## Environm ental Justice Analysis of t he Definition of Solid Waste Rule

DRAFT FOR PUBLIC COMMENT

June 30 , 201 1
Office of Solid Waste and Emergency Response U.S. Environmental Protection Agency 1200 Pennsylvania Avenue Washington D.C. 20460i

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### 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 b y a consideration of a number of different issues, an environmental justice anal ys is i s one of several analy ses the Agency uses when developing regulations. The environmental justice anal ys is may

be qualitative and/or quantitative and is designed to provide the appropriate information on disproportionate ly high and adverse impacts to minority and/or low

- income populations to decision

- makers. To the extent an environmental justice analy sis reveals potential disproportionate ly

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 extracti n g , refining, and processing of raw materials. However, the goals of resource conservation and waste reduction must never occur at the expense of one o f 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 petition 3 requesting EPA revoke the DSW rule. The petition raised a number of issues questioning the protectiven ess of the rule, particularl y 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 r eused 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

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– Do not C ite or Quote communities from the rule, and the adequacy of EPA’s anal ys is 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 anal ys is did not take into account whether the conditions of the rule would operate as effectivel y 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 anal ys is of the potential disproportionate impacts of the 2008 DSW final rule. A draft methodology

for the analy sis 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 anal ys is. The methodology

for the DSW environmental justice analy sis 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 DS W 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 i dentifying 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., r elease of contamination to any environmental media or abandoned materials that require cleanup, i njury to a person such as a worker or resident , or d amage 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 rele ases. 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

- com pliance and releases to the environment and also strategies to mitigate any impacts identified under S tep 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.htmiii

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– Do not C ite or Quote The draft environmental justice anal ys is 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 anal ys is 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 analy sis. Finding 1: Hazardous Secondary Material Recycling Does Pose Significant Potential Hazards The first step of the DSW environmental justice anal ys is 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 conducte d 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, indepen d ent of any presumption or consideration of health and safety or regu latory 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 phy sicall y 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 ty pes 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 beca use 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.iv

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– Do not C ite or Quote However, what the 2008 anal ys is failed to take into account was whether the conditions of the rule

—including the “contained” standard

— would operate as effectivel y i n 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, particularl y public participation requirements, which were not considered under the 2008 DSW final rule. A more detailed comparative anal ys is 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 bene fits 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 wa ste management practices are protective of human health and the environment

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Summary of Potential Impacts of the 2008 DSW Final Rule

Und er Different Recycling Scenarios Hazardous Waste Baseline DSW Practices Summary of Potential Impacts

Scenario 1: Generator continues current recycling practices Generator rec ycles material onsite under hazardous waste regulations Generator rec ycles material onsite under generator - controlled exclusion Potential i ncreased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures Generator sends material offsite for rec ycl ing to RCRA
permitted facility under hazardous waste regulations Generator sends material offsite for rec ycling at a RCRA
- permitted facility under transfer

- based exclusion Potential i ncreased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures No change in risk at rec ycling facility

. Generator exports material under hazardous waste regulations for rec ycling in another country Generator exports material under the transfer

- based exclusion for rec ycling 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 rec ycling facility

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– Do not C ite or Quote 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 regulation s Generator rec ycles material onsite under generator - controlled exclusion Potential i ncreased risk to human health and the environment at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures Potential r educed transportation risk due to switch from off

- site disposal to on - site recycling Potential r educed 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 regulation s Generator sends material offsite for rec ycling 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 i ncreased risk in communities surrounding generator off

site 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 r educed risk in communities surrounding existing off

- site treatment/disposal facilities

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– Do not C ite or Quote 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 b y landfilling under hazardous waste regulation s Generator sends material offsite for rec ycling at a RCRA
permitted facility

under transfer

- based exclusion Potential i ncreased risk at generator due to longer accumulation times, great er 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 i ncreased resou rce conservation benefits due to switch from disposal to recycling. Potential r educed 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 t o a RCRA permitted facility for treatment followed b y landfilling under hazardous waste regulation s Generator sends material offsite for rec ycling 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 r educed risk in communities surrounding existing off

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– Do not C ite or Quote 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 b y landfilling under hazardous waste regulation s Generator exports material under the transfer

- based exclusion for rec ycling 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 r educed risk in communities surrounding existing off

- site treatment/disposal faciliti es.ix

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– Do not C ite or Quote Hazardous Waste Baseline DSW Practices Summary of Potential Impacts Scenario 7 : Generator switches from off - site recycling at a facility without a permit 6 to 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 regulation s Generator sends material offsite for recycling at a facility under generator controlled 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 recycli ng 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 finan cial assurance conditions. Potential r educed risk in communities surrounding previousl y used off

- site rec ycling facility .

6 Under the RCRA hazardous waste regulations, facilities that recycle immediately without storing the hazardous wa ste do not need a RCRA permit.x

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– Do not C ite or Quote 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 RCRA
permitted facility under hazardous waste regulation s 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 Potential ly Impacted by this Increase i n Risk of Adverse Impacts are Minority and Low - Income Communities , and i n Some Cases t he Populations Potentially Impacted a re Disproportionately Minority a nd/ o r Low Income The second and third steps of the DSW environmental justice anal ys is 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 identifie d facilities that can represent the facilities that are likely to take advantage of the 2008 DSW final rule . These facilities are grouped i nto four different categorie s: 1. F acilities 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”);xi

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– Do not C ite or Quote 2. Facilities in EPA’s An Assessment of Environmental Problems Associated with Recycling of Hazardous Secondary Materials 7 , many of which operated under exclusions or reduced regulations (hereafter referred to as “damage case facilities”); 3. H azardous waste facilities that are likel y 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. F acilities currentl y rec ycl ing 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 d emographics of the communities within a three kilometer radius around these facilities, and determined whether they were disproportionately minority or low

income compared to the nation as a whole, and compared to the population in the state. Disproportio nality

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

- level anal ys is, 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 potentiall y affected communities and the comparison group, the greater the potential disproportionality

. In the chart below, the only category that consistently

demonstrates the potential for disproporti onate 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 s from 6

- 8%.

7 This document contains inform ation 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

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Community - Level A nalysis 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 low

income representation (average difference) State Comparison

% communities with higher minority representation (average difference) State

Comparison % communities with higher low

income represent ation (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 analy sis 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 co ncern (minority or low

income) 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 conce rn, 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 analy sis shows a greater incidence of potential disproportionate impact to minority and low

- income populations than the community

- level analy sis. For the population

level anal ys is, the potential for disproportionate impact (i.e., rati os greater than one) occur under all categories, while the community

- level analy sis 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 conc ern 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.xiv

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– Do not C ite or Quote Finding 4: Underlying Vulnerabilities Traditionally Associated with Minority and Low Income Communities Pose the Potential to Exacerbate Potential Adverse I mpacts of the DSW Rule Inaddition 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 analy sis 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. 8 These factors are described under five broad categories : (1) s usceptible p opulations , (2) multiple and cumulative e ffe cts , (3) unique e xposure p athway s , (4) a bility to p articipate in the d ecision

- m aking p rocess , and (5) p hy sical i nfrastructure

. 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: a bility to p articipate in the d ecision

- m aking p ro cess, and multiple and cumulative e ffects

. 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 historicall y 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, t aking 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 ty

pes and number of regulated activities taking place in their community as well as the requirements, conditions, and parameters b y 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 ty

pes 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 , particularl y 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

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– Do not C ite or Quote competing interests are set forth more effectivel y. 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 c onditions (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 slowl y, and thus pose a higher health risk, in low income communities. An anal ys is of the cumulative effects from multiple stressors can provide a more complete evaluation of a population’s health risks from pollutants. For example, an anal ys is of discrete stressors and effects on a population might conclude that nearb y pollution sources are within regulatory

limits; however, an anal ys is 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 o f 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 f

acilities within the three kilometer area. Finding 5: There a re Poten tial Preventative and Mitigative Steps t hat EPA Could Explo re to Address the Potential Adverse Impacts to Minority and Low - Income Communities The sixth and final step of the DSW environmental justice analy sis 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 analy sis. 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 organizin g 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 suppl y treatment plant, or air pollution contro l facility and other discarded material...resulting from industrial, commercial, mining and agriculturalxvi

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– Do not C ite or Quote activities.” In exercising its discretion in the 2008 DSW final rule to define what constitutes “discard” for hazardous secondary materials reclamation i n 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 way s that could increase environmental protection, inclu ding in environmental justice communities, while still appropriatel y 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 address ing the concerns regarding third

party recyclers, including the impact of longer accumulatio n 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 “c ontained” standard would be one way of address ing 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

woul d help ensure that hazardous secondary material is being legitimatel y rec ycled 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 mi tigate any potential adverse impacts. These steps include closel y 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.Draft

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– Do not Cite or Quote i 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 Ty

pes 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 Ro ute, 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 Ty pe and Scenario

................................ ................................ ................................ ........................... 29 2.4 Summary

of Comparative Results by Facility Ty pe 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 b y Facility T ype and Scenario

...... 68 2.5.3 Other Impacts

................................ ................................ ................................ ........... 70 3 Id entification of Potentially Affected Communities

................................ ................................ 74 3.1 Facilities that Have Already Notified EPA that They

Will Be Managing Hazardous Secondary

Mat erials under the 2008 DSW Final Rule (40 CFR § 260.42)

................................ ................................ ................................ ............................ 74 3.2 Facilities Currentl y Generating or Managing Hazardous Secondary Materi als that May Choose to Operate under the DSW Rule

................................ ................................ 75 3.2.1 Facilities Currentl y Managing Recyclable Hazardous Wastes

................................ 75 3.2.2 Facilities Currentl y Generating Recyclable Hazardous Wastes

.............................. 78 3.2.3 Facilities Currentl y Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule

................................ ................................ . 80 3.3 Facilities Not Currentl y Generating or Managing Hazardous Secondary Materials that May Choose to Reclaim them under the 2008 DSW Final Rule

............................ 81 4 Analy sis 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 Anal ys is

................................ ............................ 84 4.2.2 Areal Apportionment Method

................................ ................................ .................. 84Draft

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– Do not Cite or Quote ii 4.2.3 Comparison of Demographic Characteristics of Affected Population versus Comparison Population

................................ ................................ ........................... 85 4.2.4 Statistical Analy sis

................................ ................................ ................................ ... 86 4.3 Statistical Comparison of Demographic Characteristics of Affected Population versus Comparison Population

................................ ................................ ....................... 86 4.4 Results of Demographic Analy sis

................................ ................................ ................... 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 Pathway s ................................ ................................ ................... 110 5.1.4 Ability

to Participate in Decision

- Making Process

................................ ................ 110 5.1.5 Phy sical Infrastructure

................................ ................................ ........................... 111 5.2 Summary

of Anal ys is of Factors that Affect Vulnerability for 40 Notifi cation Facilities

................................ ................................ ................................ ........................ 112 6 Conclusions

................................ ................................ ................................ ............................ 117 6.1 In formation Sy

nthesis: 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 Adversel y 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

- In come Communities, and in Some Cases the Populations Potentially Impacted Are Disproportionat ely Minority and/or Low Income
................................ ................................ ................ 130 6.1.4 Underl yi ng Vulnerabilities Traditionally Associated with Minority and Low

In come Communiti es Pose the Potential to Exacerbate Potential Adverse Impacts of the DSW Rule

................................ ................................ ...................... 133 6.2 Potential Preventative and Mitigative Steps th at 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
- 1Draft

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– Do not Cite or Quote iii Attachment D. Methodology for Identifying Potentially Recyclable Hazardous Wastes

.......... D
- 1 Attachment E. Statistical Calculations

................................ ................................ ......................... E
- 2 Attachment F. Acronym s 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 Analy sis

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

............................ 91 Table 4.4.1.2. DSW Rule National Demographic Comparison Analy sis of Statistical Significance for Notification Facilities

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

................................ . 92 Table 4.4.1.4. DS W Rule Iowa Demographic Comparison Anal ys is of Statistical Significance for Notification Facilities

................................ ................................ ................................ .............. 92 Table 4.4.1.5. New Jersey D emographic Comparison for Notification Facilities

....................... 93 Table 4.4.1.6. DSW Rule New Jersey Demographic Comparison Analy sis of Statist ical Significance for Notification Facilities

................................ ................................ ......................... 93 Table 4.4.1.7. Penns yl vania Demographic Comparison for Notification Facilities

.................... 94 Table 4.4.1.8. DSW Rule Pennsylvania Demographic Comparison Analy sis 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 Analy sis of Statistical Significance (Urban) for Notification Facilities

................................ ................................ ........... 95 Table 4.4.1.11. Rural Demographic Comparison for Notification Facilities

............................... 96Draft

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– Do not Cite or Quote iv Table 4.4.1.12. DSW Rule National Demographic Comparison Analy sis 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 Analy sis of Statistical Significance for Damage Case Facilities

................................ ................................ ...................... 98 Table 4.4.2.3. State Demographi c 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 Analy sis 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 Analy sis of Statistical Significance for Non

Hazardous Industrial Waste Facilities

................................ ................................ ........................ 106 Table 4.4.4.3. State Demographic Comp arison 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 Hazardou s Waste and Generators of Hazardous Secondary Materials under DSW Generator

- Controlled Exclusion A
- 15 Table A

- 2. Comparison of Fe deral 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
- 65Draft

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– Do not Cite or Quote 1 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 exclude s certain hazardous secondary materials 9 from regulation under Subtitle C of the Resource Conservation and Recovery Act (RCRA), as amended (73 FR 64663). Specificall y, EPA amended 40 CFR Part 261 to provide that hazardous secondary materials (HSM s ) 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 appl y to EPA for a formal determin ation 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 requ esting 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 th at 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 anal ys is 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, particularl y public parti cipation requirements. After receiving the petition and communicating with stakeholders , EPA committed to conducting an expanded an al ys is of the environmental justice ( EJ ) impacts of the 2008 DSW final rule. This draft analy sis 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 lay s out a general approach for anal yz ing 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 t o conduct anal ys es 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 de scribed in Table 1.1.

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

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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 (inc luding 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 i dentifying 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 t he likelihood of “damages” (i.e., r elease of contamination to any environmental media or abandoned materials that require cleanup, i njury 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

- com pliance and releases to the environment and also strategies to mitigate any impacts identified under S tep 5. This document describes the approach and results of Steps 1 through 5. The draft anal ys es 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 W

aste Final Rule Environmental Justice Analysis , followin g 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 th e 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 anal ys es  Familiarity

with RCRADraft

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– Do not Cite or Quote 3  Expertise in statistics  Famili arity

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. Doroth y M. Daley , Un iversity 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 independentl y 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 W aste Final Rule Environmental Justice Analysis adequatel y reviews, presents, analyze s, 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 acrony ms, 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 St ates 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 generall y agreed with EPA’s anal ys is 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 atDraft

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– Do not Cite or Quote 4 least one other stressor, such as TRI facilities or road density , should be added to the anal ys is. 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 analy sis If the public would like to commit on how EPA addressed the peer review comment or on what additional anal ys es 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 anal ytic approaches to make the analy sis 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 unti l 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 ju stice anal ys is. Most of the deferred revisions are ones that would affect the demographic analy sis presented in Chapter 4 of this report. Because reviewers generally agreed with EPA approach to this anal ys is, EPA has determined that it is adequate for th e purposes of obtaining public comment. In order to make efficient use of resources , EPA plans to make all adjustments to the anal ys is at the same time (responding to both peer review and public comments). Examples of adjustments EPA will consider inc lude:

 Perform the demographic anal ys is 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 anal ys isDraft

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– Do not Cite or Quote 5  Consider additional damage cases in the analy sis 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 on e of the categories in the demographic anal ys is. 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 anal ys is 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 foun d 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 specifi c to the 2008 DSW final rule than to the anal ys is itself. For a full list of comments that EPA has determined are not applicable, see Attachment H

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– Do not Cite or Quote 6 1.3 Purpose and Organization of Document This report presents EPA’s draft anal ys is of EJ issues under the 20 08 DSW final rule, which has been performed in accordance with the DSW EJ Analy sis 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 un der the 2008 DSW final rule. It first describes the ty pes, quantities, and health hazards associated with HSMs and the ty pes of hazards (e.g., releases) that could occur at generator, transporter, and intermediate, and reclaimer facilities managing such m aterials

. It then presents a qualitative anal ys is 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 reasonabl y l ikely scenarios in which HSM s may potenti all y 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 notif ication to EPA or the state), and that may be likel y 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 HSM s have equipment and processes that may be easily adapted to recycling HSM s , and therefore may

be likel y t o begin recycling HSM s under the DSW exclusion.
 Chapter 4 presents an analy sis of demographic data about the communities surrounding the facilities identified in Chapter 3. EPA performed the anal ys is 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 popul ations susceptible to DSW hazards, multiple and cumulative effects of releases and contamination, and unique exposure pathway s.
 Chapter 6 summarizes the conclusions from the EJ draft analy sis described in this report.Draft

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– Do not Cite or Quote 7 2 Hazard Characterization 2.1 Overview of Scenarios u nder the DSW Exclusion This section describes the scenarios that EPA used to identify and anal yz e the hazards associated with managing HSM under the haz ardous waste regulations (the baseline) and DSW exclusions. Generators , transporters, and intermediate and reclamation facilities may manage HSM s in several different way s 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 way s that generators and facilities are managing HSM s under the existing hazardous waste regulations (i.e., before they

claim an exclusion). The DSW practices reflect way s that these same generators and facilities are managing, or might manage , HSMs after they claim an exclusion under the 2008 DSW final rul e . 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 p ractices 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 anal yz ed each provision of the DSW ru le and identified how it might impact generation and management practices . This anal ys is 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 poss ible 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 typ es of conditional exclusion s from the S ubtitle C hazardous waste regu lations 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 HSM s 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 describe s whether it is applicable to facilities operating un der the GCE, TBE, or both. Petition

- Based Exclusion s are not considered in this analy sis 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 ty pe 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 legitimatel y 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.Draft

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– Do not Cite or Quote 8 For each scenario, EPA also considered whether the facility is permitted under RCRA, and the descriptions below i dentify 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 th em unlikely to occur. These scen arios are briefl y 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 h as 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 reclaim ing 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. Scena rio 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 b y / 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: Genera tor 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 b y 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. Sce nario 7: Generator switches from off - site recycling at a facility without a permit 10 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 ty pe of facility

under the TBE. This could include, for example, a generator that ships HSM offsite for re clamation at a TSDF in the United States without a

10 Under the RCRA hazardous waste regulations, facilities that recycle immediately without storing the hazardous wa ste do not ne ed a RCRA permit.Draft

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– Do not Cite or Quote 9 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 al so 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 unlikel y to occur. These unlikel y 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 unlikel y because switching from on

- site recycling to off

- site recycling is likely

to result in additional transportation costs. Generators that make this ty

pe of change are unlikel y to do so as a result of the 2008 DSW final rule.
 A generator that has been reclai ming 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 ty pe of change are unlikel y to do so as a result of the 2008 DSW final rule. Both of these unlikel y scenarios are based largel y 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 exclus ions 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 th e exclusions face the same general level of transportation costs as under the baseline , and therefore are unlikel y to find a financial benefit to switch ing to off

- site reclamation. In addition, other factors may also discourage these generators from switch ing 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 rem oving the equipment could be a disincentive to switching to off

- site reclamation . In addition, some generators’ reclamationDraft

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– Do not Cite or Quote 10 activities and equipment may be highl y 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 suf ficient 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

- p ermitted 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 regulation s Generator reclaims material onsite under GCE

Scenario 3: Generator switches from off - site d isposal 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 regulation s 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 RCRA permitted facility Generator sends material offsite to a RCRA permitted facility

for incineration or landfilling under hazardous waste regulation s Generator sends material offsite for reclamation at a RCRA

- permitted facility under TBEDraft

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– Do not Cite or Quote 11

Table 2.1. Scenarios under Baseline and DSW Exclusions Baseline DSW Practices Scenario 5 : Generator switches from off - site disposal to off

- site recycling at a U.S. facility without a RCRA permit Generator sends material offsite to a RCRA permitted facility

for incineration or landfilling under hazardous waste regulation s 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 regulation s 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 regulation s  Generator sends material offsite for reclamation at a facility under GCE, or  Generator exports material under the TBE f or 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 TBEDraft

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– Do not Cite or Quote 12

Table 2.1. Scenarios under Baseline and DSW Exclusions Baseline DSW Practices Scenario 8: Generator switches from off - site recycling at a RCRA - permitted facility or exporting waste for recycling to another type of recycling under the 2008 DSW final rule Generator sends material offsite for reclamation to RCRA

- permitted facility un der hazardous waste regulation s  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 regulation s 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 TBEDraft

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– Do not Cite or Quote 13 2.2 General Hazards Associated with Hazardous Secondary Material This section describes the general hazards associated with HSM s when managed b y 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 D SW rule is conducted may be at risk of exposure to the hazards associated with HSM. Section 2.2.1 identifies the ty pes, quantities, and properties of HSM that are generated and reclaimed nationally and describes their chemical and ph ys ical properties. Be cause 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 ty pes 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 focus es on th e hazards associated with these HSMs , the EJ anal ys is 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 HSM s , 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 ty pes, quantities, and properties of HSMs. evaluated It identifies the ty pes and quantities of HSMs generated, and using that information, identifies two specific HSMs that are the selected as the focus of this report

— spent solvent s 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 pathway s, and human health effec ts. Types and Quantities of Hazardous Secondary Material Each ye ar, many types of hazardous waste are recycled, each possessing distinct quantities and properties. In 2007, the most recent ye ar for which comprehensive information about the generation and management of hazardous waste is available, over 370 ty pes of hazardous waste codes contained in 40 CFR 261 were recycled. The se waste codes include a wide variety of materials, including aqueous streams, referred to as wastewaters , streams that contain organic liquids , or phy sicall y solid materials, referred to as nonwastewaters. These materials also include a wide variety of w astes 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 to ns 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.Draft

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– Do not Cite or Quote 14 Preliminary Draft - Do Not Ci te 8 

# Figure 1: Hazardous Waste Recycled in

20 07

Sources: 2007 Biennial Report

– GM Onsite and Offsite Form s

ORCR' s Draft E xp ort/I mp ort Databa se F1_5

TC MT F003 F006 F037

TC ORI CR Re ma in in g 370 Waste Code Grou ps
F005 D007 KXXX K171 K0 88 K061

D0 01 D008 K061 - El ect ri c a rc fu rn ace dus t F1 _5 - M ix

tu re of F0 01-F 005 so lv

ents D001 - Ig nitable was te D008 - L ead was te TC MT - M ix ed to xi cit y ch aracter is ti c me ta ls F0 03 - Sp ent

n on-halogenated so lv

ents TC OR IC R - M ix

ed to xi cit y ch aracter is ti c organics F0 06 - Wa stewat er tre at me nt s ludges K088 - Sp ent

p ot liners F0 37 - Pe tro leum re fi nery p rim ar y sl udges K171 - Sp ent

h yd ro tre at ing ca ta ly

st KX XX - M ix tu re o f Kwas te c ode was te s D007 - C hrom ium w as te F0 05 - Sp ent

n on-halogenated so lv

ents Rem aining 370 Wa ste Code Gro ups 8% 36% 13%
10%

8% 6%

EPA’s An Assessment of Env ironmental Problems Associated W ith 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 ty pes of potential hazards from the mis management of HSMs. 12 The most common ty pes 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 material s, solvents and electric arc furnace dust, as a focus of this report because they

represent a relativel y large amount of HSMs that would be eligible for exclusion under the 2008 DSW final rule, as well as represent a vari ety of characteristics of HSMs, as described below. S pecificall y, s olvent waste s 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 currentl y rec ycl ed, and the potential hazards posed b y solvents. The potential hazards

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

- HQ
- RCRA
- 2002
- 0031
- 0355
.Draft

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– Do not Cite or Quote 15 posed by sol vents are discussed in the S ection 2.2.2 . In addition , solvents that are recycled are ty picall y in a liquid state, and usual ly 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 r ange 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 waste s becau se these two types of HSM s represent a variety of characteristics of HSM s . 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 wa ste piles, while solvents are generall y 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 generall y 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 alre ady covered b y 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 b y 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 HS M s: 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 : solvent s and electric arc furnace dust . It discusses the media, exposure routes, and health effects to understand the hazardous properties of these HSM s 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 effect s associated with selected chemicals they contain, including whether they are expected to present a fire or explosion hazard. The chemicals used as solvents can generall y be classified into two broad groups : halogenated volatile organics and nonhalogenat ed 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 grou p that is generall y 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 , su ch as EPA’s Integrated RiskDraft

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– Do not Cite or Quote 16 Exposure Routes by Media Contaminated Soil:  Dermal (skin contact with contaminated soil)  Oral (ingestion of contaminated soil)  Inhalation (volatilization of contaminants from s oil)  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) In formation Sy stem (IRI S) at http://www.epa.gov/IRI S/ and the Agency for Toxic Substances and Disease Registry

website (http://www.atsdr.cdc.gov/ ). For electric arc furnace dust , the he alth effects are expected to be related to the toxic metals it contains. 40 CFR Part 261 , Appendix VII, “Basis for L isting 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, n on - ferrous metals , mercury lamps and mercury

- c ontaining equipment , and l ead

- 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 asses sment 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 rout e affects the ty pe of s ymptoms 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 gastro intestinal 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 impact s 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 cont aminate water, air, and soil. Of the recycling related damage cases, soil andDraft

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– Do not Cite or Quote 17 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 R oute - 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 exp osures 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 bodil y harm. Explosions and fire can also create exposure pathway s for chemical exposures and sources of environmental contamination. For example, toxic fumes from a fire can have eff ects on a population nearb y 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 sy stem or organ is affected ; for example, developmental, reproductive, neurological, immune sy stem, circulatory s ys tem, 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 s ymptoms can be grouped based on what biological sy stem is being affected to cause the sy mptom set. Solvents Solvents may

contaminate soil or groundwater from leaks, spills or other releases. Because they tend to be volatile, they also are likel y to be released to the air by advection and dispersion into the atmosphere . Solvents may cau se 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 typicall y contained in them , and the hazards associated with an example that is representative of the typ e of solvent.

