Scenarios

Hazardous Waste 

Baseline DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks

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, 

mismanaged residues, 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 

recycles 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, 

mismanaged residues, 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 

shipments of HSM. 
Draft – Do not Cite or Quote

Hazardous Waste 

Baseline DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks

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.

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 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, 

mismanaged residues, 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 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 
Draft – Do not Cite or Quote

Hazardous Waste 

Baseline DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks

No change in risk at recycling 

facility.

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, 

mismanaged residues, and 

abandoned materials. 

Potential reduced risk in 

communities surrounding 

existing off-site 

treatment/disposal facilities.

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 increased 

resource conservation and 

environmental benefits 
Draft – Do not Cite or Quote

Hazardous Waste 

Baseline DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks

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 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 

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 increased 
Draft – Do not Cite or Quote

Hazardous Waste 

Baseline DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks

generator off-site recycling 

facilities

Potential reduced risk in 

communities surrounding 

existing off-site 

treatment/disposal facilities.

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

facility for treatment 

followed by 

landfilling 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 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. 

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 
Draft – Do not Cite or Quote

Hazardous Waste 

Baseline DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks

Potential reduced risk in 

communities surrounding 

existing off-site 

treatment/disposal facilities.

pollution, traffic and noise.

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 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 transferbased 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 
Draft – Do not Cite or Quote

Hazardous Waste 

Baseline DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks

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. 

Potential reduced risk in 

communities surrounding 

existing off-site 

treatment/disposal facilities.

recycler due to 

requirements for financial 

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 increased 

resource conservation and 

environmental benefits 

due to greater quantities of 

HSM being reclaimed and 

less environmental damage 

from mining and energy

consumption

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

Generator sends 

material offsite to a 

RCRA permitted 

Generator exports 

material under the 

transfer-based exclusion

Potential increased risk at 

generator due to longer 

accumulation times, greater 

Potential reduced risk at 

small generators of 

abandoned materials due to 
Draft – Do not Cite or Quote

Hazardous Waste 

Baseline DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks

facility for treatment 

followed by 

landfilling under 

hazardous waste 

regulations

for recycling in another 

country

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 in 

communities surrounding 

existing off-site 

treatment/disposal facilities.

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 increased 

resource conservation and 

environmental benefits 

due to greater quantities of 

HSM being reclaimed and 

less environmental damage 

from mining and energy

consumption
Draft – Do not Cite or Quote

Hazardous Waste 

Baseline DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks

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

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 

generator-controlled 

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 transferbased exclusion, or

Generator sends material 

offsite for reclamation at 

a facility in the United 

States without a RCRA 

permit under transferbased 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, and mismanagement 

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 
Draft – Do not Cite or Quote

Hazardous Waste 

Baseline DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks

of residues under GCE.

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.

Potential reduced risk in 

communities surrounding 

previously used off-site 

recycling facility.

transfer-based exclusion. 

Potential reduced risks 

include fewer releases from 

reclamation and reduced

frequency of abandoned 

materials.

Potential increased 

resource conservation and 

environmental benefits 

due to greater quantities of 

HSM being reclaimed and 

less environmental damage 

from mining and energy

consumption
Draft – Do not Cite or Quote

Hazardous Waste 

Baseline DSW Practices Summary of Increases in Risks

Summary of Reductions 

in Risks

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 RCRApermitted facility

under hazardous waste 

regulations or 

exporting 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 generatorcontrolled exclusion, or

Generator sends material 

offsite for reclamation at 

a facility in the United 

States without a RCRA 

permit under transferbased 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.
Draft – Do not Cite or Quote

6.1.3 Many of the Communities Potentially Impacted by this Potential Increase in 

Risk of Adverse Impacts are Minority and Low-Income Communities, and in 

Some Cases the Populations Potentially Impacted Are Disproportionately 

Minority and/or Low Income 

The second and third steps of the DSW environmental justice analysis methodology together 

help determine whether the potential adverse impacts detailed above are likely to occur 

disproportionately in minority and low-income communities. 

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. Notification facilities;

2. Damage case facilities;

3. Hazardous waste facilities; and

4. Non-hazardous industrial waste facilities

The third step characterized the demographics of the communities within a three kilometer radius 

around these facilities, and determined whether they were disproportionately minority or lowincome compared to the nation as a whole, and compared to the population in the state. 

Disproportionality was evaluated both at the community and at the population level.

For the community-level analysis, the question is whether the communities in a facility category

had a higher or lower percentage of minority and/or low-income population as compared to the 

comparison population (i.e., national or state population). In general, some communities will 

have a higher percentage than the comparison population, some will have a lower percentage. 

As long at these differences have a regular distribution, they would not indicate disproportionate 

impact. However, if the number of communities with a higher percentage of minority and/or 

low-income population is greater than that of the comparison populations, then there is a 

potential for disproportionate impact. The higher the average difference between the potentially 

affected communities and the comparison group, the greater the potential disproportionality.

In the chart below, the only category that consistently demonstrates the potential for 

disproportionate impact are the damage case facilities. For both the national and the state 

comparison populations, more than 50% of the damage case facilities are located in communities 

with minority and low-income populations that have a higher representation than the comparison 

populations. In addition, the average difference in these cases (i.e., the average amount that the 

damage case facilities have a higher-than-average percentage of minorities or low-income 

populations) range from 6-8%.

Notification facilities tend to be located in communities with a lower percentage of minority and 

low income residents than the national population. This is also true when compared to the state 

population in PA and NJ for minorities and for NJ for low income residents. Notification 

facilities were located in communities with higher percent minority population than state levels 

in IA, and a higher percentage of low income residents than the state level in IA and PA. 
Draft – Do not Cite or Quote

Community-Level Analysis of Potential Disproportionate Impacts 

of 2008 DSW Rule to Minority and Low-Income Communities

Highlighted Values Indicate Potential Disproportionate Impact

National 

Comparison

% communities 

with higher 

minority

representation

(average 

difference)

National 

Comparison

% communities 

with higher lowincome 

representation

(average 

difference)

State Comparison

% communities 

with higher 

minority

representation

(average 

difference)

State

Comparison

% communities 

with higher lowincome 

representation

(average 

difference)

Notification 

Facilities

(40 total)

7.5%

(-20.7%)

32.5%

(-2.0%)

50.0% (IA)

(3.1%)

20.0% (NJ)

(-11.0%)

31.3% (PA)

(-2.3%)

64.0% (IA)

(1.7%)

0% (NJ)

(-3.7%)

50% (PA)

(2.6%)

Damage Case 

Facilities 

(217 total)

53%

(8.2%)

65%

(5.9%)

55.8%

(8.2%)

69%

(6.7%)

Hazardous Waste 

Facilities

(2,677 total)

42%

(0.9%)

48%

(1.5%)

47.9%

(4.0%)

50.6%

(1.8%)

Non-Hazardous 

Industrial Waste 

Facilities

(25 total)

36%

(-5.0%)

40%

(-0.5%)

36%

(-2.55%)

44%

(-0.3%)

The population-level analysis examines the demographics of the total potentially affected 

population as compared to the total comparison population to determine (1) whether there is a 

substantially greater probability of members in a population group of concern (minority or lowincome) being present as compared to members of the comparison population, and (2) whether 

members of the population group of concern comprised a substantially greater proportion of the 

potentially affected population than the comparison populations. These two comparisons are 

referred to as (1) the Affected Population Ratio, and (2) the Demographic Ratio. In both cases, if 

the ratio is greater than 1.0, then there is a potential for disproportionate impact to the population 

of concern, and the larger the ratio, the greater the disproportionality.
Draft – Do not Cite or Quote

Population-Level Analysis of Potential Disproportionate Impacts 

of 2008 DSW Rule to Minority and Low-Income Communities

Highlighted Values Indicate Potential Disproportionate Impact to Population of Concern

All Results Statistically Significant (p-value <0.05)

National 

Comparison

Minority

Population

Affected Population 

Ratio

Demographic Ratio

National 

Comparison

Low-Income 

Population

Affected Population 

Ratio

Demographic Ratio

State 

Comparison

Minority

Population

Affected Population 

Ratio

Demographic Ratio

State 

Comparison

Low-Income 

Population

Affected Population 

Ratio

Demographic Ratio

Notification 

Facilities

(40 total)

0.70

0.76

1.05

1.04

1.80 (IA)

1.76 (IA)

1.02 (NJ)

1.01 (NJ)

1.46 (PA)

1.47 (PA)

1.34 (IA)

1.32 (IA)

0.64 (NJ)

0.65 (NJ)

1.74 (PA)

1.63 (PA)

Damage Case 

Facilities 

(217 total)

2.87

1.86

1.98

1.80

2.59

1.64

2.04

1.90

Hazardous 

Waste Facilities

(2,677 total)

1.90

1.80

1.39

1.50

1.94

2.04

1.47

1.83

Non-Hazardous 

Industrial Waste 

Facilities

(25 total)

1.19

1.12

1.16

1.14

1.34

1.20

1.17

1.15

The population-level analysis shows a greater incidence of potential disproportionate impact to 

minority and low-income populations than the community-level analysis. For the populationlevel analysis, the potential for disproportionate impact (i.e., ratios greater than one) occur under 

all categories, while the community-level analysis exhibits the potential for disproportionate 

impact only in the damage case facility category. This difference can occur when the 

populations of those communities that do have a greater percentage of minority or low-income 

individuals also have a significantly higher total population than those communities that do not. 

In other words, for all categories of facilities except the damage case facilities, the facilities of 

concern do not appear to be disproportionately located in minority or low-income communities, 

but the facilities that are located in minority and low-income communities have the potential to 

impact much larger populations than those which are not, resulting in an overall potential 

disproportionate impact to minority and low-income populations as a whole.

The level of statistical significance (p-value) depends on the size of the difference as well as the 

total population analyzed. Thus the same Affected Population or Demographic Ratio could be 
Draft – Do not Cite or Quote

non-significant for a small number of facilities or a small state or region, but highly significant 

for a larger number of facilities or when data from multiple states are pooled. The Affected 

Population and Demographic Ratios are presented as an indicator of the statistical significance of 

the results. 

The analysis includes comparisons of data at county, state, and national levels to help assess the 

sensitivity of the results to sample size. The notification facilities were located in only a small 

number of states, and therefore EPA analyzed each individual state. For other facility types, 

facilities were located in a large number of states, which presented challenges for presenting the 

information concisely. While EPA conducted analyses for each state in which a facility was 

located, EPA aggregated the state-level comparison data into a single table for each facility

category to streamline the presentation of the results. 

In regions with few Blacks, or few minorities, the minority population comparisons may be less 

important than the comparisons of low income populations because a larger percentage of the 

low income community may be White, non-Hispanics in such areas. Results for both minority

and low-income populations are presented for each analysis.

Affected Population Ratios are presented in this chapter to help readers determine the statistical 

significance of the results presented. They are also used in the calculation of the Fischer’s Exact

test and Kendall test. 

The statistical analyses for race differences focus on comparing minority (i.e., all populations 

except White, Non-Hispanic) and the minority sub-population of American Indian or Alaska 

Native (AIAN) with White Non-Hispanic populations. For the notification facilities, EPA 

analyzed some minority and key subpopulations, including minority, AIAN, Black or African 

American, Native Hawaiian or other Pacific Islander, Hispanic or Latino, or some other race. 

These race and ethnicity categories are those identified by the U.S. Census for 2000. Additional 

analyses of other racial or ethnic groups for damage cases, hazardous waste facilities, and nonhazardous industrial waste facilities are beyond the scope of this effort.

