25492 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

ENVIRONMENTAL PROTECTION

40 CFR Parts 9, 260, 261, 262, 264, 265,

266, 268, 270, and 273

[FRL–5201–3]

RIN 2050–AD19

Universal Waste Rule (Hazardous

Waste Management System;

Modification of the Hazardous Waste

Recycling Regulatory Program)

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: On February 11, 1993, the

Environmental Protection Agency

proposed new streamlined hazardous

waste management regulations

governing the collection and

management of certain widely generated

wastes (batteries, pesticides and

thermostats) known as universal wastes

(58 FR 9346). Additional information

was noticed for comment on June 20,

1994 (59 FR 31568). Today’s final rule

promulgates streamlined universal

waste management regulations which

are very similar to the February 11, 1993

proposal.

The new streamlined hazardous waste

management regulations promulgated

today govern the collection and

management of certain widely generated

wastes identified as universal wastes.

This final rule will greatly facilitate the

environmentally-sound collection and

increase the proper recycling or

treatment of hazardous waste nickel

cadmium and other batteries, certain

hazardous waste pesticides, and

mercury-containing thermostats. The

current RCRA regulations have been a

major impediment to national collection

and recycling campaigns for these

wastes. This rule will greatly ease the

regulatory burden on retail stores and

others that wish to collect or generate

these wastes. It should greatly facilitate

programs developed to reduce the

quantity of these wastes going to

municipal solid waste landfills or

combustors. It will, also, assure that the

wastes subject to this system will go to

appropriate treatment or recycling

facilities pursuant to the full hazardous

waste regulatory controls. It also will

serve as a prototype system to which

EPA may add other similar wastes in the

future. A petition process is also

included through which additional

wastes could be added to the universal

waste regulations in the future. These

regulations are set forth in 40 CFR part

273.

EFFECTIVE DATE: This final rule is

effective on May 11, 1995.

ADDRESSES: The official record for this

rulemaking is identified as Docket

Numbers F–93–SCSP–FFFFF and F–94–

SCSA–FFFFF and is in the EPA RCRA

Docket, located in Room M2616, U.S.

EPA (5305), 401 M Street SW.,

Washington, DC. 20460. The docket is

open from 9 a.m. to 4 p.m., Monday

through Friday, excluding Federal

holidays. To review docket materials,

the public must make an appointment

by calling (202) 260–9327. The public

may copy a maximum of 100 pages from

any regulatory docket at no cost.

Additional copies cost $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For

information concerning this final rule

contact the RCRA Hotline toll free at

(800) 424–9346. In the Washington, DC.

metropolitan area, call (703) 412–9810.

For further information regarding

specific aspects of this notice, contact

the Office of Solid Waste (5304), U.S.

EPA, 401 M Street SW., Washington,

DC. 20460. Additional copies of this

rule and supporting documentation

(e.g., fact sheet and summary of

requirements) are available by mail by

calling the RCRA Hotline. A supporting

document containing the Agencies

response to comments is available for

review in the Docket for this rule.

SUPPLEMENTARY INFORMATION:

Outline

I. Background

II. Relationship to Other Agency Activities

A. Mercury-Containing Lamps

B. Redefinition of Solid Waste

C. Possible Revisions to the Hazardous

Waste Characteristics

III. Summary of Final Universal Waste

Regulations

A. Structure of Final Rule

B. Summary of Universal Waste

Requirements

1. Wastes Covered Under the Universal

Waste System

2. Requirements for Participants in the

Universal Waste System

a. Small and Large Quantity Handlers of

Universal Waste

b. Transporters of Universal Waste

c. Destination Facilities

3. Import Requirements

4. Petitions to Include Other Wastes under

part 273

IV. Detailed Discussion of Final Rule

A. Goals of Final Rule

B. Scope of Final Rule

1. Recycling Versus Recycling or Disposal

2. Wastes Included in Final Rule

a. Hazardous Waste Batteries

b. Lead-Acid Batteries

c. Hazardous Waste Pesticides

d. Hazardous Waste Thermostats

e. Other Wastes Suggested By Commenters

f. Used Mercury-Containing Equipment

g. Spent Antifreeze

3. Conditionally Exempt Small Quantity

Generator Waste

C. Adding Additional Wastes in the Future

1. Procedures For Adding New Wastes

2. Factors for Evaluating New Wastes

a. Final factor 40 CFR 273.81(a)

b. Final factor 40 CFR 273.81(b)

c. Final factor 40 CFR 273.81(c)

d. Final factor 40 CFR 273.81(d)

e. Final factor 40 CFR 273.81(e)

f. Final factor 40 CFR 273.81(f)

g. Final factor 40 CFR 273.81(g)

h. Final factor 40 CFR 273.81(h)

i. Proposed factors not included in the final

rule

D. Participants in the Universal Waste

System

1. Small and Large Quantity Handlers of

Universal Waste

2. Transporters

3. Destination Facilities

E. Universal Waste Handler Requirements

1. Prohibitions

a. Prohibition on Disposal

b. Prohibition on Treatment

c. Prohibition on Shipments of Universal

Wastes

2. Notification

3. Waste Management

a. Universal Waste Batteries

b. Universal Waste Pesticides

c. Universal Waste Thermostats

4. Labeling/Marking

5. Accumulation time requirements

6. Employee Training

7. Response to Releases

8. Off-site Shipments

9. Tracking Universal Waste Shipments

10. Exports

F. Transporter Requirements

G. Destination Facility Requirements

H. Imports of Universal Waste

I. Land Disposal Restrictions

J. Regenerated batteries

V. State Authority

A. Applicability of Rules in Authorized

States

B. Effect on State Authorization

C. Comments regarding the proposed rule

D. Universal Waste State Authorization

issues

1. Addition of New Universal Wastes to

State Programs

2. Authorization for individual universal

wastes

3. Interstate Transportation

VI. Executive Order 12866—Regulatory

Impacts

VII. Regulatory Flexibility Analysis

VIII. Paperwork Reduction Act

IX. Unfunded Mandates

I. Background

Under Subtitle C of the Resource

Conservation and Recovery Act (RCRA),

the Environmental Protection Agency

(EPA) has promulgated regulations

setting forth the framework of the

nation’s hazardous waste management

program. These regulations are found in

parts 260 through 279 of title 40 of the

Code of Federal Regulations. These

regulations first identify what wastes are

considered hazardous and thus are

subject to the hazardous waste

regulations. Requirements are then set

forth for hazardous waste generators,

transporters, and owners and operators
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25493

of treatment, storage, and disposal

facilities (TSDs).

On February 11, 1993, the

Environmental Protection Agency

proposed to add to the hazardous waste

regulations a set of streamlined

requirements for collecting certain

widely-dispersed hazardous wastes (58

FR 8102), which were called ‘‘universal

wastes.’’ These wastes share several

characteristics:

—They are frequently generated in a

wide variety of settings other than the

industrial settings usually associated

with hazardous wastes;

— They are generated by a vast

community, the size of which poses

implementation difficulties for both

those who are regulated and the

regulatory agencies charged with

implementing the hazardous waste

program; and

— They may be present in significant

volumes in non-hazardous waste

management systems.

In the preamble to the proposal,

known as the ‘‘universal waste’’

proposal, the Agency explained a

number of reasons why it believed that

a streamlined regulatory system was

appropriate for these wastes. See 58 FR

8102 for a detailed discussion.

230 comments were received on the

proposal from environmental groups,

companies involved in universal waste

management, state and local

environmental and agricultural

agencies, and trade associations.

Comments received on the proposed

rule were in general very supportive of

the basic concepts behind the proposed

regulations and of the proposed

regulatory approach. Commenters did

suggest numerous specific changes to

the regulatory requirements that they

believed would make them easier to

comply with and to implement, more

protective of the environment, and more

successful at achieving the goals of the

universal waste program.

Additional information on costs and

benefits of the proposal was made

available for public comment on June

20, 1994 (59 FR 31568). Eleven

comments were received on this

additional information and the Agency’s

responses to these comments are

available in the docket for this rule (See

Addresses section above). The Agency’s

responses to each of the comments are

included here.

This rule finalizes the streamlined

universal waste management system

proposed on February 11, 1993 (58 FR

8102). In general, the final rule is very

similar to the proposal. Although some

of the details of the regulatory structure

have changed, the basic approach

adopted in the final rule and the

majority of the particulars is the same as

that proposed. A summary of the final

rule is included in section III of this

preamble. The following sections of the

preamble discuss in detail the major

comments received on each of the issues

raised in the proposed rule, any

differences between the proposal and

the final rule, and the Agency’s reasons

for making the changes. The final

regulatory text is set forth at the end of

this notice. These regulatory changes

will be codified into the printed version

of Title 40 of the Code of Federal

Regulations in its next update, which

will be revised as of July 1, 1995.

II. Relationship to Other Agency

Activities

II.A. Mercury-Containing Lamps

During development of the proposed

universal waste rule it was suggested

that spent fluorescent light bulbs

(known as fluorescent lamps) might be

appropriately managed under the

universal waste regulations. Mercury is

used in the production of fluorescent

lamps, and as a result, a relatively high

percentage of these lamps are hazardous

waste when spent because they exhibit

the toxicity characteristic for mercury.

At the time of the proposal, the Agency

decided that further investigation into

the issue of mercury-containing lamps

was necessary before proposing changes

to the regulations governing

management of these lamps. Thus, in

the February 11, 1993 universal waste

proposal the Agency explained that it

was not proposing to include

fluorescent lamps in the universal waste

regulations but requested comment on

several issues (58 FR 8110). First, EPA

requested comment on the risks posed

by these lamps in landfills or municipal

waste combustors. Second, EPA

requested information on the risks of

current or developing mercury recovery

technology.

A number of comments were received

addressing the mercury-containing

lamps issue. Many of the commenters

argued that these lamps should be

included in the universal waste final

rule. Several commenters also suggested

other regulatory alternatives for

regulating management of these lamps.

A number of comments also addressed

the questions that the Agency asked in

the proposal about the risks of various

management methods.

On July 27, 1994, the Agency

published a proposed rule specifically

addressing the management of spent

mercury-containing lamps (59 FR

38288). Information received in

comments on the universal waste

proposal was used in developing the

proposal on lamp management.

Two options for changing the

regulations governing mercurycontaining lamps were included in the

July 27, 1994 proposal. The Agency

requested comment on a number of

issues, including which of the two

options should be implemented. One

option was to conditionally exempt

these lamps from regulation as

hazardous waste. Under this option,

mercury-containing lamps would not be

considered hazardous waste provided

they are disposed of in municipal solid

waste landfills that meet certain

requirements, or are recycled at mercury

reclamation facilities that meet certain

requirements. In addition, generators

would be required to maintain

documentation identifying the disposal

or recycling facility to which the lamps

were sent.

The second option proposed was to

add mercury-containing lamps to the

universal waste regulations. Under this

option, mercury-containing lamps that

fail the toxicity characteristic would

continue to be regulated as hazardous

waste, but would be subject to the

streamlined universal waste regulations

promulgated today instead of the full

hazardous waste regulations. The July

27, 1994, proposed regulatory text for

including mercury-containing lamps in

the universal waste regulations was

based on the February 11, 1993,

proposed universal waste regulations. In

the July 27, 1994, proposal the Agency

explained that it expected to promulgate

final universal waste regulations prior to

promulgating a final rule on mercurycontaining lamps. It was noted that if

the Agency selected the universal waste

option for management of mercurycontaining lamps, the final regulations

would be consistent with the final

universal waste rule (59 FR 38295).

Thus, if in the future final rule on

mercury-containing lamps the Agency

decides to add them to the universal

waste regulations, the requirements

proposed on July 27, 1994, would be

revised to be consistent with the

universal waste regulations promulgated

today. For example, instead of using the

terminology for universal waste

handlers from the proposed rule

(generators and consolidation points),

the terminology from today’s final rule

would be used (small and large quantity

handlers of universal waste). The

concepts governing management of

mercury-containing lamps from the

proposed universal waste option (e.g.,

waste management controls, quantity

limits for notification), revised as

appropriate in response to comments,

would be incorporated into the
25494 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

universal waste regulatory structure

promulgated today.

All of the comments submitted on the

universal waste proposal that addressed

the issue of how mercury-containing

lamps should be regulated and the

questions concerning the risks of

managing these wastes have been

included in the docket for the July 27,

1994, proposal on mercury-containing

lamps (docket number F–94–FLEPFFFFF). The Agency will respond to

those comments in the final rule on

mercury-containing lamps together with

comments submitted in response to the

July 27, 1994, proposal.

II.B. Redefinition of Solid Waste

Over the past several years EPA has

been exploring ways of clarifying the

‘‘definition of solid waste’’ regulations,

which are the regulations that govern

hazardous waste recycling. The goals of

this effort are to eliminate disincentives

for hazardous waste recycling, ensure

that hazardous waste recycling is

environmentally protective, address

areas of underregulation, and simplify

the definition of solid waste regulations

to make them easier to comply with and

to implement. In mid-1992 the Agency

formed a Definition of Solid Waste Task

Force which met over the course of a

year with representatives of industry,

environmental groups, states, and EPA

regional offices to discuss possible

options. The Task Force has published

a final report recommending various

regulatory changes that could be made

to accomplish the goals of the project.

The report is entitled ‘‘Re-engineering

RCRA for Recycling: The Definition of

Solid Waste Task Force Report and

Recommendations,’’ EPA publication

# EPA 530–R–94–016, and is available

by calling the RCRA Hotline listed

above in the For Further Information

section of this notice. It is expected that

the Agency will make decisions on how

to act on the Task Force’s

recommendations within the next

several months.

Today’s universal waste rule arises

out of some of the same past Agency

efforts as does the redefinition of solid

waste project, and has similar goals. The

two projects are not concurrent,

however, and each is now in a different

stage of development. While this is the

final rule setting up the structure of the

universal waste regulations, the

redefinition of solid waste is a longer

term project that has not yet reached the

point of regulatory revisions. Several

issues raised by the universal waste rule

and the redefinition project make it

important that the reader understand

the interaction between these two

projects.

First, the Universal Waste Rule is

designed to accomplish three general

goals. These goals consist of

encouraging resource conservation

while ensuring adequate protection of

human health and the environment,

improving implementation of the

current subtitle C hazardous waste

regulatory program, and providing

incentives for individuals and

organizations to collect the unregulated

portions of these universal waste

streams and manage them using the

same systems developed for the

regulated portion, thereby removing

these wastes from the municipal waste

stream. As discussed earlier, the goals of

the Redefinition of Solid Waste Force

include eliminating disincentives for

hazardous waste recycling, ensuring

that hazardous waste recycling is

environmentally protective, addressing

areas of underregulation, and

simplifying the definition of solid waste

regulations to make them easier to

comply with and to implement. In the

universal waste proposal the Agency

did not propose to make any changes to

the regulations governing facilities

recycling universal wastes (destination

facilities), and has not done so in this

final rule. Facilities recycling universal

wastes are thus subject to the same

regulations as any other hazardous

waste recycler. A number of

commenters suggested that the Agency

should lessen the regulatory

requirements for universal waste

recyclers to encourage recycling.

Although the Agency agrees that

encouraging safe recycling of these

wastes is an important objective, it

would be premature to make any

changes to the recycling regulations at

this time.

As part of the redefinition of solid

waste project, the Agency and other

interested parties have expended a great

deal of effort analyzing this issue and

discussing the best ways to accomplish

this goal. It would not make sense to

make any changes to the recycling

regulations now, since the final results

of the project are not available. Any

changes made now would not realize

the benefit of the efforts put into the

project. In addition, making changes

now could be very disruptive, since it

is likely that the recycling regulations

will be revised again shortly after the

universal waste regulations are in place

(i.e., incorporated into state regulations).

The Agency’s goals for universal

waste recycling are the same as for all

other hazardous waste recycling. Thus,

when the Agency makes changes to the

recycling regulations as part of the

redefinition of solid waste project, these

changes will also be applied to

universal waste recycling.

Second, the Definition of Solid Waste

Task Force recommendations discuss a

category of recycling called ‘‘product

stewardship.’’ Depending on the

direction taken by the Agency in this

area there may be some similarities to,

or overlap with, the universal waste

regulations. Any regulatory changes that

are made in this area as part of the

redefinition of solid waste will take into

account the status of the universal waste

regulations (e.g., what wastes have been

added, how many states have

implemented the regulations, and how

well the system is working). The Agency

will ensure that the product

stewardship portion of the redefinition

effort is coordinated with the universal

waste regulations as necessary and will

not disrupt existing programs.

II.C. Possible Revisions to the

Hazardous Waste Characteristics

EPA believes the approach in this

rulemaking is a useful new approach to

easing the burden while encouraging the

proper management of wastes that pose

a hazard if mismanaged. There may be

certain hazardous wastes, however, for

which relief beyond that provided by

the universal waste rule may be

appropriate. One approach for doing so

is through reexamination of the existing

toxicity characteristic. EPA is going to

expeditiously investigate what sort of

effort would be involved in developing

modifications to the characteristics,

what sort of resources would be needed

to do that, and consider the benefits of

such an effort against the benefits of

other regulatory improvements EPA is

considering. A rulemaking to modify the

characteristics might potentially affect a

significant quantity of currently

regulated and currently unregulated

waste.

III. Summary of Final Universal Waste

Regulations

The part 273 regulations for managing

universal wastes promulgated today are

substantively very similar to those

proposed on February 11, 1993. Thus,

the requirements that a person

managing universal wastes must follow

under this final rule are very similar to

those that they would have been

required to follow under the regulations

as proposed. However, in response to

comments from the public on the

proposal, the Agency has made a

number of changes to the regulations

that the Agency believes will improve

the environmental protectiveness of the

rule, make it easier for the regulated

community to comply with the

requirements, and make it easier for
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25495

implementing agencies to implement

the universal waste program.

III.A. Structure of the Final Rule

Although the final universal waste

rule requirements are substantively very

similar to those proposed, the final rule

may at first appear to be quite different

from the proposal because two major

structural changes have been made to

the universal waste regulations, 40 CFR

part 273. First, the terms used to refer

to some of the participants in the

universal waste system have been

changed in the final rule. To make the

final regulation easier to use and less

repetitive, the basic organization of the

regulation has also been changed from

the proposal.

The first major revision to the

structure of the regulation is that the

terms used to refer to some of the

participants in the universal waste

system have been changed. Specifically,

in the proposal there were four types of

regulated persons that manage universal

waste: Generators, consolidation points,

transporters, and destination facilities.

In the final rule there are also four types

of regulated persons. The transporter

and destination facility categories are

retained as they were proposed.

However, the persons who would have

been included in the proposed generator

and consolidation point categories will

now fit into either the category of small

quantity handlers of universal waste

(SQHUWs) or the category of large

quantity handlers of universal waste

(LQHUWs). Under the proposal, the

categories of generator and

consolidation point were distinguished

by the way wastes came to be at the

facility. Generators generated the waste

themselves on-site, and consolidation

points received the waste from off-site.

Under the final rule, the categories of

large and small handlers of universal

waste are distinguished by the amount

of waste accumulated on-site at any

time. LQHUWs accumulate 5,000

kilograms or more total of universal

wastes. SQHUWs accumulate less than

5,000 kilograms total.

The Agency decided to make this

change for several reasons. First,

numerous commenters suggested that

there should be a third category of

universal waste handler: front-line

collectors of universal waste who collect

small quantities of universal waste,

largely from consumers and small

businesses. These commenters pointed

out that such collectors would

frequently be retail-type operations (e.g.,

a department or specialty store that has

a spent battery collection box)

participating in national or regional

collection programs. Such front-line

collectors would likely accumulate only

small quantities of universal waste

because only a minor portion of their

business is devoted to managing waste,

and because they would ship wastes

frequently using package shipping

services or similar systems set up by the

collection programs. Under the

proposal, these front-line collectors

would have been subject to the more

stringent consolidation point

requirements because they receive

wastes from off-site generators.

These commenters argued that frontline collectors should be subject to less

stringent requirements than the

proposed consolidation point

requirements for several reasons. One

reason was that the universal waste they

would have on-site would pose limited

risk due to the small quantities

involved. Another reason was that some

of the requirements would inhibit the

participation of many retail-type

operations (such as the large retail

chains), thereby greatly limiting the

success of universal waste collection

programs in removing these wastes from

non-hazardous waste management

systems.

The Agency agrees with the concept

that the activities of persons such as

front-line collectors managing small

quantities of universal waste pose less

risk and require less stringent standards

than those managing larger quantities of

universal waste. Instead of adding an

additional category of front-line

collectors with less stringent standards,

however, the Agency decided to extend

this concept to all persons both

generating and collecting universal

waste. Thus, under the final rule,

persons accumulating large quantities of

universal waste (5,000 kg or more total

of universal waste accumulated on-site)

are called large quantity handlers of

universal waste, and are subject to more

stringent requirements than small

quantity handlers of universal wastes,

who are persons accumulating less than

5,000 kg total of universal waste. A

handler’s designation as a large quantity

handler of universal waste is retained

through the end of the calendar year in

which 5,000 kilograms or more total of

universal waste is accumulated.

Another reason the Agency decided to

restructure the categories of persons

managing universal wastes was in

response to comments received on the

issue of recordkeeping for universal

waste shipments. The Agency had

proposed that a manifest be required for

shipments from final consolidation

points to destination facilities, based on

the concept that such shipments would

be larger shipments and thus require

closer tracking. In addition to other

issues, a number of commenters pointed

out that it is not necessarily true that

shipments from consolidation points to

destination facilities will be larger

shipments. For example, shipments

between consolidation points or

between generators and destination

facilities may also be large shipments.

The Agency agrees that it does not

necessarily make sense from a risk

perspective to require recordkeeping for

certain shipments based solely on the

type of universal waste management

activity conducted by the shipper and

receiver (i.e., whether the shipper

generates or collects universal waste or

whether the receiver collects or disposes

of universal waste) rather than on the

quantity of universal waste handled.

Thus, the Agency has decided to require

recordkeeping of LQHUWs but not

SQHUWs, and to define the categories

by the quantities of waste managed.

The second major change to the

structure of the rule is that it has been

reorganized. Part 273 of the proposed

rule included some general provisions

in the first subpart, and then each

subsequent subpart included the

regulations applicable to persons

managing each specific type of universal

waste. For example, subpart B covered

universal waste batteries, and included

requirements for generators,

transporters, consolidation points, and

destination facilities. Subpart C covered

universal waste pesticides, and also

included requirements for generators,

transporters, consolidation points, and

destination facilities.

A number of commenters pointed out

that this organization was unnecessarily

repetitive, particularly since the

majority of the requirements for each

type of participant in the universal

waste system was the same. In other

words, the requirements for generators

of batteries (or transporters,

consolidation points, or destination

facilities) were basically the same as the

requirements for generators of pesticides

(or transporters, consolidation points, or

destination facilities). These

commenters also noted that the rule

would become even more repetitive if

additional wastes were added in the

future, since a new subpart would have

to be added for each new universal

waste. These commenters suggested that

the rule would be easier to use if it were

structured such that general

requirements were presented together,

followed by specific differences for

persons managing particular universal

wastes.

The Agency agrees with these

commenters and has revised the final

rule accordingly. Subpart A of the final

rule includes general provisions such as
25496 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

applicability and definitions. Subpart B

includes requirements applicable to

Small Quantity Handlers of Universal

Waste. Subpart C includes requirements

for Large Quantity Handlers of

Universal Waste. Subpart D covers the

requirements for transporters of

universal waste. Subpart E sets forth

standards for destination facilities.

Subparts F and G, respectively, include

standards for imports of universal waste

and petitions to include other wastes

under Part 273.

Subparts B through E of the final rule

now include all of the requirements

applicable to one type of universal

waste manager, regardless of what type

of universal waste is being managed.

Thus, a universal waste manager who

may be handling more than one type of

universal waste need only read the one

section applicable to his or her

activities. Requirements that are

different for particular waste types are

noted within the regulatory text. For

example, the waste management

sections for small and large handlers

each include a subsection setting forth

the requirements applicable to

management of a particular universal

waste. Subsection (c) addresses

batteries, subsection (d) pesticides, and

(e) thermostats.

The Agency believes reorganization

makes the final rule more user-friendly,

and thus will encourage participation in

universal waste collection programs.

The Agency also believes that the

regulatory sections within the subparts

are laid out simply and clearly, making

it easier to find any particular part of the

regulation.

Although this reorganization does

remove much of the redundancy of the

regulation (and will avoid adding

repetition in the future if new universal

wastes are added to the regulations),

readers may note that the small and

large quantity handler subparts of the

rule remain somewhat repetitive. This is

because, although these two groups

share many of the same requirements, in

three sections, the requirements are

different. These sections are

notification, tracking, and employee

training. One possibility would have

been to have only one handler subpart,

and specify the different requirements

for small and large quantity handlers

within each of these three sections.

However, the Agency believes that the

regulation will be easier for handlers to

follow if they determine once whether

they are small or large handlers, and

then read only the regulations

applicable to their category. Thus, the

Agency has decided to retain two

different subparts for small and large

quantity handlers.

Figure 1 illustrates the structure of the

final universal waste management

system.

BILLING CODE 6560–50–P
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25497

BILLING CODE 6560–50–C
25498 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

III.B. Summary of Universal Waste

Requirements

This section provides a summary of

the final universal waste regulations, 40

CFR part 273. Table 1 presents a

simplified overview of the types of

participants in the universal waste

system and the requirements applicable

to each type of participant. Each of the

universal waste requirements is

discussed in more detail in the later

sections of this preamble.

BILLING CODE 6560–50–P
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BILLING CODE 6560–50–C
25500 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

III.B.1. Wastes Covered Under the

Universal Waste System

Three types of wastes are covered

under the universal waste regulations:

hazardous waste batteries, hazardous

waste pesticides that are either recalled

or collected in waste pesticide

collection programs, and hazardous

waste thermostats. Other wastes may be

added to the universal waste regulations

in the future, but at this time only these

three wastes are included.

III.B.2. Requirements for Participants in

the Universal Waste System

As illustrated in Table 1, there are

four types of participants in the

universal waste system: Small Quantity

Handlers of Universal Waste, Large

Quantity Handlers of Universal Waste,

Universal Waste Transporters, and

Destination Facilities. Each of these

participants is described below.

Although there are ten basic universal

waste management requirements,

individual participants in the universal

waste system are not subject to all ten

requirements. Only those requirements

that have been determined to be

appropriate for a given type of

participant are included in the

regulations for that participant.

Throughout the universal waste

regulations, each of these ten basic

requirements is addressed in regulatory

sections using the same section

headings. For example, the same

requirements are addressed in the offsite shipments section for SQHUWs as

are addressed in the off-site shipments

sections for LQHUWs, transporters, and

destination facilities. In some cases not

all issues within a section were

determined to be necessary for each

type of participant, so some sections do

not address every issue addressed in

other sections with the same heading.

III.B.2.a. Small and Large Quantity

Handlers of Universal Waste

There are two types of handlers of

universal waste. The first type of

handler is a person who generates, or

creates, universal waste. This is a

person who uses batteries, pesticides, or

thermostats and who eventually decides

that they are no longer usable and thus

are waste. Contractors or repair people

who decide that batteries or thermostats

are no longer usable and remove them

from service also generate universal

waste, and thus are handlers of

universal waste. The second type of

handler is a person who receives

universal waste from generators or other

handlers, consolidates the waste, and

then sends it on to other handlers,

recyclers, or treatment/disposal

facilities. Universal waste handlers

accumulate universal waste, but do not

treat, recycle, or dispose of the waste.

Each separate location (e.g., generating

location or collecting location) is

considered a separate universal waste

handler. Thus, if one company has

several locations at which universal

waste is generated or collected, each

location is a separate handler.

There are two sets of regulations for

handlers of universal waste. Subpart B

of part 273 sets forth the requirements

that small quantity handlers of universal

waste must follow. SQHUWs do not

accumulate 5,000 kilograms or more

total (all universal waste categories

combined) of universal waste at their

location at any time. Subpart C of part

273 sets forth the requirements that

large quantity handlers of universal

waste must follow. LQHUWs

accumulate 5,000 kilograms or more

total (all universal waste categories

combined) of universal waste at any

time. This designation as a large

quantity handler of universal waste is

retained through the end of the calendar

year in which 5,000 kilograms or more

total of universal waste is accumulated,

at any one time. The Agency realizes

that some handlers of universal waste

who would generally qualify as a small

quantity handler may have a one-time,

or infrequent, occasion to accumulate

5,000 kg of universal waste, at any one

time, on-site, thus requiring them to

comply with the large quantity handler

regulations in today’s rule. The Agency

did not intend to require these handlers

to comply with the more stringent large

quantity handler requirements during

subsequent years in which they do not

accumulate 5,000 kilograms or greater.

The Agency clarifies in the definition of

large quantity handler of universal

waste, that this designation is retained

by the handler for the remainder of the

calendar year in which 5,000 kilograms

or more of universal waste was

accumulated. A handler may reevaluate

his status as a large quantity handler of

universal waste in the following

calendar year.

Subparts B and C each include eleven

sections (see Table 1; Note: the

‘‘Applicability’’ section is not included

in this table). Because most of the

requirements are the same for SQHUWs

and LQHUWs, they are described

together. The first sections (40 CFR

273.10 and 273.30) are called

‘‘applicability,’’ and explain who the

subpart B and C requirements apply to.

The second sections, ‘‘prohibitions’’ (40

CFR 273.11 and 273.31), prohibit

handlers from disposing of, diluting, or

treating universal waste except in

certain circumstances. The third

sections, ‘‘notification,’’ are different for

SQHUWs and LQHUWs. 40 CFR 273.12

notes that SQHUWs are not required to

notify EPA of their universal waste

activities and are not required to obtain

an EPA identification number. 40 CFR

273.32 requires LQHUWs to notify EPA

and to obtain an EPA identification

number.

The fourth sections, ‘‘waste

management’’ (40 CFR 273.13 and

273.33), explain the requirements

SQHUWs and LQHUWs must follow

when handling universal waste. They

require that universal waste be managed

in a way that prevents releases to the

environment, specify packaging

requirements for universal wastes, and

set forth procedures that must be

followed when handling batteries (e.g.

sorting battery types, mixing battery

types, disassembling battery packs,

removing electrolyte, etc.), and when

removing mercury-containing ampules

from thermostats. The next sections,

‘‘labeling/marking’’ (40 CFR 273.14 and

273.34), require handlers to label or

mark universal wastes or containers of

universal waste to identify the type of

universal waste (e.g., used batteries,

pesticides). The ‘‘accumulation time

limit’’ sections (40 CFR 273.15 and

273.35) limit the time that handlers may

accumulate universal waste to one year

(with one exception), and require

handlers to be able to demonstrate that

wastes are not accumulated for more

than one year. The seventh sections,

‘‘employee training’’ (40 CFR 273.16

and 273.36), are somewhat different for

SQHUWs and LQHUWs. SQHUWs must

distribute basic handling and emergency

information to employees handling

universal waste. LQHUWs must ensure

that employees are familiar with waste

handling and emergency procedures as

appropriate based on their

responsibilities.

The eighth sections are entitled

‘‘response to releases’’ (40 CFR 273.17

and 273.37) and require handlers to

immediately contain any releases of

universal waste and to handle residues

appropriately. The ‘‘off-site shipments’’

sections (40 CFR 273.18 and 273.38)

require handlers to send universal waste

only to persons within the universal

waste system and specify procedures to

be followed when a shipment is rejected

by the receiving facility. The ninth

sections, ‘‘tracking universal waste

shipments’’ (40 CFR 273.19 and 273.39),

are different for SQHUWs and

LQHUWs. SQHUWs do not have any

requirements. LQHUWs must maintain

basic records documenting shipments

received at the facility and shipments

sent from the facility. The last sections,

‘‘exports’’ (40 CFR 273.20 and 273.40),
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specify notification procedures that

must be followed when handlers ship

universal wastes to foreign destinations.

III.B.2.b. Transporters of Universal

Waste

The requirements for transporters of

universal waste are found in subpart D

of part 273. See Table 1. Transporters

are persons who transport universal

waste from handlers of universal waste

to other handlers, destination facilities,

or foreign destinations. A transporter

may be an independent shipper

contracted to transport the waste, or

may be a handler who self-transports

the waste. A universal waste handler

who self-transports his waste becomes a

transporter for those self-transportation

activities and is subject to the

requirements of subpart D of this rule.

The universal waste rule does include

some specific requirements for

transporters. However, the basic

approach to transportation under the

universal waste system is that no

hazardous waste manifests are required,

and transporters must comply with the

Department of Transportation (DOT)

requirements that would be applicable

to the waste if it were being transported

as a product. For example, if

transporting universal waste batteries,

the transporter must comply with the

appropriate DOT requirements, which

are based on whether the particular

battery type is a DOT hazardous

material, and if so, which DOT

hazardous material requirements apply

to the specific battery type.

The universal waste transporter

requirements consist of seven sections.

The first, ‘‘applicability’’ (40 CFR

273.50), explains to whom the

transporter requirements apply.

‘‘Prohibitions’’ (40 CFR 273.51),

prohibits transporters from disposing of,

diluting, or treating universal waste.

The third section, ‘‘waste management’’

(40 CFR 273.52), explains that

transporters must comply with

applicable DOT requirements if the

waste they are transporting is a

hazardous material under DOT

regulations. The fourth section, entitled

‘‘accumulation time limits’’ (40 CFR

273.53), notes that transporters may

store waste for up to ten days at a

transfer facility during the course of

transportation. Transfer facilities are

transportation related facilities such as

loading docks, parking areas, and

storage areas. If a transporter stores

waste for more than ten days at one

location, the transporter must comply

with the appropriate universal waste

handler rules while storing the waste.

The fifth transporter section,

‘‘response to releases’’ (40 CFR 273.54),

requires transporters to immediately

contain any releases of universal waste

and to handle residues appropriately.

‘‘Off-site shipments’’ (40 CFR 273.55)

prohibits transporters from transporting

universal waste to any place other than

a universal waste handler, destination

facility, or foreign destination. Finally,

‘‘exports’’ (40 CFR 273.56), requires

transporters to follow certain

requirements for exports of hazardous

waste.

III.B.2.c. Destination Facilities

The requirements for destination

facilities are found in subpart E of part

273. See Table 1. Destination facility

means a facility that treats, disposes of,

or recycles a particular category of

universal waste, except those

management activities described in

paragraphs (a) and (c) of §§ 273.13 and

273.33. A facility at which a particular

category of universal waste is only

accumulated, is not a destination

facility for purposes of managing that

category of universal waste.

The universal waste rules include

only two specific universal waste

requirements for destination facilities.

In general, however, these facilities are

subject to the same requirements that

are applicable to treatment, storage, and

disposal facilities under the full

hazardous waste regulations. This

includes permitting as well as general

facility standards and unit specific

requirements. In addition to the full

hazardous waste requirements, there are

three sections specifying universal

waste requirements for destination

facilities. For the most part these

requirements simply mirror universal

waste handler requirements for receipt

of universal waste, since destination

facilities also receive universal waste.

First, ‘‘standards for destination

facilities’’ (40 CFR 273.60) indicates

which of the full hazardous waste

regulations destination facilities must

follow. These are the same full

hazardous waste regulations these

facilities would be subject to if they

were handling non-universal hazardous

wastes. Specifically, facilities that treat,

dispose of, and recycle universal wastes,

except for those activities described in

paragraphs (a) and (c) of §§ 273.13 and

273.33, are subject to the permitting or

interim status requirements of 40 CFR

parts 264 or 265. Facilities that recycle

universal waste without accumulating

the waste before it is recycled are

subject to the recycling requirements of

40 CFR 261.6(c)(2).

Second, ‘‘off-site shipments’’ (40 CFR

273.61) sets forth procedures for

rejecting a shipment of universal waste.

Finally, ‘‘tracking universal waste

shipments’’ (40 CFR 273.62) requires

destination facilities to retain the same

records for receipt of universal waste

shipments that LQHUWs are required to

retain. By documenting receipt of

universal waste shipments, these

records complete documentation of

shipments sent from handlers.

III.B.3. Import Requirements

Subpart F of the universal waste

regulations clarifies the requirements for

universal wastes that are imported. In

general, once universal waste enters the

United States it is subject to the same

universal waste requirements it would

be if it had been generated in the United

States.

III.B.4. Petitions to Include Other Wastes

Under Part 273

Subpart G of part 273 includes two

sections setting forth the procedures to

be used to petition the Agency to add

additional wastes to the universal waste

regulations. Further requirements are

specified in 40 CFR 260.20 and 260.23.

IV. Detailed Discussion of Final Rule

IV.A. Goals of Final Rule

In the proposed part 273 regulations,

EPA proposed a set of special

requirements for universal hazardous

wastes which were designed to

accomplish three general goals. One

goal was to encourage resource

conservation, while ensuring adequate

protection of human health and the

environment. Another broad goal

defined in the proposal was to improve

implementation of the current subtitle C

hazardous waste regulatory program.

And, the final goal, by simplifying the

requirements and encouraging

collection of these hazardous wastes,

EPA hoped to provide incentives for

individuals and organizations to collect

the unregulated portions of these

universal waste streams (e.g., from

households or CESQGs) and manage

them using the same systems developed

for the regulated portion, thereby

removing these wastes from the

municipal waste stream and minimizing

their input of hazardous constituents to

municipal landfills, combustors, and

composting projects. Each of these goals

is discussed below.

The first goal for the universal waste

rule stated in the proposal was to

encourage resource conservation. EPA

believes that today’s final rule serves to

stimulate achievement of this goal.

While today’s final rule applies to both

universal wastes destined for recycling

and those destined for disposal, as

proposed, several features of the rule

remove major obstacles faced by persons
25502 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

desiring to recycle these wastes. Today’s

final rule reduces the management

requirements for generators,

consolidation points (in the final rule

referred to as small and large quantity

handlers of universal waste), and

transporters. Destination facilities must

continue to meet all requirements,

except manifesting requirements, of the

subtitle C regulations. By relaxing the

standards for these handlers, collection

of universal waste is simplified, thereby,

encouraging participation in collection

programs. The Agency believes that the

ability to access large quantities of

universal waste from central collection

centers may encourage the development

and use of safe and effective ways to

recycle these wastestreams. Conversely,

limiting the rule to universal waste

destined for recycling only, may

discourage the use and development of

recycling technologies as universal

waste handlers may be hesitant to

participate in a program that requires

knowledge that their universal waste is

recycled.

The second goal of today’s final rule

is to improve implementation of the

hazardous waste program. EPA believes

that today’s rule, as modified in

response to comments, will have

significant impacts on waste

management practices nationwide.

Implementation of the hazardous waste

program will be improved by the

simplified set of requirements set forth

in the rule. The provisions are now

written such that they are more easily

understood by handlers of universal

wastes. The Agency believes that

today’s final rule is protective of human

health and the environment, will be

clear and easily understood by the

diverse community which is targeted in

this rule, and will not require expending

unreasonable amounts of time and effort

to understand the applicable

requirements. The final rule also allows

the part 273 regulations to be applied to

all universal wastes, regardless of

whether they are destined for recycling

or disposal. Thus, compliance and

enforcement procedures are easier to

implement. Finally, because the final

rule does not require that universal

waste handlers count those universal

wastes managed under part 273 toward

their monthly quantity determination,

today’s rule will greatly simplify the

procedures used to determine monthly

hazardous waste generation rates for

universal waste handlers, thus

facilitating the implementation of the

regulations.

The third goal of today’s final rule is

to separate universal waste from the

municipal waste stream. Under the full

subtitle C regulations, the management

of waste differs based on the waste’s

generation source. That is, waste

generated by consumers in their homes

is not regulated under RCRA Subtitle C

when discarded, because it is excluded

from the definition of hazardous waste

under 40 CFR 261.4(b)(1). Conversely,

the same waste would be subject to

RCRA Subtitle C regulation if generated

by commercial establishments,

industries and other non-exempt

generators. Wastes covered under the

universal waste regulations (batteries,

pesticides, and mercury thermostats) are

examples of wastes that are generated by

both groups. Because the waste itself is

the same, and therefore looks the same

to waste handlers, universal waste that

belongs in a hazardous waste system

may be entering municipal solid waste

landfills or combustors instead. The

Agency believes that today’s rule is

practical enough that, as an

infrastructure develops for collecting

universal waste, all categories of

handlers will manage their universal

waste under the part 273 requirements.

