[Federal Register Volume 70, Number 150 (Friday, August 5, 2005)]
[Rules and Regulations]
[Pages 45508-45522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15437]
[[Page 45507]]
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Part V
Environmental Protection Agency
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40 CFR Parts 260, 261 et al.
Hazardous Waste Management System; Modification of the Hazardous Waste
Program; Mercury Containing Equipment; Final Rule
Federal Register / Vol. 70, No. 150 / Friday, August 5, 2005 / Rules
and Regulations
[[Page 45508]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 261, 264, 265, 268, 270, and 273
[RCRA-2004-0012; FRL-7948-1]
RIN 2050-AE52
Hazardous Waste Management System; Modification of the Hazardous
Waste Program; Mercury Containing Equipment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Today's final rule adds mercury-containing equipment to the
federal list of universal wastes regulated under the Resource
Conservation and Recovery Act (RCRA) hazardous waste regulations.
Handlers of universal wastes are subject to less stringent standards
for storing, transporting, and collecting these wastes. EPA has
concluded that regulating spent mercury-containing equipment as a
universal waste will lead to better management of this equipment and
will facilitate compliance with hazardous waste requirements.
DATES: This final rule is effective on August 5, 2005.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. RCRA-2004-0012. All documents in the docket are listed in the
EDOCKET index at http://www.epa.gov/edocket. Although listed in the
index, some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available materials are available either electronically in EDOCKET, or
in hard copy at the HQ EPA Docket Center, RCRA Docket, EPA/DC, EPA
West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The
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 RCRA
Docket is (202) 566-0270.
FOR FURTHER INFORMATION CONTACT: Kathy Blanton, Office of Solid Waste
(5304W), U.S. Environmental Protection Agency, Ariel Rios Building,
1200 Pennsylvania Avenue NW., Washington, DC 20460, telephone number:
(703) 605-0761; fax number: (703) 308-0514; email:
[email protected].
SUPPLEMENTARY INFORMATION:
a. General Information
1. Does This Rule Apply to Me?
This rule affects persons who generate, transport, treat, recycle,
or dispose of mercury containing equipment (MCE), unless those persons
are households or conditionally exempt small quantity generators
(CESQGs). If you have any questions about the applicability of this
rule, consult the person listed under FOR FURTHER INFORMATION CONTACT.
Preamble Outline
I. Statutory Authority
II. List of Abbreviations and Acronyms
III. Background
a. What is Mercury-Containing Equipment?
b. Previous Regulations for Mercury-Containing Equipment
c. Universal Waste Rule
d. Proposed Rule
IV. Rationale for Including Mercury-Containing Equipment in the
Scope of the Universal Waste Rule
a. Factors for Inclusion in the Universal Waste Rule
b. Effect of Designation as a Universal Waste
c. Expected Changes in Management of Mercury-Containing
Equipment
V. Discussion of Final Rule
a. Effective Date
b. Waste Covered by Final Rule
c. Management Requirements for Spent Mercury-Containing
Equipment
1. Summary of Requirements
2. Requirements for Small and Large Quantity Handlers
3. Requirements for Transporters
4. Requirements for Destination Facilities
5. Effect of Today's Rule on Household Wastes and Conditionally
Exempt Small Quantity Generators
6. Land Disposal Restriction Requirements
IV. Discussion of Comments Received in Response to Proposed
Rulemaking and the Agency's Responses
a. Regarding the Addition of Mercury-Containing Equipment to the
Universal Waste Rule
b. Regarding the Universal Waste Notification Requirement
VII. State Authority
a. Applicability of Rule in Authorized States
b. Effect on State Authorization
c. Interstate Transport
VIII. Statutory and Executive Order Reviews
I. Statutory Authority
These regulations are promulgated under the authority of sections
2002(a), 3001, 3002, 3004, and 3006 of the Solid Waste Disposal Act of
1970, as amended by the Resource Conservation and Recovery Act of 1976
(RCRA), and as amended by the Hazardous and Solid Waste Amendments of
1984 (HSWA), 42 U.S.C. 6921(a), 6921, 6922, 6924, and 6926.
II. List of Abbreviations and Acronyms
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Acronym Definition
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CESQG............................ Conditionally Exempt Small Quantity
Generator.
CFR.............................. Code of Federal Regulations.
DOT.............................. Department of Transportation.
HSWA............................. Hazardous and Solid Waste Amendments
of 1984.
ICR.............................. Information Collection Request.
LDR.............................. Land Disposal Restriction.
LQG.............................. Large Quantity Generator.
LQHUW............................ Large Quantity Handler of Universal
Waste.
NTTAA............................ National Technology Transfer and
Advancement Act of 1995.
OMB.............................. Office of Management and Budget.
RCRA............................. Resource Conservation and Recovery
Act.
SIC.............................. Standard Industry Code.
SQG.............................. Small Quantity Generator.
SQHUW............................ Small Quantity Handler of Universal
Waste.
TC............................... Toxicity Characteristic.
TCLP............................. Toxicity Characteristic Leaching
Procedure.
TSDF............................. Treatment, Storage, and Disposal
Facility.
UMRA............................. Unfunded Mandates Reform Act.
U.S.C............................ United States Code.
USWAG............................ Utilities Solid Waste Activities
Group.
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III. Background
a. What Is Mercury-Containing Equipment?
Mercury-containing equipment (MCE) consists of devices, items, or
articles that contain varying amounts of elemental mercury that is
integral to their functions, including several types of instruments
that are used throughout the electric utility industry and other
industries, municipalities, and households. Some commonly recognized
devices are thermostats, barometers, manometers, and mercury switches,
such as light switches in automobiles. This definition does not include
mercury waste that is generated as a by-product through the process of
manufacturing or treatment.
b. Previous Regulations for Mercury-Containing Equipment
Any person who generates a solid waste, as defined in 40 CFR 261.2,
must determine whether or not the solid waste is a hazardous waste. The
waste may be hazardous either because it is listed as a hazardous waste
in subpart D of 40 CFR part 261 or because it exhibits one or more of
the characteristics of hazardous waste, as provided in subpart C of 40
CFR part 261.
Mercury-containing equipment is likely to be a hazardous waste when
disposed of or reclaimed because it exhibits the toxicity
characteristic (TC)
[[Page 45509]]
for mercury. Mercury-containing equipment that is a hazardous waste is
referred to in this preamble as ``spent mercury-containing equipment''
or ``spent MCE.'' Before today's rulemaking, many generators of spent
mercury-containing equipment identified or listed as a hazardous waste
were subject to the full RCRA subtitle C hazardous waste management
requirements. Specifically, generators were subject to all applicable
requirements of 40 CFR parts 260 through 268, including the on-site
management, pre-transport, and manifesting requirements of part 262.
However, not all generators of spent mercury-containing equipment
have had to manage it as a hazardous waste or be subject to the full
set of RCRA hazardous waste requirements. Under RCRA subtitle C, there
are different requirements for generators of hazardous waste depending
on the amount of hazardous waste they generate in a calendar month. In
addition, as discussed below, certain spent mercury-containing
equipment are already subject to the universal waste rule.
Specifically, generators of more than 1,000 kilograms of hazardous
waste in a month (considered large quantity generators (LQGs)) are
required to comply fully with the federal hazardous waste regulations.
On the other hand, generators of more than 100 kilograms but less than
1,000 kilograms of hazardous waste in a calendar month (considered
small quantity generators (SQGs)) are subject to the RCRA hazardous
waste management standards, but are allowed to comply with certain
reduced regulatory requirements (see 40 CFR 262.34(d), (e), and (f)).
In addition, under 40 CFR 261.5, conditionally-exempt small quantity
generators (CESQGs), defined as facilities that generate less than 100
kilograms of hazardous waste in a calendar month, are not subject to
the RCRA subtitle C hazardous waste management standards, provided they
send their waste to a municipal solid waste landfill or non-municipal
nonhazardous waste facility approved by the state for the management of
CESQG wastes. Finally, households that generate spent mercury-
containing equipment are exempt from the federal hazardous waste
management requirements under the household hazardous waste exemption
in 40 CFR 261.4(b)(1).
c. Universal Waste Rule
In 1995, EPA promulgated the universal waste rule (60 FR 25492, May
11, 1995) to establish a streamlined hazardous waste management system
for widely generated hazardous wastes as a way to encourage
environmentally sound collection and proper management of the wastes
within the system. Hazardous waste batteries, certain hazardous waste
pesticides, mercury-containing thermostats, and hazardous waste lamps
are already included on the federal list of universal wastes.
Handlers and transporters who generate or manage items designated
as a universal waste are subject to the management standards under 40
CFR part 273, rather than the full RCRA subtitle C regulations.
Handlers include universal waste generators and collection facilities.