Halogenated Solvents Agents

- H alogenated solvents used in degreasing include: 13 tetrachloroethylene (PERC) , trichloroeth yl ene, methylene chloride, 1,1,1

- trichloroethane, carbon tetrachloride, and chlorinated fluorocarbons. Dry cleaning solvents and brake cleaners include halogenated solvents , such as: tetrachloroethylene (PERC), trichloroeth yl ene, meth yl ene chloride, 1,1,1

- trichloroethane, 1,1,2
- trichloroethane, 1,2,2

- trifluoroethane, ortho

dichlorobenzene, trichlorofluoromethane, 1,1,2

- trichloroethane, and chlorobenzene.

13 http://web.mit.edu/environment/ehs/topic/rcra_ref/epa_nonspecific.html http://www.hsia.org/ Ex amples of Halogenated Solvents Uses:  Brake cleaners
 Dry cleaning
 Food processing
 Household cleaners
 Metal cleaning
 Synthesis of other chemicals
 Water repellants
 Silicone lubricants
 Spot removersDraft

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– Do not Cite or Quote 18 Example agent

- tetrachloroethylene (P ERC)

. Environmental Fate 14

– Tetrachloroeth yl ene 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 moderatel y degraded b y reaction with photochemicall y produced h ydrox ylradicals. Environmental Toxicity

– Based on fish studies, tetrachloroethyl ene 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 Effects 15

–  Inhalation

– Irritating to the upper respiratory tract. Giddiness, headach e, 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 s ys tem after a few minutes.
 In gestion

– Not highl y 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. Sy mptoms include redness, itching, and pain. May be absorbed through the skin with possible sy stemic effects.
 Eye Contact

– Causes irritation, redness, and pain.
 Aggravation of Pre

- existing Conditions

– Persons with pre

- existing skin disorders o r eye problems or impaired liver or kidney function may

be more susceptible to the effects of th is substance. The use of alcoholic beverages enhances the toxic effects. Chronic exposure human health effects

– May cause liver, kidney

or central nervous s ys t em 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 degrad ation to phosgene (highl y toxic) and hydrogen chloride (corrosive). Vapors are heavier than air and collect in low

- lying areas. Explosion

- Not considered an explosi ve hazard. Containers may explode , however, when involved in a fire.

Non

-Halogenated Solvents Agents 16

- Paint thinners include: acetone, x yl ene, 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=48Draft

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– Do not Cite or Quote 19 Carburetor dip cleaner includes: cresols, cres yl ic acid, and nitrobenzene. Lacquer th inners include: toluene, methyl ethyl ketone, carbon disulfide, isobutanol, py ridine, benzene, 2

- ethox yethanol, and 2

- nitropropane. Example agent

- benzene

. Environmental Fate 17

– When release d to the soil or water, benzene will rapidly

begin to volatilize. However, b enzene also migrates in soil and in groundwater . Its airborne levels can be reduced b y rain or water spray . Benzene in the atmosphere will photo

degrade with a calculated half

- life of 13.4 day s. This is accelerated in polluted atmospheres co ntaining nitrogen or sulfur oxides. By

- products include phenol, nitrophenols, nitrobenzene, formic acid, and perox ya cetylnitrate. It is a "precursor" hydrocarbon leading to the formation of photochemical smog. Benzene biodegrades in soils and ground wat ers (half

- life 16

- 28 day s) under aerobic conditions. Limited degradation occurs under anaerobic conditions. Environmental Toxicity 18

– 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 effects 19

 Inhalation

– Excessive inhalation may result in heartbeat irregularities and adverse central nervous s ys tem 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 s ys tem, kidney and liver damage, and/or cancer (leukemia).
 In gestion

– In gestion of benzene may result in adverse central nervous s ys tem effects , including headache, sleepiness, dizziness, nausea, loss of coordination, and in extreme c onditions , 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. Prolonge d 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 ty pes of leukemia. The International Agency for Research on Cancer ( IA RC ) and the Occupational Safety and Health Administration ( OSHA ) consi der 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/do cs/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.htmlDraft

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– Do not Cite or Quote 20 effects , including anemia. Progressive deterio ration of the hematopoietic function expressed as a decrease in absolute l ymphocy te 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 Agents 20

- 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 generall y, 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 s teel manufacturing) and furnace additives. Environmental Fate 8

– Based on its various co nstituents , 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 env ironment 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 cont aining bioaccumulated metals. Acute exposure human health effects 21

 Inhalation

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

to a substance) may

occur from acute inhalation exposure.
 In gestion

– 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
– Electri c 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 h ealth 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]), n asal perforation and nasal cavity damage, eye inflammation, permanent central nervous s ys tem

20 Cascade Steel Rolling Mills, Inc. 2001. Material safety data sheet: Electric arc furnace dust. Available online at http://www.cascadesteel.com/documents/mill/msds/eaf_dust.pdf

. 21 Gerdau Amisteel. 2008. Material safety data sheet: steel mill electric arc furnace dust. Available online at http://www.gerdauameristeel.com/products/msds/docs/Mill

English/Steel%20Mill%20Electric%20Arc%20Furnace%20Dust%20MSDS%20(NA)%2012

- 8
- 08.pdfDraft

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– Do not Cite or Quote 21 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 be en determined, though hexavalent chromium may cause cancer. Furthermore, a study b y Garaj

- Vrhovac 22 et al. indicates that electric arc furnace dust can cause DNA damage. Fire 23

– Electric arc furnace dust is not flammable. Explosion 11

– Accumulation of d ust can lead to explosion if near an ignition source. Hexavalent Chromium 24

– 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 . Occup ational exposure to hexavalent chromium may

also cause respiratory

s ys tem cancers , primaril y in the bronchi and nose. In gestion: Ingestion of hexavalent chromium may lead to death. Subjects who died of oral exposure experienced various sy mptoms , includi ng 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 b y s ymptoms , 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 l evels of lead may cause cerebrovascular disease, increased blood pressure and other cardiovascular problems, gastrointestinal effects, anemia (a blood disorder with sy

mptoms , such as weakness and fatigue), dental caries (cavities) in children, kidney

effec ts, lowered IQ and other neurotoxic effects (e.g., dizziness, memory loss), and hormonal effects. 25 Cadmium 26

– Inhalation: Short

- term, high

- level inhalation exposure to cadmium can cause death in humans several day s after exposure, ultimately caused b y resp iratory

failure or other

22 Garaj

- Vrohovac, V; Oreščanin, V; Ruk, D; et al. 2008. In vitro assessment of genotoxic effects of electric arch furnace dust on human lymphocytes using the alkaline comet assay. J Environ Sci and Health Part A 44:279

- 287. 23 Cascade Steel Rolling Mills, Inc. , 2001 24 AT SDR. 2009. Toxicological profile for chromium . Available online at http://www.atsdr.cdc.gov/ToxProfiles/TP.asp?id=62&tid=17#bookmark07

. 25 AT SDR. 2007. Toxicological profile for lead: Health effects. Available online at http://www.atsdr.cdc.gov/toxprofiles/tp13

- c3.pdf

. 26 AT SDR. 2009. Toxicological profile for cadmium : Health effects . Available online at http://www.atsdr.cdc.gov/toxprofiles/tp5

- c3.pdfDraft

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– Do not Cite or Quote 22 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 become s more severe with flu

- like s ymptoms , such as chills and cough. Several day s later, s ymptoms include wheezing, persistent cough, malaise, anorexia, nausea, and abdominal pain. The initial flu

- like sy mptoms do not occur with a low

- level, chronic exposure to cadmium. However, chronic inhalation exposure over years can lead to decreases in lung function, emphy sema and dy spnea (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 strongl y linked to kidney effects when exposure levels are high, while there is weak evidence that cadmium can affect the immune sy stem. Animal studies show th at inhaled cadmium can affect the offspring of exposed mothers b y 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 l ikely in the lung. In gestion: 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 ing ested 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 orall y- exposed animals/humans is limited. Most cancer studies have not found an increase in cancer a mong people or animals exposure orall y 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 HSM s, as well as so me 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 independentl y 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
.Draft

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– Do not Cite or Quote 23 Table 2. 2 . Summary of Potential Hazards Facility Type HSM Fire Explosion Soil Water Air Particulate Wind Dispersal Residues

fr om Reclam ation 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 HSM s . Generators may

temporaril y 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 immediate ly 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 collec t 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, distillati on is the process used most frequentl y to recycle spent solvents. The process separates chemicals by the addition of heat, which causes the more volatile compounds, ty pically the solvent to be recovered, to vaporize. The vaporized solvent is then condens ed 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. Sy stems used for on

- site distillation may include fixed or mobile trailer sy stems 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, phy sicall y processing it by briquetting an d 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.Draft

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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 highl y flammable, and can ignite to create fires and explosions. Because solvent s 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 p rocess 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 transportatio n 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 m ay 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 trans port 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 d esired 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 desc ribed 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 dispersalDraft

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– Do not Cite or Quote 25 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 b y 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 generator s (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, n itrogen 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 involvi ng 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 i gnited, 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 b y the liquid added to theDraft

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– Do not Cite or Quote 26 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 rec ycling 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 accord ance 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 phy sical processes to remove impurities, or other processing steps. This may be performed in tanks, containers or other eq uipment. 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 frequentl y to recycle spent solvents . The process separates chemicals by the addition of heat, which causes the more volatile compounds, ty picall y 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 Temper ature 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 generall y the same as those for on

- site recycling processes, which are described above in Section 3.2.1.Draft

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– Do not Cite or Quote 27 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 thro ugh 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

- s ite. 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 s usceptible 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 eq uipment (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 sourc e.
 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.Draft

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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 L ist http://www.epa.gov/epawaste/hazard/wastetyp es/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 O ther 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.pdfDraft

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– Do not Cite or Quote 29 2.3 Regulatory Comparison - Summary of Comparative Results by Facil ity Type and Scenario This section presents the results of EPA’s comparis on of the full RCRA Subtitle C hazardous waste regulation s (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 L iability Act (CERCLA) , the Emergency

Planning and Community Right

- to Know Act (EPCRA) , the Hazardous Materials Transportation Act (HMTA) , and the Occupational Safety and Health A dministratio n (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 comparat ive results is present ed in a table that summarizes the regulatory differences and consequences b y facility typ e and scenario. This section only

summarizes the key

regulatory differences that may

lead to a change in impacts to human health and the environm ent under the 2008 DSW rule. A more detailed comparative anal ys is 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 CommunicationDraft

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Generators Following is a discussion of the key differences and consequences in the federal regulation of g enerators 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. Specificall y, the hazardous waste regulations require generators to ship hazardous waste off

- site every

90 or 180/270 day s (depending on generator size and type of activity involved) , where as the DSW exclusions require generators to recycle (or ship for recycling) 75% of the ir 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 m aterial be “contained , ” but do not prescribe specific technical sta ndards 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 s tandards 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 help s to prevent releases. T he DSW exclusions do not include prescriptive requirements

. The DSW exclusions allow more flexibility in how HSMs can be contained. S ome generators and facilities under the DSW exclusions may choose to follow the hazardous waste regulations for their units, particularl y 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 recycli ng 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 ty pe of recycling under the 2008 DSW final rule 8. Generat or switches from off

- site recycling at a RCRA

- permitted facility or exporting waste for recycling to another ty pe of recycling under the 2008 DSW final ruleDraft

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– Do not Cite or Quote 31 In addition, the GCE allows generators to manage their HSM in land

- based units (e.g., surface impoundments, piles) but the exclusio n 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 st andards. T he DSW exclusion s 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 b y large quantity generators, whereas the DSW exclusions do not include such prescriptive requirements

. 28 S ome 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 l evel 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 stringe nt 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 produce s 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 ) i f it generates greater than 100 kg but less than 1,000 kg of hazardous waste in a calendar month

.

28 Air emission regulations for process vents, equipment leaks, and storage units are applicable to 90

- day generators/TSDF s manag ing 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 contain ed in “equipment” for at least 300 hours/calendar year , and/or an average vo latile 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 InvolvementDraft

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– Do not Cite or Quote 32  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 generall y subject to more stringent requirements than SQGs. For example, L QGs must prepare and follow a contingency plan for emergencies, conduct recurring personnel training on emergency

proce dures, and compl y with the full breadth of tank s ys tems 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 L QG 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 generator contro lled 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 day s for LQGs , or 180/270 day s for SQGs (depending on ty pe 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. Inaddition, it allows generators to manage their HSM in land

- based uni ts 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 comparab le 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 record s. 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. So me generators may switch from off - site reclamation or treatment/ disposal at a RCRA permitted 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 standa rds /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. Inaddition, it allows generators to manage their HSM in land

- based units without a permit or interim

- status. R eclaimers and treatment and disposal facilities must have a permit to manage hazardous waste in land

- based un its.Draft

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– Do not Cite or Quote 33 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 haz ardous 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. T he 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 o f generation for the purposes of appl yi ng the hazardous waste determination requirements of 40 CFR 262.11. This raises the possibility

that some residual s 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 ty pes of reporting helps the regulatory

agency to plan and prioritize inspections, making enforcement more effective and potentially

increasing compliance. Transporters Follo wing 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 subje ct 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, packag ing, labeli ng, marking, placarding, parking, and driving . The DOT regulations appl y 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 generator

controlled exclusion and the transfer

- based exclusion :
 Generator
- Controlled Exclusion. Prior to and during offsite transport, h azardous 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).Draft

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– Do not Cite or Quote 34 placarding, parking and driving. Specificall y, the DOT regulations appl y similarly to hazardous waste and other ty pes of DOT hazardous materials, such as ex cluded 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. O nsite handling and o ffsite s hipments 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 packag ing, 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 reco rdkeeping and transmittal requirements are comparable to the hazardous waste manifest requirements for chain

- of

- custody tracking and confirmation of receipt. O nsite handling and o ffsite 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 e xcluded 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 ship ments under the GCE ). An excluded material would no t need to compl y 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 classifi cation

. Further, th e Reportable Quantities (RQs) contained in 49 CFR p art 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 substance s 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 cons idered a hazardous

. Inthese 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 requirement s (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 b y 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 shipp ing paper must accompany it. However, the destination facility need not keep a cop y 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 b y the manifest regulations.Draft

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– Do not Cite or Quote 35

Intermediate and Reclamation Facilities Following is a discussion of the key differences and consequence s in the federal regulation of h azardous 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 haz ardous 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 resid ues 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 appl y to the residuals from the reclamation of hazardous secondary materials under the DSW exclusion. This means that the residuals exiting the reclamation unit constitute s 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 accordingl y. 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 non

hazardous waste. However, designating the residuals as a new ly generated waste raises the possibility

that some residual s 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 i n 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 un der the TBE would be subject to fewer prescriptive requirements , no public involvement , and possibly less regulatory

oversight than permitted facilitie s. The transfer - based exclusion requires that material be “contained , ” but do es not prescribe specific st andards for containment in contrast to the hazardous waste regulations (Scenarios 5 and 8). The hazardous waste regulations and TBE require containment of theDraft

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– Do not Cite or Quote 36 HSMs in the unit. The hazardous waste regulations prescribe specific design, installation, operating, closure and post

- closure s tandards to address containment

. Prescriptive requirements could facilitate inspection and enforcement, which could help to prevent releases. The TBE do es not contain prescriptive requirements for containment

. The exclu sion requires that the material be managed in a manner that is at least as protective as that emplo yed for analogous raw material and be contained. As such, the TBE is performance oriented and allow s more flexibility in how hazardous secondary

materials c an 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 f

rom process vents, leaks , and storage units. The TBE do es not include such prescriptive requirements

. S ome 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 sto rage 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 th e 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 t ransfer based exclusio n (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 faci lity 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 protecti ve as analogous raw material, contain the material, have financial assurance, and keep specified records. In addition, unle ss 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 subje ct to prescriptive requirements . For example, reclamation units at a facility subject to RCRA permitting must comply wi th applicable air emission controls for process vents, as specified.Draft

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– Do not Cite or Quote 37  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 re claimers 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.Draft

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– Do not Cite or Quote 38 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulat ions (HWRs) and DSW Exclusions by Scenario Scenarios Generators b 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., L QG to S QG) as a result of exclusions and be subject to less stringent HWRs Export procedures under HWRs and TBE are comparabl e 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, e xcluded HSM s 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 transp ortation regulations (e.g., no standards for packaging, marking, labeling) There is n o change in storage methods or recycling practices for HSM that has been diverted from off

- site RCRA permitted facility under HWRs to off

site RCRA permitted facility under TBE 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/ADraft

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– Do not Cite or Quote 39 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulat ions (HWRs) and DSW Exclusions by Scenario Scenarios Generators b 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 L Q G to SQG ) as a result of exclusion and be subject to less stringent hazardous waste regulation O ff

- site management at permitted facility is more stringentl y 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

L QGsDraft

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– Do not Cite or Quote 40 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulat ions (HWRs) and DSW Exclusions by Scenario Scenarios Generators b Transporters Intermediate and Reclamation Facilities 3. Generator switches from off - site disposal at a RCR A facility to off

site reclamation under generator - controlled exclusion d 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 L Q G to SQG ) as a result of exclusions and be subject to less stringent hazardous waste regulation O ff

- site management at permitted facility is more stringentl y regulated than reclamation under the GCE (e.g., no permit or public involvement is require d) 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 rep orting 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 same

comp any 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/ADraft

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– Do not Cite or Quote 41 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulat ions (HWRs) and DSW Exclusions by Scenario Scenarios Generators b Transporters Intermediate and Reclamation Facilities 4. Generator switches from off - site disposal at a RCRA facility to off

site permitted reclamation at a U.S. facility under 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 L Q G 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

L QGs Excluded materials that qualify as DOT hazardous material would be subject to comparable DOT trans portation 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 n o 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 Subtit le CDraft

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– Do not Cite or Quote 42 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulat ions (HWRs) and DSW Exclusions by Scenario Scenarios Generators b Transporters Intermediate and Reclamation Facilities 5. Generator switches from off - site disposal at a RCRA facility to off

site reclamation at a U.S. facility without a RCRA permit under transfer - based exclusion HSM can be accumulated on

- site for longer periods of time under exclusions, resulting in p otentially

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 L Q G 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

L QGs Excluded materials that qualify as DOT hazardous material would be subject to co mparable 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 stringentl y 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 “derive d

- from” rule to residuals of reclamation, as do the HWRs, potentially resulting in some materials exiting RCRA Subtitle CDraft

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– Do not Cite or Quote 43 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulat ions (HWRs) and DSW Exclusions by Scenario Scenarios Generators b Transporters Intermediate and Reclamation Facilities 6. Generator switches from off - site disposal at a RCRA facility to exporting for re clamation 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 Ge nerators could change in status (e.g., from L Q G 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

L QGs 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 CDraft

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– Do not Cite or Quote 44 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulat ions (HWRs) and DSW Exclusions by Scenario Scenarios Generators b Transporters Intermediate and Reclamation Facilities 7. Generator switches from off - site r eclamation at a facility without a permit ( no storage) to offsite rec lamation under transfer - based exclusion e 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 L Q G to SQG ) as a result of exclusions and be subject to less stringent hazardous waste regulation Export procedures under HWRs and TBE are comparable D SW exclusions require all generators to notify EPA biennially , whereas HWRs require biennial reporting only

L QGs Excluded materials that qualify as DOT hazardous material would be subject to comparable DOT transportation regulations as hazardous waste So me 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) T he TBE is more stringent than the HWRs in situations where HSM is not stored bef ore 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 CDraft

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– Do not Cite or Quote 45 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulat ions (HWRs) and DSW Exclusions by Scenario Scenarios Generators b Transporters Intermediate and Reclamation Facilities 8 . Generator switches from off - site r eclamation 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 ty pe 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 ty

pes 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

- com

pany reclaimer or toll manufacturer under its control. This column addresses these off

- site facilities (i.e., same - com pany 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

- com pany 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 TB E, 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
.Draft

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– Do not Cite or Quote 46 2.5 Likel ihood of Hazards under Scenarios This section presents EPA’s anal ys is of the likelihood of changes in hazards under the 2008 DSW final rule for each ty pe of facility

(generators, transporters, and intermediate and reclamation facilities) and each scenario described in Section 2 .1 . The analy sis 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 descriptio n 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 s ection 2. 5 5 .1 , while s ection 2. 5 5 .2 presents EPA’s discussion of potential red uctions and transfers of hazards. 2.5.1 Potentially Increased Hazards under DSW Exclusions EPA anal yz ed 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 exclusion s . EPA considered hazards to increase where it determined that either the probability of the hazard occurring or the potential magnitude of the hazard increased. In some cases , the hazard may increase at one facility , while decreasing at another facility . For example, changing the management of their HSM from off

- site incineration to on

site reclamation is likely

to increase potential hazards at the reclamation facility , while decreasing them at the i ncineration facility . This section discusses only the potential increases in hazards. Potential decreases in hazards are discussed in section 2. 5 5 .2
. This analy sis was based on the change s in management practices for HSM described in the Scenarios in Sec tion 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 analy sis 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 h azards under the DSW exclusions . EPA presents this analy sis for generators, transporters, and intermediate and reclamation facilities. For each typ e of hazard, the scenarios from Section 2.1 under which it might increase are identified.

