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Monday

March 24. 1986

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Part II

Environmental

Protection Agency

40 CFR Parts 260, 261, 262, 263, 270,

and 271

Hazardous Waste: Generators of

Hazardous Waste (100 to 1000 Kilograms

Per Month), on Site Storage, etc.; Final

Rule

40 CFR Part 262

Hazardous Waste: Generators of

Hazardous Waste (100 to 1000 Kilograms

Per Month), Waste Minimization;

Proposed Rule

HeinOnline -- 51 Fed. Reg. 10145 1986
16146 Federal lRegister /' Vol: 51, No. 56 / Monday, March 24, 1986 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 260, 261, 262, 263, 270,

and 271

[SWH-FRL-2969-2(b)]

Hazardous Waste Management

System: General; Identification and

Listing of Hazardous Waste; Standards

for Generators of Hazardous Waste;

Standards for Transporters of

Hazardous Waste; EPA Administered

Permit Programs; Authorization of

State Hazardous Waste Programs

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: On August 1, 1985, the U.S.

Environmental Protection Agency (EPA)

proposed regulations under the

Resource Conservation and Recovery

Act (RCRA), as amended by the

Hazardous and Solid Waste

Amendments of 1984 (HSWA), that

would be applicable to generators of

between 100 kg and 1000 kg of

hazardous waste in a calendar month

("100-1000 kg/mo generators"). Based in

large measure on the existing hazardous

waste' regulatory program, the proposed

rules represented the Agency's efforts to

balance the statutory mandate to protect

human health and the environment with

the statutory directive to keep

burdensome regulation of small

businesses to a minimum.

EPA is today promulgating final

regulations for these generators which

modify certain aspects of the proposal.

These modifications relate to the "small

quantity generator" provisions of § 261.5

and the use of the multi-copy manifest in

lieu of the proposed single copy system.

Exemptions from exception and biennial

reporting as well as from the manifest

system for certain reclamation

shipments and from certain of the

requirements applicable to on-site

accumulation have been retained in the

final rules. The effect of this rule would

be to subject generators of between 100

kg and 1000 kg of hazardous waste in a

calendar month to the hazardous waste

regulatory program.

DATES: EFFECTIVE DATE: September

22, 1986.

Compliance Dates: The Part 262

standards will'become applicable to

100-1000 kg/mo generators on

September 22, 1986.

The Part 264 and 265 standards will

become applicable to 100-1000 kg/mo

generators treating, storing, or disposing

of hazardous waste on-site using nonexempt management practices on March

24, 1987.

For off-site facilities managing wastes

from 100-1000 kg/mo generators, the

Part 264 or 265 standards will apply to

the wastes from generators of 100-1000

kg/mo on September 22, 1986.

For off-site facilities managing wastes

exclusively from generators of less than

1000 kg/mo, the requirement to obtain

interim status as a hazardous waste

facility for wastes from 100-1000 kg/mo

generators will become applicable on

September 22, 1986.

Off-site facilities managing waste

from both large quantity generators and

generators 100-1000 kg/mo will need to

modify their Part A permit applications

(as well as Part B if already submitted)

by September 22, 1986 to reflect these

newly regulated wastes from 100-1000

kg/mo generators.

ADDRESSES: The public docket for this

rulemaking is located in Rm S-212-C,

U.S. Environmental Protection Agency,

401 M Street, SW., Washington, DC. The

RCRA Docket is available for viewing

8:00 a.m. to 4:00 p.m. Monday through

Friday, excluding holidays. As provided

in 40 CFR Part 2, a reasonable fee may

be charged for copying services.

FOR FURTHER INFORMATION CONTACT:

The RCRA/Superfund Hotline, (800)

424-9346, (in Washington, DC, call 382-

3000), the Small Business Hotline, (800)

368-5888, or Robert Axelrad, (202) 382-

5218, Office of Solid Waste (WH-562B),

U.S. Environmental Protection Agency,

401 M Street, SW., Washington, DC

20460.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Authority

I. Background and Summary of Final Rule

A. The Hazardous and Solid Waste

Amendments of 1984

1. Codification Rule

2. Minimum Rulemaking Requirements

3. March 31, 1986 Hammer Provisions

4. August 1, 1985 Proposal

B. Summary of Final Rule

III. Response to Comments and Anaylsis of

Issues

A. EPA's Approach To Regulating 100-1000

kg/mo Hazardous Waste Generators

B. Applicability Issues

1. Definition of "Small Quantity

Generator"

2. Generator Category Determination . a. Counting Amendment to section

.261.5

b. Generators of Acutely Hazardous

Waste

c. Generators of Non-Acutely

Hazardous Waste in Quantities of Less

than100 kg/mo

d. Determination of Generator Status

C. Part 262 Generator Responsibilities

1. Notification and Identification Number

Requirements-section 262.12

2. The Hazardous Waste Manifest

System-Part 262, Subpart B

a. Number of Copies and Use of

Manifest

b. Manifest Exemption for Certain

Reclamation Shipments

c. Waste Minimization

3. Recordkeeping and Reporting-Part

262, Subpart D

a. Recordkeeping-section 262.40

b. Exception Reports--section 262.42

c. Biennial Reports-section 262.41

4. On-site Accumulation-section 262.34

a. Time and Quantity Limitations

b. Standards Applicable to On-site

Accumulation

i. Standards for Preparedness and

Prevention-Part 265, Subpart C

ii. Standards for Contingency Plans,

Emergency Procedures--Part 265,

Subpart D, and Personnel Training

Requirements

iii. Standards for Accumulation in

Containers-Part 265, Subpart I

iv. Standards for On-site

Accumulation in Tanks-Part 265,

Subpart J

5. International Shipments

D. Transportation Issues

E. Part 264/265 Facility Standard Issues

1. Activities Requiring Permits

2. Applicability of Permitting

Requirements to Recycled Wastes

3. Permit by Rule

4. Modifications to Part A Permit

Applications

IV. Delayed Effective Dates

,V. Impact on Authorized States

A. Applicability in Authorized States

B. Effect on State Authorizations

VI. CERCLA Impacts

VII. Executive Order 12291-Regulatory

Impact

A. Estimates of Per Firm Costs

1. Part 262 Generator Standards

2. Transportation Costs

3. Treatment, Storage, and Disposal

Costs

a. On-site Accumulation

b. Treatment and Disposal

B. Estimates of Nationwide Incremental

Cost Burden on Generators of 100-1000

kg/mo

C. Estimates of the Economic Impacts of

Today's Rule

VIII. Regulatory Flexibility Act

IX. Paperwork Reduction Act

X. List of Subjects

1. Authority

These regulations are being

promulgated under authority of section

2002(a), 3001, 3002, 3004, 3005, 3006, 3010,

3015, 3017, and 3019, of the Solid Waste

Disposal Act, as amended by the

Resource Conservation and Recove ry

Act, as amended, 42 U.S.C. 6912(a), 6921,

6922, 6924, 6925, 6926, 6930, 6935, 6939,

6991, and 6993.

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I1 Background and Summary of Final

Rule

A. The Hazardous and Solid Waste

Amendments of 1984

On November 8,.1984, the President

signed Pub. L. 98-616, titled The

Hazardous and Solid Waste

Amendments of 1984 (HSWA). These

comprehensive amendments will have

far-reaching ramifications for EPA's

hazardous waste regulatory program

and will impact a very large number of

businesses in the United States. Further.

Congress has established in these

amendments ambitious schedules for

the imposition of the requirements that

EPA must promulgate.

With respect to regulation of small

quantity generators (i.e., generators of

less than 1000 kg of hazardous waste in

a calendar month) the HSWA added a

new subsection (d) to Section 3001 of

RCRA designed to modify EPA's current

regulatory exemption of wastes

generated by small quantity generators

from full Subtitle C regulation (40 CFR

261.5). Section 3001(d) directs EPA to.

develop a comprehensive set of

standards which will apply to hazardous

wastes produced by small quantily

generators of between 100 and 1000 kg

of hazardous waste in a calendar month

("generators of 100-1000 kg/mo"). EPA

is required to promulgate final standards

no later than March 31, 1986. Today's

final rule satisfied this requirement. In

addition, section 3001(d) imposes certain

minimum requirements on these

generators prior to that date and

requires EPA to complete a number of

studies before April 1987.

1. Codification Rule

On July 15, 1985, EPA published in the

Federal Register a Final Rule which

codified a number of legislatively

mandated provisions contained in the

HSWA (see 50 FR 28702-28755, July 15,

1985). Among those provisions is the

requirement of section 3001(d)(3) that

effective 270 days from the date of

enactment, all off-site shipments of

hazardous waste from generators of

greater than 100 kg but less than 1000 kg

of hazardous waste during a calendar

month must be accompanied by a copy

of the Uniform Hazardous Waste

Manifest, signed by the generator, and

containing the following information:

- The name and address of the

generator of the waste;

* The U.S. Department of

Transportation (DOT) description of the

waste, including the proper shipping

name, hazard class, and identification

number (UN/NA);

- The number and type of containers;

* The quantity of waste being

transported; and

* The name and address of the

facility designated to receive the waste.

The information required by this

provision (codified at 40 CFR 261.5(h)(3))

corresponds to Items 3, 9, 11, 12, 13, 14,

and 16, of EPA form 8700-22 and

accompanying instructions promulgated

on March 20, 1984 (49 FR 10490). These

information requirements conform to

DOT shipping requirements designed to

provide necessary information to

handlers of hazardous materials (e.g.,

transporters and emergency response

personnel).' The interim manifest

requirement applies only until the

effective date of the regulations being

promulgated today. These final rules

will supersede the existing manifest

requirements for these generators.

! The HSWA provisions, together with

existing regulations, distinguish three

main classes of small quantity

generators for regulatory purposes: (1)

Those generating between 100 and 1000

kg of non-acutely hazardous waste per

calendar month; (2) those generating up

to 100 kg of non-acutely hazardous

waste per calendar month; and (3) those

generating acutely hazardous wastes in

quantities currently set forth in

§ 261.5(e). These classes of small

quantity generator are distinguished in

the July 1985 "Codification Rule". Until

the effective date of today's final rules,

under the regulatory system imposed by

40 CFR 261.5 implementing section

3001(d) of the HSWA, a small quantity

generator in the first group (i.e.,

producing between 100 and 1000 kg of

non-acutely hazardous waste in a

calendar month) is subejct to the

following requirements:

(1) He must determine if his waste is

hazardous under 40 CFR 262.11

(§ 261.5(h)(1));

(2) He may conditionally accumulate

hazardous waste on-site provided he

does not exceed the quantity limitation

contained in § 261.5(h)(2);

(3) After August 5, 1985, he must

partially complete and sign a single

copy of.the Uniform Hazardous Waste

Manifest to accompany any off-site

shipment of hazardous waste

(§ 261.5(h)(3)); and

(4) He must treat or dispose of his

hazardous waste on-site, or ensure

delivery to an off-site treatment, storage,

or disposal facility. The on-site or offsite facility must be either: (i) Permitted

While 100-1000 kg/mo generators are not now

required to complete the entire manifest under

Federal law, many States operating their own

hazardous waste programs may already require

additional information on the manifest or require

use of the State's version of the Uniform Hazardous

Waste Manifest.

by EPA pursuant to Section 3005 of

RCRA or by a State having an

authorized permit program under Part

271; (ii) in interim status under Parts 270

and 265; (iii) permitted, licensed, or

registered by a State to manage

municipal or industrial solid waste; or

(iv) a facility which beneficially uses or

reuses, or legitimately recycles or

reclaims the waste, or treats the waste

prior to reuse, recycling or reclamation

(§ 261.5(h)(4)).

As discussed in the remainder of this

preamble, 100-1000 kg/mo generators

will be regulated under Part 262-266 and

Parts 270 and 124 when today's rules

become'effective, to the extent that rules

apply.

Generators of less than 100 kg of

hazardous waste in a calendar month

will remain conditionally exempt from

most of the hazardous waste program,

as provided in § 261.5(g). For example,

generators of less than 100 kg are not

required to comply with any manifesting

provisions. No additional requirements

apply to this class of hazardous waste

generator under the existing rules unless

the quantity limitations contained in

§ 261.5(g) are exceeded.

Generators that produce acutely

hazardous waste and do not exceed thequantity limitations for such waste

under § 261.5(e) will also be

conditionally exempt from regulation.

No additional requirements apply to this

class of generators unless the quantity

limitations contained in § 261.5(e) are

exceeded, at which point the acutely

hazardous waste becomes subject to the

full generator requirements of 40 CFR

Part 262.

2. Minimum Rulemaking Requirements

Section 3001(d)(1) of the HSWA

requires EPA to promulgate, by March

31, 1986, standards under sections 3002,

3003, and 3004, for hazardous wastes

generated by a generator in a total

quantity greater than 100 but less than

1000 kilograms in a calendar month.

Standards developed under this section

must be sufficient to protect human

health and the environment but "may

vary from the standards applicable to

hazardous waste generated by larger

quantity generators" [emphasis added]

(section 3001(d)(2)). EPA is further

authorized to promulgate standards for

generators of less than 100 kg/mo of

hazardous waste if the Administrator

determine it is necessary to do so to

protect human health and the

environment (section 3001(d)(4)).

At a minimum, standards issued

pursuant to section 3001(d)(1) must

require that all treatment, storage, and

disposal of hazardous wastes from

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generators of between 100 and 1000 kg

of hazardous waste in a calendar month

occur at a facility with interim status or

a permit issued under section 3005 of

RCRA. The standards must also allow

generators of between 100 and 1000 kg

,of hazardous waste during a calendar

month to store waste on-site forup to

180 days without being required to

obtain a RCRA permit. If a generator

must ship or haul his waste greater than

200 miles, that generator may store up to

6000 kg of hazardous wastes for up to

270 days without a permit (section

3001(d)(6)). These minimum

requirements are embodied in today's

final rule.

In addition, the Agency has

interpreted the statute to require that, at

a minimum, EPA's regulations must

provide for continuation of the August

1985 requirement that off-site shipments

of hazardous waste from 100-1000 kg/

mo generators be accompanied by a

single copy of the Uniform Hazardous

Waste Manifest containing at least the

information specified in section

3001(d)(3). See H.R. Report No. 198, 98th

Cong, 1st Sess. 25-28 (1983); S. Rep. No.

284, 98th Cong. 1st Sess. 8 (1983); H.R.

Rep. No. 133, 98th Cong., 2nd Sess., 101-

103 (1984).

The Agency believes that at a

minimum Congress intended that the

Agency's regulations incorporate the

partial Uniform Hazardous Waste

Manifest requirements in order toprovide notice of the hazardous nature

of the waste to transporters and - facilities. In addition, the Agency is

specifically authorized to expand the

manifest requirements if necessary to

protect human health and the

environment. See section 3001(d)(3). As

discussed in Unit III.C.2. of today's

preamble, EPA has concluded that

additional manifest requirements are

necessary to ensure protection of human

health and the environment.

3. March 31, 1986 Hammer Provisions

If EPA had failed to promulgate

standards for hazardous waste

generators producing greater than 100 kg

but less than 1000 kg in a calendar

month by March 31, 1986, these . generators would have been subject to

certain legislatively stipulated

provisions.

The promulgation of today's final rule

prior to March 31, 1986, however,

effectively voids the hammer provisions

of the HSWA with respect to small

quantity generators. Consequently, the

requirements promulgated today are the

only requirements which 100-1000 kg/

mo generators must comply with. As

discussed in Unit IV, the Part 262

requirements applicable to 100-1000 kg/

mo generators that manage waste offsite will take effect six months from

today while the requirements of Parts

264 and 265 applicable to generators

that manage waste of-site will take

effect twelve months from today. It should be noted that the HSWA

specifically states that the requirements

of this Section should not be construed

to be determinative of the requirements

appropriate for small quantity

generators in developing a regulatory

program. The hammer provisions of

HSWA, therefore, do not dictate the

content of these final rules for

generators of 100-1000 kg/mo.

4. August 1, 1985 Proposal

On August 1, 1985, EPA proposed

rules that would apply to generators of

100-1000 kg/mo of hazardous waste.

The proposed rules represented the

Agency's efforts to balance the need for

regulation of this group of generators in

a manner that would protect human

health and the environment with the

need to minimize the impacts of such

regulation on small firms.

The proposed rules modified the

existing standards for generators and

treatment, storage, and disposal

facilities to reflect the generally smaller

quantities of waste and small business

nature of many of these firms. In

essence, EPA concluded that some relief

from the administrative and paperwork

requirements embodied in the Part 262

Generator Standards was appropriate

for generators of 100-1000 kg/mo of

hazardous waste.

EPA proposed to remove 100-1000 kg/

mo generators from the existing § 261.5

small quantity generator provision, thus

subjecting them to Part 262. In addition,

the Agency proposed specific

amendments to Part 262 to relieve these

generators of some of the requirements

of that Part. Under the proposed rules,

generators of 100-1000 kg/mo would,

have been required under Part 262 to:

e Determine whether their wastes are

hazardous (already required under

§ 261.5);

* Obtain an EPA identificatiofi

number;

e Store hazardous waste on-site for

ho more than 180 or 270 days in

compliance with specially modified

storage standards (unless they comply

with the full regulations for hazardous

waste management facilities);

* Offer their wastes only to

transporters and facilities with an EPA

identification number;

* Comply with applicable Department

of Transportation (DOT) requirements

for shipping wastes off-site;

e Use a single copy of the Uniform

Hazardous Waste Manifest to

accompany the waste from the

generation site.

The proposed requirements for

generators of 100-1000 kg/mo were

intended to be less stringent than those

applicable to large quantity generators

in two significant respects. First, under

the proposed rules, generators of 100-

1000 kg/mo would not have been

required to comply with the full manifest

system required of larger hazardous

waste generators that ship waste off-site

for treatment, storage, or disposal.

Instead, the Agency proposed a "single

copy" manifest system intended to serve

as a "notification" to subsequent

handlers of the waste (i.e., transporters

and facilities) that the material is a

hazardous waste and to provide

essential information to those handlers

as well as emergency personnel. EPA

proposed to specifically exempt these

generators from the existing manifest

requirements pertaining to number and

distribution Of manifest copies as well

as from the recordkeeping and reporting

requirements associated with the full

manifest system (i.e., use and retention

of manifest copies and exception and

biennial reporting). EPA also proposed

to exempt 100-1000 kg/mo generators

from all of the manifest requirements

under certain circumstances where the

waste is reclaimed under contractual

arrangements where either the generator

or a reclaimer retains ownership of the

material throughout the generation,

transportation, and reclamation of the

waste. Under such circumstances, EPA

believed that the manifest would be

unnecessary, provided that specific

conditions are met.

A second significant difference for

100-1000 kg/mo generators was the

proposed requirements affecting

accumulation (i.e., short-term storage) of

hazardous waste on-site prior to

shipment of waste off-site or

management on-site in a treatment,

storage, or disposal facility. The

proposed rules implemented the

statutory requirement to allow

generators of 100-1000 kg/mo to

accumulate (i.e., store) waste on-site in

tanks or containets for up to 180 days

(or 270 days if they must ship their

waste over 200 miles for treatment or

disposal), without obtaining interim

status or a permit. In addition, the

proposed rules provided that these

generators would need to comply with

specific storage requirements which

were reduced somewhat from those

applicable to large quantity generators.

Unlike large quantity generators, those

producing between 100-1000 kg/mo

would not be required to prepare a

written contingency plan or have

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formalized personnel training programs.

They would, however, be subject to a

reduced set of specific requirements for

contingency and emergency pr6cedures,

and for ensuring that their employees

are fully cognizant of those procedures

as well as proper hazardous waste

handling methods. Generators of 100-

1000 kg/mo that accumulate wastes in

tanks or.containers would, however, be

subject to the same requirements of

existing Subparts I and I of Part 265

applicable to larger generators as well

as to the preparedness and prevention

standards contained in Subpart C of

Part 265.

EPA also proposed that those 100-

1000 kg/mo generators who treat, store,

or dispose of their hazardous waste in

on-site facilities and who do not qualify

for the 180- or 270-day exclusion would

be subject to the full set of Parts 264 and

265 facility standards currently

applicable to other hazardous waste

treatment, storage, and disposal

facilities, including the need to obtain

interim status and a RCRA permit. EPA

saw no basis for reducing the 'technical

standards for these generators since the

potential hazards to human health and

the environment appeared to be

equivalent to those from other fully

regulated treatment, storage, and

disposal facilities. However, because of

the major impact which these facility

requirements would be likely to have on

many of these firms, the Agency

proposed to delay the effective date of

this portion of the regulations an

additional six months (i.e., 1 year from

the date of publication in the Federal

Register of the final rules) to allow these

firms additional time to either arrange

for off-site management or to up-grade

their on-site practices for compliance

with the full set of Parts 264 and 265

facility standards.

B. Summary of Final Rule

Today's final rule adopts most of the

provisions of the proposed rules for

generators of 100-1000 kg/mo. Today's

final rule subjects generators of 100-

1000 kg/mo to regulation under Parts

262, 263, 264, 265, and 266 of the

hazardous waste regulations by

removing these generators from the

conditional exclusion provisions of

§ 261.5. However, the Agency has

decided not to formally redefine a "small quantity generator" as one who

generates no more than 100 kg of nonacutely hazardous waste since the

Agency has concluded that such a

redefinition would increase, rather than

reduce, confusion. Consequently, the

term "small quantity generator" will

continue to apply to all generators of

less than 1000 kg of hazardous waste in

a calendar month.

As a result of today's final rule

subjecting generators of 100-1000 kg/mo

to the Part 262 requirements, these

generators will be required to:

9 Determine whether their wastes are

hazardous (already required under

§ 261.5);

- Obtain an EPA identification

number;

- Store hazardous waste on-site for

no more than 180 or 270 days in

compliance with specially modified

storage standards (unless they comply

with the full regulations for hazardous

waste management facilities);

- Offer their wastes only to

transpoi'ters and facilities with an EPA

identification number;

- Comply with applicable Department

of Transportation (DOT) requirements

for shipping wastes off-site;

e Use a multi-part "round-trip"

Uniform Hazardous Waste Manifest to

accompany the waste to its final

destination; and

o Maintain copies of manifests for

three years;

EPA is today finalizing a number of

the proposed modifications to the Part

262 requirements applicable to

generators of 100-1000 kg/mo. These

generators will not be required to submit

biennial reports or file exception reports

if a copy of the manifest is not returned

by the destination facility. In addition,

the proposed modifications to the

accumulation provisions of § 262.34

exempting these generators from the

requirements to prepare a formal

contingency plan and conduct formal

personnel training are. also being

finalized, as is the proposed exemption

from all manifest requirements for

wastes reclaimed under certain

contractual arrangements. The Agency

is also exempting 100-1000 kg/mo

generators from the 50' buffer zone

requirements for container storage of

ignitable or reactive wastes during

periods of on-site accumulation.

The most significant departure from

the proposed rules is the Agency's

determination that the multiple copy

manifest system does not impose a

significant burden and that, in fact, the

multiple copy manifest system is

essential to ensure protection of human

health and the environment. Therefore,

the modifications to the existing

manifest system proposed for 100-1000

kg/mo generators are not being adopted

in today's final rule. The reasons for this

change are discussed in detail in Unit

III.C. of this preamble.