6.1.4 Underlying Vulnerabilities Traditionally Associated with Minority and LowIncome Communities Pose the Potential to Exacerbate Potential Adverse 

Impacts of the DSW Rule

As discussed in Chapter 5 of this report, other factors can increase the vulnerability in potentially 

affected communities to the potential adverse impact of the 2008 DSW final rule.

48 These factors 

are described under five broad categories: (1) Susceptible Populations, (2) Multiple and 

Cumulative Effects, (3) Unique Exposure Pathways, (4) Ability to Participate in the DecisionMaking Process, and (5) Physical Infrastructure.

All of these factors have the potential to exacerbate the potential for adverse impacts to minority

and low-income communities, but two of these factors are of particular concern to the 2008 

DSW final rule: Ability to Participate in the Decision-Making Process, and Multiple and 

Cumulative Effects

Ability to Participate in the Decision-Making Process

 

48 U.S. EPA Interim Guidance on Considering Environmental Justice During the Development of an Action July 

2010. http://www.epa.gov/environmentaljustice/resources/policy/considering-ej-in-rulemaking-guide-07-2010.pdf
Draft – Do not Cite or Quote

A key element of environmental justice is ensuring that all people have an opportunity for 

meaningful involvement in decision-making which may impact them. Certain groups may not 

have historically participated in decision-making because of economic (e.g., income), social 

(e.g., language barriers, education levels, distrust of government), and infrastructural reasons 

(e.g., access to public transportation). In addition, community groups may face higher barriers to 

participation than government or private sector entities. For example, taking advantage of 

existing public participation mandates may require a significant investment of community

resources or volunteer effort, while government and private sector entities may have more 

resources or paid staff to perform these functions. A critical concern is whether, and the extent 

to which, communities have the ability to influence the types and number of regulated activities 

taking place in their community as well as the requirements, conditions, and parameters by

which such activities must operate (e.g., permit conditions). Under the 2008 DSW final rule, 

facilities claiming an exclusion must submit an initial and biennial notification to EPA or the 

state, providing general facility information and describing hazardous secondary material types 

and activities under the exclusion. 

However, under the 2008 DSW final rule this information is not made directly available to 

potentially affected communities, and facilities and regulators are not required to solicit or 

consider community input into the decision-making process as is the case with RCRA permitted 

facilities. Thus by removing the RCRA permitting requirement for facilities that manage 

excluded hazardous secondary materials, the 2008 DSW final rule also removed one of the key

provisions for allowing communities to participate in the regulatory process (at least as it 

concerns the management of the hazardous secondary materials excluded under the rule). 

Communities with lower participation levels may experience greater adverse impacts from 

environmental decision-making because their input has not been considered fully, particularly if 

competing interests are set forth more effectively. This effect is most likely to occur in 

communities that have traditionally been excluded from the decision-making process.

Multiple and Cumulative Effects

Minority, low-income, and indigenous communities that have been affected by multiple 

pollution sources may be at risk for increased health consequences. Potential sources of 

pollution can include, for example, industrial facilities, landfills, transportation-related air 

emissions, poor housing conditions (e.g., lead-based paint), leaking underground tanks, 

pesticides, and incompatible land uses. An analysis of the cumulative effects from multiple 

stressors can provide a more complete evaluation of a population’s health risks from pollutants. 

For example, an analysis of discrete stressors and effects on a population might conclude that 

nearby pollution sources are within regulatory limits; however, an analysis of cumulative effects 

might determine that a person’s collective exposure to a contaminant from multiple sources 

exceeds a health-based limit.

An examination of the facilities that have notified under the 2008 DSW final rule shows that 

multiple environmental hazards are a potential concern for communities around these facilities. 

All have multiple facilities reporting to EPA, either under RCRA, the Clean Air Act (CAA), or 

Comprehensive Environmental Response, Compensation and Liability Act, (CERCLA - also 

known as Superfund) within a three-kilometer radius of the facility. Twenty-six of the forty 

facilities had communities with cancer rates greater than the 80th percentile, and twenty-seven 

showed a greater than the 80th percentile in neurological hazard rates. Twenty-seven facilities 

also had no hospital facilities within the three kilometer area.
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6.2 Potential Preventative and Mitigative Steps that EPA Could Explore to Address the 

Potential Adverse Impacts to Minority and Low-Income Communities

The sixth and final step of the DSW environmental justice analysis is to identify potential 

strategies to prevent non-compliance and releases to the environment and to mitigate potential 

adverse impacts that have been identified in the analysis.

6.2.1 Regulatory Changes

Regulatory changes to the 2008 DSW final rule were made according to EPA’s authority under 

RCRA to regulate discarded material. As discussed in the preamble to the 2008 DSW final rule, 

EPA used the concept of discard as the central organizing idea behind the October 2008 

revisions to the definition of solid waste. 

As stated in RCRA section 1004(27), “solid waste” is defined as “... any garbage, refuse, sludge 

from a waste treatment plant, water supply treatment plant, or air pollution control facility and 

other discarded material...resulting from industrial, commercial, mining and agricultural 

activities.” In exercising its discretion in the 2008 DSW final rule to define what constitutes 

“discard” for hazardous secondary materials reclamation in the 2008 DSW final rule, EPA 

included an explanation of how each provision of the final rule relates to discard (73 FR 64676–

64679). 

While the concept of discard also is the central organizing principle in this proposed rule since 

EPA only has authority under RCRA to regulate materials that have been discarded, the Federal 

Register notice announcing the June 2009 public meeting identified areas or opportunities to 

revise the 2008 DSW final rule in ways that could increase environmental protection, including 

in environmental justice communities, while still appropriately defining when a hazardous 

secondary material being reclaimed is a solid waste and subject to hazardous waste regulation 

(74 FR 25202). The purpose of today’s proposal is to provide notice and the opportunity to 

comment on potential regulatory revisions to address the potential for adverse impacts to human 

health and the environment from discarded material, including disproportionate impacts to 

minority and low income communities.

In particular, the proposed withdrawal of the transfer-based exclusion and its replacement with 

an alternative Subtitle C standard will address the concerns regarding third-party recyclers, 

including the impact of longer accumulation times, the lack of preventative measures under the 

containment standard, the lack of public participation requirements, the lack of RCRA air 

standards, and concerns regarding certain transportation issues. In addition, the proposed 

codification of the “contained” standard also addresses the lack of preventative measures and the 

lack of RCRA air standards under the generator-controlled exclusion. Proposed additional 

recordkeeping requirements for speculative accumulation and legitimacy would help ensure that 

hazardous secondary material is being legitimately recycled and not simply discarded through 

over-accumulation and abandonment, and recordkeeping under the tolling and same-company 

provisions will help ensure that the hazardous secondary materials meet their intended 

destinations.
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6.2.2 Implementation Measures

EPA acknowledges that reclamation of HSM under the 2008 DSW Rule may not be as effective 

in ensuring protection of human health and the environment as regulation as a hazardous waste. 

In addition to considering regulatory changes to address potential adverse impacts of the 2008 

DSW final rule, EPA can take non-regulatory steps to help mitigate the potential adverse 

impacts. These steps include closely monitoring the facilities notifying under the 2008 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. In particular, Tribes, including Inuits, may need additional resources to staff and 

implement the DSW Rule. 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 at the same time that revisions to the rule are under 

consideration. 

EPA did not assess whether the DSW Rule considers the affects of tracking, monitoring and 

enforcement across multiple state lines or whether HSW transport will operate smoothly across 

multiple state programs. However, offsite transport of DSW-excluded material that qualifies as 

a DOT hazardous material is generally subject to transportation-related regulation comparable to 

hazardous waste shipments. DOT regulation of hazardous material transport is national in scale 

and therefore similar regulatory controls are likely to be in place throughout interstate transport. 
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Attachment A. Comparison of Regulatory Requirements under 2008 DSW 

Final Rule to RCRA and Other Federal Regulations
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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 2008 Definition 

of Solid Waste (DSW) final rule. The purpose of the comparison is to determine if the federal 

regulations applicable to generators and facilities operating under the 2008 DSW final rules 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 under the generator-controlled exclusion.

 Table 2 compares the federal regulations applicable to generators of hazardous waste and 

generators of hazardous secondary material under the transfer-based exclusion.

 Table 3 compares the federal regulations applicable to hazardous waste storage facilities 

and hazardous secondary material intermediate and reclamation facilities under the 

transfer-based exclusion.49

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 2008 DSW final rule and 

other federal regulations applicable to hazardous secondary material 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 2008 DSW final 

rule (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 hazardous 

secondary material (e.g., storage time limits for generators). EPA then summarized these 

 

49 EPA compares hazardous waste storage facilities to hazardous secondary material 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.
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requirements in Column 1 of the 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 2008 DSW final rule 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 2008 DSW 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 2008 DSW final 

rule, 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 2008 DSW final rule. Refer to Section 5.1 of this appendix for a summary of 

the legitimacy requirements and policies under the hazardous waste regulations and Sections 

5.2.1 and 5.2.2 for the legitimacy requirements and conditions under the 2008 DSW final rule.

3.2 Storage Time Limit

The hazardous waste regulations and the 2008 DSW final rule set forth time limits for generators 

to accumulate hazardous secondary material on-site. However, the 2008 DSW final rule allows

generators to accumulate hazardous secondary material on-site for longer periods of time. In 

addition, the 2008 DSW final rule does not include a quantity limit for on-site accumulation, as 

do the hazardous waste regulations for small quantity generators. 
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3.3 Containment

The hazardous waste regulations and the 2008 DSW final rule require containment of hazardous 

secondary material 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 2008 DSW final rule does not include prescriptive 

requirements—rather, it provides a general performance standard. As such, the 2008 DSW final 

rule allows more flexibility in how hazardous secondary materials 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, 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 2008 DSW final 

rule 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 2008 DSW final rule 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. 
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The hazardous waste regulations apply to all facilities regardless of industry. Therefore, some 

generators and facilities under the 2008 DSW final rule may not be subject to the CAA 

regulations. For example, an autobody shop that generates solvent waste and sends it to a 

reclaimer under the DSW rule that was not be considered a “major” source under CAA would 

likely not be subject to CAA regulations for air emissions from stationary sources. Second, 

some CAA regulations apply to the overall emissions for an entire facility facility, 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 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 2008 DSW final rule 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 2008 DSW final rule, on the other hand, does not require 

emergency preparedness and response. However, materials managed under the 2008 DSW final 

rule 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 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 2008 DSW

final rule:

 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. 

 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). 
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 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

(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 2008 DSW final 

rule. 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 2008 DSW final rule 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 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 
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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.

 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 2008 DSW final rule 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 2008 DSW final rule 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 onsite personnel or offsite response agencies).

3.6 Personnel Training

The hazardous waste regulations require large quantity generators and storage facilities to 

provide recurrent training on emergencies, at a minimum. Small quantity generators must 

provide employee familiarization. The 2008 DSW final rule does not require personnel training 

or familiarization. However, some generators and facilities under the 2008 DSW final rule 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 2008 DSW final rule:

 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 
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awareness/familiarization, function-specific training, safety, security awareness, and indepth security. A hazmat employee is a person who is involved in the transportation of 

Department of Transportation (DOT) hazardous materials as specified (e.g., loading, 

preparation for transportation, operation of a transportation vehicle). 

 OSH Act. The Process Safety Management (PSM) Standard (29 CFR 1910.119) and 

Hazardous Waste Operations and Emergency Response (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, the Hazard Communication (HazCom) Standard (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 2008 DSW final rule 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 2008 DSW final rule 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 requires 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 small quantity generators. However, the HMR training 

requirements are not as prescriptive as the hazardous waste regulations for large quantity

generators and storage facilities; therefore, it is uncertain that HMR training would 

address comparable topics as the hazardous waste regulations for large quantity

generators 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 hazardous secondary material off-site. 