Generators Fires and E xplosions (Scenarios 1 through 8)
. Some HSM, such as s olvents , 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 potentiall y 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.Draft

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– Do not Cite or Quote 47 release of the HSM. For example, there is greater likelihood that solvents could be inadvertentl y 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. Lo nger storage also increases the likelihood that drums or other containers could leak due to corrosion, accidents, or other causes over tim e. 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 difficu lt 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 tightl y 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. Inaddition, the GCE allows management of HSM in land

- based units without a permit or interi m - 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 an d containers, including keeping these units tightly covered and using vent sy stems (e.g., fixed roof, flares) if needed. In addition , the HWR s require that certain units be provided with a means to protect against the formation and ign ition of vapors with in 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 specificall y 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 land

based units . The hazardous waste regulations, on the other hand, provide that only permitted and interim

- status facilities can operate these land

- based uni ts, 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 ty

pes.

 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 woul d 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 lessDraft

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– Do not Cite or Quote 48 stringent requirements for tank sy stems, 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 stringentl y regulated in regard to the prevention and control of fire and explosion hazards. Examples of regulatory di fferences 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 L QGs and SQGs could become CESQGs under the exclusion. CESQGs generall y 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 gen erator 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 ty picall y involves the use of distillation, which requires the application of heat. Solvents generall y become more volatile as the temperature increases, which could lead to greater air emissions that , if not adequatel y 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 transpo rt equipment (e.g., leaking pipes). Solvent wastes are especiall y susceptible to such relea ses since they

are commonly

in a liquid state. Soil and water contamination hazards under the DSW exclusions could increase because of the following:Draft

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– Do not Cite or Quote 49  HSM can be ac cumulated longer, and potentiall y 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 mal function. 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 rele ase 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 land

based units as do the hazardous waste regulations. The hazardous w aste regulations, for example, include land

- based unit design requirements for liners and leachate collection and removal s ys tems, dikes, and run

- on/run

- off s ystems. 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 o verfill/spill control equipment and tank s to detect corrosion and releases). Because the DSW exclusion does not include suc h explicit requirements, there is less assurance that generators will adopt comparable controls and procedures to prevent release and respond to them if they occur . Finall y, unlike the hazardous waste regulations, the DSW exclusions allow generators to ac cumulate 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 land

based 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 LQ G 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 c ompl y with as many explicit tank design and operating requirements (e.g., liner, leachate collection and removal s ys tem, controls and practices to prevent spills and overflows). o SQGs would no longer need to p rovide 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.Draft

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– Do not Cite or Quote 50

o Some L QGs and SQGs could be come CESQGs under the exclusion. CESQGs generall y are not subject to the full hazardous waste regulations provided they meet certain requirements

.  Generat or 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 st andards 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). I f HSM is dive rted 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 wast e management to on site 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 filtrat ion, 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 (Scena rios 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, leak s and vents, breathing losses, and container filling and emptyi ng. Volatile emission hazards under the DSW exclusions could increase because of the following:
 HSM can be accumulated longer, and potentiall y 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 closi ng 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, L QGs may need to install a fixed roof to help control air pollutant emissions from tanks, or use containers that meet applicable DOT regulations. Becaus e 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) andDraft

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– Do not Cite or Quote 51 be subject to less stringent requirements. For example, SQGs would no long er need to c omply 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 stringentl y 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 expl icit 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 fro m 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 p rocesses, such as distillation of solvents, require the application of heat. Solvents generall y become more volatile as the temperature increases, which could lead to greater air emissions

. Changes in temperature can also increase breathing losses from t anks 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 potentiall y 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 cap acity 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 windDraft

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– Do not Cite or Quote 52 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 th at 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 regu lations; 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 onl y appl y 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 Subt itle 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 li sted 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, suc h wastes could exit Subtitle C regulation. Abandoned Materials (Scenarios 1 through 3 and 8) . A significant number of the environmental damage cases evaluated b y 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 potentiall y 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 th e 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 d o 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 regulatio ns is comparable. However, unlike the hazardous wasteDraft

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– Do not Cite or Quote 53 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 h azardous waste for longer than 90 day s for LQGs or 180/270 day s 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 abandone d 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 HS M is stored (for more than 90 or 180 /270 days , depending on generator size and ty

pe of activity

involved) , pending on

- site reclamation.Draft

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– Do not Cite or Quote 54 Table 2 .4 . Potential Incremental Hazards under DSW Rule : Generators Regulatory Differences under DSW Rule a 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 practices b 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 stringentl y 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 stringentl y 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 generator d 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 XDraft

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– Do not Cite or Quote 55 Table 2 .4 . Potential Incremental Hazards under DSW Rule : Generators Regulatory Differences under DSW Rule a Potential Incremental Hazards Fire/ Explosion Soil/Water

Contamination Volatile

Air Emissions Particulate

Wind Dispersal Residues

from Reclamation Abandoned

Materials Scenario 4 through 8 : Gene rator 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 stringentl y 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 like ly 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

- com pany 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
.Draft

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– Do not Cite or Quote 56

Transporters Fires and Explosions (Unlikely for all Scenarios ) . Some HSM, such as s olvents , 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
. A ll hazardous waste offsite shipments must be accompanied by a mani fest 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 require ments 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 E missions , 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, w ind 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 properl y 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 resuspen sion and wind dispersal. HSM under the exclusion s that qualify as a DOT hazardous material would be subject to generall y comparable transportation requirements as hazardous waste in regard to packing, labeling, marking, placarding, parking and driving. Specificall y, the DOT regulations impose comparable requirements on hazardous waste as it does on other ty pes of DOT hazardo us materials in regard to these activities. Therefore, such DOT

- regulated shipments of hazardous waste and excluded material would address releases of materials in comparable way s. However, e xcluded HSM that does not qualify as a DOT hazardous material wo uld 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 H SM would not be required to follow comparable procedures to address potential releases of materials, including vapors, liquids, solids, or particulate matter. For example, transporters mightDraft

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– Do not Cite or Quote 57 use less expensive packaging that is more likel y to leak or be r uptured 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 tran sportation accident and released/contaminated materials are left b y 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 wa ste manifest sy stem as a means of ensuring that hazardous wastes are tracked from “cradle to grave.” Under the manifest sy stem, each party to the shipment must sign and keep a copy of the manifest and the generator must be notified of its receipt b y the d estination 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 g eneration 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.Draft

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– Do not Cite or Quote 58 Table 2.5 . Potential Incremental Hazards under DSW Rule: Transporters Regulatory Differences under DSW Rule a Potential Incremental Hazards Fire/Explosion Volatile Air ,

Emissions , Soil/ Water Contamination, and Wind Dispersal Abandoned

Materials

Scenario 1: Generator continues current reclamation practices b No waste codes on shipping papers HSM that no longer qualifies as DOT hazardous material or triggers RQ X Scenario 2: Generator switches from off - site disposal to on - site reclamation Not applicable Scenario 3: Generator switches from off - site disposal to off

- site recycling under the control of the generator c No waste codes on shipping papers HSM that no longer qualifies as DOT hazardous material or triggers RQ X No tracking document required X Scenario 4: Generator switches from off - site disposal to off

- site recycling at a RCRA - permitted facility No waste codes on shipping papers HSM that no longer qualifies as DOT hazardous material or triggers RQ X Scenario 5: Generator switches from off - site disposal to off

- site recycling at a U.S. facility without a RCRA permit No waste codes on shipping papers HSM that no longer qualifies as DOT hazardous material or triggers RQ X Scenario 6: Generator switches from off - site disposal to exporting for recycling No waste codes on shipping papers HSM that no longer qualifies as DOT hazardous material or triggers RQ X Scenario 7: Generator switches from off - site recycling at a facility without a permit to another type of recycling under DSW d No waste codes on shipping papers HSM that no longer qualifies as DOT hazardous material or triggers RQ XDraft

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– Do not Cite or Quote 59 Table 2.5 . Potential Incremental Hazards under DSW Rule: Transporters Regulatory Differences under DSW Rule a Potential 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 exclus ions by either reclaiming on - site, shipping to a permitted, off

- site reclamation facility, or exporting the material for reclamation. c This scenario includes g enerators switching from off

- site disposal to sendi ng the material to either a same

- com pany reclaimer or toll manufacturer under the GCE. d This scenario includes g enerators 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
.Draft

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– Do not Cite or Quote 60

Intermediate and Reclamation Facilities Fires and Explosions (Scenarios 1 and 4 through 8) . Some HSM, such as s olvents , 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 f lammable, 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 o f 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

- cl osure 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 exclusio n 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 hazardo us waste regulations and TBE require containment of HSM in the unit. The hazardous waste regulations prescribe design, installation, operating, closure and post

closure standards to address containment, whereas the TBE does not. The exclusion requires th at 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 specificall y 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 emis sions. 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 TB E 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 specificall y required under the DSW exclusions.
 HSM coul d be increasingly diverted from hazardous waste management to reclamation under the TB E (Scenarios 1 and 4 through 8)

. Increased reclamationDraft

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– Do not Cite or Quote 61 could increase the risk at reclamation sites of fires and explosions due to increased air emissions, the use of he at in reclamation processes, and the potential mixing of wastes for reclamation. For example, the reclamation of solvents ty picall y involves the use of distillation, which requires the application of heat. Solvents generall y become more volatile as the t emperature 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 on

site. 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, s olvents are susceptible to such relea ses 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 permitte d 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 re gulations 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 li kelihood 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 specificall y required under the DSW exclusions.
 HSM could be increasingly diverted from hazardous waste management to reclamation under the TB E (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 soilDraft

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– Do not Cite or Quote 62 and water. For example, recycling by distillation of a solvent may require filtration, distillation, condensation, or other proc essing. 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 (Scenario s 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 pres criptive 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 presc riptive 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 post

closure 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 emission s , 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 additionalDraft

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– Do not Cite or Quote 63 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 D ispersal (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 di spersal. 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 publ ic 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, red uce 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 h azardous waste regulations contain explicit design, installation, operating, closure and post

closure 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 facilitie s to respond to them and reduce the damage caused , are not specificall y 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 re sult in a hazardous waste residue that requires further treatment before land disposal in accordance with the RCRADraft

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– Do not Cite or Quote 64 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 an d 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 the se 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 abando ned 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 fac ilities. 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.Draft

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– Do not Cite or Quote 65

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

Rule a 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 practices b 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 increasingl y 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 generator c Not applicable Scenario 4: Generator switches from off - site disposal to off

- site recycling at a RCRA - permitted facility HSM increasingl y 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 XDraft

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– Do not Cite or Quote 66

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

Rule a 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 increasingl y 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 increasingl y 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 DSW d HSM increasingl y 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 XDraft

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– Do not Cite or Quote 67

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

Rule a Potential Incremental Hazards Fire/ Explosion Soil/Water

Contamination Volatile Air

Emissions Particulate

Wind Dispersal Residues

from Reclamation Abandoned

Materials HSM increasingl y 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 h azardous waste regulations and intermediate/reclamation facilities operating under the DSW exclusions. See Section 2.3 of this rep ort 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

- com pany 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 th e material to a company in another country
.Draft

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– Do not Cite or Quote 68 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 re quirements for initial and biennial submittals in regard to frequency and types of information submitted, such as quantities and ty pes of HSM. However, the biennial reporting requirement in the hazardous waste regulations applies only to LQGs. The DSW no tification 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 b y SQGs . They could us e this information when developing compliance activities, such as inspections and outreach , resulting in better compliance and reduced risk of abandoned materials. Inaddition, a greater knowledge of HSM ty pes and quantities at these smaller sites will g ive 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 day s (depending on ty pe of activity

involved) , , respectivel y, 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 s hipments of hazardous waste during the ye ar (e.g., less than every 90 day s 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 mean s 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% b y weight or volume of the amount of the HSM present at the beginning of the period.Draft

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– Do not Cite or Quote 69 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 provisi on 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 transpo rtation

- 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 off

site 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 ye ar. For example, the generator would not need to ship its reclaimed materials offsite within the 90 day s (for LQGs) or 180/270 day s (for SQGs) as required for hazardous waste. Rather, it could ship the HSM off

- site less frequentl y. L ess 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 b y that facility (Scenarios 1 through 8). A generator that reclaims on

- site or off

- site under the rule might change its generator status and thereb y make fewer off

- site hazardous w aste shipments each ye ar. 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 day s. Fewer off

- site shipments could result in the hazard reductio ns 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 ev en 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 appl y 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 theDraft

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– Do not Cite or Quote 70 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 recycl e 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 thes e efforts will depend on the ir ability

. For example, small or independent generators may have fewer financial resources or staff to use to conduct such audits, and may be more likel y 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 appl y to reclaimers that do not store the hazardous waste pending reclamation; such reclaimers are not required to obtain finan cial 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 rul e would lessen the barriers to reclamation, such as regulatory

burdens and manifesting/permitting costs, and thereb y 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 increasingl y 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 us ing 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 andDraft

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– Do not Cite or Quote 71 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 increasingl y 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. Fo r example, etchant suppliers could increasingl y 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 mat erial 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

.Draft

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– Do not Cite or Quote 72 Table 2.7 . Potential Reduction in Hazards under DSW Rule

Differences under DSW Rule a Potential ly Decreased Hazards Transportation Accidents, Pollution, Traffic, Noise Releases from

Reclamation (e.g., fires, soil contamination) Abandoned

Materials Environmental

Hazards from Treatment and Disposal Air Pollution

from Energy Usage Environmental

Hazards from Mining Operations Scenario 1: Generator continues current reclamation practices b Longer generator accumulation periods , fewer off

- site shipments of HSM X Change in generator status , fewer shipments of hazardous waste X Biennial notifications from SQGs to EPA under DSW exclusions X Scenario 2: Generator switches from off - site disposal to on - site reclamation Change in generator status , fewer shipments of hazardous waste X HSM increasingly diverted from treatment and disposal to on

- site reclamation under exclusion X X Reduced mining and energy use because of increased reclamation X X Biennial notifications from SQGs to EPA under DSW exclusions X Scenario 4: Generator switches from off - site disposal to off

- site recycling at a RCRA - permitted facility Longer generator accumulation periods , fewer off

- site shipments of HSM X Change in generator status , fewer shipments of hazardous waste X Scenario 7: Generator switches from off - site rec lamation at a facility without a permit to another type of recycling under DSW dDraft

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– Do not Cite or Quote 73 Table 2.7 . Potential Reduction in Hazards under DSW Rule

Differences under DSW Rule a Potential ly 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 re clamation a RCRA - P ermitted 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

- com pany 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 witho ut a permit, or export of th e material to a company in another country

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- Do Not Cite or Quote 74 3 Identification of Potentially Affected Communities This section identifies the facilities that may likely begin recycling HSM s under the 2008 DSW final rule . These facilities include : 1. F acilitie s that have already notified EPA that they will be managing HSMs under the 2008 DSW final r

ule ; 2. Facilities currentl y generating or managing HSMs that may choose to operate under the 2008 DSW final r

ule ; and 3. Facilities not currently generating or managing HSMs that may choose to begin reclaiming them under the 2008 DSW final r ule. EPA conducted its EJ analy sis on the facilities identified in this Se ction. 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 analy sis, such as their location and quantities and ty

pes of HSMs generated an d 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 , Penns yl vania, and the Virgin Is lands. 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 Io wa 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 I dentification (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 Sy stem (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 Cla ssification Sy stem (NAICS) code and NAI CS code description. EPA then c ompiled 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.Draft

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- Do Not Cite or Quote 75 longitude. EPA recognizes that facility addresses and location coordinate information sometimes are not the s ame 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 GI S coordinates was beyond the scope of this anal ys is. 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. Generall y, about 70 to 80 percent of the addresses were recognized and located b y the geocoding software. In instances in which addresses could not be geocoded (e.g., inaccurate or missing street addresses, PO boxes or r ural routes), EPA used internet searches of company w ebsites or internet business li stings 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 r

ule. 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 likel y to begin operating under the 2008 DSW final rule

. EPA assume d that these facilities may cho ose to operate under th is r ule, regardless of whether the S tate 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 ac tivities. For this analy sis, EPA assume d that facilities that currentl y manage HSMs by recycling, or that generate recyclable hazardous wastes at large enough quantities to make it economicall y justifiable , would switch to reclamation under the 2008 DSW f

inal r ule. 36 3.2.1 Facilities Currently Managing Recyclable Hazardous Wastes Facilities that currentl y manage hazardous wastes may begin recycling them under the 2008 DSW final rule . This includes facilities that are currentl y 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 recl amation 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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- Do Not Cite or Quote 76 To identify

and collect information about facilities currentl y 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 S ection 2 (On

- site Mana gement) 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 S e ction 3 (Off

- S ite 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 ye ar;  B iennial Report form (i.e., GM or WR);  Page and subpage number;  Source code (GM Form only);  Source code description (GM Form onl y);  F orm code;  Form code description;  Classification as wastewater or nonwastewater;  EPA hazardous w aste code s 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, b y m anagement 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 waste s as “wastewaters” or “nonwastewaters,” EPA used a methodology that relies on some of the data r eported 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, mutuall y exclusive code assigned to the waste. It was created to help avoid double counting of was te 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 analy sis, “ recycling ” activities are those associated with the management of wastes using one of the fo llowing management methods: metals recovery (BR management method code H010 ), solvents recovery (BR management method code H020 ), and other recovery (BR management method code H039 ).Draft

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In determining whether a waste is considered a “recyclable hazardous was te,” EPA used the methodology

developed for the (Regulatory Impact Analy sis) RIA of the 2008 DSW final r

ule. 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 man age 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 generall y 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 co des, 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 ty pes of HSMs were not considered recyclable. For example, wastewaters generall y tend to be dilute waste streams with low levels of materials and generall y are not recycled because insufficient material can be recovered to make the recycling economically feasible. Additionally, c leanup wastes and treatment residuals generall y 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 anal ys is is contained in Attachment C. 3. Compiled information about location coordinates

. EPA then compiled information on facility

location coordin ates (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 analy sis. 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 in stances where addresses could not be geocoded (e.g., inaccurate or missing street addresses, PO boxes or r ural routes), EPA used internet searches of company websites or internet business listings to obtain more accurate facility location addresses or faci lity 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 alre ady notifiedDraft

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EPA that they

would be managing HSMs under the 2008 DSW final r ule, since these facilities are being anal yzed 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 currentl y generate hazardous wastes may begin recycling them under the 2008 DSW final rule . This includes facilities that are currentl y rec ycling 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 m ethods, such as incineration or solidification/stabilization that may switch to recycling under the 2008 DSW final rule

. To identify

and collect information about facilities currentl y 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 S ection 1 (Generation), S ection 2 (On

- site Management), and S ection 3 (Off

- site Shipment) of the GM Forms. From these data sources, EPA compiled the following information:
 Reporting ye ar;  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 mana ged 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 repo rted 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, mutuall y 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 analy sis, “recycling” activities are those associated with the management of was tes 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 onl y 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 i dentified 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 id entified 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 ty pes of wastes were not considered recyclable. For example, wastewaters generall y tend to be dilute wastes with low levels of recyclable materials and generall y are not recycled because insufficient material is recovered to make the recycling economicall y feasible. Cleanup wastes and treatment residuals generall y are contaminated with other materials, such as soil or other solids that often render recycling infeasible. EPA’s approach to identifying recyclable m aterials generall y 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 anal ys is 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 analy sis. The success rate of th e 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 b y 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 addressesDraft

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could not be geocoded (e.g., inaccurate or missing street addresses, PO boxes or r ural routes), EPA used internet searches of company websites or internet business listings t o 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 develop ed, EPA identified and excluded facilities that already notified EPA that they would be managing HSMs under the DSW Rule, since these facilities are being anal yz ed under Section 3.1 of this document (“Facilities that Have Already Notified EPA that They

Wil l 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 hazardou s 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 currentl y generating or managing hazardous waste by recycling will continue to manage those wastes b y rec ycling 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 b y 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 b y rec ycling 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 ye ar 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 usuall y a significant factor in waste management costs. In addition, the costs of transporting a full truckload are usually significantl y 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 w aste recycling unit for less than truckload amounts of waste annually would make on

- site recycling economically infeasible. Transporters haul materials in many different ty

pes 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 g allons, which (depending on the density of the liquid), translates to roughl y 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).Draft

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- Do Not Cite or Quote 81 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 currentl y generating or managing hazardous waste, some facilities that do not currentl y generate or manage hazardous waste may begin recycling HSM under the 2008 DSW final rule . EPA identified commercial facilities that currentl y manage non hazardous industrial waste usi ng 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 like ly can begin accepting HSM s for recycling with few modifications to their current processes, these facilities face few barriers to begin reclaiming HSM s under the 2008 DSW final rule. EPA assumed that such facilities would begin reclaiming HSM under the 2 008 DSW final rule for this anal ys is. EPA did not identify

other ty pes of facilities not currentl y 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 e xcluded :

 Facilities that submitted notification to EPA indicating that they would be managing HSMs under the 2008 DSW final r ule;  Facilities that reported generating or managing haza rdous wastes in 2007 to the hazardous waste BR  Facilities that appeared to conduct only phy sical separation and processing rather than recycling, such as scrap metal shredders. EPA then c ompiled general information about the facilities from the data source s listed above. The information compiled included the ty pes of waste recycled and facility address. EPA then performed geocoding using facility location address information. EPA recognizes that facility addresses and location coordinate information som etimes 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, fi eld investigation of potentially thousands of facility locations to verify and correct GIS coordinates was beyond the scope of this anal ys is.Draft

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- Do Not Cite or Quote 82 4 Analysis of Demographics of Potentially Affected Communities EPA anal yz ed the demographics of the potentiall y affected communities identified through the activities described in Section 3 of this report. The demographics anal yz ed 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 S ources 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. Eac h 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 generall y 1 in 6 households within a block group that includes information about more characteristics of the people and households surveyed. EPA conducted its anal ys is using the most precise data set available for th e characteristics anal yz ed. SF 1 data was used for the following demographics:
 P opulation ;  P opulation density ;  M inority

population ;  American Indian and Alaska Native (A IAN) population ; and  C hildren under five ye ars of age SF 1 does not include data on the number of Americans below poverty . Therefore SF3 data was used for analy sis 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 p opulation and population density

information for anal ys es 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 way s . 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 peop le per square mile with a minimum residential population of 50,000 people. All areas that meet these criteria are considered urban for this anal ys is, 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 b y subtracting this number from the total population. The American Indian and Alaska Native (AIAN) populati on 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 Analy sis