III. Response to Comments and Analysis

of Issues

This Section of the preamble

addresses the comments received on the

August 1, 1985, proposed rules

("Proposal") and describes the Agency's

position on'the major issues raised in

the proposal and during the comment

period.

A. EPA 's Approach To Regulating 100-

1000 kg/mo Hazardous Waste

Generators

As discussed in the preamble to the

Proposal, EPA's approach in developing

standards for 100-1000kg/mo

generators was one of balancing the two

competing goals inherent in section

3001(d)-protecting human.health and

the environment and avoiding

unreasonable burdens on the large

number of small businesses affected by

the standards. In assuring protection of

human health and the environment, the

Agency deemed it appropriate and

consisent with Congressional intent to

consider the "relative risk" posed by the

small aggregate amounts of waste

generated by the 100-1000 kg/mo

generators. Given the. lower relative risk

that these generators pose compared to

larger generators in terms of quantity of

waste, varying the standards from those

applicable to large quantity generators

would still assure protection of human

health and the environment.

EPA also evaluated the potential

impact of full Subtitle C regulations with

respect to both administrative and

technical considerations, and concluded

that the technical requirements were

more essential than the administrative

requirements to the general goal of

protecting human health and the

environment because they are directly

concerned with controlling releases to

the environment. In addition, Congress

anticipated reducing administrative

requirements, such as reporting and

recordkeeping, as a means to reduce

impacts on the 100-1000 kg/mo

generators. Thus, EPA proposed to

relieve these generators of some Part 262

standards that are administrative in

nature while retaining all existing

technical standards. The relief was only

provided to generators who accumulate

on-site for the statutorily-prescribed

periods, because, given that the amount

of waste accumulated would necessarily

be limited, the relative risk from

releases of such waste would be less

than that from the unlimited amounts of

waste accumulated by off-site facilities.

Most persons who commented on

EPA's approach to regulation in this

area supported the concept of reducing

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burdens on small businesses and of

fashioning the degree of relief provided - from the level of risk involved; however,

several commenters disagreed on the

level of risk posed by waste from 100-

1000 kg/mo generators. One commenter

argued that the "relative risk" approach

was not technically sound because the

synergistic and antagonistic properties

of waste streams were not considered,

and mismanagement of even small

quantities of waste, if not controlled or

regulated, would eventually have the

same impact as larger amounts of waste.

One commenter pointed out that the

relative risk approach is difficult to

justify on a regional or local basis,

where 100-1000 kg generators may

contribute much more than the 0.3

percent nationwide contribution, and

their proximity to populations as

compared to large quantity generators

should have been considered. Several

commenters also asserted that Congress

has judged the hazardousness of a given

waste to be imparted by its inherent

properties, not by its quantity.

As EPA explained in the Proposal, the

Agency believes it to be both

appropriate and consistent with

Congressional intent to consider the

relative risk posed by the smaller

quantities of waste generated by 100-

1000 kg/mo generators. Although it did

evaluate several Congressionallyspecified factors, such as waste

characteristics, the Agency found that

the only useful factor in drawing

meaningful distinctions between large

quantity generators and 100-1000 kg/mo

generators was the quantity of waste

generated. Thus, the Agency considered

both the inherent properties and the

quantities of waste generated in

developing standards to assure

protection of human health and the

environment.

The Agency is aware that there can be

concentrations of 100-1000 kg/mo

generators in populated areas, and that

their 0.3 percent nationwide contribution

can be increased accordingly in some

cases; however, overall the quantities of

waste capable of being leaked or spilled

during storage or transportation, as

compared to that of large quantity

generators, still poses relatively less

risk. Moreover, the only type of relief

being provided is where the technical

standards deemed necessary to protect

human health and the environment are

not compromised in substance. The

Agency believes that, by retaining all

technical standards for storage,

transportation, and treatment required.

of large quantity generators and by

modifying some requirements of an

administrative nature for the 100-1.000

kg/mo generators, a fair balance - between the goals of reducing burdens

and protecting health and the

environment is reached. The Agency

does not believe that exempting the 100-

1000 kg/mo generators from these

admiiistrative requirements will

significantly increase the risks from

storage, transportation, or disposal of

the waste. In addition, as discussed

below, the Agency's decisions to require

the multiple-copy manifest, which will

allow "tracking" of the waste to ensure

proper disposal, will further reduce any

potential risks.

Another group of commenters

criticized EPA's approach in that it did

not consider bases for providing relief in

addition to that proposed. For example,

several commenters asserted that 100-

1000 kg/mo generators use less

sophisticated waste management

practices than large quantity generators,

due in large part to economic

constraints. This, along with the lesser

relative risks, they asserted, dictates

imposing less costly regulatory

requirements, such as eliminating onsite storage permitting requirements for

longer periods of time and larger

quantities than EPA proposed.

While EPA did consider differences in

waste management practices that would

distinguish 100-1000 kg/mo generators

from large quantity generators, it found

that both classes use many of the same

waste management practices (see 50 FR

31285 (Col. 1) (August 1, 1985). The

comments received on this subject do

not provide evidence indicating

otherwise. The Agency has recognized

that the 100-1000 kg/mo generators

generally have less manpower and

fewer economic resources available to

them, and that this would affect their

ability to comply with the full regulatory

requirements applicable to large

quantity generators. However, Congress

has already provided for on-site storage

for longer periods of time to allow for

more economical shipments. In addition,

as discussed below, EPA is modifying

certain facility requirements for on-site

accumulation to simplify the

requirements for contingency plans,

emergency procedures, and personnel

training (contained in Part 265, Subpart

D and § 265.16). These requirements are

being modified because they would be

unduly burdensome and the underlying

environmental objectives can be

achieved in their modified form.

However, full Parts 264-265

requirements would apply to generators

that store their waste in tanks or

containers for very long periods of time

(i.e., longer than 180 or 270 days)

because the quantity of waste present,

over time, becomes significant.

Similarly, the potential for release -of

hazardous waste to the environment

becomes ignificant where 100-1000 kg/

mo generators engage in waste

management in surface impoundments,

waste piles, landfills, or land treatment

facilities. Thus, in order to fulfill its

mandate to protect human health and

the environment, EPA has rejected any

suggestions to reduce the Parts 264 and

265 facility standards.

B. Applicability Issues

1. Definition of "Small Quantity

Generator"

In the August 1, 1985 proposal, EPA

proposed to amend 40 CFR 261.5 to

redefine a small quantity generator as

one who generates no more than

specified quantities of acutely

hazardous waste and no more tharlO00

kg of other hazardous waste in a

calendar month. The effect of the

proposed redefinition would have been

to remove 100-1000 kg/mo generators

from. the § 261.5 exemption for small

quantity generators and subject them,

instead, to Parts 262-266, 270, and 124 of

the hazardous waste regulatory

program. Under the proposed rules,

generators of 100-1000 kg/mo would

have been one of two classes of large

quantity generator. The Agency also

proposed changes to Part 262 that would

specifically exempt these 100-1000 kg/

mo generators from a number of the

otherwise applicable administrative

requirements.

A number of commenters expressed

concern about the proposed redefinition

of the small quantity generator provision

to exclude generators of 100-1000 kg/

mo. In :Particular, they stated that many

of these generators were only now

becoming aware of their status as

regulated hazardous waste generators

and that, for the most part, they

recognized themselves as "small

quantity generators". Changing these

generators to large quantity generators,

it was felt, would add to confusion and

reduce the likelihood of compliance. It

was also pointed out that many of the

education materials being used to

acquaint these generators with the

RCRA requirements, including many of

EPA's own materials, referred to this

class of generator as "small quantity

generators". Commenters suggested

several specific labels to differentiate

the various classes of generators,

including such terms as "small.de

mininimis", "very small quantity

generators" or "extremely small

quantity generators".

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In proposing to remove the 100-1000

kg/mo generators from § 261.5, the

Agency was attempting to address the

complexity and confusion caused by

having multiple classes of small quantity

generator subject to significantly

different standards. The Agency is

sympathetic to the concerns of these

commenters and in no way intended the

redefinition to add to the confusion

which many of these firms may

experience in becoming subject to the

bulk of the RCRA regulatory program for

the first time. For the reasons discussed

below, EPA has decided not to alter the

existing definition of "small quantity

generator" but is making modifications

to § 261.5 that will provide a more

explicit labeling scheme for regulatory

purposes.

Section 261.5 has historically

addressed those hazardous waste

generators that were conditionally

exempt from most of the hazardous

waste regulatory program. Until the

HSWA of 1984 and the subsequent

codification of its early enactment

provisions on July 15, 1985, only two

major classes of small quantity

generator existed: those generating or

accumulating acutely hazardous wastes

below certain quantity cutoffs and those

generating or accumulating below 1000

kg of most hazardous wastes.

Furthermore, both classes were largely

exempt from the standards applicable to

large quantity generators.

However, with the addition of a new

class of small quantity generator

designated by Section 3001(d) of HSWA

(i.e., those generating between 100 kg

and 1000 kg of hazardous waste in a

calendar month) that would be subject

to most of the standards applicable to

large quantity generators, continued use

of the term "small quantity generator" would have no regulatory significance

and would lead to confusion for the

previously exempt class of generators. The proposed redefinition was

intended to distinguish between small

quantity generators that were

conditionally exempt from regulation

under § 261.5 (i.e., <100 kg/mo) and

those that would be subject to most of

the requirements applicable to large

quantity generators (i.e., 100-1000 kg/

mo). By removing the 100-1000 kg/mo

generator from § 261.5 and referring to

these generators by their actual quantity

limitations, the Agency intended to

provide a more explicit, and therefore

less confusing, regulatory scheme.

The Agency does not believe that the

commenters' suggestion of retaining the

term "small quantity generator" solely

for 100-1000 kg/mo generators or

creating new labels for different

categories of small quantity generators

will reduce confusion; such labels would

probably cause more confusion,

especially where states have

established their own small quantity

generator definitions and exclusion

levels. In fact, as a result of these

cbmments, the Agency believes that the

term small quantity generator is no

longer sufficiently precise for most

regulatory purposes.

For this reason, the Agency is making

three regulatory changes affecting the

use of the term "small quantity

generator". First, the Agency is adding a

definition of "small quantity generator"

to Section 260.10 as follows:

"Small quantity generator" means a generator who generates less than 1000 kg of

hazardous waste in a calendar month.

This definition conforms to the existing

definition of the term and is being added

to § 260.10 to alleviate any potential

confusion over the definition of "small

quantity generator".

Second, EPA is finalizing the proposed

removal of generators of 100-1000 kg/

mo from the conditional exclusion

provisions of § 261.5 and will instead

refer to these generators in the

regulatory language as generators of

100-1000 kg/mo. This wiU retain the

original premise of the redefinition

which was to segregate in the

regulations those generators that are

predominantly exempt from regulation

'(i.e. generators of less than 100 kg/mo of

hazardous waste and generators of

acutely hazardous waste in less than

specified quantities) from those who are

more fully regulated (i.e. 100-1000 kg/mo

generators). Since the 100-1000 kg/mo

generators are no longer excluded from

most of the Part 262 regulations by

inclusion in § 261.5, the applicable

.portions of Parts 262-266, 270, and 124

will apply to these generators, as

proposed.

Finally, the Agency is also modifying

references to the term "small quantity

generator" in § 261.5 and in other parts

of the regulations to provide more

explicit descriptions of the various

classes of small quantity generator.

Thus, generators of less than 100 kg/mo

of hazardous waste or less than

specified quantities of acutely

hazardous waste will also be referred to

by their quantity cutoffs or as generators

who are conditionally exempt under

Section 261.5. Section 261.5 will now be

titled "Special Requirements for

Hazardous Wastes Generated by

Conditionally Exempt Small Quantity

Generators."

The removal of the term "small

quantity generator" from most

regulatory use will in no way preclude

continued use of the term "small

quantity generator" for general

reference and educational purposes. The

Agency recognizes the widespread use

of the term "small quantity generator"

by States, trade associations, Congress

and others and has no intention of

interfering with the continued use of

that term by anyone choosing to use it to

refer to the broad class generating less

than 1000 kg in a calendar month. EPA

will also continue to use the term "small

quantity generator" in describing the

collective group of generators below

1000 kg/mo but will use the terms "generators of less than 100 kg/mo" and

"100-1000 kg/mo generator" for

regulatory purposes. For example, in

discussing methodology for counting

quantities in order to determine

generator status, it would be appropriate

to refer to the small quantity generator

class since it includes both the 100-1000

kg/mo generators and generators of less

than 100 kg/mo.

2. Generator Category Determination

In the Proposal, the Agency discussed

a number of issues relevant to making a

determination of which generator

category a given firm belonged to at any

given point in time in order to determine

what requirements that establishment

was actually subject to. Among the

issues covered were which wastes need

not be included in quantity

determinations (e.g., spent lead-acid

batteries destined for reclamation and

used oil) and how to count wastes for

purposes of determining generator status

(e.g., counting of wastes reclaimed onsite). The comments received on these

proposed rules raised a variety of

additional issues with respect to what

tyfes of activities and wastes were

intended to be covered by the proposed

rules, and whether the rules were

applicable to "episodic generators" who

might be fully regulated in one month

but conditionally exempt the next.

These issues are discussed below. In

addition to the explanation provided in

this preamble, the Agency intends to

develop detailed, -plain-English guidance

and education materials to help the 100-

1000 kg/mo generators understand and

comply with the hazardous waste

regulations.

a. Counting Amendment to § 261.5. In an effort to help clarify for small

hazardous waste generators which

wastes must be counted in determining

their generator category, the Agency

proposed an amendment to § 261.5.

The proposed amendment stated that

for purposes of making quantity

determinations under § 261.5, a

generator need not count wastes which

are specifically exempted from

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regulation (see, e.g., § 261.4, or § 264.1(g)

(2), (4), (5) and (6)) or which were not

subject to substantive regulation under

Parts 263, 264, 265, and the on-site

accumulation provisions of § 262.34

were not subject to counting for

purposes of determining generator

status. Wastes that were subject to the

provisions of § 261.6 (b) and (c)

(recyclable materials), however, would

be required to be counted in making

quantity determinations. The proposal

was designed to ensure that wastes that

are not regulated are not counted. In

addition, the counting amendment was

intended to eliminate the multiple

counting of wastes that are reclaimed

and then reused many times during the

calendar month. In this situation, the

waste would only be counted once, even

though it is reused and subsequently

becomes a hazardous waste again after

such reuse.

While the proposed amendment was

intended to make it clear that any

hazardous waste that is excluded or,

exempted from substantive regulation

need not be included in the quantity

determinations, a number of

commenters either misunderstood the

scope of the amendment or believed that

additional clarification was necessary

for the amendment to be understood.

Although virtually all commenters on

the proposed amendment supported the

concept, several recommended specific

changes to improve the clarity of the

provision. Consequently, the Agency is

today finalizing a slightly modified

version of the amendment to § 261.5 to

clarify which wastes are counted in

making generator category

determinations.

One commenter correctly noted that

the amendment, as written, would not

apply to generators of 100-1000 kg/mo

since the amendment referred only to

the quantity determinations under

§ 261.5. Since, under the rules being

promulgated today, 100-1000 kg/mo

generators will no longer be subject to

the conditional exclusion provisions of

§ 261.5, the counting amendment would

not have applied to these generators as

proposed. Since this was contrary to the

Agency's intent that the § 261.5(c)

amendment be used by all generators in

determining their generator status, the

final regulatory language of this

provision is modified to indicate that the

amendment applies to quantity

determinations under Parts 261-266 and

270 of the hazardous waste rules.

A second modification to this

provision will make it clear that wastes

which are not regulated under Parts 262-

266 and 270 are not counted in making

quantity determinations.

The majority of commenters on this

provision asked for clarification on

which wastes or processes were

actually intended to be exempted from

counting since the references to broad

regulatory provisions or concepts such

as "subject to substantive regulations".

left many readers uncertain as to what

the Agency considered to be "substantive regulation". For purposes

of this provision, the term "substantive

regulation" includes regulations which

are directly related to the storage,

transportation, treatment, or disposal of

hazardous wastes. Regulations which

would not be considered "substantive"

forpurposes of this provision would be

requirements to notify and obtain an

EPA identification number or to file a

biennial report.

As a general guide, the following

materials are included in the general

category of exempted.or excluded

wastes that would not be counted in

making quantity determinations for

purposes of determining hazardous

waste generator status:

- Any waste excluded from regulation

under § 261.4. For example, wastes

discharged to publicly owned treatment

works (POTWs) and commingled with

domestic sewage are not considered to

be solid wastes when discharged, under

§ 261.4(a). Therefore, they are excluded

from regulation under Subtitle C of

RCRA and not counted for purposes of

making quantity determinations (unless

they are stored or treated in regulated

units prior to being discharged). Such

wastes are regulated instead under the

Clean Water Act. 2

a Any waste exempt from regulation

under § 261.6 or wastes that are not

stored or transported prior to being

reclaimed. For example, under

§ 261.6(a](3)(ii), spent lead-acid batteries

that are returned to a battery

manufacturer for regeneration are

exempt from regulation under Parts 262-

266, 270, and 124, and, therefore, are not

counted in the quantity determination.

Also, used oil exhibiting a

characteristic of hazardous waste,

unless mixed with other hazardous

wastes, is also currently exempt under

§ 261.6(a) and is not counted for

purposes of making quantity

determinations. EPA recently proposed

to list used oil as a hazardous waste and

2 Waste discharged to a public sewer system is

exempted from RCRA to avoid duplicative

regulation since such wastes are regulated under

the Clean Water Act. While disposal of hazardous

wastes in this manner is not a violation of RCRA,

the general pretreatment standards under the Clean

Water Act contained in 40 CFR 403.5 prohibit the

introduction of wastes into POTWs that would

interfere with the operation.of the treatment plant

or subsequent POTW sludge management.

proposed special management standards

for used oil that is recycled. (See 50 FR

49164, November 29, 1985.) These

proposals, if finalized, will continue to

exclude used oil from the quantity

determinations of Parts 261-266 and 270.

Under the proposed rules for used oil,

generators would count their used oil

separately from their other hazardous

wastes against a separate small quantity

generator cutoff that would be

established for recycled oil. Under those

proposed rules, generators would be

subject to less stringent standards for

their recycled used oil than for their

other hazardous wastes, provided they

do not mix other hazardous wastes with

their used oils or dispose of the used oil

rather than recycle it. Used oil which is

disposed of, or mixed with other

hazardous wastes, would be regulated

like any other hazardous waste and

counted separately against the 100 kg/

mo cutoff being promulgated today for

other hazardous waste generators.

* Any waste reclaimed on-site if it is

not accumulated prior to recycling in

such a way as to become subject to the

accumulation provisions of § 262.34 or

the permitting requirements for storage

facilities under Parts 264 or 265 (i.e. if it

is not accumulated or stored prior to

reclamation on-site). Under the

hazardous waste rules, the actual

process of reclaiming wastes is not

subject to regulation under Parts 262-265

and 270 and 124 of the hazardous waste

regulations.

Only the accumulation,

transportation, long term storagq, or the

management of residues or sludges

resulting from the reclamation process

are actually subject to regulation. For

example, wastes which are continuously

reclaimed in a still or solvent cleaning

machine on-site without intervening

storage and which are reused on-site are

not regulated and are not required to be

counted in determining generator status.

a Wastes exempt from regulation

under §§ 264.1 or 265.1, provided they

are also not subject to the substantive

standards in 40 CFR Parts 262 and 263.

For example, wastes treated in

elementary neutralization units,

wastewater treatment units or totally

enclosed treatment facilities as these

units are defined in §260.10 are exempt

from regulation under Parts 264 and 265.

- Wastes exempt from certain

regulations under § 261.4(c). For

example, wastes stored in a product or

raw material storage tank are not

subject to regulation under Parts 262-

265, 270, 271, and 124, or to the RCRA

3010 notification requirements, and

hence, are not counted.

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Therefore, generators are required to

count for purposes of determining

generator status any waste that is

subject to the substantive regulations.

Wastes are only counted once, however.

A number of commenters claimed that

although EPA discussed this in the

preamble to the proposed rules, this

point was not made clear in the actual

regulatory language. The Agency agrees,

and thus has added § 261.5(d)(3) to

make it clear that a generator need not

count the hazardous waste generated

and then reclaimed and reused at the

site of generation if the hazardous waste

has already been included in the

monthly totals. The Agency also is

modifying § 261.5(d)(2) to make it

clear that you only count the residue

from treatment where the original

hazardous waste was not counted.

The following examples may help to

illustrate the regulatory scheme:

(Example 1) Manufacturer A uses

solvent in a degreasing process yielding

500 kg of spent solvent in a month. If the

solvent is to be reclaimed (e.g., distilled)

on-site and is not sorted or accumulated

prior to reclamation, it will qualify as a

solid (and hazardous) waste but it will

not be counted in the generator's

monthly totals. The 90 kg of still bottoms

from the distillation process are also

hazardous waste and must be counted

since they were not included in the

monthly total. Consequently, 'A' will not

be a generator of 100-1000 kg during the

month in question.

If the solvent is stored or accumulated

prior to distillation, the 500 kg of the

spent solvent will qualify as a

hazardous waste and will be counted in

'A's hazardous waste totals for the

month in which it was generated. The

still bottoms will also qualify as

hazardous waste, but will not be

counted because the spent solvents have

already been counted once. The

regenerated solvent, on the other hand,

will not be a solid or hazardous waste. It

will remain unregulated, just like the

virgin material.

(Example 2) Manufacturer A

generates 120 kg of hazardous spent

solvent in one month which-he distills

without intervening storage. The

regenerated solvent is then reused.

Neither the spent solvent nor the

regenerated solvent is counted and "A"

is not a 100-1000 kg/mo generator.

Alternatively, "A" distills the spent

solvent, but stores it for less than 180

days before reclamation, and reuses the

regenerated solvent until spent again,

and then distills it once again. The spent

solvent would be counted because it

was stored before reclamation, but it

would only be counted once. "A" is now

a 100-1000 kg/mo generator. If the spent

solvent were stored for more than 180

days before reclamation, "A" would

need a storage permit.

(Example 3) "A" generates 500 kg of

hazardous spent solvent in one month

and stores it in an earthen basin which

is an impoundment, not a tank. The

spent solvent is then discharged to a

POTW. "A" must count the total

quantity of spent solvent, as the

impoundment is not a wastewater

treatment unit by definition (§ 260.10),

and hence, "A" is a 100-1000 kg/mo

generator.

(Example 4) An automotive services

center generates spent lead-acid

batteries, which it sends to a battery

breaker. The service center does not

count the spent batteries in its monthly

total because they are exempt from

regulation until they reach the battery

breaker. (See § 266.80(a).)

b. Generators of Acutely Hazardous

Waste: Section 3001(d)(7) of HSWA

states that the requirements applicable

to generators of acute hazardous waste

listed in § § 261.31, 261.32, or 261.33(e)

are not affected by the'HSWA

amendments. 3 Thus, today's regulatory

amendments will not alter those

requirements applicable. to generators of

acutely hazardous wastes and these

generators will remain subject to the

exclusion limits and requirements

contained in § 261.5[e)..The same

counting rules as those described above

are applicable.

c. Generators of Non-acutely

Hazardous Waste in Quantities of Less

than 100 kg/mo: Section 3001 of HSWA

gives EPA authority to promulgate

regulations for generators of less than

100 kg of hazardous waste per month if

the Administrator determines that such

*standards are necessary to protect

human health and the environment. The

Agency is not required to promulgate

such regulations and it did not propose

to further extend coverage of the

hazardous waste program to this class

of hazardous waste generator in the

August 1, 1985 proposal.

