DRAFT Internal Report Provided for Peer Review 12/20/2010



## Preliminary Draft Definition of Solid Waste Final Rule Environm ental Justice Analysis



## Peer Review D raft Do not Cite or Distribute

December 20 , 2010

Office of Solid Waste and Emergency Response U.S. Environmental Protection Agency 1200 Pennsylvania Avenue Washington D.C. 20460DRAFT Internal Report Provided for Peer Review 12/20/2010

i



### Executive Summary In October 2008, EPA published the Definition of Solid Waste (DSW) final rule which, among other things, sought to increase the levels of hazardous secondary materials recycling. 1 Recycling hazardous secondary m aterials fulfills two goals of the Resource Conservation and Recovery Act (RCRA) by

reducing the consumption of raw materials and by reducing the volume of waste materials that must be treated and disposed . Recycling can mean less air, water, and soil pollution caused by extracti n g , refining, and processing of raw materials. However, the goals of resource conservation and waste reduction must never occur at the expense of one of the other fundamental goal of RCRA: protecting human health and the environment from hazardous waste management. The 2008 DSW final rule revised the definition of solid waste under RCRA for certain types of hazardous secondary

materials being recycled. The hazardous secondary materials recycled under the DSW final rule would no longer be regulated as hazardous waste, as long as certain conditions were met. The intended effect of the DSW rule was to encourage safe recycling of hazardous secondary

material and answer long

- standing questions about the RCRA definition of solid waste

. In January

2009, the Sierra Club submitted an administrative petition requesting EPA revoke the DSW rule. The petition raised a number of issues questioning the protectiveness of the rule, particularl y for minority and low

- income communities. In June 2009, EPA held a public meeting asking for comment on the issues raised in the petition. Many of the commenters echoed Sierra Club’s concern about potential disproportionate impacts to minority and low

- income communities from the rule, and the adequacy of EPA’s anal ys is of the potential for these impacts under the 2008 DSW final rule. Under the 2008 DSW final rule, EPA determined that the conditions of the rule would prevent any increase in risk, and therefore there would be no disproportionate adverse impa cts to minority or low

- income communities. However, the 2008 anal ys is did not take into account whether the conditions of the rule would operate as effectivel y in the real world as the more detailed requirements of the RCRA hazardous waste regulations. In response to comments by Sierra Club and other stakeholders, EPA committed to producing an expanded anal ys is of the potential disproportionate impacts of the 2008 DSW final rule. A draft methodology

for the analy sis was shared with the public in January 2010, and three public roundtable discussions were held to discuss the draft methodology

. 2 EPA considered the comments raised in those discussions and conducted the new anal ys is. The methodology

for the DSW environmental justice analy sis consists of s ix steps:

1 A hazardous secondary material is any material that would be a hazardous waste if discarded. 2 U.S. EPA. Draft Environmental Justice Methodology for the Definition of Solid Waste Rule, January 2010, http://www.epa.gov/epawaste/hazard/dsw/ej.htmDRAFT Internal Report Provided for Peer Review 12/20/2010

ii Summary of DSW EJ Methodology Step 1: Hazard characterization Includes two phases: (1) identifying potential hazards that could pose risks to human health and the environment from the recycling of hazardous secondary materials, including accidental releases of hazardous constituents and (2) analyzing the likelihood of such hazards occurring under the requirements of the DSW exclusions as compared to the pre

- 2008 DSW hazardous waste regulations. Step 2: Identification of potentially affected communities Modeling the locations of facilities (including potential new facilities) that are likely to choose to take advantage of the 2008 DSW final rule. Step 3: Demographics of potentially affected communities Mapping the location of the facilitie s modeled in Step 2 and i dentifying the demographics (e.g ., minority population and income level) of the surrounding communities. Step 4: Identifying other factors that affect vulnerability in potentially affected communities Identifying important vulnerability factors. These include factors that may increase the likelihood of “damages , ” the likelihood that a facility is sited within a community, or the likelihood of health risks in the event of releases. Examples include the presence of other pollution sources and any information about the public health of the surrounding population. Step 5: Information synthesis: assessment of disproportional impact Synthesizing all the information to characterize whether the DSW rule will facilitate the occurrence of any adverse impacts and whether some population groups (e.g., minority or low income populations) would be overrepresented in the impacted communities. Step 6: Identification of potential preventive and mitigation strategies Identifying potential strategies to prevent non

- com pliance and releases to the environment and also strategies to mitigate any impacts identified under step 5. The draft results of this expanded environmental justice anal ys is of the DSW rule are summarized below. The next st eps for the anal ys is include conducting a peer review and revising the draft anal ys is in order to support a new proposal on the DSW rule that addresses the issues raised b y the Sierra Club petition. The new proposal is scheduled to be signed b y June 2011. Finding 1: Hazardous Secondary Material Recycling Does Pose Significant Potential Hazards The first step of the DSW environmental justice anal ys is methodology is hazard characterization, which includes both identifying the potential hazards that discarded hazardous secondary materials recycling could pose to human health and the environment, and evaluating the likelihood of such hazards resulting in increased risk under the 2008 DSW final rule. Hazardous secondary

materials sent to recycling are phy sic all y and chemically similar, if not identical , to many

of the hazardous wastes sent for treatment and disposal. The most commonly recycled hazardous secondary materials are spent solvents and electric arc furnace dust (which is recycled to reclaim metals ). Spent solvents present particular management challenges associated with storage of liquids containing volatile organic chemicals and include both halogenated and non - halogenated organic chemicals, which represent a broad range of chemicals and associate d hazards. Electric arc furnace dust is usually in a solid state and presents a different managementDRAFT Internal Report Provided for Peer Review 12/20/2010

iii

challenges, including storage in waste piles and the potential for wind

- blown dust, and can contain high concentrations of toxic metals. These two cla sses of hazardous secondary materials (as well as other hazardous secondary materials that are recycled) can pose risks via a wide variety of exposure routes and include a range of potential adverse health effects, both carcinogenic and non

- carcinogenic, and a potential for acute impacts such as fire and explosions for certain ty pes of hazardous secondary materials, such as solvents. The second part of the hazard characterization step

—determining whether these hazards could result in increased risk to hum an health and the environment

—is a complex issue because of the interactions between how the regulations are written and how they are implemented. Under the 2008 DSW final rule, EPA presumed that the conditions of the rule would prevent any increase in risk. In particular, the condition that the hazardous secondary materials be “contained” was intended to address this issue, because if the material is not released to the environment, then there would be no increased exposure, and therefore no increased risk. However, what the 2008 anal ys is failed to take into account was whether the conditions of the rule

—including the “contained” standard

— would operate as effectivel y i n the real world as the more detailed requirements of the RCRA hazardous waste regulations. One of the most common criticisms of the January

2010 draft environmental justice methodology was that it glossed over some of the important protections of the hazardous waste regulations, particularl y public participation requirements, which wer e not considered under the 2008 DSW final rule. A more detailed comparative anal ys is of the regulatory requirements under the 2008 DSW final rule with the hazardous waste regulations reveals potentially significant gaps in environmental protection under the 2008 DSW final rule, particular the absence of measures to ensure compliance, incentives to accumulate larger volumes of hazardous secondary materials, and reduction in access to information and the opportunity for public participation. The specific gaps vary depending on the baseline scenario and the post

- DSW scenario being considered, and in some cases, there is also a potential for increased benefits, primarily from resource conservation and from reduced transportation distances. 3

3 By reporting the potential for increased benefits under certain scenarios, EPA does not intend to imply that such benefits could justify increased risk to human health and the environment from discarded hazardous secondary material. Promoting resource conservation and recovery is a major goal of RCRA, but this goal does not supersede the mandate to assure that hazardous waste management practices are protective of human health and the environme nt
.DRAFT Internal Report Provided for Peer Review 12/20/2010

iv Summary of Po tential Impacts the 2008 DSW Final Rule

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

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

permitted facility under hazardous waste regulations Generator sends material offsite for rec ycling at a RCRA

- permitted facility under transfer

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

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

- based exclusion for rec ycling in another country Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures. No change in risk at rec ycling facility

. Scenario 2 : Generator switches from off
- site disposal to on
- site recycling Generator sends material offsite to a RCRA permitted facility for treatment followed by landfilling under hazardous waste regulation s Generator rec ycles material onsite under generator
- controlled exclusion Potential i ncreased risk to human health and the environment at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures Potential r ed uced transportation risk due to switch from off

- site disposal to on - site recycling Potential r educed risk in communities surrounding existing off

- site treatment/disposal facilities

. Potential increased resource conservation benefits due to switch from disposal to recycling and reduction of miles traveled.DRAFT Internal Report Provided for Peer Review 12/20/2010

v Hazardous Waste Baseline DSW Practices Summary of Potential Impacts

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

- site recycling under the control of the generator Generator sends material offsite to a RCRA permitted facility for treatment followed by landfilling under hazardous waste regulation s Generator sends material offsite for rec ycling at a facility that it controls under generator
controlled exclusion Pote ntial increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures. Potential i ncreased risk in communities surrounding generator off

site recycling facilities Potential increased resource conse rvation benefits due to switch from disposal to recycling and reduction of miles traveled ( if distance to reclamation facilities is closer). Potential r educed risk in communities surrounding existing off

- site treatment/disposal facilities

. Scenario 4: Generator switches from off
- site disposal to off

- site recycling at RCRA
- permitted facilityDRAFT Internal Report Provided for Peer Review 12/20/2010

vi Hazardous Waste Baseline DSW Practices Summary of Potential Impacts Generator sends material offsite to a RCRA permitted facility for treatment followed b y landfilling under hazardous waste regulation s Generator sends material offsite for rec ycling at a RCRA

permitted facility

under transfer

- based exclusion Potential i ncreased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures Potential increased resource conservation benefits due to switch from disposal to recycling and reduction of miles traveled ( if distance to reclamation facilities is closer). Potential i ncreased resource conservation benefits due to switch from disposal to recycling. Poten tial r educed risk in communities surrounding existing off

- site treatment/disposal facilities.

Scenario 5 : Generator switches from off
- site disposal to off

- site recycling at a U.S. facility without a RCRA permit Generator sends material offsite t o a RCRA permitted facility for treatment followed b y landfilling under hazardous waste regulation s Generator sends material offsite for rec ycling at a facility

in the United States without a RCRA permit under transfer

- based exclusion Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures. Potential increased risk at recycler due to longer accumulation times, greater quantities, lack of explicit preventative measures. Potential increased resource conservation benefits due to switch from disposal to recycling. Potential r educed risk in communities surrounding existing off

- site treatment/disposal facilities. Scenario 6 : Generator switches from off
- site disposal to exporting for recyclingDRAFT Internal Report Provided for Peer Review 12/20/2010

vii Hazardous Waste Baseline DSW Practices Summary of Potential Impacts Generator sends material offsite to a RCRA permitted facility for treatment followed b y landfilling under hazardous waste regulation s Generator exports material under the transfer

- based exclusion for rec ycling in another country Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures. Potential increased risk at recycler due to longer accumulation times, greater quantities, lack of explicit preventative measures. P otential increased resource conservation benefits due to switch from disposal to recycling. Potential r educed risk in communities surrounding existing off

- site treatment/disposal facilities.DRAFT Internal Report Provided for Peer Review 12/20/2010

viii Hazardous Waste Baseline DSW Practices Summary of Potential Impacts
Scenario 7 : Generator switches from off
- site recycling at a facility without a permit 4 to another type of recycling under the 2008 DSW final rule Generator sends material offsite for recycling at a facility in the United States without a RCRA permit under hazardous waste regulation s Generator sends material offsite for recycling at a facility under generator
controlled exclusion , or Generator exports material under the transfer

- based exclusion for recycling in another country , or Generator sends material offsite for recycling at a RCRA permitted facility under transfer

- based exclusion , or Generator sends material offsite for recycling at a facility

in the United States without a RCRA permit under transfer

- based exclusion. Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures. Potential increased risk at new recycler due to longer accumulation times, and greater quantities accumulated. Potentia l reduced risk at new recycler due to “contained” standard, legitimacy condition and (for the transfer

- based exclusions) reasonable efforts audit and financial assurance conditions. Potential r educed risk in communities surrounding previousl y used off

- sit e rec ycling facility .

4 Under the RCRA hazardous waste regulations, facilities that recycle immediately without storing the hazardous wa ste do not need a RCRA permit.DRAFT Internal Report Provided for Peer Review 12/20/2010

ix Hazardous Waste Baseline DSW Practices Summary of Potential Impacts
Scenario 8: Generator switches from off
- site recycling at a RCRA
- permitted facility or exporting waste for recycling to another type of recycling under the 2008 DSW final rule Generator sends material offsite for recycling to RCRA

permitted facility under hazardous waste regulation s or exporting waste for recycling in another country Generator reclaims material onsite under generator
- controlled exclusion , or Generator sends material offsite for recycling at a facility that it controls under generator
- controlled exclusion , or Generator sends material offsite for recycling at a facility

in the United States without a RCRA permit under transfer

- based exclusion , or Generator exports material under the transfer

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

– 6, but w ith no resource conservation benefits.

Finding 3: Many of the Communities Potential ly Impacted by this Increase In Risk of Adverse Impacts are Minority and Low
- Income Communities , and In Some Cases The Populations Potentially Impacted Are Disproportionately Minority And/Or Low Income The second and third steps of the DSW environmental justice anal ys is methodology together help determine whether the potential adverse impacts detailed above are likely to occur disproportionately

in minority

and low

- income communities. The second step of the methodology identifie d facilities that can represent the facilities that are likely to take advantage of the 2008 DSW final rule . These fa cilities are grouped into four different categorie s: (1) facilities that have already notified under the 2008 DSW final rule, (2) hazardous waste facilities that are likel y to recycle under the rule (including hazardous waste generators producing more than a truckload (25 tons) of recyclable hazardous secondary materials annuall y , and hazardous waste recyclers) to use the rule , (3) facilities from theDRAFT Internal Report Provided for Peer Review 12/20/2010

x

environmental problems study (man y of which operated under exclusions or reduced regulations ) , and (4) fac ilities currentl y rec ycling non

- hazardous industrial waste (e.g., antifreeze) that could most easily switch or expand to recycling under the 2008 DSW final rule

. The third step characterized the demographics of the communities within a three kilometer radius around these facilities, and determined whether they were disproportionately minority or low

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

was evaluated both at the community and at the popu lation level. For the community

- level anal ys is, the question is whether the communities in a facility category had a higher or lower percentage of minority and/or low

- income population as compared to the comparison population (i.e., national or state popu lation). In general, some communities will have a higher percentage than the comparison population, some will have a lower percentage. As long at these differences have a regular distribution, they would not indicate disproportionate impact. However, i f the number of communities with a higher percentage of minority and/or low

- income population is greater than that of the comparison populations, then there is a potential for disproportionate impact. The higher the average difference between the potential ly affected communities and the comparison group, the greater the potential disproportionality

. In the chart below, the only category that consistently

demonstrates the potential for disproportionate impact are the damage case facilities. For both the n ational and the state comparison populations, more than 50% of the damage case facilities are located in communities with minority and low

- income populations that have a higher representation than the comparison populations. In addition, the average diff erence in these cases (i.e., the average amount that the damage case facilities have a higher

- than

- average percentage of minorities or low

- income populations) range from 6

- 8%.DRAFT Internal Report Provided for Peer Review 12/20/2010

xi Community
- Level Analysis of Potential Disproportionate Impacts of 2008 DSW Rule to Minority and Low
- Income Communities Highlighted Values Indicate Potential Disproportionate Impact National Comparison % communities with higher minority representation (average difference) National

Comparison % communities with higher low

income representation (average difference) State Comparison

% communities with higher minority representation (average difference) State

Comparison % communities with higher low

income representation (average difference) Notification Facilities (40 total) 7.5%

(

- 20.7%) 32.5%

(

- 2.0%) 50.0% (IA)

(3.1%) 20.0% (NJ) (

- 11.0%) 31.3% (PA) (

- 2.3%) 64.0% (IA)

(1.7%) 0% (NJ) (

- 3.7%) 50% (PA) (2.6%) Damage Case Facilities (217 total) 53%

(8.2%) 65%

(5.9%) 55.8%

(8.2%) 69%

(6.7%) Hazardous Waste Facilities (2,677 total) 42%

(0.9%) 48%

(1.5%) 47.9%

(4.0%) 50.6%

(1.8%) Non

- Hazardous Industrial Waste Facilities (25 total) 36%

(

- 5.0%) 40%

(

- 0.5%) 36%

(

- 2.55%) 44%

(

- 0.3%)

The population

- level analy sis examines the demographics of the total potentially affected population as compared to the total comparison population to determine (1) whether there is a substantially

greater probability

of members in a population group of concern (minority or low

income) being present as compared to members of the comparison population, an d (2) whether members of the population group of concern comprised a substantially greater proportion of the potentially

affected population than the comparison populations. These two comparisons are referred to as (1) the Threshold Risk Ratio, and (2) th e Demographic Ratio. In both cases, if the ratio is greater than 1.0, then there is a potential for disproportionate impact to the population of concern, and the larger the ratio, the greater the disproportionality

.DRAFT Internal Report Provided for Peer Review 12/20/2010

xii Population
- Level Analysis of Potenti al Disproportionate Impacts of 2008 DSW Rule to Minority and Low
- Income Communities Highlighted Values Indicate Potential Disproportionate Impact to Population of Concern

All Results Statistically Significant (p

- value <0.05) National Comparison Minority Population Threshold Risk Ratio Demographic Ratio National

Comparison Low

- Income Population Threshold Risk Ratio Demographic Ratio State

Comparison Minority Population Threshold Risk Ratio Demographic Ratio State

Comparison Low

- Income Population T hreshold Risk Ratio Demographic Ratio Notification Facilities (40 total) 0.70 0.76 1.05

1.04 1.80 (IA)

1.76 (IA) 1.02 (NJ) 1.01 (NJ) 1.46 (PA) 1.47 (PA) 1.34 (IA)

1.32 (IA) 0.64 (NJ) 0.65 (NJ) 1.74 ( PA ) 1.63 ( PA ) Damage Case Facilities (217 total) 2.87 1.86 1.98

1.80 2.59

1.64 2.04

1.90 Hazardous Waste Facilities (2,677 total) 1.90 1.80 1.39

1.50 1.94

2.04 1.47

1.83 Non

- Hazardous Industrial Waste Facilities (25 total) 1.19 1.12 1.16

1.14 1.34

1.20 1.17

1.15

The population

- level analy sis shows a greater incidence of potential disproportionate impact to minority and low

- income populations than the community

- level analy sis. For the population

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

- level analy sis exhibits the potential for disproportionate impact only

in the damage case facility category . This difference can occur when the population of those communities that do have a greater percentage of minority or low

- income individuals also have a significantly

higher total population that those communities that do not. In other words, for all categories of facilities except the damage case facilities, the facilities of concern do not appear to be disproportionately located in minority

or low

- income communities, but the facilities that are located in minority and low

- income communities have the potential to impact much larger populations than those which are not, resulting in an overall potential disproportionate impact to minority and low

- income populations as a whole.DRAFT Internal Report Provided for Peer Review 12/20/2010

xiii

Finding 4: Underlying Vulnerabilities Traditionally Associated with Minority and Low
Income Communities Pose the Potential to Exacerbate Potential Adverse Im pacts of the DSW Rule Inaddition to considering the potential for the 2008 DSW final rule to result in adverse impacts that disproportionately

affect minority

and low

- income communities, the DSW EJ analy sis also considers other factors that could affect the impacts of the rule, based on categories from EPA’s interim guidance on incorporating environmental justice into rulemaking. 5 These factors are described under five broad categories : (1) Susceptible Populations , (2) Multiple and Cumulative Effe cts , (3) Unique Exposure Pathway s , (4) Ability to Participate in the Decision

- Making Process , and (5) Phy sical Infrastructure

. All of these factors have the potential to exacerbate the potential for adverse impacts to minority and low

- income communities, b ut two of these factors are of particular concern to the 2008 DSW final rule: Ability to Participate in the Decision

Making Process, and Multiple and Cumulative Effects Ability to Participate in the Decision

-Making Process A key element of environmental justice is ensuring that all people have an opportunity for meaningful involvement in decision

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

- making because of economic (e.g., income), social (e.g., languag e barriers, education levels, distrust of government), and infrastructural reasons (e.g., access to public transportation). A critical concern is whether, and the extent to which, communities have the ability to influence the types and number of regulated activities taking place in their community as well as the requirements, conditions, and parameters b y which such activities must operate (e.g., permit conditions). Under the 2008 DSW final rule, facilities claiming an exclusion must submit an initial an d biennial notification to EPA or the state, providing general facility information and describing hazardous secondary material ty

pes and activities under the exclusion. However, under the 2008 DSW final rule this information is not made directly availa ble to potentially

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

input into the decision

- making process as is the case with RCRA permitted facilities. Thus by

removing the RCRA permitting requirement for facilities that manage excluded hazardous secondary materials, the 2008 DSW final rule also removed one of the key provisions for allowing communities to participate in the regulatory process (at least as it concerns the management of the hazardous se condary materials excluded under the rule). Communities with lower participation levels may experience greater adverse impacts from environmental decision

- making because their input has not been considered fully , particularl y if competing interests are se t forth more effectivel y. This effect is most likely to occur in communities that have traditionally been excluded from the decision

- making process.

5 U.S. EPA Interim Guidance on Considering Environmental Justice During the Development of an Action July 2 010. http://www.epa.gov/environmentaljustice/resources/policy/considering

- ej

- in

- rulemaking

- guide

- 07

- 2010.pdfDRAFT Internal Report Provided for Peer Review 12/20/2010

xiv

Multiple and Cumulative Effects Minority , low

- income, and indigenous communities that have been affect ed by multiple pollution sources may

be at risk for increased health consequences. Potential sources of pollution can include, for example, industrial facilities, landfills, transportation

- related air emissions, poor housing conditions (e.g., lead

- based p aint), leaking underground tanks, pesticides, and incompatible land uses. An analy sis of the cumulative effects from multiple stressors can provide a more complete evaluation of a population’s health risks from pollutants. For example, an anal ys is of dis crete stressors and effects on a population might conclude that nearb y pollution sources are within regulatory limits; however, an anal ys is of cumulative effects might determine that a person’s collective exposure to a contaminant from multiple sources exc eeds a health

- based limit. An examination of the facilities that have notified under the 2008 DSW final rule shows that multiple environmental hazards are a potential concern for communities around these facilities. All have multiple facilities reporting to EPA, either under RCRA, the Clean Air Act (CAA), or Comprehensive Environmental Response, Compensation and L iability Act, (CERCLA

- also known as Superfund) within a three

- kilometer radius of the facility. Twenty

- six of the forty facilities had commun ities with cancer rates greater than the 80th percentile, and twenty- seven showed a greater than the 80th percentile in neurological hazard rates. Twenty

- seven facilities also had no hospital facilities within the three kilometer area. Finding 5: There Are Poten tial Preventative and Mitigative Steps That EPA Could Explo re to Address the Potential Adverse Impacts to Minority and Low
- Income Communities Regulatory Changes Regulatory

changes to the 2008 DSW final rule must be made according to EPA’s authority under RCRA to regulate discarded material. As discussed in the preamble to the 2008 DSW final rule, EPA used the concept of discard as the central organizing idea behind the October 2008 revisions to the definition of solid waste. As stated in RCRA se ction 1004(27), ``solid waste'' is defined as ``. . . any garbage, refuse, sludge from a waste treatment plant, water suppl y treatment plant, or air pollution control facility and other discarded material. . .resulting from industrial, commercial, mining and agricultural activities.'' In exercising its discretion in the 2008 DSW final rule to define what constitutes ``discard'' for hazardous secondary materials reclamation 6 in the DSW final rule, EPA included an explanation of how each provision of the fin al rule relates to discard” (73 FR 64676

— 64679). However, as noted in the Federal Register notice announcing the June 2009 public meeting, EPA believes that there are opportunities to revise the 2008 DSW final rule in way s that could increase environmental protection while still appropriately defining when a hazardous secondary

6 “Reclamation” is a subset of recycling that involves processing a material to recover a usable product. While this report uses “recycling” and “reclamation” interchangeably, reclamation is the more precise term to describe the type of activity affected by the 2008 DSW rule.DRAFT Internal Report Provided for Peer Review 12/20/2010

xv

material being reclaimed is a solid waste and subject to hazardous waste regulation (74 FR 25202). Implementation Measures In addition to considering regulatory changes to address potential adverse impacts of the 2008 DSW final rule, EPA can take non

- regulatory steps to help mitigate the potential adverse impacts. These steps include closely monitoring the facilities notifying under the 2008 DSW final rule, making information about the DSW facilities available to the public, and working with states and EPA Regions to ensure they have the information they need to ensure compliance with the provisions of the rule, and making available to the public information about the facilitie s that have notified. EPA has begun this process for the states and territories currentl y operating under the 2008 DSW final rule, and plans to continue these efforts in order to help prevent potential adverse impacts at the same time that revisions to the rule are under consideration.DRAFT Internal Report Provided for Peer Review 12/20/2010

December 20, 2010 Draft

– Do not Cite or Quote i Table of Contents
1 Introduction ................................ ................................ ................................ .................... 1 1.1 Background

................................ ................................ ................................ ....................... 1 2 Hazard Character ization ................................ ................................ ............................... 3 2.1 Overview of Scenarios Under the DSW Exclusion

................................ .......................... 3 2.2 General Hazards Associated with Hazardous Secondary Material

................................ ... 8 2.2.1 Ty

pes and Quantities of Hazardous Secondary Materials

................................ ......... 8 2.2.2 Hazardous Properties of HSMs: Solvents and Electric Arc Furnace Dust

............. 10 2.2.3 Media, Exposure Route, and Health Effects Hazard Associated with Recycling of HSM

................................ ................................ ................................ .................... 12 2.2.4 Hazards Associated with Recycling of HSM

................................ ........................... 18 2.3 Regulatory

Comparison

- Summary

of Comparative Results by Facility Ty pe and Scenario

................................ ................................ ................................ ........................... 25 2.4 Summary

of Comparative Results by Facility Ty pe and Scenario

................................ . 32 2.5 Likelihood of Hazards under Sc enarios

................................ ................................ .......... 41 2.5.1 Potentially

Increased Hazards under DSW Exclusions

................................ ........... 41 2.5.2 Potential Reductions and Transfers of Hazards b y Facility T ype and Scenario

...... 63 2.5.3 Other Impacts

................................ ................................ ................................ ........... 65 3 Identification of Potentially Affected Communities ................................ ................. 70 3.1 Facilities that Have Notified EPA that They Will Be Managing Hazardous Secondary

Materials under the DSW Rule (40 CFR § 260.42)

................................ ...... 70 3.2 Facilities Currentl y Generating or Managing Hazardous Secondary Materials that May Choose to Operate under the DSW Rule

................................ ................................ 71 3.2.1 Facilities Currentl y Managing Recyclable Hazardous Wastes

................................ 71 3.2.2 Facilities Currentl y Generating Recyclable Hazardous Wastes

.............................. 73 3.2.3 Facilities Currentl y Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule

................................ ................................ . 75 3.3 Facilities Not Currentl y Generating or Managing Hazardous Wastes that May Choose to Begin Reclaiming Hazardous Secondary Materials under the DSW Rule

................................ ................................ ................................ ................................ . 76 4 Analysis of Demographics of Potentially Affected Communities ............................ 78 4.1 Demographic Data Sources

................................ ................................ ............................. 78 4.2 Methodology

................................ ................................ ................................ ................... 80 4.2.1 Selection of EJ Characteristics for Anal ys is

................................ ............................ 80 4.2.2 Areal Apportionment Method

................................ ................................ .................. 80 4.2.3 Comparison of Demographic Characteristics of Affected Population versus Comparison Population

................................ ................................ ........................... 81 4.2.4 Statistical Analy sis

................................ ................................ ................................ ... 81 4.3 Statistical Comparison of Demographic Characteristics of Affected Population versus Comparison Population

................................ ................................ ....................... 81 4.4 Results of Demographic Analy sis

................................ ................................ ................... 83DRAFT Internal Report Provided for Peer Review 12/20/2010

December 20, 2010 Draft

– Do not Cite or Quote ii 4.4.1 Facilities that Have Notified EPA that They Will Be Managing Hazardous Secondary

Materials under the DSW Rule

................................ .............................. 83 4.4.2 Damage Case Facilities

................................ ................................ ............................ 91 4.4.3 Facilities Currentl y Generating or Managing Hazardous Wastes that May Choose to Operate under the 2008 DSW Final Rule

................................ ............... 94 4.4.4 Facilities Not Currentl y Generating or Managing Hazardous Wastes that May Choose to Begin Reclaiming Hazardous Secondary Materials under the 2008 DSW Final Rule

................................ ................................ ................................ .... 100 5 Other Factors that Affect Vulnerability in Communities ................................ ...... 104 5.1 Overview of Factors that Affect Vulnerability ................................ ............................. 104 5.1.1 Susceptible Populations

................................ ................................ ......................... 104 5.1.2 Multiple and Cumulative Effects

................................ ................................ ........... 104 5.1.3 Unique Exposure Pathway s ................................ ................................ ................... 106 5.1.4 Ability

to Participate in Decision

- Making Process

................................ ................ 106 5.1.5 Phy sical Infrastructure

................................ ................................ ........................... 107 5.2 Summary

of Anal ys is of Factors that Affect Vulnerability for 40 Notification Facilities

................................ ................................ ................................ ........................ 107 6 Conclusions ................................ ................................ ................................ ................. 112 Attachment A. Comparison of Regulatory Requirements under DSW to RCRA and Other Federal Regulations ................................ ................................ ................................ .................. A
- 1 Attachment B. Waste and Facility Classification Methodology ................................ ........... B - 1 Attachment C. Waste Code Group Methodology ................................ ................................ .. C
- 1 Attachment D. Methodology for Identifying Potentially Recyclable Hazardous Wastes .. D - 1 Attachment E. Statistical Calculations ................................ ................................ ................... E - 7
List of Tables Summary of DSW EJ Methodology ................................ ................................ ............................ ii Table 1.1. Summary of DSW EJ Methodology ................................ ................................ ......... 2 Table 2.1. Scenarios under Baseline and DSW Exclusions ................................ ...................... 6 Table 2.2. Potential Hazards ................................ ................................ ................................ ..... 18 Table 2.3. Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by Scenario .... Error! Bookmark not defined. Error ! Bookmark not defined. Table 2.4. Potential Incremental Hazards under DSW Rule: Generators ........................... 49 Table 2.5. Potential Incremental Hazards under DSW Rule: Transporters ........................ 53 Table 2.6. Potential Incremental Hazards under DSW Rule: Intermediate and Reclamation Facilities ................................ ................................ ................................ ................. 60DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote iii Table 2.7. Potential Reduction in Hazards under DSW Rule ................................ ................ 67 Table 4.1. Data Source Files from the 2000 U.S. Census Used for the DSW EJ Analysis ... 79 Table 4.4.1.1. Na tional Demographic Comparison for Notification Facilities ..................... 86 Table 4.4.1.2. DSW Rule National Demographic Comparison Analysis of S tatistical Significance for Notification Facilities ................................ ................................ ...................... 86 Table 4.4.1.3. Iowa Demographic Comparison for Notification Facilities ........................... 87 Table 4.4.1.4. DSW Rule Iowa Demographic Comparison Analysis of Statistical Significance for Notification Facilities ................................ ................................ ...................... 87 Table 4.4.1.5. New Jersey Demographic Comparison for Notification Facilities ................ 88 Table 4.4.1.6. DSW Rule New Jersey Demographic Comparison Analysis of Statistical Significance for Notification Facilities ................................ ................................ ...................... 88 Table 4.4.1.7. Pennsylvania Demographic Comparison for Notification Facilities ............. 89 Table 4.4.1.8. DSW Rule Pennsylvania Demographic Comparison Analysis of Statistical Significance for Notification Facilities ................................ ................................ ...................... 89 Table 4.4.1.9. Urban Demographic Comparison for Notification Facilities ......................... 90 Table 4.4.1.10. DSW Rule National Demographic Comparison Analysis of Statistical Significance (Urban) for Notification Facilities ................................ ................................ ....... 90 Table 4.4.1.11. Rural Demographic Comparison for Notification Facilities ........................ 91 Table 4.4.1.12. DSW Rule National Demographic Comparison Analysis of Statistical Significance (Rural) for Notification Facilities ................................ ................................ ......... 91 Tabl e 4.4.2.1. National Demographic Comparison for Damage Case Facilities .................. 93 Table 4.4.2.2 DSW Rule National Demographic Comparison An alysis of Statistical Significance for Damage Case Facilities ................................ ................................ ................... 93 Table 4.4.2.3. State Demographic Comparison for Damage Case Facil ities ........................ 94 Table 4.4.3.1. National Demographic Comparison for Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule .............. 96 Table 4.4.3.2. National Demographic Comparison Analysis of Statistical Significance for Fac ilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule ................................ ................................ ................................ .... 96 Table 4.4.3.3. State De mographic Comparison for Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule .............. 97 Table 4.4.3.5. Urban Demographic Comparison for Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule .............. 98 Table 4.4.3.7. Rural Demographic Comparison for Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule .............. 99DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote iv Table 4.4.4.1. National Demographic Comparison for Facilities Not Currently Generating or Managing Hazardous Wastes that May Choose to Begin Reclaiming Hazardo us Secondary Materials under the DSW Rule ................................ ................................ ............ 102 Table 4.4.4.2. National Demographic Comparison Analysis of Statistical Significance f or Facilities Not Currently Generating or Managing Hazardous Wastes that May Choose to Begin Reclaiming Hazardous Secondary Materials under the DSW Rule .......................... 102 Table 4.4.4.3. State Demographic Comparison for Facilities Not Currently Generating or Managing Hazardous Wastes that May Choose to Begin Reclaiming Hazardous Secondary Materials under the DSW Rule ................................ ................................ ............................... 103 Table 5.1. Other Factors that Affect Vulnerability in Communities Affected By Recycling Notification Facilities ................................ ................................ ................................ ................ 109 Table A
- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of Hazardous Secondary Materials under DSW Generator
C ontrolled Exclusion ................................ ................................ ................................ .............. A
- 13 Table A
- 2. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators o f................................ ................................ ................................ ........ A
- 38 Table A
- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Mater ial Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion ................................ ................................ ................. A
- 61DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 1 1 Introduction 1.1 Background On October 30, 2008, the U.S. Environmental Protection Agency (EPA) published final revisions to the definition of solid waste that exclude s certain hazardous secondary m aterials 7 from regulation under Subtitle C of the Resource Conservation and Recovery Act (RCRA), as amended (73 FR 64663). Specificall y, EPA amended 40 CFR Part 261 to provide that hazardous secondary materials (HSM s ) reclaimed under the control of the gen erator are not solid wastes if specified requirements are met. EPA also amended Part 261 to provide that HSMs that are generated and then transferred to another person for the purpose of reclamation, including exports, are not solid waste, provided that s pecified conditions are met. In addition, EPA finalized other amendments to address particular issues (e.g. , established standards in Part 260 to enable a person to appl y to EPA for a formal determination that a HSM is not discarded (i.e., non - waste) and therefore not a solid waste). On January

29, 2009, the Sierra Club submitted an administrative petition to EPA requ esting that the definition of solid waste (DSW) rule be repealed . The petition argues that the revised regulations are unlawful and that th ey increase threats to public health and the environment without producing compensatory benefits and, therefore, should be repealed. In addition , the petition disagrees with the Agency ’s findings that the rule would have no adverse environmental impacts, including no adverse impact to minority or low

- income communities. Under the 2008 DSW final rule, EPA determined that the conditions of the rule would prevent any increase in risk, and therefore there would be no disproportionate adverse impacts to minority or low

- income communities. However, the 2008 anal ys is did not take into account whether the conditions of the rule would operate as effectively in the real world as the more detailed requirements of the RCRA hazardous waste regulations. One of the most common criticisms of the January

2010 draft environmental justice methodology was that it glossed over some of the important protections of the hazardous waste regulations, particularl y public participation requirements. After receiving the petition and communicating with stakeholders , EPA committed to conducting an expanded an al ys is of the environmental justice ( EJ ) impacts of the 2008 DSW final rule. This draft analy sis is presented in this document. 1.2 Overview of Approach The Agency

published the Draft Environmental Justice Methodology for the Definition of Solid Waste Final Rule , which lay s out a general approach for anal yz ing EJ issues under the 2008 DSW final rule , in January of 2010

. EPA modified the methodology through interaction with the general public and other stakeholders. The methodology also adheres to existing Federal and EPA

- specific guidance on how to incorporate EJ into the Agency ’s process for developing regulations and how to conduct anal ys es that incorporate EJ considerations . This i ncludes, in particular, EPA’s Action Development Process and Interim Guidance on Considering Environmental Justice During the Development of an Action . The methodology includes six steps , as described in Table 1.1.

7 A hazardous secondary material is any material that would be a hazardous waste if discarded.DRAFT Internal Report Provided for Peer Review 12/20/2010

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Table 1.1. Summary of DSW EJ Methodolo gy Overview of DSW Environmental Justice Methodology Step 1: Hazard characterization Includes two phases: (1) identifying potential hazards that could pose risks to human health and the environment from the recycling of hazardous secondary materials, including sudden and non

- sudden accidental releases of hazardous constituents and (2) analyzing the likelihood of such hazards occurring under the requirements of the DSW exclusions as compared to the pre

- 2008 DSW hazardous waste regulations. Step 2: Identification of potentially affected communities Modeling the locations of facilities (including potential new facilities) that are likely to choose to take advantage of the DSW rule. Step 3: Demographics of potentially affected communities Mapping the location of the facilities modeled in Step 2 and i dentifying the demographics (e.g ., min ority population and income level) of the surrounding communities. Step 4: Identifying other factors that affect vulnerability in potentially affected communities Identifying important vulnerability factors. These include factors that may increase the l ikelihood of “damages , ” or the likelihood that a facility is sited within a community, or the likelihood of health risks in the event of releases. Examples include the presence of other pollution sources and any information about the public health of the s urrounding population. Step 5: Information synthesis: assessment of disproportional impact Synthesizing all the information to characterize whether the DSW rule will facilitate the occurrence of any adverse impacts and whether some population groups (e.g. , minority or low income populations) would be overrepresented in the impacted communities. Step 6: Identification of potential preventive and mitigation strategies Identifying potential strategies to prevent non

- com pliance and releases to the environment and also strategies to mitigate any impacts identified under step 5. This document describes the approach and results of Steps 1 through 5. The draft anal ys es and results presented in this report will be used to inform the identification of potential preventive and mitigation strategies under Step 6.
1.3 Purpose and Organization of Document This report presents EPA’s draft anal ys is of EJ issues under the 2008 DSW final rule, which has been performed in accordance with the DSW EJ Analy sis Methodology prese nted in Table 1.1. The remainder of this report is organized as follows:

 Chapter 2 describes the hazards associated with HSMs when generated and managed under the 2008 DSW final rule. It first describes the ty pes, quantities, and health hazards associated with HSMs and the ty pes of hazards (e.g., releases) that could occur at generator, transporter, and intermediate, and reclaimer facilities managing such materials

. It then pres ents a qualitative anal ys is that compares the control of these hazards under the 2008 DSW final rule to the hazardous waste regulations. The chapter examines all reasonabl y likel y scenarios in which HSMHSM s may potentiall y be generated, transported, and reclaimed under the 2008 DSW final rule, and qualitativel y assess the likelihood that hazards could increase or decrease under the 2008 DSW final rule.

 Chapter 3 identifies those facilities that already have claimed the DSW exclusion (i.e., facilities that have submitted a notif ication to EPA or the state), and that may be likel y to manage waste under the DSW exclusion. EPA believes that facilities most likely toDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 3 claim the exclusion are those that are currently generating or reclaiming their HSM under the e xisting hazardous waste regulations. In addition, some facilities currently recycling non - hazardous industrial waste that is similar in character and/or composition to HSM s have equipment and processes that may be easily adapted to recycling HSM s , and the refore may

be likel y t o begin recycling HSM s under the DSW exclusion.

 Chapter 4 presents an analy sis of demographic data about the communities surrounding the facilities identified in Chapter 3. EPA performed the anal ys is by examining the demographics of the community surrounding each facility , including race, income level, and children under five years old . EPA then compared the demographics of each community

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

communities that may

potentially

have EJ concerns.

 Chapter 5 describes other factors that could affect the vulnerability of communities , such as populations susceptible to DSW hazards, multiple and cumulative effects of releases and contamination, and unique exposure pathway s.
 Chapter 6 summarizes the conclusions from the EJ draft analy sis described in this report. 2 Hazard Characterization 2.1 Overview of Scenarios Under the DSW Exclusion This section describes the scenarios that EPA used to identify

and anal yz e the hazards associated with managing HSM under the hazardous waste regulations (the baseline) and DSW exclusions. Generators , transporters, and intermediate and reclamati on facilities may manage HSM s in several different way s both under existing hazardous waste regulations, referred to as the baseline , and under the 2008 DSW exclusions. Each scenario represents a different combination (or set of combinations) of baseline and DSW practices. The baseline practices reflect way s that generators and facilities are managing HSM s under the existing hazardous waste regulations (i .e., before they claim an exclusion). The DSW practices reflect way s that these same generators and facilities are managing, or might manage , HSMs after they claim an exclusion under the 2008 DSW final rule

. Under the 2008 DSW final rule, EPA promulgate d three types of conditional exclusion s from the S ubtitle C hazardous waste regulations for persons who generate or reclaim HSMs

. These are described in the box to the right. EPA established different requirements for each typ e of exclusion. These different requirements are expected to affect how each ty pe of generator/ facility modifies its generation and management of HSM s based on the ty pe of exclusion claimed. The scenarios below were developed based on the expected impacts of the Generator

- Controlle d Exclusion (GCE) and Transfer

- Based Exclusion (TBE), and each scenario Types of Exclusions Established by October 2008 DSW Final Rule
 Generator
- Controlled Exclusion (GCE)

- Materials that are generated and ( transferred to another compan y for legitimate reclamation under specific conditions;
 Transfer
- Based Exclusion (TBE)

- Materials that are generated and legitimatel y reclaimed under the control of the generator (i.e., generated and reclaimed on

- site, by the same company , or under “tolling” agreements); and
 Petition
- Based Exclusion

- Materials that EPA or an authorized state determines to be non

wastes through a case

- by

- case petition proc ess.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 4 describes whether it is applicable to facilities operating un der the GCE, TBE, or both. Petition

Based Exclusion s are not considered in this anal ys is because they are granted on a cas e - by

- case basis, and the exact nature of such exclusions cannot be determined until petitions are granted. At the time this report was prepared , no petitions for an non - waste exclusion under the 2008 DSW rule had been submitted. The ty pe of exclusion claimed under each scenario is used in Section 2.4 of this report to help compare the regulatory framework between hazardous waste regulations and the 2008 DSW final rule. For each scenario, EPA also considered whether the facility is permitted under RCRA, an d the descriptions below i dentify the potential RCRA

- permit status of the facility . The RCRA permit status of facilities under each scenario is used in Section 2.4 of this report to help compare the regulatory

framework between the hazardous waste regulat ions and the 2008 DSW final rule. EPA has identified the following eight scenarios that it considers likely to occur. Note that EPA identified additional potential scenarios , but deemed th em unlikely to occur. These scen arios are briefl y described at the end of this section , but are not addressed further in this document. Scenario 1: Generator continues current recycling practices under GCE or TBE . This scenario involves a generator that has been reclaiming its HSM unde r the hazardous waste regulations, and opts to continue these practices under either the GCE or TBE. This could include, for example , a generator that reclaims onsite under the baseline and claims the GCE to continue reclaiming onsite, or a generator that exports its HSM under the baseline and claims the TBE to continue exporting the HSM. Scenario 2: Generator switches from off
- site treatment/ disposal to on
- site reclamation. This scenario involves a generator that has been shipping its HSM to an off

- site Treatment, Storage, or Disposal Facility ( TSDF ) for treatment then / disposal under the hazardous waste regulations, but opts to reclaim that HSM onsite under the GCE. Scenario 3: Generator switches from off
- site treatment/ disposal to off
- site recycling under the control of the generator . This scenario involves a generator that has been shipping its HSM to an offsite TSDF for treatment followed b y / disposal under the hazardous waste regulations, but opts to ship that HSM to an offsite facility that it co ntrols for reclamation under the GCE. Scenario 4: Generator switches from off
- site treatment/ disposal to off
- site recycling at a RCRA
- permitted facility. This scenario involves a generator that has been shipping its HSM to an offsite TSDF for treatment followed by / disposal under the hazardous waste regulations, but opts to ship that HSM to an offsite RCRA

- permitted TSDF for reclamation under the TBE. Scenario 5: Generator switches from off
- site treatment/ disposal to off
- site recycling at a U.S. faci lity without a RCRA permit. This scenario involves a generator that has been shipping its HSM to an offsite TSDF for treatment followed b y disposal under the hazardous waste regulations, but opts to ship that HSM to an offsite facility in the United State s without a RCRA permit for reclamation under the TBE. Scenario 6: Generator switches from off
- site disposal to exporting for recycling. This scenario involves a generator that has been shipping its HSM to an offsite TSDF for disposal under the hazardo us waste regulations, but opts to ship that HSM to for recycling to a facility outside the United States for reclamation under the TBE.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 5 Scenario 7: Generator switches from off
- site recycling at a facility without a permit 8 to another type of recycling under the 2008 DSW final rule . This scenario involves a generator that has been shipping its HSM for reclamation to an offsite TSDF in the United States without a RCRA permit under the hazardous waste regulations, but opts to have the hazardous secondary material reclaimed at a different ty pe of facility

under the TBE. This could include, for example, a generator that ships HSM offsite for reclamation at a TSDF in the United States without a RCRA permit in the baseline, but c hanges its practice to ship the HSM offsite for reclamation at a RCRA permitted facility under the TBE, or changes its practice to export the HSM for reclamation at a recycling facility outside the U.S. under the TBE. Scenario 8: Generator switches from o ff
- site recycling at a RCRA
- permitted facility or exporting waste for reclamation to another country to another type of recycling under the 2008 DSW final rule . This scenario involves a generator that has been shipping its HSM to an offsite RCRA

- permitted TSDF or exporting it to a foreign reclamation facility under the hazardous waste regulations, but opts to have the HSM l reclaimed at a different type of facility under the GCE or TBE. This could include, for example, a generator that HSM changes its pra ctice to reclaim the hazardous secondary material onsite or at an offsite facility (without a permit) under its control, and claims the GCE. The generator may also choose to ship its HSM offsite for reclamation at either a recycling facility in the United States without a RCRA permit or a reclamation facility outside the United States and claim the TBE. Similarly , a generator that exports HSM for reclamation at a reclamation facility outside the United States in the baseline, may change its pra ctice to reclaim the HSM onsite or at an offsite facility under its control, and claim the GCE. The generator may also choose to ship its HSM offsite for reclamation at either a RCRA

- permitted TSDF or a recycling facility in the United States without a RC RA permit and claim the TBE. Unlikely Scenarios: As mentioned above, EPA identified additional potential scenarios that it deemed unlikel y to occur. These unlikel y scenarios include:

 A generator that has been reclaiming HSMs onsite under the hazardous w aste regulations , but opts to ship that HSM to an offsite facility that it controls for reclamation under the GCE. EPA believes this scenario is unlikel y because switching from on

- site recycling to off

- site recycling is likely

to result in additional tran sportation costs. Generators that make this ty

pe of change are unlikel y to do so as a result of the 2008 DSW final rule.

 A generator that has been reclaiming HSMs onsite under the hazardous waste regulations , but opts to ship that HSM to an offsite RCRA

- permitted TSDF, an offsite recycling facility in the United States without a RCRA permit, or a reclamation facility outside the United States for reclamation under the TBE. EPA believes this scenario is unlikely because switching from on

- site recycling to off

- site recycling is likely

to result in additional transportation costs. Generators that make this ty pe of change are unlikel y to do so as a result of the 2008 DSW final rule.

8 Under the RCRA hazardous wa ste regulations, facilities that recycle immediately without storing the hazardous wa ste do not need a RCRA permit.DRAFT Internal Report Provided for Peer Review 12/20/2010

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Table 2.1. Scenarios under Baseline and DSW Exclusions Baseline DSW Practices Scenario 1: Generator continues current recycling practices Generator reclaims material onsite under hazardous waste regulations Generator reclaims material onsite under GCE Generator sends material offsite for reclamation to RCRA

- permitted facility under hazardous waste regulations Generator sends material offsite for reclamation at a RCRA

- p ermitted facility under TBE Generator exports material under hazardous waste regulations for reclamation in another country Generator exports material under the TBE for reclamation in another country Scenario 2: Generator switches from off
- site disposal to on
- site reclamation Generator sends material offsite to a RCRA permitted facility

for incineration or landfilling under hazardous waste regulation s Generator reclaims material onsite under GCE

Scenario 3: Generator switches from off
- site d isposal to off

- site recycling under the control of the generator Generator sends material offsite to a RCRA permitted facility

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

that it controls under GCE Scenario 4: Generator switches from off
- site disposal to off

- site recycling at a RCRA
permitted facility Generator sends material offsite to a RCRA permitted facility

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

- permitted facility under TBE
Scenario 5 : Generator switches from off
- site disposal to off

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

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

in the United States without a RCRA permit under TBE Scenario 6 : Generator switches from off
- site disposal to exporting for recycling Generator sends material offsite to a RCRA permitted facility

for incineration or landfilling under hazardous waste regulation s Generator exports material under the TBE for reclamation in another countryDRAFT Internal Report Provided for Peer Review 12/20/2010

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Table 2.1. Scenarios under Baseline and DSW Exclusions Baseline DSW Practices Scenario 7 : Generator switches from off
- site recycling at a facility without a permit to another type of recycling under the 2008 DSW final rule Generator sends material offsite for reclamation at a facility

in the United States without a RCRA permit under hazardous waste regulation s  Generator sends material offsite for reclamation at a facility under GCE, or  Generator exports material under the TBE f or reclamation in another country , or  Generator sends material offsite for reclamation at a RCRA permitted facility under TBE, or  Generator sends material offsite for reclamation at a facility in the United States without a RCRA permit under TBE Scenario 8: Generator switches from off
- site recycling at a RCRA
- permitted facility or exporting waste for recycling to another type of recycling under the 2008 DSW final rule Generator sends material offsite for reclamation to RCRA

- permitted facility un der hazardous waste regulation s  Generator reclaims material onsite under GCE, or  Generator sends material offsite for reclamation at a facility that it controls under GCE, or  Generator sends material offsite for reclamation at a facility in the United States without a RCRA permit under TBE, or  Generator exports material under the TBE for reclamation in another countryDRAFT Internal Report Provided for Peer Review 12/20/2010

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Table 2.1. Scenarios under Baseline and DSW Exclusions Baseline DSW Practices Generator exports material under hazardous waste regulation s for reclamation in another country  Generator reclaims material onsite under GCE, or  Generator sends material offsite for reclamation at facility under GCE, or  Generator sends material offsite for reclamation at a RCRA permitted facility under TBE, or  Generator sends material offsite for reclamation at a facility in the United States without a RCRA permit under TBE 2.2 General Hazards Associated with Hazardous Secondary Material This section describes the general hazards associated with HSM s when managed b y rec ycling. 9 Section 2.2.1 identifies the ty pes, quantities, and properties of HSM that are generated and reclaimed nationally

and describes their chemical and phy sical properties. Because of the wide variety of HSMs that may be recycled, not all of them are addressed in this section . Section 2.2.1 identifies the ty

pes of HSMs that are the focus of this section , and provides the reasoning behind why

these materials were selected ba sed on their quantities and properties. Section 2.2.2 contains a description of the hazards associated with selected HSMs based on their properties. While this section focus es on the hazards associated with these HSMs , the EJ anal ys is presented in this report covers all HSMs that may be recycled under the DSW exclusions. Section 2.2.3 describes the processes associated with the generation, storage, and recycling of the selected HSM s , and how those processes can result in potential hazards to human health and the environment. 2.2.1 Types and Quantities of Hazardous Secondary Materials This section describes the ty pes, quantities, and properties of HSMs. evaluated It identifies the ty pes and quantities of HSMs generated, and using that information, identifies two specific HSMs that are the selected as the focus of this report

— spent solvent s and electric arc furnace dust

. It also describes the quantities and characteristics of these two wastes that resulted i n their selection as a focus of this report. For the selected wastes, Section 2.2.2 describes their properties, including the potential human health and environmental hazards they pose, contamination pathway s, and human health effects. Types and Quanti ties of Hazardous Secondary Material Each ye ar, man y types of hazardous waste are recycled, each possessing distinct quantities and properties. In 2007, the most recent ye ar for which comprehensive information about the

9 While the term recycling is used throughout this document, the 2008 DSW final rule was limited to reclamation activities.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 9 generation and management of hazardous waste is available, over 370 ty pes of hazardous waste codes contained in 40 CFR 261 were recycled. These waste codes include a wide variety of materials, including aqueous streams, referred to as wastewaters , streams that contain organic liquids , or p hy sicall y solid materials, referred to as nonwastewaters. These materials also include a wide variety of wastes from manufacturing and other processes , and they contain man y different chemicals, including halogenated organic compounds, nonhalogenated orga nic compounds, metals, and other contaminants. In 2007, about 16,000 facilities generated 32.3 million tons of hazardous waste. Of this, some 2 million tons were recycled. Figure 1 shows the waste codes associated with the largest amounts of recycled h azardous wastes in 2007 were electric arc furnace dust and spent solvents.

Preliminary Draft - Do Not Ci te 8 

# Figure 1: Hazardous Waste Recycled in

20 07

Sources: 2007 Biennial Report

– GM Onsite and Offsite Form s

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

TC MT F003 F006 F037

TC ORI CR Re ma in in g 370 Waste Code Grou ps

F005 D007 KXXX K171
K0 88 K061

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

tu re of F0 01-F 005 so lv

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

n on-halogenated so lv

ents TC OR IC R - M ix

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

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

h yd ro tre at ing ca ta ly

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

n on-halogenated so lv

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

8% 6%

EPA’s An Assessment of Environmental Problems Associated W ith Recycling of Hazardous Secondary Materials (hereafter referred to as the Environmental Problems Study ; U.S. EPA, 2007) contains information about the ty pes of potential hazards from the mismanagement of HSMs. The most common ty pes of secondary

materials associated with the damage cases evaluated in the Environmental Problems Study were scrap metals (17% ), used oil (15%) solvents (14%) and non

- ferrous metals (13%).DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 10 EPA selected two materials, solvents and electric arc furnace dust, as a focus of this report as a focus of this report because they represent a relatively

large amount of HSMs that would be e ligible for exclusion under the 2008 DSW final rule, as well as represent a vari ety of characteristics of HSMs, as described below. S pecificall y, s olvent waste s were selected as a focus of this report because of their prevalence in the damage cases, the large amount of solvents currentl y rec ycled, and the potential hazards posed by solvents. The potential hazards posed by sol vents are discussed in the S ection 2.2.2 . In addition , solvents that are recycled are ty picall y in a liquid state, and usually contain volatile organic chemicals, which present particular management challenges associated with the storage of liquids and fugitive air emissions. Solvents also include both halogenated and nonhalogenated organic chemicals, which represent a broad range of chemicals and associated hazards. Electric arc furnace dust is a focus of this report because it was the most commonly recycled material in 2007. In addition, selecting electric arc furnace dust complements the selection of solvent waste s because these two types of HSM s represent a variety of characteristics of HSM s . Electric arc furnace dust is usually in a solid state and presents different management challenges than liquid solvents. For example, electric arc furnace dust may be stored in waste pile s, while solvents are generall y stored in tanks or drums. Electric arc furnace dust is also often present as a dust, which presents hazards associated with wind

- blown dust. In addition, this HSM contains metals, a class of potential contaminants that is generall y considered to pose hazards different from the organic chemicals found in solvents. By selecting solvents and electric arc furnace dust , this report can assess a variety of potential hazards and management challenges. The potential hazards associated with solvents and electric arc furnace dust and their recycling are discussed further below. Other secondary

materials associated with damage cases, including scrap metals and used oil, are not a focus of this report because they are already covered b y exclusions or special management standards and their regulation and management are not expected to be significantly impacted by the 2008 DSW fin al rule. Non

- ferrous metals are not a focus because they are less prevalent in the damage cases than solvents, and are not currently recycled in the quantities similar to electric arc furnace dust. . In addition, some HSM containing non

- ferrous metals, s uch as mercury lamps and mercury

- containing equipment, are also covered under the Universal Waste regulations, which facilitate the environmentally sound collection and proper recycling or treatment of these wastes. The management of hazardous wastes alre ady subject to the Universal Waste standards is not expected to be impacted b y the 2008 DSW final rule as wastes subject to full hazardous waste regulatory

controls prior to the DSW rule promulgation. Lead

- acid batteries are similarly not a focus of this report because they are also subject to the Universal Waste standards. 2.2.2 Hazardous Properties of HSM s: Solvents and Electric Arc Furnace Dust This section provides an overview of the hazardous properties of the two HSMs that are the focus of this study : so lvent s and electric arc furnace dust . It discusses the media, exposure routes, and health effects to understand the hazardous properties of these HSM s and how they can impact human health and the environment. It then presents an overview of the health ef fects associated with solvents and electric arc furnace dust , including the specific health effects associated with selected chemicals they contain, including whether they are expected to present a fire or explosion hazard.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 11 The chemicals used as solvents can generall y be classified into two broad groups : halogenated volatile organics and nonhalogenated volatile organics. The chemicals within these groups tend to share similar characteristics, manufacturing processes, uses, and health effects. Because th ese groups contain a variety of chemicals, this report identifies a single chemical from each group that is generall y representative of the characteristics and health effects of the group, and describes the specific health effects for them

. More detailed information about the health effects for other solvent chemicals can be found in other sources , such as EPA’s Integrated Risk In formation Sy stem (IRI S) at http://www.epa.gov/IRI S/ and the Agency for Toxic Substances and Disease Registry

website (http://www.atsdr.cdc.gov/ ). For electric arc furnace dust , the health effects are expected to be related to the toxic metals it contains. 40 CFR Part 261 , Appendix VII, “Basis for L isting Hazardous Waste,” indicate s that electric arc furnace dust is listed as hazardous because of lead, hexavalent chromium and cadmium . This report describes the health effects associated with each of these metals.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 12 Exposure Routes by Media Contaminated Soil:
 Dermal (skin c ontact with contaminated soil)
 Oral (ingestion of contaminated soil)
 Inhalation (volatilization of contaminants from soil)
 Eye (windblown dust, volatilization of contaminants from soil) Contaminated Air:
 Inhalation
 Eye Contaminated Water:
 Oral (ingestion of contaminated water)
 Dermal (skin c ontact with contaminated water)
 Inhalation (volatilization of contaminants from water)
 Eye (volatilization of contaminants from 2.2.3 Media, Exposure Route, and Health Effects Hazard Associated with Recy cling of HSM Toxic wastes are characterized using risk assessment; therefore this section uses terminology

that is common in risk assessment. A risk assessment usually begins with hazard identification, which is the process of determining whether exposure to a chemical agent can cause an increase in the incidence of a particular adverse health effect (e.g., cancer, birth defects) and whether the adverse health effect is likely

to occur in humans. Exposure assessment includes the identification of which media, such as soil, ai r, or water, might come into contact with humans or other receptors. The media affects the exposure routes, such as inhalation or skin contact, that should be considered. The exposure route affects the ty pe of s ymptoms the exposed person or other receptor experiences. For example, contamination in air could result in inhalation exposures that have respiratory effects , while contamination in water could result in ingestions that have gastrointestinal effects. For each example hazard within a category , the most prevalent exposure media are discussed below , as well as the health effects associated with different exposure routes. Exposure Media (air, water, and soil)

- Accidents and improper handling of HSMs have the potential to contaminate water, air, and s oil. Of the recycling related damage cases, soil and groundwater contamination events accounted for 77% of cases, surface water contamination accounted for 17% of cases, and releases to the air accounted for 11% cases. Exposure Route

- Exposure routes in clude inhalation, dermal (skin), eye, and ingestion (oral). The frequency

and duration of potential exposure are also an important consideration. For example, acute exposures are short term, high dose exposures , while chronic exposures are long term, lower dose exposures. Health Effects

– Ignitable and reactive wastes pose physical hazards , such as explosion and fire which have the potential to directly cause bodil y harm. Explosions and fire can also create exposure pathway s for chemical exposures and sources of environmental contamination. For example, toxic fumes from a fire can have effects on a population nearb y and toxic releases from the event can result in longer term lower level exposures that may be related to chronic effects. Toxic wastes also can cause other types of adverse human health effects which EPA breaks into two broad categories : cancer and non

- cancer. The non

- cancer health effects can be classified according to what biological sy stem or organ is affected ; for example, developmental, reproductive, neurological, immune sy stem, circulatory s ys tem, liver, gastrointestinal, or other effects. Health effects can also have clinical descriptions, such as blurred vision, nausea, andDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 13 headache. In general the sometimes extensive list of cl inical s ymptoms can be grouped based on what biological sy stem is being affected to cause the sy mptom set. Solvents Solvents may

contaminate soil or groundwater from leaks, spills or other releases. Because they tend to be volatile, they also are likel y to be released to the air by advection and dispersion into the atmosphere . Solvents may cause exposure by

all of the routes considered in this report, including inhalation, dermal (skin), eye, and ingestion (oral). Solvent chemicals may h ave both acute and chronic health effects, and may be ignitable or explosive, presenting fire hazards. Solvents can generally

be divided between halogenated and non

- halogenated based on their use and potential hazards. For halogenated and nonhalogenated s olvents, the sections below describe the chemicals typicall y contained in them , and the hazards associated with an example that is representative of the typ e of solvent.

