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Citation: 45 Fed. Reg. 76617 1980

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WednesdayNovember 19, 1980

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KDD

Part III

EnvironmentalProtection AgencyHazardous Waste Management System:Mining and Cement Kiln WastesExemptions; Small Quantity GeneratorStandards; Generator WasteAccumulation Amendment; HazardousWaste Spill Response Exemption, andClarification of Interim StatusRequirements

76618 Federal Register I Vol. 45, No. 225 I Wednesday, November 19, 1980 / Rules and RegulationsENVIRONMENTAL PROTECTIONENVIRONMENTAL PROTECTIONAGENCY

40 CFR Part 261

[SWH-FRL 1675-1]

Identification and Listing of HazardousWaste

AGENCY: Environmental ProtectionAgency.ACTION: Interim final amendment to rulewith request for comments.

SUMMARY: This regulation amends thehazardous waste regulations (40 CFR§ 261.4(b)) to exclude from regulationunder Subtitle C of the ResourceConservation and Recovery Act (1) solidwaste from the extraction, beneficiationand processing of ores and minerals(including coal), including phosphaterock and overburden from the mining ofuranium ore and (2) cement kiln dustwastes. This action is being taken tobring the regulation into conformancewith Section 7 of the recently enactedSolid Waste Disposal Act Amendmentsof 1980. The Agency, for the time being,is interpreting the scope of theseexclusions broadly but is unsure thatthis interpretation is consistent with theintent of the Congress. Therefore, overthe next 90 days, it intends to carefullyexamine the legislative history of thestatutory amendment and consider thepublic comments being solicited by thisaction. Based on this review, theAgency, in subsequent rulemakingaction, may further narrow the exclusionbeing promulgated today.DATE: Effective Date: November 19, 1980.

Comment Date: This amendment ispromulgated as an interim final rule. TheAgency will accept comments on it untilJanuary 19,1981.ADDRESSES: Comments on theamendment should be sent to DocketClerk (Docket No. 3001), Office of SolidWaste (WH-565), U.S. EnvironmentalProtection Agency, 401 M Street SW.,Washington, D.C. 20460.FOR FURTHER INFORMATION CONTACT.For general information, contact AlfredW. Lindsey, Office of Solid Waste, U.S.Environmental Protection Agency, 401 MStreet SW., Washington, D.C. 20460,(202) 755-9185. For information onimplementation, contact:Region I, Dennis Huebner, Chief. Radiation,

Waste Management Branch, John F.Kennedy Building, Boston, Massachusetts02203, (617] 223-5777

Region II, Dr. Ernest Regna, Chief, SolidWaste Branch, 26 Federal Plaza, New York,New York 10007, (212) 264-0504/5

Region III, Robert L. Allen, Chief, HazardousMaterials Branch, 6th and Walnut Streets,

Philadelphia, Pennsylvania 19106, (215)597-0980

Region IV, James Scarbrough, Chief,Residuals Management Branch, 345Courtland Street NE., Atlanta, Georgia30365, (404) 881-3016

Region V, Karl J. Klepitsch, Jr., Chief, WasteManagement Branch, 230 South DearbornStreet, Chicago, Illinois 60604, (312) 886-6148

Region VI, R. Stan Jorgensen, Acting Chief,Solid Waste Branch, 1201 Elm Street, FirstInternational Building, Dallas, Texas 75270,(214) 787-2645

Region VII, Robert L Morby, Chief,Hazardous Materials Branch, 324 E. 11thStreet, Kansas City, Missouri 64106, (816)374-3307

Region VIII, Lawrence P. Gazda, Chief,Waste Management Branch, 1860 LincolnStreet, Denver, Colorado 80203, (303) 837-2221

Region IX, Arnold R. Den, Chief, HazardousMaterials Branch, 215 Fremont Street, SanFrancisco, California 94105, (415) 556-4606

Region X, Kenneth D. Feigner, Chief, WasteManagement Branch, 1200 Sixth Avenue,Seattle, Washington 98101, (206) 442-1260

SUPPLEMENTARY INFORMATION:

I. Reason and Basis for Today'sAmendments

On May 19, 1980, EPA promulgatedregulations implementing Subtitle C ofthe Resource Conservation andRecovery Act (RCRA). See 45 FR 33066-33588. These regulations defime solidwastes and hazardous wastes andestablish requirements applicable togenerators, transporters, treaters, storersand disposers of hazardous wastes.These regulations also require ownersand operators of hazardous wastetreatment, storage and disposal facilitiesto obtain RCRA permits.

The definition of solid waste isprovided in § 261.2 of these regulations.The definition of hazardous waste isprovided in § 261.3 of these regulations.Both definitions are sufficiently broad toinclude many solid wastes generated inthe extraction, beneficiation andprocessing of ores and minerals,exclusive of mining overburden returnedto the mine site (see § 261.4(b)(3).)Specifically, eight mining and mineralprocessing wastes (EPA hazardouswaste Nos. F013-FO15 and K064-K068) were listed as hazardous wastesin § § 261.31 and 261.32 of the May 19regulations (see 45 FR 33123-33124). Inaddition, other mining and mineralprocessing wastes may be hazardouswastes because they exhibit one ormore of the characteristics of hazardouswastes in Subpart C of Part 261. Byvirtue of these definitions, a number ofmining and mineral processing wasteswill be subject to the regulations onNovember 19, 1980, the effective date ofthe regulations.

Additionally, some cement kiln dustwaste could be hazardous waste underthe regulations, if it exhibits any of thecharacteristics of hazardous waste inSubpart C of Part 261. Thus, somecement kiln dust waste may be subjectto the regulations on and afterNovember 19, 1980.

In Section 7 of the recently enactedSolid Waste Disposal Act Amendmentsof 1980 (P.L. 94-482, October 21, 1980),the Congress amended Section 3001 ofRCRA to prohibit EPA from regulatingcertain wastes under Subtitle C ofRCRA until after completion of certainstudies and certain rulemaking. Amongthese wastes are (1) "solid waste fromthe extraction, beneficiation andprocessing of ores and minerals,including phosphate rock andoverburden from the mining of uraniumore" and (2) "cement kiln dust waste."Accordingly EPA is today amending Itsregulations, at § 261.4, to incorporatethis statutory change.

Several trade associations,representing the mining and cementindustries, have asked EPA to amend itsregulations by November 19, 1980, theeffective date of these regulations, toincorporate the 1980 amendmentsconcerning these wastes. In additionthese associations have sought aclarification of the scope of theexclusion, particularly regarding thetypes of mining operations that areexcluded. The statutory exclusion ofmining wastes in Section 3001(b)(3) islimited to "solid waste from theextraction, beneficiation and processingof ores and minerals." One mining tradeassociation has argued that thisexclusion covers wastes from theexploration, mining, milling, smeltingand refining of ores and minerals(including coal.)

In the interest of providing the miningand cement industries clear guidance onwhether they are subject to theregulations, EPA is amending theregulations before the November 19date. At the same time EPA questionswhether the Section 3001(b)(3) was to beinterpreted as broadly as the tradeassociations suggest. To resolve thesequestions, the Agency will have toexamine carefully the legislative historyand consult with the mining and cementindustries and the public. The Agencycould not accompish this by November19, 1980, given the extremely largeworkload with which it is burdened Indeveloping the Phase II regulations. inresponding to other requests forregulatory amendments andinterpretations, and in responding topetitions for judicial review of theregulations.

76618 Federal Register / Vol. 45, No. 225 / Wednesday, November 19, 1980 / Rules and Regulations

Federal Register I Vol. 45, No. 225 I Wednesday. November 19. 1980 / Rules and Regulations 76619

Consequently, the Agency hasdecided to provide an immediate buttemporary accommodation of therequests on this matter by promulgatingtoday interim final amendments to§ 261.4(b) which provide the requestedexclusion using the language of thestatutory amendments. Until the Agencytakes further rulemaking action on thismatter, it will interpret the language oftoday's amendments, with respect to themining and mineral processing wasteexclusion, to include solid waste fromthe exploration, mining, milling, smeltingand refining of ores and minerals.

This exclusion does not, however,apply to solid wastes, such as spentsolvents, pesticide wastes, anddiscarded commercial chemicalproducts, that are not uniquelyassociated with these mining and alliedprocessing operations, or cement kilnoperations. Therefore, should eitherindustry generate any of these non-indigenous wastes and the waste isidentified or listed as hazardous underPart 261 of the regulations, the waste ishazardous and must be managed inconformance with the Subtitle Cregulations.

I1. Intended Reconsideration of Today'sAmendments

The Agency fully intends to considerthe appropriate scope of the statutoryexclusion and may well take rulemakingaction to lessen the scope of theexclusion being promulgated today. Toaid in this consideration, the Agency issoliciting public comments on thismatter. In particular EPA questionswhether Congress intended to exclude(1) wastes generated in the smelting,refining and other processing of oresand minerals that are further removedfrom the mining and beneficiation ofsuch ores and minerals, (2) wastesgenerated during exploration for mineraldeposits and (3) wastewater treatmentand air emission control sludgesgenerated by the mining and mineralprocessing industry. EPA specificallyseeks comment on whether such wastesshould be part of the exclusion. EPAalso seeks comment on how it mightdistinguish between excluded and non-excluded solid wastes.

If EPA narrows the scope of theexclusion being promulgated today infuture rulemaking, those who generate,transport, store, treat or dispose ofwastes affected by such a change willhave six months to prepare forcompliance with the regulations. Thissix month delay in the effective date isprovided under authority of Section3010(b) of RCRA.

In addition to the consideration of thescope of the exclusion discussed above,

the Agency will be consideringregulatory amendments to implementother provisions of Section 3001(b)(3).Section 3001(b)(3)(B) recognizes EPAauthority to issue regulations underSection 2002 of RCRA to placerequirements on owners and operatorsof disposal sites for excluded wastes.These requirements concernidentification and recording ofinformation on the location of disposalsites as well as on the composition ofthe wastes that are disibsed. EPA alsoinvites public comment on how it shouldformulate such requirements.

III. Effect of Today's AmendmentsToday's amendments relieve persons

who generate or manage hazardouswastes produced in, and unique to, theexploration, mining, milling, smelting orrefining of ores or minerals and personswho generate or manage a cement kilndust waste from having to comply withEPA's regulations under Subtitle C ofRCRA with respect to these wastes.Owners and operators of existingtreatment, storage and disposal facilitiesdo not have to submit a Part A, RCRApermit application by November 19,1980, or comply with the interim statusstandards of Part 265 after November 19,1980, with respect to such wastes. Also,owners and operators of new facilitiesfor the treatment, storage or disposal ofthe subject wastes will not have toapply for and obtain a RCRA permitbefore constructing or operating suchfacilities.

Today's action does not relievepersons who generate or manage thosewastes herein discussed fromcompliance with other Federal and Stateregulations including State regulationsdesigned to implement Subtitle D ofRCRA and State regulations beingimplemented in lieu of the FederalSubtitle C regulations where the Statehas interim or full authorization underSection 3006 of RCRA.

IV. Relationship to Final Listing ofCertain Hazardous Waste in § § 261.31and 261.32

On November 12,1980, in a separaterulemaking action (see 45 FR 74884), theAgency has finalized the list of most ofthe hazardous wastes listed in §§ 261.31and 261.32. Included in this action wasfinalization of seven of the mining andmineral processing wastes mentionedabove (EPA hazardous waste nos. F014-15 and KO64-68). One of the wastespreviously mentioned (F013) wasdeleted from the list of hazardous waste(§ 261.31) in that separate action.Because of the Agency's uncertaintywith respect to the scope of thestatutory amendments, as discussed

above, it has gone ahead with thefinalization of the aforementioned listedwastes. Notwithstanding. the effect oftoday's action is to suspend those finallistings of hazardous wastes, unless anduntil the Agency reduces the scope oftoday's exclusion in subsequentrulemaking action.

V. Coal Mining WasteThe Solid Waste Disposal Act

Amendments of 1980 also includedspecial provisions (Sections 1006(c) and3005(f)) designed to coordinateregulation of coal mining waste with therequirements of the Surface MiningControl and Reclamation Act, 30 U.S.C.§ 1201 et seq. EPA believes that theseprovisions present problems of legalinterpretation which cannot be resolvedby November 19,1980. The Agency mayseek public comment on itsinterpretation of those provisions inlater rulemaking actions. This interimfinal rule does not attempt to interpretthe scope of Sections 1006(c) and 3005(f).However, since coal is arguably a

mnineral or ore" under Section3001(b)(3), wastes from the extraction,beneficiation and processing of coal areexcluded from RCRA Subtitle Cregulation in today's amendment to§ 261.4(b). Until EPA has had anopportunity to analyze the intendedscope of the exclusion, the terms"extraction, beneficiation andprocessing" will be interpreted broadlyto include coal exploration, mining,cleaning, classification, and otherprocessing activities. As with otherelements of this exclusion, EPA will beexamining this exclusion. particularlythe exclusions for classification, andother processing activities, in moredetail later and may decide to narrowits scope.

VI. Effective DateSection 3010(b) of RCRA provides that

EPA's hazardous waste regulations andrevisions thereto take effect six monthsafter their promulgation. The purpose ofthis requirement is to allow personshandling hazardous wastes sufficientlead time to prepare to comply withmajor new regulatory requirements. Theamendments promulgated today,however, serve to put in regulatory formwhat is already stated in statute. Toestablish a deferred effective datewould only serve to confuse theregulated community. Consequently, theAgency is establishing an immediateeffective date for this amendment.

VII. Request for CommentsThe Agency invites comments on

these amendments and on the issuesdiscussed in this preamble and,

Federal Register / Vol. 45, No. 225 / Wednesday. November 19, 1980 / Rules and Regulations 76619


therefore, is providing a 60-day commentperiod.

Dated: November 14, 1980.Douglas M. Costle,Administrator.

Title 40 of the Code of FederalRegulations is amended by adding thefollowing paragraphs to § 261.4(b):§ 261.4 [Amended]

(b) * * *(6) Solid waste from the extraction,

beneficiation and processing of ores andminerals (including coal), includingphosphate rock and overburden from themining of uranium ore.