The regulations distinguish between ``large quantity handlers of
universal waste'' (those who handle more than 5,000 kilograms of total
universal waste at one time) and ``small quantity handlers of universal
waste'' (those who handle 5,000 kilograms or less of universal waste at
one time). The 5,000 kilogram accumulation criterion applies to the
quantity of all universal wastes accumulated. The streamlined standards
include requirements for storage, labeling and marking, preparing the
waste for shipment off site, employee training, response to releases,
and notification.
Transporters of universal waste are also subject to less stringent
requirements than the full subtitle C hazardous waste transportation
regulations. The primary difference between the universal waste
transporter requirements and the subtitle C transportation requirements
is that no manifest is required for transport of universal waste. The
details of the universal waste management standards for both handlers
and transporters will be addressed later in this preamble.
Under the universal waste rule, destination facilities are those
facilities that treat, store, dispose, or recycle universal wastes.
Universal waste destination facilities are subject to all currently
applicable requirements for hazardous waste treatment, storage, and
disposal facilities (TSDFs) and must receive a RCRA permit for such
activities. Hazardous waste recycling facilities that do not store
hazardous wastes prior to recycling may be exempt from permitting under
the federal regulations (40 CFR 261.6(c)(2)).
Finally, some states are authorized to add wastes that are not
federal universal wastes to their lists of universal wastes. Therefore,
in some states, spent mercury-containing equipment may already be
regulated as a universal waste.
d. Proposed Rule
On June 12, 2002 (67 FR 40508), EPA proposed to add spent mercury-
containing equipment to the federal list of universal waste.\1\ EPA
believes that adding these materials to the universal waste rule will
facilitate their collection and will reduce the amount of mercury
reaching municipal landfills and incinerators.
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\1\ In the same Federal Register notice, EPA proposed to
conditionally exclude cathode ray tubes (CRTs) from the definition
of solid waste. The CRT proposal will be addressed in a separate
rulemaking package.
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Mercury-containing equipment, other than mercury thermostats, was
not included in the 1995 universal waste rule because EPA felt that it
did not have sufficient information to include all spent mercury-
containing equipment in the rulemaking. The Agency decided to begin
implementation of its new universal waste program with a limited number
of waste types.
However, EPA stated in the preamble to the universal waste final
rule that it would welcome a petition to add a broad category of
mercury-containing equipment to the universal waste rule, and
specifically asked for views defining such a category of waste,
information on the amounts of mercury contained in such devices, and
information on the construction of such devices (60 FR 25508).
On October 11, 1996, the Utility Solid Waste Activities Group
(USWAG), the Edison Electric Institute, the American Public Power
Association, and the National Rural Electric Cooperative Association
submitted a rulemaking petition to add mercury-containing equipment to
the universal waste program. The petition explained that spent mercury-
containing equipment is well-suited for the universal waste rule
because it meets the factors that EPA laid out in the original
universal waste rule for wastes that warrant inclusion into the
program, particularly the wide-spread uses of MCE and the potential for
the universal waste program to divert waste from the municipal waste
stream into hazardous waste management. The petition also provided EPA
with some of the information the Agency needed to evaluate spent MCE
for inclusion into the program, as explained in the proposal.
The Agency received a number of comments in response to its
proposal to add spent mercury-containing equipment to the list of
universal wastes. Most commenters supported the proposal, though some
had comments or questions on some of the details. The more significant
comments on this
[[Page 45510]]
proposal are addressed later in this preamble, but all are addressed in
background documents for today's final rule, which are in the docket.
IV. Rationale for Including Spent Mercury-Containing Equipment in the
Scope of the Universal Waste Rule
a. Factors for Inclusion in the Universal Waste Rule
EPA is adding spent mercury-containing equipment to the universal
waste rule today because it believes this waste meets the factors that
describe waste that is appropriate for management under the streamlined
universal waste system. There are numerous and varied generators of
spent MCE, and MCE is generated sporadically. Adding MCE to the
universal waste rule simplifies handling and disposal of the equipment
for generators, while ensuring that spent MCE is sent to the
appropriate destination facilities, where it will be managed as a
hazardous waste with all applicable subtitle C requirements.
The universal waste regulations include eight factors to consider
in evaluating whether a waste is appropriate for inclusion in the
universal waste rule. These factors, codified at 40 CFR 273.81, are to
be used to determine whether regulating a particular hazardous waste
under the streamlined standards would improve overall management of the
waste and, therefore, whether the waste is a good candidate for the
universal waste rule.
As the Agency noted in the preamble to the final universal waste
rule (60 FR 25513), not every factor must be met for a waste to be
appropriately regulated under the universal waste system. However,
consideration of all the factors should result in a conclusion that
regulating a particular hazardous waste under 40 CFR part 273 will
improve waste management.
EPA has examined spent mercury-containing equipment using the
criteria in section 273.81, and has considered the information
submitted in the October 11, 1996 rulemaking petition, as well as the
public comments submitted in response to the proposed rule. The Agency
has determined that, on balance, these wastes are appropriate for
inclusion onto the federal list of universal wastes for management
under part 273. EPA believes that adding spent MCE to the universal
waste rule will make collection and transportation of this waste to an
appropriate facility easier and, therefore, will reduce the amount of
mercury being released into the environment.
The results of the Agency's evaluation of these wastes using the
universal waste factors are described below--further details on the use
of mercury-containing equipment can be found in the economic analysis
to this rulemaking, available in the docket: \2\
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\2\ The eighth factor, ``Such other factors as may be
appropriate,'' is not discussed here.
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1. The Waste, as Generated by a Wide Variety of Generators, Should Be a
Listed or Characteristic Hazardous Waste (40 CFR 273.81(a))
Some spent mercury-containing equipment contains a few grams of
mercury, whereas larger articles, items, or devices contain much more
mercury. Many of these pieces of equipment would fail the toxicity
characteristic leaching procedure (TCLP) toxicity level for mercury of
0.2 mg per liter and are therefore classified as a D009 characteristic
hazardous waste.\3\
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\3\ The TCLP is a laboratory test designed to simulate leaching
from a sanitary landfill, and, therefore, identify wastes likely to
leach hazardous concentrations of particular toxic constituents into
the ground water. If a sample of the test leachate contains a
contaminant appearing in 40 CFR 261.24's Table 1 at a level higher
than the regulatory level given in that table, the waste is
hazardous for the toxicity characteristic.
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2. The Waste, or Category of Waste, Should Not Be Exclusive to a
Particular Industry or Group of Industries, But Generated by a Wide
Variety of Establishments (40 CFR 273.81(b))
Spent mercury-containing equipment is generated by a variety of
industries or groups of industries. Electric and gas utilities generate
the greatest amount of this waste, but mercury-containing equipment is
used to regulate pressure and temperature or to conduct electricity in
switches or regulators in many other fields, for example, medicine,
farming, and automobile manufacture. Generators of spent mercury-
containing equipment, therefore, are from a wide range of sectors, from
utilities to manufacturers, commercial establishments, universities,
hospitals, and households.
3. The Waste Should Be Generated by a Large Number of Generators and
Generated Frequently, But in Relatively Small Quantities (40 CFR
273.81(c))
Spent mercury-containing equipment is generated by a large number
of generators and generator sites throughout different industries. Most
facilities generate spent MCE sporadically because of the frequent, but
unpredictable, nature of equipment failures and in relatively small
quantities, because MCE often contains small amounts of mercury.
4. Systems To Be Used for Collecting the Waste (Including Packaging,
Marking, and Labeling Practices) Should Ensure Close Stewardship of the
Waste (40 CFR 273.81(d))
The packaging and labeling standards finalized today for spent
mercury-containing equipment, and already in place for used
thermostats, will ensure close stewardship of the waste.
5. Risks Posed by the Waste During Accumulation and Transport Should Be
Relatively Low Compared to the Risks Posed by Other Hazardous Waste,
and Specific Management Standards Would Be Protective of Human Health
and the Environment During Accumulation and Transport (40 CFR
273.81(e))
The Agency believes that the requirements of the universal waste
program are highly effective in mitigating risks posed by spent
mercury-containing equipment. Specifically, the requirements for
handlers to manage and transport ampules of mercury in a way that will
prevent breakage or to seal the MCE in its original housing and ship it
sealed will ensure safe management and transport. In addition, the
universal waste program requires proper training for employees in
handling universal waste and responding to releases and shipment in
accordance with Department of Transportation (DOT) regulations. These
requirements will make the risks posed during accumulation and
transport very low.