Halogenated Solvents Agents

- H alogenated solvents used in degreasing include: 10 tetrachloroethylene (PERC) , trichloroeth yl ene, methylen e chloride, 1,1,1

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

- trichloroethane, 1,1,2

- trichloroethane, 1,2,2

- trifluoroethane, ortho

dichlorobenzene, trichlorofluoromethane, 1,1,2

- trichloroethane, and chlorobenzene. Example agent

- tetra chloroethylene (P ERC)

. Environmental Fate 11

– Tetrachloroeth yl ene is volatile and releases can be airborne. When released into the subsurface , it may contaminate soil and groundwater. Releases to surface soil and water may also volatilize resulting in re leases to the atmosphere . Soil and water bacteria will break it down slowly , so in soil and subsurface water , it may last for months to years. When released into the atmosphere , it may be moderatel y degraded b y reaction with photochemicall y produced h ydroxyl radicals. Environmental Toxicity

– Based on fish studies, tetrachloroeth yl ene is expected to be toxic to aquatic life. It does bioaccumulate in fish to a limited extent. Chronic and acute effects on plants, birds, or land animals have not been determined, but appear to be low. Acute Exposure Human Health Effects 12

–
 Inhalation

– Irritating to the upper respiratory tract. Giddiness, headache, intoxication, nausea and vomiting may follow the inhalation of large amounts , while massive amounts

10 http://web.mit.edu/environment/ehs/topic/rcra_ref/epa_nonspecific.html http://www.hsia.org/ 11 http://www.npi.gov.au/substances/tetrachloroethylene/environmental.html 12 http://www.jtbaker.com/msds/englishhtml/t0767.htm ; http://www.epa.gov/iris/subst/0106.htm ; http://www.epa.gov/ttn/atw/hlthef/tet

- ethy .html ; and http://www.atsdr.cdc.gov/ToxProfiles/tp.asp?id=265&tid=48 Examples of Halogenated Solvents Uses:
 Brake cleaners
 Dry cleaning
 Food processing
 H ousehold cleaners
 Metal cleaning
 S ynthesis of other chemicals
 W a ter repellants
 Silicone lubricants
 S pot removersDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 14 can cause breathing arrest, liver and kidney damage, and death. Concentrations of 600 ppm and more can affect the central nervous s ys tem after a few minutes.

 In gestion

– Not highl y toxic by this route because of low water solubility . Used as an oral dosag e for hookworm (1 to 4 ml). Causes abdominal pain, nausea, diarrhea, headache, and dizziness.

 Skin Contact

– Causes irritation to the skin. Sy mptoms include redness, itching, and pain. May be absorbed through the skin with possible sy stemic effects.

 Eye Contact

– Causes irritation, redness, and pain.

 Aggravation of Pre

- existing Conditions

– Persons with pre

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

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

– May cause liver, kidney

or central nervous s ys tem damage after repeated or prolonged exposures. Reasonably anticipated to be a human carcinogen based on animal studies. F ire

- Not considered to be a fire hazard , but becomes hazardous in a fire situation because of vapor generation and possible degradation to phosgene (highl y toxic) and hydrogen chloride (corrosive). Vapors are heavier than air and collect in low

- lying area s. Explosion

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

Non

-Halogenated Solvents Agents 13

- Paint thinners include: acetone, x yl ene, ethyl acetate, ethyl benzene, ethyl ether, methyl isobutyl, ketone, n

- b utyl alcohol, cyclohexane, and methanol. Carburetor dip cleaner includes: cresols, cres yl ic acid, and nitrobenzene. Lacquer thinners include: toluene, methyl ethyl ketone, carbon disulfide, isobutanol, py ridine, benzene, 2

- ethox yethanol, and 2

- nitropropane

. Example agent

- benzene

. Environmental Fate 14

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

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

degrade with a calculated half

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

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

- life 16

- 28 day s) under aerobic conditions. L imited degradation occurs under anaerobic conditions. Environmental Toxicity 15

– Benzene has high acute toxic effects on aquatic life. Long

- term effects on marine life can mean shortened lifespan, reproductive problems, lo wer fertility and changes in appearance or behavior. It can cause death in plants and roots and damage to the leaves of man y agricultural crops.

13 http://www.dep.state.fl.us/northeast/wast e/HWdeterminations.htm 14 http://www.npi.gov.au/substances/benzene/environmental.html 15 http://www.npi.gov. au/substances/benzene/environmental.htmlDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 15 Acute exposure human health effects 16

 Inhalation

– Excessive inhalation may result in heartbeat irregularities and adverse central nervous s ys tem effects , including headache, sleepiness, dizziness, nausea, loss of coordination, and in extreme conditions , coma and/or death. Additional adverse inhalation effects may

also include long

- term damage to the blood forming sy stem, kidney and liver damage, and/or cancer (leukemia).

 In gestion

– In gestion of benzene may result in adverse central nervous s ys tem effects , including headache, sleepiness, dizziness, nausea, loss of coordination, and in extreme conditions , coma and/o r death. Ingestion may also cause kidney

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

injury

.  Skin

– Benzene may

be rapidly

absorbed through the skin. Prolonge d and/or repeated skin contact may

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

also cause skin sensitization and secondary skin infections.

 Eye

– Contact with liquid and high concentrations of vapors are irritating to the eyes. Chronic exposure human health effects

– Long

- term exposure has been associated with certain ty pes of leukemia. IARC and OSHA consider benzene to be a human carcinogen. EPA has classified benzene as a Group A, known human carcinogen for all routes. Chronic e xposures have been reported to cause bone marrow abnormalities and adverse blood effects , including anemia. Progressive deterioration of the hematopoietic function expressed as a decrease in absolute ly

mphocy te count is the most sensitive indicator of benz ene exposure. Benzene also may cause fetotoxicity

and teratogenicity. Chromosomal aberrations have been noted in animal tests. Fire and container explosion hazards are serious when benzene is exposed to heat or flame. Vapor is heavier than air and may spread long distances. Distant ignition and flashback are possible. Flammable liquid and vapor can accumulate static charge which can form an ignitable vapor - air mixture in a storage tank. Benzene will float on water and may travel to distant locations and/o r spread fire. Electric arc furnace dust Agents 17

- Electric arc furnace dust is comprised of a variety of metals, including iron, cadmium, zinc, calcium oxide, magnesium oxide, lead, silicone, manganese, copper, chromium, and aluminum. This review focuses on electric arc furnace dust generall y, as well as the hazards of hexavalent chromium, lead, and cadmium because these are the constituents for which electric arc furnace dust was listed as a hazardous waste. The specific composition of electric arc furnace dust varies depending upon the type of material production from which it was generated (e.g., carbon steel or stainless steel manufacturing) and furnace additives.

16 http://www.novachem.com/productservices/docs/Benzene_MSDS_EN.pdf http://www.atsdr.cdc.gov/ToxProfiles/tp.asp?id=40&tid=14 http://www.cdc.gov/exposurereport/data_tables/Benzene_ChemicalInformation.html

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

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– Do not Cite or Quote 16 Environmental Fate 8

– Based on its various co nstituents , electric arc furnace dust is expected to be hazardous to the environment, and toxic to fish, animals, and plants. It is also likely to persist in the environment for a long time, due to the insoluble and non

- biodegradable nature of the toxic metals it contains. Individual constituents (e.g., cadmium) may bioaccumulate in organisms via dissolved metal in the water column or through consumption of prey containing bioaccumulated metals. Acute exposure human health effects 18

 Inhalation

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

to a substance) may

occur from acute inhalation exposure.

 In gestion

– Though ingestion is unlikely , it can lead to abdominal pain, vomiting, fever, an d diarrhea. Ingestion of large amounts can also elevate lead levels in the body ; however, most health effects occur only after prolonged exposure to lead (see below).

 Eye

– Electric arc furnace dust can cause irritation or inflammation of the eye; rubbi ng the eye upon exposure can damage the cornea.

 Dermal

– Electric arc furnace dust can cause irritation, skin lesions, and/or allergic reactions of the skin. Chronic exposure human health effects

– Excessive, repeated exposure to electric arc furnace dust may cause allergic sensitization in the form of dermatitis and asthma, lung inflammation and damage (e.g., pneumonia, bronchitis, and siderosis [chronic inflammation of the lung]), nasal perforation and nasal cavity damage, eye inflammation, permanent central nervous s ys tem damage, kidney

damage, liver damage, gout (inflammation of the joints), and lead poisoning. The carcinogenicity of electric arc furnace dust as a whole has not been determined, though hexavalent chromium may cause cancer. Furthermore, a study b y Garaj

- Vrhovac 19 et al. indicates that electric arc furnace dust can cause DNA damage. Fire 20

– Electric arc furnace dust is not flammable. Explosion 11

– Accumulation of dust can lead to explosion if near an ignition source. Hexavalent Chromiu m 21

– Inhalation: Chronic exposure via inhalation to hexavalent chromium may develop asthma or other respiratory problems , such as coughing, wheezing, chronic sneezing, bronchitis, and nasal perforation (holes). Intermediate and chronic occupational exposure to hexavalent chromium may cause death due to noncancer respiratory disease. Occupational (work) exposure to hexavalent chromium can cause abdominal pain, nausea, and vomiting, most likely

due to ingestion from breathing through the mouth. Workers exp osed to hexavalent chromium have experienced severe liver effects , such as cirrhosis. Eye exposure to aerosols or dusts may

cause eye effects , such as conjunctivitis (inflammation of the inner membrane of the eyelids). High

- level acute exposure to hexavalent chromium may lead to

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

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

- 8

- 08.pdf 19 Garaj

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

- 287. 20 Cascade Steel Rolling Mills, Inc. , 2001 21 AT SDR. 2009. Toxicological profile for chromium . Available online at http://www.atsdr.cdc.gov/ToxProfiles/TP.asp?id=62&tid=17#bookmark07

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– Do not Cite or Quote 17 dizziness, headache, and weakness. Workers exposed to hexavalent chromium have experienced changes in hormones and complications during pregnancy . Occupational exposure to hexavalent chromium may

also cause respiratory

s ys tem cancers , primaril y in the bronchi and nose. In gestion: Ingestion of hexavalent chromium may lead to death. Subjects who died of oral exposure experienced various sy mptoms , including respiratory effects , such as severe bronchitis and pulmonary

edema (fluid in the lungs), cardiopulmonary effects , such as lowered blood pressure and heart rate, and gastrointestinal effects , such as nausea and vomiting. Acute ingestion may

also affect the blood, leading to e ffects , such as anemia. Kidney damage and liver damage (evidenced b y s ymptoms , such as jaundice) may occur upon acute, high

- level oral exposure. In humans, evidence of cancer from oral exposure is mixed, while hexavalent chromium has caused cancer in ani mals. Chronic dermal exposure may lead to ulcerated skin, dermatitis, and burns. Lead

– Generally , the toxicity of lead does not depend on the route of exposure (e.g., inhalation or ingestion). Chronic exposure to high levels of lead may cause cerebrova scular disease, increased blood pressure and other cardiovascular problems, gastrointestinal effects, anemia (a blood disorder with sy

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

effects, lowered IQ and other neurotox ic effects (e.g., dizziness, memory loss), and hormonal effects. 22 Cadmium 23

– Inhalation: Short

- term, high

- level inhalation exposure to cadmium can cause death in humans several day s after exposure, ultimately caused b y respiratory failure or other respirat ory

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

irritation, which initially may begin with mild irritation of throat and mucous membranes, but up to 10 hours later becomes more severe with flu

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

- like sy mptoms do not occur with a low

- level, chronic exposure to cadmium. However, chronic inh alation exposure over years can lead to decreases in lung function, emphy sema and dy spnea (shortness of breath), or possibly death. Lung function may

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

be affected (e.g., through the development of osteoporosis) after chronic exposure to cadmium. Cadmium is strongl y linked to kidney effects when exposure levels are high, while there is weak evidence that cadmium can affect the immune sy stem. Animal studies show th at inhaled cadmium can affect the offspring of exposed mothers b y lowering their body weight, their ability

to survive, and their neurobehavioral function (e.g., motor activity). Long

- term exposure to cadmium may cause cancer, most likely in the lung. In gestion: In gesting large quantities of cadmium can cause death. High oral cadmium exposure has been associated with cardiovascular effects , such as heart attack and high blood pressure. Human and animal studies show that large ingested amounts of cadmium cause ga strointestinal disturbances , such as nausea, vomiting, and abdominal cramps. Cadmium ingestion can cause anemia if dietary

iron intake is low. Oral exposure is also associated with bone and kidney effects and neurological effects, such as lowered IQ. Reproductive effects similar to those seen

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

- c3.pdf

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

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– Do not Cite or Quote 18 after inhalation exposure may occur, but information on effects in offspring of orall y- exposed animals/humans is limited. Most cancer studies have not found an increase in cancer among people or animals exposure o rall y to cadmium. Cadmium has been shown to cause DNA damage. 2.2.4 Hazards Associated with Recycling of HSM This section describes some of the general activities that facilities commonly perform in handling HSM s, as well as some of the potential exposure media that may be associated with them. The facilities described in this section include:

 Generators of HSM

 Transporters of HSM

 Intermediate and reclamation facilities of HSM Note that the descriptions in this s ection are intended to be general and do not capture all of the different handling practices and hazards that may occur at a given site. This section also uses the hazard information from Section 2.2 .2 to identify potential hazards associated with the ac tivities identified in this section. These hazards are being considered independentl y of an y regulation to mitigate the potential effects of these hazards. Regulatory considerations are discussed in Section 2.3. Potential hazards for solvents and K061 are summarized in Table 2. 2

. Table 2. 2 . Summary of Potential Hazards
Facility Type HSM Fire Explosion Soil Water Air Wind Dispersal Residues

from Reclam ation Generators Solvents      

Electric Arc Furnace Dust     Transporters Solvents      

Electric Arc Furnace Dust    
Intermediate/ reclamation facilities Solvents      

Electric Arc Furnace Dust    

Generators Activities A generator may generate HSM from a variety of activities , such as manufacturing, processing, cleaning, degreasing, and service industries. Figure 1 above shows the most commonly recycled HSM s . Generators may

temporaril y accumulate HSM at or near the point of generation (e.g., inDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 19 containers) before transferring them to another location on

- site (e.g., to centralized accumulation), or they may be transferred to another location on

- site immediately after it is generated. HSM may

be transferred on

- site using manual equipment (e.g., a hand trolley or cart), machinery (e.g., forklift or truck), or piping, tanks and other interconnected equipment or means of conveyance . At centralized accumulation areas on - site, HSM may be held in containers, tanks, or other units. Various operations also are performed (e.g., opening and closing containers to add HSM, filling tanks using piping or portable equipment). Periodically , off

- site transporters will collect the HSM for offsite transportation. Some generators do not operate centralized accumulation areas; rather, the off

- sit e transporter collects the HSM at or near the point of generation. Some generators reclaim their HSM on

- site. For solvents, distillation is the process used most frequentl y to recycle spent solvents. The process separates chemicals by the addition of heat, which causes the more volatile compounds, ty pically the solvent to be recovered, to vaporize. The vaporized solvent is then condensed back into liquid and reused. This process results in a residue that may

contain solvents or other chemicals and may require subsequent management as a hazardous waste. Sy stems used for on

- site distillation may include fixed or mobile trailer sy stems brought to the facility by a vendor. When electric arc furnace dust is recycled on

- site, the recycling typically consis ts of collecting electric arc furnace emissions in a bag filter, conveying dust to a hopper, phy sicall y processing it by briquetting and feeding it back into the electric arc furnace that generated the waste. Prior to recycling, it may

be stored in bins, drums, other containers, or waste piles. Potential Hazards Following are possible hazards associated with the generator activities described above for solvents and electric arc furnace dust : Solvents

 Fires and explosions. Solvent wastes , especially non - halogenated solvents are often highl y flammable, and can ignite to create fires and explosions. Because solvent s also tend to be volatile, air emissions may ignite to cause fires and explosions if ignited, resulting in injury

or property

damage. Fires and explosions may also evolve other toxic or hazardous gasses.

 Volatile organic air emissions during accumulation and transportation on

- site. Under certain conditions, solvents held in tanks or containers could volatilize and escape to the atmosphere through open container lids, uncovered tanks, leaks and vents, container breathing (a process that can cause air containing solvents to move out of a container or tank as the air in a container expands and contracts due t o changes temperature), and container filling (as the air in a container is displaced b y liquid added to the container).

 Wind dispersal of particulate matter during accumulation and transportation on

- site. Wind dispersal can occur if the HSM is in the form of a dust or small, dry particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts). Soil or other solid media contaminated with solvents may be susceptible to wind dispersal.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 20  Soil, groundwater, an d air contamination from liquid releases during accumulation and transportation on site. During accumulation, a number of factors could lead to a release, such as tank overflows or overtopping; leaks from damaged or deteriorated containers or tanks; compl ete failure of tank or container integrity ; and run on/run off from the storage area. During transfer, releases could include spills, overflows, and leaks from human error or deterioration of transport equipment (e.g., leaking pipes). Solvent wastes are susceptible to such releases since they are commonly

in la liquid state.

 Air emissions from reclamation. The solvent reclamation processes described above use the addition of heat to accomplish desired chemical reactions (e.g., vaporization of organics, melting of metals). These processes can produce air emissions from various locations, such as stacks, equipment leaks, and vents.

 Residues from on

- site reclamation. The reclamation processes described above could result in a hazardous waste that require s further treatment before land disposal in accordance with RCRA Subtitle C. Electric Arc Furnace Dust

 Fires and explosions. Accumulation of dust can lead to an explosion if near an ignition source.
 Wind dispersal of particulate matter during accumulation and transportation on site. Wind dispersal can occur if the HSM is in the form of a dust or small, dry particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts). Electric arc furnace dust in particul ar might be susceptible to wind dispersal during accumulation or transfer, since it is often present in dust form, and may be stored in uncovered waste piles.

 Soil and groundwater contamination can occur. During transfer, spills due to human error or det erioration of transport equipment. Transporters Activities HSM may

be shipped off

- site by a variety of modes (e.g., highway, rail, water). The most prevalent is b y highway using a wide variety of trucks (e.g., vacuum trucks or trailers, pump tankers, vans , dump trucks, tractor trailers). A transporter may pick up loads from multiple generator s (i.e., less than truck load shipments) or it may pick up a full truckload from a single generator . During a shipment, a transporter may perform various activities, such as consolidating, re

- rout ing or transferring shipments.

Potential Hazards Following are possible hazards associated with the transportation activities described above for solvents and electric arc furnace dust : General (both solvents and electric arc furnace dust )

 Vehicle air emissions. Transportation vehicles emit pollution as a result of combustion of fuel and fuel evaporation. Primary air pollutants include carbon monoxide, hydrocarbons, nitrogen oxides, and particulate matter. These pollutants can lead toDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 21 adverse health effects in children and adults and worsen environmental problems (e.g., increasing the amount of greenhouse gases in the atmosphere).

 Traffic accidents. Accidents involving trucks containing HSM may result in releases of the HSM . This can result in contamination of soil and water, air emissions, fires, and explosions. In addition, accidents during the transport of HSM may cause fatalities, injuries and property damage even if the HSM is not released.

 Traffic congestion and nois e. Transportation vehicles can contribute to increased levels of traffic congestion and noise along the transportation route. These effects can worsen the quality

of life of people working or residing nearb y. Solvents

 Fires and explosions. Solvent wastes are often flammable, and can ignite to create fires and explosions. Because solvent HSM also tends to be volatile, air emissions may cause fires and explosions if ignited, causing injury or property damage. Fires and explosions may also evolve other toxic or hazardous gasses.

 Volatile air emissions. During loading, unloading, and transport , volatile air emissions may escape from valves, pumps, hoses, tank trucks, drums, and other containers. Under certain condition s, solvents held in tank trucks or drums could volatilize and escape to the atmosphere through open container lids, uncovered tanks, leaks and vents, container breathing (a process that can cause air containing solvents to move out of a container or tank a s the air in a container expands and contracts due to changes in temperature), and container filling (as the air in a container is displaced b y the liquid added to the container). Under some conditions, volatile air emissions may ignite to cause fires and explosions. Electric Arc Furnace Dust

 Fires and explosions. Accumulation of dust can lead to explosion if near an ignition source.
 Air emissions of metals. During the electric arc furnace dust recycling process, the high temperatures used may

cause volatile metals , such as lead and zinc to volatilize and be emitted in the flue gas from the facility

.  Wind dispersal of particulate matter during loading and transportation. Wind dispersal can occur if the HSM is in the form of a dust or small, dry parti cles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts). Electric arc furnace dust in particular might be susceptible to wind dispersal during loading or transfer, since it is often present in dust form

. Intermediate and Reclamation Facilities Activities Intermediate and reclamation facilities periodically receive HSM from off

- site sources. The HSM may

be placed in storage units at the facility until it is ready

for reclamation or transfer to a reclamatio n facility . Facilities may store the HSM in containers, tanks, waste piles, or other units in accord ance with applicable regulations

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– Do not Cite or Quote 22 In addition, processing of the HSM may be performed before reclamation. This may include, for example, aggregation/cons olidation of the HSM to facilitate the reclamation process, filtration of other phy sical processes to remove impurities, or other processing steps. This may be performed in tanks, containers or other equipment. HSM may be transported from on

- site storag e and processing units to the reclamation unit using machinery (e.g., trucks) or pipes, tanks, and other equipment. For solvents, distillation is the process used most frequentl y to recycle spent solvents. The process separates chemicals by the addition o f heat, which causes the more volatile compounds, ty picall y the solvent to be recovered, to vaporize. The vaporized solvent is then condensed back into liquid and reused. This process results in a residue that may contain solvents or other chemicals and may

require subsequent management as a hazardous waste. Off

- site management of electric arc furnace dust is most frequently conducted using processes to separate and recover metals, such as High Temperature Metals Recovery (HTMR). In the HTMR process , electric arc furnace dust is mixed with coal or coke, the mixture is pelletized, and heated in a furnace to reduce iron and nickel oxides. The resulting material is then fed to an electric arc furnace, where volatile metals , such as lead and zinc are remo ved from the flue gas, and metal and slag are separated and removed.

Potential Hazards The hazards for off

- site recycling facilities are generall y the same as those for on

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

 Fires and explosions. Solvent wastes are often flammable, and can ignite to create fires and explosions. Because solvent HSM also tends to be volatile, air emissions may cause fires and explosions if ignited, causing injury or property damage. Fires and explosions may also evolve other toxic or hazardous gasses.

 Volatile organic air emissions during accumulation and transportation on

- site. Under certain conditions, solvents held in tanks or containers could volatilize and escape to the atmosphere through open container lids, uncovered tanks, leaks and vents, container breathing (a process that can cause air containing solvents to mo ve out of a container or tank as the air in a container expands and contracts due to changes in temperature), and container filling (as the air in a container is displaced b y liquid added to the container). Under some conditions, volatile air emissions may ignite to cause fires and explosions.

 Wind dispersal of particulate matter during accumulation and transportation on

- site. Wind dispersal can occur if the HSM is in the form of a dust or small, dry particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts). Soil or other solid media contaminated with solvents may be susceptible to wind dispersal.

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

- site. During accumulation, a number of factors could lead to a release, such as tank overflows or overtopping , leaks from damaged or deteriorated containers or tanks , complete failure of tank or container integrity , and run on/run off from the storage are a. During transfer, releases could include spills, overflows, and leaks from humanDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 23 error or deterioration of transport equipment (e.g., leaking pipes). Solvent wastes are susceptible to such releases since they are commonly

in a liquid state.

 Air emiss ions from reclamation. The solvent reclamation processes described above use the addition of heat to accomplish the desired chemical reactions (e.g., vaporization of organics, melting of metals). These processes can produce air emissions from various loc ations, such as stacks, equipment leaks, and process vents.

 Residues from on

- site reclamation. The reclamation processes described above could result in a hazardous waste that requires further treatment before land disposal in accordance with RCRA Subtitl e C. Electric Arc Furnace Dust

 Fires and explosions. Accumulation of dust can lead to explosion if near an ignition source.
 Wind dispersal of particulate matter during accumulation and transportation on

- site. Wind dispersal can occur if the HSM is in the form of a dust or small, dry particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts). Electric arc furnace dust in particular might be susceptible to wind dispersal during accumulation or transfer, since it is often present in dust form, and may be stored in waste piles.

 Soil and groundwater contamination can occur. During transfer, spills due to human error or deterioration of transport equipment. References : U.S. EPA (2007) An Assessment of Env ironmental Problems Associated With Recycling of Hazardous Secondary Materials

. (EPA

- HQ

- RCRA

- 2002

- 0031

- 0355). http://www.regulations.gov/search/Regs/home .html#documentDetail?R=09000064801f3efb U.S. EPA (2008) Definition of Solid Waste Final Rule. Federal Register Volume 73 Page 64663. October 30, 2008. http://www.epa.gov/wastes/hazard/dsw/index. htm EPA Hazardous Waste List http://www.epa.gov/epawaste/hazard/wastetyp es/listed.htm (link to 40 CFR §261.31 contains specific chemicals) CDC (2010a) National Report on Human Exposure to Environmental Chemicals, Halogenated solvents

- http://www.cdc.gov/exposurereport/data_tables/HalogenatedSolvents_ChemicalInformation.html O ther halogenated solvents

- http://www.cdc.gov/exposurereport/data_tables/OtherHalogenatedSolvents_Chemica lInformatio n.html ATSDR Toxic Substances Portal Main page to access Tox Profiles http://www.atsdr.cdc.gov/toxprofiles/index.asp#bookmark05 Source: Delisting Petition For Treated K061, Max Environmental Technologies, Inc. (Hazardous Waste Management Services), Yukon, PA, CEC Project 210966, 11/2003.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 24 http://www.depweb.s tate.pa.us/pubpartcenter/lib/pubpartcenter/EQB/2004/y ukon_delisting_petit ion.pdfDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 25 2.3 Regulatory Comparison
- Summary of Comparative Results by Facility Type and Scenario This section presents the results of EPA’s comparison of the full RCRA Subtitle C hazardous waste regulation s (baseline scenario ) to the federal regulations a pplicable to facilities operating under the 2008 DSW final rule ; in addition, this comparison also includes the Clean Air Act (CAA), the Clean Water Act, the Comprehensive Environmental Response, Compensation, and L iability Act (CERCLA) , the Emergency Planning and Community Right

- to
Know Act (EPCRA) , the Hazardous Materials Transportation Act (HMTA) , and the Occupational Safety and Health A dministration (OSHA)

. EPA compared the regulatory requirements under each of the scenarios described in Section 2

. 1 of this report for the three types of facilities that could manage HSMs under the 2008 DSW final rule: 1. Generators 2. Transporters 3. Intermediate and Reclamation Facilities This section describes the key regulatory differences applicable to each type of facili ty (i.e., generator, transporter, and intermediate and reclamation facilities) under the baseline and 2008 DSW scenarios , identifies the possible consequences of these differences, and indicates , under which of the 8 scenarios these differences and consequ ences could occur. It also notes where the differences are dependent on whether the DSW exclusion is the TBE or the GCE. The summary of comparative results are present ed in a table that summarizes the regulatory differences and consequences b y facility type and scenario. This section only

summarizes the key

regulatory differences that may

lead to a change in impacts to human health and the environment under the 2008 DSW rule. A more detailed comparative analy sis of the regulatory provisions is presented i n Attachment A. DSW Regulations Compared to Full Subtitle C Regulation Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste Exclusions
 Generator
- Controlled Exclusion
 Transfer
- Based Exclusion Clean Air Act (CAA)
 CAA Title V Air Quality Permitting Process
 CAA Standards for Area Sources Not Subject to Title V Permit
 Chemical Accident Prevention Provisions Clean Water Act (CWA)
 Oil Pollution Prevention Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
 Release Notification (RQs) Emergency Planning and Community Right - to - Know Act (EPCRA)
 Release Notification Hazardous Materials Transportation Act (HMTA)
 Overview and Applicability
 Hazardous Materials Regulations
 Transportation of Hazardous Materials; Driving and Parking Rules Occupational Safety and Health Act (OSH Act)
 Process Safety Management of Highly Hazardous Chemicals
 Hazardous Waste Operations and Emergency Response
 Hazard CommunicationDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 26

Generators Following is a discussion of the key differences and consequences in the federal regulation of g enerators of hazardous waste and generators of HSM under the DSW exclusions. The DSW exclusions allow generators to accumulate HSM on - site for longer periods of time than the hazardous waste regulations, which could lead to greater quantities being accumulated at any given time (All scenarios). 24 The hazardous waste regulations and the DSW exclusions set forth time l imits for generators to accumulate HSM on - site. Specificall y, the hazardous waste regulations require generators to ship hazardous waste off

- site every

90 or 180/270 day s (depending on generator size and type of activity involved) , where as the DSW exclusi ons require generators to recycle (or ship for recycling) 75% of the ir hazardous secondary material within one calendar year. This means that generators under the DSW exclusions could accumulate 75% of their HSM on - site for a calendar year and 25% for pot entially longer periods. In addition, the DSW exclusions do not include a quantity limit for on

- site accumulation, in contrast to the hazardous waste regulations for small quantity generators (SQGs). The DSW exclusions require that m aterial be “contained , ” but do not prescribe specific technical standards for containment in contrast to the hazardous waste regulations (All scenarios) . The hazardous waste regulations and the DSW exclusions require containment of HSM in the unit. The hazardous wa ste regulations prescribe specific design, installation, operating, and closure s tandards to address containment, whereas the DSW exclusions do not include prescriptive requirements

. T he DSW exclusions allow more flexibility in how HSMs can be contained. S ome generators and facilities under the DSW exclusions may choose to follow the hazardous waste regulations for their units, particularly if they operate other units that are subject to the hazardous waste regulations. T he DSW exclusion s do not include requirements for generators to control air emissions from their operations , in contrast to the hazardous waste regulations (All scenarios )

. While

24 For g enerators that switch from off

- site management to on

- site recycling (scenarios 2 and 8), there is the possibility that there might be smaller volumes of HSM accumulated, if recycling can occur more quickly than accumulation of enough material for a shipment to be sent off

- site. DSW Scenarios 1. Generator continues current recycling practices 2. Generator switches from off

- site disposal to on

- site reclamation 3. Generator switches from off

- site disposal to off

- site recycling under the control of the generator 4. Generator switches from off

- site disposal to off

- site recycling at a RCRA

- permitted facility 5. Generator switches from off

- site disposal to off

- site recycling at a U.S. facility without a RCRA permit 6. Generator switches from off

- site disposal to exporting f or recycling 7. Generator switches from off

- site recycling at a facility without a permit to another ty pe of recycling under the 2008 DSW final rule 8. Generator switches from off

- site recycling at a RCRA

- permitted facility or exporting waste for recycling to another ty pe of recycling under the 2008 DSW final ruleDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 27 the DSW exclusions require containment of the HSM , they do not include explicit requirements for control of air emissions. The hazardous waste regulations prescribe specific design, operating, and other standards for controlling air releases from process vents, equipment leaks, and storage units b y large quantity generators, whereas the DSW exclusions do not include such prescriptive requirements

. 25 S ome generators operating under the DSW exclusions may be required to get a permit under the CAA regulations. Where facilities are subject to the CAA, requirements to control air emissions are comparable to the hazardous waste regulations. However, facilities not subject to the CAA permitting requirements would not be required to provide a comparable level of control for air emissions from process vents, leaks, and storage units as the hazardous waste regulatio ns. As a result of the DSW exclusions, some generators may change in status under the hazardous waste regulations and be subject to less stringent hazardous waste regulation (All scenarios) . Under the hazardous waste regulations, a site that generates hazardous waste must determine its generator status by counting the quantity

of hazardous waste that it produce s during an y given calendar month:

 It is a large quantity generator ( LQG ) if it generates 1,000 kg or more of hazardous waste in a calendar month, 1 kg or more of acute hazardous waste in a calendar month , or 100 kg or more of any residue, soil, waste or other debris resulting from the cleanup of an y acute hazardous waste.

 It is a sm all quantity generator ( SQG ) i f it generates greater than 100 kg but less than 1,000 kg of hazardous waste in a calendar month

.  It is a conditionally

exempt small quantity

generator ( CESQG ) if it generates less than 100 kg of hazardous waste in a calendar month. LQGs are generall y subject to more stringent requirements than SQGs. For example, L QGs must prepare and follow a contingency plan for emergencies, conduct recurring personnel training on emergency

procedures, and compl y with the full breadth of t ank s ys tems standards and air emission controls as applicable, whereas SQGs do not. SQGs are subject to more

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

- day generators/TSDF s manag ing hazardous secondary materials having a time

- weighted, annual average total organic concentration of 1 0 parts per million by weight (ppmw) or greater , organic concentrations of at least 10 percent in contact or contain ed in “equipment” for at least 300 hours/calendar year , and/or an average volatile organic concentration equal ot or exceeding 500 ppmw , re spectively. While spent solvents are expected to equal or exceed these thresholds triggering organic air emission controls , it is highly unlikely units handling K061 will be subject. Regulatory Requirements Considered
 Legitimate Recycling
 Storage Time Limit
 Containment
 Air Emissions
 Emergency Preparedness and Response
 Personnel Training
 Reporting and Recordkeeping
 Offsite Transportation
 Exports
 Regulation of Residues
 Security
 Financial Assurance
 Requirement for a Permit
 Public InvolvementDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 28 stringent requirements than CESQGs, who are exempt from the hazardous waste regulation, provided they

meet certain requirements. A generator operating under a DSW exclusion would not be required to count its excluded HSM in determining its generator status under the hazardous waste regulations. As a result, the generator may

change to a different status (e.g., from L QG to SQG or CESQG) because it w ould have less hazardous waste to count and therefore would be subject to less stringent hazardous waste requirements. Generator on
- site reclamation may be less stringently regulated under the generator
controlled exclusion than the hazardous waste regu lations (Scenarios 1, 2 and 8). The hazardous waste regulations require LQG reclaimers to comply with the air emission controls (e.g., for process vents on reclamation units). In addition, generators that reclaim hazardous waste on
- site are required to o btain a permit if they store the waste for longer than 90 day s for LQGs , or 180/270 day s for SQGs (depending on ty pe of activity involved) , pending reclamation. The permitting process requires public involvement. The GCE does not include prescriptive re quirements for air emissions; rather it requires that the material be “contained.” It also does not require a permit or public involvement. The hazardous waste regulations and transfer
- based exclusion require comparable procedures for exports (Scenario 1). The hazardous waste regulations require an exporter of hazardous waste to fulfill the notice

- and

- consent requirements prior to export, submit an annual report summarizing export activities, and keep specified records. The TBE also requires generators to perform notice

- and

- consent, annual reporting, and recordkeeping. It also requires generators to perform reasonable efforts to audit the reclaimer. Note that the GCE does not address exports because it requires that the material be generated and recl aimed within the U.S. and territories. So me generators may switch from off
- site reclamation or treatment/ disposal at a RCRA
permitted facility to reclamation under the generator
- controlled exclusion , which does not require a permit (Scenarios 2, 3 and 8) . Some generators may divert their HSM from off

- site reclamation or treatment then disposal at a RCRA

- permitted facility to on
- site reclamation. RCRA

- permitted facilities are subject to prescriptive standards /conditions covering the design, construction, operation, financial assurance, emergency preparedness, and closure of the facility . They also are subject to public involvement in the permitting process. The GCE does not require prescriptive standards, a permit, or public involvement. Reclamation under the generator - controlled exclusion is not subject to the “derived
- from rule,” as is reclamation under the hazardous waste regulations (Scenarios 1, 2 , 3 and 8)

. The haz ardous waste regulations state that any material derived from a listed hazardous waste is also a listed hazardous waste. This is called the “derived

- from” rule. It means that residues from the reclamation of a listed hazardous waste are they themselves that listed hazardous waste. The GCE does not address how residues from the reclamation process should be managed and is therefore not comparable to the hazardous waste regulations in this regard

. As a result, generators under the exclusion could identify residuals to be a new point of generation for the purposes of appl yi ng the hazardous waste determination requirements of 40 CFR 262.11. This raises the possibility

that some residual s from the recovery process that were considered hazardous under full RCRA Subtitle C regulation would no longer be considered hazardous onceDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 29 they exit recovery

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

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

. The DSW exclusions require all generators to notify EPA of their HSM generation and management activities biennially, whereas the hazardous waste regulations require biennial reporting only for LQGs (All Scenarios) . The hazardous waste regulations and DSW exclusions have comparable requirements for initial and biennial sub mittals in regard to frequency and types of information submitted. However, the DSW notification requirement applies to generators regardless of size. The biennial reporting requirement in the hazardous waste regulations applies only to LQGs. Notificati ons or other ty pes of reporting helps the regulatory

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

increasing compliance. Transporters Following is a discussion of the key differences and consequences in the f ederal regulation of hazardous waste shipments and shipments of DSW

- excluded HSMs

. Offsite transport of DSW
- excluded material that qualifies as a DOT hazardous material is generally subject to transportation
- related regulation comparable to hazardous waste shipments (Scenarios 1, 3, 4, 5, 6, 7, and 8). T he DOT regulations set forth requirements for DOT hazardous material shipments in regard to the use of shipping papers, packag ing, labeling, marking, placarding, parking, and driving . The DOT regulations a ppl y to all hazardous wastes , as well as other materials , including commercial products, that qualify as a DOT “hazardous material.” 26 A material qualifies as a DOT hazardous material if it 1) is listed in the Table in 49 CFR 172.101 (e.g., compounds), 2) is listed in the Appendices to the Table in 49 CFR 172.101, 27 or 3) meets one or more of the hazard classifications (e.g., flammable liquid). Following is a further discussion of the DOT requirements with regard to the generator

controlled exclusion and the transfer

- based exclusion :
 Generator

- Controlled Exclusion. Prior to and during offsite transport, h azardous HSMs GCE that qualify

as a DOT hazardous material would be subject to comparable transportation requirements as hazardous waste in regard to packing, labeling, marking, placarding, parking and driving. Specificall y, the DOT regulations appl y similarly to hazardous waste and other ty pes of DOT hazardous materials, such as excluded hazardous secondary material, in regard to these activities. An exc eption, however, is that the excluded material would not be subject to the hazardous waste manifest requirements for chain

- of

- custody tracking and confirmation of receipt.

 Transfer

- Based Exclusion. O nsite handling and o ffsite s hipments of HSMs that quali fy as a DOT hazardous material would be TBE subject to DOT regulation and must comply with comparable transportation requirements as hazardous waste in regard to packag ing, labeling, marking, placarding, parking, driving, and tracking. Note that the TBE r equires recordkeeping of all off

- site shipments by

the generator and reclamation facility and a

26 All hazardous wastes are listed in Part 172 as DOT hazardous materialmaterialmaterial s material and therefore are automatically subject to the DOT regulations as applicable. 27 A hazardous substance (including hazardous wastes and other substances) listed in the appendices must comply with DOT packaging, labeling an d other regulations if it exceededexceededexceed s exceeded its reportable quantity (RQ).DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 30 confirmation of receipt must be sent from the reclaimer to the generator. These recordkeeping and transmittal requirements are comparable to the hazardous was te manifest requirements for chain

- of

- custody tracking and confirmation of receipt. O nsite handling and o ffsite transportation of DSW
- excluded material that no longer qualifies as a DOT hazardous material would not be subject to regulation comparable to hazardous waste shipments (Scenarios 1, 3, 4, 5, 6, 7, and 8)

. Under the generator

- controlled exclusion or transfer

- based exclusion, transportation requirements for e xcluded HSMs GCE the TBE that do not qualify

as a DOT hazardous material would not be comparable to those for hazardous waste in regard to packing, labeling, marking, placarding, parking or driving (or tracking, for ship ments under the GCE ). An excluded material would not need to compl y with the DOT regulations if it is not listed in the T able in 49 CFR 172.101, is not listed in (or otherwise does not exceed its reportable quantity in) the Appendices to the table, and does not meet an y hazard classifi cation

. Further, the Reportable Quantities (RQs) contained in 49 CFR p art 172 that trigge r the DOT hazardous materials requirements are potentially different for hazardous waste and non

- waste. A material

- specific RQ is used to determine whether a hazardous waste or other hazardous substance s must comply

with the DOT requirements (i.e., if the hazardous substance exceeds its RQ, it must comply

). If the material’s RQ is lower as a hazardous waste than as a non

- waste, then a greater quantity

of material would be required to exceed its RQ versus as a non - waste. This could result in some excluded materials not triggering the RQ requirement s (at the lower level) and therefore not needing to comply with RQ

- related DOT packaging and other regulations

. The generator - controlled exclusion does not require tracking of off
- site shipments, in contrast to the hazardous waste regulations (Scenarios 3 and 8). The hazardous waste regulations require the manifesting of all off

- site shipments, which provides for chain

- of

- custody tracking of shipments and generator confirmation that the shipment has been receiv ed b y the designated facility . By

contrast, the DSW GCE does not require tracking of shipments (e.g., from the generating site to an off

- site reclamation facility

owned by

the generator) or recordkeeping that could serve a comparable purpose. Further, if the shipment were subject to DOT regulation, a shipping paper must accompany it. However, the destination facility need not keep a cop y of it for three years or transmit to the original generator site (or place in its company files) confirmation of receipt. Therefore, a generator making off

- site shipments under the GCE would not be documenting that its excluded material reached the intended destination intact, as is required b y the manifest regulations.

Intermediate and Reclamation Facilities Following i s a discussion of the key differences and consequences in the federal regulation of h azardous waste storage facilities and HSM intermediate and reclamation facilities under the TBE

. Reclamation under the transfer
- based exclusion is not subject to the “derived - from rule,” as is reclamation under the hazardous waste regulations (Scenarios 1 , 4, 5, 6, 7 and 8). The haz ardous waste regulations state that an y material derived from a listed hazardous waste is also a listed hazardous waste. This is called the “d erived

- from” rule. It means, for example, that residues from the reclamation of a listed hazardous waste remain that listed hazardous waste. The TBE states that residuals must be managed as hazardous waste if they exhibit aDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 31 characteristic or are listed. Hence, the derived

- from rule does not appl y to the residuals from the reclamation of hazardous secondary materials under the DSW exclusion. This means that the residuals exiting the reclamation unit constitute s a new point of generation for the purposes of applying the hazardous waste determination requirements of 40 CFR 262.11. If the residuals exhibit a hazardous characteristic, or they themselves are a listed hazardous waste, they would be considered hazardo us wastes (unless otherwise exempted) and would have to be managed accordingl y. If they

did not exhibit a hazardous characteristic, or were not themselves a listed hazardous waste, they

would need to be managed in accordance with applicable state or federa l requirements for non

- hazardous wastes. The provisions on residuals under the TBE are intended to clarify that residuals from reclamation are subject to the waste characterization requirements and cannot simply be discarded as non

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

that some residual s from the recovery process that were considered hazardous under full RCRA Subtitle C regulation would no longer be considered hazardous upon exiting recovery units operated under the 2008 DSW final rule

. Some hazardous secondary materials may be diverted from off
- site reclamation , treatment then disposal at a permitted facility under the hazardous waste regulations to off
- site reclamation under the transfer
- bas ed exclusion, which is allowable without a RCRA permit; however, generator audits are required in those cases (Scenarios 5 and 8). Permitted facilities are subject to prescriptive permit requirements and self

- imposed conditions covering the design, constr uction, operation, financial assurance, closure and post

- closure of the facility and hazardous waste management units. They also are subject to public involvement during the permitting process. Reclamation under the TBE would be subject to fewer requirem ents, including no requirement for a permit or public involvement. Thus , reclamation under the exclusion is not subject to emergency preparedness and response, personnel train ing, or prescriptive requirements for containment. However, the TBE requires th e generator to perform a “reasonable efforts” audit of facilities that do not have a RCRA permit covering management of the material. The generator audit must focus on specified areas (e.g., the reclaimer’s compliance history). In addition, facilities mu st obtain financial assurance. In general, however, facilities under the TBE would be subject to fewer prescriptive requirements , no public involvement , and possibly less regulatory

oversight than permitted facilitie s. The transfer
- based exclusion requires that material be “contained , ” but do es not prescribe specific standards for containment in contrast to the hazardous waste regulations (Scenarios 5 and 8). The hazardous waste regulations and TBE require containment of the HSMs in the unit. The hazardous waste regulations prescribe specific design, installation, operating, closure and post

- closure s tandards to address containment, whereas the TBE do es not. The exclusion requires that the material be managed in a manner that is at least as protec tive as that employed for analogous raw material and be contained. As such, the TBE is performance oriented and allow s more flexibility in how hazardous secondary materials can be managed and contained. The transfer
- based exclusion does not include stan dards for controlling air emissions from process vents, equipment leaks, or storage units in contrast to the hazardous waste regulations (Scenarios 5 and 8)

. While the DSW transfer

- based exclusions require containment of HSMs , they

do not include explicit requirements for control of air emissions whereas the hazardous waste regulations set forth prescriptive design, operating and other standards toDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 32 control air releases f

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

. S ome reclaimers operating under the DSW exclusions may be required to get a permit under the CAA regulations. Where such facilities are subject to the CAA, requirements to control air emissions are comparable to the hazardous waste regulations. However, facilities not subject to CAA permitting would not be required to provide a comparable level of control of air emissions from process vents, leaks, and storage units as the hazardous waste regulations. Some hazardous secondary material may be diverted from permitted off
- site facilities to being exported for reclamation under the transfer
- based exclusion , which does not require a permit . However, the importing facility must pass generators’ “reasonable efforts” audit (Scenario 6 and 8 )

. A s described above, permitted facilities are subject to prescriptive permit requirements covering the design, construction, operation, air emission controls, financial assurance, closure and post

- closure of the entire facility . They also are subject to pub lic involvement during the permitting process. Under the TBE , the HSM may be exported to a foreign facility , which is not subject to a permit or public involvement. However, the exclusion would require generators to make reasonable efforts to audit the f acility before exporting the material to a foreign facility

. Some hazardous secondary materials may be diverted from unpermitted off
- site reclaimers under the hazardous waste regulations to different off
- site reclaimers under the t ransfer
based exclusion (Scenario 7). Under the hazardous waste regulations, r eclaimers that do not store hazardous waste pending reclamation are not subject to the prescriptive hazardous waste requirements (e.g., for design, operation, financial assuranc e, closure of the facility or units ) , except as otherwise specified

. 28 They also are not subject to a hazardous waste permit or public involvement. Under the TBE , off

- site reclaimers are, among other things:

 Required to manage the HSM in a manner that i s at least as protective as analogous raw material, contain the material, have financial assurance, and keep specified records. In addition, unle ss it has a RCRA permit covering management of the material, it must pass a generator audit before it can rece ive the generator’ s material

.  Allowed to store HSM without a permit or prescriptive standards, unlike hazardous waste reclaimers , which are subject to a permit if they store
. HSM The TBE generally

includes more stringent requirements than the hazardous waste regulations for reclaimers that do not store the HSM before reclamation. It includes less stringent requirements for reclaimers that store the HSM before reclamation. 2.4 Summary of Comparative Results by Facility Type and Scenario Table 2.3 summarizes the key regulatory

differences and consequences described in Section 2. 3

. They are summarized by

facility type and scenario.

28 In some cases, reclaimers can be subje ct to prescriptive requirements . For example, reclamation units at a facility subject to RCRA permitting must comply with appl icable air emission controls for process vents, as specified.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 33 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by Scenario Scenarios Generators b Transporters Intermediate and Reclamation Facilities 1. Generator continues current reclamation practices (where allowed under DSW) c HSM can be accumulated on

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

greater aggregate quantities on

- site at any given time Exclusions require containment , but do not include prescripti ve standards , whereas HWRs are prescriptive Generators could change in status (e.g., L QG to S QG) as a result of exclusions and be subject to less stringent HWRs Export procedures under HWRs and TBE are comparable Unlike HWRs, the GCE does not extend “d erived

- from” rule to residuals potentially resulting in materials exiting Subtitle C DSW exclusions require all generators to notify EPA biennially , whereas HWRs require biennial reporting only for LQGs When transported offsite, e xcluded HSM s that qualify as DOT hazardous material would be subject to DOT transportation regulations that are comparable to HWRs Some excluded material may no longer qualify

as a DOT hazardous material and be subject to DOT transportation regulations (e.g., no standards for packaging, marking, labeling) There is n o change in storage methods or recycling practices for HSM that has been diverted from off

- site RCRA permitted facility under HWRs to off

site RCRA permitted facility under TBE The GCE and TBE do not extend “derived

- from” rule to residuals , as do HWRs, potentially

resulting in residuals exiting Subtitle C

2. Generator switches from off
- site treatment then disposal at a RCRA facility to on
- site reclamation under generator - controlled HSM can be accumulated on

- site for longer periods of time under GCE, resulting in potentially

greater quantities on

- site at an y given time The GCE requires HSM to be “contained , ” but N/A N/ADRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 34 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by Scenario Scenarios Generators b Transporters Intermediate and Reclamation Facilities exclusion does not include prescriptive standards , whereas HWRs are prescriptive Generat ors could change in status (e.g., from L Q G to SQG ) as a result of exclusion and be subject to less stringent hazardous waste regulation O ff

- site management at permitted facility is more stringentl y regulated than reclamation under the GCE (e.g., no permit or public involvement is required) The GCE does not extend “derived

- from” rule to residuals of reclamation, as do the HWRs, potentially

resulting in some materials exiting RCRA Subtitle C DSW exclusions require all generators to notify EPA biennially , whereas HWRs require biennial reporting only

L QGsDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 35 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by Scenario Scenarios Generators b Transporters Intermediate and Reclamation Facilities 3. Generator switches from off
- site disposal at a RCR A facility to off

site reclamation under generator - controlled exclusion d HSM can be accumulated on

- site for longer periods of time under GCE, resulting in potentially

greater quantities on

- site at an y given time The GCE requires HSM to be “contained , ” but does not include prescriptive standards , whereas HWRs are prescriptive Generators could change in status (e.g., from L Q G to SQG ) as a resu lt of exclusions and be subject to less stringent hazardous waste regulation O ff

- site management at permitted facility is more stringentl y regulated than reclamation under the GCE (e.g., no permit or public involvement is required) The GCE does not extend “derived

- from” rule to residuals of reclamation, as do the HWRs, potentially

resulting in some materials exiting RCRA Subtitle C DSW exclusions require all generators to notify EPA biennially, whereas HWRs require biennial reporting only LQGs Excluded materials that qualify as DOT hazardous material would be subject to comparable DOT transportation regulations as hazardous waste, except that the GCE does not require manifest or other tracking of off

- site shipments to same

compan y reclaimer or betwe en tolling contractor and toll manufacturer Some excluded material may no longer qualify

as a DOT hazardous material and be subject to DOT transportation regulations (e.g., no standards for packaging, marking, labeling) N/ADRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 36 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by Scenario Scenarios Generators b Transporters Intermediate and Reclamation Facilities 4. Generator switches from o ff
- site disposal at a RCRA facility to off

site permitted reclamation at a U.S. facility under transfer
based exclusion HSM can be accumulated on

- site for longer periods of time under exclusion, resulting in potentially

greater quantities on

- site at an y g iven time The TBE requires HSM to be “contained , ” but does not include prescriptive standards , whereas HWRs are prescriptive Generators could change in status (e.g., from L Q G to SQG ) as a result of exclusion and be subject to less stringent hazardous waste regulation DSW exclusions require all generators to notify EPA biennially , whereas HWRs require biennial reporting only

L QGs Excluded materials that qualify as DOT hazardous material would be subject to comparable DOT transportation regulations as h azardous waste Some excluded material may no longer qualify

as a DOT hazardous material and be subject to DOT transportation regulations (e.g., no standards for packaging, marking, labeling) There is n o change in storage methods or recycling practices under the exclusion (offsite recycler still RCRA permitted) The TBE does not extend “derived

- from” rule to residuals of reclamation, as do the HWRs, potentially resulting in some materials exiting Subtitle CDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 37 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by Scenario Scenarios Generators b Transporters Intermediate and Reclamation Facilities 5. Generator switches from off
- site disposal at a RCRA facility to off

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

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

greater quantities on

- site at an y given time The TBE requires HSM to be “contained , ” but does not include prescriptive standards , whereas HWRs are prescriptive Generators could change in status (e.g., from L Q G to SQG ) as a result of exclusion s and be subject to less stringent hazardous waste regulation DSW exclusions require all generators to notify EPA biennially , whereas HWRs require biennial reporting only

L QGs Excluded materials that qualify as DOT hazardous material would be subject to c omparable DOT transportation regulations as hazardous waste Some excluded material may no longer qualify

as a DOT hazardous material and be subject to DOT transportation regulations (e.g., no standards for packaging, marking, labeling) Facilities unde r the TBE would not have a permit and thus would be less stringentl y regulated than permitted facilities (e.g., no public involvement, fewer prescriptive requirements). However, facilities must pass “reasonable efforts” audit and obtain financial assuranc e under TBE TBE requires HSM to be “contained” and managed in a manner that is at least as protective as that employed for analogous raw material, but does not include prescriptive standards , whereas HWRs are prescriptive The TBE does not extend “deriv ed

- from” rule to residuals of reclamation, as do the HWRs, potentially resulting in some materials exiting RCRA Subtitle CDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 38 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by Scenario Scenarios Generators b Transporters Intermediate and Reclamation Facilities 6. Generator switches from off
- site disposal at a RCRA facility to exporting for re clamation under transfer
- based exclusion HSM can be accumulated on

- site for longer periods of time under exclusion, resulting in potentially

greater quantities on

- site at an y given time The TBE requires HSM to be “contained , ” but does not include prescriptive standards , whereas HWRs are prescriptive G enerators could change in status (e.g., from L Q G to SQG ) as a result of exclusions and be subject to less stringent hazardous waste regulation Export procedures under HWRs and TBE are comparable DSW exclusions require all generators to notify EPA bienn ially , whereas HWRs require biennial reporting only

L QGs Excluded materials that qualify as DOT hazardous material would be subject to comparable DOT transportation regulations as hazardous waste Some excluded material may no longer qualify

as a DOT hazardous material and be subject to DOT transportation regulations (e.g., no standards for packaging, marking, labeling) Facilities that receive imports under the TBE are not required to obtain a permit. However, facility must pass “reasonable efforts” audit under TBE The TBE does not extend “derived

- from” rule to residuals , as do the HWRs, potentially

resulting in materials exiting Subtitle CDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 39 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by Scenario Scenarios Generators b Transporters Intermediate and Reclamation Facilities 7. Generator switches from off
- site r eclamation at a facility without a permit ( no storage) to offsite reclamation under transfer
- based exclusion e HSM can be accumulated on

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

greater quantities on

- site at an y given time The TBE requires HSM to be “contained , ” but does not include pres criptive standards , whereas HWRs are prescriptive Generators could change in status (e.g., from L Q G to SQG ) as a result of exclusions and be subject to less stringent hazardous waste regulation Export procedures under HWRs and TBE are comparable DSW exclusions require all generators to notify EPA biennially , whereas HWRs require biennial reporting only

L QGs Excluded materials that qualify as DOT hazardous material would be subject to comparable DOT transportation regulations as hazardous waste Some excluded material may no longer qualify

as a DOT hazardous material and be subject to DOT transportation regulations (e.g., no standards for packaging, marking, labeling) T he TBE is more stringent than the HWRs in situations where HSM is not stored before reclamation (e.g., the TBE requires financial assurance, containment, protective management and generator audit, whereas HWRs do not require a permit, financial assurance, etc.)