(7) Cement kiln dust waste.These amendments are issued under

the authority of Sections 1006, 2002(a)and 3001 of the Solid Waste DisposalAct, as amended by the ResourceConservation and Recovery Act of 1976(RCRA), as amended, 42 U.S.C. 6905,6912(a) and 6921.[FR Doc. 60-36129 Filed 11-18-00:8:45 am]

BILUNG CODE 6560-30-M

40 CFR Parts 261 and 262

[SWH-FRL 1675-3]

Hazardous Waste ManagementSystem: Identification and Listing ofHazardous Waste Standards forGenerators of Hazardous Waste

AGENCY: Environmental ProtectionAgency.ACTION: Interim final rules and requestfor comments.

SUMMARY: In regulations promulgated inMay, 1980, establishing a federalprogram for the management ofhazardous wastes, EPA excluded fromfull regulation persons handlinghazardous wastes generated in smallquantities (40 CFR 261.5, 45 FR 33066,33120 (May 19, 1980)). This amendmentclarifies the operation of the specialrequirements for hazardous wastegenerated by small quantity generators.Part 262 of the regulations has also beenamended to ensure that these generatorsdetermine whether their wastes arehazardous.DATE: Effective Date: November 19, 1980.

Comment Date: EPA will acceptpublic comments on this regulation untilJanuary 19, 1981.ADDRESSES: Comments on thisregulation should be sent to the DocketClerk [Docket Number 3001], Office ofSolid Waste (WH-562), U.S.Environmental Protection Agency, 401 MStreet, S.W., Washington, D.C. 20460.

The public docket for this regulation islocated in Room 2711, U.S.Environmental Protection Agency. 401 MStreet, S.W., Washington, D.C. and isavailable for viewing from 9 a.m. to 4p.m. Monday through Friday, excludingholidays. Among other items, the docketcontains the background document forthis regulation which has been revisedto accommodate these amendments.FOR FURTHER INFORMATION CONTACT.Robert Holloway, Office of Solid Waste,U.S. Environmental Protection Agency,401 M Street, S.W., Washington, D.C.20460, (202) 755-9200.SUPPLEMENTARY INFORMATION:

I. Introduction

Pursuant to Subtitle C of the ResourceConservatibn and Recovery Act of 1976,as amended ("RCRA"), 42 U.S.C. § 6901et seq., EPA recently promulgatedregulations establishing acomprehensive regulatory program forthe management and control ofhazardous wastes (45 FR 33066 (May 19,1980)). The regulations, among otherthings, identify the characteristics ofhazardous wastes, list particular wastesas hazardous, and establish standardsfor generators and transporters ofhazardous waste and owners and'operators of hazardous wastemanagement facilities.

The regulations also define specialrequirements for hazardous wastegenerated by generators who produceless than 1,000 kilograms of hazardouswaste during a calendar month. (See 40CFR 261.5, 45 FR 33120). Hazardouswaste generated by a small quantitygenerator is generally excluded from fullregulation provided the generator stores,treats, or disposes of his hazardouswaste in facilities specified asacceptable or ensures that hishazardous waste is delivered to suchfacilities. However, if a small quantitygenerator generates or accumulatesacutely hazardous waste in quantitiesgreater than specified, or if heaccumulates more than a total of 1,000kilograms of hazardous waste at anytime, all quantities of hazardous wastesfor which an exclusion level is exceededare fully regulated.

Since the publication of the regulation,members of the regulated communityhave raised a number of questionsconcerning the operation of the smallquantity exclusion. EPA has beenpersuaded that, in certain respects, theregulation is ambiguous and does notclearly address certain situations. Inaddition, the regulation contains certaintechnical errors which would cause theexclusion to operate in a manner notintended by the Agency or contrary to

the manner explained In the preamble tothe regulation and the supportingmaterials. This amendment to theregulation is intended to clarify theoriginal regulation and to correct theerrors contained in it.

The revisions to the small quantitygenerator exclusion principally concernfive aspects of the regulation: thedetermination of who is a small quantitygenerator; the requirements applicableto hazardous waste accumulated on-site;the requirements applicable to acutelyhazardous wastes; the conditionsapplicable to wastes excluded from fullregulation; and the requirementsapplicable to mixtures. The changes tothe regulation are described In thispreamble. The underlying gatlonale andbasis for § 261.5 remain unchanged andare set forth in the preamble to the Mayregulation. (See 45 FR at 33102-33105.)

The background document supportingthe requirements for small quantitygenerators has been revised to explainin greater detail the operation of § 261.5.In addition to describing the changesmade by today's amendments, thebackground document providesguidance on the operation of regulationsapplicable to the small quantitygenerator.

It should be noted that the Agency hasreceived a petition from the NationalSolid Waste Management Association("NSWMA") which requests the Agencyto make substantive revisions to § 261.5.EPA has noticed and requestedcomments on the petition. (45 68409(October 15, 1980).) The amendment to§ 261.5 published today does notconstitute the Agency's response to theNSWMA petition. EPA's action withregard to that petition will be the subjectto further notice and/or rulemaking.

II. Amendments to the Regulation

A. Determination of Small QuantityGenerator Status.

Section 261.5(a) of the May regulationset forth the general test for determiningwho may qualify as a small quantitygenerator:

* * * if a person generates, in a calendarmonth, a total of less than 1,000 kilograms ofhazardous wastes, those wastes are notsubject to regulation * * *

Since publication of the regulation,persons have raised two questions basicto the operation of this section: (a)should the section be keyed togenerators rather than persons; and (b)what wastes should be counted indetermining the amount of wastegenerated in a calendar month? Theregulation has been revised to resolveboth of these questions.

Federal Register / Vol. 45, No. 225 / Wednesday, November 19, 1980 / Rules and Regulations 76621

Although it was EPA's intent to keythe exclusion levels established in§ 261.5 to individual generation sites, theMay 19, 1980 regulation refers to"persons" rather than "generators". Asthese terms are defined in § 260.10 ofthis Chapter, a corporation (i.e., aperson] may comprise numerousfacilities that generate hazardous waste,(i.e., generators]. Read literally,therefore, § 261.5 makes the Subtitle Cregulations and the notificationrequirements of Section 3010 of RCRAfully applicable to a company whichgenerates, in the aggregate, more thanthe quantity exclusion level but each ofwhose facilities generates less than thatamount. The revised regulation replacesthe prior reference to "persons" with"generators," making it clear thatindividual facilities which generatehazardous waste in a quantity below theexclusion levels may qualify as smallquantity generators.

To provide further clarification, theamended regulation defines a smallquantity generator as a generator whogenerates less than 1000 kilograms ofhazardous waste in a calendar month.Thus, this amended regulation makesclear that a generator may be a smallquantity generator in one month and alarge quantity generator in anothermonth. The recordkeeping and reportingrequirements of Part 262 apply, however,only to those periods in which thegenerator's hazardous waste is subjectto full regulation under Part 262. Thus,for example, the annual report of agenerator whose waste is subject to fullregulation under Part 262 for threemonths in a year would cover thegenerator's activity only for those threemonths.

The second issue resolved by theamended regulation concerns whichhazardous wastes should be counted indetermining whether a generatorgenerates 1000 kilograms of hazardouswaste in a calendar month. Onequestion is how the exclusion ofhazardous wastes that are used, re-used,recycled or reclaimed under § 261.6relates to the § 261.5 requirements.Another set of questions focuses on thepotential double-counting of wastes by agenerator who removes waste from on-site storage or whose on-site treatmentof wastes generates hazardous waste.

The small quantity generatorrequirements have been revised by theaddition of a new paragraph, § 261.5(c),to clarify which hazardous wastes thatare being used, re-used, recycled orreclaimed are included in determiningsmall generator status. Section 261.6(a)excludes from regulation wastes that arehazardous because they meet EPA

characteristics and that are beneficiallyused or re-used or legitimately recycledor reclaimed. Wastes that are excludedunder § 261.6(a) are not included in thequantity determination of § 261.5.Section 261.6(b), however. makessludges, listed hazardous wastes, andhazardous wastes containing listedhazardous wastes subject to fullregulation during storage andtransportation prior to their use, re-use.recycling or reclamation. Because thesewastes are subject to Subtitle Cregulation, the revised § 261.5 makesclear that these wastes must be includedin the quantity determination and aresubject to the other requirements of thatsection. Although this is a result that acareful reading of the May regulationwould support, the revised § 261.5should resolve any ambiguity on thisissue.

A number of persons stated that useof the word "generates" in § 261.5creates some uncertainty about whatwastes should be counted indetermining eligibility for small quantitygenerator status. These commentersbelieved that, without clarification, therule might lead to double-counting ofwastes when they are also treated orstored on-site. If, for example, agenerator's manufacturing processgenerated 600 kilograms of hazardouswaste in a month, and he placed thatwaste in storage, persons wereuncertain whether, when that waste wasremoved from storage, the 600 kilogramswas to be counted again in the quantitydetermination. Counting this quantity asecond time would have the effect ofsubstantially lowering the exclusionlevels. A new paragraph. § 261.5(d), hasbeen added to make it clear that agenerator counts his hazardous wasteonly when he first generates it. He is notrequired to count the waste again whenhe removes it from on-site accumulationor storage I or when he produces ahazardous waste from the on-sitetreatment of his hazardous waste. Theamendment is intended to avoid double-counting of wastes and thereforeextends only to the on-site treatment orstorage of hazardous wastes generatedby the small quantity generator. If thegenerator receives hazardous wastefrom another person for treatment, thehazardous waste generated by thetreatment process must be counted inthe generator's quantity determination.

B. Requirements Applicable toHazardous Waste Accumulated On-site.

I Under the definition of generation. removal fromstorage is not an act or process that produce ahazardous waste, although it i, an act w-hlch maysubject a waste to regulation. The Agency 1ntendsto publish regulations on this subject In the nearfuture.

Section 261.5(b) of the May regulationstates that if a generator accumulatesmore than 1000 kilograms of hazardouswaste, these wastes are subject to fullSubtitle C regulation. Acutely hazardouswastes, when accumulated, are subjectto the lower exclusion limits specified in§ 261.5(c] of the May 19,1980, regulation.After the publication of the regulation,persons questioned how the regulationwould apply: whether the generatorwould be able to use the provisions of§ 262.34 allowing on-site storage withouta permit for 90 days prior to shipment ofthe wastes to treatment, storage ordisposal facilities; and, ff so, how theprovisions of that section apply to smallquantity generators.

A new paragraph. § 261.5(f), clarifiesthe manner in which hazardous wastesare regulated when the accumulationlimit is exceeded. Because the regulationallows indefinite and unregulatedstorage of wastes in quantities less than1000 kilograms, the Agency believes itunreasonable to make this 90 day periodstart at the time the waste was firstgenerated. Such a result would placegenerators who exceed theaccumulation levels but whoseaccumulation began more than 90 daysprior to exceeding the 100 kilogramlevel immediately in violation of theregulatory requirements by storingwastes without a permit or withoutinterim status under Section 3005(e) ofRCRA. The revised § 261.5(f) states thatat the time the allowable accumulationlimit is exceeded, the waste becomesfully regulated and § 262.34 becomesapplicable. Section 262.34 provides thegenerator 90 days to remove the wastefrom on-site storage without thenecessity of having either a permit orinterim status for that storage. To takeadvantage of § 262.34, however, thegenerator must satisfy the conditions ofthat section. This will ensure that thegenerator handles the waste in asatisfactory manner while providing himsome time to arrange for propertreatment, storage or disposal.

The revised regulation also clarifiesthat once the accumulated amountsexceed 1000 kilograms, all of thosewastes and those subsequently added tothat accumulation are fully regulateduntil all the waste is sent to a hazardouswaste treatment, storage or disposalfacility. This rule means that thosewastes remain subject to full regulationeven if the quantity of wastesaccumulated or stored becomes lessthan 1000 kilograms. In addition, thosewastes remain fully regulated regardlessof when the wastes are removed fromstorage or accumulation and regardlessof whether the generator is a small


quantity generator in the month they areremoved from storage. Certain personsthought that only the amount exceeding1000 kilograms was subject toregulation. This position was not,however, supported by the language inthe May regulation which stated that, ifa person accumulates more than 1000kilograms, "those accumulated wastes"would be subject to full regulation. Therevised language should resolve anyambiguity that may have been createdby the original language. The provisionsfor acutely hazardous waste applysimilarly.

C. Requirements Applicable toAcutely Hazardous Waste.

Section 261.5(c) of the May regulationsets lower exclusion levels for acutelyhazardous discarded chemical products,their off-specification variants,containers and inner liners that heldthese wastes, and residue and debrisresulting from spills of these wastes. Therevised regulation, § 261.5(e), clarifiestwo ambiguities in the regulation: (a)whether the exclusion levels apply tothe total amount of acutely hazardouswaste generated and (b) whether theexclusion levels apply only to smallquantity generators.

With respect to the first question, thelanguage of the regulation has beenrevised to state that the exclusion levelsapply to the aggregate of all of theacutely hazardous wastes subject to aparticular exclusion. Thus, if a generatordiscards in a calendar month 0.5kilograms of one commerical chemicalproduct listed in § 262.33(e) and 0.5kilogram each of two other listedcommercial chemical products, the total1.5 kilograms of acutely hazardouswastes would be subject to full SubtitleC regulation. The exclusion thus appliesto acutely hazardous wastes in the samemanner as it applies to other hazardouswastes. The rationale for aggregatingwastes to determine the amount ofwastes generated applies with equalforce to acutely hazardous waste as toother hazardous waste. The need for fullregulatory control of these wastes is thesame whether the total is comprised ofone listed substance or three suchsubstances.

Second, the regulation is revised toclarify that the lower exclusion levelsfor acutely hazardous waste apply onlyto generators who otherwise are deemedsmall quantity generators. The Agencybelieves that a generator who producesmore than 1000 kilograms of hazardouswaste a month and is therefore subjectto full regulation should handle hisacutely hazardous wastes in the samemanner as his other wastes. The basisfor the exclusion levels is theadministrative impossibility of EPA

regulating all generators of hazardouswaste. If a generator is subject toregulation on the basis of generatingmore than 1000 kilograms of hazardouswaste, there is no reason to excludefrom regulation his small quantities ofthose wastes which the Agency hasidentified as acutely hazardous. Therewill be no additional drain in theadministrative demands placed on theAgency and the protection of humanhealth and the environment will besignificantly increased.