Therefore, in the final rule, management

of universal waste is material-specific

rather than source-specific, therefore,

universal waste, regardless of the source

of generation, should be easily managed

under today’s final rule.

IV.B. Scope of Final Rule

This section discusses the scope of

the final universal waste rule. The first

section discusses the question raised in

the proposal of whether the universal

waste system should be limited to

wastes that are recycled, or should

include both wastes that are recycled

and wastes that are treated and

disposed. The second section discusses

each of the wastes that have been

included in the final rule, and several

wastes that have not been included. The

third section addresses another question

raised in the proposal, whether

Conditionally Exempt Small Quantity

Generators (CESQGs) should be required

to manage their universal wastes under

the universal waste system or have the

option of managing the waste under the

existing CESQG exemption.

IV.B.1. Recycling Versus Recycling or

Disposal

The Agency requested comment in

the proposed universal waste rule on

whether the streamlined universal waste

regulations should cover wastes that are

to be either recycled or disposed of, or

whether they should be limited only to

wastes that are to be recycled. The

Agency discussed three options: (1)

Limiting the regulations to recycled

wastes only; (2) allowing management

of wastes that are to be either recycled

or disposed of; or (3) a hybrid of options

1 and 2 under which generators and

transporters could manage waste that

was to be either recycled or disposed of

under the streamlined universal waste

regulations, but the streamlined

regulations would be available only to

consolidation points that send wastes

on for recycling.

The proposed regulatory text was

crafted following option 2: the

streamlined regulations would be

applicable to both recycled and

disposed of wastes. Although limiting

the regulations to recycled wastes might

encourage recycling, which the Agency

supports, the Agency explained that at

the time it believed that not limiting the

regulations was the best option for a

number of reasons. The vast majority of

commenters who addressed this issue

agreed that the universal waste

regulations should be available for both

wastes that are recycled and wastes that

are disposed of. Commenters generally

agreed with the Agency’s basis for not

limiting the regulations and also

discussed additional supporting factors.

Based on these comments, the Agency

has decided to include both recycled

and disposed of universal wastes under

the final universal waste regulations of

part 273. The main reasons that

commenters supported this approach

and that the Agency has chosen this

approach for the final rule are discussed

below.

Not limiting the universal waste

system to recycled waste makes the

regulations much less complex and

more user friendly, thus encouraging

participation in universal waste

collection programs. Persons are more

likely to be willing to participate in

collection programs if they are not

required to determine whether recycling

is available and cost effective,

particularly in situations where

recycling markets and capacity are

volatile. In these cases it may not

actually be possible to make such a

determination early in the collection

system, and the determination may vary

over time, making compliance and

enforcement difficult. The Agency

believes, and commenters agreed, that

less complex regulations will increase

collection of universal wastes. Increased

collection under the universal waste

regulations will result in increased

environmentally protective management

of universal wastes at Subtitle C

hazardous waste facilities. The Agency

believes that the environmental benefits

to be obtained from improved

management of these wastes, whether it

is recycling or treatment and disposal,

outweigh the possible increases in
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25503

recycling that might occur if the

regulations were limited.

Not limiting the regulations also

avoids one problem that the Agency and

the regulated community have had

difficulties with in the past. Regulations

that are based on the intent of a person

to do something in the future are very

difficult to enforce, and sometimes even

make it difficult for regulated persons to

know what regulations they should be

following. The Agency believes, and

commenters agreed, that the compliance

and implementation difficulties that are

inherent in requirements that vary

depending on a future action (e.g.,

recycling or disposal) make

distinguishing between wastes to be

recycled and wastes to be disposed of

infeasible under the universal waste

regulations.

Several commenters argued that

limiting the regulations to recycled

waste might, in fact, discourage

collection and recycling. Commenters

believed that persons are not likely to be

willing to collect wastes for potential

recycling under the universal waste

regulations if they are vulnerable to

liability for full Subtitle C violations, if,

at a later time, they determine that

recycling is not available. Given the

volatility of recycling markets and

capacities, particularly for recycling

technologies that are under

development and not fully established,

this is a real concern. One commenter

also pointed out that some universal

wastes are likely to be collected in

mixtures of recyclable wastes and nonrecyclable wastes (e.g., mixed batteries).

Such wastes would have to be managed

under the full hazardous waste

regulations, thus nullifying the benefits

of the universal waste regulations,

inhibiting collection of even the

recyclable wastes, and ultimately

limiting recycling. The Agency agrees

with these commenters that the

difficulties inherent in having two

systems based on the ultimate

disposition of the waste is not practical

and may, in some cases, actually inhibit

recycling.

Several commenters argued that

providing streamlined regulations only

for recycled wastes would provide an

even greater incentive than already

exists for persons managing wastes to

claim that they are recycling, when their

operations may be sham rather than

legitimate recycling. This would make it

even more difficult for both persons

shipping wastes to recyclers and

regulating agencies to determine

whether persons claiming to be

recycling (or sending wastes to

recycling), are legitimately recycling.

The Agency’s experience has been that

it is not an easy task to determine

whether an operation is a legitimate or

sham recycler. The added incentive for

sham recycling, and the increased

importance of distinguishing legitimate

from sham recycling would further

complicate a system limited to recycled

wastes, making it less effective in

accomplishing the goals of removing

waste from non-hazardous waste

management systems and improving

implementation of the hazardous waste

regulations.

Numerous commenters pointed out

that there may be a number of wastes for

which the universal waste system

would be successful in greatly

improving waste management practices,

but for which recycling is not available

because it is not either technologically

or economically feasible. Waste

pesticides are a good example.

Recycling is rarely, if ever, an option

and incineration is frequently the only

management option available. If the

universal waste regulations were limited

to wastes that are recycled, waste

pesticides could not be included. This

would greatly limit the environmental

benefits to be obtained from collection

and proper management of pesticides,

and other similar wastes, under the

universal waste regulations. These

commenters, and the Agency, agree that

the benefits of encouraging proper

management for such wastes far

outweigh the possible increases in

recycling that might occur if the

regulations were limited.

Finally, the Agency notes that the

treatment standards of the land disposal

restrictions program specifically require

recycling for many wastes included in

the final universal waste rule, including

lead-containing batteries, cadmiumcontaining batteries, and high

concentration mercury wastes such as

high-mercury batteries and thermostats.

Land disposal, and treatment followed

by land disposal, is not allowed for

these wastes. Under the final rule, all

universal wastes must go to a

destination facility for any treatment,

recycling, or disposal. The land disposal

restrictions, including the treatment

standards, are fully applicable to

destination facilities. Thus, for these

universal wastes recycling is actually

mandatory. The Agency notes that in

cases such as these the land disposal

restrictions program has been used to

require recycling for particular

hazardous wastes where it has been

determined to be the best demonstrated

available technology (BDAT). These

requirements continue to apply under

the universal waste regulations.

IV.B.2. Wastes Included in Final Rule

In the universal waste proposal,

hazardous waste batteries and

suspended and/or cancelled pesticides

that are recalled were included as

universal wastes in the proposed

regulatory text. In the preamble, the

Agency suggested several additional

waste types for which it believed

regulation under the universal waste

system might be appropriate. The waste

types discussed included spent

antifreeze, paint residues, used

thermometers, and used thermostats.

The Agency requested comment on

whether these wastes should be

included in the universal waste system,

and on what requirements would be

appropriate to include in the regulations

to ensure that management under the

universal waste regulations was

protective of human health and the

environment. Specific waste

management requirements for

thermostats were discussed in some

detail. The Agency has decided to

include three waste categories in the

final universal waste rule: hazardous

waste batteries, certain hazardous waste

pesticides, and hazardous waste

thermostats. These wastes are exempt

from 40 CFR parts 262—270, except as

specified in 40 CFR part 273. These

wastes are now subject to the new part

273 regulations and, therefore, are not

fully regulated under the current

hazardous waste regulations. The

universe of wastes included in each of

these categories is discussed in detail in

the subsections below. Comments

received on each of the waste categories

and the Agency’s responses to these

comments are also discussed. Also

discussed are several waste types for

which a number of comments were

received, but that were not included in

the final universal waste rule.

IV.B.2.a. Hazardous Waste Batteries

The Agency proposed to include all

batteries that are hazardous waste in the

universal waste regulations, to

encourage collection and proper

management of these wastes. The main

reason for including all batteries was to

simplify the regulations and make them

easy to comply with. The Agency

requested comment on several issues,

including the proposed definition of

battery, whether the regulation should

distinguish between ‘‘wet’’ and ‘‘dry’’

batteries, whether the regulation should

distinguish between various sizes of

batteries, and how lead-acid batteries

should be addressed. This latter issue is

discussed in detail in the following

section of this preamble.
25504 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

The Agency has decided to generally

retain the proposed approach to

including batteries in the final rule.

Thus, all batteries that are hazardous

waste may be managed under the final

universal waste regulations. However,

based on comments received, the final

definition of battery has been revised

from the proposal. A number of

commenters raised questions

concerning the proposed definition and

suggested various revisions. Several

commenters also recommended using a

standard definition that is already in use

and accepted by major industry groups.

One commenter identified the American

National Standards Institute (ANSI)

standard definitions for battery and cell,

and recommended using a combination

of the two.

The Agency agrees that a recognized,

standard definition for battery is most

likely to properly identify the universe

of articles that should be covered by the

universal waste regulations. The

Agency’s intent is to include those items

commonly understood to be batteries,

without inadvertently including other

items or excluding some particular type

of battery. A standard definition is most

likely to accomplish this. Thus, the

Agency has chosen to use a combination

of the American National Standards

Institute (ANSI) standard definitions for

battery and electrochemical cell to

define the term battery in the final rule.

(See ‘‘The New IEEE Standard

Dictionary of Electrical and Electronics

Terms,’’ Fifth Edition, published by the

Institute of Electrical and Electronics

Engineers, Inc., IEEE Standard 1000–

1992.) The definition of battery in the

final rule is ‘‘a device consisting of one

or more electrically connected

electrochemical cells which is designed

to receive, store, and deliver electric

energy. An electrochemical cell is a

system consisting of an anode, cathode,

and an electrolyte, plus such

connections (electrical and mechanical)

as may be needed to allow the cell to

deliver or receive electrical energy. The

term battery also includes an intact,

unbroken battery from which the

electrolyte has been removed.’’

As suggested by commenters, the final

definition has been revised to specify

that a battery must store electrical

energy in addition to receiving and

delivering electrical energy. This

distinction is to ensure that gas-powered

or electric generators are not included.

The definition has also been expanded

to clarify that the definition of battery

does include batteries from which the

electrolyte has been removed. This was

clearly the intent of the proposal, which

specifically allowed removing

electrolyte from batteries. Commenters

did not object to electrolyte removal, but

were concerned that it be clear that

batteries may not be crushed or broken

to remove electrolyte. Note also that the

waste management requirements for

batteries prohibit breaking batteries

during electrolyte removal.

With respect to the question of

whether the universal waste regulations

should distinguish between ‘‘wet’’ and

‘‘dry’’ batteries (batteries with a liquid

vs. non-liquid electrolyte), those

commenters who addressed this issue

agreed that no distinction should be

made. The Agency has decided to

include both types of batteries in the

regulation based on these comments and

the argument that including all

hazardous waste batteries greatly

simplifies the regulations, making them

easier to comply with and thus

encouraging collection and improved

management. Similarly, the Agency has

decided to include all sizes of batteries

in the final rule. Few commenters

addressed this question, and again the

Agency believes that not limiting the

universal waste system will result in

improved management of all batteries,

regardless of size.

Finally, a number of commenters

raised questions about which types of

batteries exhibit characteristics of

hazardous waste and therefore would be

covered under the universal waste

system. Several commenters requested

that the Agency specify which battery

types are hazardous. A few commenters

provided some data on various types of

batteries, but the Agency did not find

the data to be comprehensive enough to

make broad generalizations about

whether various battery types are

always or never hazardous. In addition,

the Agency found it was not possible to

commit the resources that would be

required to conduct sufficient testing of

numerous brands, sizes, and ages of

batteries to make any broad

generalizations. Furthermore, even if

resources were available, it would likely

not be possible to make definitive

determinations in any case.

As a result, the Agency has decided

to retain the proposed approach of using

the term ‘‘hazardous waste batteries’’ to

identify the universe of batteries that

may be managed under the universal

waste regulations. As is true under all

of the hazardous waste regulations, it

remains up to the generator (handler) of

batteries to determine whether they

must be managed under the hazardous

waste regulations at all. If so, then the

universal waste regulations apply.

However, the Agency continues to

believe that the universal waste

regulations are simple and basic enough

that it will be easier and more efficient

to manage all kinds of batteries, and

particularly mixed batteries, under the

universal waste system rather than

making individual determinations about

batteries or battery types.

Of course, where sufficient

information is available for a generator

(or other handler) to determine that a

particular battery is not hazardous, then

that battery need not be managed under

the universal waste regulations.

However, one of the Agency’s goals for

the universal waste system has been to

reduce the complexity and burden of

complying with the hazardous waste

regulations for these wastes. One of the

major difficulties with the hazardous

waste regulations has been hazardous

waste determinations in cases where

wastes are generated in small quantities

by large numbers of people who are not

familiar with the specific composition

of the waste. Batteries are a classic

example of this problem. Thus, the

Agency hopes that the universal waste

regulations are sufficiently improved to

allow persons to manage batteries

within the universal waste system

without placing too much emphasis on

whether they are hazardous or not.

Obviously, in cases where it is known

that batteries are not hazardous this is

not necessary. But where it is not

known, it is hoped that resources will

be spent on improved management

rather than on extensive, initial

analytical work.

The Agency would like to note that

the Universal Waste Rule applies only

to hazardous waste batteries as defined

in 40 CFR 260.10 and 273.6, and not to

the unit or device in which the battery

is contained. There may be a situation

in which a regulated business is sending

a device containing a battery to a facility

to be repaired. At this point, the device

would not be considered a universal

waste as: (1) The device is still a

product, and therefore not yet a solid

waste; and (2) the device does not fall

into any of the current categories of

universal waste (hazardous waste

batteries, thermostats, and certain

pesticides). If, however, the person

(either the original generator or the

repair facility) decides to dispose of the

device, he must determine if the entire

device is or is not a hazardous waste.

IV.B.2.b. Lead-Acid Batteries

In the proposed rule, EPA proposed to

maintain the current exemption for

lead-acid batteries under subpart G, part

266. Under these regulations, persons

who generate, transport, or collect spent

lead-acid batteries, or who store them

but do not reclaim them (other than

spent batteries that are to be

regenerated) are not subject to the
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25505

hazardous waste regulations. Persons

who accumulate spent lead-acid

batteries before reclaiming them (e.g.

cracking, and/or smelting the batteries)

must notify EPA and obtain a RCRA

permit for that storage. Under the

universal waste proposal, persons had

the option of continuing to manage leadacid batteries under the part 266,

subpart G exemption or under the part

273 requirements. The existing

recycling program for automotive leadacid batteries currently in place, which

operates under this exemption, has been

extremely successful, with recycling

rates in excess of 90% nationwide. By

retaining the part 266, subpart G

exemption, the Agency believes that this

program can continue to operate

without unnecessary modifications nor

an adverse effect on the environment.

Therefore, in today’s final rule, the

subpart G, part 266 exemption has been

retained. Therefore, handlers of spent

lead-acid batteries are who are

managing them under the requirements

of § 266.80 are not subject to the

requirements under 40 CFR part 273.

However, handlers of spent lead-acid

batteries who are not managing them

under the § 266.80 requirements are

subject to the requirements under 40

CFR part 273.

In addition, 40 CFR 266.80 (a) and (b)

have been revised to clarify that leadacid batteries that are regenerated

remain exempt from the hazardous

waste regulations throughout the

management cycle. Since the final rule

retains the lead-acid battery provisions

of 40 CFR 266.80, it is most appropriate

to also include regenerated lead-acid

batteries so that all lead-acid batteries

may be managed similarly. However,

since the activities of a regeneration

facility are more similar to a facility that

accumulates waste than a facility that

processes a waste to recover a usable

product, batteries that are regenerated

have also been exempted from the

requirements for lead-acid battery

reclamation facilities (for further

discussion of regenerated batteries, see

section IV.J. of today’s preamble).

Most commenters agreed that the

current exemption for lead-acid

batteries under subpart G of 40 CFR part

266 should be retained. Commenters

agreed that by maintaining this

exemption, the current recycling

program for automotive lead-acid

batteries can continue to operate

successfully.

A few commenters, however, argued

that EPA should consolidate all

requirements applicable to batteries into

one set of regulations to reduce

confusion on the part of handlers as to

which requirements must be complied

with for proper management. Some

commenters stated that extending the

part 266 exemption to all batteries

would be the most appropriate, while

others express a desire for all batteries

to be incorporated into part 273. Others

recommended a combination of the two

by incorporating the part 266 exemption

into the part 273 regulations.

The Agency believes that retaining the

exemption under part 266, subpart G

will not make the management of

hazardous waste batteries overly

confusing or complex. The part 266,

subpart G exemption is primarily used

for the reclamation of automotive leadacid batteries, which are easily

identifiable. As such, the Agency

believes separate management of this

waste stream is simple to accomplish

and therefore does not place a burden

on handlers managing these batteries.

It was noted by one commenter that

automotive batteries of various

formulations are currently under

development for use in electric vehicles,

and thus, in the future, the chemistry of

automotive batteries (eg., lead-acid

versus other formulations) may not be as

easily identifiable as it is at this time.

The Agency would like to clarify that

under the hazardous waste regulations

as revised by today’s addition of part

273, if the handler believes a battery is

a hazardous waste but is not clear

whether the battery is lead-acid or

another chemical formulation, the

battery should be managed under part

273 regulations. The Agency believes,

however, that the final part 273

requirements are simple and

straightforward enough that

management of any mixed battery types,

including electric vehicle batteries, will

not be overly burdensome.

Another commenter expressed

concern regarding the management of

small (non-automotive) lead-acid

batteries. The Agency expects that

small, sealed dry cell lead-acid batteries

will likely be handled under the part

273 regulations along with other

hazardous waste batteries, therefore

eliminating the need for the handler to

separate these batteries from other

hazardous waste batteries. Managing

small sealed lead-acid batteries together

with other hazardous waste batteries

under part 273 is acceptable under the

final rule.

IV.B.2.c. Hazardous Waste Pesticides

Among the wastes proposed to be

included in the universal waste

regulations was a narrowly limited set

of hazardous waste pesticides.

Specifically, the proposed rule

established streamlined requirements

for the collection of unused pesticides

that are suspended or canceled under

section 6 of the Federal Insecticide,

Fungicide, and Rodenticide Act (FIFRA)

and recalled, and that are collected for

discard. FIFRA regulates pesticides from

initial distribution by producers to

ultimate disposal. As proposed, to meet

the applicability criteria of part 273, the

pesticides were required to be: (a) Part

of a voluntary or mandatory recall under

FIFRA section 19(b); or (b) owned by a

registrant responsible for conducting a

recall under FIFRA section 19(b); or (c)

part of a registrant-conducted recall of a

canceled or suspended pesticide under

FIFRA section 6. A number of changes

have been made to the universe of

pesticides covered in the universal

waste rule and in the corresponding

regulatory text, which was proposed to

delineate which pesticides were or were

not subject to the requirements of part

273.

First, in the final rule, the Agency has

expanded and organized the

applicability section for pesticides into

four subsections, as follows: (1)

Pesticides covered under part 273; (2)

pesticides not covered under part 273;

(3) generation of hazardous waste

pesticides; and (4) pesticides that are

not wastes. The Agency decided to

restructure the pesticides applicability

section in this way because several

commenters stated that it was difficult

to determine which pesticides were

covered or which pesticides were not

covered under the proposed rule. For

example, the proposal § 273.20(a)

included §§ 273.20(a) (2) and (3) which

both described hazardous waste

pesticides not covered under part 273.

Similarly, § 273.21(a) included

§ 273.21(a)(2) which described recalled

pesticides that never become hazardous

wastes and thus are never generated.

The Agency agrees that these and other

sections could confuse readers

attempting to determine whether their

pesticides were covered under part 273.

The Agency believes that the

restructured applicability section for

pesticides, 40 CFR 273.3, will be much

more clear and less cumbersome in that

all of the provisions addressing which

pesticides are covered are now located

in one section and the section is clearly

organized to assist readers in making

this determination.

Second, the universe of pesticides

included under the final universal waste

regulations has been expanded. This

expansion is codified in § 273.3(a),

which describes the types of hazardous

waste pesticides that are considered

universal wastes and may be managed

under part 273. The first paragraph of

this § 273.3(a)(1) rewords, but

essentially retains, the proposed
25506 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

regulatory text from § 273.20(a)(1) that

described the recalled pesticides that

are subject to FIFRA recall procedures

and were proposed to be managed as

universal wastes. The second paragraph

of this § 273.3(a)(2), has been added to

the final rule and describes the universe

of pesticides that has been added to the

universal waste regulations in addition

to the recalled pesticides described

above. Specifically, the Agency has

broadened this section to include

unused pesticide products that are

collected and managed as part of a

waste pesticide collection program.

These unused pesticide products are

generally materials that are no longer

useful for their intended purpose.

Frequently, they are agricultural

pesticides that have been banned for use

on crops or are obsolete and have been

replaced by newer products. They may

also be pesticides that have become

damaged (e.g., exposed to temperature

extremes) or that are no longer needed

due to factors such as changes in

cropping patterns.

Ultimately, farmers nationwide have

accumulated these materials in their

sheds or barns for many years. To

encourage the removal of unused

pesticide products from long term

accumulation on the farm, a number of

state agricultural departments have

implemented programs to collect and

properly dispose of these materials. By

including unused pesticide products

under part 273, farmers will be able to

ship their universal waste pesticides to

the collection programs without needing

to meet the full requirements under 40

CFR parts 260 through 272.

Several factors prompted the Agency

to include unused pesticide products

that are collected and managed as part

of waste pesticide collection programs

into the part 273 universal waste

management standards. One factor for

including unused pesticide products

was that unused pesticide products are

generated by a wide variety of

generators and are present in large

amounts in the agricultural community.

Another factor was that potential risks

posed by the presence of unused

pesticide products during accumulation

and transport are similar to the risks

posed by recalled pesticides during

accumulation and transport. Finally, the

inclusion of unused pesticides under

part 273 will greatly facilitate

participation and implementation of

state programs that are currently

collecting the unused pesticide products

found on farms.

Most of the commenters addressing

pesticide related portions of the

proposed rule supported including such

unused pesticide products in the final

rule. These commenters specifically

argued that unused pesticides posed

risks similar to risks posed by pesticides

already included under the proposed

regulations. Some commenters, argued

that if the proposed pesticide

regulations for recalled pesticides could

be expanded to include stocks of

unused pesticide products, state

approved programs currently collecting

unused pesticide products could greatly

improve participation by farmers. These

commenters indicated that certain

current requirements under 40 CFR

parts 260 through 272 had deterred

many farmers from participating in, and

benefitting from, waste pesticide

collection programs, and that

streamlined requirements under part

273 would remove many such barriers

to participation.

Third, the Agency has developed a

subsection under the final rule which

describes the types of pesticides that are

not covered under part 273. Paragraph

273.3(b)(1) reiterates that qualifying

hazardous waste pesticides can be

regulated in compliance either with 40

CFR parts 260 through 272 or with part

273. For example, farmers managing

hazardous waste pesticides in

compliance with 40 CFR 262.70 are not

subject to the regulations of part 273.

Under § 273.3(b)(2) of the final rule,

hazardous waste pesticides that do not

meet the conditions described in

§ 273.3(a) are required to comply with

the full hazardous waste regulations in

40 CFR part 260 through 272. This

provision has been retained from

§ 273.20(a)(2) of the proposed rule.

Similarly, §§ 273.3(b) (3) and (4), which

describe recalled pesticides that are not

yet solid wastes and therefore are not

subject to the hazardous waste

regulations including part 273, have

also been retained from the proposed

regulatory text from § 273.21(a)(2).

Again, the Agency recodified these

paragraphs in one subsection of the final

rule to make it clearer to the reader

which types of hazardous wastes are not

covered under part 273 standards of the

final rule.

The text in the applicability section

for universal waste pesticides was

complex in the proposed rule. Part

273.21(a) (‘‘Generation of Hazardous

Waste Pesticides), the Agency proposed

criteria to establish the date at which

waste pesticides are generated, but also

included criteria to distinguish when

pesticides are or are not solid wastes

and, therefore, not subject to the

hazardous waste regulations. To clarify

the applicability section of the final

rule, the final rule text separates these

criteria into two separate paragraphs

(§§ 273.3 (c) and (d)), as described

below.

Section 273.3(c) will help readers

determine the date at which a recalled

or unused pesticide becomes a waste.

Understanding this factor is important

since a pesticide that has not become a

waste also has not become a hazardous

waste and is not covered under part 273

(see also preamble discussion on

§§ 273.3 (b) and (d)). The text in

§ 273.3(c)(1) simplifies but retains the

meaning of text in § 273.21(a)(1) of the

proposed rule. Section 273.3(c)(1) states

that a recalled pesticide becomes a

waste on the first date on which two

conditions occur. These conditions are:

(1) The generator of the recalled

pesticide agrees to participate in the

recall; and, (2) the person conducting

the recall decides to discard the

pesticide or burn the pesticide for

energy recovery. For example, if a

farmer decides to participate in a recall

and sends the recalled pesticide back to

the registrant for reclamation and

reformulation, the pesticide would be

considered an unused commercial

chemical product being reclaimed and

therefore would not be a solid waste (or

hazardous waste) under RCRA section

261.1. A recalled pesticide sent by a

recall participant to the recall facility

does not become a waste until the

registrant makes a decision to discard

the pesticide (e.g., burn for energy

recovery). Once a decision to discard

the pesticide or burn the pesticide for

energy recovery is made, both

conditions of § 273.3(c)(1) have been

met and the registrant becomes the

generator of the universal waste. Section

273.3(c)(2), describing when an unused

pesticide products becomes a waste, has

been added to the final rule to

accommodate the changes mentioned

above to the proposed regulatory text

from § 273.20(a).

Section 273.3(d)(1) of the final rule

further explains the decision-making

role played by the person conducting

the recall of a pesticide in determining

whether the pesticide becomes a waste.

The regulatory language established in

the final rule is retained from

§ 273.21(a)(2) in the proposed rule. The

final rule also adds § 273.3(d)(2)

describing the generator’s role in

determining whether a pesticide is a

waste. This addition accommodates the

expansion of the applicability section at

§ 273.3(a)(2), mentioned earlier. This

decision-making process remains as

proposed and is specific to pesticides

involved in a recall. Recalled pesticides

are covered by procedures under FIFRA

section 19(b) and 6(g). Other situations

are covered generally under § 261.2.
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25507

IV.B.2.d. Hazardous Waste Thermostats

In the proposed rule, the Agency

requested comment on whether used

mercury-containing thermostats should

be added to the universal waste

regulations. The Agency specifically

requested comment on whether used

mercury-containing thermostats fit the

factors proposed to be used to evaluate

whether new candidate wastes are

suitable for inclusion under part 273. In

addition, the Agency asked for comment

on whether the universal waste

requirements proposed for universal

waste batteries would be appropriate for

managing used mercury-containing

thermostats.

Commenters overwhelmingly

supported adding mercury-containing

thermostats to the universal waste

regulations. Commenters agreed that

mercury-containing thermostats are an

appropriate waste type to manage under

the universal waste system and that they

meet the criteria proposed for adding

wastes to the part 273 regulations.

Commenters argued that thermostats are

generated in a wide variety of settings

by a large number of generators, since

they can be generated at almost any

building, including commercial,

industrial, agricultural, community, and

household buildings. Commenters

asserted that thermostats are likely to be

managed in the municipal waste stream

because they are small, generated

infrequently, and usually generated by

persons not familiar with the hazardous

waste regulations or hazardous waste

management systems.

Several commenters described a

‘‘reverse distribution’’ or ‘‘take back’’

system that is under development by

one thermostat manufacturer. A trade

association representing manufacturers

of thermostats indicated that all of the

members intend to participate in this

collection system, thus making the

system industry-wide and allowing

collection of virtually all brands of

thermostats used in the United States.

The ‘‘take back’’ system will be used to

collect used mercury-containing

thermostats to recover the mercury and

reuse it in the production of new

thermostats. The manufacturer

implementing the ‘‘take back’’ system

has developed packaging, marking, and

labeling procedures that will be

required for participation in the

program that will ensure that the waste

mercury thermostats are appropriately

handled. The information provided

indicated that the nation-wide waste

mercury thermostat collection and

recycling program would greatly reduce

the amount of mercury that is now being

managed in the municipal waste stream

across the United States.

Commenters further argued that

mercury-containing thermostats present

relatively low risk during accumulation

and transport because they are designed

to protect the ampules that contain

mercury from breakage. One commenter

explained that ampules are attached to

a bi-metal strip designed to absorb

shocks. The commenter further

explained that ampules are also

enclosed within plastic or metal outer

casings that protect them further from

breakage. This commenter described

experience with warrantee take back

programs and indicated that less than

.01% of new mercury thermostats

returned to them are returned due to

breakage of the ampules. Commenters

also stated that during accumulation,

waste mercury thermostats are not

subject to deterioration, therefore, the

risk of mercury release will not increase

as accumulation time increases. The

packaging, marking, and labeling

procedures that will be part of the

industry ‘‘take back’’ program provide

further evidence that the risks during

accumulation and transport will be low.

The Agency agrees with commenters

that used mercury-containing

thermostats meet the proposed (and

final) factors for adding new wastes to

the universal waste regulations and that

these wastes are appropriate to be

managed under the universal waste

system. The Agency recognizes that due

to the administrative burden, costs, and

stigma associated with managing these

wastes under the full hazardous waste

regulations, it is not likely that a ‘‘take

back’’ system such as that described by

commenters will be implemented if

compliance with the full hazardous

waste regulations is required of

participants. Thus, the Agency has

included mercury-containing

thermostats in the final universal waste

regulations promulgated today. It

should be noted that universal wastes,

including mercury-containing

thermostats, are exempt from regulation

under both the 40 CFR 262–270 and 40

CFR part 273 if they are household

waste (see 40 CFR 261.4(b)(1)), therefore

the possible burden of compliance with

the current Subtitle C regulations lies

with generators, transporters and storage

facilities currently regulated under 40

CFR parts 262–270.

One commenter suggested a

regulatory definition to identify what

wastes are covered under the universal

waste regulations. The Agency agrees

that a definition is necessary, and has

included the following definition in 40

CFR 273.6 of the final rule: ‘‘thermostat

means a temperature control device that

contains metallic mercury in an ampule

attached to a bimetal sensing element,

and mercury-containing ampules that

have been removed from these

temperature control devices in

compliance with the requirements of 40

CFR 273.13(c)(2) or 273.33(c)(2).’’ This

definition differs slightly from the

definition that was recommended by the

commenter. The commenter suggested

limiting the definition to wall-mounted

thermostats, rather than extending the

definition to all temperature control

devices that contain metallic mercury in

ampules. The commenter expressed

concern that difficulties may arise when

managing small wall-mounted

thermostats together with other mercury

thermostats. The Agency recognizes the

commenter’s concerns, but points out

that universal waste handlers are not

required to accept any type of universal

waste that they are not prepared to

manage. Thus, if a collection program is

designed only to handle a certain type

of thermostat, only that type of

thermostat should be accepted by the

operators of the program. The Agency

does not want to limit the possibility

that other collection programs may be

developed for other types of

thermostats, or that different types of

thermostats could be managed

separately (i.e., transport and

accumulate wall-mounted and other

thermostats separately). Thus, the

definition has not been limited to wallmounted thermostats.

In addition, the definition suggested

by the commenter has been expanded in

the final rule to include mercurycontaining ampules that have been

removed from thermostats. As is

discussed in section IV.E.3.c of this

preamble, requirements for managing

thermostats under the universal waste

rule have been drafted to allow removal

of ampules as long as certain conditions

are met. In order to allow management

of the ampules under the universal

waste system once they have been

removed from the thermostat casing, it

was necessary to include them in the

definition of thermostat. The definition

specifies that the ampules must be

removed following the universal waste

handler waste management conditions

set forth in § 273.13(c)(2) or

§273.33(c)(2).

Finally, with the exception of the

issue of ampule removal, commenters

overwhelmingly supported applying the

requirements proposed for universal

waste batteries to used mercurycontaining thermostats. Thus, in the

final rule, persons managing universal

waste thermostats are subject to the

same basic requirements as persons

managing other universal wastes:
25508 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

requirements for small and large

quantity handlers, transporters, and

destination facilities. Specific waste

management requirements have been

added to the small and large quantity

handler sections to address the

commenter’s concerns about ampule

removal. These requirements are

discussed in detail in section IV.E.3.c of

this preamble, entitled waste

management.

IV.B.2.e. Other Wastes Suggested by

Commenters

A number of commenters suggested

additional wastes that they believed

should be added to the universal waste

regulations. For example, wastes

suggested included electronic

components, photographic wastes,

aerosol cans, solvent contaminated rags

and wipers, treated wood, auto shredder

fluff, and a number of others. Several

wastes were suggested by numerous

commenters and merit further

discussion. These are spent lamps

(lighting waste), used mercury

containing equipment, and antifreeze.

Spent lamps are discussed in section

II.A, of this preamble, entitled mercurycontaining lamps. Used mercurycontaining equipment and spent

antifreeze are discussed in the following

sections of this preamble.

Although many of the wastes

suggested may be appropriate

candidates for the universal waste

system in the future, the Agency has

decided to include only three wastes in

this final rule: hazardous waste

batteries, thermostats, and certain

unused pesticides. This decision was

made because, first, with a few

exceptions discussed below,

commenters provided only very limited

information about the suggested

waste(s), current management of the

waste(s), and appropriate waste

management controls that could be used

to develop universal waste regulations

for the waste(s). Most commenters did

not evaluate how the suggested waste(s)

compared against the factors proposed

to add new wastes to the universal

waste regulations. For most suggested

wastes, the Agency did not feel that it

had sufficient information to consider

adding the waste to the universal waste

regulations at this time. Unlike unused

pesticide products and mercurycontaining thermostats on which we

have a body of information, adding

other suggested waste types would

require additional research to determine

appropriate waste management

practices and other issues related to

these wastes. Second, in this final rule

the factors used to evaluate candidate

wastes to determine whether they are

appropriate to be added to the universal

waste regulations have been revised

from those proposed.

Finally, the universal waste system is

a new program. The Agency believes it

is important to begin implementation

with a limited number of waste types,

and conduct at least an initial

assessment of how the program is

working before adding a great deal of

new wastes. Thus, due to resource

constraints, the Agency has decided to

add only the above-named wastes and

focus it’s efforts on promulgating the

basic structure of the regulations, while

initially including only a few wastes in

the program. If determined necessary,

revisions to the regulatory structure

could be made at the same time that

new wastes are added.

The fact that the Agency has decided

not to add a commenter’s suggested

waste to the universal waste regulations

at this time does not mean that the

Agency will not consider adding the

waste at some time in the future. In fact,

commenters are encouraged to assess

whether their suggested wastes fit the

final evaluation factors, and if so, to

submit a petition making that

demonstration and including suggested

waste management controls that could

be used to develop universal waste

regulations for the waste. Petitions

should follow the procedures set forth

in 40 CFR 260.20, 260.23, 273.80, and

273.81 as revised by this final rule.

IV.B.2.f. Used Mercury-Containing

Equipment

In addition to supporting the addition

of mercury-containing thermostats to

the universal waste regulations, a

number of commenters suggested

expanding the scope of this waste type

to be a category of wastes including

other mercury-containing equipment.

Commenters pointed out that

thermostats are a form of mercury

switch, and that there are many other

types of mercury switches that may

present issues similar to those for

thermostats. Other items commenters

identified as mercury-containing

equipment that should be included were

gauges, manometers, relays, and circuit

boards. Commenters also noted that

some of these items may contribute

substantial amounts of mercury to nonhazardous waste management systems.

Although the Agency believes that

adding a broader category of mercurycontaining equipment to the universal

waste rule may ultimately be the best

way to approach this issue, at this time

only mercury-containing thermostats

have been included in the final rule. In

addition to the reasons discussed above

for limiting this final rule to batteries,

pesticides, and thermostats, the Agency

does not believe that it has sufficient

information at this time to add the

broader category to the universal waste

regulations. Specifically, the universe of

wastes that would fit into such a

category is not clearly identified. The

Agency does not know exactly what

types of wastes would be included if it

were to add such a category. For

example, it is not known how much

mercury might be in such equipment. It

is possible that there are some pieces of

equipment that have very large amounts

of mercury that may be of more concern

for management under the universal

waste regulations than equipment with

small amounts of mercury. It is also not

known how various types of mercurycontaining equipment are constructed,

and thus it is not known whether the

mercury is sufficiently contained to

provide some assurance that the

mercury would not be released during

management under the universal waste

system. Similarly, it is not known what

type of waste management controls

would be appropriate to include in the

universal waste regulations for the

broader category.

The Agency would welcome a

petition to add some form of broad

category of mercury-containing

equipment to the universal waste rule.

In developing such a broad category, the

Agency would be particularly interested

in several issues. First, suggestions on

how to define the category to limit it to

wastes appropriate for the universal

waste system would be useful. Second,

the Agency would need a listing of the

types of equipment that would be

included in the category, and general

information about the amounts of

mercury contained in each and how the

equipment is constructed to protect the

mercury from release. Third, it would be

helpful to know whether there is some

mercury quantity limit that might be

used to ensure that the risks of

managing the wastes under the

universal waste rule are low (relative to

other hazardous wastes), while at the

same time including as many of these

wastes as is appropriate. Fourth, the

Agency would appreciate suggested

waste management requirements that,

taking into account the construction of

the mercury-containing equipment,

would minimize the risks of managing

these wastes under the universal waste

regulations. Finally, any available

information about systems that are used

or could be used to collect these wastes

would be useful (e.g., reverse

distribution systems).
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25509

IV.B.2.g. Spent Antifreeze

In the preamble to the universal waste

rule the Agency suggested that used

antifreeze might be a good candidate for

addition to the universal waste

regulations. Comment was requested on

whether spent antifreeze fit the factors

for addition to the universal waste rule,

and on what specific management

requirements would be appropriate if

spent antifreeze were added. Numerous

comments were received addressing this

issue, but commenters disagreed on

both whether used antifreeze should be

added to the universal waste system at

this time and on what requirements

would be appropriate.

A number of commenters argued that

spent antifreeze did fit the proposed

factors and should be added to the rule.

Several commenters addressed each of

the proposed factors in turn and

maintained that antifreeze fit them all.

A number of other commenters,

however, questioned how frequently

spent antifreeze actually fails the

toxicity test and is thus hazardous

waste. They noted that one of the factors

proposed to be used to evaluate new

wastes for addition to the universal

waste system was whether or how

frequently the waste was hazardous.

They argued that regulation under the

universal waste rule would imply a

presumption that used antifreeze is

hazardous, making management of that

portion of spent antifreeze that is not

hazardous more difficult. Several of

these commenters also predicted that

the lead levels in used vehicle antifreeze

will diminish over time as more and

more vehicles are produced with

cooling systems that have little or no

exposed lead solder. They thus believe

that less and less antifreeze will fail the

toxicity characteristic over time.

Commenters also recommended a

wide range of management requirements

for spent antifreeze if it were to be

added to the universal waste system.

Some commenters believed that the

requirements proposed for batteries and

pesticides were generally appropriate. A

number of commenters also maintained

that the antifreeze recycling pattern is

very different from the limited recycling

or treatment and disposal options

available for wastes such as batteries

and pesticides. They described

antifreeze recycling as requiring less

sophisticated technology and being

practiced at many dispersed locations

rather than a few centralized facilities.

They did not believe that the universal

waste regulatory structure was

appropriate to accommodate this type of

waste management pattern.

Several commenters argued that

because antifreeze is a high volume

liquid, the management requirements

should be somewhat different than

those included in the proposal. Some

commenters argued that requirements

for used antifreeze should be based on

the small quantity generator regulations.

Many others suggested requirements

similar to the used oil management

standards of 40 CFR part 279. Some

commenters suggested specific sets of

requirements that they believed were

appropriate for used antifreeze

management.

