Hazardous Waste Generator Program Evaluation

AGENCY:

Environmental Protection Agency.

ACTION:

Advanced notice of proposed rulemaking .

SUMMARY:

The Environmental Protection Agency (EPA) is seeking information from its stakeholders to evaluate the effectiveness of the Resource Conservation and Recovery Act's (RCRA's) hazardous waste generator regulatory program, as well as to identify areas for potential improvement. EPA, along with our State partners, will evaluate the information received in response to this notice to determine whether changes to the hazardous waste generator program are appropriate. If changes to the program are warranted, EPA will develop a strategy for implementing revisions to the hazardous waste generator program. The goals of this effort are to foster improved program effectiveness, a pollution prevention stewardship philosophy, and reduce compliance cost, where practicable. The Agency's efforts to develop revisions to the hazardous waste generator regulations would be predicated upon resource availability. The Agency also intends to hold meetings with the public to discuss this subject further, including the identification of priority concerns and potential solutions. A separate Federal Register notice will announce these meetings.

DATES:

Comments must be submitted on or before July 21, 2004.

ADDRESSES:

Comments may be submitted electronically, by mail, or through hand delivery/courier. Send your comments to: OSWER Docket, EPA Docket Center, Environmental Protection Agency, Mailcode: 5305T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. RCRA-2003-0014. Follow the detailed instructions as provided in Section I.B of the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT:

For more information about this ANPRM, see the Web at: www.epa.gov/epaoswer/hazwaste/gener/init/index.htm. If you do not have access to the Web, contact the RCRA Call Center at 800 424-9346 or TDD 800 553-7672 (hearing impaired). In the Washington, DC, metropolitan area, call 703 412-9810 or TDD 703 412-3323.

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information ?

EPA has established an official public docket for this action under Docket ID No. RCRA-2003-0014. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the OSWER Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OSWER Docket is (202) 566-0270. Copies cost $0.15/page.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket identification number.

Certain types of information will not be placed in the EPA Docket. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified above.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

B. How and To Whom Do I Submit Comments?

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Section I.C. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD-ROM you submit and in any cover letter accompanying the disk or CD-ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket,, and follow the online instructions for submitting comments. Once in the system, select “search,” and then key in Docket ID No. RCRA-2003-0014. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

Comments may be sent by electronic mail (e-mail) to: rcra-docket@epa.gov, attention Docket ID No. RCRA-2003-0014. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are captured automatically by EPA's e-mail system are included as part of the comment that is placed in the official public docket and made available in EPA's electronic public docket.

You may submit comments on a disk or CD-ROM that you mail to the mailing address identified in Section I.A. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send a copy of your comments to: OSWER Docket, Mailcode 5202T, U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. RCRA-2003-0014.

3. By Hand Delivery or Courier. Deliver your comments to: OSWER Docket, EPA Docket Center, U.S. EPA, 1301 Constitution Ave, NW., Washington, DC, Attention Docket ID No. RCRA-2003-0014. Such deliveries only are accepted during the Docket's normal hours of operation as identified in Section 1.A.

C. How Should I Submit CBI to the Agency?

Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. Send or deliver information identified as CBI only to the following address: RCRA CBI Docket Officer, U.S. EPA, Mailcode 5305W, 1200 Pennsylvania Ave, NW., Washington, DC 20460 , Attention Docket ID No. RCRA-2003-0014. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that you are claiming as CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

D. What Should I Consider as I Prepare My Comments for EPA?

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives; i.e., identify any suggested alternative requirements which could meet the rule objectives and result in either reduced regulatory burden, reduced compliance costs, or increased environmental protection.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It also would be helpful if you provided the name, date, and Federal Register citation related to your comments.

II. Statutory Authority

EPA is requesting information under the authority of sections 2002, 3001-3010, and 7004 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6912 , 6921-6930, and 6974.

III. Background

In 1980, the Agency promulgated regulations applicable to generators of hazardous waste. These regulations were amended in 1986 to address small quantity generators and again in the late 1980's and early 1990's to address land disposal restrictions and air emission control requirements for generators, respectively. These regulations are found at 40 CFR 261.5 and 40 CFR part 262. These regulations establish procedures and requirements for the management of hazardous waste on-site and off-site for both large and small quantity generators (LQGs and SQGs), as well as conditionally exempt small quantity generators (CESQGs).