A final change to § 261.5 has beenmade with respect to acutely hazardouswastes. Section 261.5(c) of the Mayregulation established exclusion levelsfor containers and inner liners that heldacutely hazardous waste. A newsection, 261.7, has been added to theregulations under separate rulemakingthat excludes "empty" containers fromregulation. If a container or inner linerthat has held acutely hazardous waste isempty, it is not subject to regulation andnot subject to the exclusion levels set in§ 261.5. The residues of acutelyhazardous waste in nonemptycontainers or inner liners are subject tothe exclusion levels of § 261.5(g) and therequirements of the section. Thereference to containers and inner linersthat appeared in § 261.5(c) of the Mayregulations is deleted.

D. Conditions Applicable to WasteExcluded from Full Regulation.

Section 261.5(d) of the May regulationspecified the facilities in whichhazardous waste excluded from fullregulation could be managed. TheAgency inadvertently omitted facilitiesthat beneficially use or re-use, orlegitimately recycle or reclaim wastefrom the list of acceptable facilities. TheCongressional policy of promotingresource recovery, as implemented bythe Subtitle C regulatory program in§ 261.6, would not be served by denyingto small quantity generators the sameopportunity to use, re-use, recyle orreclaim their waste which is provided toother generators. Accordingly, theregulation is revised to allow smallquantity generators to treat or dispose oftheir waste in such facilities. Theregulation is also redesignated§ 261.5(g).

Section 261.5(g) has also been revisedto state that hazardous waste must bestored on-site in accordance with§ 261.5(f). This latter paragraph, asdescribed above, covers theaccumulation and storage of wastes on-site. This revision merely reiterates thatstoring or accumulating wastes on-siteunder § 261.5(f) is allowed.

Today's amendments make oneadditional technical correction to theMay regulations. Section 261.5(d)

required generators, as a condition ofthe exclusion from full regulation, todetermine under § 262.11 whether theirwastes were hazardous. Section262.11(a), however, stated that, if agenerator determined that he wassubject only to § 261.5, he did not haveto determine whether his waste washazardous. The Agency has correctedthis inconsistency by deleting thereference to § 261.5 in § 262.11. Thegenerator of solid waste must,determinewhether his waste is hazardous beforedetermining whether his waste isconditionally excluded under § 261.5from full regulation. Without such adetermination the generator ofhazardous wastes would not knowwhether any of the Subtitle Crequirements, including the reducedrequirements, apply to the waste norwhether, if the exclusion levels wereexceeded, the full requirements wouldapply.

E. Requirements Applicable toMixtures.

Section 261.5(e) of the May regulationestablished a special mixture provisionfor hazardous wastes which wereexcluded from full regulation by § 261.5.This provision is redesignated as§ 261.5(h) and has not been revised.

A new paragraph, § 261.5(i), is addedto make clear that mixtures of solidwaste and hazardous wastes whichhave exceeded an exclusion level aresubject to full Subtitle C regulation.Pursuant to § 261.3(a)(3)(ii), a mixture ofsolid waste and hazardous wastes is ahazardous waste. Members of theregulated community have asked whatexclusion level applies to the mixture;for example, whether a mixturecontaining an acutely hazardous wastethat has exceeded an exclusion levelremains subject to the lower exclusionlevels applicable to that waste. Thisnew paragraph clarifies that the lowerexclusion level applies. A contraryresult would encourage generators tomix acutely hazardous wastes subject tofull regulation (i.e., because they aregenerated or accumulated in quantitiesgreater than one kilogram) with otherhazardous excluded wastes (e.g., thosegenerated in quantities of less than 1000kilograms a month) and thus escape theregulatory controls which the Agencyhas determined are essential for the safehandling and management of hazardouswastes.

I1. Effective Date

Section 3010(b) of RCRA provides thatEPA's hazardous waste regulations andrevisions thereto take effect six monthsafter their promulgation. The purpote ofthis requirement is to allow personshandling hazardous wastes sufficient


lead time to prepare to comply withmajor new regulatory requirements. Forthe amendment to § 261.5 promulgatedtoday, however, the Agency believesthat an effective date six months afterpromulgation would cause substantialand unnecessary disruption in theimplementation of the regulations andwould be contrary to the interests of theregulated community and the public.The amended regulation is an integralpart of a regulatory program thatbecomes effective on November 19,1980. In addition, the principal revisionsto the regulation simply clarify andmake technical corrections to theregulation. The revisions also allowgreater flexibility in the manner inwhich small quantity generators handletheir hazardous waste.

The Agency believes it makes littlesense to allow the small quantitygenerator requirements promulgated onMay 19, 1980, to become effective onNovember 19,1980, and then to havethem substantially revised on asubsequent date by this amendment.Clarification of regulatory requirementsand increasing their flexibility are notthe types of regulation revision thatCongress had in mind when it provideda six month delay between thepromulgation and the effective date ofrevisions to regulations. Consequently,the Agency is setting an effective date ofNovember 19,1980, for the amendmentsto § § 261.5 and 262.11 promulgated inthis rulemaking action.

IV. Promulgation in Interim Final Form

These amendments to § 261.5 aredesigned principally to clarify themanner in which the regulationspublished in May of 1980 are to operate.EPA has received many questions on theregulation. These questions indicatedthat there is substantial confusion on thepart of the regulated community aboutthe exclusion of generators of smallquantities of hazardous waste. Absentimmediate effectuation of theseclarifying amendments, EPA believesthat this confusion will persist after theeffective date of the Subtitle Cregulations, November 19,1980. Thisconfusion will lead, EPA believes, toreal and substantial hardship forpersons subject to the reducedrequirements of § 261.5. If uncertainabout the rule's application or operation,many responsible generators ofhazardous waste may unnecessarilycomply with the full Subtitle Cregulations. Immediate implementationof the amendment small quantitygenerator requirements is necessary inorder to avoid inadvertantly imposingsubstantial burdens on literallythousands of generators who are

uncertain whether they are excludedfrom full regulation under § 261.5. Giventhe real and substantial cost that delaymight create, the Agency finds goodcause to promulgate these rules withoutprior notice and opportunity forcomment.

V. Request for CommentsThe Agency invites comments on all

aspects of these amendments to theregulations and on all issues discussedin this preamble. EPA is hopeful that theregulations as revised are reasonable,understandable, and workable. TheAgency will be receptive to commentswhich would improve the regulation.

VI. Regulatory ImpactsThe effect of these amendments is to

reduce the overall costs, economicimpact and reporting and recordkeepingimpacts of EPA's hazardous wastemanagement regulations. This isachieved by clarifying the operation ofthe regulations and increasing theirflexibility. The Agency is unable toestimate these reductions.

Dated: November 14.1980.Douglas M. Costle,Administrator.

Title 40 of the Code of FederalRegulations is amended as follows:

1. Section 261.5 is revised to read asfollows:

§ 261.5 Special requirements forhazardous waste generated by smallquantity generators.

(a) A generator is a small quantitygenerator in a calendar month if hegenerates less than 1000 kilograms ofhazardous waste in that month.

(b) Except for those wastes identifiedin paragraphs (e) and (0) of this section.a small quantity generator's hazardouswastes are not subject to regulationunder Parts 262 through 265 and Parts122 and 124 of this chapter, and thenotification requirements of Section 3010of RCRA, provided the generatorcomplies with the requirements ofparagraph (g) of this section.

(c) Hazardous waste that isbeneficially used or re-used orlegitimately recycled or reclaimed andthat is excluded from regulation by§ 261.6(a) is not included in the quantitydeterminations of this section. and is notsubject to any requirements of thissection. Hazardous waste that is subjectto the special requirements of § 261.6[b)is included in the quantitydeterminations of this section and issubject to the requirements of thissection.

(d) In determining the quantity ofhazardous waste he generates, agenerator need not include:

(1) His hazardous waste when it isremoved from on-site storage; or

(2) Hazardous waste produced by on-site treatment of his hazardous waste.

(e) If a small quantity generatorgenerates acutely hazardous waste in acalendar month in quantities greaterthan set forth below, all quantities ofthat acutely hazardous waste aresubject to regulation under Parts 262through 265 and Parts 122 and 124 of thischapter, and the notificationrequirements of Section 3010 of RCRA:

(1) A total of one kilogram of acommercial chemical products andmanufacturing chemical intermediateshaving the generic names listed in§ 261.33(e), and off-specificationcommercial chemical products andmanufacturing chemical intermediateswhich, if they met specifications, wouldhave the generic names listed in§ 261.33[e); or

(2) A total of 100 kilograms of anyresidue or contaminated soil, water orother debris resulting from the clean-upof a spill, into or on any land or water,of any commercial chemical products ormanufacturing chemical intermediateshaving the generic names listed in§ 261.33(e).

(1) A small quantity generator mayaccumulate hazardous waste on-site. Ifhe accumulates at any time more than atotal of 1000 kilograms of his hazardouswaste, or his acutely hazardous wastesin quantities greater than set forth inparagraphs (e)(1) or (e)(2] of this section,all of those accumulated wastes forwhich the accumulation limit wasexceeded are subject to regulation underParts 262 through 265 and Parts 122 and124 of this chapter, and the notificationrequirements of Section 3010 of RCRA.The time period of § 262.34 foraccumulation of wastes on-site beginsfor a small quantity generator when theaccumulated wastes exceed theapplicable exclusion level.

(g) In order for hazardous wastegenerated by a small quantity generatorto be excluded from full regulationunder this section, the generator must:

(1) Comply with § 262.11 of thischapter,

(2) If he stores his hazardous wasteon-site, store it in compliance with therequirements of paragraph (f) of thissection; and

(3) Either treat or dispose of hishazardous waste in an on-site facility, orensure delivery to an off-site storage,treatment or disposal facility, either ofwhich is:

(i) Permitted under Part 122 of thischapter,

(ii) In interim status under Parts 122and 265 of this chapter;,


(iii) Authorized to manage hazardouswaste by a State with a hazardouswaste management program approvedunder Part 123 of this chapter,

(iv) Permitted, licensed or registeredby a State to manage municipal orindustrial solid waste; or

(v) A facility which:(A) Beneficially uses or re-uses, or

legitimately recycles or reclaims hiswaste; or

(B) Treats his waste prior to beneficialuse or re-use, or legitimate recycling orreclamation.

(h) Hazardous waste subject to thereduced requirements of this sectionmay be mixed with non-hazardouswaste and remain subject to thesereduced requirements even though theresultant mixture exceeds the quantitylimitations identified in this section,unless the mixture meets any of thecharacteristics of hazardous wastesidentified in Subpart C.

(i) If a small quantity generator mixesa solid waste with a hazardous wastethat exceeds a quantity exclusion levelof this section, the mixture is subject tofull regulation.

2. Section 262.11(a) is revised to readas follows:

§ 262.11 Hazardous waste determination.(a) He should first determine if the

waste is excluded from regulation under40 CFR 261.4.

These amendments are issued underthe authority of Sections 1006, 2002(a)and 3002 of the Solid Waste DisposalAct, as amended by the ResourceConservation and Recovery Act of 1976(RCRA), as amended, 42 U.S.C. 6905,6912(a), and 6922.[FR Doc. 80-36130 Filed 11-18-80 8.45 am]


40 CFR Part 262

[SWH-FRC 1675-4]

Hazardous Waste ManagementSystem; Standards Applicable toGenerators of Hazardous Waste

AGENCY: Environmental ProtectionAgency.ACTION: Interim final rule and requestfor comments.

SUMMARY: In regulations promulgated inMay, 1980, establishing a federalprogram for the management ofhazardous wastes, EPA placedrequirements on generators ofhazardous waste that accumulated theirwaste on the site of generation prior toshipment to off-site hazardous wastemanagement facilities [40 CFR § 262.34,

45 FR 33066, 33143 (May 19, 1980)]. Oneof these requirements was that agenerator ship all accumulated wasteoff-site in 90 days or less. Thisamendment eliminates the distinctionbetween accumulation for on-site andoff-site treatment, storage or disposal,provided that, within 90 days, the wasteis sent to a hazardous wastemanagement facility that is eitherpermitted or in interim status. The otherrequirements of § 262.34 are not changedby this rule.DATES: Effective Date: This requirementis effective on November 19, 1980.Comment date: Comments are dueJanuary 19, 1981.ADDRESSES: Comments should beaddressed to the Docket Clerk (Docket3002), Office of Solid Waste (WH-562),U.S. Environmental Protection Agency,401 M Street SW., Washington, D.C.20460.FOR FURTHER INFORMATION CONTACT:Rolf Hill, Office of Solid Waste, (WH-563), U.S. Environmental ProtectionAgency, 401 M Street SW., Washington,D.C. 20460, (202) 755-9145.SUPPLEMENTARY INFORMATION:

I. Introduction

In regulations promulgated inFebruary and May, 1980, EPAestablished standards applicable togenerators of hazardous waste. 40 CFRPart 262, 45 FR 12722 (February 26, 1980),45 FR 33140 (May 19, 1980). Thesestandards, among other things, requiregenerators to initiate a manifest to trackthe movement of hazardous waste,maintain records, and provide propercontainers, labels and placards for thetransportation of hazardous waste. Mostof these requirements apply only togenerators who send their hazardouswastes off the site of generation fortreatment, storage or disposal. Some ofthese requirements, however, apply togenerators who treat, store or dispose oftheir wastes on the site of generation.(See 40 CFR 262.10(b)).

Recognizing that many generatorswould accumulate hazardous waste fora period of time prior to shipping thewaste to an off-site hazardous wastemanagement facility, EPA set specialrequirements in § 262.34 which, if met bythe generator, would allow him toaccumulate the waste on-site witho'uthaving to obtain a RCRA permit for astorage facility under Part 122 of theregulations or comply with theapplicable standards under Parts 264and 265 of the regulations.