Sum mary File 1 Data Summary File 3 Data Total Population Population

Density Minority

Population Am erican

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 XDraft

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- Do Not Cite or Quote 84 4.2 Methodology This section describes the methodology used to develop the EJ Analy sis for the 2008 DSW final rule, including selection of the EJ characteristics for anal ys is, using the areal apportionment method to determine the characteristics of the communities surrounding each facility , and conducting a statistical analy sis 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 analy sis. These demographics were selected based on the Sierra Club petition, comments received in response to this petition and during public forums discuss ing 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 b y 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 th e analy sis of the demographic makeup of potentiall y affected communities, EPA used the ESRIg eospatial software ArcMap

. G eographic coordinate points (latitude, longitude) were imported into the program and projected onto a U.S. map using a North American Datum 1983 projection , which account s 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 de mographic 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 analy sis. For the Environmental Justice anal ys is, 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 b y an acute release sc enario (such as a fire or explosion) at a reclamation facility

. While some EJ analy sis use other buffer distances, such as 1

- or 2
- km buffers, assessment of multiple buffers is beyond the scope of this anal ys is. 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 block s or block groups were onl y 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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- Do Not Cite or Quote 85 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 onl y 50% of that population was tallied. If the buffer contained three block groups , one completel y contained and the others partiall y 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 b y HSM generation and management activities are typicall y 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 anal ys is is based on administratively determined boundaries including census block s and block groups. The Census blocks and block groups can vary

significantly

in size and shape. When used for EJ analy ses, they may provide inaccurate results, particularly when they

are large or irregularl y shaped, resulting in inclusion of populations that are not within the 3

- km radius EPA used for this anal ys is. 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 b y 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 blo ck 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 b y EPA for this anal ys is is consistent with other EJ tools and anal ys es, including those discussed in Section 4.2.1. AAM assumes that all populations are equally distributed within a block or block group. An accurate analy sis of the impact of this assumption could not be conducted with the information available from the sources used for this anal ys is.
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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- Do Not Cite or Quote 86 In addition, comparisons were done for urban and rural populations to check if the tendency to locate industrial facilities i n 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 f

acility was located. Most facilities anal yz ed 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 affecte d 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 affec ted and comparison populations. The affected populations are those within the 3

- km buffer zones around the facilities anal yz ed. 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 l ikel y to be affected if the facility was in alternative location . For this analy sis , 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 Com parison 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 substantiall y greater proportion of the affected population than of the non

affected 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 calculati ng 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 eith er as a probability (p

- value) that an outcome could have been the result of chance,Draft

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- Do Not Cite or Quote 87 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 significanc e, the Kendall test and Fisher’s E xact test. The Kendall test is the standard test for large samples. 37 Fisher’s E xact test is conditional on the total numbers of affected, non

- affected, demographic group G , and non

demographic group G population s (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 onl y 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 hy pothesis 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

. Insome 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 readil y (e.g., below 10 - 300 ), which in turn prevents computation of “equivalent” SD values . T he 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 (AP R) and a common Demographic Ratio (D R) , under the assumption that all states have the same underl yi ng 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 th at have at least one facility and because the statistical calculation is different. As detailed in Attachment E, the Cochran

- Mantel

Haen szel test, a generalization of the standard chi

- square test, was used to test the null hy pothesis of no disparity

in ev ery 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 Ex act 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. T his 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) wo uld 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.Draft

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- Do Not Cite or Quote 88 EPA selected these statistical anal ys es and tests based on technical literature and their historical use in EJ analy ses and Title VII discrimination cases 41 , 42 , 43 , 44

. 4.4 Results of Demographic Analysis This section contains the results for the demographic anal ys es for the DSW EJ analy sis. This anal ys is 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 re sults are presented in Section 4.3.4. For each set of facilities, bar charts , demographic comparison tables, and statistical anal ys is tables are presented. The bar charts provide a histogram for each demographic anal yz ed of the percentage of the populati ons 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 communiti es 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 betwe en 31 and 40%, 5% had between 41 and 50%, while 2% had between 51 and 60%. The demographic comparison tables present the analy ses 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 notifi cation 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 commun ities 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 co mparison table, a statistical anal ys is table presents the analy ses discussed in Section 4.3. For example, Table 4.4.1.2 shows the results of analy sis of statistical significance of the national demographic c omparison for the notification f acilities . 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 Off

ice 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: Lo uisiana 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 Leg al Manual. January 11, 2001. http://www.justice.gov/crt/cor/coord/vimanual.phpDraft

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- Do Not Cite or Quote 89 4.4.1 Notification Facilities This section presents the demographic results for the 40 notificati on facilities as of July 30, 2010. This includes facilities in I owa, Penns yl vania, and New Jersey . The demographics for the notification facility

in the Virgin Islands were not reviewed for this report. The demographi cs were anal yz ed at a national and state - wide level. In addition, the demographics were compared at an urban and rural level. For the national level analy ses, the demographics anal yz ed 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 i ncome and children under five ye ars of age were anal yz ed. EPA also conducted statistical analy sis at the national level to determine the significance of selected results, including minority , American Indian and Alaska Native, persons below poverty, and ch ildren under five

. State level anal ys es 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 a cknowledge s that a selection bias may exist for the notification facilities

. The statistical anal ys es focus on whether the population demographics near each group of facilities are different from the population demo graphics elsewhere in the same s tate 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 , b ut 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 separatel y from other facility

categories, in part, to isolate factors that might result in a selection bias.Draft

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Figure 4. 4 .1.1. Demographics for Notification FacilitiesDraft

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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 Me an

Difference Me dian

Difference % M inority 3 37 0
- 20.68%
- 26.33% % Below Poverty 13 27 0
- 1.95%
- 3.89% % Am erican Indian 0 40 0
- 1.27%
- 1.34% % Children 5 Years and Under 32 8 0 0.78% 0.74% % Black or Af rican Am erican 10 30 0
- 4.85%
- 10.70% % As ian 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 P Value 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
- 07Draft

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- Do Not Cite or Quote 92 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 A rea Comparison Me an

Difference Me dian

Difference % M inority 7 7 0 3.14% 0.00% % Below Poverty 9 5 0 1.66% 1.49% % Am erican 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 P Value 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
- 26Draft

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- Do Not Cite or Quote 93 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 A rea Comparison Me an

Difference Me dian

Difference % M inority 2 8 0
- 11.04%
- 14.77% % Below Poverty 0 10 0
- 3.69%
- 3.60% % Am erican 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 P Value 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
- 08Draft

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- Do Not Cite or Quote 94 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 A rea Comparison Me an

Difference Me dian

Difference % M inority 5 11 0
- 2.27%
- 9.14% % Below Poverty 8 8 0 2.56% 1.07% % Am erican 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 P Value 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
- 54Draft

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- Do Not Cite or Quote 95 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 A rea Comparison Me an

Difference Me dian

Difference % Mi nority 8 11 21 1.06%
- 2.41% % Below Poverty 11 7 22 3.08% 1.95% % Am erican Indian, Al askan Native 10 9 21 0.08% 0.11% % Children Under 5 11 8 21 0.21% 0.29%

Table 4. 4 .1. 1 0 . 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 P Value 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
- 16Draft

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- Do Not Cite or Quote 96 Table 4. 4 .1. 1 1 . 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 A rea Comparison Me an

Difference Me dian

Difference % Mi nority 18 1 21 17.59% 13.31% % Am erican Indian, Al askan 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. 1 2 . 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 P Value 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 21 7 damage case facilities. The demographics were anal yzed at a national and state level. The demographics anal yz ed included minority , American Indian and Alaska Native, persons below poverty level income, and children under five ye ars of age. In addition, a statistical analysis was conducted at the national level to determine the significance of the results. State level anal ys es are based on a comparison of the demographics for each facility to the overall populations for the state in which the facility is located

.Draft

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Figure 4.4.2.1 . Demographic s for Damage Case Fa cilitiesDraft

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- Do Not Cite or Quote 98 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 A rea Comparison Me an

Difference Me dian

Difference % M inority 115 102 0 8.18% 2.92% % Below Poverty 142 75 0 5.92% 3.74% % Am erican Indian, Al aska 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 P value Equivalent

No. of Standard Deviations (SD) Probability

(Affected) Kendall

Test Statistic Kendall

Test P Value 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
- 15Draft

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Table 4. 4 .2.3. State Demographic Comparison for Damage Case Fa cilities 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 A rea Comparison Me an

Difference Me dian

Difference % M inority 121 96 0 8.18% 4.18% % Below Poverty 150 67 0 6.74% 5.24% % Am erican Indian, Al aska 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 - Mantel Haens zel 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 Fa cilities 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 r ule (hazardous waste faciliti es) . The demographics were anal yz ed at a national and state - wide level. In addition, the demographics were compared at an urban and rural level. For the national level analy ses, the demographics anal yz ed included minority , American Indian and Alaska Native, persons below poverty level income, and children under five ye ars of age. EPA also conducted statistical anal ys is at the national level to determine the significance of selected results, including minority , Am erican 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 st ate in which the facility is located.Draft

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Figure 4.4.3.1 . Demographic s for Hazardous Waste Facil i tiesDraft

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- Do Not Cite or Quote 101 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 A rea Comparison Number of

Facilities with % Demographics Equal to A rea Comparison Me an

Difference Me dian

Difference % Mi nority 1,136 1,541 0 0.86% - 6.01% % Below Poverty 1,286 1,391 0 1.47% - 0.48% % Am erican Indian, Al aska 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 P value Equivalent

No. of Standard Deviations (SD) Probability

(Affected) Kendall

Test Statistic Kendall

Test P Value Minority (all except non
Hispanic 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 ~0Draft

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- Do Not Cite or Quote 102 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 A rea Comparison Number of

Facilities with % Demographics Equal to Area Comparison Me an

Difference Me dian

Difference % Mi nority 1,282 1,395 0 3.98% - 0.93% % Below Poverty 1,354 1,323 0 1.80% 0.08% % Am erican Indian, Al aska 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 - Mantel Haens zel 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 ~0Draft

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- Do Not Cite or Quote 103 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 A rea Comparison Number of

Facilities with % Demographics Equal to A rea Comparison Me an

Difference Me dian

Difference % Mi nority 902 765 0 6.81% 2.48% % Below Poverty 899 722 0 2.71% 1.16% % Am erican Indian, Al aska 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 - Mantel Haens zel 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 ~0Draft

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- Do Not Cite or Quote 104 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 A rea Comparison Number of

Facilities with % Demographics Equal to A rea Comparison Me an

Difference Me dian

Difference % Mi nority 598 412 0 7.01% 1.26% % Below Poverty 543 513 0 1.24% 0.15% % Am erican Indian, Al aska 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 - Mantel Haens zel 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 ~0Draft

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- Do Not Cite or Quote 105 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 r ule (non

- hazardous industrial waste facilities) . The demographics were anal yz ed at a national and state level. The demographics anal yzed included minority , American Indian and Alaska Native, perso ns below poverty level income, and children under five ye ars of age. In addition, a statistical analysis was conducted at the national level to determine the significance of the results. State level analy ses 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 FacilitiesDraft

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- Do Not Cite or Quote 106 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 A rea Comparison Me an

Difference Me dian

Difference % M inority 9 16 0
- 4.95%
- 11.62% % Am erican Indian, Al askan 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 Demo graphic Ratio Fisher

Exact Test P value Equivalent

No. of Standard Deviations (SD) Probability

(Affected) Kendall

Test Statistic Kendall

Test P Value Minority (all except non
Hispanic whites) 1.18887 1.12364 ~0 N/A 0.00189 60.13 ~0 Persons below poverty 1.15970 1.13811 6.25E
297 36.83 0.00192 37.51 5.76E
308 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 6.03E
01 0.52 0.00189 0.52 6.04E
01Draft

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- Do Not Cite or Quote 107 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 A rea Comparison Me an

Difference Me dian

Difference % Mi nority 9 16 0
- 2.55%
- 5.36% % Below Poverty 11 14 0
- 0.26%
- 2.11% % Am erican Indian, Al askan 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 - Mantel Haens zel 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
- 10Draft

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- Do Not Cite or Quote 108 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 anal ys is 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 un der the 2008 DSW final rule. Section 5.1 identifies and briefly describes some additional factors not analy zed in the previous chapters , while Section 5.2 summarizes data that EPA has compiled on some of these factors to characterize the vulnerabilities o f 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 c ategories:
 Susceptible Populations  Multiple and Cumulative Effects  Unique exposure pathways  Ability

to Participate in the Decision

- Making Process  Phy sical Infrastructure While this report does not attempt to quantify all the potential factors that could a ffect 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 h ealth of community can be looked at in many ways. EPA selected specific factors for anal ys is 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 stre ssor. These susceptibility factors may

be intrinsic in nature (e.g., based on ag e, sex, genetics, and race ). For example, young children, pregnant women, nursing mothers, and the elderl y may be more likely to suffer health consequences from a toxic chemi cal 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 M inority , 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, ind ustrial facilities, landfills, transportation

- related air pollution, poor housing, leaking underground tanks, pesticides, and incompatible land uses. An anal ys is of the cumulative effects from multiple stressors can provide a more complete evaluation of a population’s health risks from pollutants. For example, an anal ys is of discreteDraft

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- Do Not Cite or Quote 109 stressors and effects on a population might conclude that nearb y pollution sources are within regulatory

limits; however, the cumulative effects might result in a person’s ag gregate 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 stres s ors , 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 sy stems. 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 In formation (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

Sy stem (AFS)

- contains compliance and permit data for stationary source s regulated by

EPA, state and local air pollution agencies. This factor is examined in Section 5.2. o Comprehensive Environmental Response, Compensation & Liability Information Sy stem (CERCLIS)

– contains information on hazardous waste sites, potentially h azardous waste sites and remedial activities across the nation, including sites that are on the National Priorities L ist (NPL) or being considered for the NPL. This factor is examined in Section 5.2. Environmental Quality

Factors
 Non
- Point Source Air Em issions

- 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 NAAQS s for six principal pollutants, which are called “criteria” pollutants (e.g., car bon 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 mi llion, by tract or county, as determined b y 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/L ocal/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 notDraft

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- Do Not Cite or Quote 110 incorporate refined information about emission sources, but rather, use general i nformation 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 i nform both national and more localized efforts to identify and prioritize air toxics, emission source ty

pes , 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, b y 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 suscep tibility

factors may

stem from unique pathway s for exposure. For example, certain lifestyle patterns may

present unique exposure pathway s, such as relative source contributions for pe ople 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 rul e . While this does not automatically correspond to individuals experiencing unique exposures pathway s, it does indicate that such exposures might occur . 5.1.4 Ability to Participate in Decision - Making Pro cess A key element of environmental justice is ensuring that all people have an opportunity for meaningful involvement in decision

- making. C ertain 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 b y 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 ty

pes 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 f

acilities and regulators are required to solicit and consider community input into the permitting decision

- making process

. Under the 2008 DSW final rule , HSM reclai mers 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 proc ess . 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. C ommunities with lower

45 For additional information on NATA, go to: http://www.epa.gov/ttn/atw/natamain/

.Draft

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- Do Not Cite or Quote 111 participation levels may experien ce greater adverse impacts because their input has not been considered full y, 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 pro cess, the DSW Rule requires that generators make reasonable efforts to ensure that their hazardous secondary materials are safel y and legitimately recycled. When HSM reclaimers are located in EJ communities, and the generators of the wastes are small busi nesses, 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 generato r. For example, small or independent generators may have fewer financial resources or staff to use to conduct such audits, and may be more likel y t o miss indications that reclaimers are not legitimately recycling HSM. EPA di d not analy

ze whether HSM reclai mers 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 meaningfull y participate in the decisi on - 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

und erstand 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 imm igrants or foreign born46

. Immigrant status, particularl y 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 In frastructure The phy sical infrastructure of a community can contribute to making some residents more vulnerable to environmental hazards. Phy sical infrastructure can include, for example, public buildings (proximity

to hospitals), safe drinking water, sew age treatment, public transportation, and communication sy stems (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.Draft

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- Do Not Cite or Quote 112 may affect a community ’s ability to avoid exposures to harmful pollutants or, if they are already exposed, to detect the exp osure, 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 faci lities include those without health insurance and those unable to travel to health care facilities . For example, low

- income groups and some elderl y and disabled individuals, with limited or no access to private transportation, may need public transportati on to access health care facilities . I f nearb y 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. C ommun ities 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

– S ome gro ups 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 D SW 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 c laim ed an exclusion under the 2008 DSW final rule, EPA believe s 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 analy ze factors that affect vulnerability for communities around hazardous waste facilities and non

- hazardous industrial waste facilities because these anal ys es were beyond the scope of this analy sis

. 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 fin al 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 L iability Act, (CERCLA
- also known as Superfund) within a three

- kilometer radius of the facility. Twenty-Draft

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- Do Not Cite or Quote 113 six of the forty

facilities had communities with cancer rates greater than the 80th percentile, and twenty- seven showed a greater than the 8 0th 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 facil ities, 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 communiti es 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 decisi on - making because their input has not been considered fully , particularl y if competing interests are set forth more effectivel y. This effect is most likely to occur in communities that have traditionally been excluded from the decision

- making process.Draft

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- Do Not Cite or Quote 114

Ta ble 5.1 . Other Factors that Affect Vulnerability in Communities Affected By Re cycling 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 (T ons 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

Percen tile) 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

Per centile) 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 Com pany 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 Da venport Wo rks 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 Wo rks 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 Wo rks IAD005269527 DUBUQUE IA 16.9% 2.9% 0 No 23.75 (76.2 Percenti le) .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 Wo rks IAD000678094 WA

TERLOO 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 Wa terloo W orks IAD000805168 WA

TERLOO 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

MOINE S 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 0Draft

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- Do Not Cite or Quote 115

Ta ble 5.1 . Other Factors that Affect Vulnerability in Communities Affected By Re cycling 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 (T ons 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 WA RREN NJ 7.6% 21.2% 0 No 33.08 (90.9 Percentile) .06 (85.4

Percentile) 4.39 (93.9

Percentile) 2,055 538 1,0 47 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
- Klee n 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 Percent ile) .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

Percen tile) 2,313 1,110 2,352 4,212 624 688 11,328 207 41 8 Viking Yacht Com pany 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 & Arm am ents 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 PAD00234 4315 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 Com pany, Inc ELLW OOD

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 0Draft

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Ta ble 5.1 . Other Factors that Affect Vulnerability in Communities Affected By Re cycling 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 (T ons 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 W heatland Tube Division PAD0043228 63 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 W heatland 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 W heatland 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 Em issions Control Technologies PAD980829287 WA

YNE 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 Em issions 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 OA KMONT 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 Wo rld Resources Com pany 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 toolDraft

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June 30 , 2011 Draft

- Do Not Cite or Quote 117 6 Conclusions 6.1 Information Synthesis: Assessment of Disproportiona te Im pact The purpose of Step 5 of the DSW environmental justice anal ys is methodology is to sy nthesize 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 populati ons) would be overrepresented in the impacted communities. Below is a summary of the major conclusions from the first four steps of the analy sis, as discussed in Chapters 2

– 4 of this report. 6.1.1 Hazardous Secondary Material Recycling Does Pose Significant P otential Hazards As discussed in detail in Chapter 2 of this report, the first step of the DSW environmental justice anal ys is 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 phy sicall y 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 ty pes of hazardous secondary materials, such as solvents. 6.1.2 Possibility of Hazards f rom Hazardous Secondary Materials Recycling Adversely Impacting Human Health and the Environment Is Increased u nder 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 addres s 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

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June 30 , 2011 Draft

- Do Not Cite or Quote 118 However, what the 2008 anal ys is failed to take into account was whether the conditions of the rule

—including the “contained” standard

— would operate as effectivel y i n 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, particularl y public participation requirements, which were not considered under the 2008 DSW final rule. A more detailed comparative anal ys is of the regulatory requirem ents 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 b y generators and recyclers. Potential incremental risks include fires/explosions, environmental contamination and human exposure (i.e., from releases and other accidents), mismanaged resid ues, 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 tran sportation 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 conse rvation 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

u nder 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 rec ycles material onsite under hazardous waste regulations Generator rec ycles material onsite under generator - controlled exclusion Potential i ncreased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures. Potential inc reased 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 gen erator activities, HSM quantities and ty

pes . 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 rec ycl es to RCRA
permitted facility under hazardous waste regulations Generator sends material offsite for rec ycling at a RCRA
- permitted facility under transfer

- based exclusion Potential i ncreased 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. Potentia l reduced risk at small generators of abandoned materials due to more frequent reporting and increased data on generator activities, HSM quantities and ty

pes . Potential reduced risk during transportation due to less frequent offsite shipments of HSM.Draft

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Hazardous Waste Baseline DSW Practices Summary of Increases in Risks Summary of Reductions in Risks Potential in creased 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

. Po tential 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 self

disclosure Generator exports material under hazard ous waste regulations for rec ycling reclamation in another country Generator exports material under the transfer

- based exclusion for rec ycling 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 ty

pes . Potential reduced risk of non - compliant behavior at small generators due to greater reporting and self

disclosure Potential reduced risk during transportation due to less frequent offsite shipments of HSM. Potential reduced risks include fewer transportationDraft

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Hazardous Waste Baseline DSW Practices Summary of Increases in Risks Summary of Reductions in Risks No change in risk at recycling facili ty
. 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 b y landfilling under hazardous waste regulation s Generator rec ycles material onsite under generator - controlled e xclusion Potential i ncreased 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 contaminati on 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 frequ ent reporting and increased data on generator activities, HSM quantities and ty

pes . Potential reduced risk of non - compliant behavior at small generators due to greater reporting and self

disclosure 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 benefitsDraft

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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 b y landfilling under hazardous waste regulation s Generator sends material offsite for rec ycling at a facility that it controls under generator - controlled exclusion Pote ntial 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 b y a tracking document. Potential increased risks include environmental contamination and potential human e xposure, and abandoned materials. Potential increased risk in communities surrounding Potential reduced risk at sm all generators of abandoned materials due to more frequent reporting and increased data on generator activities, HSM quantities and ty

pes . Potential reduced risk of non - compliant behavior at small generators due to greater reporting and self

disclosure 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 increasedDraft

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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 b y landfilling under hazardous waste regulation s Generator sends material offsite for rec ycling at a RCRA
- permitted facility under transfer

- based exclusion Potential i ncreased 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 ris k 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 ty

pes . Potential reduced risk of non - compliant be havior at small generators due to greater reporting and self

disclosure Potential reduced risk during transportation due to less frequent offsite shipments of HSM. Potential reduced risks include fewer transportation accidents, and lessDraft

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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 t o a RCRA permitted facility for treatment followed b y landfilling under hazardous waste regulation s Generator sends material offsite for rec ycling at a facility in the United States without a RCRA permit under transfer

based exclusion Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures. Potential increased risks include fires/explosions, environmental contamination and human exposure, and abandoned materials. Potential increased risk during transportation if HSM no longer qualifies as DOT hazardous material or does not trigger RQ. Po tential 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 ty

pes . Potential reduced risk during transportation due to less frequent offsite shipments of HSM. Potential reduced risks include fewer transportation accidents, and less pollutio n, traffic and noise.
Potential reduced risk atDraft