Spent antifreeze is not included in the

final universal waste rule. The Agency

made this decision for several reasons.

First, because the Agency did not

request specific comments on issues

related to spent antifreeze, the

comments received were not focussed

on any particular issues and provide

little clear direction for the Agency to

move forward with this issue at this

time. As suggested by several

commenters, the Agency does not

believe it would be wise to add spent

antifreeze to the universal waste

regulations without first proposing and

accepting comment on specific

management standards.

Second, commenters opinions on

whether spent antifreeze should be

added to the universal waste regulations

ranged so widely that it is clear that

more investigation into this issue is

necessary before promulgating final

regulations. Specifically, some

additional information on the frequency

with which used antifreeze exhibits the

toxicity characteristic may be available

and should be reviewed prior to making

a decision on how to address antifreeze.

In addition, the Agency should also

investigate further suggestions that

improved handling by generators (e.g.,

managing antifreeze only in dedicated

containers) could reduce the rate at

which antifreeze exhibits the toxicity

characteristic. Similarly, opinions on

appropriate management standards also

varied so greatly that the Agency

recognizes it would not be possible,

based on the information available at

this time, to develop management

requirements that adequately address

the issues raised by commenters.

Third, many commenters argued that

the question of how antifreeze recycling

is regulated is central to the

development of appropriate

management standards. As explained in

section II.B of this preamble, entitled

Redefinition of Solid Waste, the general

question of how recycling should be

regulated is being addressed in a larger

forum and is outside the scope of

today’s final rule. The Agency believes

that it may be necessary to proceed

somewhat further with this effort before

it will be possible to determine how best

to address the issue of antifreeze

management.

Finally, for this initial final rule, the

Agency decided to focus its efforts and

available resources on wastes for which

commenters demonstrated more

agreement about the major issues of

whether to include the waste and

appropriate management requirements.

Once the basic structure of the universal

waste system is in place, it may be more

clear whether and how more

controversial wastes such as antifreeze

may fit into the system. Thus, spent

antifreeze has not been included in this

final rule, but the Agency has not ruled

out adding it in the future if it seems

appropriate and if it appears possible to

develop requirements that would

improve management of used antifreeze.

IV.B.3. Conditionally Exempt Small

Quantity Generator Waste

In the proposed part 273 regulations,

the Agency proposed to retain the 261.5

CESQG conditional exemption from the

hazardous waste regulations for

universal wastes. Under this approach,

CESQGs would have the option of

managing universal wastes under either

part 273 or § 261.5. Thus, CESQGs

would not be required to manage their

universal waste under part 273.

However, the Agency requested

comment on whether this approach

should be retained, or whether CESQGs

should be required to manage their

universal wastes under part 273. In the

final rule, the Agency has decided to

retain the approach proposed and is

allowing CESQGs the option of handling

their universal wastes under part 273 or

under the CESQG exemption in § 261.5.

Most commenters responding to this

request for comment argued that

CESQGs should be allowed flexibility in

managing their universal wastes.

Commenters stated that CESQGs should

have the option of managing these

wastes as universal wastes under part

273 if they so choose, or to continue to

handle these wastes in compliance with

the requirements of the CESQG

exemption under § 261.5. Commenters

argued that this option would allow

each CESQG the flexibility to select the

disposal method that is least costly and

best meets the needs of its business.

They also argued that CESQGs often do

not have ready access to new

information and markets for their wastes

and therefore should not be required to

manage their universal wastes under

part 273 to the exclusion of other

existing waste management options.

Many commenters pointed out that as
25510 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

an infrastructure develops for the

universal waste collection systems,

CESQGs are likely to voluntarily

participate in such programs. Other

commenters stated that management

under part 273 should be mandatory in

order to reduce confusion related to

how these waste types should be

handled and to ensure protection of the

environment.

The Agency believes that allowing

individual CESQGs to choose the

regulatory option that best meets their

circumstances will aid in assuring

effective collection, management and

disposal of universal wastes. Requiring

compliance with part 273 would be an

added administrative and cost burden

for CESQGs, many of whom may be

small businesses and small

organizations. In addition, compliance

with some aspects of the program may

be difficult for these generators. The

Agency believes that as an infrastructure

develops for protectively handling these

wastes, CESQG waste is most likely to

be incorporated into the universal waste

system through voluntary efforts, state

or local programs, and the availability of

convenient collection systems rather

than through additional regulatory

requirements. Therefore, in the final

rule, the Agency has retained the

opportunity for CESQGS to manage

their wastes under either the CESQG

exemption or under part 273. The

option for CESQGs to send their

universal wastes to a universal waste

handler or destination facility has been

added to 40 CFR 261.5(f)(3)(vi) and

261.5(g)(3)(vi) as was proposed. As was

proposed at 40 CFR 273.10(b)(1)(ii) and

40 CFR 273.20(b)(1)(ii), 40 CFR

273.5(a)(2) has been added to the final

rule to clarify that CESQGs may, at their

option, manage their universal wastes

under part 273.

Further, the Agency is retaining the

intent of the proposed requirement that

if universal wastes from CESQGs are

commingled with universal wastes from

larger, regulated hazardous waste

generators, and the commingled waste is

a hazardous waste under 40 CFR 261.3

(i.e., is listed or exhibits a

characteristic), the commingled waste

must be managed under the part 273

requirements. As explained in the

proposal, this provision is included to

clarify this point for persons managing

universal waste, but is actually merely

a restatement of existing hazardous

waste requirements.

In the proposed universal waste rule,

the Agency also proposed not to require

hazardous waste generators to count

those universal wastes managed under

the part 273 requirements toward the

monthly quantity calculation used to

determine generator regulatory status

(i.e., CESQG, SQG, LQG). Today’s final

rule retains the approach as proposed.

Section 261.5 has been redrafted to

clarify this point.

One commenter was concerned that

this exclusion would cause more

hazardous waste to be sent to nonsubtitle C facilities because more

generators would be CESQGs if

universal wastes are not counted. The

remainder of the commenters agreed

with excluding universal wastes

managed under part 273 from the

generator’s calculation of monthly

generation rates to determine generator

status.

The Agency does not believe that

excluding universal wastes from the

generator’s calculation of monthly

generation rates will have a significant

impact on the amount of hazardous

waste sent to non-subtitle C facilities.

The volume of universal wastes

typically generated by any one generator

is not large. Thus, the Agency believes

that the number of generators that will

move from the regulated SQG category

to the conditionally exempt SQG

category will be small.

More importantly, the Agency

believes that on balance, encouraging

generators to manage their wastes under

part 273 by allowing generators not to

count those universal wastes managed

under part 273 will likely increase the

overall quantity of hazardous waste

recycled or disposed of at Subtitle C

facilities. Excluding universal

hazardous wastes that are managed

under part 273 from the generator’s

monthly quantity determination will

encourage generators to manage wastes

under the universal waste rule, and

therefore maximize the benefits to the

environment by redirecting these

hazardous wastes from non-hazardous

waste management to more protective

management. The Agency strongly

believes that the benefits of capturing

these universal wastes for safe handling

outweighs the potential risks of small

quantities. Therefore today’s final rule

retains this exclusion.

In addition, as other waste types are

considered for inclusion in part 273,

they will be evaluated according to the

criteria in § 273.81. Part 273.81(d) states

that ‘‘systems to be used for collecting

the waste (including packaging,

marking, and labeling practices) would

ensure close stewardship of the waste.’’

EPA believes that this criterion, the

other criteria included under

§ 273.81(a)–(h), and the petition and

rulemaking procedures for adding new

wastes to the universal waste system

will ensure that any wastes added in the

future will be managed in an

environmentally protective manner.

One commenter stated that it is not

clear that SQGs and LQGs should use

the same procedures for determining

generator status as that used by CESQGs

since the regulatory language explaining

the calculation is located in § 261.5,

which applies to CESQGs. Although the

language in § 261.5(c) makes it clear that

the counting procedures apply to all

generators (‘‘the quantity determination

of this part and parts 262 through 266,

268, and 270’’), the Agency agrees that

it might be easier for SQGs and LQGs to

find the counting procedures if they

were referenced in part 262. Thus, this

rule revises § 262.10 by adding a new

paragraph (b) to read ‘‘40 CFR 261.5 (c)

and (d) must be used to determine the

applicability of provisions of this part

that are dependent on calculations of

the quantity of hazardous waste

generated per month.’’

Finally, as proposed, the final rule

adds part 273 to the list of parts in

§ 262.11(d) where exclusions or

restrictions for hazardous waste

management are found. In addition, to

clarify that § 261.5 provides additional

exclusions as discussed above, the final

rule also adds part 261 to this list. Thus,

§ 262.11(d) now reads ‘‘If the waste is

determined to be hazardous, the

generator must refer to parts 261, 264,

265, 266, 269, and 273 of this chapter

for possible exclusions or restrictions

pertaining to management of the

specific waste.’’

IV.C. Adding Additional Wastes in the

Future

The proposed universal waste rule

included a process for adding additional

waste types to the universal waste

system in the future. The process

consisted of procedures for persons to

petition the Agency requesting the

addition of new waste types, procedures

for the Agency to use in responding to

petitions, and factors to be used to

evaluate whether a new waste type is

appropriate to be added to the system.

The final rule includes a similar

process, but based on the comments

addressing this issue some changes have

been made to both the procedures and

the factors. In addition, the Agency has

decided to allow states the flexibility to

add additional wastes to their state list

of universal wastes without requiring

the waste to be added at the federal

level. The following two sections

discuss changes made to the petition

procedures and the factors.
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25511

IV.C.1. Procedures for Adding New

Wastes

In the proposed universal waste rule,

EPA proposed that any person may

petition to have additional hazardous

wastes added to the part 273 universal

waste regulations. Proposed regulations

governing the petition process were

found in §§ 260.20, 260.34, and 273.2.

Detailed procedures for submitting and

reviewing petitions, however, are set

forth in existing 40 CFR 260.20 and

were only referenced in the proposed

regulatory text. These procedures are

the same procedures that are used for

submitting and reviewing all petitions

for regulatory amendments to the

hazardous waste regulations.

The proposed rule indicated that in

order for a petitioner to be successful, it

must be demonstrated that regulation

under the universal waste system is

appropriate and that the part 273

requirements will improve waste

management practices for the waste.

This demonstration was to be made by

submitting information to support the

factors listed in § 273.2 (a) and (b).

In today’s final rule, the procedures

for submitting petitions remain

substantially unchanged, although

several minor revisions have been made.

First, the requirements for petitions for

inclusion of other wastes under part 273

have been moved from § 273.2 in the

proposal to subpart G of part 273 in

today’s final rule. The Agency believes

that putting the petition requirements in

a separate subpart makes them easier to

locate, and thus makes the entire

regulation easier to follow. In addition,

the proposed § 260.34, entitled

‘‘Petitions to amend part 273 to include

additional hazardous wastes’’ has been

renumbered to be § 260.23 in the final

rule. This change has been made to keep

the sections of part 260 that discuss

regulatory amendments together.

Second, the petition procedures have

been revised to allow petitions to add

categories of waste as well as individual

wastes to the universal waste system.

This revision was made in response to

comments. It was suggested that the

term ‘‘waste’’ may be more limiting than

the Agency intended. Use of the term

‘‘waste category’’ will allow petitioners

to submit a group of wastes such as

‘‘hazardous waste batteries’’ instead of

petitioning for each type of hazardous

waste battery individually (hazardous

waste nickel-cadmium batteries,

hazardous waste lithium batteries, etc.).

One commenter also suggested that a

category of wastes such as unused

products in original packaging might be

appropriately managed under the

universal waste system. The Agency

agrees with these comments and has

incorporated this suggestion into the

final rule.

Third, to clarify the Agency’s goals for

the universal waste program (which the

petition factors are designed to address)

and to clarify the standard that will be

used to make decisions on petitions, the

final rule has been revised to read: ‘‘the

decision will be based on the weight of

evidence showing that regulation under

part 273 is appropriate for the waste or

category of waste, will improve

management practices for the waste or

category of waste, and will improve

implementation of the hazardous waste

program.’’ This language merely reflects

more closely the goals discussed in the

proposal for the universal waste system

than did the language in the proposed

rule.

Fourth, many commenters expressed

concern that petitions seeking a

regulatory amendment to add new

hazardous wastes to part 273 must

contain quantitative information on

each of the factors outlined in the

proposed rule under § 273.2 (found in

§ 273.81 in the final rule). Commenters

believed that the proposed rule was not

clear on whether or not information

must be submitted to address every one

of the factors or only some of the factors.

The Agency agrees that the proposal

was confusing on this point. As

suggested by several commenters, the

Agency also agrees that it may not be

possible or appropriate to address each

of the factors for any particular waste or

waste category. Thus, the petition

process regulations (found in both

§§ 273.80 and 260.23 of the final rule)

have been revised to clarify that: (1) A

petition should address as many of the

factors as are appropriate for the waste

or waste category addressed in the

petition; and (2) the decision to grant or

deny a petition will be based on the

weight of evidence showing that

regulation under part 273 is appropriate

for the waste or category of waste, will

improve management practices for the

waste or category of waste, and will

improve implementation of the

hazardous waste program.

Thus, the Agency clarifies in the final

rule that an individual waste would not

be disqualified from inclusion under

part 273 merely because every factor

was not addressed. Rather, the Agency

will consider the overall weight of the

evidence demonstrating that the goals of

the universal waste system would be

met by adding the particular waste or

waste category to the universal waste

system. Thus, a waste that several of the

factors demonstrate very strongly would

accomplish the Agency’s goals may be

more likely to be added to the universal

waste system than a waste that all of the

factors weakly support.

In addition to concern about the

number of factors that must be

addressed, commenters also expressed

concern that the proposal was vague

with regard to the quality and quantity

of data that must be submitted regarding

each of the factors. In response, the

Agency reiterates that decisions will be

made based on the weight of the

evidence demonstrating, using the listed

factors, that the Agency’s goals for the

universal waste system will be met.

Thus, the quantity of data submitted is

not as critical as how strongly the data

supports these goals. Of course, the

more complete the data are, the more

likely it is that they will demonstrate

that the Agency’s goals would be met.

The Agency also notes that although

quantitative data are desirable, due to

the nature of the wastes likely to be

appropriate for the universal waste

system the Agency recognizes that

direct quantitative data about these

wastes and their management may not

be available. Thus, quantitative data are

not necessarily required for a successful

petition. Any information that can be

extrapolated from available related

quantitative data is recommended, as

would be any estimates that can be

developed based on available qualitative

information. In addition, as discussed in

the proposal, the Agency will take into

consideration the quality and

completeness of the data submitted by

the petitioner as a way to set priorities

among the many various waste streams

that may be suggested for this program.

If a petitioner’s request is complete and

supporting data are adequate, EPA is

likely to evaluate the request and

determine whether to propose a

regulatory amendment sooner than if a

request has only minimal information.

Fifth, commenters expressed

confusion concerning the process for

submitting a petition. In § 273.80 of

today’s final rule, the Agency more fully

details the process for submitting a

petition. The substance of the

requirements have not changed. Section

273.80(b) reiterates that the petitioner

must follow the requirements in

§ 260.20(b) (Subpart C—Rulemaking

Petitions), which sets forth general

requirements which apply to all such

rulemaking petitions. As proposed, the

regulatory language in § 260.20(a) also

has been amended to add reference to

the part 273 requirements. As discussed

above, § 273.80(b) also specifies that the

petition should address as many of the

factors listed in § 273.81 as are

appropriate for the waste or waste

category addressed in the petition. It

should also be noted that the procedures
25512 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

for submitting petitions and for the

Agency’s review of and response to

petitions for regulatory amendments are

described in detail in § 260.20.

In response to some confusion

expressed by commenters, § 273.80(c)

clarifies that the Administrator will

evaluate petitions using the factors

listed in 40 CFR 273.81 and that the

Administrator will grant or deny a

petition using these same factors. This

clarification reiterates the procedures

proposed in § 260.34 of the proposal

and included in § 260.23 of the final

rule. As discussed above, § 273.80(c)

also explains that the Administrator’s

decision will be based on the weight of

evidence showing that regulation under

part 273 is appropriate for the waste or

category of waste, will improve

management practices for the waste or

category of waste, and will improve

implementation of the hazardous waste

program.

Sixth, petitioners expressed concern

about the length of time it may take for

the Agency to evaluate petitions. Many

commenters suggested that a time limit

be set for such evaluations and that, in

addition, petitions be released for public

comment. While the Agency agrees that

it is important for petitions to be

considered in a timely manner, the

Agency has decided to continue to

follow the general procedures for

responding to petitions for regulatory

amendments set forth in § 260.20 of the

hazardous waste regulations. As with all

petitions submitted under § 260.20, a

specific time limit is not defined for the

review process. Although the Agency

expects to review and respond to

petitions within a reasonable timeframe,

due to competing priorities and other

statutory and court ordered mandates

the Agency is not able to commit to a

definitive review schedule. Committing

to such a schedule would also not be

possible because the Agency has no

previous experience with this program

and is not able to predict the number

and depth of petitions that may be

submitted, and thus the workload that

will be required to respond to them.

With respect to public comment on

the Agency’s response to petitions and

on proposals to add new wastes to the

universal wastes system, § 260.20

specifies that the Agency will make a

tentative decision to grant or deny a

petition and publish that determination

in the Federal Register for written

public comment. Any persons who have

additional information relevant to a

particular petition would be able to

submit the information for the Agency’s

review. The Agency may also hold an

informal public hearing to consider oral

comments on the tentative decision.

For any waste or waste category that

the Agency tentatively decides to add to

the universal waste system, the Agency

will propose regulatory requirements

that would apply to management of the

waste under the universal waste system.

Comments would be solicited on the

tentative decision to add the waste or

waste category, and on the

appropriateness and practicality of the

requirements. After reviewing and

responding to any comments submitted,

the Agency would publish a final rule

amending the universal waste

regulations to include the new waste

unless the tentative decision was

reversed (in which case a denial would

be published). For any waste or waste

category the Agency tentatively decides

not to add to the universal waste

system, the Agency would publish a

tentative decision to deny the petition

and request comment. A public hearing

may be held. After reviewing and

responding to comments, the Agency

would publish a final denial, unless the

tentative decision was reversed (in

which case a subsequent proposal to

add the new waste would be required).

Finally, as is discussed in detail in

Section V of this preamble, entitled

‘‘State Authority,’’ it should be noted

that States may apply for and be granted

authorization to implement any part of

today’s amendments to the hazardous

waste regulations. This includes the

petition process for inclusion of

additional wastes in the universal waste

program. Thus, in States authorized for

the universal waste regulations and the

petition process, petitions may be

submitted to the State agency to regulate

management of a waste or waste

category under the universal waste

regulations within that State. The State

agency would then grant or deny

petitions, using the criteria established

for evaluating wastestreams for

inclusion in the program. If a petition is

granted, the waste would be managed

under the streamlined universal waste

requirements within that state.

However, the full hazardous waste

regulations would apply once the waste

is transported out of the state in which

it is considered universal waste into

other states that have not included the

waste in their universal waste programs

(or states that are not authorized for or

do not have universal waste programs).

Thus, manifests and hazardous waste

transporters would be required for the

shipment out of the state, and all

subsequent management must be at

RCRA treatment, storage, and disposal

facilities.

IV.C.2. Factors for Evaluating New

Wastes

The proposed universal waste rule

included two sets of factors to be used

to evaluate whether candidate wastes

are appropriate to be added to the part

273 universal waste regulatory system.

The first set of factors was designed to

determine whether the waste presents a

problem to human health and the

environment due to its presence in the

municipal waste stream or due to other,

widespread management practices. The

second set of factors was designed to

determine whether the universal waste

system would satisfactorily address the

problem presented by the hazardous

waste.

In response to a number of issues

raised by commenters concerning the

proposed factors, the Agency has

substantially revised the factors for the

final rule. Major issues raised by

commenters and the changes made to

the factors are discussed below.

First, in the final rule, the two sets of

proposed factors have been consolidated

into one set of factors. This change was

made in response to several comments

pointing out that having two separate

sets of factors was potentially confusing,

particularly because the content of the

two sets seemed to overlap. The Agency

agrees with these commenters, and

believes that having only one set of

factors will eliminate possible

confusion, making it easier for the

regulated community and regulating

agencies to implement the evaluation

factors. In addition, as discussed further

below, the Agency has revised the

factors to focus more on a positive

showing that regulation under the

universal waste system would improve

waste management practices rather than

a negative showing that a waste is being

managed improperly. Combining the

two sets of factors assists with this

change of focus.

Second, the Agency has added text to

the general introduction to the final

petition factors (40 CFR 273.80) and

revised 40 CFR 260.34(b) to clarify that

not all of the factors must be either

addressed or demonstrated in a petition

in order for an individual waste to be

added to part 273. The text clarifies that

the Agency will consider the overall

weight of evidence presented in

determining whether regulation under

the universal waste system is

appropriate for the waste, and whether

the part 273 regulations will further the

Agency’s goals of improving

management practices for the waste and

improving implementation of the

hazardous waste program.
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25513

This change was made in response to

several commenters who indicated that

there was some confusion regarding

whether all factors must be addressed

for inclusion under part 273. In

addition, the text of proposed 40 CFR

260.34, which indicated that all factors

must be addressed, contradicted the

preamble which suggested that not all

factors must be addressed. The Agency

chose this approach because it does not

believe that each and every factor must

be met in order for a waste to be

appropriate for the universal waste

system, and for regulation of the waste

under part 273 to improve waste

management and implementation. Thus,

the Agency will make decisions based

on the weight of evidence showing that

regulation of a particular waste under

part 273 will further the Agency’s goals

for the program. It seems likely,

however, that the more factors a petition

addresses the more likely it is that there

will be a substantial amount of

supporting evidence.

The Agency notes, however, that

resources for making changes to the

hazardous waste regulations are limited,

and that these resources must be

focused on areas where the most

improvement can be made. In fact, the

Agency does not expect to have the

resources to add great numbers of

wastes to the universal waste system.

Therefore, the Agency will prioritize

addition of new wastes to the universal

waste system based on the strength of

the case made that addition of a

particular waste will further the goals

discussed above. For example, as

suggested by one commenter, the

Agency would give priority to a waste

that is generated in higher volumes

nationally, that a greater percentage of

the waste is hazardous, or that are

generated by a larger number of

generators. Priority would be given

because addition of such a waste to the

universal waste system is likely to

improve overall waste management and

implementation more than addition of a

waste that does not meet these factors.

In addition to adding to the strength of

such a case, the completeness and

quality of supporting data submitted by

a petitioner may also affect the Agency’s

prioritization in that the Agency may

not itself be able to expend a great deal

of resources gathering additional data.

Third, the Agency notes that the final

rule has been revised to allow petitions

to add, and the addition of, categories of

waste to the universal waste system as

well as individual waste types (see 40

CFR 273.80, 273.81, 260.20, and

260.23). This change was made at the

suggestion of one commenter who

pointed out that there may be broad

categories of waste that could fit well

into the universal waste system but that

are identified by characteristics other

than a single waste classification. For

example, wastes that remain in their

original product packaging (e.g., unused

products) are easily identifiable, and

presumably the packaging provides

protection since it was designed to

protect the product during storage and

transportation. The Agency agrees with

the commenter that some categories of

waste may be appropriate for addition to

the universal waste system and thus has

made this change. It should be noted

that a petition to add any category of

waste would have to make the same

demonstration for the category that a

petition would have to make for an

individual waste type.

The following sections discuss each of

the factors included in the final rule and

any changes made from the proposal.

The final section discusses proposed

factors that are not included in the final

rule.

IV.C.2.a. Final Factor 40 CFR 273.81(a)

The Agency has revised proposed

§ 273.2(a)(1), which addressed the idea

that a waste should either be a listed

hazardous waste, or that a proportion of

the waste should exhibit one or more

characteristics of hazardous waste in

order to be considered for addition to

the universal waste system. In the final

rule, this factor, which is now

§ 273.81(a), has been revised by adding

a parenthetical statement discussing

wastes that are hazardous due only to

exhibiting characteristics. Numerous

commenters expressed concern that the

Agency would be adding wastes to the

universal waste system that are not

already hazardous. The Agency is

clarifying, and would like to emphasize,

that only wastes that are hazardous (i.e.,

are listed or exhibit one or more

characteristics of hazardous waste) are

subject to the universal waste

regulations. This is because the

universal waste regulations are part of

the RCRA hazardous waste regulations,

under which only wastes that are

hazardous are regulated. This has been

further clarified by adding a definition

of the term ‘‘universal waste’’ (see 40

CFR 273.6 and 260.10), specifically

identifying only hazardous wastes as

universal wastes (e.g., hazardous waste

batteries).

The Agency understands that this

may be confusing in cases where a

waste added to the universal waste

system is identified using a generic

name (e.g., battery, thermostat), but only

a portion of the waste stream actually

exhibits a characteristic and is thus

hazardous. For example, some battery

types exhibit one or more characteristics

and are hazardous, while others may

not. The Agency has used the generic

term hazardous waste battery in the

universal waste regulation for several

reasons. One reason is that, when

appropriate, the Agency wishes to

encourage persons to manage both

regulated waste and unregulated waste

in the same collection systems, to

eliminate duplication of collection

systems, and to eliminate excess effort

identifying, documenting, and keeping

separate regulated waste and

unregulated waste. As long as all

commingled waste is managed in a

system that meets the requirements of

the universal waste regulations, such

efforts are not necessary.

Another reason for using a generic

term is to make the system flexible, so

that the regulation does not have to be

revised every time a waste (such as a

particular battery type) either becomes

hazardous or is no longer hazardous due

to changes in manufacturing practices or

technology. A final reason is that the

Agency will likely not be able to make

across the board hazardous waste

determinations for entire categories of

waste and must leave that responsibility

to individual waste generators. For

example, as the chemistry in a type of

battery changes over time and varies

from manufacturer to manufacturer,

some older batteries may exhibit

characteristics while some newer

batteries do not. Given such a situation,

it would not be possible for the Agency

to identify individually which batteries

are hazardous and which are not. Thus,

the Agency stresses that although

generic terms may be used in some

cases, the term will be modified with

the phrase ‘‘hazardous waste’’ and only

those wastes that are hazardous (are

listed or exhibit characteristics) are

subject to hazardous waste regulation,

including the universal waste rule.

IV.C.2.b. Final Factor 40 CFR 273.81(b)

To retain and expand on the concept

included in proposed § 273.2(a)(2) and

discussed in the proposal preamble that

universal wastes are typically generated

by a wide variety of types of generators,

the Agency has added another factor to

the final rule. Final § 273.81(b) indicates

that wastes that are good candidates for

the universal waste system would not be

exclusive to a specific industry or group

of industries, and would commonly be

generated by a wide variety of types of

establishments (including, for example,

households, retail and commercial

businesses, service businesses, office

complexes, conditionally exempt small

quantity generators, small businesses,

government organizations, as well as
25514 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

large industrial facilities). This factor is

also similar to one proposed by a

commenter who suggested that positive

demonstrations, such as this one,

should be utilized in place of negative

showings that wastes are a ‘‘problem’’ or

pose risks because such negative factors

will inhibit persons from petitioning to

add their wastes or products. This factor

will assist petitioners and the Agency in

determining whether a waste is

appropriate to be added to the universal

waste system.

This new factor also addresses an

issue raised by several commenters;

whether industrial wastes could be

added to the universal waste system. As

was discussed in the preamble to the

proposal, the Agency does not believe

that wastes that are generated primarily

in an industrial setting are appropriate

for the universal waste system. In this

context, the term industrial setting,

however, is used to describe locations

where large production-type operations

are conducted and where large

quantities of waste are generated. The

Agency believes that wastes that are

primarily generated in such settings can

be managed under the current

hazardous waste regulations because

such facilities are usually set up to

comply with the applicable

requirements. The new factor makes it

clear that wastes appropriate for

addition to the universal waste system

should be generated by a wide variety

of types of establishments, which could

include, but should not be exclusively,

large industrial operations. One of the

problems the universal waste rule is

designed to address is that a relatively

large portion of some waste types are

exempt from the hazardous waste

regulations (i.e., are generated by

households and CESQGs) and are

indistinguishable from the regulated

portion of the waste. This ‘‘look alike’’

problem makes implementation of the

program for these wastes extremely

difficult. For example, batteries are

probably the classic example of a waste

type that is generated by all types of

establishments, including large

industrial operations. The Agency

points out that some wastes commenters

described as ‘‘industrial’’ might be

appropriate for the universal waste

system as indicated by the new factor.

For example, a large percentage of

antifreeze is generated by do-ityourselfer households, while other

portions are generated by CESQGs,

small businesses, service businesses,

government organizations, as well as

large industrial facilities. The Agency

envisions that most wastes that meet the

new factor would be post-user wastes

rather than residues from production or

other industrial operations.

IV.C.2.c. Final Factor 40 CFR 273.81(c)

The Agency has essentially retained

the proposed factor, § 273.2(a)(3), which

addressed the number of generators of a

candidate waste, as final factor

273.81(c). This factor will assist in

identifying wastes that are appropriate

for addition to the universal waste

system. The text of the factor has been

revised to indicate that universal wastes

should be generated by a large number

of generators, but that the number 1,000

is an example rather than a hard and

fast number. In fact, the Agency believes

that in general universal wastes should

be generated by many more than 1,000

generators. The goal of the universal

waste program is to capture wastes that

due to their widespread nature are

difficult to manage under the current

hazardous waste regulations. The

Agency believes that a waste must be

generated by a large number of

generators in order for regulation under

the universal waste system to contribute

largely to improving management

practices and to improving

implementation of the hazardous waste

program. Because of this, the Agency

does not anticipate adding wastes to the

universal waste system that are

generated by a small number of

generators (e.g., less than 1,000) in large

volumes, as was suggested by one

commenter.

In fact, to further assist in identifying

wastes that are appropriate for the

universal waste system, the Agency has

added a qualifier to the final factor

clarifying that wastes that are

appropriate to be added to the universal

waste system are frequently generated in

relatively small quantities by each

generator. This concept comes from

proposed § 273.2(a)(4)(iv), which was

generally interpreted by commenters to

mean that only wastes generated by

small quantity hazardous waste

generators would be considered for

addition to the universal waste system.

The revised § 273.81(c) should clarify

that the Agency would consider wastes

that are generated in relatively small

quantities by each generator, regardless

of the total quantity of all hazardous

wastes generated by the generator. For

example, even a very large industrial

generator of large volumes of hazardous

waste may generate relatively small

quantities of batteries. It should be

clarified that this factor is intended only

as a gross indicator of quantities

generated. Specifically, the term

‘‘relatively’’ is used to contrast small

quantities of universal wastes with the

quantities in which large volume

industrial hazardous wastes can

sometimes be generated, e.g., tens of

thousands of pounds or gallons per

month.

The Agency also confirms, as was

suggested by one commenter, that the

factor concerning number of generators

could be applied prospectively in cases

where newly developed products are

likely to be appropriate for the universal

waste system. Thus, if a newly

developed product (or redesigned

product) can be shown to be likely to be

produced and disposed of in such a way

as to be appropriate for the universal

waste system, a petition could be

submitted even before there are actually

a large number of generators of the

waste.

IV.C.2.d. Final Factor 40 CFR 273.81(d)

The final rule retains as § 273.81(d)

the factor proposed as § 273.2(b)(2)

which indicates that collection systems

that ensure close stewardship would

make a waste a more likely candidate

for addition to the universal waste

system. All of the comments addressing

this factor were positive. The Agency

emphasizes, however, that this factor is

not intended to be biased toward

collection systems run by product

manufacturers. Although manufacturers

may have easy access to information

about products that may assist them in

developing collection programs, the goal

of this factor is to facilitate addition of

wastes to the universal waste system

that are most likely to be collected, and

to be collected in a manner that ensures

good management of the waste. Thus,

any collection system that would ensure

good stewardship would be a favorable

factor, regardless of what organizations

run the program. The Agency also notes

that the economics of collecting and

recycling or disposing of a waste can

provide some insight into the

stewardship that may be provided a

waste. For example, if a waste can be

recycled at profit, it may be more likely

that collectors will maintain close

stewardship of the waste.

IV.C.2.e. Final Factor 40 CFR 273.81(e)

Proposed factor 273.2(b)(1), which

addressed the risk posed by the waste

during accumulation and transport, has

been retained largely as it was proposed.

The final factor, § 273.81(e), has been

revised to clarify that good candidate

wastes for the universal waste system

would pose relatively low risks

compared to other hazardous wastes

during accumulation and transport. This

revision should clarify that, although it

is possible that a candidate universal

waste may pose more risk than other

non-hazardous wastes during
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25515

accumulation and transport (since they

are identified as hazardous), wastes

appropriate for the universal waste

system should pose relatively less risk

than other hazardous wastes since the

universal waste accumulation and

transport requirements are relatively

less stringent than the existing

hazardous waste regulations. Examples

of reasons a waste might pose relatively

low risk during accumulation and

transport include the construction or

physical form of the product or waste,

packaging of the waste, chemical

characteristics of the waste, ease of

containment, and standard handling

procedures for the waste.

The final factor (§ 273.81(e)) also

addresses, as did the proposed version,

the concept that waste management

requirements appropriate for the

universal waste regulations can be used

to mitigate risks posed by accumulation

and transport of the waste. This part of

the factor has been clarified to indicate

that petitioners should suggest or

reference waste management

requirements specific for the candidate

waste that could be added to the

universal waste regulations (or that are

independently applicable, e.g., DOT

requirements) that would protect human

health and the environment from risks

posed by the waste during accumulation

and transport. Such waste management

requirements may include volume

reduction incident to collection

activities. The activities should be

designed to ensure that these

management practices do not dilute the

hazardous constituents or release them

to the environment. For example, if

mercury-containing lamps were

considered for addition to the universal

waste system, crushing might be

allowed as appropriate management if

the crushing process was performed in

a controlled unit which did not allow

any releases of mercury or other

hazardous constituents to the

environment.

IV.C.2.f. Final Factor 40 CFR 273.81(f)

The Agency has revised and

combined proposed § 273.2(b)(3) and

part of proposed § 273.2(a)(2), which

addressed, respectively, whether

addition to the universal waste system

would facilitate removal of the waste

from the municipal waste stream and

the presence of the waste in the

municipal waste stream. The revised

factor, § 273.80(f), addresses whether

‘‘regulation of the waste under part 273

will increase the likelihood that the

waste will be diverted from nonhazardous waste management systems

(e.g., the municipal waste stream, nonhazardous commercial or industrial

waste stream, municipal sewer or

stormwater systems) to recycling,

treatment, or disposal in compliance

with Subtitle C of RCRA.’’

The Agency combined the two

proposed factors to reduce the

duplication that several commenters

pointed out existed in the two sets of

factors. The revised factor encompasses

the concepts included in both the

proposed factors, in that it would be

necessary to show that some portion of

a waste is being managed in nonhazardous waste management systems

in order to argue that regulation under

part 273 would increase the likelihood

of diversion from these systems.

The revised final factor also addresses

diversion of waste from non-hazardous

waste management systems generally,

rather than specifically from the

municipal waste stream. This revision

was made in response to a number of

commenters who pointed out that the

goal of the universal waste system

should be to improve management of

wastes that are managed in any type of

non-hazardous waste system, such as,

for example, disposal through

municipal sewer systems. These

commenters suggested that the term

implied that the only waste

management system the agency was

interested in removing hazardous

wastes from was the municipal solid

waste stream. The Agency agrees that

the term ‘‘municipal waste stream’’ was

too specific and could have been

interpreted to prevent addition of

wastes to the universal waste system

that may be primarily managed in nonhazardous waste systems other than the

municipal solid waste system. This was

not the Agency’s intent. Thus, the

revised factor uses the term ‘‘nonhazardous waste management systems’’

and provides some examples to clarify

this point.

In addition, the revised factor focuses

more on a positive showing that

regulation under the universal waste

system will improve waste management,

rather than a negative showing that the

waste is being managed improperly.

Several commenters argued that

requiring such a negative showing

would discourage potential petitioners

from seeking the benefits of the

universal waste system. For example,

commenters argued that manufacturers

and generators would not want to

develop and submit data that

demonstrate that their used products or

wastes are ‘‘problem’’ wastes that are

managed illegally and pose significant

risks to human health or the

environment. Requiring submission of

such data would force petitioners to

stigmatize their wastes, and could

potentially subject them to significant

liabilities in the future.

It should also be noted that diversion

of unregulated portions of a waste, such

as household waste and CESQG waste,

from non-hazardous waste management

systems could be a reason to add a

waste to the universal waste system. For

example, in some cases it may be likely

that facilitating the collection of

commingled regulated and unregulated

waste would encourage development of

collection systems that could divert

significant quantities of the waste,

including unregulated waste, from nonhazardous waste management systems.

Such a showing would not require

petitioners to focus on management of

regulated waste in non-hazardous waste

management systems.

IV.C.2.g. Final Factor 40 CFR 273.81(g)

Proposed factor 273.2(b)(5) addressing

improved implementation of the

hazardous waste program has been

essentially retained in the final rule as

§ 273.81(g). Commenters supported the

factor as proposed. The final factor has

been revised only to clarify that

improving compliance with the

hazardous waste program is an

important facet of improving

implementation of the program. Thus,

the final factor specifies that if

regulation of a waste under the

universal waste system is likely to

improve both implementation and

compliance, a waste would be a stronger

candidate for addition to the system.

IV.C.2.h. Final Factor 40 CFR 273.81(h)

Finally, one commenter requested

additional guidance on what other

factors might be addressed under the

proposed factors that discussed ‘‘other

appropriate information’’ and ‘‘such

other factors as may be appropriate’’

(proposed §§ 273.2(a)(6) and

273.2(b)(6)). These factors have been

combined in the final rule as

§ 273.81(h), which addresses ‘‘such

other factors as may be appropriate.’’ In

response, there is no list of specific

subjects that the Agency expects might

be addressed under this factor. The

Agency retained this factor because it

believes that it is likely that for any

particular waste or waste category there

may be unique factors which would

demonstrate that regulation under the

universal waste system is: Appropriate

for the waste or category of waste; will

improve management practices for the

waste or category of waste; and will

improve implementation of the

hazardous waste program. These unique

factors might result from physical or

chemical characteristics of the waste,

characteristics of waste generators (e.g.,
25516 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

organization or distribution of

generators), characteristics of collection

programs, or other aspects of the waste

or its management. The Agency does not

mean to imply that petitioners must

address other factors, but believes that

it is important to be able to take unique

factors into account if such factors exist.

IV.C.2.i. Proposed Factors Not Included

in the Final Rule

First, the proposed factor 273.2(a)(4),

which addressed typical generation

sites, is not included in the final rule.

Commenters overwhelmingly argued

that the proposed factor would

unintentionally limit universal wastes

because there are few wastes generated

at such locations, and would limit

universal wastes to wastes generated by

small businesses, many of which would

be CESQGs anyway. The Agency had

intended that this factor would assist in

identifying wastes that are generated in

situations that make them more difficult

to manage and thus the universal waste

system could improve management.

However, the Agency agrees that the

proposed factor was overly restrictive,

and that many wastes appropriate for

the universal waste system may not be

generated primarily at the types of

locations described. The Agency

recognizes that although universal

wastes may frequently be generated by

large organizations, due to the small

quantity and type of waste generated at

any one location, regulation under the

universal waste system may be

appropriate if the goals of the system

would be advanced. Thus, the Agency

decided to delete this factor. However,

as discussed above, one concept from

the proposed factor has been clarified

and added to another final factor.

Specifically, the idea that universal

wastes are frequently generated in

relatively small quantities by any one

generator has been added to final

§ 273.81(c).

Second, the proposed factor

273.2(a)(5), which addressed the risk

posed by management of the waste in

the municipal waste stream (e.g.,

municipal waste combustors or

landfills), is also not included in the

final rule. The Agency agrees with

numerous commenters who pointed out

that any waste that has been identified

as hazardous waste (i.e., is either listed

or exhibits one or more characteristics),

by definition could pose a risk to human

health or the environment under nonhazardous waste management scenarios.