The basis and rationale for thesespecial 90-day accumulation rulesappear in the preambles to, and thebackground documents supporting, the

generator regulations first published inFeburary, 1980, and then revised in May,1980. See 45 FR 12722, 12730 (February26, 1980) and 45 FR 33140, 33141 (May 19,1980). By allowing short-termaccumulation without a permit, theregulation reflects the congressionalintent that the RCRA program notinterfere with the manufacturingprocess. See H.R. Rep. No. 94-1491, 94thCong. 2d Sess. 26 (Sept. 9, 1976).Generation of hazardous wastenecessarily requires some accumulationof that waste prior to taking it to ahazardous waste management facility.On the basis of information received Inthe comment period, the Agencyselected ninety days as a period thatprovided sufficient time for suchaccumulation to occur in all reasonablesituations.

Holding hazardous waste for a shortperiod, however, entails many of thesame risks to human health andenvironment as long-term storage, andtherefore the Agency imposed specificrequirements for short-termaccumulation. The special requirementsof § 262.34 require the generator to (1)ship the wastes off-site within 90 days;(2) place the waste in containers ortanks meeting specified technicalstandards; (3) mark the dateaccumulation began on the container ortank; (4) properly label and mark thecontainers; and, (5) comply with the Part265 regulations concerning preparednessand prevention, contingency plans andemergency procedures. Theserequirements are designed to ensure thatshort-term accumulation of hazardouswastes will be done in a manner thatensures protection of human health andthe environment.

Since the publication of theregulations, members of the regulatedcommunity have raised two questionsthat are basic to the application andoperation of this regulation. First, thesepersons have stated that the distinctionbetween accumulation of hazardouswaste prior to off-site shipment andaccumulation prior to on-site treatment,storage or disposal is arbitrary and thatthe 90-day accumulation provisionshould apply to both types ofaccumulation. Second, these personshave stated that although the special g0-day accumulation requirements of§ 262.34 may be appropriate for themore centralized areas and facilitieswhere hazardous wastes areaccumulated prior to off-site transport orultimate on-site disposition, they aremore stringent than necessary for theaccumulation and very short-termstorage of wastes at areas where thewastes are generated and initially


accumulated-often in smallcontainers-prior to movement to themore centralized on-site accumulationand storage areas.

The amendment being promulgatedtoday responds to the first of theseconcerns. For reasons discussed below,however, EPA believes that moreinformation is necessary prior toascertaining the need for amending theregulations to respond to the secondconcern.

II. On-site Accumulation Prior to On-siteTreatment, Storage or Disposal

The effect of the current regulations isto allow one class of generators (i.e.,those who ship their wastes off-site) to"accumulate" their waste for up to 90-days without having a permit or interimstatus and to require all other generators(i.e., those who treat, store and disposeof the wastes on-site) to obtain a RCRApermit or interim status for the sameactivity. The standards applicable toboth classes, however, are similar.Generators who accumulate waste on-site under § 262.34 would have to storetheir wastes in compliance withvirtually all of the technicalrequirements of Part 265 and also satisfymany of the general requirements of thatPart, e.g., prepare contingency plans andemergency procedures. The principaldifference the Agency had discernedbetween these two classes of generatorsthat was that the areas used foraccumulation by the generator whoperformed such activities on-site wouldbe included in their permit covering theother on-site treatment, storage anddisposal facilities. In addition, certainprovisions of the Part 265 regulationsapply to the accumulation areas ofgenerators who manage their wastes on-site; these include security, financialresponsibility, closure and post-closurerequirements.

EPA now believes, however, that theregulations as currently written imposesubstantially different requirements forgenerators who ship their wastes off-siteas opposed to those who do not. Thesedifferences do not appear warranted.The most important of these differencesconcerns eligibility for interim status ifshort-term accumulation is consideredstorage for generators who treat, storeor dispose of their wastes on-site. Toobtain interim status a storage facilitymust be "in existence" on November 19,1980. Section 3005(e), 42 U.S.C. § 6925(e)as amended by the Solid WasteDisposal Act Amendments of 1980, P.L.96-482 (October 21,1980). A generatorwho sends his wastes off-site would beable to construct a new loading dock orstorage shed for short-termaccumulation; a generator who does not

send his wastes off-site could notconstruct a new loading dock (i.e., a newstorage facility) without obtaining aRCRA permit. Second, althoughapplying for a permit for theseaccumulation areas may not entailsignificant increased burden, the termsand conditions of the permit couldimpose requirements beyond thoserequired for generators who ship theirwastes off-site. In addition, otherdifferences between on-siteaccumulation and on-site storage mayemerge as the regulations areinterpreted and applied.

EPA believes that there is no basis forthe distinction and accordingly hasamended the requirement of§ 262.34(a)(1) that accumulated wastesbe shipped off-site within 90 days. Therequirements of § 262.34 are designed toensure protection of human health andthe environment during short-termaccumulation. The destination of thewaste does not change the protectionthat this rule ensures. Section 262.34requires that wastes that areaccumulated on-site still must, within 90days, go to treatment, storage ordisposal facilities which are permittedor in interim status. The regulation nowprovides that such facilities may be on-site as well as off-site; the manner ofregulation and the degree ofenvironmental control is the same forthese facilities.

The selection of a 90-day period in theoriginal rule reflected the maximumaccumulation time that the Agencythought was necessary prior totransporting wastes off-site. Thegenerator does not wholly control thetiming of the transportation becausearrangements have to be made with thetransporter and the hazardous wastemanagement facility. The situation isobviously different if the generator issending his waste to a treatment,storage or disposal facility located onthe site of generation. In this situation.the generator has greater control overthe handling of the waste and the timingof its shipment. The Agency solicitsinformation on whether given thisdifference whether a shorter period, say30 days. should be provided forgenerators who subsequently send theirwastes to an on-site treatment, storageor disposal facility.

III. Application of Requirements to AllAccumulation Areas

In promulgating the regulationsestablishing the requirements for on-siteaccumulation, EPA assumed thataccumulation generally would occur indiscrete areas in the manufacturingcomplex where wastes would be heldprior to shipment to a treatment, storage

or disposal facility. Technical standardsfor tanks or containers, the preparationof contingency plans and similarrequirements are appropriate for loadingdocks, storage buildings and sheds, andother areas in a manufacturing complexwhere hazardous wastes are collectedand accumulated.

Members of the regulated community,however, have pointed out that, within amanufacturing complex, there may bedozens of places where hazardouswastes are collected during dailyoperations prior to taking a containercontaining hazardous waste to theloading dock or other accumulationarea. These commenters havequestioned the appropriateness ofapplying the requirements of § 262.34 toeach place where hazardous wastesmay be initially collected.

EPA believes, however, that therequirments of § 262.34 are appropriatefor both centralized and satelliteaccumulation areas. The Agency,however, is soliciting information onwhether, in some situations, differentrequirements should govern theseaccumulation activities.

Whether at satellite or centralizedaccumulation areas, the hazardouswaste requires proper management inorder to minimize the threat to humanhealth and the environment. Therequirements of § 262.34 are designed toprovide such protection. Containers thatmeet DOT specifications and tanks thatmeet Part 265 design and operatingrequirements appear necessary andappropriate for the accumulation ofhazardous waste regardless of whetherthe accumulation occurs at a centralizedfacility or in different places within aplant. The other requirements of § 262.34similarly appear appropriate to allaccumulation activities on the site ofgeneration; these include marking andlabeling containers; weekly inspectionsof containers; locating of containersholding ignitable and reactive wastesaway from the property line;requirements concerning preparednessand prevention, contingency plans andemergency response and personneltraining. The protection that theserequirements ensure appear appropriateand necessary wherever hazardouswastes are accumulated.

The Agency recognizes that there maybe certain stituations in which therequirements of § 262.34 might not workwell for the initial collection andaccumulation of hazardous waste. Forexample, the Agency does not expect acompany to engage in majorreconstruction of a facility simply to beable to fit a DOT container beneath ahard-to-reach leaky pipe. The Agencydoes. however, want to ensure that all


hazardous waste, once generated, aresafely and properly handled. TheAgency requests comments on situationsin which the requirements of § 262.34may be inappropriate and on themanner in which EPA should handlesuch situations.

IV. Effective DateSection 3010(b) of RCRA provides that

EPA's hazardous waste regulations andrevisions thereto take effect six monthsafter their promulgation. The purpose ofthis requirement is to allow personshandling hazardous wastes sufficientlead time to prepare to comply withmajor new regulatory requirements. Forthe amendments to § 262.34 promulgatedtoday, however, the Agency believesthat an effective date six months afterpromulgation would cause substantialand unnecessary disruption in theimplementation of the regulations andwould be contrary to the interests of theregulated community and the public.The regulatory provision that thisamendment modifies takes effect onNovember 19, 1980. In the absence of theimmediate effectuation of thisamendment, generators who accumulatewastes for on-site treatment, storage ordisposal must prepare to operate thesefacilities as fully regulated hazardouswaste storage facilities on and afterNovember 19, 1980. This would includepreparation and submission of a Part Apermit application covering theaccumulation area.

The Agency believes it makes littlesense to allow the requirementspromulgated on May 19, 1980, to becomeeffective on November 19, 1980, andthen have them substantially modifiedon a subsequent date, i.e., the six-montheffective date for these amendments.Leasing of regulatory requirements isnot the type of revision to regulations forwhich Congress intended a six-monthdelay occur between its promulgationand effective date. Consequently, theAgency is setting an effective date ofNovember 19, 1980, for the amendmentto § 262.34 promulgated in thisrulemaking action.

V. Interim Final PromulgationThis regulation is being promulgated

in interim final form. The reasons fortaking this exceptional procedure aresimilar to those supporting theimmediate effective date. The delayinvolved in initiating normal rulemakingwould cause substantial hardship ongenerators who treat, store or dispose oftheir hazardous wastes on-site. Duringthe pendency of rulemaking, thesegenerators would not be able toconstruct new accumulation areas intheir manufacturing facilities without

obtaining a RCRA permit. Because suchareas are intimately tied to themanufacturing process itself, such adelay might in effect create a prohibitionof redesign and reconstruction of thesemanufacturing units.

Although the Agency does not adoptthis procedure lightly, the circumstancesindicate that the use of interim finalpromulgation is appropriate. As onecourt has noted "tilt is an appropriatesafety valve to be used where delaywould do real harm." U.S. Steel Corp. v.EPA, 595 F.2d 207, 214 (5th Cir., 1979).EPA believes that the effect of delayingpromulgation of this amendment wouldcause substantial, and unnecessary,hardship on a large number ofmanufacturing operations. In thissituation, the use of advance notice andcomment procedures would be contraryto the public interest and therefore goodcause exists for adopting thisamendment in interim final form. See 5U.S.C. § 553(b)(B).

VII. Request for Comments

The Agency invites comments on allaspects of this amendment to theregulation and on all the issuesdiscussed in this preamble. The Agencyhas recently requested comments of oneaspect of § 262.34, its applicability toproduct storage tanks. 45 CFR 72024(October 30, 1980). The Agency willconsider all comments received on§ 262.34 prior to promulgating this rulein final form. EPA desires to formulatesound and sensible regulationsconcerning the proper handling ofhazardous waste. The requirements of§ 262.34 are an important aspect of thisbroader concern, and, if commentershave suggestions on ways to improvethis regulation, the Agency would bereceptive to their suggestions.

VIII. Regulatory Impacts

The effect of this amendment is toreduce the overall costs, economicimpact and reporting and recordkeepingimpacts of EPA's hazardous wastemanagement regulations. This isachieved by removing accumulationareas of generators who sendaccumulated wastes to on-site disposalfacilities from full regulation as storagefacilities. The Agency is unable toestimate these cost and impactreductions because it does not have anestimate of the number of such areasthat otherwise would be fully regulated.For the reasons already discussed,notwithstanding these cost and impactreductions, the Agency believes thathuman health and environmentalprotection will not be reduced by thisaction.

Dated: November 14, 1980.Douglas M. Costle,Administrator.

Title 40 of the Code of FederalRegulations is amended as followo:

§ 262.34 [Amended]1. In § 262.34, paragraph (a)(1) is

revised to read as follows.(a) A generator may accumulate

hazardous waste on-site without apermit or without having interim status,provided that:

(1) All such waste is, within 90 days,shipped off-site to a designated facilityor placed in an on-site facility that ispermitted under Part 122 of this Chapter,has interim status under Parts 122 of thisChapter, or is authorized to managehazardous waste by a State with ahazardous waste management programapproved under Part 123 of this Chapter.

These amendments are issued underthe authority of Sections 1006, 2002(a),3002, 3003, 3004 and 3005 of the SolidWaste Disposal Act, as amended by theResource Conservation and RecoveryAct of 1976 (RCRA), as amended, 42U.S.C. 6905, 6912(a), 6922, 6923, 6924 and6925.[FR Doc. 80-36131 Filed 11-18-80; 8:45 am)

BILLIG CODE 6560-30-M

40 CFR Parts 122, 260, 264 and 265

[SWH-FRL 1675-5]

Hazardous Waste ManagementSystem

AGENCY: Environmental ProtectionAgency.ACTION: Interim final rule and requestfor comments.

SUMMARY: In regulations promulgated inMay of 1980, the EnvironmentalProtection Agency ("EPA") establisheda comprehensive program for thehandling and management of hazardouswastes. 45 FR 33066 (May 19, 1980). Theregulations, among other things, set forthsubstantive requirements for thetreatment and storage of hazardouswastes and require owners andoperators of treatment and storagefacilities to have Resource Conservationand Recovery Act (RCRA) permits orinterim status pursuant to Parts 265 and122 of the regulations. Certain activitieswhich persons may take in response tospills of hazardous wastes or materialswhich, when spilled, become hazardouswaste might be considered treatment(e.g., absorption, neutralization) orstorage (e.g., diking, containment). Inthis action EPA makes clear that therequirements for treatment and storageare not applicable to actions taken to


immediately contain and treat spills ofhazardous wastes and materials which,when spilled, become hazardous waste.This action also adds a definition of spillin § § 260.10 and 122.3.