6. Regulation of the Waste Under 40 CFR Part 273 Will Increase the
Likelihood That the Waste Will Be Diverted From Non-Hazardous Waste
Management Systems (e.g., the Municipal Solid Waste Stream) to
Recycling, Treatment, or Disposal in Compliance With Subtitle C of RCRA
(40 CFR 273.81(f))
Managing spent mercury-containing equipment under the universal
waste program is expected to increase the number of these articles,
items and devices collected, but more importantly, to increase the
amount of mercury being diverted from the non-hazardous waste stream
into the hazardous waste stream because it will allow generators,
especially those that generate this waste sporadically, to send it to a
central consolidation point.
Before today, these materials could not be consolidated by an
entity unless it had a RCRA permit. Under the universal waste rule, a
handler of universal waste can send the universal waste to another
handler, where it can be consolidated into a larger shipment
[[Page 45511]]
for transport to a destination facility. Therefore, spent MCE will be
easier to send to recycling and proper disposal, making it less likely
that it will be sent for improper disposal in municipal landfills or
incinerators. In addition, because of the streamlined structure of the
universal waste rule, spent MCE that might otherwise be sent to a
municipal landfill under a CESQG or household hazardous waste
exemption, can now be more easily collected and consolidated for
hazardous waste disposal by those who are interested in managing it
this way. This waste would be diverted out of the municipal solid waste
stream.
In public comments responding to EPA's proposal on MCE, both New
Jersey and Minnesota referred to their state programs, which already
allow spent MCE to be managed under pilot programs like the universal
waste rule. In both cases, the programs have been a success,
facilitating the collection and safe management of mercury for proper
management.
7. Regulation of the Waste Under 40 CFR Part 273 Will Improve the
Implementation and Compliance With the Hazardous Waste Regulatory
Program (40 CFR 273.81(g))
The structure and requirements of the universal waste rule are well
suited to the circumstances of handlers of spent mercury-containing
equipment and their participation in the universal waste program will
improve compliance with the hazardous waste regulations. Because spent
MCE is generated in small quantities in geographically dispersed
operations, compliance with full subtitle C requirements is difficult
to achieve. Compliance with subtitle C is particularly difficult for
electric or gas utility operations which are located on customer's
properties. In addition, handlers of spent MCE who are infrequent
generators of hazardous waste and who might otherwise be unfamiliar
with the more complex subtitle C management structure, but who generate
spent MCE, will be able to more easily send this waste for proper
management.
Therefore, adding spent MCE to the universal waste rule will
improve compliance with the hazardous waste regulations by making it
more achievable. As a result of improved compliance, human health and
the environment will benefit.
b. Effect of Designation as a Universal Waste
After recognizing that MCE meets the factors described in 40 CFR
273.81, EPA developed this rulemaking to create a streamlined structure
for managing spent MCE that is protective of human health and the
environment and, at the same time, facilitates compliance by users of
this equipment. Management of MCE as universal waste means that (1) the
MCE waste must meet land disposal restrictions (LDRs) when treated and
(2) the waste must be sent to Subtitle C permitted facilities. When
managed improperly, mercury poses a threat to human health and the
environment; these features of the universal waste program ensure that
the mercury in these devices ends up at a destination facility equipped
to manage it properly.
As described in section III.C. of this preamble, under the
universal waste rule, requirements are streamlined only for generators
and transporters of universal waste. Destination facilities must comply
with the substantive requirements of the LDR provisions of the
Hazardous and Solid Waste Amendments of 1984 (HSWA). These include (1)
A prohibition on accumulating prohibited wastes directly on the ground;
(2) a requirement to treat waste to meet treatment standards before
land placement; (3) a prohibition on dilution; and (4) a prohibition on
accumulation, except for purposes of accumulating quantities sufficient
for proper recovery, treatment, or disposal. The Agency believes that
compliance with the substantive requirements of the LDR program is
necessary to minimize risks from mismanaging spent mercury-containing
equipment.
The management controls that are already built into the universal
waste system for labeling, accumulation, training, response to
releases, and exports also will apply to waste MCEs. As discussed later
in this preamble, the packaging and management standards of the
universal waste rule are meant to assure that spent MCE will be managed
to prevent releases.
c. Expected Changes in Management of Mercury-Containing Equipment
EPA also expects an increase in the amount of MCE waste that is
recycled or disposed of in Subtitle C facilities. Small and large
quantity generators are already required to manage their mercury waste
as hazardous waste under RCRA subtitle C. As a result of implementation
of this rule in the states, some of these generators are likely to
begin managing their MCE waste as a universal waste, either to save
money or to improve implementation of their existing waste management
program.
The universal waste rule allows consolidation of MCE at central
locations, which makes it easier for smaller users to arrange for
hazardous waste management of these materials when they are generated.
For example, under the universal waste rule, a fire station, community
center, or retail store could participate in MCE collection programs
without having to get a RCRA permit, as they would be required to under
full subtitle C regulation. EPA intends to encourage individual
households and CESQGs to participate in such programs, which would
divert MCE from the municipal waste stream.
EPA expects greater quantities of MCE to be collected and managed
under the universal waste rule based on a recent evaluation of how the
universal waste rule has influenced management of nickel-cadmium
batteries, one of the original universal wastes included in the 1995
rulemaking. The evaluation shows that between 1997 and 2003, collection
of nickel-cadmium batteries increased from approximately 950 tons per
year in 1997 to almost 1700 tons in 2003. While this dramatic
improvement in collection is due to a number of factors, anecdotal
evidence described in the evaluation report shows that the
establishment of consolidation facilities, which was made possible by
the universal waste rule, significantly reduced the administrative and
financial burden of collection and transportation of these batteries.
The relevant chapter of the program evaluation report is available in
the docket to this rulemaking.
In summary, EPA believes that controls to address the environmental
hazards of spent MCE can best be implemented through a universal waste
approach where handlers are operating within a simple, streamlined
management system with some limited oversight. The universal waste
program addresses the environmental concerns surrounding the management
of such wastes, while at the same time putting into place a structure
that will allow for and encourage increased collection of spent MCE.
Comments from the public and other regulatory agencies, particularly
state hazardous waste authorities, support EPA's conclusion that
management of spent MCE as a universal waste will maximize the amount
of this waste being managed properly and, therefore, will protect human
health and the environment from exposure to the mercury in this
equipment.
V. Discussion of Final Rule
a. Effective Date
Today's rule will become effective immediately upon publication in
the Federal Register. The RCRA statute establishes six months as the
usual
[[Page 45512]]
effective date for Subtitle C rules (see RCRA section 3010 (b)), though
the Agency may provide for a shorter or immediate effective date in the
case of regulations with which the regulated community does not need
six months to come into compliance, as determined by the Administrator.
Because today's final rule reduces regulatory burden, as well as
because some states already have similar programs in place, we see no
reason to delay its effective date. Thus, today's rule will be
effective immediately upon publication in the Federal Register.
b. Waste Covered by Final Rule
Today's final rule incorporates into the universal waste scheme
spent mercury-containing equipment that is hazardous waste due to
mercury. The definition of mercury-containing equipment promulgated
today states that mercury-containing equipment means a device or part
of a device that contains elemental mercury integral to its function.
Note that the definition of ``mercury-containing equipment'' in
today's rule includes mercury thermostats. Mercury thermostats, which
formerly were a separate category of universal waste, are now
incorporated into the spent MCE category for the final rule. As a
result of public comments, EPA determined that mercury thermostats are
a type of spent MCE as the category of universal waste is being defined
in the rule; therefore, having a separate section of the regulations
for them would be duplicative and potentially confusing.\4\
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\4\ Batteries and lamps remain covered under their respective
sections of the universal waste rule, 273.13(a) & (d) and 273.33(a)
& (d), even though wastes can contain mercury. The specific
management standards promulgated specifically for them in part 273
are more appropriate than the ones in today's rule.
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EPA has changed some of the wording in the definition of ``mercury-
containing equipment'' from the proposed `` * * * contains elementary
mercury necessary for its operation'' to `` * * * contains elemental
mercury integral to its function.'' We believe that ``integral to its
function'' more clearly explains EPA's meaning that the mercury must be
part of the function of the device for it to be covered by the
universal waste rule. If the mercury is in the device accidentally, or
the device has been contaminated by an external source of mercury, the
device would not be eligible for management as a universal waste.
This change will clear up some confusion about the phrase
``necessary for its operations,'' expressed in the comments to the
proposed rule. One commenter asked if EPA's requirement that mercury in
MCE be ``necessary for [the device's] operation'' meant that only
equipment for which no alternative to mercury is available were
eligible for management as a universal waste. Although EPA encourages
the use of alternatives to mercury whenever possible, the definition of
MCE does not speak to whether there are feasible alternatives to
mercury available, but rather to whether the equipment contains mercury
in its regular use.