The purpose of identifying wastes as

hazardous waste is to identify those that

pose such risks. Since only hazardous

wastes are eligible for the universal

waste system, the Agency decided it is

not necessary to require any additional

demonstration of risk for typical

management scenarios. The Agency also

agrees with commenters who argued

that requiring such a demonstration of

risk would inhibit petitioners because

they would be unwilling to stigmatize

their products or wastes or increase

future liabilities by highlighting the

risks posed by the products or wastes in

non-hazardous management systems.

Third, the proposed factor 273.2(b)(4),

which addressed the availability of

recycling technologies, is also not

included in the final rule. Commenters

were divided on this issue, but the

Agency agrees with several points made

by commenters opposing the use of this

factor. Several commenters argued that

recycling technology is quickly

developing and that the availability of

volumes of input material is a major

factor in driving this development.

Thus, using the prior existence of

recycling technology as a factor for

adding wastes to the universal waste

system may inhibit collection of

volumes of potentially recyclable wastes

and thus may actually inhibit

development of technologies for

recycling. The Agency thus believes it is

appropriate to evaluate wastes for

addition to the universal waste system

based on other factors, such as whether

waste management practices for a waste

will be improved, regardless of whether

the waste is recycled or treated and

disposed of under existing Subtitle C

requirements.

Other commenters argued that the

environmental benefits of removing

hazardous wastes from non-hazardous

waste management systems should not

be lost only because a recycling

technology has not yet been developed

for a particular waste type. Although the

Agency encourages environmentally

protective recycling of hazardous

wastes, this argument is convincing.

The Agency would prefer to get

hazardous wastes out of non-hazardous

waste management systems as soon as

possible, rather than waiting for a

recycling technology to develop, which

in some cases may be technologically or

economically unlikely.

IV.D. Participants in the Universal

Waste System

The following three sections describe

the four regulatory categories of

participants in the final universal waste

management system: Small quantity

handlers of universal waste, large

quantity handlers of universal waste,

transporters, and destination facilities.

The differences between these

categories and the proposed categories

of generators, consolidation points,

transporters, and destination facilities

are also described.

IV.D.1. Small and Large Quantity

Handlers of Universal Waste

In the proposed rule, regulated

persons managing universal waste were

categorized into four categories:

Generators, consolidation points,

transporters, and destination facilities.

In the final rule there are also four types

of regulated persons. The transporter

and destination facility categories are

retained essentially as they were

proposed. The persons who would have

been included in the proposed generator

and consolidation point categories will

now fit into either the category of small

quantity handlers of universal waste

(SQHUWs) or the category of large

quantity handlers of universal waste

(LQHUWs).

Under 40 CFR 273.6 of the final rule,

a Universal Waste Handler is defined to

mean a generator of universal waste or

the owner or operator of a facility,

including all contiguous property, that

receives universal waste from other

universal waste handlers, accumulates

universal waste, and sends universal

waste to another universal waste

handler, to a destination facility, or a

foreign destination. The Agency further

clarifies the definition of Universal

Waste Handler by stating that a

Universal Waste Handler does not

mean: (1) A person who treats (except

under the provisions of § 273.13 (a) or

(c), or 273.33 (a) or (c)), disposes of, or

recycles universal waste; or (2) a person

engaged in the off-site transportation of

universal waste by air, rail, highway, or

water, including a universal waste

transfer facility (see preamble

discussion under sections IV.E.8 of

today’s rule).

In the final rule, the term Universal

Waste Handler is subdivided into two

categories: Small Quantity Handler of

Universal Waste (SQHUW) and Large

Quantity Handler of Universal Waste

(LQHUW). Part 273.6 defines a Small

Quantity Handler of Universal Waste to

mean a universal waste handler, as

defined above, who does not

accumulate 5,000 kilograms or more

total of universal waste (batteries,

pesticides, or thermostats, calculated

collectively) at any time. A Large

Quantity Handler of Universal Waste is

defined in § 273.6 to mean a universal

waste handler (as defined above) who

accumulates 5,000 kilograms or more

total of waste (batteries, pesticides, or

thermostats, calculated collectively) at

any time. The 5,000 kg accumulation

cut-off level does not refer to any one

category of universal waste, calculated

separately but refers to the total quantity
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25517

of universal waste accumulated on-site.

Thus, a universal waste handler who

accumulates one or more categories of

universal waste (batteries, pesticides, or

thermostats) must determine their status

as a small or large quantity handler of

universal waste by calculating the total

quantity of all universal waste

categories accumulated on-site.

The Agency decided to make this

change for several reasons. First,

numerous commenters suggested that

there should be a third category of

universal waste handler: front-line

collectors of universal waste who collect

small quantities of universal waste,

largely from consumers and small

businesses. These commenters pointed

out that such collectors would

frequently be retail-type operations (e.g.,

a department or specialty store that has

a spent battery collection box)

participating in national or regional

collection programs. Such front-line

collectors would likely accumulate only

small quantities of universal waste

because they are not principally in the

business of managing waste and because

they would ship wastes frequently using

package shipping services or similar

systems set up by the collection

programs.

These commenters argued that frontline collectors should be subject to less

stringent requirements than the

proposed consolidation point

requirements for several reasons. One

reason was that the universal waste they

would have on-site would pose limited

risk due to the small quantities

involved. Another reason was that some

of the requirements would inhibit the

participation of many retail-type

operations (such as the large retail

chains) which would greatly limit the

success of universal waste collection

programs in removing these wastes from

the solid waste stream.

The Agency agrees with the concept

that the activities of persons such as

front-line collectors managing small

quantities of universal waste pose less

risk and require less stringent standards

than those managing larger quantities of

universal waste. Therefore, instead of

adding an additional category of frontline collectors with less stringent

standards, the Agency decided to extend

this concept to all persons both

generating and collecting universal

waste. Thus, under the final rule,

persons accumulating large quantities of

universal waste (5,000 kilograms or

more accumulated on-site) are subject to

more stringent requirements than

persons accumulating small quantities.

The second reason the Agency

decided to restructure the categories of

persons managing universal wastes was

in response to comments received on

the issue of recordkeeping for universal

waste shipments. The Agency had

proposed that a manifest be required for

shipments from final consolidation

points to destination facilities, based on

the concept that such shipments would

be larger shipments and thus require

closer tracking. In addition to other

issues, a number of commenters pointed

out that it is not necessarily true that

shipments from consolidation points to

destination facilities will be larger

shipments. For example, shipments

between consolidation points or

between generators and destination

facilities may also be large shipments.

The Agency agrees that it does not

necessarily make sense from a risk

perspective to require recordkeeping for

certain shipments based solely on the

type of universal waste management

activity conducted by the shipper and

receiver (i.e., whether the shipper

generates or collects universal waste or

whether the receiver collects or disposes

of universal waste). The Agency

believes that the appropriate variable for

applying more stringent requirements is

the quantity of waste managed, not

whether waste is generated or received

from off-site. Therefore, under the final

rule the level of requirements applied to

any handler (i.e., small or large quantity

handler requirements) is based purely

on how much universal waste is

managed at the location. Requirements

for SQHUWs and LQHUWs, including

notification requirements are found in

subparts B and C, respectively, of

today’s final rule. These requirements

are discussed in detail in this preamble

under section IV.E., Universal Waste

Handler Requirements.

IV.D.2. Transporters

In the final rule, transporter is defined

as ‘‘a person engaged in the off-site

transportation of universal waste by air,

rail, highway, or water.’’ This definition

remains substantially unchanged from

the proposed definition, except that the

term ‘‘universal waste’’ has replaced the

term ‘‘hazardous waste.’’ Persons

meeting the definition of transporter are

subject to the universal waste

transporter requirements of subpart D of

part 273. Using the term ‘‘universal

waste’’ merely clarifies that the part 273

transporter requirements apply only to

shipments of universal waste.

The universe of persons covered by

the transporter definition is the same as

that covered by the proposed definition,

and includes those persons who

transport wastes from one universal

waste handler to another, to a

destination facility, or to a foreign

destination. In response to several

commenters’ questions about selftransportation of universal waste by

generators, the final rule also clarifies in

40 CFR 273.18(b) and 273.38(b) that any

handler who self-transports universal

waste from his facility to another

handler, a destination facility, or a

foreign destination, becomes a universal

waste transporter for those selftransportation activities and is subject to

the requirements of subpart D of this

rule. The purpose of this language is

simply to clarify, for any handlers who

might be unsure, that a handler

transporting his or her own universal

waste off-site is regulated the same as

anyone else would be transporting that

universal waste off-site.

IV.D.3. Destination Facilities

In the proposed part 273 regulations,

a destination facility was defined as ‘‘a

hazardous waste treatment, storage,

recycling, or disposal facility which: (1)

Has received a permit (or interim status)

in accordance with the requirements of

parts 270 and 124 of this chapter, (2) has

received a permit (or interim status)

from a state authorized in accordance

with part 271 of this chapter, or (3) is

a recycler regulated under 40 CFR 261.6

(c)(2). If a waste is destined for a facility

in an authorized state which has not yet

obtained authorization to regulate that

particular waste as hazardous, then the

designated facility must be a facility

allowed by the receiving state to accept

such waste.’’

Many commenters argued that this

definition should be revised to include

only facilities that are actually recycling

or disposing of universal wastes. For

example, they argue that a facility that

only receives shipments of used

hazardous waste batteries, consolidates

them, and then ships them to a

recycling facility should not be defined

to be a ‘‘destination facility’’ just

because it is already a RCRA permitted

or interim status facility due to other

activities conducted at the facility.

Commenters pointed out that nonpermitted facilities conducting the exact

same universal waste management

activities would, under the proposed

rule, be defined as consolidation points

and would be subject to the less

stringent consolidation point

requirements. Commenters argued that

it does not make sense to regulate

facilities differently that are conducting

the same universal waste management

activities.

Commenters further noted that

defining a destination facility in terms

of whether or not it has a RCRA permit

would require any facility operating

under a RCRA Part B permit to manage

this waste under the full Subtitle C
25518 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

regulations instead of the less stringent

requirements contained in the proposed

part 273 regulations, whether or not

they are actually treating or recycling

the universal waste. Commenters also

pointed out that this definition would

provide an incentive for managing

universal waste at unpermitted facilities

with less experience in hazardous waste

management and would inhibit

management at permitted facilities that

have hazardous waste management

experience as well as oversight from

regulating agencies. Commenters stated

that although the proposed rule

provided flexibility for most managers

of universal waste, the proposed

definition of destination facility would

restrict the ability of permitted facilities

to manage universal wastes.

The Agency agrees with these

commenters and did not intend for the

destination facility requirements under

part 273 to apply to permitted

hazardous waste facilities serving solely

as consolidation areas for a particular

category of universal waste. The Agency

agrees that the more stringent

destination facility requirements should

apply only to those facilities that

actually treat, recycle and/or dispose of

a particular category of universal waste.

Permitted facilities that only consolidate

a particular category of universal waste,

but do not treat, recycle, and/or dispose

of this particular category of waste,

should be subject to the small or large

quantity handler of universal waste

requirements under part 273, as

appropriate. Thus these facilities would

be subject to the same requirements as

any other facility that conducts the same

universal waste management activities.

Thus, in today’s Final Rule, the

definition of destination facility has

been revised to clarify this point. In

§ 273.6 of the final rule, destination

facility is defined as ‘‘* * *a facility

that treats, disposes of, or recycles a

particular category of universal waste

except those management activities

described in paragraphs (a) and (c) of

§§ 273.13 and 273.33. A facility at

which a particular category of universal

waste is only accumulated, is not a

destination facility for purposes of

managing that category of universal

waste.’’ By defining a destination

facility based on the universal waste

management activity conducted at the

facility rather than by whether the

facility has a RCRA permit for other

waste management activities, the final

rule indicates that only facilities that

actually treat, dispose of, or recycle a

particular category of universal waste

must comply with the destination

facility requirements at § 273.60. The

universal waste handler definition

(§ 273.6) has also been structured to

conform to this change and includes all

facilities that accumulate a particular

category of universal waste but do not

treat, dispose of, or recycle them. Thus,

such facilities must comply with only

the appropriate universal waste handler

requirements for managing that

particular category of universal waste

regardless of whether they have a permit

for management of other hazardous

wastes or other categories of universal

waste which they do treat, recycle, and/

or dispose. Therefore, a facility which

only accumulates a particular category

of universal waste is a universal waste

handler for that particular category of

universal waste. However, if this facility

also treats, recycles, and/or disposes of

another category of universal waste, that

facility is a destination facility for that

particular category of universal waste

and must comply with the destination

facility requirements for that category of

waste.

IV.E. Universal Waste Handler

Requirements

As described in Section III, Summary

of Final Universal Regulations, subparts

B and C of part 273 set forth the final

requirements for small and large

quantity handlers of universal waste.

Each of these subparts consists of ten

sections. All but three of the sections

include requirements that are the same

for both small and large quantity

handlers of universal waste. However,

the notification and tracking sections for

LQHUWs include regulatory

requirements, while these same sections

for SQHUWs merely explain that small

quantity handlers are not subject to

notification and tracking requirements.

Also, the employee training section for

large quantity handlers of universal

waste includes more extensive

requirements than does the employee

training section for small quantity

handlers of universal waste.

The requirements included in the

final rule for each of the ten universal

waste handler sections are discussed in

detail in the following subsections of

this preamble. Any changes made from

the proposed rule, comments received

on the proposed requirements, and the

Agency’s responses to these comments

are also discussed.

IV.E.1. Prohibitions

In the proposed rule, the Agency

proposed three prohibitions that were

applicable to generators, transporters,

and consolidation points managing

universal waste. First, these handlers

were prohibited from diluting or

disposing of universal waste, except that

the existing § 262.70 provision allowing

farmers to dispose of waste pesticides

from their own use on their own farms

was retained. Second, handlers were

prohibited from treating waste, except

by removing electrolytes from batteries

or responding to releases. Third,

handlers were prohibited from sending

or taking universal waste to a place

other than a consolidation point,

destination facility, or foreign

destination. In the final rule, the three

prohibitions have been revised in

response to comment as discussed

below, and are applied to small quantity

handlers of universal waste, large

quantity handlers of universal waste,

and transporters of universal waste. The

final prohibitions for small and large

quantity handlers of universal waste are

found, respectively, in §§ 273.11 and

273.31 of this final rule. The handlers to

which the prohibitions apply under the

final rule are the same as under the

proposal since the universe of small and

large quantity handlers of universal

waste under the final rule is the same

as the universe of generators and

consolidation points under the

proposal. (See section IV.D.1 of today’s

preamble for a full discussion of

universal waste handlers).

IV.E.1.a. Prohibition on Disposal

The first proposed prohibition is

related to dilution and disposal of

universal waste and has essentially been

retained in the final rule, although

dilution has been moved and included

in the second prohibition concerning

treatment. Thus, the first prohibition

now simply prohibits handlers from

disposing of universal waste. In the

proposal, farmers disposing of waste

pesticides from their own use on their

own farms, in compliance with 40 CFR

262.70 were exempted from the part 273

management standards. In the final rule,

management under 40 CFR 262.70 is

still permissible, however it is not

written as an exemption. Part

273.3(b)(1) states that farmers using this

exemption are not covered under part

273. As proposed, the 40 CFR 262.70

provision allowing farmers to dispose of

waste pesticides from their own use on

their own farms has been retained.

Commenters generally did not disagree

with the prohibition on disposal. A

number of commenters added that the

proposed prohibition on disposal is

reasonable. Thus the Agency has

retained the prohibition essentially as

proposed at §§ 273.11 and 273.31 of

today’s final rule.

IV.E.1.b. Prohibition on Treatment

The second proposed prohibition on

treatment of universal waste has been

retained in the final rule, but several
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25519

revisions have been made. As

mentioned above, the dilution

prohibition was moved from the first

prohibition and combined with the

second treatment prohibition. This

change clearly separates disposal

activities from treatment activities, since

dilution is a form of treatment. Further,

by combining the treatment and dilution

prohibitions into the same provision it

is further clarified that exceptions

identified to the treatment prohibition

also apply to the dilution prohibition.

Also, the proposed treatment

prohibition included one exception

allowing the removal of electrolyte from

batteries as long as certain requirements

were met. (See proposed §§ 273.11(d)(2)

and 273.11(e)(1)). Commenters generally

supported the exception on electrolyte

removal. Thus, the substance of this

exception has been retained. In the final

rule, however, the electrolyte removal

exception has been made part of a more

general exception for routine battery

management activities, which has been

added for small and large quantity

handlers of universal waste under

sections 273.13(a)(2)(vii) and

273.33(a)(2)(vii). This more general

exception allows handlers of universal

waste batteries to conduct routine

battery management activities as long as

the casing of each individual battery is

not breached and remains closed and

intact.

Routine battery management activities

include sorting batteries by type, mixing

battery types in one container,

discharging batteries, regenerating used

batteries, disassembling battery packs,

removing batteries from discarded

consumer products, or removing

electrolyte from batteries. The types of

battery management activities that are

allowed under the exception and the

requirements that must be met are

referenced in the prohibitions section

and detailed in the waste management

section. (See, for example, 40 CFR

273.11(b), 273.13(a)(2) and (3), and

273.33(a)(2) and (3) of the final rule.)

The requirements for battery

management are discussed further in

section IV.E.3.a of the preamble, waste

management.

Numerous commenters argued that

the treatment prohibition could be

construed to preclude persons collecting

batteries from performing activities that

are necessary and essential to battery

collection and management. Second,

commenters believed that such

management activities do not pose an

appreciable risk to the environment

because the battery casings remain

intact and thus there is no increase risk

of exposure or release of battery

contents to the environment. Finally,

commenters argued that these activities

are necessary to facilitate proper

recycling. Therefore, the Agency has

added text to the prohibitions section

under § 273.11(b) which prohibits

treatment of universal waste batteries

except in response to releases or

management of batteries as provided in

§§ 273.13(a)(2) and 273.33(a)(2). These

sections allow certain battery

management activities provided that the

casing of each individual battery is not

breached and the battery remains closed

and intact.

In response to comment, another

exception to the treatment prohibition

has been added to the final rule that

allows certain thermostat management

activities. This exception allows

handlers to remove mercury-containing

ampules from thermostats. As with the

battery management exception, these

activities must meet certain

requirements referenced in the

prohibitions section and detailed in the

waste management section. (See, for

example, 40 CFR 273.11(b), 273.13(c)(2)

and (3), and 273.33(c)(2) and (3). The

requirements for ampule removal are

discussed further in section, IV.E.3.c,

waste management, of today’s preamble.

This exception for ampule removal

has been added to the final rule in

response to a comment. The commenter

argued that all the mercury is located

within the ampule not the entire

thermostat and, therefore, only the

mercury ampule, not the entire used

mercury containing thermostat, should

be regulated. The commenter also

argued that removal of used mercury

ampules from the thermostats will be

done by trained personnel in a setting

where appropriate health and safety

measures have been instituted. The

Agency agrees with the commenter and

has included a thermostat management

exception for small and large quantity

handlers of universal waste, 40 CFR

273.13(c) and 40 CFR 273.33(c), who

conduct mercury ampule removal

activities, provided that they meet the

regulatory provisions of part 273 for

mercury ampule removal. For further

discussion regarding mercury ampule

removal, please refer to section IV.E.3.c,

waste management.

Finally, some commenters were

concerned that the proposed treatment

prohibition, for all universal waste

types, unfairly limited universal waste

management activities of generators.

These commenters stated that under full

Subtitle C regulation, generators are

allowed to treat hazardous waste in

accumulation containers (§ 262.34(a)

and (d)), therefore, compliance with full

Subtitle C requirements is less

restrictive for generators than the

streamlined part 273 standards. The

Agency disagrees with the commenters

and revises the prohibition provisions of

today’s final rule with the modifications

mentioned above. The Agency points

out that the existing accumulation

provisions are available only to

regulated generators who have EPA

identification numbers and are

complying with the full part 262

requirements including 90- or 180-day

accumulation time limits (and

permitting for exceeding these limits),

40 CFR 262.34 accumulation unit

standards, biennial reports, and

manifests. The Agency does not believe

it is appropriate to allow a similar

provision for generators who are not

required to comply with the part 262

controls, but are instead following the

streamlined requirements of the

universal waste regulations.

IV.E.1.c. Prohibition on Shipments of

Universal Wastes

The third proposed prohibition on

sending or taking universal waste to a

place other than specifically identified

locations (e.g., generators could take

their universal waste only to a

consolidation point, destination facility,

or foreign destination) has been

substantially retained in the final rule,

with minor modifications. In the final

rule, this prohibition has been moved to

new sections entitled off-site shipments.

(See 40 CFR 273.18(a) and 273.38(a).) In

the final rule, this provision has been

revised to fit the categories of universal

waste handlers used in the final rule.

(See section IV.D.1 of today’s preamble

for a full discussion on universal waste

handlers). The prohibition has been

substantially retained in the final rule,

but has been modified to allow

shipment to any universal waste

handler. The off-site shipment

prohibition is discussed in detail in

section IV.E.8 of this preamble entitled

off-site shipments.

IV.E.2. Notification

In the proposed rule, the Agency

required generators and consolidation

points accumulating more than 20,000

kg of hazardous waste batteries at any

time to notify EPA of their waste

management activities. EPA requested

comment on the proposed approach not

to require generators of universal waste

pesticides to notify, and the proposed

notification quantity limits.

The notification requirement in the

proposed rule consisted of a letter to the

EPA Regional Administrator identifying

the generator’s facility. Specifically,

generators and consolidation points

accumulating more than 20,000 kg of

hazardous waste batteries at any one
25520 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

time were required to send a one-time

written notification to the EPA Regional

Administrator describing their

hazardous waste battery accumulation

activities. EPA would then assign an

EPA identification number. Information

required in the written notification

included: (1) The generator’s or

consolidation point’s name and mailing

address; (2) the name and business

telephone number of the person at the

generator’s or consolidation point’s site

who should be contacted regarding the

battery accumulation activity; (3) the

address or physical location of the

battery accumulation activity; and (4) a

statement indicating that the generator

or consolidation point accumulates

more than 20,000 kilograms of

hazardous waste batteries. Alternately, a

generator or consolidation point could

apply to the EPA Regional

Administrator using EPA Form 8700–

12, ‘‘Notification of Regulated Waste

Activity,’’ and checking the appropriate

box indicating that they are a hazardous

waste generator or consolidation point.

The Agency did not propose

notification requirements for generators

and consolidation points handling only

hazardous waste pesticides that are

suspended and/or canceled and

recalled. As discussed in the preamble

to the proposed rule (58 FR 8121), the

Agency considered the requirements for

identifying recall participants and

recordkeeping, authorized by FIFRA

section 19(b), to provide sufficient

information concerning the identity and

location of persons managing these

pesticides. In addition, FIFRA section

6(g) requires notice to EPA and

appropriate state and local officials of

the location, quantities, and possession

of pesticides that are suspended or

canceled under FIFRA section 6.

Based on commenters’ support for the

Agency’s decision not to require the part

273 notification requirements for

generators or consolidation points

accumulating recalled pesticides, the

Agency has decided to retain this

exemption. Thus, under the final rule a

person who handles only (e.g., does not

manage other universal waste) recalled

universal waste pesticides as described

in 40 CFR 273.3(a)(1) and who has sent

notification to EPA as required under

FIFRA section 19(b) and 6(g) is not

required to notify under § 273.32 of

today’s rule.

In the final rule, the Agency has also

decided to retain the notification

provisions for hazardous waste batteries

found in the proposed rule, with some

minor revisions. In the final rule, the

notification requirements have been

modified by: (1) Expanding the

notification requirements to

accommodate additions to the

applicability section of the rule; (2)

incorporating the revisions made in the

final rule regarding the categorization of

generators and consolidation points; (3)

reducing the 20,000 kilogram cut-off

level for notification; and (4) clarifying

that cut-off for the notification

requirements apply on a ‘‘site-by-site’’

basis. These modifications are discussed

below.

First, the Agency has broadened the

applicability of the final rule to include,

along with hazardous waste batteries,

unused pesticide products and used

mercury-containing thermostats. Thus,

in the final rule, notification

requirements previously required only

for hazardous waste batteries also apply

to unused pesticide products and used

mercury-containing thermostats under

§§ 273.3 and 273.4 respectively. A full

discussion regarding the expansion of

the universal waste rule to unused

pesticides products and used mercurycontaining thermostats can be found in

sections IV.E.3.b and IV.E.3.c,

respectively, of today’s preamble.

Second, the final rule has been

revised from the proposed rule such that

generators and consolidation points are

now designated as universal waste

handlers. The persons who would have

been included in the proposed generator

and consolidation point categories will

now fit into either the category of small

quantity handlers of universal waste

(defined in § 273.6 as a universal waste

handler who accumulates less than

5,000 kilograms total of universal waste

(batteries, pesticides, or thermostats,

calculated collectively) at any time) or

the category of large quantity handlers

of universal waste (defined as in § 273.6

as a universal waste handler who

accumulates 5,000 kilograms or more

total of universal waste (batteries,

pesticides, or thermostats, calculated

collectively) at any time). Thus, under

the final rule, universal waste handlers

accumulating large quantities of

universal waste are subject to more

stringent requirements than persons

accumulating small quantities.

The Agency believes that the

appropriate variable for applying more

stringent requirements is the quantity of

waste managed, not whether the waste

is generated or collected. The Agency

selected 5,000 kilograms of accumulated

waste as the cutoff for this notification

requirement (i.e., as the cut-off between

small and large quantity handlers of

universal waste) because the universal

waste rule is designed for wastes that

present a relatively low risk during

collection (compared to other hazardous

waste), and thus it is appropriate to

have a higher cut off limit for this

notification requirement than applies

under the full hazardous waste

regulations (i.e., the conditionally

exempt small quantity generator limit of

1,000 kg). Further information regarding

small and large quantity handlers of

universal waste, can be found in section

IV.D.1 of the preamble.

A third modification made to the

notification requirements reduces the

notification cut-off level from 20,000

kilograms to 5,000 kilograms total of

universal waste. In the proposal, as

stated above, generators or

consolidation points accumulating more

than 20,000 kilograms of universal

waste batteries would have been

required to notify EPA. Under today’s

final rule, the applicability of part 273

has been expanded to also include

unused pesticide products and

thermostats. Thus, under the final rule,

universal waste handlers accumulating

5,000 kilograms or more total of

universal waste (batteries, pesticides, or

thermostats) at any one time are

required to notify EPA of this activity.

Therefore, a universal waste handler

who accumulates 5,000 kilograms or

more total of universal waste at any one

time is designated a large quantity

handler of universal waste and is

subject to the notification requirements

of 40 CFR 273.32. However, a universal

waste handler who does not accumulate

5,000 kilograms total of universal waste

(e.g., batteries, pesticides, or

thermostats, calculated collectively, at

any one time) is designated a small

quantity handler of universal waste and

is not subject to any notification

requirements under part 273. The

Agency points out that since the

universe for generators and

consolidation points and universal

waste handlers are the same, the only

difference between the proposed

notification requirements and the

notification requirements of this final

rule is the cut-off level. Thus, the

notification provisions in today’s rule

have not changed substantially. In

addition, as explained previously,

handlers of recalled pesticides only

need notify if they have not already

notified under FIFRA.

The Agency’s decision to reduce the

cut-off level was based on

recommendations by a number of

commenters. Although some

commenters generally supported the

20,000 kilogram cut-off level, several

commenters recommended that EPA

reduce the level because the 20,000

kilogram cut-off was excessive and that

most generators or consolidation points

would not accumulate such large

amounts of universal waste. These

commenters suggested reducing the
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25521

notification quantity limit to 1,000

kilograms. Another commenter

recommended reducing the 20,000

kilogram notification limit to 5,000

kilograms total because the reduction

eliminates the small one-time

collections and average size generators

while ensuring that regulatory agencies

are aware of the larger generators and

more permanent consolidation points.

The Agency agrees with the commenter

and believes that such a quantity level

is appropriate. EPA believes that the

amount of universal waste that a facility

is accumulating is a good indicator of

the quantities of waste that the facility

is handling, is easily verified by

regulating agencies through an

inspection of the facility, and is a good

indicator of the risk posed by

management of universal waste at the

facility.

The Agency also believes that the

5,000 kilogram quantity limit will not

obstruct people managing universal

waste from participating in the

universal waste collection program

because the recordkeeping requirements

for large quantity handlers of universal

waste is basic enough to be fulfilled by

standard business records. Thus,

handlers will arrange universal waste

management activities to achieve

efficiency rather than to avoid

regulatory requirements. To achieve

efficiency, those facilities handling large

quantities in short periods of time will

naturally accumulate these large

quantities in order to take advantage of

the economies of scale available from

making fewer large shipments of

universal waste, as opposed to

numerous small shipments. The

Agency, however, would like to

emphasize that all handlers who

anticipate accumulating 5,000 kilograms

or more total of universal hazardous

waste at any one time must send written

notification to the Regional

Administrator, and receive an EPA

Identification Number before exceeding

the 5,000 kg quantity limit.

Finally, the Agency has clarified in

the final rule that the notification

requirement is a one-time notification

for facilities accumulating 5,000

kilograms or more total of universal

waste, calculated collectively on-site.

The Agency believes clarification is

necessary because a number of

commenters raised the question of

whether or not notification is necessary

only when a particular site exceeds the

cut-off limit or if notification is required

if an entire company accumulates

greater than the cut-off limit at all of its

sites combined. Commenters

specifically recommended that the cutoff figure apply on a location, or ‘‘siteby-site’’ basis and not on a companywide basis. The Agency agrees with

commenters’ recommendation to require

notification on a ‘‘site-by-site’’ basis

only. The Agency believes the

notification requirement in the

proposed rule, and in today’s final rule,

already addresses this concern. In

addition, the Agency clarifies that

renotification is not required for large

quantity handlers who have previously

notified. This means that if a large

quantity handler of universal waste has

already notified EPA of his hazardous

waste management activities and has

received an EPA identification number,

he is not required to re-notify under 40

CFR 273.32.

The final rule maintains the

notification requirements of the

proposal, but has reduced the 20,000

kilogram cut-off level to 5,000 kilograms

as discussed previously. The

notification requirements of § 273.32

recognize that a person may own several

non-contiguous properties which

accumulate universal waste

independently of each other. The

notification requirement under § 273.32

does not require a company owning

non-contiguous properties to add

together the total quantity of universal

waste accumulated at each noncontiguous property and subsequently

notify EPA if the total quantity of

universal waste for all non-contiguous

properties equals or exceeds 5,000

kilograms.

As written, the 5,000 kilogram cut-off

level applies only to the total amount of

all categories of universal waste

accumulated at one site. Noncontiguous property is viewed as a

separate site. Thus, a person who owns

or operates two or more universal waste

management facilities located on pieces

of property which are non-contiguous

should not add together the quantities of

all universal waste accumulated at all of

his facilities to determine if he exceeds

the 5000 kilogram cut-off level. Owners

or operators should consider each

facility separately and is responsible for

calculating the quantity of universal

waste at each facility separately. If the

5,000 kg cut-off level is exceeded for the

universal waste accumulated at one

facility, he would be required to notify

EPA of his universal waste activities. If

the quantity of universal waste at this

facility is less than the 5,000 kg cut-off,

notification would not be necessary. In

other words, the owner or operator of a

facility, including all contiguous

property, that accumulates 5,000

kilograms or more total of universal

waste, is subject to the notification

requirements of § 273.32.

On the other hand, non-contiguous

properties owned by the same person

but connected by a right-of-way which

he controls and to which the public

does not have access, are considered onsite property. Thus, a person who owns

or operates two or more universal waste

management facilities located on pieces

of property which are connected by a

right-of-way which he controls and to

which the public does not have access,

should add together the quantities of all

universal waste accumulated at these

facilities to determine if he exceeds the

5000 kilogram cut-off level. If the

quantity of universal waste at his on-site

facilities is greater than the 5,000 kg cutoff, notification would be necessary, if

the owner has not already notified. The

Agency believes that this clarification

will redress any further confusion

caused by the proposed notification

requirements.

IV.E.3. Waste Management

The final waste management

requirements for small and large

handlers of universal waste are found in

§§ 273.13 and 273.33 of this final rule.

The subsections of §§ 273.13 and 273.33

address waste management issues

specific to each waste category.

Subsection (a) consists of requirements

for universal waste battery management,

subsection (b) consists of requirements

for universal waste pesticide

management, and subsection (c) consists

of requirements for universal waste

thermostat management. The three

waste category-specific provisions are

discussed in the following three

subsections of this preamble.

Each of the subsections set forth a

general performance standard requiring

that handlers ‘‘manage universal waste

in a way that prevents releases of any

universal waste or component of a

universal waste to the environment.’’

The universal waste proposal included

a similar provision, which was

proposed for management of universal

waste batteries. The proposed provision,

however, required that persons manage

batteries ‘‘in a way that minimizes

releases* * *’’ Several commenters

argued that the requirement to minimize

releases was too lax and in essence

allowed releases. They pointed out that

such a standard implied that releases

could occur, as long as the handler

attempted to minimize them. These

commenters suggested that the standard

should be changed to require

management in such a way that prevents

releases. The Agency agrees with this

point, and stresses that releases of

universal waste or universal waste

components to the environment are not

allowed under the universal waste
25522 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

regulations. For example, management

in a container that has signs of visible

leakage would unquestionably be out of

compliance. The standard of

performance for universal waste

management is to prevent any release

and therefore, leakages that are not

visible are also not permissible. Thus,

the Agency has revised the text of the

provision to clarify that universal waste

batteries, pesticides and thermostats are

to be managed in such a way as to

prevent releases.

In the final rule, this performance

standard is applied to all universal

waste rather than only to batteries.

Thermostats are included because the

Agency had discussed applying the

proposed requirements for battery

management to thermostats and

commenters generally supported this

approach. Pesticides are included

simply to make it clear that releases are

to be prevented, although this

requirement is actually redundant.

IV.E.3.a. Universal Waste Batteries

Subsection (a) of the small and large

quantity handlers of universal waste

management sections sets forth

requirements for the management of

universal waste batteries. Three

provisions are included.

The first provision of §§ 273.13(a)(1)

and 273.33(a)(1) address containment of

leaking or damaged batteries. The

Agency added this provision to the final

rule after reviewing comments on the

issue of waste management

requirements for batteries. Commenters

disagreed on this subject. A number of

commenters argued that the

management requirements proposed for

batteries were sufficient to ensure that

universal waste battery management

will be protective of human health and

the environment. They believed that the

general performance standard

concerning releases and the prohibitions

were sufficient and urged the Agency

not to impose additional waste

management requirements. In fact,

several commenters argued that

batteries should be subject to

regulations like those of subpart G of 40

CFR part 266, which includes no

requirements for handlers other than

recyclers.

Several other commenters, however,

argued that more stringent controls

should be imposed on battery waste

management. They believed that the

proposed general performance standard

and other requirements were inadequate

to protect against environmental

damage. These commenters

recommended various additional

requirements including accumulation of

batteries on surfaces that can contain

releases, detailed employee training,

financial assurance, temperature and

ventilation controls, water run-on and

run-off controls, fire/explosion and

security precautions.

In response to these comments the

Agency has decided to add to the final

rule a containment provision requiring

that handlers ‘‘contain any universal

waste battery that shows evidence of

leakage, spillage, or damage that could

cause leakage under reasonably

foreseeable conditions in a container.

The container must be closed,

structurally sound, compatible with the

contents of the battery, and must lack

evidence of leakage, spillage, or damage

that could cause leakage under

reasonably foreseeable conditions.’’ This

means that the containers must be in

good condition (no severe rusting,

apparent structural defects, or

deterioration). The Agency believes that

this requirement will ensure that any

potential releases to the environment

from universal waste batteries are

prevented. The Agency further believes

that this requirement is specific enough

to provide clear direction to handlers of

universal waste batteries on how to

prevent releases. Because the

requirement is not technically difficult

to follow, the Agency is confident that

universal waste handlers will be able to

comply. Although the Agency has

added this new containment

requirement for batteries, the Agency is

sensitive to concerns that overly

burdensome requirements will

discourage participation in the universal

waste system, resulting in decreased

quantities of these wastes being

collected for proper management. The

Agency is confident that this

requirement is rigorous enough to

protect human health and the

environment from the risks of battery

management, but at the same time will

not present a barrier to participation in

universal waste collection programs.

The second provision of the waste

management section for batteries,

§§ 273.13(a)(2) and 273.33(a)(2),

specifies conditions that must be met by

handlers conducting these activities.

This provision also identifies certain

battery management activities that may

be conducted by handlers. This

provision was added in response to

numerous commenters who all argued

that certain activities that might be

considered treatment, and thus banned

under the prohibition on treatment of

universal waste, are necessary to quality

battery management and pose no

increased health or environmental risks.

Commenters mentioned the following

activities: sorting batteries by type;

mixing battery types in one container;

discharging batteries so as to remove the

electric charge; disassembling batteries

or battery packs into individual batteries

or cells; and removing batteries from

discarded consumer products.

According to these commenters, these

activities are essential to effective

battery management. For example,

battery types are mixed in containers at

collection points to avoid the

complexity of requiring those dropping

off batteries to identify and manage

battery types separately. Collected

mixed batteries must be sorted by type

in order to send them to the appropriate

destination facilities for proper

recycling or treatment. Batteries must be

removed from discarded consumer

products to make shipping and handling

economical. Discharging batteries may

be conducted as a safety precaution

prior to accumulation or shipping.

The Agency agrees with commenters

that these activities are an important

part of battery management and should

be allowed under the universal waste

regulations. The Agency also agrees

with commenters’ point that as long as

the metal or plastic casing of each

individual battery or cell is not

breached and remains closed and intact,

the risk of releases to the environment

is not increased by these activities.

Thus, the Agency has added this new

provision to the final rule specifying

that handlers may conduct the battery

management activities listed above as

long as the battery or cell casings are not

breached and remain closed and intact.

The Agency notes that it has removed

the 40 CFR 261.6 exemption for used

batteries that are to be regenerated and

has added a provision specifying that

facilities regenerating used batteries are

subject to the part 273 standards for

small or large quantity handlers of

universal waste. The Agency believes

that regeneration of batteries is a

management activity that should also be

exempted from the treatment

prohibitions. Thus, regeneration of used

batteries has also been included as part

of the management activities mentioned

above for universal waste batteries (For

further discussion regarding regenerated

batteries, please refer to section IV.J of

the preamble). To resolve commenters’

concerns that these activities might be

banned under the general prohibition on

treatment, in the final rule the Agency

has also revised the treatment

prohibition to specifically exempt these

activities. Removing electrolyte, which

was allowed under the proposed rule

and not opposed by commenters, has

also been included in this provision as

an allowable activity.

The third provision of the waste

management section for batteries
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25523

273.13(a)(3) and 273.33(a)(3), has been

expanded from a proposed provision

discussing how electrolyte removed

from batteries is regulated (see, for

example, proposed 40 CFR 273.11(e)(1)).

The final provision has been expanded

to address not only electrolyte, but any

non-universal waste generated in the

process of managing universal wastes.

These non-universal wastes could

include any solid waste generated in the

battery management activities discussed

above (e.g., plastic or metal battery pack

construction materials or consumer

electronics hulks from which batteries

have been removed). The provision has

been expanded to address these other

wastes because commenters raised the

issue of battery management activities

and the same issues arise with wastes

generated in these activities as with

electrolyte.

In addition, this provision has been

expanded to address the question raised

by commenters of how electrolyte (and

other generated non-universal wastes)

would fit into the hazardous waste

regulations. Under the final rule the

handler who generates hazardous waste

electrolyte or other hazardous wastes

are subject to the generator requirements

of 40 CFR part 262. Compliance with

the generator regulations of part 262 is

appropriate because a generator begins

the hazardous waste management

procedures (e.g., manifesting, shipping

to regulated facilities), which is what

would be required for a non-universal

waste generated as a result of universal

waste management which must be

moved into the full hazardous waste

regulatory system.

Finally, this provision has also been

expanded to clarify that if electrolyte or

any other generated non-universal

wastes are not hazardous wastes, they

may be managed under applicable solid

waste management regulations. This is

always true under the hazardous waste

regulations, but the Agency believes that

restating this will make the regulations

more clear and user friendly for battery

handlers.