. However, the HWRs are more stringent in some aspects than the TBE in situat ions where the HSM is stored before reclamation (e.g., the HWRs require a permit, whereas the TBE does not)

. The TBE does not extend “derived

- from” rule to residuals of reclamation, as do the HWRs, potentially resulting in some materials exiting Subtitl e CDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 40 Table 2. 3 . Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by Scenario Scenarios Generators b Transporters Intermediate and Reclamation Facilities 8 . Generator switches from off
- site r eclamation at a RCRA facility to another type of reclamation under the 2008 DSW final rule Refer to Scenarios 2 through 6 for regulatory differences and consequences applicable to Scenario 8. Scenarios 2 through 6 involve generators switching from off

- site permitted disposal to another ty pe of reclamation under the DSW exclusions. Scenario 8 involves generators switching from off

- site permitted reclamation to another type of reclamation under DSW exclusions. As such, Scenarios 2 through 6 include the same ty

pes of regulatory

differences and consequences as Scenario 8.

a Abbreviations include the following: HSM = hazardous secondary material; HWRs = hazardous waste regulations; GCE = generator

- controlled exclusion; TBE = transfer

- based exclusion; LQGs = large quantity generators; SQGs = small quantity generators. b Under the GCE, generators may perform reclamation on

- site or send it off

- site to a same - com

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

- site facilities (i.e., same - com pany reclaimers and toll manufacturers ) as generators
. c This scenario includes generators that continue their current practices under the exclusions by either reclaiming on

- site, shipping to a permitted, off

- site reclamation facility, or exporting the material for reclamation. d This scenario includes generators switching from off

- site disposal to sending the material to either a same - com pany reclaimer or toll manufacturer under the GCE. e This scenario includes generators switching from off

- site reclamation at a facility without a permit to another type of reclamation under the TBE, including either off

- site reclamation at a RCRA

- pe rmitted facility, off

- site reclamation at a facility without a permit, or export of the material to a company in another country
.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 41 2.5 Likelihood of Hazards under Scenarios This section presents EPA’s anal ys is of the likelihood of changes in hazards under the 2008 DSW final rule for each ty pe of facility

(generators, transporters, and intermediate and reclamation facilities) and each scenario described in Section 2 .1 . The analy sis was b ased on the changes in management practices for HSM described in Section 2.1 , the hazards identified in Section 2.2. , and the regulatory comparison presented in Section 2.3 . The discussion includes a description of each hazard, and whether the likelihood of the hazard is increased, decreased, or might be transferred between communities. Potentially increased hazards are discussed in s ection 2. 5 5 .1 , while s ection 2. 5 5 .2 presents EPA’s discussion of potential reductions and transfers of hazards. 2.5.1 Potentially Increased Hazards under DSW Exclusions EPA anal yz ed the information in the preceding sections of this report to determine whether the hazards associated with the generation, transportation and reclamation of HSM would potentially increase under the DSW exclusion s . EPA considered hazards to increase where it determined that either the probability of the hazard occurring or the potential magnitude of the hazard increased. In some cases , the hazard may increase at one facility , while decreasing at another facility . For example, changing the management of their HSM from off

- site incineration to on

site reclamation is likely

to increase potential hazards at the reclamation facility , while decreasing them at the incineration facility . This section discusses only the potential increases in hazards. Potential decreases in hazards are discussed in section 2. 5 5 .2

. This analy sis was based on the change s in management practices for HSM described in the Scenarios in Section 2

. 1 , the general hazards associated with the generation, transportation, storage, and reclamation of HSM presented in Section 2.2 , as well as the regulatory differences between the hazardous waste regulations and DSW exclusions identified in Section 2.3

. Through this analy sis of hazards, EPA determined that these regulatory differences (e.g., differences in stringency

and scope), and the resulting changes in behavior by facilities generating and managing HSM, could result in an increase in potential hazards under the DSW exclusions . EPA presents this analy sis for generators, transporters, and intermediate and reclamation facilities. For each typ e of hazard, the scenarios from Section 2.1 under which it might increase are identified.

Generators Fires and E xp losions (Scenarios 1 through 8)

. Some HSM, such as s olvents , are often flammable, and can ignite to create fires and explosions . HSM may also contain volatile chemicals, which can be released to the air, and if flammable, these air emissions may cause fi res and explosions if ignited, causing injury or property

damage. Fires and explosions may also involve other toxic or hazardous gasses. Fire and explosion hazards under the DSW exclusions could increase for generators because of the following:

 HSM can b e accumulated longer, and potentiall y greater quantities can be accumulated on - site. 29 A longer accumulation period means that there is a greater likelihood for

29 For generators that switch from off

- site management to on

- site recycling (scenarios 2 and 8), there is the possibility that there might be smaller volumes of HSM accumulated, if recycling can occur more quickly than accumulation of enough material for a shipment to be sent off

- site.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 42 release of the HSM. For example, there is greater likelihood that solvents could be inadvertentl y commingled in a container or storage area with incompatible materials and wastes, such as oxidizers, which could cause an explosion or fire hazard. There is also a greater likelihood that solvents could be stored near ignition sources (e.g., open flames) or be stored in excessive heat, which could increase fire and explosion hazards. Lo nger storage also increases the likelihood that drums or other containers could leak due to corrosion, accidents, or other causes over time. The leaked material could then volatilize or be exposed to an ignition source, resulting in a fire or explosion. Greater accumulation quantities also mean that the magnitude of a potential fire or explosion could be greater. Generators could also be responsible for managing a greater number of tanks and containers to contain the greater volume or may overload/overfill storage units while attempting to manage the greater volume using existing tank and container capacity , which could make it more difficult to ensure the HSM is contained. For example, the generator may need to spend more effort to make sure the covers of a greater number of containers are kept tightl y closed to prevent the escape o f potentially combustible vapors.

 No explicit containment standards. The DSW exclusions do not include explicit standards for containment of HSM in tanks and containers, in contrast to the hazardous waste regulations. Consequently , generators might not t ake the same steps to minimize the potential for fires and explosions. The hazardous waste regulations prescribe specific design and operating standards and air emission controls for tanks and containers, including keeping these units tightly covered and u sing vent s ys tems (e.g., fixed roof, flares) if needed. In addition , the HWR s require that certain units be provided with a means to protect against the formation and ign ition of vapors within the tank if the waste being stored or treated is ignitable or reactive. These controls, which could be helpful in preventing fires and explosions and the emission of potentially combustible vapors to the atmosphere, are not specifically required under the DSW exclusions. The hazardous waste regulations also include procedures for segregating reactive, ignitable and incompatible wastes , and for locating ignitable and reactive wastes at least 15 meters from the facility ’s property line, which can reduce the likelihood of fires and explosions, or reduce the risk of them impacting nearb y properties and individuals on those properties

. Finally , unlike the hazardous waste regulations, the DSW exclusions allow generators to accumulate their HSM in land

- based units, including surface impoundments and waste piles, provided th e HSMs are contained in such land

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

status facilities can operate these land

- based units, and they must follow explicit requirements for containment of the waste during operation, closure and post

- closure care. The DSW exclusions do not require explicit containment requirements for these or other unit ty

pes.

 Generator drop in status. A generator operating under a DSW exclusion would not be required to count its excluded HSM in determining its generator status. As a result, the generator ’s classification may change from a LQG to a SQG or CESQG because it wou ld have less hazardous waste to count toward its monthly total and therefore be subject to less stringent hazardous waste requirements. For example, SQGs are subject to less stringent requirements for tank sy stems, the control of air emissions, personnel training,DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 43 contingency

planning and emergency procedures. As a result, a generator that drops from LQG to SQG generally would become less stringentl y regulated in regard to the prevention and control of fire and explosion hazards. Examples of regulatory differences between LQGs and SQGs that might impact fire and explosion hazards include:

o The SQG’s HSM and hazardous waste would no longer be subject to air emission controls that are designed to prevent the escape of potentially combustible vapors from cont ainers and tanks.

o The SQG would not be required to provide ongoing personnel training in emergency

procedures (e.g., fire control), or to maintain a contingency plan that spells out these procedures and identifies the location of emergency equipment (e.g., fire equipment).
o Some L QGs and SQGs could become CESQGs under the exclusion. CESQGs generall y are not subject to the full hazardous waste regulations provided they meet certain requirements

.  Generator on

- site reclamation under the GCE may be less stringe ntly regulated than permitted reclamation or treatment then disposal under the hazardous waste regulations. Unlike the hazardous waste regulations, the GCE does not require a permit, public involvement, or explicit HSM management requirements. For exampl e, the GCE does not require generators to follow explicit standards for containment (e.g., no explicit standards for secondary

containment, run

- on/run

- off controls, and inspections), contingency

planning or procedures, or personnel training for emergencies (e.g., how to address fires and explosions). If HSM is diverted from permitted reclamation or treatment then disposal under the hazardous waste regulations to reclamation under the GCE , there is no assurance that the generator will carry out comparable a ctivities.

 HSM could be increasingly diverted from hazardous waste management and disposal to on - site reclamation under the GCE. On

- site reclamation could increase the risk of fires and explosions at generator facilities due to increased volumes accumul ated and air emissions from reclamation processes, the use of heat in reclamation processes, and the potential mixing of wastes for reclamation. For example, the reclamation of solvents ty picall y involves the use of distillation, which requires the applic ation of heat. Solvents generall y become more volatile as the temperature increases, which could lead to greater air emissions that , if not adequatel y captured, recovered or destroyed could be a source for a fire or explosion. Soil and Water Contamina tion (Scenarios 1 through 8). During on - site accumulation, HSM releases can occur from factors , such as spills due to human error or deterioration of equipment; tank overflows or overtopping; leaks from damaged or deteriorated containers or tanks; complete failure of tank or container integrity; and run on/run off from the storage area. During on - site transfer, releases could include spills, overflows, and leaks from human error or deterioration of transport equipment (e.g., leaking pipes). Solvent wastes are especiall y susceptible to such relea ses since they

are commonly

in a liquid state. Soil and water contamination hazards under the DSW exclusions could increase because of the following:DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 44  HSM can be accumulated longer, and potentiall y greater quantities can be accumulated on - site. 30 A longer accumulation period means that there is a greater likelihood for inadvertent mismanagement of the HSM, such as spills and leaks due to human error or equipment malfunction. There is also a greater likelihood that over time , accumulation units could deteriorate due to corrosion, accidents, or mishandling, which could cause a release. Further, greater accumulation quantit ies mean there is greater likelihood that accumulation units could be filled beyond capacity and release HSM from overtopping. In addition, a greater quantity of HSM to be managed could make it more difficult for the generator to contain and detect releas es, and the potential magnitude of a release could be greater.

 No explicit containment standards. The DSW exclusions do not include explicit standards for containment of HSM in tanks , containers, containment buildings and land

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

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

- on/run

- off s ystems. They also include operating controls and practic es to prevent spills and overflows (e.g., maintenance of sufficient freeboard in uncovered tanks), as well inspection requirements (e.g., tank owner/operators must inspect o verfill/spill control equipment and tank s to detect corrosion and releases). Becau se the DSW exclusion does not include such explicit requirements, there is less assurance that generators will adopt comparable controls and procedures to prevent release and respond to them if they occur . Finall y, unlike the hazardous waste regulations, the DSW exclusions allow generators to accumulate their HSM in land

- based units including surface impoundments and waste piles , provided the HSMs are contained in such land

- based units

. However, the DSW exclusions do not require explicit containment requirements for these or other unit types. The use of land

based units may

increase the likelihood of releases to soil, groundwater, and surface water. For example, precipitation and run - on/runoff from land

- based units may cause contaminants to leach or be carried out of the unit and contaminate environmental media.

 Generator drop in status. A generator under a DSW exclusion would not be required to count its excluded HSM in determining its generator status under the hazardous waste regulations; and theref

ore, it could drop in status (e.g., from LQG to SQG) and be subject to less stringent requirements

. Examples of regulatory differences between LQGs and SQGs include:
o SQGs would no longer need to c ompl y with as many explicit tank design and operating requirements (e.g., liner, leachate collection and removal s ys tem, controls and practices to prevent spills and overflows).
o SQGs would no longer need to p rovide ongoing personnel training in emergency procedures (e.g., response to groundwater contamination), or to maintain a contingency

plan that spells out these procedures and identifies the location of emergency equipment.

30 For generators that switch from off

- site management to on

- site recycling (scenarios 2 and 8), there is the possibility that there might be smaller volumes of HSM accumulated, if recycling can occur more quickly than accumulation of enough material for a shipment to be sent off

- site.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 45

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

.  Generator on

- site reclamation under the GCE may be less stringently regulated than permitted reclamation or treatment then disposal under the hazardous waste regulations. Unlike the hazardous waste regulations, the GCE does not require a permit, public involvement, or explicit HSM management requirements. For example, the GCE does not require generators to follow explicit standards for containment (e.g., no explicit standards for secondary

containment, run

- on/run

- o ff controls, or inspections), contingency

planning or procedures, or personnel training for emergencies (e.g., how to address groundwater releases). I f HSM is diverted from permitted reclamation or disposal under the hazardous waste regulations to reclamation under the GCE , there is no assurance that the generator will carry out comparable activities.

 HSM could be increasingly diverted from off

- site hazardous waste management to on

site reclamation under the GCE. The additional processing required for o n - site reclamation could result in more releases to soil and water at generator facilities. For example, recycling by

distillation of a solvent may require filtration, distillation, condensation, or other processing. As the solvent is passed through the pipes, valves, and other equipment used in the distillation process, the likelihood of a release through leaks and spills increases. Volatile Air Emissions (Scenarios 1 through 8). Volatile organic air emissions can occur during accumulation and transportation on

- site

. For example , solvents held in tanks or containers could volatilize and escape to the atmosphere through open container lids, uncovered tanks, leaks and vents, breathing losses, and container filling and emptyi ng. Volatile emission hazards under the DSW exclusions could increase because of the following:

 HSM can be accumulated longer, and potentiall y greater quantities can be accumulated on - site. A longer accumulation period could increase the inadvertent mismanagement of the HSM, s uch as leaving container lids off of containers, which would allow greater escape of emissions. In addition, it is possible that there could be greater opening and closing of tanks and containers as HSM is added, transferred, and removed from units. There is also a greater likelihood that accumulation units could deteriorate due to corrosion, accidents, or mishandling, which could cause a release. In addition, a greater quantity of HSM to be managed could make it more difficult for the generator to contain and detect releases, and the potential magnitude of a release would be greater.

 No explicit containment standards. The DSW exclusions do not include explicit standards for containment of volatile organic emissions as do the hazardous waste regulation s. For example, L QGs may need to install a fixed roof to help control air pollutant emissions from tanks, or use containers that meet applicable DOT regulations. Because the exclusions do not include explicit requirements, there is less assurance that ge nerators will follow controls that will be comparable to the hazardous waste requirements.

 Generator drop in status. A generator under a DSW exclusion would not be required to count its excluded HSM in determining its generator status under the hazardous waste regulations; therefore, it could change its regulatory status (e.g., from LQG to SQG) andDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 46 be subject to less stringent requirements. For example, SQGs would no longer need to c omply with air emission controls described above

. This could result in increased air emissions.

 Generator onsite HSM management prior to on - site reclamation under the GCE may be less stringentl y regulated than permitted reclamation or treatment then disposal under the hazardous waste regulations. Unlik e the hazardous waste regulations, the GCE does not require a permit, public involvement, or explicit HSM management requirements. For example, the GCE does not require generators to follow explicit standards for containment (e.g., no explicit standards f or secondary

containment, run

- on/run

- off controls, or inspections), contingency planning or procedures, or personnel training for emergencies (e.g., how to address fires ). If HSM is diverted from permitted reclamation or disposal under the hazardous waste regulations to reclamation under the GCE , there is no assurance that the generator will carry out comparable activities.

 HSM could be increasingly diverted from hazardous waste management and disposal to on - site reclamation under the GCE. The additional processing required for on

- site reclamation could result in more air emissions at generator facilities . For example, recycling by

distillation of a solvent may require filtration, distillation, condensation, or other processing. As the solvent is passed through the pipes, valves, and other equipment used in the distillation process, volatile emissions from fittings, valves, and process equipment could increase. In addition, many reclamation processes, such as distillation of solvents, require the applic ation of heat. Solvents generall y become more volatile as the temperature increases, which could lead to greater air emissions

. Changes in temperature can also increase breathing losses from tanks and equipment, leading to increased air emissions. Wind D ispersal (Scenarios 1 through 8). Wind dispersal can occur during accumulation and on - site movement of the HSM if the HSM is in the form of a dust or small, dry particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts). For example, electric arc furnace dust might be susceptible to wind dispersal, since it is often present in dust form and may be stored in land

- based units such as waste piles. Wind dispersal hazards under the DSW exclusions could inc rease because of the following:

 HSM can be accumulated longer, and potentiall y greater quantities can be accumulated on - site. A longer accumulation period means that there is a greater likelihood for inadvertent mismanagement of the HSM, such as failure t o ensure waste piles are covered or wet to control dust. Further, greater accumulation quantities mean there is greater likelihood that accumulation units could be filled beyond capacity and release HSM. In addition, a greater quantity of HSM to be manag ed could make it more difficult for the generator to contain and detect releases, and the potential magnitude of a release could be greater.

 No explicit containment standards. The DSW exclusions do not include explicit standards for control of wind disp ersal of particulates as do the hazardous waste regulations. For example, generators must keep their containers closed when not filling or emptying them. In addition, tank systems of LQGs must have wind dispersal controls, if needed

. Because the exclusio ns do not include explicit requirements, there is lessDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 47 assurance that generators will follow controls that will be comparable to the hazardous waste management unit requirements.

 Generator drop in status. A generator under a DSW exclusion would not be re quired to count its excluded material in determining its generator status under the hazardous waste regulations; therefore, it change its regulatory status (e.g., from LQG to SQG) and be subject to less stringent requirements. For example, SQGs would no lo nger need to comply with the wind dispersal requirements for tanks, which onl y appl y to LQGs

. Residues from Reclamation (Scenarios 1 through 3 and 8). Reclamation processes (e.g., distillation and high temperature metals recovery) could result in a hazardous waste residue that requires further treatment before land disposal in accordance with the RCRA Subtitle C regulations . The hazardous waste regulati ons state that any material derived from a listed hazardous waste is also a listed hazardous waste. This is called the “derived

- from” rule. It means, for example, that residues from the reclamation of a listed hazardous waste remain that listed hazardous waste. The GCE does not address how residues from the reclamation process should be managed and is therefore not comparable to the hazardous waste regulations in this regard. As a result, generators under the exclusion could identify the point at which residuals exit the unit to be a new point of generation for the purposes of applying the hazardous waste determination requirements of 40 CFR 262.11. This raises the possibility that some residuals from the recovery

process that were considered hazardous under full RCRA Subtitle C regulation would no longer be considered hazardous when exiting recovery units operated under the DSW rule , unless such residue was also a listed hazardous waste . As a result, such wastes could exit Subtitle C regulation. Abando ned Materials (Scenarios 1 through 3 and 8) . A significant number of the environmental damage cases evaluated b y the Agency involve abandoned materials. EPA believes that bankruptcies and other business failures were responsible for a number of the cases involving abandoned materials. Abandoned HSMs under the DSW exclusions could increase because of the following:

 HSM can be accumulated longer, and potentiall y greater quantities can be accumulated on - site. A greater accumulation quantity could mean that the quantity of material abandoned could be greater, increasing the magnitude of problems associated with abandoned materials, such as the extent of contamination of environmental media and cleanup costs.

 Generator on

- site reclamation under the GCE may be less stringently regulated than permitted reclamation or disposal under the hazardous waste regulations. The GCE does not require financial assurance for reclamation under the generator’s control. Similarly , the hazardous waste regulations do not require financial assurance for generators that perform reclamation in their 90

- and 180

- day tanks and containers. In this respect, the likelihood for abandonment of materials due to financial hardship under the GCE and the hazardous waste regulations is comparable. However, unlike the hazardous waste regulations, the GCE does not require a permit, public involvement, or explicit HSM management standards

. The hazardous waste regulations do require generators to obtain a permit if they

store their hazardous was te for longer than 90 day s for LQGs or 180/270 day s for SQGs (depending on type of activity involved) , pending reclamation on

- site. These generators would be subject to a number of permit conditions that would reduceDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 48 the likelihood of abandoned materials (e.g., financial assurance requirements, corrective action, closure notification and plans). Hence, the likelihood for abandonment of HSMs due to financial hardship under the GCE is not comparable to the hazardous waste regulations when the HSM is stored (for more than 90 or 180 /270 days , depending on generator size and ty

pe of activity

involved) , pending on

- site reclamation.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 49 Table 2 .4 . Potential Incremental Hazards under DSW Rule : Generators Regulatory Differences under DSW Rule a Potential Incremental Hazards Fire/ Explosion Soil/Water

Contamination Volatile

Air Emissions Wind

Dispersal Residues

from Reclamation Abandoned

Materials Scenario 1: Generator continues current reclamation practices b HSM accumulated longer, potentially greater quantities on

- site X X X X X No explicit containment standards X X X X Potential generator change in regulatory status X X X X On

- site generator reclamation potentially less stringentl y regulated X X X X X c No derived

- from rule, listed residues potentially exit Subtitle C X Scenario 2: Generator switches from off
- site disposal to on
- site reclamation HSM accumulated longer, potentially greater quantities on

- site X X X X X No explicit containment standards X X X X Potential generator change in regulatory status X X X X On

- site generator reclamation potentially less stringentl y regulated X X X X X No derived

- from rule, listed residues potentially exit Subtitle C X Scenario 3: Generator switches from off
- site disposal to off

- site recycling under the control of the generator d HSM accumulated longer, potentially greater quantities on

- site X X X X X No explicit containment standards X X X X Potential generator change in regulatory status X X X X Scenario 567: Gene rator switches from off
- site recyclingDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 50 Table 2 .4 . Potential Incremental Hazards under DSW Rule : Generators Regulatory Differences under DSW Rule a Potential Incremental Hazards Fire/ Explosion Soil/Water

Contamination Volatile

Air Emissions Wind

Dispersal Residues

from Reclamation Abandoned

Materials HSM accumulated longer, potentially greater quantities on

- site X X X X No explicit containment standards X X X X Potential generator change in regulatory status X X X X On

- site generator reclamation potentially less stringentl y regulated X X X X X No derived

- from rule, listed residues potentially exit Subtitle C X

a These differences were identified by comparing the federal regulations applicable to hazardous waste generators and generators of DSW

- excluded materials. See Section 2.3 of this report for additional information. b Abandonment of HSMs could be more likely to occur under the GCE than hazardous waste regulations for reclaimers that store their HSM pending reclamation. c This scenario includes generators that continue their current practices under the exclusions by either reclaiming on

- site, shipping to a permitted, off

- site reclamation facility, or exporting the material for reclamation. d This scenario includes generators switching from off

- site disposal to sending the material to either a same

- com pany reclaimer or toll manufacturer under the GCE. e This scenario includes generators switching from off

- site reclamation at a facility without a permit to another type of reclamation under the TBE, including either off

- site reclamation at a RCRA

- permitted facility, off

- site reclamation at a facility witho ut a permit, or export of the material to a company in another country
.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 51

Transporters Fires and Explosions (Unlikely for all Scenarios ) . Some HSM, such as s olvents , contain volatile chemicals, which can be released to the air, and if flammable, these air emissions may

cause fires and explosions if ignited, causing injury or property

damage. Fires and explosions may also evolve other toxic or hazardous gasses. HSM that is flammable or explosive would qualify as a DOT hazardous material and be subject to comparable DOT regulation (e.g., for packaging, labeling, marking, placarding, parking and driving) when transported offsite ,), regardless of whether the material is regulated as haz ardous waste or DSW

- excluded material. Note, however, that the DSW exclusions do not require the use of a manifest or other document that provides RCRA waste codes at 40 CFR Part 261

. A ll hazardous waste offsite shipments must be accompanied by a manifest that includes waste codes

. Waste codes could be helpful to emergency

responders in fully

characterizing the hazards of a released material and taking appropriate response action during a fire or explosion. However, the DOT hazardous material requirements are specifically designed to help emergency responders to characterize the hazards of materials being transported, so it is unlikely that the lack of waste codes would seriously impede an emergency

response. Volatile Air E missions , Soil, Wate r, and Wind Dispersal (Scenarios 1, 3, 4, 5, 6, 7, 8) . During loading, unloading, and transport , volatile air emissions from solvents may escape from valves, pumps, hoses, tank trucks, drums, and other containers. Under certain conditions, solvents held in tank trucks or drums could volatilize and escape to the atmosphere (e.g., through open container lids, uncovered tanks, leaks and vents ). Leaks and spills during transfer of HSM, leaky or improperly closed containers, or accidents could result in relea se of HSM to loading area soil, groundwater, or surface water. Further, w ind dispersal of HSM (e.g., electric arc furnace dust) can occur if it is in the form of a dust or small, dry particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts). For example, dust in hopper rail cars or roll

- off dumpsters that are not properl y covered could blow out and result in inhalation exposures (when traveling through communities) and /or contaminate the surrounding e nvironment during transport. Contaminated soil or other solid media may also be susceptible to resuspen sion and wind dispersal. HSM under the exclusion s that qualify as a DOT hazardous material would be subject to generall y comparable transportation requi rements as hazardous waste in regard to packing, labeling, marking, placarding, parking and driving. Specificall y, the DOT regulations impose comparable requirements on hazardous waste as it does on other ty pes of DOT hazardous materials in regard to these activities. Therefore, such DOT

- regulated shipments of hazardous waste and excluded material would address releases of materials in comparable way s. However, e xcluded HSM that does not qualify as a DOT hazardous material would not be subject to transportation requirements that are comparable to hazardous waste in regard to packing, labeling, marking, placarding, parking or driving , or reporting releases of RQs to the National Response C enter
. Transporters of such excluded HSM would not be required to follow comparable procedures to address potential releases of materials, including vapors, liquids, solids, or particulate matter. For example, transporters mightDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 52 use less expensive packag ing that is more likel y to leak or be ruptured in an accident, contaminating soil and water, or releasing volatile emissions. Abandoned Materials (Scenario 3) . A shipment of HSM may be abandoned during transit for a number of reasons. Abandonment could occur, for example, if there is a transportation accident and released/contaminated materials are left b y the roadside, the transporter cannot find the destination facility , or the transporter otherwise decides not to fulfill its obligation to deliver the HSM . EPA established the hazardous waste manifest sy stem as a means of ensuring that hazardous wastes are tracked from “cradle to grave.” Under the manifest sy stem, each party to the shipment must sign and keep a copy of the manifest and the generator must be notified of its receipt b y the destination facility, increasing each party’s accountability over the shipment and reducing the likelihood of abandoned shipments. The GCE does not include a requirement for a hazardous waste manifest. Where generato rs reclaim HSM under the GCE, but the generation and reclamation facilities are in different locations, the HSM must be transported offsite

. Similarly , generators may transport HSMs to an unaffiliated offsite reclaimer under the TBE

. In such cases, the l ikelihood of HSM being abandoned could increase.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 53 Table 2.5 . Potential Incremental Hazards under DSW Rule: Transporters Regulatory Differences under DSW Rule a Potential Incremental Hazards Fire/Explosion Volatile Air ,

Emissions , Soil/ Water Contamination, and Wind Dispersal Abandoned

Materials

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

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

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

- site recycling at a U.S. facility without a RCRA permit No waste codes on shipping papers HSM that no longer qualifies as DOT hazardous material or triggers RQ X Scenario 6: Generator switches from off
- site disposal to exporting for recycling No waste codes on shipping papers HSM that no longer qualifies as DOT hazardous material or triggers RQ X Scenario 7: Generator switches from off
- site recycling at a facility without a permit to another type of recycling under DSW d No waste codes on shipping papers HSM that no longer qualifies as DOT hazardous material or triggers RQ XDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 54 Table 2.5 . Potential Incremental Hazards under DSW Rule: Transporters Regulatory Differences under DSW Rule a Potential Incremental Hazards Fire/Explosion Volatile Air ,

Emissions , Soil/ Water Contamination, and Wind Dispersal Abandoned

Materials

Scenario 8: Generator switches from off
- site recycling at a RCRA
- Permitted facility to another type of recycling under DSW No waste codes on shipping papers HSM that no longer qualifies as DOT hazardous material or triggers RQ X
a These differences were identified by comparing the federal regulations applicable to hazardous waste shipments and shipments of DSW

- excluded materials. See Section 2.3 of this report for additional information. b This scenario includes generators that continue their current practices under the exclus ions by either reclaiming on - site, shipping to a permitted, off

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

- site disposal to sending the material to either a same

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

- site reclamation at a fa cility without a permit to another type of reclamation under the TBE, including either off

- site reclamation at a RCRA

- permitted facility, off

- site reclamation at a facility without a permit, or export of the material to a company in another country
.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 55

Intermediate and Reclamation Facilities Fires and Explosions (Scenarios 1 and 4 through 8) . Some HSM, such as s olvents , are often flammable, and can ignite to create fires and explosions . HSM may also contain volatile chemicals, which can be released to the air, and if flammable, these air emissions may cause fires and explosions if ignited, causing injury or property damage. Fires and explosions may

also evolve other toxic or hazardous gasses. Fire and explosion hazards under the DSW exclusions could increase because of the following:

 Change from RCRA

- permitted to unpermitted management facilities (Scenarios 1, 5 , and 8). Some HSMs may be diverted from off

- site reclamation o r disposal at a facility permitted under the hazardous waste regulations to off

- site reclamation, which does not require a permit. Permitted facilities are subject to prescriptive permit requirements covering the design, construction, operation, financial assurance, closure and post

- cl osure of the facility, including hazardous waste management units. They also are subject to public involvement in the permitting process. Reclamation under the DSW exclusion would be subject to fewer requirements, including no requirement for a permit or public involvement. For example, reclamation under the exclusion is not subject to emergency preparedness and response, personnel training , or prescriptive requirements for containment. These requirements could reduce the likelihood of fires and explosions, reduce their magnitude, or increase the ability of facilities to respond to them and reduce the damage caused.

 No explicit containment standards (Scenarios 1, 5 , and 8). The hazardous waste regulations and TBE require containment of HSM in the unit. The hazardous waste regulations prescribe design, installation, operating, closure and post

closure standards to address containment, whereas the TBE does not. The exclusion requires that the HSM be managed in a manner that is at least as protective as that employed for analogous raw material and be contained. As such, the TBE allows more flexibility in how HSMs can be managed and contained. These controls, which could be helpful in preventing fi res and explosions and the emission of potentially combustible vapors to the atmosphere, are not specificall y required under the DSW exclusions.

 No explicit standards for controlling air emissions (Scenarios 1, 5 , and 8). The TBE does not include standards for controlling air emissions from process vents, equipment leaks, or storage units as do the hazardous waste regulations. While the DSW exclusions require containment of HSM , they do not include explicit requirements for control of air emissions. The hazardous waste regulations and TBE require containment of HSM in the unit. The hazardous waste regulations set forth prescriptive design, operating and other standards to control air releases for process vents, leaks and storage units. The TBE does not include prescriptive requirements. These controls, which could be helpful in preventing fires and explosions and the emission of potentially combustible vapors to the atmosphere, are not specificall y required under the DSW exclusions.

 HSM could be increa singly diverted from hazardous waste management to reclamation under the TB E (Scenarios 1 and 4 through 8)

. Increased reclamationDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 56 could increase the risk at reclamation sites of fires and explosions due to increased air emissions, the use of heat in reclamation processes, and the potential mixing of wastes for reclamation. For example, the reclamation of solvents ty picall y involves the use of distillation, which requires the application of heat. Solvents generall y become more volatile as the temperature increases, which could lead to greater air emissions that could be a source for a fire or explosion. Soil and Water Contamination (Scenarios 1 and 4 through 8) . Soil and groundwater contamination from HSM releases can occur during accumulation and transportation on

site. During accumulation, a number of factors could lead to a release (e.g., run - off from the storage area, tank overflows, leaks from damaged or deteriorated containers or tanks , or complete failure of tank) . During transfer, releases c ould include spills, overflows, and leaks from human error or deterioration of transport equipment (e.g., leaking pipes). For example, s olvents are susceptible to such relea ses since they are commonly

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

 Change from RCRA

- permitted to unpermitted management facilities (Scenarios 1, 5 , and 8). Some HSMs may be diverted from off

- site reclamation or disposal at a permitted facility

under the hazardous waste regulations to off

- site reclamation under the TBE , which does not require a permit. Permitted facilities are subject to prescriptive permit requirements covering the design, construction, operation, financial assurance, closure and post

- c losure of the facility , including hazardous waste management units. They also are subject to public involvement in the permitting process. Reclamation under the TBE would be subject to fewer requirements, including no requirement for a permit or public i nvolvement. For example, reclamation under the exclusion is not subject to emergency preparedness and response, personnel training, or prescriptive requirements for containment. These requirements could reduce the likelihood of leaks and spills that coul d result in soil or water contamination, reduce their magnitude, or increase the ability

of facilities to respond to them and reduce the damage caused.

 No explicit containment standards (Scenarios 1, 5 , and 8). The hazardous waste regulations and TBE re quire containment of HSM in the unit. The hazardous waste regulations prescribe specific design, installation, operating, closure and post
- closure standards to address containment, whereas the TBE does not. The exclusion requires that the material be man aged in a manner that is at least as protective as that employed for analogous raw material and be contained. As such, the TBE allows more flexibility in how HSMs can be managed and contained. These controls, which could reduce the likelihood of leaks an d spills that could result in soil or water contamination, reduce their magnitude, or increase the ability

of facilities to respond to them and reduce the damage caused , are not specificall y required under the DSW exclusions.

 HSM could be increasingly div erted from hazardous waste management to reclamation under the TB E (Scenarios 1 and 4 through 8)

. Increased reclamation could increase the risk at reclamation sites of leaks and spills that could result in soil or water contamination or increase their magnitude

. The additional processing required for on

- site reclamation could result in more releases to soilDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 57 and water. For example, recycling by distillation of a solvent may require filtration, distillation, condensation, or other processing. As the solvent is passed through the pipes, valves, and other equipment used in the distillation process, the likelihood of a release through leaks and spills increases. Volatile Air Emissions (Scenarios 1 and 4 through 8). Volatile organic air emissions can be rele ased during accumulation , transportation, and reclamation on

- site

. Under certain conditions, solvents held in tanks or containers could volatilize and escape to the atmosphere (e.g., through open container lids, uncovered tanks, leaks and vents, and breathing losses). This also could occur during the reclamation process. Volatile emission hazards under the DSW exclusions could increase because of the following:

 Change from RCRA

- permitted to unpermitted management facilities (Scenarios 1, 5 , and 8). Some HSMs may be diverted from off

- site reclamation or disposal at a permitted facility

under the hazardous waste regulations to off

- site reclamation under the TBE , which does not require a permit. Permitted facilities are subject to prescriptive permit requirements covering the design, construction, operation, financial assurance, closure and post

- closure of the facility , including hazardous waste management units. They also are s ubject to public involvement in the permitting process. Reclamation under the TBE would be subject to fewer requirements, including no requirement for a permit or public involvement. For example, reclamation under the exclusion is not subject to emergenc y preparedness and response, personnel training, or prescriptive requirements for containment. These requirements could reduce the likelihood of volatile air emissions or reduce their magnitude.

 No explicit containment standards (Scenarios 1, 5 , and 8). The hazardous waste regulations and TBE require containment of HSM in the unit. The hazardous waste regulations have explicit design, installation, operating, closure and post

closure standards to address containment, whereas the TBE does not. The exclusion requires that the HSM be managed in a manner that is at least as protective as that employed for analogous raw material and be contained. As such, the TBE allows more flexibility in how HSMs can be managed and contained. These controls, which could be helpful in preventing volatile air emissions , are not specifically required under the DSW exclusions.

 No explicit standards for controlling air emissions (Scenarios 1, 5 , and 8). The TBE does not include standards for controlling air emissions from p rocess vents, equipment leaks, or storage units as do the hazardous waste regulations. While the DSW exclusions require containment of HSM , they do not include explicit requirements for control of air emissions. The hazardous waste regulations and TBE require containment of HSM in the unit. The hazardous waste regulations set forth explicit design, operating and other standards to control air releases for process vents, leaks and storage units. These controls, which could be helpful in preventing volatil e air emission s , are not specifically required under the DSW exclusions.

 HSM could be increasingly diverted from hazardous waste management to reclamation under the TBE (Scenarios 1 and 4 through 8). The additionalDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 58 processing required for on

- site reclamation could result in more air emissions at reclamation sites . For example, recycling by distillation of a solvent may require filtration, distillation, condensation, or other processing. As the solvent is passed through the pipes, valves, and othe r equipment used in the distillation process, volatile emissions from fittings, valves, and process equipment could increase. In addition, many

reclamation processes, such as distillation of solvents, require the application of heat. Solvents generally b ecome more volatile as the temperature increases, which could lead to greater air emissions. Changes in temperature can also increase breathing losses from tanks and equipment, leading to increased air emissions. Wind dispersal (Scenarios 1 and 4 through 8). Wind dispersal can occur if the HSM is in the form of a dust or small, dry particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts). Soil or other solid media contaminated with solvents or other contaminants may be susceptible to wind dispersal. Electric arc furnace dust in particular might be susceptible to wind dispersal because it is often present in dust form and may be stored in waste piles. Wind dispersal contamination hazards under the D SW exclusions could increase because of the following:

 Change from RCRA

- permitted to unpermitted management facilities (Scenarios 1, 5 , and 8). Some HSMs may be diverted from off

- site reclamation or disposal at a permitted facility

under the hazardous was te regulations to off

- site reclamation under the TBE , which does not require a permit. Permitted facilities are subject to explicit permit requirements covering the design, construction, operation, financial assurance, closure and post

- closure of the faci lity and hazardous waste management units. They also are subject to public involvement in the permitting process. Reclamation under the TBE would be subject to fewer requirements, including no requirement for a permit or public involvement. For example, reclamation under the exclusion is not subject to emergency preparedness and response, personnel training, or explicit requirements for containment. These requirements could reduce the likelihood of wind dispersal of HSM, reduce their magnitude, or incre ase the ability of facilities to respond to them and reduce the damage caused.

 No explicit containment standards (Scenarios 1, 5 , and 8). The hazardous waste regulations and TBE require containment of HSM in the unit. The hazardous waste regulations co ntain explicit design, installation, operating, closure and post

closure standards to address containment, whereas the TBE does not. The exclusion requires that the HSM be managed in a manner that is at least as protective as that employed for analogous raw material and be contained. As such, the TBE allows more flexibility in how HSMs can be managed and contained. These controls, which could reduce the likelihood of wind dispersal of HSM, or increase the ability of facilities to respond to them and reduce the damage caused , are not specificall y required under the DSW exclusions. Residues from Reclamation (Scenarios 1 and 4, 5, 7, and 8). Reclamation processes (e.g., distillation and high temperature metals recovery) could result in a hazardous waste residue that requires further treatment before land disposal in accordance with the RCRADRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 59 Subtitle C regulations . The hazardous waste regulations state that any material derived from a listed hazardous waste is also a listed hazardous waste. This is call ed the “derived

- from” rule. It means, for example, that residues from the reclamation of a listed hazardous waste are listed hazardous waste. The GCE does not address how residues from the reclamation process should be managed and is therefore not comparable to the hazardous waste regulations in this regard. As a result, generators under the exclusion could identify

residuals to be a new point of generation for the purposes of applying the hazardous waste determination requirements of 40 CFR 262.11. Thi s raises the possibility

that some residuals from recovery process that were considered hazardous under full RCRA Subtitle C regulation would no longer be considered hazardous for recovery units operated under the DSW rule , unless such residue was also a l isted hazardous waste . As a result, such wastes could exit Subtitle C regulation. Abandoned Materials (Scenarios 5 and 8)

. A significant number of the environmental damage cases evaluated by the Agency

involve abandoned materials. EPA believes that bank ruptcies and other business failures could be responsible for a number of the se cases. Abandoned materials at intermediate and reclamation sites under the DSW exclusions could increase because of the following:

 The TBE requires facilities to obtain financ ial assurance for closure and accidents. By obtaining financial assurance, a facility is demonstrating that even if events beyond its control make its operations uneconomical, funds will be available to clean up abandoned materials

. These requirements are more stringent than the hazardous waste regulations that apply to reclaimers that do not store the hazardous waste pending reclamation; such reclaimers are not required to obtain financial assurance. In addition, they are comparable to the financial assurance requirements applicable to permitted reclaimers. However, permitted reclaimers also are subject to other requirements that could prevent abandonment of HSM, including corrective action during each permit renewal. They

also are subject to periodic i nspections by EPA and state regulatory

personnel.

 HSM could be increasingly diverted from hazardous waste management to reclamation under the TBE , which may result in greater quantities accumulated on - site at these facilities. A greater accumulation quantity could mean that the quantity of HSM abandoned could be greater, increasing the magnitude of problems associated with abandoned materials, such as the extent of environmental contamination and cleanup costs.DRAFT Internal Report Provided for Peer Review 12/20/2010

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

Rule a Potential Incremental Hazards Fire/ Explosion Soil/Water

Contamination Volatile Air

Emissions Wind

Dispersal Residues

from Reclamation Abandoned

Materials Scenario 1: Generator continues current reclamation practices b Change from RCRA

- permitted to unpermitted management facilities X X X X No explicit containment standards X X X X No explicit standards for controlling air emissions X X HSM increasingl y diverted from hazardous waste management and disposal to reclamation under the TBE X X X X X X No derived

- from rule, listed residues potentially

exit Subtitle C X Scenario 2: Generator switches from off
- site disposal to on
- site reclamation Not applicable Scenario 3: Generator switches from off
- site disposal to off

- site reclamation under the control of the generator c Not applicable Scenario 4: Generator switches from off
- site disposal to off

- site recycling at a RCRA
- permitted facility HSM increasingl y diverted from hazardous waste management and disposal to reclamation under the TBE X X X X X No derived

- from rule, listed residues potentially exit Subtitle C X Scenario 5: Generator switches from off
- site disposal to off

- site recycling at a U.S. facility without a RCRA permit Change from RCRA

- permitted to unpermitted management facilities X X X X No explicit containment standards X X X XDRAFT Internal Report Provided for Peer Review 12/20/2010

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

Rule a Potential Incremental Hazards Fire/ Explosion Soil/Water

Contamination Volatile Air

Emissions Wind

Dispersal Residues

from Reclamation Abandoned

Materials No explicit standards for controlling air emissions X X HSM increasingl y diverted from hazardous waste management and disposal to reclamation under the TBE X X X X X X No derived

- from rule, listed residues potentially

exit Subtitle C X Scenario 6: Generator switches from off
- site disposal to exporting for reclamation HSM increasingl y diverted from hazardous waste management and disposal to reclamation under the TBE X X X X X No derived

- from rule, listed residues potentially

exit Subtitle C Scenario 7: Generator switches from off
- site reclamation at a facility without a permit to another type of recycling under DSW d HSM increasingl y diverted from hazardous waste management and disposal to reclamation under the TBE X X X X X No derived

- from rule, listed residues potentially

exit Subtitle C X Scenario 8: Generator switches from off
- site reclamation a RCRA
- Permitted facility to another type of recycling under DSW Change from RCRA

- permitted to unpermitted management facilities X X X X No explicit containment standards X X X X No explicit standards for controlling air emissions X XDRAFT Internal Report Provided for Peer Review 12/20/2010

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

Rule a Potential Incremental Hazards Fire/ Explosion Soil/Water

Contamination Volatile Air

Emissions Wind

Dispersal Residues

from Reclamation Abandoned

Materials HSM increasingl y diverted from hazardous waste management and disposal to reclamation under the TBE X X X X X X No derived

- from rule, listed residues potentially

exit Subtitle C X

a These differences were identified by comparing the federal regulations applicable to storage facilities operating under the h azardous waste regulations and intermediate/reclamation facilities operating under the DSW exclusions. See Section 2.3 of this rep ort for additional information. b This scenario includes generators that continue their current practices under the exclusions by either reclaiming on

- site, shipping to a permitted, off

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

- site disposal to sending the material to either a same

- com pany reclaimer or toll manufacturer under the GCE. d This s cenario includes generators switching from off

- site reclamation at a facility without a permit to another type of reclamation under the TBE, including either off

- site reclamation at a RCRA

- permitted facility, off

- site reclamation at a facility without a pe rmit, or export of th e material to a company in another country
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– Do not Cite or Quot e 63 2.5.2 Potential Reductions and Transfers of Hazards by Facility Type and Scenario Generators Abandoned Materials (All Scenarios) . The hazardous waste regulations and DSW exclusions have comparable requirements for initial and biennial submittals in regard to frequency and types of information submitted, such as quantities and ty pes of HSM. However, the biennial reporting requirem ent in the hazardous waste regulations applies only to LQGs. The DSW notification requirement applies to generators regardless of amount of waste generated. Under the DSW exclusions, EPA and state regulators will have a greater knowledge of the types and quantities of HSM being generated and managed b y SQGs . They could use this information when developing compliance activities, such as inspections and outreach , resulting in better compliance and reduced risk of abandoned materials. Inaddition, a gre ater knowledge of HSM ty pes and quantities at these smaller sites will give regulators a better idea of how to remove and clean up HSM in a protective manner if it were abandoned. The biennial notification requirement, along with the requirement for sites to notify EPA if they

cease to operate under the exclusions, will give regulators an indication when these SQGs are closing or have closed so that the regulators can take appropriate action at these sites at that time (e.g., compliance assistance) to ensure the HSM is not abandoned. The information submitted in notifications is also publicly available. The general public can use this information to better understand the generation and management of HSM in their communities.

Transporters Reduction in Tr ansportation Accidents, Pollution, Traffic and Noise (Scenarios 1 through 8) . Following are potential changes under the DSW exclusion that could result in a reduced frequency of off

- site shipments from generator sites and a resulting decrease in transport ation hazards:

 Longer generator accumulation periods are allowed , reducing the number of shipments made to reclaimers (Scenarios 1, 3, 4, 5, 6, 7, 8). Under 40 CFR part 262, LQGs and SQGs are prohibited from accumulating hazardous waste on

- site for more th an 90 or 180/270 day s (depending on ty pe of activity

involved) , , respectivel y, without a permit or interim status. SQGs also must ensure that the quantity of hazardous waste accumulated on - site does not exceed 6,000 kilograms. To avoid exceeding these ac cumulation limits, generators may

need to make numerous off

- site shipments of hazardous waste during the ye ar (e.g., less than every 90 day s for LQGs). Generators operating under an exclusion of the DSW final rule are not subject to the 40 CFR part 262 gen erator standards, including the accumulation volume or time limits, for their HSMs managed under the rule. Rather, these generators would manage their materials in accordance with the 2008 DSW final rule. In regard to on

- site accumulation, they must ensure that their HSMs are not “speculatively accumulated.” This means that a generator accumulating HSM must be able to show that, during a calendar year, the amount of such material that is recycled or transferred to a different site for recycling is at lea st 75% by

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– Do not Cite or Quot e 64 This speculative accumulation provision gives generators greater flexibility to determine the appropriate timing of their off

- site shipments. This could allow them to take advantage of economies of scale in transporting their HSM In general, unit transportation costs decrease as the amount of material transported increases. Generators that make fewer, larger shipments will pay less in transportation costs than th ose that must rely on more, smaller shipments for the same amount of waste. For example, a generator that had to make four small off

- site shipments each year under the 90

- day

clock might be able to make one or two larger off

- site shipments each year unde r the DSW exclusion, provided the speculative accumulation provision is satisfied. Fewer shipments would result in a reduction in the total number of trucks on the road and a decrease in the total number of miles traveled by trucks carrying the HSM . Thi s would cause a corresponding decrease in the incidence of transportation

- related accidents, and adjacent community

exposures to air emissions from the waste on the roads, air emissions from truck operation, and traffic. These hazard reductions could occur, for example, when generators switch from off

- site reclamation under the hazardous waste regulations to off

- site reclamation under the 2008 DSW final rule. They

also could occur when generators switch from off

- site treatment and disposal under the hazardous waste regulations to off

- site reclamation under the DSW final rule.

 Generators may

switch to on

- site reclamation, reducing or eliminating their off

- site shipments of HSM (Scenarios 2 and 8). Some generators might opt to switch from off

site treatment, disposal or reclamation under the hazardous waste regulations to on

- site reclamation under the rule. On

- site reclamation could reduce the number of off

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

- site less frequentl y. L ess frequent shipments could result in a corresponding decrease in the incidence of transp ortation

- related accidents, air emissions from the waste on the roads, air emissions from truck operation, and traffic.

 Change in generator status results in fewer off

- site shipments of all hazardous waste produced b y that facility (Scenarios 1 through 8). A generator that reclaims on

- site or off

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

- site hazardous waste shipments each ye ar. For example, a generator that drops from being a LQG to a SQG would be able to ship its hazardous wastes off

- site under the 180/270

- day clock instead of every

90 day s. Fewer off

- site shipments could result in the hazard reductions described above. Intermediate and Reclamation Facilities Releases from Reclamation (Scenario 7) . The TBE requ ires facilities to obtain financial assurance for closure and accidents. By obtaining financial assurance, a facility is demonstrating that even if the facility

declares bankruptcy , funds will be available to clean up abandoned HSMs . These requirements are more stringent than the hazardous waste regulations that appl y to reclaimers that do not store the hazardous waste pending reclamation; such reclaimers are not required to obtain financial assurance. The financial assurance requirements will decrease theDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quot e 65 likelihood that the economic burden for the cleanup of abandoned materials will fall on the public. In addition, the TBE requires generators to make reasonable efforts to evaluate a reclamation facility before shipping excluded material to it when the f acility ’s management of the HSM would not be addressed under a RCRA Part B permit or interim

- status standard. The hazardous waste regulations do not require such reasonable efforts. For example, the TBE requires generators to determine that the facility has not been classified as a significant non

- complier with RCRA Subtitle C and that it has the equipment and trained personnel to safely recycle the HSM

. The generator must affirmatively answer these and other questions listed at section 261.4(a) ( 24 ) (v) (B) for the facility . EPA expects these determinations by generators to motivate reclaimers to improve their environmental performance (e.g., properly train their personnel) and address outstanding violations and prevent future ones. These efforts also w ill help to ensure that the HSMs are managed at facilities that are qualified to reclaim them safel y. In this respect, the TBE could reduce environmental hazards in comparison with the hazardous waste regulations for reclamation facilities that are not su bject to a RCRA permit. Abandoned Materials (Scenario 7). EPA believes that bankruptcies and other business failures (intended or unintended) could be responsible for abandonment of HSM at a number of former reclamation facilities. Abandoned materials at intermediate and reclamation sites under the 2008 DSW final rule could increase due to reduced regulatory requirements under the DSW exclusions . However, the TBE requires facilities to obtain financial assurance for closure and accidents. The financial assurance demonstrates that even if a facility goes into bankruptcy , funds will be available to clean up abandoned materials, and the financial burden for cleanup will not fall on the public. These requirements are more stringent than the hazardous waste regulations that appl y to reclaimers that do not store the hazardous waste pending reclamation; such reclaimers are not required to obtain finan cial assurance. 2.5.3 Other Impacts Environmental Hazards from Hazardous Waste Treatment and Disposal (Scenarios 2 through 6) . The 2008 DSW final rule could make reclamation more appealing than treatment and disposal for some generators. For example, the rul e would lessen the barriers to reclamation, such as regulatory

burdens and manifesting/permitting costs, and thereb y make reclamation more cost
- competitive. In addition, the rule lessens the stigma associated with reclaiming “hazardous waste” since the material to be reclaimed is considered to be “hazardous secondary material.” As a result, HSMs might be diverted increasingl y from treatment and disposal to reclamation under the 2008 DSW final rule. This could shift hazards associated with the management of HSM from some communities to others. For example, a reduction of hazards in one community (e.g., HSM diverted away from a distant incinerator) could translate to an increase in hazards in another community

(e.g., HSM redirected to a nearby reclaimer us ing distillation). Greater reclamation could reduce the quantity of hazardous wastes sent to incineration, burning for energy

recovery , and landfilling. This could reduce the amount of emissions from incinerators, boilers and industrial furnaces reducing emissions of hazardous air pollutants and greenhouse gasses. It could also reduce the risk of contamination of groundwater and air emissions from landfills. However, there could be some offsetting environmental impacts from increased reclamation. For example, there could be air emissions and increased energy use from such reclamation methods as solvents distillation.DRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quot e 66 Environmental Hazards from Mining Operations and Air Pollution from Energy Usage (Scenarios 2 through 6). As indicated earlier, HSMs might be diverted increasingl y from treatment and disposal to reclamation under the 2008 DSW final rule. As the quantity of a reclaimed material increases, the demand for the corresponding virgin material could decrease. This in turn could result in a reduction in the exploration, development, extraction, refining and processing of the virgin material, which could help to preserve the natural environment and generate less air, water, and soil pollution associated with extraction and processing activities. Fo r example, etchant suppliers could increasingl y receive and recycle electroplating sludge from printed circuit board manufacturers, lessening the demand for copper from mining and the associated environmental footprint and effects of mining operations. In addition, when increasing quantities of HSMs are reclaimed, less energy might be needed to extract, transport, and process the raw materials. When energy demand decreases, fewer fossil fuels are burned and less contaminants from energy generation and mat erial transportation are emitted into the atmosphere. For example, less energy is normally

needed to re

- melt metals for recycling than to produce virgin metal from ore; hence, less greenhouse gases and other air emissions could be generated from recycling than using raw materials to produce similar products

. Finally , some manufacturing plants generate large quantities of waste while producing a “virgin” product. These wastes must be managed in accordance with applicable solid and hazardous waste regulat ions, which could involve incineration and landfilling. Greater reclamation could reduce the demand for virgin products, and hence, lessen the generation of solid and hazardous wastes from their manufacturing

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– Do not Cite or Quote 67 Table 2.7 . Potential Reduction in Hazards under DSW Rule

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

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

Materials Environmental

Hazards from Treatment and Disposal Air Pollution

from Energy Usage Environmental

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

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

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

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

- site shipments of HSM X Change in generator status , fewer shipments of hazardous waste X Scenario 7: Generator switches from off
- site rec lamation at a facility without a permit to another type of recycling under DSW dDRAFT Internal Report Provided for Peer Review 12/20/2010

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– Do not Cite or Quote 68 Table 2.7 . Potential Reduction in Hazards under DSW Rule

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

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

Materials Environmental

Hazards from Treatment and Disposal Air Pollution

from Energy Usage Environmental

Hazards from Mining Operations Longer generator accumulation periods , fewer off

- site shipments of HSM X Change in generator status , fewer shipments of hazardous waste X HSM increasingly diverted from unpermitted reclamation under HWRs to reclamation under the TBE, which may be more stringent X X Biennial notifications from SQGs to EPA under DSW exclusions X Scenario 8: Generator switches from off
- site re clamation a RCRA
- P ermitted facility to another type of recycling under DSW Longer generator accumulation periods , fewer off

- site shipments of HSM X Change in generator status , fewer shipments of hazardous waste X Biennial notifications from SQGs to EPA under DSW exclusions X

a These differences were identified by comparing the federal regulations and potential consequences under the hazardous waste regulations and the DSW exclusions. b This scenario includes generators that continue their current practices under the exclusions by either reclaiming on

- site, shipping to a permitted, off

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

- site disposal to sending the material to either a same

- com pany reclaimer or toll manufacturer under the GCE. d This scenario includes generators switching fr om off

- site reclamation at a facility without a permit to another type of reclamation under the TBE, including either off

- site reclamation at a RCRA

- permitted facility, off

- site reclamation at a facility without a permit, or export of th e material to a company in another country

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- Do Not Cite or Quote 70 3 Identification of Potentially Affected Communities This section identifies the facilities that may likely begin recycling HSM s under the 2008 DSW final rule . These facilities include : 1. F acilitie s that have already notified EPA that they will be managing HSMs under the 2008 DSW final r

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

ule ; and 3. Facilities not currently generating or managing HSMs that may choose to begin reclaiming them under the 2008 DSW final r ule. EPA conducted its EJ analy sis on the facilities identified in this Section. The EJ analy sis is described in Section 4 of this report. For each of the above categories, EPA identified key information about the facilities needed to conduct the EJ analy sis, such as their location and quantities and ty

pes of HSMs generated and managed. 3.1 Facilities that Have Notified EPA that They Will Be Managing Hazardous Secondary Materials under the DSW Rule (40 CFR § 260.42) As of August 30, 2010, 40 facilities submitted notifications to EPA that they would manage their HSM under the 2008 DSW final rule (hereafter referred to as “ notification facilities ”) . These include facilities from Iowa, New Jersey , Penns yl vania, and the Virgin Is lands. Because the 2008 DSW final rul e is deregulatory in nature, it is only

effective in states and territories that are not authorized to implement their own RCRA base programs, and those states with authorized programs that modify

their programs to adopt it. As of August 30, onl y New Jerse y and Pennsylvania have adopted the 2008 DSW final rule . The RCRA hazardous waste program in Io wa and the Virgin Islands are not authorized to implement their own programs. This report examines the 40 facilities that notified as of August 30, 2010 that they are following the 2008 DSW final rule . EPA maintains a list of notification facilities at http://www.epa.gov/epawaste/hazard/dsw/notify
- sum.pdf

. For each of the 40 notification fac ilities, EPA compiled information from data sources , such as their notification forms and other environmental reporting data sources , such as the RCRA Site I dentification (Site ID) Forms of the most recent Biennial Report (BR) filed by the facility

between 2001 and 2007. 31 If the facility

did not file a 2001

- 2007 BR , EPA obtained information from the Handler Module in RCRAInfo or from the Facility Registry Sy stem (FRS) database in Envirofacts (at http://www.epa.gov/enviro/html/fii/fii_query_java.html )