The implementation of the generator regulations have played a major role in ensuring that hazardous waste has been properly managed. However, during the twenty years since their implementation, generators complying with the regulations, and States implementing the hazardous waste program, have developed a great deal of experience with this program. These experiences have been both positive and challenging. On the positive side, they include thousands of generators instituting programs that successfully prevent spills and accidents and ensure the safe management of hazardous waste. They also include EPA and the States developing effective training, compliance and technical assistance programs that support hazardous waste generators. These successes, however, have not come without challenges. Stakeholders tell us that they find the RCRA hazardous waste regulatory program to be very complex. Some generators believe the regulations are confusing. This may be particularly true for small businesses who often do not have the in-house capabilities or resources to devote to understanding and complying with the hazardous waste regulations. In other cases, EPA has heard that some hazardous waste generator regulations duplicate other federal regulations. Some stakeholders, conversely, are concerned that gaps may exist in the current regulations that could impede the safe management of hazardous waste.

IV. Request for Information

With these concerns in mind, this notice is seeking information that will allow us to identify what is working effectively with the current regulatory program for hazardous waste generators, as well as to identify those aspects of the hazardous waste generator regulatory program that can be improved. The goals of improving our generator regulatory program are to foster improved program effectiveness, foster a pollution prevention stewardship philosophy, and reduce regulatory compliance costs, where practicable.

Using the comments received in response to this notice, and information collected in public meetings with stakeholders, EPA, working with our State partners, intends to determine whether changes to the hazardous waste generator program are appropriate. If so, we will then develop a program improvement strategy that focuses on those actions that could most efficiently and effectively improve the program. In developing the strategy, we will take into account the resources necessary and available for implementing the strategy.

Please note that this notice does not in any way change the existing Federal or State generator regulatory requirements. EPA is only seeking input on potential programmatic changes to improve the program. If any regulatory changes are proposed in the future, EPA will follow the full notice and comment process.

More specifically, EPA seeks input on the following questions that are organized by program theme. In responding, please identify the organization you represent (e.g., company, trade association, public interest or citizen group, State implementing agency, etc.).

1. Program effectiveness. From your perspective, is the existing RCRA hazardous waste generator regulatory program meeting its goal of protecting human health and the environment? Have hazardous waste accidents been prevented as a result of the hazardous waste generator regulatory program? Has the generation and disposal of hazardous waste been minimized or eliminated? Has the management of hazardous waste become safer as a result of this program? Are the regulations easy to understand? Are they logically organized? Is it clear what actions are needed to comply with the regulations? Please identify the specific regulations that are working effectively by regulatory citation and explain the reasons they are working. (Note: As stated earlier, we are focusing on those generator regulations in 40 CFR parts 261.5 and 262, and those management requirements in 40 CFR part 265 referenced in those generator regulations. We are not addressing issues associated with the definition of solid waste, hazardous waste identification regulations associated with listings and characteristics, or export provisions.)

2. Program improvements. From your perspective, what parts of the RCRA hazardous waste generator regulatory program can be improved and why? Please identify the specific regulations that are not working effectively by regulatory citation and explain the reasons they are not working. For example, is the regulation unclear? Are there multiple and/or inconsistent interpretations that cause uncertainty? Are you aware of any Agency interpretations that appear inconsistent with the regulatory wording? Is it clear what actions are needed to comply? Are there challenges or barriers that prevent you from complying effectively or efficiently with the regulations? Are there regulations that create unnecessary administrative burdens without providing additional increases in environmental protection? What impact does this problem have on your organization? Has your organization experienced any unintended adverse consequences as a result of complying with the regulations?

What would you recommend as solutions to the problems you identified for the current regulatory program? How would the program be improved by addressing these problems? What environmental or economic benefits would be achieved? For example:

—Would the regulation(s) be more efficient for purposes of compliance?

—Would implementation be easier?

—Would improved environmental protection result?

—Would greater compliance be achieved?