In the Proposal, the Agency stated

that it had no data to indicate that

additional regulation of generators of

less than 100 kg/mo of non-acutely

hazardous waste would provide any

significant additional level of

environmental protection. Generators of

less than 100 kg/mo of hazardous waste

account for only .07 percent of the total

quantity of hazardous waste generated

nationally. A review of damage cases

also indicated that very few incidents

involved quantities below 100 kg.

Consequently, none of the regulations

3 At this time, only one acute hazardous waste,

dioxin, is listed outside of § 261.33(e).

promulgated today, with one exception,

alter the existing § 261.5 provisions

applicable to generators of less than 100

kg/mo. As discussed under the on-site

accumulation provisions later in this

preamble, the Agency has decided to

modify § 261.5(g) to subject generators

of less than 100 kg/mo who exceed the

accumulation limit of 1000 kg to the

modified standards for generators of

100-1000 kg/mo rather than to full

regulation.

d Determination of Generator Status:

A number of commenters asked for

clarification of the requirements that

would apply to generators that do not

generate hazardous waste at a uniform

rate. Such "episodic generators" may

generate, for example, less than 100 kg

of hazardous waste one month,

quantities of 100-1000 kg other months,

or may periodically exceed 1000 kg in a

single month.

Several commenters requested

clarification of what standards would

apply to these episodic generators under

different circumstances. Various

circumstances for which clarification

was requested were raised; for example:

(1) A generator that exceeds the 100

kg/mo exclusion level periodically as a

result of'special operations such as tank

cleaning;

(2) A generator that usually generates

between 100 and 1000 kg/mo, but

exceeds 1000 kg in one month;

(3) A generator that exceeds 1000 kg/

mo several times and accumulates all

waste in a single tank;

(4) A generator that periodically

exceeds 1000 kg/mo and separates the "under 1000 kg/mo" waste from the

"over 1000 kg/mo" waste.

The Agency has always taken the

position that a generator may be

subjected to different standards at

different times, depending upon his

generation rate in a given calendar

month (See, e.g., 45 FR 76620, November

19, 1980). Thus, a generator of less than

100 kg in one calendar month would be

deemed a conditionally exempt

generator in that month, subject only to

the requirements of § 261.5; however, if

in the next calendar month, he generates

more than 100 kg but less than 1000 kg of

any regulated hazardous waste, he is

subject to all of the standards being

- promulgated today, as his generator

status has changed. Furthermore, if he

generates more than 1000 kg in any

calendar month, he is deemed to be a

large quantity generator, subject to all

applicable standards. Thus, any non- exempts waste that is generated during

a calendar month in which the 1000 kg/

mo cutoff is exceeded is subject to full

regulation until it is removed from the

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generator's site. If such fully regulated

waste is mixed or combined with waste

exempt or excluded from regulation or

waste that is subject to reduced

regulation under today's final rule, then

all of the waste is subject to full

regulation until the total mixture is

removed from the generator's site. If, on

the other hand, the generator stores

separately that waste generated during

a month in which less than 1000 kg (but

more than 100 kg) of hazardous waste is

generated, from waste generated during

a month in which more than 1000 kg is

generated, the former is subject to

today's reduced requirements, while the

latter is subject to full regulation.

Therefore, generators who expect to

periodically exceed the 1000 kg/mo

cutoff for the reduced requirements

being promulgated today should be

prepared to ship their waste off-site if

they wish to avoid being subject to full

regulation.

Several commenters have suggested

alternative schemes for determining

applicable standards, all of which the

Agency must reject. One commenter

suggested that generators would

determine their generator status on the

basis of a "moving average" over a 12

month period. If, for example, a

generator exceeded 1000 kg/mo for

several months but averaged between

100 and 1000 kg over the course of the

year, he would be subject to the reduced

standards being promulgated today for

100-1000 kg/mo generators. The major

problem with this approach is that

generators would not be able to

determine what standards they were

subject to until as much as a year after

they should have been complying with a

specific set of requirements. For

example, a generator who generates

over 1000 kg the first month but who

expects his moving average to fall below

1000 kg after 12 months could avoid

preparing a contingency plan or

complying with the other requirements

of Part 262 applicable to large

generators. This would also present

enforcement problems, since it would be

unclear which standards apply at any given point. Thus, the Agency believes

that such an approach would not

significantly reduce the implementation

difficulties it was designed to address.

The second approach suggested was

establishment of a uniform time and

quantity cutoff for all generators,

applying the same standards to the

same quantities, regardless of monthly

generation rates. Under this approach,

all generators would be allowed to

utilize the 180- and 270-day storage

periods, provided the 6000 kg "cap" was

not exceeded for all accumulated

hazardous wastes so that the reduced

standards of Part 262 for 100-1000 kg/

mo generators would be extended to all

generators who do not exceed 6000 kg

on-site.

While this approach would be simpler

to administer, it would be inconsistent

with the approach that Congress has

directed the Agency to take in

developing standards for generators

who produce different quantities of

waste. While the Agency is authorized

to consider such factors as small

business impacts and management

capabilities for 100-1000 kg/mo

.generators, it i;, not explicitly authorized

to do so for larger generators. The

Agency may not ignore in this

rulemaking the fact that the statute has

established generation rate as a factor

in determining whether business

impacts may be considered. Thus, as

discussed further in Unit II1.C.4., below,

the Agency may not extend to all

generators the same time'and quantity

limitations applicable to 100-1000 kg/mo

generators.

C. Part 262 Generator Responsibilities

EPA is today finalizing amendments

to Section 261.5 that will subject

hazardous waste generators of 100-1000

kg/mo to the Part 262 generator

standards and simplify a number of

those requirements. This section of the

preamble discusses the proposed

amendments to Part 262 to relieve 100-

1000 kg/mo generators of some of the

administrative burden of complying with

the hazardous waste regulatory

program, the comments received on

each proposal and the Agency's decision

with respect to each of the proposed

amendments.

The specific Part 262 requirements

that EPA is amending for application to

100-1000 kg/mo generators are as

follows: e § 262.20 (General Manifest

Requirements) is amended to exempt

generators of 100-1000 kg/mo from all

manifest requirements if their hazardous

waste is reclaimed ,under certain

contractual agreements provided the

generator complies with specific

recordkeeping requirements set forth in

this section. Some modifications to this

amendment are being made in response

to comments.

* § 262.34 (Accumulation Time) is

amended to extend the period of on-site

storage allowed for 100-1000 kg/mo

generators without the need to obtain

interim status or a RCRA permit, from 90

days to 180 (or 270) days for quantities

not to exceed 6000 kg.In addition,

§ 262.34 is amended to specify the

requirements that would apply to such

on-site storage by these generators.

a A new § 262.44 to Subpart D of Part

262 is added to exempt generators of

100-1000 kg/mo from the requirements

to file and maintain records of biennial

and exception reports. This exemption

does not apply to records pertaining to

hazardous waste determinations under

§ 262.40(d) and the extension of

retention periods under § 262.40(c).

1. Notification and Identification

Number Requirements-§ 262.12

In the August 1 proposal, EPA

proposed that generators of 100-1000

kg/mo be subject to § 262.12, which

provides that generators not excluded

under § 262.10 or the provisions of

§ 261.5: (1) Must not treat, store, dispose

of, transport, or offer for transportation,

hazardous waste without receiving an

EPA Identification Number: (2) must

obtain an EPA identification number

(and may do so by completing and

submitting EPA form 8700-12): and (3)

must not offer their hazardous waste to

transporters or to treatment, storage,

and disposal facilities that have not

received an EPA identification number,

The majority o commenters on the

requirement to obtain and use an EPA

identification number supported the

Agency's proposal not to exempt 100-

1000 kg/mo generators from this

provision. EPA believes that a

centralized data base of firms subject to

regulation under RCRA is essential for

effective compliance monitoring and

enforcement, as well as for

characterizing thp regulated community

to provide information to Congress and

to make resource projections. Use of a

unique identifying number is necessary

to effectively manage any large data

base. Several commenters added that

requiring identification numbers for all

generators who are subject to

substantial regulation minimizes

confusion in the regulated community.

Commenters who opposed the

requirement cited the Agency's cost

estimate of $40.00 per generator to

obtain a U.S. EPA Identification

Number, the complexity of the

application form, and the lack of a

specific statutory requirement for

Identification Numbers. However, the

Agency does not believe that the

requirement to obtain a U.S. EPA

Identification Number is overly

burdensome to these generators, given

the important function which this

requirement fulfills.

Some commenters Who opposed the

requirement cited the complexity of the

EPA Form 8700-12, "Notification of

Hazardous Waste Activity." The

Agency does not believe that the form is

overly complex. EPA Regional Offices

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have already received over 28,000

applications for U.S. EPA ID numbers

from generators of.less than 1000 kg/mo.

In some cases, these applications were

prompted by requirements from

transporters and facilities that handle

waste from these generators. In other

cases, States require identification

numbers for generators of less than 1000

kg/mo. While the Agency'is unaware of

any instances of 100-1000 kg/mo

generators being unable to complete the

form, EPA has initiated a major

education program through trade

associations, States, and grants to local

governments and others, which would

widely disseminate information that will

help generators comply with today's

rule. The Agency has also prepared a

supplemental instruction sheet to

provide additional information to

generators of less than 1000 kg/mo who

apply for U.S. EPA Identification

Numbers. These instructions will

contain the EPA waste codes for wastes

commonly produced by these

generators. This information will allow

many generators to complete the

application without additional

information or-research. In addition,

generators may call the RCRA/

Superfund Hotline or the Small Business

Hotline for information and assistance.

These numbers are provided at the

beginning of today's notice.

Some commenters suggested

establishing a telephone system for

obtaining identification numbers. EPA

considered this kind of system in the

proposal and concluded that the lack of

a signed record from the waste handler

would allow' a high potential for

confusion and misrepresentation. The

Agency still believes this to be true and

no commenter was able to suggest a

mechanism for avoiding this.

One commenter suggested that EPA

modify the application form to require

generators to indicate whether they

generate less than 100 kg/mo, 100-1000

kg/mo, or more than 1000 kg/mo. EPA

recently modified the form to require

generators to indicate whether they

generate more than 1000 kg/mo or less

than 1000 kg/mo of hazardous wastes.

Thes Agency does not believe that

there is any justification for exempting

"infrequent generators" from the

Identification Number requirement, as

suggested by one commenter. EPA

believes that all 100-1000 kg/mo

generators should be known to the

Agency, however infrequently they fit

into the category, to allot follow-up if

any problems arise. Also, use of an EPA

Identification Number when wastes are

shipped off-site helps enforcement

authorities to keep track of waste

shipments.

The Agency believes that the EPA

Identification Number requirement, as

proposed, is the best system for ensuring

that the Agency has adequate

information about these new members

of the regulated community.

Consequently, EPA is not modifying

§ 262.12 for generators of 100-1000 kg/,

mo.

2. The Hazardous Waste Manifest

System-Part 262, Subpart B

This Unit discusses the proposed

modifications to the hazardous waste

manifest system for 100-1000 kg/mo

generators for wastes shipped off-site.

The issues raised in the comments on

the Proposal include the "single" versus "multiple" copy or "round-trip"

manifest, the proposed exemption from

manifesting for wastes shipped under

certain reclamation agreements, and the

applicability of the manifest waste

minimization certification provisions of

the HSWA.

a. Number of Copies and Use of the

Manifest: The Proposal for generators of

100-1000 kg/mo of hazardous waste

contained several modifications to the

Uniform Hazardous Waste Manifest

system. The proposed rules would have

exempted 100-1000 kg/mo generators

from the following requirements: 1) to

compete a multiple copy manifest form

(§ 262.22), 2) to retain a copy for the

generators' records (§ 262.23(a)(3)), and

3) provide multiple copies of the

manifest to the waste transporter

(§ 262.23(b)). The effect of these

proposed modifications to the manifest

system would have been to exempt

these generators from the "roundtrip" or

"tracking" function of the manifest

system (i.e., establishment of a paper

trail for enforcement purposes] while

continuing to require that a single copy

of a fully completed manifest

accompany the waste shipment as a

means to provide notice to subsequent

handlers that the waste is hazardous.

No modifications were proposed to the

requirements to fully complete the

manifest form, and to use established

systems for obtaining forms from the

appropriate State, except for a proposed

elimination of the manifest document

number from the required information.

These modifications to the manifest

system were intended to minimize

impacts on small business while still

meeting the underlying goal 'f HSWA to

protect human health and the.

environment. By reducing some of the

paperwork requirements associated

with the full manifest system, EPA

believed that both of those goals could

be served. In particular, EPA believed

that the requirement for these

generators to obtain an EPA

identification number, complete a single

copy of the manifest for all off-site

shipments and for facilities to keep

these manifests in its files created a

significant legal obligation that the

waste would be managed at approved

hazardous waste management facilities,

as required under the HSWA. The

Agency believed that this legal

obligation would not be significantly

enhanced by requiring the use,

distribution, and retention of multiple

copies of the manifest form.

In requesting public comment on the

issue of the "single copy" manifest

system, EPA pointed out that it was not

fully convinced that the relief being

offered was significant enough to offset

the potential confusion which the single

copy system might cause, or to offset the

loss of the "tracking" function of the

manifest as an enforcement mechanism.

EPA received extensive negative

comment on the proposed amendments

which-have convinced the Agency that

the multiple copy manifest system

should be adopted in the final rules.

Many commenters asserted that

exempting 100-1000 kg/mo generators

from the "round-trip" hazardous waste

manifest system (i.e. return of a signed

copy by the designated facility to the

generator as proof that the shipment

arrived] would not significantly reduce

administrative burden. Most

commenters who represented both small

and large businesses, State agencies and

firms in the waste management industry

believed that the information requested

on the manifest was not particularly

difficult to provide, and they did not

object to the proposed requirements to

provide essentially full manifest

information. Many commenters argued

that requiring full manifest information

was-appropriate for all generators, and

that the preparation of multiple copies

of the manifest presented no incremental burden over a single copy

system since manifests are generally

obtained in carbon sets, requiring no

real additional effort. These commenters

also pointed out that retention of a copy

for the generator's files poses a minimal

burden due to the limited number of

shipments most 100-1000 kg/mo will.

need to make under the extended

accumulation periods being promulgated

today for these generators (See Unit

III.C.4.). Given the limited number of

shipments most generators will need to

make to treatment or disposal facilities

in a year (i.e. 2-4), commenters asserted

that filing a manifest copy and replacing

it with a copy signed and returned by

the designated facility was simply not

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burdensome. Furthermore, virtually all

commenters, many of whom represented

small business, also indicated that

retention of a copy of the manifest

containing signatures of the transporter

and facility would be done in any case,

and was essential to demonstrate that a

business had met its legal

responsibilities in cases where the

waste is mishandled by subsequent

handlers.

Another major concern of many

commenters with respect to the single

copy manifest system was the confusion

that would result from having two

different manifest systems in plalce for

100-1000 kg/mo generators and for

generators of over 1000 kg. While some

commenters representing small

businesses believed that the single copy

manifest system was workable and

provided a real reduction in

administrative burden, virtually all other

members of the waste management and

regulated community argued for a

uniform manifest system. Many

commenters representing larger

corporations and firms with multiple

facilities argued that a single uniform

system would be the least confusing and

least burdensome system. In addition,

'many commenters believed that

different State and Federal requirements

would make it extremely burdensome

for many small businesses to determine

which manifest system applied to them.

States, waste haulers, and facilities

would also have the added burden of

trying to verify the generator status of

those utilizing a single copy form and

because of the difficulty in

administering a dual system, they would

simply require that all generators

comply with the full system.

One commenter also argued that the

Agency's proposed single copy manifest

was inconsistent with Congressional

intent since the hammer provisions of

Section 3001(d)(8), which included a

requirement for return of a signed

manifest by the facility to the generator,

were intended by Congress to serve as

the minimum regulatory standards.

However, the Agency can find no

evidence in either the statute or the

legislative history that would lead the

Agency to this conclusion. The plain

language of the hammer provision states

"... nothing in this section shall be

construed to be determinative of those

standards appropriate for small quantity

generators", and Section 3001(d)(6)

explicitly sets out the "minimum"

standards that must be included in the

regulations. In addition, the legislative

history of Section 3001(d) indicates that

the provisions of subsection (d)(6) were

to be regarded as statutory minimums

rather than the hammer provisions of

subsection (d)(8). See S. Rep. No. 284,

98th Cong., 1st Sess. 11-12 (1983); H.R.

Rep. No. 1133, 98th Cong. 2nd Sess. 101,

103-104 (1984). Thus, the statute and

legislative history provide extensive

evidence that Congress gave EPA broad

authority to establish whatever

standards it deemed appropriate for

these generators, and to vary the

hazardous waste standards to minimize

burden, consistent with protection of

human health and the environment. . A number of commenters raised

concerns with respect to the

ineffectiveness of the single copy

manifest system in ensuring that waste

shipments are properly tracked from

generator to transporter to facility.

Under the proposed manifest system, a

generator would be required to complete

a single copy of the manifest and to give

it to the transporter who in turn would

be required to sign it and turn it over to

the-designated facility upon delivery of

the waste shipment. The Agency felt

that this chain created a substantial

legal obligation that the waste would be

managed at a Subtitle C facility.

However, a number of commenters

asserted that such a system would serve

only to encotrage unscrupulous

transporters to either alter manifest

information or simply dump the waste

illegally, since the generator or others do

not have any record of his accepting the

waste shipment. A number of States

were concerned that the absence of

multiple copies of the manifest in the

records of the generator, transporter,

and facility would completely eliminate

the ability of EPA or the States to

enforce the requirement that the waste

be managed at Subtitle C facilities.

Further, these commenters felt that,

whether or not the Agency takes an

aggressive enforcement posture with

respect to 100-1000 kg/mo generators,

the mere existence of the multiple

signed copies of a manifest serve as an

essential incentive to properly manage

the waste.

The Agency finds persuasive the

arguments presented by commenters

that requiring only the single copy

manifest does not offer significant

regulatory relief. The Agency has also

concluded, based on public comment,

that the single copy system may be

insufficient to meet the statutory

mandate to promulgate rules for 100-

1000 kg/mo generators which are

sufficient to protect human health and

the environment.

The difference in burden between a

single copy of the manifest and a

multiple copy of the manifest, both

containing essentially full information,

appears to be negligible, so there is no

real reduction in burden from the single

copy system. Retention of a manifest

copy by the generator is also minimally

burdensome and is in the generator's

best interest. The absence of a roundtrip or multiple copy manifest could

encourage, rather than protect against,

mismanagement of these wastes. Most

importantly, requiring the generator to

retain a copy for his records and provide

multiple copies of the manifest to the

transporter provides an essential

incentive for all parties to fulfill their

responsibilities under RCRA. Thus, the

Agency has decided not to adopt the

single-copy manifest system, as

proposed.

Consequently, generators of 100-1000

kg/mo will be subject to all of the

requirements of Subl5art B of Part 262

with respect to the Uniform Hazardous

Waste Manifest except for certain waste

reclamation shipments as provided in

Section 262.20, discussed below. In

addition, these generators will be

subject to the recordkeeping provisions

of Subpart D of Part 262 with respect to

manifest copies but will not be subject

to the associated exception and biennial

reporting requirements, as discussed in

Unit III.C.3, below.

b. Manifest Exemption for Certain

Reclamation Shipments: In the Proposal.

EPA proposed to exempt generators of

100-1000 kg/mo from all of the manifest

requirements of Part 262, Subpart B,

provided the waste was reclaimed under

certain specific conditions, including:

1. The generator would be required to

have a written agreement with a

recycling facility to collect and reclaim a

specified waste and to deliver

regenerated material back to the

generator at a specified frequency;

2. The vehicle used to transport the

waste to the recycling facility and to

deliver regenerated material back to the

generator must be owned and operated

by the reclaimer of the waste;

3. Either the generator or the reclaimer

must retain title to the material at all

times; and

4. The generator and transporter/

reclaimer must comply with specific

recordkeeping requirements.

Specific regulatory requirements

which would have to be met in lieu of

the manifest requirements were

proposed as follows:

1. A copy of the reclamation

agreement is kept in the files of both the

reclaimer and the generator for a period

of at least three years;

2. The reclaimer/transporter records

(for example, on a log or shipping

document) the following information

(which would be required of

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transporters in a proposed amendment

to § 263.20):

* The name, address and EPA

identification number of the generator;

" The quantity of waste accepted;

" All DOT required shipping

information;

* The date the waste is accepted by

the transporter;

3. The above record accompanies the

waste as it is shipped from generator to

recycling facility; and

4. The reclaimer/transporter keeps

these records for at least three years.

In proposing this exemption, EPA

indicated that such agreements satisfied

the Agency's concerns that subsequent

handlers of the waste would have

sufficient notification and knowledge of

the hazardous nature of the wastes

being handled and that the wastes

would be tracked properly from the

generator to the reclaimer and would

not be mismanaged. In addition, the

Agency believed that such an exemption

would encourage beneficial recycling

activities and would avoid discouraging

current operations of this nature by not

imposing paperwork obligations that

have no corresponding environmental

benefit. The Agency requested comment

on the proposed manifest exemption and

sought comment on other situations that

might warrant reduced manifest

requirements.

While some commenters opposed the'

proposed manifest exemption as

providing an opportunity for "sham

recycling", most commenters suggested

that the exemption be expanded to

cover all recycling situations or to cover

a broader scope of activity than that

proposed. Some commenters felt that the

narrow nature of the exemption would

afford some segments of the recycling

industry an unfair competitive

advantage. One commenter suggested

that the exemption apply to reclamation

agreements with firms that collect

wastes for recycling but do not reclaim

the wastes at their own facility, but

rather, ship them via a licensed

hazardous waste hauler to a separately

owned and operated reclamation

facility. This commenter argued that the

same degree of protection would be

afforded under these circumstances as

under the proposed system since the

waste would still be transported and

reclaimed at licensed or permitted

facilities. Other commenters argued that

the exemption should also apply to

legitimate recycling situations where

ownership of the material may in fact

change hands, such as cases where

reclaimed material is not returned to the

original generator but is instead sold to

a third party. One commenter argued

that the mere existence of a contract

provides sufficient notice to subsequent

handlers of the nature of the waste and

that adequate economic incentives exist

in any recycling situation to ensure

proper management.

The proposed restrictions on

applicability of the manifest exemption

were intended to serve the same

functions that the manifest system does.

The most important of these, the

"tracking" function of the manifest, must

be replaced with adequate contractual

relationships and commercial incentives

if the exemption is to meet the test of

protecting human health and the

environment while reducing

administrative burden.