. From these data sources, EPA compiled the following information:

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

North American Industry Cla ssification Sy stem (NAICS) code and NAI CS code description. EPA then c ompiled information on facility location coordinates (i.e., latitude and longitude) from the FRS database in Envirofacts

. Where such data were not available from these sources, EPA used the facility

address and geocoding software to identify the facility latitude and

31 At this time, the most recent available BR data are for reporting year 2007. It is anticipated that the 2009 BR data will become available in December 2010.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 71 longitude. The success rate of the geocoding is dependent on the quality of the location address data. The most accurate coordinates were obtained when the street address could be recognized and located b y the geocoding software. Generally, about 70 to 80 percent of the addresses were recognized and located by the geocoding software. Ininstances in which addresses could not be geocoded (e.g., inaccurate or missing street addresses, PO boxes or r ural routes), EPA used internet searches of company w ebsites or internet business li stings to obtain more specific facility location ad dresses or facility coordinates

. EPA further determined whether any of the notification faci lities was one of the 219 damage cases, including the 218 damage cases included in the Environmental Problems Study or the one additional damage case identified by EPA based on information received after promulgation of the 2008 DSW final r

ule. Based on this review, none of the 40 notification facilities is a damage case facility

. 3.2 Facilities Currently Generating or Managing Hazardous Secondary Materials that May Choose to Operate under the DSW Rule EPA identified the facilities that are currently generating or managing recyclable hazardous wastes (including intermediate storage facilities) that may be likel y to begin operating under the 2008 DSW final rule

. EPA assume d that these facilities may choose to operate under th is r ule, regardle ss of whether the S tate is likely to adopt the rule

. 32 This assessment was made based on a review of each facilities hazardous waste generation and management activities as reported in the 2007 RCRA Hazardous Waste Biennial Report, which is the most comprehensive and current information available about such activities. For this analy sis, EPA assume d that facilities that currentl y manage HSMs by recycling, or that generate recyclable hazardous wastes at large enough quantities to make it economicall y justif iable , would switch to reclamation under the 2008 DSW final r

ule. 33 3.2.1 Facilities Currently Managing Recyclable Hazardous Wastes Facilities that currentl y manage hazardous wastes may begin recycling them under the 2008 DSW final rule . This includes facilities that are currentl y reclaiming hazardous wastes under the hazardous waste regulations that may switch to recycling under the 2008 DSW final rule . It also includes facilities that manage hazardous wastes by other management methods, such as inci neration or solidification/stabilization that may switch to reclamation under the 2008 DSW final rule

. To identify

and collect information about facilities currentl y managing recyclable hazardous waste that may

begin managing them under the DSW exclusion s, EPA conducted the following steps: 1. Compiled information on hazardous wastes managed by facilities. To compile

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

- site, and wastes received from off

- site for manag ement), EPA collected information from s ection 2 (On

- site Management) of the GM (Waste Generation and Management) and WR (Waste Received from Off

- site) Forms of the BR. This

32 Page 18 of EPA’s Draft Environmental Justice Methodology for the Definition of Solid Waste Final Rule , dated January 13, 2010

. 33 Page 17 of EPA’s Draft Environmental Justice Methodology for the Definition of Solid Waste Final Rule , dated January 13, 2010

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allowed EPA to capture facilities that filed a BR , reporting their own hazardous waste management activities. In addition, EPA referred to s ection 3 (Off

- site Shipment) of the GM Forms to identify any hazardous waste management facility that did not file a BR, but is reflected in a generator’s BR. From these data sources, EPA compiled the following information, as applicable:

 Reporting ye ar;  Biennial Report form (i.e., GM or WR);
 Page and subpage number;
 Source code (GM Form only);
 Source code description (GM Form onl y);
 F orm code;
 Form code description;
 Classification as wastewater or nonwastewater;
 EPA hazardous w aste code s representing the waste;
 Waste code group;
 Waste description;
 On

- site or off

- site management indicator;
 Management method code;
 Management method code description;
 Quantity

of hazardous waste managed, by management method code;
 Indicator of whether the hazardous waste was managed through recycling activities (i.e., recycled); and
 Indicator of whether the waste is considered a “recyclable hazardous waste.” In classifying the waste s as “wastewaters” or “nonwastewaters,” EPA used a methodology that relies on some of the data reported to the BR to determine if such waste is a wastewater or nonwastewater. Attachment C

- 1 describes this methodology

. The waste code group is a single , mutuall y exclusive code assigned to the waste. It was created to help avoid double counting of waste streams with multiple hazardous waste codes. Attachment C

- 2 presents the logic that was used to define these waste code groups. For purposes of this an aly sis, “ recycling ” activities are those associated with the management of wastes using one of the following management methods: metals recovery (BR management method code H010 ), solvents recovery (BR management method code H020 ), and other recovery (BR m anagement method code H039 ). In determining whether a waste is considered a “recyclable hazardous waste,” EPA used the methodology

developed for the RIA of the 2008 DSW final r ule. Attachment C

- 3 describes the RIA methodology . Note that this methodology was only applied to HSMs managed through methods other than recycling (i.e., methods other than metals recovery , solvents recovery , and other recovery). All HSMs reported as recycled were assumed to be recyclable regardless of their characteristics. 2. Identified facilities that manage recyclable hazardous wastes. EPA identified facilities currently

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compiled under Step 1. EPA identified recyclable hazardous wastes based on the characteristics of those wastes, as well as the amount of HSM generated. EPA generall y considered HSMs that could be identified as acids based on their source or form codes as recyclable. For other HSMs , EPA identified those that appeared to be solv ent or metal

- bearing materials based on the source codes, form codes, management method codes, or other information. In general, solvent and metal

bearing materials that were identified as production process non wastewaters were considered recyclable , whil e other ty pes of HSMs were not considered recyclable. For example, wastewaters generall y tend to be dilute waste streams with low levels of materials and generall y are not recycled because insufficient material can be recovered to make the recycling econo mically feasible. Additionally , c leanup wastes and treatment residuals generall y are contaminated with other materials, such as soil or other solids that often render recycling infeasible. EPA’s approach to identifying recyclable materials generally foll ows the approach used in the RIA prepared in support of the 2008 DSW final rule. A detailed description of the methodology applied for this anal ys is is contained in Attachment C. 3. Compiled information about location coordinates

. EPA then compiled information on facility

location coordinates (i.e., latitude and longitude) from the FRS database in Envirofacts. Where such data were not available, EPA used the facility address and geocoding software to identify the facility

latitude and longitude. The succes s rate of the geocoding is dependent on the quality of the location address data. The most accurate coordinates were obtained when street addresses could be recognized and located b y the geocoding software. Generall y, about 70 to 80 percent of the addres ses can be recognized and located b y the geocoding software. In instances where addresses could not be geocoded (e.g., inaccurate or missing street addresses, PO boxes or r

ural routes), EPA used internet searches of company websites or internet business l istings to obtain more accurate facility location addresses or facility coordinates. 4. Excluded facilities that submitted notification to EPA indicating that they would be managing hazardous secondary materials under the DSW Rule. From the list of facilitie s developed, EPA identified and excluded those facilities that already notified EPA that they

would be managing HSMs under the 2008 DSW final r ule, since these facilities are being anal yzed under Section 3.1 of this document (“Facilities that Have Already Notified EPA that They Will Be Managing Hazardous Secondary Materials under the DSW Rule”). 3.2.2 Facilities Currently Generating Recyclable Hazardous Wastes Facilities that currentl y generate hazardous wastes may begin recycling them under the 2008 DSW final rule . This includes facilities that are currentl y rec ycling hazardous wastes under the hazardous waste regulations that may switch to recycling them under the 2008 DSW final rule

. It also includes facilities that manage hazardous wastes by other management methods, such as incineration or solidification/stabilization that may switch to recycling under the 2008 DSW. final rule

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- Do Not Cite or Quote 74 To identify

and collect information about facilities currentl y managing recyclab le hazardous waste that may

begin managing them under the DSW exclusions, EPA performed the following steps: 1. Compile d information on hazardous wastes generated by the facilities. To compile

information on hazardous wastes generated by facilities and on th e management methods associated with each of these materials , EPA collected information from s ection 1 (Generation), s ection 2 (On

- site Management), and s ection 3 (Off

- site Shipment) of the GM Forms. From these data sources, EPA compiled the following information:

 Reporting ye ar;  Biennial Report form (i.e., GM);
 Page and subpage number;
 Source code;
 Source code description;
 Form code;
 Form code description;
 Classification as wastewater or nonwastewater;
 EPA hazardous waste codes representing the waste;
 Waste code group;
 Waste description;
 Quantity

of hazardous waste generated;
 On

- site or off

- site management indicator;
 Management method code;
 Management method code description;
 Quantity

of recyclable hazardous waste managed, by management method code;
 Indicator of whether the waste was managed through recycling activities (i.e., recycled); and
 Indicator of whether the waste is considered a “recyclable hazardous waste.” In classifying the waste as a “wastewaters” or “nonwastewaters, ” EPA used a methodology that relies on some of the data reported to the BR to determine if the waste is a wastewater or nonwastewater. Attachment C

- 1 describes this methodology

. The waste code group is a single, mutuall y exclusive code assigned to the wa stes. It was created to help avoid double counting of waste quantities for waste streams with multiple hazardous waste codes. Attachment C

- 2 presents the logic that would be used to define these waste code groups. For purposes of this analy sis, “recyclin g” activities are those associated with the management of wastes using one of the following management methods: metals recovery (BR management method code H010), solvents recovery (BR management method code H020), and other recovery (BR management method code H039). In determining whether a waste is considered a “ recyclable hazardous waste ,” EPA used the methodology

developed for the RIA of the DSW Rule. Attachment C

- 3 describes the RIA methodology . Note that this methodology onl y applied to wastesDRAFT Internal Report Provided for Peer Review 12/20/2010

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managed through methods other than recycling (i.e., methods other than metals recovery , solvents recovery , and other recovery). 2. Identified facilities that generate recyclable hazardous wastes. EPA identified facilities currently

generat ing recyclable h azardous wastes by referring to data compiled under Step 1. EPA identified recyclable hazardous wastes based on the characteristics of those materials , and the amount generated. EPA generally considered wastes that could be identified as acids based on their source or form codes as recyclable. For other wastes, EPA identified those wastes that appeared to be solvent or metal

- bearing based on source codes, form codes, management method codes, or other information. In general, solvent and metal

- bearing materials that were identified as production process nonwastewaters were considered recyclable, while other ty pes of wastes were not considered recyclable. For example, wastewaters generall y tend to be dilute wastes with low levels of recyclable materials and generall y are not recycled because insufficient material is recovered to make the recycling economicall y feasible. Cleanup wastes and treatment residuals generall y are contaminated with other materials, such as soil or other solids that often render re cycling infeasible. EPA’s approach to identifying recyclable materials generall y follows the approach used in the RIA prepared in support of the 2008 DSW final rule. A detailed description of the methodology applied for this anal ys is is contained in Atta chment C. 3. Compiled information about location coordinates. EPA then compiled information on facility

location coordinates (i.e., latitude and longitude) from the FRS database in Envirofacts. Where such data were not available, EPA used the facility addre ss and geocoding software to identify the facility

latitude and longitude. The success rate of the geocoding is dependent on the quality of the location address data. The most accurate coordinates were obtained when street addresses could be recognized a nd located b y the geocoding software. Generall y, about 70 to 80 percent of the addresses can be recognized and located b y the geocoding software. In instances in which addresses could not be geocoded (e.g., inaccurate or missing street addresses, PO boxe s or r

ural routes), EPA used internet searches of company websites or internet business listings to obtain more accurate facility location addresses or facility coordinates. 4. Excluded facilities that submitted notification to EPA indicating that they would be managing hazardous secondary materials under the DSW Rule. From the list of facilities developed, EPA identified and excluded facilities that already notified EPA that they would be managing HSMs under the DSW Rule, since these facilities are being analy

zed under Section 3.1 of this document (“Facilities that Have Already Notified EPA that They

Will Be Managing Hazardous Secondary Materials under the DSW Rule”). 3.2.3 Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate unde r the DSW Rule Not all facilities that currently generate or manage recyclable hazardous wastes will choose to begin to do so under the 2008 DSW final rule . EPA believes that facilities will primarily choose to do so when it is less expensive to recycle their hazardous wastes under the 2008 DSW finalDRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 76 rule than to manage them under the hazardous waste regulations. EPA assumed that all facilities currentl y generating or managing hazardous waste by recycling will continue to manage those wastes b y rec ycling under the DSW exclusion. For facilities using other management methods, EPA identified which facilities may choose to operate under the 2008 DSW final rule based on the amount of recyclable hazardous waste generated or managed b y the facility . Facilities that generate or manage more than a truckload of recyclable hazardous waste (25 tons) annually are assumed to begin managing that waste b y rec ycling under the 2008 DSW final rule

. Facilities that generate or manage less than a truckload (25 tons) of waste in a calendar ye ar were assumed to be unlikely

to conduct activities under the 2008 DSW final rule . For facilities that manage their wastes off

- site, transportation costs are usuall y a significant factor in waste management costs. In addition, the costs of transporting a full truckload are usually significantl y less than those for a partial truckload per unit of material shipped. EPA assumed that the higher unit transportation costs associated with less than truckload shipments would outweigh the additional costs needed to meet the legitimacy criteria of the 2008 DSW final rule. For facilities that manage their wastes on

- site, EPA assumed that the expense associated with purchasing, installing, starting up, and operating an on

- site hazardous waste recycling unit for less than truckload amounts of waste annually would make on

- site recycling economically infeasible. 3.3 Facilities Not Currently Generating o r Managing Hazardous Wastes that May Choose to Begin Reclaiming Hazardous Secondary Materials under the DSW Rule In addition to facilities currentl y generating or managing hazardous waste, some facilities that do not currentl y generate or manage hazardous waste may begin recycling HSM under the 2008 DSW final rule . EPA identified facilities that currently manage non hazardous industrial waste using processes similar to those used for hazardous waste recycling as those most likely to begin reclaiming HSM und er the 2008 DSW final rule . These include recyclers of used oil, antifreeze, scrap metals, and precious metals. Because these facilities likely can begin accepting HSM s for recycling with few modifications to their current processes, these facilities fac e few barriers to begin reclaiming HSM s under the 2008 DSW final rule. EPA assumed that such facilities would begin reclaiming HSM under the 2008 DSW final rule for this anal ys is. EPA did not identify other ty pes of facilities not currentl y generating or managing hazardous wastes that may begin reclaiming HSM under the 2008 DSW final rule. EPA identified commercial non

- hazardous industrial waste recycling facilities by identifying used oil, antifreeze, scrap metal, and precious metal recycling facilitie s in the following data sources :

 EPA databases (e.g., Wastewise Database, TRI);

 Department of Energy ’s report entitled “Used Oil Re

- Refining Study to Address Energy Policy Act of 2005 Section 1838;”
 Chartwell’s “Directory & Atlas of Solid Waste Disposal Facilities;”
 Waste Business Journal Databases;
 Hazardous Waste Consultant; and
 Internet research (e.g., State Web sites, company Web sites); and EPA then e xcluded :

 Facilities that submitted notification to EPA indicating that they would be managing HSMs under the 2008 DSW final r ule;DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 77

 Facilities that reported generating or managing hazardous wastes in 2007 to the hazardous waste BR
 Facilities that appeared to conduct only phy sical separation and processing rather than recycling, such as scrap metal shredde rs. EPA then c ompiled general information about the facilities from the data sources listed above. The information compiled included the ty pes of waste recycled and facility address. EPA then performed geocoding using facility location address informati on.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 78 4 Analysis of Demographics of Potentially Affected Communities EPA anal yz ed the demographics of the potentiall y affected communities identified through the activities described in Section 3 of this report. The demographics anal yz ed included racial m inorities , children under five , and people with income below the poverty level . EPA determined the demographics for the population within a 3
- km radius around each facility

. EPA then compared these demographics to those for the state in which the facility was located, and also for the nation as a whole. 4.1 Demographic Data S ources U.S. EPA collected demographic data from the U.S. Census Bureau’s 2000 Decennial Database, including Summary

File 1 (SF 1) and Summary File 3 (SF 3). The SF 1 data provides inform ation at the most precise level available to the public, the block level. Each block is approximately

the size of a city

block. SF 3 provides data at the next most precise level, the block group level. Each block group is comprised of several blocks. S F 1 data is based on data collected from all persons and households within the block. SF 3 data is a sample data of generall y 1 in 6 households within a block group that includes information about more characteristics of the people and households surveyed . EPA conducted its anal ys is using the most precise data set available for the characteristics anal yz ed. SF 1 data was used for the following demographics:

 population
 population density
 minority

population
 American Indian and Alaska Native population
 and children under five SF 1 does not include data on the number of Americans below poverty . Therefore SF3 data was used for analy sis of this demographic. Because SF3 data for county populations and population density can be different than SF1 data for the same location, EPA also used SF3 population and population density

information for anal ys es related to the poverty level. All demographic variables were further divided into urban and rural populations. The U.S. Census Bureau defines urban in several way s . EPA used their most general and easily applicable definition, which is, “all territory , population and housing units in urbanized areas and in places of more than 2.500 persons outside of urbanized areas.” This encompasses all regions with a population density

greater than 1,000 people per square mile with a minimum residential population of 50,000 people. All areas that meet these criteria are consi dered urban for this anal ys is, and all other areas are considered rural. When determining what defined minority population , EPA first identified the population with the Census racial category “White alone, not Hispanic or Latino

. ” The minority population was then calculated b y subtracting this number from the total population. The American Indian and Alaska Native population is based on Census data for those with this category alone or in combination with any

other category

.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 79

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

Summary File 1 Data Summary File 3 Data Total Population Population

Density Minority

Population Am erican

Indian and Alaska Native Population Children

Under Five Total

Population Population

Density Population

Below Poverty Level National Total X X X X X X X X National Urban X X X X X X X X National Rural X X X X X X X X State Total X X X X X X X X State Urban X X X X X X X X State Rural X X X X X X X X County Total X X X X X X X X County Urban X X X X X X X X County Rural X X X X X X X XDRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 80 4.2 Methodology This section describes the methodology used to develop the EJ Analy sis for the 2008 DSW final rule, including selection of the EJ characteristics for anal ys is, using the areal apportionment method to determine the characteristics of the communities surrounding each facility , and conducting a statistical analy sis of these results to determine how the demographic characteristics compare to those on a state and national level, in both urban and rural communities

. 4.2.1 Selection of EJ Characteristics for Analysis EPA selected minority , American Indian and Alaska Native, children under five , and below poverty as demographics for the analy sis. These demographics were selected based on the Sierra Club petition, comments received in response to this petition and during public forums discuss ing the 2008 DSW final rule and EJ analysis, and a review of past EJ analyses conducted by EPA and other entities, including:

 EPA’s “Environmental Justice Smart Enforcement Assessment Tool” (EJ SEAT) ;  EPA’s “Toolkit for Assessing Potential Allegations of Environmental Justice” (EJ Toolkit); and ;  Chapter 3 of “Toxic Wastes and Race at Twenty - 1987

- 2007: Grassroots Struggles to Dismantle Environmental Racism in the United States,” prepared b y the United Church of Christ , document the work by Dr. Paul Mohai and Dr. Robin Saha

. 4.2.2 Areal Apportionment Method In order to perform the analy sis of the demographic makeup of potentiall y affected communities, EPA used the Geospatial software ArcMap . The underlying data used in the ArcMap program was the 2000 U.S. Census data, as described in Section 4.1. Additionall y, geographic coordinate points (latitude, longitude) were imported into the program and projected onto a U.S. map using a North American Datum 1983 projection. The projection accounted for the natural curvature of the Earth. To extract all the relevant de mographic data, decennial census data from the SF1 and SF3 datasets were converted to feature layers on top of a national map. Once the map was created, a model was created from the ModelBuilder application in ArcToolbox to create the algorithm for the analy sis. For each facility , EPA used ArcMap to draw a 3

- km circle around the facility , and determined the demographic characteristics of the communities within that circle. Each 3

- km circle encompassed multiple census blocks or block groups, and some census block s or block groups were onl y partially within the circle. EPA estimated the demographics of the population within each circle using the Areal Apportionment Method (AAM) also known as the area - weighted method

. The population numbers for each demograph ic category were not a simple sum of the population contained in every block or blockgroup intersected by the buffer. It was a weighted sum in which the population in the block or blockgroup was multiplied by the proportion of area contained with the buffer region. For example , if 100% of the block was contained within the buffer region than 100% of the population was tallied; however, if 50% of the block was contained within the buffer than onl y 50% of that population was tallied. This method assumes that all populations are equally distributed within a block or block group.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 81 EPA used a three

- km buffer surrounding each facility as an approximation of the potential area that could be affected b y an acute release scenario (such as a fire or explosion) at a r eclamation facility

. Once the buffers were created around each facility, data was extracted at the block level for SF1 data for the total population, minority population, American Indian/Alaska Native (AIAN ) population, and children under five, and at the blockgroup level for SF3 data for population below poverty

. 4.2.3 Comparison of Demographic Characteristics of Affected Population versus Comparison Population The demographics of the population within a 3

- km of each facility was compared to those at a nation al and state level. The national

- level comparison is intended to capture any regional disproportionality

(for example, if the potentially affected communities are all located in states with minority

and/or low

- income populations that are higher than the n ational average). The state
- level comparison is intended to capture any disproportionality

occurring within the state. (In most cases, the RCRA program is implemented by the state

. ) In addition, comparisons were done for urban and rural populations to check if the tendency to locate industrial facilities in urban populations was a factor. For urban and rural comparisons, the demographics for the population within the 3

- km zone around each facility were compared to those for the total urban or rural pop ulation for the state in which the facility was located. Where the 3

- km zone contained both urban and rural populations, the overall population density for the 3

- km zone calculated, and if it was found to meet the U.S. Census definition of urban (greater than 1,000 persons per square mile) , the entire population within the 3

- km zone was considered to be urban. For some facilities, the 3

- km area around it included populations from other states. For the state comparisons, the populations in other states were included as if they were in the state in which the facility was located. 4.2.4 Statistical Analysis In the next section , we describe the approach used for defining the affected and comparison populations for the demographic groups (i.e. minorities, American Indian/Alaska Native, persons below poverty or children under five) within a three

- km buffer of each facility , and for comparing the demographic characteristics of the affected and comparison populations. The affected populations are those within the 3

- km buffer zones around the facilities anal yz ed. The comparison population is the population selected for comparison with the affected population to evaluate whether there is a significant difference between them with respect to demographic characteristics. This implies that it is a group of people that could have been equally likel y to be affected if the facility was in alternative location . For this analy sis , different comparison populations are considered, including state populations, national populations , and urban and rural populations for the state in which the facility is located. For comparison of urban and rural populations, if the three

- km buffer for the facility was located in a majority

urban area , then the entire affected population was considere d to be urban, otherwise it was considered to be rural. 4.3 Statistical Comparison of Demographic Characteristics of Affected Population versus Comparison Population As described above, the goal of this disparity analysis was to assess two comparisons:DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 82 a) whether there was a substantially greater probability

of members in a population group (e.g ., minority

populations) being affected than members of a comparison population group (i.e., non

- Hispanic White) , and b) whether members of the population group of interes t (e.g., minority population) comprised a substantiall y greater proportion of the affected population than of the non

affected population in the selected buffer regions. In this analy sis, we referred to comparison (a) as the “Threshold Risk Ratio” and comparison (b) as the “Demographic Ratio.” The methodology for calculating these ratios is described in Attachment E

. EPA tested these comparisons for statistical significance to identify the probability

that the observed differences could have arisen due to chance. A statistical significance test result can be expressed either as a probability (p

- value) that an outcome could have been the result of chance, or as the number of standard deviations from the mean value. For individual counties, states, and the nation as a whole, EPA conducted two statistical tests for significance, the Kendall test and Fisher’s exact test. The Kendall test is the standard test for large samples. 34 Fisher’s exact test is conditional on the total numbers of affected, non

- affected, demographic group G , and non

demographic group G population s (Kendall and Stuart, 1973 sections 33.19 and 33.20). 35 Attachment E includes the methodology used to calculate the results of these tests. For variables with a normal distribution, approximately 95% of the values are within two standard deviations of the mean, so this indicates that there would be onl y a 5% or less probability

of a value outside this range . 36 EPA also calculated the corresponding number of standard deviations based on each test. Attachment E includes the methodology used to calculate the number of standard deviations, SD. The SD indirectl y provides a statistical test since the SDs have a standard normal distributio n under the h ypothesis of homogeneity (i.e., no ethnic group disparity), for large samples (i.e. , when n is large). Fisher ’s e xact test tests whether there is a difference between Group G and other people in their probability

of being inside the boundary area. The smaller the p

- value (i.e. , the closer to zero), the stronger the difference , Also shown is the equivalent number of standard deviations based on a standard normal distribution 37 . Kendall test results are provided because the Fisher exact test p - v alues can be too small to compute readil y (e.g., below 10 - 300 ), which in turn prevents computation of “equivalent” SD values, so the Kendall test results provide a close approximation of the Fisher exact test results. These statistics provide information a bout the statistical significance of any observed disparity.

34 Apart from the very small bias adjustment factor of n/(n

- 1), the Kendall test is mathemati cally equivalent to a standard chi

- square test. 35 The Kendall and the chi

- square tests are approximations to the Fisher exact test. 36 Consistent with several court

- approved precedents in Title VII discrimination cases, a 2

- sided significance test is used, i.e., we test the hypothesis that the population ratio pr1/pr2 = 1 against the alternative hypothesis that pr1/pr2 ≠ 1. This alternative hypothesis means that either demographic group G populations are more adversely affected (pr1/pr2 > 1) or non

- affected demographic group G populations are more adversely affected (pr1/pr2 < 1). If, instead, the goal of the analysis were to test only whether demographic group G populations were more adversely affected, then the alternative hypothesis would be pr1/pr2 > 1 and the probabilities of chance occurrence (p

- values) wo uld be halved (assuming that the estimated ratio pr1/pr2 exceeds 1). 37 The "equivalent" number of standard deviations for Fisher's exact test do not exactly equal SD but they are approximately equal.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 83 To summarize and evaluate the disparities for different states two additional statistical procedures were used. As detailed in Attachment E, the Mantel

- Haenszel method was to estimate a common T hreshold Risk Ratio and a common Demographic Ratio, under the assumption that all states have the same underlying ratios. These ratios are weighted averages of the state

specific ratios. They

differ from the nationwide Threshold Risk Ratio and Demographic Ratio because they

only include states that have at least one facility and because the statistical calculation is different. As detailed in Attachment E, the Cochran

- Mantel

- Haentszel test, a generalization of the standard chi

- square test, was used to test the null hy pothesis of no disparity in every state against the alternative hy pothesis of a disparity

in one or more states. The p

- value for this test is provided. 4.4 Results of Demographic Analysis This section contains the results for the demographic anal ys es for the DSW EJ analy sis. This anal ys is focused on four sets of facilities: 1. Results for facilities that have notified EPA that they will be managing HSMs under the 2008 DSW final rule ; the results are presented in Section 4.3.1. 2. Results for dama ge case facilities ; the results are presented in Section 4.3.2. 3. Results for facilities currently generating or managing hazardous wastes that may choose to operate under the 2008 DSW final r ule ; the results are presented in Section 4.3.3. 4. Results for facilities not currentl y generating or managing hazardous wastes that may choose to begin reclaiming HSMs under the 2008 DSW final rule ; the results are presented in Section 4.3.4. 4.4.1 Facilities that Have Notified EPA that They Will Be Managing Ha zardous Secondary Materials under the DSW Rule This section presents the demographic results for the 40 facilities that have notified EPA that they will be managing HSMs under the 2008 DSW final r ule (notification facilities) as of July 30, 2010. This in cludes facilities in I owa, Penns yl vania, and New Jersey . The demographics for the notification facility

in the Virgin Islands were not reviewed for this report. The demographi cs were anal yz ed at a national and state
- wide level. In addition, the demogra phics were compared at an urban and rural level. For the national level analy ses, the demographics anal yz ed included six race or ethnicity categories, including minority , American Indian and Alaska Native, Black or African American, Native Hawaiian or other Pacific Islander, Hispanic or Latino, or some other race. These race and ethnicity

categories are those identified by the U.S. Census for 2000. In addition, demographics for persons below the poverty level income and children under five ye ars of age were anal yz ed. EPA also conducted statistical analy sis at the national level to determine the significance of selected results, including minority , American Indian and Alaska Native, persons below poverty, and children under five

. State level anal ys es are presented for each state individually

. In addition, urban, and rural results presented are based on a comparison of the demographics for each facility to the overall urban and rural populations for the state in which the facility is located.DRAFT Internal Report Provided for Peer Review 12/20/2010

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Figure 4 . 4 .1.1. Demographics for Notification Facilities

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

0
- 10% 11
- 20% 21
- 30% 31
- 40% 41
- 50% 51
- 60%Percent of Facilities

Percent in Demographic % m inority % AIAN % below poverty % children under 5DRAFT Internal Report Provided for Peer Review 12/20/2010

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Table 4. 4 .1.1. National Demographic Comparison for Notification Facilities Number of Facilities with % Demographics Greater Than Area Comparison Number of

Facilities with % Demographics Less Than Area Comparison Number of

Facilities with % Demographics Equal to Area Comparison Me an

Difference Me dian

Difference % M inority 3 37 0
- 20.68%
- 26.33% % Below Poverty 13 27 0
- 1.95%
- 3.89% % Am erican Indian 0 40 0
- 1.27%
- 1.34% % Children 5 Years and Under 32 8 0 0.78% 0.74% % Black or Af rican Am erican 10 30 0
- 4.85%
- 10.70% % As ian 6 34 0
- 2.21%
- 3.29% % Native Hawaiian and Other Pacific Islander 1 39 0
- 0.24%
- 0.25% % Some Other Race 3 37 0
- 4.49%
- 5.79% % Hispanic 3 37 0
- 9.61%
- 11.88%

Table 4.4.1.2. DSW Rule National Demographic Comparison Analysis of Statistical Significance for Notification Facilities

Demographic Group Threshold Risk Ratio Demographic

Ratio Fisher

Exact Test P -value Equivalent

No. of Standard Deviations (SD) Probability

(Affected) Kendall

Test Statistic Kendall

Test P Value Minority (all except non
- Hispanic whites) 0.68644 0.75962 N/A N/A 0.00209
- 123.07 ~0 Persons below poverty 1.04874 1.04271 8.28E
- 33 11.93 0.00205 12.00 3.48E
- 33 American Indians and Alaska Natives 0.44680 0.44993 N/A N/A 0.00209
- 51.40 ~0 Children under age 5 0.97325 0.97497 1.99E
- 07 5.20 0.00209
- 5.18 2.19E
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- Do Not Cite or Quote 87 Table 4. 4 .1.3. Iowa Demographic Comparison for Notification Facilities Iowa - Level Comparison Number of Facilities with % Demographics Greater Than Area Comparison Number of

Facilities with % Demographics Less Than Area Comparison Number of

Facilities with % Demographics Equal to A rea Comparison Me an

Difference Me dian

Difference % M inority 7 7 0 3.14% 0.00% % Below Poverty 9 5 0 1.66% 1.49% % Am erican Indian 0 14 0
- 0.49%
- 0.53% % Children 5 Years and Under 14 0 0 2.08% 1.88%
Table 4. 4 .1.4. DSW Rule Iowa Demographic Comparison Analysis of Statistical Significance for Notification Facilities

Demographic Group Threshold Risk Ratio Demographic

Ratio Fisher

Exact Test P -value Equivalent

No. of Standard Deviations (SD) Probability

(Affected) Kendall

Test Statistic Kendall

Test P Value Minority (all except non
- Hispanic whites) 1.80337 1.75639 ~0 N/A 0.04190 70.94 ~0 Persons below poverty 1.33562 1.31367 1.06E
- 213 31.20 0.04039 32.44 8.62E
- 231 American Indians and Alaska Natives 1.10201 1.10621 4.57E
- 03 2.84 0.04190 2.87 4.09E
- 03 Children under age 5 1.12103 1.11786 3.06E
- 25 10.38 0.04190 10.55 5.35E
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- Do Not Cite or Quote 88 Table 4. 4 .1.5. New Jersey Demographic Comparison for Notification Facilities New Jersey - Level Comparison Number of Facilities with % Demographics Greater Than Area Comparison Number of

Facilities with % Demographics Less Than Area Comparison Number of

Facilities with % Demographics Equal to A rea Comparison Me an

Difference Me dian

Difference % M inority 2 8 0
- 11.04%
- 14.77% % Below Poverty 0 10 0
- 3.69%
- 3.60% % Am erican Indian 2 8 0
- 0.27%
- 0.39% % Children 5 Years and Under 7 3 0 0.46% 0.62%

Table 4. 4 .1.6. DSW Rule New Jersey Demographic Comparison Analysis of Statistical Significance for Notification Facilities

Demographic Group Threshold Risk Ratio Demographic

Ratio Fisher

Exact Test P -value Equivalent

No. of Standard Deviations (SD) Probability

(Affected) Kendall

Test Statistic Kendall

Test P Value Minority (all except non
- Hispanic whites) 1.02002 1.01341 9.65E
- 05 3.90 0.02001 3.90 9.50E
- 05 Persons below poverty 0.63593 0.65123 N/A N/A 0.01990
- 42.85 ~0 American Indians and Alaska Natives 1.20658 1.21020 2.57E
- 10 6.32 0.02001 6.51 7.32E
- 11 Children under age 5 0.94612 0.94857 1.68E
- 08 5.64 0.02001
- 5.60 2.09E
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- Do Not Cite or Quote 89 Table 4. 4 .1.7. Pennsylvania Demographic Comparison for Notification Facilities Pennsylvania - Level Comparison Number of Facilities with % Demographics Greater Than Area Comparison Number of

Facilities with % Demographics Less Than Area Comparison Number of

Facilities with % Demographics Equal to A rea Comparison Me an

Difference Me dian

Difference % M inority 5 11 0
- 2.27%
- 9.14% % Below Poverty 8 8 0 2.56% 1.07% % Am erican Indian 1 15 0
- 0.25%
- 0.32% % Children 5 Years and Under 14 2 0 1.12% 1.27%

Table 4. 4 .1.8. DSW Rule Pennsylvania Demographic Comparison Analysis of Statistical Significance for Notification Facilities

Demographic Group Threshold Risk Ratio Demographic

Ratio Fisher

Exact Test P -value Equivalent

No. of Standard Deviations (SD) Probability

(Affected) Kendall

Test S tatistic Kendall

Test P Value Minority (all except non
- Hispanic whites) 1.46523 1.37643 ~0 N/A 0.02416 87.44 ~0 Persons below poverty 1.73464 1.63336 ~0 N/A 0.02379 114.85 ~0 American Indians and Alaska Natives 1.45628 1.46994 1.92E
- 53 15.39 0.02416 16.41 1.70E
- 60 Children under age 5 1.11977 1.11497 2.14E
- 52 15.23 0.02416 15.48 4.41E
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- Do Not Cite or Quote 90 Table 4. 4 .1. 9 . Urban Demographic Comparison for Notification Facilities

Number of Facilities with % Demographics Greater Than Area Comparison Number of

Facilities with % Demographics Less Than Area Comparison Number of

Facilities with % Demographics Equal to A rea Comparison Me an

Difference Me dian

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

Table 4. 4 .1. 1 0 . DSW Rule National Demographic Comparison Analysis of Statistical Significance (Urban ) for Notification Facilities

Demographic Group Threshold Risk Ratio Demographic

Ratio Fisher

Exact Test P -value Equivalent

No. of Standard Deviations (SD) Probability

(Affected) Kendall

Test Statistic Kendall

Test P Value Minority (all except non
- Hispanic whites) 0.63987 0.73342 N/A N/A 0.00224
- 139.67 ~0 Persons below poverty 1.15212 1.13116 7.65E
- 243 33.28 0.00213 33.88 1.42E
- 251 American Indians and Alaska Natives 0.54980 0.55235 N/A N/A 0.00224
- 35.50 4.58E
- 276 Children under age 5 0.95535 0.95825 4.85E
- 16 8.12 0.00224
- 8.07 7.28E
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- Do Not Cite or Quote 91 Table 4. 4 .1. 1 1 . Rural Demographic Comparison for Notification Facilities

Number of Facilities with % Demographics Greater Than Area Comparison Number of

Facilities with % Demographics Less Than Area Comparison Number of

Facilities with % Demographics Equal to A rea Compariso n Me an

Difference Me dian

Difference % Mi nority 18 1 21 17.59% 13.31% % Am erican Indian, Al askan Native 7 14 19
- 0.07%
- 0.11% % Children Under 5 14 7 19 0.22% 0.22% % Below Poverty 10 12 18 0.60%
- 0.43%

Table 4. 4 .1. 1 2 . DSW Rule National Demographic Comparison Analysis of Statistical Significance (Rural) for Notification Facilities

Demographic Group Threshold Risk Ratio Demographic

Ratio Fisher

Exact Test P -value Equivalent

No. of Standard Deviations (SD) Probability

(Affected) Kendall

Test Statistic Kendall

Test P Value Minority (all except non
- Hispanic whites) 0.63788 0.66953 N/A N/A 0.00152
- 38.60 ~0 Persons below poverty 0.52947 0.55745 N/A N/A 0.00176
- 49.69 0.00E+00 American Indians and Alaska Natives 0.21126 0.21486 N/A N/A 0.00152
- 35.94 8.67E
- 283 Children under age 5 1.03348 1.03140 1.63E
- 02 2.40 0.00152 2.41 1.59E
- 02

4.4.2 Damage Case Facilities This section presents the demographic results for the 219 damage case facilities. The demographics were anal yzed at a national and state level. The demographics anal yz ed included minority , American Indian and Alaska Native, persons below poverty level income, and children under five ye ars of age. In addition, a statistical analysis was conducted at the national level to determine the significance of the results. State level anal ys es are based on a comparison of the demographics for each facility to the overall populations for the state in which the facility is located

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Figure 4.4.2.1 . Demographic s for Damage Case Fa cilities

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%Percent of Facilities

Percent in Demographic % m inority % AIAN % below poverty % children under 5DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 93 Table 4. 4 .2.1 . National Demographic Comparison for Damage Case Facilities Number of Facilities with % Demographics Greater Than Area Comparison Number of

Facilities with % Demographics Less Than Area Comparison Number of

Facilities with % Demographics Equal to A rea Comparison Me an

Difference Me dian

Difference % M inority 115 102 0 8.18% 2.92% % Below Poverty 142 75 0 5.92% 3.74% % Am erican Indian, Al aska Native 64 153 0
- 0.11%
- 0.57% % Children 5 Years and Under 118 99 0 0.01% 0.08%

Table 4. 4 .2.2 DSW Rule National Demographic Comparison Analysis of Statistical

Significance for Damage Case Facilities

Demographic Group Threshold Risk Ratio Demographic

Ratio Fisher

Exact Test P value Equivalent

No. of Standard Deviations (SD) Probability

(Affected) Kendall

Test Statistic Kendall

Test P Value Minority (all except non
- Hispanic whites) 2.87394 1.86337 ~0 N/A 0.02712 1,536.00 ~0 Persons below poverty 1.97568 1.80578 ~0 N/A 0.02659 787.97 ~0 American Indians and Alaska Natives 0.97121 0.97085 2.21E
- 22 9.73 0.02712
- 9.69 3.36E
- 22 Children under age 5 0.98874 0.98921 1.63E
- 15 7.97 0.02712
- 7.96 1.79E
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Table 4. 4 .2.3. State Demographic Comparison for Damage Case Fa cilities Number of Facilities with % Demographics Greater Than Area Comparison Number of

Facilities with % Demographics Less Than Area Comparison Number of

Facilities with % Demographics Equal to A rea Comparison Me an

Difference Me dian

Difference % M inority 121 96 0 8.18% 4.18% % Below Poverty 150 67 0 6.74% 5.24% % Am erican Indian, Al aska Native 107 110 0
- 0.01%
- 0.01% % Children 5 Years and Under 116 101 0 0.05% 0.18%

Table 4.4.2.4 State Demographic Comparison Analysis of Statistical

Significance for Damage Case Facilities

Demographic Group Threshold Risk Ratio Demographic

Ratio Cochran - Mantel Haentzel P -value Minority (all except non
- Hispanic whites) 2.589046 1.640755 ~0 Persons below poverty 2.041337 1.901897 ~0 American Indians and Alaska Natives 1.071715 1.075276 1.2E
- 120 Children under age 5 0.981033 0.981294 1.97E
- 42 4.4.3 Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the 2008 DSW Final Rule This section presents the demographic results for 2,677 facilities that reported generating or managing hazardous wastes in 2007 that may choose to operate under the 2008 DSW final r ule. The demographics were anal yz ed at a national and state
- wide level. In addition, the demographics were compared at an urban and rural level. For the national level analy ses, the demographics anal yz ed included minority , American Indian and Alaska Native, persons below poverty level income, and children under five ye ars of age. EPA also conducted statistical anal ys is at the national level to det ermine the significance of selected results, including minority , American Indian and Alaska Native, persons below poverty , and children under five

. State, urban, and rural results presented are based on a comparison of the demographics for each facility to the overall state, or state urban and rural populations for the state in which the facility is located.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 95 Figure 4.4.3.1 . Demographic s for Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%Percent of Facilities

Percent in Demographic % m inority % AIAN % below poverty % children under 5DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 96 Table 4. 4 .3.1 . National Demographic Comparison for Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule Number of Facilities with % Demographics Greater Than Area Comparison Number of

Facilities with % Demographics Less Than A rea Comparison Number of Facilities with % Demographics Equal to A rea Comparison Me an

Difference Me dian

Difference % Mi nority 1,136 1,541 0 0.86% - 6.01% % Below Poverty 1,286 1,391 0 1.47% - 0.48% % Am erican Indian, Al aska Native 510 2,167 0
- 0.32% - 0.64% % Children 5 Years and Under 1,422 1,255 0 0.16% 0.08%

Table 4. 4 .3.2 . National Demographic Comparison Analysis of Statistical Significance for Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule

Demographic Group Threshold Risk Ratio Demographic

Ratio Fisher

Exact Test P value Equivalent

No. of Standard Deviations (SD) Probability

(Affected) Kendall

Test Statistic Kendall

Test P Value Minority (all except non
Hispanic whites) 1.90237 1.80019 ~0 N/A 0.26228 3,261.18 ~0 Persons below poverty 1.39409 1.50456 ~0 N/A 0.25859 1,213.27 ~0 American Indians and Alaska Natives 0.69881 0.63465 N/A N/A 0.26228
- 363.41 ~0 Children under age 5 1.03565 1.04546 ~0 N/A 0.26228 89.64 ~0DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 97 Table 4. 4 .3.3. State Demographic Comparison for Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule Number of Facilities with % Demographics Greater Than Area Comparison Number of

Facilities with % Demographics Less Than A rea Comparison Number of Facilities with % Demographics Equal to A rea Comparison Me an

Difference Me dian

Difference % Mi nority 1,282 1,395 0 3.98%
- 0.93% % Below Poverty 1,354 1,323 0 1.80% 0.08% % Am erican Indian, Al aska Native 1180 1,497 0
- 0.04%
- 0.07% % Children 5 Years and Under 1,446 1,231 0 0.18% 0.13% Table 4.4.3.4 DSW Rule State Demographic Comparison Analysis of Statistical Significance for Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule

Demographic Group Threshold Risk Ratio Demographic

Ratio Cochran - Mantel Haentzel P -value Minority (all except non
- Hispanic whites) 1.936274897 2.044116269 ~0 Persons below poverty 1.465870832 1.827905054 ~0 American Indians and Alaska Natives 0.979481817 0.967933377 1.0644E
- 126 Children under age 5 1.050498787 1.08002965 ~0DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 98 Table 4. 4 .3.5. Urban Demographic Comparison for Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule Number of Facilities with % Demographics Greater Than Area Comparison Number of

Facilities with % Demographics Less Than A rea Comparison Number of Facilities with % Demographics Equal to A rea Comparison Me an

Difference Me dian

Difference % Mi nority 902 765 0 6.81% 2.48% % Below Poverty 899 722 0 2.71% 1.16% % Am erican Indian, Al aska Native 884 783 0 0.12% 0.02% % Children 5 Years and Under 893 774 0 0.15% 0.13%

Table 4.4.3.6 DSW Rule Urban Demographic Comparison Analysis of Statistical Significance for Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule

Demographic Group Threshold Risk Ratio Demographic

Ratio Cochran - Mantel Haentzel P -value Minority (all except non
- Hispanic whites) 1.717148 1.836249 ~0 Persons below poverty 1.409003 1.829035 ~0 American Indians and Alaska Natives 1.057927 1.106797 ~0 Children under age 5 1.029881 1.052575 ~0DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 99 Table 4. 4 .3.7 . Rural Demographic Comparison for Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule Number of Facilities with % Demographics Greater Than Area Comparison Number of

Facilities with % Demographics Less Than A rea Comparison Number of Facilities with % Demographics Equal to A rea Comparison Me an

Difference Me dian

Difference % Mi nority 598 412 0 7.01% 1.26% % Below Poverty 543 513 0 1.24% 0.15% % Am erican Indian, Al aska Native 324 686 0
- 0.66%
- 0.27% % Children 5 Years and Under 670 340 0 0.58% 0.51%

Table 4.4.3.8 Rural Demographic Comparison Analysis of Statistical Significance for Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule

Demographic Group Threshold Risk Ratio Demographic

Ratio Cochran - Mantel Haentzel P -value Minority (all except non
- Hispanic whites) 2.009832 1.841061 ~0 Persons below poverty 1.183461 1.1821 ~0 American Indians and Alaska Natives 0.723588 0.710313 ~0 Children under age 5 1.127013 1.134586 ~0DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 100 4.4.4 Facilities Not Currently Generating or Managing Hazardous Wastes that May Choose to Begin Reclaiming Hazardous Secondary Materials under the 2008 DSW Final Rule This section presents the demographic results for 25 facilities not currently generating or managing hazardous wastes that may choose to begin reclaiming HSM under the 2008 DSW final r ule. The demographics were anal yz ed at a national and state level. The demo graphics anal yz ed included minority , American Indian and Alaska Native, persons below poverty level income, and children under five ye ars of age. In addition, a statistical analysis was conducted at the national level to determine the significance of the results. State level analy ses are based on a comparison of the demographics for each facility to the overall populations for the state in which the facility

is located. Figure 4.4.3.1. Demographics for Facilities Not Currently Generating or Managing Hazardous Wastes that May Choose to Begin Reclaiming Hazardous Secondary Materials under the DSW

Rule

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%Percent of Facilities

Percent in Demographic % m inority % AIAN % below poverty % children under 5DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 101DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 102 Table 4. 4 .4.1 . National Demographic Comparison for Facilities Not Currently Generating or Managing Hazardous Wastes that May Choose to Begin Reclaiming

Hazardous Secondary Materials under the DSW Rule Number of Facilities with % Demographics Greater Than Area Comparison Number of

Facilities with % Demographics Less Than Area Comparison Number of

Facilities with % Demographics Equal to A rea Comparison Me an

Difference Me dian

Difference % M inority 9 16 0
- 4.95%
- 11.62% % Am erican Indian, Al askan Native 1 24 0
- 0.79%
- 0.88% % Children Under 5 10 15 0 0.04%
- 0.79% % Below Poverty 10 15 0
- 0.45%
- 1.98%

Table 4. 4 .4.2 . National Demographic Comparison Analysis of Statistical Significance for Facilities Not Currently Generating or Managing Hazardous Wastes that May Choose to Begin Reclaiming Hazardous Secondary Materials under the DSW Rule

Demographic Group Threshold Ri sk Ratio Demo graphic Ratio Fisher

Exact Test P value Equivalent

No. of Standard Deviations (SD) Probability

(Affected) Kendall

Test Statistic Kendall

Test P Value Minority (all except non
Hispanic whites) 1.18887 1.12364 ~0 N/A 0.00189 60.13 ~0 Persons below poverty 1.15970 1.13811 6.25E
297 36.83 0.00192 37.51 5.76E
308 American Indians and Alaska Natives 0.45624 0.45943 N/A N/A 0.00189
- 48.01 ~0 Children under age 5 1.00282 1.00264 6.03E
01 0.52 0.00189 0.52 6.04E
01DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 103 Table 4. 4 .4. 3 . State Demographic Comparison for Facilities Not Currently Generating or Managing Hazardous Wastes that May Choose to Begin Reclaiming Hazardous Secondary Materials under the DSW Rule Number of Facilities with % Demographics Greater Than Area Comparison Number of

Facilities with % Demographics Less Than Area Comparison Number of

Facilities with % Demographics Equal to A rea Comparison Me an

Difference Me dian

Difference % Mi nority 9 16 0
- 2.55%
- 5.36% % Below Poverty 11 14 0
- 0.26%
- 2.11% % Am erican Indian, Al askan Native 10 15 0
- 0.12%
- 0.16% % Children Under 5 12 13 0 0.25%
- 0.05%

Table 4.4.4.4 State Demographic Comparison Analysis of Statistical Significance for Facilities Not Currently Generating or Managing Hazardous Wastes that May Choose to Begin Reclaiming Hazardous Secondary Materials under the DSW Rule

Demographic Group Threshold Risk Ratio Demographic

Ratio Cochran - Mantel Haentzel P -value Minority (all except non - Hispanic whites) 1.347097 1.206525 ~0 Persons below poverty 1.169246 1.146543 ~0 American Indians and Alaska Natives 0.834828 0.834945 2.72E
- 27 Children under age 5 1.035238 1.033043 1.69E
- 10DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 5 Other Factors that Affect Vulnerability in Communities Environmental justice means that all people, regardless of race, color, national origin, or income, receive fair treatment and equal environmental protection, and have the opportunity for meanin gful involvement in decisions that will affect the environment and/or the health of their community . The previous chapters of this report present a detailed anal ys is of a number of indicators related to the facilities and surrounding communities that coul d be impacted under the 2008 DSW final rule. However, because of the broad and encompassing definition of EJ, there are man y other ways to examine factors that could affect the vulnerabilities of communities. This chapter examines a number of additional f actors that could affect the vulnerabilities of communities under the 2008 DSW final rule. Section 5.1 identifies and briefly describes some additional factors not analy zed in the previous chapters , while Section 5.2 summarizes data that EPA has compiled on some of these factors to characterize the vulnerabilities of communities surrounding the 40 facilities that have already notif ied EPA that they

intend to generate or manage HSM under the DSW exclusions. 5.1 Overview of Factors that Affect Vulnerability This section identifies additional factors that could affect a community’s vulnerability under the rule. These factors are described under four broad categories:

 Susceptible Populations
 Multiple and Cumulative Effects
 Unique exposure pathways
 Ability

to Participate in the Decision

- Making Process
 Phy sical Infrastructure While this report does not attempt to quantify all the potential factors that could affect a community ’s vulnerability to environmental pollutants, the following discussion is i ntended to give an overview of other considerations that may apply in some cases. 5.1.1 Susceptible Populations Susceptible populations are groups that are at a relatively high risk of suffering the adverse effects of environmental hazards. Certain factors may r ender different groups less able to resist or tolerate an environmental stressor. These susceptibility factors may

be intrinsic in nature (e.g., based on ag e, sex, genetics, and race ). For example, young children, pregnant women, nursing mothers, and the elderl y may be more likely to suffer health consequences from a toxic chemical exposure than healthy adults. The proximity

of children under five to facilities that may begin operating under the 2008 DSW final rule is presented in Section 4 , although there are likely other types of susceptible populations in these communities as well. 5.1.2 Multiple and Cumulative Effects M inority , low

- income, and indigenous communities that have been impacted by multiple environmental hazards may be at risk for increased adverse health consequences . Environmental hazards can include, for example, industrial facilities, landfills, transportation

- related air pollution, poor housing, leaking underground tanks, pesticides, and incompatible land uses. An anal ys is of the cumul ative effects from multiple stressors can provide a more complete evaluation of a population’s health risks from pollutants. For example, an anal ys is of discrete stressors and effects on a population might conclude that nearb y pollution sources are withinDRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote regulatory

limits; however, the cumulative effec ts might result in a person’s aggregate exposure to a particular contaminant from multiple sources exceeding a health

- based limit. Some factors may

provide data on the potential sources of cumulative stress, such as the total number of facilities that may emit environmental pollutants. Other factors may provide data on environmental conditions that could cause stress (e.g., transport routes , such as water or air quality or meteorological conditions). Finally , other factors may provide data on potential or actual human exposures to stress ors , such as health data. Examples of factors include the following: Existing Pollution Sources

 Number of facilities reporting to EPA

– EPA’s Envirofacts database keeps track of regulated facility

data from 14 data sy stems . Examples are listed below. The number of regulated facilities within a community can indicate the number or proximity of pollution sources. o Resource Conservation and Recovery Act Information (RCRAInfo)

– contains information on facilities that generate, transport, treat, store or dispose of hazardous waste. This factor is examined in Section 5.2.
o Air Facility

Sy stem (AFS)

- contains compliance and permit data for stationary sources regulated b y EP A, state and local air pollution agencies. This fact or is examined in Section 5.2.
o Comprehensive Environmental Response, Compensation & Liability Information Sy stem (CERCLIS)

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

Factors

 Non

- Point Source Air Emissions

- The CAA requires EPA to set National Ambient Air Quality St andards (NAAQSs) for pollutants considered harmful to public health and the environment. EPA has set NAAQS s for six principal pollutants, which are called “criteria” pollutants (e.g., carbon monoxide, ozone, particulate matter). In addition, the CAA requi res EPA to identify and list all air pollutants (not already identified as criteria pollutants) that “may

reasonably

be anticipated to result in an increase in mortality or an increase in serious irreversible or incapacitating reversible illness.” For each hazardous air pollutant (HAP) identified, EPA was to then promulgate national emissions standards for hazardous air pollutants (NESHAPs). The quantity of these pollutants in the local atmosphere can help to indicate cumulative air hazards. This factor is examined in Section 5.2 for a limited number of criteria pollutants and HAPs. Health

- Related Factors

 Cancer

– The threat of cancer can be measured based on the total cancer risk per million, by tract or county, as determined b y the 2002 National

- Scale A ir Toxics Assessment (NATA). NATA is EPA’s ongoing comprehensive evaluation of air toxics in the U.S. EPA developed the NATA as a state

- of

- the

- science screening tool for State/L ocal/Tribal Agencies to prioritize pollutants, emission sources and locations of interest for further study in order to gain a better understanding of risks. NATA assessments do not incorporate refined information about emission sources, but rather, use generalDRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote information about sources to develop estimates of risks which are more likely to overestimate impacts than underestimate them. NATA provides estimates of the risk of cancer and other serious health effects from breathing (inhaling) air toxics in order to inform both national and more localized efforts to identify and priori tize air toxics, emission source ty

pes , and locations which are of greatest potential concern in terms of contributing to population risk. 38 This factor is examined in Section 5.2.

 Non

- cancer

– The threat of a non

- cancer illness (neurological or respiratory) can be measured based on the sum of hazard quotients that affect the same target organ, b y tract or county , as determined by the 2002 NATA. See above for a description of NATA. This factor is examined in Section 5.2.

5.1.3 Unique Exposure Pathways Other su scep tibility

factors may

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

present unique exposure pathway s, such as relative source contributions for people that get a significant portion of their diet from food they grow or catch themselves. For example, some indigenous peoples that use fishing and hunting to provide food for their families may be more susceptible to contaminants found in the natural environment, such as chemicals that bioaccumulate in flora or fish

. Section 4 of this report includes information about the American Indian and Alaska native populations in proximity to facilities that may

generate or manage HSM under the 2008 DSW final rule . While this does not automatically correspond to individuals exp eriencing unique exposures pathways, it does indicate that such exposures might occur . 5.1.4 Ability to Participate in Decision
- Making Pro cess A key element of environmental justice is ensuring that all people have an opportunity for meaningful involvement in decision

- making. C ertain groups may not have participated in decision making historically because of economic (e.g., income), social (e.g., language barriers, education levels, distrust of government), and structural reasons. A critical concern is whether, and the extent to which, communities have the ability to influence the types and number of regulated activities taking place in their community , as well as the requirements, conditions, and parameters b y which they must operate (e.g., permit conditions). Under the 2008 DSW final rule, facilities claiming an exclusion must submit an initial and biennial notification to EPA or the state, providing general facility information and describing the HSM ty

pes and activities. Facilities and regulators are not required to solicit or consider community

input into the decision making process However, unlike the situation under the hazardous waste permitting regulations, under the 2008 DSW final rule , this information is not made directly available to potentially

affected communities, and f

acilities and regulators are not required to solicit or consider community input into the decision making process. Thus , by removing the RCRA permitting requirement, the 2008 DSW final rule also inadvertentl y removed one of the key provisions allowing the community

to participate in the regulatory process. C ommunities with lower participation levels may experience greater adverse impacts because their input has not been considered full y, particularl y if competing interests are set forth more effectivel y. This effect is most likely to occur in communities that have traditionally been excluded from the decision making process.

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

.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote There are a number of fa ctors that can measure the ability of a community

to gain access to information or to meaningfull y participate in the decision

- making process. There also are factors that can measure whether and how well the community appears to be able to participate in the environmental decision

- making process. Examples of possible factors include the following:

 Education level

– Persons with less education may be generally

less likely

to participate in environmental decision

- making. Because of less education, they m ay not be able to fully understand the information in local newspapers, notices, and other written media

. They may also be less informed about events within their communities. This factor is examined in Section 5.2.

 English literacy

– People who cannot s peak or read English well may be less informed about activities of interest in their community because they

cannot fully

understand the information in local newspapers, broadcasts, notices, and other media , unless such information has been translated into a language that they are comfortable with . This factor is examined in Section 5.2.