DATES: Effective date: Theseamendments become effective onNovember 19,1980.

Comment Date: The Agency willaccept comments on these amendmentsuntil January 19, 1981.

ADDRESS: Comments on theseamendments should be addressed to theDocket Clerk (Docket 3004, Office ofSolid Waste (WH-562). U.S.Environmental Protection Agency, 401 MStreet, S.W., Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT.For general information, contact AmyMills. Office of Solid Waste (WH.-563),U.S. Environmental Protection Agency,401 M Street, S.W., Washington, D.C.20460. For information onimplementation, contact:

Region I, Dennis Hueber, Chief,Radiation, Waste ManagementBranch, John F. Kennedy Building,Boston, Massachusetts 02203, (617)223-5777

Region II, Dr. Ernest Regna, Chief, SolidWaste Branch, 26 Federal Plaza, NewYork, New York 10007, (212) 264-0504/5

Region III. Robert L. Allen, Chief,Hazardous Materials Branch, 6th andWalnut Streets, Philadelphia,Pennsylvania 19106, (215) 597-0980

Region IV, James Scarbrough, Chief,Residuals Management Branch, 345Courtland Street, N.E., Atlanta,Georgia 30365, (404) 881-3016

Region V, Karl J. Klepitsch, Jr., Chief,Waste Management Branch, 230 SouthDearborn Street, Chicago, Illinois60604, (312) 886-6148

Region VI, R. Stan Jorgensen, ActingChief, Solid Waste Branch, 1201 ElmStreet, First International Building,Dallas, Texas 75270, (214) 787-2645

Region VII, Robert L Morby, Chief,Hazardous Materials Branch, 324 E.11th Street, Kansas City, Missouri64106, (816) 347-3307

Region VIII, Lawrence P. Gazda, Chief,Waste Management Branch, 1860Lincoln Street, Denver, Colorado80203. (303) 837-2221

Region IX, Arnold R. Den, Chief,Hazardous Materials Branch, 215Fremont Street. San Francisco,California 94105, (415) 556-4606

Region X, Kenneth D. Feigner, Chief,Waste Management Branch, 1200Sixth Avenue, Seattle, Washington98101, (206) 442-1260

SUPPLEMENTARY INFORMATION:I. Introduction

In May of 1980. EPA promulgatedregulations implementing Subtitle C ofthe Resource Conservation andRecovery Act of 1976, as amended("RCRA"). These regulations, amongother things, identify and list hazardouswastes (Part 261), establish standardsfor generators and transporters ofhazardous waste (Parts 262 and 263),and set standards and permitrequirements for owners and operatorsof facilities that treat, store or dispose ofhazardous waste (Parts 264 and 265 andParts 122 and 124). 45 FR 33066 (May 19.1960). These regulations are designed toensure the proper handling andmanagement of hazardous wastes fromtheir generation through their ultimatedisposition.

Because wastes may be produced,handled and disposed of in a largenumber of ways, the regulationsnecessarily are cast in broad terms. Agenerator is anyone whose act orprocess produces a hazardous waste orwhose action first causes a hazardouswaste to become subject to regulation.Section 260.10(a), 45 FR 72024 (October30,1980). This act or process may be themanufacture of goods or materials,service operations such as cleaning withchemical solvents listed in § 261.31, orthe discard of commercial chemicalproducts listed § 261.33. Storage isdefined as "the holding of hazardouswaste for a temporary period .. .', andtreatment as "any method, technique, orprocess, including neutralization,designed to change the physical,chemical, or biological character orcomposition of any hazardous waste soas to neutralize such waste, or so as torender such waste nonhazardous, or lesshazardous; safer to transport, store ordispose of; or amenable for recovery,amenable for storage, or reduced involume." Section 260.10(a).

This action concerns how theregulations apply to hazardous wastesthat are created by spills of hazardouswaste or materials which, when spilled,become hazardous waste. For reasonsdiscussed below, the word "spill" isdefined in the amendments publishedtoday as "the accidental spilling,leaking, pumping, pouring, emitting,emptying, or dumping of hazardouswaste or material which, when spilled,becomes hazardous waste into or onany land or water." This definitionobviously covers spills of thosehazardous waste listed in §§ 261.31 and261.32 and those solid wastes thatexhibit any of the characteristics ofhazardous wastes defined in Subpart Cof Part 261. This definition also coversspills of the commercial chemical

products and manufacturing chemicalintermediates listed in § 261.33 (e) and(f). The Agency interprets spills of thesematerials to constitute discarding ofsuch materials (see definitions in § 261.2(c) and (d)). These materials, whendiscarded, are hazardous waste (see§ 261.33). In addition, other materials,when spilled, are considered solid wastebecause spilling constitutes discardingand may exhibit the characteristic ofhazardous waste defined in Subpart C ofPart 261.

Members of the regulated communityhave asked whether certain activitiestaken in immediate response to suchspills constitute treatment (e.g.,neutralizing the hazardous waste] orstorage (e.g., containing the waste inorder to prevent its spread). Thesequestions have significant practicalimplications. Treatment and storage ofhazardous wastes, under theregulations, must be carried out infacilities that have interim status underSection 3005(e) of RCRA and 40 CFRPart 122 or that have a storage ortreatment permit from EPA or a Stateauthorized to run a hazardous wasteprogram under Section 3006.' Spills aresudden, unplanned events. In manycases, the treatment or storagenecessary to respond to spills will notbe covered by a RCRA permit or interimstatus. This is particularly true forgenerators who do not treat, store ordispose of hazardous waste andtransporters who would have neither apermit nor interim status. It also may betrue for owners and operators oftreatment, storage or disposal facilitieswhere their permit or interim status maynot cover the types of treatment orstorage performed in responding to aparticular spill. Persons responding tothe spills would be placed in theuncomfortable position of taking actionsnecessary to protect human health andthe environment while being in violationof RCRA.2

In addition. Parts 264 and 265 set forththe manner in which persons may treat

'Under § 122.27 the Regional Administrator isauthorized to Issue emergency permits if there is anImminent and substantial endangerment to humanhealth or the environment to allow the treatment.storage or disposal of hazardous waste for anonpermitted facility or activities not covered by apermiLt. § 122.27 set forth procedures governing theissuance of emergency permits. EPA is presentlydeveloping guidance for the issuance of thesepermits.

2 lazardous wastes produced in small quantitiesare excluded from full Subtitle C regulation under§ 261.5. A condition of that exclusion, however, isthat wastes subject to § 251.5 must be managed inSubtitle C facilities, facilities approved by the State.or use. re-use, recycling or reclamation facilites.Thus even for spills by small quantity generators,the same dilemma is posed for persons whoseresponse might constitute treatment or storage


or store hazardous wastes. With respectto chemical, physical, and biologicaltreatment, for example, the regulationsprescribe such things as generaloperating requirements, waste analysisand trail tests, inspections, and closurerequirements. See 40 CFR 265 SubpartQ. If, for example, reagents are used toabsorb or neutralize a chemical productlisted in § 261.33 which has spilled in aplant, the treatment requirementsspecified in the regulations wouldtechnically govern the response to thespill.

This amendment is designed to allowappropriate responses to spills ofhazardous wastes without being limitedby the treatment and storage standardsand the permit and interim statusrequirements of the regulations. Itshould be noted that EPA is developingregulations which will address in morecomprehensive fashion the applicationof the RCRA regulations to spillresponse activities. That rulemaking willclarify, among other things, relationshipof RCRA and other Federal statutes,particularly the Clean Water Act andthe Hazardous Materials TransportationAct, which concern spill activities.

II. What These Amendments Do

The amendments published today addthree new elements to the regulationspublished in May, 1980: they add adefinition of spill; exempt immediatecontainment and treatment activitiesfrom the Part 264 and 265 regulationsgoverning treatment and storage; and,amend Part 122 to indicate that suchactivities do not have to be covered by aRCRA permit or interim status.

The definition of "spill" is the same asthe definition of "discharge" in§ 260. 10(a), except that the word"intentional" has been deleted from thedefinition of spill and the phrase"material which, when spilled, becomeshazardous waste" has been added. Theexclusion from regulation provided intoday's amendments is designed toallow persons to respond immediately tosudden, unplanned occurrences, i.e.,accidents, which release materials orwastes into the environment. There doesnot appear to be any basis to extendtoday's action to intentional releaseswhich might occur. Releases whichoccur from burst pipes and rupturedcontainers would be considered spills;releases which routinely occur from, forexample, scheduled maintenance ofmachinery would not be. The Agencyspecifically requests comment onwhether the definition of spills providesappropriate scope for the substantiveamendments published today. Forpurposes of the RCRA portions of theconsolidated permit regulations, a

corresponding definition of spill hasbeen added to § 122.3.

The amendments to Parts 264 and 265state that treatment and containmentactions taken in immediate response tospills are not considered treatment orstorage of hazardous waste. Theseresponse activities are not subject,therefore, to the detailed requirementsof those parts governing treatment andstorage. The amendment to § 122.21indicates that these activities do nothave to be covered by a RCRA permit.

The amendments only cover activitiesduring the immediate response to a spill.As discussed below, once this responseis accomplished, other regulatoryprovisions apply. Section IV of thispreamble provides examples of howthese amendments and the otherregulatory provisions apply to spillsituations. These amendments aredesigned to allow persons to respondimmediately to spills which may posedangers to human health and theenvironment. If the Agency believes thatanyone is abusing this provision, it willnot hesitate to bring enforcementactions, including, under appropriatecircumstances, criminal prosecutions.

III. Regulations not Affected by ThisAmendment

The purpose of today's amendments isto allow persons to treat and containspills without having engaged intreatment and storag6 activities and torecognize that spills occur at placeswhich might otherwise not be treatmentand storage facilities. Theseamendments do not affect whether thespilled substance, residue or debris is ahazardous waste or not; Part 261 willgovern. They do not affect in an way theapplication of the generator andtransporter requirements; Parts 262 and263 will govern these activities. Afterthe immediate response activities arecompleted, the hazardous waste issubject to all the requirements fortransportation, treatment, storage, ordisposal.

The regulations promulgated in May,1980, explicitly place specificrequirements for certain spills ofhazardous waste-discharges occurringduring transportation and releasesoccurring at on-site accumulation areasand in treatment, storage and disposalfacilities. These regulations, describedbriefly below, are unaffected by theamendments published today. These*amendments complement theregulations by clarifying that actionstaken in response to spills and incompliance with those regulations arenot subject to the treatment and storageregulations and do not have to becarried out at a treatment or storage

facility with a RCRA permit or in Interimstatus.

Discharges of hazardous waste duringtransportation are subject to theprovisions of Part 263 concerningimmediate action, reporting, andcleanup. 40 CFR 263.30 and 263.31, 45 FR12744 (February 26, 1980), republished at45 FR 33152 (May 19, 1980), Dischargesof hazardous materials duringtransportation are also subject to thereporting provisions of DOT regulationsunder the Hazardous MaterialsTransportation Act. 49 CFR 171.15,171.16. These regulations will apply tospills during transportation and thoserequirements are not affected by today'samendment.

The Part 264 and 265 regulationscontain extensive requirements forhazardous waste management facilitiesconcerning preparedness andprevention, and contingency plans andemergency procedures. 40 CFR Part 265,Subparts C and D, 45 FR 33236, 33237(May 19, 1980). To ensure properresponse to explosions, fires, and otherreleases of hazardous waste, theseprovisions require owners and operatorsof regulated facilities to have safetyequipment and systems, arrangementswith relevant local authorities, acontingency plan and emergencyprocedures covering response activities.These regulations continue to apply toreleases at hazardous wastemanagement facilities which presentdangers to human health and theenvironment. For example, §§ 264.56and 265.56, concerning emergencyprocedures, have not been exempted.The emergency coordinator must followthe procedures set forth in thosesections. Today's amendment simplymeans that actions taken, for example,under § 265.56(e), are not subject to thetreatment and storage requirements ofPart 265.

Regulations promulgated under otherFederal, state or local laws may apply tospills of hazardous waste and othermaterials. On the Federal level, twoexamples are Section 311 of the CleanWater Act and the Hazardous MaterialsTransportation Act. Under Section 311of the Clean Water Act, discharges ofoils and hazardous substances (whichmay also be hazardous wastes) aresubject to regulation. Hazardousmaterials, as regulated by DOT underthe Hazardous Materials TransportationAct, include hazardous wastes. See 45FR 3451 (May 22, 1980). Theamendments published today concernonly RCRA requirements and in no wayaffect a person's obligations orresponsibilities under any otherapplicable Federal, state or local law.


IV. Examples of How TheseAmendments Operate

The following examples illustrate themanner in which the amendmentspublished today operate and tie in withthe other RCRA regulations.

1. A manufacturer spills a commercialchemical product listed in § 261.33(e) onthe floor of his plant. He immediatelyuses a reagent to absorb or neutralizethe spill, whose residue amounts tomore than 100 kilograms. He places theresidue in containers for subsequenttransportation off-site. What regulationsapply?

The manufacturer is a generator of ahazardous waste-the spilled chemicalas well as the resulting residue. He isnot a small quantity generator becausehe has generated more than 100kilograms of § 261.33(e) residue. See 40CFR § 261.5(e)(2]. His use of the reagentis not subject to treatment regulations ofParts 264 and 265 and this use does nothave to be covered by a RCRA permit orinterim status. Once the immediateresponse is over, however, he becomessubject to the generator requirements ofPart 262. These include requirements foraccumulation on-site, use of EPAidentification numbers prior totransporting the residue off-site,initiation of the manifest, and use ofappropriate packaging, labelling,marking and placarding.3 Manufacturerswho anticipate such spills may, as aprecautionary measure, make necessaryarrangements to comply with the Part262 regulations in advance. And, thetransportation and subsequenttreatment, storage or disposal of thespill residue is subject to therequirements of Parts 263, 264, 265 and122.