Some examples are helpful in understanding what kind of devices
fall into today's definition of mercury-containing equipment. These
devices vary in size and function, but, for the most part, the mercury
(1) is a relatively small amount of the complete piece of equipment,
(2) is encapsulated in some way in an ampule or other housing, and (3)
is used for delicate measuring of temperature or pressure or for
completing an electrical circuit. Some of the various types of MCE are
manometers, barometers, flow meters, mercury light switches, mercury
regulators, pressure relief gauges, water treatment gauges, and gas
safety relays. A more comprehensive list of examples of MCE is
available in the docket to the rulemaking in the Economic Analysis to
this rule.
c. Management Requirements for Spent Mercury-Containing Equipment
The following requirements were developed to prevent releases of
mercury while it is being managed as a universal waste. Mercury,
although a naturally occurring element, is released into the
environment by human industrial practices. It is easily volatilized and
can be dispersed widely through the air and transported thousands of
miles, accumulating in plants, animals, and humans as it travels. Once
released, mercury persists in the environment. Once mercury enters
water, biological processes transform it to methylmercury, a highly
toxic form that builds up in fish and animals that eat fish. Exposure
to high levels of mercury has been linked to serious nervous system and
developmental problems in humans. Therefore, EPA is concerned about
mercury releases to the environment that might occur if spent MCE is
managed improperly in the municipal waste stream. The universal waste
rule is designed to maximize collection of spent MCE while preventing
releases from management of those wastes. It does so through its
management requirements.
1. Summary of Requirements
The universal waste rule classifies regulated persons managing
universal wastes into four categories: (1) Small quantity handlers of
universal waste (SQHUWs), (2) large quantity handlers of universal
waste (LQHUWs), (3) universal waste transporters, and (4) destination
facilities. The term ``universal waste handler'' is defined in 40 CFR
273.9 as a generator of universal waste, or the owner or operator of a
facility that receives universal waste from other universal waste
handlers, accumulates universal waste and sends it to another universal
waste handler, to a destination facility or to a foreign destination.
The definition of ``universal waste handler'' does not include (1) a
person who treats, disposes of, or recycles universal waste (except
under the provision of Sec. 273.13(a) or (c) and Sec. 273.33(a) or
(c)); or (2) a person engaged in the off-site transportation of
universal waste by air, rail, highway, or water, including a universal
waste transfer facility.
Whether a universal waste handler is a SQHUW or LQHUW depends on
the amount of universal waste it accumulates at any time. Large
quantity handlers of universal waste are subject to certain regulatory
requirements in addition to those applicable to SQHUWs. A small
quantity handler of universal waste is defined under 40 CFR 273.9 as a
universal waste handler who accumulates less than 5,000 kilograms of
universal waste, calculated collectively, at any time. The 5,000
kilogram accumulation limit applies to the total quantity of all
universal waste handled on-site, regardless of the category of
universal waste.
If, at any time, a SQHUW accumulates 5,000 kilograms or more of
universal waste, then it becomes a large quantity universal waste
handler for that calendar year. A handler may re-evaluate its status as
a LQHUW in the following calendar year.
Today's management requirements for spent mercury-containing
equipment are generally the same as the existing requirements for
mercury-containing thermostats. In fact, as already noted, the Agency,
in response to public comments, has incorporated mercury thermostats
into today's new category of universal waste--mercury-containing
equipment--as they meet the definition of spent MCE under today's rule.
2. Requirements for Small and Large Quantity Handlers
Under today's rule, the existing universal waste requirements
currently applicable to SQHUWs and LQHUWs
[[Page 45513]]
also apply to handlers of spent mercury-containing equipment. For both
SQHUWs and LQHUWs, these requirements include waste management
standards, labeling and marking, accumulation time limits, employee
training, response to releases, requirements related to off-site
shipments, and export requirements. LQHUWs are subject to additional
notification and tracking requirements.
As described above, in response to public comment that universal
waste thermostats are actually a subset of the new category, spent MCE,
the Agency has decided to fold mercury thermostats into the category
for spent MCE to avoid confusion over the identical standards and to
avoid duplicative labeling and reporting requirements by generators of
both materials. Because mercury thermostats are like many other types
of MCE, as they contain mercury in ampules that are sometimes removed
for transport for mercury recovery, the management standards for SQHUWs
and LQHUWs in today's rule are very similar to those promulgated in
1995 for mercury thermostats. However, we added some standards to
account for the wider range of devices that will be encompassed by this
broader category. Those changes are explained in more depth below.
We also made several technical changes to the regulations in order
to broaden the previously existing category of mercury thermostats to
cover all mercury-containing equipment. In order to make this shift in
the regulatory text, we have (1) replaced references to universal waste
thermostats throughout parts 260 through 273 with references to
universal waste mercury-containing equipment and (2) replaced the
universal waste applicability section for mercury thermostats in Sec.
273.4 with an applicability section for mercury-containing equipment.
In the proposed rule, the waste management requirements for spent
mercury thermostats and spent MCE under 40 CFR 273.13 and 40 CFR 273.33
were already consolidated; therefore, no significant changes were
required to that language in the final rule as a result of the removal
of the thermostat category. The final rule does change the labeling
requirement, however. The labeling requirement for both SQHUWs and
LQHUWs of spent mercury-containing equipment is comparable to the
requirements for other types of universal waste. In addition, if a
handler of universal waste handles mercury thermostats, but not other
types of universal waste mercury-containing equipment, it may label or
mark them, or the container in which they are collected, as universal
waste thermostats (e.g., ``Universal Waste--Mercury Thermostats''),
rather than having to make or buy new labels for Mercury-Containing
Equipment.
For the purpose of creating waste management standards for this
waste stream, we have distinguished between several different ways that
mercury may be contained in an MCE and determined what the management
standards should be for each category to assure protection of human
health and the environment. The waste management standards in today's
rule address how handlers should manage (1) whole spent MCE with
ampules, and (2) whole spent MCE with open original housings, as well
as how to manage (3) ampules that have been removed from the device
they were in, (4) open tubes of mercury removed from a device (such as
a barometer or manometer), and (5) ancillary parts of spent MCE that
may have mercury in them, such as a valve.
Primarily, a handler of universal waste spent MCE must manage it in
such a way that prevents releases of any component of the universal
waste into the environment, especially mercury. Thus, any MCE that
shows evidence of leakage, spillage, or damage that could cause leakage
under reasonably foreseeable circumstances must be contained to prevent
the release of mercury. The container must be closed, structurally
sound, compatible with the contents of the spent MCE, must not have any
evidence of leakage, spillage, or damage that could result in leakage
under reasonably foreseeable circumstances, and must be reasonably
designed to prevent the escape of mercury into the environment by
volatilization or any other means.
Many types of MCE, for example, thermometers, thermostats, and
mercury switches, have an ampule in which the mercury is held. An
ampule, as defined in this rule, is an airtight vial made of glass,
plastic, metal, or any combination of these materials. Handlers of
undamaged whole spent MCEs must comply with part 273 standards such as
labeling, accumulation time, training, and response to releases, and
must manage the MCE to prevent releases, as described above.
Other types of MCE, however, like those that measure pressure, such
as barometers and manometers, contain mercury in a tube that is open at
one end. In this rule, we refer to this type of device as MCE with
``open original housing.'' Mercury ``housing'' is a container that
holds the mercury while it performs its function in the piece of MCE,
such as a case or enclosure that, unlike an ampule, is open at one end
and may allow for escape of mercury unless sealed before management as
waste.
Many of these devices with an open original housing are designed to
be sealed for transportation in a way that prevents mercury escape
because it is likely that during their lifecycles, they will have to be
moved from one location to another. If, however, the device cannot be
sealed in such a way to prevent release of mercury to the environment
during universal waste accumulation and transportation, it is not
eligible for management in the universal waste program because it
cannot meet the management standards in Sec. Sec. 273.13 and 273.33.
The management requirements for leaking or damaged spent MCE above
are also appropriate for intact spent MCE in which the mercury is in an
open housing and not in an ampule, and which have not been sealed.
Because this type of MCE, even when intact, has a greater potential to
release mercury into the environment than MCE in which the mercury is
wholly contained in an ampule, these devices must be managed with more
caution. In addition, ancillary pieces of spent MCE that contain
mercury not contained in an ampule must also be contained to minimize
the chance of any releases due to their management. Sometimes, in a
device that contains mercury not in an ampule, the mercury can escape
into other parts of the device. For instance, mercury might get into a
valve that separates the mercury in a MCE from the rest of the device.
For these reasons, under today's rule, when the mercury is not
contained, both intact spent MCE and any MCE parts must be managed in a
container that is closed, structurally sound, compatible with the
contents of the spent MCE, reasonably designed to prevent the escape of
mercury into the environment by volatilization or any other means, and
that does not have any evidence of leakage, spillage, or damage that
could result in leakage under reasonably foreseeable circumstances.