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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 includ e 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 toDraft

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Hazardous Waste Baseline DSW Practices Summary of Increases in Risks Summary of Reductions in Risks facility for treatment followed b y landfilling under hazardous waste regulation s for rec ycling 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 ty

pes . Potential reduced risk of non - compliant behavior at small generators due to greater reporting and self

disclosure 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 b eing reclaimed and less environmental damage from mining and energy consumptionDraft

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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 regulation s 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 transfer

based exclusion , or Generator sends material offsite for reclamation at a facility in the United States without a RCRA permit under transfer

based exclusion. Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures. Potential increased risks include fires/explosions, environmental contamination and human exposure, and abandoned materials. Potential increased risk during transportation if HSM no longer qualifies as DOT hazardous material or does not trigger RQ. Potential increased risks included environmental contamination and potential human exposure. Potential increased risk at new recycler due to longer accumulation times, and greater quantities accumulated. Potential increased risks include fires/explosions, environmental contamination and human exposure, 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 ty

pes . Potential reduced risk of non - compliant behavior at small generators due to greater reporting and self

disclosure 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 re cycler due to requirements for financial assurance and generator audits of recyclers underDraft

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Hazardous Waste Baseline DSW Practices Summary of Increases in Risks Summary of Reductions in Risks of residues under GCE. Potential reduced risk at n ew 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 resourc e conservation and environmental benefits due to greater quantities of HSM being reclaimed and less environmental damage from mining and energy consumptionDraft

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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 RCRA

permitted facility under hazardous waste regulation s 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 generator controlled exclusion , or Generator sends material offsite for reclamation at a facility in the Unite d States without a RCRA permit under transfer

based exclusion , or Generator exports material under the transfer

- based exclusion for reclamation in another country Same as corresponding scenarios 2

– 6 Same as corresponding scenarios 2

– 6, but with no res ource conservation benefits.Draft

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6.1.3 Many of the Communities Potential ly Impacted by this Potential Increase i n Risk of Adverse Impacts are Minority and Low - Income Communities , and i n Some Cases t he Populations Potentially Impacted Are Disproportionately Minority a nd/ o r Low Income The second and third steps of the DSW environmental justice anal ys is 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 identifie d 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 categorie s: 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 low

income 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 anal ys is, the question is whether the communities in a facility category had a higher or lower percentage of minority and/or l ow - 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 potentiall y 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 P otential 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

C omparison % communities with higher low

income representation (average difference) State Comparison

% communities with higher minority representation (average difference) State

Comparison % communities with higher low

income 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 analy sis 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 co ncern (minority or low

income) 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 conce rn, 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 analy sis shows a greater incidence of potential disproportionate impact to minority and low

- income populations than the community

- level analy sis. For the population

level anal ys is, the potential for disproportionate impact (i.e., rati os greater than one) occur under all categories, while the community

- level analy sis 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 h ave 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 conc ern do not appear to be disproportionatel y 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 popu lation analy

zed. Thus the same Affected Populati on or Demographic Ratio could beDraft

– 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 Ratio s are presented as an indicator of the statistical significance of the results

. The anal ys is includes comparisons of data at county , state, and national levels to help assess the sensitivity

of the results to sample size. The notification facilities we re located in only a small number of states, and therefore EPA anal yz ed each individual state. For other facility types, facilities were located in a large number of states , which presented challenges for presenting the information concisel y. While EPA c onducted analy ses 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 population s are presented for each anal ys is. 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 anal ys es 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 anal yz ed 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 cat egories are those identified by the U.S. Census for 2000. Additional anal ys es of other racial or ethnic groups for damage cases, hazardous waste facilities, and non

hazardous industrial waste facilities are beyond the scope of this effort. 6.1.4 Underlying Vuln erabilities Traditionally Associated with Minority and Low Income 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 potentiall y 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 Pathway s , (4) Ability to Participate in the Decision

Making Process , and (5) Phy sical 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 Jus tice During the Development of an Action July 2010. http://www.epa.gov/environmentaljustice/resources/policy/considering

- ej

- in

- rulemaking

- guide

- 07
- 2010.pdfDraft

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A key element of environmental justice is ensuring that al l people have an opportunity for meaningful involvement in decision

- making which may impact them. Certain groups may not have historicall y participated in decision

- making because of economic (e.g., income), social (e.g., language barriers, education level s, 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 ty

pes 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 condi tions). 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 ty

pes 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 , particularl y if competing interests are set forth more effectivel y. 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 analy sis of the cumulative effects from multiple stressors can provide a more complet e evaluation of a population’s health risks from pollutants. For example, an anal ys is of discrete stressors and effects on a population might conclude that nearb y pollution sources are within regulatory limits; however, an anal ys is of cumulative effects m ight 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 fac ilities also had no hospital facilities within the three kilometer area.Draft

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6.2 Poten tial Preventative and Mitigative Steps t hat EPA Could Explo re to Address the Potential Adverse Impacts to Minority and Low - Income Communities The sixth and final step of the DSW environmental justice analy sis 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 analy sis. 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 revisi ons 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 suppl y treatment plant, or air pollution control facility and other discarded materi al...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 includ ed 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 th at 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 way s that could increase environmental protection, including in environmental justice communi ties, while still appropriatel y 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 po tential 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 stan dard, 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 a nd 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 no t 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.Draft

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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 an d the environment as regulation as a hazardous waste. In addition to considering regulatory changes to address potential adve rse 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 facil ities 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 notifie d. 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 currentl y 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 consider s the affects of tracking, monitoring and enforcement across multiple state lines or whether HSW transport will operate smoothly across multiple state programs

. However, o ffsite transport of DSW

- excluded material that qualifies as a DOT hazardous material is generall y subject to transportation

- related regulation comparable to hazardous wa ste 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.Draft

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- 1 

### Attachment A. Comparison of Regulatory Requirements under 2008 DSW

Final Rule to RCRA and Other Federal RegulationsDraft

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- 2 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 opera ting 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 regul ations applicable to hazardous waste generators and permitted storage facilities operating under the federal hazardous waste regulations. For purposes of this anal ys is, a regulation is “comparable” to another regulation if they both have the same general objectives and appl y 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 regulation s , 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 h azardous 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

- b ased 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 wa ste 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 sub ject 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 wa ste storage requirements, including a storage permit.Draft

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- 3 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 briefl y 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 fed eral 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. Specificall y, if a federal requi rement 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 i s summarized in Column 2 of the tables, where relevant. In Column 3 of the tables, EPA briefl y 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 analy sis 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 determinin g 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 fo r 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. Howev er, the 2008 DSW final rule allow s generators to accumulate hazardous secondary material on

- site for longer periods of time. In addition, the 2008 DSW final rule do es not include a quantity limit for on

- s ite accumulation, as do the hazardous waste regulations for small quantity generators
.Draft

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- 4 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 n ot i nclude prescriptive requirements

—

rather, it provides a general performance standard . As such, the 2008 DSW final rule allow s 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 any way s , particularl y those that are otherwise subject to the hazardous waste regulations. In a ddition, 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 compl y 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 ai r 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 ob tain 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 , ty picall y 120 days following promulgation of a CAA rule applicable to that source , S ome 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 s urface impoundments, respectively , at facilities subject to a CAA permit, as specified. These subparts impose the same ty

pes 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. Fir st, their applicability to the regulated universe differ s in some respects. For example, many

of the CAA regulations appl y 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.Draft

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- 5 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 su bject 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 quest ion. 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 f acilities 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 facilitie s to prepare for and respond to emergencies. The 2008 DSW final rule, on the other hand, does not require emergency

preparedness and response. H owever, materials managed under the 2008 DSW final rule that are no longer contained in a uni t (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 regulatio ns, as applicable. In addition, other federal regulations may require emergency

preparedness and response at generators and facilities operating under the hazardou s waste regulations and the 2008 DSW final rule :
 CAA Chemical Accident Prevention Provision s. 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 C FR 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 non

transportation

- 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).Draft

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- 6  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) Standard s (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 CF R 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 warni ng, 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 partiall y comparable to the hazardo us waste regulations. However, it is likely that these regulations will not provide a level of emergency prep aredness and protection that is comparable to the hazardous waste regulations for all generators and facilities under the 2008 DSW final rule. Th is is explained further below:
 The Chemical Accident Prevention P rovisions 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 P revention P rovisions 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 . G enerators 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 generall y 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 facil ities 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 P rovisions , 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 b y the hazardous waste regulations particularl y 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 P rovisions , PSM Standard , and HAZWOPER Standard applies to releases that threaten safety or health (i.e., fire, explosion, or chemical exposure) . Th is definition does not necessarily

encompass en vironmental 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 theDraft

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- 7 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 emergenc y 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 hazardou s 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 unde r 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 facilitie s to provide recurrent training on emergencies , at a minimum. Small quantity generators must provide employe e familiarization. The 2008 DSW final rule does not require personnel training or familiarization . However, some generato rs 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 re quirements. 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 topi cs , 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 employ s “hazmat employees” to provide initial and recurrent training. The training must cover generalDraft

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- 8 awareness/familiarization, function

- specific training, safety, security awareness, and in

depth security. A hazmat empl oyee 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 emplo yees on their emergency

response program or, if they have opted to develop an ev acuation 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 n ot be subject to personnel training requirements that are fully comparable to the hazardous waste training requirements, as explained below:
 Th e Chemical Accident Prevention P rovisions 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 “re gulated 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 requi res 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, p articularly

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 c omparable topics as the hazardous waste regulations for large quantity generators and storage facilities. In addition, it is important to note that, if a facility employ s personnel that are not “hazmat” employees, such employees would not be required to r eceive 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 generall y be comparable to the hazardous w aste training required of generators and storage facilities under the hazardous waste regulations . However, facilitie s 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 particularl y for l arge quantity generators and storage facilities (e.g., use of emergency equipment, how to respond to fires and groundwater contamination).Draft

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- 9  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 Inthis regard, HazCom training may be comparable to training under the hazardous waste regulations particularl y for small quantity generators
. However, the hazard ous waste regulations require large quantity generators and storage facilitie s 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 sco pe 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 fac ilities must submit a Biennial Report describing their hazardous wastes and activities. The 2008 DSW final rule require s 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 haz ardous waste regulations and DSW transfer

- based exclusion require generator s 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

- of

custody 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 th e 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 regulation s 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 t o 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 OSH A’s interpretation of the HazCom regulations dated June 6, 1991. 51 All hazardous wastes are listed in Part 172 as DOT hazardous material s 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).Draft

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- 10  Generator
- Controlled Exclusion. Hazardous secondary materials under the generator

controlled 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 dri ving. Specificall y , the DOT regulations apply similar to hazardous waste and other ty pes 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 cop y , 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 i ts excluded material reached the intended destination intact, as is required b y the hazardous waste manifest regulations.
 Transfer

- B ased Exclusion. H azardous 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 ship ments 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 tabl e, and does not meet any hazard classifi cation

. Further, the Reportable Quantities (RQs) contained in 49 CFR p art 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 substance s 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 i s 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 requirement s (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 reco rds describing the waste exported

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- 11 Under the generator - controlled exclusion , exports are not allowed, and the HSM must be reclaimed within the U.S. The transfer

- based exclusion al lows generators to export excluded material and requires them to notify E PA 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 ty pes 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 haz ardous 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 gen erator - 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 resid uals 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). Li sted 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 spe cific 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 appl y 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 appl ying the hazardous waste determination requirements of 40 CFR 2 62.11. 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 accordingl y. 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.Draft

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- 12 The se 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 Security 53 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 transfer

based 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 obt ain financial assurance for closure. In addition, facilities must have and maintain liability coverage for sudden accidental occurrences and, if applicable, non sudden accidental occurrences. A variety of financial instruments are identified for these purposes (e.g., trust fund, surety bond). Therefore, the haz ardous waste regulations and transfer

based exclusion have comparable financial assurance requirements for closure and accidental occurrences . 3. 13 Requirement for a Permit The hazardous waste regulations require sto rage 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, a s 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 generator s. Generators must make reasonable efforts to ensure that their hazardous secondary material s will be safel y 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. Finall y, a hazardous waste

53 Paragraphs 3.11 through 3.1 4 describe the comparative findings presented in Table 3 for storage facilities under the hazardous wa ste 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 wa ste or hazardous secondary materials, and hen ce, they are not addressed in Tables 1 or 2 or in these paragraphs

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- 13 permit and the transfer

- based exclusion both require financial assurance for closure and sudden and non

- sudden occurrences.
 Differences. A hazardous waste permit c an be revoked or denied to prevent fa cility 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, essenti ally denyi ng 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 enf

orcement 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 st orage 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 permit s ). 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 Enforc ement 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, i t may be more difficu lt for regulator and facility personnel to inspect for compliance under the se 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 op erating 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 generator s 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

- base d exclusion.Draft

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- 14Table 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 1. Legitimate Recycling HW Rs : 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 HW Rs : LQG cannot accumulate waste onsite for more than 90 day s without a permit or being in compliance with the interim status standards. (40 CFR 262.34) HW Rs : SQG cannot accumulate waste onsite for more than 180 or 270 day s 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 ye ar 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 l imit for onsite accumulation, as does the HWRs for SQGs.Draft

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- 16 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 3. Containment HW Rs : 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 impoundm ents 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

- basedDraft

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- 17 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) units, unlike the HWRs, which require a permit or interim status that prescribe faci lity

and unit

specific standards.Draft

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- 18 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 4. Air Emissions HW Rs : 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). HW Rs : No air emission standards fo r 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 us ed by the generator under the exclusion. In addition, see “Other Federal Regulations” below for additional discussion.Draft

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- 19 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, 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 TP Y 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 p arts 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, a nd/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).Draft

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- 20 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 5. Emergency Preparedness and Response HW Rs: 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) HW Rs: 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 discus sion.Draft

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- 21 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, 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 proces s subject to Program 2 or 3 (e.g., a process that has had an accidental release within the past five ye ars with offsite consequences as specified) must prepare an emergency response program that includes an emergency plan (e.g., procedures for notifying of fsite 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 Chemi cal 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

resp onse 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 co mparable to the HWRs for L QGs or SQGs. They do not require emergency equipment, an emergency plan, or basic efforts b y 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 hasDraft

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- 22 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, 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 eva cuation 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 extremel y 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 effectivel y address some emergencies (e.g., if local responders respond immediatel y and control the emergency , such as l ocal 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, theseDraft

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- 23 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) provisions are not comparable to the HWRs for preparedness and response. CW A (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 re sponsibilities (e.g., for addressing discharges); and plans and procedures for responding to discharges. (40 CFR Part 112) The SPCC requirements set forth generall y comparable elements as the HWRs for emergency preparedness and response for oil dischar ges. 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 non

transportation

- related facility with aboveground oil storage capacity of more than 1,320 gallons that could reasonably

be expected to discharge petroleum

- basedDraft

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- 24 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) solvents to n avigable waters or adjoining shorelines in quantities that may be harmful). These criteria would not appl y t o certain ty pes 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 s ys tems, 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 n eed to handle small releases. Highly hazardous chemicals include toxic and reactive highl y 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 Managem ent 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

toDraft

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- 25 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) control/contain the emergency

. A facility must compl y with these regulations if it meets the specified applicability

criteria (e.g., if it accumulates a highl y hazardous chemical onsite above its threshold quantity). Section 1910.119, Appendix A, lists approximately

140 toxic and reactive highl y hazardous chemicals subject to regulation. OSH Act (Hazardo us Waste Operations and Emergency Response (HAZWOPER)) : Generators of hazardous waste must have an emergency

response program if it is required b y 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

respon se 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 L QG 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 CFRDraft

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) If the generator will evacuate emplo yees 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 sy stems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed b y 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., any where 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 sy stems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed b y 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 o f emergency responses. In addition, the evacuation plan is generall y comparable to the HWR requirements for SQGDraft

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, 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 eva cuation 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 phy si cal 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 ph ys ical or health hazard. (A generator of hazardous wa steDraft

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, 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 re quire information sharing and training. As such, these provisions are not comparable to the HWR requirement for LQG or SQG preparedness and response.Draft

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 6. Personnel Training HW Rs : 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. Howev er, 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 proc ess 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 P revention provisions require facilities in Program 2 and 3 to provide recurring personnel training on job operations and emergency

procedures. TheseDraft

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, 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., h as 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 generall y comparable to those required b y the HWRs for LQG and SQG training. A generator wou ld 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., faciliti es 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. CW A (Oil Pollution Prevention) : A generator that is a “non

- transpo rtation

- 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, dischargeDraft

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, 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 reasonabl y be expected to discharge pe troleum

- 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 17 2.101 (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 qual ify as a DOT hazardous Generators under the GCE that employ hazmat employe es must train them on a recurrent basis as required b y 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 theDraft

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, 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 l isted and does not meet any hazard class. A generator that emplo ys “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 b y 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 m aterial, 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 hazard ous chemical” at or above specified quantity must provide initial and refresher training of personnel involved in operating a process (e.g., job

related operating procedures, health hazards, emergency operations, evacuations). (29 CFR 1910.119) The Proces s Safety Management provisions require initial and refresher training on topics related to job

- related operations and emergencies. These topics are generall y comparable to the topics required b y the HWRs for LQG and SQG training.Draft

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, 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 highl y 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 appl y 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 was te generators and TSDFs. On the other hand, generators under the exclusion that continue to be L QGs 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 ex cluded material. TheseDraft

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) provisions require training on operating and emergency procedures. These topics are generall y comparable to the topics required b y 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., any where at the facility). The facility ’s program mu st 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 b y 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 applicabilityDraft

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, 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 saf ety data sheets, and information and training. Employees must be informed of operations in their work area where hazardous chemicals are present, among other things. Emplo ye e 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 m easures, 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 compar able to the HWRs for L QG training. A generator must comply with these regulations for any chemicals which could pose a phy sical or health hazard in the work place, except for hazardousDraft

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) waste. Generators would be subject to these requirements for their e xcluded materials, as well as other chemicals that are not hazardous waste (e.g., chemical products).Draft

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 7. Reporting and Recordkeeping HW Rs : 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) HW Rs : Recordkeeping for three ye ars (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 frequen cy

and ty pes 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 HW Rs : 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 E xcluded materials qualifying as aDraft

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, 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., flammabl e 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 DO T 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 w ith 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 designate d 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 woul d not need to be transported in accordance with the hazardous materials regulations. 9. Exports HW Rs : 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 isDraft

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, 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 HW Rs : 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

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 11. Requirement for a Permit HW Rs: 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 HW Rs : 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) GC E : 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

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- 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 Generator Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applica bility, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) permitting program and Clean Water Act (CWA) National Pollutant Discharge Elimination Sy stem (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 HW Rs : 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 L QG universe, so that the entire universe is inspected in five ye ars. HW Rs : No comparable guidance. GCE :

HW Rs : 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 HW Rs , which lay out prescriptive standards.Draft

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- 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 HW Rs : 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 o ut 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 HW Rs : LQG cannot accumulate waste for more than 90 day s without a permit or being in compliance with the interim status standards. (40 CFR 262.34) HW Rs : SQG cannot accumulate waste for more than 180 or 270 day s 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 ye ar 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

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- 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 HW Rs : 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

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- 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 HW Rs : 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, Sub part CC). HW Rs : 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 des ign, 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 TP Y 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 facilitiesDraft

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- 45 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 p arts 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 Am bient 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, a nd/or recordkeeping standards, as specified. operating under the TBE. These CAA standards include comparable ty pes of controls as the HWRs, e.g., design, operating, and monitoring. However, the CAA permitting and technical standards under the federal program would not appl y to facilities that:

 Have emissions below specified threshol ds (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).Draft

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- 46 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 HW Rs: 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) HW Rs: SQGs must:
 Have emergency equipm ent (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.Draft

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- 47 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 proces s 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 of fsite 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 Chemi cal 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 resp onse program set forth generall y 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 co mparable to the HWRs for L QGs or SQGs. They do not require emergency equipment, an emergency plan, or basic efforts b y 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 processDraft

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- 48 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). Onl y a subset of these facilities (e.g., those subject to Program 2 or 3) would be required to have an emergency

response or eva cuation 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 extremel y 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 effectivel y address some emergencies (e.g., if local responders respond immediatel y and control the emergency , such as loc al 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 p reparedness and response. CW A (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 generall y comparable elements asDraft

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- 49 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 non

transportation

- related facility with aboveground oil storage capacity of mo re than 1,320 gallons that could reasonabl y 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

-Draft

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- 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 hazard ous chemical” at or above the specified quantity must have an evacuation plan for the entire plant addressing evacuation procedures, alarm sy stems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed b y faci lity

personnel who remain to operate critical equipment before evacuation. The facility

also would need to handle small releases. Highl y 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 compl y with these regulations if it meets the specified applicability

criteria (e.g., if it accumulates a highl y hazardous chemical onsite above its threshold quantity). Section 1910.119,Draft

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- 51 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 a pproximately

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 b y 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 wi th 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 emplo yees and wil l 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 s ys tems, personnel responsibilities, evacuation traini ng, 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 nonetheles s qualify

as an L QG 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., availabil ity

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 presentedDraft

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- 52 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 (i ncluding 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 coordinati on with outside parties, emergency alerting and response), training for emergency response emplo ye es, 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 s ys tems, personnel responsibilities, evacuation training, offsite notification, and proce dures to be followed b y 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 generall y comparable to the HWR requirements for SQG preparedness and response. The evacuati on 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 .Draft

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- 53 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 safe ty

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 phy sical 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 andDraft

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- 54 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 HW Rs : 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 durin g 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 proc ess eligible for Program 1 (e.g., has not had accidental release of a regulated substance within the past five ye ars with offsite consequences as specified) are not required to provide training. Generators with a process subject to Program 2 or 3 (e.g., h as 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 generall y comparable to those required b y the HWRs forDraft

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- 55 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 train ing. 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. CW A (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 f

or 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 protoco ls, 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 ho w to carry out the SPCC Plan.Draft

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- 56 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 non

transportation

- related facility with aboveground oil storage capacity of more than 1,320 gallons that could reasonabl y be e xpected 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 comp ound 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 b y 49 CFR Part 172, Subpart H. The training must address function

- specific, safety and emergency

response topics, among other things. These topics are generall y comparable to the topics required b y the HWRs for LQG and SQG training as they

pertain to transportation

- related activities. Generators whose employees are notDraft

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- 57 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 emplo ys “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 mitigat ion 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 hazardo us 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., 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 generall y comparable to the topics required b y the HWRs for LQG and SQG training. A generator must comply with the Process Safety Management provisio ns if it meets the specified applicability

criteria (e.g., a generator that accumulates a highl y hazardous chemical onsite above its threshold quantity).Draft

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- 58 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 emer gency

response program if it is required b y 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 resp onse 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 han d, 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 generall y comparable to the topics required b y the HWRs for SQG training. However, these provisions do not require recurrent training, as do the HWRs for L QG training. Therefore, they

are not comparableDraft

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- 59 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 L QG 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 b y the HWRs for LQG and SQG training, as it relates specificall y 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 inform ation 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 emplo ye es 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 comparabl e to the topics of HWR training for SQGs. However, they are somewhat less rigorous than the HWR training requirements forDraft