The Agency has considered various

ways in which to expand the

applicability of the exemption, including

those suggested by commenters, and has

concluded that unless the following

proposed restrictions are retained, the

exemption would allow unscrupulous

persons to easily avoid the hazardous

waste management system:

First, the Agency believes that the

requirement that the generator and

reclaimer have a written agreement for

collection and reclamation of a specified

waste and for redelivery of regenerated

material at a specified frequency is

essential. Such an arrangement (usually

called a "tolling" arrangement) provides

tracking and accounting of waste in

place of the manifest system in waste

disposal situations. A simple

reclamation contract without return of

regenerated material to the generator

would provide no tracking of the waste,

since the generator would have no

incentive to check on subsequent waste

handling after he turns it over to the

transporter or reclaimer. In addition,

allowing the exemption in any

contractual situation would make no distinction between recycling activities

and off-site waste disposal activities,

where normally there are also

contractual obligations. Requiring return

of regenerated material as part of the

contractual relationship places the

proper incentive on the reclaimer to

actually reclaim material for delivery to

the generator (otherwise he would be in

breach of the contract) and on the

generator to scrutinize the practices of

the reclaimer. Unlike off-site waste

disposal, the generator would have

some vested economic interest in

ensuring proper management of the

waste.

Second, the Agency believes that the

vehicle used to transport the waste to

the recycling facility and to deliver

regenerated material back to the

generator must be owned and operated

by the reclaimer. This requirement

precludes third parties not bound by the

reclamation agreement (i.e., independent

transporters) from entering the closed

loop created by the tolling arrangement.

This is necessary to ensure that the

waste is not mismanaged. Even if a

generator were to ship his waste via a

licensed hazardous waste hauler, he

would have no assurance that the waste

would actually be delivered to the

reclamation facility with which he has

contracted. In such a third-party

transporter situation, where the

transporter has no vested interest in

proper handling and management of the

waste, the Agency would deem it

necessary to impose. additional

significant recordkeeping requirements

on all handlers of the waste, and

possibly impose additional requirements

on the generator. This would defeat the

purpose of the manifest exemption, and

may even impose greater burden than

the manifest itself.

Third, the proposed recordkeeping

requirements are an essential ingredient

to providing the "paper trail" no longer

provided by the manifest system.

While the Agency originally

considered the retention of ownership

requirement to be another essential

element due the vested interest it

created (i.e., continuing legal

responsibility for the material), a second

look at this requirement, in light of

comments received, has convinced EPA

that it is unnecessary. The requirements

of tolling and that the reclaimer and

transporter be the same entity appear to

adequately address the same concerns

underlying the ownership requirement.

While the vested interest in proper

management of the waste may be

theoretically increased if ownership is

retained by the reclaimer or generator, it

does not appear to add significantly to

the economic interest created by the

tolling arrangement. In addition, the

concern that third parties would break

the chain between generator and

reclaimer is addressed by the

requirement that the reclaimer and

transporter be one entity. Moreover, the

retention of ownership requirement may

result in needless restriction on the type

of commercial arrangements allowed

between generators and reclaimers (e.g.,

where a reclaimer buys the waste from

the generator and sells regenerated

material back to the generator or to

other parties). Therefore, the Agency is

deleting the ownership requirement from

the final rule.

A number of commenters suggested

that the Agency be more explicit in the

regulation with respect to the periods of

retention of the contractual agreements

and the transportation logs since the

proposed rule did not specify when the

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3-year recordkeeping period was to

begin. Consequently, the Agency is

modifying the regulatory language of

this amendment to specify that a copy of

the reclamation agreement must be kept

in the generator and reclaimer/

transporter's files for 3 years after the

expiration of the agreement. A copy of

the collection log or shipping paper for

each shipment must be kept in the

transporter's files for a period of 3 years

after the date of the shipment.

Several commenters also requested

clarification on the applicability of the

proposed exemption to waste mixtures

where most, but not all, of the

constituents were reclaimed. In the

specific example cited, the Agency was

asked to clarify whether spent cartridge

filters used in dry cleaning operations

would qualify for the exemption, even

though only a portion of the waste

constituents are actually reclaimed. The

Agency believes such waste mixtures

should also qualify for the manifest

exemption, provided that the other

conditions of the exemption are met.

There is no basis for distinguishing

between, for example, bulk spent

solvents that have impurities removed

by a reclaimer, which impurities must be

subsequently managed as hazardous

waste, and waste constituents in a

mixture that may not be reclaimed and

must be disposed of as a hazardous

waste by the reclaimer. In both cases,

the manifest exemption for shipments to

the reclaimer would not affect the

responsibility of the reclaimer to

properly manage the residues from the

reclamation process.

Another commenter requested

clarification on whether the requirement

that reclaimed material be returned to

the generator limited the exemption to

those situations where the generator

received back the same waste sent for

reclamation. The requirement that the

generator receive regenerated material

back from the reclaimer was intended to

ensure that the generator maintain a

vested interest in ensuring that the

reclamation facility was in fact. engaged

in bona fide recycling. However, the

Agency recognizes that mast

reclamation is conducted through

commingling of relatively small

quantities of recyclable materials from a

number of generators. The manifbst

exemption only requires that the

generator receive regenerated material

back from the reclaimer, not that it be

the identical material as was shipped to

the reclaimer. The only requirement for

receiving regenerated material back is

that it be of the same type orproduct

specification as the material originally

shipped for reclamation. While the

Agency recognizes that this requirement

will limit the exemption to situations

where the generator purchases

reclaimed solvent from one source, we

do not agree with those commenters

who believe this provides an unfair

competitive advantage to firms with

reclamation facilities. While the

manifest exemption may reduce the

paperwork burden for some firms who

have waste materials collected on a

frequent basis, the Agency does not

believe that it provides such a reduction

in burden that companies qualifying for

the exemption would be able to reduce

costs significantly.

Other commenters asserted that the

proposed exemption would be

appropriate for generators of more than

1000 kg/mo who recycle their wastes

under the same circumstances. While

the Agency recognizes that some of the

regulatory amendments being

promulgated today for generators of

100-1000 kg/mo .could be considered for

larger generators, to do so would require

extensive review of the existing

hazardous waste management system

and case-by-case determinations as to

the appropriateness of specific

requirements. Furthermore, the elements

that the Agency must consider in

adopting rules for small quantity

generators, including the economic

impacts of full regulation on small

businesses, are not necessarily relevant

to the rules applicable to larger quantity

generators. Therefore, the Agency is

promulgating the manifest exemption

today only for 100-1000 kg/mo

generators.

c. Waste Minimization: Under section'

3002(b) of HSWA, all generators must

certify on the manifest required under

subsection (a)(5) that they have in place

a program to reduce the volume or

quantity and toxicity of the waste they

generate to a degree determined by the

generator to be economically

practicable. Generators must also certify

that their current method of

management is the most practicable

method available to minimize present

and future threat to human health and

the environment. .On July 15, 1985, EPA published a rule

codifying a number of interim, HSWA

requirements (50 FR 28702). A revised

Uniform Hazardous Waste Manifest

Form (EPA Form 8700-22) was included

in the Appendix to Part 262, and

contained a revised certification

statement incorporating the waste

minimization provision. In the

Codification Rule, EPA explained that

the waste minimization provision did

not apply to small quantity generators

generating less than the quantities of

acutely hazardous waste specified in

§ 261.5 or to generators of less than 1000

kg of other hazardous waste, unless the

generator accumulated quantities which

exceeded 1000 kg, and thus became

subject to Part 262. The waste

minimization requirements were not

applicable to these generators because

section 3002(b) refers to "the manifest

required by [section 3002] subsection

(a)(5)" and the interim manifest

provisions are imposed by section

3001(d), not 3002(a)(5). However,

because section 3001(d) of RCRA

requires EPA to establish standards for

100-1000 kg/mo generators under

sections 3002, 3003, and 3004, the waste

minimization certification requirements

would apply to 100-1000 kg/mo

generators upon promulgation of such

standards. Since EPA did not propose to

exempt 100-1000 kg/mo generators from

the waste minimization certification

requirements of section 3002(b) when it

proposed rules for 100-1000 kg/mo

generators on August 1, 1985, these

generators would be required to certify

compliance with the waste minimization

provision when the standards under

today's rule become effective.

EPA believes that requiring 100-1000

kg/mo generators to comply with the

waste minimization certification

provision imposes little or no additional

administrative or technical burden and

could, in fact, have real environmental

benefit. However, since the Agency did

not provide the public with an

opportunity to comment on the

appropriateness of this provision for

100-1000 kg/mo generators, EPA is

publishing a separate notice elsewhere

in today's Federal Register which

explicitly requests comment on the

potential burden which this requirement

could impose on generators of 100-1000

kg/mo. The specific reasons for

proposing to apply the waste

minimization certification provision to

these generators are described in detail

in that notice. As noted in the other

Federal Register notice, EPA will accept

public-comment on this provision for 30

days. If, after consideration of the

comments, EPA determines that no

exemption.from the waste minimization

certification requirement is warranted at

this time, 100-1000 kg/mo generators

will need, to comply with the

requirement by operation of law as. of

the date that the other Part 262

requirements take effect [Le., six months

from today).

3. Recordkeeping and Reporting-Part

26Z Subpart D'

In the proposed rules for generators of

100-1000'kg/mo, EPA attempted to

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.significantly reduce the recordkeeping

and reporting burden on these

generators, consistent with the statutory

goals of protecting human health and the

environment while reducing impacts on

small business to the extent feasible.

Specific proposed modifications to the

recordkeeping and reporting

requirements of Subpart D of Part 262

included:

* A proposed exemption from

the recordkeeping requirements of

§ 262.40(a) for manifest retention and

§ 262.40(b) dealing with retention of

Biennial and Exception Reports;

9 A proposed exemption from the

reporting requirements of § 262.41

(Biennial Reports) and § 262.42.

(Exception Reports).

This section of the preamble

addresses the comments received on

these proposed modifications to

recordkeeping and reporting

requirements and the Agency's final

decision in each of these areas.

a. Recordkeeping-§ 262.40: As noted

in Unit III.C.2. of today's preamble, EPA

received extensive comment on the

proposed single copy manifest system

which proposed to eliminate the need

for retention of manifest copies as well

as requirements for the use of a multiple

copy manifest when shipping waste offsite. A large number of commenters

were generally supportive of efforts to

reduce recordkeeping requirements to

the maximum extent feasible, and many

felt that no recordkeeping requirements

whatsoever should be imposed on 100-

1000 kg/mo generators. However, many

of these same commenters, when

discussing the proposed single copy

manifest, pointed out that most

generators would opt to retain a copy of

the manifest for their own records, in

order to have a record of their waste

management shipments, regardless of

whether it was required by EPA. While

some of these commenters did not want

the retention of manifest copies to be

required, they nevertheless felt such

recordkeeping to be prudent. Other

commenters believed that retention of

manifest copies should-be required, and

that such a requirement does not impose

an unreasonable burden since, as noted

above, virtually all generators would

retain a copy for their records in any

case. These commenters also asserted

that the existence of a copy of the

manifest in the generator's records,

containing the signature of the

transporter and ultimately the signature

of the designated facility when the

manifest copy was returned, was

essential.

The Agency agrees with these

commenters that retention of manifest

copies should be required. Existence of

such records may be the only defense a

generator would have in enforcement

actions or other litigation if the single

manifest were to be changed by the

transporter or if the waste is

mismanaged. The existence of these

records would allow a generator to

demonstrate to enforcement personnel,

should a problem in transporting or

subsequent handling arise, that the

generator had done his best to ensure

proper management by fulfilling his

generator responsibilities. While such

proof would not eliminate any liabilities

the firm may otherwise have under

RCRA and the Comprehensive

Environmental Response,

Compensation, and Liability Act

(CERCLA or "Superfund"), it could

reduce the danger of the generator being

considered the primary responsible

party in a Superfund action. Also, as one

commenter pointed out, given the large

number of States, transporters and

treatment, storage, and disposal

facilities that would insist upon use of

the full manifest system, it would not be

appropriate for EPA to, in effect,

encourage generators to deliver their

only copy of the manifest to a

transporter.

EPA agrees with those commenters

that believe that retention of a copy of a

manifest, signed by the designated

facility and the transporter, does not

pose an unreasonable burden for 100-

1000 kg/mo generators, who will most

likely be shipping only 2-4 shipments

per year. This is particularly true in light

of the generally universal agreement on

the need for generators to retain a copy

for their own protection. EPA also

believes that retention of manifest

copies provides the necessary incentive

for all wastes handlers to execute their

responsibilities in the manner required

by state and Federal waste management

requirements. Therefore, the Agency is

not exempting 100-1000 kg/mo

generators from the requirement to

retain a copy of each manifest in their

files for a period of three years from the

date of shipment or until a signed copy

of the manifest is returned by the

designated facility and is substituted for

the original manifest for a period of

three years.

b. Exception Reports-§ 262.42: As

discussed in the proposal, EPA proposed

to exempt 100-1000 kg/mo generators

from the requirement to file an

exception report with EPA if the

generator did not receive a signed copy

of the manifest back from the designated

facility within forty-five days of

acceptance of the waste shipment by a

hazardous waste transporter (§ 262.42).

The proposed exemption from this

requirement was based simply on the

lack of manifest copies under the

proposed single copy manifest system.

Under the proposed rule, a copy of the

manifest was not required to be

returned to the generator by the facility,

so that there would have been no basis

for a generator to make a determination

as to whether or not his shipment

actually arrived at the designated

facility, and thus no basis for an

exception report.

In deciding to return to a full manifest

system for 100-1000 kg/mo generators,

the Agency deemed it appropriate to

evaluate whether also requiring

exception reporting would impose an

unnecessary administrative burden on

these generators in light of the

environmental benefit that would be

gained. First, the Agency considered the

responsibilities that would be imposed

on the generators, which would include

establishment of an internal tracking

system, through filing or by computer, to

allow the generator to determine

whether a return copy of the manifest is

overdue. In addition, the generator must

contact the transporter and/or permitted

facility to determine the status or

location of the waste and manifest, and

if unsuccessful, must file a report with a

copy of the manifest and a cover letter

describing his efforts to locate the waste

and the results of his efforts. Several

commenters objected to imposition of

these requirements and argued that this

is the very type of paperwork

requirement that Congress intended EPA

to scrutinize before applying to small

businesses.

Second, the Agency considered the

extent to which such reporting is

necessary to protect health and the

environment. Many commenters

contended that the exception reports

were essential to alert EPA and the

States to lost shipments, and the Agency

agrees that the exception report

requirement is an important link in the

full manifest scheme. 4 However, the

Agency has received very few exception

reports since the requirement was

adopted, leading it to believe that the

tracking function of the multiple-copy

manifest system is also working as a

self-policing mechanism, ensuring that

4 One commenter cited legislative history as

support for its argument that the modified exception

reporting requirement of section 3001(d)(8) must be

included in the regulations because Congress

deemed it to be a minimum requirement. The

legislative history of this provision indicates.

however, that this was considered to be a minimum

requirement only in the event that EPA did not

promulgate final regulations by March 31, 1986, and

that EPA is authorized to vary the manifesting and

reporting requirements as long as the notice

requirement is met. See S. Rep. No. 284, 98th Cong..

let Seas. 11-12 11983); H.R. Rep. No. 1133, 98th Cong.

2nd Seas. 103 (1984).

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wastes reach their proper destination. In

addition, the smaller relative risks

associated with the smaller quantities of

waste generated by 100-1000 kg/mo

generators do not necessitate the same

degree of double-checking needed for

large quantity generator shipments.

In balancing the utility of the

exception reporting requirements with

the need to minimize the administrative

and paperwork burden on small

businesses, the Agency has concluded

that its decision to require the multiple

copy manifest system for 100-1000 kg/

mo generators will provide sufficient

assurance that waste shipments reach

their proper destination, and that the

incremental environmental benefits that

may be gained by imposing the

exception reporting requirement on

these generators are outweighed by the

associated administrative burdens. The

capabilities of small businesses to

develop and maintain internal tracking

, and follow-up systems are limited, and

could prove to be very burdensome,

especially where such follow-up

reporting is seldom necessary.

Consequently, while the Agency is

today requiring generators of 100-1000

kg/mo to use a multi-part manifest form

and requiring designated facilities to

return a signed copy to the generator,

the Agency has decided not to require

generators of 100-1000 kg/mo to comply

with the exception reporting provisions

of Part 262. However, this exemption

should not be construed as relieving the

generators of the responsibility of

assuring that their wastes are managed

at Subtitle C facilities. This obligation,

along with CERCLA liability should the

waste ultimately be mismanaged,

remains. Therefore, while EPA is today

exempting generators of 100-1000 kg/mo

from the requirement to file an

exception report under § 262.42, it is

specifically encouraging generators to

perform the necessary follow-up to

ensure that their waste shipments reach

.the designated facility. Should a

shipment turn out to be truly lost, it will

be in the generator's interest to send a

copy of the manifest along with a brief

explanatory note to EPA or the

authorized State Agency in order to

reduce the likelihood that the generator

would be held solely responsible in an

enforcement or Superfund action.

c. Biennial Reports-§ 262.41: Section

262.41 requires a generator who ships

waste off-site to submit a biennial (i.e.,

every other year) report to the Regional

Administrator by March 1 of each even

numbered year setting out the quantities

of wastes generated during the previous

odd numbered calendar year and the

disposition of the wastes generated.

* EPA proposed to exempt generators of

100-1000 kg/mo from the requirement to

complete, file, and retain copies of a

biennial report. The Agency's rationale

for this exemption was based on four

points. First, the extent of error in State

summary reports used to compile

nationwide waste generated by all small

quantity generators. As a result, the

value of the data from reports that

would be filed by 100-1000 kg/mo

generators would not signficantly add to

the value of the reports and the burden

imposed would far outweigh the benefits

to be gained. Second, the Agency

explained that the large number of

reports it would receive would far

outweigh the agency's administrative

ability to make use of the reports. Third,

under the proposed single copy manifest

system, generators would not have had

the manifest copies that serve as the

basis for preparation of biennial reports.

Finally, the Agency explained that

information on wastes generated by

100-1000 kg/mo generators would still

be available from reports required to be

filed by treatment, storage, and disposal

facilities.

Several States submitted comments

which generally favored retention of the

biennial report requirement for 100-1000

kg/mo generators. Although generators

would have available to them the

manifest information needed to prepare

biennial reports under today's final rule

imposing the multiple copy manifest, the

remaining reasons for proposing this

exemption remain valid. In addition,

EPA received extensive comment

supporting the proposed exemption from

biennial reporting requirements as an

appropriate means of reducing

administrative burden without

sacrifihing protection of human health

and the environment. The Agency

agrees that this exemption is

appropriate.

One State specifically suggested that

EPA require biennial reporting from all

generators who generate more than 6000

kg or 12,000 kg in a calendar year and

specifically requested clarification of the

application of biennial report

requirements to "episodic generators"

(i.e., generators that produce quantities

of hazardous waste that place them in

different generator categories from

month to month). The Agency does not

believe any benefit would be gained by

establishing a new generator category

based upon a yearly generation rate.

Doing so would only add further

confusion to an already complex

regulatory scheme, and would be

inconsistent with the month-to-month

approach already established by statute

and regulation. Also, episodic.

generators must comply with the

biennial report requirements for those

months in which they are "large

quantity generators"; that is, they must

submit reports on their hazardous waste

activities for those months in which

their generator activities have changed

and as long as the fully regulated waste

remains on-site.

Thus, the Agency is today finalizing

the proposed exemption from the,

biennial report requirements of § 262.41

for generators of 100-1000 kg/mo,

including an exemption from the

provisions of this section requiring a

description of efforts taken during the

reporting year to minimize waste

generation.

4. On-site Accumulation-§ 262.34

As discussed in Unit I.B.1. of today's

preamble, generators of 100-1000 kg/mo

are no longer conditionally excluded in

Section 261.5 from the bulk of the

haza'rdous waste regulatory program.

Instead, these generators, like other

regulated hazardous waste generators,

are subject to the requirements of Parts

262-266, 270, and 124, to the extent those

requirements apply. for generators of

100-1000 kg/mo, however, these

requirements have been modified in

certain instances to reflect their small

business nature as well as specific

statutory directives.

Section 262.34 contains the

requirements for generators that

accumulate hazardous waste on-site.

Under § 262.34(a), a generator may

accumulate hazardous waste on-site in

tanks or containers in any quantity for

up to 90 days without the need to have

interim status or obtain a storage permit

under RCRA (or comply with Parts 264

or 265) provided the generator complies

withthe limited requirements of

§ 262.34. These requirements specify

that: (i) the date upon which the period

of accumulation begins is clearly

marked on the tank or container; (ii) the

tank or container is labeled with the

words "Hazardous Waste"; (iii) the

generator complies with Subparts C and

D of 40 CFR Part 265 (Preparedness and

Prevention and Contingency Plan and

Emergency Procedures, respectively);

and iv) the generator complies with

Subpart I of 40 CFR Part 265 if the waste

is placed in containers or with Subpart J

of 40 CFR Part 265 if the waste is placed

in tanks, and he complies with the

personnel training requirements of

§ 265.16.

The prbposed rules for generators of

100-1000 kg/mo would have added a

number of modifications to the § 262.34

provisions, for 100-1000 kg/mo

generators. This section of the preamble

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discusses those proposed amendments

and the issues raised by commenters to

the proposed rules.

a. Time and Quantity Limitations:

Section 3001(d)(6) directs EPA, in

developing regulations for 100-1000 kg/

mo generators, to allow storage of

hazardous waste on-site without the

need for interim status or a RCRA

permit for up to 180 days. In addition,

EPA is directed to allow these

generators to store up to 6000 kg of

hazardous waste for a period of 270

days without the need for interim status

or a permit if the generator must ship or

haul his waste greater than 200 miles.

While no specific quantity cutoff was

established for 180 day accumulation in

section 3001(d) a de facto limitation of

6000 kg exists. (This is due to the fact

that a 100-1000 kg/mo generator could

produce no more than 6000 kg in a 180

day period without exceeding 1000 kg/

mo at least once during that period, and

thus become fully regulated under Part

262 instead of under the modified

standards being proposed today for 100-

1000 kg/mo generators.) EPA is today

amending § 262.34 to allow for such onside accumulation in tanks and

containers by 100-1000 kg/mo

generators for up to 180 days (or 270

days for long-distance transport)

without the need to obtain interim status

or a RCRA permit, in accordance with

Section 3001(d)(6) of the HSWA,

provided the requirements of § 262.34

are met.

A significant number of commenters

suggested variations on the proposed

time and quantity limitations for on-site

accumulation. A number of States

supported the application. of the-existing

90 day accumulation period to these

generators in order to maintain

consistency and reduce confusion. Still

other commenters argued that the time

limit for accumulation for 100-1000 kg/

mo generators should be extended to a

full year in order to allow economical

shipments, provided the 6000 kg cutoff

was not exceeded. Some commenters

even favored unlimited accumulation

time and quantity for these generators.

Because the time and quantity

limitations are established in RCRA

section 3001(d)(6), the Agency believes

that it carries a heavy burden in varying

these limitations. Except for emergency

circumstances, as discussed below, the

Agency does not believe that this

burden has been met.