 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 large quantity generators and storage 

facilities (e.g., use of emergency equipment, how to respond to fires and groundwater 

contamination).
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 The HazCom Standard 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.

50

 In this regard, HazCom training may be comparable to training 

under the hazardous waste regulations particularly for small quantity generators. 

However, the hazardous waste regulations require large quantity generators 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, large quantity generators and storage 

facilities must submit a Biennial Report describing their hazardous wastes and activities. The 

2008 DSW final rule requires each generator and facility to submit an initial and biennial 

notification describing its hazardous secondary materials and activities under the exclusion. 

Therefore, the hazardous waste regulations and the 2008 DSW final rule include comparable

initial and biennial notification requirements.

In addition, the hazardous waste regulations and DSW transfer-based exclusion 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 generator-controlled exclusion 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 transfer-based exclusion 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.”51 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 172.101,52 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 

2008 DSW final rule:

 

50

 This is OSHA’s interpretation of the HazCom regulations dated June 6, 1991.

51

 All hazardous wastes are listed in Part 172 as DOT hazardous materials and therefore are automatically subject to 

the DOT regulations as applicable. 

52

 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).
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 Generator-Controlled Exclusion. Hazardous secondary materials under the generatorcontrolled exclusion 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

would not know whether its excluded material reached the intended destination intact, as 

is required by the hazardous waste manifest regulations.

 Transfer-Based Exclusion. Hazardous secondary materials under the transfer-based 

exclusion that qualifies 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 transfer-based exclusion

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 hazardous secondary materials under the 

generator-controlled exclusion or transfer-based exclusion 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 generator-controlled exclusion). 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 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. 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 must also 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. 
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Under the generator-controlled exclusion, exports are not allowed, and the HSM must be

reclaimed within the U.S. 

The transfer-based exclusion 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

must also 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 

transfer-based exclusion include generally comparable export requirements.

3.10 Regulation of Residues

The hazardous waste regulations state that any material derived from a listed hazardous waste is 

also a listed hazardous waste. This is called the “derived-from” rule. It means, for example, that 

residues from the reclamation of a listed hazardous waste are listed hazardous waste. 

The generator-controlled exclusion does not address how residues from the reclamation process 

should be managed under the regulations and is therefore not comparable to the hazardous waste 

regulations in this regard.

The transfer-based exclusion states that residuals must be managed as hazardous waste if they

exhibit a characteristic or are listed. Waste is characteristic if it exhibits one of the four 

characteristics defined in 40 CFR Part 261 Subpart C - ignitability (D001), corrosivity (D002), 

reactivity (D003), and toxicity (D004 - D043). Listed wastes are specific wastes that EPA 

determined are hazardous. These wastes are incorporated into lists published by the Agency. 

These lists are organized into three categories: 

1. The F-list (non-specific source wastes). This list identifies wastes from common 

manufacturing and industrial processes, such as solvents that have been used in 

cleaning or degreasing operations, and can be found in the regulations at 40 CFR 

§261.31. 

2. The K-list (source-specific wastes). This list includes certain wastes from specific 

industries, such as petroleum refining or pesticide manufacturing, andcan be found in 

the regulations at 40 CFR §261.32. 

3. The P-list and the U-list (discarded commercial chemical products). These lists include 

specific commercial chemical products in an unused form. Some pesticides and some 

pharmaceutical products become hazardous waste when discarded. Wastes included on 

the P- and U-lists can be found in the regulations at 40 CFR §261.33.

Hence, the derived-from’ rule does not apply to the residuals from the reclamation of hazardous 

secondary materials under the exclusion. This means that residuals are a new point of generation 

for the purposes of applying the hazardous waste determination requirements of 40 CFR 262.11. 

If the residuals exhibit a hazardous characteristic, or they themselves are a listed hazardous 

waste, they would be considered hazardous wastes (unless the material is excluded from the 

definition of hazardous waste under 40 CFR 261.4(b) or a waste not subject to hazardous waste 

regulation under 40 CFR 261.5, 261.6, 261.7, 261.8, or 261.9;) and would have to be managed 

accordingly. If they did not exhibit a hazardous characteristic, or were not themselves a listed 

hazardous waste, they would need to be managed in accordance with applicable state or federal 

requirements for non-hazardous wastes.
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These provisions on residuals under the transfer-based exclusion are intended to clarify that 

residuals from reclamation are subject to waste characterization requirements and cannot simply

be discarded as non-hazardous waste. However, designating the residuals as a new point of 

generation raises the possibility that a residual containing a listed waste might not be determined 

to be a hazardous waste. As a result, such wastes could exit Subtitle C regulation, contrary to the 

intent of the derived-from rule.

3.11 Security53

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 transferbased exclusion does not address security at facilities. 

3.12 Financial Assurance

The hazardous waste regulations and transfer-based exclusion 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, nonsudden accidental occurrences. A variety of financial instruments are identified for these 

purposes (e.g., trust fund, surety bond). Therefore, the hazardous waste regulations and transferbased exclusion 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 generator controlled exclusion allows 

generators to manage HSM in land-based units without a permit. 

The transfer-based exclusion requires facilities either to obtain a RCRA permit and manage 

hazardous secondary materials 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 hazardous 

secondary materials will be safely and legitimately managed and reclaimed.

The RCRA permit and transfer-based exclusion share some key similarities, but there also are 

some key differences. Examples include the following: 

 Similarities. A hazardous waste permit and transfer-based exclusion impose 

requirements on facilities to ensure protective operation (e.g., permit requirements, 

exclusion conditions). In addition, a hazardous waste permit and the transfer-based 

exclusion 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

 

53

 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.
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permit and the transfer-based exclusion 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 transfer-based exclusion, 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 addition, states have a lead role in administering the hazardous 

waste permitting and enforcement process. Under the transfer-based exclusion, 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 generator controlled exclusion, 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 transfer-based exclusion, 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 HWRs 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 2008 DSW final rule. The 

purpose of the comparison is to determine if the federal regulations applicable to generators and 

facilities operating under the 2008 DSW final rule 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 hazardous secondary material under the generator-controlled exclusion.

 Table 2 compares the federal regulations applicable to generators of hazardous waste and 

generators of hazardous secondary material under the transfer-based exclusion.

 Table 3 compares the federal regulations applicable to hazardous waste storage facilities 

and hazardous secondary material intermediate and reclamation facilities under the 

transfer-based exclusion.
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Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

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 §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 rule. 

The DSW 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 kg onsite. 

(40 CFR 262.34)

GCE: Generator must 

recycle (or ship for 

recycling) 75% of the 

hazardous secondary

material within 1 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 hazardous secondary

material 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.
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Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

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 Part 

264, 265, and 270)

GCE: Hazardous secondary

material must be contained. 

Generators can manage 

HSM in land-based units 

(e.g., surface impoundments 

piles). (40 CFR 

261.2(a)(2)(ii) and 

261.4(a)(23)(i))

The HWRs and GCE require 

containment of hazardous 

secondary material 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 

hazardous secondary materials 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 
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Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

units, unlike the HWRs, which 

require a permit or interim status 

that prescribe facility and unitspecific standards.
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Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

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: Hazardous secondary

material must be contained. 

(40 CFR 261.2(a)(2)(ii) and 

261.4(a)(23)(i))

The HWRs and GCE require 

containment of hazardous 

secondary material 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 hazardous secondary 

materials 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.
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Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

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 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 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).
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Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

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 onsite and 

offsite 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 offsite emergency

personnel as applicable). 

(40 CFR 262.34 and 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 Subtitle C regulation if 

hazardous, including the HWR 

preparedness and response 

requirements, as applicable. 

In addition, see “Other Federal 

Regulations” below for additional 

discussion.
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Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

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 offsite consequences as specified) must prepare an emergency response 

program that includes an emergency plan (e.g., procedures for notifying offsite 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 onsite 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 
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Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

more than a threshold quantity of 

a 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.

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 

offsite 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 
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Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

provisions are not comparable to 

the HWRs for preparedness and 

response.

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 offsite agencies/personnel).

 

A generator must prepare an 

SPCC Plan if it meets specified 

applicability criteria (e.g., a nontransportation-related facility with 

aboveground oil storage capacity

of more than 1,320 gallons that 

could reasonably be expected to 

discharge petroleum-based 
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Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

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). 

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, offsite 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 

provisions require generally

comparable elements as the 

HWRs for SQG preparedness and 

response. The evacuation plan 

must include onsite response 

coordination, offsite 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 
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Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

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). Section 

1910.119, Appendix A, lists 

approximately 140 toxic and 

reactive highly hazardous 

chemicals subject to regulation.

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))

29 CFR 1910.120(p)(8) does 

not apply to sites that are not 

hazardous waste generators 

or 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 
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June 30, 2011 Draft - Do Not Cite or Quote A-26

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

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, offsite 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))

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 

1910.120(p)(8) are comparable to 

the requirements at 1910.120(q), 

which are presented below. 

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, offsite notification, and procedures to be followed by facility personnel who 

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 

onsite coordination of emergency

responses. 

In addition, the evacuation plan is 

generally comparable to the HWR 

requirements for SQG 
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-27

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

remain to operate critical equipment before evacuation. (29 CFR 1910.38 and 1910.120(q)) preparedness and response. The 

evacuation plan must include 

onsite 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 

onsite 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 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 
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June 30, 2011 Draft - Do Not Cite or Quote A-28

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

would not be subject to 1910.1200 

for its hazardous waste, but for 

non-waste chemicals.)

However, the HazCom provisions 

do not require emergency

equipment, coordination with 

offsite 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.
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-29

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

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.

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 offsite consequences as specified) are not required to 

The Chemical Accident 

Prevention provisions require 

facilities in Program 2 and 3 to 

provide recurring personnel 

training on job operations and 

emergency procedures. These 
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-30

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

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 offsite 

consequences as specified) must provide recurring personnel training on operations and 

emergency procedures. (40 CFR Part 68)

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 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 Part 68 lists 140 toxic and 

flammable regulated substances, 

with threshold quantities ranging 

from 500 to 20,000 pounds.

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 

A generator’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 
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-31

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

elements of the Plan. (40 CFR Part 112) 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).

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 172.101, or 

3) meets one or more of the hazard classifications (e.g., flammable liquid). 

Part 172 provides that all RCRA hazardous wastes are DOT hazardous materials, as specified. A 

hazardous secondary material 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 

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 
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-32

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

material if it is otherwise listed in 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) 

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 offsite 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.

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., jobrelated 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.
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-33

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

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).

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 
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-34

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

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.

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
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-35

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

criteria (e.g., a generator that has 

employees responsible for 

responding to onsite releases 

regardless of location).

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 
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-36

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

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).
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-37

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

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. Offsite 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.

Other Federal Regulations: 

HMTA: A generator would be subject to regulation under the HMTA if it transported, or offered Excluded materials qualifying as a 
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-38

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

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 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 Part 172. A 

hazardous secondary material 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 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 hazardous secondary material 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).

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

GCE: No comparable 

provisions for exports.

The GCE does not include 

comparable provisions for notice 

and consent for exports. This is 
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-39

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

 Submit annual report

 Keep records

because the exclusion requires that 

the material be generated and 

reclaimed within the U.S. and 

territories.

10. Regulation of Residues

HWRs: Derived-from rule applies to residues from reclamation 

(40 CFR 261.3(c))

GCE: No comparable 

provisions

The GCE does not include 

generator regulations for residues 

from reclamation. 
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-40

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

11. Requirement for a Permit

HWRs: RCRA permit is required for managing hazardous waste 

in land-based 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 land-based 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 Part 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.