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- 60 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 ph ys ical 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).Draft

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- 61 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 HW Rs : 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) HW Rs : Recordkeeping for three ye ars (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 ye ars:  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 sub mittals 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 L QGs. The TBE does not require excep tion 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 b y the HWR.Draft

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- 62 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 HW Rs : 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” be low 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 P art 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 haz ard 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 ab ove 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.Draft

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- 63 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 HW Rs : 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 HW Rs : 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 HW Rs : 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 HW Rs : No comparable guidance. TBE : No comparable guidance.Draft

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- 64 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.Draft

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- 65 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 appli cability, comments on comparability)

1. Legitimate Recycling HW Rs : 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 s pecified 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 b y reclaimer, as specified (40 CFR 261.4(a)(24)(v)(B)) E PA 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 HW Rs : 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. Inaddition,Draft

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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 appli cability, comments on comparability)
prescriptive requirements may be more conducive to inspection and enforcement, which could help to prevent a release. 3. Air Emissions HW Rs : 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, th e 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 TP Y 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 typ es of controls as the HWRs, e.g., design, operating, and monitoring. However, theDraft

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- 67 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 appli cability, comments on comparability)

In addition, EPA has established technical standards for the control of air emissions from stationary sour ces, 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 p arts 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, a nd/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).Draft

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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 appli cability, comments on comparability)

4. Emergency Preparedness and Response HW Rs: 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:Draft

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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 appli cability, 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). Faci lities 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 f or 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 arrang ements are not comparable to the HWRs for facilities. They do not require emergency

equipment, an emergency plan, or basic efforts b y onsite personnel to control the emergency

(e.g., extinguishing a fire). Note that a facility

would be subject to the Che mical 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.Draft

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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 appli cability, 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 wast e). (40 CFR Part 355) These notification provisions could effectively address some emergencies (e.g., if local responders respond immediatel y and control the emergen cy , 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. CW A (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; count ermeasures 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 generall y 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 non

transportation

- related facility with aboveground oil storage capacity of more than 1,320 gallons that could reasonably

be expected to dischargeDraft

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- 71 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 appli cability, 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 s ys tems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed b y facility personnel who remain to operate critical equipment before evacuation. The facility

also would need to handle small r eleases. Highl y hazardous chemicals include toxic and reactive highl y 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 requi re 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 generall y 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 compl y with these regulations if it meets the specified applicability criteria (e.g., if it accumulates a highl y hazardous chemical onsite above its threshold quantity). Section 1910.119,Draft

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- 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 appli cability, comments on comparability)
Appendix A, lists approximately 140 toxic and reactive highl y 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 emer gency

response, and to address other elements as specified (e.g., material handling program, training). Italso 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 interim

status 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 .1 20 (p) could appl y 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.Draft

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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 appli cability, comments on comparability)
Facilities must have an emergency response program if it is required b y EPA or state to have i ts 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, emerg ency

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 emplo yees who are responsible for emergency response operations for release s 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 generall y comparab le 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 notDraft

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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 appli cability, comments on comparability)
The program must include an emergency respo nse 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 sy stems, personnel re sponsibilities, 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 appl y 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 St andard (HazCom) for any excluded material and other chemicals that pose a ph ys ical or health hazard. (A TSDF managing 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 informationDraft

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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 appli cability, comments on comparability)
sharing and training. As such, these provisions are not comparable to the HWR requirements for preparednes s and response. 5. Security HW Rs : 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 HW Rs : 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 re levant 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 generallyDraft

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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 appli cability, comments on comparability)

Facilities with a proc ess 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., h as 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 train ing (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. CW A (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 oi l 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 c arry

out the SPCC Plan. A facility 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 orDraft

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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 appli cability, 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 S afety 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 b y the HWRs for LQG and SQG training. A facility must compl y with these regulations if it meets the specified applicability criteria (e.g., a facility that accumulates a highl y hazardous chemical onsite above its threshold quantity). OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)) : Facilities mu st have an emergency

response program if it is required b y 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 un der 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 top ics are generally comparable to the topics required b y the HWRs. However, these provisions do not require recurrent training on emergency

response, as do the HWRsDraft

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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 appli cability, 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 A ct (Hazardous Waste Operations and Emergency Response (HAZWOPER)) : A facility is required to establish an emergency response program if it has emplo yees who are responsible for emergency response operations for releases of, or substantial threats of relea ses 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., fir st 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 b y the HWRs for facilities, as it relates specificall y to emergency

response personnel. A facility must comply with these regulations if it meets the spec ified 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 phy sical 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 inform ation and training. Emplo ye es must be informed of operations in their work area where hazardous chemicals are present, among other things. Emplo yee 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 toDraft

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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 appli cability, 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 compl y 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).Draft

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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 appli cability, comments on comparability)

7. Reporting and Recordkeeping HW Rs : Reporting to EPA:
 Notification (40 CFR 264.11)  Biennial report (40 CFR 264.75)  Manifesting reports (40 CFR 264.72 and 264.76) HW Rs : 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 HW Rs : 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

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- 81 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 appli cability, comments on comparability)

9. Regulation of Residues HW Rs : 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 (unles s otherwise exempted) and would have to be managed accordingl y. 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 f

or 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 wasteDraft

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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 appli cability, 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 HW Rs : 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 safel y and legitimatel y m anaged. (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 complian ce 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 an d TBE both require financial assurance for closure and sudden and non

sudden occurrences. Differences  RCRA permit can be revoked or denied toDraft

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- 83 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 appli cability, 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, st ates and generators both have lead roles to evaluate facility

compliance. 11. Public Involvement in Permit Process HW Rs : 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 n ot 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:Draft

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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 appli cability, 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 Sy stem (NPD ES) 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

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- 85 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 appli cability, comments on comparability)

12. EPA/State Oversight and Enforcement HW Rs : 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 ye ars each operating TSDF; and
 Annually

inspect each TSDF operated b y 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, n o 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.Draft

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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 appli cability, 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 Resp onse 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 re gulatory program. EPA has esta blished 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.Draft

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- 88 5.1 .1 Hazardous Waste Generator Standard s (40 CFR Part 262) A hazardous waste generator is any person, b y 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, w aste 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 previousl y 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 a nd sham recycling

. As explained in the memorandum, a legitimacy determi nation involves evaluating case

- s pecific information to determine whether or not a secondary material being recycled is in effect being u sed 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 memo randum further explained that, depending on the case

- specific facts and circumstances, certain criteria may weigh more heavil y 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 day s or less without a permit or interim status, provided that specified standards are met. (262.34(a))
 SQGs may

accumulate hazardous waste o nsite for 180 day s 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 mayDraft

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- 89 accumulate the hazardous waste onsite for 270 day s 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, L QGs may

accumulate the ir 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 compl y 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 Eme rgency 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 i nternal and external communications and alarm s ys tems, fire control equipment, and water, if needed for the hazards posed b y 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;
 Id entify , 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 compl y with the personnel training requirements of 40 CFR 265.16. LQ Gs 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 RCRADraft

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- 90 requirements. It must ensure, at a minimum, that personnel are able to respond effectivel y to emergencies. Spe cified 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 prep are and submit a Biennial Report to EPA by March 1 of each even numbered year. The Biennial Report must be submitted on EPA Fo rm 8700

– 13A and include information about the generator, hazardous wastes generated , onsite management , and offsite shipment s . 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 day s (for LQGs) or 60 day s (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 ye ars:
 Manifests;
 Biennial Report (LQGs only); and
 Results of waste anal ys es, tests, and other determinati ons. Offsite Transportation Manifest System. Under 40 CFR Part 262, Subpart B, generators must prepare a hazardous w aste manifest for all offsite shipments, give it to initial the transporter, and retain a cop y. The transporter must ensure that the mani fest accompanies the shipment to the designated facility and retain a cop y. 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 g enerators 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

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- 91 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 b y March 1 of each ye ar to EPA, summarizing the ty pes, quantities, frequency , and ultimate disposition of all hazardous waste exported. The primary exporter must keep a cop y 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 Natio nal Program Manager (NPM) Guidance for Fiscal Year 2010 establishes performance expectations and activities related to the L QG universe for the EPA Regions and states. It requires that they annuall y 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 th e requirements and policy related to the legitimate recycling of hazardous waste. Containment F acilities 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, respectivel y. 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/post

closure of these units. Design Stan dards
 L iners and leachate collection and removal s ys tems
 A ir emission controls
 O ther control measures (e.g., dikes, run

- on/run

- off sy stems) 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 Apri l 23, 2009.” See page 44.Draft

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- 92  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 d etect leaks and ensure the unit is in good working order (e.g., at least weekl y for containers)
 Periodic monitoring of leakage rates from surface impoundments and waste piles Closure and Post

- Closure Care Standards
 R emoval or decontamination of all waste residues, contaminated containment sy stem 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 Emissi on Standards EPA has established air emission standards at 40 CFR Parts 264 and 265, Su bparts AA, BB, and CC. They

appl y 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 Part s 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 c onducted in specified units (e.g., units subject to permitting requirements). Facilities must design, operate , monitor, and maintai n their process vents to either 1) r educe total organic emissions from all affec ted process vents at the facility below specified levels or 2) r educe, b y 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 26 4 and 265, Subpart BB Part s 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 ty pes (e.g., units subject to permitting req uirements). Facilities must comply with the design, operation, inspection, monitoring, testing, maintenance , and recordkeeping standards for specified types of equipment (e.g., p umps , compressors, pressure relief devices). Air Emission Standards for Tanks, Surface Impoundments, and Containers at 40 CFR Parts 264 and 265, Subpart CC Part s 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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- 93 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 s ys tem 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 sy stems, fire control equipment, and water, if needed for the hazards posed by waste handled at the facility

. Emergency Plan and Response. Facilities must comply wi th 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 non

sudden 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, includi ng:
 Notify

onsite and offsite personnel/agencies as specified;
 Id entify , 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 b y 40 CFR 264.14 and 265.14. This must include a surveillance s ystem 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 appl y 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 sing le copy of a biennial report to EPA by March 1 of each even numbered year. The report mustDraft

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- 94 include information about the facility , wastes received (e.g., from offsite ) , management and disposal method s . Discrepancy Report. 40 CFR 264.71 and 265.71 require a fac ility 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 day s, explaining the discrepan cy 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, notice s and certifications). Financial Assurance 40 CFR Parts 264 and 265, Subpart H require s 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 unit s . Owner/operators of surface impoundments, landfills, land treatment units, and waste pile units also must have post

- closure permits, unle ss 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 per mit 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 forDraft

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- 95 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 i ntent 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 day s 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 expec tations 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 b y 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 Ex c lusion (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)) The generator

- controlled exclusion exclude s from the definition of solid waste those hazardous secondary materials which remain under the control of the generator when legitimatel y reclaimed. The exclusi on 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.Draft

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- 96 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 exclu sion 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 materi al 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 closel y 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 c onsider 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 legitimatel y rec ycled. 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 factor s. 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 speculativel y” if it is accumulated befor e being recycled. A material is not accumulated speculativel y, 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 e xclusion require s that the material be contained. Air Emission StandardsDraft

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- 97 The generator

- controlled exclusion require s that the material be contained

. Emergency Preparedness and Response The generator

- controlled exclusion do es not require emergency preparedn ess and response. Personnel Training The generator

- controlled exclusion do es 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), (2 4), 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:
 In formation about the claimant and e xclusion 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 do es not include provisions for offsite transportation. Exports The generator

- controlled exclusion do es not include provisions for exporting material outside the U.S. The exclusion requires that the material be generated and reclaimed with in the United States or its territories. Regulation of Residues The generator

- controlled exclusion do es 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 - B ased Exclusion (40 CFR 261.4(a)(24) and (25)) The transfer

- based exclusion exclude s from the definition of solid waste those haz ardous 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 th e reclamation of the material be legitimate, as spec ified under 40 CFR 260
. 43. Section 2.1 of this appendix on RCRA summarizes the requirements for legitimate recycling under 40 CFR 260 .43.Draft

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- 98 In addition, 40 CFR 261 .4(a)(24)(v)(B) requires that, p rior 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 legitimatel y reclaim the hazardous secondary material and not dis card it, and that each facility will manage the hazardous secondary material in a manner that is protective of human h ealth 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 affirmativel y answer. Section 3.2.10 of this appendi x 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 accumulatio n provisions of 40 CFR 261 .1(c)( 8). Containment 40 CFR 261.4(a)(24)(v)(A) require s that the material be contained. Air Emission Standards 40 CFR 261.4(a)(24)(v)(A) require s that the material be contained. Emergency Preparedness and Response The transfer

- b ased exclusion does not include provisions for emergency preparedness and response. Personnel Training The transfer

- based exclusion do es 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 ty pes of information that must be submitted. The generator must also make document ation and certification of its reasonable efforts available upon request b y a regulatory authority within 72 hours, or within a longer period of time as specified b y the regulatory authority , as required by 40 CFR 261 .4(a)(24)(v)(C)

. Recordkeeping . 40 C FR 261.4(a)(24)(v)(C) requires the generator to maintain for a minimum of three ye ars 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 off site shipments of hazardous secondary materials and confirmations of receipt from each reclaimer and, if applicable, each intermediate facility for all off site shipments of hazardous secondary materials.Draft

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- 99 Offsite Transportation 40 CFR 261.4(a)(24)(ii ) requires the material not be handled b y 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 day s 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 ye ars records of all off

- site shipments of hazardous secondary materials. For each shipment, these records must, at a minimum, contain the following inform ation:
 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 ty

pe 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 ye ars confirmations of receipt from each reclaimer and, if applicable, each intermediate facility

for all of f

- site shipments of hazardous secondary materials. Confirmations of receipt must include the following information:
 Name and address of the reclaimer (or intermediate facility);
 Ty pe and quantity of the hazardous secondary materials received ; and
 D ate whi ch 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 h azardous 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 appli cable requirements of 40 CFR 261 .4(a) (24)(i)

– (v) (excepti ng paragraph (a) (24) (v)(B)(2) for foreign reclaimers and foreign intermediate facilities) . The generator also must compl y 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 wi th EPA no later than March 1 of each ye ar, summarizing the ty pes, 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 th is appendix on RCRA summarizes the ty pes of information that must be submitted under 40 CFR 260 .42.Draft

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- 100 Regulation of Residues The transfer

- based exclusion do es 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 th e reclamation of the material be legitimate, as spec ified under 40 CFR 260 .43. In addition, generators must make reasonable efforts as applicable to ensure that each facility intends to properl y and legitimatel y 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) require s 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 phy sical 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 do es not include requirements for emergency preparedness and response. Security The transfer

- based exclusion do es not include requirements for security. Personnel Training The transfer

- based exclusion do es 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 ty pes 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 ye ars records of all shipments of hazardous secondary material that were received at the f acility and, if applicable, all shipments of hazardous secondary

materials that were rec eived and subsequentl y sent off site from the facility for further reclamation. Financial AssuranceDraft

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- 101 40 CFR 261.4(a)(24)(vi)(F ) requires the reclaimer and intermediate facil ity to have financi al assurance as required under Subpart H of 40 CFR P art 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 ag gregate 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 hazardo us characteristic according to Subpart C of 40 CFR P art 261, or if they themselves are specificall y listed in Subpart D of 40 CF R P art 261, such residuals are hazardous wastes and must be managed in accordance with the app licable requirements of 40 CFR P arts 260 through 272. Requirement for a Permit The transfer

- based exclusion does not require the intermediate or reclamation facil ity 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 b y 40 CFR 261 .4(a)(24)(v)(B). The generator s 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 activi ties 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 ye ars for violations of the RCRA hazardous waste regulations and has not been class ified 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 ye ars 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 hazardou s secondary materials properly?Draft

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- 102  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 safel y rec ycle 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. Italso 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 b y 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. Draf t 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 ye ar of any single Hazardous Air Pollutant (HAP) or more than 25 tons per year of HAPs in total. Inaddition, 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

co pper smelting;
 Secondary

copper smelting ;Draft

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- 103  Nonferrous metals area sources ;
 Glass m anufacturing ; and
 Electric arc furnace (EAF) steelmaking f acilities

. 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 i ncluded in a permit to control air emissions. These standards could potentially appl y 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 Ac t Standards of Perform ance 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 (m 3 ) (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 che micals 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 Com pound (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 fromSource 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 org anic 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 Wastewat er. 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. Th e provisions of this subpart apply to synthetic organic chemical manufacturing industry facilities that are covered under Part 63, Subpart F (above).Draft

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- 104 Examples of Technical Standards under the Clean Air Ac t Subpart DD

—

National Emission Standards for Hazardous Air Pollutants from Off

- Site Waste and Recovery Op erations. 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 equip me nt 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

p rovisions 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 ta ble 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 ty pes of facilities that could claim a DSW exclusion. For more information on area sources and applic able 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 /o perators 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 thresh old quantities ranging from 500 to 20,000 pounds. Part 68 requires the owner/operator of a stationary source to d evelop a risk management plan (RMP) that describe s the facility ’s ris k management program. The RMP is made available to federal, state, and lo cal 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 ye ars 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 Sy stem (NAI CS) codes) are placed in Program 3. Following is a summary

of the Part 68 requirements relevant to this anal ys is.

56 These regulated substances are also CERCLA hazardous substances. Facilities subjec t to Part 68 also would be subject to OSHA requirements as applicable (e.g., at 29 CFR 1910.119 and 1910.120).Draft

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- 105 Emergency Pr eparedness and Response Owner/operators of a stationary source with a process eligible for Program 1 must designat e a point of contact for emergency response and at least mak e 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 includ ed 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 quanti ty, 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 emergen cy 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 res ponse 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/op erators 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).Draft

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- 106 5.4 Clean Water Act (CWA) -- Oil Pollution Prevention The Clean Water Act authorizes requirements to prevent the discharge of oil from non

transportation

- 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

. ” P art 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 t o form a comprehensive federal/s tate 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 capac ity of more than 1,320 gallons and completely buried oil storage capacity of 42,000 gall ons 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, s ynthetic 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 countermea sures to a discharge

. The Plan must address specified topics, such as:
 Discharge prevention measures;
 Countermeasures for discharge discovery , response, and cleanup;
 Containment and/or divers ionary 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, g eneral facility operations and the contents of the facility SPCC Plan. The facility must s chedule 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 recentl y developed precautionary measures.Draft

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- 107 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, C ompensation 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 o r facility in a quantity

equal to or exceeding the reportable quantity (RQ) determined by

Part 302 in any 24
- hour period, immediatel y 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 “extremel y hazardous substances” (EHSs) are authorized under the Comprehensive Environmental Response, Compensation and L iability 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 compl y with its emergency release notification requirements if it produce s , use s , or store s a hazard ous 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 fac ility must immediately

notify the community

emergency

coordinator for the local emergency planning committee of any area likely to be affected b y the release as well as the State Emergency Response Commission of any state likely

to be affected by

the relea se. 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 b y 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 o f adequatel y 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. DOTDraft

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- 108 regulations set forth packaging, handling, labeling, marking, placarding, operational , and rout ing 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 Hazardou s 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 anal ys is

. 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 hazardo us materials, such as health hazards, risks of fire/explosions, methods for handling fires/spills). A “hazmat employer” is a person who employ s or uses at least one hazmat employee and who is involved the transportation of hazardous materials as specified. A “hazmat” emplo yee is a person who is emplo ye d 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 lay s out general information, regulations and definitions. It define s “hazardous materials” as those materials designated b y 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 subst ances, 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, labe ling, 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 §17 2.101) 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.Draft

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- 109  Subpart C

– Shipping Papers. The shipping document for hazardous materials must be prepared b y the shipper and contain the proper shippin g 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 b y a shipping paper. The shipper must certify

and retain the shipping pap er for 2 years. Carriers must check to ensure that the material offered b y the shipper is properl y described, carry the shipping paper during transportation, and retain a cop y 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 trans port unless the hazardous material markings appl y 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 properl y l abeled 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

– Em ergency Response Information. An emergency response numb er 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 i nformation 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.” P art 397 applies to each motor carrier engaged in the transportation of hazardous materials b y a motor vehicle that must be marked o r placarded under 49 CFR Part 172, as specified. These rules appl y to each officer or emplo yee who performs supervisory duties related to the transportation of hazardous materials and each person who operates the vehicle containing the hazardous materials

. Offsite Transport ation 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 veh icle. A motor vehicle which contains an explosive material must be attended at all times byDraft

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- 110 its driver or a qualified representative of the motor carrier that operates it, except as otherwise specified. In addition, a motor vehicle that contains hazardou s 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 withi n 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 o r 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 Administrati on (OSHA) at the federal level and applies to private sector workers in the U.S. with few exceptions (e.g., the self

- employed). Itdoes 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 Highl y 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 d efined in 29 CFR 1910 .120 0(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 “highl y 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 p rocedures 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 performi ng 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. Emplo ye e s must be trained in an ove rview of the process and in operating procedures as specified (e.g., safety sy stems and functions). The training must include emphasis on the specific safety and health hazards, emergency operations including shutdown, and safe workDraft

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- 111 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 appl y permitted and interim

status treatment, storage, and disposal facilities ( TSDFs ) . In addition, hazardous waste generators must comply

with 2 9 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 b y 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 releas es of hazardous substances where the substance can be absorbed, neutralized, or otherwise controlled at the time of release b y employees in the immediate release area, or by maintenance personnel are not considered to be emergency responses within the scop e 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 t o hazardous waste generators, except for emergency preparedness and response (i.e., 1910.120(p)(8)). Specifically , generator s who are required b y the EPA or state agency to have their employees engage in emergency

response or who direct their emplo ye es t o 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 b y 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 emplo ye es 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 p rocedures for reporting a fire or other emergency ; emergency evacuation, including ty

pe of evacuation and exit route assignments; operat ing critical plant operations before evacuation ; accounting for all employees after evacuation; and performi ng rescue or medical duties. Person nel TrainingDraft

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- 112 Employers must provide i nitial and annual refresher training that is part of the employer’s safety and health program. The training must be designed to enable emplo ye es 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 e mergency response program s 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 p rogram 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 emplo ye es from the danger area when an emergency occurs, and who do not permit any of their employees to a ssist 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 p rocedures for reporting a fire or other emergency ; emergency evacuation, including ty

pe of evacuation and exit route assignments; operat ing critical plant operations before evacuation ; accounting for all employees after evacuation; and performi ng rescue or medical duties. Perso nnel Training Employers must provide i nitial 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 mat erials technicians). Topics to be covered b y 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 asso ciated with them in an incident;
 An understandi ng of the potential outcomes associated with an emergency created when h azardous 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 CommunicationDraft

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- 113 OSHA established “Hazard Communication” (HazCom) at 29 CFR 1910.1200. The purpose of the HazCom Standard i s 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 phy sical hazard or a health hazard . However, the HazCom Standard does not apply to RCRA hazardous wast e. 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 . Specificall y, e mployees must be informed of the requirements of the HazCom Standard, any operations in their work area where hazardous chemicals are present , and the lo cation and availability of the written hazard co mmunication program, including the required list(s) of hazardous chemicals, and material safety data sheets required b y 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 b y the employer, continuous monitoring devices, visual appearance or odor of hazardous chemicals when being released;
 The phy sical and health hazards of the chemicals in the work area;
 The measures emplo yees 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 p rotective equipment to be used; and
 The details of the hazard communication program developed b y the employer.Draft

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- 1 

### Attachment B. Waste and Facility Classification MethodologyDraft

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- 2 

### Classification of Waste s as “Wastewaters” or “Nonwastewaters” Classification of waste streams into wastewaters” and “nonwastewaters ” is important because wastewaters are generall y dilute streams with low levels of recoverable material and are generall y not amenable to recycling. In classifying waste s as “wastewaters” or “nonwastewaters,” it is important to consider that: (1) the onl y concrete regulatory definition of wastewater under RCRA is specific to the Land Disposal Restrictions (LDR) Program (40 CFR Part 268) 57 and (2) the B iennial R eport does not contain a data element that indicates positively whether a hazardous waste is wast ewater or nonwastewater according to this or any other definition. Thus, EPA use d a methodology that relies on some of the data reporte d 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 ty pe 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 waste s when dealing with generated and/or m anaged waste, the methodology was applied in two steps. First, EPA appl ied the methodology to managed waste s. Then, EPA appl ied the methodology to generated waste s, based on data developed for the managed waste s. A detailed description of the method ology that was used to classify waste s as “wastewaters” or “nonwastewaters” is provided below. 58 Classification of Managed Waste s To classify managed waste s, EPA use d the following methodology : 59

 If the waste is represented by one of the following waste fo rm 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 b y 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 me thodology 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 Recove ry (ORCR). 59 The methodology used in this analysis to classify waste streams as “wastewaters” or “nonwaste waters” 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 believe s that the methodology used in this analysis is a better approach for analyzing generation and management of hazardous wastes
.Draft

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- 3

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:” Managem ent Me thod Code Managem ent 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 [P OTW ]

or surface water (National Pollutant Discharge Elimination Sy stem [NPDES] with prior storage

- with or without treatment)

 If the waste ha d not been classified as a wastewater in the previous steps, it was classified as “nonwastewater.” Classification of Generated Waste s As described above, in some instances, a generated waste may be managed using more than one ty

pe 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) woul d 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 waste s, the following approach was followed in classifying generated waste s as “wastewaters” or “nonwastewaters:”

 If a managed waste was classified as “wastewater” only , the generate d waste was also classified as “wastewater.”