2. A tank used to accumulatehazardous waste (under therequirements of § 262.34] ruptures andthe wastes spill on to the ground.Because the tank does not have asecondary containment system, thegenerator immediately builds anemergency dike to contain the spilledwaste. He subsequently pumps thespilled waste into drums and, after

3 EPA recognizes that certain persons. includingmanufacturers and transporters of hazardousmaterials. may not have EPA identification numbersprior to a spill which creates hazardous waste. Atthis time EPA has decided not to exempt dischargesfrom the requirement of having an EPA ID number.Generators do not need an EPA ID number at thetime of generation but rather at the time of treating.storing or disposing of the waste or transporting oroffering the waste for transportation. Generatorswill have an opportunity to obtain an EPA IDnumber after the spill. And. persons who anticipatethat they may generate hazardous waste in thefuture may obtain an EPA ID number in advance.For these reasons, EPA believes that at this timethere is no reason to exempt these generators fromthis requiremenL

several weeks, ships those drums off-site to an incinerator.

The design, construction andoperation of the emergency containmentdike is not subject to the RCRA SubtitleC regulations (however. the overallresponse to the spill is subject to therequirements of Subparts C and D ofPart 265 which apply by referencethrough § 262.34]. The storage of thecleaned-up wastes in drums is subject tothe accumulation requirements of§ 262.34 if storage in the drums is forless than 90-days before off-siteshipment or in a on-site. If storage in thedrums exceeds 90-days. then this mustbe covered by a RCRA permit (anexisting permit, a new permit, or anemergency permit) or be covered byinterim status, and must be carried outin compliance with the applicablerequirements of Parts 264 or 265. Theincinerator that the drummed wastesshipped to, must have a RCRA permit orinterim status.

If, as part of the immediate clean-upaction, the containment soil of the dikedcontainment area is treated (e.g.,decontamination of the soil in a mobiletreatment unit) or the spilled waste istreated, such activity also would not besubject to regulation. However, if suchtreatment extends beyond theimmediate clean-up action, EPA willrequire an emergency RCRA permit tobe obtained. If contaminated soil is leftin place, this constitutes disposal andwill require a RCRA permit.

3. A spill of hazardous waste materiallisted in § 261.33(e) occurs intransportation. What must thetransporter do?

Under § 263.30(a), the transportermust take appropriate immediate actionto protect human health and theenvironment The spill containment ortreatment action taken in immediateresponse is exempt from the treatmentand storage requirements of Parts 264and 265 and the transporter is notrequired to have a RCRA permit orinterim status for such action. If he hasgenerated hazardous waste, he mustcomply with Part 262 when theimmediate actions are over. If hetransports the spill residue from the spillsite, he must comply with thetransporter requirements of Part 263 andtransport the residue to a facility with aRCRA permit or interim status.

If required by DOT regulations (see 49CFR 171.15) or other federal regulations(see, e.g., 40 CFR 117.21 and 33 CFR153.201), the transporter must notify theNational Response Center. If an on-scene coordinator or other officialarrives, that official may undertakeresponse activities which are exemptedby today's amendments from the RCRA

standards and permit requirements fortreatment and storage. Under thepresent regulations, § 263.30(b), theseofficials may authorize the removal ofthe waste by transporters without EPAidentification numbers and without thepreparation of a manifest. Thehazardous waste residue must be sent toa hazardous waste management facilitywith a RCRA permit or interim status. Iflong-term containment or treatmentoccurs at the spill site, the site musthave a full RCRA permit, interim status,or an emergency permit.

4. A spill occurs on the site of disposalfacility which is in interim status. Theoperator of the facility undertakesimmediate containment and clean up.He subsequently disposes of the wasteat his facility.

The immediate containment and cleanup activities are exempted from therequirements of Part 264 and storageand treatment. The owners andoperators of the facility must, however,carry out the provisions of thecontingency plan under § 265.51 andfollow the emergency procedures§ 265.56. The disposal of the hazardouswaste is subject to the disposalrequirements of Part 265. If the disposalfacility is unable to dispose of the spillresidue, the owner or operator of thefacility, if he has generated a hazardouswaste, may accumulate the waste on-site under the provisions of § 262.34, andmust comply with all the Part 262requirements applicable to generators ofhazardous waste.

V. Effective DateSection 3010[b) of RCRA provides that

EPA's hazardous waste regulations andrevisions thereto take effect six monthsafter their promulgation. The purpose ofthis requirement is to allow personshandling hazardous wastes sufficientlead time to prepare to comply withmajor new regulatory requirements. Forthe amendments promulgated today,however, the Agency believes that aneffective date six months afterpromulgation would cause substantialand unnecessary disruption in theimplementation of the regulations andwould be contrary to the public interest.The amendments make clear thatpersons responding to spills are notengaging in treatment and storageactivities and that such activities do nothave to be done in facilities with aRCRA permit or in interim status. Theeffect of the amendments will be torelieve these persons of having tocomply with a number of impracticalrequirements with respect to spillsresponse actions. The Agency believesthat this is not the type of regulationrevision that Congress had in mind


when it provided a six month delaybetween the promulgation and theeffective date of revisions to regulations.Consequently, the Agency is setting aneffective date of November 19, 1980, forthese amendments.

VI. Promulgation in Interim Final Form

These amendments operate as aclarification of the hazardous wasteregulations published in May of 1980. 45FR 33066 (May 19, 1980). With certainexceptions, those regulations did notaddress containment and treatment ofspills of hazardous wastes or materialswhich, when spilled, become hazardouswastes. A literal interpretation of theMay regulations, however, would meanthat such actions constitute storage anddisposal fully subject to regulation.These amendments -conform theregulations to their original intent. TheAgency believes that good cause existsfor promulgation of this rule in finalform. See 5 U.S.C. 553(b)(B).

Delaying the application of these rulesto allow opportunity for public noticeand comment would work substantialhardship on persons handling hazardouswaste. The regulatory program goes intoeffect on November 19, 1980. Spills areeveryday occurrences in the real world.Without immediate clarification of theregulations, all persons who might in thefuture spill a hazardous material orhazardous waste would have to theprepared to be in full compliance withthe Part 265 regulations governingtreatment and storage. Without theseclarifying amendments substantialhardship would be imposed, withoutappreciable benefit, on the regulatedcommunity.

VII. Requests for Comments

The Agency is soliciting comments onall aspects of the amendments and onall issues discussed in this preamble. Inaddition, the Agency may initiate morecomprehensive rulemaking in the nearfuture on RCRA's application to spillresponses. The amendments publishedtoday will be subject to reconsiderationat that time. The public may accordinglybe provided additional opportunity tocomment on the Agency's regulation ofspills.

VIII. Regulatory Impacts

The effect of these amendments is toreduce the overall costs, economicimpact and reporting and recordkeepingimpacts of EPA's hazardous wastemanagement regulations. The Agency isunable to estimate these reductions.

Dated: November 14,1980.Douglas M. Costle,Administrator.

Title 40 of the code of FederalRegulations is amended as follows:

§ 260.10 [Amended]1. Add the following definition to

§ 260.10(a)(64a):"Spill" means the accidental spilling,

leaking, pumping, pouring, emitting, ordumping of hazardous wastes ormaterials which, when spilled, becomehazardous wastes into or on any land orwater.§ 122.3 [Amended]

2. Add the following definition to§ 122.3:

"Spill" [RCRA] means the accidentalspilling, leaking, pumping, emitting,emptying, or dumping of hazardouswastes or materials which, when spilled,become hazardous wastes into or onany land or water.

§ 264.1 [Amended]3. Add the following paragraph (g)[8)

to § 264.1:

(g) •(8) Persons with respect to those

activities which are carried out toimmediately contain or treat a spill ofhazardous waste or material which,when spilled, becomes a hazardouswaste, except that, with respect to suchactivities, the appropriate requirementsof Subpart C and D of this Part areapplicable to owners and operators oftreatment, storage and disposal facilitiesotherwise subject to this Part.[Comment: This paragraph only appliesto activities taken in immediateresponse to a spill. After the immediateresponse activities are completed, theapplicable regulations of this Chapterapply fully to the management of anyspill residue or debris which is ahazardous waste under Part 261.]§ 265.1 [Amended]

4. Add the following paragraph (c)(11)to § 265.1:

(c) * * *(11) Persons with respect to those

activities which are carried out toimmediately contain or treat a spill ofhazardous waste or material which,when spilled, becomes a hazardouswaste, except that, with respect to suchactivities, the appropriate requirementsof Subpart C and D of this Part areapplicable to owners and operators oftreatment, storage and disposal facilitiesotherwise subject to this Part.[Comment: This paragraph only appliesto activities taken in immediateresponse to a spill. After the immediate

response activities are completed, theregulations of this Chapter apply fully tothe management of any spill residue ordebris which is a hazardous wasteunder Part 261.1

§ 122.21 [Amended]5. Add the following paragraph (d)(3)

to § 122.21:}* * ***

(d) *

(3) Further exclusions. A person is notrequired to obtain a RCRA permit forthose activities he carries out toimmediately contain or treat a spill ofhazardous waste or material which,when spilled, becomes a hazardouswaste. [Comments: This exclusion isintended to relieve persons of thenecessity of obtaining a RCRA permitwhere the treatment or storage ofhazardous waste is undertaken as partof an immediate response to a spill. Anytreatment, storage or disposal of spilledmaterial or spill residue or debris that isundertaken must be covered by a RCRApermit, an emergency RCRA permit orinterim status.]

These amendments are issued underthe authority of Sections 1006, 2002(a).3004 and 3005 of the Solid WasteDisposal Act, as amended by theResource Conservation and RecoveryAct of 1976 (RCRA), as amended, 42U.S.C. 6905, 6912(a), 6924 and 6925.tFR Doc. 80-38132 Filed 11-18-80.8:45 am)


40 CFR Part 122

[SWH-FRL 1676-2]

Hazardous Waste ManagementSystem: General and EPAAdministered Permit Programs: TheHazardous Waste Permit Program

AGENCY: United States EnvironmentalProtection Agency.ACTION: Interim final rule and requestfor comments.

SUMMARY: The Environmental ProtectionAgency ("EPA") is today amending itshazardous waste permit regulations toclarify the circumstances under whichhazardous waste management facilitiesmay qualify for interim status. Interimstatus is the condition under whichcertain facilities would be treated ashaving been issued a permit until suchtime as final administrative action wastaken on their permit application. Theseamendments have been prompted byquestions from States and the regulatedcommunity concerning the eligibility ofvarious types of facilities for interimstatus.

Federal Register / Vol. 45, No. 225 / Wednesday, November 19. 1980 / Rules and Regulations 76631

This notice also solicits comment onenforcement and regulatory policieswhich EPA is considering adopting todeal with facilities which miss thenotice and application filing deadlinesfor interim status.DATES: Effective date: November 19,1980. Comment Date: Comments on theamendments and policies discussed inthis notice are due February 17,1981.FOR FURTHER INFORMATION CONTACT.John H. Skinner, Director, StatePrograms and Resource RecoveryDivision (WH-564), U.S. EnvironmentalProtection Agency, 401 M Street, S.W.,Washington, D.C. 20460, 202/755-9107.ADDRESSES: Comments should be sentto Docket Clerk, Office of Solid Waste(WH-562], 401 M Street, S.W.,Washington, D.C. The comments shouldrefer to "Docket 3005-Interim status".SUPPLEMENTARY INFORMATION:

I. Introduction

Subtitle C of the ResourceConservation and Recovery Act of 1976,as amended ("RCRA"), 42 U.S.C.§ § 6921-6933, requires EPA to establisha comprehensive Federal regulatoryprogram to assure the propermanagement of hazardous waste. One ofthe most important features of thisprogram is the rquirement that facilities'which treat, store or dispose ofhazardous waste obtain a permit fromEPA (or a State authorized by EPA toconduct a hazardous waste program)and that hazardous wastes only bedesignated for, delivered to and treated,stored or disposed of in these permittedfacilities (Sections 3002, 3003, 3004 and3005). Indeed, after the effective date ofEPA's regulations identifying hazardouswastes, it is a felony to transport thosewastes to an unpermitted facility or totreat, store or dispose of them at anunpermitted facility (Sections 3008(d)(1)and (2)).

Recognizing that EPA and authorizedStates would not be able to issuepermits to all hazardous wastemanagement facilities before theSubtitle C program became effective,Congress provided in Section 3005(e) ofRCRA that certain facilities would betreated as having been issued a permituntil such time as final administrativeaction was taken on their permitapplication. This statutory permit-commonly referred to as "interimstatus", the title of Section 3005(e)-is

'Throughout this notice, EPA will use the term"facility" to refer to the owner and operator of ahazardous waste management facility as well as thefacility itself. Thus where, for example, the noticespeaks of a "facility" being issued a permit, thatterm should he understood to mean the owner andoperator of the facility.

conditioned on a facility's meeting thefollowing three requirements:

1. The facility must have been inexistence on November 19, 1980.2

2. The facility must have "compliedwith the requirements of section3010(a)" of RCRA (notification ofhazardous waste activity).

3. The facility must have filed anapplication for a permit under Section3005.

On May 19,1980, EPA publishedregulations defining when a hazardouswaste management facility may qualifyfor interim status. See 40 CFR§§ 122.22(a) and 122.23(a), 45 FR 33433-33434 (May 19,1980). Those regulationsprovide that interim status may only beobtained by an existing facility (definedin § 122.3) which has "[n]otified theAdministrator within 90 days from thepromulgation or revision of Part 261 asrequired by Section 3010 of RCRA"(§ 122.23(a)(1)) and submitted anapplication within "six months after thefirst promulgation of regulations in 40CFR Part 261 listing and identifyinghazardous wastes"-i.e., November19,1980 (§ 122.22(a)).

EPA has received numerous questionsabout these provisions since theirpublication. Most have focused on twomajor issues: whether facilities canqualify for interim status afterNovember 19,1980, and whetherfacilities which missed statutory orregulatory filing deadlines can qualifyfor iterim status. We have examinedthese issues carefully and haveconcluded that §§ 122.22(a) and 122.23need to be amended to better define theuniverse of hazardous wastemanagement facilities which are eligiblefor interim status under Section 3005(e).We have also decided that the Agencyneeds to establish enforcement andregulatory policies to deal with facilitieswhich have failed to meet applicabledeadlines for filing notifications andpermit applications. These amendmentsand policies are discussed below in thecontext of the three statutoryprerequisites for interim status.