—What mechanism do you recommend for solving the problem you identified? Rule change? Policy or technical compliance guidance? New regulatory interpretations? Other (information dissemination, training, outreach, etc.)?

To help you answer these questions, some areas that have been identified by stakeholders in the past that could be improved are listed below:

—Waste accumulation times for both large and small quantity generators. Should there be different regulatory requirements for accumulating hazardous wastes other than the current specified time periods? If so, why?

—Waste generation quantity thresholds and counting rules for LQGs, SQGs, and CESQGs.

—Episodic generator requirements; i.e., where the volume of hazardous waste generated in any given month fluctuates, for example due to equipment maintenance, such that a generator switches back and forth between generator categories from month to month. What requirements apply to episodic generators, such as submission of a Biennial Report, preparation of Contingency Plans, changes in training requirements, etc.?

—Waste sampling and testing. When is the use of grab sampling more appropriate than representative sampling? When is the use of analytical testing more appropriate than use of generator knowledge?

—Waste management standards for LQGs, SQGs and CESQGs. Are the regulations clear and effective?

—Satellite accumulation. What activities are allowed and what activities are prohibited within the specific regulatory provisions of 40 CFR 262.34 (c)? What requirements generators must comply with when moving wastes between a satellite accumulation area and a consolidation area?

—Generator accumulation and treatment in containers or tanks. What constitutes a “closed” container? What tank standards apply to generators? What types of treatment are allowed and not allowed in containers or tanks; clarifying if treatment is allowed in satellite accumulation areas?

—Closure standards for generator accumulation areas. What requirements are generators responsible for under 40 CFR 265.111 and 265.114?

—Co-generator requirements. Who must comply with generator requirements when a hazardous waste is generated by a contractor working (e.g., providing maintenance services) at the generator's facility.

—RCRA identification numbers. Should wastes from different locations be allowed to be consolidated into one reporting and/or identification number? To what extent should a RCRA ID number be tied to the site definition?

—Waste minimization. Are there more efficient and effective mechanisms other than the hazardous waste manifest for generators to certify that they have a waste minimization program in place? Are there options that would not violate the RCRA statute?

—Land disposal restriction requirements applicable to generators. Is applicability clear? What notification requirements apply? What are the different requirements for listed vs. characteristic wastes?

3. Program redundancy. Are there certain parts of the RCRA hazardous waste generator regulatory program that overlap, duplicate, or conflict with other federal rules? Please provide the specific regulatory citations to both the RCRA regulations and the other federal regulations and explain how they overlap. If possible, please provide copies of or citations to the other federal agency guidance, policy documents, or legal opinions you believe are of concern. How would you suggest that EPA resolve such conflicts?

4. Program innovations. Realizing that most of the hazardous waste generator regulatory program was promulgated over 20 years ago, are there new techniques or technologies that lend themselves to improving the existing regulatory framework in a more systematic and efficient manner? Are there new technologies that substantially reduce or eliminate hazardous waste generation? For instance, many generator facilities have adopted environmental management systems (EMSs) to assist them in complying with regulatory programs and as a method to improving the efficiency and effectiveness of their environmental management operations. How best can EPA facilitate the use of EMSs and other management techniques as vehicles to improve the hazardous waste generator program? Similarly, should EPA promote the research and development of innovative technologies to improve the management of hazardous waste? If so, in what areas? What would the potential benefits be to the protection of human health and the environment? What are the barriers towards implementing innovative processes that address hazardous waste generation?

5. Performance Track Program. The National Environmental Performance Track (NEPT) is a voluntary program that recognizes and rewards facilities for beyond-compliance environmental performance. For membership in NEPT, facilities must apply and meet several criteria. These include:

—Adopting and implementing an environmental management system (EMS),

—Having a record of sustained compliance with environmental requirements,

—Demonstrating environmental achievements and committing to continued improvement in particular environmental categories, and

—Engaging the public and quantitatively reporting on their environmental performance.