Other Federal Regulations:

Facilities managing hazardous secondary materials may be subject to other permitting programs 

that include public involvement. Examples include the Clean Air Act (CAA) operating 

Facilities under GCE may be 

subject to the CAA NPDES, 
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-41

Table A-1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 

Hazardous Waste Regulations (HWRs) and Other Federal 

Regulations: Hazardous Waste Generators

DSW GeneratorControlled Exclusion 

(GCE) and Other Federal 

Regulations: Hazardous 

Secondary Material 

Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity Generators 

(SQGs)

permitting program and Clean Water Act (CWA) National Pollutant Discharge Elimination 

System (NPDES) permitting program.

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:

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. 
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-42

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 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 §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 rule. The DSW 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 kg onsite. 

(40 CFR 262.34)

TBE: Generator must recycle 

(or ship for recycling) 75% 

of the hazardous secondary

material within 1 calendar 

year and meet other criteria 

as specified.

(261.4(a)(24)(i))

The TBE allows generators to 

accumulate hazardous secondary

material onsite for longer periods of 

time than the HWRs. In addition, 

the TBE does not include a quantity

limit for onsite accumulation, as 

does the HWRs for SQGs.
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-43

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 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 Part 265, Subparts I, J, and DD)

TBE: Hazardous secondary

material must be contained 

(40 CFR 261.4(a)(24)(v)(A))

Both the HWRs and TBE require 

containment of hazardous secondary

material 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 hazardous secondary materials 

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.
Draft – Do not Cite or Quote

June 30, 2011 Draft - Do Not Cite or Quote A-44

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 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: Hazardous secondary

material must be contained. 

(40 CFR 261.2(a)(2)(ii) and 

261.4(a)(23)(i))

The HWRs and TBE require 

containment of hazardous secondary

material 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 hazardous 

secondary materials 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.

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. 

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 
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

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.

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).
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 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 onsite and offsite 

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

offsite emergency

personnel as 

applicable). (40 

CFR 262.34 and 

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 Subtitle C regulation if hazardous, 

including the HWR preparedness 

and response requirements, as 

applicable. 

In addition, see “Other Federal 

Regulations” below for additional 

discussion.
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 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 offsite consequences as specified) must prepare an emergency

response program that includes an emergency plan (e.g., procedures for notifying offsite 

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 onsite 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 Part 

68-regulated substance in a process 
Draft – Do not Cite or Quote

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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

(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.

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 offsite 

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.

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 

The SPCC requirements set forth

generally comparable elements as 
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

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 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 

offsite agencies/personnel).

 

A generator must prepare an SPCC

Plan if it meets specified 

applicability criteria (e.g., a nontransportation-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-
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June 30, 2011 Draft - Do Not Cite or Quote A-50

Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

related substances, or meet minimum 

storage capacity thresholds). 

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, offsite 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 

provisions require generally

comparable elements as the HWRs 

for SQG preparedness and response. 

The evacuation plan must include 

onsite response coordination, offsite 

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). Section 1910.119, 
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

Appendix A, lists approximately 140 

toxic and reactive highly hazardous 

chemicals subject to regulation.

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, 

offsite 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 

29 CFR 1910.120(p)(8) does 

not apply to sites that are not 

hazardous waste generators 

or 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 1910.120(p)(8) 

are comparable to the requirements 

at 1910.120(q), which are presented 
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

1910.120(p)(8)) below. 

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, offsite 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 onsite 

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 onsite 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.
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

Note that 29 CFR 1910.120(q) 

would not apply to generators under 

the TBE unless they have onsite 

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 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 1910.1200 for its 

hazardous waste, but for non-waste 

chemicals.)

However, the HazCom provisions do 

not require emergency equipment, 

coordination with offsite 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
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

response.

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.

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 offsite consequences as specified) are not 

required to provide training. Generators with a process subject to Program 2 or 3 (e.g., has had 

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 
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

accidental release of a regulated substance from a process within the past five years with 

offsite consequences as specified) must provide recurring personnel training on operations and 

emergency procedures. (40 CFR Part 68)

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 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 Part 68 

lists 140 toxic and flammable 

regulated substances, with threshold 

quantities ranging from 500 to 

20,000 pounds.

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 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. 
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

A generator must prepare an SPCC

Plan if it meets the specified 

applicability criteria (e.g., a nontransportation-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).

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 172.101, or 3) meets one or more of the hazard classifications (e.g., flammable 

liquid). 

Part 172 provides that all RCRA hazardous wastes are DOT hazardous materials, as specified. 

A hazardous secondary material 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 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.

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 
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

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) 

involved in transportation activities 

(e.g., because they do not make 

offsite 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.

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., jobrelated 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).
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 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 
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

to the HWRs for LQG training.

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 onsite 

releases regardless of location).

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 
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

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).
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 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 

hazardous secondary

material 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 offsite 

shipments and 

confirmations of receipt 

(40 CFR 

261.4(a)(24)(v)(D) and 

(E))

The HWR 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 HWR’s 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 HWR.
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

8. Offsite 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 

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 Part 172. A 

hazardous secondary material 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 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 hazardous secondary material that is not listed and does not meet any

hazard class. 

Shipments of DOT hazardous materials (including hazardous waste) must comply with 

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 

offsite 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.
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

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).

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.

10. Regulation of Residues

HWRs: Derived-from rule applies to residues from reclamation 

(40 CFR 261.3(c))

TBE: No comparable 

provisions

The TBE does not include generator 

regulations for residues from 

reclamation. This is because 

generators are required to send their 

excluded materials offsite for 

reclamation.

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 

HWRs: No comparable 

guidance.

TBE: No comparable 

guidance.
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Table A-2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 

Hazardous Secondary Materials under 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 Generators

Notes (e.g., issues regarding 

applicability, comments on 

comparability) Large Quantity Generators 

(LQGs)

Small Quantity 

Generators (SQGs)

universe, so that the entire universe 

is inspected in five years.
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 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 §260.43 

(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 DSW rule. The 

DSW rule 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 

hazardous secondary material 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 hazardous secondary materials 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, 
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

prescriptive requirements may be more conducive 

to inspection and enforcement, which could help to 

prevent a release.

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 

hazardous secondary material 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 hazardous secondary materials 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.

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. 

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 
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

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.

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).
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 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 onsite and offsite 

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 Subtitle C regulation if hazardous, 

including the HWR preparedness and response 

requirements, as applicable. 

In addition, see “Other Federal Regulations” below 

for additional discussion.

Other Federal Regulations:
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

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 offsite consequences as specified) must prepare an emergency response 

program that includes an emergency plan (e.g., procedures for notifying offsite 

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 

offsite 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 onsite 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 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.

CERCLA/EPCRA (Emergency Notification): 

 A facility must immediately notify the National Response Center (NRC) of a 

These CERCLA/EPCRA provisions require 

notification to offsite personnel as do the HWRs. 
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

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 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.

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 offsite agencies/personnel).

 

A facility must prepare an SPCC Plan if it meets 

specified applicability criteria (e.g., a nontransportation-related facility with aboveground oil 

storage capacity of more than 1,320 gallons that 

could reasonably be expected to discharge 
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

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). 

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, offsite 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 provisions 

require generally comparable elements as the 

HWRs for facility preparedness and response. The 

evacuation plan must include onsite response 

coordination, offsite 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). Section 1910.119, 
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June 30, 2011 Draft - Do Not Cite or Quote A-72

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

Appendix A, lists approximately 140 toxic and 

reactive highly hazardous chemicals subject to 

regulation.

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))

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 1910.120(p) are comparable to the 

requirements at 1910.120(q), which are presented 

below. 
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June 30, 2011 Draft - Do Not Cite or Quote A-73

Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

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 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 HAZWOPER regulations require generally 

comparable elements as the HWRs for 

preparedness and response. This includes, for 

example, an emergency response plan, emergency 

equipment, and onsite coordination of emergency

responses. However, the evacuation plan is not 
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

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, 

offsite 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))

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 onsite 

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 

1910.1200 for its hazardous waste, but for nonwaste chemicals.)

However, the HazCom provisions do not require 

emergency equipment, coordination with offsite 

personnel, or basic actions to control an 

emergency. Rather, they require information 
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

sharing and training. As 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.

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). 

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
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

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 offsite 

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 offsite consequences as 

specified) must provide recurring personnel training on operations and 

emergency procedures. (40 CFR Part 68)

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 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 Part 

68 lists 140 toxic and flammable regulated 

substances, with threshold quantities ranging from 

500 to 20,000 pounds.

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 nontransportation-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 
Draft – Do not Cite or Quote

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

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., 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 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).

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). 

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 
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

Training on job duties must be 

recurrent training. These provisions 

apply to hazardous waste TSDFs only. 

(29 CFR 1910.120(p))

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 onsite 

releases regardless of location).

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 

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 
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

area, and measures employees can take to protect themselves (e.g., emergency

procedures). (29 CFR 1910.1200)

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).
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 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.
Draft – Do not Cite or Quote

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

9. Regulation of Residues

HWRs: Derived-from rule applies to 

residues from reclamation (40 CFR 

261.3(c))

TBE: Residuals must be managed as 

hazardous waste if they exhibit a 

characteristic or are listed (40 CFR 

261.4(a)(24)(vi)(E))

The derived-from’ rule does not apply to residuals 

from the reclamation of hazardous secondary

materials excluded under the TBE. These residuals 

are a new point of generation for the purposes of 

applying the hazardous waste determination 

requirements of 40 CFR 262.11. If the residuals 

exhibit a hazardous characteristic, or they

themselves are a listed hazardous waste, they

would be considered hazardous wastes (unless 

otherwise exempted) and would have to be 

managed accordingly. If they did not exhibit a 

hazardous characteristic, or were not themselves a 

listed hazardous waste, they would need to be 

managed in accordance with applicable state or 

federal requirements for non-hazardous wastes.

The TBE provisions on residuals were included to 

clarify that residuals from reclamation are subject 

to waste characterization requirements and cannot 

simply be discarded as non-hazardous waste. 

However, designating the residuals as a new point 

of generation raises the possibility that a residual 

containing a listed waste might not be 

characterized as such (e.g., because the listed waste 
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

is below detectable levels). As a result, such listed 

wastes could exit Subtitle C regulation, contrary to 

the intent of the derived-from rule.

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 hazardous 

secondary materials 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 

hazardous secondary material 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 nonsudden occurrences.

Differences

 RCRA permit can be revoked or denied to 
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

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, states and generators both have lead roles 

to evaluate facility compliance.

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 hazardous secondary

materials. 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:
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

Facilities managing hazardous secondary materials 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.
Draft – Do not Cite or Quote

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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 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 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:

 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 

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.
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Table A-3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary 

Material Intermediate and Reclamation Facilities under 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 Intermediate and 

Reclamation Facilities

Notes (e.g., issues regarding applicability, 

comments on comparability)

facilitate inspections and enforcement 

actions. 
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 

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

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.
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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 kg or more of hazardous 

waste in a calendar month, 1 kg or more of acute hazardous waste in a calendar month, or 

100 kg or more 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 no 

more than 100 kg of hazardous waste in a calendar month. (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. 

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 offsite treatment, storage, or disposal, it may
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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 onsite and offsite 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).

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 offsite 

personnel/agencies and control/clean up 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 
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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 number 

from EPA. The generator may obtain an ID number by submitting a 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 and include information about the generator, hazardous wastes generated, onsite 

management, and offsite 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.

Offsite Transportation

Manifest System. Under 40 CFR Part 262, Subpart B, generators must prepare a hazardous 

waste manifest for all offsite 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.

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 
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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 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). 