While the 6000 kg cap arguably

applies only to the 270-day storage

period, the Agency believes that the

better interpretation is that the 6000 kg

cap applies to both storage periods. As

noted above, a maximum of 6000 kg of

hazardous waste could be accumulated

during a 180-day period if the generator

never generated more than 1000 kg in

any given calender month.

Consequently, any quantity in excess of

6000 kg would mean that the generator

.was subject to full regulation at least

one month during the 6-month period.

Therefore, it is logical to apply the

accumulation "cap" of 6000 kg to both

storage for 180 as well as 270 days. In

addition, as explained in the August 1

proposal, the total quantity of 6000 kg

remains the same whether or not the

waste is accumulated on-site for 180 or

270 days and the Agency could see no

substantive difference in potential risk.

Finally, EPA believed that the high cost

of transportation would dictate that the

waste be managed at the closest facility,

regardless of the presence or absence of

regulatory criteria.

One State commenter felt that the

lack of specific criteria for allowing 270-

day accumulation could have the effect

of encouraging continued reliance on

land disposal as there will be decreasing

numbers of viable land disposal

facilities in the future, and the remaining

facilities will increasingly be located

more than 200 miles away from the

generator. This commenter suggested

that EPA allow accumulation for only

180 days for wastes that are destined for

disposal but allow accumulation for 270

days for wastes which will be treated or

recycled. EPA does not believe that it

has authority to make such a distinction

since Congress has already established

the condition that must be met for

accumulation for 270 days: where the

waste must be shipped over 200 miles. If

the 'closest facility is a disposal facility

located greater than 200 miles from the

generator, to allow this generator only

180 days would directly conflict with the

plain language of the statute.

Another commenter expressed

concern over the enforcement of 180- or

270-day accumulation periods in the

absence of any specific criteria. This

commenter felt that an inspector would

have no way of ascertaining whether

wastes which have been stored longer

than 180 days but less than 270 days are

destined for management at a disposal

facility or a treatment or recycling

facility that is located further than 200

miles away. This commenter was

particularly concerned that the lack of

multiple copies of the manifest would

eliminate the ability of the inspector to

at least make a judgment based on the

generator's previous waste shipments.

The Agency has decided not to

establish specific criteria for

determining if a generator may

accumulate hazardous wastes on-site

for 180 or 270 days. EPA believes that

such criteria would not serve any useful

purpose. Under today's final rule,

however, generators would retain copies

of manifests which could be used to

ascertain the location of the facility

which the generator has utilized for

previous shipments. Therefore, manifest

copies (or reclamation agreements) will

be available as a means to check the

actual location of the destination

facility. In addition, the Agency was

concerned that establishing criteria for

demonstrating that the closest facility

was greater than 200 miles from the

generation site would be unnecessarily

confusing and could have the perverse

effect of causing waste to go to less

desirable management practices (e.g.,

where a disposal facility is located

within 200 miles while a recycling

facility is located over 200 miles from

the generator, the generator could be

forced to utilize the less desirable

disposal facility). The absence of

specific criteria will not pose an

unreasonable obstacle to enforcement of

the accumulation provisions. Thus, EPA

is finalizing § 262.34(e) as proposed.

It should be noted that generators that

have multiple waste streams which are

managed at different facilities may

actually be subject to different

accumulation time limitations for the

different waste streams. A generator

may accumulate some wastes for 180

days if they will be managed at.a facility

under 200 miles away and other wastes

for 270 days provided the generator

never accumulates a total quantity of

hazardous waste on site that exceeds

6000 kg and provided the generator

complies with all applicable

accumulation provisions.

Today's rules also apply the existing

provisions of § 262.34(b) requiring

compliance with Parts 264, 265, and 270

to 100-1000 kg/mo generators that

exceed the time limitations in proposed

§ 262.34(d) and (e). Under the existing

rules, and under the rules promulgated

today, generators that exceed a time or

quantity limitation must comply with the

interim status requirements and obtain a

storage permit. These requirements, as

they would apply to 100-1000 kg/mo

generators, are contained in new

§ 262.34(f).

An additional component of the

proposed § 262.34(f) amendments would

have allowed an additional 30-day

accumulation period for generators of

100-1000 kg/mo at the discretion of the

Regional Administrator Where he

determines that such an extension is

warranted due to temporary,

unforeseeh, and uncontrollable

circumstances. This amendment was

based on an identical provision

currently applicable to large quantity

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generators. While most commenters on

this amendment were supportive of the

emergency extension provision, one

commenter argued that the storage

periods specified in the statute were

clearly the maximum periods allowed.

The Agency believes that Congress

never intended for the Agency to

promulgate rules so inflexible that they

could not take into account, and

accommodate, legitimate emergency

circumstances. In addition, the Agency

assumes that the emergency extension

provision is consistent with

Congressional intent since it did not

.explicitly preclude such an extension

when it adopted section 3001(d)(6).

Therefore, the Agency is promulgating

this provision as proposed.

Several commenters requested the

Agency to clarify the applicability of the "satellite provision" of 40 CFR 262.34.

This provision allows generators to

accumulate up to 55 gallons of nonacutely hazardous waste in "satellite"

areas where the waste is generated in

industrial processes without complying

with the 90-day accumulation standards.

See 49 FR 49568 (Dec. 20, 1984). Satellite

areas are those places (under the control

of the operator of the process generating

the waste) where wastes are generated

in the industrial process and must

initially accumulate prior to removal to

a central area. Within three days of

accumulating over 55 gallons, the

generator is required to comply with all

applicable RCRA- requirements for

further management of any waste ii

excess of 55 gallons. When the satellite

rule was promulgated, generators of less

than 1000 kg/mo of non-acutely

hazardous waste (or less than I kg/mo

of acutely hazardous waste) were not

subject to any of the requirements of the

satellite accumulation rule. See 49 FR

49568-49570. This is because these

generators were exempt from most of

the hazardous waste management

regulations, including Part 262.

However, under today's rule, only

generators of less than 100'kg/mo will

remain exempt from the regulations;

Therefore, 100-1000 kg/mo generators

may accumulate up to 55 gallons of nonacutely hazardous waste in satellite

areas without meeting the storage

requirements being promulgated today,

so long as the requirements of

§ 262.34(c) are met. Of course, as soon

as the 55 gallon limit has been exceeded

in any satellite area, any excess waste

is subject to all applicable RCRA

requirements within 3 days. This means

that the 180/270 day on-site

accumulation provision for 100-1000 kg/

mo generators applies to any excess

waste three days after the 55 gallon limit

has been exceeded.

Two commenters who operate offshore drilling facilities requested

clarification on the applicability of this

provision to off-shore facilities and

central collection points located onshore. These commenters cited their

desire to avoid manifesting or using

transporters with EPA Identification

numbers in shipping wastes from offshore facilities to on-shore collection

areas.

The satellite provision was intended

to provide for extended accumulation of

waste in specific areas of generation to

allow for more economical transporting

of waste within one site. The

applicability of this provision does not

address the extent to which a generator

must comply with Parts 262 and 263

when it is shipping wastes off-site. EPA

does not deem off-shore facilities and

on-shore collection facilities to be "onsite", or the same site, as defined by 40

CFR 260.10. To the extent that each

facility has various points of waste

generation, the satellite pr"ovision would

apply; however, as in any off-site

hazardous waste shipment, the

requirements of Parts 262 and 263 must

be met when wastes generated at each

off-shore facility are transported to an

on-shore collection or storage facility.

b. Standards Applicable to On-site

Accumulation: EPA proposed to modify

certain of the requirements for on-site

accumulation by 100-1000 kg/mo

generators in order to simplify the

requirements for contingency plans and

emergency procedures, and personnel

training (contained in Part 265, Subpart

D, and § 265.16). The specific

amendments to § 262.34 would be

contained in new paragraphs (d), (e),

and (f), specifying the particular

requirements applicable to on-site

accumulation by generators of 100-1000

kg/mo. No modifications were proposed

to the standards for storage in

containers and tanks (Part 265, Subparts

I and J) or to the requirements for

preparedness and 1irevention contained

in Subpart C of Part 265. EPA indicated

that it believed these standards were

appropriate and necessary and not

unduly burdensome. Several

commenters have objected to the

apparent inconsistency between

application of the existing accumulation

provisions of § 261.5 and § 262.34 and

the proposed standards under Section

3001(d) of the HSWA. Under the existing

rules for conditionally exempt small

quantity generators under § 261.5 and

the accumulation provisions of § 262.34,

generators who either generate

quantities above specific cutoffs or who

accumulate quantities above those

cutoffs over any period of time become

subject to additional requirements.

Thus, if the proposed rules were to be

finalized, generators of less than 100 kg/

mo who accumulated over 1000 kg/mo

would be subject to full regulation under

Part 262, including a 90 day

accumulation time limit followed by

permitting requirements for longer onsite storage. Also, if more than 1 kg of

acutely hazardous waste were

accumulated, full Part 262 standards

would apply, including a 90 day

accumulation time limit followed by

permitting requirements for longer onsite storage. Conversely, generators of

100-1000 kg/mo would be allowed to

accumulate up to 6000 kg for up to 180 or

270 days and be subject to the specially

reduced standards being promulgated

today rather than full Part 262

regulation.

A number of commenters pointed out

that generators who fall into different

generator categories could be subject to

different standards for essentially the

same quantities of the same wastes. For

example, a generator of just over 1000

kg/mo would be subject to full

regulation as would a generator of just

under 1000 kg/mo who happens to

accumulate above 1000 kg. These

regulations include full contingency

planning and personnel training (as well

as exception and biennial reporting). At

the same time, a generator of between

100 and 100 kg per month may

accumulate up to 6000 kg and be subject

to the special standards being

promulgated today, including reduced

contingency planning and personnel

training requirements and exemptions

from exception and biennial reporting.

Thus, 6000 kg of hazardous waste could

be subject to lesser standards than

quantities closer to 1000 kg/mo.

Substantial confusion may also result in

determining which storage standards

apply, when, and for how long. The

confusion is particularly troubling for socalled "episodic generators" that may

move from one generator category to

another from month to month. (See Unit

IlI.B.2.e.)

A number of commenters suggested a

variety of alternatives schemes for

eliminating the inequity and the

confusion, including applying the

reduced storage standards proposed for

100-1000 kg/mo generators to all

quantities of waste accumulated up to

6000 kg., regardless of the source of the

waste. These commenters believed that

such a scheme would greatly simplify

compliance and enforcement since

quantity of waste would be the only

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criteria needed in determining what

storage standards should apply.

The Agency agrees that, in theory, an

approach that uniformly applies the

same requirements to the same

quantities of waste has some merit.

However, as discussed above, Congress

has directed EPA to consider varying

the standards for 100-1000 kg/mo

generators only, and to consider their

small business nature in determining

which standards are appropriate for onsite accumulation. EPA is directed to

relieve these generators of unnecessary

burden, to the extent feasible, and

consistent with protection of human

health and the environment. Given that

Congress has not extended such

economic considerations to large

generators, EPA is not authorized to

vary applicable storage standards, if

they are necessary to protect human

health and the environment. EPA has

already determined that the existing

storage standards applicable to

generators of more than 1000 kg/mo are

necessary to reduce risks sufficiently.

Therefore, EPA is retaining the existing

standards for these generators.

With regard to generators of less than

100 kg/mo, EPA has more flexibility

because they fall within the "small

business" category that Congress was

concerned about. The Agency decided in

the proposed rules not to modify the

accumulation provision for generators of

less than 100 kg/mo because such a

generator would need to accumulate

waste for at least 10 months before

exceeding 1000 kg. However, it appears

to be inconsistent with Congressional

intent that small businesses producing

less than 100 kg/mo should be subject to

more stringent accumulation standards

than 100-1000 kg/mo generators for

quantities between 1000 kg and 6000 kg.

Therefore, EPA is today finalizing an

amendment to § 261.5 that will subject

generators of less than 100 kg/mo to the

same provisions of § 262.34(d) as are

applicable to.generators of 100-1000 kg/

mo, when they accumulate waste in

quantities greater than 1000 kg but less

than 6000 kg.

i Standards for Preparedness and

Prevention-Part 265, Subpart C: Under

§ 262.34(a), generators who accumulate

hazardous waste on-site must comply

with the requirements of Subpart C of

Part 265 which contains requirements

for facility preparedness and prevention.

In the Proposal, EPA indicated its

intention to apply all of the existing

provisions of this Subpart, without

modification.

The requirements for preparedenss

and prevention are as follows:

9 Section 265.31 requires that

facilities be maintained and operated to

minimize the possibility of fire,

explosion, or any unplanned release of

hazardous waste or hazardous waste

constituents to the environment;

* Section 265.32 specifies that

facilities must be equipped with certain

kinds of equipment (i.e., an internal

communications or alarm system, a

telephone or other device capable of.

summoning emergency assistance, and

appropriate fire control equipment

including fire extinguishers and water at

adequate volume and pressure to supply

fire control system) unless none of the

wastes handled at the facility require a

particular kind of equipment;

e Section 265.33.requires that this

equipment be tested and maintained, as

necessary, to assure its proper

functioning;

* Section 265.34 requires that all

persons involved in hazardous waste

handling operations have immediate

access to either internal or external

alarm or communications equipment,

unless such a device is not required

under § 265.32;

* Section 265.35 requires the owner or

operator of the facility to maintain

sufficient aisle space to allow the

unobstructed movement of personnel

and equipment to any area of facility

operation in an emergency, unless aisle

space is not needed for any of these

purposes; and

• Section 265.37 requires the owner or

operator to attempt to make certain

arrangements with police, fire

departments, State emergency response

teams, and hospitals, as appropriate for

the type of waste handled at his facility

and the potential need for the services

of these organizations. Further, if State

or local authorities decline to enter into

such arrangements, the owner or

operator must document the refusal.

The Agency did not propose any

amendments to Subpart C because they

are appropriate and necessary and not

unduly burdensome. The requirements

all involve common sense principles for

preparedness and prevention which

hazardous waste handlers can and

should address in order to ensure safe

handling of hazardous wastes. Also,

since the requirements are structured

such that specific equipment and

procedures are required only on an "as

needed" basis, the existing regulation

provides complete flexibility for

hazardous waste generators to tailor

their preparedness and prevention

activities to the specific kinds of wastes

handled at the facility.

Most commenters believed that these

requirements provided sufficient

flexibility for 100-1000 kg/mo generators

to tailor their preparedness activities to

their specific waste management

activities and needs. While EPA

requested comment on the possibility of

imposing more specific but less

numerous requirements in order to

alleviate potential uncertainty over

which procedures are appropriate for

particular types of wastes, the Agency

has decided that the broad principles

embodied in Subpart C are preferable to

the specific suggestions made by

commenters. For example, one

commenter felt that the requirement to

make arrangements with state and local

authorities, ag needed, would confuse

many generators and suggested that

EPA substitute a simpler requirement

that a generator simply request a visit

from the fire department. EPA believes,

however, that such a specific

requirement would not provide

sufficient preparedness in some cases,

while in others it may be overly

burdensome, as where no ignitable or

flammable wastes are managed at that

site.

A number commenters were

concerned that the requirement to

document refusals to make appropriate

arrangements by state and local

authorities and health care facilities

would prove to be extremely

burdensome to small businesses,

.particularly since refusals are seldom

likely to be made in writing. EPA did not

intend to corvey a need for generators

to obtain written refusals from every

entity that declined to visit the facility.

For purposes of this requirement, EPA

will consider a signed and dated letter

from the generator to the state or local

entity which attempts to make such

arrangements to be sufficient

documentation of an attempt to make

the appropriate arrangements.

One commenter believed that the

requirement to make arrangements with

appropriate state and local emergency

service facilities was unnecessary

.where generators maintain their own

fire, security, and emergency health care

personnel at some of their larger

facilities and that such facilities should

be allowed to fulfill this requirement

without making outside arrangements.

While the Agency did not intend to

preclude the use of on-site emergency

personnel to provide preparedness in

the case of emergencies, EPA does not

agree that such arrangements alone will

always be sufficent to comply with the

requirements of Subpart C where the

nature of the waste management

operations at that facility could result in

emergencies also requiring the

involvement of State and local

emergency services.

This commenter was also concerned

that EPA's broad definition of "facility"

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could require that preparedness and

prevention measures be maintained

throughout every portion of the

generator's property instead of just

those areas'where waste is

accumulated. EPA has never intended

its broad definition of "facility" (see 50

FR 28712) to be used in application of

the preparedness and prevention

reguiti'ons; rather, the definition of

"facility" in § 260.10 is used. Applying

this narrower definition makes clear

that the preparedness and prevention

regulations only require the generator to

take those precautions and maintain

that equipment necessary to ensure that

they are adequately prepared to respond

to emergencies relating to the hazardous

waste operations of the facility. If

special equipment or precautions are not

needed for this purpose in areas of a

facility where hazardous wastes are not

managed, then a generator is not

expected to maintain them in those

areas. At the same time, however, other

precautions, such as adequate aisle

space, may be needed in areas outside

of the immediate waste accumulation

area in order to ensure adequate access

to emergency equipment in the event of

a fire, explosion, or release of hazardous

waste or hazardous waste constituents.

For the reasons discussed above, the

Agency does not believe that

modifications to Subpart C of*Part 265

are appropriate for generators of 100-

1000 kg/mo and is, therefore, applying

the existing Subpart C requirements to

these generators.

ii. Standards for Contingency Plans

and Emergency Procedures-Part 265.

Subpart D, and Personnel Training

Requirements: Under § 262.34(a),

generators who accumulate waste onsite must comply with certain

requirements in Part 265, Subpart D,

pertaining to contingency plans and

emergency procedures and personnel

training requirements. These

requirements are contained in § 265.16.

The § 265.16 requirements are intended

to ensure that personnel are adequately

prepared to manage hazardous waste

and to respond to any emergencies that

are likely to arise. EPA considered

applying these same requirements to

100-1000 kg/mo generators since, for the

most part, the requirements embody

common sense principles that are

necessary and appropriate for facilities

managing hazardous waste. However,

these requirements appeared to be

unnecessarily burdensome in some

cases (e.g. requiring formal classroom

training and written, detailed

contingency plans) and costly and could

have unnecessarily severe impacts on

many small businesses. The Agency

therefore proposed a simpler set of

requirements for generators of 100-1000

kg/mo to reduce the administrative -

burden on small businesses while still

protecting human health and the

environment.

EPA proposed and requested public

comment on the following requirements

for 100-1000 kg/mo generators that

would be contained in a new § 262.34(d):

- At all times, an "emergency

coordinator" (E.C.); (i.e., someone

familiar with these requirements), must

be on-site (or on call). The coordinator

may also designate someone to act in

his place..

* The generator must post certain

information next to the telephone,

including: the name and telephone

number of the E.C.; location .of fire

extinguishers and spill control material;

and the phone number of the fire

department;

- The generator must ensure that all

employees are thoroughly familiar with

proper waste handling and emergency

procedures;

* The generator (or the E.C.) would

have to respond to any emergencies that

arise. In the case where an emergency

was serious enough to warrant a visit by

the fire department or when the

generator (or E.C.) has knowledge of a

spill of hazardous waste that could

reach surface water or otherwise

threaten human health or the

environment, the generator would have

to notify the National Response Center

and file a report with the EPA Regional

Administrator as provided by proposed

§ 262.34(c)(3)(E).

EPA believed these requirements to

be adequate to protect public health and

the environment from fires, leaks, spills,

or other releases from generators of 100-

1000 kg/mo who are accumulating waste

on-site prior to shipment off-site.

While many commenters supported

the reduced contingency plan,

emergency procedures, and personnel

training requirements as proposed, a

number of commenters did not agree

with the proposed modifications.

Several commenters believed that

relaxing the standards for on-site

accumulation for 100-1000 kg/mo

generators would not be appropriate

given the increased quantities of waste

which can be accumulated (i.e., 6000 kg)

and the generally less sophisticated

waste management expertise of smaller

firms. Some commenters suggested

various approaches including requiring

full Subpart D compliance for all

quantities accumulated above specific

limits, such as 1000 kg or 3000 kg. Other

commenters argued that the reduced

standards were appropriate not only for

generators of 100-1000 kg/mo, but also

to larger generators and suggested that

the reduced standards apply to all

accumulated quantities between 1000 kg

and 6000 kg.

Since the Agency recognized in the

proposed rules that applying standards

to 100-1000 kg/mo generators

accumulating waste on-site in quantities

up to 6000 kg was of some concern, it

was careful to modify the standards

only where administrative requirements

not essential to the substantive

functioning of the standards were

involved. Thus, the standards, as

modified, are sufficient to protect human

health and the environment from release

of wastes accumulated by 100-1000 kg/

mo generators.

-EPA does not believe it is appropriate

to apply the reduced standards to

wastes accumulated bygenerators of

more than 1000 kg/mo. As previously

discussed, EPA's authority to consider

areas in which to reduce burdens

extends to small quantity generators.

Also, as discussed in Unit III.A. above,

the relative risks posed by wastes

accumulated by large quantity

generators are greater. Thus, generators

of greater than 1000 kg/mo must comply

with the requirements of Subpart D of

Part 265 if wastes are accumulated onsite prior to shipment off-site.

A humber of commenters also

suggested several modifications to the

proposed standards. Some commenters

were concerned that the requirement

that each business designate an

emergency coordinator to be on call at

all times would impose an undue burden

because this would require that the

emergency coordinator be trained in

emergency response procedures. One

commenter believed that the term "emergency coordinator" would be

confusing since it implies that the

individual must have a high degree of

training in risk assessment and

abatement.

The intent of this requirement was

simply to ensure that each generation

facility had at least one person available

at all times who could be contacted and

would know what steps to take in the

event that an emergency should arise.

EPA envisioned that for most small

businesses, the owner or manager

already fulfills this requirement by being

available 24 hours a day in case an

emergency, such as a fire or burglary,

occurs at that facility. EPA does not

intend that generators must hire and

train a new employee for this task.

Viewed in this light, this requirement is

reasonable and not unduly burdensome.

In addition, there is no reason why

small businesses would confuse the

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term "emergency coordinator" with the

more formal On-Scene Coordinators at

Superfund clean-up sites.

With regard to the proposed personnel

training requirement that a generator

ensure that all employees be made

thoroughly familiar with'waste handling

and emergency procedures, several

commenters were in favor of more

stringent personnel training

requirements. One commenter noted

that personnel training is necessary to

manage tanks properly and to prevent

tank contamination and recommended

that the Agency adopt more stringent

personnel training requirements if more

than 15 drums or 7,500 pounds

(approximately 3400 kg) are

accumulated on-site. Another

commenter objected to allowing 100-

1000 kg/mo generators, who typically

have fewer resources and less expertise

than large quantity generators, to

accumulate 6000 kg on-site with reduced

personnel training standards, and

suggested that personnel training plans

be required whenever more than 3000 kg

are accumulated on-site. This

commenter suggested that criteria such

as the nature of the waste and the

history of spills and releases from the

generator be established to allow EPA

or State agencies to require a generator

of 100-1000 kg/mo to establish and

implement a personel training plan.

In the absence ofany justification

provided by commenters, the Agency

does not believe that establishing an

intermediate limit on accumulation,

after which more formal personnel

training requirements apply, would

result in any significant increase in

protection to human health and the

environment. While EPA agrees that

risks involved increases as waste is

accumulated, it believes that the

requirements adopted are adequate to

protect against the risks from fires,

leaks, spills, or other releases. The

proposed requirements embody the

same-principlep contained in the

existing personnel training

requirements, but rely less on the

preparation of written plans in order to

reduce the burdens on 100-1000 kg/mo

generators.