 Communication channels

– Some regulations require that regulated entities issue public announcements of their proposed actions and solicit public comments. Without such communication channels, meaningful community involvement is less likely

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

to hospitals), safe drinking water, sew age treatment, public transportation, and communication sy stems (e.g., telephones, Internet access). Access to such infrastructure may affect a community ’s ability to avoid exposures to harmful pollutants or, if they are already exposed, to detect the exp osure, get proper treatment, or take other mitigating steps. For example, some groups or communities have insufficient access to health care facilities. Those without access may go undiagnosed and untreated. People without easy access to health care facilities include those without health insurance and those unable to travel to health care facilities . For example, low

- income groups and some elderl y and disabled individuals, with limited or no access to private transportation, may need public transpor

tation to access health care facilities . I f nearb y public transportation does not exist, they may not be able to receive the level of health care that they need. Examples of possible factors include the following:

 Number of hospitals

– Some groups, such as inner city residents or indigenous populations, might not live near a hospital and therefore have to travel longer distances for medical care; this may limit the frequency and quality

of care they

receive. C ommunities with more hospitals have a wider selection of medical resources from which to choose ; they

can select the type and quality of health care appropriate for their particular needs

. This factor is examined in Section 5.2.

 Medically

underserved

– S ome groups may differ in the level and quality of health care they traditionally

receive. This may

be due to cultural differences, treatment disparities stemming from socio

- economic barriers (e.g., lack of insurance) or other factors

. This factor is examined in Section 5.2. 5.2 Summary of Analysis of Fa ctors that Affect Vulnerability for 40 Notification FacilitiesDRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote EPA has compiled data on some of the factors described above to characterize the vulnerabilities of communities potentially affected by

the 2008 D SW rule . Specifically , EPA has compiled these data on the communities surrounding the 40 facilities that already have claimed an exclusion under the 2008 DSW final rule. While we do not have information to know whether or not these results would reflect or represent all of the facilities that may eve ntually

have claim ed an exclusion under the 2008 DSW final rule, we believe it provides preliminary information regarding the possible extent of multiple exposures to the 40 notification facilities. The results of this data collection are summarized in Tab le 5.1. Because of the potential for adverse impacts to communities located around DSW facilities, each of the factors described in Section 5.1 has the potential to exacerbate those adverse impacts. While EPA has not attempted to quantify or determining the potential disproportionality of every possible factors, Table 5.1 does demonstrate that some communities around DSW facilities are potentially

affected by

these factors. In particular, an examination of the facilities that have notified under the 2008 DSW final rule shows that multiple environmental hazards are a potential concern for communities around these facilities. All have multiple facilities reporting to EPA, either under RCRA, the Clean Air Act (CAA), or Comprehensive Environmental Response, Compensation and L iability Act, (CERCLA

- also known as Superfund) within a three

- kilometer radius of the facility. Twentysix of the forty

facilities had communities with cancer rates greater than the 80th percentile, and twenty
- seven showed a greater th an the 80th percentile in neurological hazard rates. Twentyseven facilities also had no hospital facilities within the three kilometer area. In addition, as noted in Section 5.1, one of the specific potential impacts of the 2008 DSW final rule is that facilities and regulators are not required to solicit or consider community input into the decision

- making process regarding DSW facilities, as is the case with RCRA permitted facilities. Thus by

removing the RCRA permitting requirement for facilities that manage excluded hazardous secondary materials, the 2008 DSW final rule also removed one of the key provisions for allowing communities to participate in the regulatory process (at least as it concerns the management of the hazardous secondary materials excluded under the rule). Communities with lower participation levels may experience greater adverse impacts from environmental decision

- making because their input has not been considered fully , particularl y if competing interests are set forth more effectivel y. This effect is most likely to occur in communities that have traditionally been excluded from the decision

- making process.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 109

Table 5.1 . Other Factors that Affect Vulnerability in Communities Affected By Re cycling Notification Facilities

Facility Ability to Participate in Decision Making Process Physical Infrastructure Multiple and Cumulative Effects Percent of Population (Within 3 km of the Facility) Transportation and Health Care Availability (Within 3 km of the Facility) Health Risks (Persons per Million Expected to Contract Disease Over a 70 Year Period Within the County of the Facility) Non - Point Source Air Emissions (T ons Per Ye ar Within the County of the Facility) Number of Facilities Reporting to EPA (Within 3 km of the Facility)

Name City State Education Less than High School Diploma Non - English

Speaking Number of

Hospitals Medically

Underserved Cancer Neurological Hazard Respiratory

Hazard Carbon

Monoxide Ammonia Nitrogen Oxide Particulates

(size < 10 μm) Particulates

(size < 2.5 μm) Sulfur

Dioxide Volatile

Organic Compounds RCRA AFS CERCLIS Curries 12th St NW Facility IA0000362905 MASON CITY IA 16.5% 3.8% 1 No 21.75 (70.5 Percentile) .04 (68.5

Percentile) 1.67 (71.6

Percentile) 1,339 2,634 258 5,121 1,008 322 1,200 78 22 1 Curries 9th Street Facility IAD043490150 MASON CITY IA 15.6% 4.1% 1 No 21.75 ( 70.5 Percentile) .04 (68.5

Percentile) 1.67 (71.6

Percentile) 1,339 2,634 258 5,121 1,008 322 1,200 94 36 1 Diamond Vogel Paint Co., Inc. IAD055803423 BURLINGTO

N IA 20.0% 3.4% 2 Yes 32.37 (90.4 Percentile) .08 (93.4

Percentile) 1.01 (52.3

Per centile) 592 569 287 4,143 677 329 914 45 21 1 Fres
- co System USA, Inc IAR000007013 RED OAK IA 27.0% 4.3% 0 No 14.31 (32.6 Percentile) .03 (40.4

Percentile) .58 (31.1

Percentile) 13 7 1,367 51 2,865 499 60 261 26 9 0 Iowa Contract Fabricators Inc IA0000990762 RICEVILLE IA 22.3% 7.5% 2 No 11.34 (14.2 Percentile) .02 (17

Percentile) .28 (14.5

Percentile) 497 2,123 70 3,424 647 71 223 3 3 0 Iowa Mold Tooling Com pany Inc IAD005286539 GARNER IA 11.1% 1.6% 1 No 12.42 (19.2 Percentile) .03 (52.2

Percentile) .41 (21.2

Percentile) 597 2,484 67 4,588 846 60 553 11 5 0 John Deere Da venport Wo rks IAD073489726 DAVENPORT IA 8.0% 4.1% 0 No 33.17 (91.1 Percentile) .09 (95.3

Percentile) 2.34 (81.4

Percentile) 1,071 1,964 1,037 8,066 1,251 1,040 2,990 35 11 0 John Deere Des Moines Wo rks IAD069624500 ANKENY IA 5.4% 6.9% 1 No 26.04 (81.2 Percentile) .2 (98.7

Percentile) 2.56 (83.7

Percentile) 2,587 1,642 1,717 16,882 2,479 3,003 7,512 18 16 1 John Deere Dubuque Wo rks IAD005269527 DUBUQUE IA 16.9% 2.9% 0 No 23.75 (76.2 Percenti le) .05 (74.2

Percentile) 1.56 (69.3

Percentile) 2,452 4,603 561 8,248 1,477 739 2,368 7 3 2 John Deere Engine Wo rks IAD000678094 WA

TERLOO IA 8.8% 8.2% 1 No 27.95 (84.4 Percentile) .04 (72.1

Percentile) 2.13 (78.6

Percentile) 2 ,642 2,245 687 7,244 1,351 853 3,007 25 14 0 John Deere Wa terloo W orks IAD000805168 WA

TERLOO IA 19.9% 5.2% 0 No 27.95 (84.4 Percentile) .04 (72.1

Percentile) 2.13 (78.6

Percentile ) 2,642 2,245 687 7,244 1,351 853 3,007 7 5 0 Siegwerk USA Co IAD078096732 DES

MOINES IA 30.7% 16.1% 2 Yes 26.04 (81.2 Percentile) .2 (98.7

Percentile) 2.56 (83.7

Percentile) 2,587 1,642 1,717 16,882 2,479 3,003 7,512 208 141 0 Siegwerk USA Co IAR000007377 DES

MOINE S IA 9.0% 6.2% 0 No 26.04 (81.2 Percentile) .2 (98.7

Percentile) 2.56 (83.7

Percentile) 2,587 1,642 1,717 16,882 2,479 3,003 7,512 34 46 1 Vogel Paint & Wax Co Inc IAD007276728 ORANGE

CITY IA 16.8% 5.1% 1 No 20.62 (66.4 Percentile) .04 (70.6

Percentile) .46 (24.6

Percentile) 1,309 13,326 187 7,169 1,306 226 1,117 10 7 0DRAFT Internal Report Provided for Peer Review 12/20/2010

December 20, 2010 Draft

- Do Not Cite or Quote 110

Table 5.1 . Other Factors that Affect Vulnerability in Communities Affected By Re cycling Notification Facilities

Facility Ability to Participate in Decision Making Process Physical Infrastructure Multiple and Cumulative Effects Percent of Population (Within 3 km of the Facility) Transportation and Health Care Availability (Within 3 km of the Facility) Health Risks (Persons per Million Expected to Contract Disease Over a 70 Year Period Within the County of the Facility) Non - Point Source Air Emissions (T ons Per Ye ar Within the County of the Facility) Number of Facilities Reporting to EPA (Within 3 km of the Facility)

Name City State Education Less than High School Diploma Non - English

Speaking Number of

Hospitals Medically

Underserved Cancer Neurological Hazard Respiratory

Hazard Carbon

Monoxide Ammonia Nitrogen Oxide Particulates

(size < 10 μm) Particulates

(size < 2.5 μm) Sulfur

Dioxide Volatile

Organic Compounds RCRA AFS CERCLIS Aleris Rolled Products, Inc NJD051415909 CLAYTON NJ 19.9% 6.7% 0 Yes 32.12 (90. 1 Percentile) .05 (81.8

Percentile) 4.08 (93

Percentile) 4,428 688 797 3,015 842 389 6,882 41 5 1 Aluminum Shapes LLC NJD002338267 CAMDEN NJ 22.3% 12.6% 0 No 39.26 (95.8 Percentile) .07 (91.7

Percentile) 5.09 (95.8

Percentile) 3,166 720 1,497 2,978 670 504 6,803 187 47 12 Anadigics, Inc. NJR000036301 WA RREN NJ 7.6% 21.2% 0 No 33.08 (90.9 Percentile) .06 (85.4

Percentile) 4.39 (93.9

Percentile) 2,055 538 1,0 47 3,214 560 272 3,907 38 3 0 Melton Sales & Service NJD981483035 BORDENTO

WN NJ 16.2% 9.9% 0 No 33.54 (91.7 Percentile) .06 (87.7

Percentile) 4.94 (95.4

Percentile) 6,877 960 1,351 4,869 1,330 454 10,554 7 2 1 Melton Sales & Service NJR000075796 BURLINGTO

N NJ 14.9% 11.8% 1 No 33.54 (91.7 Percentile) .06 (87.7

Percentile) 4.94 (95.4

Percentile) 6,877 960 1,351 4,869 1,330 454 10,554 49 9 0 Safety
- Klee n Systems, Inc (Linden Facility) NJD002182897 LINDEN NJ 22.9% 32.3% 0 No 51.24 (98.8 Percentile) 0.11 (96.1

Percentile) 7.49 (98.6

Percentile) 1,889 692 1,632 1,600 379 602 8,419 380 71 3 Sancoa International NJD986629491 LUMBERTO

N NJ 8.0% 7.9% 0 No 33.54 (91.7 Percentile) .06 (87.7

Percentile) 4.94 (95.4

Percentile) 6,877 960 1,351 4,869 1,330 454 10,554 10 2 0 Siegfried USA Incorporated NJD064344575 PENNSVILLE NJ 22.5% 6.5% 0 Yes 28.42 (85.1 Percent ile) .04 (72.9

Percentile) 3.19 (88.2

Percentile) 2,366 784 226 1,583 448 156 1,481 13 3 0 Veolia ES Technical Solutions LLC NJD002454544 MIDDLESEX NJ 16.6% 29.8% 1 No 42.44 (97.1 Percentile) 0.08 (94

Percentile) 5.89 (97

Percen tile) 2,313 1,110 2,352 4,212 624 688 11,328 207 41 8 Viking Yacht Com pany NJD002482545 NEW

GRETNA NJ 21.2% 4.4% 0 No 33.54 (91.7 Percentile) .06 (87.7

Percentile) 4.94 (95.4

Percentile) 6 ,877 960 1,351 4,869 1,330 454 10,554 2 1 0 BAE Systems, Land & Arm am ents PAD003025418 YORK PA 20.8% 3.5% 0 No 38.59 (95.3 Percentile) 0.09 (94.9

Percentile) 4.15 (93.3

Percentile) 10,384 3,488 1,904 17,754 3,425 1,940 8,496 9 3 0 Carpenter Technology Corporation PAD00234 4315 READING PA 34.6% 31.6% 1 Yes 39.16 (95.7 Percentile) .08 (93.1

Percentile) 3.29 (88.7

Percentile) 8,000 4,298 1,802 14,280 2,690 2,367 10,315 156 34 0 Cherokee Pharmaceutical s, LLC PAD003043353 RIVERSIDE PA 20.1% 5.2% 0 No 23.91 (76.6 Percentile) .08 (93.8

Percentile) 2.04 (77.3

Percentile) 3,940 1,628 409 4,675 911 800 1,785 19 5 0 Erie Plating Co PAD005031448 ERIE PA 22.1% 11.8% 4 No 28.53 (85.3 Percentile) 0.06 (88.9

Percentile) 1.32 (63.2

Percentile) 2,570 822 1,631 7,677 1,279 2,032 9,674 206 38 0 International Metals Reclamation Com pany, Inc ELLW OOD

CITY PA 17.6% 3.9% 0 No 26.33 (81.9 Percentile) 0.06 (84

Percentile) 1 .97 (76.4

Percentile) 1,512 610 451 3,661 647 577 2,071 41 16 0DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 111

Table 5.1 . Other Factors that Affect Vulnerability in Communities Affected By Re cycling Notification Facilities

Facility Ability to Participate in Decision Making Process Physical Infrastructure Multiple and Cumulative Effects Percent of Population (Within 3 km of the Facility) Transportation and Health Care Availability (Within 3 km of the Facility) Health Risks (Persons per Million Expected to Contract Disease Over a 70 Year Period Within the County of the Facility) Non - Point Source Air Emissions (T ons Per Ye ar Within the County of the Facility) Number of Facilities Reporting to EPA (Within 3 km of the Facility)

Name City State Education Less than High School Diploma Non - English

Speaking Number of

Hospitals Medically

Underserved Cancer Neurological Hazard Respiratory

Hazard Carbon

Monoxide Ammonia Nitrogen Oxide Particulates

(size < 10 μm) Particulates

(size < 2.5 μm) Sulfur

Dioxide Volatile

Organic Compounds RCRA AFS CERCLIS PAD087561015 Jerr
- Dan Corp PAD047518014 GREENCAST

LE PA 20.1% 3.1% 0 Yes 21.25 (68.6 Percentile) 0.05 (73.7

Percentile) 1.75 (73.2

Percentile) 3,371 4, 933 531 8,056 1,420 596 3,645 15 2 0 Jerr
- Dan Corp Wrecker Div PAR000029769 GREENCAST

LE PA 24.5% 3.8% 0 Yes 21.25 (68.6 Percentile) .05 (73.7

Percentile) 1.75 (73.2

Percentile) 3,371 4,933 531 8,056 1,420 596 3,645 28 12 0 John Maneely Co W heatland Tube Division PAD0043228 63 SHARON PA 21.0% 4.6% 0 Yes 22.01 (71.4 Percentile) 0.07 (90.1

Percentile) 1.58 (69.6

Percentile) 2,184 1,036 644 6,286 1,049 797 3,290 49 4 2 John Maneely Co W heatland Tube Division PAD004338091 WHEATLAN

D PA 29.0% 4.4% 0 No 22.01 (71.4 Percentile) 0.07 (90.1

Percentile) 1.58 (69.6

Percentile) 2,184 1,036 644 6,286 1,049 797 3,290 39 12 1 John Maneely Co W heatland Tube Division PAR000038067 WHEATLAN

D PA 25.4% 5 .6% 0 No 22.01 (71.4 Percentile) 0.07 (90.1

Percentile) 1.58 (69.6

Percentile) 2,184 1,036 644 6,286 1,049 797 3,290 42 12 1 Johnson Matthey Em issions Control Technologies PAD980829287 WA

YNE PA 2.9% 13.0% 0 No 39.04 (95.6 Percentile) .08 (92.6

Percentile) 5.61 ( 96.5

Percentile) 3,689 337 1,902 5,456 1,144 2,034 10,014 47 6 0 Johnson Matthey Em issions Control Technologies PAR000519322 SMITHFIELD PA 27.6% 2.9% 0 Yes 26.6 (82.5 Percentile) 0.04 (67.6

Percentile) 1.78 (73.3

Percentile) 3,522 424 633 4,885 900 1,097 2,749 6 1 0 Piezo Kinetics Inc PAR000036772 BELLEFONT

E PA 19.3% 4.0% 0 No 26.15 (81.6 Percentile) .05 (80.1

Percentile) 1.91 (75.4

Percentile) 6,428 953 603 7,483 1,457 1,147 2,911 18 7 0 Spectrum Control Technology Inc PAD043882323 STATE

COLLEGE PA 5.0% 16.2% 0 No 26.15 (81.6 Percentile) 0.05 (80.1

Percentile) 1.91 (75.4

Percentile) 6,428 953 603 7,483 1,457 1,147 2,911 48 13 0 Triangle Circuits PAD981037377 OA KMONT PA 13.8% 5.6% 0 No 63.86 (99.5 Percentile) 0.12 (96.9

Percentile) 5.34 (96.1

Percentile) 8,744 499 5,159 8,770 2,071 5,179 22,416 108 36 0 Wo rld Resources Com pany PAD981038227 POTTSVILLE PA 25.1% 4.7% 0 No 22.08 (71.9 Percentile) .07 (90.9

Percentile) 1.87 (74.8

Percentile) 11,143 998 768 6,657 1,404 2,018 3,623 23 9 1 Source
- EPA EJView toolDRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 112 6 Conclusions 6.1 Information Synthesis: Assessment of Disproportiona te Im pact The purpose of Step 5 of th e DSW environmental justice anal ys is methodology is to sy nthesize all the information to characterize whether the 2008 DSW final rule will facilitate the occurrence of an y adverse impacts and whether some population groups (e.g., minority or low income pop ulations) would be overrepresented in the impacted communities. Below is a summary of the major conclusions from the first four steps of the analy sis, as discussed in Chapters 2

– 4 of this report. 6.11 Hazardous Secondary Material Recycling Does Pose Significant Potential

Hazards As discussed in detail in Chapter 2 of this report, the first step of the DSW environmental justice anal ys is methodology

is hazard characterization, which includes both identifying the potential hazards that discarded hazardo us secondary materials recycling could pose to human health and the environment, and evaluating the likelihood of such hazards resulting in increased risk under the 2008 DSW final rule. Hazardous secondary

materials sent to recycling are phy sicall y and ch emically similar, if not identical , to many

of the hazardous wastes sent for treatment and disposal. The most commonly recycled hazardous secondary materials are spent solvents and electric arc furnace dust (which is recycled to reclaim metals). Spent so lvents present particular management challenges associated with storage of liquids containing volatile organic chemicals and include both halogenated and non - halogenated organic chemicals, which represent a broad range of chemicals and associated hazards. Electric arc furnace dust is usually in a solid state and presents a different management challenges, including storage in waste piles and the potential for wind

- blown dust, and can contain high concentrations of toxic metals. These two classes of haz ardous secondary materials (as well as other hazardous secondary materials that are recycled) can pose risks via a wide variety of exposure routes and include a range of potential adverse health effects, both carcinogenic and non

- carcinogenic, and a potent ial for acute impacts such as fire and explosions for certain ty pes of hazardous secondary materials, such as solvents. 6.12 Possibility of Hazards From Hazardous Secondary Materials Recycling Adversely Impacting Human Health and the Environment Is Increased Under the 2008 DSW Final Rule As discussed in Chapter 2, the second part of the hazard characterization step

—determining whether these hazards could result in increased risk to human health and the environment

—is a complex issue because of the interactions between how the regulations are written and how they are implemented. Under the 2008 DSW final rule, EPA presumed that the conditions of the rule would prevent an y increase in risk. In particular, the condition that the hazardous secondary materials be “contained” was intended to address this issue, because if the material is notDRAFT Internal Report Provided for Peer Review 12/20/2010

December 20 , 2010 Draft

- Do Not Cite or Quote 113 released to the environment, then there would be no increased exposure, and therefore no increased risk. H owever, what the 2008 anal ys is failed to take into account was whether the conditions of the rule

—including the “contained” standard

— would operate as effectivel y i n the real world as the more detailed requirements of the RCRA hazardous waste regulations. One of the most common criticisms of the January

2010 draft environmental justice methodology was that it glossed over some of the important protections of the hazardous waste regulations, particularl y public participation requirements, which were not co nsidered under the 2008 DSW final rule. A more detailed comparative anal ys is of the regulatory requirements under the 2008 DSW final rule with the hazardous waste regulations reveals potentially significant gaps in environmental protection under the 2008 DSW final rule, particular the absence of measures to ensure compliance, incentives to accumulate larger volumes of hazardous secondary materials, and reduction in access to information and the opportunity for public participation. The specific gaps vary depending on the baseline scenario and the post

- DSW scenario being considered, and in some cases, there is also a potential for increased benefits, primarily from resource conservation and from reduced transportation distances. 39

39 ( By reporting the potential for increased benefits under certain scenarios, EPA does not intend to imply that such benefits could justify increased risk to human health and the environment from discarded hazardous secondary material. Promoting resource conservation and recovery is a major goal of RCRA, but this goal does not supersede the mandate to assure that hazardous waste management practices are protective of human health and the environment).DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 114

Summary of Potential I mpacts the 2008 DSW Final Rule

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

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

permitted facility under hazardous waste regulations Generator sends material offsite for rec ycling at a RCRA

- permitted facility under transfer

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

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

- based exclusion for rec ycling in another country Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures. No change in risk at recycli ng facility

. Scenario 2 : Generator switches from off
- site disposal to on
- site reclamation Generator sends material offsite to a RCRA permitted facility for treatment followed by landfilling under hazardous waste regulation s Generator rec ycles material onsite under generator
- controlled exclusion Potential i ncreased risk to human health and the environment at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures Potential reduced transportatio n risk due to switch from off

- site disposal to on - site recycling Potential reduced risk in communities surrounding existing off

- site treatment/disposal facilities. Potential increased resource conservation benefits due to switch from disposal to recyclin g and reduction of miles traveled.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 115 Hazardous Waste Baseline DSW Practices Summary of Potential Impacts Scenario 3: Generator switches from off
- site disposal to off

- site recycling under the control of the generator Generator sends material offsite to a RCRA permitted facility for treatment followed by landfilling under hazardous waste regulation s Generator sends material offsite for rec ycling at a facility that it controls under generator
controlled exclusion Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures. Potential increased risk in communities surrounding generator off

site recycling facilities Potential increased resource conservation benefits due to switch from disposal to recycling and reduction of miles traveled (if distance to reclamation facilities is closer). Potential reduced risk in communities surrounding existing off

- site treatment/disposal facilities. Scenario 4: Generator switches from off
- site disposal to off

- site recycling at RCRA
- permitted facility Generator sends material offsite to a RCRA permitted facility for treatment followed b y landfilling under hazardous waste regulation s Generator sends material offsite for rec ycling at a RCRA

permitted facility

under transfer

- based exclusion Potential i ncreased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures Potential increased resource conservation benefits due to switch from disposal to recycling and reduction of miles traveled (if distance to reclamation facilities is closer). Potential increased resource conservation benefits due to switch from disposal to recycling. Potential reduced risk in communities surrounding existing off

- site treatment/disposal facilities.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 116 Hazardous Waste Baseline DSW Practices Summary of Potential Impacts Scenario 5 : Generator switches from off
- site disposal to off

- site recycling at a U.S. facility without a RCRA permit Generator sends material offsite t o a RCRA permitted facility for treatment followed b y landfilling under hazardous waste regulation s Generator sends material offsite for rec ycling at a facility

in the United States without a RCRA permit under transfer

- based exclusion Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures. Potential increased risk at recycler due to longer accumulation times, greater quantities, lack of explicit preventative measures. Potential increased resource conservation benefits due to switch from disposal to recycling. Potential reduced risk in co mmunities surrounding existing off

- site treatment/disposal facilities. Scenario 6 : Generator switches from off
- site disposal to exporting for recycling Generator sends material offsite to a RCRA permitted facility for treatment followed b y landfilling under hazardous waste regulation s Generator exports material under the transfer

- based exclusion for rec ycling in another country Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures. Potential increased risk at recycler due to longer accumulation times, greater quantities, lack of explicit preventative measures. Potential increased resource conservation benefits due to switch from disposal to recycling. Potential reduced risk in communities surrounding existing off

- site treatment/disposal facilities.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 117 Hazardous Waste Baseline DSW Practices Summary of Potential Impacts
Scenario 7 : Generator switches from off
- site recycling at a facility without a permit to a nother type of recycling under the 2008 DSW final rule Generator sends material offsite for recycling at a facility in the United States that recycles without a RCRA permit under hazardous waste regulation s Generator sends material offsite for reclamation at a facility under generator
- controlled exclusion , or Generator exports material under the transfer

- based exclusion for reclamation in another country , or Generator se nds material offsite for reclamation at a RCRA permitted facility under transfer

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

- based exclusion. Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures. Potential increased risk at new recycler due to longer accumulation times, and greater quantities accumulated. Potential r educed risk at new recycler due to “contained” standard, legitimacy condition and (for the transfer

- based exclusions) reasonable efforts audit and financial assurance conditions. Potential reduced risk in communities surrounding previousl y used off

- site recycling facility

.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 118 Hazardous Waste Baseline DSW Practices Summary of Potential Impacts
Scenario 8: Generator switches from off
- site recycling at a RCRA
- permitted facility or exporting waste for recycling to another type of recycling under the 2008 DSW final rule Generator sends material offsite for reclamation to RCRA

- permitted facility under hazardous waste regulation s or exporting waste for reclamation in another country Generator reclaims material onsite under generator
- controlled exclusion , or Generator sends material offsite for reclamation at a facility that it controls under generator
- controlled exclusion , or Generator sends material offsite for reclamation at a fac ility in the United States without a RCRA permit under transfer

- based exclusion , or Generator exports material under the transfer

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

– 6, but with no resource conservation b enefits.

6.13 Many of the Communities Potential ly Impacted by this Potential Increase In Risk of Adverse Impacts are Minority and Low
- Income Communities , and In Some Cases The Populations Potentially Impacted Are Disproportionately Minority And/Or Low Income The second and third steps of the DSW environmental justice anal ys is methodology together help determine whether the potential adverse impacts detailed above are likely to occur disproportionately

in minority

and low

- income communities. Th e second step of the methodology identifie d facilities that can represent the facilities that are likely to take advantage of the 2008 DSW final rule . These facilities are grouped into four different categorie s: (1) facilities that have already notified under the 2008 DSW final rule, (2)DRAFT Internal Report Provided for Peer Review 12/20/2010

December 20 , 2010 Draft

- Do Not Cite or Quote 119 hazardous waste facilities that are likel y to recycle under the rule (including hazardous waste generators producing more than a truckload (25 tons) of recyclable hazardous secondary materials annuall y , and hazardous was te recyclers) to use the rule , (3) facilities from the environmental problems study (man y of which operated under exclusions or reduced regulations ) , and (4) facilities currentl y rec ycling non

- hazardous industrial waste (e.g., antifreeze) that could most e asily switch or expand to recycling under the 2008 DSW final rule

. The third step characterized the demographics of the communities within a three kilometer radius around these facilities, and determined whether they were disproportionately minority or lo w income compared to the nation as a whole, and compared to the population in the state. Disproportionality

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

- level anal ys is, the question is whether the communities in a f acility category had a higher or lower percentage of minority and/or low

- income population as compared to the comparison population (i.e., national or state population). In general, some communities will have a higher percentage than the comparison population, some will have a lower percentage. As long at these differences have a regular distribution, they would not indicate disproportionate impact. However, if the number of communities with a higher percentage of minority and/or low

- income population i s greater than that of the comparison populations, then there is a potential for disproportionate impact. The higher the average difference between the potentiall y affected communities and the comparison group, the greater the potential disproportionality

. In the chart below, the only category that consistently

demonstrates the potential for disproportionate impact are the damage case facilities. For both the national and the state comparison populations, more than 50% of the damage case facilities are located in communities with minority and low

- income populations that have a higher representation than the comparison populations. In addition, the average difference in these cases (i.e., the average amount that the damage case facilities have a higher

- than

- average percentage of minorities or low

- income populations) range from 6

- 8%.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 120

Community
- Level Analysis of Potential Disproportionate Impacts of 2008 DSW Rule to Minority and Low
- Income Communities Highlighted Values Indicate Potential Disproportionate Impact National Comparison % communities with higher minority representation (average difference) National

Comparison % communities with higher low

income representation (average difference) State Co mparison

% communities with higher minority representation (average difference) State

Comparison % communities with higher low

income representation (average difference) Notification Facilities (40 total) 7.5%

(

- 20.7%) 32.5%

(

- 2.0%) 50.0% (IA)

(3.1%) 20.0% (NJ) (

- 11.0%) 31.3% (PA) (

- 2.3%) 64.0% (IA)

(1.7%) 0% (NJ) (

- 3.7%) 50% (PA) (2.6%) Damage Case Facilities (217 total) 53%

(8.2%) 65%

(5.9%) 55.8%

(8.2%) 69%

(6.7%) Hazardous Waste Facilities (2,677 total) 42%

(0.9%) 48%

(1.5%) 47.9%

(4.0%) 50.6%

(1.8%) Non

- Hazardous Industrial Waste Facilities (25 total) 36%

(

- 5.0%) 40%

(

- 0.5%) 36%

(

- 2.55%) 44%

(

- 0.3%)

The population

- level analy sis examines the demographics of the total potentially affected population as compared to the total comparison population to determine (1) whether there is a substantially

greater probability

of members in a population group of concern (minority or low

income) being present as compared to members of the comparison population, an d (2) whether members of the population group of concern comprised a substantially greater proportion of the potentially

affected population than the comparison populations. These two comparisons are referred to as (1) the Threshold Risk Ratio, and (2) th e Demographic Ratio. In both cases, if the ratio is greater than 1.0, then there is a potential for disproportionate impact to the population of concern, and the larger the ratio, the greater the disproportionality

.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 121

Population
- Level Analysis of Potenti al Disproportionate Impacts of 2008 DSW Rule to Minority and Low
- Income Communities Highlighted Values Indicate Potential Disproportionate Impact to Population of Concern

All Results Statistically Significant (p

- value <0.05) National Comparison Minority Population Threshold Risk Ratio Demographic Ratio National

Comparison Low

- Income Population Threshold Risk Ratio Demographic Ratio State

Comparison Minority Population Threshold Risk Ratio Demographic Ratio State

Comparison Low

- Income Population Threshold Risk Ratio Demographic Ratio Notification Facilities (40 total) 0.70 0.76 1.05

1.04 1.80 (IA)

1.76 (IA) 1.02 (NJ) 1.01 (NJ) 1.46 (PA) 1.47 (PA) 1.34 (IA)

1.32 (IA) 0.64 (NJ) 0.65 (NJ) 1.74 ( PA ) 1.63 ( PA ) Damage Case Facilities (217 total) 2.87 1.86 1.98

1.80 2.59

1.64 2.04

1.90 Hazardous Waste Facilities (2,677 total) 1.90 1.80 1.39

1.50 1.94

2.04 1.47

1.83 Non

- Hazardous Industrial Waste Facilities (25 total) 1.19 1.12 1.16

1.14 1.34

1.20 1.17

1.15

The population

- level analy sis shows a greater incidence of potential disproportionate impact to minority and low

- income populations than the community

- level analy sis. For the population

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

- level analy sis exhibits the potential for disproportionate impact only

in the damage case facility category . This difference can occur when the population of those communities that do have a greater percentage of minority or low

- income individuals also have a significantly

higher total population that those communities that do not. In other words, for all categories of facilities except the damage case facilities, the facilities of concern do not appear to be disproportionately located in minority

or low

- income communities, but the facilities that are located in minority and low

- income communities have the potential to impact much larger populations than those which are not, resulting in an overall potential disproportionate impact to minority and low

- income populations as a whole.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 122 6.14 Underlying Vulnerabilities Traditionally Associated with Minority and Low
Income Communities Pose the Potential to Exacerbate Potential Adverse Impacts of the DSW Rule As discussed in Chapter 5 of this report, other factors can increase the vulnerability in potentiall y affected communities to the potential adverse impact of the 2008 DSW final rule

. 40 These factors are described under five broad categorie s : (1) Susceptible Populations , (2) Multiple and Cumulative Effects , (3) Unique Exposure Pathway s , (4) Ability to Participate in the Decision

Making Process , and (5) Phy sical Infrastructure

. All of these factors have the potential to exacerbate the potential for adverse impacts to minority and low

- income communities, but two of these factors are of particular concern to the 2008 DSW final rule: Ability

to Participate in the Decision

- Making Process, and Multiple and Cumulative Effects Ability to Participate in the Decision

-Making Process A key element of environmental justice is ensuring that all people have an opportunity for meaningful involvement in decision

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

- making because of economic (e.g., income), social (e.g., language barriers, education levels, distrust of government), and infrastructural reasons (e.g., access to public transportation). A critical concern is whether, and the extent to which, communities have the ability to influence the types and number of regulated activities taking place in their community as well as the requirements, conditions, and parameters b y which such activities must operate (e.g., permit conditions). Under the 2008 DSW final rule, facilities claiming an exclusion must submit an initial and biennial notification to EPA or the state, providing general facility information and describing hazardous secondary material ty

pes and activities under the exclusion. However, und er the 2008 DSW final rule this information is not made directly available to potentially

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

input into the decision

- making process as is the case with RCRA permitted facilities. Thus by

removing the RCRA permitting requirement for facilities that manage excluded hazardous secondary materials, the 2008 DSW final rule also removed one of the key provisions for allowing communities to participate in the regulatory process (at least as it concerns the management of the hazardous secondary materials excluded under the rule). Communities with lower participation levels may experience greater adverse impacts from environmental decision

- making because their input ha s not been considered fully , particularl y if competing interests are set forth more effectivel y. This effect is most likely to occur in communities that have traditionally been excluded from the decision

- making process.

40 U.S. EPA Interim Guidance on Considering Environmental Justice During the Development of an Action July 2010. http://www.epa.gov/environmentaljustice/resources/policy/considering

- ej

- in

- rulemaking

- guide

- 07

- 2010.pdfDRAFT Internal Report Provided for Peer Review 12/20/2010

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- Do Not Cite or Quote 1 23 Multiple and Cumulative Effects Minority , low

- income, and indigenous communities that have been affected by multiple pollution sources may

be at risk for increased health consequences. Potential sources of pollution can include, for example, industrial facilities, landfills, transportation

- related air emissions, poor housing conditions (e.g., lead

- based paint), leaking underground tanks, pesticides, and incompatible land uses. An analy sis of the cumulative effects from multiple stressors can provide a more complete evaluation of a population’s health risks from pollutants. For example, an anal ys is of discrete stressors and effects on a population might conclude that nearb y pollution sources are within regulatory limits; however, an anal ys is of cumulative effects might determine that a person’s collective exposure to a contaminant from multiple sources exceeds a health

- based limit. An examination of the facilities that have notified under the 2008 DSW final rule shows that multiple environmental hazards are a potential concern for communities around these facilities. All have multiple facilities reporting to EPA, either under RCRA, the Clean Air Act (CAA), or Comprehensive Environmental Response, Compensation and L iability Act, (CERCLA

- also known as Superfund) within a three

- kilometer radius of the facility. Twenty

- six of the forty facilities had communities with cancer rates greater than the 80th percentile, and twenty- seven showed a greater than the 80th percentile in neurological hazard rates. Twenty

- seven facilities also had no h ospital facilities within the three kilometer area.

6.2 Poten tial Preventative and Mitigative Steps That EPA Could Explo re to Address the Potential Adverse Impacts to Minority and Low
- Income Communities The sixth and final step of the DSW environmental justice analy sis is to identify potential strategies to prevent non

- compliance and releases to the environment and to mitigate potential adverse impacts that have been identified in the analy sis. 6.21 Potential Regulatory Changes Regulatory Changes Regulatory

changes to the 2008 DSW final rule must be made according to EPA’s authority under RCRA to regulate discarded material. As discussed in the preamble to the 2008 DSW final rule, EPA used the concept of discard as the central organizing idea behind the October 2008 revisions to the definition of solid waste. As stated in RCRA section 1004(27), ``solid waste'' is defined as ``. . . any garbage, refuse, sludge from a waste treatment plant, water suppl y treatment plant, or air pollution control faci lity and other discarded material. . .resulting from industrial, commercial, mining and agricultural activities.'' In exercising its discretion in the 2008 DSW final rule to define what constitutes ``discard'' for hazardous secondary materials reclamation in the DSW final rule, EPA included an explanation of how each provision of the final rule relates to discard” (73 FR 64676

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- Do Not Cite or Quote 124 However, as noted in the Federal Register notice announcing the June 2009 public meeting, EPA believes that there are opp ortunities to revise the 2008 DSW final rule in way s that could increase environmental protection while still appropriately defining when a hazardous secondary material being reclaimed is a solid waste and subject to hazardous waste regulation (74 FR 25202 ) 6.22 Implementation Measures In addition to considering regulatory changes to address potential adverse impacts of the 2008 DSW final rule, EPA can take non

- regulatory steps to help mitigate the potential adverse impacts. These steps include closely m onitoring the facilities notifying under the 2008 DSW final rule, making information about the DSW facilities available to the public, and working with states and EPA Regions to ensure they have the information they need to ensure compliance with the provi sions of the rule, and making available to the public information about the facilities that have notified. EPA has begun this process for the states and territories currentl y operating under the 2008 DSW final rule, and plans to continue these efforts in order to help prevent potential adverse impacts at the same time that revisions to the rule are under consideration.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1 

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

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- 2 1. Introduction This appendix presents a comparison of the federal regulations applicable to 1) generators and permitted storage facilities operating under the federal hazardous waste regulations and 2) generat ors, intermediate facilities, and reclamation facilities operating under the 2008 DSW final rule . The purpose of the comparison is to determine if the federal regulations applicable to generators and facilities operating under the 2008 DSW final rules are “comparable” to the federal regulations applicable to hazardous waste generators and permitted storage facilities operating under the federal hazardous waste regulations. For purposes of this analy sis, a regulation is “comparable” to another regulation i s they both have the same general objectives and appl y to the same types of facilities. Section 2 of this appendix describes the methodology used to develop the comparison , Section 3 summarizes the key

findings of the comparison , Section 4 presents the tab les used to compare the regulations , and Section 5 presents a summary of the federal regulations included in the comparison. 2. Methodology EPA developed three tables for purposes of comparing the federal regulations:

 Table 1 compares the federal regulations applicable to generators of hazardous waste and generators of hazardous secondary material under the generator

- controlled exclusion.

 Table 2 compares the federal regulations applicable to generators of hazardous waste and generators of hazardous secon dary material under the transfer

- based exclusion.

 Table 3 compares the federal regulations applicable to hazardous waste storage facilities and hazardous secondary material intermediate and reclamation facilities under the transfer

- based exclusion. 41 Each t able includes three columns. Column 1 of the tables presents the hazardous waste regulations and other federal regulations applicable to hazardous waste generators or storage facilities. Column 2 presents the conditions and requirements of the 2008 DSW f inal rule and other federal regulations applicable to hazardous secondary material generators and facilities operating under the exclusions. Column 3 briefly compares these regulations to determine if the federal regulations applicable to generators and facilities operating under the 2008 DSW final rule (Column 2) are comparable to the federal regulations applicable to hazardous waste generators and permitted storage facilities operating under the federal hazardous waste regulations (Column 1). To prepare the table s, EPA first reviewed the federal hazardous waste regulations and identified those requirements most relevant to the generation, storage, and reclamation of hazardous secondary material (e.g., storage time limits for generators). EPA then summarized these

41 EPA compares hazardous waste storage facilities to hazardous secondary material facilities because hazardous wa ste storage facilities are the most analogous type of facility under the hazardous waste regulations. Specifically, if an intermediate facility operated under the hazardous waste regulations (i.e., by storing hazardous waste) , it would be subject to the hazardous waste storage requirements, including a storage permit. If a reclamation facility stored hazardous waste pending reclamation, it would be subject to the hazardous wa ste storage requirements, including a storage permit.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3 requirements in Column 1 of the tables and included a heading above each requirement (or group of requirements) to briefly describe it (e.g., “storage time limit,” “personnel training”). EPA then reviewed the 2008 DSW final rule to see if they contain any conditions or requirements that generally correspond to the hazardous waste requirements in the table. EPA summarized the exclusions’ requirements and conditions in Column 2 of the table where relevant, to present a side

- by

- side comparison of the hazardo us waste requirements and corresponding DSW conditions and requirements. In Column 3 of the table, EPA briefl y examines the hazardous waste requirements and the DSW conditions and requirements to clarify the extent to which they

are comparable. In additio n, EPA reviewed other federal regulations to determine if they contain requirements that have a similar objective as these hazardous waste and the 2008 DSW requirements (e.g., federal regulations that require personnel training and/or emergency response si milar to the hazardous waste regulations). EPA summarized these federal requirements in the tables where appropriate. Specificall y, if a federal requirement applies to generators and/or storage facilities operating under the hazardous waste regulations, it is summarized in Column 1 of the tables, where relevant. If it applies to generators and/or facilities operating under the 2008 DSW final rule , it is summarized in Column 2 of the tables, where relevant. In Column 3 of the tables, EPA briefl y discusse s the extent to which these federal requirements are comparable to the relevant hazardous waste requirements. 3. Summary of Key Findings Following is a summary

of the findings of the comparative analy sis presented in the tables of Section 4 of this Appendix

. The findings are summarized under the headings used in the comparative tables. 3.1 Legitimate Recycling EPA has set forth criteria for determining legitimate recycling under the hazardous waste regulations and the 2008 DSW final rule. Refer to Section 5.1 of this appendix for a summary of the legitimacy

requirements and policies under the hazardous waste regulations and Sections 5.2.1 and 5.2.2 for the legitimacy requirements and conditions under the 2008 DSW final rule. 3.2 St orage Time Limit The hazardous waste regulations and the 2008 DSW final rule set forth time limits for generators to accumulate hazardous secondary material on

- site. However, the 2008 DSW final rule allow s generators to accumulate hazardous secondary mate rial on

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

- s ite accumulation, as do the hazardous waste regulations for small quantity generators
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- 4 3.3 Containment The hazardous waste regulations and the 2008 DSW final rule require containment of hazardous secondary material in the unit. The hazardous waste regulations prescribe design, operating, and other standards for containment, whereas the 2008 DSW final rule does n ot

—that is, it provides a general performance standard . As such, the 2008 DSW final rule allow s more flexibility in how hazardous secondary materials can be contained. This could result in less protective containment than the hazardous waste regulations. However, som e generators and facilities under the exclusions may choose to follow the hazardous waste regulations for their units any way s , particularl y those that are otherwise subject to the hazardous waste regulations. 3.4 Air Emissions Some generators and faciliti es under the hazardous waste regulations and the 2008 DSW final rule may be subject to the federal Clean Air Act (CAA) regulatory program for air emissions from stationary

sources. Under the CAA program, the states and EPA issue operating permits to certain “major” stationary sources of hazardous air pollutants (HAPs) under 40 CFR Parts 70 and 71. A major source is a source that emits more than 10 tons per year (TPY) of any single HAP or more than 25 TPY of HAPs in total. A number of smaller sources (e.g ., “area” sources) also may be required to obtain a permit under the federal program. In addition, area sources not subject to a Title V permit may still be subject to CAA regulation, depending on the applicability provisions of the particular rule. The area source would be required to notify EPA (or the delegated state agency) ty pically 120 days following promulgation, whether it is subject to the regulation. S ome generators and facilities under the 2008 DSW final rule may be subject to CAA requirement s that control air emissions from process vents, equipment leaks, or storage units in a manner that is comparable to the hazardous waste regulations. For example, 40 CFR Part 63, Subparts OO, PP and QQ require air emission controls for tanks, containers, and surface impoundments, respectively , at facilities subject to a CAA permit, as specified. These subparts impose the same ty

pes of requirements as the hazardous waste regulations for process vents, equipment leaks and storage units (e.g., design, operating, monitoring standards). However, there are two important differences between the CAA regulations and hazardous waste regulations. Fir st, their applicability to the regulated universe differ s in some respects. For example, many

of the CAA regulations appl y to specified industries, whereas the hazardous waste regulations apply

to all facilities regardless of industry

. Therefore, some generators and facilities under the 2008 DSW final rule may not be subject to the CAA regulations. Second, some CAA regulations apply to a facility , but not necessarily to its process vents, leaks and storage units. This will depend on the particular CAA regulation in question. By contrast, the hazardous waste regulations include requirements that apply specifically

to p rocess vents, equipment leaks, and storage units, as specified. Because of these differences, it is likely that a number of generators and f acilities under the 2008 DSW final rule will not be subject to air emission controls comparable to the hazardous waste regulations for process vents, equipment leaks, or storage units.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 5 3.5 Emergency Preparedness and Response The hazardous waste regulations require generators and storage facilitie s to prepare for and respond to emergencies. The 2008 DSW final rule, on the other hand, does not require emergency

preparedness and response. H owever, materials managed under the 2008 DSW final rule that are no longer contained in a unit (i.e., released) and not immediately recovered would no longer be exc luded. They would need to be cleaned up and be subject to full Subtitle C regulation if hazardous, including the preparedness and response requirements of the hazardous waste regulations, as applicable. In addition, other federal regulations may require emergency

preparedness and response at generators and facilities operating under the hazardou s waste regulations and the 2008 DSW final rule :
 CAA Chemical Accident Prevention Provisions. 40 CFR Part 68 requires a stationary source (e.g., a building, plant) that meets applicable criteria to develop and implement a risk management program. As part of the program, the stationary source must either develop an emergency

response program (i.e., for facility personnel to respond) or make arrangements with off

- s ite response organizations.

 Comprehensive Environmental Response, Compensation, and L iability Act (CERCLA)/Emergency

Planning and Community Right

- to
- Know Act (EPCRA) Notification. 40 CFR Parts 302 and 355 require facilities to immediately notify the Natio nal Response Center and local/state officials (if applicable) of a release of a hazardous substance or extremely hazardous substance equal to or exceeding its reportable quantity

.  Clean Water Act (CWA) Oil Pollution Prevention. 40 CFR Part 112 requires a non transportation

- related facility that meets specified criteria to perform emergency planning and response for oil discharges, including development of a Spill Prevention, Control, and Countermeasure (SPCC) Plan. The SPCC Plan must address such element s as discharge prevention measures; countermeasures for discharge discovery , response, and cleanup; and personnel responsibilities (e.g., for addressing discharges).

 Occupat ional Safety and Health Act (OSH Act). The Process Safety Management (PSM) Stand ards (29 CFR 1910.119) and Hazardous Waste Operations and Emergency Response (HAZWOPER) Standard s (29 CFR 1910.120(p)(8) and (q)) require facilities meeting specified criteria either to develop and follow an emergency response program (i.e., for facility

p ersonnel to respond) or to prepare an evacuation plan for the entire plant (i.e., for off

- site personnel to respond). In addition, the Hazard Communication Standard (29 CFR 1910.1200) requires a facility to provide information to its employees about any c hemical (except hazardous waste) which is a phys ical or health hazard to which they are exposed, by

means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training (e.g., hazards detecti on, emergency

procedures). Each of the above regulations requires a level of emergency preparedness and/or response that is at least partiall y comparable to the hazardous waste regulations. However, it is likely that these regulations will not provide a level of emergency prep aredness and protection that is comparableDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 6 to the hazardous waste regulations for all generators and facilities under the 2008 DSW final rule. This is explained further below:

 The Chemical Accident Prevention P rovisions and Oil Pollution Prevention regulations (i.e., SPCC Plan requirements) apply to a targeted universe of facilities ; therefore, a number of generators and facilities under the 2008 DSW final rule may not be subject to them. The Chemical Accident P revention P rovisions apply to facilities that that have more than a threshold quantity of a “regulated substance.” The provisions list 140 toxic and flammable substances subject to regulation . G enerators and facilities that do not have an y of these 140 chemicals a bove the quantity

thresholds would not be subject to these provisions. The requirement for a SPCC Plan under the Oil Pollution Prevention regulations generall y applies to non - transportation

- related facilities with aboveground oil storage capacity of more than 1,320 gallons that could reasonably be expected to discharge oil to navigable waters or adjoining shorelines . Hence, these criteria would not apply to generators and facilities that are not expected to discharge oil to navigable waters or adjoining shorelines , do not generate or store oil

- related substances, or meet minimum storage capacity thresholds.

 The Chemical Accident Prevention P rovisions , PSM Standard , and HAZWOPER Standard give facilities the option of either developing an emergency response program or making alternative arrangements (e.g., evacuation plans, arrangements with off

- site authorities). Facilities that opt to make alternative arrangements are not required to address a number of the elements required b y the hazardous waste regulations particularl y for large quantity generators and storage facilities (e.g., procedures and equipment for containing and cleaning up a release).

 The definition of “emergency response ” under the Chemical Accident Prevention P rovisions , PSM Standard , and HAZWOPER Standard applies to releases that threaten safety or health (i.e., fire, explosion, or chemical exposure) . Th is definition does not necessarily

encompass environmental contamination to the same extent as the hazardous waste regulations. As such, generators and facilities subject to these regulations may not be prepared for, or respond to, a release of a hazardous substance that contaminates the environment , but does not threaten human health (e.g., spills or leaks that are not in the vicinity of e mployees at the facility). On the other hand, the hazardous waste regulations require emergency

preparedness and response for any emergencies affecting human health or the environment.

 The HAZWOPER Standard for emergency response programs at 29 CFR 1910.120(p)(8) applies only

to generators of hazardous waste and permitted or interim

- status hazardous waste facilities. Hazardous waste generators and facilities are required to have an emer gency

response program or evacuation plan to address emergencies in the area where hazardous waste is stored or disposed of. As such, generators and facilities under the 2008 DSW final rule would not necessarily be subject to this standard (i.e., unless they otherwise qualify

as a hazardous waste generator or facility). Note, however, that generators and facilities under the 2008 DSW final rule would be subject to the HAZWOPER Standard at 29 CFR 1910.120(q). This standard requires an emergency response p rogram or evacuation plan if the facility requires an emergency

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- 7 release of a hazardous substance from personnel outside of the immediate area of the release (e.g., designated onsite personnel or offsite response agencies). 3.6 Personnel Tr aining The hazardous waste regulations require large quantity generators and storage facilitie s to provide recurrent training on emergencies , at a minimum. Small quantity generators must provide employe e familiarization. The 2008 DSW final rule does not require personnel training or familiarization . However, some generato rs and facilities under the 2008 DSW final rule may nonetheless qualify

as a hazardous waste generator or storage facility and therefore be subject to the hazardous waste regulations’ training re quirements. Portions of the hazardous waste regulations’ personnel training may be relevant to handling the excluded materials (e.g., familiarization on chemical hazards , emergency response ). In addition, other federal regulations require perso nnel training at generators and facilities under the hazardous waste regulations and the 2008 DSW final rule :
 CAA Chemical Accident Prevention Provisions. 40 CFR Part 68 sets forth training requirements for stationary sources (e.g., buildings, plants) that meet applicable criteria. Facilities with a process eligible for Program 1 (e.g., has not had accidental release of a regulated substance within the past five ye ars with off

- site consequences as specified) need not provide training. Facilities with a p rocess subject to Program 2 or 3 (e.g., has had accidental release of a regulated substance from a process within the past five years with off

- site consequences as specified) must provide recurring personnel training on operations and emergency procedures.

 CWA Oil Pollution Prevention. 40 CFR Part 112 requires a non

- transportation

- related facility that meets specified criteria to provide personnel training on topics , such as operation and maintenance of facility and equipment to prevent discharges, discharge procedure protocols, and elements of the SPCC Plan.

 Hazardous Materials Transportation Act (HMTA) Hazardous Materials Regulations (HMR). 49 CFR Part 172, Subpart H requires a facility that employ s “hazmat employees” to provide initial and recurrent training. The training must cover general awareness/familiarization, function

- specific training, safety, security awareness, and in

depth security. A hazmat employe e is a person who is involved in the transportation of Department of Transportation ( DOT ) hazardous materials as specified (e.g., loading, preparation for transportation, operation of a transportation vehicle).

 Osh Act. The Process Safety Management (P SM) Standard (29 CFR 1910.119) and Hazardous Waste Operations and Emergency Response (HAZWOPER) Standard (29 CFR 1910.120(p) and (q)) require facilities either to train their emplo yees on their emergency

response program or, if they have opted to develop an evacuation plan instead of an emergency

response program, they

must train their employees on evacuations. In addition, the Hazard Communication (HazCom) Standard (29 CFR 1910.1200) requires familiarization and training on emergency recognition, hazards, and protective measures. Each of the above regulations requires personnel training that is at least partially comparable to the hazardous waste regulations. However, it is likely that a number of generators and facilities under the 2008 DSW final rule wi ll not be subject to personnel training requirements that are fully comparable to the hazardous waste training requirements, as explained below:DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 8  Th e Chemical Accident Prevention P rovisions and Oil Pollution Prevention regulations apply to a targeted univ erse of facilities or activities, and hence, a number of generators and facilities under the 2008 DSW final rule may not be subject to them. Refer to paragraph 3. 5 , above, for additional discussion of the applicability criteria of these two federal regulat ions.

 The HMR requires training of “hazmat employees” (i.e., a person who is involved in the transportation of DOT hazardous materials as specified). In a number of cases, HMR training may

be at least partially comparable to training under the hazardous waste regulations, particularly

for small quantity

generators . However, the HMR training requirements are not as prescriptive as the hazardous waste regulations for large quantity generators and storage facilities; theref ore, it is uncertain that HMR training would address comparable topics as the hazardous waste regulations for large quantity generators and storage facilities. In addition, it is important to note that, if a facility employ s personnel that are not “hazmat ” emplo ye es, such emplo yees would not be required to receive HMR training. For example, some facilities use outside contractors to prepare and ship their hazardous secondary material off

- site.

 The PSM and HAZWOPER Standards require facilities to train their employees on emergencies. Facilities that have prepared an emergency response program must train employees on how to implement it. This would generall y be comparable to the hazardous waste training required of generators and storage facilities under the hazardous waste regulations . However, facilities that have opted to develop an evacuation plan instead of an emergency

response program are required to train employees on evacuations only

. Such training would not cover a number of elements required by the hazardous waste regulations particularl y for large quantity generators and storage facilities (e.g., use of emergency equipment, how to respond to fires and groundwater contamination).

 The HazCom Standard requires facilities to familiarize and train their employees on emergency

recognition, hazards, and protective measures. However, HazCom has limited training requirements with regard to emergency procedures. The employer must provide emplo ye es with training on recognizing hazardous incidents and how to evacuate during an emergency

. 42 Inthis regard, HazCom training may be comparable to training under the hazardous waste regu lations particularl y for small quantity generators
. However, the h azardous waste regulations require large quantity generators and storage facilitie s to provide more extensive training on emergencies (e.g., use of emergency equipment, how to respond to fires and groundwater contamination). These topics may be outside th e scope of a facility ’s HazCom training. 3.7 Reporting and Recordkeeping The hazardous waste regulations require generators and storage facilities to notify EPA to receive an EPA identification number. In addition, large quantity generators and storag e facilities must submit a Biennial Report describing their hazardous wastes and activities. The 2008 DSW final rule require s each generator and facility to submit an initial and biennial notification describing its hazardous secondary materials and activ ities under the exclusion.

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- 9 Therefore, the hazardous waste regulations and the 2008 DSW final rule include comparable initial and biennial notification requirements. In addition, the haz ardous waste regulations and DSW transfer

- based exclusion require gene rators and facilities to maintain specified information as necessary to demonstrate compliance. 3.8 Off

- site Transportation The hazardous waste regulations require the manifesting of all off

- site shipments (i.e., chain

- of

custody tracking of shipments) and compliance with applicable DOT regulations for packing, labeling, marking, and placarding of shipments . The DSW generator

- controlled exclusion does not include requirements for off

- site shipments (e.g., shipments from the generating site to a reclamat ion facility

owned by the same generator). The DSW transfer

- based exclusion includes requirements for packing , recordkeeping of shipments from the generator to the reclaimer , and transmittal of confirmation of receipt from the facility to the generator

. In addition, the DOT regulations set forth requirements for DOT hazardous materials in regard to the use of shipping papers, packing, labeling, marking, placarding, parking, and driving, among other things. The DOT regulations apply to all hazardous wastes , as well as other materials that qualify as a DOT “hazardous material.” 43 A material qualifies as a DOT hazardous material if it 1) is listed in the Table in 49 CFR 172.101 (e.g., compounds), 2) is listed in the Appendices to the Table in 172.101, 44 or 3) meets one or more of the hazard classifications (e.g., flammable liquid). Following is a further discussion of the DOT requirements regarding each exclusion under the 2008 DSW final rule :
 Generator

- Controlled Exclusion. Hazardous secondary materials und er the generator

controlled exclusion that qualify as a DOT hazardous material would be subject to comparable transportation requirements as hazardous waste in regard to packing, labeling, marking, placarding, parking and driving. Specificall y , the DOT re gulations apply similar to hazardous waste and other ty pes of DOT hazardous materials, such as excluded material, in regard to these activities. However, the excluded material would not be subject to comparable requirements for off

- site tracking. Under the DOT regulations, a shipping paper must accompany a shipment of DOT hazardous material. The shipper and transporter must keep a cop y , but the destination facility need not keep a copy or transmit a confirmation of receipt to the generator. Therefore, the generator would not know whether i ts excluded material reached the intended destination intact, as is required b y the hazardous waste manifest regulations.