A final category of spent MCE that must be managed in these same
containers is ancillary equipment that came in contact with mercury and
has been removed from MCE. Mercury containing devices in which the
mercury is not in an ampule can contain valves or other pieces that
have come in contact with the mercury and, therefore, are best managed
under the universal waste rule, so they are sent to a destination
facility. Like damaged whole spent MCE or whole spent MCE with mercury
in an open housing, they must be contained in a container that is
closed, structurally sound, compatible
[[Page 45514]]
with the contents of the spent MCE, reasonably designed to prevent the
escape of mercury into the environment by volatilization or any other
means, and that does not have any evidence of leakage, spillage, or
damage that could result in leakage under reasonably foreseeable
circumstances.
Today's standards also state that ampules of mercury may be removed
from spent MCE for waste management if the handler follows a set of
requirements to ensure that the handler minimizes the chance of
breakage of the ampules and, if breakage does occur, that there is
containment to prevent mercury from escaping to the environment. In
addition, employees must be trained in waste management and emergency
procedures. The specific requirements are in 40 CFR 273.13(c)(2)(i)
through (viii) for SQHUWs and 40 CFR 273.33(c)(2)(i) through (viii) for
LQHUWs.
In response to public comments that not all spent mercury-
containing equipment that we described in the proposed rulemaking
contains mercury in ampules, EPA is finalizing regulations that allow a
handler of universal waste to remove the part of the mercury-containing
equipment that contains the mercury in its original housing, even if it
is not an ampule. In this case, the handler must immediately seal the
original housing for the mercury with an airtight seal to prevent the
escape of any mercury into the environment and must then follow all the
requirements for managing removed ampules, referred to above.
How the original housing is sealed with an airtight seal will
depend on the size and shape of the housing itself, as they vary
depending on what kind of device the MCE is. Therefore, today's rule
does not mandate a particular way to seal this housing. However, the
seal must be airtight. The housing must be sealed in a manner that does
not allow mercury to be released before or during the sealing process,
and the housing must be packaged in a manner that prevents releases
when transported to the destination facility. Examples of methods EPA
believes would be effective to prevent releases from a smaller device
are placing the housing in containers that are sealed with
electrician's tape or placing the housing in a sealed zipper storage
bag and then in a secondary container. Most important in this
management step is that no mercury escapes into the environment from
the sealed housing. EPA believes that allowing the original housings of
mercury to be sealed and managed in the same way as ampules are managed
will bring waste into the universal waste system that might have
otherwise been disposed of inappropriately.
Handlers of universal waste that remove an ampule or remove the
original housing of mercury and seal it must also determine whether
mercury has leaked from the equipment. The handlers must evaluate any
leaked materials, any clean-up residues resulting from spills or leaks,
or any other solid waste generated from the removal of ampules or
removal and sealing of mercury housing to determine if it exhibits a
characteristic of hazardous waste, including, but not limited to, the
toxicity characteristic for mercury. Any material exhibiting a
characteristic of hazardous waste would have to be managed in
accordance with all applicable requirements of 40 CFR parts 260 through
279, instead of as a universal waste.
In summary, leaking whole spent MCE, spent intact MCE with open
original housing, and ancillary equipment all must be managed in
containers that will not allow escape of mercury to the environment,
and ampules and housings of mercury with airtight seals must be managed
to minimize breakage and must be managed in containers that prevent the
escape of mercury if breakage does occur.
The notification requirement in today's rule for LQHUWs of spent
mercury-containing equipment is consistent with the existing
notification requirement for LQHUWs of all other universal wastes (40
CFR 273.32). Under today's rule, a large-quantity handler of spent MCE
is required to notify the Regional Administrator and receive an
identification number before meeting or exceeding the accumulation
limit. In addition, these handlers are required to keep records of
universal waste shipments received or sent off-site. These records may
take the form of a log, invoice, manifest, bill of lading, or other
shipping document.
Handlers of spent mercury-containing equipment are also subject to
the requirements applicable to all universal waste handlers in the
existing universal waste rule framework. These requirements can be
found in 40 CFR part 273 subparts B and C, and cover accumulation time
limits, employee training, response to releases, off-site shipments,
and exports.
3. Requirements for Transporters
Under 40 CFR 273.9, the definition of a universal waste transporter
is ``a person engaged in the off-site transportation of universal waste
by air, rail, highway, or water.'' Persons meeting the definition of
universal waste transporter include those persons who transport
universal waste from one universal waste handler to another, to a
processor, to a destination facility, or to a foreign destination.
These persons are subject to the universal waste transporter
requirements of part 273, subpart D. Today's rule does not change any
of the existing requirements applicable to universal waste
transporters.
EPA notes that today's rule also does not affect the applicability
of shipping requirements under the hazardous waste materials
regulations of the Department of Transportation. Transporters continue
to be subject to these requirements, if applicable (e.g., 49 CFR
173.164: Metallic Mercury and Articles Containing Mercury).
4. Requirements for Destination Facilities
Under 40 CFR 273.9, the definition of a destination facility is ``a
facility that treats, disposes of, or recycles a particular category of
universal waste'' (except certain activities specified in the
regulations at Sec. 273.13(a) and (c) and Sec. 273.33(a) and (c)).
Today's rule does not change any of the existing requirements
applicable to universal waste destination facilities (subpart E of part
273).
5. Effect of Today's Rule on Household Wastes and Conditionally-Exempt
Small Quantity Generators
Adding spent mercury-containing devices to the federal definition
of universal wastes does not impose any requirements on households and
conditionally-exempt small quantity generators for managing these
devices.\5\ Household waste continues to be exempt from RCRA subtitle C
regulations under 40 CFR 261.4(b)(1). However, under the universal
waste rule, households and CESQGs may choose to manage their spent
mercury-containing equipment in accordance with either the CESQG
regulations under 40 CFR 261.5 or as a universal waste under part 273
(40 CFR 273.8(a)(2)).
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\5\ Conditionally-exempt small quantity generators (CESQGs)
generate less than 100 kilograms of hazardous waste in a calendar
month and are not subject to RCRA subtitle C hazardous waste
management standards, provided they send their waste to a municipal
solid waste facility or other facility approved by the state for the
management of industrial or municipal non-hazardous wastes (40 CFR
261.5).
---------------------------------------------------------------------------
It should be noted, however, that 40 CFR 273.8(b) continues to
apply. Under this provision, if household or CESQG wastes are mixed
with universal waste subject to the requirements of 40 CFR
[[Page 45515]]
part 273 (i.e., universal waste that is not generated by households or
CESQGs), the commingled waste must be handled as universal waste in
accordance with part 273. Under today's rule, handlers of universal
waste who collect 5,000 kilograms or more of this commingled waste are
considered large quantity handlers of universal waste and must meet the
requirements of that category of universal waste handler.
Spent mercury-containing equipment that is managed as a universal
waste under 40 CFR part 273 is not required to be included in a
facility's determination of hazardous waste generator status (40 CFR
261.5(c)(6)). Therefore, a generator that manages such devices under
the universal waste rule and does not generate any other hazardous
waste is not subject to other subtitle C hazardous waste management
regulations, such as the hazardous waste generator regulations in part
262.
A universal waste handler that generates more than 100 kilograms
but less than 1,000 kilograms of hazardous waste in a calendar month in
addition to the universal waste it generates is regulated as a small
quantity generator of hazardous waste and is required to manage all
hazardous waste not included within the scope of that universal waste
rule in accordance with all applicable subtitle C hazardous waste
management standards. Similarly, a universal waste handler that
generates 1000 kilograms or more of hazardous waste in a calendar month
in addition to the universal waste it generates is regulated as a large
quantity generator of hazardous waste.
6. Land Disposal Restriction Requirements
As discussed above, under the existing regulations (40 CFR
268.1(f)), universal waste handlers and transporters are exempt from
the land disposal restriction (LDR) requirements regarding testing,
tracking, and recordkeeping in 40 CFR 268.7 and the storage prohibition
in 40 CFR 268.50. Today's rule does not change the regulatory status of
destination facilities; they remain subject to the full LDR
requirements.
VI. Discussion of Comments Received in Response to Proposed Rulemaking
and the Agency's Responses
EPA received 49 comments on the mercury-containing equipment
portion of the June 12, 2002 proposed rule for cathode ray tubes and
mercury-containing equipment. Thirty-six of these comments expressed
agreement that EPA should finalize this rule, though some included
suggestions to change the rule.
In this section, we are addressing those comments that we believe
are of interest to the general public or which resulted in significant
changes to the final rule from the proposal. A full record of the
comments we received and our responses to them is available in a
Response to Comments document in the docket for this rulemaking.
a. Regarding the Addition of Mercury-Containing Equipment to the
Universal Waste Rule
EPA received several comments on the topic of ampules of mercury.