One commenter suggested that if a

100-1000 kg/mo genrator at any time is

required to prepare a personnel training

plan because he generated more than

1000 kg in any one month, he should be

required to maintain the personnel

training plan for at least the following

six months even though he produces no

more than 1000 kg/mo during that

period. The commenter suggested that

this requirement would impose little

burden because the plan would already

be in existence and would only need to

be implemented. The Agency is not

adopting this suggestion. No rationale

was offered by this or other commenters

regarding any additional protection that

this approach would provide. In

addition, the Agency disagrees with the

conclusion that little burden would be

imposed in maintaining a plan. For

example, the generator would be

required to update job titles, job

descriptions, job qualifications, names

of employees in each position, and

standards for the introductory and

continuing training needed for persons

in each position. Furthermore, even if

not required by regulations to maintain

and follow their plans, many of the

generators of 100-1000 kg/mo who were

previously generators of more than 1000

kg/mo will nevertheless continue to use

their plans as the basis for their

personnel training program.

Another commenter in favor of more

stringent personnel training

requirements argued that the approach

proposed by EPA is too broad and

unenforceable, and that the Agency

should require employees to sign a

document stating the "what, when, and

were of employee training." The Agency

believes that such an approach would

add considerable burden to the

generator without providing any

subtantial additional degree of

protection, particularly since the "what,

when, and where" are not explicitly

prescribed under either the current rules

or today's amendments.

Two commenters argued that 100-1000

kg/mo generators should be exempt

from all personnel training requirements

on the basis that personnel training

would be too costly and burdensome for

most small businesses and because less

than 1000 kg/mo would be "too small to

endanger the environment or public

health". The Agency does not agree that

100-1000 kg/mo generators should be

exempt from all personnel training

requirements. While the Agency agrees

that the risk to human health and the

environment.posed by 100-1000 kg/mo

generators is less than the risk posed by

large quantity generators, some risk is

still present. The Agency has, therefore,

proposed less stringent rules for 100-

1000 kg/mo generators, which will

mitigate this risk while minimizing the

regulatory burden upon these

generators.

A number of commenters suggested

that the Agency limit the scope of the

training requirement since it is

inappropriate to require that all

employees of a generator receive

personnel training, regardless of their

job responsibilities. According to these

commenters, some firms, particularly

large companies, may have clerical and

office staff as well as some part-time

and temporary personnel "who will

never be involved or even remotely

associated with the firm's handling of

hazardous waste", and requiring these

employees to be thoroughly familiar

with hazardous waste management

techniques would be a poor use of the

firm's resources. One commenter

suggested that this requirement be

applied only to those employees who

handle hazardous waste as part of their

job.

The Agency agrees that it would not

make sense to require training in topics

not germane to an employee's areas of

responsibility since this would add

considerable burden to some firms

without corresponding environmental or

health benefits. Thus, the Agency has

amended the regulations to clarify this

issue. The rule promulgated today states

that generators "must ensure that all

employees are thoroughly familiar with

proper waste handling and emergency

procedures relevant to their job

responsibilities during normal facility

operations and emergencies," just as for

large quantity generators subject to

§ 265.16, implicit in the regulations is the

requirement that the type and amount of

training necessary for each employee

stems from his specific responsibilities.

Employees who handle hazardous

wastes as part of their normal job

responsibilities or are likely to handle

wastes in an emergency situation must

be thoroughly familiar with proper

waste handling and emergency

procedures. Employees who work in or

adjacent to areas where hazardous

wastes are generated, handled, or stored

but do not handle hazardous wastes,

must still be trained to be thoroughly

familiar with basic emergency

procedures. Part-time or temporary

employees must also receive

appropriate training.

iii. Standards for Accumulation in

Containers-Part 265, Subpart I: Section

262.34 requires that in order to

accumulate hazardous waste on-site

without a permit, the generator must

meet certain requirements. If the waste

is stored in containers, the generator

must comply with Subpart I of Part 265

(§ § 265.170 thru 265.177) which contains

the following general requirements

applicable to the management of

hazardous waste storage containers:

e They must be kept in good condition

and any leaking containers replaced

(§ 265.171);

9 The containers must be compatible

with the hazardous waste stored in them

(§ 265.172);

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* Containers holding hazardous

waste must always be closed during

storage (except when necessary to add

or remove wastes) and'must not be

handled in a way that would cause them

to rupture or leak (§ 265.173);

• Containers must be inspected at

least weekly to check for leaks and any

signs of corrosion (§ 265.174);

* Containers holding ignitable or.

reactive wastes must be placed at least

50 feet from the facility's property line

§ 265.176); and

9 Incompatible wastes must not be

placed in the same container so as to

cause fires, leaks, or other discharge of

hazardous waste or hazardous waste

constituents (§ § 265.177 and 265.17(b)).

In addition, § 262.34(a)(2) requires that

the date upon which each period of

storage begins is clearly marked on each

container and § 262.34(a)(3) requires

that each container be marked with the

words "Hazardous Waste".

Since these requirements embody

common sense "good housekeeping"

requirements necessary to avoid

releases into the environment, EPA

proposed no modifications to these

standards for 100-1000 kg/mo

generators. Comments received

generally indicate that these

requirements were not unduly

burdensome and would be appropriate

for 100-1000 kg/mo generators. The one

major concern raised by a number of

commenters, however, is the

requirement that a buffer zone of at

least 50' from the property boundary be

maintained for reactive or ignitable

wastes. Since many smaller generators

are located in urban areas, it is not

uncommon'for these generators to be

located on lots that would not permit the

maintenance of a 50-foot buffer zone.

EPA agrees with commenters that this

requirement would put many small

businesses in a situation in which it

would be impossible to comply. Since

the Agency has already proposed to

modify the buffer zone requirement to

increase flexibility in such situations (49

FR 43290, June 5, 1984), it would make

sense for the Agency to exempt 100-1000

kg/mo generators from the 50-foot buffer

zone requirement until the Agency

promulgates final storage standards.

Whether the Agency ultimately decides

to apply the proposed standards to these

generators or to propose a more tailored

set of standards, it would be

inconsistent with the directives

contained in HSWA Section 3001(d) to

consider impacts on small business to

include, in the interim, the existing

buffer zone requirement. Therefore, as

an interim measure, the Agency is

exempting 100-1000 kg/mo generators

from the § 265.176 requirement that

containers holding ignitable or reactive

wastes must be placed at least 50 feet

from the property boundary. Of course,

100-1000 kg/mo generators should

-endeavor to store ignitable or reactive

wastes as far from the property

boundary as is practicable.

With the exception of the modified

buffer zone requirement, EPA is

incorporating by reference the

requirements of Subpart I of Part 265

into § 262.34(d).

iv. Standards for On-site

Accumulation in Tanks-Part 265,

Subpart]: As in Subpart I, Subpart J

contains general standards that must be

followed by generators storing

hazardous waste in tanks under § 262.34:

e Wastes must not be placed in tanks

if they could cause ruptures, leaks,

corrosion, or otherwise cause the tank to

fail (§ 265.192(b));

e Uncovered tanks must be operated

with-at least 60 centimeters (2 feet) of

freeboard or a secondary containment

dike or trench to prevent overfilling

spillage (§ 265.192(c));

a Where waste is continuously fed

into a tank, the tank must be equipped

with a waste feed cutoff or bypass

system to stop the inflow to the tank

(§ 265.192(d));

a At least once each operating day, a

generator must inspect, where present,

discharge control equipment (e.g., waste

feed cut-off systems and drainage

systems), data gathered from monitoring

equipment (e.g., pressure and

temperature gauges), and the level of

waste in the tank to assure compliance

with the above freeboard requirements

(9 265.194 (a)(1), (a)(2), and (a)(3));

* At least weekly, a generator must

further inspect the construction

materials of the tank and the area

immediately surrounding the tank to

detect corrosion or obvious signs of

leakage (§ 265.194 (a)(4) and (a)(5));

* Special requirements apply to

ignitable or reactive waste, and

incompatible waste that are more or less

analogous to those in Subpart I, The

major difference is in the requirements

for ignitable or reactive waste which,

when stored in a covered tank, must be

in compliance with buffer zone

requirements contained in Tables 2-1

through 2-6 of the National Fire

Protection Association's (NFPA)

"Flammable and Combustible Liquids

Code." These requirements are based on

the hazardous characteristics-of all

combustible and flammable liquids and,

as such, are applicable to any type and

size of tank. While the Agency is

modifying the bqffer zone requirements

for containers, as discussed in the

previous section, the Agency did not

receive any comments indicating that

compliance with the NFPA code with

respect to tanks would be impossible for

small quantity generators. Therefore, the

existing buffer zone requirements for

tanks will apply to generators of 100-

1000 kg/mo.

The requirements of Subpart J are

meant not only to protect human health

and the environment, but are in the

generator's best interest by reducing the

likelihood of damages or injuries caused

by leaks and spills. The Agency did not

propose to modify these standards for

100-1000 kg/mo generators, and no

commenters raised any objections to

application of the existing Subpart J

requirements to 100-1000 kg/mo

generators. Thus, the Agency has no

reason to believe that the existing tank

requirements present a problem for

these generators, and is including them

in this rule.

As discussed in detail in the Proposal,

the Agency is developing new

management standards for tank storage

that may require secondary containment

for accumulation tanks. These proposed

amendments to Subpart J (50 FR 26444,

June 26, 1985) could impose additional

costs if applied to generators of 100-1000

kg/mo who accumulate hazardous

waste in tanks. In the Proposal, the

Agency requested and received public

comment on a variety of options related

to the proposed tank amendments.

However, the Agency has not yet

completed its evaluation of this issue

and has not issued .any final

amendments to Subpart J. Accordingly,

the Agency is today applying to

generators. of 100-1000 kg/mo only those

Subpart J requirements currently

required under §'262.34. Application of

any modified tank standards to

generators of 100-1000 gk/mo will be

evaluated in the final tank rule after

consideration of all comments received

on both the August 1 Proposal and the

tank proposal of June 26, 1985.

The requirements of existing Subpart J

of Part 265 are, therefore, incorporated

by reference in § 262.34(d), and are

applicable to generators of 100-1000'kg/

mo.

5. International Shipments

On March 13, 1986, EPA proposed

regulations under § 3017 of HSWA

regarding exports of hazardous waste

(See 51 FR 8744). The proposed

regulations would prohibit export of

hazardous waste unless certain

requirements are met. These

requiremens include advance written

notification to EPA of any plans to

export hazardous waste, prior written

consent to such plan by the receiving

country, attachment of a copy of the

consent to the manifest accompanying

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each waste shipment, and conformance

of the shipment to such consent. EPA

also proposed a manifest pursuant to 40

CFR Part 262, Subpart B, or equivalent

State provision, which specifies a

treatment, storage or disposal facility in

a foreign country as the facility to which

the waste will be sent. Under 40 CFR

261.5 and today's final rule all

generators, including those generating

less than 100 kg/mo, would qualify as

exporters under the export proposal.

Although the Agency is not aware of

any exports by generators of less than

1000 kg/mo, and hence, did not propose

to change the applicability of the export

requirements to these generators, the

Agency has requested comment from

generators of less than 1000 kg/mo on

whether the Agency should partially or

totally exempt them from the proposed

export requirements. Thus, generators

affected by today's final rule should be

aware that they may be subject to

additional regulatory requirements in

exporting hazardous waste, and that

they have the opportunity to submit

comments regarding the applicability of

those requirements to the public docket

established for the export proposal.

D. Transportation Issues

The existing standards for

transporters of hazardous waste are

contained in 40 CFR Part 263, and are

applicable to a3ny form of hazardous

waste transportation that requires the

use of a hazardous waste manifest

(§ 263.10(a)). These standards pertain to

compliance with the manifest system,

recordkeeping, and actions to be taken

in response to spills or discharges of

hazardous waste. Taken in conjunction

with U.S. Department of Transportation

(DOT) requirements under the

Hazardous Materials Transportation

Act (HMTA) regarding labeling,

marking, packaging and placarding

(incorporated in 40 CFR Part 262,

Subpart C), such standards are deemed

by the Agency to be those necessary to

protect human health and the

environment during the transportation of

hazardous waste.

In directing EPA to develop standards

for generators of 100-1000 kg/mo,

Section 3001(d)(7) of RCRA, as amended, specifically states that

"nothing in this subsection shall be

construed to affect or impair the validity

of regulations pursuant to the

Hazardous Materials Transportation

Act." Consequently, EPA did not

propose any substantive amendments to

applicable DOT requirements or to Part

263. However, several minor

amendments are necessary to bring the

transporter standards into conformance

with today's final standards for 100-1000

kg/mo generators.

In addition, commenters on the

proposed rules raised a number of

transportation-related issues. The

Agency is finalizing proposed § 263.20(h)

to specify certain recordkeeping

requirements for transporters (who are

also reclaimers) accepting unmanifested

hazardous waste from generators

utilizing the § 262.20(e) exemption for

wastes reclaimed under contractual

agreements. While one commenter

argued that these recordkeeping

requirements were too burdensome, the

Agency does not agree. The manifest

exemption is an entirely voluntary

arrangement that substantially reduces

the paperwork for both generators and

transporters. The transporter need not

maintain the prescribed records if he

chooses instead to comply with the

manifest system. A number of

commenters were concerned about the

lack of established transportation

networks for the collection and

transportation of less than full

truckloads of hazardous waste. Three

commenters stated that EPA should take

steps to encourage such networks, and

suggested various alternatives. Two

commenters suggested that EPA

encourage the establishment of

collection centers for waste from 100-

1000 kg/mo generators by extending the

current 10-day period for transportation

to 21 days and accelerating the issuance

of storage permits for facilities which

serve as collection and transfer stations

for small quantity generator waste. One

of these commenters specifically

suggested that development of a class

permit concept for these facilities might

be a viable solution.

EPA agrees that the development of

networks and centralized collection

centers will help to increase compliance

with these regulations. However,

commenters have not adequately

demonstrated a need for longer

transportation time than the 10 days

currently provided. Nor does EPA

believe that the establishment of an

expedited permit process for these

facilities is feasible. Both of these issues

are discussed in greater detail in the

following section on facility standards.

It should be noted here, however, that

such networks can be established at any

time within the confines of the

applicable regulations.

Some commenters expressed concern

about EPA's discussion in the proposed

rules of self-transportation of hazardous

wastes, stating that all of the standards

for hazardous waste transportation

should be imposed on such generators.

In the proposal, EPA explained that selftransportation of hazardous waste by

generators was not precluded by the

regulations, provided the generator

obtained a U.S. EPA ID number and

complied with the provisions of Part 263

and the applicable portions of

Department of Transportation

regulations.. EPA did not intend to create

the impression that self-transportation

could be conducted without compliance

with the full Part 263 standards for

hazardous waste transportation.

Other commen'ters supported the

concept of licensing transporters to

assume the responsibilities of the

generator with respect to manifesting.

As EPA explained in the Proposal,

transporters may currently assume most

of the generators' manifesting

responsibilities except for signing the

certification statement. One commenter

believed that the transporter of a

hazardous waste shipment should

assume liability for the waste if that

transporter completed the manifest and

removed the waste from the generator's

establishment. EPA may-not alter the

liabilities established by statutes such

as CERCLA, which applies the concept

of joint and several liability to all

handlers of a hazardous substance. In

addition, EPA believes that removing

RCRA liability from generators would

remove an important incentive for them

to ensure that their wastes are properly

transported and managed. EPA,

therefore, is taking no action that would

alter a generator's liability under current

regulations and statutes.

Two States requested an amendment

to § 262.20(e) to allow generators of 100-

1000 kg/mo to transport waste to a

temporary collection site of a hazardous

waste clean-up program or Amnesty

Day without the need to complete a

manifest. They stated that the

requirement to complete a manifest may

discourage some establishments from

participating. Under most "Amnesty

Day" programs of which the Agency is

aware, homeowners are encouraged to

bring their unwanted household

hazardous wastes to a central collection

point where they are sorted, packaged,

and subsequently transported to an

approved hazardous waste management

facility. In some cases, small quantity

generators have been allowed to discard

their wastes through similar programs.

Section 261.4(b)(1) exempts household

waste from all of the hazardous waste

requirements of RCRA. Thus, no

manifesting is required for transport of

wastes that are exempt from regulation

under § 261.5. However, because

quantities of hazardous wastes from

generators of 100-1000 kg/mo could

pose a substantial risk if improperly

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man aged, the Agency has decided to

impose manifest requirements on these

generators, except in the case of certain

reclamation agreements. The existence

of a State-approved collection center

does not, on its own, provide assurance

that the waste would be transported or

handled properly prior to or during

transportation to such a facility, or

indeed, that the shipment would ever

reach such a facility. Consequently,

development of some recordkeeping and

transportation requirements would be

needed which would offset any potential

savings of such an exemption.

E. Part 264/265 Facility Standard Issues

The requirements for facilities that

treat, store, or dispose of hazardous

waste are contained in Parts 264 and 265

of the hazardous waste regulations. The

Part 265 standards are applicable to

facilities under interim status, a

condition which allows a facility to

continue operating until it receives a full

RCRA permit. (See HSWA section

3005(e)). The Part-264 standards

establish the minimum standards to be

incorporated into a full RCRA permit by

EPA or a State with an EPA authorized

hazardous waste program.

Section 261.5(b) previously exempted

generators of 100-1000 kg/mo of

hazardous waste from the facility

requirements of Parts 264 and 265 that

cover the on-site treatment, storage, or

disposal of hazardous waste, provided

the facility is at least approved by a

State to manage municipal or industrial

(non-hazardous) solid waste and no

more than 1000 kg of hazardous waste

were accumulated at any time. Under

the rules promulgated today, this

exemption will continue to apply only to

generators of less than 100 kg/mo of

hazardous waste. Generators of 100-

1000 kg/mo of hazardous waste will be

subject to-full regulation under Parts 264

and 265 if they accumulate hazardous

waste on-site for greater than 180 (or

270) days, exceed the 6000 kg

accumulation limit, engage in waste

treatment in other than tanks, or manage

their-waste in surface impoundments,

waste piles, landfills, or land treatment

facilities. In addition, those Stateapproved municipal or industrial waste

facilities that manage wastes only from

generators of 100-1000 kg/mo will also

no longer be exempted from the Part 264

and 265 permit requirements. In the

proposed rule, the Agency requested

comments concerning the application of

the uniform Part 264 and 265

requirements to generators of 100-1000

kg/mo and to the treatment, storage, and

disposal facilities that accept waste

from the generators.

1. Activities Requiring Permits

Under today's final rules, 100-1000 kg/

mo generators will be required to obtain

a permit if they treat or dispose of

hazardous waste on-site (except for

treatment in tanks or containers during

the 180/270 day accumulation period in

conformance with Subparts J or I of Part

265, respectively) or accumulate

hazardous waste on-site in tanks or

containers for more than 180 (or 270)

days.

A number of commenters agreed with

the need to manage wastes from

generators of 100-1000 kg/mo at fully

permitted facilities. They argued that no

special exemptions or requirements

should be applied to the management of

waste from these generators because the

characteristics of the waste, not the

source of the waste, poses the threat to

human health and the environment.

Two commenters opposed the

requirement for generators of 100-1000

kg/mo who accumulate waste on-site for

longer than 180 (or 270) days to obtain

RCRA permit, and argued that the

accumulation time limit before

permitting is required should be

extended. One of the commenters also

maintained that determining the

maximum quantity of hazardous waste

that may be accumulated at a nonpermitted facility should be based on

the degree of hazard posed by the waste

and the generator's capacity to transport

the waste off-site. The EPA disagrees .

with both of these positions. As noted in

Unit III.C.4.a. of today's preamble, the

HSWA of 1984 clearly limit Agency

discretion in this matter. The Agency

carries a heavy burden in extending the

time limits established under section

3001(d)(6), and except for emergency

circumstances, the Agency does not

believe there to be sufficient

justification for extending the limits

Congress has established.

Another commenter opposed any

permitting requirement due to the

economic burden that would be placed

on a small number of generators. While

some generators of 100-1000 kg/mo may

be burdened financially by the

requirements promulgated today,

Congress has already judged that

outside of the accumulation limits

allowed for in Section 3001(d)(6),

disposal of wastes from these generators

at permitted facilities is necessary to

protect human health and the

environment. In addition, since the rules

allow generators to manage their

hazardous wastes off-site, they are able

to avoid the cost of acquiring a RCRA

permit, if they so choose.

Several commenters suggested

exemptions from the RCRA permitting

requirements or reduced permit

requirements for on-site waste

treatment. Some commenters stated that

there is a need to encourage on-site

treatment to reduce the amount of

wastes sent off-site and that the

permitting requirements may hamper the

ability'of generators to treat wastes at

their facilities.

The Agency disagrees that on-site

treatment should be encouraged by

exempting those generators of 100-1000

kg/mo from the RCRA permitting

requirements. To the extent that these

generators are conducting the same

treatment/storage or treatment/disposal

as other permitted facilities, their on-site

treatment activities pose a potential risk

to human health and the environment.

Therefore, reduced or eliminated

permitting requirements would be

inappropriate.

Of course, no permitting would be

required if a generator chooses to treat

their hazardous waste in the generator's

accumulation tanks or containers in

conformance with the requirements of

§ 262.34 and Subparts J or I of Part 265.

Nothing in § 262.34 precludes a

generator from treating waste when it is

in an accumulation tank or container

covered by that provision. Under the

existing Subtitle C system, EPA has

established standards for tanks and

containers which apply to both the

storage and treatment of hazardous

waste. These requirements are designed

to ensure that the integrity of the tank or

container is not breached. Thus, the

same standards apply to a tank or a

container, regardless of whether

treatment or storage is occurring. Since

the same standards apply to treatment

in tanks as applies to storage in tanks.

and since EPA allows for limited on-site

storage without the need for a permit or

interim status (90 days for over 1000 kg/

mo generators and 180/270 days for 100-

1000 kg/mo generators), the Agency

believes that treatment in accumulation

tanks or containers is permissible under

the existing rules, provided the tanks or

containers are operated strictly in

compliance with all applicable

standards. Therefore, generators of 10 o1000 kg/mo are not required to oblain

interim status and a RCRA permit if ite

only on-site management which thiey

perform is treatment in an accumulation

tank or container that is exempt from 

permitting during periods of

accumulation (180 or 270 days).

Two commenters suggested that a

mechanism should be created to t,0itor

RCRA permits to the circumstances of

individual facilities. For example. oute

commenter specifically asked for a

simplified and streamlined permit for

the incineration of spent paint spray

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booth filters. The Agency accepts the

need to consider individual

circumstances when drafting RCRA

permits.However, in order to protect

human health and the environment, the

Agency must impose certain minimum

permit requirements for each waste

management facility. Additional

provisions may be incorporated into a

permit to account for unique

circumstances at individual facilities

(see § 270.32). At the present time, the

Agency has decided not to take any

action regarding the tailoring of

regulatory requirements for permitting

specific types of waste management

activities for generators of 100-1000 kg/

mo. At a future date, the Agency may

consider altering the regulatory

requirements for specific waste types or

handling practices that pose a low

potential for harm to human health and

the environment.