II. Requirement That Facilities "ComplyWith the Requirements of Section3010(a)"

Section 3005(e)(2) of RCRA conditionsinterim status on a facility's having"complied with the requirements ofSection 3010(a)." Section 3010(a) in turnrequires that-

2When RCRA was originally enacted. Section3005(e) provided that a facility had to be Inexistence as of"the date of enactment of thisAct"-Le. October 21.1970. Recent amendments toRCRA have changed this date to November 19, 190.See Section 10 of the Solid Waste Disposal ActAmendments of 1960. P.L 96-482 (October 21. 19W).

Not later than ninety days afterpromulgation of regulations under section3001 identifying or listing anysubstance as a hazardous waste... anyperson generating or transporting suchsubstance or owning or operating a facilityfor the treatment, storage or disposal of suchsubstance shall file .vith the Administrator(or with States having authorized hazardouswaste permit programs * * *) a notificationstating the location and general description ofthe activity and the identified or listedhazardous wastes handled by such person.

Three major questions have beenraised concerning the interrelationshipbetween Sections 3005(e)(2) and 3010(a).

A. Requirement to notify.A number of facilities have pointed

out to EPA that they were not requiredto notify under Section 3010(a). Theyhave asked whether a facility which isnot required to notify under Section3010(a) (and therefore did not submit atimely notification) would be eligible forinterim status.

These facilities are correct in theirobservation that Section 3010(a) doesnot require all hazardous wastemanagement facilities to notify. Thenotification requirements of Section 3010are triggered only by the publication ofregulations under Section 3001 "identifyby its characteristics or listing anysubstance as hazardous waste subject to... subtitle [C]" and apply only topersons who are handling thosesubstances at the time the regulationsare published. See also 45 FR 12747-12748 (February 26,1980). Moreover,EPA has, by regulation, exemptedseveral classes of facilities which wouldotherwise be required to notify underSection 3010 from having to comply withany notification requirements (e.g., on-site storage facilities operated by smallquantity generators (see § 261.5) andrecycling facilities (see § 261.6)).

If a facility is not required to file aSection 3010 notification, it is EPA'sopinion that it has "complied with therequirements of Section 3010(a)" andhas met that prerequisite for interimstatus. A contrary construction ofSection 3005(e)(2)-which would haveeligibility for interim status turn onwhether a facility had filed anotification, irrespective of whether itwas required to-would conditioninterim status on a facility's meeting arequirement which was not dictated byeither statute or regulation. Indeed, insome cases-e.g., where a facility didnot begin handling hazardous wasteuntil after the ninety-day notificationdeadline-it would condition interimstatus on a facility's meeting arequirement with which it could not, asa practical matter, comply.

EPA's May 19,1980, regulationsdefining when a facility may obtain

76632 Federal Register / Vol. 45, No. 225 / Wednesday, November 19,

interim status did not reflect thedistinction between filing a notificationand being required to file a notificationunder Section 3010. To correct this error,EPA is today amending § 122.23(a)(1) tomake it clear that a facility which is notrequired to notify under Section 3010may obtain interim status without filinga notification if it meets the remainingtwo prerequisites set forth in Section3005(e).

3

B. Ninety day filing deadline.A number of facilities which were

required to file a notification as a resultof the publication of EPA's May 19, 1980,regulations have advised the Agencythat they did not file a notificationwithin ninety days. These facilities haveasked whether they will be eligible forinterim status if they file a latenotification.

As noted above, Section 3010(a)requires facilities handling wastes listedin EPA's May 19, 1980, regulations notonly to file a notification, but to file thenotification within ninety days (i.e., byAugust 18, 1980). It is EPA's opinion thata facility which was required to notifyas a result of the publication of EPA'sMay 19, 1980, regulations and did notfile a notification by August 18, 1980,has not "complied with the requirementsof section 3010(a)" and is not eligible forinterim status. A contrary interpretationof Section 3010(a) would essentiallyread the ninety-day deadline out of thestatute.

EPA recognizes that this literalconstruction may have the effect ofpreventing some well-managed facilitiesfrom ever qualifying for interim status.We have developed two policies toprovide relief in these situations. Thefirst deals with facilities whose failureto notify is attributable to ambiguities inEPA's regulations; the second withfacilities whose failure to notify is theirown fault. In our opinion, these policieswill preserve the integrity of the ninety-day deadline in Section 3010 while atthe same time providing theadministrative flexibility necessary todeal with late filings on a case-by-casebasis.

1. Revised notification requirements.Since the publication of EPA's May 19,

1980, regulations, members of theregulated community, States andenvironmental groups have brought toEPA's attention a number of provisionsin the regulations which were not clear,or, as applied to specific wastemanagement situations, did not makesense. In an August 19, 1980, Federal

'Facilities which have not submitted anotification under Section 3010(a) would, of course,still be required to file for an EPA identificationnumber. See 40 CFR § 265.11,45 FR 33234 (May 19.1980).

Register notice (45 FR 55386), EPAidentified approximately twenty of theseprovisions, and promised to issueregulatory amendments or regulatoryinterpretation memoranda (RIMs) tocorrect, modify or clarify them.

Some of these provisions deal withthe issue of whether a person washandling a hazardous waste on May 19,1980, and therefore was required tonotify EPA under Section 3010 byAugust 18, 1980. In most cases, theregulatory amendments and RIMs whichare now being developed by EPA Willhave the effect of narrowing theuniverse of persons who were requiredto notify on August 18, 1980 (based on aliteral reading of the regulations). In afew cases, however, they may bringwithin Subtitle C control owners andoperators of facilities who couldreasonably have concluded, based on acareful reading of the May 19, 1980,regulations, that they were not requiredto notify on August 18, 1980.

We do not think it is fair to penalizefacilities for failing to notify underSection 3010 where that failure isattributable to major ambiguities inEPA's hazardous waste regulations.Although we do not believe we have theauthority to waive the ninety-daystatutory filing deadline for facilitieswhich were required to notify on August18, 1980, we do think we have theauthority under RCRA to issue a posthoc administrative finding that aparticular class of facilities was notrequired to notify at all because of majoruncertainties in EPA's regulations. It isour intent, therefore, at the time EPApublishes future Federal Register noticesannouncing amendments to orinterpretations of our hazardous wasteregulations, (1) to decide whether someclass of facilities may have failed tonotify because of ambiguities in thoseregulations and if so, (2) to issue adetermination that that class of facilitieswas not required to notify under Section3010 on August 18, 1980, and to establishnew deadlines for submitting permitapplications and complying with interimstatus standards under 40 CFR Part 265. 4

The effect of this determination will beto make the designated facilities eligiblefor interim status even though theyfailed to notify on August 18, 1980.

b. Enforcement discretion.In addition to facilities which failed to

file a timely notification because ofmajor ambiguities in EPA's regulations,there are no doubt a number of facilitieswhich failed to notify as a result of

4If an amendment deals with the issue whether amaterial is a hazardous waste. EPA may at thesame time trigger a new opportunity for notificationunder Section 3010.

clerical errors, oversight or other factors.Some may be well-managed facilitieswhose continued operation is in thepublic interest.

Although EPA cannot grant interimstatus to facilities which failed to file atimely Section 3010 notification, we areprepared to exercise our enforcementdiscretion to allow such facilities tocontinue operating after November 19,where their continued operation wouldbe in the public interest. To provideformal assurances to these facilities thatthey will not be prosecuted for operatingwithout a permit, EPA is consideringissuing Interim Status ComplianceLetters ("ISCLs") to qualifying facilitiesstating that the Government will notprosecute them for operating without apermit if they file a permit applicationand comply with all applicable Part 205standards. The ISCL would containsimilar provisions shielding generatorsand transporters using these facilitiesfrom Federal prosecution for sendingwastes to an unpermitted facility.Compliance orders issued under Section3008 of RCRA (with or without a civilpenalty assessment) could also be usedto achieve essentially the same result.

Although a facility operating under anISCL or compliance order and complyingwith EPA's Part 265 regulations wouldnot be immune from citizen suits underSection 7002 of RCRA because it wastechnically operating without a permit,we doubt that such suits would ever besuccessful. Federal courts sitting inequity are not likely to close downfacilities which have failed to submit atimely notification tinder Section 3010 ifthey are otherwise fully complying withall applicable substantiveenvironmental standards.

An ISCL or compliance order wouldalso assist facilities which must fileunder Section 13 of the Securities andExchange Act of 1934, as amended, inmaking a full disclosure of the extent oftheir potential liability under RCRA. Asnoted above, for a facility which iscomplying with its ISCL or complianceorder, potential liability under Section3008 or 7002 should be negligible.

EPA expressly solicits comment onthese approaches. A similarenforcement policy was successfullyused by EPA under the Clean Water Act("CWA") to deal with an inflexiblestatutory deadline much like the ninety-day deadline in Section 3010.5 The main

5 Section 301(b) of the Clean Water Act. 33 U.S.C.§ 1331(b). requires all point source dischargers tomeet effluent limitations based on the bestpracticable control technology by July 1. 1977. Whenit became apparent that some dischargers would notbe able to meet July 1.1977 deadline, EPA beganissuing letters and orders to these facilities stating

Footnotes continued on next page

1980 / Rules and Regulations


difference between the CWA policy andthe policy announced above is thatunder the latter EPA would generallynot extend deadlines for complying withapplicable regulatory requirements. Inthis respect, we think it is an even morejudicious and envionmentally soundexercise of EPA's enforcementdiscretion.3.A Caveat.Facilities should not construe the

announcement of the foregoing policies(or the amendments discussed inSection I, below) as an invitation tomiss applicable statutory or regulatoryfiling deadlines. These policies aredesigned to address situations wherefacilities have acted reasonably and ingood faith or where well-operatedfacilities have through clerical error oroversight failed to submit a timelynotification date. They are not intendedfor facilities which have made little orno effort to comply with EPA'sregulations.

C. 1980 Amendments to Section3010(a).

The Solid Waste Disposal ActAmendments of 1980, P.L. 96-482(October 21, 1980), amend Section3010(a) of RCRA to make notificationstriggered by amendments to EPA'sSection 3001 regulations after October21, 1980, discretionary with theAdministrator. EPA has been askedwhat effect these amendments will haveon facilities' eligibility for interim status.

We see two important consequencesfor interim status flowing from theenactment of these amendments. First,facilities which handle wastes listed oridentified as hazardous wastes by EPAafter October 21, 1980, are no longerautomatically required to notify underSection 3010. Only if EPA expresslyrequires facilities to notify willnotification under Section 3010(a) berequired.

Second, there is no longer anystatutory deadline for filingnotifications. In the future, allnotification deadlines will be set byregulation. This will give EPA the sameadministrative flexibility to deal withlate notifications that it currently haswith respect to late permit applications.See Section I, below.

1H. Requirement that a Facility Have"Filed an Application Under thisSection"

A second statutory prerequisite ofinterim status is that the owner andoperator of a facility have "filed an

Footnotes continued from last pagethat the Agency would not prosecute them forfailing to meet the July 1.1977. date if they met analternative deadline and accompanying complianceschedule set forth in the letter or order.

application under * * * section [30051".Section 3005(e)(3) EPA's regulationsimplementing Section 3005 conditioneligibility for interim status on afacility's having "complied with therequirements of § 122.22(a) * * *governing submissions of Part Aapplications." See § 122.23(a)(2). Section122.22(a)(2) in turn requires that a Part Aapplication be submitted by November19, 1980.

EPA has been asked whether, in lightof these requirements, an existinghazardous waste management facilitywhich is not now subject to EPA'shazardous waste regulations will beable to obtain interim status by filing anapplication after November 19,1980, ifEPA amends its regulations to bringthem into the hazardous wastemanagement system. The answer to thisquestion is yes, if the owner andoperator of the facility file a permitapplication within six months of theamendment to EPA's regulations whichfirst subjects the facility to therequirements of Part 265 or 266. EPA istoday amending § 122.23(a) to clarifythis point. As noted in the "comment" tothis amendment, EPA will make everyeffort to identify permit filing deadlinesin the Federal Register publicationsannouncing amendments to itsregulations to avoid future confusionabout when Part A permit applicationsmust be submitted. See, e.g., 45 FR 47832(July 16, 1980), 45 FR 74884-74885(November 12, 1980).

EPA is also adding a paragraph to§ 122.22(a) to make it clear that a facilitywhich submits a permit application by arevised filing deadline announced byEPA in a Federal Register noticeclarifying its regulations (see discussionin Section lI.B.1, above) has met theprerequisites of Section 3005(e)(3) and iseligible for interim status.

Some existing hazardous wastemanagement facilities may need toqualify for interim status in the future,not as a result of EPA regulatory action,but because of changes in their ownoperations. For example, a smallquantity generator may start generatingover 1,000 kg of hazardous waste amonth and need to obtain interim statusfor an exisitng on-site treatment, storageor disposal facility. Or a facility whichproperly determined on August 1,1980,that the solid waste it was treating didnot exhibit any of the characteristics ofhazardous waste may retest it afterNovember 19,1980. and find that itexhibits the characteristic of extractionprocedure toxicity. We have been askedwhether the facilities will be able toqualify for interim status if they do not

submit a permit application byNovember 19.1980.

EPA believes these facilities should beeligible for interim status if theypromptly file a permit application.Accordingly, we are today amending§ 122.22(a) to allow these facilities toqualify for interim status if they file apermit application within 30 days afterthey lose their regulatory exemption orbegin handling hazardous waste.

Readers should note that thesefacilities will technically be operatingwithout a permit until they submit theirpermit application. EPA will not initiateany enforcement action against them,however, if they contact their EPARegional Office immediately and file anapplication within the thirty-day period.