 T ransfer

- B ased Exclusion. H azardous secondary materials under the transfer

- based exclusion that qualifies as a DOT hazardous material would be subject to comparable transportation requirements as hazardous waste in regard to packing, labeling, marking, placarding, parking , driving , and tracking

. Note that the transfer

- based exclusion requires recordkeeping of all off

- site shipments by

the generator and reclamation facility

43 All hazardous wastes are listed in Part 172 as DOT hazardous materialmaterialmaterial s mat erial and therefore are automatically subject to the DOT regulations as applicable. 44 A hazardous substance (including hazardous wastes and other substances) listed in the Appendices would be a DOT hazardous material subject to regulation if it exceeded its reportable quantity (RQ).DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 10 and a confirmation of receipt must be sent from the reclaimer to the generator. These recordkeeping and transmittal requirements are comparable to the hazardous w aste manifest requirements for chain

- of

- custody tracking and confirmation of receipt. In addition , it is important to note that excluded hazardous secondary materials under the generator
- controlled exclusion or transfer

- based exclusion that do not qualify as a DOT hazardous material would not be subject to comparable transportation requirements as hazardous waste in regard to packing, labeling, marking, placarding, parking or driving (or tracking, for ship ments under the generator

- controlled exclusion). T hat is, an excluded material would not be a DOT hazardous material subject to regulation if it is not listed in the Table in 49 CFR 172.101, is not listed in (or otherwise does not exceed its reportable quantity in) the Appendices to the table, and does no t meet any hazard classifi cation

. Further, a hazardous secondary material (or its constituents) might be captured in Part 172 as a hazardous waste and as a non - waste, but these designations might carry different RQs. An RQ determines whether a hazardous waste or other substance is a DOT hazardous material (i.e., if the substance exceeds its RQ, it is a DOT hazardous material). If the material’s RQ is lower as a hazardous waste than as a non

- waste, then a greater quantity of material is needed for it to exceed its RQ as a non

- waste. This could result in some excluded materials not triggering their RQs under the exclusions and therefore not being a DOT hazardous material subject to regulation. 3.9 Exports The hazardous waste regulations require an export er of hazardous waste to perform notice

- and

consent activities prior to export, submit an annual report summarizing export activities, and keep records. The generator
- controlled exclusion does not inclu de requirements for exports. This is because the ex clusion requires that the material be generated and reclaimed within the U.S. and territories. The transfer

- based exclusion al lows generators to export excluded material and requires them to perform notice

- and

- consent, annual reporting, and recordkeeping. Therefore, the hazardous waste regulations and transfer

- based exclusion include generally comparable export requirements. 3.10 Regulation of Residues The haz ardous waste regulations state that any material derived from a listed hazardous waste is also a listed hazardous waste. This is called the “derived

- from” rule. It means, for example, that residues from the reclamation of a listed hazardous waste are listed hazardous waste. The generator

- c ontrolled exclusion does not address how residues from the reclamation process should be managed under the regulations and is therefore not comparable to the hazardous waste regulations in this regard

. The transfer

- based exclusion states that residuals must be managed as hazardous waste if they exhibit a characteristic or are listed. Hence, the derived

- from’ rule does not apply to the residuals from the reclamation of hazardous secondary materials under the exclusion. This means that re siduals are a new point of generation for the purposes of applyingthe hazardous waste determination requirements of 40 CFR 262.11. If the residuals exhibit a hazardousDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 11 characteristic, or they

themselves are a listed hazardous waste, they would be conside red hazardous wastes (unless otherwise exempted) and would have to be managed accordingly . I f they did not exhibit a hazardous characteristic, or were not themselves a listed hazardous waste, they would need to be managed in accordance with applicable stat e or federal requirements for non - hazardous wastes. The se provisions on residuals under the transfer

- based exclusion are intended to clarify that residuals from reclamation are subject to waste characterization requirements and cannot simply be discarded a s non - hazardous waste. However, designating the residuals as a new point of generation raises the possibility that a residual containing a listed waste might not be determined to be a hazardous waste . As a result, such wastes could exit Subtitle C regulation, contrary to the intent of the derived

- from rule. 3. 11 Security 45 The hazardous waste regulations require storage facilities to prevent the unknowing and unauthorized entry of persons and livestock onto the active portion of the facility . The transfer

based exclusion does not address security at facilities. 3. 12 Financial Assurance The hazardous waste regulations and transfer

- based exclusion require facilities to have and maintain a cost estimate and obtain financial assurance for closure. In additio n, facilities must have and maintain liability coverage for sudden accidental occurrences and, if applicable, non sudden accidental occurrences. A variety of financial instruments are identified for these purposes (e.g., trust fund, surety bond). Therefo re, the haz ardous waste regulations and transfer

based exclusion have comparable financial assurance requirements for closure and accidental occurrences . 3. 13 Requirement for a Permit The hazardous waste regulations require sto rage facilities to obtain a h azardous waste permit that includes requirements for facility design, construction, operation, closure, and post

- closure care, as applicable. The transfer

- based exclusion requires facilities either to obtain a RCRA permit and manage hazardous secondary materials in the permitted units or comply with its conditions and pass an audit b y the generator s. Generators must make reasonable efforts to ensure that their hazardous secondary

material s will be safely

and legitimatel y managed and reclaimed

. The RCRA permit and transfer

- based exclusion share some key similarities , but there also are some key differences . Examples include the following:

 Similarities. A hazardous waste permit and transfer

- based exclusion impose requirements on facilities to ensure protective operation (e.g., permit requirements, exclusion conditions). In addition, a hazardous waste permit and the transfer

- based exclusion rely

on similar processes for compliance assurance (e.g., state inspections and reviews of facility submittals). Whereas a state may inspect storage facilities more often than facilities under the exclusion, the exclusion requires generator audits to supplement

45 Paragraphs 3.11 through 3.1 4 describe the comparative findings presented in Table 3 for storage facilities under the hazardous wa ste regulations and intermediate/reclamation facilities under the transfer

- based exclusion. T he issues discussed in these paragraphs (e.g., security , financial assurance ) do not apply to generators of hazardous wa ste or hazardous secondary materials, and hen ce, they are not addressed in Tables 1 or 2 or in these paragraphs

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- 12 the state’s compliance oversight and assure compliance. Finall y, a hazardous waste permit and the transfer

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

- sudden occurrences.

 Differences. A hazardous waste permit can be revoked or denied to prevent fa cility operation. Under the transfer

- based exclusion , a generator audit does not result in denial of the ability

to operate. However, a generator must not send its materials to a facility that fails its audit, essentially den yi ng the facility the ability to manage the materials under the exclusion. In addition, states have a lead role in administering the hazardous waste permitting and enf

orcement process. Under the transfer

- based exclusion , states and generators both have important roles to evaluate facility compliance. 3. 14 Public Involvement The hazardous waste regulations require st orage facilities to undergo the hazardous waste permitting process, which includes public involvement (e.g., public notice and comment on draft permit s ). Under the transfer

- based exclusion , a permit is not needed for storage of excluded materials . As a result, the facility could operate and store the materials under the exclusion without public involvement. 4. Comparative Tables Following are tables that compare federal regulations applicable to 1) generators and permitted storage facilities o perating under the federal hazardous waste regulations and 2) generators, intermediate facilities, and reclamation facilities operating under the 2008 DSW final rule . The purpose of the comparison is to determine if the federal regulations applicable to g enerators and facilities operating under the 2008 DSW final rule are comparable to the federal regulations applicable to hazardous waste generators and permitted storage facilities operating under the federal hazardous waste regulations. Three tables are presented:

 Table 1 compares the federal regulations applicable to generators of hazardous waste and generators of hazardous secondary material under the generator

- controlled exclusion.

 Table 2 compares the federal regulations applicable to generators of hazardous waste and generators of hazardous secondary material under the transfer

- based exclusion.

 Table 3 compares the federal regulations applicable to hazardous waste storage facilities and hazardous secondary material intermediate and reclamation facilities under the transfer

- based exclusion.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 1. Legitimate Recycling HW Rs : EPA has issued policy statements to clarify

legitimate recycling (e.g., in Federal Register notices). In addition, respondents in an enforcement action who raise a claim that a certain material is not a solid waste must demonstrate that there is a known market or disposition for the material and that they meet the terms of the exclusion or exemption, as specified. (40 CFR 261.2(f)) GCE : Reclamation of the material must be legitimate, as specified at §260.43 (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)(v)). Section 260.43 spells out the legitimacy

criteria that must be met. EPA has set forth criteria for determining legitimate recycling under the HWRs and DSW rule. The DSW rule codifies these criteria for the exclusions, which provides greater clarity

and enforceability

. 2. Storage Time Limit HW Rs : LQG cannot accumulate waste onsite for more than 90 day s without a permit or being in compliance with the interim status standards. (40 CFR 262.34) HW Rs : SQG cannot accumulate waste onsite for more than 180 or 270 day s without a permit or being in compliance with the interim status standards and must not exceed 6,000 kg onsite. (40 CFR 262.34) GCE : Generator must recycle (or ship for recycling) 75% of the hazardous secondary material within 1 calendar ye ar and meet other criteria as specified. (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)(iii)) The GCE allows generators to accumulate hazardous secondary material onsite for longer periods of time than the HWRs. In addition, the GCE does not include a quantity l imit for onsite accumulation, as does the HWRs for SQGs.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 3. Containment HW Rs : Generator must meet design, operating, inspection, and closure standards for containers, tanks, and containment buildings. (40 CFR 262.34 and Part 265, Subparts I, J, and DD) GCE : Hazardous secondary material must be contained. (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)(i)) The HWRs and GCE require containment of hazardous secondary material in the unit. The HWRs prescribe design, operating, and other standards for containment, whereas the GCE does not. As such, the GCE allows more flexibility

in how hazardous secondary

materials can be contained. This could result in more or less effective containment than the HWRs, depending on the containment methods used by the generator un der the exclusion.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 4. Air Emissions HW Rs : LQGs must comply

with standards to control air emissions. These include standards for the design, operation, monitoring, testing, and recordkeeping of:
 Process vents associated with specified treatment technologies (40 CFR Parts 264 and 265, Subpart AA);
 Equipment leaks (40 CFR Parts 264 and 265, Subpart BB); and
 Emissions from tanks, surface impoundments, and containers (40 CFR Parts 264 and 265, Subpart CC). HW Rs : No air emission standards for SQGs. GC E : Hazardous secondary material must be contained. (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)(i)) The HWRs and GCE require containment of hazardous secondary material in the unit. The HWRs prescribe design, operating, and other standards for control of air emissions, whereas the GCE does not. As such, the GCE allows more flexibility in how hazardous secondary materials can be contained. This could result in more or less effective containment than the HWRs, depending on the containment methods used by the generator under the exclusion. In addition, see “Other Federal Regulations” below for additional discussion.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) Other Federal Regulations: CAA (Air Emission Standards): The states and EPA issue operating permits to certain “major” stationary sources of hazardous air pollutants (HAPs) under 40 CFR Parts 70 and 71. A major source is a source that emits more than 10 tons per year (TPY) of an y single HAP or more than 25 TP Y of HAPs in total. A limited number of smaller sources (e.g., “area” sources) also may be required to obtain a permit under the federal program. In addition, EPA has established technical standards for the control of air emissions from stationary sources, which permit writers include in a permit to control emissions as appropriate. Some of these standards could address air emissions from process vents, equipment leaks, tanks and other units. Potentially applicable standards can be found in various p arts of 40 CFR, such as:  Part 60: “Standards of Performance for New Stationary Sources (NSPS).” This part regulates emissions from stationary sources of criteria pollutants for which EPA has established National Am bient Air Quality Standards (NAAQS); and
 Part 63: “National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Categories.” This part regulates emissions of hazardous air pollutants (HAPs) from source categories. These parts set forth design, operating, monitoring, testing, a nd/or recordkeeping standards, as specified. The federal CAA permitting and technical standards could potentially

address air emissions from process vents, equipment leaks, and/or storage units at some of the facilities operating under the GCE. These CAA standards include comparable types of controls as the HWRs, e.g., design, operating, and monitoring. However, the CAA permitting and technical standards under the federal program would not apply to facilities that:

 Have emissions below specified thresholds (e.g., emit less than 10 TPY of any single HAP or 25 TPY of HAPs in total); or
 Do not meet other applicability criteria (e.g., are not in a regulated industry).DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 5. Emergency Preparedness and Response HW Rs: LQGs must:
 Have emergency equipment (e.g., alarms, fire protection, spill containment);
 Designate an emergency coordinator; and
 Have an emergency plan to address any release or other emergency, and emergency procedures for:

- Notifying onsite and offsite personnel;

- Controlling the emergency (e.g., identifying, assessing and containing the release); and

- Taking other actions as specified (e.g., ensuring proper management of recovered material). (40 CFR 262.34 and Part 265, Subparts C and D) HW Rs: SQGs must:
 Have emergency equipment (e.g., alarms, fire protection, spill containment);
 Designate an emergency coordinator; and
 Respond to any emergency (e.g., extinguish fires, contain and clean up releases, notify offsite emergency personnel as applicable). (40 CFR 262.34 and Part 265, Subpart C) GCE : No comparable provisions The GCE does not include provisions on emergency preparedness and response. However, materials under the GCE that are no longer contained in a unit (i.e., released) and not immediately

recovered would no longer be excluded. They would need to be cleaned up and be subject to Subtitle C regulation if hazardous, including the HWR preparedness and response requirements, as applicable. In addition, see “Other Federal Regulations” below for additional discus sion.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) Other Federal Regulations: CAA (Chemical Accident Prevention) : A facility that is a stationary

source that has more than a threshold quantity

of a “regulated substance” in a process (e.g., storage) must develop and implement a risk management program, including a Risk Management Plan (RMP). Facilities with a proces s subject to Program 2 or 3 (e.g., a process that has had an accidental release within the past five ye ars with offsite consequences as specified) must prepare an emergency response program that includes an emergency plan (e.g., procedures for notifying of fsite parties, providing medical treatment, responding to an accidental release), emergency response equipment, and personnel training. However, a facility

whose employees will not respond to the release need not prepare an emergency

response program if it makes alternative arrangements. It must either be included in its community

emergency

response plan or coordinate response actions with the local fire department. There also must be a mechanism for notifying emergency responders. Note that the Chemi cal Accident Prevention provisions list 140 toxic and flammable regulated substances subject to regulation, with threshold quantities ranging from 500 to 20,000 pounds. (40 CFR Part 68.) The Chemical Accident Prevention provisions for an emergency

resp onse program set forth generally

comparable elements as the HWRs for SQG and LQG preparedness and prevention (e.g., an emergency plan, emergency

equipment, and coordination with offsite responders). The provisions for alternative arrangements are not co mparable to the HWRs for L QGs or SQGs. They do not require emergency equipment, an emergency plan, or basic efforts b y onsite personnel to control the emergency

(e.g., extinguishing a fire). Note that a generator would be subject to the Chemical Accident Prevention provisions if it hasDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) more than a threshold quantity of a Part 68

- regulated substance in a process (e.g., storage). Only a subset of these facilities (e.g., those subject to Program 2 or 3) would be required to have an emergency

response or eva cuation plan. CERCLA/EPCRA (Emergency Notification) :
 A generator must immediately notify the National Response Center (NRC) of a release of a CERCLA hazardous substance (including hazardous waste) equal to or exceeding its reportable quantity in any 24

-hour period. (40 CFR Part 302)
 A generator must immediately notify the NRC and local/state officials of a release of a reportable quantity of any extremely hazardous substance (EHS) or CERCLA hazardous substance (including hazardous waste). (40 CFR Part 355) These CERCLA/EPCRA provisions require notification to offsite personnel as do the HWRs. These notification provisions could effectivel y address some emergencies (e.g., if local responders respond immediatel y and control the emergency , such as loc al fire or hazmat personnel). However, they

do not require emergency

equipment, onsite coordination, or basic efforts to control an emergency

(e.g., containing and cleaning up the release). Therefore, theseDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) provisions are not comparable to the HWRs for p reparedness and response. CW A (Oil Pollution Prevention) : A generator that is a “non

- transportation

- related facility” that could reasonably

be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities and that meets other applicability criteria must perform emergency planning and response for oil discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan. The SPCC Plan must address such elements as discharge prevention measures; countermeasures for discharge discovery , response, and cleanup; personnel re sponsibilities (e.g., for addressing discharges); and plans and procedures for responding to discharges. (40 CFR Part 112) The SPCC requirements set forth generall y comparable elements as the HWRs for emergency preparedness and response for oil dischar ges. This includes emergency

equipment, personnel responsibilities for addressing discharges, training, and emergency

plans/procedures (e.g., countermeasures for discharge response and cleanup, notification to offsite agencies/personnel). A generator must prepare a SPCC Plan if it meets specified applicability

criteria (e.g., a non

transportation

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

be expected to discharge petroleum

- basedDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) solvents to navigable waters or adjoining shorelines in quantities that may be harmful). These criteria would not appl y t o certain ty pes of generators (e.g., sites that are not near navigable waters, do not generate/store oil

- related substances, or meet minimum storag e capacity thresholds). OSH Act (Process Safety Management) : A facility that has a process (e.g., use, storage, handling) which involves a “highl y hazardous chemical” at or above specified quantity must have an evacuation plan for the entire plant addres sing evacuation procedures, alarm sy stems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed b y facility personnel who remain to operate critical equipment before evacuation. The facility also would need t o handle small releases. Highly hazardous chemicals include toxic and reactive highl y hazardous chemicals which present a potential for a catastrophic event at or above the threshold quantity . (29 CFR 1910.38 and 1910.119) The Process Safety Management p rovisions require generally comparable elements as the HWRs for SQG preparedness and response. The evacuation plan must include onsite response coordination, offsite notification, alarms, and handling of small releases. However, the PSM provisions are no t generally comparable to the HWR requirements for LQG preparedness and response. The PSM provisions do not require a plan for the facility

toDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

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

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

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

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

response program if it is required b y EPA or state to have its employees engage in emergency response or if it directs its employees to engage in emergency response. Generators must prepare emergency

response program that includes an emergency response plan (e.g., personnel roles, coordination with outside parties, emergency

alerting and response, emergency equipment), training for emergency

respon se employees, and procedures for handling emergency

incidents (e.g., alarms). (29 CFR 1910.120(p)(8)) Section 1910.120(p)(8) does not apply to sites that are not hazardous waste generators or TSDFs. Facilities that do not qualify as a hazardous waste generator would not be subject to section 1910.120(p)(8). However, some generators under the GCE may nonetheless qualify

as an L QG or SQG based on the quantity of hazardous waste generated and be subject to sectio n 1910.120(p)(8). Portions of the emergency response program under sectionDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs)
If the generator will evacuate emplo yees and will not allow them to assist in the response, it need not prepare a response program. Rather, it must prepare an evacuation plan for the entire plant. The plan must address evacuation procedures, alarm sy stems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed b y facility personnel who remain to operate critical equipment before evacuation. The generator also would need to have procedures for handling small releases. (29 CFR 1910.38 and 1910.120(p)(8)) 1910.120(p)(8) could apply to excluded materials at such a site (e.g., availability of emergency response equipment, such as absorbent, if needed). Note that the emergency

response requirements under 1910.120(p)(8) are comparable to the requirements at 1910.120(q), which are presented below. Refer to the “Note” below for additional discussion. OSH Act (Hazardous Waste Operations and Emergency Respo nse (HAZWOPER)) : A facility is required to establish an emergency response program if it has employees who are responsible for emergency

response operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous waste) without regard to the location of the hazard (e.g., any where at the facility), such as designated response employees. The program must include an emergency

response plan (e.g., personnel roles, emergency equipment, and coordination with outside parties, emergency alerting and response), training for emergency response employees, and procedures for handling emergency incidents. (29 CFR 1910.120(q)) If the facility

will evacuate employees and will not allow employees to assist in res ponse, it need not prepare an emergency response plan. It must prepare an evacuation plan for the entire plant. The HAZWOPER regulations require generally

comparable elements as the HWRs for LQG and SQG preparedness and response. Th is includes, for example, an emergency

response plan, emergency

equipment, and onsite coordination of emergency responses. In addition, the evacuation plan isDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) The plan must address evacuation procedures, alarm sy stems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed b y facility personnel who remain to operate critical equipment before evacuation. (29 CFR 1910.38 and 1910.120(q)) generall y comparable to the HWR requirements for SQG preparedness and response. The evacuation plan must include onsite response coordination, offsite notification, and alarms. However, the evacuation plan is not comparable to the HWR requirements for LQG preparedness and response. The plan does not include sufficient procedures for the facility to address (e.g., control) emergency

. Note that section 1910.120(q) would not apply

to generators under the GCE unless they have onsite response personnel, as specified. OSH Act (Hazard Communication): Facilities must provide information to their employees about any chemical (except hazardous waste) which is a phy sical or health hazard to which they are exposed, by

means of a hazard communication program, labels and other forms of warning, material safe ty

data sheets, and information and training (e.g., hazards detection, emergency procedures). Hazardous wastes are exempt from these provisions. (29 CFR 1910.1200). A generator under the GCE would be subject to the Hazard Communication Standard (HazCom ) for an y excluded material and other chemicals thatDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) pose a ph ys ical or health hazard. (A generator of hazardous waste would not be subject to 1910.1200 for its hazardous waste, but for non - waste chemicals.) However, the HazCom provisions do not require emergency equipment, coordination with offsite personnel, or basic actions to control an emergency . Rather, they require information sharing and training. As such, these provisions are not comparable to the HWR requirement for LQG or SQG preparedness and response.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 26 Table A
- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 6. Personnel Training HW Rs : LQGs must provide personnel training and SQGs must provide familiarization on emergency response and job duties. At a minimum, this must address emergency procedures. LQGs must provide recurrent training. (40 CFR 262.34 and 265.16) GCE : No comparable provisions. The GCE does not include provisions on personnel training. However, some generators under the exclusion may

nonetheless qualify as a LQG or SQG based on the quantity

of hazardous waste they generate durin g the month and therefore be subject to the HWR. Portions of the HWR personnel training may

be relevant to handling the excluded materials (e.g., familiarization on chemical hazards). In addition, see “Other Federal Regulations” below for additional disc ussion. Other Federal Regulations: CAA (Chemical Accident Prevention) : A facility that is a stationary

source that has more than a threshold quantity

of a “regulated substance” in a process (e.g., storage) must develop and implement a risk management program, including a Risk Management Plan (RMP). Facilities with a proc ess eligible for Program 1 (e.g., has not had accidental release of a regulated substance within the past five years with offsite consequences as specified) are not required to The Chemical Accident P revention provisions require facilities in Program 2 and 3 to provide recurring personnel training on job operations and emergency

procedures. TheseDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) provide training. Generators with a process subject to Program 2 or 3 (e.g., h as had accidental release of a regulated substance from a process within the past five years with offsite consequences as specified) must provide recurring personnel training on operations and emergency

procedures. (40 CFR Part 68) topics are generall y comparable to those required b y the HWRs for LQG and SQG training. A generator wou ld be subject to the Chemical Accident Prevention provisions if it has more than a threshold quantity

of a Part 68

- regulated substance in a process (e.g., storage). Note that only a subset of these facilities would need to provide training (i.e., faciliti es in Program 1 are exempt from training requirements). Note that Part 68 lists 140 toxic and flammable regulated substances, with threshold quantities ranging from 500 to 20,000 pounds. CW A (Oil Pollution Prevention) : A generator that is a “non

- transpo rtation

- related facility” that could reasonably

be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities and that meets other applicability criteria must perform emergency planning and response for oil discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan. The Plan must provide for personnel training on topics such as operation and maintenance of facility

and equipment to prevent discharges, discharge procedure protocols, and A generator’s SPCC Plan would address comparable topics as the HWRs for ongoing personnel training for oil. This includes operation and maintenance of the facility and equipment, dischargeDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 28 Table A
- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) elements of the Plan. (40 CFR Part 112) procedures, and how to carry out the SPCC Plan. A generator must prepare a SPCC Plan if it meets the specified applicability

criteria (e.g., a non

transportation

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

be expected to discharge petroleum

- based solvents to navigable waters or adjoining shorelines in quantities that may be harmful). HMTA (Hazardous Materials Transportation): A generator would be subject to regulation under the HMTA (including the personnel training requirements as applicable) if it transported, or offered for transportation, a DOT hazardous material, i.e., a material that 1) is listed in the Table in 49 CFR 17 2.101 (e.g., compounds), 2) is listed in the Appendices to the Table in 172.101, or 3) meets one or more of the hazard classifications (e.g., flammable liquid). Part 172 provides that all RCRA hazardous wastes are DOT hazardous materials, as specified. A hazardous secondary

material excluded from the definition of solid waste is neither a solid nor hazardous waste; therefore, it would not qualify as a DOT hazardous material on the basis of being a hazardous waste. Rather, an excluded material would qual ify as a DOT hazardous material if it is otherwise listed in Part 172 (e.g., as a compound or element) or meets a hazard Generator s under the GCE that employ hazmat employees must train them on a recurrent basis as required b y 49 CFR Part 172, Subpart H. The training must address function

- specific, safety and emergency

response topics, among other things. These topics are generally comparable to the topics required b y the HWRs forDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 29 Table A
- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) class. It is possible that some excluded materials will not qualify as a DOT hazardous material. This includes material that is not l isted and does not meet any hazard class. A generator that emplo ys “hazmat employees” must provide initial and recurrent training. A hazmat employee is a person who is involved in the transportation of DOT hazardous materials as specified (e.g., loading, preparation for transportation, operation of a transportation vehicle). The training must cover general awareness/familiarization, function

- specific training, safety, security awareness, and in

- depth security. In particular, the safety training must include emergency

response information (i.e., information that can be used in the mitigation of an incident involving hazardous materials, such as health hazards, risks of fire/explosions, methods for handling fires/spills). (49 CFR 172, Subpart H) LQG and SQG training as they pertain to transportation

- related activities. Generators whose employees are not involved in transportation activities (e.g., because they do not make offsite shipments, contractors are used to prepare/transport the material, or the material is not DOT hazardous material) would not qualify as hazmat employees and not receive such training. OSH Act (Process Safety Management) : A generator that has a process (e.g., use, storage, handling) which involves a “highly hazardous chemical” at or above specified quantity must provide initial and refresher training of personnel involved in operating a process (e.g., job

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

- related operations and emergencies. These topics are generall y comparable to the topics required b y the HWRs for LQG and SQG training. A generator must comply withDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 30 Table A
- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) these regulations if it meets the specified applicability

criteria (e.g., a generator that accumulates a highl y hazardous chemical onsite above its threshold quantity). OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)) : Generators must have an emergency response program if it is required by EPA or state to have its employees engage in emergency

response or if it directs its employees to engage in emergency

response. The program must include training on emergency

response (e.g., elements of the response plan, standard operating procedures, and procedures for handling emergency

incidents). These provisions appl y to hazardous waste generators and TSDFs only . (29 CFR 1910.120(p)(8)) Section 1910.120(p)(8) does not apply to sites that are not hazardous waste generators or TSDFs. Under the GCE, generators that do not otherwise qualify

as a hazardous waste generator would not be subject to section 1910.120(p)(8). Section 1910.120(p)(8) applies only to hazardous waste generators and TSDFs. On the other hand, generators under the exclusion that continue to be L QGs or SQGs under the HWRs would be subject to section 1910.120(p)(8). Some of the training topics under the section 1910.120(p)(8) cou ld be relevant to the excluded material. These provisions require training onDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) operating and emergency procedures. These topics are generall y comparable to the topics required b y the HWRs for SQG training. However, these provisions do not require recurre nt training, as do the HWRs for LQG training. Therefore, they are not comparable to the HWRs for LQG training. OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)) : A facility is required to establish an emergency response program if it has employees who are responsible for emergency

response operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous waste) without regard to the location of the hazard (e.g., any where at the facility). The facility ’s program must provide initial and recurrent training as relevant to personnel responsibilities (e.g., first responder, on scene incident commander). This includes, for example, hazard detection, responsibilities for emergency response, and s afety. (29 CFR 1910.120(q)) The HAZWOPER regulations require initial and recurrent training on hazard detection, emergency

response, and safety, among other things. These topics are comparable to the topics required b y the HWRs for LQG and SQG training , as it relates specificall y to emergency response personnel. A generator must comply

with these regulations if it meets the specified applicability

criteria (e.g., a generator that hasDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 32 Table A
- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) employees responsible for responding to onsite releases regardless of location). OSH Act (Hazard Communication): Employers must provide information to their employees about an y chemical which is a physical or health hazard to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and inform ation and training. Employees must be informed of operations in their work area where hazardous chemicals are present, among other things. Emplo ye e training must include methods and observations for detecting releases, hazards in the work area, and measures employees can take to protect themselves (e.g., emergency procedures). (29 CFR 1910.1200) The Hazard Communication Standard (HazCom) requires familiarization and training on emergency

recognition, hazards, and protective measures, which is comparabl e to the topics of HWR training for SQGs. However, they are somewhat less rigorous than the HWR training requirements for LQGs. There is no schedule for follow

- up training under HazCom. Therefore, HazCom training is not comparable to the HWRs for L QG tr aining. A generator must comply with these regulations for any chemicals which could pose a phy sical or health hazard in the work place, except for hazardousDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) waste. Generators would be subject to these requirements for their excluded materials, as well as other chemicals that are not hazardous waste (e.g., chemical products).DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 34 Table A
- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 7. Reporting and Recordkeeping HW Rs : Reporting to EPA on waste management activities:
 Notification (40 CFR 262.12)
 Biennial report for LQGS only (40 CFR 262.41)
 Exception report (40 CFR 262.42) HW Rs : Recordkeeping for three ye ars (40 CFR 262.40) GCE : Initial and Biennial notifications (40 CFR 260.42) The HWR and GCE have comparable requirements for initial and biennial submittals in regard to frequency

and ty pes of information s ubmitted. However, the GCE biennial notification requirement applies to generators regardless of size. The HWR’s biennial reporting requirement applies only

to LQGs. The GCE does not require exception reporting or recordkeeping. 8. Offsite Transportation HW Rs : Shipments must be manifested (40 CFR 262, Subpart B) and comply

with DOT requirements for packing, labeling, marking, and placarding (40 CFR 262.30

- .33) GCE : No comparable provisions The GCE does not include transportation. See “Other Federal Regulations” below for additional discussion. Other Federal Regulations: HMTA : A generator would be subject to regulation under the HMTA if it transported, or offered E xcluded materials qualifying as aDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 35 Table A
- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) for transportation, a DOT hazardous material, i.e., a material that 1) is listed in the Table in 49 CFR 172.101 (e.g., compounds), 2) is listed in the Appendices to the Table in 172.101, or 3) meets one or more of the hazard classifications (e.g., flammabl e liquid). RCRA hazardous wastes are DOT hazardous materials because they are listed in Part 172. A hazardous secondary

material excluded from the definition of solid waste is neither a solid nor hazardous waste; therefore, it would not qualify as a DO T hazardous material on the basis of being a hazardous waste. Rather, an excluded material would qualify as a DOT hazardous material if it is otherwise listed in Part 172 (e.g., as a compound or element) or meets a hazard classification. It is possible that some excluded materials will not qualify as a DOT hazardous material. This includes a hazardous secondary material that is not listed and does not meet any hazard class. Shipments of DOT hazardous materials (including hazardous waste) must comply w ith applicable transportation provisions. This includes, for example, the regulations for shipping papers (or manifest), packing, labeling, marking and placarding (49 CFR Parts 171

- 180), as well as requirements for driving and parking (49 CFR Part 397). DOT hazardous material would be subject to transportation requirements comparable to hazardous waste, except for tracking of shipments. Under the HWRs, a manifest is required to track the waste from generator to designate d facility

and a confirmation of receipt is sent from the facility

to the generator. The hazardous materials regulations do not require transmittal of confirmation. Note that some excluded materials may not qualify

as a DOT hazardous material. They woul d not need to be transported in accordance with the hazardous materials regulations. 9. Exports HW Rs : Reporting under 40 CFR Part 262, Subpart E or H:
 Perform notice and consent
 Submit annual report GCE : No comparable provisions for exports. The GCE does not include comparable provisions for notice and consent for exports. This is becauseDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs)

 Keep records the exclusion requires that the material be generated and reclaimed within the U.S. and territories. 10. Regulation of Residues HW Rs : Derived

- from rule applies to residues from reclamation (40 CFR 261.3(c)) GCE : No comparable provisions The GCE does not include generator regulations for residues from reclamation.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 37 Table A
- 1. Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generat ors of

Hazardous Secondary Materials under DSW Generator
- Controlled Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Generator
Controlled Exclusion (GCE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 11. Enforcement and Compliance HW Rs : EPA’s National Program Manager (NPM) Guidance for Fiscal Year 2010 provides that the EPA Regions and states must annually inspect at least 20% of the L QG universe, so that the entire universe is inspected in five ye ars. HW Rs : No comparable guidance. GCE :DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 1. Legitimate Recycling HW Rs : EPA has issued policy statements to clarify

legitimate recycling (e.g., in Federal Register notices). In addition, respondents in an enforcement action who raise a claim that a certain material is not a solid waste must demonstrate that there is a known market or disposition for the material and that they meet the terms of the exclusion or exemption, as specified (40 CFR 261.2(f)). TBE : Reclamation of the material must be legitimate, as specified at §260.43 (261.4(a)(24)(iv)). Section 260.43 spells out the legitimacy

criteria that must be met. Generator must perform reasonable efforts to ensure proper and legitimate recycling by

reclaimer, as specified (40 CFR 261.4(a)(24)(v)(B)) EPA has set forth consistent criteria on legitimate recycling under th e HWR and DSW rule. The DSW rule codifies these criteria for the exclusions, which provides greater clarity and enforceability. In addition, a generator’s reasonable efforts under the TBE reinforce the criteria and encourage compliance by reclaimers.

2. Storage Time Limit HW Rs : LQG cannot accumulate waste for more than 90 day s without a permit or being in compliance with the interim status standards. (40 CFR 262.34) HW Rs : SQG cannot accumulate waste for more than 180 or 270 day s without a permit or being in compliance with the interim status standards; must not exceed 6,000 kg onsite. (40 CFR 262.34) TBE : Generator must recycle (or ship for recycling) 75% of the hazardous secondary material within 1 calendar ye ar and meet other criteria as specified. (261.4(a)(24)(i)) The TBE allows generators to accumulate hazardous secondary material onsite for longer periods of time than the HWRs. In addition, the TBE does not include a quantity limit for onsite accumulation, as does the HWRs for SQGs.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 39 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 3. Containment HW Rs : Generator must meet design, operating, inspection, and closure standards for containers, tanks, and containment buildings. (40 CFR 262.34 and Part 265, Subparts I, J, and DD) TBE : Hazardous secondary material must be contained (40 CFR 261.4(a)(24)(v)(A)) Both the HWRs and TBE require containment of hazardous secondary material in the unit. The HWRs prescribe design, operating, and other standards for containment, whereas the TBE does not. As such, the TBE allows greater flexibility in how hazardous secondary materials can be contained. This could result in more or less effective containment than the HWRs, depending on the containment methods used by the generator under the exclusion.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 40 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 4. Air Emissions HW Rs : LQGs must comply

with standards to control air emissions. These include standards for the design, operation, monitoring, testing, and recordkeeping of:
 Process vents associated with specified treatment technologies (40 CFR Parts 264 and 265, Subpart AA);
 Equipment leaks (40 CF R Parts 264 and 265, Subpart BB); and
 Emissions from tanks, surface impoundments, and containers (40 CFR Parts 264 and 265, Subpart CC). HW Rs : No air emission standards for SQGs. TBE : Hazardous secondary material must be contained. (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)(i)) The HWRs and TBE require containment of hazardous secondary material in the unit. The HWRs prescribe design, operating, and other standards for containment of air emissions, whereas the TBE does not. As such, the TBE allows more fle xibility in how hazardous secondary materials can be contained. This could result in more or less effective containment than the HWRs, depending on the containment methods used by the generator under the exclusion. In addition, see “Other Federal Regulat ions” below for additional discussion. Other Federal Regulations: CAA: The states and EPA issue operating permits to certain “major” stationary sources of hazardous air pollutants (HAPs) under 40 CFR Parts 70 and 71. A major source is a source that emits more than 10 tons per year (TPY) of any single HAP or more than 25 TP Y of HAPs in total. A limited number of smaller sources (e.g., “area” sources) also may be required to obtain a permit under the federal program. The federal CAA permitting and technical standards could potentially address air emissions from process vents, equipment leaks, and/or storage units at some of the facilitiesDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 41 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) In addition, EPA has established technical standards for the control of air emissions from stationary sources, which permit writers include in a permit to control emissions as appropriate. Some of these standards could address air emissions from process vents, equipment leaks, tanks and other units. Potentially applicable standards can be found in various p arts of 40 CFR, such as:
 Part 60: “Standards of Performance for New Stationary Sources (NSPS).” This part regulates emissions from stationary sources of criteria pollutants for which EPA has established National Am bient Air Quality Standards (NAAQS); and
 Part 63: “National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Categories.” This part regulates emissions of hazardous air pollutants (HAPs) from source categories. These parts set forth design, operating, monitoring, testing, a nd/or recordkeeping standards, as specified. operating under the TBE. These CAA standards include comparable ty pes of controls as the HWRs, e.g., design, operating, and monitoring. However, the CAA permitting and technical standards under the federal program would not appl y to facilities that:

 Have emissions below specified threshol ds (e.g., emit less than 10 TPY of any single HAP or 25 TPY of HAPs in total); or
 Do not meet other applicability criteria (e.g., are not in a regulated industry).DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 42 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 5. Emergency Preparedness and Response HW Rs: LQGs must:
 Have emergency equipment (e.g., alarms, fire protection, spill containment);
 Designate an emergency coordinator; and
 Have an emergency plan to address any release or other emergency, and emergency procedures for:

- Notifying onsite and offsite personnel;

- Controlling the emergen cy (e.g., identifying, assessing and containing the release); and

- Taking other actions as specified (e.g., ensuring proper management of recovered material). (40 CFR 262.34 and Part 265, Subparts C and D) HW Rs: SQGs must:
 Have emergency equipment (e. g., alarms, fire protection, spill containment);
 Designate an emergency coordinator; and
 Respond to any emergency (e.g., extinguish fires, contain and clean up releases, notify offsite emergency personnel as applicable). (40 CFR 262.34 and Part 265, Subpart C) TBE : No comparable

provisions The TBE does not include provisions on emergency

preparedness and response. However, materials under the TBE that are no longer contained in a unit (i.e., released) and not immediately

recovered would no longer be exc luded. They would need to be cleaned up and be subject to Subtitle C regulation if hazardous, including the HWR preparedness and response requirements, as applicable. In addition, see “Other Federal Regulations” below for additional discussion.

Other Federal Regulations:DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 43 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) CAA (Chemical Accident Prevention) : A facility that is a stationary

source that has more than a threshold quantity

of a “regulated substance” in a process (e.g., storage) must develop and implement a risk management program, including a Risk Management Plan (RMP). Facilities with a proces s subject to Program 2 or 3 (e.g., a process that has had an accidental release within the past five years with offsite consequences as specified) must prepare an emergency response program that includes an emergency plan (e.g., procedures for notifying of fsite parties, providing medical treatment, responding to an accidental release), emergency response equipment, and personnel training. However, a facility

whose employees will not respond to the release need not prepare an emergency

response program if it makes alternative arrangements. It must either be included in its community

emergency

response plan or coordinate response actions with the local fire department. There also must be a mechanism for notifying emergency responders. Note that the Chemi cal Accident Prevention provisions list 140 toxic and flammable regulated substances subject to regulation, with threshold quantities ranging from 500 to 20,000 pounds. (40 CFR Part 68.) The Chemical Accident Prevention provisions for an emergency resp onse program set forth generall y comparable elements as the HWRs for SQG and LQG preparedness and prevention (e.g., an emergency plan, emergency

equipment, and coordination with offsite responders). The provisions for alternative arrangements are not co mparable to the HWRs for L QGs or SQGs. They do not require emergency equipment, an emergency plan, or basic efforts b y onsite personnel to control the emergency

(e.g., extinguishing a fire). Note that a generator would be subject to the Chemical Accident Prevention provisions if it has more than a threshold quantity of a Part 68

- regulated substance in a process (e.g., storage). Onl y a subset ofDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 44 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) these facilities (e.g., those subject to Program 2 or 3) would be required to have an emergency

response or eva cuation plan. CERCLA/EPCRA (Emergency Notification) :
 A generator must immediately notify the National Response Center (NRC) of a release of a CERCLA hazardous substance (including hazardous waste) equal to or exceeding its reportable quantity in any 24

-hour period. (40 CFR Part 302)
 A generator must immediately notify the NRC and local/state officials of a release of a reportable quantity of any extremely hazardous substance (EHS) or CERCLA hazardous substance (including hazardous waste). (40 CFR Part 355) These CERCLA/EPCRA provisions require notification to offsite personnel as do the HWRs. These notification provisions could effectivel y address some emergencies (e.g., if local responders respond immediatel y and control the emergency , such as loc al fire or hazmat personnel). However, they

do not require emergency

equipment, onsite coordination, or basic efforts to control an emergency

(e.g., containing and cleaning up the release). Therefore, these provisions are not comparable to the HWRs for p reparedness and response. CW A (Oil Pollution Prevention) : A generator that is a “non

- transportation

- related facility” that could reasonably

be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities and that meets other applicability criteria must perform emergency The SPCC requirements set forth generall y comparable elements as the HWRs for emergencyDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 45 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) planning and response for oil discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan. The SPCC Plan must address such elements as discharge prevention measures; countermeasures for discharge discovery , response, and cleanup; personnel re sponsibilities (e.g., for addressing discharges); and plans and procedures for responding to discharges. (40 CFR Part 112) preparedness and response for oil dischar ges. This includes emergency

equipment, personnel responsibilities for addressing discharges, training, and emergency plans/procedures (e.g., countermeasures for discharge response and cleanup, notification to offsite agencies/personnel). A generator must prepare a SPCC Plan if it meets specified applicability

criteria (e.g., a non

transportation

- related facility with aboveground oil storage capacity of more than 1,320 gallons that could reasonabl y be expected to discharge petroleum

- based solvents to navigable waters or adjoining shorelines in quantities that may be harmful). These criteria would not apply to certain types of generators (e.g., sites that are not near navigable waters, do not generate/store oil

related substances, or meet minimumDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 46 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) storag e capacity thresholds).
OSH Act (Process Safety Management) : A facility that has a process (e.g., use, storage, handling) which involves a “highly hazardous chemical” at or above specified quantity must have an evacuation plan for the entire plant addressing evacuation procedures, alarm s ys tems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed b y facility personnel who remain to operate critical equipment before evacuation. The facility

also would need to handle small releases. Highl y hazardous chemicals include toxic and reactive highly

hazardous chemicals which present a potential for a catastrophic event at or above the threshold quantity . (29 CFR 1910.38 and 1910.119) The Process Safety Management provisions require generally comparable elements as the HWRs for SQG preparedness and response. The evacuation plan must include onsite response coordination, offsite notification, alarms, and handling of small releases. However, the PSM provi sions are not generally comparable to the HWR requirements for LQG preparedness and response. The PSM provisions do not require a plan for the facility to control/contain the emergency

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

criteria (e.g., if it accumulates a highl y hazardous chemical onsite above its threshold quantity). Section 1910.119, Appendix A, lists approximately 140DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 47 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) toxic and reactive highly hazardous chemicals subject to regulation. OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)) : Generators of hazardous waste must have an emergency

response program if it is required b y EPA or state to have its employees engage in emergency response or if it directs its employees to engage in emergency response. Generators must prepare emergency response program that includes an emergency response plan (e.g., personnel roles, coordination with outside parties, emergency alerting and response, emergency equipment), training for emergency

re sponse employees, and procedures for handling emergency

incidents (e.g., alarms). (29 CFR 1910.120(p)(8)) If the generator will evacuate emplo yees and will not allow them to assist in the response, it need not prepare a response program. Rather, it must prepare an evacuation plan for the entire plant. The plan must address evacuation procedures, alarm s ys tems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed by facility personnel who remain to operate critical equipment before evacuation. The generator also would need to have procedures for handling small releases. (29 CFR 1910.38 and Section 1910.120(p)(8) does not apply to sites that are not hazardous waste generators or TSDFs. Facili ties that do not qualify as a hazardous waste generator would not be subject to section 1910.120(p)(8). However, some generators under the TBE may nonetheless qualify

as an LQG or SQG based on the quantity of hazardous waste generated and be subject to se ction 1910.120(p)(8). Portions of the emergency response program under section 1910.120(p)(8) could apply to excluded materials at such a site (e.g., availability of emergency response equipment, such as absorbent, if needed). Note that the emergency

response requirements under 1910.120(p)(8) are comparable to the requirements at 1910.120(q), which are presented below. Refer to the “Note” below for additional discussion.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 48 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 1910.120(p)(8)) OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)) : A facility is required to establish an emergency response program if it has employees who are responsible for emergency response operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous waste) without regard to the location of the hazard (e.g., an ywhere at the facility), such as designated response employees. The program must include an emergency response plan (e.g., personnel roles, emergency equipment, and coordination with outside parties, emergency alerting and response), training for emergency response emplo ye es, and procedures for handling emergency incidents. (29 CFR 1910.120(q)) If the facility

will evacuate employees and will not allow employees to assist in response, it need not prepare an em ergency response plan. It must prepare an evacuation plan for the entire plant. The plan must address evacuation procedures, alarm s ys tems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed b y facility p ersonnel who remain to operate critical equipment before evacuation. (29 CFR 1910.38 and 1910.120(q)) The HAZWOPER regulations require generally

comparable elements as the HWRs for LQG and SQG preparedness and response. This includes, for example, an eme rgency

response plan, emergency

equipment, and onsite coordination of emergency responses. In addition, the evacuation plan is generall y comparable to the HWR requirements for SQG preparedness and response. The evacuation plan must include onsite respon se coordination, offsite notification, and alarms. However, the evacuation plan is not comparable to the HWR requirements for LQG preparedness and response. The plan does not include sufficient procedures for the facility to address (e.g., control) emerg ency .DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 49 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) Note that section 1910.120(q) would not apply to generators under the TBE unless they

have onsite response personnel, as specified. OSH Act (Hazard Communication): Facilities must provide information to their employees about an y chemical (except hazardous waste) which is a physical or health hazard to which they are exposed, by

means of a hazard communication program, labels and other forms of warning, material safe ty

data sheets, and information and training (e.g., hazards detection, emergency

procedures). Hazardous wastes are exempt from these provisions. (29 CFR 1910.1200). A generator under the TBE would be subject to the Hazard Communication Standard (HazCom ) for an y excluded material and other chemicals that pose a phy sical or health hazard. (A generator of hazardous waste would not be subject to 1910.1200 for its hazardous waste, but for non

- waste chemicals.) However, the HazCom provisions do not require emergency

equipment, coordination with offsite personnel, or basic actions to control an emergency . Rather, they require information sharing and training. As such, these provisions are not comparable to the HWR requirement for LQG or SQG preparedness andDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 50 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) response. 6. Personnel Training HW Rs : LQGs must provide personnel training and SQGs must provide familiarization on emergency response and job duties. At a minimum, this must address emergency procedures. LQGs must provide recurrent training. (40 CFR 262.34 and 265.16) TBE : No comparable provisions. The TBE does not include provisions on personnel training. However, some generators under the exclusion may nonetheless qualify

as a LQG or SQG based on the quantity of hazardous waste they

generate durin g the month and therefore be subject to the HWR. Portions of the HWR personnel training may be relevant to handling the excluded materials (e.g., familiarization on chemical hazards). In addition, see “Other Federal Regulations” below for additional discussion. Other Federal Regulations: CAA (Chemical Accident Prevention) : A facility that is a stationary

source that has more than a threshold quantity

of a “regulated substance” in a process (e.g., storage) must develop and implement a risk management program, including a Risk Management Plan (RMP). Facilities with a proc ess eligible for Program 1 (e.g., has not had accidental release of a regulated substance within the past five ye ars with offsite consequences as specified) are not required to provide training. Generators with a process subject to Program 2 or 3 (e.g., h as had The Chemical Accident Prevention provisions require facilities in Program 2 and 3 to provide recurring personnel training on job operations and emergency

procedures. These topics are generall y comparable to those required b y the HWRs forDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 51 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) accidental release of a regulated substance from a process within the past five years with offsite consequences as specified) must provide recurring personnel training on operations and emergency

procedures. (40 CFR Part 68) LQG and SQG train ing. A generator would be subject to the Chemical Accident Prevention provisions if it has more than a threshold quantity

of a Part 68

- regulated substance in a process (e.g., storage). Note that only a subset of these facilities would need to provide training (i.e., facilities in Program 1 are exempt from training requirements). Note that Part 68 lists 140 toxic and flammable regulated substances, with threshold quantities ranging from 500 to 20,000 pounds. CW A (Oil Pollution Prevention) : A generator that is a “non

- transportation

- related facility” that could reasonably

be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities and that meets other applicability criteria must perform emergency planning and response f

or oil discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan. The Plan must provide for personnel training on topics such as operation and maintenance of facility and equipment to prevent discharges, discharge procedure protoco ls, and elements of the Plan. (40 CFR Part 112) A generator’s SPCC Plan would address comparable topics as the HWRs for ongoing personnel training for oil. This includes operation and maintenance of the facility and equipment, discharge procedures, and ho w to carry out the SPCC Plan.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 52 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) A generator must prepare a SPCC Plan if it meets the specified applicability

criteria (e.g., a non

transportation

- related facility with aboveground oil storage capacity of more than 1,320 gallons that could reasonabl y be expected to discharge petroleum

- based solvents to navigable waters or adjoining shorelines in quantities that may be harmful). HMTA (Hazardous Materials Transportation): A generator would be subject to regulation under the HMTA (including the personnel trai ning requirements as applicable) if it transported, or offered for transportation, a DOT hazardous material, i.e., a material that 1) is listed in the Table in 49 CFR 172.101 (e.g., compounds), 2) is listed in the Appendices to the Table in 172.101, or 3) meets one or more of the hazard classifications (e.g., flammable liquid). Part 172 provides that all RCRA hazardous wastes are DOT hazardous materials, as specified. A hazardous secondary

material excluded from the definition of solid waste is neither a solid nor hazardous waste; therefore, it would not qualify as a DOT hazardous material on the basis of being a hazardous waste. Rather, an excluded material would qualify as a DOT hazardous material if it is otherwise listed in Part 172 (e.g., as a compo und or element) or meets a hazard class. It is possible that some excluded materials will not qualify as a DOT hazardous material. This includes material that is not listed and does not meet any hazard class. A generator that emplo ys “hazmat employees” must provide initial and recurrent training. A Generators under the TBE that employ hazmat employees must train them on a recurrent basis as re quired b y 49 CFR Part 172, Subpart H. The training must address function

- specific, safety and emergency

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

pertain to transportation

- related activities. Generators whose employees are notDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 53 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) hazmat employee is a person who is involved in the transportation of DOT hazardous materials as specified (e.g., loading, preparation for transportation, operation of a transportation vehicle). The training must cover general awareness/familiarization, function

- specific training, safety, security awareness, and in

- depth security. In particular, the safety training must include emergency

response information (i.e., information that can be used in the mitigatio n of an incident involving hazardous materials, such as health hazards, risks of fire/explosions, methods for handling fires/spills). (49 CFR 172, Subpart H) involved in transportation activities (e.g., because they

do not make offsite shipments, contractors are used to prepare/transport the material, or the material is not DOT hazardous material) would not qualify as hazmat employees and not receive such training. OSH Act (Process Safety Management) : A generator that has a process (e.g., use, storage, handling) which involves a “highly hazardous chemical” at or above specified quantity must provide initial and refresher training of personnel involved in operating a process (e.g., job

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

- related operations and emergencies. These topics are generall y comparable to the topics required b y the HWRs for LQG and SQG training. A generator must comply with these regulations if it meets the specif ied applicability

criteria (e.g., a generator that accumulates a highl y hazardous chemical onsite above its threshold quantity). OSH Act (Hazardous Waste Operations and Emergency Section 1910.120(p)(8) does Under the TBE, generators that doDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 54 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) Response (HAZWOPER)) : Generators must have an emergency

response program if it is required b y EPA or state to have its employees engage in emergency response or if it directs its employees to engage in emergency response. The program must include training on emergency response (e.g., elements of the response plan, standard operating procedures, and procedures for handling emergency incidents). These provisions apply

to hazardous waste generators and TSDFs only . (29 CFR 1910.120(p)(8)) not apply to sites that are not hazardous waste generators or TSDF s. not otherwise qualify as a hazardous waste generator would not be subject to section 1910.120(p)(8). Section 1910.120(p)(8) applies only to hazardous waste generators and TSDFs. On the other hand, generators under th e exclusion that continue to be LQGs or SQGs under the HWRs would be subject to section 1910.120(p)(8). Some of the training topics under the section 1910.120(p)(8) could be relevant to the excluded material. These provisions require training on operatin g and emergency procedures. These topics are generall y comparable to the topics required b y the HWRs for SQG training. However, these provisions do not require recurrent training, as do the HWRs for L QG training. Therefore, they

are not comparable to th e HWRs for L QG training.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 55 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)) : A facility is required to establish an emergency response program if it has employees who are responsible for emergency response operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous waste) without regard to the location of the hazard (e.g., an ywhere at the facility). The facility’s program must provide initial and recurrent training as relevant to personnel responsibilities (e.g., first responder, on scene incident commander). This includes, for example, hazard detection, responsibilities for emergency

response, and safety. (29 CFR 1910.120(q)) The HAZWOPER regulations require initial and recurrent training on hazard detection, emergency response, and safety, among other things. These topics are comparable to the topics required b y the HWRs for LQG and SQG training, as it relates specificall y to emergency response personnel. A generator must comply

w ith these regulations if it meets the specified applicability criteria (e.g., a generator that has employees responsible for responding to onsite releases regardless of location). OSH Act (Hazard Communication): Employers must provide information to their employees about an y chemical which is a physical or health hazard to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and inform ation and training. Employees must be informed of operations in their work area where hazardous chemicals are present, among other things. Employee training must include methods and observations for detecting releases, hazards in the work area, and measures emplo ye es can take to protect themselves (e.g., emergency procedures). (29 CFR 1910.1200) The Hazard Communication Standard (HazCom) requires familiarization and training on emergency

recognition, hazards, and protective measures, which is comparabl e to the topics of HWR training for SQGs. However, they are somewhat less rigorous than the HWR training requirements for LQGs. There is no schedule forDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 56 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) follow

- up training under HazCom. Therefore, HazCom training is not comparable to the HWRs for LQG training. A generator must comply with these regulations for an y chemicals which could pose a ph ys ical or health hazard in the work place, except for hazardous waste. Generators would be subject to these requirements for their excluded materials, as well as other chemicals that are not hazardous waste (e.g., chemical products).DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 57 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 7. Reporting and Recordkeeping HW Rs : Reporting to EPA on waste management activities:
 Notification (40 CFR 262.12)
 Biennial report for LQGs only (40 CFR 262.41)
 Exception report (40 CFR 262.42) HW Rs : Recordkeeping for three ye ars (40 CFR 262.40) TBE : Reporting on hazardous secondary material activities:
 Initial and biennial notifications (40 CFR 260.42)
 Records of reasonable efforts if requested (40 CFR 261.4(a)(24)(v)(C)) TBE : Recordkeeping for three ye ars:  Records of reasonable efforts (40 CFR 261.4(a)(24)(v)(C))
 Records of offsite shipments and confirmations of receipt (40 CFR 261.4(a)(24)(v)(D) and (E)) The HWR and TBE have comparable requirements for initial and biennial sub mittals in regard to frequency and types of information submitted. However, the TBE biennial notification requirement applies to generators regardless of size. The HWR’s biennial reporting requirement applies only

to L QGs. The TBE does not require excep tion reporting or recordkeeping. The TBE includes records of reasonable efforts performed by the generator to ensure that reclamation is legitimate and the excluded material will be managed in a protective manner. This is not required b y the HWR.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 58 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) 8. Offsite Transportation HW Rs : Shipments must be manifested (40 CFR 262, Subpart B) and comply

with DOT requirements for packing, labeling, marking, and placarding (40 CFR 262.30

- .33) TBE : Recordkeeping of offsite shipments and confirmations of receipt (40 CFR 261.4(a)(24)(v)(D)) and compliance with DOT packing requirements (40 CFR 261.4(a)(24)(ii)) The HWRs and TBE are comparable in regard to packing requirements and tracking of shipments from generator to reclaimer. Refer to “Other Federal Regulations” be low for an additional discussion. Other Federal Regulations: HMTA : A generator would be subject to regulations under the HMTA if it transported, or offered for transportation, a DOT hazardous material, i.e., a material that 1) is listed in the Table in 49 CFR 172.101 (e.g., compounds), 2) is listed in the Appendices to the Table in 172.101, or 3) meets one or more of the hazard classifications (e.g., flammable liquid). RCRA hazardous wastes are DOT hazardous materials because they are listed in Part 172. A hazardous secondary

material excluded from the definition of solid waste is neither a solid nor hazardous waste; therefore, it would not qualify as a DOT hazardous material on the basis of being a hazardous waste. Rather, an excluded material would qualify as a DOT hazardous material if it is otherwise listed in P art 172 (e.g., as a compound or element) or meets a hazard classification. It is possible that some excluded materials will not qualify as a DOT hazardous material. This includes a hazardous secondary material that is not listed and does not meet any haz ard class. Shipments of DOT hazardous materials (including hazardous waste) must comply with Excluded materials under the TBE

that qualify

as a DOT hazardous material would be subject to transportation requirements comparable to hazardous waste. (See the ab ove requirement for offsite tracking.) Note that some excluded materials may not qualify

as a DOT hazardous material. They

would not need to be transported in accordance with the regulations under the HMTA.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 59 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) applicable transportation provisions. This includes, for example, the regulations for shipping papers (or manifest), packing, labeling, marking and placarding (49 CFR Parts 171

- 180), as well as requirements for driving and parking (49 CFR Part 397). 9. Exports HW Rs : Reporting under 40 CFR Part 262, Subpart E or H:
 Perform notice and consent
 Submit annual report
 Keep records TBE : reporting under 40 CFR 261.4(a)(25):
 Perform notice and consent  Submit annual report
 Keep records The HWRs and TBE include comparable requirements for notice and consent, annual reporting, and recordkeeping for exports.