IV.E.3.b. Universal Waste Pesticides

In the proposed universal waste rule,

the Agency proposed that suspended

and/or canceled and recalled pesticides

managed under the universal waste

regulations must be packaged to meet

one of the following four conditions: (1)

The pesticide must be packaged in the

original packaging (container or tank)

used to contain the pesticide when it

was being distributed or sold, which

must be kept closed and not leaking; (2)

the pesticide must be packaged in the

original packaging and overpacked in a

larger container that is closed and nonleaking; (3) the pesticides must be

contained in a tank that meets the

hazardous waste tank requirements; or

(4) the pesticides must be contained in

a non-leaking transport vehicle or

vessel. The Agency also requested

comment on whether the regulations

should allow handlers of recalled

pesticides to repackage universal waste

pesticides from original packaging into

other containers (i.e., physically transfer

the pesticide from its original packaging

into a different container).

In the final rule, the first, second, and

fourth options for packaging have been

substantially revised in response to

comments. The third option, on which

very little comment was received, has

been retained as proposed. In addition,

because the universe of pesticides

included in the final rule has been

expanded (see discussion in section

IV.B.2.c. of this preamble), the

packaging requirements in the final rule

are applicable to unused pesticide

products collected in collection

programs as well as to suspended and/

or canceled and recalled pesticides.

The first and second proposed

packaging options (which were the only

available options if a pesticide was to be

managed in containers or portable tanks

rather than tanks or transport vehicles),

essentially required that the pesticide

remain in the original packaging used

when it was distributed or sold. If the

original packaging was leaking, the

second option required that it be

overpacked in a larger, non-leaking

container. However, both options

required that original packaging be

used. (See proposed 40 CFR

273.22(a)(1)(i) and 273.23(a)(1)(i).)

In the final rule, these packaging

options have been substantially revised

to allow management of pesticides in

containers other than original

packaging, as long as certain conditions

are met. Specifically, the first revised

option allows pesticides to be managed

in ‘‘a container that remains closed, is

structurally sound, compatible with the

pesticide, and that lacks evidence of

leakage, spillage, or damage that could

cause leakage under reasonably

foreseeable conditions.’’ See 40 CFR

273.13(b)(1) and 273.33(b)(1) of the final

rule. The second revised option requires

that a pesticide managed in a container

not meeting the conditions of the first

option be overpacked in a container that

does meet the requirements of the first

option. See 40 CFR 273.13(b)(2) and

273.33(b)(2) of the final rule.

The result of these revisions is that

any universal waste pesticide that is

managed in a container must be

managed in a container that is in good

condition (no severe rusting, apparent

structural defects, or deterioration). The

good-condition container may be the

primary container (under the first

option), or if the primary container is

not acceptable, a good-condition

container may be used to overpack the

primary container (i.e., the primary

container is placed into a goodcondition overpack container). It should

be noted that although original

packaging is no longer required under

these revisions, original packaging may

be used to contain pesticides as long as

the original packaging meets the

conditions set forth in the options.

The Agency’s decision to allow the

use of packaging other than original

packaging was based on a couple of

factors. First, a number of commenters

pointed out that a significant portion of

waste pesticides found on farms (both

recalled pesticides, and unused

pesticide products collected in ‘‘clean

sweep’’ programs) are in containers

other than the original container. In

most cases, the original containers for

these pesticides are no longer available.

Commenters argued that limiting the

universal waste rule to those pesticides

for which the original container is

available would severely limit the

quantities of waste that could be

managed under the universal waste

system. In turn, this would decrease the

amounts of pesticides collected from

farmers and others for proper

management. Commenters argued that

the risks of releases of these pesticides

are likely to be less under the universal

waste regulations than under conditions

of long term accumulation on farms,

particularly if the regulations ensure

management in good-condition, nonleaking containers.

The Agency notes that its intent in

requiring original packaging was to

ensure that pesticides were managed in

appropriate containers. The Agency

believed that original packaging was

most likely to remain in good condition

since it was designed to store the

pesticide during its product life.

However, based on the comments

received, the Agency now believes that

requiring original packaging would

unnecessarily limit the pesticides that

can be managed under the universal

waste system, and, at the same time,

would not necessarily ensure adequate

containment. Thus, the Agency has

developed revised packaging

requirements for containers that ensure

that pesticides are managed in

containers that are protective of human

health and the environment, and that

pesticides are not prohibited from

management under the universal waste

system merely because the original

packaging is no longer available. The
25524 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

Agency agrees with commenters’ points

and believes that the revised packaging

requirements for containers are

environmentally protective, but flexible

enough to accommodate pesticides

collected under recalls as well as waste

pesticide collection programs (‘‘clean

sweeps’’).

Second, a number of other

commenters argued that the proposed

requirements to keep pesticides in

original containers that are closed and

non-leaking were not sufficiently

protective. These commenters pointed

out that cancellation may sometimes

follow suspension by a considerable

period of time, and that pesticide

containers may not be properly

maintained over this time period.

Similarly, pesticides collected in ‘‘clean

sweep’’ programs have frequently been

accumulated for long periods of time.

As a result, such containers may

deteriorate or be damaged. These

commenters believed that the proposed

packaging provisions requiring that

pesticides be kept in closed and nonleaking containers could be construed to

allow the use of original containers that

are damaged, but not yet actually

leaking. Although the Agency did not

intend to allow the use of damaged

containers, the Agency agrees that the

proposed language could have been

interpreted to allow such containers. To

resolve this problem, under the final

rule universal waste pesticides must be

contained in containers (or overpack

containers) that remain closed, are

structurally sound, compatible with the

pesticides, and that lack evidence of

leakage, spillage, or damage that could

cause leakage under reasonably

foreseeable conditions. The Agency

believes that this requirement provides

sufficient insurance that pesticide

containers will be protective of human

health and the environment.

The same conditions have also been

added to the fourth packaging option,

which as proposed, allowed the used of

‘‘non-leaking transport vehicles or

vessels.’’ This provision has been

revised in the same way as the first two

options since the ‘‘non-leaking’’

condition raises the same issue as the

proposed non-leaking container

requirements. To resolve the concern

that damaged, but not yet leaking

transport vehicles or vessels could be

used to contain pesticides, the final rule

requires that handlers use a transport

vehicle or vessel that is ‘‘closed,

structurally sound, compatible with the

pesticide, and that lacks evidence of

leakage, spillage, or damage that could

cause leakage under reasonably

foreseeable conditions.’’

The final rule has also been revised to

clarify when overpacking is required for

pesticide containers in response to

confusion cited by some commenters

regarding these requirements in the

proposal. The Agency believes that the

wording of the second revised

packaging option makes it clear that

overpacking is required when the

primary container does not meet the

good-condition requirements found in

the first revised packaging condition.

The Agency believes that this regulatory

structure will be more clear to the

reader than the proposed regulatory

structure.

Several commenters addressed the

question of whether the universal waste

regulations should allow universal

waste handlers to repackage pesticides

(i.e., to transfer pesticides from one

container to another). Most of these

commenters supported allowing

repackaging. The Agency generally

prefers that handlers overpack leaking

or damaged containers rather than

transfer the pesticide to another

container because the risk of spillage is

likely to be less when overpacking.

However, the Agency recognizes that in

some cases, for example if no overpack

materials are available, it may be

preferable to repackage pesticides than

to wait until overpacking is possible. In

addition, there are other controls that

will ensure that any repackaging of

universal waste pesticides is conducted

in an environmentally protective

manner. For recalled pesticides, the

recall procedures under FIFRA section

19b addresses repackaging. For

example, under proposed regulations at

40 CFR part 165 (58 FR 26857; May 5,

1993) pesticide recallers would submit

a recall plan for approval by the Agency.

Part of the plan would include a

description of the responsibilities of the

recaller and pesticide holders with

respect to interim storage, preparation

for transportation, and transportation of

the pesticide.

For unused pesticide products

managed in collection programs, the

pesticide management procedures

required by the collection program will

generally address repackaging and, if

allowed, will specify precautions to be

taken during repackaging. Because

repackaging may be an important

method of cost control for collection

programs (e.g., consolidation of small

containers of the same pesticide), the

Agency does not wish to interfere with

these practices. The Agency believes

that waste pesticide collection programs

will develop responsible procedures

and would like to leave the decision of

whether to allow repackaging, and what

requirements to impose, to the

collection programs or States.

Based on these factors, the Agency

has decided not to prohibit repackaging

in the final universal waste regulations.

The Agency points out, of course, that

any spillage of universal waste pesticide

is required to be cleaned up

immediately and managed appropriately

under the universal waste release

response provisions. The Agency also

notes that any spillage that is not

cleaned up would be considered illegal

disposal under the hazardous waste

regulations.

IV.E.3.c. Universal Waste Thermostats

In the proposed rule, the Agency

requested comment on whether the

waste management requirements

proposed for universal waste batteries

would be appropriate for managing

mercury-containing thermostats. The

Agency also requested comment on any

additional requirements necessary to

ensure that thermostats are collected in

a manner that is protective of human

health and the environment.

With the exception of one issue

concerning mercury-containing ampule

removal, commenters overwhelmingly

supported applying the requirements

proposed for universal waste batteries to

used mercury-containing thermostats.

These commenters agreed that the

proposed part 273 requirements would

facilitate collection and recycling of the

mercury contained in the thermostats.

Thus, in the final rule, persons

managing universal waste thermostats

are subject to the same basic

requirements as persons managing other

universal wastes: Requirements for

small and large quantity handlers,

transporters, and destination facilities.

Specific waste management

requirements have been added to the

small and large quantity handler

sections to address one commenter’s

concerns about ampule removal.

A manufacturer of thermostats who is

developing a ‘‘take back’’ program for

mercury-containing thermostats did

suggest that some modifications to the

waste management requirements

proposed for batteries were necessary to

reflect differences between the proposed

waste mercury thermostat recycling

program and procedures envisioned for

battery recycling programs. The

commenter expressed concerns as to

whether the waste management

provisions proposed for universal waste

batteries would be sufficiently

protective of human health and the

environment if applied to the

management of mercury-containing

thermostats. Commenters recommended

that for safety reasons, such removal
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25525

should only be performed by trained

personnel in a setting where appropriate

health and safety measures have been

instituted.

Paragraph (c) of §§ 273.13 and 273.33

include requirements applicable to

handlers of used mercury-containing

thermostats. Subsection (c)(1) requires a

universal waste handler to contain any

universal waste thermostat that is

leaking in a non-leaking container.

Subsection (c)(2) sets forth requirements

for universal waste handlers who

remove mercury-containing ampules

from thermostats. These requirements,

based on controls suggested by the

commenter, are designed to ensure that

ampule removal is conducted in a safe

and environmentally protective manner.

First, the handler must remove the

ampules in a manner designed to

prevent breakage of the ampules.

Second, he must remove the ampules

only over or in a containment device

(e.g., tray or pan sufficient to contain

any mercury released from an ampule in

case of breakage). Third, he must ensure

that a mercury clean-up system is

readily available to immediately transfer

any mercury resulting from spills or

leaks from broken ampules, from the

containment device to a container that

meets the requirements of 40 CFR

262.34. Fourth, he must immediately

transfer any mercury resulting from

spills or leaks from broken ampules

from the containment device to a

container that meets the requirements of

40 CFR 262.34. Fifth, he must ensure

that the area in which ampules are

removed is well ventilated and

monitored to ensure compliance with

applicable OSHA exposure levels for

mercury. Sixth, he must ensure that

employees removing ampules are

thoroughly familiar with proper waste

mercury handling and emergency

procedures, including transfer of

mercury from containment devices to

appropriate containers. Seventh, he

must accumulate removed ampules in

closed, non-leaking containers that are

in good condition (no severe rusting,

apparent structural defects, or

deterioration); and finally, eighth, he

must pack removed ampules in the

container with packing materials

adequate to prevent breakage during

accumulation, handling, and

transportation. Handlers not complying

with these requirements for ampule

removal are not managing universal

waste, and are not subject to part 273.

They are subject to the full hazardous

waste requirement of parts 262 through

270. The Agency believes that these

procedures ensure that the handler is

removing the mercury ampule from the

thermostat casing in a manner designed

to prevent breakage of the ampules and

to ensure proper containment of any

spilled or leaked mercury.

The Agency recognizes that in some

cases, spills or leaks resulting from

ampule removal may occur. Thus, the

Agency has added paragraph (c)(3) in

§§ 273.13 and 273.33 to address

concerns related to mercury residuals

generated as a result of removal of

mercury ampules from the thermostats.

If spillage or leakage of mercury from a

broken ampule or during ampule

removal occurs, the handler must

contain any universal waste thermostat

that is leaking in a non-leaking

container. A universal waste handler

must determine whether such spillage

or leakage exhibits a characteristic of

hazardous waste. If the waste does

exhibit a characteristic of hazardous

waste, the handler is considered the

generator of the mercury resulting from

spills or leaks and is subject to all

applicable requirements of 40 CFR parts

260 through 272, including 40 CFR part

262.

Similar to the battery waste

management requirements, the handler

must also determine whether or not any

other solid waste (e.g., thermostat

casing) generated during management

activities exhibits a characteristic of

hazardous waste. If the generated waste

does exhibit a characteristic of

hazardous waste, it must be managed

under the hazardous waste management

requirements mentioned above. If,

however, the generated waste does not

exhibit a characteristic of hazardous

waste, it is not subject to the hazardous

waste requirements, nor is it subject to

the requirements of part 273. This waste

is, however, required to be handled in

compliance with applicable solid waste

regulations and the handler may manage

the waste in any way that is in

compliance with applicable federal,

state or local solid waste regulations.

The Agency believes the specific

requirements for ampule removal

address the commenter’s concerns

regarding the improper removal of used

mercury-containing ampules and ensure

that such activities are safe and

environmentally protective.

The Agency clarifies that if a handler

determines that some waste he or she is

managing as universal waste is actually

not hazardous waste (and thus by

definition is not universal waste), and it

is therefore not required to be managed

under the hazardous waste regulations,

including the universal waste

regulations. For example, a handler who

receives shipments of mixed battery

types may sort the batteries to separate

the various battery chemistries. If one of

the sorted battery types does not exhibit

any characteristics of hazardous waste,

it is not a hazardous waste and the

handler may wish to manage it outside

of the hazardous waste regulations.

IV.E.4. Labeling/Marking

In response to suggestions from

commenters that the Agency include

marking and labeling requirements in

the part 273 regulations, the Agency has

decided to implement marking and

labeling requirements that were not

proposed. Although commenters agreed

that some form of labeling and marking

requirement be required, commenters’

recommendations on methods used to

identify the materials contained within

the tanks or containers differed. For

example, one commenter suggested that

EPA should require that all tanks or

containers be marked with the words

‘‘hazardous waste’’, ‘‘hazardous

material’’ or ‘‘waste destined for

recycling’’. Another recommended that

if the intent of the universal waste rule

is to divert wastes into the recycle

stream, the waste should not be labelled

‘‘universal hazardous waste’’, but

simply ‘‘Universal Waste.’’

Under the final rule, labeling and

marking requirements for universal

waste have been included to identify the

types of universal waste being managed.

The Agency has added labeling and

marking requirements for universal

waste batteries, universal waste

mercury-containing thermostats, and

universal waste pesticides. The labeling

requirements vary depending on the

type of waste. These requirements are

found in §§ 273.14 and 273.34 of the

final rule. Paragraph (a) of these sections

discusses the marking and labeling

requirements for universal waste

batteries. Under the final rule, a

universal handler managing batteries at

his facility is required to label each

individual universal waste item or

container holding the universal waste

with the words ‘‘Universal Waste—

Battery(ies)’’, or ‘‘Waste Battery(ies)’’, or

‘‘Used Battery(ies).’’ Similarly, a

universal waste handler managing used

mercury-containing thermostats under

part 273 must label each universal waste

item or container holding these

universal wastes, with the words

‘‘Universal Waste—Mercury

Thermostat(s)’’ or ‘‘Waste Mercury

Thermostat(s)’’ or ‘‘Used Mercury

Thermostat(s).’’ These requirements are

in paragraph (d) of §§ 273.14 and 273.34

of the final rule.

Labeling and marking requirements

similar to those described above for

universal waste batteries and

thermostats apply also to universal

waste pesticides. Thus, a person

managing universal pesticides must
25526 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

mark or label his containers with the

words ‘‘Universal Waste—Pesticide(s)’’

or ‘‘Waste—Pesticide(s).’’ Refer to

§ 273.14(c)(2) or § 273.34(c)(2).

However, because there are many types

of pesticides posing different

management issues, the Agency has

decided to require more specific

labeling for pesticides in addition to the

more general label discussed above. Due

to differences in management practices

between universal waste pesticides that

are a part of a recall and pesticides that

are a part of a state approved collection

program, the requirements for each type

of pesticide are different. Universal

waste handlers managing recalled

pesticides are required to mark or label

tanks or containers holding the recalled

pesticide with the original FIFRA label

that would be required under FIFRA if

the pesticide were a product (refer to

§ 273.14(b)(1)). While pesticides in a

recall may be located at the individual

user level, a larger volume is likely to

be recalled from the dealer/retailer

level. Pesticides shipped to dealers by

producers are often sent in multiple

container package units. For example,

individual containers may be shipped

grouped together in cartons and/or

palleted and shrink-wrapped in plastic.

This extra packaging (e.g., shrink-wrap,

carton) typically is removed only at the

time of sale. In the recall process, these

multiple container package units would

normally be shipped back intact. To

require pesticide containers to be

individually labeled as waste pesticides

would require the dealer to break open

such multiple package units to access

the individual containers. EPA believes

it is unnecessary to require that such

multiple container package units be

individually labeled merely for the

purpose of being shipped to another

universal waste handler as part of a

recall. Accordingly, 40 CFR 273.14(b)

permits the required label or marking to

be placed on the outer packaging of

multiple container packaged units.

On the other hand, unused pesticides

that are universal wastes are typically

products whose registration has been

cancelled, which are no longer

marketed, or no longer used by the

farmer. Existing stocks often remain at

the user level for extended times,

sometimes years, because there is no

formal recall in these circumstances.

State collection programs are intended

to collect and properly dispose of such

wastes from the user level and rarely

collect from the retail level as with a

recall. Thus, the initial universal waste

handler is a user typically having only

single containers of pesticides whose

labels may not be available or may have

deteriorated due to adverse conditions

or over time.

Universal waste handlers managing

unused pesticide products that are

collected and managed as part of a

waste pesticide collection program have

several options for labeling tanks and

containers. The first option is to label

the pesticide tank or container with a

label that was on the accompanied

product as sold or distributed, if still

legible. Refer to §§ 273.14(c)(1)(i) or

273.34(c)(1)(i).

The Agency notes that this is the ideal

labeling option for unused pesticide

products, but the Agency also

recognizes that the FIFRA label for the

unused pesticide products may not be a

realistic option because such a label

may not be available. As an alternative,

the Agency has developed additional

labeling options under

§§ 273.14(c)(1)(ii) and (iii) and

273.34(c)(1)(ii) and (iii).

The second option requires that

handlers mark or label the container or

containing unit with a label required by

the Department of Transportation under

49 CFR part 172. If neither of these

options are possible, the final option is

to use another label that is approved in

advance by the collection program. The

Agency believes that these labeling and

marking requirements will provide

sufficient information to ensure that

universal waste pesticides can be

managed in a safe and environmentally

protective manner, yet provides

sufficient flexibility for universal

handlers who are users or dealers,

without requiring undue cost or burden

of labeling.

IV.E.5. Accumulation Time

Requirements

The final accumulation time

requirements for small and large

quantity handlers of universal waste are

found in §§ 273.15 and 273.35 of this

final rule. In the proposed universal

waste rule, generators and consolidation

points were prohibited from

accumulating universal waste for longer

than one year from the date the

universal waste was generated, or

received from another facility.

Generators and consolidation points

were also required to document that

universal wastes were not accumulated

for longer than this time. See proposed

§§ 273.11(b) and 273.21(c). This

accumulation time limitation was

designed to implement, for universal

wastes, a statutory prohibition that is

part of the 1984 Hazardous and Solid

Waste Amendments to RCRA (section

3004j). Pursuant to the Land Disposal

Restrictions (LDR) provisions of the

Hazardous and Solid Waste

Amendments of 1984 (HSWA), all

hazardous wastes listed or identified in

accordance with RCRA section 3001 are

prohibited, on specified timetables,

from land disposal. The regulations for

the LDR program in 40 CFR part 268

apply to persons who generate or

transport hazardous waste and owners

and operators of hazardous waste

treatment, storage, and disposal

facilities, unless they are specifically

excluded from regulation in parts 261 or

268. In addition, the statutory provision

prohibits the storage of restricted

hazardous, unless the restricted

hazardous wastes are being accumulated

for the purpose of accumulating

quantities necessary for proper recovery,

treatment, or disposal. This prohibition

is currently codified for restricted

hazardous wastes in 40 CFR 268.50. For

universal wastes, the Agency proposed

to simplify this prohibition by simply

prohibiting accumulation for more than

one year. The simplified provision was

based on the assumption that the sole

reason for accumulating universal waste

for up to one year was to accumulate the

quantities necessary for proper recovery,

treatment, or disposal.

In the final rule, the Agency has

retained the proposed one year

accumulation limit, but has added an

additional provision allowing

accumulation for more than one year if

such accumulation is solely for

accumulating such quantities of

universal waste as are necessary to

facilitate proper recovery, treatment, or

disposal. See §§ 273.15(b) and 273.35(b)

of the final rule. For any accumulation

longer than one year, the handler must

be able to prove that such accumulation

is solely for accumulating quantities

necessary to facilitate proper recovery,

treatment, or disposal. Thus, under the

final rule it is assumed that any

accumulation up to one year is for this

purpose, but for any accumulation

beyond one year the handler bears the

burden of proving that accumulation is

solely for this purpose. This approach to

implementing the statutory prohibition

is taken directly from existing 40 CFR

268.50(c) (This approach has been held

to be consistent with section 3004(j).

Hazardous Waste Treatment Council v.

EPA, 886 F.2d 355, 366–68 (D.C. Circuit

Court, 1989)). The Agency believes that

this provision will ensure that any

universal waste accumulation will meet

the statutory LDR storage prohibition.

For further discussion on the LDR

program regarding its applicability to

universal waste, see Section IV.I. of the

preamble.

The Agency’s decision to revise the

accumulation prohibition is based on

numerous commenters’ arguments that
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25527

the one year accumulation limitation

was too restrictive and would not

provide enough time to accumulate

sufficient quantities of waste to facilitate

proper recovery, treatment, or disposal.

Because universal wastes are likely

generated and managed in relatively

small quantities (compared with other

industrial hazardous wastes), the

Agency recognizes that an absolute one

year accumulation limit may not be

enough time for some handlers to

accumulate sufficient quantities of

universal waste to properly recover,

treat, or dispose of the waste. The

Agency believes that the revised

accumulation time limit discussed

above will allow additional time for

accumulation when it is truly needed,

while retaining the simplified approach

to accumulation (as proposed) for the

first year.

A number of other commenters

argued that the proposed part 273

provisions should provide a provision

analogous to § 262.34(c), known as the

generator satellite accumulation

provision. Under this provision, a

generator may accumulate small

quantities of hazardous waste at or near

the point of generation before moving it

to the generator accumulation area

where accumulation time is limited to

90/180/270 days. Accumulation time is

unlimited at satellite accumulation

points. Commenters argued that

universal waste handlers should also be

allowed unlimited accumulation time

for small quantities of waste at points of

generation, and that the one year

accumulation time limit would make

the universal waste rules more

restrictive than the existing hazardous

waste generator regulations.

The Agency has decided not to add a

provision analogous to the satellite

accumulation provision to the universal

waste regulations for several reasons.

First, under the universal waste final

rule, handlers may already manage their

wastes very similarly to management

under the satellite accumulation

provision. For example, the proposed

and final universal waste regulations do

not limit the location, or number of

locations, at which a handler of

universal waste may accumulate

universal wastes. Thus a handler may

continue to accumulate universal wastes

at points of generation. A handler may

accumulate these wastes for up to one

year (which is two or four times longer

than the 90 or 180 days allowed under

the existing hazardous waste generator

regulations), and under the revised final

regulation a handler may accumulate

universal waste for longer than one year

if certain conditions are met. Further,

the quantity of universal waste that can

be accumulated at a point of generation

is not limited to 55 gallons (a handler

of universal waste must notify, however,

if the total quantity of universal wastes

accumulated on-site equals or exceeds

the 5,000 kilogram notification limit).

The only substantive additional

requirement under the universal waste

rule will be to mark or label the

container (or use an alternate method) to

document the earliest date any universal

waste accumulated at the location

became a waste.

Second, although the time limit may

appear to be a constraint when

compared to the satellite accumulation

provision, with the revision discussed

above, handlers of universal waste who

need to accumulate wastes for more

than one year to facilitate proper

recovery, treatment, or disposal will

have the option to do so. The handler,

however, bears the burden of proving

that such activity is solely for the

purpose of accumulation of such

quantities of universal waste as

necessary to facilitate proper recovery,

treatment, or disposal. In addition, the

Agency points out that the existing

satellite accumulation provisions are

available only to regulated generators

who have EPA identification numbers

and are complying with the full part 262

requirements including 90- or 180-day

accumulation time limits 40 CFR 262.34

accumulation unit standards, biennial

reports, and manifests. The Agency does

not believe it would be appropriate to

allow unlimited accumulation time for

handlers of universal waste who are not

required to comply with the part 262

controls, but are instead following the

streamlined requirements of the

universal waste regulations.

Third, the Agency points out that one

of its major goals in developing the

universal waste regulations is to make

the regulation clear and easy to work

with for both the regulated community

and implementing agencies. The Agency

believes that having one consistent time

limit for all universal waste managed at

one site is important to this goal. The

Agency also notes that handlers of

universal waste who generate extremely

small quantities of hazardous waste

(<100 kg per month) would, under the

final rule, still have the option to

manage their wastes under the

Conditionally Exempt Small Quantity

Generator provisions of 40 CFR 261.5

rather than the universal waste

regulations (or the full Subtitle C

regulations).

IV.E.6. Employee Training

The final employee training

requirements for small and large

handlers of universal waste are found in

§§ 273.16 and 273.36 of this final rule.

In the proposed rule, the Agency

proposed to require that generators and

consolidation points provide basic

training on waste handling and

emergency response procedures. The

Agency requested comment on whether

these requirements should be further

reduced or eliminated.

The Agency has decided to retain

these training requirements in the final

rule for all large quantity handlers of

hazardous waste. Thus, large quantity

handlers of universal waste must ensure

that all employees are thoroughly

familiar with proper waste handling and

emergency procedures related to their

responsibilities during normal facility

operations and emergencies. Small

quantity handlers of universal waste,

however, are subject to a less

burdensome requirement. Small

quantity handlers of universal waste

must inform all employees that handle

or have responsibilities for managing

universal waste. The information must

include proper handling and emergency

procedures appropriate to the type(s) of

universal waste managed at the facility.

Although most commenters supported

EPA’s proposed requirements for basic

training of personnel regarding potential

safety hazards posed by universal waste,

a number of commenters recommended

that the Agency adopt a two-tier

approach for training requirements.

These commenters argued that

dissemination of safety instructions

would be sufficient training for

employees at front-line collection

centers, and the more comprehensive

training requirements should apply only

to larger consolidation points, because

the consolidation point will be handling

large quantities of universal waste while

small front-line collectors will manage

only small quantities, often in a retail

setting.

The Agency believes the final rule

mirrors the commenter’s

recommendations in that the level of

training required for small quantity

handlers of universal waste is less

stringent than that for large quantity

handlers of universal waste. The Agency

agrees with commenters that the level of

training should be greater for people

who handle larger quantities of

universal waste.

Other commenters argued that the

cost of implementing a training program

as proposed would be unduly

burdensome. Although the Agency

recognizes these commenter’s concerns,

the Agency believes that the employee

training requirements in the final rule

will not be too costly or burdensome for

universal waste handlers. First, in

response to these concerns, the Agency
25528 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

has reduced the training required for

small quantity handlers of universal

waste. A small quantity handler of

universal waste must inform all

employees that handle or have

responsibility for managing universal

waste. The information must include

proper handling and emergency

procedures appropriate to the type or

types of universal waste handled at the

facility. Although providing the

information through oral

communication would be allowed, the

Agency expects that brochures or

documents providing such information

have already been or will be developed

by trade associations and the

organizations running centralized

collections programs (e.g., battery

manufacturers, thermostat

manufacturers, and pesticide

registrants). Thus, small quantity

handlers of universal waste

participating in these collection

programs will be able to distribute

information of higher quality than they

would be able to produce individually

with little or no development costs.

Second, the Agency further believes

that the training requirements as

proposed will not be unduly

burdensome for large quantity handlers

of universal wastes. The Agency points

out that the employee training

requirement as proposed, and as

retained in the final rule for large

quantity handlers of universal waste,

does not require that any records be

kept for training provided to employees,

requires only that employees that have

responsibilities for managing universal

waste or for responding to emergencies

be trained, and requires only that these

employees be trained as is appropriate

for their universal waste management

responsibilities. Thus, employees who

only minimally handle universal waste

need only be trained to properly carry

out that activity and to carry out their

responsibilities, if any, in case of an

emergency. These requirements are

analogous to those currently required

for hazardous waste small quantity

generators. They basically require that

the large quantity handler of universal

waste provide sufficient training to

ensure that employees are familiar with

proper handling procedures and that

employees who would have

responsibilities during emergencies are

familiar with emergency procedures.

Finally, a number of commenters

maintained that an employee training

requirement is not necessary because

training required under other programs

provides adequate assurance that

employees will be sufficiently trained to

properly manage universal waste (e.g.,

OSHA, worker right-to-know, pesticide

licensing, etc.). The Agency continues to

believe that a basic employee training

requirement is necessary to ensure that

employees are specifically familiar with

waste handling procedures, including, if

appropriate, RCRA requirements. The

Agency notes that any training provided

under other programs that would meet

any or all of the part 273 training

requirements may be used to fulfill the

RCRA requirements. As long as the

substantive standards of the training

provisions are met, the handler has

fulfilled the training requirement. There

is no requirement that training provided

to meet the RCRA requirements be

separate from other training given to

employees.

IV.E.7. Response to Releases

The final response to releases

requirements for small and large

quantity handlers of universal waste are

found in §§ 273.17 and 273.37 of this

final rule. Under the proposed rule,

basic release response requirements

were imposed on universal waste

generators, transporters, and

consolidation points. These universal

waste collectors were required to

immediately contain all releases of or

from universal wastes, and to

appropriately manage any materials

resulting from a release (e.g., cleanup

equipment, contaminated soils, etc.).

Specifically, they were required to

determine if any of the resulting

materials were hazardous wastes, and if

so, manage them under the full

hazardous waste regulations.

In the final rule, these release

response requirements have been

retained essentially as proposed for all

collectors of universal waste. Since the

categories of collectors have been

changed in the final rule, these

requirements are now imposed on small

and large quantity handlers of universal

wastes and universal waste transporters.

Commenters who addressed this issue

overwhelmingly supported the release

response requirements as proposed.

They agreed that the requirements to

immediately contain releases and

properly manage residues were

sufficient to protect human health and

the environment from any releases of

universal waste that might occur and

that facility-wide corrective action is not

necessary for universal waste

management.

Under the final rule, as under the

proposal, destination facilities are

subject to the full hazardous waste

regulations applicable to treatment,

storage, disposal, and recycling

facilities. These regulations include

extensive release response

requirements.

One commenter argued that collectors

should be allowed to send residues from

cleanups along with universal waste to

destination facilities. The Agency

disagrees for several reasons and has not

revised the final regulation to allow this.

First, cleanup residues are likely to be

quite different in form and composition

from the universal waste they come

from. The universal waste regulations

are designed specifically for universal

wastes, and are not designed to address

the varied risks that may be posed by

cleanup residues. Thus, it is not

appropriate that subsequent collectors

manage such residues under the

universal waste regulations. Second, the

destination facility to which universal

waste is sent may not be able to, or

permitted to, treat or dispose of cleanup

residues. It is not unlikely that universal

waste destination facilities’ processes

are designed to handle universal wastes

but are not designed to handle residues

that may have very different

compositions. Thus, the final rule

retains the requirement that collectors

determine whether any residues are

hazardous waste, and if so, manage

them under the full hazardous waste

regulations.

In the preamble to the proposed rule,

the Agency noted that under the

existing hazardous waste regulations

hazardous waste facilities are subject to

facility-wide corrective action. The

Agency requested comment on whether

some form of corrective action should

be imposed on universal waste

collection facilities, which were called

consolidation points in the proposal.

The majority of commenters addressing

this issue argued that facility-wide

corrective action requirements should

not be imposed on universal waste

collectors. They contended that facilitywide corrective action is currently one

of the biggest barriers to participation in

waste management systems, and that if

these requirements are imposed on

universal waste collectors it will

prevent many people from participating

in universal waste collection systems.

The hazardous waste corrective action

requirements could thus impede

development of collection systems and

undermine the goals of the universal

waste regulations. Commenters also

pointed out that, due to the relatively

low risk nature of wastes identified as

universal wastes, as well as the release

response requirements discussed above,

corrective action for universal waste

handlers would be unnecessarily

burdensome.

Commenters also agreed that the

existing imminent hazard provisions of

RCRA section 7003 provide the Agency

sufficient authority to compel
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25529

immediate action in response to releases

if necessary. The Agency also notes that

any releases of universal waste not

cleaned up would constitute illegal

disposal, further allowing action under

RCRA. In addition, any releases of

hazardous substances above reportable

quantity (RQ) thresholds must be

reported under the Comprehensive

Environmental Response,

Compensation, and Liability Act

(CERCLA), also known as Superfund.

Since universal wastes are hazardous

wastes, and thus hazardous substances

under CERCLA, reporting for universal

waste releases is required (if over RQs).

Such reports provide notification to the

Agency concerning releases and would

thus allow the Agency to take action, if

necessary, under either RCRA or

CERCLA.

Although several commenters did

argue that facility-wide corrective action

should be imposed on universal waste

collectors, the Agency decided not to do

so in the final rule. The Agency agrees

with the commenters’ points discussed

above, and believes that on balance,

given the desire to encourage

participation in the universal waste

program, and the availability of

response to release requirements in

today’s rule (as well as additional

authorities available to impel cleanup if

necessary), the risks of impeding the

development of universal waste

collection systems outweigh the risks of

not including facility-wide corrective

action requirements. It should be noted

that under the final rule (as under the

proposal), full facility-wide corrective

action does apply to destination

facilities as part of the treatment,

storage, and disposal facility

regulations.

IV.E.8. Off-Site Shipments

The Agency has added new sections

in the final rule for small and large

quantity handlers of universal waste

and destination facilities, entitled offsite shipments. It was clear from the

comments that off-site shipments

present various issues, thus warranting

separate sections covering these issues.

The Agency has included the

requirements for off-site shipments in

subpart B (standards for small quantity

handlers of universal waste), subpart C

(standards for large quantity handlers of

universal waste), and subpart E

(destination facilities). Including these

provisions in separate off-site shipments

sections for each category of person

managing universal waste makes the

provision easy to locate, and thus makes

the entire regulation easier to follow.

The off-site shipments sections for

handlers, found at §§ 273.18 and 273.38,

address one issue discussed in the

proposal, as well as a new issue raised

by commenters. The off-site shipments

section for destination facilities, 40 CFR

273.62, addresses only the new issue

raised by commenters. These two issues

are discussed below.

First, in the proposed rule,

requirements concerning off-site

shipments of universal waste were

found in the prohibitions section of

each of the universal waste handler

categories (generator, transporter, and

consolidation point). Generators were

allowed to send universal waste only to

consolidation points, destination

facilities, or foreign destinations.

Transporters were allowed to transport

universal waste only to consolidation

points, destination facilities, or foreign

destinations. Consolidation points were

allowed to send universal waste only to

other consolidation points, destination

facilities, or foreign destinations. The

prohibitions concerning off-site

shipments, in today’s final rule, have

been moved into paragraphs (a) of 40

CFR 273.18 and 273.38, the new off-site

shipments sections, and, except as

discussed below are substantially

retained as proposed.

This off-site shipment provision has

also been revised to fit the new

categories of universal waste handlers

used in the final rule. Handlers of both

small and large quantities of universal

waste are prohibited from sending or

taking universal waste to a place other

than another universal waste handler, a

destination facility, or a foreign

destination. This change results in one

substantive difference from the

proposed prohibition. Under the

proposal, generators were prohibited

from sending universal waste to other

generators, and consolidation points

were prohibited from sending universal

waste to generators. Under the final

rule, universal waste handlers (which

include both generators and

consolidation points, classified by

quantity of waste managed rather than

by whether wastes are generated or

collected) may send waste to any other

universal waste handler.

The Agency has decided to make this

change in response to several

commenters who argued that companies

or organizations that generate universal

waste at numerous locations should not

be penalized by being categorized as

consolidation points merely because

they centralize their waste by bringing

it to one location to facilitate better

management (e.g., bringing waste from

unstaffed locations to staffed locations

where waste can be better monitored).

Under the proposed prohibition, such

consolidation could only be conducted

if the central location was categorized as

a consolidation point, which was based

only on the fact that universal waste

was transported to the location. As

discussed earlier in the section of this

preamble entitled ‘‘Universal Waste

Handlers (section IV.D.1)—Small and

Large Quantity Handlers of Universal

Waste’’, the Agency believes that the

appropriate variable for applying more

stringent requirements is the quantity of

waste managed, not whether waste is

generated on-site or received from offsite. Thus, the prohibition in the final

rule allows shipment to any universal

waste handler, and the level of

requirements applicable to any handler

(i.e., small or large quantity handler

requirements) is based purely on how

much universal waste is accumulated at

the location.

In addition, a provision has been

added to the small and large quantity

handler off-site shipments sections of

the final rule, 40 CFR 273.18(b) and

273.38(b), to clarify the language of the

proposed off-site shipment prohibition.

Several commenters exhibited some

confusion about the language ‘‘sending

or taking’’ universal waste. This

language was intended to indicate that

handlers could either contract with

someone else to transport their

universal waste or transport it

themselves. The language was not

intended to imply that handlers who

transport their own universal waste are

not subject to the transporter

requirements. In fact, the proposed

definition of transporter (which is

retained in the final rule) clearly stated

that anyone engaged in off-site

transportation of universal waste is

considered a transporter, and the

transporter requirements (proposed and

final) make it clear that any universal

waste transporter is subject to the

universal waste transporter

requirements. To clarify this point, a

paragraph (b) has been added to the offsite shipments sections of the final rule

clarifying that a handler who selftransports universal wastes off-site

becomes a universal waste transporter

for those self-transportation activities

and must comply with the universal

waste transporter requirements while

transporting the waste. (See 40 CFR

273.18(b) and 273.38(b)). Paragraph (c)

of §§ 273.18 and 273.38 have been

added to clarify that if a universal waste

being offered for off-site transportation

meets the definition of hazardous

materials under 49 CFR 171–180, the

handler of universal waste must

package, label, mark, and placard the

shipment in accordance with the

applicable Department of
25530 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

Transportation regulations under 49

CFR parts 172–180 and must prepare

the proper shipping papers. Because

persons who offer for transportation or

who transport a hazardous material

must do so in conformance with

requirements specified in the

Department of Transportation’s

Hazardous Materials Regulations, these

revisions to the regulatory text do not

constitute new requirements. Rather,

paragraph (c) serves to communicate

more clearly that applicable DOT

requirements still apply to all persons

managing universal waste.

Second, in the final rule, paragraphs

(d) through (h) have been added to the

small and large quantity handler off-site

shipments sections, and 40 CFR

273.61(a) through (d) have been added

to the destination facility requirements,

addressing a new issue raised by

commenters. Specifically, commenters

argued that consolidation points (in the

final rule referred to as either small or

large quantity handlers) should be

allowed to return shipments of

universal waste to generators (in the

final rule referred to as either small or

large quantity handlers) in cases where

generators (shipping handlers) send

materials that the collection facility

(receiving handler) is not able or

prepared to manage. The Agency agrees

with this point and reiterates that

nothing in the universal waste rule is

intended to imply that universal waste

handlers are required to accept any

particular type of universal waste, any

universal waste that they are not willing

or able to handle, or any particular

shipment of universal waste. It should

be noted, however, that there may be

other regulations that do require

handlers to accept such waste. For

example, under FIFRA regulations,

pesticide recallers are not allowed to

return pesticides that are part of a recall.

On the contrary, although persons who

choose to manage universal wastes are

subject to the applicable requirements of

part 273, no one is required to manage

any universal waste.