EPA believes these amendments willcover most situations where facilitieswhich are eligible for interim statusunder Sections 3005(e) (1) and (2) mustfile a permit application. In the eventthey do not, and in the event somefacilities inadvertently miss the fiingdeadlines set forth in § 122.23(a], EPA isadding another new provision to thatsection which allows a facility to obtaininterim status if it files a permitapplication by the deadline set forth in acompliance order issued by EPA underSection 3008.IV. Requirement that a Facility Be "inExistence on November 19,1980"

The final statutory prerequisite forobtaining interim status is that a facilityhave been "in existence on November19,1980". EPA regulations define"existing facility" as a "facility inoperation," (i.e., a facility "receivinghazardous waste for treatment, storageor disposal") or "facility for whichconstruction has commenced." 40 CFR§ 122.3 (definitions of "existing HVMfacility" and ,'in operation"). EPA hasbeen askedQf a facility which washandling a solid waste on November 19,1980, that was not identified or listed asa hazardous waste in EPA's Part 261regulations prior to November 19,1980,but was identified or listed in asubsequent amendment to thoseregulations could qualify as an existinghazardous waste management facilityfor purposes of obtaining interim status.

In EPA's opinion, if a facility wasreceiving for treatment, storage ordisposal on or before November 19,1980, a solid waste which issubsequently listed or identified as ahazardous waste by EPA, the facilitywas "in existence on November 19,1980" and is eligible for interim status ifit files a timely permit application andSection 3010 notification (if required).Limiting eligibility for interim statusonly to those facilities which were


handling a solid waste on November 19,1980, that had been listed or identifiedas a hazardous waste prior to that date,would attach too much regulatorysignificance to the order in which EPApromulgates its hazardous wastelistings. It would also prevent anyfacility which was handling a solidwaste now temporarily exempted fromSubtitle C controls as a "special waste"from ever obtaining interim status.6

Readers should note, however, thatfor a facility to qualify as an "existingfacility" in this situation, the solid wastewhich the facility was handling on orbefore November 19, 1980, must be thesame waste which is later identified orlisted in EPA's hazardous wasteregulations. A facility which is handlingtrash on November 19, 1980, forexample, would not qualify as anexisting facility simply because afterNovember 19, 1980, it began handling asolid waste which was subsequentlylisted as a hazardous waste in EPA'sPart 261 regulations.

EPA recognizes that it may be difficultfor some facilities to establish a precisecorrelation between solid wasteshandled prior to and after November 19,1980, because of changes inmanufacturing processes, wastewatertreatment processes, air emissioncontrols, raw materials or other similarcomponents of the manufacturing andwaste treatment process. The Agencysolicits comment on what types ofguidelines it should follow in thesesituations to determine if the wastesbeing handled prior to and afterNovember 19, 1980, are the "samewaste."

V. Practical application

To assist readers in understanding theamendments and policies which havebeen outlined above, EPA believes itwould be useful to discuss how theywould apply in concrete factualsituations.

1. The ABC Company completedconstruction of a hazardous wasteincinerator on October 1, 1980. OnOctober 2, 1980, the facility beginsincinerating a number of hazardouswastes listed in EPA's May 19, 1980regulations. The facility submitted apermit application on November 1, 1980,but did not notify on August 18, 1980.Does the facility have interim status?

Yes. The facility was not required tofile a Section 3010 notification becauseit was not handling hazardous waste atthe time of promulgation of EPA's May19, 1980, regulations. Thus, although ithas not notified, it has nevertheless

'The same reasoning applies to facilities whichcommenced construction by November 19, 1980.

"complied with section 3010(a)" withinthe meaning of Section 3005(e).

The facility also meets the other twoprerequisites for interim status.

2. The ABC Company owns a landfillwhich, since 1978, has been usedcontinuously and exclusively for thedisposal of sludges from the treatment ofwastewater from widgit production. OnJanuary 1, 1982, EPA adds wastewatertreatment sludge from the production ofwidgits to its hazardous waste list. Thepreamble to the Federal Registerpublication announcing the new listingdoes not expressly require facilitieshandling wastewater treatment sludgesfrom widgit production to notify. It doesstate, however, that such facilities mustfile a permit application and begincomplying with all applicable iterimstatus standards by July 1, 1982. TheABC Company files a complete permitapplication by July 1, 1982. Does it haveinterim status?

Yes. Section 3010(a) of RCRA wasamended by the Solid Waste DisposalAct Amendments of 1980 on October 21,1980, to make Section 3010(a)notifications based on revisions toEPA's hazardous waste list andcharacteristics discretionary with theAgency. Thus, in the absence of anexplicit EPA directive to notify, acompany handling a hazardous wastelisted in a revision to EPA's Part 261regulations which was published afterOctober 21, 1980, would not be requiredto submit a new Section 3010notification.

The ABC Company landfill also meetsthe two remaining prerequisites forinterim status. Because it was handlinga solid waste on November 19, 1980,which was subsequently listed as ahazardous waste by EPA, it was ahazardous waste management facilitywhich was "in existence on November19, 1980." It also filed a timely permitapplication.

3. The ABC Company owns an on-sitelandfill which was handling garbage onNovember 19, 1980. On January 1, 1981,the company goes into the widgitproduction business and begins usingthe landfill to dispose of sludges fromthe treatment of wastewater generatedby the widgit production process. OnJanuary 1, 1982, EPA lists wastewatertreatment sludges from the production ofwidgits as a hazardous waste. Thepreamble to the Federal Registerpublication announcing the new listingrequires facilities handling widgitwastewater treatment sludges to notifyby March 30, 1982, and submit a permitapplication by July 1, 1982. The ABCCompany files a timely notification andpermit application. Does its landfill haveinterim status?

No. On November 19, 1980, the landfillwas not handling a hazardous waste (asdefined by EPA in its May 19, or July 16,1980, regulations) or a solid waste whichwas subsequently identified or listed asa hazardous waste by EPA. It wastherefore not "in existence" as ahazardous waste management facilityon November 19, 1980, and cannotqualify for interim status.

4. The ABC Company generates 500 kgper month of a waste listed in EPA'sMay 19, 1980, regulations. Since 1975,the company has disposed of this wastein an unlicensed on-site landfill. Startingon November 19, 1980, the companystarts sending its waste to a stateapproved industrial landfill in order totake advantage of EPA's small quantitygenerator regulations. Later, EPA lowersthe small quantity generator exemptionto 100 kg per month. The ABC Companycannot find a nearby hazardous wastemanagement facility to take its wasteand would like to reactivate its on-sitelandfill. Is the landfill eligible for interimstatus?

Yes. The landfill can meet all threeprerequisites for interim status if itsubmits complete permit applicationwithin six months after EPA amendsPart 261 to lower the small quantitygenerator exemption.

5. The ABC Company treats a wastewhich it believes is exempted ashazardous waste under § 261.4 of EPA'sMay 19, 1980, regulations. It does notnotify on August 18,1980, or submit apermit application by November 19,1980. On March 1, 1981, EPA issues aninterpretation of § 261.4 which makes Itclear that the waste treated by thecompany is not exempt. The companytests the waste against thecharacteristics of hazardous wasteidentifed in Subpart C of Part 261 andthe waste exhibits several of thecharacteristics. Can the company'streatment facility qualify for interimstatus?

This will depend on the content of theFederal Register notice announcingEPA's regulatory interpretation. If theAgency decides that the exemption in§ 261.4 was so vague or ambiguous thatfacilities in the position of the ABCCompany could not reasonably havebeen expected to know that they wererequired to notify and submit a permitapplication, it will (1) include as part ofits interpretation a formal Agencydetermination that those facilities werenot required to notify and (2) set a newdeadline by which those facilities mustsubmit a complete permit application ifthey wish to qualify for interim status.Thus, if the ABC Company submits acomplete application by the new

Federal Register / Vol. 45, No. 225 / Wednesday, November 19,

deadline, its treatment facility will havequalified for interim status.

On the other hand, if EPA decides thatthe regulation was not vague orambiguous or that Agency's resolutionof ambiguities in the regulation does notaffect facilities in the position of theABC Company, it will not modifyexisting filing and compliance dates forthose facilities. In this situation, thetreatment facility cannot qualify forinterim status because it has notsubmitted a timely notification andpermit application.

VI. Miscellaneous Issues

A. Protective filings.We have been advised that a number

of facilities which are not now subject toEPA's hazardous waste regulations havefiled "protective" notifications andpermit applications to comply withEPA's May 19, 1980, Part 122 regulationsand thus assure that they will be able toobtain interim status in the future (ifnecessary). Many of these filings maynot be necessary under today's revisedregulations.

We urge facilities which have filedunnecessary notifications or permitapplications to advise the EPA RegionalOffice. This will help assure that our listof existing hazardous wastemanagement facilities is accurate forenforcement and other purposes.

B. Units within existing facilities.Section 122.3 of EPA's May 19,1980.

regulations defines the term "hazardouswaste management facility" to includesites consisting of several operationalunits which handle hazardous waste. Afacility, for example, may consist of twohazardous waste storage facilities, ahazardous waste landfill and ahazardous waste incinerator.

Section 122.23(c) restricts themodifications which may be madeduring interim status to the designcapacity of an existing facility and tothe processes used by the facility totreat, store or dispose of hazardouswaste. EPA has been asked whether,when an individual unit in an interimstatus facility later qualifies for interimstatus, that constitutes a "change" inexisting design capacity or processesand, if so, whether that change would besubject to the restrictions set forth in§ 122.23(c).

The restrictions on modifications in§ 123.23(c) are intended to preventinterim status facilities from makingmajor changes in their existingoperations which either would betantamount to the construction of a newfacility or should ideally be made afteran individual permit is issued. See 45 FR

33324 (May 19, 1980). They are notintended to restrict the number ofindividual units within those facilitieswhich can qualify for interim status.Thus, EPA would not consider the factthat an individual unit within a facilityhas independently qualified for interimstatus (or is operating under an ISCL orcompliance order, as discussed above)to be a "change" to the facility subjectto the restrictions of § 122.23(c). Theindividual unit would, of course, besubject to those restrictions if thefacility sought to enlarge the designcapacity of the unit or modify theprocesses used by the unit to handlehazardous waste.VII. Interim Final Regulations andEffective Date

A. Interim final regulations.EPA has determined under Section

553 of the Administrative Procedure Act.5 U.S.C. § 553, that there is good causefor promulgating these amendmentswithout prior notice and comment. Asdiscussed above, EPA's regulationsdefining when a facility can obtaininterim status have erroneoulsy ledmany facilities to believe that unlessthey file a permit application byNovember 19, 1980, they will never beable to obtain interim status. We think itis essential to correct this error beforeNovember 19, 1980, or else a significantnumber of facilities will be filingunnecessary permit applications onNovember 19,1980. Readers will haveample opportunity (ninety days) tocomment on these amendments beforethey are issued in "final final" form.

B. Effective date.Section 3010[b) of RCRA requires that

revisions to "regulations ' * *respecting * requirements [for]permits * * shall take effect on thedate six months after the date of* -* *revision." We do not think a literalapplication of this requirement wouldmake sense in this case. The purpose ofSection 3010(b) is to allow personshandling hazardous waste sufficientlead time to prepare to comply withmajor new regulatory requirements.Delaying the effective date ofamendments which reduce existingregulatory requirements is not necessaryto carry out this objective. Furthermore.for the reasons stated above, EPAbelieves an effective date of six monthsafter promulgation would becounterproductive since much of theunnecessary regulatory burden whichthese amendments seek to avert willalready have been imposed. We aretherefore making these amendmentseffective on November 19,1980. the

effective date of the remainder of EPA'sMay 19,1980, hazardous wasteregulations.

Dated: November 14.1980.Douglas M. Costle,Administrator.

Title 40 of the Code of FederalRegulations is amended as follows:

1. Section 122.22 is amended byredesignating paragraphs (a](2) and(a)[3) as paragraphs (a)(4) and (a](5]respectively, and revising paragraph(a)(1) and adding new paragraphs (a](2)and (a](3) to read as follows:

§ 122,22 Application fora permit

(a) Existing HWM facilities. (1)Owners and operators of existinghazardous waste management facilitiesmust submit Part A of their permitapplication to the RegionalAdministrator no later than (i) sixmonths after the date of publication ofregulations which first require them tocomply with the standards set forth in40 CFR Parts 265 or 266, or (ii) thirtydays after the date they first becomesubject to the standards set forth in 40CFR Parts 265 or 266, whichever firstoccurs. [Comment: For facilities whichmust comply with Part 265 because theyhandle a waste listed in EPA's May 19,1980, Part 261 regulations (45 FR 33006 etseq.), the deadline for submitting anapplication is November 19,1980. Whereother existing facilities must begincomplying with Parts 265 or 266 at alater date because of revisions to Parts260. 261, 265, or 266, the Administratorwill specify in the preamble to thoserevisions when those facilities mustsubmit a permit application.]

(2) The Administrator may bypublication in the Federal Registerextend the date.b" which owners andoperators 6f &l-fed classes of existinghazardous waste management facilitiesmust submit Part A of their permitapplication if he finds that (i] there hasbeen substantial confusion as towhether the owners and operators ofsuch facilites were required to file apermit application and (h] suchconfusion is attributable to ambiguitiesin EPA's Parts 260. 261, 265, or 266regulations.

(3) The Administrator may bycompliance order issued under Section3008 of RCRA extend the date by whichthe owner and operator or an existinghazardous waste management facilitymust submit Part A of their permitapplication.

2. Section 122.23 is amended byrevising paragraph (a)(1) to read asfollows:

1980 / Rules and Regulations 76635


§ 122.23 Interim status.(a) * * *

(1) Complied with the requirements ofSection 3010(a) of RCRA pertaining tonotification of hazardous waste activity.[Comment: Some existing facilities maynot be required to file a notificationunder Section 3010(a) of RCRA. Thesefacilities may qualify for interim statusby meeting paragraph (a)(2) of thisSection.]

These amendments are issued underthe authority of Sections 1006, 2002(a)and 3005 of the Solid Waste DisposalAct, as amended by the ResourceConservation and Recovery Act of 1976(RCRA), as amended, 42 U.S.C. 6905,6912(a) and 6925.1FR Doc- 80-36133 Filed 11-18-80 8:45 am]BILUNG CODE 6560-30-M

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