NEPT member facilities submit annual reports that summarize their progress in achieving their chosen commitments in specific environmental categories. This annual reporting, and additional activities undertaken by member facilities to engage the public, allows a high level of Agency scrutiny to continuously assess facility performance. In addition, facilities are accepted to Performance Track for a period of three years. To continue membership in the program after three years, facilities must renew their membership which includes developing additional, ongoing commitments to environmental performance improvements.

The Agency believes that because of the stringent qualification criteria and ongoing performance assessment, NEPT facilities should benefit from non-regulatory and regulatory flexibility not otherwise available to other generators of hazardous waste. Therefore, what RCRA generator requirements would be appropriate for NEPT facilities? Are there specific hazardous waste generator regulatory requirements that could be reduced, modified or eliminated for Performance Track member facilities?

6. State programs. Are there any specific State hazardous waste regulations, interpretations, or implementation programs that EPA should review and evaluate for improving and/or clarifying our generator regulations? If so, please provide copies of or citations to these regulations, interpretations and programs.

7. Compliance assistance. EPA wants to help generators understand and comply with the hazardous waste generator regulations. Similarly, EPA wants to provide the most effective support to States and others who provide compliance and technical assistance to hazardous waste generators. To this end, a great deal of compliance assistance information and links to additional resources are available at www.epa.gov/compliance/assistance.

EPA is interested in obtaining comment on where we can be most effective in this area. For example, have you sought assistance from EPA in the past? Did you receive the assistance you needed? If not, why not? What types of assistance (information, technical assistance, training, etc.) could EPA provide that would result in greater compliance? How can the assistance be provided cost-effectively? What, if any, barriers to compliance could be removed that would result in greater compliance?

8. Measuring program performance and environmental results. To measure performance of the hazardous waste generator program, EPA has in the past relied on indices such as the number of inspections and number of generators in compliance with the regulations. From your perspective, do other or better indices exist that more accurately measure program performance and environmental results? If so, what are they and what mechanisms, particularly existing mechanisms, could EPA use to collect these data? For example, would measuring the number of hazardous waste accidents occurring annually by facility and nationally be a good measure? By type of accident; i.e., spill during transport (either within a facility or between facilities), release from a leaking container, fire, explosion? By type of waste?

9. Burden reduction. EPA is also seeking ways to reduce the record keeping and reporting burden on generators, while increasing our ability to measure environmental results more effectively. Over the last few years, EPA initiatives have identified several areas, such as the Biennial Reporting System and the Land Disposal Restrictions program, where record keeping and reporting requirements can be potentially reduced and still maintain our ability to measure environmental results. Are there other areas of the hazardous waste generator regulatory program where burden reduction can occur and still allow EPA to measure environmental results? Conversely, are there specific record keeping and reporting requirements that are redundant, confusing, or very time-consuming and costly that should be reviewed and evaluated? Please identify the specific regulations and reasons for seeking this review.

10. Fostering pollution prevention and recycling. EPA strongly believes that source reduction and recycling practices constituting legitimate/beneficial use of secondary materials result in both cost savings to industry and improved environmental benefits. How can EPA encourage generators to practice pollution prevention and recycling? Are there particular industrial sectors, waste streams, or chemicals on which we should focus our efforts? If so, why? What barriers prevent you from practicing pollution prevention and recycling? What types of assistance (research and development, information, technical assistance, training, incentives, etc.) could EPA provide that would result in your adopting pollution prevention practices or recycling as part of your operation?

Similarly, the Agency is seeking information from generators describing successful pollution prevention and recycling techniques, practices, or processes that could be shared with and transferred to other organizations. In particular, EPA would be interested in facilities identifying the following: industrial sector; a description of the pollution prevention or recycling process, technology, or practice implemented; the costs of implementation; cost savings derived; environmental benefits achieved, such as reduction in air or water releases, resources conserved or reused, and reduction or elimination of hazardous waste generated; and point of contact, if possible.

11. Program Priorities. Realizing that EPA will not be able to address all stakeholder concerns immediately, please identify the top three priority projects you would like to see EPA undertake in the near future. In identifying these priorities, please identify the environmental and/or economic benefits of undertaking these projects.

Finally, EPA intends to hold meetings with the public to obtain additional feedback on the above questions. Details about the location and dates of these meetings will be announced in a Federal Register notice in the very near future.