There were five basic categories of comments: (1) EPA did not include a
definition of ``ampule;'' (2) many types of mercury-containing
equipment do not contain mercury in ampules; (3) spent MCE with mercury
not in ampules should still be able to be managed as universal waste;
(4) mercury not in ampules should be able to be removed from larger MCE
and managed as universal waste; and (5) there should be more stringent
management standards for mercury from spent MCE that is not in ampules.
The original proposal did not include a requirement that only spent
MCE with ampules would be eligible as a universal waste. The first
paragraph of proposed Sec. Sec. 273.13(c) and 273.33(c) discusses
management of whole spent MCE, regardless of whether the mercury is
contained in an ampule. This remains the case in the final rule.
However, in response to these comments on ampules, EPA has made several
changes to the final rule.
First, EPA included in the final rule a definition of ``ampule.''
Although many ampules are glass vials, EPA is aware that they can be
made of glass, plastic, or metal. EPA's primary concern with these
items is that they are airtight and will not allow mercury to escape
into the surrounding environment. Therefore, EPA defined an ampule as
``an airtight vial made of glass, plastic, metal, or any combination of
these materials.''
Secondly, EPA has added language to the first paragraph of Sec.
273.13(c) and Sec. 273.33(c) to address concerns that intact spent MCE
could cause releases to the environment even when not damaged. The
proposed language assumed that spent MCE would only release mercury if
damaged, but we also want to prevent potential releases that happen
because of an item's design, not damage. To account for this, EPA has
added language in both relevant sections stating that containers must
be reasonably designed to prevent the escape of mercury into the
environment by volatilization or any other means. This standard
requires that the handlers design containers for spent MCE that will
prevent releases under reasonably foreseeable conditions, which is
similar to other standards in the universal waste rule that rely on a
handlers anticipating the fate of the universal wastes they are
handling under reasonably foreseeable conditions.
In addition, in the final rule, mercury not in ampules may be
removed from the larger MCE for management as a universal waste, as
described under the requirements for large and small quantity handlers.
Again, in response to concerns that this could lead to mercury
releases, EPA stipulates that once the housing of mercury is removed,
it must be immediately sealed and managed in the same manner as an
ampule.
In summary, universal waste MCE includes whole spent MCE, both with
and without ampules, ampules of mercury, and the original housing of
mercury removed from its device and sealed with an airtight seal. EPA
believes that these changes address the concerns of the commenters on
the issue of ampules.
We also received several comments stating that to avoid duplicative
labeling and notification requirements, EPA should put spent MCE and
thermostats in the same category of universal waste. EPA agrees with
these comments and decided that thermostats are, in fact, one kind of
mercury-containing equipment and should not be distinguished from other
kinds of MCE. Therefore, we have replaced the thermostat category in
the universal waste regulations with the category for mercury-
containing equipment. Although this may cause some confusion in the
short-term for people already familiar with the regulations for mercury
thermostats, EPA decided that the long-term benefits of having one
category of universal waste for all types of spent MCE outweighed any
short-term confusion.
To assuage two foreseeable concerns with this approach, we made two
adjustments. First, we clarified that thermostats are included in the
universal waste category of MCE in several places in the regulatory
text, including the definitions and the title of the waste management
standards for universal waste spent MCE. In addition, to preclude
handlers of only mercury thermostats from having to change their
labeling procedures, the final rule allows such handlers to continue to
label a universal waste thermostat or a container containing only
universal waste thermostats with the previous language required in
these regulations: ``Universal Waste--Mercury
[[Page 45516]]
Thermostat(s),'' ``Waste Mercury Thermostat(s),'' or ``Used Mercury
Thermostat(s).''
In addition to these changes to the final rule, EPA is clarifying
several issues in response to comments received.
Several commenters asked whether the weight of an entire device
needs to be counted toward the 5,000 kilogram total universal waste
threshold for a small quantity generator of universal waste. If the
mercury has not been removed from the device, then the weight of the
entire device is counted toward the 5,000 kilogram limit. However, EPA
clarifies that if the mercury has been removed from a device and the
rest of the device is managed as non-hazardous waste, then only the
weight of the part being managed as spent MCE needs to be counted as
universal waste. In this case, the generator is responsible for
ensuring that any part of the device that may have become contaminated
with mercury, especially in the case of an open housing of mercury, is
being managed appropriately under RCRA.
We also received a comment asking EPA to clarify the status of MCE
being sent to a reseller for further evaluation as to whether it is
usable in its current condition. Like other materials, MCE being sent
to a reseller for possible reuse is not a solid waste, and, therefore,
not a hazardous or universal waste until the handler has decided to
discard it. If it is not discarded, it is not a waste and therefore not
a universal waste.
With respect to the scope of the term ``mercury-containing
equipment,'' we received a comment regarding the items listed in the
preamble to the rule. We clarify today that the items mentioned in this
preamble as MCE do not constitute a comprehensive list of MCE. Any item
that meets the definition of mercury containing equipment in today's
rule is eligible for management as a universal waste.
EPA also received several comments to the proposed rulemaking
suggesting that EPA promulgate a conditional exclusion from the
definition of solid waste for MCE that is recycled. These comments are
beyond the scope of today's rulemaking, which is a response to a
petition to add MCE to the universal waste rule. The proposed rule for
these materials did not discuss development of a conditional exclusion
from the definition of solid waste, and such an action would raise very
different issues and require a separate rulemaking.
b. Regarding the Universal Waste Notification Requirement
In the proposed rule, EPA specifically requested comment on the
notification requirements in the universal waste rule. Specifically,
the Agency requested comments on deleting 40 CFR 273.32(b)(5), which
requires that when large quantity handlers of universal waste notify
the EPA Regional Administrator of their large quantity handler status,
they include a statement that (1) states that they are accumulating
over 5,000 kilograms of universal waste and (2) lists the types of
universal wastes they are accumulating above this quantity.
EPA believes the latter half of this requirement is unnecessary. In
40 CFR 273.32(b)(4), the regulations already require LQHUWs to include
a list of all the types of universal waste managed by the handler in
their notification. Also, the 5,000 kilogram limit for LQHUWs is for
all universal waste accumulated by the handler, not for any one
universal waste. Therefore, EPA proposed to delete the requirement to
notify the Regional Administrator of which particular universal wastes
exceed the 5,000 kilogram limit.
In response to its solicitation of comment on this issue, EPA
received 16 comments from state regulatory agencies and the regulated
community in support of this change and no comments in opposition to
the change. Therefore, EPA is finalizing this change to the universal
waste regulations in today's final rule.
VII. State Authority
a. Applicability of Rule in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified states to
administer and enforce the RCRA hazardous waste program within the
state. Following authorization, EPA retains enforcement authority under
sections 3008, 3013, and 7003 of RCRA, although authorized states have
primary enforcement responsibility. The standards and requirements for
state authorization are found at 40 CFR part 271.
Prior to enactment of the Hazardous and Solid Waste Amendments of
1984 (HSWA), a State with final RCRA authorization administered its
hazardous waste program entirely in lieu of EPA administering the
federal program in that state. The federal requirements no longer
applied in the authorized state, and EPA could not issue permits for
any facilities in that state, since only the state was authorized to
issue RCRA permits. When new, more stringent federal requirements were
promulgated, the state was obligated to enact equivalent authorities
within specified time frames. However, the new federal requirements did
not take effect in an authorized state, until the state adopted the
federal requirements as state law.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which
was added by HSWA, new requirements and prohibitions imposed under HSWA
authority take effect in authorized states at the same time that they
take effect in unauthorized states. EPA is directed by the statute to
implement these requirements and prohibitions in authorized states,
including the issuance of permits, until the state is granted
authorization to do so. While states must still adopt HSWA related
provisions as state law to retain final authorization, EPA implements
the HSWA provisions in authorized states until the states do so.
Authorized states are required to modify their programs only when
EPA enacts federal requirements that are more stringent or broader in
scope than existing federal requirements. RCRA section 3009 allows the
states to impose standards more stringent than those in the federal
program (see also 40 CFR 271.1). Therefore, authorized states may, but
are not required to, adopt federal regulations, both HSWA and non-HSWA,
that are considered less stringent than previous federal regulations.
b. Effect on State Authorization
Today's rule is less stringent than the current federal program.
Because states are not required to adopt less stringent regulations,
they do not have to adopt the universal waste regulations for spent
mercury-containing devices, although EPA encourages them to do so. Some
states may already be in the process of streamlining their regulations
for these materials or adding them to their list of universal wastes.