Regulation of Residues

40 CFR 261.3(c) provides that any material derived from a listed hazardous waste is also a listed 

hazardous waste.

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.54 

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 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 

 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)

 

54 “FY 2010 Office of Enforcement and Compliance Assurance (OECA) National Program Manager (NPM) 

Guidance April 23, 2009.” See page 44.
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 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). 

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). 
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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 onsite and offsite 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.

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 
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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 offsite

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).

Regulation of Residues

40 CFR 261.3(c) provides that any material derived from a listed hazardous waste is also a listed 

hazardous waste.

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. 

 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 
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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).55 

5.2 Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste 

Exclusions 

5.2.1 Generator-Controlled Exclusion (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)) 

The generator-controlled exclusion excludes from the definition of solid waste those hazardous 

secondary materials 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;

 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 

 

55 “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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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 generator-controlled exclusion requires the reclamation of hazardous secondary material 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 generator-controlled exclusion 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. 

Containment

The generator-controlled exclusion requires that the material be contained.

Air Emission Standards
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The generator-controlled exclusion requires that the material be contained.

Emergency Preparedness and Response

The generator-controlled exclusion does not require emergency preparedness and response.

Personnel Training

The generator-controlled exclusion does not require personnel training.

Reporting and Recordkeeping

The generator-controlled exclusion 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.

Offsite Transportation

The generator-controlled exclusion does not include provisions for offsite transportation.

Exports

The generator-controlled exclusion does not include provisions for exporting material outside the 

U.S. The exclusion requires that the material be generated and reclaimed within the United 

States or its territories.

Regulation of Residues

The generator-controlled exclusion does not address how residues from the reclamation process 

should be managed under RCRA.

5.2.2 Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste 

Transfer-Based Exclusion (40 CFR 261.4(a)(24) and (25))

The transfer-based exclusion excludes from the definition of solid waste those hazardous 

secondary materials 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 Hazardous Secondary Material 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 2.1 of this appendix on RCRA summarizes the requirements for 

legitimate recycling under 40 CFR 260.43.
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In addition, 40 CFR 261.4(a)(24)(v)(B) requires that, prior to arranging for transport of 

hazardous secondary materials 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 legitimately reclaim the hazardous secondary material and not 

discard it, and that each facility will manage the hazardous secondary material 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. Section 3.2.10 of this appendix on 

RCRA presents these questions.

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 2.2 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 transfer-based exclusion does not include provisions for emergency preparedness and 

response.

Personnel Training

The transfer-based exclusion does not require personnel training.

Reporting and Recordkeeping

Reporting. The transfer-based exclusion requires notification to EPA in accordance with 40 

CFR 260.42. Section 2.7 of this appendix on RCRA summarizes the notification requirement 

and types of information that must be submitted.

The generator must also 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 

hazardous secondary materials is not addressed under a RCRA Part B permit or interim status 

standards prior to transferring hazardous secondary material. 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 offsite shipments of hazardous secondary materials and 

confirmations of receipt from each reclaimer and, if applicable, each intermediate facility for all 

offsite shipments of hazardous secondary materials.
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Offsite Transportation

40 CFR 261.4(a)(24)(ii) requires the material not be handled by any person or facility other than 

the hazardous secondary material generator, the transporter, an intermediate facility or a 

reclaimer, and, while in transport, not be stored for more than 10 days at a transfer facility, and 

be packaged according to applicable Department of Transportation 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 hazardous secondary materials. 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 hazardous secondary material was sent; and

 The type and quantity of hazardous secondary material 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 hazardous secondary materials. Confirmations 

of receipt must include the following information:

 Name and address of the reclaimer (or intermediate facility);

 Type and quantity of the hazardous secondary materials received; and

 Date which the hazardous secondary materials 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 hazardous secondary material that is exported from the 

United States and reclaimed at a reclamation facility located in a foreign country is not a solid 

waste, provided that the hazardous secondary material 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 

hazardous secondary material is scheduled to leave the United States, as specified. The export of 

hazardous secondary material 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 2.7 of this appendix on RCRA summarizes 

the types of information that must be submitted under 40 CFR 260.42.
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Regulation of Residues

The transfer-based exclusion does not include regulations for generators to manage the residues 

of reclamation. Under the exclusion, the materials must be generated and subsequently sent to 

an offsite facility for reclamation.

5.2.2.2 Intermediate and Reclamation Facilities (40 CFR 261.4(a)(24))

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. In addition, generators must make reasonable efforts as applicable to 

ensure that each facility intends to properly and legitimately reclaim the hazardous secondary 

material and not discard it, and that each facility will manage the hazardous secondary material 

in a manner that is protective of human health and the environment. Section 5.2.2.1 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 

hazardous secondary material in a manner that is at least as protective as that employed for 

analogous raw material and must be contained. An ‘‘analogous raw material’’ is a raw material 

for which a hazardous secondary material is a substitute and serves the same function and has 

similar physical and chemical properties as the hazardous secondary material.

Air Emission Standards

Section 3.2.2 of this appendix on RCRA summarizes the requirement to contain the material.

Emergency Preparedness and Response

The transfer-based exclusion does not include requirements for emergency preparedness and 

response.

Security

The transfer-based exclusion does not include requirements for security.

Personnel Training

The transfer-based exclusion does not require personnel training.

Reporting and Recordkeeping

Reporting. The transfer-based exclusion requires notification to EPA in accordance with 40 

CFR 260.42. Section 2.7 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 hazardous 

secondary material that were received at the facility and, if applicable, all shipments of 

hazardous secondary materials that were received and subsequently sent offsite from the facility

for further reclamation. 

Financial Assurance
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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 hazardous secondary materials

must have and maintain liability coverage for nonsudden 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).

Regulation of Residues

40 CFR 261.4(a)(24)(vi)(E) provides that any residuals that are generated from reclamation 

processes must be managed in a manner that is protective of human health and the environment. 

If any residuals exhibit a hazardous characteristic according to Subpart C of 40 CFR Part 261, or 

if they themselves are specifically listed in Subpart D of 40 CFR Part 261, such residuals are 

hazardous wastes and must be managed in accordance with the applicable requirements of 40 

CFR Parts 260 through 272.

Requirement for a Permit

The transfer-based exclusion 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 hazardous secondary material generator notified 

the appropriate authorities of hazardous secondary materials 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 hazardous secondary material 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 non-complier with RCRA Subtitle C? If the reclamation facility or any 

intermediate facility that is used by the hazardous secondary material 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 hazardous secondary material 

generator have credible evidence that the facilities will manage the hazardous secondary

materials properly?
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 Does the available information indicate that the reclamation facility and any intermediate 

facility that is used by the hazardous secondary material generator have the equipment 

and trained personnel to safely recycle the hazardous secondary material?

 If residuals are generated from the reclamation of the excluded hazardous secondary

materials, 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 hazardous secondary 

material 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 transfer-based exclusion 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 

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 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;
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 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. 

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.

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). 
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Examples of Technical Standards under the Clean Air Act

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 “offsite 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.

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. The table below gives examples of CAA regulations that could apply

to area sources that are exempt from a permit. Some of these 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. 56 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 offsite 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.

 

56 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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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:

 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).
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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 

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, offsite 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.
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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 

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 
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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 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. 

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).

Offsite Transportation

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).

Part 172 lists and classifies those materials which the Department of Transportation 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 §172.101) 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 section 172.101.
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 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 2 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 2 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).

 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.

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. 

Offsite Transportation

Subpart A of Part 397 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
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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 

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 
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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. 

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., 1910.120(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 the U.S. Environmental Protection Agency. In addition, the 

employer must also follow procedures for handling emergency incidents (e.g., offsite 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
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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 must also 

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 
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OSHA established “Hazard Communication” (HazCom) at 29 CFR 1910.1200. The purpose of

the HazCom Standard 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. 

The HazCom Standard 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, the HazCom Standard 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, described below.

Personnel Training

Employers must provide specified information and training to employees. Specifically, 

employees must be informed of the requirements of the HazCom Standard, 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.
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Attachment B. Waste and Facility Classification Methodology
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Classification of Wastes as “Wastewaters” or “Nonwastewaters”

Classification of waste streams into wastewaters” and “nonwastewaters” is important 

because wastewaters are generally dilute streams with low levels of recoverable material and are 

generally not amenable to recycling. In classifying wastes as “wastewaters” or 

“nonwastewaters,” it is important to consider that: (1) the only concrete regulatory definition of 

wastewater under RCRA is specific to the Land Disposal Restrictions (LDR) Program (40 CFR 

Part 268)57 and (2) the Biennial Report does not contain a data element that indicates positively

whether a hazardous waste is wastewater or nonwastewater according to this or any other 

definition. Thus, EPA used a methodology that relies on some of the data reported to the 

Biennial Report to determine if a waste is a wastewater or nonwastewater. The methodology

uses both the form code and the management method code to make a reasonable judgment as to 

whether a particular waste is a wastewater or nonwastewater. 

Note, that, in some instances, a waste may be managed using more than one type of 

management method (i.e., the waste may be associated with more than one management method 

code). As a result, this waste may be classified as both a wastewater and a nonwastewater. To 

ensure consistency in the classification of the wastes when dealing with generated and/or

managed waste, the methodology was applied in two steps. First, EPA applied the methodology

to managed wastes. Then, EPA applied the methodology to generated wastes, based on data 

developed for the managed wastes. 

A detailed description of the methodology that was used to classify wastes as 

“wastewaters” or “nonwastewaters” is provided below.58

Classification of Managed Wastes

To classify managed wastes, EPA used the following methodology:

59

 If the waste is represented by one of the following waste form codes, it was classified 

as a “wastewater:”

Form Code Form Code Description

W101 Very dilute aqueous waste containing more than 99% water 

W103 Spent concentrated acid 

W105 Acidic aqueous wastes less than 5% acid

W107 Aqueous waste containing cyanides

W110 Caustic aqueous waste without cyanides

W113 Other aqueous waste or wastewaters

 

57

 The LDR Program ensures that land disposed hazardous waste does not pose a threat to human health and the 

environment. This is accomplished by setting treatment standards for all hazardous waste bound for land disposal. 

These treatment standards ensure that the hazardous waste is properly treated to destroy or immobilize hazardous 

chemical constituents components before it is land disposed. 

58

 This methodology is consistent with the methodology used to classify waste streams as “wastewaters” or 

“nonwastewaters” in the Priority Chemical (PC) Biennial Report (BR) Measurement Methodology developed by the 

Office of Resource Conservation and Recovery (ORCR).

59

 The methodology used in this analysis to classify waste streams as “wastewaters” or “nonwastewaters” differs 

from the methodology used in the development of the National Biennial Report (NBR). In particular, the form 

codes and management method codes used in this analysis to identify waste streams with “wastewater

characteristics” differ from those used in the NBR (i.e., form codes: W101, W105, and W113; management method 

codes: H071, H073, H075-H077, H081-H083, H121-H124, H129, and H135). EPA believes that the methodology

used in this analysis is a better approach for analyzing generation and management of hazardous wastes.
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Form Code Form Code Description

W119 Other inorganic liquid (specify in comments)

 If the waste lacks a waste form code that would support a wastewater or 

nonwastewater designation, but is managed using one of the following management 

methods, it was classified as “wastewater:”

Management 

Method Code Management Method Code Description

H071 Chemical reduction with or without precipitation

H073 Cyanide destruction with or without precipitation

H075 Chemical oxidation

H076 Wet air oxidation

H077 Other chemical precipitation with or without pre-treatment

H081 Biological treatment with or without precipitation

H082 Adsorption

H083 Air or steam stripping

H103 Absorption

H121 Neutralization only

H122 Evaporation

H123 Settling or clarification

H124 Phase separation

H134 Deepwell or underground injection (with or without treatment)

H135 Discharge to sewer (Publicly Owned Treatment Works [POTW] 

or surface water (National Pollutant Discharge Elimination 

System [NPDES] with prior storage - with or without treatment)

 If the waste had not been classified as a wastewater in the previous steps, it was

classified as “nonwastewater.”