 If a managed waste was classified as “nonwastewater” onl y, the generated waste was also classified as “nonwastewater.”Draft

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- 4  If a managed waste was classified as both “wastewater” and “nonwastewater:”

o Estimate d th e quantity of wastewater and nonwastewater associated with the waste
. o Compare d 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 no nwastewater quanti ties were the same, EPA refer

red to the form code to make a determination. Waste s represented by the following form codes were classified as “wastewaters , ” While the remaining waste s 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 MethodologyDraft

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- 2 Facilities may

report multiple EPA hazardous waste codes for each waste , which can pose problems with double

- counting when anal yz ing the data by waste code. To make this ty pe of anal ys is 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., waste s that onl y i nclude 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., waste s with multipl e 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 step

wise manner, following an established hierarchical order. That is, if a waste ’s wast e codes me t the criteria at a given step, it was assigned to the corresponding waste code group for that step and the methodology end ed . However, if a waste ’s waste codes did not meet the criteria for the step , the methodology continue d to the next step u ntil 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
. Waste s Represente d 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 b y “D001,” was assigned to the “D001” waste code

group. Waste s Represented b y Multiple EPA Hazardous Waste Code s 2. If the list of waste codes representing the waste include d “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 b y “ D003;D011;LABP;P104;P106 ,” was assigned to

the “LABP” waste code group.Draft

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- 3 3. If the list of waste codes representing the waste include d “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 b y “ F039;K027;U221;U223 ,” was assigned to the

“F039” waste code group. 4. If the list of waste codes representing the waste include d 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 b y “ D004;D007;F032;F035;K001 ,” would be

assigned to the “K001” waste code group. 5. If the list of waste codes representing the waste include d 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 b y “ D001;D003;D018;F037;K050;K051 ,” was

assigned to the “KPET” waste code group. 6. If the list of waste codes representing the waste include d 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 r epresented b y “ D018;K171;K172;U220 ,” was assigned to the

“KXXX” waste code group. 7. If the list of waste codes representing the waste include d 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 b y “ D001; D002;D003;F002;U044 ,” was assigned to

the “F002” waste code group.Draft

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- 4 8. If the list of waste codes representing the waste include d multiple F001

- F005 waste codes, the waste was assigned to the “F1_5” waste code group. Note that, in addition to the reported F0 01
- 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 b y “ D001;D039;F001;F005 ,” was assigned to the

“F1_5” waste co de 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 wa ste 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 b y “ D003;D008;F007;F008;P106 ,” was assigned to

the “F6_9” waste code group. 10. If the list of waste codes representing the waste include d 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 b y “ 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 wa ste 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 b y “ D037;D042;F021;F027 ,” was assigned to the

“F20S” waste code group. 12. If the list of waste codes representing the waste include d 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 b y “ F032;F034 ,” was assigned to the “F30S” waste

code group.Draft

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- 5 13. If the list of waste codes representing the waste include d 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 b y “ D018;F037;F038 ,” was assigned to the “PSLU”

waste code group. 14. If the list of waste codes representing the waste include d 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 b y “ D001;D026;F003;F032;U188 ,” was assigned to

the “FMIX” waste code group. 15. If the list of waste c odes representing the waste include d 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 thi s waste could include any D waste code(s). Example: A waste represented b y “ D002;U001 ,” was assigned to the “U001” waste

code group. 16. If the list of waste codes representing the waste include d 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 b y “ D001;U118;U162 ,” was assigned to the “UMIX”

waste code group. 17. If the list of waste codes representing the waste include d 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 b y “ D001;D003;D004;P001 ,” was assigned to the

“P001” waste code group.Draft

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- 6 18. If the list of waste codes representing the waste include d 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 b y “ 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 b y “ P012;P105;P119 ,” was assigned to the “PMIX”

waste code group. 20. If the list of waste codes representing the waste include d 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 b y “0000;D008,” was assigned to the “D008” waste

code group. 21. If the list of waste codes representing the waste include d 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 reporte d D004

- D017 waste code. The list of waste codes could not include any other D code. Example: A waste represented b y “ D001;D002;D007 ,” was assigned to the “D007”

waste code group. 22. If the list of waste codes representing the waste include d 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 b y “ D001;D007;D008 ,” was assigned to the “TCMT”

waste code group. 23. If the list of waste codes representing the waste include d 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 b y “ D016;D017 ,” was assigned to the “PEST” waste

code group.Draft

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- 7 24. If the list of waste codes representing the waste include d 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 “TCORI CR” 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 b y “ D001;D018 ,” was assigned to the “TCORI CR”

waste code group. 25. If the list of waste codes representing the waste include d multiple D018

- D043 waste codes, the waste was assigned to the “TCOR Only” waste code group (i.e., TC organics onl y). The list of waste codes could not include any other D code. Example: A waste represented b y “ D019;D022 ,” was assigned to the “TCOR Only”

waste code group. 26. If the list of waste cod es representing the waste include d 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 include d multiple D waste codes (other than the combination of D codes noted above) , the waste stream was assigned to the “DMIX” waste code grou p. Example: A waste represented b y “ D002;D004;D011;D028;D035 ,” was assigned to

the “DMIX” waste code group.Draft

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- 8

Exhibit C - 1: Waste Code Group Methodology Step Number Reported EPA Hazardous Waste Code(s) Waste Code Group

Most Specific 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”) An y K, F, U, P, or D waste code(s) LABP 3 F039 An y K, F, U, P, or D waste code(s) F039 4 Single K code An y F, U, P, or D waste code(s) Single K code 5 K048
- K052 combinations only An y F, U, P, or D waste code(s) No other K waste codes KPET
6 K code combinations An y F, U, P, or D waste code(s) KXXX 7 Single F code An y U, P, or D waste code(s) Single F code 8 F001
- F005 combinations An y U, P, or D waste code(s) No other F waste codes F1_5
9 F006
- F009 combinations An y U, P, or D waste code(s) No other F waste codes F6_9
10 F010
- F012 combinations An y U, P, or D waste code(s) No other F waste codes F1012
11 F020
- F028 combinations An y U, P, or D waste code(s) No other F waste codes F20S
12 F032
- F035 combinations An y U, P, or D waste code(s) No other F waste codes F30S
13 F037/F038 combinations An y U, P, or D waste code(s) No other F waste codes PSLU (Petroleum sludges)
14 An y other F mixtures An y U, P, or D waste code(s) FMIX 15 A single U code An y D waste code(s) No P waste codes The U code
16 U mixtures An y D waste code(s) No P waste codes UMIX
17 A single P code An y D waste code(s) No U waste codes The P code
18 U and P mixtures An y D waste code(s) U&PS 19 P mixtures An y D waste code(s) PMIX 20 A single D code An y invalid code The D code 21 An y 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 PE ST (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 An y other D mixtures None DMIXDraft

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- 9Draft

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- 1 

### Attachment D. Methodology for Identifying Potentially Recyclable Hazardous WastesDraft

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- 2 The Regulatory

Impact Analy sis (RIA) developed for the Definition of Solid Waste (DSW) Rule 60 uses a two - step data screening (i.e., data selection) process or methodology

to identify

potentially recyclable hazardous wastes. This methodology is applied to waste s 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 typ es of materials involved in each of these three recovery methods. EPA identified and assigned the screening codes based on d etermining whether each of the codes pertained to metals, solvents, or to other ty pes of materials contained in the wastes which might be amenable for rec overy 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.Draft

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- 3  If the waste is not associated with any of the above waste form codes , but is represented b y 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 I norganic wood preservative waste (arsenic or chromium) K002, K003, K004, K005, K006, K007, K008 I norganic pigment mfg sludge & residues (listed for chromium) K064, K065, K066, K069, K086, K100 L ead

- or chromium

- bearing K061 I ron & steel mfg emission dust K071, K073, K106, K176, K177, K178 I norganic chemical m anufacturing K171, K172 P etroleum refining spent catalysts

 Note that, i f the waste stream is represented b y waste form code W312 ( c yanide 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 generall y not recycle d by metals recovery , but by other recovery

processes.Draft

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- 4 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 b y 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 S pent solvents F024, F025 Chlorinated aliphatic manufacturing K086 S olvent washes of ink equipment Possible Other Recovery ( Carbon Re generation 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 b y 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)Draft

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- 5  Note that, i f the waste is represented b y waste form code W312 ( c yanide 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 generall y not recycled by

metals recovery , but by

other recovery

proc esses. Step 2: Secondary screening criteria (physical quality) The purpose of these secondary screening criteria is to introduce a consideration of the anticipated phys ical quality of the waste
. The secondary screening criteria consist of six elements as follows: (1) Remove waste s that were residuals from hazardous waste management processes. Residuals generated b y either (a) current materials recovery operations (H010, H020, H039), (b) energy /fuel recovery operations (H050, H061), or (c) thermal destructive treatment processes (H0 40), are assumed not to have a high content of recoverable material and are assumed will continue to be disposed. This corresponds to removing waste s with source code G25. Wastes that are disposed of with RCRA waste codes F006 and F007 were retained because these potentiall y recoverable wastes were often reported using this source code because they are derived from wastewater treatment processes. (2) Remove waste s 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). G iven their one

- time nature of generation, generators are unlikel y to go through the notification process to the A gency

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 wa ste s with waste descriptions containing the word “debris” from the data set. The material values from these wastes are less likel y to be recoverable given they

are not generated in a controlled process environment. Given their one

- time nature of generati on, generators are unlikely to go through the notification process to the A genc y for an exclusion from the definition of solid waste for a one

- time waste generation event.Draft

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- 6 (4) Remove waste s with waste descriptions indicating they are “rinsewaters” or “ groundwaters” to ensure the phy sical makeup of the waste (i.e., the minimal recoverable material concentration) is technically sufficient for recovery . These dilute aqueous

- based wastes typi cally do not contain recoverable fractions of valuable mat erials. This screening criterion was only applied to waste s 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 waste s:

 On
- site Commodity

Group #2 quantities were primarily managed by non - beneficial incineration (H040), or b y beneficial energy recovery (H050), or beneficial fuel blending ( H061). For the purposes of the RIA, it wa s 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 relativ el y l arge 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 waste s corresponding to on

- site management involving H04 0, H050 and H061. Note, however, that the RIA does not remove waste s corresponding to off

- site management involving H040, H050, and H061

.

 All records with form code W310 not containing the word “carbon” o r “charcoal” in the waste description were deleted. This is necessary because the definition of the W310 phy sical/chemical form code allows reporting together in this single code for four different ty pes 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 waste s in the B iennial R eport for any

given data year, it was beyond the time and resource constraints of the RIA to individually examine each narrative comment for waste s containing the “other” code sub

- categories

. This corresponds to removing waste s for H129 “other treatment

. ” The “other” form codes already were removed b y their exclusion from the “primary” screening selection criteria.Draft

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- 2



### 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 p

value which is reported as “N/A” and in such cases the Kendall Test results can be used as a good approximation.Draft

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- 3 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 hy

pothesis. Mantel - Haen s zel 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 a ll the tables for the individual states. It can be shown that this value is a weighted average of the state

- specific Affected Population Ratio s. 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 hy pothesis is that the underlying Threshold Risk Ratio is equal to one for all the states, which is mathematically the sameDraft

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- 4 as saying that the underl ying Demographic Ratio is equal to one for all the states, which in turn is th e same as the null hy pothesis 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 on e 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)/(n 3

– n2 )} 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 χ 2

. 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 χ 2 tests. 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 anal ys is of data from retrospective studies of diseases. J. Natl. Cancer Inst. 22: 714
- 748.Draft

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- 1



### Attachment F. Acronyms and Abbreviations
A AFS Air Facility Sy stem AIAN American Indian/Alaska Native

B BR Biennial Report

C CAA Clean Air Act CERCLA Comprehensive Environmental Response, Compensation and L iability

Act CERCLIS Comprehensive Environmental Response, Compensation and Liability

In formation Sy stem CESQG Conditionally Exempt Small Quantity CWA Clean Water Act

D DNA Deox yribonucleic 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 JusticesDraft

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- 2 EPA Please see U.S. EPA EPCRA Emergency Planning and Community Right

- to - Know Act F FR Federal Register FRS Facility Registry S ys tem

G GCE Generator
- Controlled Exclusion GIS Geographic Information Sy stems 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 Sy stem

K K061 Electric arc furnace dust

L LDR Land Disposal RestrictionsDraft

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- 3 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 Sy stem NPL National Priorities L ist 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 Tetrachloroeth yl ene

Publicly Owned Treatment Works ppm Parts per millionDraft

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- 4 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 Id entification SOCMI Sy

nthetic Organic Chemical Manufacturing Industry SPCC Spill Prevention, Control, and Countermeasure SQG Small quantity generators T TBE Transfer

- Based Exclusion TPY Tons per Year AP R Affected Population Ratio TSDF Treatment , S torage, or Disposal Facility

U U.S. United States U.S. EPA United States Environmental Protection Agency

VDraft

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- 5 VOC Volatile Organic Compound

W WR Waste Received from Off

- siteDraft

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- 1



### Attachment G. G lossary
A Air Facility System C ontains compliance and permit data for stationary sources regulated b y EPA, state and local air pollution agencies A merican I ndian Alaska N ative 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 whic h the Census Bureau tabulates sample data from the decennial census. C Census Block An area bounded b y 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 E stablishes the basic structure for regulating discharges of

pollutants into the waters of the United States and regulating quality standards for surface watersDraft

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- 2 Comprehensive Environmental Response, Compensation and Liability Act Known as CERCLA or Superfund, provides a Federal “Superfund”

to clean up uncontrolled or abandoned hazardous waste s ites as well as accidents, spills, and other emergency releases of pollutants and contaminants into the environment. Comprehensive Environmental Response, Compensation and Liability Information System CERCLI S is EPA’s inventory of abandoned, inactive, or uncontrolled hazardous waste sites regulated under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Itrecords information about all aspects of hazardous waste sites from initial discovery to listing on the National Prio rities L ist (NPL). Conditionally Exempt Small Quantity Generator G enerate 100 kilograms or less per month of hazardous waste, or 1

kilogram or less per month of acutel y hazardous waste

D D 001 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 o f the Definition of Solid Waste under RCRA for certain

ty pes of hazardous secondary materials being recycledDraft

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- 3

E EJ Toolkit Toolkit for Assessing Potential Allegations of Environmental

Justices Emergency Planning and Community Right - to - Know Act E stablishes 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 Cre ated b y 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 an d focusing OECA’s enforcement and compliance in those areas. F F00 3 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 centrall y managed database that identifies facilities, sites

or places subject to environmental regulations or of environmental interest. G Generator Controlled Exclusion Materials that are generated and transferred to another c ompany for

legitimate reclamation under specific conditions Geographic Information A computer s ys tem 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,Draft

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- 4 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 b y the Pipeline and Hazardous Materials Safety

Adminis tration and govern the transportation of hazardous materials b y highway, rail, vessel, and air. The HMR address hazardous materials classification, packaging, hazard communication, emergency response information and training. Hazardous Materials Transpor tation 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 b y 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 mus t be recycled each year. Hazardous Waste Faciliti es Likel y 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 recyc lers 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 re quirements 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 fromDraft

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- 5 System exposure to environmental contaminants

K K061 Electric arc furnace dust K088 Spent potliners K171 Spent hydrotreating cataly st KXXX Mixture of K waste code wastes

L Land Disposal Restrictions LDR program ensures that toxic constituents present in hazardous

waste are properl y 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 b y 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 elderl y. 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 NPLis 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 o il spills. The NRC receives all reports of releases involving hazardous substances and oil that trigger the federal notification requirements under several laws.Draft

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- 6 National - Scale Air Toxics Assessment U.S. EPA developed the NATA as a state

- of

- the

- science screening tool for State/L ocal/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 autho rized the EPA to develop

technology

based standards which appl y 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 s uch 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 b y Federal statistical agencies in classifying

business establishments for the purpose of collecting, anal yz ing, and publishing statistical data related to the U.S. business econom y. 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 non

wastes through a case

- by

- case petition process. Process Safety Management The major objective of process safety management (PSM) of highl y hazardous chemicals is to prevent unwanted releases of hazardous chemicals especiall y into locations that could expose employees and others to serious hazards. An effective process safety management program requires a s ys tematic 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, transportatio n, treatment, storage, and disposal of hazardous waste.Draft

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- 7

RCRA also set forth a framework for the management of non

hazardous solid wastes. Resource Conservation and Recovery Act Information RCRAInfo is EPA’s comprehensive information sy stem 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 wa ste. 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 b y

companies that handle, m anufacture, 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 shorel ines. 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 densel y settled area that has a census population of 2,500 to

49,999.Draft

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- 8 Urbanized Area A densel y settled area that has a census population of at least

50,000. V Volatil e 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.Draft

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- 1 

### 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 repo rtable 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 im plem entation of the DS W results in what would otherwise be considered hazardous waste being now c onsidered 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 t he paragraph pertaining to the reporting of hazardous versus non
hazardous 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. W ithout such discussion or clarification, a “reaso nable” 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 forei gn 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 me aning of the term. EPA added a definition of the term in parenthesis to help clarify its meaning.Draft

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- 2 Charge Question No. Comment

No. Reviewer Comment EPA Response
2d 91 Hen shel Wh en 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 Wh at are “structural” reasons as stated in section 5.1.4? EPA added explanator y sentences to clarify structural reasons that certain groups do not participate in the decision
ma king 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 ana lyses until after publication of the 2011 proposed rule.Draft

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- 3 Charge Question No. Comment

No. Reviewer Comment EPA Response
ESa 34 Henshel In addition, the last sentence on page ix (starts “In addition,...”) is unclear and needs rewriting. Similarly the last sentence on page xi needs additional clarity. T EPA revised the paragraph to add clarity and increase readability.

Ga 7 Henshel 1) A glossary, 2) Remembering to define ever y acron ym the first time it is used in ever y chapter, and in the legend for ever y table, 3) A list of abbreviations and acrony ms EPA added acrony m definitions in the text and provided a glossary and a list of abbreviations and acrony ms in an appendix. Gb 12 Dale y A list of acrony ms would be extremely helpful. EPA added acrony m definitions in text and provided a glossary and a list of abbreviations and acrony ms in an appendix.
Gb 15 Henshel Needed improvements for clarity: As mentioned above, it would be ver y helpful for the general reader to provide a Table of Abbreviations/Acrony ms and a Glossary, in addition to remembering to fo llow some other basic rules of clear communication as outlined above (Readability). EPA added acrony m definitions in text and provided a glossary and a list of abbreviations and acrony ms in an appendix.Draft

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- 4 Charge Question No. Comment

No. Reviewer Comment EPA Response
Ga 8 Henshel A few diagrammatic algorithms that could help explain two complexities: 1) The regulations that apply under each condition that increases exposure under the new 2008 DS W. This algorithm could be bilaterally sy mmetrical

– taking the reader through the process, and when there is a change t hat 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 sy mmetrical algorithm would identify regulations in play before the new 2008 DSW regulations, and the other side would identify the regulations in pla y after the new 2008 DSW regulations. 2) A second algorithm that would be useful would be to outline the framework, the process used to analyz e the environmental justice concerns about the 2008 DSW rules. This algorithm could then tersely identify each step in the process and the im plications for the outcomes of each step. EPA determined that additional diagrams and algorithms would not add cla rity

to the topic, and ma y further confuse the reader. EPA will defer further consideration of additional diagrams and algorithms until after publication of the 2011 proposed rule.

Gb 10 Dale y For the most part, the information in the report is clearly p resented. There are, however, some areas that could be improved. W hile 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 ty pe of bar chart that can be confusing. Perhaps if the base category of Wh ite/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” T yp ographical errors were corrected.
2d 86 Henshel Page 3 Inset. T yp o or residual undeleted “(“ in explanation for Generator
Controlled Exclusion T yp ographical errors were corrected.Draft

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- 5 Charge Question No. Comment

No. Reviewer Comment EPA Response
2d 89 Henshel p 32 end of the second bullet there’s a typo, a misplaced period. T yp ographical errors were corrected.
6c 199 Henshel P121

– 7 th line down in paragraph

– ty po – higher total population than.... I believe was intended. T yp ographical errors were corrected.
Gb 13 Dale y 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 c hanged 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 onl y 217 reported in the analysis. Either explain the missing cases, or fix a ty po. (6) Attachment A, page A
- 2, section 1. Toward the end of the first paragraph, should read “regulation if” not “regulation is”. T yp ographical 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 t he paragraph to add clarity and increase readabilit y. 3c 104 Dale y The report however, could be edited to more clearly explain this approach. The text on Page 80 and 81 should be streamlined. First, the agenc y 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

.Draft

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- 6 Charge Question No. Comment

No. Reviewer Comment EPA Response
4c 122 Dale y 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 app roach, only that they articulate the implication of this assumption. EPA added language to clarify the assumption s underlying the areal apportionment metho d.