10. Regulation of Residues HW Rs : Derived

- from rule applies to residues from reclamation (40 CFR 261.3(c)) TBE : No comparable provisions The TBE does not include generator regulations for residues from reclamation. This is because generators are required to send their excluded materials offsite for reclamation. 11. Enforcement and Compliance HW Rs : EPA’s National Program Manager (NPM) Guidance for Fiscal Year 2010 provides that the EPA Regions and states must annually inspect at least 20% of the LQG HW Rs : No comparable guidance. TBE : No comparable guidance.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 60 Table A
- 2. Comparison of Federal Regulation s Applicable to Generators of Hazardous Waste and Generators of

Hazardous Secondary Materials under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Generators Notes (e.g., issues regarding applicability, comments on comparability) Large Quantity Generators

(LQGs) Small Quantity Generators (SQGs) universe, so that the entire universe is inspected in five years.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 61 Table A
- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

1. Legitimate Recycling HW Rs : EPA has issued policy statements to clarify

legitimate recycling (e.g., in Federal Register notices). In addition, respondents in an enforcement action who raise a claim that a certain material is not a solid waste must demonstrate that there is a known market or disposition for the material and that they meet the terms of the exclusion or exemption, as specified (40 CFR 261.2(f)) TBE : Reclamation of the material must be legitimate, as specified at §260.43 (40 CFR 261.4(a)(24)(iv)). Section 260.43 spells out the legitimacy criteria that must be met. Facility must perform reasonable efforts to ensure proper and legitimate recycling b y reclaimer, as specified (40 CFR 261.4(a)(24)(v)(B)) EPA has set forth consistent criteria on legitimate recycling under the HWR and DSW rule. The DSW rule codifies these criteria, which provides greater clarity and enforceability . In addition, a generator’s reasonable efforts under the TBE reinforce the criteria and encourage compliance by reclaimers.

2. Containment HW Rs : Facility

must meet storage design and operating standards for hazardous waste management units (e.g., containment, inspections) (40 CFR Part 264, Subparts I

- L and DD) TBE : Facility must manage material in a manner that is at least as protective as that employed for analogous raw material and must be contained (40 CFR 261.4(a)(24)(vi)(D)) Both the HWRs and TBE require containment of hazardous secondary

material in the unit. The HWRs prescribe design, operating, and other standards for containment, whereas the TBE does not. As such, the TBE allows greater flexibility in how hazardous secondary materials can be managed and contained. This could result in more or less effective containment than the HWRs, depending on the containment methods used by facilities under the exclusion.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 62 Table A
- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

3. Air Emissions HW Rs : Facility

must meet air emission standards for storage (40 CFR Part 264, Subparts AA

- CC) and recycling (40 CFR Part 264, Subparts AA and BB) TBE : Facility must manage material in a manner that is at least as protective as that employed for analogous raw material and must contained (40 CFR 261.4(a)(24)(vi)(D)) Both the HWRs and TBE require containment of hazardous secondary

material in the unit. The HWRs prescribe design, operating, and other standards for containment, whereas the TBE does not. As such, the TBE allows greater flexibility in how hazardous secondary materials can be managed and contained. This could result in more or le ss effective containment than the HWRs, depending on the containment methods used by facilities under the exclusion. In addition, see “Other Federal Regulations” below for additional discussion. Other Federal Regulations : CAA: The states and EPA issue operating permits to certain “major” stationary sources of hazardous air pollutants (HAPs) under 40 CFR Parts 70 and 71. A major source is a source that emits more than 10 tons per year (TPY) of an y single HAP or more than 25 TP Y of HAPs in total. A limited number of smaller sources (e.g., “area” sources) also may be required to obtain a permit under the federal program. In addition, EPA has established technical standards for the control of air emissions from stationary sour ces, which permit writers include in a permit to control emissions as appropriate. Some of these standards could address air The federal CAA permitting and technical standards could potentially address air emissions from process vents, equipment leaks, and/or storage units at some of the facilities operating under the TBE. These CAA standards include comparable typ es of controls as the HWRs, e.g., design, operating, and monitoring. However, the CAA permitting and technical standards under the federal program would not apply to facilities that:DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 63 Table A
- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

emissions from process vents, equipment leaks, tanks and other units. Potentially

applicable standards can be found in various p arts of 40 CFR, such as:  Part 60: “Standards of Performance for New Stationary Sources (NSPS).” This part regulates emissions from stationary sources of criteria pollutants for which EPA has established National Ambient Air Quality Standards (NAAQS); and
 Part 63: “National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Categories.” This part regulates emissions of hazardous air pollutants (HAPs) from source categories. These parts set forth design, operating, monitoring, testing, a nd/or recordkeeping standards, as specified.  Have emissions below specified thresholds (e.g., emit less than 10 TPY of any single HAP or 25 TPY of HAPs in total); or
 Do not meet other applicability criteria (e.g., are not in a regulated industry).DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

4. Emergency Preparedness and Response HW Rs: Facilities must:
 Have emergency equipment (e.g., alarms, fire protection);
 Designate an emergency coordinator; and
 Have an emergency plan to address any release or other emergency, and emergency procedures for:

- Notifying onsite and offsite personnel;

- Controlling the emergency (e.g., identifying, assessing and containing the release); and

- Taking other actions if specified (e.g., ensuring proper management of recovered material). (40 CFR Part 264, Subpart C and D) TBE : No comparable provisions The TBE does not include provisions on emergency

preparedness and response. However, materials under the TBE that are no longer contained in a unit (i.e., released) and not immediately

recovered would no longer be excluded. They

would need to be cleaned up and be subject to Subtitle C regulation if hazardous, including the HWR preparedness and response requirements, as applicable. In addition, see “Other Federal Regulations” below for additional discussion.

Other Federal Regulations:DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

CAA (Chemical Accident Prevention) : A facility that is a stationary

source that has more than a threshold quantity of a “regulated substance” in a process (e.g., storage) must develop and implement a risk management program, including a Risk Management Plan (RMP). Faci lities with a process subject to Program 2 or 3 (e.g., a process that has had an accidental release within the past five years with offsite consequences as specified) must prepare an emergency response program that includes an emergency plan (e.g., procedures for notifying offsite parties, providing medical treatment, responding to an accidental release), emergency

response equipment, and personnel training. However, a facility

whose employees will not respond to the release need not prepare an emergency response program if it makes alternative arrangements. It must either be included in its community emergency

response plan or coordinate response actions with the local fire department. There also must be a mechanism for notifying emergency

responders. Note that the Chemical Accident Prevention provisions list 140 toxic and flammable regulated substances subject to regulation, with threshold quantities ranging from 500 to 20,000 pounds. (40 CFR Part 68.) The Chemical Accident Prevention provisions f or an emergency

response program set forth generally comparable elements as the HWRs for facility preparedness and prevention (e.g., an emergency plan, emergency

equipment, and coordination with offsite responders). The provisions for alternative arrang ements are not comparable to the HWRs for facilities. They do not require emergency

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

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

would be subject to the Che mical Accident Prevention provisions if it has more than a threshold quantity of a Part 68

- regulated substance in a process (e.g., storage). Only a subset of these facilities (e.g., those subject to Program 2 or 3) would be required to have an emergency

response or evacuation plan.

CERCLA/EPCRA (Emergency Notification) :
 A facility must immediately notify the National Response Center (NRC) of a These CERCLA/EPCRA provisions require notification to offsite personnel as do the HWRs.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

release of a CERCLA hazardous substance (including hazardous waste) equal to or exceeding its reportable quantity in any 24

-hour period. (40 CFR Part 302)
 A facility must immediately notify the NRC and local/state officials of a release of a reportable quantity of any extremely hazardous substance (EHS) or CERCLA hazardous substance (including hazardous wast e). (40 CFR Part 355) These notification provisions could effectively address some emergencies (e.g., if local responders respond immediatel y and control the emergen cy , such as local fire or hazmat personnel). However, they

do not require emergency equipment, onsite coordination, or basic efforts to control an emergency

(e.g., containing and cleaning up the release). Therefore, these provisions are not comparable to the HWRs for preparedness and response. CW A (Oil Pollution Prevention) : A facility that is a “non

- transportation

- related facility” that could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities and that meets other applicability criteria must perform emergency planning and response for oil discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan. The SPCC Plan must address such elements as discharge prevention measures; count ermeasures for discharge discovery , response, and cleanup; personnel responsibilities (e.g., for addressing discharges); and plans and procedures for responding to discharges. (40 CFR Part 112) The SPCC requirements set forth generall y comparable elements as the HWRs for emergency preparedness and response for oil discharges. This includes emergency

equipment, personnel responsibilities for addressing discharges, training, and emergency

plans/procedures (e.g., countermeasures for discharge response and cleanup, notification to offsite agencies/personnel). A facility must prepare a SPCC Plan if it meets specified applicability

criteria (e.g., a non

transportation

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

be expected to dischargeDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

petroleum

- based so lvents to navigable waters or adjoining shorelines in quantities that may be harmful). These criteria would not apply to certain types of facilities (e.g., facilities that are not near navigable waters, do not store oil

- related substances, or meet minimum storage capacity thresholds).
OSH Act (Process Safety Management) : A facility that has a process (e.g., use, storage, handling) which involves a “highl y hazardous chemical” at or above specified quantity must have an evacuation plan for the entire pl ant addressing evacuation procedures, alarm sy stems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed by facility personnel who remain to operate critical equipment before evacuation. The facility also wo uld need to handle small releases. Highl y hazardous chemicals include toxic and reactive highly

hazardous chemicals which present a potential for a catastrophic event at or above the threshold quantity . (29 CFR 1910.38 and 1910.119) The Process Safety M anagement provisions require generally

comparable elements as the HWRs for facility

preparedness and response. The evacuation plan must include onsite response coordination, offsite notification, alarms, and handling of small releases. However, the PSM p rovisions are not generally comparable to the HWR requirements for facility preparedness and response. The PSM provisions do not require a plan for the facility

to control/contain the emergency . A facility must compl y with these regulations if it meets the specified applicability criteria (e.g., if it accumulates a highl y hazardous chemical onsite above its threshold quantity). Section 1910.119,DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

Appendix A, lists approximately 140 toxic and reactive highl y hazardous chemicals subject to regulation. OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)) : Permitted and interim

- status TSDFs are required to have a safety and health program designed to identify , evaluate and control safety and health hazards for the purpose of employee prote ction, to provide for emergency

response, and to address other elements as specified (e.g., material handling program, training). Italso must have an emergency

response program, including the development of an emergency

response plan (e.g., personnel rol es, emergency alerting and response, emergency equipment), training for emergency

response employees, and procedures for handling emergency

incidents (e.g., alarms). (29 CFR 1910.120(p)) Section 1910.120(p) does not apply to sites that are not permitted or interim

status TSDFs. Under the TBE, facilities that do not otherwise qualify as a permitted or interim

- status TSDF would not be subject to section 1910.120(p). However, some facilities under the exclusion may nonetheless be subject to a permit or interim status because of the ir management of hazardous waste and be subject to section 1910.120(p). Portions of the emergency

response program under section 1910.120(p) could appl y to excluded materials at such a site (e.g., availability of emergency response equipment, such as abso rbent, if needed). Note that the emergency

response requirements under 1910.120(p) are comparable to the requirements at 1910.120(q), which are presented below. Refer to the “Note” below for additional discussion.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

Facilities must have an emergency response program if it is required by EPA or state to have its employees engage in emergency

response or if it directs its employees to engage in emergency

response. The program must include an emergency response plan (e.g., personnel roles, coordination with outside parties, emergency

al erting and response, emergency

equipment), training for emergency

response employees, and procedures for handling emergency incidents (e.g., alarms). These provisions apply

to hazardous waste generators and TSDFs only . These provisions are not applicable if all workers are evacuated. (29 CFR 1910.120(p)(8)) OSH Act (Hazardous Waste Operations a nd Emergency Response (HAZWOPER)) : A facility is required to establish an emergency response program if it has emplo yees who are responsible for emergency response operations for releases of, or substantial threats of releases of, hazardous substances (in cluding hazardous waste) without regard to the location of the hazard (e.g., an ywhere at the facility), such as designated response employees. The HAZWOPER regulations require generall y comparable elements as the HWRs for preparedness and response. This includes , for example, an emergency

response plan, emergency equipment, and onsite coordination of emergency responses. However, the evacuation plan is notDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

The program must include an emergency response plan (e.g., personnel roles, emergency

equipment, and coordinatio n with outside parties, emergency alerting and response), training for emergency response employees, and procedures for handling emergency

incidents. (29 CFR 1910.120(q)) If the facility

will evacuate employees and will not allow employees to assist in re sponse, it need not prepare an emergency response plan. It must prepare an evacuation plan for the entire plant. The plan must address evacuation procedures, alarm sy stems, personnel responsibilities, evacuation training, offsite notification, and proced ures to be followed by

facility personnel who remain to operate critical equipment before evacuation. (29 CFR 1910.38 and 1910.120(q)) comparable to the HWR requirements. The plan does not include sufficient procedures for the facility to ad dress (e.g., control) emergency

. Note that section 1910.120(q) would not appl y to facilities under the TBE unless they have onsite response personnel, as specified.

OSH Act (Hazard Communication): Facilities must provide information to their employees about an y chemical (except hazardous waste) which is a physical or health hazard to which they are exposed, by

means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training (e.g., hazards detection, emergency procedures). Hazardous wastes are exempt from these provisions. (29 CFR 1910.1200). A facility under the TBE would be subject to the Hazard Communication Standard (HazCom) for any excluded material and other chemicals that pose a ph ys ical or health hazard. (A TSDF managing hazardous waste would not be subject to 1910.1200 for its hazardous waste, but for non

waste chemicals.) However, the HazCom provisions do not require emergency

equipment, coordination with offsite personnel, or basic actions to control an emergency . Rather, they require informationDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

sharing and training. As such, these provisions are not comparable to the HWR requirements for preparedness and response. 5. Security HW Rs : Prevention of unauthorized entry (40 CFR 264.14) TBE : No comparable provisions Facilities under the TBE would not be required to prevent unauthorized entry , as is the case under the HWRs. 6. Personnel Training HW Rs : Personnel training on emergency

response and job duties must be conducted. At a minimum, this must include training on emergency

procedures. Facilities must provide recurrent training. (40 CFR 264.16) TBE : No comparable provisions. The TBE does not include provisions on personnel training. However, some facilities under the exclusion may

nonetheless be subject to a permit or interim

- status standards because of their hazardous waste management activities. Portions of the HWR personnel training may be relevant to handling the excluded materials (e.g., familiarization on chemical hazards). In addition, see “Other Federal Regulations” below for additional discussion. Other Federal Regulations: CAA (Chemical Accident Prevention) : A facility that is a stationary

source that has more than a threshold quantity of a “regulated substance” in a process (e.g., storage) must develop and implement a risk management program, including a Risk Management Plan (RMP). The Chemical Accident Prevention provisions require facilities in Program 2 and 3 to provide recurring personnel training on job operations and emergency

procedures. These topics are generallyDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

Facilities with a proc ess eligible for Program 1 (e.g., has not had accidental release of a regulated substance within the past five years with offsite consequences as specified) are not required to provide training. Facilities with a process subject to Program 2 or 3 (e.g., h as had accidental release of a regulated substance from a process within the past five years with offsite consequences as specified) must provide recurring personnel training on operations and emergency

procedures. (40 CFR Part 68) comparable to those required by the HWRs for facility training

. A facility would be subject to the Chemical Accident Prevention provisions if it has more than a threshold quantity

of a Part 68

- regulated substance in a process (e.g., storage). Note that only a subset of these facilities would need to provide train ing (i.e., facilities in Program 1 are exempt from training requirements). Note that Part 68 lists 140 toxic and flammable regulated substances, with threshold quantities ranging from 500 to 20,000 pounds. CW A (Oil Pollution Prevention) : A facility that is a “non

- transportation

- related facility” that could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities and that meets other applicability criteria must perform emergency planning and response for oi l discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan. The Plan must provide for personnel training on topics such as operation and maintenance of facility

and equipment to prevent discharges, discharge procedure protocols, and elements of the Plan. (40 CFR Part 112) A facility ’s SPCC Plan would address comparable topics as the HWRs for ongoing personnel training for oil. This includes operation and maintenance of the facility

and equipment, discharge procedures, and how to c arry

out the SPCC Plan. A facility must prepare a SPCC Plan if it meets the specified applicability

criteria (e.g., a non

transportation

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

be expected to discharge petroleum

- based solvents to navigable waters orDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

adjoining shorelines in quantities that may be harmful). OSH Act (Process Safety Management) : A facility that has a process (e.g., use, storage, handling) which involves a “highl y hazardous chem ical” at or above specified quantity must provide initial and refresher training of personnel involved in operating a process (e.g., job

- related operating procedures, health hazards, emergency

operations, evacuations). (29 CFR 1910.119) The Process Safety Management provisions require initial and refresher training on topics related to job

- related operations and emergencies. These topics are generally comparable to the topics required b y the HWRs for LQG and SQG training. A facility must compl y with thes e regulations if it meets the specified applicability criteria (e.g., a facility that accumulates a highl y hazardous chemical onsite above its threshold quantity). OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)) : Facilities must have an emergency

response program if it is required b y EPA or state to have its employees engage in emergency response or if it directs its employees to engage in emergency

response. The program must include, among other things, training on job duties and emergency

response (e.g., elements of the response plan, procedures for handling emergency

incidents). Section 1910.120(p) does not apply to facilities that are not hazardous waste TSDFs. Facilities that are not subject to a permit or interim status would not be subject to section 1910.120(p)(8). However, facilities under the exclusion may

continue to manage hazardous waste under a permit or interim status and be subject to section 1910.120(p). Some of the training topics under the section 1910.120(p) could be relevant to the excluded material. These provisions require training on job duties and emergency

procedures. These topi cs are generally comparable to the topics required b y the HWRs. However, these provisions do not require recurrent training on emergency

response, as do the HWRsDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

Training on job duties must be recurrent training. These provisions apply to hazardous waste TSDFs only

. (29 CFR 1910.120(p)) for facilities. Therefore, they are not comparable to the HWR training requirements.

OSH Ac t (Hazardous Waste Operations and Emergency Response (HAZWOPER)) : A facility is required to establish an emergency response program if it has emplo yees who are responsible for emergency response operations for releases of, or substantial threats of releas es of, hazardous substances (including hazardous waste) without regard to the location of the hazard (e.g., an ywhere at the facility). The facility’s program must provide initial and recurrent training as relevant to personnel responsibilities (e.g., firs t responder, on scene incident commander). This includes, for example, hazard detection, responsibilities for emergency response, and safety. (29 CFR 1910.120(q)) The HAZWOPER regulations require initial and recurrent training on hazard detection, emergency response, and safety, among other things. These topics are comparable to the topics required b y the HWRs for facilities, as it relates specificall y to emergency

response personnel. A facility must comply with these regulations if it meets the speci fied applicability

criteria (e.g., a facility

that has employees responsible for responding to onsite releases regardless of location).

OSH Act (Hazard Communication): Employers must provide information to their employees about any chemical which is a phy sical or health hazard to which they

are exposed, by

means of a hazard communication program, labels and other forms of warning, material safety data sheets, and inform ation and training. Emplo ye es must be informed of operations in their work area where hazardous chemicals are present, among other things. Emplo yee training must include methods and observations for detecting releases, hazards in the work The Hazard Communication Standard (HazCom) requires familiarization and training on emergency recognition, hazards, and protective measures. These provisions less rigorous than the HWR training requirements for facilities. There is no schedule for follow

- up training under HazCom. Therefore, HazCom training is not comparable toDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

area, and measures employees can take to protect themselves (e.g., emergency procedures). (29 CFR 1910.1200) the HWR training requirements. A facility must compl y with these regulations for any chemicals which could pose a physical or health hazard in the work place, except for hazardous waste. Facilities under the TBE would be subject to these requirements for their excluded materials, as well as other chemicals that are not hazardous waste (e.g., chemical products).DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

7. Reporting and Recordkeeping HW Rs : Reporting to EPA:
 Notification (40 CFR 264.11)
 Biennial report (40 CFR 264.75)
 Manifesting reports (40 CFR 264.72 and 264.76) HW Rs : Operating record (40 CFR 264.73) TBE : Initial and biennial notification (40 CFR 260.42) and recordkeeping of all shipments received onsite and received onsite and sent offsite (40 CFR 261.4(a)(24)(vi)(A)) The HWR and TBE have comparable requirements for initial and biennial submittals in regard to freque ncy and types of information submitted. The TBE does not require recordkeeping comparable to an operating record.

8. Financial Assurance HW Rs : Financial assurance must be obtained (40 CFR Part 264, Subpart H) TBE : Financial assurance must be obtained (40 CFR 261.4(a)(24)(vi)(F)) The HWR and TBE include comparable requirements for financial assurance.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

9. Regulation of Residues HW Rs : Derived

- from rule applies to residues from reclamation (40 CFR 261.3(c)) TBE : Residuals must be managed as hazardous waste if they

exhibit a characteristic or are listed (40 CFR 261.4(a)(24)(vi)(E)) The derived

- from’ rule does not apply to residuals from the reclamation of hazardous secondary materials excluded under the TBE. These residuals are a new point of generation for the purposes of applying the hazardous waste determination requirements of 40 CFR 262.11. If the residuals exhibit a hazardous characteristic, or they themselves are a listed hazardous waste, they would be considered hazardous wastes (unles s otherwise exempted) and would have to be managed accordingl y. If they did not exhibit a hazardous characteristic, or were not themselves a listed hazardous waste, they would need to be managed in accordance with applicable state or federal requirements f

or non - hazardous wastes. The TBE provisions on residuals were included to clarify that residuals from reclamation are subject to waste characterization requirements and cannot simply be discarded as non

- hazardous waste. However, designating the residuals as a new point of generation raises the possibility that a residual containing a listed waste might not be characterized as such (e.g., because the listed wasteDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

is below detectable levels). As a result, such listed wastes could exit Subtitle C regulation , contrary to the intent of the derived

- from rule. 10. Requirement for a Permit HW Rs : RCRA permit is required for storage. (40 CFR Part 270) TBE : Facility must either obtain RCRA permit and manage hazardous secondary materials in the permitted units (40 CFR Part 270) or must comply with TBE conditions and pass an audit by

the generator, who makes reasonable efforts to ensure their hazardous secondary

material will be safel y and legitimatel y m anaged. (40 CFR 261.4(a)(24)(v)(B)) The RCRA permit and TBE share some key similarities and differences, e.g.: Similarities
 RCRA permit and TBE impose requirements on facilities to ensure protective operation (e.g., RCRA permit conditions, TBE conditions);
 RCRA permit and TBE rely on similar processes for complian ce assurance (e.g., state inspections and reviews of facility submittals). Whereas a state may inspect TSDFs more often than TBE facilities, the TBE requires generator audits to supplement state’s compliance oversight and assure compliance.
 RCRA permit an d TBE both require financial assurance for closure and sudden and non

- sudden occurrences. Differences
 RCRA permit can be revoked or denied to prevent facility operation. Under the TBE, generator audit does not result in denial of ability to operate. Rather, generators must not send materials to aDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

facility that fails an audit, essentially denying it the ability to manage the materials under the exclusion.
 States have lead role in administering the RCRA permitting and enforcement process. Under the TBE, st ates and generators both have lead roles to evaluate facility compliance. 11. Public Involvement in Permit Process HW Rs : Facility

must undergo RCRA permitting process, which includes public involvement (e.g., public notice and comment for draft permit decision; public hearing if requested). (40 CFR Part 270 and 124) TBE : Facility must either undergo RCRA permitting process, including public involvement, or be subject to generator audits. Generator audits do not involve the general public. The TBE is n ot comparable to the HWRs for public involvement. Under the HWRs, a facility must obtain a permit to store hazardous secondary materials. The RCRA permitting process includes public involvement. Under the TBE, a permit is not needed for storage of excluded materials. As a result, the facility could operate and store the materials under the TBE without public involvement. In addition, see “Other Federal Regulations” below for additional discussion. Other Federal Regulations: Facilities managing hazardous secondary materials may

be subject to other permitting programs that include public involvement. Examples include the Clean Air Act (CAA) operating permitting program and Clean Water Act (CWA) National Pollutant Discharge Eli mination Sy stem (NPDES) permitting Facilities under the TBE may be subject to the CAA, NPDES, and/or other permitting programs. If so, the public may

have an opportunity

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- 80 Table A
- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

program. to management of the excluded material. For example, a draft CAA operating permit may include requirements related to the control of air emissions from storage tanks holding excluded materials. The public could comment on these aspects of the proposed permit.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 81 Table A
- 3. Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary

Material Intermediate and Reclamation Facilities under DSW Transfer
- Based Exclusion Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities DSW Transfer
- Based Exclusion (TBE) and Other Federal Regulations: Hazardous Secondary Material Intermediate and Reclamation Facilities Notes (e.g., issues regarding appli cability, comments on comparability)

12. EPA/State Oversight and Enforcement HW Rs : RCRA section 3007(c) requires annual inspections of federal TSDFs. RCRA section 3007(d) requires annual inspections of state and local TSDFs. RCRA section 3007(e) requires that other TSDFs be inspected no less than every 2 years. EPA’s National Program Manager (NPM) Guidance for Fiscal Year 2010 establishes performance expectations and activities related to the TSDF universe for the EPA Regions and states:
 Inspect at least once every two years each operating TSDF; and
 Annually inspect each TSDF operated by states or local governments (for Regions only). TBE : For RCRA

- permitted facilities, requirements would be the same. For unpermitted DSW facilities, n o comparable requirements.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 82 5. Summary of Federal Regulations This section summarizes the federal regulations that are compared and discussed in this appendix. These include the following: 5.1 Resource Conservation and Recovery Act (RCRA) Hazardous Waste Regulations 5.1.1 Hazardous Waste Generator Standards 5.1.2 Hazardous Waste Storage Standards 5.2 Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste Exclusions 5.2.1 Generator

- Controlled Exclusion 5.2.2 Transfer

- Based Ex clusion 5 .3 Clean Air Act (CAA) 5.3.1 CAA Title V Air Quality Permitting Process 5.3.2 CAA Standards for Area Sources Not Subject to Title V Permit 5.3.3 Chemical Accident Prevention Provisions 5.4 Clean Water Act (CWA)

– Oil Pollution Prevention 5.5 Comprehensive Environmental Response, Compensation, and L iability Act (CERCLA)

– Release Notification 5.6 Emergency

Planning and Community Right

- to
- Know Act (EPCRA)

– Release Notification 5.7 Hazardous Materials Transportation Act of 1975 (HMTA) 5.7.1 Ov erview and Applicability 5.7.2 Hazardous Materials Regulations 5.7.3 Transportation of Hazardous Materials; Driving and Parking Rules 5.8 Occupational Safety and Health Act (OSH Act) 5.8.1 Process Safety Management of Highly Hazardous Chemicals 5.8.2 Haz ardous Waste Operations and Emergency Response 5.8.3 Hazard Communication 5.1 Resource Conservation and Recovery Act (RCRA) Hazardous Waste Regulations Subtitle C of the Resource Conservation and Recovery Act (R CRA), as amended, authorizes EPA to develop and implement a national hazardous waste regulatory program. EPA has esta blished hazardous regulations at 40 CFR Parts 260 through 279. Following is a summary of some of the regulations applicable to hazardous waste generators and storage facilities.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 83 5.1 . 1 Hazardous Waste Generator Standard s (40 CFR Part 262) A hazardous waste generator is any person, b y site, whose act or process produces hazardous waste or whose act first causes a hazardous waste to become subject to regulation. Generators are divided into three categories based on the quantity of waste they

produce during the month :
 A large quantity generator ( LQG ) is a site that generates 1,000 kg or more of hazardous waste in a calendar month, 1 kg or more of acute hazardous waste in a calendar month , or 100 kg or more of any residue, soil, waste or other debris resulting from the cleanup of any acute hazardous waste. (261.5(e) and 262.34(a))

 A small quantity

generator ( SQG ) is a site that generates greater than 100 kg but less than 1,000 kg of hazard ous waste in a calendar month . (262.34(d))

 A conditionally

exempt small quantity

generator ( CESQG ) is a site that generates no more than 100 kg of hazardous waste in a calendar month. (261.5(a)) LQGs and SQGs must comply with the standards of 40 CFR Part 2 62 , as applicable. Following is a summary

of some of the generator standards. Legitimate Recycling EPA has issued policy

statements to clarify

legitimate recycling under the RCRA hazardous waste program
. In particular, EPA issued a memorandum on April 26 , 1989, that consolidated preamble statements concerning legitimate recycling that had been articulated previousl y into a list of criteria to be considered in evaluating legitimacy [OSWER directive 9441.1989(19)]. This memorandum has been a primary source of guidance for the regulated community and for implementing agencies in distinguishing between legitimate a nd sham recycling

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

- s pecific information to determine whether or not a secondary material being recycled is in effect being u sed as a commodity, rather than as a waste. The memorandum identified six criteria to be considered in evaluating this fundamental question, explaining that each recycling scenario is likely to require a case

- specific evaluation. The memorandum further explained that, depending on the case

- specific facts and circumstances, certain criteria may weigh more heavil y than others in making legitimacy

determinations. In addition, 40 CFR 261.2(f) provide s that respondents in an enforcement action who raise a claim that a certain material is not a solid waste must demonstrate that there is a known market or disposition for the material and that they meet the terms of the exclusion or exemption, as specifie d

. Storage Time Limit Generators must comply

with the storage time limits at 40 CFR 262.34, as specified:

 LQGs may

accumulate hazardous waste onsite for 90 day s or less without a permit or interim status, provided that specified standards are met. (262.3 4(a))

 SQGs may

accumulate hazardous waste onsite for 180 day s or less without a permit or interim status, provided that the quantity of waste accumulated onsite never exceeds 6,000 kg and other standards are met, as specified. If the SQG’s waste must be transported 200 miles or more for offsite treatment, storage, or disposal, it mayDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 84 accumulate the hazardous waste onsite for 270 day s or less without a permit or interim status, provided that specified standards are met. (262.34(d) and (e)) Containment 40 C FR 262.34(a) and (d) provide that LQGs and SQGs may accumulate their hazardous waste in containers and tanks in accordance with 40 CFR Part 265, Subparts I and J , respectively. In addition, L QGs may

accumulate the ir hazardous waste in containment building s in accordance with 40 CFR Part 265, Subpart DD. The purpose of these standards is to contain the waste in the unit, among other things. Section 5.2 of this appendix gives examples of some of these standards. Air Emission Standards 40 CFR 262.34(a) requires LQGs to compl y with the air emission standards for containers and tanks at 40 CFR Part 265, Subparts AA, BB, and CC, as applicable. SQGs are not subject to these subparts . Section 5 .2 of this appendix summarizes the Subpart AA through CC require ments. Emergency Preparedness and Response Emergency Equipment . 40 CFR 262.34(a) and (d) require LQGs and SQGs to comply with the preparedness and prevention requirements of 40 CFR Part 265, Subpart C. Subpart C requires that they be equipped with, test, and maintain emergency equipment, including internal and external communications and alarm s ys tems, fire control equipment, and water, if needed for the hazards posed b y waste handled at the facility. Emergency Plan and Response. 40 CFR 262.34(a) require s LQGs to comply with the contingency plan and emergency procedures of 40 CFR Part 265, Subpart D. Subpart D requires that they designate an emergency

coordinator and have a contingency plan designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non - sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water. The emergency

coordinator must carry

out the following procedures whenever there is a fire, release, and explosion:

 Notify

onsite and offsite personnel/agencies as specified;

 Id entify , assess, and control releases, fires or explosions and related hazards ;
 Take other actions as specified (e.g., ensure treatment, storage, or disposal of recovered waste ). 40 CFR 262.34(d) requires SQGs to designate an emergency coordinator and post emergency information next to the telephone (e.g., location of fire extinguisher). In the event of a fire, explosion or other release, the emergency coordinator must notify

appropriate offsite personnel/agencies and control/clean up to the fire, release or other emergency (e.g., contain the flow of hazardous waste ). Personnel Training 40 CFR 262.34(a) requires LQGs to compl y with the personnel training requirements of 40 CFR 265.16. LQ Gs must provide initial training and annual review , which teach facility personnel to perform their duties in a way that ensures the facility ’s complianc e with applicable RCRADRAFT Internal Report Provided for Peer Review 12/20/2010

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- 85 requirements. It must ensure, at a minimum, that personnel are able to respond effectivel y to emergencies. Specified records must be kept. 40 CFR 262.34(d) requires SQGs to ensure that all employees are thoroughly familiar with pro per waste handling and emergency procedures relevant to their responsibilities during normal facility operations and emergencies. Reporting and Recordkeeping Notification. Under 40 CFR 262.12, a generator must not treat, store, dispose of, transport, or o ffer for transportation, hazardous waste without having received an EPA identification number from EPA . The generator may obtain an ID number by

submitting a Site Identification Form (EPA Form 8700

- 12) to EPA. Biennial Report. 40 CFR 262.41 requires LQGs to prep are and submit a Biennial Report to EPA by March 1 of each even numbered year. The Biennial Report must be submitted on EPA Form 8700

– 13A and include information about the generator, hazardous wastes generated , onsite management , and offsite shipm ent s . SQGs are not required to submit a Biennial Report. Exception Report. Under 40 CFR 262.42, a generator must submit an Exception Report to EPA if has not received a copy of the manifest from the designated facility within 45 day s (for LQGs) or 60 days (for SQGs) of the date the waste was accepted by the initial transporter. The Exception Report must explain the generator’s efforts to locate the waste and the results of those efforts. Recordkeeping. 40 CFR 262.40 requires generators to retain the f ollowing documents for three ye ars:
 Manifests;

 Biennial Report (LQGs only); and

 Results of waste anal ys es, tests, and other determinations. Offsite Transportation Manifest System. Under 40 CFR Part 262, Subpart B, generators must prepare a hazardous w ast e manifest for all offsite shipments, give it to initial the transporter, and retain a cop y. The transporter must ensure that the manifest accompanies the shipment to the designated facility and retain a cop y. The designated facility must note discrepanc ies, retain a copy and send a copy back to the generator to confirm receipt. Department of Transportation (DOT) Requirements. 40 CFR 262.30 through 262.33 require g enerators to comply

with the following DOT requirements for the waste before it is transported offsite:

 Packaging requirements at 49 CFR Parts 173, 178, and 179 ; and

 Labeling , marking, and placarding requirements at 49 CFR Part 172. Exports Under 40 CFR Part 262, Subparts E and H, a primary exporter must provide notice to EPA of its intent to export hazardous waste. The shipment cannot take place until the receiving country consents (e.g., tacit or written) to the shipment. The primary expo rter must comply

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- 86 requirements for use of a tracking document (e.g., manifest), as specified. In addition, exports to countries in the Organization for Economic Cooperation and Development must occur under the conditions of a contract, as specifie d. The primary exporter must file an annual report by March 1 of each ye ar to EPA, summarizing the ty pes, quantities, frequency , and ultimate disposition of all hazardous waste exported. The primary exporter must keep a cop y of specified documents (e.g., each notification, annual report). Regulation of Residues 40 CFR 261.3( c) provides that any material derived from a listed hazardous waste is also a listed hazardous waste

. Enforcement and Compliance EPA’s National Program Manager (NPM) Guidance for Fis cal Year 2010 establishes performance expectations and activities related to the L QG universe for the EPA Regions and states. It requires that they annuall y inspect at least 20% of the LQG universe, so that the entire universe is inspected in five years unless approval to deviate from this requirement is approved. 46 5 . 1.2 Hazardous Waste Storage Standards (40 CFR Parts 264 and 265 ) A facility that treats, stores of disposes of hazardous waste must comply with the technical requirements of 40 CFR Part 264 or 265. Part 264 establishes requirements for treatment, storage or disposal facilities (TSDFs) that have received a RCRA permit under Part 270. Part 265 establishes requirements for TSDFs that are under interim status until either a RCRA permit is issu ed or closure and post

- closure responsibilities are fulfilled. Following is a summary of some of the requirements applicable to facilities that store hazardous waste. Legitimate Recycling Section 5 .1 summarizes the requirements and policy related to the legitimate recycling of hazardous waste. Containment F acilities must store their hazardous waste in containers, tanks, surface impoundments, waste piles, or containment buildings in accordance with 40 CFR Part 264 or 265 , Subparts I , J, K, L, or DD, resp ectivel y. The purpose of these standards is to contain the waste , among other things. Following are examples of standards for the design, operation, inspection, and closure/post

closure of these units. Design Standards

 L iners and leachate collection and removal s ys tems

 A ir emission controls

 O ther control measures (e.g., dikes, run

- on/run

- off sy stems) Operating Standards

 Controls and practices to prevent spills and overflows (e.g., maintenance of sufficient freeboard in uncovered tanks)

46 “FY 2010 Office of En forcement and Compliance Assurance (OECA) National Program Manager (NPM) Guidance April 23, 2009.” See page 44.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 87  Controls to prevent wind dispersal of particulate matter

 Special procedures for storing ignitable, reactive waste, and incompatible waste (e.g., waste segregation) Monitoring and Inspection Standards

 Periodic inspections to detect leaks and ensure the unit is in good working order (e.g., at least weekl y for containers)

 Periodic monitoring of leakage rates from surface impoundments and waste piles Closure and Post

- Closure Care Standards

 R emoval or decontamination of all waste residues, contaminated containment sy ste m components, contaminated soils, and structures/equipment contaminated with waste

 Elimination of free liquids

 Performance of post

- closure care, if applicable (e.g., maintenance and monitoring) Air Emission Standards EPA has established air emission standards at 40 CFR Parts 264 and 265, Su bparts AA, BB, and CC. They

appl y to LQG and TSDF containers, tanks, and other units as specified. They are summarized below. Air Emission Standards for Process Vents at 40 CFR Parts 264 and 265, Subpart AA Part s 264 and 265, Subpart AA applies to process vents associated with distillation, fractionation, thin

- film evaporation, solvent extraction, or air or steam stripping operations that manage hazardous wastes with organic concentrations of at least 10 ppmw, if these operations are c onducted in specified units (e.g., units subject to permitting requirements). Facilities must design, operate , monitor, and maintai n their process vents to either 1) reduce total organic emissions from all affected process vents at the facility below specified levels or 2) reduce, b y use of a control device, total organic emissions from all affected process vents at the facility by 95 weight percent. Air Emission Standards for Equipment Leaks at 40 CFR Parts 264 and 265, Subpart BB Part s 264 and 265, Subpart BB applies to equipment that contains or contacts hazardous wastes with organic concentrations of at least 10 percent by weight that are managed in specified unit ty pes (e.g., units subject to permitting requirements). Facilitie s must comply with the design, operation, inspection, monitoring, testing, maintenance , and recordkeeping standards for specified types of equipment (e.g., p umps , compressors, pressure relief devices). Air Emission Standards for Tanks, Surface Impoundments, and Containers at 40 CFR Parts 264 and 265, Subpart CC Part s 264 and 265, Subpart CC applies to tanks, surface impoundments, and containers, except as otherwise specified. Tanks. Facilities must control air pollutant emissions from tanks in accordance with Tank Level 1 or Tank Level 2 controls , as specified (e.g., installing a fixed roof)

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- 88 Surface Impoundments. Facilities must control air pollutant emissions from surface impoundments by

using either a floating membrane cover or a cover that is vented through a closed

- vent s ys tem to a control device, as specified. Containers. Facilities must control air pollutant emissions from containers in accordance with Container Level 1, 2, or 3 standards (e.g., use of containers that meet applicable DOT regulations )

. Emergency Preparedness and Response Emergency Equipment . Facilities must comply with the preparedness and prevention requirements of Subpart C of 40 CFR Parts 264 and 265. Subpart C requires that they be equipped with, test, and maintain emergency equipment, including internal and external communications and alarm sy stems, fire control equipment, and water, if needed for the hazards posed by waste handled at the facility

. Emergency Plan and Response. Facilities must comply wi th the contingency

plan and emergency

procedures of Subpart D of 40 CFR Parts 264 and 265. Subpart D requires that they designate an emergency

coordinator and have a contingency plan designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non

sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water. The emergency

coordinator must carry

out procedures for responding to fires, releases, and explosions, includi ng:
 Notify

onsite and offsite personnel/agencies as specified;

 Id entify , assess, and control releases, fires or explosions and related hazards ;
 Taking other actions as specified (e.g., ensure treatment, storage, or disposal of recovered waste ). Security Facilities must prevent the unknowing entry , and minimize the possibility for the unauthorized entry , of persons or livestock onto the active portion of the facility , unless specified otherwise, as required b y 40 CFR 264.14 and 265.14. This must include a surveillance s ystem or barrier (e.g., fence). Personnel Training Facilities must comply

with the personnel training requirements of 40 CFR 264.16 or 265.16. Facilities must provide initial training and annual review , which teach facility personnel to perform their duties in a way that ensures the facility ’s compliance with applicable requirements. It must ensure, at a minimum, that personnel are able to respond effectively to emergencies. Specified records must be kept. Reporting and Recordkeeping Notification . Under 40 CFR 264.11 and 265.11, every facility must appl y to EPA for an EPA identification number in accordance with the EPA notification procedures. Biennial Report . 40 CFR 264.75 and 265.75 require facilities to prepare and submit a sing le copy of a biennial report to EPA by March 1 of each even numbered year. The report mustDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 89 include information about the facility , wastes received (e.g., from offsite ) , management and disposal method s . Discrepancy Report. 40 CFR 264.71 and 265.71 requir e a fac ility that receives an offsite shipment to note discrepancies between the waste and manifest. The facility must attempt to reconcile the discrepancy . If it cannot, it must submit a Discrepancy Report to EPA within 15 day s, explaining the discrepan cy and efforts to resolve it. Recordkeeping . 40 CFR 264.73 and 265.73 require facilities to record and maintain the following information in an operating record (e.g., waste and unit descriptions, emergency incidents, inspection/monitoring results, notice s and certifications). Financial Assurance 40 CFR Parts 264 and 265, Subpart H require s facilities to have and maintain a cost estimate for closure and, if applicable, post

- closure. They also must obtain financial assurance for closure and, if applicable, post

- closure. In addition, facilities must maintain liability coverage for sudden accidental occurrences of at least $1 million per occurrence with an annual aggregate of at least $2 million. Facilities with a surface impoundment, landfill, land treatment facility, or disposal miscellaneous unit as specified also must maintain liability coverage for non

- sudden accidental occurrences in an amount of at least $3 million per occurrence with an annual aggregate of at least $6 million. Subpart H identifies a variety of financial instruments for these purposes (e.g., trust fund, surety bond). Regulation of Residues 40 CFR 261. 3( c) provides that any material derived from a listed hazardous waste is also a listed hazardous waste

. Requirement for a Permit 40 CFR Part 270 requires a facility owner/operator to obtain a permit to treat, store or dispose of hazardous waste. Owner/ ope rators must have a permit during the active life ( including closure period) of their hazardous waste management unit s . Owner/operators of surface impoundments, landfills, land treatment units, and waste pile units also must have post

- closure permits, unle ss they demonstrate closure by

removal or decontamination s specified. The permit specifies the requirements to which the facility is subject. Public Involvement in the Permit Process T he RCRA permitting process is laid out at 40 CFR Parts 124 and 270

. Following its basic elements, including public involvement methods :
 Applicant holds a public meeting with the public prior to submitting the Part B RCRA permit application to EPA (e.g., to explain its facility)

.  The facility

submits a Part A and Part B per mit application to EPA or authorized state permitting agency that contains the information required in Part 270, Subpart B.

 Permitting agency will issue a public notice that an application has been received and where it is available for public review. T he agency will review the application forDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 90 completeness and send a written notification to the applicant indicating whether the application is complete.

 Once an application is complete, the agency will tentatively decide whether to issue or deny the permit. If it decides to issue a permit, it will prepare a draft permit that contains requirements and conditions as specified. If it decides to deny the permit, it will issue a notice of intent to deny.
 The permitting agency will provide public notice of its i ntent to issue or deny the permit , along with a fact sheet . The notice must be circulated in specified media (e.g., local papers, etc.) and allow at least 45 day s for public comment.

 The permitting agency will hold a public hearing whenever it receives written notice of opposition to a draft permit and a request for a hearing, as specified. Whenever possible, it will schedule a hearing at a location convenient to the nearest population center to the proposed facility

.  After the close of the public comment period, the agency will either issue or deny the permit. It also must prepare a written response to comments and make it publicly available. EPA/State Oversight and Enforcement RCRA section 3007(c) requires annual inspections of federal TSDFs. RCRA section 3007(d) requires annual inspections of state and local TSDFs. RCRA section 3007(e) requires that other TSDFs be inspected no less than every 2 years . EPA’s National Program Manager (NPM) Guidance for Fiscal Year 2010 establishes performance expec tations and activities related to the TSDF universe for the EPA Regions and states. It requires that they inspect at least once every two years each operating TSDF, as required under RCRA section 3007(e), i.e., 50% of the TSDF universe annually . It also requires the EPA Regions to annually inspect each TSDF operated b y states or local governments as required under RCRA section 3007(d). 47 5.2 Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste Exclusions 5.2.1 Generator
- Controlled Ex c lusion (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)) The generator

- controlled exclusion exclude s from the definition of solid waste those hazardous secondary materials which remain under the control of the generator when legitimatel y reclaimed. The exclusi on can be claimed for materials that are:

 Generated and reclaimed at the generating facility ;
 Generated and reclaimed at different facilities, if the reclaiming facility is controlled by the generator or if both the generating facility and the reclaiming facility are controlled by a person as defined in section 260.10 ; and

 Generated pursuant to a written contract between a tolling contractor and a toll manufacturer and is reclaimed by the tolling contractor. A tolling contractor means a

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- 91 person who arrang es for the production of a product or intermediate made from specified unused materials through a written contract with a toll manufacturer. Toll manufacturer means a person who produces a product or intermediate made from specified unused materials pursu ant to a written contract with a tolling contractor. The conditions and requirements of the exclusion are summarized below. Legitimate Recycling The generator

- controlled exclusion requires the reclamation of hazardous secondary material to be legitimate, as specified under section 260.43. Section 260.43(a) provides that persons regulated under section 260.34 or claiming to be excluded from hazardous waste regulation under sections 261.2(a)(2)(ii), 261.4(a)(23), (24), or (25) because they

are engaged in reclamation must be able to demonstrate that the recycling is legitimate. Hazardous secondary material that is not legitimately recycled is discarded material and is a solid waste. In determining if their recycling is legitimate, persons must address the requirements of section 260.43(b) and must consider the requirements of section 260.43(c). Section 260.43(b) provides that legitimate recycling must involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process, and the recycling process must produce a valuable product or intermediate as specified. Section 260.43(c) identifies factors that must be considered in making a determination as to the overall legitimacy

o f a specific recycling activity . These factors relate to how the generator and reclaimer should manage the material (e.g., as a valuable commodity) and how closel y the product of the recycling process resembles analogous products. In making a determinati on that a hazardous secondary

material is legitimately

recycled, persons must evaluate all factors and consider legitimacy

as a whole. If, after careful evaluation of these other considerations, one or both of the factors are not met, then this fact may b e an indication that the material is not legitimatel y rec ycled. However, the factors do not have to be met for the recycling to be considered legitimate. In evaluating the extent to which these factors are met and in determining whether a process that do es not meet one or both of these factors is still legitimate, persons can consider other relevant factors. Storage Time Limit The generator

- controlled exclusion requires that the material not be speculatively accumulated, as defined in section 261.1(c)(8). Section 261.1(c)(8) provides that a material is “accumulated speculativel y” if it is accumulated before being recycled. A m aterial is not accumulated speculativel y, however, if the person accumulating it can show that the material is potentially recyclable and has a feasible means of being recycled; and that

—during the calendar year (commencing on January 1)

—the amount of material that is recycled, or transferred to a different site for recycling, equals at least 75 percent by weight or volume of the amount of that material accumulated at the beginning of the period. Containment The generator

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- 92 The generator

- controlled exclusion require s that the material be contained

. Emergency Preparedness and Response The generator

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

- controlled exclusion do es not require personnel training. Reporting and Recordkeeping The generator

- controlled exclusion requires notification to EPA in accordance with 40 CFR 260.42. Section 260.42 requires hazardous seco ndary material generators, tolling contractors, toll manufacturers, reclaimers, and intermediate facilities managing hazardous secondary materials which are excluded from regulation under section 261.2(a)(2)(ii), 261.4(a)(23), (24), or (25) to send a notif

ication prior to operating under the exclusion(s) and by March 1 of each even numbered ye ar thereafter to EPA using EPA Form 8700

– 12. The form must include the following types of information:

 In formation about the claimant and exclusion being claimed;

 Des cription of the materials to be managed under the exclusion (e.g., quantity); and

 Description of management methods

. Offsite Transportation The generator

- controlled exclusion do es not include provisions for offsite transportation. Exports The generator

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

- controlled exclusio n do es not address how residues from the reclamation process should be managed under RCRA. 5.2.2 Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste Transfer
- Based Exclusion (40 CFR 261.4(a)(24) and (25)) The transfer

- based exclusion exclude s from the definition of solid waste those haz ardous secondary materials that are generated and subsequently transferred to another company or person for the purpose of legitimate reclamation. The conditions and requirements of the exclusion are summarized below. 5.2.2.1 Hazardous Secondary Material Generators (40 CFR 261.4(a)(24) and (25)) Legitimate Recycling 40 CFR 261.4(a)(24)(iv) requires that th e reclamation of the material be legitimate, as spec ified under section 260. 43. Section 2.1 of this appendix on RCRA summarizes the requirements for legitimate recycling under section 260.43.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 93 In addition, section 261.4(a)(24)(v)(B) requires that, p rior to arranging for transport of hazardous secondary materials to a reclamation facility (and any interme diate facility) where the management of the hazardous secondary materials is not addressed under a RCRA Part B permit or interim status standards, the generator must make reasonable efforts to ensure that each reclaimer intends to properly and legitimatel y reclaim the hazardous secondary material and not dis card it, and that each facility will manage the hazardous secondary material in a manner that is protective of human health and the environment. Reasonable efforts must be repeated at a minimum of every three years. Section 261.4(a)(24)(v)(B) sets forth a series of questions about the facility

that the generator must affirmativel y answer. Section 3.2.10 of this appendix on RCRA presents these questions. Storage Time Limit 40 CFR 261.4(a)(24)(i) provid es that the material must not be speculatively accumulated, as defined in section 261.1(c)(8). Section 2.2 of this appendix on RCRA summarizes the speculative accumulation provisions of section 261.1(c)( 8). Containment 40 CFR 261.4(a)(24)(v)(A) require s that the material be contained. Air Emission Standards 40 CFR 261.4(a)(24)(v)(A) require s that the material be contained. Emergency Preparedness and Response The transfer

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

- based exclusion do es not require personnel training. Reporting and Recordkeeping Reporting

. The transfer

- based exclusion requires notification to EPA in accordance with 40 CFR 260.42. Section 2.7 of this appendix on RCRA summarizes the notification requirement and ty pes of information that must be submitted. The generator must also make d ocumentation and certification of its reasonable efforts available upon request b y a regulatory authority within 72 hours, or within a lo nger period of time as specified b y the regulatory authority , as required by section 261.4(a)(24)(v)(C)

. Recordkeeping . 40 CFR 261.4(a)(24)(v)(C) requires the generator to maintain for a minimum of three ye ars documentation and certification that reasona ble efforts were made for each reclamation facility

and, if applicable, intermediate facility where the management of the hazardous secondary

materials is not addressed under a RCRA Part B permit or interim status standards prior to transferring hazardous secondary material. T he certification statement must include specified information. Section 261.4(a)(24)(v)(D) and (E) require the generator to maintain at the generating facility for no less than three ye ars records of all off site shipments of hazardous secondary materials and confirmations of receipt from each reclaimer and, if applicable, each intermediate facility for all off site shipments of hazardous secondary materials.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 94 Offsite Transportation 40 CFR 261.4(a)(24)(ii ) requires the material not be handled b y an y person or facility other than the hazardous secondary

material generator, the transporter, an intermediate facility or a reclaimer, and, while in transport, not be stored for more than 10 day s at a transfer facility , and be packaged accordin g to applicable Department of Transportation regulations at 49 CFR Parts 173, 178 , and 179 while in transport. Section 261.4(a)(24)(v)(D) requires the generator to maintain at the generating facility for no less than three ye ars records of all off

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

 Name of the transporter and date of the shipment;

 Name and address of each reclaimer and, if applicable, the name and address of each intermediate facility

to which the hazardous secondary material was sent; and

 The ty

pe and quantity of hazardous secondary material in the shipment. Section 261.4(a)(24)(v)(E) requires the generator to maintain at the generating facility for no le ss than three ye ars confirmations of receipt from each reclaimer and, if applicable, each intermediate facility

for all off

- site shipments of hazardous secondary materials. Confirmations of receipt must include the following information:

 Name and address of the reclaimer (or intermediate facility);

 Ty pe and quantity of the hazardous secondary materials received ; and

 D ate which the hazardous secondary materials were received. This requirement may

be satisfied by

routine business records (e.g., financial re cords, bills of lading, copies of DOT shipping papers, or electronic confirmations of receipt). Exports 40 CFR 261.4(a)(25) provides that h azardous secondary material that is exported from the United States and reclaimed at a reclamation facility located in a foreign country is not a solid waste, provided that the hazardous secondary material generator complies with the applicable requirement s of section 261.4(a) (24)(i)

– (v) (excepti ng paragraph (a) (24) (v)(B)(2) for foreign reclaimers and foreign intermediate facilities) . T he generator also must compl y with section 261.4(a)(25). Under section 261.4(a)(25), the generator must notify EPA of an intended export before the hazardous secondary

material is scheduled to leave the United States, as specified. The export of hazardous secondary

material is prohibited unless the receiving country consents (written or tacit) to the intended export. When the receiving country consents to the receipt of the export, EPA will send an Acknowledgment of Consent (AOC) to the generator. An AOC must accompan y the shipment. The generator must file an annual report with EPA no later than March 1 of each ye ar, summarizing the ty pes, quantities, frequency and destination of all materials exported. The generator must keep a copy of the AOC and comply

with the notification requirements of section 260.42. Section 2.7 of this appendix on RCRA summarizes the ty pes of i nformation that must be submitted under section 260.42.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 95 Regulation of Residues The transfer

- based exclusion do es not include regulations for generators to manage the residues of reclamation. Under the exclusion, the materials must be generated and subsequently sent to an offsite facility

for reclamation. 5 .2 .2.2 Intermediate and Reclamation Facilities (40 CFR 261.4(a)(24)) Legitimate Recycling 40 CFR 261.4(a)(24)(iv) requires that th e reclamation of the material be legitimate, as spec ified under sec tion 260.43. In addition, generators must make reasonable efforts as applicable to ensure that each facility intends to properl y and legitimatel y reclaim the hazardous secondary material and not discard it, and that each facility will manage the hazardous secondary material in a manner that is protective of human health and the environment. Section 5.2.2.1 of this appendix summarizes the requirements for legitimate recycling

. Containment 40 CFR 261.4(a)(24)(vi)(D) require s the reclaimer and intermediate facility to manage the hazardous secondary

material in a manner that is at least as protective as that employed for analogous raw material and must be contained. An ‘‘analogous raw material’’ is a raw material for which a hazardous secondary material is a substitute and serves the same function and has similar phy sical and chemical properties as the hazardous secondary material. Air Emission Standards Section 3.2.2 of this appendix on RCRA summarizes the requirement to contain the material. Em ergency Preparedness and Response The transfer

- based exclusion do es not include requirements for emergency preparedness and response. Security The transfer

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

- based ex clusion do es not require personnel training. Reporting and Recordkeeping Reporting

. The transfer

- based exclusion requires notification to EPA in accordance with 40 CFR 260.42. Section 2.7 of this appendix on RCRA summarizes the notification requirement and ty pes of information that must be submitted. Recordkeeping . 40 CFR 261.4(a)(24)(vi)(A) requires the reclaimer and intermediate facility to maintain at their facility for no less than three ye ars records of all shipments of hazardous secondary material that were received at the f acility and, if applicable, all shipments of hazardous secondary

materials that were rec eived and subsequentl y sent off site from the facility for further reclamation. Financial AssuranceDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 96 40 CFR 261.4(a)(24)(vi)(F ) requires the reclaimer and intermediate facil ity to have financi al assurance as required under Subpart H of 40 CFR P art 261. Subpart H requires facilities to have and maintain a cost estimate for closure. They also must obtain financial assurance for closure. In addit ion, facilities must have and maintain liability coverage for sudden accidental occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at least $2 million. A facility with land

- based units used to manage hazardous secon dary materials must have and maintain liability coverage for nonsudden accidental occurrences in the amount of at least $3 million per occurrence with an annual aggregate of at least $6 million

. Subpart H identifies a variety of financial instruments for these purposes (e.g., trust fund, surety bond). Regulation of Residues 40 CFR 261.4(a)(24)(vi)(E) provides that any residuals that are generated from reclamation processes must be managed in a manner that is protective of human health and the environment. I f any residuals exhibit a hazardo us characteristic according to Subpart C of 40 CFR P art 261, or if they themselves are specificall y listed in Subpart D of 40 CFR P art 261, such residuals are hazardous wastes and must be managed in accordance with the app l icable requirements of 40 CFR P arts 260 through 272. Requirement for a Permit The transfer

- based exclusion does not require the intermediate or reclamation facility to obtain a permit. However, if the facility does not have a permit, it must undergo reaso nable efforts b y generators that intend to send their material to it, as required b y section 261.4(a)(24)(v)(B). The generator s must affirmatively answer all of the following questions for each reclamation facility and an y intermediate facility :
 Does the available information indicate that the reclamation process is legitimate pursuant to section 260.43?

 Does the publicly

available information indicate that the reclamation facility and any intermediate facility

that is used by

the hazardous secondary material generator notified the appropriate authorities of hazardous secondary materials reclamation activities pursuant to section 260.42 and have they notified the appropriate authorities that the financial assurance condition is satisfied per section 261.4(a)(24)(vi)(F)?

 Does publicly

available information indicate that the reclamation facility or any intermediate facility

that is used by

the hazardous secondary material generator has not had an y formal enforcement actions taken against the facility in the previous three years for violations of the RCRA hazardous waste regulations and has not been classified as a significant non

- complier with RCRA Subtitle C? If the reclamation facility or any intermediate facility

that is used by

the hazardous secondary mate rial generator has had a formal enforcement action taken against the facility in the previous three ye ars for violations of the RCRA hazardous waste regulations and has been classified as a significant non

- complier with RCRA Subtitle C, does the hazardous secondary material generator have credible evidence that the facilities will manage the hazardous secondary materials properly?DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 97  Does the available information indicate that the reclamation facility and any intermediate facility that is used by

the hazardou s secondary material generator have the equipment and trained personnel to safel y rec ycle the hazardous secondary material?