In response to these concerns, the

Agency has added provisions to part

273 addressing this issue of rejected

shipments. Under the final rule, both

the shipper (a small or large quantity

handler of universal waste who is

shipping universal waste to another

handler or destination facility) and the

receiving facility (a small or large

quantity handler of universal waste, or

destination facility, receiving a

shipment of universal waste from

another universal waste handler) share

certain responsibilities for the protective

handling of the universal wastes being

shipped.

In order to prevent or limit rejected

shipments, §§ 273.18(d) and 273.38(d)

of the final rule specify that a shipper

sending universal waste to a receiving

facility must ensure, before the

shipment is sent, that the receiving

facility agrees to receive the load. In

addition, §§ 273.18(e) and 273.38(e) of

the final rule specify that if the shipper

sends universal waste to another

handler or destination facility and the

shipment is rejected, the shipping

handler must receive the waste back or

agree with the receiving facility on a

destination facility to which the

shipment will be sent.

Sections 273.18(f), 273.38(f), and

273.61(b) require that if an unsuitable

shipment containing universal waste is

received, the receiving facility, in turn,

may reject the full shipment or a portion

of the shipment. Examples of unsuitable

shipments include, but are not limited

to: Universal waste that the facility is

not willing to handle (e.g., a load of

universal waste batteries that also

contains ‘‘junk rechargeable items’’; or,

universal waste that the facility is not

able to handle (e.g., universal waste

thermostats sent to a battery reclamation

facility). In such a scenario, the

receiving facility must notify the

shipper of the rejection and discuss

reshipment of the load. The receiving

facility may send the shipment back to

the original shipper or send the

shipment to a mutually agreed upon

destination facility. Finally, a handler of

universal waste who receives a

shipment of non-hazardous, nonuniversal waste may handle the waste in

any way that is in compliance with

applicable federal or state solid waste

regulations.

Commenters were also concerned

about procedures to follow if a handler

receives a shipment of hazardous waste

that is not a universal waste. Sections

273.18(g), 273.38(g), and 273.61(c) have

been added to the final rule to address

this scenario. These procedures are

actually not specific to universal waste

handlers but merely clarify what anyone

should do if they receive an illegal

shipment of hazardous waste.

Specifically, these subsections state that

should such a shipment be received, the

receiving facility must immediately

notify the appropriate regional EPA

office of the illegal shipment, and

provide the name, address, and phone

number of the shipper. The EPA

regional office will provide instructions

for managing the hazardous waste.

IV.E.9. Tracking Universal Waste

Shipments

Under the proposed universal waste

rule the use of a hazardous waste

manifest was required for some

shipments of universal wastes, but not

others. Those shipments that required

manifests also required the use of a

transporter with an EPA transporter

identification number.

More specifically, manifests were

required for shipments from

consolidation points to destination

facilities, but were not required for

shipments from generators to either

destination facilities or consolidation

points or for shipments from one

consolidation point to another. The

reasoning behind requiring manifests

only for shipments from consolidation

points to destination facilities was that

it was believed that shipments from

these ‘‘last’’ consolidation points would

be relatively larger shipments and thus

warranted a higher level of tracking and

control.

The tracking requirements in the final

rule have been substantially revised

from the proposal in response to

comments. In general, under the final

rule, manifests are not required for any

shipments of universal waste, but a

basic recordkeeping requirement has

been added to track waste shipments

arriving at and leaving from handlers of

large quantities of universal waste. In

addition, a similar provision has been

added to the destination facility

requirements to require retention of

basic documentation of universal waste

shipments arriving at destination

facilities. This basic tracking

requirement is found in §§ 273.39 and

273.62 of the final rule. The required

records may take the form of a log,

invoice, manifest, bill of lading, or other

shipping document, and are to be

maintained for three years. No specific

form is required for maintaining these

records, and the Agency believes that

standard business records that would

normally be kept by any business will

fulfill this requirement.

For each shipment of universal waste

received at or by a large quantity

handler, the record must include the

name and address of the universal waste

handler or foreign shipper from whom

the universal waste was sent; the

quantity of each type of universal waste

received (e.g., batteries, pesticides,

thermostats); and the date of receipt of

the shipment of universal waste. For

each shipment sent from a large

quantity handler, the record must

include the name and address of the

universal waste handler, destination

facility, or foreign destination to whom

the universal waste was sent; the

quantity of each type of universal waste

sent (e.g., batteries, pesticides,

thermostats); and the date the shipment

of universal waste left the facility.
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25531

It should also be noted that under the

proposal, the owner or operator of a

destination facility would have been

required to keep, for three years,

manifests documenting receipt of

shipments of universal wastes from

consolidation points. (See proposed 40

CFR 273.14(a) and 273.24(a), and

existing 40 CFR 264.71(b)(5) and

265.71(b)(5)). Records of shipments

received from generators, without

manifests, would have been required as

part of the operating record (see existing

40 CFR 264.73(b)(1) and 265.73(b)(1))

and biennial report (see existing 40 CFR

264.75(c) and (d) and 265.75(c) and (d)).

Since no manifests will be used for

shipments received by destination

facilities, the final rule requires that the

owner or operator of a destination

facility keep the same records for receipt

of universal waste shipments as those

kept by handlers of large quantities of

universal wastes. This will complete the

record of universal waste shipments,

providing documentation of receipt and

allowing comparison of outgoing

shipments from handlers against

received shipments at destination

facilities.

The Agency decided to make these

changes in the tracking requirements

based on comment received on the

issue. First, a number of commenters

opposed requiring manifests and

hazardous waste transporters for any

shipments of universal wastes, arguing

that the increased costs and

administrative burden of using

manifests and hazardous waste

transporters would be a disincentive for

collection of universal waste and would

inhibit removal of these wastes from the

municipal waste stream. Many

commenters, however, including some

of those opposing manifests, did

support some form of tracking

requirement to document transport of

universal wastes. These commenters

argued that a less burdensome tracking

requirement would not inhibit

participation, but could be used to

reduce the liability of persons managing

universal waste, increase enforceability

of the universal waste system, and

decrease potential abuses of the

streamlined universal waste

requirements. The Agency found these

arguments compelling and thus has

revised the final rule to include a basic

recordkeeping requirement for tracking,

but not to require use of manifests for

any universal waste shipments.

A number of commenters also pointed

out that the proposed approach of

requiring manifests for some shipments

but not others, based on the type of

facility originating and receiving the

shipment, was overly complex and

would be confusing to participants.

Commenters also pointed out that it is

not necessarily true that the shipments

for which manifests would have been

required would actually be larger

shipments than those for which

manifests were not required. In fact, the

requirement that manifests and

hazardous waste transporters be used

for shipments from consolidation points

to destination facilities might increase

the administrative burden and cost for

such a transportation pattern such that

more universal waste would actually be

sent directly from generators to

destination facilities, for which no

manifest would be required. It was not

the Agency’s intent to make the tracking

requirement complicated or confusing,

or to discourage the use of centralized

facilities to consolidate universal waste

if that is the most efficient way to

manage these wastes.

To address this concern about

complexity, in the final rule, the Agency

has decided to require tracking for all

shipments received by and shipped

from handlers of large quantities of

universal waste, and not to require any

tracking for handlers of small quantities

of universal wastes. The Agency

believes that this tracking requirement

is less complex than the proposed

approach because handlers generating

universal wastes will know generally

the rates at which they generate and the

procedures used for shipping these

wastes, and so will know whether they

are handlers of large or small quantities

(i.e., whether they will be accumulating

5,000 kilograms or more total of

universal waste). Similarly, handlers

collecting universal wastes will know,

based on the types of universal waste

accepted and the procedures used for

shipping these wastes, whether they are

handlers of large or small quantities.

Thus, those persons who know they are

handlers of large quantities will keep

records for all shipments received and

sent off-site, regardless of where the

shipments come from or are sent to. In

comparison, those persons who know

they are handlers of small quantities

will not be required to keep records of

any shipments, although they may, of

course, maintain any records they

believe are appropriate based on their

individual circumstances.

As discussed elsewhere in this

preamble, the Agency has decided to

require tracking (and other requirements

such as notification and more in-depth

training) only for handlers of large

quantities of universal waste. This

decision was made in order to impose

these more protective requirements only

in cases where facilities are handling

larger quantities of universal waste and

thus the risks from management of these

wastes are greater. The Agency has

decided not to impose these

requirements on handlers of small

quantities of universal waste based on

numerous commenters’ argument that

the administrative burden of tracking

would be such a strong disincentive that

retail establishments, service centers,

and other ‘‘front line’’ collectors

managing small quantities would not

participate in collection programs, thus

undermining the goal of the universal

waste program. In addition, because

these operations accumulate smaller

quantities of universal wastes, if

managed properly, they will pose less

risk than the accumulation of larger

quantities. The Agency believes that the

risk associated with management of

small quantities of universal waste is

lower than the management of larger

quantities due to the reduced amount of

waste handling involved and the lesser

chance of mismanagement

opportunities.

The Agency selected 5,000 kilograms

of accumulated waste as the cutoff for

this tracking requirement (i.e., as the

cutoff between small and large

handlers), because the universal waste

rule is designed for wastes that present

a relatively low risk during collection

(compared to other hazardous wastes),

and thus it is appropriate to have a

higher cut off limit for the tracking

requirement than applies under the full

hazardous waste regulations (i.e., the

conditionally exempt small quantity

generator accumulation limit of 1,000

kg).

Finally, in commenting on the

tracking requirements a number of

commenters suggested that the biggest

barrier to farmer’s participation in

programs to collect and properly

manage unused pesticides products is

their unwillingness to sign manifests for

the wastes. Several of these commenters

suggested that collection sites should be

identified as the generator for waste

pesticides, thus removing any

requirement that farmers act as the

generator and sign manifests. The

Agency notes that the issue of when a

material becomes a waste, and thus

potentially subject to regulation, is a

general concept that applies

consistently to all materials potentially

subject to the hazardous waste program

and is much broader than just the

universal waste rule. The Agency does

not believe it is appropriate or

defensible to try to alter that concept for

specific wastes. The final rule explains

the concept that waste pesticides

become wastes at the point the generator

decides to discard them (see § 261.33),

but this provision merely clarifies how
25532 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

the point of generation concept

imbedded in the entire hazardous waste

regulatory program applies specifically

to waste pesticides.

In response to these commenters,

however, the Agency notes that under

the final rule, manifests are not required

for universal waste shipments. Thus, the

major barrier identified to farmers’

participation in waste pesticide

collection programs has been removed.

Farmers who decide to discard

universal waste pesticides would be

considered universal waste handlers

and would be required to comply with

the small or large quantity handler

regulations, depending on the amount of

waste pesticides that they accumulate.

IV.E.10. Exports

The final export requirements for

small and large handlers of universal

waste are found in §§ 273.20 and 273.40

of this final rule. In the universal waste

proposed rule, the Agency proposed

export requirements for generators and

consolidation points managing

hazardous waste under part 273. As

proposed, a generator sending universal

waste to a foreign destination, without

first sending the waste to a

consolidation point or destination

facility, would be subject to

requirements equivalent to the existing

hazardous waste export requirements,

subpart E of part 262, even though a

manifest would not have been required.

(See proposed 40 CFR 273.15 and 40

CFR 273.25.) These requirements

included advance notification to the

receiving country and prior consent by

the receiving country before the

shipment could occur.

The Agency also proposed export

requirements for consolidation points.

However, depending upon the type of

foreign facility receiving the exported

hazardous waste (e.g., consolidation

point or destination facility), a manifest

may or may not have been required for

each shipment. Shipments from

consolidation points requiring a

manifest would have followed the

existing subpart E of part 262 export

requirements. Shipments from

consolidation points not requiring a

manifest would have followed the

export procedures for generators, which

required notification and consent

independent of a manifest.

Commenters generally supported

EPA’s proposal to adopt existing

notification and consent requirements

for exports. Thus, in the final rule,

notification and consent requirements

have been retained for all exports,

although the proposed provisions have

been revised somewhat. The revisions

are discussed below.

First, the export provisions have been

revised to apply to the new categories of

universal waste managers used in the

final rule. Generators and consolidation

points are now designated as universal

waste handlers, who are classified by

quantity of waste managed rather than

by whether wastes are generated or

collected. In addition, the export

provision applicable to each type of

participant in the universal waste

system has been moved into the

subparts of part 273 applicable to each

participant. For example, the export

requirements for handlers of small

quantities of universal waste are now

located in subpart B, which contains all

of the requirements for handlers of

small quantities.

Second, under the final rule,

manifests are not required for any

universal waste shipments (see tracking

section of preamble for more detailed

discussion). Thus, under the final rule,

all universal waste shipments will

follow procedures for notification and

consent which, as proposed, are

independent of the manifest procedures.

The Agency also notes that under the

tracking requirements of the final rule,

large quantity handlers of universal

waste are required to keep records of

where they send waste, and from where

they receive universal waste, including

foreign destinations or shippers.

In addition, commenters raised

several other issues related to exports of

universal waste. First, one commenter

noted that the proposed export

requirements did not conform to the

Organization for Economic Cooperation

and Development (OECD) Council

Decision on waste exports. The Agency

agrees, and notes that it will shortly

promulgate a rule which will revise the

relevant hazardous waste export

requirements to conform to the OECD

Council Decision. All pertinent

revisions to the universal waste final

regulations for shipments of universal

waste to and from OECD countries

pursuant to the OECD Council Decision

will be made in that rule.

Third, the Agency explained in the

proposal that it does not have the

authority under RCRA to regulate

registrants exporting suspended or

canceled and recalled pesticides to a

foreign country for use as a product. See

proposed 40 CFR 273.25(e). One

commenter argued that commercial

chemical products (e.g., recalled

pesticides exported to foreign countries)

that have been banned for use in the

United States should not be exported to

foreign countries because they will

invariably find their way back into the

United States. The commenter further

argued that if there are health or

environmental reasons for banning a

chemical in the United States, it would

undoubtedly pose an identical health or

environmental problem elsewhere.

The Agency sympathizes with the

commenter’s concerns, but reiterates

that it does not have statutory authority

under RCRA to regulate materials which

are products and not wastes. In cases

where the registrant decides to export a

suspended or canceled pesticide for use

as a product, the RCRA hazardous waste

regulations, including the export

requirements, do not apply because the

pesticide would not be a solid or

hazardous waste. To make this clear, the

final rule retains language explaining

the non-waste status of pesticides that

are to be used as products. In the final

rule, however, this language is no longer

in the export section, but has been

moved to the applicability section for

pesticides (see 40 CFR 273.3(b)(4)). This

section explains that pesticides that are

to be used, reused, or reclaimed are not

solid wastes and thus are not subject to

hazardous waste regulations, including

part 273.

The Agency notes, however, that the

requirements of FIFRA section 17(a) do

apply in such situations. These

requirements include providing notice

to the foreign purchaser that the product

is not registered for use in the United

States and cannot be sold in the United

States. The foreign purchaser must sign

a purchaser acknowledgement statement

indicating that he is aware of that fact.

A copy of the acknowledgement

statement is to be submitted to EPA and

thereafter is transmitted to an

appropriate official of the importing

country. The product to be exported

must also be packaged according to the

specifications of the foreign purchaser.

IV.F. Transporter Requirements

In the proposed part 273 regulations,

the Agency proposed five provisions

addressing requirements for transporters

of universal waste. These five

provisions included requirements for

condition of the waste, prohibitions,

waste management, storage, and

exports. The Agency requested

comment on the application and

adequacy of the transporter

requirements proposed in part 273, the

in-transit ten-day storage limit, and the

adequacy of DOT shipping requirements

and/or the need for supplemental RCRA

requirements for the transport of

universal wastes.

Today’s final rule includes

requirements for transporters in subpart

D of part 273. The standards include six

substantive sections: prohibitions, waste

management, storage time limits,

response to releases, off-site shipments,
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25533

and exports (§§ 273.50 through 273.56

of the final rule). Each section of subpart

D is discussed below.

The prohibitions for transporters are

found in § 273.51 in today’s final rule

and are essentially the same as those

presented in the proposed rule, with

one minor modification regarding offsite shipments of universal waste. In the

proposed rule, the prohibitions section

for each of the universal waste handler

categories contained requirements

concerning off-site shipments of

universal waste. This provision, in

today’s final rule, has been moved into

a new off-site shipments section

(§ 273.55); however, the requirements

have been substantially retained.

Waste management standards for

transporters are found in § 273.52 in

today’s final rule. Section 273.52

specifies that transporters must manage

universal wastes in compliance with all

applicable U.S. Department of

Transportation (DOT) regulations. In the

final rule, new text has been added in

response to comments which indicated

a lack of clarity regarding which DOT

requirements were being referenced. In

the final rule, the Agency has clarified

this matter in § 273.52 by explicitly

directing the reader to the applicable

DOT regulations at 49 CFR parts 171

through 180. In addition, the Agency

also provides the pertinent references

for the Department of Transportation’s

definition of hazardous materials (49

CFR 171.8) and the Hazardous Materials

Table (49 CFR 172.101). Adding new

text to the waste management section

for transporters clarifies the

requirements of the proposed standard

but does not add any additional

requirements.

The Agency notes that the Hazardous

Materials Regulations (HMR, 49 CFR

parts 171–180) define a hazardous waste

as any material that is subject to the

Uniform Hazardous Waste Manifest

Requirements of the U.S. Environmental

Protection Agency specified in 40 CFR

part 262. As shipments of universal

waste do not require this manifest, it is

not considered a ‘‘hazardous waste’’ by

the DOT. However, such material may

still be regulated under the defining

criteria for one or more of the DOT

hazard classes. Therefore, for any

universal waste shipments, transporters

of universal waste must decide if the

waste falls under any of the other DOT

hazard classes in order to determine if

compliance with the DOT requirements

under 49 CFR parts 171 through 180 is

required. (A discussion of the manifest

is found in the tracking section of

today’s preamble at IV.E.9.).

If the waste material does not meet

the definition in the HMR for hazardous

waste or any other type of hazardous

material, its shipping description on

shipping papers may not include a

hazard class or identification number

shown in the HMR.

Storage time limits for transporters are

found in § 273.53 of today’s final rule.

Under the proposed rule, transporters

could only store universal waste at a

transfer facility for ten days or less. This

requirement remains the same in today’s

final rule. Comments revealed some

confusion about the status of the person

handling the waste if the waste is stored

for greater than 10 days. In § 273.53(b),

the Agency has added text clarifying

that if the waste is stored for greater

than 10 days, the transporter becomes a

small or large quantity handler of

universal waste and is subject to the

applicable regulations under subparts B

or C of part 273 while storing the

universal waste.

Several commenters expressed

agreement with the 10 day in-transit

storage time limit. One commenter

argued that a longer period for storage

should be allowed, while another

commenter stated that the focus of the

rule should be on the total time for the

universal waste to reach its final

destination, not the time it is stored intransit. Commenters, however, provided

little information to justify a longer intransit storage time limit. EPA believes

that, while the total time period

required for a shipment of universal

waste to reach its specified destination

is important, the transportation phase

requires more handling of the universal

waste and presents certain exposure

scenarios not likely when only storage

of the universal waste is required.

Transportation increases handling and

movement of the waste, increased risk

of spills and releases, and a greater

likelihood of public exposure. For these

reasons, EPA is continuing to require a

ten-day storage limitation for

transporters of universal waste. As

stated above, the text in § 273.53(b) has

been revised in order to clarify that if a

transporter stores universal waste for

greater than 10 days, the transporter

becomes a small or large quantity

handler of universal waste. Under this

circumstance, the small or large

quantity handler requirements apply,

which allow for up to one year

accumulation.

The fourth section of Subpart D

contains the response to release

standards for transporters. In the final

rule, these requirements remain

essentially unaltered from those in the

proposed rule. These response to release

requirements are found in § 273.54 of

today’s rule. Section IV.E.7. of today’s

preamble contains a full discussion of

this subject.

The off-site shipment provision for

transporters is found in § 273.55 of

today’s final rule. This requirement was

located with other prohibitions in the

‘‘Transporter Requirements’’ section of

the proposed rule. In the final rule, the

Agency has moved the requirement to a

new off-site shipments section, § 273.55,

under Subpart D. This modification

makes the provision easier to locate, and

thus makes the entire regulation easier

to follow. Although the Agency has

shifted the placement of this provision,

the requirement has been substantially

retained.

Additionally, in the proposed rule,

transporters were only authorized to

transport universal waste to

consolidation points or destination

facilities. In today’s final rule, the terms

generator and consolidation point have

been redefined and replaced with small

quantity handler of universal waste and

large quantity handler of universal

waste. In today’s final rule, a transporter

may transport a shipment of universal

waste to a small quantity handler, large

quantity handler, or destination facility.

The final section of subpart D

contains the export requirements for

transporters shipping universal waste to

a foreign destination. These

requirements have been moved from the

‘‘Export Requirements’’ section of the

proposed rule and are now found in

§ 273.56 of today’s final rule. This

modification makes it easier for

transporters shipping universal waste to

a foreign destination to locate the

requirements. A full discussion of this

topic is found in section IV.E.10. of this

preamble. Again, although the Agency

has relocated this provision, the

requirement has been substantially

retained.

IV.G. Destination Facility Requirements

Under the proposed part 273

regulations, destination facilities were

referred to the current parts 264, 265,

and 270 and § 261.6(c)(2) requirements

applicable to permitted or interim status

hazardous waste treatment, storage, and

disposal (TSD) facilities, or recycling

facilities that do not store hazardous

waste prior to recycling. These sections

include notification requirements,

general facility standards, unit-specific

management standards, and permitting

requirements.

In the final rule, the requirements for

destination facilities remain

substantially unchanged, with two

minor modifications and added

provisions related to off-site shipments

and recordkeeping. The destination

facility requirements are found in
25534 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

subpart E of today’s final rule. The first

modification revises the language of

§ 273.60(a) to correlate with the revised

definition of destination facility in the

final rule. (In response to comments,

EPA has redefined destination facility to

mean ‘‘a facility that treats, disposes of,

or recycles a particular category of

universal waste, except those

management activities described in

paragraphs (a) and (c) of §§ 273.13 and

273.33. A facility at which a particular

category of universal waste is only

accumulated, is not a destination

facility for purposes of managing that

category of universal waste.’’ A full

discussion of this revision can be found

at section IV.D.3 of today’s preamble

under Universal Waste Handlers -

Destination Facilities). The second

modification is that the export

requirements applicable to destination

facilities have been moved into subpart

E, § 273.63, to make them easier for

destination facility owners and

operators to locate (see III.F.10 of this

preamble for a discussion of issues

related to Exports).

In addition to these modifications,

two additional provisions have been

added to part 273, subpart E. The first

new provision, 40 CFR 273.61, was

added in response to several

commenters who expressed concern

regarding the authority of destination

facilities to reject shipments of universal

waste and the appropriate measures to

be taken if a shipment is rejected. This

new requirement is discussed in detail

in the section of this preamble entitled

‘‘Off-site Shipments.’’

The second provision added to

subpart E of part 273, 40 CFR 273.62,

requires that the owner or operator of a

destination facility keep basic

documentation tracking universal waste

shipments that arrive at the destination

facility. Under the proposal, owners and

operators of destination facilities would

have been required to keep, for three

years, manifests documenting receipt of

shipments of universal wastes from

consolidation points. (See proposed 40

CFR 273.14(a) and 273.24(a), and

existing 40 CFR 264.71(b)(5) and

265.71(b)(5)). Records of shipments

received from generators, without

manifests, would have been required as

part of the operating record (see existing

40 CFR 264.73(b)(1) and (d) and

265.75(c) and (d)).

In the final rule, no manifests will be

used for shipments received by

destination facilities (see IV.E.9 of this

preamble for a discussion of tracking

issues). Therefore, in § 273.62 of today’s

final rule, owners and operators of

destination facilities must keep the

same records for receipt of universal

waste shipments as those kept by

handlers of large quantities of universal

wastes. Section 273.62(a) requires the

owner or operator of a destination

facility to keep a record of universal

waste received at the facility. The record

must include information on the name

and address of the universal waste

handler or foreign shipper from whom

the universal waste was sent; the

quantity of each type of universal waste

received; and the date of receipt of the

shipment of universal waste. Section

273.62(b) requires that these records be

retained for at least three years from the

date of receipt of a shipment of

universal waste. This provision will

complete the record of universal waste

shipments, providing documentation of

receipt and allowing comparison of

outgoing shipments from handlers

against received shipments at

destination facilities. No specific form is

required for maintaining these records,

and the Agency believes that standard

business records that would normally be

kept by any business will fulfill this

requirement.

Several commenters requested that

EPA relax the destination facility

requirements for recycling facilities in

order to stimulate recycling efforts.

Commenters argued that obtaining a

RCRA Permit is time consuming and

cost prohibitive and, in most cases

unprofitable for the recycling facilities.

They stated, also, that the requirement

for obtaining a RCRA part B permit is

a disincentive for recycling facilities to

accept the wastes and assume the

associated liabilities. In addition, one

commenter believed that lack of

reclamation capacity is one of the

factors limiting recycling efforts, and

that one of the principal causes of this

lack of capacity is subtitle C

requirements applicable to reclamation

facilities.

While EPA supports recycling, a

change to the requirements for

destination facilities that recycle

universal waste is beyond the scope of

this regulation which is intended to

focus on the collection phase of

universal waste management rather than

the final treatment, disposal, or

recycling phase. As discussed in the

background section of this preamble

entitled ‘‘Definition of Solid Waste Task

Force,’’ the Agency has an ongoing

effort to broadly address the question of

how hazardous waste recycling should

be regulated. Any modification of

regulatory requirements for recyclers,

including universal waste recyclers, will

be a part of this broader effort.

Therefore, in today’s final rule, the

Agency is maintaining the requirements

proposed for destination facilities that

recycle waste.

IV.H. Imports of Universal Waste

Several commenters pointed out that

the Agency did not address the issue of

imports in the proposed universal waste

rule. This was an oversight. The Agency

intended that once universal waste

entered the country it would be subject

to the same universal waste rules as any

other universal waste. To clarify this,

the final rule includes import

requirements in 40 CFR 273.70, which

is Subpart F of Part 273. Section 273.70

clarifies that universal waste that is

imported from another country must be

managed, upon entry into the country,

in compliance with the appropriate

universal waste requirements for

transporters, handlers, or destination

facilities, depending on the universal

waste management activities conducted

within the United States.

For example, if a person imports

universal waste into the United States

and only transports the imported waste

to a facility owned and operated by

someone else, he is subject to the

transporter requirements of subpart D of

part 273. However, if a person imports

universal waste into the United States

and subsequently transports the

universal waste to his own facility, the

universal waste handler is subject to the

transporter requirements for transport of

the universal waste, and to the small or

large handler requirements of subparts B

or C for management at the receiving

facility. To determine whether the

handler is a small or large quantity

handler, universal waste imported from

a foreign country is counted toward the

quantity of waste accumulated as any

other universal waste would be. If the

handler is a large quantity handler of

universal waste, he must also comply

with the tracking requirements for

receipt of shipments at 40 CFR

273.39(a). If a person imports the waste

into the United States and subsequently

transports the universal waste to his

own destination facility, he is subject to

the destination facility Subpart E

requirements for management at the

receiving facility.

IV.I. Land Disposal Restrictions

Pursuant to the Land Disposal

Restrictions (LDR) provisions of the

Hazardous and Solid Waste

Amendments of 1984 (HSWA), all

hazardous wastes listed or identified in

accordance with RCRA section 3001

require treatment prior to land disposal,

on specified timetables, from land

disposal. The regulations for the LDR

program in 40 CFR part 268 apply to

persons who generate or transport
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25535

hazardous waste and owners and

operators of hazardous waste treatment,

storage, and disposal facilities, unless

they are specifically excluded from

regulation in parts 261 or 268.

To address the LDR program for

universal wastes, the proposed

universal waste rule required that

generators, transporters, and

consolidation points managing

universal waste comply with all of the

substantive land disposal restrictions

requirements, but not the administrative

requirements. These substantive

requirements included: (1) A

prohibition on accumulating prohibited

wastes directly on the land (land

disposal); (2) a requirement to treat

wastes to meet treatment standards prior

to land disposal; (3) a prohibition on

dilution; and (4) a prohibition on waste

accumulation except for purposes of

accumulating quantities sufficient for

proper recovery, treatment or disposal.

See Universal Waste proposed rule at 58

FR 812 and 8124 for a detailed

discussion of how each of these

substantive requirements were to be

implemented for universal wastes.

Under the proposal, destination

facilities remained subject to all of the

part 268 land disposal restrictions.

Commenters overwhelmingly

supported the proposed approach of

requiring collectors of universal waste

to comply with the substantive LDR

requirements but not the LDR

administrative requirements (e.g.,

notification to all handlers of applicable

treatment standards). They agreed that

the procedural land disposal restrictions

requirements would be a significant

disincentive to persons managing

universal waste under Part 273.

Commenters also agreed that due to the

unique nature of universal wastes (i.e.,

easily identifiable, treatment standards

easily identifiable, contained), the

substantive requirements proposed

would be sufficient to ensure that the

goals of the land disposal restrictions

program are met for universal waste

managed under part 273.

Based on these comments, the final

rule generally retains the proposed

approach to ensuring that collectors of

universal waste (small and large

handlers and transporters) manage the

waste in compliance with the

substantive requirements of the LDR

program. Each of the proposed

requirements, comments received on the

proposed requirements, and any

changes made in the final rule are

discussed in detail in the sections of

this preamble addressing the specific

requirements. As in the proposal, under

the final rule, destination facilities are

required to comply with all of the Part

268 LDR requirements for universal

waste, including both the substantive

and administrative requirements. Thus,

all universal waste will be treated or

disposed of in compliance with LDR

treatment standards and the appropriate

documentation regarding such

compliance will be maintained by

destination facilities.

A number of commenters did,

however, raise specific concerns about

the proposed approach to implementing

the LDR requirements for universal

waste. These comments and changes

made to the final rule to address them

are discussed in detail in the section

IV.E.5 of this preamble, entitled

‘‘accumulation time limits.’’

IV.J. Regenerated Batteries

In the proposed rule, the Agency

requested comment on whether the

existing 40 CFR 261.6(a)(3)(ii)

exemption from regulation for used

batteries that are returned to a battery

manufacturer for regeneration should be

retained, or changed to correspond with

the changes proposed for management

of other batteries (58 FR 81250).

Although the Agency expressed concern

that having multiple special provisions

for batteries would be confusing for

regulated parties and implementing

agencies, EPA proposed to retain the

exemption to avoid disrupting the

regeneration of used batteries.

The final rule removes the 40 CFR

261.6 exemption for used batteries that

are to be regenerated, and adds a

provision at § 273.13(a) and 273.33(a)

such that facilities regenerating used

batteries are now subject to the part 273

standards for small or large quantity

handlers of universal waste, depending

on the quantity of batteries they

accumulate. In effect, this change results

in the management of batteries that are

to be regenerated together with all other

batteries under part 273 during

collection, and subjects the regeneration

facility to the same requirements as

other facilities receiving batteries but

not breaking open battery casings.

40 CFR 266.80(a) and (b) have also

been revised to clarify that lead-acid

batteries that are regenerated remain

exempt from the hazardous waste

regulations throughout the management

cycle. Since the final rule retains the

lead-acid battery provisions of 40 CFR

266.80, it is most appropriate to also

include regenerated lead-acid batteries

so that all lead-acid batteries may be

managed similarly. However, since the

activities of a regeneration facility are

more similar to a facility that

accumulates waste than a facility that

processes a waste to recover a usable

product, batteries that are regenerated

have also been exempted from the

requirements for lead-acid battery

reclamation facilities.

The Agency decided to include

regenerated batteries under part 273 for

several reasons. First, although a

number of commenters supported

retaining the exemption, several

commenters documented the confusion

that already exists concerning

applicability of the current exemption,

and several expressed concern about the

additional confusion that would be

added by having multiple provisions for

battery management. Regulating all used

batteries under the same provisions will

eliminate this confusion, making it

easier for the regulated community and

regulating agencies to implement the

battery management regulations. In

addition, regulating all hazardous waste

batteries under the same provisions will

eliminate the confusion expressed by

several commenters about how the

exemption applies in situations where

those handling the battery do not know

whether the battery is regenerable, and

thus do not know whether the battery

will be regenerated or recycled. The

applicable requirements will be the

same whether the battery is determined

to be regenerable, or is sent on for

reclamation at another facility.

Second, because the risks of

accumulating and transporting used

batteries that are to be regenerated (and

particularly those that may or may not

be regenerated) are similar to the risks

of managing any other used battery, the

two should be regulated similarly.

Because the Agency believes that the

risks are low relative to other hazardous

wastes because the battery casings

remain intact, both battery types should

be subject to the same basic

management standards included in Part

273.

Third, the Agency does not believe

that compliance with part 273

requirements will be overly burdensome

for persons managing batteries that are

to be regenerated. As discussed

previously, the requirements for

generators, transporters, and

consolidation points (which would be

applicable to regenerators) generally

consist of basic good management

practices and only require notification

or recordkeeping if large quantities of

batteries are managed. In addition, these

requirements would be applicable in

any case if a battery is determined not

to be regenerable and thus is otherwise

recycled.

Finally, the Agency decided to subject

regeneration facilities to the

requirements for small or large quantity

handlers of universal waste, depending

on the quantity accumulated) because
25536 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

the activities conducted by such

facilities are basically the same and thus

the risks are basically the same. Both

facilities accumulate batteries, but do

not damage the integrity of the battery

casings. Thus, the Agency believes that

the regulations applicable to such

facilities should be the same.

V. State Authority

A. Applicability of Rules in Authorized

States

Under section 3006 of RCRA, EPA

may authorize qualified States to

administer and enforce the RCRA

program within the State. Following

authorization, EPA retains enforcement

authority under sections 3008, 3013,

and 7003 of RCRA, although authorized

States have primary enforcement

responsibility. The standards and

requirements for authorization are

found at 40 CFR part 271.

Prior to enactment of the Hazardous

and Solid Waste Amendments of 1984

(HSWA), a State with final RCRA

authorization administered its

hazardous waste program entirely in

lieu of EPA administering the federal

program in that State. The federal

requirements no longer applied in the

authorized State, and EPA could not

issue permits for any facilities in that

State, since only the State was

authorized to issue RCRA permits.

When new, more stringent federal

requirements were promulgated or

enacted, the State was obliged to enact

equivalent authorities within specified

time frames. However, the new federal

requirements did not take effect in an

authorized State until the State adopted

the federal requirements as State law.

In contrast, under RCRA section

3006(g) (42 U.S.C. 6926(g)), which was

added by HSWA, new requirements and

prohibitions imposed under HSWA

authority take effect in authorized States

at the same time that they take effect in

unauthorized States. EPA is directed by

statute to implement these requirements

and prohibitions in authorized States,

including the issuance of permits, until

the State is granted authorization to do

so. While States must still adopt HSWA

related provisions as State law to retain

final authorization, the HSWA

provisions are implemented by EPA in

authorized States in the interim.

B. Effect on State Authorization

Today’s amendments to the hazardous

waste regulations are not effective in

authorized States since the requirements

are not being promulgated pursuant to

HSWA. Thus, the universal waste

standards are applicable as part of the

RCRA program upon the effective date

only in those States that do not have

final RCRA authorization. In authorized

States, the amendments will not be

applicable until the State revises its

program to adopt equivalent

requirements under State law and is

authorized by EPA for the amendments.

It should be noted that authorized

States are only required to modify their

programs when EPA promulgates

Federal standards that are more

stringent or broader in scope than the

existing Federal standards. Section 3009

of RCRA allows States to impose

standards more stringent than, or in

addition to those in the Federal

program. The amendments in today’s

rule are not considered to be more

stringent than the existing Federal

requirements. Therefore, authorized

States are not required to modify their

programs to adopt requirements

equivalent to the provisions contained

in today’s rule.

Even though States are not required to

adopt today’s rule, EPA strongly

encourages them to do so. In addition to

the expected benefits of the universal

waste program discussed in the

proposed and final rules, EPA also

believes that the new streamlined

approach to management of universal

wastes will contribute to more efficient

and effective State programs. For these

reasons, States are therefore urged to

adopt today’s rule and submit to EPA

the program modification for approval

in advance of, or according to, the

schedule that applies to mandatory

program revisions pursuant to 40 CFR

271.21(e).

C. Comments Regarding the Proposed

Rule

A number of commenters disagreed

with the Agency’s conclusion that the

universal waste regulations are based on

pre-HSWA authorities in RCRA.

Commenters argued that because the

universal waste regulations will further

many of the broad goals outlined in

HSWA, EPA could consider the

regulation to be part of HSWA authority.

In addition, several commenters stated

that the varying effective dates from

State to State will make participation in

multi-state universal waste collection

programs more difficult. These

commenters urged the Agency to

promulgate the rule as a HSWA rule in

order to ease these difficulties and

speed realization of the benefits of the

rule.

Several commenters suggested

specific changes to the proposed

universal waste regulations that they

argued would be more stringent than the

current hazardous waste program and

would allow the Agency to require

authorized states to adopt the universal

waste program. A number of

commenters also urged the Agency to

promulgate the existing proposed rule

as a more stringent rule ensure that

authorized States would be required to

adopt the rule, thus ensuring that it

would be effective in all States. They

again noted that having the rule

effective in some States but not others

would result in implementation

difficulties. The commenters also note

that the full benefits which could be

realized from a national universal waste

program may not be achieved if the

program is not implemented in all

States across the country.

The Agency agrees with the aim of

those commenters who wish to achieve

the uniform application of the universal

waste rule that would be possible if the

rule were to be promulgated under

HSWA authority. However, EPA

believes that the authority to promulgate

today’s amendments is not sufficiently

linked to HSWA provisions to be a rule

implementing HSWA. Thus, the Agency

believes that the appropriate authority

for promulgation of this rule is nonHSWA.

The Agency agrees with the

commenters that because the

promulgated rule is less stringent than

the current RCRA program, difficulties

may arise if the universal waste

regulations are not adopted by all States.

However, the changes necessary to make

the universal waste rule more stringent

would significantly diminish the

benefits to be gained from this rule.

Thus, because today’s rule is less

stringent than the existing requirements

for managing hazardous wastes,

authorized States are not required to

adopt the universal waste regulations.

The Agency is encouraged however,

by comments on the proposed rule

received from program offices in 28

different States. The overwhelming

response from these State agencies

demonstrates strong support for the

universal waste program. The Agency

believes that many States will modify

their current State programs to include

the provisions of the final rule, and

strongly encourages States to adopt the

universal waste regulations.

As an incentive to encourage States to

adopt the universal waste regulations,

and become authorized for them, EPA is

planning to use a streamlined

application procedure. This procedure

will reduce in scope several program

revision application components. In

addition, EPA will make electronic

versions of this rule and its associated

authorization checklists available on the

State Authorization Bulletin Board

system. The Agency believes that these
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25537

efforts, together with the

aforementioned benefits to be gained

from adopting the universal waste

regulations, will help encourage most, if

not all, States to adopt the universal

waste regulations within a reasonable

period of time.

D. Universal Waste State Authorization

Issues

1. Addition of New Universal Wastes to

State Programs

The Agency notes that States, if they

so choose, may seek authorization for

the portions of § 260.20 that address

petitions to add new universal wastes,

and for 40 CFR 260.23 and subpart G of

part 273, which address the petition

process and include the factors to be

used to evaluate petitions. The

authorization of States for the petition

process is similar in many respects to

the authorization of States for the

delisting program (see 40 CFR 260.20

and 260.22) or the variance from

classification as a solid waste (see 40

CFR 260.31).

States authorized for the petition

process would use evaluation factors

analogous to those in § 273.81 to review

petitions and make decisions as to

whether to add hazardous wastes to the

State universal waste regulations.

Management standards for these wastes

would also be developed by the State

using the criteria in subpart G of part

273. The individual wastes and

management standards would not be

subject to the authorization revision

provisions in 40 CFR 271.21, since the

State would already be authorized for

the universal waste regulations and the

regulation of hazardous wastes.

Moreover, the State rulemaking

procedures, including those addressing

public participation, are equivalent to

the rulemaking procedures EPA

employs. Of course, a State could not

approve a petition for a waste it is not

authorized to regulate as hazardous. For

example, a State could not approve a

petition for a waste that is hazardous

due to the Toxicity Characteristic (TC)

if the State is not authorized for the TC.