Two commenters discussed the need

for establishing regional collection

centers for the temporary storage of

wastes from generators of 100-1000 kg/

mo before being sent to treatment,

storage, or disposal facilities. One of

these commenters suggested that the

collection centers may also offer waste

identification and packaging services

and could be sponsored by State or local

governments. Both commenters

contended that regional collection

centers will be needed because most

waste shipments from generators of 100-

1000 kg/mo will be too small to justify

the expense of direct transportation to

TSDFs in less than truckload quantities.

The commenters further stated that

these collection centers should not be

required to meet the full RCRA permit

requirements for storage facilities.

While the rules promulgated today

may increase the cost of waste

transportation services for many

generators of 100-1000 kg/mo,

generators of 100-1000 kg/mo are

allowed to accumulate hazardous waste

at their facilities for 180 (or 270) days,

thereby reducing the need for frequent

shipment off-site and off-site collection

centers. Nevertheless, if regional

collection and storage facilities are

established, these centers will probably

accumulate significant volumes of

various types of hazardous waste. The

storage of large amounts of hazardous

waste, regardless of its point of origin,

poses the potential for harm to human

health and the environment. Therefore,

the Agency believes that the

requirements for storage and disposal

facilities as described in Parts 264 and

265 must also apply to regional

collection facilities. Furthermore, wastes

shipped from a generator of more than

100 kg/mo to a collection center must be

properly identified, manifested,

packaged, labeled, marked, placarded,

and transported in accordance with

Parts 262 and 263 and applicable

regulations promulgated under the

Hazardous Materials Transportation

Act.

One commenter proposed that

generators of 100-1000 kg/mo be

exempted from the full corrective action

for continuing releases provisions of

RCRA section 3004(u), which apply to

all solid waste management units at a

Subtitle C facility seeking or issued a

permit. EPA disagrees with the

suggestion. Section 3004(u) applies to

releases to all media; however, the

Agency believes that action is required

only where necessary to protect human

health and the environment. Section

3004(u) requires that all permits issued

to Subtitle C facilities after November

1984 shall include schedules of

compliance and financial assurance for

completing any necessary corrective

actions for releases of hazardous waste

or constituents from any solid waste

management unit at the facility,

regardless of the time at which such

waste was placed in such unit. The clear

statutory directive precludes a reading

of the statute that limits an owner's or

operator's responsibilities to waste

placed in units during his or her tenure.

or for releases from solid waste

management units that are not "regulated units."

The corrective action requirements

will apply only to the few generators of

100 to 1000 kg/mo who choose to seek

permits. Thus, the potential burden of

corrective action must be accepted by

those who choose to manage their

hazardous waste on-site. Should such a

generator become subject to the

corrective action provisions, the Agency

is considering the advisability of taking

into account the firm's ability to pay

when establishing a compliance

schedule and thereby reduce the burden

to generators of 100-1000 kg/mo.

Nonetheless, the goal of these rules is to

reduce the risk to human health and the

environment from uncontrolled releases

of hazardous waste. The risks

associated with such releases depend on

the nature of each individual release,

not on the quantity of hazardous waste

generated by the facility. There is no

rational basis for distinguishing between

generators of 100 to 1000 kg/mo and

larger quantity generators when

determining whether a release, once it

occurs, poses an imminent threat to

human health and the environment and

needs to be cleaned up.

2. Applicability of Permitting

Requirements to Recycled Wastes

Several commenters addressed the

issue of recycled wastes. One

commenter stated that generators of

100-1000 kg/mo who recycle the

generated products should not be

required to meet full Parts 264 and 265

facility standards. The commenter

argued that since recyclable wastes are

frequently handled as if they were

original products, they should not be

subject to regulation. This approach has

already been considered by the Agency

and rejected (See 50 FR 614, 617

.(January 4, 1985). At the time, EPA

indicated that wastes often have little

independent economic value, but are

recycled to avoid disposal costs. Unless

the wastes are extremely valuable (as in

the case of precious metal-containing

wastes), there is little incentive to avoid

leaks and spills. EPA sees no reason to

reconsider the issue at this time.

Two other commenters sought

clarification concerning whether the

proposed rule requires on-site waste

recycling operations to be permitted

under Parts 264 and 265. While the

actual recycling-operation is generally

not subject to permitting, the rule does,

indeed, require (or will require)

permitting for certain recycling activities

and for storage associated with

recycling activities. Generators of 100-

1000 kg/mo of recyclable materials must

obtain a permit or interim status if all of

the following conditions are met:

(1) The material is a solid waste.

Whether or not a material qualifies as a

solid waste depends upon both what the

material is and how it is being recycled.

See § § 261.2 and 261.4(a).

(2) The solid waste is a hazardous

waste. Generally, the waste must be

listed or exhibit one of four

characteristics. See § § 261.3 and

261.4(b).

(3) The hazardous waste is not

exempt from regulation under ,261.6.

Exempted materials include industrial

ethyl alcohol that is reclaimed and scrap

metal.

(4) The non-exempt hazardous waste

is stored on-site for more than 180 days

(or 270 days if it is to be transported at

least 200 miles). See § 262.34(d).

If the solvent is stored in anticipation

of reclamation for more than 180 days,

however, the generator must obtain a

permit or interim status. See § 262.34(f).

In addition, use constituting disposal

and burning for energy recovery would

also be recycling activities requiring a

permit.

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3. Permit By Rule

Two commenters argued that

generators of 100-1000 kg/mo should be

allowed to obtain a RCRA "permit by

rule" (under § 270.62) and by-pass the

Parts 264 and 265 permitting process.

Permits by rule have been granted by

EPA to facilities already regulated and

permitted under other Federal laws,

provided that the facilities are in

compliance with their permits and other

specified requirements. For example,

ocean disposal barges or vessels are granted permits by rule under RCRA

§ 270.60(a) for ocean dumping because

those activities are already permitted

under the authority of the Marine

Protection, Research, and Sanctuaries

Act, as amended U.S.C. 1420 et seq.

The commenters are requesting EPA

to apply permits by rule in such a

manner that could effectively exempt

generators of 100-1000 kg/mo from

Federal requirements. They have

suggested that the proposed rule

requiring full Part 264 and 265 standards

for generators of 100-1000 kg/mo would

be too burdensome. One commenter

noted that a permit by rule would allow

for relief from full RCRA requirements

and thus allow for continued waste

treatment/minimization activities onsite. The second commenter explained

that 100-1000 kg/mo generators are

already regulated under State and local

environmental programs. This

commenter suggested that permits by

rule should be issued for generators of

100-1000 kg/mo who are in compliance

with "adequate State and local

environmental programs and permits."

EPA does not believe that it is

appropriate to effectively exempt these

generators from Parts 264 and 265. First

of all, Congress explicitly directed EPA

to require that wastes from these

generators be managed at Subtitle C

facilities. Second, EPA believes that

compliance with the permitting process

is essential to provide protection of

human health and the environment. EPA

disagrees that State and local regulatory

programs for generators of 100-1000 kg/

mo are sufficient to maintain proper

protection of human health and the

environment, since most State programs

do not now require that such waste be

managed at Subtitle C facilities. Of

course, States with authorized RCRA

programs may adopt equivalent (or

broader or more stringent) requirements

and administer State programs for these

generators.

4. Modifications to Part A Permit

Applications

One commenter questioned whether

requiring revisions to Part A and Part B

permits for facilities handling waste

from generators of 100-1000 kg/mo will

be too time-consuming and may delay

the implementation of the proposed rule.

EPA is aware that the rule

promulgated today will require changes

in the Part A applications for off-site

facilities that manage wastes from 100-

1000 kg/mo generators. As explained in

the preamble to the proposed rule, offsite interim status facilities managing

wastes from both fully regulated large -

quantity generators and generators of

100-1000 kg/mo may be required to

modify their Part A permit applications

under § 270.72 to account for wastes

from 100-1000 kg/mo generators if those

wastes are currently being managed as

exempt pursuant to § 261.5 and are not

currently identified on the Part A

application. Thus, facilities that receive

wastes from generators of 100-1000 kg/

mo only, which previously were not

required to fill out Part A forms under

§ 270.41 are now required to do so.

Similarly, facilities that receive wastes

from generators of 100-1000 kg as well

as large quantity generators, must

modify their permits to reflect the

wastes received from 100-1000 kg/mo

generators.

The Agency does not believe that the

proposed changes requiring facilities

receiving wastes from generators of 100-

1000 kg/mo to add new information to

Part A applicatiops or requiring facilities

to begin filing Part A applications will

be overly time-consuming. One commenter sought to clarify that

facilities that only handle hazardous

waste from generators who generate no

more than 100 kg/mo will still operate

under a blanket exemption from Part 264

and Part 265.

Under the Hazardous and Solid Waste

Amendments of 1984, generators of less

than 100 kg/mo and those treatment,

storage, or disposal facilities that serve

those generators will continue to

operate under the conditional exemption

from Part 264 and Part 265 that is

contained in in Section 261.5.

IV. Delayed Effective Dates

EPA proposed that the effective date

of the regulatory'requirements for 100-

1000 kg/mo generators be six months

from the date of promulgation of the

rules. It was also proposed that the

effective date of the Parts 264 and 265

facility standards for generators that

manage waste on-site be delayed an

additional six months: to become

effective one year from the date of

promulgation.

Of the four comments received on this

issue, one opposed any delay in

effective dates beyond March 31, 1986,

on grounds that it is one of the hammer

'provisions and would not be in the best

interest of enforcement. Another

commenter suggested a one year delay

for all of the requirements. The Agency

does not agree with either commenter.

First, the plain language of section

3001(d)(9) states that the last sentence of

section 3010(b), which allows for a less

than six month effective date under

certain circumstances, shall not apply to

standards issued under section 3001(d).

Thus, the language of the statute

appears to preclude an effective date of

less than six months. Although it is

arguable that the statute and its

legislative history indicate some intent

that the regulations become effective

immediately,5 the Agency believes that

a better reading of the statute requires a

delay in the effective date of the rules

for at least six months.

Second, the Agency believes that a six

month effective date for the generator

requirements is essential from a policy

perspective in order to allow these small

businesses to become familiar with the

hazardous waste regulations, obtain an

EPA Identification number, and find

hazardous waste transporters and

Subtitle C management facilities.

Finally, EPA has determined that the six

month effective date is consistent with

the statutory directive to promulgate

rules for these generators that attempt to

minimize the burden on small business.

Thus, EPA believes that allowing six

months for these generators to comply

with most of the provisions of the newly

applicable hazardous waste

management system is a reasonable

response to the directives of section

3001(d).-As discussed below, the Agency

does not believe, however, that a full . year is needed for compliance with rules

other than those relating to on-site

waste management.

With regard to the additional six

month delay for compliance with on-site

management standards, one commenter

supported the proposal while another

opposed it as legally unjustifiable and

not protective of public health. This

commenter asserted that the effective

5 While the Agency does not believe that the

hammer provisions in section 3001(d)(8) dictate the

content of the final rules, it is arguable that a March

31, 1986 effective date was Intended. The fact that

Congress required final rules to be promulgated by

March 31, 1986, under section 3001(d)(8), in

conjunction with a statement in the Conference

Report that the section 3010(b) six month delay in

effective dates does not apply to 3001(d)(1)

regulations (see H.R. Rep. No. 1133, 98th Cong. 2d

Sess. 101 (19841 raises some question regarding the

applicability of the six month delay of section

3010(b). Since the plain meaning of the statutory

language in section 3001[d)19) is so clear, however,

the Agency does not believe that the legislative

history should prevail.

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dates for on-site and off-site activities

should be the same.

EPA disagrees that the effective dates

for compliance must be the same for onsite and off-site management activities.

The same concerns regarding undue

burdens that would be imposed by an

immediate effective date for the full set

of regulations led the Agency to

conclude that a reasonable period of

time was necessary for on-site

compliance with Parts 264 and 265.

Generators of 100-1000 kg/mo who

engage in on-site management activities

will generally have to change their

waste management practices in more

dramatic ways than those generators

who simply ship their wastes for

management off-site. Most will modify

their current practices in one of the

following ways: (1) By adopting on-site

management practices exempt from

Parts 264 and 265, (2) by shifting to offsite management practices, or (3) by

adjusting any non-exempt on-site

practices so they comply with the full

Parts 264 and 265 facility standards. The

delayed effective date will permit these

generators to effect the necessary

changes in a safe and effective manner.

Under the final rule, 100-1000 kg/mo

generators will have an additional six

months to qualify for interim status and

come into compliance with the Part 265

interim status facility standards if they

manage their wastes on-site, as opposed

to off-site. The interim status facility

standards include a number of

requirements that call for substantial

time and investment, especially the

requirement for implementation of a

ground-water monitoring program. The

installation, operation and maintenance

of the monitoring system to determine

impact on ground-water quality includes

installation of wells, which will require

some time to be constructed. In the

meantime, there will be some protection

to health and the environment by the

need for approval by States for these

generators to manage municipal or

industrial (non-hazardous) solid waste.

Generators who manage their waste

off-site will not need this additional time

to comply with today's rule. In many

cases, their current waste management

practices will be allowed under this rule.

Even if-they must arrange for new offsite management, six'months should be

sufficient time for this transition.

Therefore, the Agency is retaining the

proposed effective dates.

V. Impact on Authorized States

A. Applicability in Authorized States

Under Section 3006 of RCRA, EPA

may authorize qualified States to

administer and enforce their own

hazardous waste programs pursuant to

Subtitle C (See 40 CFR Part 271 for the

standards and requirements for

authorization.) Following authorization,

EPA retains enforcement authority

under sections 3008, 3013 and 7003 of

RCRA, although authorized States have

primary enforcement responsibility.

Prior to the Hazardous and Solid

Waste Amendments of 1984 (HSWA), a

State with final authorization

administered its hazardous waste

program entirely in lieu of the Federal

program. The Federal requirements no

longer applied in the authorized State,

and EPA could not issue permits for any

hazardous waste management facilities

which the State was authorized to

permit. When new, more stringent

Federal requirements were promulgated

or enacted, the State was obligated to

enact equivalent authority within

specified time frames, however; the new

Federal requirements did not take effect

in an authorized State until the

requirements were adopted as State

law.

In contrast, under newly enacted

section 3006(g) of RCRA, 42 U.S.C.

6926(g), new requirements and

prohibitions imposed by the HSWA take

effect in authorized States at the same

time that they take effect in

nonauthorized States. EPA is directed to

carry out those requirements and

prohibitions in authorized States,

including the issuance of permits, until

the State is granted authorization to do

so. While States must still adopt HSWA

provisions as State law to retain final

authorization, the HSWA requirements

apply in authorized States in the interim.

Today's final rule is promulgated

pursuant to section 3001(d) of RCRA, a

provision added by HSWA. Therefore, it

is being added to Table 1 in § 271.1(j),

which identifies the Federal program

requirements that are promulgated

pursuant to HSWA and that take effect

in all States, regardless of their

authorization status. States may apply

for either interim or final status for the

HSWA provisions identified in Table 1,

as discussed in the following section of

this preamble.

B. Effect on State Authorizations

As noted above, EPA will implement

the standards in authorized States until

they revise their programs to adopt

these rules and the revisions are

approved by EPA. Because the rule is

promulgated pursuant to HSWA, a State

submitting a program modification may

apply to receive either interim or final

authorization under section 3006(g)(2) or

3006(b), respectively, on the basis of

requirements that are substantially

equivalent or equivalent to EPA's. The

procedures and schedule for State

adoption of these regulations under

section 3006(b) are described in 40 CFR

271.21 (49 FR 21678, May 22, 1984). The

same procedures should be followed for

section 3006(g)(2)'.

Applying § 271.21(e)(2), States that

have final authorization must modify

their programs within one year from the

date of today's promulgation of EPA's

regulations if only regulatory changes

are all.that are necessary, or within two

years if statutory changes are necessary.

These deadlines can be extended in

exceptional cases (40 CFR 271.21(e)(3)).

States with authorized RCRA

programs may already have

requirements similar to those in today's

rule. These State regulations have not

been assessed against the Federal

regulations being promulgated today to

determine whether they meet the tests

for authorization. Thus, a State is not

authorized to implement these

requirements in lieu of EPA until the

State program modification is approved.

Of course, States with existing

standards may continue to administer

and enforce them as a matter of State

law. In implementing the Federal

program, EPA will work with States

under cooperative agreements to

minimize duplication of efforts. In many

cases, EPA will be able to defer to

States in their efforts to implement their

programs rather than take separate

action under Federal authority.

States that submit official applications

for final authorization less than 12

months after today's promulgation of

EPA's regulations could be approved

without including standards equivalent

to those promulgated. Once authorized,

however, a State must modify its

program to include standards

substantially equivalent or equivalent to

EPA's within the time period discussed

above.

VI. CERCLA Impacts

Today's final rule does not change

existing CERCLA requirements relating

to releases of reportable quantifies of

CERCLA hazardous substances.

Whenever a hazardous waste or waste

stream is: listed under section 3001 of

RCRA, it automatically becomes a

hazardous substance under section

101(14) of the Comprehensive

Environmental Response, Compensation

and Liability Act of 1980 (CERCLA).

Section 103 of CERCLA requires that

persons in charge of vessels or facilities

from which hazardous substances. have

been released in quantities that are

equal to or greater than the repoftable

quantities (RQs) immediately notify the

National Reponse Center (NRC] (at (800)

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424-8802 or (202) 426-2675) of the

release. (See 50 FR 13456-13522, April 4,

1985).

The term "hazardous substance"

includes all substances designated in

§ 302.4(a) of the April 4, 1985 final rule

(50 FR 13474), as well as unlisted

hazardous wastes exhibiting the RCRA

characteristics of ignitability,

corrosivity, reactivity, and extraction

procedure toxicity. (See § 302.4(b) of the

April 4, 1985 final rule.)

All persons who release a reportable

quantity of a CERCLA hazardous

substance into the environment,

including small quantity generators, are -

subject to notification provisions of

section 103 of CERCLA (see 40 CFR

302.6(a) and (b)). However, as stated in

CERCLA section 103(f)(1), no

notification shall be required under

CERCLA sections 103(a) and (b for any.

release of a hazardous substance which

is required to be reported (or specifically

exempted from a requirement for

reporting) under subtitle C of the Solid

Waste Disposal Act or regulations

thereunder and which has been reported

to the National Response Center (NRC).

VII. Executive Order 12291-Regulatory

Impact

Executive Order 12291 (46 FR 13193,

February 9, 1981) requires that a

regulatory agency determine whether a

new regulation will be "major" and if so,

that a Regulatory Impact Analysis be

conducted.

The Administrator has determined

that today's final rule is not a major rule,

because it has total estimated costs of

less than $100 million per year, and has

no significant adverse economic effects.

These conclusions, are based on an

economic analysis of today's proposal.

This analysis involved developing cost

estimates of both current waste

management practices used by 100-1000

kg/mo generators and practices required

by today's final rule. Some of these

estimates were were firm-specific and others waste stream-specific. These costs

were used along with estimates of the

changes in waste management practices

likely to result from today's final rule to

estimate the annual incremental

compliance costs to 100-1000 kg/mo

generators ($46.9 milllion). These costs

were added to the estimated

government costs of implementing the

regulation of $12 million for a total

social cost of $58.9 million.

A. Estimates of Per Firm Costs

1. Part 262 G6nerator Standards

The estimated incremental

compliance costs attributable to Part 262

requirements can be divided into an

initial, one-time, cost of $2267 per firm,

and an annual recurring cost of $222 per

firm. These costs will be incurred by all

100-100O kg/mo generators that would

be subject to the requirements of today's

regulation with two exceptionsgenerators disposing of their wastes by

sending them to POTW's and generators

that have their waste reclaimed under

certain contractural agreements.

Generators sending wastes to POTW's

will incur no Part 262 related costs as a

result of the regulation (unless the waste

is accumulated prior to discharge; see

3.a. of this Unit). Generators using

reclamation agreements would incur a

cost of $1694 initially and no annual

costs.

2. Transportation Costs

Under today's rule, generators of 100-

1000 kg/mo will be required to either

contract with an authorized hazardous

waste transporter or haul the hazardous

waste to a hazardous waste

management facility that has a permit

from the Agency or an authorized State,

or is in interim status. Incremental

transport costs depend on current

generator practices, the distance which

wastes are transported, the quantity of

wastes transported, and the number of

times wastes are loaded and transported

each year.

In many cases, there will be no

incremental transportation costs due to

these regulations because current waste

management practices involve waste

transportation. Where this is not the

case, average incremental costs that

would be imposed on 100-1000 kg/mo

generators for the transportation of their

hazardous waste are estimated. to be

between $838 per year (for generators

that ship 600 kg of waste a short

distance twice yearly) and $1882 per

year (for generators that ship 6000 kg of

waste a longer distance twice yearly).

3. Tieatment, Storage and Disposal

Costs

a. On-Site Accumulation: Under

today's final rule, generators of 100-1000

kg/mo would be allowed to store

hazardous waste on-site without a

permit or interim status for up to 180

days, or for up to 270 days if the waste

is to be shipped over 200 miles.

Generators of 100-1000 kg/mo who

store hazardous waste on-site, within

the 180-day (or 270-day) period specified

under the provisions of the storage

exemption, will have to comply with

Part 265, Subpart C (Preparedness and

Prevention), a reduced set of

requirements in Subpart D (Contingency

Plan and Emergency Procedures), and

limited requirements for personnel

training (Section 265.16 of Subpart B),

The incremental compliance costs for

I facilities that choose this management

option are divided into an initial start-up

cost of $1447 and an annual cost of $53.

Generators that store hazardous

waste on-site within the 180-day (or 270-

day) period may also incur costs related

to storage container (Subpart I) and

storage tank (Subpart J) requirements.

The incremental costs for these

requirements depend on a number of

factors, including the current practices

of the generator, the generator's storage

capacity, and the composition of the

hazardous waste being stored. The

range of incremental costs, as a result, is

fairly large. For container storage, initial

incremental costs range from practically

zero to $1854 and annual costs range

from $404 to $447. The corresponding

incremental cost estimates for the

existing rules for tanks are $155 for

initial costs, and $770 for annual costs.

b. Treatment and Disposal: After

analyzing the cost of on-site treatment

and disposal for 100-1000 kg/mo

generators relative to off-site costs, the

Agency has determined that in nearly all

cases, the least expensive hazardous

waste management alternatives

available to-these generators involve

off-site activities. The small quantities of

waste generated by these

establishments simply do not permit

them to operate expensive on-site

management facilities on an

economically efficient basis. The costs

of off-site commergial treatment and

disposal upon which this conclusion is

based are derived from a composite of

various existing sources of data on

commercial waste management prices.

They range from $150 to $250 per metric

ton (for secure landfills) to $200 to $1200

per metric ton (for either treatment or

incineration), depending on the

characteristics of the wastes.

B. Estimates of Nationwide Incremental

Cost Burden on Generators of 100-1000

kg/mo

The aggregate costs for today's rule

were developed by comparing the costs

of current (baseline) management

practices with hazardous waste'

management practices which are

required by the rule. The Agency has

determined, based on this analysis, that

the annual incremental compliance cost

for this proposal would be

approximately $46.9 million.