 If residuals are generated from the reclamation of the excluded hazardous secondary materials, does the reclamation facility have th e permits required (if any) to manage the residuals? I f not, does the reclamation facility have a contract with an appropriately permitted facility

to dispose of the residuals? I f not, does the hazardous secondary material generator have credible evidence that the residuals will be managed in a manner that is protective of human health and the environment? Public Involvement in the Permit Process The transfer

- based exclusion does not include methods for public involvement. 5.3 Clean Air Act (CAA) This section gives an overview of the Clean Air Act (CAA) regulation of emissions from stationary sources. It also describes the CAA regulations related to chemical accident prevention. A “stationary source” means any

building, structure, facility , or install ation which emits or may

emit any air pollutant (e.g., factories, manufacturing plants)

. 5.3.1 CAA Title V Air Quality Permitting Process Title V of the Clean Air Act authorizes EPA to establish minimum elements to be included in all state and local operating permit programs and then assist the state and local governments in developing their programs. Most Title V permits are issued b y state and local permitting authorities under 40 CFR Part 70. However, EPA also issues some Title V permits (e.g., t o sources in Indian country) under Part 71. The permit program involves public participation. Draft Title V permits issued by authorized state agencies are published for public review and comment prior to issuance of a permit. All “major” stationary

sources emitting certain air pollutants are required to obtain Title V operating permits. A major source for hazardous air pollutants is defined as a source that emits more than 10 tons per ye ar of an y single Hazardous Air Pollutant (HAP) or more than 25 ton s per year of HAPs in total. Inaddition, a limited number of area sources (i.e., sources that do not meet the criteria for a major source) also may be required to obtain a permit under the federal regulatory

program, e.g.:
 Hazardous waste combusters ;
 P ortland cement manufacturers ;
 Mercury

cell chlor

- alkali plants;

 Secondary

lead smelters;

 Carbon black production ;
 Chemical manufacturing: chromium compounds ;
 Primary

co pper smelting;

 Secondary

copper smelting ;DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 98  Nonferrous metals area sources ;
 Glass m anufacturing ; and

 Electric arc furnace (EAF) steelmaking f acilities

. Title V operating permits contain air emissions permit limits, control requirements, and operating requirements for regulated air emissions sources. Potentially applicable requirements that could be included in a permit can be found in various parts of 40 CFR, such as:

 Part 60: “Standards of Performance for New Stationary Sources (NSPS).” This part regulates emissions from stationary sources of criteria pollutants for which EPA has esta blished National Ambient Air Quality Standards (NAAQS); and

 Part 63: “National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Categories.” This part regulates emissions of hazardous air pollutants (HAPs) from source categories. The t able below gives examples of CAA technical standards that could be included in a permit to control air emissions. These standards could potentially appl y to some facilities claiming a DSW exclusion and address emissions from process vents, equipment leaks , and/or emissions from tanks, surface impoundments and containers. Also, state agencies have the regulatory authority to issue permits to minor sources of air emissions. Emissions thresholds for the definition of “minor source” vary among state regulat ory

programs. Examples of Technical Standards under the Clean Air Act Standards of Perform ance for New Stationary Sources at 40 CFR Part 60 Subpart Ka

— Standards of Performance for Storage Vessels for Petroleum Liquids. The provisions of this subpart apply to each petroleum liquids storage vessel which has a storage capacity greater than 151,412 liters (40,000 gallons) Subpart Kb

— Standards of Performance for Volatile Organic Liquid Storage Vessels (Including Petroleum Liquid Storage Vessels). The provisions of this subpart apply to each volatile organic liquids storage vessel with a capacity greater than or equal to 75 cubic meters (m 3 ) (app rox. 20,000 gallons) Subpart VV and Subpart VVa

— Standards of Performance for Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry. The provisions of this subpart apply to affected facilities in the synthetic organic chemicals manufacturing industry, including production of chemical compounds as specified. These subparts include design, operating and other standards applicable to process vents and equipment leaks. Subpart NNN

— Standards of Performance for Volatile Organic Compo und (VOC) Emissions From Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation Operations. The provisions of this subpart apply to distillation unit vent streams and to combinations of a distillation unit and its associated recovery system s at facilities in the synthetic organic chemical manufacturing industry. National Emission Standards for Hazardous Air Pollutants fromSource Categories at 40 CFR Part 63 Subpart F

—

National Emission Standards for Organic Hazardous Air Pollutants From the Synthetic Organic Chemical Manufacturing Industry. The provisions of this subpart apply to facilities that manufacture as a primary product one or more of the synthetic org anic chemicals listed in the subpart, as specified. Subpart G

—

National Emission Standards for Organic Hazardous Air Pollutants From the Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewat er. The provisions of this subpart apply to synthetic organic chemical manufacturing industry facilities that are covered under Part 63, Subpart F (above). Subpart H

—

National Emission Standards for Organic Hazardous Air Pollutants for Equipment Leaks. The provisions of this subpart apply to synthetic organic chemical manufacturing industry facilities that are covered under Part 63, Subpart F (above).DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 99 Examples of Technical Standards under the Clean Air Act Subpart DD

—

National Emission Standards for Hazardous Air Pollutants from Off

- Site Waste and Recovery Operations. The provisions of this subpart apply to facilities that are major sources of hazardous air pollutants and that receive “offsite material” for treatme nt (e.g., a waste or used solvent). Subparts OO, PP, QQ, WW

– National Emission Standards for Tanks (Level 1), Containers, Surface Impoundments, and Storage Vessels (Level 2). These subparts apply to the control of air emissions for the specified unit types for which another subpart of Parts 60

- 63 references the use of these subparts for such air emission control. Subpart TT

—

National Emission Standards for Equipment Leaks

— Control Level 1 and Subpart UU

— National Emission Standards for Equipment Leaks

—Control Level 2. The provisions of these subparts apply to the control of air emissions from equipment leaks for which another subpart references the use of these subparts for such air emission control.
5. 3 .2 CAA Standards for Area Sources Not Su bject to Title V Permit Area sources not subject to a Title V permit may still be subject to CAA regulation, depending on the applicability

p rovisions of the particular regulation . The area source would be required to notify EPA (or the delegated state ag ency) typically 120 days following promulgation, whether it is subject to the regulation. The table below gives examples of CAA regulations that could apply to area sources that are exempt from a permit. Some of these regulations could apply to the ty pes of facilities that could claim a DSW exclusion. For more information on area sources and applicable regulations, go to: http://www.epa.gov/ttn/atw/area/compilation.html

. 5.3.3 Chemical Accide nt Prevention Provisions The Clean Air Act authorizes requirements for owner /o perators of stationary

sources concerning the prevention of accidental releases. These requirements are codified at 40 CFR Part 68, “Chemical Accident Prevention Provisions.” An owner / operator of a stationary

source (e.g., a building or plant) that has more than a threshold quantity of a regulated substance in a process (e.g., storage) must comply with Part 68. “Regulated substances” are toxic and flammable substances with threshold quantities listed in section 68.130. 48 There are 140 regulated substances with threshold quantities ranging from 500 to 20,000 pounds. Part 68 requires the owner/operator of a stationary source to d evelop a risk management plan (RMP) that describe s the facility ’s ris k management program. The RMP is made available to federal, state, and local government agencies and the public. The owner/ope rator must develop its risk management program in accordance with the following program requirements:

 Program 1: Processes which would not affect the public in the case of a worst

- case release and with no accidents with specified offsite consequences with in the past five ye ars are eligible for Program 1.

 Program 2: Processes not eligible for Program 1 or subject to Program 3 are placed in Program 2.

 Program 3: Processes not eligible for Program 1 and meet ing other requirements (e.g., they are classified in one of ten specified North American Industrial Classification Sy stem (NAI CS) codes) are placed in Program 3. Following is a summary

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

48 These regulated substances are also CERCLA hazardous substances. Facilities subject to Part 68 also would be subject to OSHA requirements as applicable (e.g., at 29 CFR 1910.119 and 1910.120).DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 100 Emergency Preparedness and Response Owner/operators of a stationary source with a process eligible for Program 1 must designat e a point of contact for emergency response and at least mak e arrangements with local response authorities. Owner/operators of a stationary source with a process subject to Program 2 or 3 have the option of either developing an emergency response program or making alternative arrangements, as follows: 1. Alternative Arrangements . Owner/operators whose employees will not respond to accidental releases of regulated substances need not prepare an emergency response program provided that they meet the following:

 For stationary

sources with any

regulated toxic substance held in a process above the threshold quantity , the stationary source is included in the community emergency response plan developed under 42 U.S.C. 11003 (i.e., the Emergency Planning and Community

Right

- To

- Know Act of 1986);

 For stationary

sources with only

regulated flammable substances held in a process above the threshold quantity , the owner or operator has coordinated response actions with the local fire department; and

 Appropriate mechanisms are in place to notify emergency

responders when there is a need for a response. 2. Emergency

Response Program . Owner/operators subject to Program 2 or 3 that do not make the above alternative arrangements must develop an emergency response program for protecting human health and the environment. The emergency response program must include an emergen cy response plan that includes procedures for informing the public and local emergency response agencies about accidental releases, documentation for administering proper first

- aid and emergency medical treatment as necessary , and procedures/measures for emergency res ponse after an accidental release of a regulated substance. It also must include procedures for using and maintaining emergency response equipment, personnel training in relevant procedures , and procedures to update the plan. Personnel Training Owner/op erators of a stationary source with a process eligible for Program 1 are not required to conduct personnel training. Owner/operators of a stationary source with a process subject to Program 2 or 3 must conduct initial and refresher training for personnel that operate a process. The training must cover specified elements (e.g., normal operations, emergency shutdown and operations). In addition, owner/operators must train their personnel in relevant procedures under their emergency

response program (i.e., if the owner/operator develops an emergency response program instead of making alternative arrangements, as described above).DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 101 5.4 Clean Water Act (CWA)
-- Oil Pollution Prevention The Clean Water Act authorizes requirements to prevent the discharge of oil from non

transportation

- related onshore and offshore facilities into or upon the navigable waters of the United States or adjoining shorelines and other areas as specified. These requirements are codified at 40 CFR Part 112 , “Oil Pollution Prevention

. ” P art 112 establishes requirements for the preparation and implementation of Spill Prevention, Control, and Countermeasure (SPCC) Plans. SPCC Plans are designed to complement existing laws, regulations, rules, standards, policies, and procedures pertaining t o safety standards, fire prevention, and pollution prevention rules. The purpose of an SPCC Plan is t o form a comprehensive federal/s tate spill prevention program that minimizes the potential for discharges. The SPCC Plan must address all relevant spill prevention, control, and countermeasures necessary at the specific facility

. In general, facilities subject to the SPCC requirements are non - transportation

- related, have aboveground oil storage capac ity of more than 1,320 gallons and completely buried oil storage capacity of 42,000 gall ons or less, and could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in quantities that may be harmful

. “Oil” means oil of any kind or in any form (e.g., petroleum, fuel oil, sludge, s ynthetic oils, mineral oils, oil refuse, or oil mixed with wastes other than dredged spoil )

. Emergency Preparedness and Response The SPCC Plan must detail the equipment, workforce, procedures, and steps to prevent, control, and provide adequate countermeasures to a discharge

. The Plan must address specified topics, such as:

 Discharge prevention measures;

 Countermeasures for discharge discovery , response, and cleanup;

 Containment an d/or divers ionary structures and equipment;

 Personnel responsibilities (e.g., for addressing discharges , offsite notifications );

 Plans and procedures for responding to discharges. Personnel Training Facilities must provide train their oil

- handling personne l in the operation and maintenance of equipment to prevent discharges, discharge procedure protocols , applicable pollution control laws and regulations, g eneral facility operations and the contents of the facility SPCC Plan. The facility must s chedule and conduct discharge prevention briefings for its oil

- handling personnel at least once a year to assure adequate understanding of the SPCC Plan for that facility. Such briefings must highlight and describe known discharges or failures, malfunctioning components, and an y recentl y developed precautionary measures.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 102 5.5 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

– Release Notifications Notification requirements for releases of a reportable quantity of a hazardous substance are a uthorized under the Comprehensive Environmental Response, Compensation and L iability Act of 1980 (CERCLA) and Title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA). Notification requirements are codified in 40 CFR Part 302, “Designation, Reportable Quantities, and Notification.” Emergency Preparedness and Response Section 302.6 requires that any person in charge of a vessel or an offshore or an onshore facility must, as soon as he or she has knowledge of an y release of a hazardous substance (including any hazardous waste) from such vessel or facility in a quantity

e qual to or exceeding the reportable quantity (RQ) determined by

Part 302 in an y 24

- hour period, immediatel y notify the National Response Center. Such releases are also subject to state and local reporting under Section 304 of the Emergency

Planning and Co mmunity Right

- to
- Know Act (EPCRA), also known as Title III of SARA. 5 .6 Emergency Planning and Community Right
- to - Know Act (EPCRA)

– Release Notifications Emergency

planning and notification requirements for “extremel y hazardous substances” (EHSs) are authorized under the Comprehensive Environmental Response, Compensation and L iability Act of 1980 (CERCLA) and EPCRA (also known as Title III of SARA). Emerge ncy planning and notification requirements for EHSs are codified at 40 CFR 355. Part 355 is titled, “Emergency

Planning and Notification.” Emergency Preparedness and Response Part 355 requires a facility to compl y with its emergency release notification requirements if it produce s , use s , or store s a hazard ous chemical and releases a reportable quantity (RQ) of an y extremely hazardous substances ( EHS ) or of a hazardous substance as defined by CERCLA (including an y hazardous waste) at the facility. The fac ility must immediately

notify the community

emergency

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

to be affected by

the relea se. The facility

also must submit a follow

- up notification as soon as practicable after the release to provide updated information. 5.7 Hazardous Materials Transportation Act of 1975 (HMTA) 5.7.1 Overview and Applicability The transportation of hazardous materials is regulated b y the Hazardous Materials Transportation Act (HMTA), which is administered by the U.S. Department of Transportation (DOT). HMTA provides DOT with a broad mandate to regulate the transport of hazardous materials, with the purpose o f adequatel y protecting the U.S. against risk to life and property, which is inherent in the commercial transportation of hazardous materials. DOT regulations that govern the transportation of hazardous materials are applicable to any person who transports , ships, causes to be transported or shipped, or who is involved in any way with the manufacture or testing of hazardous materials packaging or containers. DOTDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 103 regulations set forth packaging, handling, labeling, marking, placarding, operational , and rout ing standards

. These regulations include, among others:

 Hazardous Materials Regulations; and

 Transportation of Hazardous Materials; Driving and Parking Rules

. Following is a summary

of these standards. 5.7.2 Hazardous Materials Regulations DOT’s Hazardous Materials Regulations (HMR) are contained in 49 CFR Parts 100 through 180. These regulations pertain to all modes of shipment (e.g., highway , air). Following is a summary of selected regulations as relevant to this anal ys is

. Personnel Training 49 CFR 172, Subpart H requires hazmat employers to train hazmat employees to perform duties under the HMR. Training must be refreshed periodically and training records retained by the employer. The training must cover general awareness/familiarization, function

- specific training, safety, security awareness, and in

- depth security , as specified. In particular, their training on safety must include emergency response information (i.e., information that can be used in the mitigation of an incident involving hazardous materials, such as health hazards, risks of fire/explosions, methods for handling fires/spills). A “hazmat employer” is a person who employ s or uses at least one hazmat employee and who is involved the transportation of hazardous materials as specified. A “hazmat” emplo yee is a person who is emplo ye d by a hazmat employer or self

- employed and who is involved in the transportation of hazardous materials as specified (e.g., loading, preparation for transportation, operation of a transportation vehicle). Offsite Transportation Part 171 lay s out general information, regulations and definitions. It defines “hazardous materials” as those materials designated b y the Secretary of the Department of Transportation as posing an unreasonable threat to th e public and the environment. The term "hazardous materials" includes all of the following: 1) hazardous substances, 2) hazardous wastes, 3) marine pollutants, 4) elevated temperature material, 5) materials identified in 49 CFR 172.101, and 6) materials th at meet the defining criteria for hazard classes and divisions in contained in 49 CFR Part 173 (e.g., Class 1 explosives, Class 2 gases)

. Part 172 lists and classifies those materials which the Department of Transportation has designated as hazardous materials for purposes of transportation and prescribes the requirements for shipping papers, package marking, labeling, and transport vehicle placarding applicable to the shipment and transportation of those hazardous materials. Following is a summary of some of its subparts:

 Subpart B

– Table of Hazardous Materials and Special Provisions. This table (located in §172.101) designates the materials listed therein as hazardous materials for the purpose of transportation of those materials. The purpose of the table is to assign proper shipping names, class and division, and guidance for packaging and handling requirements for hazardous materials. Note: Additional hazardous materials are listed in Appendix A and B to section 172.101.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 104  Subpart C

– Shipping Paper s. The shipping document for hazardous materials must be prepared b y the shipper and contain the proper shipping name, the hazard class or division of the material(s), ID number, and where appropriate, the packing group. No shipper may

transport a hazard ous material unless it is accompanied b y a shipping paper. The shipper must certify

and retain the shipping paper for 2 years. Carriers must check to ensure that the material offered b y the shipper is properl y described, carry the shipping paper during transportation, and retain a copy for 2 years.
 Subpart D

– Markings. The basic marking requirement consists of the proper shipping name and ID number of the hazardous materials contained in a package. Markings should be durable and not be obscured. Additional marking requirements apply depending on the material. Shippers may not offer and carriers may not transport unless the hazardous material markings appl y to the material contained in the package.

 Subpart E

– Labeling. Anyone who offers for transpo rtation or transports a hazardous material must ensure that the package is properl y l abeled with the appropriate hazard class or division number.

 Subpart F

– Placarding. Anyone who offers for transportation or transports a hazardous material must comply

wi th applicable placarding requirements. Each bulk packaging, freight container, unit load device, transport vehicle, or rail car containing any quantity of a hazardous material must be placarded on each side and each end with the applicable placarding requ irements (specified in 49 CFR 172.504).

 Subpart G

– Em ergency Response Information. An emergency response number must be monitored at all times during transportation and at facilities where hazardous materials are loaded for transportation, stored incidental to transportation, or otherwise handled during any phase of transportation. Emergency response i nformation must appear on the shipping paper, describing the hazards of the material and procedures to be used in mitigation of an incident.

 Subpart I

– Se curity Plans. Each employer must establish and implement a security plan and train their relevant employees on the security plan. Parts 173 through180 lay out general requirements for shipments and packagings. They also set forth requirements applicable to particular modes of transportation (e.g., rail, public highway). 5.7.3 Transportation of Hazardous Materials; Driving and Parking Rules 49 CFR Part 397 is titled, “Transportation of Hazardous Materials, Driving and Parking Rules.” P art 397 applies to e ach motor carrier engaged in the transportation of hazardous materials by a motor vehicle that must be marked or placarded under 49 CFR Part 172, as specified. These rules appl y to each officer or emplo yee who performs supervisory duties related to the transportation of hazardous materials and each person who operates the vehicle containing the hazardous materials. Offsite Transport ation Subpart A of Part 397 provides that a motor vehicle that contains hazardous materials other than explosive materials and which is located on a public street or highway must be attended by

its driver, unless the driver is performing duties that are incident and necessary as operator of the veh icle. A motor vehicle which contains an explosive material must be attended at all times byDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 105 its driver or a qualified representative of the motor carrier that operates it, except as otherwise specified. In addition, a motor vehicle that contains hazardo us materials other than explosive materials must not be parked near the traveled portion of a public street or highway . A motor vehicle which contains explosive materials must not be parked under the circumstances specified in the rule (e.g., near or with in a tunnel). Subpart C of Part 397 provides that, for Non

- Radioactive Hazardous Materials (NRHM), motor carriers must comply

with State and Indian Tribe NRHM routing. Placarded and marked vehicles that are not subject to NRHM routing from either a State or Indian Tribe must avoid heavily populated areas, tunnels, and other specified areas. Deviations are allowed where no practical alternative exists or to reach terminals, rest and fueling stops, etc. Deviations for operating convenience are not allowed. 5.8 Occupational Safety and Health Act (OSH Act) The Occupational Safety and Health (OSH) Act was enacted to "assure safe and healthful working conditions for working men and women." The OSH Act establishes the Occupational Safety and Health Administration (OSHA) at the federal level and applies to private sector workers in the U.S. with few exceptions (e.g., the self

- employed). Itdoes not cover employees of state and local governments, except in states that have their own occupational safety and heal th plans that cover these workers. It also does not cover worker conditions that are regulated under worker safety or health requirements of other federal agencies. OSHA has established occupational safety and health regulations at 29 CFR Part 1910. 5.8 . 1 Process Safety Management of Highly Hazardous Chemicals OSHA established requirements for prevent ing or minimizing the consequences of catastrophic releases of toxic, reactive, flammable, or explosive chemicals at 29 CFR 1910.119, “Process Safety Managem ent of Highl y Hazardous Chemicals.” This standard applies to a process (e.g., use, storage, and handling ) which involves 1) a chemical listed in Appendix A of section 1910.119 at or above the specified threshold quantity or 2) a flammable liquid or gas as defined in section 1910.1200(c) that is onsite in one location in a quantity of 10,000 pounds or more, except as specified. These chemicals are referred to as “highl y hazardous chemicals.” Relevant requirements are described below. Emergency Preparedne ss and Response The employer must establish and implement an evacuation plan for the entire plant. The plan must include p rocedures for reporting a fire or other emergency ; emergency evacuation, including type of evacuation and exit route assignments; ope rat ing critical plant operations before evacuation ; account ing for all employees after evacuation; and performi ng rescue or medical duties. In addition, the plan must include procedures for handling small releases. Employers covered under this standard may also be subject to the hazardous waste and emergency

response provisions contained in 29 CFR 1910.120 (a), (p) and (q). Personnel Training The employer must provide initial and recurrent training to each employee involved in operating a process. Emplo ye es must be trained in an ove rview of the process and in operating procedures as specified (e.g., safety sy stems and functions). The training must include emphasis on the specific safety and health hazards, emergency operations including shutdown, and safe workDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 106 practices applicable to the employee's job tasks. In addition, employers must train their employees on the implementation of an evacuation p lan. 5.8 .2 Hazardous Waste Operations and Emergency Response (HAZWOPER) OSHA established “Hazardous Waste Operations and Emergency Response” (HAZWOPER) at 29 CFR 1910.120. Section 1910.120(p) includes requirements that appl y permitted and interim

status T SDFs. In addition, hazardous waste generators must comply with section 1910.120(p)(8) regarding an emergency

response program, as specified. Section 1910.120(q) includes requirements that appl y t o emergency response operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous waste) without regard to the location of the hazard. The term “emergency response” a response effort b y employees from outside the immediate release area or by other designated respond ers (i.e., mutual aid groups, local fire departments, etc.) to an occurrence which results, or is likely to result, in an uncontrolled release of a hazardous substance. Responses to incidental releases of hazardous substances where the substance can be abs orbed, neutralized, or otherwise controlled at the time of release by employees in the immediate release area, or by maintenance personnel are not considered to be emergency

responses within the scope of this standard. Responses to releases of hazardous substances where there is no potential safety or health hazard (i.e., fire, explosion, or chemical exposure) are not considered to be emergency responses. 5.8 .2 .1 HAZWOPER Requirements at 29 CFR 1910.120(p) 29 CFR 1910.120(p) requires permitted and interim

- status TSDFs to develop and implement a safety and health program that includes specified elements (e.g., medical surveillance, decontamination, emergency response). These provisions do not apply to hazardous waste generators, except for emergency preparedness and response (i.e., 1910.120(p)(8)). Specifically , generator s who are required b y the EPA or state agency to have their employees engage in emergency

response or who direct their emplo ye es t o engage in emergency response must comply with the requirements for an emergency response program. Relevant requirements are described below. Emergency Preparedness and Response Employers must develop and implement either an emergency response program or an evacuation plan. Employers that develop an emergency response program must have an emergency response plan that includes specified elements (e.g., personnel roles, emergency recognition and prevention, personal protective equipment, emergency equipment). Such plans need not duplicate any of the subjects fu lly addressed in the employer's contingency planning required by permits, such as those issued by the U.S. Environmental Protection Agency

. In addition, the employer must also follow procedures for handling emergency incidents (e.g., offsite reporting). Employers who will evacuate their emplo ye es from the worksite location when an emergency occurs and who do not permit any of their employees to assist in handling the emergency are exempt from the requirements for an emergency response program. Rather, they must establish and implement an evacuation plan for the entire plant. The plan must include p rocedures for reporting a fire or other emergency ; emergency evacuation, including ty

pe of evacuation and exit route assignments; operat ing critical plant ope rations before evacuation ; account ing for all employees after evacuation; and performi ng rescue or medical duties. Personnel TrainingDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 107 Employers must provide i nitial and annual refresher training that is part of the employer’s safety and health program. The training must be designed to enable emplo ye es to perform their assigned duties and functions in a safe and healthful manner so as not to endanger themselves or other employees. In addition, empl oyers must provide training for emergency response employees. Such training must include the elements of the emergency response plan, standard operating procedures the employer has established for the job, the personal protective equipment to be worn and procedures for handling emergency incidents. 5.8 .2 .2 HAZWOPER Requirements at 29 CFR 1910.120(q) 29 CFR 1910.120(q) sets forth requirements for e mergency response program s for hazardous substance releases . Relevant requirements are described below. Emerg ency Preparedness and Response Employers must develop and implement either an emergency response program or an evacuation plan. Employers that develop an emergency response program must have an emergency response plan that includes specified elements (e.g ., personnel roles, emergency recognition and prevention, personal protective equipment, emergency equipment). The employer must also follow procedures for handling emergency response (e.g., personnel responsibilities), training, medical surveillance, pro tective clothing, and post

- emergency response operations. Employers who will evacuate their emplo ye es from the danger area when an emergency occurs, and who do not permit any of their employees to a ssist in handling the emergency are exempt from the requir ements for an emergency response program. Rather, they must establish and implement an evacuation plan for the entire plant. The plan must include p rocedures for reporting a fire or other emergency ; emergency evacuation, including ty

pe of evacuation and exit route assignments; operat ing critical plant operations before evacuation ; account ing for all employees after evacuation; and performi ng rescue or medical duties. Personnel Training Employers must provide i nitial and refresher training on emergency response . The training must be based on the duties and function to be performed by each responder of an emergency response organization (e.g., first responders, hazardous materials technicians). Topics to be covered b y the training differ based on an employee’s duties and functions. Examples of topics include:

 An understanding of what hazardous substances are, and the risks asso ciated w ith them in an incident;

 An understanding of the potential outcomes associated with an emergency created when h azardous substances are present;

 The ability

to recognize the presence of hazardous substances in an emergency ;
 The ability

to identify

the hazardous substances, if possible; and

 The ability

to realize the need for additional resources, and to make appropriate notifications to the communication center. 5.8.3 Hazard CommunicationDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 108 OSHA established “Hazard Communication” (HazCom) at 29 CFR 1910.1200. T he purpose of the HazCom Standard is to ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees. This transmittal of information is to be accomplished by means of comprehensive hazard communication programs, which are to include container labeling and other forms of warning, material safety data sheets and employee training. The HazCom Standard applies to any chemical which is known to be prese nt in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency

. The term “hazardous chemicals” means an y chemical which is a phy sical hazard or a health hazard . However, the HazCom Standard does not apply to RCRA hazardous waste. Relevant requirements are described below. Emergency Preparedness and Response HazCom addresses emergency preparedness and response through information dissemination and training, described below. Personnel Training Employers must provide specified information and training to employees . Specificall y, e mployees must be informed of the requirements of the HazCom Standard, any operations in their work area where hazardous chemicals are present , and the lo cation and availability of the written hazard communication program, including the required list(s) of hazardous chemicals, and material safety data sheets required b y this section. Employers must provide training that includes, at least:

 Methods and observatio ns that may be used to detect the presence or release of a hazardous chemical in the work area (such as monitoring conducted b y the employer, continuous monitoring devices, visual appearance or odor of hazardous chemicals when being released;

 The phy sical and health hazards of the chemicals in the work area;

 The measures emplo yees can take to protect themselves from these hazards, including specific procedures the employer has implemented to protect employees from exposure to hazardous chemicals, such as ap propriate work practices, emergency procedures, and personal p rotective equipment to be used; and

 The details of the hazard communication program developed b y the employer.Draft

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- 1 

### Attachment B. Waste and Facility Classification MethodologyDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 2 

### Classification of Waste s as “Wastewaters” or “Nonwastewaters” In classifying waste s as “wastewaters” or “nonwastewaters,” it is important to consider that: (1) the only

concrete regulatory

definition of wa stewater under RCRA is specific to the Land Disposal Restrictions (LDR) Program (40 CFR Part 268) 49 and (2) the B iennial R eport does not contain a data element that indicates positively whether a hazardous waste is wastewater or nonwastewater according to this or any other definition. Thus, EPA use d a methodology that relies on some of the data reporte d to the Biennial Report to determine if a waste is a wastewater or nonwastewater. The methodology uses both the form code and the management method code t o make a reasonable judgment as to whether a particular waste is a wastewater or nonwastewater. Note, that, in some instances, a waste may be managed using more than one ty pe of management method (i.e., the waste may be associated with more than one management method code). As a result, this waste may be classified as both a wastewater and a nonwastewater. To ensure consistency

in the classification of the waste s when dealing with generated and/or m anaged waste, the methodology was applied in two steps. First, we appl ied the methodology to managed waste s. Then, we appl ied the methodology to generated waste s, based on data developed for the managed waste s. A detailed description of the methodology that was used to classify waste s as “wastewaters” or “nonwastewaters” is provided below. 50 Classification of Managed Waste s To classify managed waste s, we use d the following methodology : 51

 If the waste is represented by one of the following waste form codes, it was classified as a “wastewater:”

Form Code Form Code Description W101 Very

dilute aqueous waste containing more than 99% water W103 Spent concentrated acid W105 Acidic aqueous wastes less than 5% acid W107 Aqueous waste containing cyanides W110 Caustic aqueous waste without cyanides W113 Other aqueous waste or wastewaters W119 Other inorganic liquid (specify in comments)

49 The LDR Program ensures that land disposed hazardous was te does not pose a threat to human health and the environment. This is accomplished by setting treatment standards for all hazardous waste bound for land disposal. These treatment standards ensure that the hazardous waste is properly treated to destroy o r immobilize hazardous chemical constituents components before it is land disposed. 50 This me thodology is consistent with the methodology used to classify wastewastewasteswaste streams as “wastewaters” or “nonwastewaters” in the Priority Chemical (PC) BRBRBiennial ReportBR Measurement Methodology developed by the Office of Resource Conservation and Recovery (ORCR). 51 The methodology used in this analysis to classify waste streams as “wastewaters” or “nonwaste waters” differs from the methodology used in the development of the National Biennial Report (NBR). In particular, the form codes and management method codes used in this analysis to identify waste streams with “wastewater characteristics” differ from those used in the NBR (i.e., form codes: W101, W105, and W113 ; management method codes: H071, H073, H075

- H077, H081

- H083, H121

- H124, H129, and H135)

. We believe that the methodology used in this analysis is a better approach for analyzing generation and management of hazardous wastes
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- 3  If the waste lacks a waste form code that would support a wastewater or nonwastewater designation , but is managed using one of the following management methods, it was classified as “wastewater:” Managem ent Me thod Code Managem ent Method Code Description H071 Chemical reduction with or without precipitation H073 Cyanide destruction with or without precipitation H075 Chemical oxidation H076 Wet air oxidation H077 Other chemical precipitation with or without pre

- treatment H081 Biological treatment with or without precipitation H082 Adsorption H083 Air or steam stripping H103 Absorption H121 Neutralization only H122 Evaporation H123 Settling or clarification H124 Phase separation H134 Deepwell or underground injection (with or without treatment) H135 Discharge to sewer/POTW or NPDES (with prior storage

- with

or without treatment)

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

pe of management method. As a result, this waste may be classified as both a wastewater and a nonwastewater. For example, a waste represented b y form code W604 (i.e., paint or ink sludges, still bottoms in sludge form) that is managed using H081 (i. e., biological treatment with or without prior precipitation) and H112 (i.e., macro

- encapsulation prior to disposal at another site) would be classified as both a wastewater and nonwastewater ; the portion of the waste managed using H081 would be classifie d as a wastewater, while the portion of the waste managed using H112 would be classified as a nonwastewater. Based on the above considerations and to ensure consistency with the classification of the managed waste s, the following approach was followed in classifying generated waste s as “wastewaters” or “nonwastewaters:”

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

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

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

o Estimate d the quantity of wastewater and nonwastewater associated with theDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 4

waste
.
o Compare d the estimated waste quantities and, based on the greater quantity, classified the waste as either “wastewater” or “nonwastewater.”

o In instances in which the wastewater and nonwastewater quanti ties were the same, we referred to the form code to make a determination. Waste s represente d by the following form codes were classified as “wastewaters , ” While the remaining waste s were classified as “nonwastewaters.”
Form Code Form Code Description W101 Very

dilute aqueous waste containing more than 99% water W103 Spent concentrated acid W105 Acidic aqueous wastes less than 5% acid W107 Aqueous waste containing cyanides W110 Caustic aqueous waste without cyanides W113 Other aqueous waste or wastewaters W119 Other inorganic liquid (specify in comments)Draft

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- 1



### Attachment C. Waste Code Group MethodologyDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 2 Facilities may

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

- counting when anal yz ing the data by waste code. To make this ty pe of anal ys is more manageable, a methodology was developed to map waste code combinations into a single, unique code that applies to the entire waste stream. These mutually exclusive codes are referred to as “waste code groups.” In general, the methodology prioritizes waste codes that provide the most specific information regarding what makes the waste hazardous. Most waste code groups correspond to an EPA hazardous waste code, indicating that either the waste does not include any similar or more specific waste codes (e.g., waste s that onl y i nclude a single waste code). The remaining waste code groups correspon d to “families” of codes, indicating that a group of similar waste codes comprise the most specific waste codes reported (e.g., waste s with multiple TC Metals [D004

- D011] may

be assigned the code “TCMT”). The waste code group methodology consists of 27 s teps that were implemented in a step

wise manner, following an established hierarchical order. That is, if a waste ’s waste codes me t the criteria at a given step, it was assigned to the corresponding waste code group for that step and the methodology end ed . However, if a waste ’s waste codes did not meet the criteria for the step , the methodology continue d to the next step until the waste was assigned to a waste code group . A detailed description of the logic used to define the waste code groups and assign individual waste streams to each of these groups is provided below, and summarized in Exhibit C

- 2

. Waste s Represented b y a Single EPA Hazardous Waste Code 1. The waste was assigned to the waste code group associated with the reported EPA hazardous waste code. Example: A waste represented b y “D001,” was assigned to the “D001” waste code

group. Waste s Represented b y Multiple EPA Hazardous Waste Code s 2. If the list of waste codes representing the waste include d “LABP” (or Lab Packs), the waste wa s assigned to the “LABP” waste code group. Note that, in addition to the “LABP” waste code, the list of waste codes for this waste could include any K, F, U, P, or D waste code(s). Example: A waste represented b y “ D003;D011;LABP;P104;P106 ,” was assigned to

the “LABP” waste code group.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3 3. If the list of waste codes representing the waste include d “F039,” the waste was assigned to the “F039” waste code group. Note that, in addition to the “F039” waste code, the list of waste codes for this waste could include an y K, F, U, P, or D waste code(s). Example: A waste represented b y “ F039;K027;U221;U223 ,” was assigned to the

“F039” waste code group. 4. If the list of waste codes representing the waste include d a single K waste code, the waste was assigned to the waste code group associated with the reported K waste code. Note that, in addition to the reported K waste code, the list of waste codes for this waste could include any F, U, P, or D waste code(s). Example: A waste represented b y “ D 004;D007;F032;F035;K001 ,” would be

assigned to the “K001” waste code group. 5. If the list of waste codes representing the waste include d multiple K048

- K052 waste codes, the waste was assigned to the “KPET” waste code group. Note that, in addition to the reported K048

- K052 waste codes, the list of waste codes for this waste could include an y F, U, P, or D waste code(s). The list of waste codes may not include an y other K code. Example: A waste represented b y “ D001;D003;D018;F037;K050;K051 ,” was

assigned to the “KPET” waste code group. 6. If the list of waste codes representing the waste include d multiple K waste codes (other than multiple K048

- K052 wastes codes) , the waste was assigned to the “KXXX” waste code group. Note that, in addition to the rep orted K waste codes, the list of waste codes for this waste could include any F, U, P, or D waste code(s). Example: A waste represented b y “ D018;K171;K172;U220 ,” was assigned to the

“KXXX” waste code group. 7. If the list of waste codes representing the w aste include d a single F waste code (other than F039) , the waste was assigned to the waste code group associated with the reported F waste code. Note that, in addition to the reported F waste code, the list of waste codes for this waste could include any U, P, or D waste code(s). Example: A waste represented b y “ D001;D002;D003;F002;U044 ,” was assigned to

the “F002” waste code group.DRAFT Internal Report Provided for Peer Review 12/20/2010

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

- F005 waste codes, the waste was assigned t o the “F1_5” waste code group. Note that, in addition to the reported F001

- F005 waste codes, the list of waste codes for this waste could include an y U, P, or D waste code(s). The list of waste codes may not include any other F code. Example: A waste represented by “ D001;D039;F001;F005 ,” was assigned to the “F1_5” waste code group. 9. If the list of waste codes representing the waste includes multiple F006

- F009 waste codes, the waste was assigned to the “F6_9” waste code group. Note that, in addition to the reported F006

- F009 waste codes, the list of waste codes for this waste could include an y U, P, or D waste code(s). The list of waste codes may not include any other F code. Examp le: A waste represented b y “ D003;D008;F007;F008;P106 ,” was assigned to

the “F6_9” waste code group. 10. If the list of waste codes representing the waste include d multiple F010

- F012 waste codes, the waste was assigned to the “F10

_ 12” waste code group. Note that, in addition to the reported F010

_ - F012 waste codes, the list of waste codes for this waste could include any

U, P, or D waste code(s). The list of waste codes may not include an y other F code. Example: A waste represented b y “ D003;F010;F01 1 ,” was assigned to the

“F10

_ 12” waste code group. 11. If the list of waste codes representing the waste includes multiple F020

- F028 waste codes, the waste was assigned to the “F20S” waste code group. Note that, in addition to the reported F020

- F028 waste codes, the list of waste codes for this waste could include an y U, P, or D waste code(s). The list of waste codes may not include any other F code. Example: A waste represented b y “ D037;D042;F021;F027 ,” was assigned to the

“F20S” waste code group. 12. I f the list of waste codes representing the waste include d multiple F032

- F035 waste codes, the waste was assigned to the “F30S” waste code group. Note that, in addition to the reported F032

- F035 waste codes, the list of waste codes for this waste could include an y U, P, or D waste code(s). The list of waste codes may not include any other F code. Example: A waste represented b y “ F032;F034 ,” was assigned to the “F30S” waste

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- 5 13. If the list of waste codes representing the waste include d mult iple F037

- F038 waste codes, the waste was assigned to the “PSLU” waste code group (i.e., petroleum sludges). Note that, in addition to the reported F037

- F038 waste codes, the list of waste codes for this waste could include an y U, P, or D waste code(s). The list of waste codes may

not include any other F code. Example: A waste represented b y “ D018;F037;F038 ,” was assigned to the “PSLU”

waste code group. 14. If the list of waste codes representing the waste include d multiple F waste codes (other than the combination of F waste codes noted above) , the waste was assigned to the “FMIX” waste code group. Note that, in addition to the reported F waste codes, the list of waste codes for this waste could include any U, P, or D waste code(s). Example: A waste represented b y “ D001;D026;F003;F032;U188 ,” was assigned to

the “FMIX” waste code group. 15. If the list of waste codes representing the waste include d a single U waste code and no P waste codes, the waste was assigned to the waste code gro up associated with the reported U waste code. Note that, in addition to the reported U waste code, the list of waste codes for this waste could include an y D waste code(s). Example: A waste represented b y “ D002;U001 ,” was assigned to the “U001” waste

code group. 16. If the list of waste codes representing the waste include d multiple U waste codes and no P waste codes, the waste was assigned to the “UMIX” waste code group. Note that, in addition to the reported U waste code s, the list of waste codes for this waste could include an y D waste code(s). Example: A waste represented b y “ D001;U118;U162 ,” was assigned to the

“UMIX” waste code group. 17. If the list of waste codes representing the waste include d a single P waste c ode and no U waste codes, the waste was assigned to the waste code group associated with the reported P waste code. Note that, in addition to the reported P waste code, the list of waste codes for this waste could include an y D waste code(s). Example: A waste represented b y “ D001;D003;D004;P001 ,” was assigned to the

“P001” waste code group.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 6 18. If the list of waste codes representing the waste include d a combination of U and P waste codes, the waste was assigned to the “U&PS” waste code group. Note that, in addition to the reported U and P waste codes, the list of waste codes for this waste could include an y D waste code(s). Example: A waste represented b y “ D001;P022;P098;P119;U239 ,” was assigned to

the “U&PS” waste code group. 19. If the list of w aste codes representing the waste includes multiple P waste codes and no U waste codes, the waste was assigned to the “PMIX” waste code group. Note that, in addition to the reported P waste codes, the list of waste codes for this waste could include an y D waste code(s). Example: A waste represented b y “ P012;P105;P119 ,” was assigned to the “PMIX”

waste code group. 20. If the list of waste codes representing the waste include d a single D waste code and one or more invalid waste codes, the waste was assi gned to the waste code group associated with the reported D waste code. Example: A waste represented b y “0000;D008,” was assigned to the “D008” waste

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

- D017 waste codes and one or more of the D001

- D003 waste codes, the waste was assigned to the waste code group associated with the reported D004

- D017 waste code. The list of waste codes could not include any other D code. Example: A wa ste represented by “ D001;D002;D007 ,” was assigned to the “D007” waste code group. 22. If the list of waste codes representing the waste include d multiple D004

- D011 waste codes and one or more of the D001

- D003 waste codes, the waste was assigned to the “TCM T” waste code group (i.e., TC metals). The list of waste codes could not include an y other D code. Example: A waste represented b y “ D001;D007;D008 ,” was assigned to the

“TCMT” waste code group. 23. If the list of waste codes representing the waste inclu de d multiple D012

- D017 waste codes and one or more of the D001

- D003 waste codes, the waste was assigned to the “PEST” waste code group (i.e., TC pesticides). The list of waste codes could not include an y other D code. Example: A waste represented b y “ D016;D017 ,” was assigned to the “PEST” waste

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- 7 24. If the list of waste codes representing the waste include d one or more of the D018

- D043 waste codes and one or more of the D001

- D003 waste codes, the waste was assigned to the “TCORI CR” waste cod e group (i.e., TC organic with ignitable, corrosive, or reactive). The list of waste codes could not include any other D code. Example: A waste represented b y “ D001;D018 ,” was assigned to the “TCORI CR”

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

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

waste code group. 26. If the list of waste codes representing the waste include d multiple D001

- D003 waste codes, the waste was assigned to the “ICR” waste code group (i.e., ignitable, corrosive, or reactive). The list of w aste codes could not include any other D code. Example: A waste represented b y “ D001;D003 ,” was assigned to the “ICR” waste

code group. 27. If the list of waste codes representing the waste include d multiple D waste codes (other than the combination of D codes noted above) , the waste stream was assigned to the “DMIX” waste code group. Example: A waste represented b y “ D002;D004;D011;D028;D035 ,” was assigned to

the “DMIX” waste code group.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 8

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

Most Specific Waste Code(s) Other Waste Code(s) that May Be Present 1 Single waste code None Same waste code as reported 2 Lab packs with no identified code (i.e., “LABP”) An y K, F, U, P, or D waste code(s) LABP
3 F039 An y K, F, U, P, or D waste code(s) F039 4 Single K code An y F, U, P, or D waste code(s) Single K code 5 K048

- K052 combinations only An y F, U, P, or D waste code(s) No other K waste codes KPET
6 K code combinations An y F, U, P, or D waste code(s) KXXX 7 Single F code An y U, P, or D waste code(s) Single F code 8 F001

- F005 combinations An y U, P, or D waste code(s) No other F waste codes F1_5
9 F006

- F009 combinations An y U, P, or D waste code(s) No other F waste codes F6_9
10 F010

- F012 combinations An y U, P, or D waste code(s) No other F waste codes F1012
11 F020

- F028 combinations An y U, P, or D waste code(s) No other F waste codes F20S
12 F032

- F035 combinations An y U, P, or D waste code(s) No other F waste codes F30S
13 F037/F038 combinations An y U, P, or D waste code(s) No other F waste codes PSLU (Petroleum sludges)
14 An y other F mixtures An y U, P, or D waste code(s) FMIX 15 A single U code An y D waste code(s) No P waste codes The U code
16 U mixtures An y D waste code(s) No P waste codes UMIX
17 A single P code An y D waste code(s) No U waste codes The P code
18 U and P mixtures An y D waste code(s) U&PS 19 P mixtures An y D waste code(s) PMIX 20 A single D code An y invalid code The D code 21 An y single D004

- D017 code One or more D001

- D003 code The D code (D004

- D017) 22 D004

- D011 combinations One or more D001

- D003 code TCMT (TC Metals) 23 D012

- D017 combinations One or more D001

- D003 code PE ST (TC Pesticides) 24 One or more D018

- D043 code One or more D001

- D003 code TCORICR (TC organic with ICR) 25 D018

- D043 combinations None TCOR Only (TC organics only) 26 D001

- D003 combinations only None ICR (Ignitable, Corrosive, or Reactive) 27 An y other D mixtures None DMIXDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 9DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 1 

### Attachment D. Methodology for Identifying Potentially Recyclable Hazardous WastesDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 2 The Regulatory

Impact Analy sis (RIA) developed for the Definition of Solid Waste (DSW) Rule 52 uses a two
- step data screening (i.e., data selection) process or methodology

to identify

potentially

recyclable hazardous wastes. This methodology is applied to waste s reported to the Biennial Report that are managed through methods other than recyclin g (i.e., methods other than metals recovery , solvents recovery , or other recovery). A detailed description of the methodology for identifying potentially recyclable hazardous wastes is provided below. Step 1: Primary screening criteria to identify wast es disposed of containing constituents of potential commodity value The first data screening step is structured according to each of the three Biennial Report recycling methods: metals recovery , solvent recovery , and other recovery . Each materials rec overy

method is categorized as a “commodity group” according to the respective typ es of materials involved in each of these three recovery methods. EPA identified and assigned the screening codes based on d etermining whether each of the codes pertained to metals, solvents, or to other ty pes of materials contained in the wastes which might be amenable for recovery in the three commodity

groups. Possible Metals Recovery

 If the waste is represented by one of the following waste form codes , it is assigned to this commodity group:
Form Code Form Code Description W107 Aqueous waste containing cyanides W117 Waste liquid mercury W303 Ash W304 Slags, drosses, and other solid thermal residues W307 Metal scale, filings and scrap (including metal drums) W312 Cyanide or metal cyanide bearing solids, salts or chemicals W316 Metal salts or chemicals not containing cyanides W501 Lime and/or metal hydroxide sludges and solids with no cyanides W505 Metal bearing sludges (including plating sludge) not containing cyanides W506 Cyanide

- bearing sludges

52 EPA, Regulat ory

Im pact Analysis

- USEPA’s 2008 Final Rule Amendments to the Industrial Recycling Exclusions of the RCRA Definition of Solid Waste, September 25, 2008. Available online at: http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480728a11 , last accessed on May 25, 2010.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 3  If the waste is not associated with any of the above waste form codes , but is represented b y one of the following source codes, it is assigned to this commodity

group: Source Code Source Code Description G03 Plating and phosphating (electro

- or non - electroplating or phosphating) G04 Etching (using caustics or other methods to remove layers or partial

layers)

 If the waste is not associated with any of the above waste form or source codes , but is represented by one of the following EPA hazardous waste codes, it is assigned to this commodity group: Waste Code Waste Code Description D005 Barium D006 Cadmium D007 Chromium D008 Lead D009 Mercury D010 Selenium D011 Silver F006, F007, F008, F009 Metal electroplating F010, F011, F012 Metal heat treating F019 Sludge from conversion coating of aluminum F035 I norganic wood preservative waste (arsenic or chromium) K002, K003, K004, K005, K006, K007, K008 I norganic pigment mfg sludge & residues (listed for chromium) K064, K065, K066, K069, K086, K100 L ead

- or chromium

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

 Note that, i f the waste stream is represented b y waste form code W312 ( c yanide or metal cyanide bearing solids, salts or chemicals ) and EPA hazardous waste code K088 (aluminum production spent potliners ) , it is moved from Commodity

Group #1 (Possible Metals Rec overy) to Commodity Group #3 (Possible Other Recovery)

.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 4 Possible Solvents Recovery

 If the waste is represented by one of the following waste form codes , it is assigned to this commodity group:
Form Code Form Code Description W202 Concentrated halogenated (e.g., chlorinated) solvent W203 Concentrated non

- halogenated (e.g., non

- chlorinated) solvent W204 Concentrated halogenated/ non

- halogenated solvent mixture W209 Paint, ink, lacquer, or varnish W211 Paint thinner or petroleum distillates

 If the waste is not associated with any of the above waste form codes , but is represented b y one of the following source codes, it is assigned to this commodity

group: Source Code Source Code Description G01 Dip, flush or spray rinsing (using solvents to clean or prepare parts or

assemblies for further processing

- i.e. painting or assembly) G06 Painting and coating (manufacturing, building, or maintenance)

 If the waste is not associated with any of the above waste form or source codes , but is represented by one of the following EPA hazardous waste codes, it is assigned to this commodity group: Waste Code Waste Code Description F001, F002, F003, F004, F005 S pent solvents F024, F025 Chlorinated aliphatic manufacturing K086 S olvent washes of ink equipment Possible Other Recovery ( Carbon Re generation and Sodium Fluoride)

 If the waste is represented by the following waste form code , it is assigned to this commodity

group:
Form Code Form Code Description W310 Filters, solid adsorbents, ion exchange resins and spent carbon (spent

carbon only)

 If the waste is not associated with the above waste form code , but is represented b y the following EPA hazardous waste code, it is assigned to this commodity

group: Waste Code Waste Code Description K088 A luminum production spent potliners (sodium fluoride)DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 5  Note that, i f the waste is represented b y waste form code W312 ( c yanide or metal cyanide bearing solids, salts or chemicals ) and EPA hazardous waste code K088 (aluminum production spent potliners ) , it is moved from Commodity

Group #1 (Possible Metals Recovery) to Commodity Group #3 (Possible Other Recovery)

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

- time industrial activities). The material values from these wastes are less likely to be recoverable given they are not generated in a controlled process environment (i.e., remediation wastes involve spills and releases to the environment) . Given their one

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

for an exclusion from the definition of solid waste for a one - time waste generation event. This corresponds to removing baseline dis posal data records corresponding to three sets of non

- continuous source codes: (a) spills and accidental releases G31, G32, G33, G39, (b) remediation of past contamination G41, G42, G43, G44, G45, G49, and (c) non - periodic activities G12, G15, G19. (3) Remov e waste s with waste descriptions containing the word “debris” from the data set. The material values from these wastes are less likel y to be recoverable given they

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

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

- time waste generation event.DRAFT Internal Report Provided for Peer Review 12/20/2010

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

- based wastes typi cally do not contain recoverable fractions of valuable mat erials . This screening criterion was only applied to waste s with no reported form code. Normally wastes like these would have a reported form code of W101

-- very dilute aqueous waste containing more than 99% water and W105

-- acidic aqueous wastes with less th an 5% acid. (5) Remove some miscellaneous waste s:

 On

- site Commodity

Group #2 quantities were primarily managed by non - beneficial incineration (H040), or b y beneficial energy recovery (H050), or beneficial fuel blending ( H061). For the purposes of the RIA, it wa s assumed that facilities that generate and managed wastes on site via beneficial energy or fuel recovery (i.e., H050 or H061) will not change to a materials recovery process under the 2008 DSW final rule exclusions. All these processes require relativel y l arge on - site capital investments and air pollution control permitting costs, which make it less likely that on

- site H040, H050 or H061 wastes will switch over to materials recovery

under the 2008 DSW final rule. . This corresponds to removing waste s corresponding to on

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

- site management involving H040, H050, and H061

.

 All records with form code W310 not containing the word “ carbon” or “charcoal” in the waste description were deleted. This is necessary because the definition of the W310 phy sical/chemical form code allows reporting together in this single code for four different ty pes of materials: (1) filters, (2) solid adso rbents, (3) ion exchange resins, and (4) spent carbons. Because of the lack of characterizing data on the other three waste types

— filters, solid adsorbents, and ion exchange , only spent carbon from these four waste types is evaluated. (6) Because of the fact there are tens of thousands of individual waste s in the B iennial R eport for any

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

- categories

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

. ” The “other” form codes already were removed b y their exclusion from the “primary” screening selection criteria.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 7



### Attachment E. Statistical CalculationsDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 8 Threshold Risk Ratio The Threshold Risk Ratio is calculated as follows. There is a disparity

if pr1/pr2 ≠ 1, where pr1 = prob(within 3

- km of facility | in demographic group) pr2 = prob(within 3

- km of facility | not in demographic group) pr1/pr2 = the Threshold Risk Ratio. Demographic Ratio The Demographic Ratio is calculated as follows: There is a disparity

if pr3/pr4 ≠ 1, where pr3 = prob(in demographic group | within 3

- km of facility) pr4 = prob(in demographic group | not within 3

- km of facility). pr3/pr4 = the Demographic Ratio. Kendall Test The Kendall test is calculated as follows (Kendall and Stuart 1973, sec 33.22) : Std Error (pr1

- pr2) = [q(1

- q){n/(n

- 1)}{(1/H + 1/N)} ] 1/2 SD = (pr1

- pr2)/[ Std Error (pr1

- pr2)]

= (pr1

- pr2)/[ q(1

- q){n/(n

- 1)}{(1/H + 1/N)}] 1/2 , where n = total population,

q = total within 3

- km of facilities /n, H = total in demographic group , and N = total not in demographic group , and SD = the number of standard deviations that the difference (pr1

- pr2) is away from 0, the value indicating no disparity under the null hy

pothesis.DRAFT Internal Report Provided for Peer Review 12/20/2010

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- 9 Fisher Exact Test The Fisher Exact test is calculated as follows (Kendall and Stuart, 1973, sections 33.19 and 33.20): Assume the populations are as shown in the following table:

Within 3 km of a facility Not within 3 km of a

facility TOTAL In demographic group a b a + b Not in demographic group c d c + d
TOTAL a + c b + d n

For example, the total population is n and the number that are in the demographic group and within 3 km of a facility is a. For each table, the conditional probability Prob (a, b, c, d | a + c, b + d, a + b, c + d) is calculated assuming independence between the location (within or not within 3 km of a facility) and the demographic group. This is the conditional probability that the values inside the table are a, b, c, and d given the totals are as shown in bold in the margins of the table. The marginal totals are the total populations within and not within 3 km of a facility (a + c and b + d), and the total populations in and not in the demographic group (a + b and c + d). T he p

- value for the Fisher’s exact test is calculated as the total of the conditional probabilities for all tables that have exactly the same marginal totals and that have a conditional probability less than or equal to the conditional probability for the a ctual data. The equivalent number of standard deviations, SD (Fisher), is calculated as 1

– probit( −p - value/2) where probit is the inverse of the standard normal distribution function. SD (Fisher) is the number of standard deviations away from the mean if the Fisher test statistic was approximately normally distributed. For large values of n, SD (Fisher) is well approximated b y the Kendall Test SD (after removing any minus sign). Mantel - Haen s zel Common Relative Risk The procedure developed by Mantel and Haenszel (see Agresti, 2002) was used to estimate the overall Threshold Risk Ratio and Demographic Ratio for all states that have one or more facilities. Assume that all the states have the same underl yi ng Threshold Risk Ratio. Using the notation in the ab ove table, the Threshold Risk Ratio for a given state is estimated by

{a / (a + b)} / {c / (c +d)}. The common Threshold Risk Ratio is estimated using the formulaDRAFT Internal Report Provided for Peer Review 12/20/2010

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- 10 Common Threshold Risk Ratio = { ∑ a(c + d) / n} / {∑ c(a + b) / n}, where each sum is over a ll the tables for the individual states. It can be shown that this value is a weighted average of the state

- specific Threshold Risk Ratios. In a similar manner, the Demographic Ratio for a given state is estimated by {a / (a + c)} / {b / (b +d)}. The comm on Demographic Ratio is estimated using the formula Common Demographic Ratio = { ∑ a(b + d) / n} / {∑ b(a + c) / n}, where each sum is over all the tables for the individual states. It can be shown that this value is a weighted average of the state

- speci fic Demographic Ratios. Cochran
- Mantel - Haenszel Test The procedure developed by Cochran, Mantel and Haenszel (see Cochran, 1954 and Mantel and Haenszel, 1959) was used to test whether there was a disparity in one or more of the states that have one or more facilities. The null hy pothesis is that the underlyi ng Threshold Risk.Ratio is equal to one for all the states, which is mathematically the same as saying that the underl ying Demographic Ratio is equal to one for all the states, which in turn is the same as the null hy pothesis that the location (within or n ot within 3 km of a facility) and demographic group are statistically independent for each and every state. The statistical test is mathematically identical to the Kendall test if there is only one state that has a facility

. Using the same notation as abo ve, the test statistic is: χ 2 = ∑ {a

– (a+b)(a+c)/n} 2 / ∑ {(a+b)(a+c)(b+d)(c+d)/(n 3

– n2 )} The sum is over all the state tables. The p

- value is the probability that a chi

- square distribution with 1 degree of freedom exceeds χ 2

. References Agresti, A. 2 002. Categorical Data Analysis, Second Edition , New York, John Wiley and Sons. Cochran, W. G. 1954. Some methods for strengthening the common χ 2 tests. Biometrics 10: 417

- 451. Kendall, M.G. and A. Stuart. 1973. The advanced theory of statistics, Third Edition. Griffin. London. Mantel, N. and W. Haenszel. 1959. Statistical aspects of the anal ys is of data from retrospective studies of diseases. J. Natl. Cancer Inst. 22: 714

- 748.