Although such a petition would

properly be directed to EPA for a

decision, the Agency does not expect

this situation to occur frequently.

If an authorized State adds new

hazardous wastes to its universal waste

program, management of that waste

under the universal waste regulations

would only be allowed within that State

or other States that have added the

wastes to their universal waste

regulations. Thus, the waste could be

collected and consolidated within a

State that has added a waste, but

shipments to a State where the universal

waste standards do not apply to that

waste would have to comply with the

full hazardous waste requirements (e.g.,

for transportation, manifests, interim

storage). It should be noted that States

are not required to apply for or obtain

authorization to receive and review

petitions to add new wastes. If they so

choose, States may apply for and obtain

authorization to implement the part 273

universal waste regulations other than

subpart G. These States would still have

the ability to adopt wastes that EPA

adds to its universal waste program.

2. Authorization for Individual

Universal Wastes

In order to aid expedited adoption

and authorization of as much of today’s

rule as possible, States will not be

required to apply for and obtain

authorization to implement the

universal waste program for all wastes

covered under the federal program. For

example, a State could choose to

include in its authorized program

batteries and pesticides, but not

thermostats. EPA believes that this

approach will aid quick adoption for

those States that may need to make

statutory changes to be able to

implement a universal waste program

for a particular wastestream.

To ensure that all the relevant waste

management and transportation

standards apply to a particular universal

waste, to obtain authorization for the

universal waste rule, EPA will require

States to adopt all the applicable general

standards even if they are applying for

authorization for only one universal

waste. EPA believes that this is a

rational approach to this type of

adoption, and that it will not be a

significant barrier to authorization. This

authorization policy will be reflected in

EPA’s authorization guidance on this

rule.

3. Interstate Transportation

Several commenters noted that

interstate transportation of universal

wastes will be complicated if some

States have adopted the universal waste

regulations and some have not. Similar

complications will arise if some states

add new wastes to their universal waste

regulations but other states do not add

the same wastes. The Agency believes it

is important to explain how the

regulations will apply because interstate

transportation will be necessary for

many universal wastes since there may

be only a few destination facilities that

accept and manage these wastes.

First, a waste which is subject to the

universal waste regulations may be sent

to a state where it is not a universal

waste, but it would be subject to the full

hazardous waste regulations in states

where it is not regulated as a universal

waste. In this scenario, for the portion

of the trip through the originating state,

and any other states where the waste is

a universal waste, a transporter with an

EPA identification number per 263.11

(hazardous waste transporter), or a

manifest would not be required.

However, for the portion of the trip

through the receiving state, and any

other states that do not consider the

waste to be a universal waste, a manifest

is required, and the waste must be

moved by a transporter in compliance

with 40 CFR part 263. In order for the

final transporter and the receiving

facility to fulfill their requirements

concerning the manifest (40 CFR 263.20,

263.21, 263.22, 264.71, 264.72, and

264.76 or 265.71, 265.72, and 265.76),

the initiating facility should complete a

manifest and forward it to the first

transporter to travel in a state where the

waste is not a universal waste. The

receiving facility would sign the

manifest and send a copy to the

initiating facility. EPA recommends that

the initiating facility note in block 15 of

the manifest (Special Handling

Instructions and Additional

Information) that the waste is covered

under universal waste regulations in the

initiating state but not in the receiving

facility’s state.

Second, a hazardous waste generated

in a state which does not regulate it as

a universal waste may be sent to a state

where it is a universal waste. In this

scenario, the waste must be moved by

a hazardous waste transporter while the

waste is in the generator’s state, or any

other states where it is not a universal

waste. The initiating facility would

complete a manifest and give copies to

the transporter as required under 40

CFR 262.23(a). Transportation within

the receiving state and any other states

that regulate the waste as a universal

waste would not require a manifest or

be conducted by a hazardous waste

transporter. However, it is the initiating

facility’s responsibility to ensure that

the manifest is forwarded to the

receiving facility by any non-hazardous

waste transporter and sent back to the

initiating facility by the receiving

facility. See 40 CFR 262.23 and 262.42.

EPA recommends that the generator

note in block 15 of the manifest (Special

Handling Instructions and Additional

Information) that the waste is covered

under universal waste regulations in the

receiving facility’s state but not in the

generator’s state.

Third, a waste may be transported

across a state in which it is subject to

the full hazardous waste regulations
25538 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

although other portions of the trip may

be from, through, and to states in which

it is covered under universal waste

regulations. Transport through the state

must be conducted in a hazardous waste

transporter and must be accompanied

by a manifest. In order for the

transporter to fulfill its requirements

concerning the manifest (subpart B of

part 263), the initiating facility would

complete a manifest as required under

the manifest procedures and forward it

to the first transporter to travel in a state

where the waste is not a universal

waste. The transporter would deliver

the manifest to, and obtain the signature

of either the next transporter or the

receiving facility.

As noted previously, States are not

required to adopt today’s rule. However,

EPA strongly encourages them to do so.

As more states adopt the program, not

only will this assist in achieving the

most benefits of the universal waste

program, it will also reduce the

complexity of interstate transport of

these universal wastes. In the interim,

while states are in the process of

adopting today’s rule, the Agency plans

to discuss with the states, an approach

for coordinating an interim

implementation strategy.

VI. Executive Order 12866—Regulatory

Impacts

Under Executive Order 12866 (58 FR

51735, October 4, 1993), the Agency

must determine whether a regulatory

action is ‘‘significant’’ and therefore

subject to review by the Office of

Management and Budget (OMB) and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.’’

Pursuant to the terms of the Executive

Order 12866, it has been determined

that this rule is a ‘‘significant regulatory

action’’ because it raises novel legal or

policy issues arising out of legal

mandates, the President’s priorities, or

the principles set forth in the Executive

Order. Changes made in response to

OMB suggestions or recommendations

will be documented in the public

record.

This section of the preamble

summarizes the costs (savings) and the

cost analysis of the final universal waste

regulations. Based upon the cost

analysis, the Agency’s best estimate is

that the universal waste regulations may

result in nationwide annualized savings

of approximately $76 million.

For the cost analysis, EPA estimated

the incremental cost differences

between compliance with the full RCRA

Subtitle C requirements (parts 260–272)

and the part 273 standards for universal

waste management. The universal

wastes examined for this analysis are:

vented nickel-cadmium batteries, sealed

nickel-cadmium batteries, mercuricoxide batteries, used mercurycontaining thermostats, cancelled and/

or suspended pesticides that are

recalled, and unused pesticide products

collected in a waste pesticide collection

program.

For recalled pesticides only, EPA

assumed that a national pesticide recall

producing hazardous waste would occur

once every five years. All other

universal wastes were assumed to be

generated and disposed of annually.

For each of these types of waste, the

Agency identified and estimated the

costs of all the requirements that should

result in an incremental cost difference

between the existing full RCRA Subtitle

C regulations and the part 273 Rule.

EPA reviewed how wastes would move

through the RCRA system from the

generator to the final treatment or

disposal facility under each regulatory

structure, and identified the areas where

compliance costs would differ from the

existing RCRA Subtitle C requirement

costs.

The Subtitle C requirements that

differ from those required under part

273 (and therefore produce an

incremental savings) include: Employee

training; maintenance costs for a

contingency plan; filing hazardous

waste biennial reports; manifest

completion and recordkeeping per

shipment; and Land Disposal

Restriction Notification. In addition,

shipping and disposal costs were

reduced for some of the universal

wastes because common carriers could

be used instead hazardous waste

transporters, and the one-year storage

limit under part 273 would allow

handlers to ship less often than under

the current Subtitle C and therefore take

advantage of economies of scale.

The Agency considered the annual

compliance costs that would result from

four different compliance options under

the part 273 Rule for handlers of each

type of battery and for thermostats

covered in this analysis: Shipment of

wastes by common carriers (trucks) to a

collection facility; shipping wastes

directly to a reclamation facility via

common carriers (trucks); shipment of

wastes via a parcel carrier (i.e., UPS);

and, for thermostats only, a reverse

distribution system where handlers ship

their used thermostats to Honeywell

Corporation, that then has the mercurycontaining component (ampule) of the

thermostat reclaimed by a commercial

facility.

For each type of waste handler, the

Agency identified the least-cost method

of compliance with part 273 in order to

determine the savings that would result

from handlers no longer subject to the

requirements of 40 CFR parts 262–270.

The least-cost method of compliance

with part 273 yielded annual national

cost estimates (of those elements

expected to vary between the current

RCRA Subtitle C requirements and the

part 273 requirements) of $0.3 million

for vented nickel-cadmium batteries,

$10.3 million for sealed nickel-cadmium

batteries, $1.6 million for mercuricoxide batteries, and $1.2 million for

used mercury-containing thermostats,

for an annual cost of $13.4 million for

battery and thermostat waste. Subtitle C

national annual costs (of those elements

expected to vary between the current

RCRA Subtitle C requirements and the

part 273 requirements) for battery and

thermostat waste are estimated to be

$46.2 million, resulting in an annual

savings of $32.9 million per year for

battery and thermostat waste.

For recalled pesticides, part 273 costs

(of those elements expected to vary

between the current RCRA Subtitle C

requirements and the part 273

requirements) are estimated to be $15.5

million per recall, while Subtitle C

requirement costs (of those elements

expected to vary between the full RCRA

Subtitle C requirements and the part 273

requirements) are estimated to be $230.0

million per recall, resulting in a savings

of $214.5 million per recall. Assuming

one recall every five years, and a seven

percent discount rate, the annualized

savings for recalled pesticides is $42.7

million per year.

For unused pesticide products

collected in a waste pesticide collection

program, part 273 annual costs (of those

elements expected to vary between the

current RCRA Subtitle C requirements

and the part 273 requirements) are

estimated to be $130,000, while Subtitle

C requirement costs (of those elements
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25539

expected to vary between the full RCRA

Subtitle C requirements and the part 273

requirements) are estimated to be

$360,000, resulting in an annual savings

of $230,000 per year for unused

pesticide products collected under

waste pesticide collection programs.

Summing up the savings from the

various universal wastes, the Agency’s

best estimate of the total annualized

savings of today’s rule is $76 million. A

complete discussion of the cost analysis

is available in the regulatory docket for

today’s rule.

VII. Paperwork Reduction Act

The information collection

requirements in this rule have been

approved by the Office of Management

and Budget (OMB) under the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.

and have been assigned control number

2050–0145.

This collection of information has a

reporting burden per response of 0

hours for Small Quantity Handlers of

Universal Waste, 4 minutes for Large

Quantity Handlers of Universal Waste,

and 12 hours for Destination Facilities;

and an estimated annual recordkeeping

burden averaging 1.6 hours per

respondent. These estimates include

time for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection of information.

Send comments regarding the burden

estimate or any other aspect of this

collection of information, including

suggestions for reducing this burden to

Chief, Information Policy Branch; EPA;

401 M St., SW. (Mail Code 2136);

Washington, DC 20460; and to the

Office of Information and Regulatory

Affairs, Office of Management and

Budget, Washington, DC 20503, marked

‘‘Attention: Desk Officer for EPA.’’

Display of OMB Control Numbers

EPA is also amending the table of

currently approved information

collection request (ICR) control numbers

issued by OMB for various regulations.

This amendment updates the table to

accurately display those information

requirements contained in this final

rule. This display of the OMB control

number and its subsequent codification

in the Code of Federal Regulations

satisfies the requirements of the

Paperwork Reduction Act (44 U.S.C.

3501 et seq.) and OMB’s implementing

regulations at 5 CFR part 1320.

The ICR was previously subject to

public notice and comment prior to

OMB approval. As a result, EPA finds

that there is ‘‘good cause’’ under section

553(b)(B) of the Administrative

Procedure Act (5 U.S.C. 553(b)(B)) to

amend this table without prior notice

and comment. Due to the technical

nature of the table, further notice and

comment would be unnecessary. For the

same reasons, EPA also finds that there

is good cause under 5 U.S.C. 553(d)(3).

VIII. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

of 1980, 5 U.S.C. 601 et seq., requires

federal agencies to consider ‘‘small

entities’’ throughout the regulatory

process. Section 603 of the RFA requires

an initial screening analysis to be

performed to determine whether small

entities will be affected by the

regulation. If affected small entities are

identified, regulatory alternatives must

be considered to mitigate the potential

impacts. Small entities as described in

the Act are only those ‘‘businesses,

organizations and governmental

jurisdictions subject to regulation.’’

The only entities directly subject to

today’s final rule are small and large

quantity handlers of universal waste

batteries, pesticides, and thermostats

(who generate more than 100 kilograms

of hazardous waste), and transporters

and collectors of universal waste

batteries, pesticides, and thermostats.

Conditionally exempt small quantity

generators (who generate less than 100

kilograms of hazardous waste) are not

directly subject to today’s rule. It is

likely that some small and large

quantity generators, transporters, and

collectors of universal waste would

meet the definition of ‘‘small business’’

as defined by the RFA. However, the

Agency does not have an estimate of the

number of such ‘‘small entities.’’

However, the universal waste

regulations are expected to result in net

savings to any regulated entities because

it reduces requirements overall for these

entities. Thus, since the impacts are

positive for all regulated entities,

including ‘‘small entities,’’ EPA has

determined that small regulated entities

will not be adversely impacted.

Accordingly, I hereby certify, pursuant

to 5 U.S.C. 601(b), that this rule will not

have a significant impact on a

substantial number of small entities.

IX. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995, signed

into law on March 22, 1995, EPA must

prepare a statement to accompany any

rule where the estimated costs to State,

local, or tribal governments in the

aggregate, or to the private sector, will

be $100 million or more in any one year.

Under section 205, EPA must select the

most cost-effective and least

burdensome alternative that achieves

the objective of the rule and is

consistent with statutory requirements.

Section 203 requires EPA to establish a

plan for informing and advising any

small governments that may be

significantly impacted by the rule.

EPA has determined that this rule

does not include a Federal mandate that

may result in estimated costs of $100

million or more to either State, local or

tribal governments in the aggregate, or

to the private sector.

List of Subjects

40 CFR Part 260

Administrative practice and

procedure, Confidential business

information, Hazardous materials,

Recycling, Reporting and recordkeeping,

Waste treatment or disposal.

40 CFR Part 261

Hazardous materials, Recycling,

Waste treatment and disposal.

40 CFR Part 262

Administrative practice and

procedure, Hazardous materials,

Reporting and recordkeeping.

40 CFR Parts 264 and 265

Hazardous materials, Packaging and

containers, Reporting and recordkeeping

requirements, Security measures, Surety

bonds, Waste treatment and disposal.

40 CFR Part 266

Hazardous waste, Management, Spent

lead-acid batteries.

40 CFR Part 268

Hazardous waste, Reporting and

recordkeeping requirements.

40 CFR Part 270

Hazardous materials, Packaging and

containers, Reporting and recordkeeping

requirements, Waste treatment and

disposal.

40 CFR Part 273

Hazardous materials, Packaging and

containers.

Dated: April 25, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40 of the Code of Federal

Regulations is amended as follows:

PART 9—[AMENDED]

1. In Part 9:

a. The authority citation for part 9

continues to read as follows:

Authority: 7 U.S.C. 135 et seq., 136–136y;

15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671;

21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33

U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321,
25540 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

1326, 1330, 1344, 1345 (d) and (e), 1361; E.O.

11735, 38 FR 21243, 3 CFR, 1971–1975

Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246,

300f, 300g, 300g–1, 300g–2, 300g–3, 300g–4,

300g–5, 300g–6, 300j–1, 300j–2, 300j–3, 300j–

4, 300j–9, 1857 et seq., 6901–6992k, 7401–

7671q, 7542, 9601–9657, 11023, 11048.

b. Section 9.1 is amended by adding

a new center heading and new entries

to the table to read as follows:

§ 9.1 OMB approvals under the Paperwork

Reduction Act.

* * * * *

40 CFR citation OMB control No.

* * * * *

Hazardous Waste Management

System:

General

260.23 ................................... 2050–0145

* * * * *

Standards for Universal Waste

Management:

273.14 ................................... 2050–0145

273.15 ................................... 2050–0145

273.18 ................................... 2050–0145

273.32 ................................... 2050–0145

273.34 ................................... 2050–0145

273.35 ................................... 2050–0145

273.38 ................................... 2050–0145

273.39 ................................... 2050–0145

273.61 ................................... 2050–0145

273.62 ................................... 2050–0145

273.80 ................................... 2050–0145

* * * * *

PART 260—HAZARDOUS WASTE

MANAGEMENT SYSTEM: GENERAL

1. The authority citation for part 260

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921–

6927, 6930, 6934, 6935, 6937, 6938, 6939,

and 6974.

Subpart B—Definitions

2. Section 260.10 is amended by

revising the introductory text and

adding, in alphabetical order,

definitions for ‘‘battery,’’ ‘‘destination

facility,’’ ‘‘pesticide,’’ ‘‘thermostat,’’

‘‘universal waste,’’ ‘‘universal waste

handler,’’ and ‘‘universal waste

transporter’’ to read as follows:

§ 260.10 Definitions.

When used in parts 260 through 266,

268, and 270 through 273 of this

chapter, the following terms have the

meanings given below:

* * * * *

Battery means a device consisting of

one or more electrically connected

electrochemical cells which is designed

to receive, store, and deliver electric

energy. An electrochemical cell is a

system consisting of an anode, cathode,

and an electrolyte, plus such

connections (electrical and mechanical)

as may be needed to allow the cell to

deliver or receive electrical energy. The

term battery also includes an intact,

unbroken battery from which the

electrolyte has been removed.

* * * * *

Destination facility means a facility

that treats, disposes of, or recycles a

particular category of universal waste,

except those management activities

described in paragraphs (a) and (c) of

§§ 273.13 and 273.33 of this chapter. A

facility at which a particular category of

universal waste is only accumulated, is

not a destination facility for purposes of

managing that category of universal

waste.

* * * * *

Pesticide means any substance or

mixture of substances intended for

preventing, destroying, repelling, or

mitigating any pest, or intended for use

as a plant regulator, defoliant, or

desiccant, other than any article that:

(1) Is a new animal drug under

FFDCA section 201(w), or

(2) Is an animal drug that has been

determined by regulation of the

Secretary of Health and Human Services

not to be a new animal drug, or

(3) Is an animal feed under FFDCA

section 201(x) that bears or contains any

substances described by paragraph (1) or

(2) of this definition.

* * * * *

Thermostat means a temperature

control device that contains metallic

mercury in an ampule attached to a

bimetal sensing element, and mercurycontaining ampules that have been

removed from these temperature control

devices in compliance with the

requirements of 40 CFR 273.13(c)(2) or

273.33(c)(2).

* * * * *

Universal Waste means any of the

following hazardous wastes that are

managed under the universal waste

requirements of 40 CFR part 273:

(1) Batteries as described in 40 CFR

273.2;

(2) Pesticides as described in 40 CFR

273.3; and

(3) Thermostats as described in 40

CFR 273.4.

* * * * *

Universal Waste Handler:

(1) Means:

(i) A generator (as defined in this

section) of universal waste; or

(ii) The owner or operator of a facility,

including all contiguous property, that

receives universal waste from other

universal waste handlers, accumulates

universal waste, and sends universal

waste to another universal waste

handler, to a destination facility, or to

a foreign destination.

(2) Does not mean:

(i) A person who treats (except under

the provisions of 40 CFR 273.13 (a) or

(c), or 273.33 (a) or (c)), disposes of, or

recycles universal waste; or

(ii) A person engaged in the off-site

transportation of universal waste by air,

rail, highway, or water, including a

universal waste transfer facility.

* * * * *

Universal Waste Transporter means a

person engaged in the off-site

transportation of universal waste by air,

rail, highway, or water.

* * * * *

Subpart C—Rulemaking Petitions

3. Section 260.20 paragraph (a) is

revised to read as follows:

§ 260.20 General.

(a) Any person may petition the

Administrator to modify or revoke any

provision in parts 260 through 266, 268

and 273 of this chapter. This section

sets forth general requirements which

apply to all such petitions. Section

260.21 sets forth additional

requirements for petitions to add a

testing or analytical method to part 261,

264 or 265 of this chapter. Section

260.22 sets forth additional

requirements for petitions to exclude a

waste or waste-derived material at a

particular facility from § 261.3 of this

chapter or the lists of hazardous wastes

in subpart D of part 261 of this chapter.

Section 260.23 sets forth additional

requirements for petitions to amend part

273 of this chapter to include additional

hazardous wastes or categories of

hazardous waste as universal waste.

* * * * *

4. Section 260.23 is added to read as

follows:

§ 260.23 Petitions to amend 40 CFR part

273 to include additional hazardous wastes.

(a) Any person seeking to add a

hazardous waste or a category of

hazardous waste to the universal waste

regulations of part 273 of this chapter

may petition for a regulatory

amendment under this section, 40 CFR

260.20, and subpart G of 40 CFR part

273.

(b) To be successful, the petitioner

must demonstrate to the satisfaction of

the Administrator that regulation under

the universal waste regulations of 40

CFR part 273: Is appropriate for the

waste or category of waste; will improve

management practices for the waste or

category of waste; and will improve
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25541

implementation of the hazardous waste

program. The petition must include the

information required by 40 CFR

260.20(b). The petition should also

address as many of the factors listed in

40 CFR 273.81 as are appropriate for the

waste or category of waste addressed in

the petition.

(c) The Administrator will grant or

deny a petition using the factors listed

in 40 CFR 273.81. The decision will be

based on the weight of evidence

showing that regulation under 40 CFR

part 273 is appropriate for the waste or

category of waste, will improve

management practices for the waste or

category of waste, and will improve

implementation of the hazardous waste

program.

(d) The Administrator may request

additional information needed to

evaluate the merits of the petition.

PART 261—IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

5. The authority citation for part 261

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921,

6922, and 6938.

Subpart A—General

6. Section 261.5 is amended by

revising paragraphs (c), (f)(3), and (g)(3)

to read as follows:

§ 261.5 Special requirements for

hazardous waste generated by conditionally

exempt small quantity generators.

* * * * *

(c) When making the quantity

determinations of this part and 40 CFR

part 262, the generator must include all

hazardous waste that it generates,

except hazardous waste that:

(1) Is exempt from regulation under

40 CFR 261.4(c) through (f), 261.6(a)(3),

261.7(a)(1), or 261.8; or

(2) Is managed immediately upon

generation only in on-site elementary

neutralization units, wastewater

treatment units, or totally enclosed

treatment facilities as defined in 40 CFR

260.10; or

(3) Is recycled, without prior storage

or accumulation, only in an on-site

process subject to regulation under 40

CFR 261.6(c)(2); or

(4) Is used oil managed under the

requirements of 40 CFR 261.6(a)(4) and

40 CFR part 279; or

(5) Is spent lead-acid batteries

managed under the requirements of 40

CFR part 266, subpart G; or

(6) Is universal waste managed under

40 CFR 261.9 and 40 CFR part 273.

* * * * *

(f) * * *

(3) A conditionally exempt small

quantity generator may either treat or

dispose of his acute hazardous waste in

an on-site facility or ensure delivery to

an off-site treatment, storage or disposal

facility, either of which, if located in the

U.S., is:

(i) Permitted under part 270 of this

chapter;

(ii) In interim status under parts 270

and 265 of this chapter;

(iii) Authorized to manage hazardous

waste by a State with a hazardous waste

management program approved under

part 271 of this chapter;

(iv) Permitted, licensed, or registered

by a State to manage municipal or

industrial solid waste;

(v) A facility which:

(A) Beneficially uses or reuses, or

legitimately recycles or reclaims its

waste; or

(B) Treats its waste prior to beneficial

use or reuse, or legitimate recycling or

reclamation; or

(vi) For universal waste managed

under part 273 of this chapter, a

universal waste handler or destination

facility subject to the requirements of

part 273 of this chapter.

* * * * *

(g) * * *

(3) A conditionally exempt small

quantity generator may either treat or

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

facility, either of which, if located in the

U.S., is:

(i) Permitted under part 270 of this

chapter;

(ii) In interim status under parts 270

and 265 of this chapter;

(iii) Authorized to manage hazardous

waste by a State with a hazardous waste

management program approved under

part 271 of this chapter;

(iv) Permitted, licensed, or registered

by a State to manage municipal or

industrial solid waste;

(v) A facility which:

(A) Beneficially uses or reuses, or

legitimately recycles or reclaims its

waste; or

(B) Treats its waste prior to beneficial

use or reuse, or legitimate recycling or

reclamation; or

(vi) For universal waste managed

under part 273 of this chapter, a

universal waste handler or destination

facility subject to the requirements of

part 273 of this chapter.

* * * * *

7. Section 261.6 is amended by

removing paragraph (a)(3)(ii) and

redesignating paragraphs (a)(3)(iii)

through (a)(3)(vii) as paragraphs

(a)(3)(ii) through (a)(3)(vi).

8. Section 261.9 is added to subpart

read as follows:

§ 261.9 Requirements for Universal Waste.

The wastes listed in this section are

exempt from regulation under parts 262

through 270 of this chapter except as

specified in part 273 of this chapter and,

therefore are not fully regulated as

hazardous waste. The wastes listed in

this section are subject to regulation

under 40 CFR part 273:

(a) Batteries as described in 40 CFR

273.2;

(b) Pesticides as described in 40 CFR

273.3; and

(c) Thermostats as described in 40

CFR 273.4.

PART 262—STANDARDS APPLICABLE

TO GENERATORS OF HAZARDOUS

WASTE

9. The authority citation for part 262

continues to read as follows:

Authority: 42 U.S.C. 6906, 6912(a), 6922,

6923, 6924, 6925, 6937 and 6938.

Subpart A—General

10. Section 262.10 is amended by

redesignating existing paragraphs (b)

through (f) as (c) through (g).

11. Section 262.10 is amended by

adding a new paragraph (b) to read as

follows:

§ 262.10 Purpose, scope and applicability.

* * * * *

(b) 40 CFR 261.5(c) and (d) must be

used to determine the applicability of

provisions of this part that are

dependent on calculations of the

quantity of hazardous waste generated

per month.

* * * * *

12. Section 262.11 is amended by

revising paragraph (d) to read as

follows:

§ 262.11 Hazardous waste determination.

* * * * *

(d) If the waste is determined to be

hazardous, the generator must refer to

parts 261, 264, 265, 266, 268, and 273

of this chapter for possible exclusions or

restrictions pertaining to management of

the specific waste.

PART 264—STANDARDS FOR

OWNERS AND OPERATORS OF

HAZARDOUS WASTE TREATMENT,

STORAGE, AND DISPOSAL

FACILITIES

13. The authority citation for part 264

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6924,

and 6925.
25542 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

Subpart A—General

14. Section 264.1 is amended by

adding a new paragraph (g)(11) as

follows:

§ 264.1 Purpose, scope and applicability.

* * * * *

(g) * * *

(11) Universal waste handlers and

universal waste transporters (as defined

in 40 CFR 260.10) handling the wastes

listed below. These handlers are subject

to regulation under 40 CFR part 273,

when handling the below listed

universal wastes.

(i) Batteries as described in 40 CFR

273.2;

(ii) Pesticides as described in 40 CFR

273.3; and

(iii) Thermostats as described in 40

CFR 273.4.

* * * * *

PART 265—INTERIM STATUS

STANDARDS FOR OWNERS AND

OPERATORS OF HAZARDOUS WASTE

TREATMENT, STORAGE AND

DISPOSAL FACILITIES

15. The authority citation for part 265

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6924,

6925, 6935 and 6936.

Subpart A—General

16. Section 265.1 is amended by

adding a new paragraph (c)(14) to read

as follows:

§ 265.1 Purpose, scope and applicability.

* * * * *

(c) * * *

(14) Universal waste handlers and

universal waste transporters (as defined

in 40 CFR 260.10) handling the wastes

listed below. These handlers are subject

to regulation under 40 CFR part 273,

when handling the below listed

universal wastes.

(i) Batteries as described in 40 CFR

273.2;

(ii) Pesticides as described in 40 CFR

273.3; and

(iii) Thermostats as described in 40

CFR 273.4.

* * * * *

PART 266—STANDARDS FOR THE

MANAGEMENT OF SPECIFIC

HAZARDOUS WASTES AND SPECIFIC

TYPES OF HAZARDOUS WASTE

MANAGEMENT FACILITIES

17. The authority citation for part 266

continues to read as follows:

Authority: Secs. 1006, 2002(a), 3004, and

3014 of the Solid Waste Disposal Act, as

amended by the Resource Conservation and

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

6905, 6912(a), 6924, and 6934.

Subpart G—Spent Lead Acid Batteries

Being Reclaimed

18. Section 266.80 is amended by

revising paragraphs (a) and (b) to read

as follows:

§ 266.80 Applicability and requirements.

(a) The regulations of this subpart

apply to persons who reclaim (including

regeneration) spent lead-acid batteries

that are recyclable materials (‘‘spent

batteries’’). Persons who generate,

transport, or collect spent batteries, who

regenerate spent batteries, or who store

spent batteries but do not reclaim them

(other than spent batteries that are to be

regenerated) are not subject to

regulation under parts 262 through 266

or part 270 or 124 of this chapter, and

also are not subject to the requirements

of section 3010 of RCRA.

(b) Owners or operators of facilities

that store spent lead acid batteries

before reclaiming (other than spent

batteries that are to be regenerated) them

are subject to the following

requirements.

* * * * *

PART 268—LAND DISPOSAL

RESTRICTIONS

19. The authority citation for part 268

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921,

and 6924.

Subpart A—General

20. Section 268.1 is amended by

adding paragraph (f) to read as follows:

§ 268.1 Purpose, scope and applicability.

* * * * *

(f) Universal waste handlers and

universal waste transporters (as defined

in 40 CFR 260.10) are exempt from 40

CFR 268.7 and 268.50 for the hazardous

wastes listed below. These handlers are

subject to regulation under 40 CFR part

273.

(1) Batteries as described in 40 CFR

273.2;

(2) Pesticides as described in 40 CFR

273.3; and

(3) Thermostats as described in 40

CFR 273.4.

PART 270—EPA ADMINISTERED

PERMIT PROGRAMS: THE

HAZARDOUS WASTE PERMIT

PROGRAM

21. The authority citation for part 270

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912, 6924,

6925, 6927, 6939, and 6974.

Subpart A—General Information

22. Section 270.1 is amended by

adding a new paragraph (c)(2)(viii) to

read as follows:

§ 270.1 Purpose and scope of these

regulations.

* * * * *

(c) * * *

(2) * * *

(viii) Universal waste handlers and

universal waste transporters (as defined

in 40 CFR 260.10) managing the wastes

listed below. These handlers are subject

to regulation under 40 part CFR 273.

(A) Batteries as described in 40 CFR

273.2;

(B) Pesticides as described in 40 CFR

273.3; and

(C) Thermostats as described in 40

CFR 273.4.

* * * * *

23. Title 40 of the Code of Federal

Regulations is amended by adding part

273 to read as follows:

PART 273—STANDARDS FOR

UNIVERSAL WASTE MANAGEMENT

Subpart A—General

273.1 Scope.

273.2 Applicability—batteries.

273.3 Applicability—pesticides.

273.4 Applicability—thermostats.

273.5 Applicability—household and

conditionally exempt small quantity

generator waste.

273.6 Definitions.

Subpart B—Standards for Small Quantity

Handlers of Universal Waste

273.10 Applicability.

273.11 Prohibitions.

273.12 Notification.

273.13 Waste management.

273.14 Labeling/marking.

273.15 Accumulation time limits.

273.16 Employee training.

273.17 Response to releases.

273.18 Off-site shipments.

273.19 Tracking universal waste shipments.

273.20 Exports.

Subpart C—Standards for Large Quantity

Handlers of Universal Waste

273.30 Applicability.

273.31 Prohibitions.

273.32 Notification.

273.33 Waste management.

273.34 Labeling/marking.

273.35 Accumulation time limits.

273.36 Employee training.

273.37 Response to releases.

273.38 Off-site shipments.

273.39 Tracking universal waste shipments.

273.40 Exports.

Subpart D—Standards for Universal Waste

Transporters

273.50 Applicability.

273.51 Prohibitions.

273.52 Waste management.

273.53 Accumulation time limits.
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25543

273.54 Response to releases.

273.55 Off-site shipments.

273.56 Exports.

Subpart E—Standards for Destination

facilities

273.60 Applicability.

273.61 Off-site shipments.

273.62 Tracking universal waste shipments.

Subpart F—Import requirements

273.70 Imports.

Subpart G—Petitions to Include Other

Wastes Under 40 CFR Part 273

273.80 General.

273.81 Factors for Petitions to Include

Other Wastes under 40 CFR Part 273.

Authority: 42 U.S.C. 6922, 6923, 6924,

6925, 6930, and 6937.

Subpart A—General

§ 273.1 Scope.

(a) This part establishes requirements

for managing the following:

(1) Batteries as described in 40 CFR

273.2;

(2) Pesticides as described in 40 CFR

273.3; and

(3) Thermostats as described in 40

CFR 273.4.

(b) This part provides an alternative

set of management standards in lieu of

regulation under 40 CFR parts 260

through 272.

§ 273.2 Applicability—batteries.

(a) Batteries covered under 40 CFR

part 273. (1) The requirements of this

part apply to persons managing

batteries, as described in § 273.6, except

those listed in paragraph (b) of this

section.

(2) Spent lead-acid batteries which are

not managed under 40 CFR part 266,

subpart G, are subject to management

under this part.

(b) Batteries not covered under 40

CFR part 273. The requirements of this

part do not apply to persons managing

the following batteries:

(1) Spent lead-acid batteries that are

managed under 40 CFR part 266,

subpart G.

(2) Batteries, as described in § 273.6,

that are not yet wastes under part 261

of this chapter, including those that do

not meet the criteria for waste

generation in paragraph (c) of this

section.

(3) Batteries, as described in § 273.6,

that are not hazardous waste. A battery

is a hazardous waste if it exhibits one

or more of the characteristics identified

in 40 CFR part 261, subpart C.

(c) Generation of waste batteries. (1) A

used battery becomes a waste on the

date it is discarded (e.g., when sent for

reclamation).

(2) An unused battery becomes a

waste on the date the handler decides to

discard it.

§ 273.3 Applicability—pesticides.

(a) Pesticides covered under 40 CFR

part 273. The requirements of this part

apply to persons managing pesticides,

as described in § 273.6, meeting the

following conditions, except those listed

in paragraph (b) of this section:

(1) Recalled pesticides that are:

(i) Stocks of a suspended and

canceled pesticide that are part of a

voluntary or mandatory recall under

FIFRA Section 19(b), including, but not

limited to those owned by the registrant

responsible for conducting the recall; or

(ii) Stocks of a suspended or cancelled

pesticide, or a pesticide that is not in

compliance with FIFRA, that are part of

a voluntary recall by the registrant.

(2) Stocks of other unused pesticide

products that are collected and managed

as part of a waste pesticide collection

program.

(b) Pesticides not covered under 40

CFR part 273. The requirements of this

part do not apply to persons managing

the following pesticides:

(1) Recalled pesticides described in

paragraph (a)(1) of this section, and

unused pesticide products described in

paragraph (a)(2) of this section, that are

managed by farmers in compliance with

40 CFR 262.70. (40 CFR 262.70

addresses pesticides disposed of on the

farmer’s own farm in a manner

consistent with the disposal instructions

on the pesticide label, providing the

container is triple rinsed in accordance

with 40 CFR 261.7(b)(3));

(2) Pesticides not meeting the

conditions set forth in paragraph (a) of

this section. These pesticides must be

managed in compliance with the

hazardous waste regulations in 40 CFR

parts 260 through 272;

(3) Pesticides that are not wastes

under part 261 of this chapter, including

those that do not meet the criteria for

waste generation in paragraph (c) of this

section or those that are not wastes as

described in paragraph (d) of this

section; and

(4) Pesticides that are not hazardous

waste. A pesticide is a hazardous waste

if it is listed in 40 CFR part 261, subpart

D or if it exhibits one or more of the

characteristics identified in 40 CFR part

261, subpart C.

(c) When a pesticide becomes a waste.

(1) A recalled pesticide described in

paragraph (a)(1) of this section becomes

a waste on the first date on which both

of the following conditions apply:

(i) The generator of the recalled

pesticide agrees to participate in the

recall; and

(ii) The person conducting the recall

decides to discard (e.g., burn the

pesticide for energy recovery).

(2) An unused pesticide product

described in paragraph (a)(2) of this

section becomes a waste on the date the

generator decides to discard it.

(d) Pesticides that are not wastes. The

following pesticides are not wastes:

(1) Recalled pesticides described in

paragraph (a)(1) of this section,

provided that the person conducting the

recall:

(i) Has not made a decision to discard

(e.g., burn for energy recovery) the

pesticide. Until such a decision is made,

the pesticide does not meet the

definition of ‘‘solid waste’’ under 40

CFR 261.2; thus the pesticide is not a

hazardous waste and is not subject to

hazardous waste requirements,

including this part 273. This pesticide

remains subject to the requirements of

FIFRA; or

(ii) Has made a decision to use a

management option that, under 40 CFR

261.2, does not cause the pesticide to be

a solid waste (i.e., the selected option is

use (other than use constituting

disposal) or reuse (other than burning

for energy recovery), or reclamation).

Such a pesticide is not a solid waste and

therefore is not a hazardous waste, and

is not subject to the hazardous waste

requirements including this part 273.

This pesticide, including a recalled

pesticide that is exported to a foreign

destination for use or reuse, remains

subject to the requirements of FIFRA.

(2) Unused pesticide products

described in paragraph (a)(2) of this

section, if the generator of the unused

pesticide product has not decided to

discard (e.g., burn for energy recovery)

them. These pesticides remain subject to

the requirements of FIFRA.

§ 273.4 Applicability—mercury

thermostats.

(a) Thermostats covered under 40 CFR

part 273. The requirements of this part

apply to persons managing thermostats,

as described in § 273.6, except those

listed in paragraph (b) of this section.

(b) Thermostats not covered under 40

CFR part 273. The requirements of this

part do not apply to persons managing

the following thermostats:

(1) Thermostats that are not yet wastes

under part 261 of this chapter.

Paragraph (c) of this section describes

when thermostats become wastes.

(2) Thermostats that are not hazardous

waste. A thermostat is a hazardous

waste if it exhibits one or more of the

characteristics identified in 40 CFR part

261, subpart C.

(c) Generation of waste thermostats.

(1) A used thermostat becomes a waste
25544 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

on the date it is discarded (e.g., sent for

reclamation).

(2) An unused thermostat becomes a

waste on the date the handler decides to

discard it.

§ 273.5 Applicability—household and

conditionally exempt small quantity

generator waste.

(a) Persons managing the wastes listed

below may, at their option, manage

them under the requirements of this

part:

(1) Household wastes that are exempt

under 40 CFR 261.4(b)(1) and are also of

the same type as the universal wastes

defined at 40 CFR 273.6; and/or

(2) Conditionally exempt small

quantity generator wastes that are

exempt under 40 CFR 261.5 and are also

of the same type as the universal wastes

defined at 40 CFR 273.6.

(b) Persons who commingle the

wastes described in paragraphs (a)(1)

and (a)(2) of this section together with

universal waste regulated under this

part must manage the commingled

waste under the requirements of this

part.

§ 273.6 Definitions.

Battery means a device consisting of

one or more electrically connected

electrochemical cells which is designed

to receive, store, and deliver electric

energy. An electrochemical cell is a

system consisting of an anode, cathode,

and an electrolyte, plus such

connections (electrical and mechanical)

as may be needed to allow the cell to

deliver or receive electrical energy. The

term battery also includes an intact,

unbroken battery from which the

electrolyte has been removed.

Destination facility means a facility

that treats, disposes of, or recycles a

particular category of universal waste,

except those management activities

described in § 273.13 (a) and (c) and

§ 273.33 (a) and (c). A facility at which

a particular category of universal waste

is only accumulated, is not a destination

facility for purposes of managing that

category of universal waste.

FIFRA means the Federal Insecticide,

Fungicide, and Rodenticide Act (7

U.S.C. 136–136y).

Generator means any person, by site,

whose act or process produces

hazardous waste identified or listed in

part 261 of this chapter or whose act

first causes a hazardous waste to

become subject to regulation.