Classification of Generated Wastes 

As described above, in some instances, a generated waste may be managed using more 

than one type of management method. As a result, this waste may be classified as both a 

wastewater and a nonwastewater. For example, a waste represented by form code W604 (i.e., 

paint or ink sludges, still bottoms in sludge form) that is managed using H081 (i.e., biological 

treatment with or without prior precipitation) and H112 (i.e., macro-encapsulation prior to 

disposal at another site) would be classified as both a wastewater and nonwastewater; the portion 

of the waste managed using H081 would be classified as a wastewater, while the portion of the 

waste managed using H112 would be classified as a nonwastewater.

Based on the above considerations and to ensure consistency with the classification of the 

managed wastes, the following approach was followed in classifying generated wastes as 

“wastewaters” or “nonwastewaters:”

 If a managed waste was classified as “wastewater” only, the generated waste was also 

classified as “wastewater.”

 If a managed waste was classified as “nonwastewater” only, the generated waste was 

also classified as “nonwastewater.”
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 If a managed waste was classified as both “wastewater” and “nonwastewater:”

o Estimated the quantity of wastewater and nonwastewater associated with the 

waste. 

o Compared the estimated waste quantities and, based on the greater quantity, 

classified the waste as either “wastewater” or “nonwastewater.”

o In instances in which the wastewater and nonwastewater quantities were the same, 

EPA referred to the form code to make a determination. Wastes represented by

the following form codes were classified as “wastewaters,” While the remaining 

wastes were classified as “nonwastewaters.” 

Form Code Form Code Description

W101 Very dilute aqueous waste containing more than 99% water 

W103 Spent concentrated acid 

W105 Acidic aqueous wastes less than 5% acid

W107 Aqueous waste containing cyanides

W110 Caustic aqueous waste without cyanides

W113 Other aqueous waste or wastewaters

W119 Other inorganic liquid (specify in comments)
Attachment C. Waste Code Group Methodology
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Facilities may report multiple EPA hazardous waste codes for each waste, which can 

pose problems with double-counting when analyzing the data by waste code. To make this type 

of analysis more manageable, a methodology was developed to map waste code combinations 

into a single, unique code that applies to the entire waste stream. These mutually exclusive 

codes are referred to as “waste code groups.”

In general, the methodology prioritizes waste codes that provide the most specific 

information regarding what makes the waste hazardous. Most waste code groups correspond to 

an EPA hazardous waste code, indicating that either the waste does not include any similar or 

more specific waste codes (e.g., wastes that only include a single waste code). The remaining 

waste code groups correspond to “families” of codes, indicating that a group of similar waste 

codes comprise the most specific waste codes reported (e.g., wastes with multiple Toxicity

Characteristic (TC) Metals [D004-D011] may be assigned the code “TCMT”).

The waste code group methodology consists of 27 steps that were implemented in a stepwise manner, following an established hierarchical order. That is, if a waste’s waste codes met 

the criteria at a given step, it was assigned to the corresponding waste code group for that step

and the methodology ended. However, if a waste’s waste codes did not meet the criteria for the 

step, the methodology continued to the next step until the waste was assigned to a waste code 

group. 

A detailed description of the logic used to define the waste code groups and assign 

individual waste streams to each of these groups is provided below, and summarized in 

Exhibit C-2.

Wastes Represented by a Single EPA Hazardous Waste Code

1. The waste was assigned to the waste code group associated with the reported EPA 

hazardous waste code.

Example: A waste represented by “D001,” was assigned to the “D001” waste code 

group.

Wastes Represented by Multiple EPA Hazardous Waste Codes

2. If the list of waste codes representing the waste included “LABP” (or Lab Packs), the 

waste was assigned to the “LABP” waste code group. Note that, in addition to the 

“LABP” waste code, the list of waste codes for this waste could include any K, F, U, 

P, or D waste code(s). 

Example: A waste represented by “D003;D011;LABP;P104;P106,” was assigned to 

the “LABP” waste code group.
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3. If the list of waste codes representing the waste included “F039,” the waste was

assigned to the “F039” waste code group. Note that, in addition to the “F039” waste 

code, the list of waste codes for this waste could include any K, F, U, P, or D waste 

code(s). 

Example: A waste represented by “F039;K027;U221;U223,” was assigned to the 

“F039” waste code group.

4. If the list of waste codes representing the waste included a single K waste code, the 

waste was assigned to the waste code group associated with the reported K waste 

code. Note that, in addition to the reported K waste code, the list of waste codes for 

this waste could include any F, U, P, or D waste code(s). 

Example: A waste represented by “D004;D007;F032;F035;K001,” would be 

assigned to the “K001” waste code group.

5. If the list of waste codes representing the waste included multiple K048-K052 waste 

codes, the waste was assigned to the “KPET” waste code group. Note that, in 

addition to the reported K048-K052 waste codes, the list of waste codes for this waste 

could include any F, U, P, or D waste code(s). The list of waste codes may not 

include any other K code. 

Example: A waste represented by “D001;D003;D018;F037;K050;K051,” was

assigned to the “KPET” waste code group.

6. If the list of waste codes representing the waste included multiple K waste codes

(other than multiple K048-K052 wastes codes), the waste was assigned to the 

“KXXX” waste code group. Note that, in addition to the reported K waste codes, the 

list of waste codes for this waste could include any F, U, P, or D waste code(s).

Example: A waste represented by “D018;K171;K172;U220,” was assigned to the 

“KXXX” waste code group.

7. If the list of waste codes representing the waste included a single F waste code (other 

than F039), the waste was assigned to the waste code group associated with the 

reported F waste code. Note that, in addition to the reported F waste code, the list of 

waste codes for this waste could include any U, P, or D waste code(s). 

Example: A waste represented by “D001;D002;D003;F002;U044,” was assigned to 

the “F002” waste code group.
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8. If the list of waste codes representing the waste included multiple F001-F005 waste 

codes, the waste was assigned to the “F1_5” waste code group. Note that, in addition 

to the reported F001-F005 waste codes, the list of waste codes for this waste could

include any U, P, or D waste code(s). The list of waste codes may not include any 

other F code. 

Example: A waste represented by “D001;D039;F001;F005,” was assigned to the 

“F1_5” waste code group.

9. If the list of waste codes representing the waste includes multiple F006-F009 waste 

codes, the waste was assigned to the “F6_9” waste code group. Note that, in addition 

to the reported F006-F009 waste codes, the list of waste codes for this waste could

include any U, P, or D waste code(s). The list of waste codes may not include any 

other F code. 

Example: A waste represented by “D003;D008;F007;F008;P106,” was assigned to 

the “F6_9” waste code group.

10. If the list of waste codes representing the waste included multiple F010-F012 waste 

codes, the waste was assigned to the “F10_12” waste code group. Note that, in 

addition to the reported F010_-F012 waste codes, the list of waste codes for this 

waste could include any U, P, or D waste code(s). The list of waste codes may not 

include any other F code. 

Example: A waste represented by “D003;F010;F011,” was assigned to the “F10_12” 

waste code group.

11. If the list of waste codes representing the waste includes multiple F020-F028 waste 

codes, the waste was assigned to the “F20S” waste code group. Note that, in 

addition to the reported F020-F028 waste codes, the list of waste codes for this waste 

could include any U, P, or D waste code(s). The list of waste codes may not include 

any other F code. 

Example: A waste represented by “D037;D042;F021;F027,” was assigned to the 

“F20S” waste code group.

12. If the list of waste codes representing the waste included multiple F032-F035 waste 

codes, the waste was assigned to the “F30S” waste code group. Note that, in addition 

to the reported F032-F035 waste codes, the list of waste codes for this waste could

include any U, P, or D waste code(s). The list of waste codes may not include any 

other F code. 

Example: A waste represented by “F032;F034,” was assigned to the “F30S” waste 

code group.
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13. If the list of waste codes representing the waste included multiple F037-F038 waste 

codes, the waste was assigned to the “PSLU” waste code group (i.e., petroleum 

sludges). Note that, in addition to the reported F037-F038 waste codes, the list of 

waste codes for this waste could include any U, P, or D waste code(s). The list of 

waste codes may not include any other F code. 

Example: A waste represented by “D018;F037;F038,” was assigned to the “PSLU” 

waste code group.

14. If the list of waste codes representing the waste included multiple F waste codes

(other than the combination of F waste codes noted above), the waste was assigned to 

the “FMIX” waste code group. Note that, in addition to the reported F waste codes, 

the list of waste codes for this waste could include any U, P, or D waste code(s).

Example: A waste represented by “D001;D026;F003;F032;U188,” was assigned to 

the “FMIX” waste code group.

15. If the list of waste codes representing the waste included a single U waste code and 

no P waste codes, the waste was assigned to the waste code group associated with the 

reported U waste code. Note that, in addition to the reported U waste code, the list of 

waste codes for this waste could include any D waste code(s). 

Example: A waste represented by “D002;U001,” was assigned to the “U001” waste 

code group.

16. If the list of waste codes representing the waste included multiple U waste codes and 

no P waste codes, the waste was assigned to the “UMIX” waste code group. Note 

that, in addition to the reported U waste codes, the list of waste codes for this waste 

could include any D waste code(s). 

Example: A waste represented by “D001;U118;U162,” was assigned to the “UMIX” 

waste code group.

17. If the list of waste codes representing the waste included a single P waste code and 

no U waste codes, the waste was assigned to the waste code group associated with the 

reported P waste code. Note that, in addition to the reported P waste code, the list of 

waste codes for this waste could include any D waste code(s). 

Example: A waste represented by “D001;D003;D004;P001,” was assigned to the 

“P001” waste code group.
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18. If the list of waste codes representing the waste included a combination of U and P 

waste codes, the waste was assigned to the “U&PS” waste code group. Note that, in 

addition to the reported U and P waste codes, the list of waste codes for this waste 

could include any D waste code(s). 

Example: A waste represented by “D001;P022;P098;P119;U239,” was assigned to 

the “U&PS” waste code group.

19. If the list of waste codes representing the waste includes multiple P waste codes and 

no U waste codes, the waste was assigned to the “PMIX” waste code group. Note 

that, in addition to the reported P waste codes, the list of waste codes for this waste 

could include any D waste code(s). 

Example: A waste represented by “P012;P105;P119,” was assigned to the “PMIX” 

waste code group.

20. If the list of waste codes representing the waste included a single D waste code and 

one or more invalid waste codes, the waste was assigned to the waste code group 

associated with the reported D waste code. 

Example: A waste represented by “0000;D008,” was assigned to the “D008” waste 

code group.

21. If the list of waste codes representing the waste included one of the D004-D017 waste 

codes and one or more of the D001-D003 waste codes, the waste was assigned to the 

waste code group associated with the reported D004-D017 waste code. The list of 

waste codes could not include any other D code. 

Example: A waste represented by “D001;D002;D007,” was assigned to the “D007” 

waste code group.

22. If the list of waste codes representing the waste included multiple D004-D011 waste 

codes and one or more of the D001-D003 waste codes, the waste was assigned to the 

“TCMT” waste code group (i.e., TC metals). The list of waste codes could not 

include any other D code. 

Example: A waste represented by “D001;D007;D008,” was assigned to the “TCMT” 

waste code group.