If a state's standards for spent mercury-containing equipment are less
stringent than those in today's rule, the state must amend its
regulations to make them equivalent to today's standards and pursue
authorization.
c. Interstate Transport
Because some states may choose not to seek authorization for
today's rule, there will probably be cases when spent mercury-
containing equipment will be transported through states with different
regulations governing them.
First, a waste which is subject to the universal waste regulations
may be sent to a state, or through a state, where it is
[[Page 45517]]
subject to the full hazardous waste regulations. In this scenario, for
the portion of the trip through the originating state, and any other
states where the waste is a universal waste, neither a hazardous waste
transporter with an EPA identification number per 40 CFR 263.11 nor a
manifest would be required. However, for the portion of the trip
through the receiving state, and any other states that do not consider
the spent MCE to be a universal waste, the transporter must have a
manifest, and must move the waste in compliance with 40 CFR part 263.
In order for the final transporter and the receiving facility to
fulfill the requirements concerning the manifest (40 CFR 263.20,
263.21, 263.22; 264.71, 264.72, 264.76 or 265.71, 265.72, and 265.76),
the initiating facility should complete a manifest and forward it to
the first transporter to travel in a state where the waste is not a
universal waste. The receiving facility must then sign the manifest and
send a copy to the initiating facility. EPA recommends that the
initiating facility note in block 15 of the manifest (Special Handling
Instructions and Additional Information) that the wastes are under the
universal waste regulations in the initiating state, but not in the
receiving facility's state.
Second, a hazardous waste generated in a state which does not
regulate it as a universal waste may be sent to a state where it is
regulated as a universal waste. In this scenario, the waste must be
moved by a hazardous waste transporter while the waste is in the
generator's state or any other states where it is not a universal
waste. The initiating facility would complete a manifest and give
copies to the transporter as required under 40 CFR 262.23(a).
Transportation within the receiving state and any other states that
regulate it as a universal waste would not require a manifest and need
not be transported by a hazardous waste transporter. However, it is the
initiating facility's responsibility to ensure that the manifest is
forwarded to the receiving facility by any non-hazardous waste
transporter and sent back to the initiating facility by the receiving
facility (see 40 CFR 262.23 and 262.42). EPA recommends that the
generator note in block 15 of the manifest (Special Handling
Instructions and Additional Information) that the waste is covered
under the universal waste regulations in the receiving facility's
state, but not in the generator's state.
Third, a waste may be transported across a state in which it is
subject to the full hazardous waste regulations although, other
portions of the trip may be from, through, and to states in which it is
covered under the universal waste regulations. Transport through the
state must be conducted by a hazardous waste transporter and must be
accompanied by a manifest. In order for the transporter to fulfill its
requirements concerning the manifest (subpart B of part 263), the
initiating facility must complete a manifest as required under the
manifest procedures and forward it to the first transporter to travel
in a state where the waste is not a universal waste. The transporter
must deliver the manifest to, and obtain the signature of, either the
next transporter or the receiving facility.
As more states streamline their regulatory requirements for spent
MCE, the complexity of interstate transport should be reduced.
VIII. Statutory and Executive Order Reviews
a. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), Federal
agencies must determine whether a regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines a ``significant regulatory action''
as one that is likely to result in a rule that may: ``(1) Have an
annual effect on the economy of $100 million or more or adversely
affect, in a material way, the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities; (2)
create serious inconsistency or otherwise interfere with an action
taken or planned by another agency; (3) materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients; or (4) raise novel legal or
policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order.''
Pursuant to the terms of Executive Order 12866, the Agency has
determined that today's rule is a significant regulatory action because
it contains novel policy issues. As such, this action was submitted to
OMB for review. Changes made in response to OMB suggestions or
recommendations are documented in the docket to today's proposal.
To estimate the cost savings, incremental costs, economic impacts,
and benefits from this rule to affected regulated entities, we
completed an economic analysis for this rule. Copies of this analysis,
``Economic Analysis of Including Mercury Containing Devices In the
Universal Waste System'' have been placed in the RCRA Docket.
EPA estimated through this analysis that 1,877 generators handling
approximately 550 tons of MCE would be affected by this rule. EPA
estimates a cost savings from the rule to be $273,000 per year. Of
this, about $200,000 would be savings to generators of mercury-
containing equipment, an average of $106 per generator per year. The
remaining $73,000 is attributable to retorters and waste brokers.
In addition to cost savings, EPA's analysis showed qualitative
benefits to adding spent MCE to the universal waste program: improved
implementation of and compliance with the hazardous waste program,
establishment of facilities to consolidate mercury waste, increased
recovery and recycling of mercury from these devices, and reduced
mercury emissions.
b. Paperwork Reduction Act
The information collection requirements in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
information collection requirements are not enforceable until OMB
approves them.
The information requirements established for this action, and
identified on the Information Collection Request (ICR) supporting
today's rule are largely self-implementing. This process will ensure
that (1) regulated entities managing mercury-containing equipment are
held accountable to the applicable requirements; and (2) state
inspectors can verify compliance when needed. For example, the
universal waste standards require LQHUWs and SQHUWs to demonstrate the
length of time that spent MCE has been accumulated from the date they
were received or became a waste. The standards also require LQHUWs and
destination sites to keep records of all shipments sent and received.
Further, the standards require waste handlers and processors to notify
EPA under certain circumstances (e.g., when large amounts of waste are
accumulated or when illegal shipments are received).
EPA will use the collected information in the event of an
inspection to ensure that spent mercury-containing equipment is being
managed in a protective manner. The information aids the Agency in
tracking waste shipments and identifying improper management practices.
In addition, information kept in facility records helps handlers,
processors, and
[[Page 45518]]
destination facilities to ensure that all facilities are managing these
wastes properly.
Section 3007(b) of RCRA and 40 CFR part 2, subpart B, which define
EPA's general policy on public disclosure of information, contain
provisions for confidentiality. However, no questions of a sensitive
nature are included in any of the information collection requirements
associated with today's action.
EPA has carefully considered the burden imposed upon the regulated
community by the regulations. EPA is confident that those activities
required of respondents are necessary and, to the extent possible, has
attempted to minimize the burden imposed. EPA believes strongly that if
the minimum requirements specified under the regulations are not met,
neither the facilities nor EPA can ensure that spent MCE are being
managed in a manner protective of human health and the environment.
The aggregate annual burden to respondents of this action over the
three-year time period covered by the ICR is estimated at 114,770
hours, with a cost of approximately $825,158. Average annual burden
hours per respondent are estimated to be 4.5 hours for small quantity
handlers; 15 hours for large quantity handlers; 10 hours for treatment,
storage, and disposal facilities; and 16 hours for transporters. There
are an estimated 2495 respondents. This level of burden represents a
reduction of approximately 18,493 hours, since the spent MCE will no
longer need to comply with the full RCRA requirements for generators
and transporters.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information, unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is
approved by OMB, the Agency will publish a technical amendment to 40
CFR part 9 in the Federal Register to display the OMB control number
for the approved information collection requirements contained in this
final rule.
c. Regulatory Flexibility Act, as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedures
Act or any other statute, unless the agency certifies that the rule
will not have a significant economic impact on a substantial number of
small entities. Small entities include small businesses, small
organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as (1) a small business as defined by
the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district, or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise that is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities'' (5 U.S.C. 603 and 604).
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule.
The small entity analysis conducted for today's rule indicates that
streamlining requirements for spent mercury-containing devices would
generally result in savings to affected entities compared to the
baseline requirements. Under a scenario assuming full compliance, the
rule is not expected to result in a net cost to any affected entity.
Thus, adverse impacts are not anticipated. Costs could increase for
entities that are not complying with current requirements, but even
these costs, which are not properly attributable to the current
rulemaking, would not be expected to result in significant impacts on a
substantial number of small entities. We have therefore concluded that
today's final rule will relieve regulatory burden for small entities.
d. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year.
Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory
[[Page 45519]]
provisions of Title II of the UMRA) for state, local, or tribal
governments or the private sector. The UMRA generally excludes from the
definition of ``federal governmental mandate'' (in sections 202, 203,
and 205) and from the definition of ``federal private sector mandate''
duties that arise from participation in a voluntary federal program.
Today's final rule is voluntary in that it is less stringent than the
current regulations. As a result, state governments are not required to
adopt the changes and the private sector is not required to
participate. Thus, today's rule is not subject to the requirements of
sections 202 and 205 of the UMRA.
e. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Thus, Executive Order 13132 does
not apply to this rule.
f. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes. Thus, Executive Order 13175 does not
apply to this rule.
g. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that (1) is determined to be ``economically significant''
as defined under Executive Order 12866; and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. In fact, EPA expects that the result
of this final rule will be to increase compliance with the hazardous
waste regulations and reduce exposures to mercury by the public,
including children.
h. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. Further, we have
concluded that this rule is not likely to have any adverse energy
effects.
i. National Technology Transfer Advancement Act
As noted in the proposed rule, section 12(d) of the (NTTAA), Public
Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use
voluntary consensus standards in its regulatory activities, unless to
do so would be inconsistent with applicable law or otherwise
impractical. Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures, and
business practices) that are developed or adopted by voluntary
consensus standards bodies. The NTTAA directs EPA to provide Congress,
through OMB, explanations when the Agency decides not to use available
and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
j. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective August 5, 2005.