Large Quantity Handler of Universal

Waste means a universal waste handler

(as defined in this section) who

accumulates 5,000 kilograms or more

total of universal waste (batteries,

pesticides, or thermostats, calculated

collectively) at any time. This

designation as a large quantity handler

of universal waste is retained through

the end of the calendar year in which

5,000 kilograms or more total of

universal waste is accumulated.

On-site means the same or

geographically contiguous property

which may be divided by public or

private right-of-way, provided that the

entrance and exit between the

properties is at a cross-roads

intersection, and access is by crossing as

opposed to going along the right of way.

Non-contiguous properties owned by

the same person but connected by a

right-of-way which he controls and to

which the public does not have access,

are also considered on-site property.

Pesticide means any substance or

mixture of substances intended for

preventing, destroying, repelling, or

mitigating any pest, or intended for use

as a plant regulator, defoliant, or

desiccant, other than any article that:

(a) Is a new animal drug under

FFDCA section 201(w), or

(b) Is an animal drug that has been

determined by regulation of the

Secretary of Health and Human Services

not to be a new animal drug, or

(c) Is an animal feed under FFDCA

section 201(x) that bears or contains any

substances described by paragraph (a) or

(b) of this section.

Small Quantity Handler of Universal

Waste means a universal waste handler

(as defined in this section) who does not

accumulate more than 5,000 kilograms

total of universal waste (batteries,

pesticides, or thermostats, calculated

collectively) at any time.

Thermostat means a temperature

control device that contains metallic

mercury in an ampule attached to a

bimetal sensing element, and mercurycontaining ampules that have been

removed from these temperature control

devices in compliance with the

requirements of 40 CFR 273.13(c)(2) or

273.33(c)(2).

Universal Waste means any of the

following hazardous wastes that are

subject to the universal waste

requirements of 40 CFR part 273:

(a) Batteries as described in 40 CFR

273.2;

(b) Pesticides as described in 40 CFR

273.3; and

(c) Thermostats as described in 40

CFR 273.4.

Universal Waste Handler:

(a) Means:

(1) A generator (as defined in this

section) of universal waste; or

(2) The owner or operator of a facility,

including all contiguous property, that

receives universal waste from other

universal waste handlers, accumulates

universal waste, and sends universal

waste to another universal waste

handler, to a destination facility, or to

a foreign destination.

(b) Does not mean:

(1) A person who treats (except under

the provisions of 40 CFR 273.13 (a) or

(c), or 273.33 (a) or (c)), disposes of, or

recycles universal waste; or

(2) A person engaged in the off-site

transportation of universal waste by air,

rail, highway, or water, including a

universal waste transfer facility.

Universal Waste Transfer Facility

means any transportation-related facility

including loading docks, parking areas,

storage areas and other similar areas

where shipments of universal waste are

held during the normal course of

transportation for ten days or less.

Universal Waste Transporter means a

person engaged in the off-site

transportation of universal waste by air,

rail, highway, or water.

Subpart B—Standards for Small

Quantity Handlers of Universal Waste

§ 273.10 Applicability.

This subpart applies to small quantity

handlers of universal waste (as defined

in 40 CFR 273.6).

§ 273.11 Prohibitions.

A small quantity handler of universal

waste is:

(a) Prohibited from disposing of

universal waste; and

(b) Prohibited from diluting or

treating universal waste, except by

responding to releases as provided in 40

CFR 273.17; or by managing specific

wastes as provided in 40 CFR 273.13.

§ 273.12 Notification.

A small quantity handler of universal

waste is not required to notify EPA of

universal waste handling activities.

§ 273.13 Waste management.

(a) Universal waste batteries. A small

quantity handler of universal waste

must manage universal waste batteries

in a way that prevents releases of any

universal waste or component of a

universal waste to the environment, as

follows:

(1) A small quantity handler of

universal waste must contain any

universal waste battery that shows

evidence of leakage, spillage, or damage

that could cause leakage under

reasonably foreseeable conditions in a

container. The container must be closed,

structurally sound, compatible with the

contents of the battery, and must lack

evidence of leakage, spillage, or damage

that could cause leakage under

reasonably foreseeable conditions.
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25545

(2) A small quantity handler of

universal waste may conduct the

following activities as long as the casing

of each individual battery cell is not

breached and remains intact and closed

(except that cells may be opened to

remove electrolyte but must be

immediately closed after removal):

(i) Sorting batteries by type;

(ii) Mixing battery types in one

container;

(iii) Discharging batteries so as to

remove the electric charge;

(iv) Regenerating used batteries;

(v) Disassembling batteries or battery

packs into individual batteries or cells;

(vi) Removing batteries from

consumer products; or

(vii) Removing electrolyte from

batteries.

(3) A small quantity handler of

universal waste who removes electrolyte

from batteries, or who generates other

solid waste (e.g., battery pack materials,

discarded consumer products) as a

result of the activities listed above, must

determine whether the electrolyte and/

or other solid waste exhibit a

characteristic of hazardous waste

identified in 40 CFR part 261, subpart

C.

(i) If the electrolyte and/or other solid

waste exhibit a characteristic of

hazardous waste, it is subject to all

applicable requirements of 40 CFR parts

260 through 272. The handler is

considered the generator of the

hazardous electrolyte and/or other

waste and is subject to 40 CFR part 262.

(ii) If the electrolyte or other solid

waste is not hazardous, the handler may

manage the waste in any way that is in

compliance with applicable federal,

state or local solid waste regulations.

(b) Universal waste pesticides. A

small quantity handler of universal

waste must manage universal waste

pesticides in a way that prevent releases

of any universal waste or component of

a universal waste to the environment.

The universal waste pesticides must be

contained in one or more of the

following:

(1) A container that remains closed,

structurally sound, compatible with the

pesticide, and that lacks evidence of

leakage, spillage, or damage that could

cause leakage under reasonably

foreseeable conditions; or

(2) A container that does not meet the

requirements of paragraph (b)(1) of this

Section, provided that the unacceptable

container is overpacked in a container

that does meet the requirements of

paragraph (b)(1) of this Section; or

(3) A tank that meets the requirements

of 40 CFR part 265 subpart J, except for

40 CFR 265.197(c), 265.200, and

265.201; or

(4) A transport vehicle or vessel that

is closed, structurally sound, compatible

with the pesticide, and that lacks

evidence of leakage, spillage, or damage

that could cause leakage under

reasonably foreseeable conditions.

(c) Universal waste thermostats. A

small quantity handler of universal

waste must manage universal waste

thermostats in a way that prevents

releases of any universal waste or

component of a universal waste to the

environment, as follows:

(1) A small quantity handler of

universal waste must contain any

universal waste thermostat that shows

evidence of leakage, spillage, or damage

that could cause leakage under

reasonably foreseeable conditions in a

container. The container must be closed,

structurally sound, compatible with the

contents of the thermostat, and must

lack evidence of leakage, spillage, or

damage that could cause leakage under

reasonably foreseeable conditions.

(2) A small quantity handler of

universal waste may remove mercurycontaining ampules from universal

waste thermostats provided the handler:

(i) Removes the ampules in a manner

designed to prevent breakage of the

ampules;

(ii) Removes ampules only over or in

a containment device (e.g., tray or pan

sufficient to collect and contain any

mercury released from an ampule in

case of breakage);

(iii) Ensures that a mercury clean-up

system is readily available to

immediately transfer any mercury

resulting from spills or leaks from

broken ampules, from the containment

device to a container that meets the

requirements of 40 CFR 262.34;

(iv) Immediately transfers any

mercury resulting from spills or leaks

from broken ampules from the

containment device to a container that

meets the requirements of 40 CFR

262.34;

(v) Ensures that the area in which

ampules are removed is well ventilated

and monitored to ensure compliance

with applicable OSHA exposure levels

for mercury;

(vi) Ensures that employees removing

ampules are thoroughly familiar with

proper waste mercury handling and

emergency procedures, including

transfer of mercury from containment

devices to appropriate containers;

(vii) Stores removed ampules in

closed, non-leaking containers that are

in good condition;

(viii) Packs removed ampules in the

container with packing materials

adequate to prevent breakage during

storage, handling, and transportation;

and

(3)(i) A small quantity handler of

universal waste who removes mercurycontaining ampules from thermostats

must determine whether the following

exhibit a characteristic of hazardous

waste identified in 40 CFR part 261,

subpart C:

(A) Mercury or clean-up residues

resulting from spills or leaks; and/or

(B) Other solid waste generated as a

result of the removal of mercurycontaining ampules (e.g., remaining

thermostat units).

(ii) If the mercury, residues, and/or

other solid waste exhibit a characteristic

of hazardous waste, it must be managed

in compliance with all applicable

requirements of 40 CFR parts 260

through 272. The handler is considered

the generator of the mercury, residues,

and/or other waste and must manage it

is subject to 40 CFR part 262.

(iii) If the mercury, residues, and/or

other solid waste is not hazardous, the

handler may manage the waste in any

way that is in compliance with

applicable federal, state or local solid

waste regulations.

§ 273.14 Labeling/marking.

A small quantity handler of universal

waste must label or mark the universal

waste to identify the type of universal

waste as specified below:

(a) Universal waste batteries (i.e., each

battery), or a container in which the

batteries are contained, must be labeled

or marked clearly with any one of the

following phrases: ‘‘Universal Waste—

Battery(ies), or ‘‘Waste Battery(ies),’’ or

‘‘Used Battery(ies);’’

(b) A container, (or multiple container

package unit), tank, transport vehicle or

vessel in which recalled universal waste

pesticides as described in 40 CFR

273.3(a)(1) are contained must be

labeled or marked clearly with:

(1) The label that was on or

accompanied the product as sold or

distributed; and

(2) The words ‘‘Universal WastePesticide(s)’’ or ‘‘Waste-Pesticide(s);’’

(c) A container, tank, or transport

vehicle or vessel in which unused

pesticide products as described in 40

CFR 273.3(a)(2) are contained must be

labeled or marked clearly with:

(1)(i) The label that was on the

product when purchased, if still legible;

(ii) If using the labels described in

paragraph (c)(1)(i) of this section is not

feasible, the appropriate label as

required under the Department of

Transportation regulation 49 CFR part

172;

(iii) If using the labels described in

paragraphs (c)(1) (i) and (ii) of this

section is not feasible, another label

prescribed or designated by the waste
25546 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

pesticide collection program

administered or recognized by a state;

and

(2) The words ‘‘Universal WastePesticide(s)’’ or ‘‘Waste-Pesticide(s).’’

(d) Universal waste thermostats (i.e.,

each thermostat), or a container in

which the thermostats are contained,

must be labeled or marked clearly with

any one of the following phrases:

‘‘Universal Waste—Mercury

Thermostat(s),’’ or ‘‘Waste Mercury

Thermostat(s),’’ or ‘‘Used Mercury

Thermostat(s)’’.

§ 273.15 Accumulation time limits.

(a) A small quantity handler of

universal waste may accumulate

universal waste for no longer than one

year from the date the universal waste

is generated, or received from another

handler, unless the requirements of

paragraph (b) of this section are met.

(b) A small quantity handler of

universal waste may accumulate

universal waste for longer than one year

from the date the universal waste is

generated, or received from another

handler, if such activity is solely for the

purpose of accumulation of such

quantities of universal waste as

necessary to facilitate proper recovery,

treatment, or disposal. However, the

handler bears the burden of proving that

such activity is solely for the purpose of

accumulation of such quantities of

universal waste as necessary to facilitate

proper recovery, treatment, or disposal.

(c) A small quantity handler of

universal waste who accumulates

universal waste must be able to

demonstrate the length of time that the

universal waste has been accumulated

from the date it becomes a waste or is

received. The handler may make this

demonstration by:

(1) Placing the universal waste in a

container and marking or labeling the

container with the earliest date that any

universal waste in the container became

a waste or was received;

(2) Marking or labeling each

individual item of universal waste (e.g.,

each battery or thermostat) with the date

it became a waste or was received;

(3) Maintaining an inventory system

on-site that identifies the date each

universal waste became a waste or was

received;

(4) Maintaining an inventory system

on-site that identifies the earliest date

that any universal waste in a group of

universal waste items or a group of

containers of universal waste became a

waste or was received;

(5) Placing the universal waste in a

specific accumulation area and

identifying the earliest date that any

universal waste in the area became a

waste or was received; or

(6) Any other method which clearly

demonstrates the length of time that the

universal waste has been accumulated

from the date it becomes a waste or is

received.

§ 273.16 Employee training.

A small quantity handler of universal

waste must inform all employees who

handle or have responsibility for

managing universal waste. The

information must describe proper

handling and emergency procedures

appropriate to the type(s) of universal

waste handled at the facility.

§ 273.17 Response to releases.

(a) A small quantity handler of

universal waste must immediately

contain all releases of universal wastes

and other residues from universal

wastes.

(b) A small quantity handler of

universal waste must determine

whether any material resulting from the

release is hazardous waste, and if so,

must manage the hazardous waste in

compliance with all applicable

requirements of 40 CFR parts 260

through 272. The handler is considered

the generator of the material resulting

from the release, and must manage it in

compliance with 40 CFR part 262.

§ 273.18 Off-site shipments.

(a) A small quantity handler of

universal waste is prohibited from

sending or taking universal waste to a

place other than another universal waste

handler, a destination facility, or a

foreign destination.

(b) If a small quantity handler of

universal waste self-transports universal

waste off-site, the handler becomes a

universal waste transporter for those

self-transportation activities and must

comply with the transporter

requirements of subpart D of this part

while transporting the universal waste.

(c) If a universal waste being offered

for off-site transportation meets the

definition of hazardous materials under

49 CFR parts 171 through 180, a small

quantity handler of universal waste

must package, label, mark and placard

the shipment, and prepare the proper

shipping papers in accordance with the

applicable Department of

Transportation regulations under 49

CFR parts 172 through 180;

(d) Prior to sending a shipment of

universal waste to another universal

waste handler, the originating handler

must ensure that the receiving handler

agrees to receive the shipment.

(e) If a small quantity handler of

universal waste sends a shipment of

universal waste to another handler or to

a destination facility and the shipment

is rejected by the receiving handler or

destination facility, the originating

handler must either:

(1) Receive the waste back when

notified that the shipment has been

rejected, or

(2) Agree with the receiving handler

on a destination facility to which the

shipment will be sent.

(f) A small quantity handler of

universal waste may reject a shipment

containing universal waste, or a portion

of a shipment containing universal

waste that he has received from another

handler. If a handler rejects a shipment

or a portion of a shipment, he must

contact the originating handler to notify

him of the rejection and to discuss

reshipment of the load. The handler

must:

(1) Send the shipment back to the

originating handler, or

(2) If agreed to by both the originating

and receiving handler, send the

shipment to a destination facility.

(g) If a small quantity handler of

universal waste receives a shipment

containing hazardous waste that is not

a universal waste, the handler must

immediately notify the appropriate

regional EPA office of the illegal

shipment, and provide the name,

address, and phone number of the

originating shipper. The EPA regional

office will provide instructions for

managing the hazardous waste.

(h) If a small quantity handler of

universal waste receives a shipment of

non-hazardous, non-universal waste, the

handler may manage the waste in any

way that is in compliance with

applicable federal, state or local solid

waste regulations.

§ 273.19 Tracking universal waste

shipments.

A small quantity handler of universal

waste is not required to keep records of

shipments of universal waste.

§ 273.20 Exports.

A small quantity handler of universal

waste who sends universal waste to a

foreign destination must:

(a) Comply with the requirements

applicable to a primary exporter in 40

CFR 262.53, 262.56(a) (1) through (4),

(6), and (b) and 262.57;

(b) Export such universal waste only

upon consent of the receiving country

and in conformance with the EPA

Acknowledgement of Consent as

defined in subpart E of part 262 of this

chapter; and

(c) Provide a copy of the EPA

Acknowledgment of Consent for the

shipment to the transporter transporting

the shipment for export.
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25547

Subpart C—Standards for Large

Quantity Handlers of Universal Waste

§ 273.30 Applicability.

This subpart applies to large quantity

handlers of universal waste (as defined

in 40 CFR 273.6).

§ 273.31 Prohibitions.

A large quantity handler of universal

waste is:

(a) Prohibited from disposing of

universal waste; and

(b) Prohibited from diluting or

treating universal waste, except by

responding to releases as provided in 40

CFR 273.37; or by managing specific

wastes as provided in 40 CFR 273.33.

§ 273.32 Notification.

(a)(1) Except as provided in

paragraphs (a) (2) and (3) of this section,

a large quantity handler of universal

waste must have sent written

notification of universal waste

management to the Regional

Administrator, and received an EPA

Identification Number, before meeting

or exceeding the 5,000 kilogram storage

limit.

(2) A large quantity handler of

universal waste who has already

notified EPA of his hazardous waste

management activities and has received

an EPA Identification Number is not

required to renotify under this section.

(3) A large quantity handler of

universal waste who manages recalled

universal waste pesticides as described

in 40 CFR 273.3(a)(1) and who has sent

notification to EPA as required by 40

CFR part 165 is not required to notify

for those recalled universal waste

pesticides under this section.

(b) This notification must include:

(1) The universal waste handler’s

name and mailing address;

(2) The name and business telephone

number of the person at the universal

waste handler’s site who should be

contacted regarding universal waste

management activities;

(3) The address or physical location of

the universal waste management

activities;

(4) A list of all of the types of

universal waste managed by the handler

(e.g, batteries, pesticides, thermostats);

(5) A statement indicating that the

handler is accumulating more than

5,000 kilograms of universal waste at

one time and the types of universal

waste (e.g, batteries, pesticides,

thermostats) the handler is

accumulating above this quantity.

§ 273.33 Waste management.

(a) Universal waste batteries. A large

quantity handler of universal waste

must manage universal waste batteries

in a way that prevents releases of any

universal waste or component of a

universal waste to the environment, as

follows:

(1) A large quantity handler of

universal waste must contain any

universal waste battery that shows

evidence of leakage, spillage, or damage

that could cause leakage under

reasonably foreseeable conditions in a

container. The container must be closed,

structurally sound, compatible with the

contents of the battery, and must lack

evidence of leakage, spillage, or damage

that could cause leakage under

reasonably foreseeable conditions.

(2) A large quantity handler of

universal waste may conduct the

following activities as long as the casing

of each individual battery cell is not

breached and remains intact and closed

(except that cells may be opened to

remove electrolyte but must be

immediately closed after removal):

(i) Sorting batteries by type;

(ii) Mixing battery types in one

container;

(iii) Discharging batteries so as to

remove the electric charge;

(iv) Regenerating used batteries;

(v) Disassembling batteries or battery

packs into individual batteries or cells;

(vi) Removing batteries from

consumer products; or

(vii) Removing electrolyte from

batteries.

(3) A large quantity handler of

universal waste who removes electrolyte

from batteries, or who generates other

solid waste (e.g., battery pack materials,

discarded consumer products) as a

result of the activities listed above, must

determine whether the electrolyte and/

or other solid waste exhibit a

characteristic of hazardous waste

identified in 40 CFR part 261, subpart

C.

(i) If the electrolyte and/or other solid

waste exhibit a characteristic of

hazardous waste, it must be managed in

compliance with all applicable

requirements of 40 CFR parts 260

through 272. The handler is considered

the generator of the hazardous

electrolyte and/or other waste and is

subject to 40 CFR part 262.

(ii) If the electrolyte or other solid

waste is not hazardous, the handler may

manage the waste in any way that is in

compliance with applicable federal,

state or local solid waste regulations.

(b) Universal waste pesticides. A large

quantity handler of universal waste

must manage universal waste pesticides

in a way that prevents releases of any

universal waste or component of a

universal waste to the environment. The

universal waste pesticides must be

contained in one or more of the

following:

(1) A container that remains closed,

structurally sound, compatible with the

pesticide, and that lacks evidence of

leakage, spillage, or damage that could

cause leakage under reasonably

foreseeable conditions; or

(2) A container that does not meet the

requirements of paragraph (b)(1) of this

section, provided that the unacceptable

container is overpacked in a container

that does meet the requirements of

paragraph (b)(1) of this section; or

(3) A tank that meets the requirements

of 40 CFR part 265 subpart J, except for

40 CFR 265.197(c), 265.200, and

265.201; or

(4) A transport vehicle or vessel that

is closed, structurally sound, compatible

with the pesticide, and that lacks

evidence of leakage, spillage, or damage

that could cause leakage under

reasonably foreseeable conditions.

(c) Universal waste thermostats. A

large quantity handler of universal

waste must manage universal waste

thermostats in a way that prevents

releases of any universal waste or

component of a universal waste to the

environment, as follows:

(1) A large quantity handler of

universal waste must contain any

universal waste thermostat that shows

evidence of leakage, spillage, or damage

that could cause leakage under

reasonably foreseeable conditions in a

container. The container must be closed,

structurally sound, compatible with the

contents of the thermostat, and must

lack evidence of leakage, spillage, or

damage that could cause leakage under

reasonably foreseeable conditions.

(2) A large quantity handler of

universal waste may remove mercurycontaining ampules from universal

waste thermostats provided the handler:

(i) Removes the ampules in a manner

designed to prevent breakage of the

ampules;

(ii) Removes ampules only over or in

a containment device (e.g., tray or pan

sufficient to contain any mercury

released from an ampule in case of

breakage);

(iii) Ensures that a mercury clean-up

system is readily available to

immediately transfer any mercury

resulting from spills or leaks from

broken ampules, from the containment

device to a container that meets the

requirements of 40 CFR 262.34;

(iv) Immediately transfers any

mercury resulting from spills or leaks

from broken ampules from the

containment device to a container that

meets the requirements of 40 CFR

262.34;
25548 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

(v) Ensures that the area in which

ampules are removed is well ventilated

and monitored to ensure compliance

with applicable OSHA exposure levels

for mercury;

(vi) Ensures that employees removing

ampules are thoroughly familiar with

proper waste mercury handling and

emergency procedures, including

transfer of mercury from containment

devices to appropriate containers;

(vii) Stores removed ampules in

closed, non-leaking containers that are

in good condition;

(viii) Packs removed ampules in the

container with packing materials

adequate to prevent breakage during

storage, handling, and transportation;

and

(3)(i) A large quantity handler of

universal waste who removes mercurycontaining ampules from thermostats

must determine whether the following

exhibit a characteristic of hazardous

waste identified in 40 CFR part 261,

subpart C:

(A) Mercury or clean-up residues

resulting from spills or leaks; and/or

(B) Other solid waste generated as a

result of the removal of mercurycontaining ampules (e.g., remaining

thermostat units).

(ii) If the mercury, residues, and/or

other solid waste exhibit a characteristic

of hazardous waste, it must be managed

in compliance with all applicable

requirements of 40 CFR parts 260

through 272. The handler is considered

the generator of the mercury, residues,

and/or other waste and is subject to 40

CFR part 262.

(iii) If the mercury, residues, and/or

other solid waste is not hazardous, the

handler may manage the waste in any

way that is in compliance with

applicable federal, state or local solid

waste regulations.

§ 273.34 Labeling/marking.

A large quantity handler of universal

waste must label or mark the universal

waste to identify the type of universal

waste as specified below:

(a) Universal waste batteries (i.e., each

battery), or a container or tank in which

the batteries are contained, must be

labeled or marked clearly with the any

one of the following phrases: ‘‘Universal

Waste—Battery(ies),’’ or ‘‘Waste

Battery(ies),’’ or ‘‘Used Battery(ies);’’

(b) A container (or multiple container

package unit), tank, transport vehicle or

vessel in which recalled universal waste

pesticides as described in 40 CFR

273.3(a)(1) are contained must be

labeled or marked clearly with:

(1) The label that was on or

accompanied the product as sold or

distributed; and

(2) The words ‘‘Universal Waste—

Pesticide(s)’’ or ‘‘Waste—Pesticide(s);’’

(c) A container, tank, or transport

vehicle or vessel in which unused

pesticide products as described in 40

CFR 273.3(a)(2) are contained must be

labeled or marked clearly with:

(1)(i) The label that was on the

product when purchased, if still legible;

(ii) If using the labels described in

paragraph (c)(1)(i) of this section is not

feasible, the appropriate label as

required under the Department of

Transportation regulation 49 CFR part

172;

(iii) If using the labels described in

paragraphs (c) (1)(i) and (1)(ii) of this

section is not feasible, another label

prescribed or designated by the

pesticide collection program; and

(2) The words ‘‘Universal Waste—

Pesticide(s)’’ or ‘‘Waste—Pesticide(s).’’

(d) Universal waste thermostats (i.e.,

each thermostat), or a container or tank

in which the thermostats are contained,

must be labeled or marked clearly with

any one of the following phrases:

‘‘Universal Waste—Mercury

Thermostat(s),’’ or ‘‘Waste Mercury

Thermostat(s),’’ or ‘‘Used Mercury

Thermostat(s).

§ 273.35 Accumulation time limits.

(a) A large quantity handler of

universal waste may accumulate

universal waste for no longer than one

year from the date the universal waste

is generated, or received from another

handler, unless the requirements of

paragraph (b) of this section are met.

(b) A large quantity handler of

universal waste may accumulate

universal waste for longer than one year

from the date the universal waste is

generated, or received from another

handler, if such activity is solely for the

purpose of accumulation of such

quantities of universal waste as

necessary to facilitate proper recovery,

treatment, or disposal. However, the

handler bears the burden of proving that

such activity was solely for the purpose

of accumulation of such quantities of

universal waste as necessary to facilitate

proper recovery, treatment, or disposal.

(c) A large quantity handler of

universal waste must be able to

demonstrate the length of time that the

universal waste has been accumulated

from the date it becomes a waste or is

received. The handler may make this

demonstration by:

(1) Placing the universal waste in a

container and marking or labeling the

container with the earliest date that any

universal waste in the container became

a waste or was received;

(2) Marking or labeling the individual

item of universal waste (e.g., each

battery or thermostat) with the date it

became a waste or was received;

(3) Maintaining an inventory system

on-site that identifies the date the

universal waste being accumulated

became a waste or was received;

(4) Maintaining an inventory system

on-site that identifies the earliest date

that any universal waste in a group of

universal waste items or a group of

containers of universal waste became a

waste or was received;

(5) Placing the universal waste in a

specific accumulation area and

identifying the earliest date that any

universal waste in the area became a

waste or was received; or

(6) Any other method which clearly

demonstrates the length of time that the

universal waste has been accumulated

from the date it becomes a waste or is

received.

§ 273.36 Employee training.

A large quantity handler of universal

waste must ensure that all employees

are thoroughly familiar with proper

waste handling and emergency

procedures, relative to their

responsibilities during normal facility

operations and emergencies.

§ 273.37 Response to releases.

(a) A large quantity handler of

universal waste must immediately

contain all releases of universal wastes

and other residues from universal

wastes.

(b) A large quantity handler of

universal waste must determine

whether any material resulting from the

release is hazardous waste, and if so,

must manage the hazardous waste in

compliance with all applicable

requirements of 40 CFR parts 260

through 272. The handler is considered

the generator of the material resulting

from the release, and is subject to 40

CFR part 262.

§ 273.38 Off-site shipments.

(a) A large quantity handler of

universal waste is prohibited from

sending or taking universal waste to a

place other than another universal waste

handler, a destination facility, or a

foreign destination.

(b) If a large quantity handler of

universal waste self-transports universal

waste off-site, the handler becomes a

universal waste transporter for those

self-transportation activities and must

comply with the transporter

requirements of subpart D of this part

while transporting the universal waste.

(c) If a universal waste being offered

for off-site transportation meets the

definition of hazardous materials under

49 CFR 171 through 180, a large
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25549

quantity handler of universal waste

must package, label, mark and placard

the shipment, and prepare the proper

shipping papers in accordance with the

applicable Department of

Transportation regulations under 49

CFR parts 172 through 180;

(d) Prior to sending a shipment of

universal waste to another universal

waste handler, the originating handler

must ensure that the receiving handler

agrees to receive the shipment.

(e) If a large quantity handler of

universal waste sends a shipment of

universal waste to another handler or to

a destination facility and the shipment

is rejected by the receiving handler or

destination facility, the originating

handler must either:

(1) Receive the waste back when

notified that the shipment has been

rejected, or

(2) Agree with the receiving handler

on a destination facility to which the

shipment will be sent.

(f) A large quantity handler of

universal waste may reject a shipment

containing universal waste, or a portion

of a shipment containing universal

waste that he has received from another

handler. If a handler rejects a shipment

or a portion of a shipment, he must

contact the originating handler to notify

him of the rejection and to discuss

reshipment of the load. The handler

must:

(1) Send the shipment back to the

originating handler, or

(2) If agreed to by both the originating

and receiving handler, send the

shipment to a destination facility.

(g) If a large quantity handler of

universal waste receives a shipment

containing hazardous waste that is not

a universal waste, the handler must

immediately notify the appropriate

regional EPA office of the illegal

shipment, and provide the name,

address, and phone number of the

originating shipper. The EPA regional

office will provide instructions for

managing the hazardous waste.

(h) If a large quantity handler of

universal waste receives a shipment of

non-hazardous, non-universal waste, the

handler may manage the waste in any

way that is in compliance with

applicable federal, state or local solid

waste regulations.

§ 273.39 Tracking universal waste

shipments.

(a) Receipt of shipments. A large

quantity handler of universal waste

must keep a record of each shipment of

universal waste received at the facility.

The record may take the form of a log,

invoice, manifest, bill of lading, or other

shipping document. The record for each

shipment of universal waste received

must include the following information:

(1) The name and address of the

originating universal waste handler or

foreign shipper from whom the

universal waste was sent;

(2) The quantity of each type of

universal waste received (e.g., batteries,

pesticides, thermostats);

(3) The date of receipt of the shipment

of universal waste.

(b) Shipments off-site. A large

quantity handler of universal waste

must keep a record of each shipment of

universal waste sent from the handler to

other facilities. The record may take the

form of a log, invoice, manifest, bill of

lading or other shipping document. The

record for each shipment of universal

waste sent must include the following

information:

(1) The name and address of the

universal waste handler, destination

facility, or foreign destination to whom

the universal waste was sent;

(2) The quantity of each type of

universal waste sent (e.g., batteries,

pesticides, thermostats);

(3) The date the shipment of universal

waste left the facility.

(c) Record retention. (1) A large

quantity handler of universal waste

must retain the records described in

paragraph (a) of this section for at least

three years from the date of receipt of

a shipment of universal waste.

(2) A large quantity handler of

universal waste must retain the records

described in paragraph (b) of this

section for at least three years from the

date a shipment of universal waste left

the facility.

§ 273.40 Exports.

A large quantity handler of universal

waste who sends universal waste to a

foreign destination must:

(a) Comply with the requirements

applicable to a primary exporter in 40

CFR 262.53, 262.56(a)(1) through (4),

(6), and (b) and 262.57;

(b) Export such universal waste only

upon consent of the receiving country

and in conformance with the EPA

Acknowledgement of Consent as

defined in subpart E of part 262 of this

chapter; and

(c) Provide a copy of the EPA

Acknowledgement of Consent for the

shipment to the transporter transporting

the shipment for export.

Subpart D—Standards for Universal

Waste Transporters

§ 273.50 Applicability.

This subpart applies to universal

waste transporters (as defined in 40 CFR

273.6).

§ 273.51 Prohibitions.

A universal waste transporter is:

(a) Prohibited from disposing of

universal waste; and

(b) Prohibited from diluting or

treating universal waste, except by

responding to releases as provided in 40

CFR 273.54.

§ 273.52 Waste management.

(a) A universal waste transporter must

comply with all applicable U.S.

Department of Transportation

regulations in 49 CFR part 171 through

180 for transport of any universal waste

that meets the definition of hazardous

material in 49 CFR 171.8. For purposes

of the Department of Transportation

regulations, a material is considered a

hazardous waste if it is subject to the

Hazardous Waste Manifest

Requirements of the U.S. Environmental

Protection Agency specified in 40 CFR

part 262. Because universal waste does

not require a hazardous waste manifest,

it is not considered hazardous waste

under the Department of Transportation

regulations.

(b) Some universal waste materials are

regulated by the Department of

Transportation as hazardous materials

because they meet the criteria for one or

more hazard classes specified in 49 CFR

173.2. As universal waste shipments do

not require a manifest under 40 CFR

262, they may not be described by the

DOT proper shipping name ‘‘hazardous

waste, (l) or (s), n.o.s.’’, nor may the

hazardous material’s proper shipping

name be modified by adding the word

‘‘waste’’.

§ 273.53 Storage time limits.

(a) A universal waste transporter may

only store the universal waste at a

universal waste transfer facility for ten

days or less.

(b) If a universal waste transporter

stores universal waste for more than ten

days, the transporter becomes a

universal waste handler and must

comply with the applicable

requirements of subparts B or C of this

part while storing the universal waste.

§ 273.54 Response to releases.

(a) A universal waste transporter must

immediately contain all releases of

universal wastes and other residues

from universal wastes.

(b) A universal waste transporter must

determine whether any material

resulting from the release is hazardous

waste, and if so, it is subject to all

applicable requirements of 40 CFR parts

260 through 272. If the waste is

determined to be a hazardous waste, the

transporter is subject to 40 CFR part

262.
25550 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations

§ 273.55 Off-site shipments.

(a) A universal waste transporter is

prohibited from transporting the

universal waste to a place other than a

universal waste handler, a destination

facility, or a foreign destination.

(b) If the universal waste being

shipped off-site meets the Department of

Transportation’s definition of hazardous

materials under 49 CFR 171.8, the

shipment must be properly described on

a shipping paper in accordance with the

applicable Department of

Transportation regulations under 49

CFR part 172.

§ 273.56 Exports.

A universal waste transporter

transporting a shipment of universal

waste to a foreign destination may not

accept a shipment if the transporter

knows the shipment does not conform

to the EPA Acknowledgment of

Consent. In addition the transporter

must ensure that:

(a) A copy of the EPA

Acknowledgment of Consent

accompanies the shipment; and

(b) The shipment is delivered to the

facility designated by the person

initiating the shipment.

Subpart E—Standards for Destination

Facilities

§ 273.60 Applicability.

(a) The owner or operator of a

destination facility (as defined in 40

CFR 273.6) is subject to all applicable

requirements of parts 264, 265, 266, 268,

270, and 124 of this chapter, and the

notification requirement under section

3010 of RCRA:

(b) The owner or operator of a

destination facility that recycles a

particular universal waste without

storing that universal waste before it is

recycled must comply with 40 CFR

261.6(c)(2).

§ 273.61 Off-site shipments.

(a) The owner or operator of a

destination facility is prohibited from

sending or taking universal waste to a

place other than a universal waste

handler, another destination facility or

foreign destination.

(b) The owner or operator of a

destination facility may reject a

shipment containing universal waste, or

a portion of a shipment containing

universal waste. If the owner or operator

of the destination facility rejects a

shipment or a portion of a shipment, he

must contact the shipper to notify him

of the rejection and to discuss

reshipment of the load. The owner or

operator of the destination facility must:

(1) Send the shipment back to the

original shipper, or

(2) If agreed to by both the shipper

and the owner or operator of the

destination facility, send the shipment

to another destination facility.

(c) If the a owner or operator of a

destination facility receives a shipment

containing hazardous waste that is not

a universal waste, the owner or operator

of the destination facility must

immediately notify the appropriate

regional EPA office of the illegal

shipment, and provide the name,

address, and phone number of the

shipper. The EPA regional office will

provide instructions for managing the

hazardous waste.

(d) If the owner or operator of a

destination facility receives a shipment

of non-hazardous, non-universal waste,

the owner or operator may manage the

waste in any way that is in compliance

with applicable federal or state solid

waste regulations.

§ 273.62 Tracking universal waste

shipments.

(a) The owner or operator of a

destination facility must keep a record

of each shipment of universal waste

received at the facility. The record may

take the form of a log, invoice, manifest,

bill of lading, or other shipping

document. The record for each

shipment of universal waste received

must include the following information:

(1) The name and address of the

universal waste handler, destination

facility, or foreign shipper from whom

the universal waste was sent;

(2) The quantity of each type of

universal waste received (e.g., batteries,

pesticides, thermostats);

(3) The date of receipt of the shipment

of universal waste.

(b) The owner or operator of a

destination facility must retain the

records described in paragraph (a) of

this section for at least three years from

the date of receipt of a shipment of

universal waste.

Subpart F—Import Requirements

§ 273.70 Imports.

Persons managing universal waste

that is imported from a foreign country

into the United States are subject to the

applicable requirements of this part,

immediately after the waste enters the

United States, as indicated below:

(a) A universal waste transporter is

subject to the universal waste

transporter requirements of subpart D of

this part.

(b) A universal waste handler is

subject to the small or large quantity

handler of universal waste requirements

of subparts B or C, as applicable.

(c) An owner or operator of a

destination facility is subject to the

destination facility requirements of

subpart E of this part.

Subpart G—Petitions to Include Other

Wastes Under 40 CFR Part 273

§ 273.80 General.

(a) Any person seeking to add a

hazardous waste or a category of

hazardous waste to this part may

petition for a regulatory amendment

under this subpart and 40 CFR 260.20

and 260.23.

(b) To be successful, the petitioner

must demonstrate to the satisfaction of

the Administrator that regulation under

the universal waste regulations of 40

CFR part 273 is: appropriate for the

waste or category of waste; will improve

management practices for the waste or

category of waste; and will improve

implementation of the hazardous waste

program. The petition must include the

information required by 40 CFR

260.20(b). The petition should also

address as many of the factors listed in

40 CFR 273.81 as are appropriate for the

waste or waste category addressed in the

petition.

(c) The Administrator will evaluate

petitions using the factors listed in 40

CFR 273.81. The Administrator will

grant or deny a petition using the factors

listed in 40 CFR 273.81. The decision

will be based on the weight of evidence

showing that regulation under 40 CFR

part 273 is appropriate for the waste or

category of waste, will improve

management practices for the waste or

category of waste, and will improve

implementation of the hazardous waste

program.

§ 273.81 Factors for petitions to include

other wastes under 40 CFR part 273.

(a) The waste or category of waste, as

generated by a wide variety of

generators, is listed in subpart D of part

261 of this chapter, or (if not listed) a

proportion of the waste stream exhibits

one or more characteristics of hazardous

waste identified in subpart C of part 261

of this chapter. (When a characteristic

waste is added to the universal waste

regulations of 40 CFR part 273 by using

a generic name to identify the waste

category (e.g., batteries), the definition

of universal waste in 40 CFR 260.10 and

273.6 will be amended to include only

the hazardous waste portion of the

waste category (e.g., hazardous waste

batteries).) Thus, only the portion of the

waste stream that does exhibit one or

more characteristics (i.e., is hazardous

waste) is subject to the universal waste

regulations of 40 CFR part 273;

(b) The waste or category of waste is

not exclusive to a specific industry or

group of industries, is commonly
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Rules and Regulations 25551

generated by a wide variety of types of

establishments (including, for example,

households, retail and commercial

businesses, office complexes,

conditionally exempt small quantity

generators, small businesses,

government organizations, as well as

large industrial facilities);

(c) The waste or category of waste is

generated by a large number of

generators (e.g., more than 1,000

nationally) and is frequently generated

in relatively small quantities by each

generator;

(d) Systems to be used for collecting

the waste or category of waste

(including packaging, marking, and

labeling practices) would ensure close

stewardship of the waste;

(e) The risk posed by the waste or

category of waste during accumulation

and transport is relatively low compared

to other hazardous wastes, and specific

management standards proposed or

referenced by the petitioner (e.g., waste

management requirements appropriate

to be added to 40 CFR 273.13, 273.33,

and 273.52; and/or applicable

Department of Transportation

requirements) would be protective of

human health and the environment

during accumulation and transport;

(f) Regulation of the waste or category

of waste under 40 CFR part 273 will

increase the likelihood that the waste

will be diverted from non-hazardous

waste management systems (e.g., the

municipal waste stream, non-hazardous

industrial or commercial waste stream,

municipal sewer or stormwater systems)

to recycling, treatment, or disposal in

compliance with Subtitle C of RCRA.

(g) Regulation of the waste or category

of waste under 40 CFR part 273 will

improve implementation of and

compliance with the hazardous waste

regulatory program; and/or

(h) Such other factors as may be

appropriate.

[FR Doc. 95–11143 Filed 5–10–95; 8:45 am]

BILLING CODE 6560–50–P