Universal Waste Rule (Hazardous Waste Management System;: Federal Register: EPA

[Federal Register: May 11, 1995]

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Part IV

Environmental Protection Agency

40 CFR Part 9, et al.

Universal Waste Rule (Hazardous Waste Management System; Modification of the Hazardous Waste Recycling Regulatory Program); Final Rule

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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

Wastes Covered Under the Universal Waste System
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
Import Requirements
Petitions to Include Other Wastes under part 273 IV. Detailed Discussion of Final Rule
A. Goals of Final Rule
B. Scope of Final Rule
Recycling Versus Recycling or Disposal
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
Conditionally Exempt Small Quantity Generator Waste C. Adding Additional Wastes in the Future
Procedures For Adding New Wastes
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
Small and Large Quantity Handlers of Universal Waste
Transporters
Destination Facilities
E. Universal Waste Handler Requirements
Prohibitions
a. Prohibition on Disposal
b. Prohibition on Treatment
c. Prohibition on Shipments of Universal Wastes
Notification
Waste Management
a. Universal Waste Batteries
b. Universal Waste Pesticides
c. Universal Waste Thermostats
Labeling/Marking
Accumulation time requirements
Employee Training
Response to Releases
Off-site Shipments
Tracking Universal Waste Shipments
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
Addition of New Universal Wastes to State Programs
Authorization for individual universal wastes
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 [[Page 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 mercurycontaining 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 mercury-containing lamps. It was noted that if the Agency selected the universal waste option for management of mercury-containing 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 [[Page 25494]] 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 mercurycontaining lamps (docket number F-94-FLEP-FFFFF). 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 ``Reengineering 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 [[Page 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 front-line 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 [[Page 25496]] 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 userfriendly, 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
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BILLING CODE 6560-50-C
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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
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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 off-site 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), [[Page 25501]] 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 Secs. 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 Secs. 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 [[Page 25502]] 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 [[Page 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 non-recyclable 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 leadcontaining batteries, cadmium-containing 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.
[[Page 25504]]
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 [[Page 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 lead-acid batteries under the part 266, subpart G exemption or under the part 273 requirements. The existing recycling program for automotive lead-acid 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 Sec. 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 Sec. 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 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 (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 lead-acid 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 Sec. 273.20(a) included Secs. 273.20(a) (2) and (3) which both described hazardous waste pesticides not covered under part 273. Similarly, Sec. 273.21(a) included Sec. 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 Sec. 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 Sec. 273.3(a)(1) rewords, but essentially retains, the proposed [[Page 25506]] regulatory text from Sec. 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 Sec. 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 Sec. 273.3(b)(2) of the final rule, hazardous waste pesticides that do not meet the conditions described in Sec. 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 Sec. 273.20(a)(2) of the proposed rule. Similarly, Secs. 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 Sec. 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 (Secs. 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 Secs. 273.3 (b) and (d)). The text in Sec. 273.3(c)(1) simplifies but retains the meaning of text in Sec. 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 Sec. 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 Sec. 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 Sec. 273.21(a)(2) in the proposed rule. The final rule also adds Sec. 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 Sec. 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 Sec. 261.2. [[Page 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 bimetal 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 wallmounted and other thermostats separately). Thus, the definition has not been limited to wall-mounted thermostats. In addition, the definition suggested by the commenter has been expanded in the final rule to include mercury-containing 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 Sec. 273.13(c)(2) or Sec. 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 mercury-containing thermostats. Thus, in the final rule, persons managing universal waste thermostats are subject to the same basic requirements as persons managing other universal wastes: [[Page 25508]] 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 mercury-containing lamps. Used mercury-containing 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 mercury-containing 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 abovenamed 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 mercurycontaining 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 non-hazardous waste management systems.
Although the Agency believes that adding a broader category of mercury-containing equipment to the universal waste rule may ultimately be the best way to approach this issue, at this time only mercurycontaining 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 mercury-containing 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). [[Page 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 Sec. 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 Sec. 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 Sec. 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 [[Page 25510]] 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 non-subtitle 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 nonsubtitle 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 Sec. 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 Sec. 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 Sec. 261.5, which applies to CESQGs. Although the language in Sec. 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 Sec. 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 Sec. 262.11(d) where exclusions or restrictions for hazardous waste management are found. In addition, to clarify that Sec. 261.5 provides additional exclusions as discussed above, the final rule also adds part 261 to this list. Thus, Sec. 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. [[Page 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 Secs. 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 Sec. 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 Sec. 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 Sec. 260.34, entitled ``Petitions to amend part 273 to include additional hazardous wastes'' has been renumbered to be Sec. 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 Sec. 273.2 (found in Sec. 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 Secs. 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,