23. If the list of waste codes representing the waste included multiple D012-D017 waste 

codes and one or more of the D001-D003 waste codes, the waste was assigned to the 

“PEST” waste code group (i.e., TC pesticides). The list of waste codes could not 

include any other D code. 

Example: A waste represented by “D016;D017,” was assigned to the “PEST” waste 

code group.
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24. If the list of waste codes representing the waste included one or more of the 

D018-D043 waste codes and one or more of the D001-D003 waste codes, the waste 

was assigned to the “TCORICR” waste code group (i.e., TC organic with ignitable, 

corrosive, or reactive). The list of waste codes could not include any other D code. 

Example: A waste represented by “D001;D018,” was assigned to the “TCORICR” 

waste code group.

25. If the list of waste codes representing the waste included multiple D018-D043 waste 

codes, the waste was assigned to the “TCOR Only” waste code group (i.e., TC 

organics only). The list of waste codes could not include any other D code. 

Example: A waste represented by “D019;D022,” was assigned to the “TCOR Only” 

waste code group.

26. If the list of waste codes representing the waste included multiple D001-D003 waste 

codes, the waste was assigned to the “ICR” waste code group (i.e., ignitable, 

corrosive, or reactive). The list of waste codes could not include any other D code. 

Example: A waste represented by “D001;D003,” was assigned to the “ICR” waste 

code group.

27. If the list of waste codes representing the waste included multiple D waste codes

(other than the combination of D codes noted above), the waste stream was assigned 

to the “DMIX” waste code group. 

Example: A waste represented by “D002;D004;D011;D028;D035,” was assigned to 

the “DMIX” waste code group.
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Exhibit C-1: Waste Code Group Methodology

Step 

Number

Reported EPA Hazardous Waste Code(s)

Most Specific Waste Code Group

Waste Code(s)

Other Waste Code(s)

that May Be Present 

1 Single waste code None Same waste code as reported

2 Lab packs with no identified code 

(i.e., “LABP”)

Any K, F, U, P, or D waste code(s) LABP

3 F039 Any K, F, U, P, or D waste code(s) F039

4 Single K code Any F, U, P, or D waste code(s) Single K code

5 K048-K052 combinations only Any F, U, P, or D waste code(s)

No other K waste codes

KPET

6 K code combinations Any F, U, P, or D waste code(s) KXXX

7 Single F code Any U, P, or D waste code(s) Single F code

8 F001-F005 combinations Any U, P, or D waste code(s)

No other F waste codes

F1_5

9 F006-F009 combinations Any U, P, or D waste code(s)

No other F waste codes

F6_9

10 F010-F012 combinations Any U, P, or D waste code(s)

No other F waste codes

F1012

11 F020-F028 combinations Any U, P, or D waste code(s)

No other F waste codes

F20S 

12 F032-F035 combinations Any U, P, or D waste code(s)

No other F waste codes

F30S

13 F037/F038 combinations Any U, P, or D waste code(s)

No other F waste codes

PSLU (Petroleum sludges)

14 Any other F mixtures Any U, P, or D waste code(s) FMIX

15 A single U code Any D waste code(s)

No P waste codes

The U code

16 U mixtures Any D waste code(s)

No P waste codes

UMIX

17 A single P code Any D waste code(s)

No U waste codes

The P code

18 U and P mixtures Any D waste code(s) U&PS

19 P mixtures Any D waste code(s) PMIX

20 A single D code Any invalid code The D code

21 Any single D004-D017 code One or more D001-D003 code The D code (D004-D017)

22 D004-D011 combinations One or more D001-D003 code TCMT (TC Metals)

23 D012-D017 combinations One or more D001-D003 code PEST (TC Pesticides)

24 One or more D018-D043 code One or more D001-D003 code TCORICR (TC organic with ICR)

25 D018-D043 combinations None TCOR Only (TC organics only)

26 D001-D003 combinations only None ICR (Ignitable, Corrosive, or Reactive)

27 Any other D mixtures None DMIX
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Attachment D. Methodology for Identifying Potentially Recyclable 

Hazardous Wastes
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The Regulatory Impact Analysis (RIA) developed for the Definition of Solid 

Waste (DSW) Rule60 uses a two-step data screening (i.e., data selection) process or 

methodology to identify potentially recyclable hazardous wastes. This methodology is 

applied to wastes reported to the Biennial Report that are managed through methods other 

than recycling (i.e., methods other than metals recovery, solvents recovery, or other 

recovery).

A detailed description of the methodology for identifying potentially recyclable 

hazardous wastes is provided below. 

Step 1: Primary screening criteria to identify wastes disposed of containing 

constituents of potential commodity value

The first data screening step is structured according to each of the three Biennial 

Report recycling methods: metals recovery, solvent recovery, and other recovery. Each 

materials recovery method is categorized as a “commodity group” according to the 

respective types of materials involved in each of these three recovery methods. EPA

identified and assigned the screening codes based on determining whether each of the

codes pertained to metals, solvents, or to other types of materials contained in the wastes 

which might be amenable for recovery in the three commodity groups. 

Possible Metals Recovery

 If the waste is represented by one of the following waste form codes, it is 

assigned to this commodity group:

Form Code Form Code Description

W107 Aqueous waste containing cyanides

W117 Waste liquid mercury

W303 Ash

W304 Slags, drosses, and other solid thermal residues

W307 Metal scale, filings and scrap (including metal drums)

W312 Cyanide or metal cyanide bearing solids, salts or chemicals

W316 Metal salts or chemicals not containing cyanides

W501 Lime and/or metal hydroxide sludges and solids with no cyanides

W505 Metal bearing sludges (including plating sludge) not containing cyanides

W506 Cyanide-bearing sludges

 

60

 EPA, Regulatory Impact Analysis - USEPA’s 2008 Final Rule Amendments to the Industrial Recycling 

Exclusions of the RCRA Definition of Solid Waste, September 25, 2008. Available online at: 

http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480728a11, last accessed 

on May 25, 2010.
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 If the waste is not associated with any of the above waste form codes, but is 

represented by one of the following source codes, it is assigned to this 

commodity group:

Source Code Source Code Description

G03 Plating and phosphating (electro- or non-electroplating or phosphating)

G04 Etching (using caustics or other methods to remove layers or partial 

layers)

 If the waste is not associated with any of the above waste form or source 

codes, but is represented by one of the following EPA hazardous waste codes, 

it is assigned to this commodity group:

Waste Code Waste Code Description

D005 Barium

D006 Cadmium

D007 Chromium

D008 Lead

D009 Mercury

D010 Selenium

D011 Silver

F006, F007, F008, F009 Metal electroplating

F010, F011, F012 Metal heat treating

F019 Sludge from conversion coating of aluminum

F035 Inorganic wood preservative waste (arsenic or chromium)

K002, K003, K004,

K005, K006, K007, K008 Inorganic pigment mfg sludge & residues (listed for chromium)

K064, K065, K066,

K069, K086, K100 Lead- or chromium-bearing

K061 Iron & steel mfg emission dust

K071, K073, K106,

K176, K177, K178 Inorganic chemical manufacturing

K171, K172 Petroleum refining spent catalysts

 Note that, if the waste stream is represented by waste form code W312 

(cyanide or metal cyanide bearing solids, salts or chemicals) and EPA 

hazardous waste code K088 (aluminum production spent potliners), it is 

moved from Commodity Group #1 (Possible Metals Recovery) to Commodity

Group #3 (Possible Other Recovery). Wastes that fit this description are 

generally not recycled by metals recovery, but by other recovery processes. 
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Possible Solvents Recovery

 If the waste is represented by one of the following waste form codes, it is 

assigned to this commodity group:

Form Code Form Code Description

W202 Concentrated halogenated (e.g., chlorinated) solvent

W203 Concentrated non-halogenated (e.g., non-chlorinated) solvent

W204 Concentrated halogenated/ non-halogenated solvent mixture

W209 Paint, ink, lacquer, or varnish

W211 Paint thinner or petroleum distillates

 If the waste is not associated with any of the above waste form codes, but is 

represented by one of the following source codes, it is assigned to this 

commodity group:

Source Code Source Code Description

G01 Dip, flush or spray rinsing (using solvents to clean or prepare parts or 

assemblies for further processing - i.e. painting or assembly)

G06 Painting and coating (manufacturing, building, or maintenance)

 If the waste is not associated with any of the above waste form or source 

codes, but is represented by one of the following EPA hazardous waste codes, 

it is assigned to this commodity group:

Waste Code Waste Code Description

F001, F002,

F003, F004, F005 Spent solvents

F024, F025 Chlorinated aliphatic manufacturing

K086 Solvent washes of ink equipment

Possible Other Recovery (Carbon Regeneration and Sodium Fluoride)

 If the waste is represented by the following waste form code, it is assigned to 

this commodity group:

Form Code Form Code Description

W310 Filters, solid adsorbents, ion exchange resins and spent carbon (spent 

carbon only)

 If the waste is not associated with the above waste form code, but is 

represented by the following EPA hazardous waste code, it is assigned to this 

commodity group:

Waste Code Waste Code Description

K088 Aluminum production spent potliners (sodium fluoride)
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 Note that, if the waste is represented by waste form code W312 (cyanide or 

metal cyanide bearing solids, salts or chemicals) and EPA hazardous waste 

code K088 (aluminum production spent potliners), it is moved from 

Commodity Group #1 (Possible Metals Recovery) to Commodity Group #3

(Possible Other Recovery). Wastes that fit this description are generally not 

recycled by metals recovery, but by other recovery processes. 

Step 2: Secondary screening criteria (physical quality)

The purpose of these secondary screening criteria is to introduce a consideration 

of the anticipated physical quality of the waste. The secondary screening criteria consist 

of six elements as follows:

(1) Remove wastes that were residuals from hazardous waste management 

processes. Residuals generated by either (a) current materials recovery

operations (H010, H020, H039), (b) energy/fuel recovery operations (H050, 

H061), or (c) thermal destructive treatment processes (H040), are assumed 

not to have a high content of recoverable material and are assumed will 

continue to be disposed. This corresponds to removing wastes with source 

code G25. Wastes that are disposed of with RCRA waste codes F006 and 

F007 were retained because these potentially recoverable wastes were often 

reported using this source code because they are derived from wastewater 

treatment processes.

(2) Remove wastes generated from industrial processes that are not continuous 

(e.g., those generated from remediation or one-time industrial activities). 

The material values from these wastes are less likely to be recoverable given 

they are not generated in a controlled process environment (i.e., remediation 

wastes involve spills and releases to the environment). Given their one-time 

nature of generation, generators are unlikely to go through the notification 

process to the Agency for an exclusion from the definition of solid waste for 

a one-time waste generation event. This corresponds to removing baseline 

disposal data records corresponding to three sets of non-continuous source 

codes: (a) spills and accidental releases G31, G32, G33, G39, (b) 

remediation of past contamination G41, G42, G43, G44, G45, G49, and (c) 

non-periodic activities G12, G15, G19.

(3) Remove wastes with waste descriptions containing the word “debris” from 

the data set. The material values from these wastes are less likely to be 

recoverable given they are not generated in a controlled process 

environment. Given their one-time nature of generation, generators are 

unlikely to go through the notification process to the Agency for an 

exclusion from the definition of solid waste for a one-time waste generation 

event.
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(4) Remove wastes with waste descriptions indicating they are “rinsewaters” or

“groundwaters” to ensure the physical makeup of the waste (i.e., the 

minimal recoverable material concentration) is technically sufficient for 

recovery. These dilute aqueous-based wastes typically do not contain 

recoverable fractions of valuable materials. This screening criterion was 

only applied to wastes with no reported form code. Normally wastes like 

these would have a reported form code of W101-- very dilute aqueous waste 

containing more than 99% water and W105-- acidic aqueous wastes with

less than 5% acid.