On a per metric ton basis, the average

incremental compliance cost over all

wastes is about $180. Because of

differences in baseline practices, and,

hence, the cost of compliance, the

incremental costs vary substantially

among different wastes. In fact, the

baseline method of waste management

by these generators is adequate to

comply with the regulations in many

cases. Others will have to change waste

management practices in order to

comply. Much of the $46.9 million in

compliance cost, is focused on a few

types of wastes (spent solvents dry

cleaning filtration residues, acids, and

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alkalies, and ignitable was.tes) that

constitute a large proportion of the

wastes generated by these generators.

C. Estimates of the Economic Impacts of

Today's Final Rule

An analysis of the effects of

compliance costs on the sales and

profitability of 289 model plants

indicates that in over 80 percent of

plants the incremental costs are less

than 10 percent of profits. A few of the

plants, particularly in service industries.

show incremental costs of greater than

10 percent of profits. Nearly three

quarters of the models most affected by

the proposal have annual revenues of

less than $500,000. Some of these

establishments Are low profit or

nonprofit by design, such as public or

private golf courses, hospitals, and other

public institutions.

Only six plants have incremental

compliance costs which exceed 1

percent of sales and 25 percent of

profits. For each of these model plants, a

more detailed evaluation was conducted

to deternine whether these plants

would be likely to close. This analysis

indicated that plant closings as a result

of this regulation would be unlikely.

VIII. Regulatory Flexibility Act

The Regulatory Flexibility Act (5

U.S.C. 601 et seq.), requires the Agency

to evaluate the impacts of regulations on

small businesses, small organizations

and small governmental jurisdictions.

The Regulatory Impact Analysis for

today's final rule includes such an

evaluation. The Administrator has

determined that this regulation will not

have a significant impact on a

substantial number of small firms.

Today's proposed regulations are

expected to primarily affect small firms.

Therfore, the Regulatory Flexibility Act

requirement concerning effects on small

businesses is addressed to a large

extent by the overall economic analysis

performed in conjunction with this

rulemaking.

Throughout the development of

today's final rule, the Agency's goal has

been promulgation of requirements that

would be the least burdensome to small

businesses and also meet the

Congressional mandate of protecting

human health and the environment. In

our effort to design regulations that

would meet this goal, we have worked

closely with small business

organizations, trade associations, State

and local governments, EPA's Small

Business Ombudsman in the Office of

Small and Disadvantaged Business

Utilization, and the Federal Small

Business Administration to assess the

needs and capabilities of small

businesses. EPA believes that this rule is

a balanced approach to regulating

hazardous waste from these generators

while considering their small business

nature.

For purposes of this analysis, "small

entities" were defined as firms

comprised of fewer than 50 employees

for all of the sectors except

manufa6turing (<100 employees). In

many cases, these classifications are

approximations because the Small

Business Administration establishes size

standards in terms of sales levels, and

the size standards vary within sectors.

For example, most small entity size

standards for manufacturing industries

range between 500 and 1000 employees.

The results of this analysis indicate

that less than 10 percent of small

entities within the impacted industries

will be affected by the regulations. Most

small businesses will not be affected by

these regulations because they: 1) Do

not generate hazardous waste, 2)

generate less than 100 kg/mo, or 3)

generate over 1000 kg/mo and are

already subject to hazardous waste

regulations.

Even though only a relatively small

percentage of potentially affected small

businesses will probably be affected,

the more important issue to analyze is

whether or not a large number of those

which are affected will be severely

impacted. Three commonly accepted

tests were used to measure whether or

not businesses would be severely

impacted:

(1) Annual compliance costs will

increase the relevant production costs

for small entities by more than five

percent;

(2) Capital costs of compliance will

represent a significant portion of the

capital available to small entities,

(3) The costs of the regulation will

likely result in closure of small entities.

To analyze the significance of

compliance costs on small businesses,

data were developed for 25 different

types and sizes of model plants

representing those most likely to be

severely impacted by the proposed

regulations. Compliance costs were

computed for-these model plants based

on the economic analysis described in

the previous section of this preamble.

In general, these regulations will not

cause significant impacts on small firms.

None of the model plants established for

this analysis show cost increases of

more than five percent as a direct result

of compliance costs. The regulations

require no significant capital outlays

and ihus should not affect capital

requirements or availability. Even the

most severely impacted model plants

would not close under the assumptions

of this exercise and would continue to

operate at a profit.

In summary, it appears that the impact

on small firms will not cause a

significant number of hardships. There

will be isolated cases, involving on-site

management or transportation over long

distances, where compliance costs'for

some individual firms may be severe. In

the case of on-site management,

however, the Agency believes that most

100-1000 kg/mo generators will switch

to off-site practices rather than face the

high costs of obtaining interim status or

a permit. Furthermore, approximately 70

percent of these generators are in

metropolitan areas, and would thus be

able to reduce transportation costs by

allowing transporters to consolidate

shipments by picking up waste from

more than one generator at a time.

IX. Paperwork Reduction Act

The information collection

requirements contained in this rule have

been approved by the Office of

Management and Budget (OMB) under

the Paperwork Reduction Act of 1980, 44

U.S.C. 3501 et seq., and have been

assigned OMB control numbers 2050-

0028 (Notification) and 2050-0039

(Manifest).

List of Subjects

40 CFR Part 261

Intergovernmental relations,

Hazardous materials, Waste treatment

and disposal, Recycling.

40 CFR Part 262

Intergovernmental relations,

Hazardous materials, Labeling,

Packaging and containers, Reporting

requirements, Waste treatment and

disposal.

40 CFR Part 263

Intergovernmental relations,

Hazardous materials transportation,

Waste treatment and disposal.

40 CFR Part 270

Administrative practice and

procedure, Confidential business

information, Hazardous materials

transportation, Hazardous waste,

Reporting and recordkeeping

requirements, Water pollution control,

Water supply.

.40 CFI:I Part 271

Administrative practice and

procedure, Confidential business

information, Hazardous materials

transportation, Hazardous waste, Indian

lands, Intergovernmental relations,

Penalties, Reporting and recordkeeping

requirements, Water pollution control,

Water supply.

Dated: March 14, 1986.,

Lee M. Thomas,

A dministrator.

For the reasons set out in the

preamble, Title 40 of the Code of Federal

Regulations is amended, as follows:

10173

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PART 260-HAZARDOUS WASTE

MANAGEMENT SYSTEM: GENERAL

1. The authority citation for Part 260

continues to read as follows:

Authority: Secs. 1006, 2002(a), 3001 through

3007, 3010, 3014, 3015, 3017, 3018, 3019, and

7004, Solid Waste Disposal Act, as amended

by the Resource Conservation and Recovery

Act of 1976, as amended (42 U.S.C. 6905,

6912(a), 6921 through 6927, 6930, 6934, 6935,

6937, 6938, 6939, and 6974).

2. Section 260.10 is amended by

adding a new definition, alphabetically,

as follows:

§ 260.10 Definitions. *k * * * *

"Small Quantity Generator" means a

generator who generates less than 1000

kg of hazardous waste in a calendar

month.

PART 261-IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

3. The authority citation for Part 261

continues to read as follows:

Authority: Secs. 1006, 2002(a), 3001, and

3002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and

Recovery Act of 1976, as amended (42 U.S.C.

6905, 6912(a), 6921, and 6922).

4. Section 261.1 is amended by

revising paragraph (a)(1) to read as

follows:

§ 261.1 Purpose and scope.

(a) * * *

(1) Subpart A defines the terms "solid

waste" and "hazardous waste",

identifies those wastes which are

excluded from regulation under Parts

262 through 266 and 270 and establishes

special management requirements for

hazardous waste produced by

conditionally exempt small quantity

generators and hazardous waste which

is recycled. • * * * *

5. Section 261.5, is revised to read as

followg:

§ 261.5 Special requirements for

hazardous waste generated by

conditionally exempt small quantity

generators.

(a) A generator is a conditionally

exempt small quantity generator in a

calendar month if he generates no more

than 100 kilograms of hazardous waste

in that month.

(b) Except for those wastes identified

in paragraphs (e), (0, (g), and (j) of this

section, a conditionally exempt small

quantity generator's hazardous wastes

are not subject to regulation under Parts

262 through 266 and Parts 270 and 124 of

this chapter, and the notification

requirements of Section 3010 of RCRA,

provided the generator complies with

the requirements of paragraphs (f), (g),

and (j) of this section.

(c) Hazardous waste that is not

subject to regulation or that is subject

only to § 262.11, § 262.12, § 262.40(c),

and § 262.41 is not included in the

quantity determinations of this Part and

Parts 262 through 266 and 270 and is not

subject to any of the requirements of

those Parts. Hazardous waste that is

subject to the requirements of § 261.6 (b)

and (c) and Subparts C, D, and F of Part

266 is included in the quantity

determination of this Part and is subject

to the requirements of Parts 262 through

266 and 270.

(d) In determining the quantity of

hazardous waste generated, a generator

need not include:

(1) Hazardous waste when it is

removed from on-site storage; or

(2) Hazardous waste produced by onsite treatment (including reclamation) of

his hazardous waste, so long as the

hazardous waste that is treated was

counted once; or (3) Spent materials that are generated,

reclaimed, and subsequently reused onsite, so long as such spent materials

have been counted once.

(e) If a generator generates acute

hazardous waste in a calendar month in

quantities greater than set forth below,

all quantities of that acute hazardous

waste are subject to full regulation

under Parts 262 through 266 and Parts

270 and 124 of this chapter, and the*

notification requirements of section 3010

of RCRA:

(1) A total of one kilogram of acute

hazardous wastes listed in §§ 261.31,

261.32, or 261.33(e).

(2) A total of 100 kilograms of any

residue or contaminated soil, waste, or

other debris resulting from the clean-up

of a spill, into or on any land or water,

of any acute hazardous wastes listed in

§§ 261.31, 261.32, or 261.33(e).

(f) In order for acute hazardous

wastes generated by a generator of

acute hazardous wastes in quantities

equal to or less than those set forth in

paragraph (e)(1)-or (e)(2) of this section

to be excluded from full regulation

under this section, the generator must

comply with the following requirements:

(1) Section 262.11 of this chapter;

(2) The generator may accumulate

acute hazardous waste on-site. If he

accumulates at any time acute

hazardous wastes in quantities greater

than those set forth in paragraph (e)(1)

or (e)(2) of this se6tion, all of those

accumulated wastes are subject to

regulation under Parts 262 through 266

and Parts 270 and 124 of this chapter,

and the applicable notification

requirements of section 3010 of RCRA.

The time period of § 262.34(d) for

accumulation of wastes on-site begins

when the accumulated wastes exceed

the applicable exclusion limit;

(3] A conditionally exempt small

quantity generator may either treat or

dispose of his acute hazardous waste in

an on-site facility, or ensure delivery to

an off-site storage, treatment or disposal

facility, either of which is:

(i) Permitted under Part 270 of this

chapter;

(fi) In interim status under Parts 270

and 265 of this chapter;

(iii) Authorized to manage hazardous

waste by a State with a hazardous

waste management program approved

under Part 271 of this chapter;

(iv) Permitted, licensed, or registered

by a State to manage municipal or

industrial solid waste; or

(v) A facility which:

(A) Beneficially uses or reuses, or

legitimately recycles or reclaims its

waste; or

(B) Treats its waste prior to beneficial

use or reuse, or legitimate recycling or

reclamation.

(g) In order for hazardous waste

generated by a conditionally exempt

small quantity generator in quantities of

less than 100 kilograms of hazardous

waste during a calendar month to be

excluded from full regulation under this

section, the generator must comply with

the following requirements:

(1) Section 262.11 of this chapter;

(2) The conditionally exempt small

quantity generator may accumulate

hazardous waste on-site. If he

accumulates at any time more than a

total of 1000 kilograms of his hazardous

wastes, all of those accumulated wastes

are subject to regulation under the

special provisions of Part 262 applicable

to generators of between 100 kg and

1000 kg of hazardous waste in a

calendar month as well as the

requirements of Parts 263 through 266

and Parts 270 and 124 of this chapter,

and the applicable notification

requirements of section 3010 of RCRA.

The time period of § 262.34(d) for

accumulation of wastes on-site begins

for a conditionally exempt small

quantity generator when the

accumulated wastes exceed 1000

kilograms;

(3) A conditionally exempt small

quantity generator may either treat or

dispose of his hazardous waste in an onsite facility, or ensure delivery to an offsite storage, treatment, or disposal

facility, either of which is:

(i) Permitted under Part 270 of this

chapter;

(ii) In interim status under Parts 270

and 265 of this chapter;

(iii) Authorized to manage hazardous

waste by a State with a hazardous

waste management programapproved

under Part 271 of this chapter

(iv) Permitted, licensed, or registered

by a State to manage municipal or

industrial solid waste; or

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(v) A facility which:

(A) Beneficially uses or reuses, or

legitimately recycles or reclaims its

waste; or

(B) Treats its waste prior to beneficial

use or reuse, or legitimate recycling or

reclamation.

(h) Hazardous waste subject to the

reduced requirements of this section

may be mixed with non-hazardous

waste and remain subject to these

reduced requirements even though the

resultant mixture exceeds the quantity

limitations identified in this section,

unless the mixture meets any of the

characteristics of hazardous waste

identified in Subpart C.

(i) If any person mixes a solid waste

with a hazardous waste that exceeds a

quantity exclusion level of this section,

the mixture is subject to full regulation.

(j) If a conditionally exempt small

quantity generator's wastes are mixed

with used oil, the mixture is subject to

Subpart E of Part 266 of this chapter if it

is.destined to be burned for energy

recovery. Any material produced from

such a mixture by processing, blending,

or other treatment is also so regulated if

it is destined to be burned for energy

recovery.

6. In Section 261.33 the introductory

text of paragraph (f) is revised to read as

follows:

§ 261.33 Discarded commercial chemical

products, off-specification species,

container residues, and spill residues thereof

(f) The commercial chemical products,

manfacturing chemical intermediates, or

off-specification commercial chemical

products referred to in paragraphs (a)

through (d) of this section, are identified

as toxic wastes (T), unless otherwise

designated and are subject to the small

quantity generator exclusion defined in

§ 261.5 (a) and (g).

PART 262-STANDARDS APPLICABLE

TO GENERATORS OF HAZARDOUS

WASTE

7. The authority citation for Part 262

continues to read as folloOvs:

Authority: Secs. 1006, 2002(a), 3002, 3003,

3004, and 3017 of the Solid Waste Disposal Act, as amended by the Resource

Conservation and Recovery Act of 1976, as

amended (42 U.S.C. 6906, 6912(a), 6922, 6923,

6924, 6925, and 6937).

8. Section 262.20 is amended by

adding new paragraph (e) to read as

follows:

§ 262.20 General requirements.

(e) The requirements of this Subpart

do not apply to hazardous waste

produced by generators of greater than

100 kg but less than 1000 kg in a

calendar month where:

(1) The waste is reclaimed under a

contractual agreement pursuant to

which:

(i) The type ol waste and frequency of

shipments are specified in the

agreement;

(ii) The vehicle used to transport the

waste to the recycling facility and to

deliver regenerated material back to the

generator is owned and operated by the

reclaimer of the waste; and

(2) The generator maintains a copy of

the reclamation agreement in his files

for a period of at least three years after

termination or expiration of the

agreement.

9. Section 262.34 is amended by

revising the introductory text to

paragraph (a) and by adding new

paragraphs (d), (e), and (f).

§ 262.34 Accumulation time.

(a) Except as provided in paragraphs"

(d), (e), and (f) of this section, a

generator may accumulate hazardous

waste on-site for 90 days or less without

a permit or without having interim

status provided that:

(d) A generator who generates greater

than 100 kilograms but less than 1000

kilograms of hazardous waste in a

calendar month may accumulate

hazardous waste on-site for 180 days or

less without a permit or without having

interim status provided that:

(1) The quantity of waste accumulated

on-site never exceeds 6000 kilograms;

(2) The generator complies with the

requirements of paragraph (a)(1) except

the generator need not comply with

§ 265.176.

(3) The generator complies with the

requirements of paragraphs (a)(2) and

(a)(3) of this section and the

requirements of Subpart C of Part 265;

and

(4) The generator complies with the

following-requirements:

(i) At all times there must be at least

one employee either on the premises or

on call (i.e., available to respond to an

emergency by reaching the facility

within a short period of time) with the

responsibility for coordinating all

emergency response measures specified

in paragraph (d)(3)(iv) of this section.

This employee is the emergency

coordinator.

(ii) The generator must post the

following inforination next to the

telephone:

(A) The name and telephone number

of the emergency coordinator;

(B) Location of fire extinguishers and

spill control material, and, if present,

fire alarm; and

(C) The telephone number of the fire

department, unless the facility has a

direct alarm.

(iii) The generator must ensure that all

employees are thoroughly familiar with

proper waste handling and emergency

procedures, relevant to their

responsibilities during normal facility

operations and emergencies;

(iv) The emergency coordinator or his

designee must respond to any

emergencies that arise. The applicable

responses are as follows:

(A) In the event of a fire, call the fire

department or attempt to extinguish it

using a fire extinguisher;

(B) In the event of a spill, contain the

flow of hazardous waste to the extent

possible, and as soon as is practicable,

clean up the hazardous waste and any

contaminated materials or soil;

(C) In the event of a fire, explosion, or

other release which could threaten

human health outside the facility or

when the generator has knowledge that

a spill has reached surface water, the

generator must immediately notify the

National Response Center (using their

24-hour toll free number 800/424--8802).

The report must include the following

information:

(1) The name, address, and U.S. EPA

Identification Number of the generator;

(2) Date, time, and type of incident

(e.g., spill or fire);

(3) Quantity and type of hazardous

waste involved-in the incident;

(4) Extent of injuries,,if any; and

(5) Estimated.quantity and disposition

of recovered materials, if any.

(e) A generator who generates greater

than 100 kilograms but less than 1000

kilograms of hazardous waste in a

calendar month and who must transport

his waste, or offer his waste for

transportation, over 'a distance of 200

miles or more for off-site treatment,

storage or disposal may accumulate

hazardous waste on-site for 270 days or

less without a permit or without having

interim status provided that he complies

with the requirements of paragraph (d)

of this section.

(f) A generator who generates greater

than 100 kilograms but less than 1000

kilograms of hazardous waste in a

calendar month and who accumulates

hazardous waste in quantities exceeding

6000 kg or accumtlates hazardous waste

for more than 180 days (or for more than

270 days if he must transport his waste,

or offer his waste for transportation,

over a distance of 200 miles or more) is

an operator of a storage facility and is

subject to the requirements of 40 CFR

10175

HeinOnline -- 51 Fed. Reg. 10175 1986
10176 Federal Register / Vol. 51, No. 56 / Monday, March 24, 1986 / Rules and Regulations

Parts 264 and 265 and the permit

requirements of 40 CFR Part 270 unless

he has been granted an extension to the

180-day (or 270-day if applicable) period.

Such extension may be granted by EPA

if hazardous wastes must remain on-site

for longer than 180 days (or 270 days if

applicable) due to unforeseen,

temporary, and uncontrollable

circumstances. An extension of up to 30

days may be granted at the discretion of

the Regional Administrator on a caseby-case basis.

10. In Subpart D of Part 262, add the

following new § 262.44:

Subpart D-Recordkeeping and

Reporting

* * . * .

§ 262.44 Special Requirements for

Generators of between 100 and 1000 kg/

mo.

A generator who generates greater

than 100 kilograms but less than 1000

kilograms of hazardous waste in a

calendar month is exempt from the

requirements of this subpart, except for

the recordkeeping requirements in

paragraphs (a), (c), and (d) in § 262.40

and the requirements of § 262.43.

PART 263-STANDARDS APPLICABLE

TO TRANSPORTERS OF HAZARDOUS

WASTE

11. The authority citation for Part 263

continues to read as follows:

Authority: Sections 2002(a), 3002, 3003,

3004, and 3005 of the Solid Waste Disposal

Act as amended by the Resource

Conservation and Recovery Act of 1976 and

as amended by the Quiet Communities Act of

1978 (42 U.S.C. 6912(a), 6922, 6923, 6924, and

6925).

12. In § 263.20, paragraph (h) is added

to read as follows:

§ 263.20 The manifest system. * * * * *

(h) A transporter transporting

hazardous waste from a generator who

generates greater than 100 kilograms but

less than 1000 kilograms of hazardous

waste in a calendar month need not

comply with the requirements of this

section or those of § 263.22 provided

that:

(1) The waste is being transported

pursuant to a reclamation agreement as

provided for in § 262.20(e);

(2) The transporter records, on a log or

shipping paper, the following

information for each shipment:

fi) The name, address, and U.S. EPA

Identification Number of the generator

of the waste;

(ii) The quantity of waste accepted;

(iii) All DOT-required shipping

information;

(iv) The date the waste is accepted;

and

. (3) The transporter carries this record

when transporting waste to the

reclamation facility; and

(4) The transporter retains these

records for a period of at least three

years after termination or expiration of

the agreement.

PART 270-EPA ADMINISTERED

PERMIT PROGRAMS: THE

HAZARDOUS WASTE PERMIT

PROGRAM

13. The authority citation for Part 270

continues to read as follows:

Authority: Secs. 1006, 2002, 3005, 3007, 3019,

and 7004 of the Solid Waste Disposal Act, as amended by the Resource Conservation and

Recovery Act of 1976, as amended (42 U.S.C.

6905, 6912, 6925, 6927, 6939, and 6974).

14. Section 270.1 is amended by

revising paragraph (c)(2)(i) to read as

follows:

§ 270.1 Purpose and scope of these

regulations.

(c) * * *

(2) * * *

(i) Generators who accumulate

hazardous waste on-site for less than

the time periods provided in 40 CFR

262.34.

15. Section 270.10 is amended by

adding paragraph (e)(1)(iii) to read as

follows:

§ 270.10 General application

requirements.

]* * ***

(e)* * *

(1) * *

(iii) For generators generating greater

than.100 kilograms but less than 1000

kilograms of hazardous waste in a

calendar month and treats, stores, or

disposes of these wastes on-site, by

March 24, 1987. a * * * *

PART 271-REQUIREMENTS FOR

AUTHORIZATION OF STATE

HAZARDOUS WASTE PROGRAMS

16. The authority citation for Part 271

continues to read as follows:

Authority: Secs. 1006, 2002(a), and 3006 of

the Solid Waste Disposal Act, as amended by

the Resource Conservation and Recovery Act

of 1976, as amended (42 U.S.C. 6905, 6912(a),

and 6926).

17. Section 271.1(j) is amended by

adding the following entry to Table I in

chronological order by date of

publication:

§ 271.1 Purpose and scope. * * * * a

TABLE 1.-REGULATIONS IMPLEMENTING THE

HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Date Title of Regulation Federal Register

reference

Mar, 24, 1986 . Regulations for 51 FR [insert

Generators of page number] 100-1000 kg/mo of Hazardous

Waste.

[FR Doc. 86-6224 Filed 3-21-86; 8:45 am]

BILLING CODE 6560-50-M

HeinOnline -- 51 Fed. Reg. 10176 1986