Gb 16 Henshel In addition, the excessive use of acrony ms ma kes the document ver y 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 acrony ms that pop up pages after they have been defined. It would be helpful, should the acrony ms stay in such a density, to provide a list of acrony ms used on each page in a footnote at the bottom of each page. EPA added acrony m definitions in the text and provided a glossary and a list of abbreviations and acrony ms in an appendix. Gb 17 Henshel The Wi nd Dispersal category would be better (and less confusingly) labeled as “Particulate [or Dust] Wi nd Dispersal.” EPA changed t able 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 an d pasting the same statements and phrases over and over again, and rarely elaborated in depth. EPA deleted r epetitive 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 r epetitive sentences when not needed for clarity.Draft

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- 7 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 som ewhat unclear. EPA added t he definition of dam ages to Table 1.1. The nam es of the c ategories of facilities were revised for consistency throughout the document. 2c 69 Dale y 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 dam age c ases study and revised the names of the categories of facilities for consistency throughout document. 5a 162 Ferris Wh at is the universe of industr ial 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 l anguage on industrial facilities and how they factor into the analysis to Section 5.2.2. ESa 25 Dale y 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 number ed: 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) c ould 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 m ethodology 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 mi ssing header for Finding 2 as well as revised the names of the categories of fac ilities for consistency throughout the document.Draft

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- 8 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 mo re than a truckload (25 tons) of recyclable hazardous secondar y ma terials annually, and hazardous was te recyclers) to use the rule [Hazardous Wa ste Facilities], (3) facilities from the environmental problems study

(many of which operated under exclusions or reduced regulations)[Damage Facilities], and (4) facilities currently recycling non
hazardous indus trial waste (e.g., antifreeze) that could most easily switch or expand to recycling under the 2008 DS W final rule [Non
- Industrial Hazardous W aste Facilities]."

ESa 26 Dale y It is difficult to understand where the categories in the Table on page X com e 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 t he nam es of the categories of facilities for consistency throughout the document. ESa 27 Dale y Also, it would be helpful to define “damage facilities”. EPA added t he definition of dam ages to Table 1.1, and revised the names of the c ategories 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 t he definition of dam ages to Table 1.1, and revised the names of the c ategories of facilities for consistency throughout the document.Draft

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- 9 Charge Question No. Comment

No. Reviewer Comment EPA Response
ESa 33 Henshel The executive sum ma ry is readable. The executive summary needs to include definitions of terms used (for example, “notification facilities,” “damage case facilities,” etc). EPA added t he definition of dam ages to Table 1.1, and revised the names of the c ategories 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, rec yclers tha t the exemptions and exclusions are accompanied by affirmative duties that include compliance with statutes and regulations? EPA added t he definition of dam ages to Table 1.1, and revised the names of the c ategories of facilities for consistency throughout the document. 1a 47 Ferris Readers reviewing the s yn opsis 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 s yn opsis 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 (i nstead of the mo re generalized “”raised a number of issues about the protectiveness of the rule...’
-- especially since the language of the rule emphasizes that a num ber 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 c larified 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 c larified that "information" includes data.Draft

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- 10 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 thi s 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 sh ould 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 mo re clear. 6c 202 Henshel 1. page A
- 4

– second paragraph

– last line

– “ty pically 120 days following prom ulgation” 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 DS W rule. EPA added clarifying language to Appendix A.Draft

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- 11 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. T yp ographical 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 ever yone, especially th e 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 mo nitoring would be appropriate here. The section at the top of A
- 9 dis c usses reporting and recordkeeping. EPA determined that a discussion of mo nitoring 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 fo r the definition, which helps reduce reader confusion. EPA added clarifying language to Appendix A.Draft

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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 reade r 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. Wh at kinds of exposures might be increased to what diameter population under this scenario? No action was taken becaus e the level of detail requested cannot be presented in a table The addition of an example, such as leak y containers would result in an inconsistent level of detail in the table.

6c 214 Henshel 13. Page A
- 17

– wh y the changed font size in column 1? EPA ma de fonts consistent throughout the table.Draft

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No. Reviewer Comment EPA Response
6c 215 Henshel 14. Page A
- 18. Last paragraph in column 1. Include a list of the 140 toxic and flammable regulated chemicals referred to here, and elsewhere in the report. The easiest way to handle this might be a footnote, or adding the list to the appendices, and re ferring 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 pro vided.

6c 216 Henshel 15. Page A
- 21 first column, second line

– mi ssing an article (“the” or “a”) between “above” and “specified quantity”. EPA e dited the table to include the mi ssing 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 s paces 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 l anguage 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 im plications 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 ma terials may not qualify as a DOT hazardous material, and provide som e discussion of the potential implications of this from an EJ perspective. No action was taken as im plications are discussed in the main body of the reportDraft

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No. Reviewer Comment EPA Response
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 suc h through the 2008 DSW process. No action was taken as im plications 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 m issing 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 t he abbreviated citation with the full citat ion throughout the document. 6c 225 Henshel 24. Page A
- 52 right column, top line “an SPCC” fix typo T yp ographical 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 through out the document. T he table format does not have sufficient space for discussion of legitimacy criteria.Draft

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No. Reviewer Comment EPA Response
6c 227 Henshel 26. Page A
- 6 3 right column. Provide examples of potential problematic em issions 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 quantit atively , may be at the me an/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 2 011 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. W here 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 rem oved 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 forma tting 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 rele vance 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 ma intain a consistent formatting for citations. There is insufficient space in the table format to address this issue.Draft

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No. Reviewer Comment EPA Response
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. Requirement s 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 com pliance issue that would need to be addressed by individual E PA 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 wou ld 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 acrony m that is never defined. EPA added acrony m definitions in the text and provided a glossary and a list of abbreviations and acrony ms in an appendix.Draft

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No. Reviewer Comment EPA Response
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 wri ter 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. Clarifyi ng l anguage 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. Acrony ms 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 Acrony ms and Abbreviations, and spelling out of all acrony ms in footnot es for any table in which they are used. EPA added acrony m definitions in the text and provided a glossary and a list of abbreviations and acrony ms 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 ac cessible to the lay reader. EPA will defer large
- scale form at changes until after publication of the 2011 proposed rule. 6c 241 Henshel a. Identify all acrony ms and abbreviations. There’s two in the second paragraph. EPA added acrony m definitions in the text and provided a glossary and a list of abbreviations and acrony ms in an appendix. The second acrony m is a reference code from the database used to develop the hazardous waste facility estimates, and has no direct English language definition.Draft

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No. Reviewer Comment EPA Response
6c 242 Henshel b. In the introductor y 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 ma de. These points are on Page D
- 3 bottom of the page, and on Page D
5 top of the page. EPA added explanator y sentences to clarify the change in grouping.
6c 246 Henshel 41. Appendix E needs some clarify ing 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 c larification 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 mi nus 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.Draft

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No. Reviewer Comment EPA Response
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 DS W 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 propert y. Yet this situation would only happen (legally) under the 2008 regulations, not under the previous HSM regulations. EPA a dded 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
- to grave protective framework, consider whether requiring a streamlined notice and record
- keeping process for generators, receivers and recyclers of HSM benefit EPA and states e.g., monitoring, as well as data that sho ws the environmental and economic benefits of HSW exclusions? N/A (comment on 2008 DSW rule)

2b 65 Dale y Wi thout adequate record
- keeping and environmental protection safeguards (streamlined requirements would not be objectionable), the international export exclusion/scenario is troubling re potential releases, im pacts, 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 HS W 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)Draft

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No. Reviewer Comment EPA Response
2a 57 Dale y 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 scena rios. Are these based on professional experience, or did the agency talk with the regulated community to get a sense of potential reactions to the DS W Exclusions? If it is the latter, could the report provide more detailed information regarding the feedb ack 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 a dded discussion of how scenarios were chosen to Section 2.1.

2a 60 Henshel Wh at is lacking overall from the analysis, from the Hazard Characterization step onward, is any discussion or analysis of the im plications (i.e secondary consequences) of each of these assumptions (about the possibility of increased exposure) for t otal 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 a dded language throughout Section 2 on the possibility of increased exposure to communiti es 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? Wo rk er training is discussed in the regulator y 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 elim inating the requirement for a Manifest (or some version of a tracking me chanism) factor into possible increases or redu ctions in the emergency response preparedness and planning, enforcement or compliance mo nitoring? Both emergency planning and the manifest are discussed in the regulator y com parison section. No fu rther action was required.Draft

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No. Reviewer Comment EPA Response
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 HS W? W hat 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 r ecycling 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 rec yc ling 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 inte grity of storage containers and areas. EPA a dded discussion on preventive enforcement to the enforcement section.
6c 187 Ferris Is there sufficient analysis of the impacts of storing HS W 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 l anguage about the im pacts of land
- based storage units in the storage section. 2c 79 Henshel Toxicity information: W hen applicable, endocrine disruptio n 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 includeDraft

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- 22 Charge Question No. Comment

No. Reviewer Comment EPA Response 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 ma terials/waste can be released. The section de s cribed by the commenter discussed the activ ities that involve HSM. Associated hazards, including fugitive emissions, are discussed on the following page. 4g 142 Dale y There is considerable selection bias or selection effect in the “notification” facilities and likely also in the damage facilities. It is likely that these early adopters (notification facilities) are significantly different (and non
randomly distributed) compared to the three remaining categories. Damage facilities are also likely to be systematically different. I am not sure exactly how to address this, but it seems like something that the agenc y 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 "dam age" facilities to Section 4.4.1.Draft

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- 23 Charge Question No. Comment

No. Reviewer Comment EPA Response
6c 198 Hensh el Population level analysis table results seem to show that there is a num bers (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 w ill, 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 t o note that in regions with few Blacks, or few minorities, the minority population com parisons 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 India napolis, where there is a significantly large percentage of poor whites. In Northwest Indiana, however, there are mo re m inorities, and minority population comparisons drive the EJ analysis results as strongly, or more strongly, than the low income analysi s. 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 cumu lative 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 Wh ere does immigrant status factor into vulnerability factors? Addition discussion on the immigrant status and English literacy was added to Section 5.1.4.Draft

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No. Reviewer Comment EPA Response
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 endpo ints 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; a nd some me asure 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 disproport ionately affected or not. EPA added additional discussion on strategies to mi tigate im pacts. 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 regulator y clarification of some of the weaknesses in the 2008 DS W rule, enforcement is only as strong a s the environmental consciousness of the administration. Even with revised regulation, enforcement and oversight is susceptible to political influence, just som ewhat less so. Monitoring is not as much a part of the 2008 DSW rule, so how could monitoring d ata 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 regulator y and im plem entation me asures in Section 6 in order to add clarity.Draft

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- 25 Charge Question No. Comment

No. Reviewer Comment EPA Response
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 t yp ically found 2 km to b e 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 provid es 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 d ust). EPA determined that a 3
- km radius is commonly

used in EJ ana lyse s. EPA will defer additional analyses, such as the sensitivity of the analysis to the diam eter 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 releas ing 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 coul d 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 atte mp ted 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 notin g that verification of GIS coordi n a tes wa s 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 coordi n a tes was beyond the feasible scope of this analysis

.Draft

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No. Reviewer Comment EPA Response
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 pare nts 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 addition al analyses, such as alternative dem ographic 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 2 011 proposed rule.

4d 125 Dale y 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 consid er 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 Dale y 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.Draft

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- 27 Charge Question No. Comment

No. Reviewer Comment EPA Response
Gb 11 Dale y Wh y 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. W hen 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. W ith 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 Dale y 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 provi des even stronger evidence of the distributional affects of decision making. In addition to this, it would be ideal if the agenc y could model cumulative environmental stressors in communities in a more integrated fashion. Rather than simply noting mu ltiple stressors in the notification areas, provide some indication of cum ulative 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 im pacts 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 Dale y See 2. above. EPA will defer additional analyses until after publicationDraft

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- 28 Charge Question No. Comment

No. Reviewer Comment EPA Response
of the 2011 proposed rule. 4h
- 3 152 Ferris This comparison may y ield 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 an alyses as a regression of the dem ographics against proximity . You are able to detect (significantly) mo re subtle shifting of demographics over time. EPA will defer additional analyses until after publication of the 2011 proposed rule.

Gb 21 Henshel The m ethods 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 may be 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.Draft

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- 29 Charge Question No. Comment

No. Reviewer Comment EPA Response
Ga 2 Dale y To fully understand the differential impact of the 2008 DS W final rule on low income and minority communities and populations, it would be helpful to have a meaningful baseline analysis. W hat if continuing to regulate HSM under RCRA has even greater enviro nm ental 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 ma king proceeds. EPA believes that the re gulator y com parison between hazardous waste regulations and the 2008 DS W 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 "imp acts" 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 Dale y It seems like the document is quite thorough. As noted in m y 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 rec yc ling and disposal. Such baseline analysis is already captured in regulatory com p arison and in the analysis of hazardous waste generators and rec yc l ing facilities. EPA a dd ed 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 im pacts will be. N/ADraft

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- 30 Charge Question No. Comment

No. Reviewer Comment EPA Response
Ga 1 Dale y My overall assessment is that the report manages to present a very com plex 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 Wa ste Final Rule (DSW ) enables generators to store mo re hazardous seconda rymaterial (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 im pacted in ways not necessarily analyzed in the initial considerat ion of the rule change. Decreased transparency and public participation provisions combined with deregulation of hazardous secondar y m aterial to encourage reclamation is likely to have differential impacts across the county. The findings from this report p resent 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 im pacted t han others, and this differential impact has direct environmental justice implications. N/ADraft

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- 31 Charge Question No. Comment

No. Reviewer Comment EPA Response
Ga 5 Henshel In addition, the analysis never included taking the example situations (places where greater exposure by the neighbors could occur, for example) and quantifying the potential impact on the neighboring community (maybe within the 3 km diameter defined “proximity to site” area). Using the basic approaches for predictive risk assessment, one would take the real situation, make assumptions for the average and high end of the range for the increased exposure situation, calculate the potential increased exposure to the chemicals, and then calculate the potential for increased risk, with average and high end assumptions. At least one such scenario calculated for each situation identified as potentially increasing exposure under the new regulations would be helpful in determining just how critical revising the regulations would be. It would have been even better to then recalculate the exposure and risk inherent in at least a few scenarios with the assumptions made under the recommendations for revision of the 2008 DSW rule, weak and non
specific 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 addition al 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 cum ulative 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.Draft

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- 32 Charge Question No. Comment

No. Reviewer Comment EPA Response
5a 157 Dale y Yes. The agency has identified a wide range of stressors that c an shape individual and community vulnerability. Additional resources that the agenc y 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 Dale y If the countr y level examination is pursued, the agency might be able to rely upon data compiled under the countr y health rankings. Otherwise, the data pres ented 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 com ponent analysis) to look at which em issions 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 Dale y 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 t ext 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 me tals 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 im pacts 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.Draft

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No. Reviewer Comment EPA Response
3b 99 Dale y 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 cu t 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 num b er of facil i t ies mi ght change with a 1
- ton a nd 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 num b er of facil i t ies mi ght 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 im pact upon low income communities and communities of color? EPA added d iscussion 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 ver y lea st, 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 Fishe r’s analytical results are listed as N/A. EPA added additional descriptions to Section 4.Draft

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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 HS W 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 environme ntal 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 Dale y Finally, the report would also benefit from a clear assessment of com pliance under RCRA and the DS W final rule. If there are no prescriptive standards for storing waste while waiting to reclaim/recycle, are facilities more likely to have accidents? EPA a dded discussion on this topic to the Executive Summary and Conclusions sections. 6c 193 Ferris Tribes, including Inuits, will need additional resources to staff and im plem ent 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 secondar y m aterials (hereafter HSM) upon which much of the Draft DS W Rule analysis is based in addition to the sto rage 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 DS W Rule analysis is based. EPA added discussion to the Executive Summary

.Draft

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- 35 Charge Question No. Comment

No. Reviewer Comment EPA Response
4a 109 Dale y The census data that the EPA uses for this analysis is standard. Improvements would include relying upon the 2010 census numbers to mo re accurately reflect community composition. If possible, it would be ideal to be able to rely upon the Amer ican 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 a nd relying upon survey rather than census data, introduces too mu ch 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 ty pes of facilities and not for others. There should have been a break out of asian, black, other min orit y, 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 demogra phics were analyzed for notification facilities.

4f 140 Ferris Wo uld assessment of an additional number of damages case affect the assumptions? EPA will defer additional analyses until after publication of the 2011 proposed rule.Draft

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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 dam ages and t yp es of comparisons? EPA will defer additional analyses until after publication of the 2011 proposed rule.
6c 182 Dale y An environmental justice analysis of current regulato ry practices for those states and facilities not adopting the 2008 DSW Final Rule would be helpful and may provide guidance if regulator y changes to the DSW rule are likely. The assumption seems to be that the status quo before the rule is neutral for comm unities 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 add ed d iscussion on the analysis of interstate tracking, mo nitoring 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 HS W and facilities? Wo uld 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 Dale y 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/ADraft

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- 37 Charge Question No. Comment

No. Reviewer Comment EPA Response
1a 51 Ferris The threat of post facto CERCLA liability is not interchangeable with up
front 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 Dale y 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 Dale y Yes, EPA’s analysis of the types and quantities of hazardous secondary ma terial is clear. Figure 1 provides a clear justification for the focus on solvents and electric arc furnace dust. N/A
2d 81 Dale y It seems as if EPA has noted many of the differences between hazardous waste regulations and the changes stemming from the 2008 Draft Solid Wa ste (DS W)Final Rule. Table 2.3 is a very detailed description of the eight likely scenarios and their impact on g enerators, 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/ADraft

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- 38 Charge Question No. Comment

No. Reviewer Comment EPA Response
2d 85 Ferris Audits of reclaime rs are not the same as or superior to periodic inspections or other agency oversight. N/A 3a 96 Dale y EPA’s approach to identifying facilities that are likely to begin rec yc ling hazardous secondar y m aterial seems reasonable. I cannot think of another category to include. Out of the categories presented (already notified; damage facilities; currently genera ting hazardous secondary ma terial, and facilities that may easily expand or switch to reclamation because of the DS W final rule), the last three categories seem more useful to understanding likely environmental justice impacts. Wi th only 40 facilities prov iding 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 Dale y EPA is defining a community as a 3 kilometer circle or buffer around one of the facilities included in this analysis. The agenc y then uses census information to apportio n 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/ADraft

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- 39 Charge Question No. Comment

No. Reviewer Comment EPA Response
3c 103 Dale y 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 wi th 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 mo re 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 ma ke 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 employ ment status. N/A

4a 111 Henshel Using census data is standard protoco l for many EJ analyses. N/A 4b 114 Ferris Wi thout 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, mo nitor or be subject to protective container standards or storage time lim its. 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/ADraft

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- 40 Charge 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 Dale y 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. Wh ile I am not a statistician, it seems like a reasonable way to approach the analysis. It provides the agenc y with two types of information: the chances that a facilit y 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 dem ographic ratio). N/A

4f 138 Dale y 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 assu mp tions 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/ADraft

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- 41 Charge Question No. Comment

No. Reviewer Comment EPA Response
4h
- 1 145 Dale y 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 DS W 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 priva te 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 im portant 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/ADraft

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- 42 Charge Question No. Comment

No. Reviewer Comment EPA Response
notify the public or implement public involvement. 6a 175 Dale y 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 mi ght with more extensive EJ analysis carried out on the data. N/A
6b 179 Dale y 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 (m inority, 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 m y 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 agenc y rulemaking. N/A ESb 36 Dale y Yes, the Executive Summary provides an accurate summary of the more detailed material presented in the report. N/ADraft

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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 DS W 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 DS W 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 redundanc y 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 docu me nt 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 acrony ms. The document is missing some key components that would make it more readable. These include: N/A

Ga 9 Henshel Utilit y. 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 vo lum e of exempted otherwise hazardous ma terials. The environmental justice analysis could have been more com plete. Further discussion of other approaches are included below. The report does make reasonably recommendations for some of the ways that the env ironmental 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.Draft

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- 44 Charge Question No. Comment

No. Reviewer Comment EPA Response
elaboration.

4b 112 Dale y 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 bab y boom ers 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 th e results might have been stronger with the additional analyses. Discussion of risk ratio data was added to the statistical analysis section.
4e 134 Henshel Wh y are the same charts repeated twice? Is this necessary? Additional discussion was added to Section 4 to clarify charts.Draft

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- 45 Charge 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 ma ke 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 w aste 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 employ ment 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 ma ke up the majority of those living wi thin 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 ap ply ing their recommended statistical analysis, it was found that racial disparities persist even when controlling for socioeconomic factors such as income, housing values, education, and employ ment 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 ma ke 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, whe n 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 em ploy me nt status. N/ADraft

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No. Reviewer Comment EPA Response
4e 131 Ferris EPA synchronizes with Profe ssor 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 ma ke up the majority of those living within 3
- km of hazardous waste facil ities 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 recommende d statistical analysis, it was found that racial disparities persist even when controlling for socioeconomic factors such as income, housing values, education, and em ploy me nt 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 regulator y oversight provided by RCRA. Should all 4 legitimacy factors should be mandatory in view of the hazards? W hat about release reporting? Should releases be gro unds 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, rec yc ler and affect com pliance? This goes to the concept of legitimacy . W ould the ma ndating 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 regulator y and enforcement tools provided by the DS W 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 transfer
based exclusion? N/A (comment on 2008 DSW rule) 2b 63 Dale y The DS W 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)Draft

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2b 64 Dale y Should notice be the hazard quid pro quo for the exclusions which provide the benefit of different (reclamation), streamlined treatment of HS W? 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? Wh ich 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 Wo uld streamlined, but standardized HSW reporting on a Manifest or com parable 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. Wo uld requiring management standards for reclamation facilities that don’t have RCRA permits strengthen the DSW Rule by increasing or reducing the potential for environmental re leases 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 up
front 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 HS W is safely delivered to the recycling fa cilit y. N/A (comment on 2008 DSW rule)

2d 83 Ferris The DS W Rule could be characterized, to some extent, as industry self
certification on HSW , which contrasts sharply with RCRA’s historic cradle
to - grave framework and preventative approach to hazardous waste ma nagem ent 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)Draft

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June 30 , 2011 Draft

- Do Not Cite or Quote H
- 48 Charge Question 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 HS W is being mana ged 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 histor y 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 D SW 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 H SM. N/A (comment on 2008 DSW rule) 6c 186 Ferris Off
- site reclamation

– regulatory safeguards that ensure proper ma nagem ent of HS W while on
- site and during shipment are important. N/A (comment on 2008 DSW rule) 6c 189 Ferris Wh at constitutes “reasonable effort” is not clear. This may not be a sufficiently high bar to deter mismanagement of HS W 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 im plem entat ion? N/A (comment on 2008 DSW rule)Draft

– Do not Cite or Quote

June 30 , 2011 Draft

- Do Not Cite or Quote H
- 49 Charge Question No. Comment

No. Reviewer Comment EPA Response
6c 194 Ferris Encouraging rec yc ling should be possible while retaining a reasonable assurance of regulator y 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 em ergency

planning and response and protect hu ma n health and the environment. N/A (comment on 2008 DSW rule)

ESb 41 Ferris Regarding DSW Rule controversies about disproportionate negative im pacts 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 W astes? N/A (comment on 2008 DSW rule)