(5) Remove some miscellaneous wastes: 

 On-site Commodity Group #2 quantities were primarily managed by

non-beneficial incineration (H040), or by beneficial energy recovery 

(H050), or beneficial fuel blending (H061). For the purposes of the 

RIA, it was assumed that facilities that generate and managed wastes on 

site via beneficial energy or fuel recovery (i.e., H050 or H061) will not 

change to a materials recovery process under the 2008 DSW final rule 

exclusions. All these processes require relatively large on-site capital 

investments and air pollution control permitting costs, which make it 

less likely that on-site H040, H050 or H061 wastes will switch over to 

materials recovery under the 2008 DSW final rule. . This corresponds to 

removing wastes corresponding to on-site management involving H040, 

H050 and H061. Note, however, that the RIA does not remove wastes

corresponding to off-site management involving H040, H050, and H061.

 All records with form code W310 not containing the word “carbon” or 

“charcoal” in the waste description were deleted. This is necessary

because the definition of the W310 physical/chemical form code allows 

reporting together in this single code for four different types of 

materials: (1) filters, (2) solid adsorbents, (3) ion exchange resins, and 

(4) spent carbons. Because of the lack of characterizing data on the 

other three waste types—filters, solid adsorbents, and ion exchange, 

only spent carbon from these four waste types is evaluated.

(6) Because of the fact there are tens of thousands of individual wastes in the 

Biennial Report for any given data year, it was beyond the time and resource 

constraints of the RIA to individually examine each narrative comment for 

wastes containing the “other” code sub-categories. This corresponds to 

removing wastes for H129 “other treatment.” The “other” form codes 

already were removed by their exclusion from the “primary” screening 

selection criteria.
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Attachment E. Statistical Calculations

Affected Population Ratio

The Affected Population Ratio is calculated as follows. 

There is a disparity if pr1/pr2 ≠ 1,

where 

pr1 = prob(within 3-km of facility | in demographic group)

pr2 = prob(within 3-km of facility | not in demographic group)

pr1/pr2 = the Affected Population Ratio.

Demographic Ratio

The Demographic Ratio is calculated as follows:

There is a disparity if pr3/pr4 ≠ 1, 

where

pr3 = prob(in demographic group | within 3-km of facility)

pr4 = prob(in demographic group | not within 3-km of facility).

pr3/pr4 = the Demographic Ratio.

Fisher Exact Test

The Fisher Exact test is calculated as follows (Kendall and Stuart, 1973, sections 33.19 and 

33.20):

The Fisher Exact Test calculates the probability that the demographic distributions of the 

affected and non-affected populations are as or more extreme than the observed counts. 

Let H be the total number in the demographic group and N be the total number not in the 

demographic group. Let A be the total number living within 3 km of a facility and let U 

be the total number not living within 3 km of a facility. Let x be the number of persons in 

the demographic group that also live within 3 km of a facility. Given the values of H, N, 

A, and U, the Fisher Exact Test probability (p-value) is twice the sum of the probabilities 

of all possible x values equal to or above the observed x (but cannot be more than 1). 

When some of H. N, A, and U are too large, the software is unable to compute the pvalue which is reported as “N/A” and in such cases the Kendall Test results can be used 

as a good approximation.
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Kendall Test

The Kendall test is calculated as follows (Kendall and Stuart 1973, sec 33.22):

Std Error (pr1-pr2) = [q(1-q){n/(n-1)}{(1/H + 1/N)} ]1/2

SD = (pr1-pr2)/[ Std Error (pr1-pr2)]

= (pr1-pr2)/[ q(1-q){n/(n-1)}{(1/H + 1/N)}]1/2, 

where n = total population, 

q = total within 3-km of facilities/n, 

H = total in demographic group, and 

N = total not in demographic group, and

SD = the number of standard deviations that the difference (pr1-pr2) is 

away from 0, the value indicating no disparity under the null hypothesis. 

Mantel-Haenszel Common Relative Risk

The procedure developed by Mantel and Haenszel (see Agresti, 2002) was used to 

estimate the overall Affected Population Ratio and Demographic Ratio for all states that 

have one or more facilities. Assume that all the states have the same underlying Affected 

Population Ratio. Using the notation in the above table, the Affected Population Ratio for 

a given state is estimated by {a / (a + b)} / {c / (c +d)}. The common Affected Population 

Ratio is estimated using the formula

Common Affected Population Ratio = {∑ a(c + d) / n} / {∑ c(a + b) / n},

where each sum is over all the tables for the individual states. It can be shown that this 

value is a weighted average of the state-specific Affected Population Ratios.

In a similar manner, the Demographic Ratio for a given state is estimated by {a / (a + c)} 

/ {b / (b +d)}. The common Demographic Ratio is estimated using the formula

Common Demographic Ratio = {∑ a(b + d) / n} / {∑ b(a + c) / n},

where each sum is over all the tables for the individual states. It can be shown that this 

value is a weighted average of the state-specific Demographic Ratios.

Cochran-Mantel-Haenszel Test

The procedure developed by Cochran, Mantel and Haenszel (see Cochran, 1954 and 

Mantel and Haenszel, 1959) was used to test whether there was a disparity in one or more 

of the states that have one or more facilities. The null hypothesis is that the underlying 

Threshold Risk Ratio is equal to one for all the states, which is mathematically the same 
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as saying that the underlying Demographic Ratio is equal to one for all the states, which 

in turn is the same as the null hypothesis that the location (within or not within 3 km of a 

facility) and demographic group are statistically independent for each and every state. 

The statistical test is mathematically identical to the Kendall test if there is only one state 

that has a facility.

Using the same notation as above, the test statistic is:

χ

2

= ∑ {a – (a+b)(a+c)/n}2/ ∑ {(a+b)(a+c)(b+d)(c+d)/(n3 – n

2

)}

The sum is over all the state tables. The p-value is the probability that a chi-square 

distribution with 1 degree of freedom exceeds χ2.

References

Agresti, A. 2002. Categorical Data Analysis, Second Edition, New York, John Wiley and 

Sons.

Cochran, W. G. 1954. Some methods for strengthening the common χ2tests. Biometrics

10: 417-451.

Kendall, M.G. and A. Stuart. 1973. The advanced theory of statistics, Third Edition. 

Griffin. London.

Mantel, N. and W. Haenszel. 1959. Statistical aspects of the analysis of data from 

retrospective studies of diseases. J. Natl. Cancer Inst. 22: 714-748.
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Attachment F. Acronyms and Abbreviations

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
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EPA Please see U.S. EPA

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 
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LQG Large quantity generator

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 
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ppmw Parts per million by weight

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
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VOC Volatile Organic Compound

W

WR Waste Received from Off-site
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Attachment G. 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
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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
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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

Geographic 

Information 

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, 
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System 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.

I

Integrated Risk 

Information 

a human health assessment program that evaluates quantitative and 

qualitative risk information on effects that may result from 
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System 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.

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.
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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.

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. 
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RCRA also set forth a framework for the management of nonhazardous 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

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.
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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.
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Attachment H: EPA Initial 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. 
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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.

EPA will defer further 

consideration of additional 

diagrams and analyses until 

after publication of the 2011 

proposed rule.
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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.
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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. 

EPA will defer further 

consideration of additional 

diagrams and algorithms until 

after publication of the 2011 

proposed rule.

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 GeneratorControlled ExclusionTypographical errors were 

corrected.
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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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Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

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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Charge 

Question 

No.

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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Charge 

Question 

No.

Comment 

No. Reviewer Comment EPA Response

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 [Non-Industrial 

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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Charge 

Question 

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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Charge 

Question 

No.

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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Charge 

Question 

No.

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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Charge 

Question 

No.

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.
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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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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.
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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. EPA will defer additional

analyses until after publication 

of the 2011 proposed rule. 

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.

EPA will defer large-scale 

format changes until after 

publication of the 2011 

proposed rule.

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.
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No.

Comment 

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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.

EPA will defer large-scale 

format changes until after 

publication of the 2011 

proposed rule.

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.
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Comment 

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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. 

EPA will defer large-scale 

format changes until after 

publication of the 2011 

proposed rule.

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.
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Comment 

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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.

EPA will defer large-scale 

format changes until after 

publication of the 2011 

proposed rule.

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 D5 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.
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Comment 

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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.

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 cradle-tograve 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)
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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 former, 

it would add value to outline some of the ways in which that experience 

shaped the discussion / selection of the scenarios. 

EPA added discussion of how 

scenarios were chosen to 

Section 2.1.

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.
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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 

to controls, environmental monitoring and inspections increases or 

reduces community protection?

EPA added language to 

sections discussing storage that 

applied to containers.

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 
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Comment 

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endocrine disruptors.

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 nonrandomly 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.
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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.

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.
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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. 

Other factors such as low birth 

weight will require additional 

analysis. EPA will defer 

additional analyses until after 

publication of the 2011 

proposed rule.

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.

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.
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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 will defer 

additional analyses, such as the 

sensitivity of the analysis to the 

diameter of the radius, until 

after publication of the 2011 

proposed rule. 

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.
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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 will defer additional

analyses, such as alternative 

demographic characteristics, 

until after publication of the 

2011 proposed rule. 

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.

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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. 

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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.

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.
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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.

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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.

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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). 

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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.

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

4h - 2 150 Henshel Yes – this provides a better comparison group – a counterfactual. EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

4h - 3 151 Daley See 2. above. EPA will defer additional

analyses until after publication 
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Question 

No.

Comment 

No. Reviewer Comment EPA Response

of the 2011 proposed rule.

4h - 3 152 Ferris This comparison may yield information about metropolitan areas where 

disproportionate impacts exist.

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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.

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

4h - 3 155 Henshel Yes, this also would be a very appropriate comparison to include. EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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.

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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).

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.
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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
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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 
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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.

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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.

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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).

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.
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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/). 

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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. 

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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.

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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. 
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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.

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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.
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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.
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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. 

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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.

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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 will defer additional

analyses until after publication 

of the 2011 proposed rule.
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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 will defer additional

analyses until after publication 

of the 2011 proposed rule.

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.

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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?

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

1a 43 Daley Yes, the Introduction is clear. It is easy to follow and well organized. N/A

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
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Question 

No.

Comment 

No. Reviewer Comment EPA Response

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

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
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Question 

No.

Comment 

No. Reviewer Comment EPA Response

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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Question 

No.

Comment 

No. Reviewer Comment EPA Response

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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Question 

No.

Comment 

No. Reviewer Comment EPA Response

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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Question 

No.

Comment 

No. Reviewer Comment EPA Response

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

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, 

N/A
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Question 

No.

Comment 

No. Reviewer Comment EPA Response

notify the public or implement public involvement.

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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Question 

No.

Comment 

No. Reviewer Comment EPA Response

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

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 

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.
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Question 

No.

Comment 

No. Reviewer Comment EPA Response

elaboration. 

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. 

EPA will defer additional

analyses until after publication 

of the 2011 proposed rule.

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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Question 

No.

Comment 

No. Reviewer Comment EPA Response

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 

socioeconomic factors such as income, housing values, education, and 

employment status.

N/A
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Question 

No.

Comment 

No. Reviewer Comment EPA Response

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)

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)
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No.

Comment 

No. Reviewer Comment EPA Response

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)

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 cradleto-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)
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No.

Comment 

No. Reviewer Comment EPA Response

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)

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)
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Question 

No.

Comment 

No. Reviewer Comment EPA Response

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 were 

handled similar to those substances categorized under Universal Wastes?

N/A (comment on 2008 DSW

rule)