List of Subjects
40 CFR Part 260
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 264
Environmental protection, Hazardous waste, Packaging and
containers, Security measures, Surety bonds.
40 CFR Part 265
Environmental protection, Air pollution control, Hazardous waste,
Insurance, Packaging and containers, Reporting and recordkeeping
requirements, Security measures, Surety bonds, Water supply.
40 CFR Part 268
Environmental protection, Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 270
Environmental protection, Hazardous materials transportation,
Reporting and recordkeeping requirements.
[[Page 45520]]
40 CFR Part 273
Environmental protection, Hazardous materials transportation,
Hazardous waste.
Dated: July 26, 2005.
Stephen L. Johnson,
Administrator.
0
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations, parts 260, 261, 264, 265, 268, 270, and
273 are amended as follows:
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
0
1. The authority citation for part 260 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6938, 6939, and 6974.
Subpart B--Definitions
0
2. Section 260.10 is amended by adding the definition of ``Mercury-
containing equipment'' and by republishing the introductory text of and
revising paragraph (3) to the definition of ``Universal Waste'' to read
as follows:
Sec. 260.10 Definitions.
* * * * *
Mercury-containing equipment means a device or part of a device
(including thermostats, but excluding batteries and lamps) that
contains elemental mercury integral to its function.
* * * * *
Universal Waste means any of the following hazardous wastes that
are managed under the universal waste requirements of part 273 of this
chapter:
* * * * *
(3) Mercury-containing equipment as described in Sec. 273.4 of
this chapter; and
* * * * *
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
3. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.
Subpart A--General
0
4. Section 261.9 is amended by revising paragraph (c) to read as
follows:
Sec. 261.9 Requirements for universal waste.
* * * * *
(c) Mercury-containing equipment as described in Sec. 273.4 of
this chapter; and
* * * * *
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE AND DISPOSAL FACILITIES
0
5. The authority citation for part 264 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
Subpart A--General
0
6. Section 264.1 is amended by revising paragraph (g)(11)(iii) to read
as follows:
Sec. 264.1 Purpose, scope, and applicability.
* * * * *
(g) * * *
(11) * * *
(iii) Mercury-containing equipment as described in Sec. 273.4 of
this chapter; and
* * * * *
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE AND DISPOSAL FACILITIES
0
7. The authority citation for part 265 continues to read as follows:
Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925,
6935, 6936, and 6937.
Subpart A--General
0
8. Section 265.1 is amended by revising paragraph (c)(14)(iii) to read
as follows:
Sec. 265.1 Purpose, scope and applicability.
* * * * *
(c) * * *
(14) * * *
(iii) Mercury-containing equipment as described in Sec. 273.4 of
this chapter; and
* * * * *
PART 268--LAND DISPOSAL RESTRICTIONS
0
9. The authority citation for part 268 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
Subpart A--General
0
10. Section 268.1 is amended by revising paragraph (f)(3) to read as
follows:
Sec. 268.1 Purpose, scope and applicability.
* * * * *
(f) * * *
(3) Mercury-containing equipment as described in Sec. 273.4 of
this chapter; and
* * * * *
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
0
11. The authority citation for part 270 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
Subpart A--General Information
0
12. Section 270.1 is amended by revising paragraph (c)(2)(viii)(C) to
read as follows:
Sec. 270.1 Purpose and scope of these regulations.
* * * * *
(c) * * *
(2) * * *
(viii) * * *
(C) Mercury-containing equipment as described in Sec. 273.4 of
this chapter; and
* * * * *
PART 273--STANDARDS FOR UNIVERSAL WASTE MANAGEMENT
0
13. The authority for part 273 continues to read as follows:
Authority: 42 U.S.C. 6922, 6923, 6924, 6925, 6930, and 6937.
Subpart A--General
0
14. Section 273.1 is amended by revising paragraph (a)(3) to read as
follows:
Sec. 273.1 Scope.
(a) * * *
(3) Mercury-containing equipment as described in Sec. 273.4; and
* * * * *
0
15. Section 273.4 is revised to read as follows:
Sec. 273.4 Applicability--Mercury-containing equipment.
(a) Mercury-containing equipment covered under this part 273. The
requirements of this part apply to persons managing mercury-containing
equipment, as described in Sec. 273.9, except those listed in
paragraph (b) of this section.
(b) Mercury-containing equipment not covered under this part 273.
The requirements of this part do not apply to persons managing the
following mercury-containing equipment:
(1) Mercury-containing equipment that is not yet a waste under part
261 of this chapter. Paragraph (c) of this section describes when
mercury-containing equipment becomes a waste;
(2) Mercury-containing equipment that is not a hazardous waste.
Mercury-containing equipment is a hazardous
[[Page 45521]]
waste if it exhibits one or more of the characteristics identified in
part 261, subpart C of this chapter or is listed in part 261, subpart D
of this chapter; and
(3) Equipment and devices from which the mercury-containing
components have been removed.
(c) Generation of waste mercury-containing equipment. (1) Used
mercury-containing equipment becomes a waste on the date it is
discarded.
(2) Unused mercury-containing equipment becomes a waste on the date
the handler decides to discard it.
0
16. Section 273.9 is amended by adding the definitions of ``Ampule,''
and ``Mercury-containing equipment,'' and by revising the definitions
of ``Large quantity handler of universal waste,'' ``Small quantity
handler of universal waste,'' and republishing the introductory text
and revising paragraph (3) of the definition of ``Universal waste'' to
read as follows:
Sec. 273.9 Definitions.
* * * * *
Ampule means an airtight vial made of glass, plastic, metal, or any
combination of these materials.
* * * * *
Large Quantity Handler of Universal Waste means a universal waste
handler (as defined in this section) who accumulates 5,000 kilograms or
more total of universal waste (batteries, pesticides, mercury-
containing equipment, or lamps, calculated collectively) at any time.
This designation as a large quantity handler of universal waste is
retained through the end of the calendar year in which the 5,000
kilogram limit is met or exceeded.
Mercury-containing equipment means a device or part of a device
(including thermostats, but excluding batteries and lamps) that
contains elemental mercury integral to its function.
* * * * *
Small Quantity Handler of Universal Waste means a universal waste
handler (as defined in this section) who does not accumulate 5,000
kilograms or more of universal waste (batteries, pesticides, mercury-
containing equipment, or lamps, calculated collectively) at any time.
* * * * *
Universal Waste means any of the following hazardous wastes that
are subject to the universal waste requirements of this part 273:
* * * * *
(3) Mercury-containing equipment as described in Sec. 273.4; and
* * * * *
Subpart B--Standards for Small Quantity Handlers of Universal Waste
0
17. Section 273.13 is amended by revising paragraph (c) to read as
follows:
Sec. 273.13 Waste management.
* * * * *
(c) Mercury-containing equipment. A small quantity handler of
universal waste must manage universal waste mercury-containing
equipment in a way that prevents releases of any universal waste or
component of a universal waste to the environment, as follows:
(1) A small quantity handler of universal waste must place in a
container any universal waste mercury-containing equipment with non-
contained elemental mercury or that shows evidence of leakage,
spillage, or damage that could cause leakage under reasonably
foreseeable conditions. The container must be closed, structurally
sound, compatible with the contents of the device, must lack evidence
of leakage, spillage, or damage that could cause leakage under
reasonably foreseeable conditions, and must be reasonably designed to
prevent the escape of mercury into the environment by volatilization or
any other means.
(2) A small quantity handler of universal waste may remove mercury-
containing ampules from universal waste mercury-containing equipment
provided the handler:
(i) Removes and manages the ampules in a manner designed to prevent
breakage of the ampules;
(ii) Removes the ampules only over or in a containment device
(e.g., tray or pan sufficient to collect and contain any mercury
released from an ampule in case of breakage);
(iii) Ensures that a mercury clean-up system is readily available
to immediately transfer any mercury resulting from spills or leaks from
broken ampules from that containment device to a container that meets
the requirements of 40 CFR 262.34;
(iv) Immediately transfers any mercury resulting from spills or
leaks from broken ampules from the containment device to a container
that meets the requirements of 40 CFR 262.34;
(v) Ensures that the area in which ampules are removed is well
ventilated and monitored to ensure compliance with applicable OSHA
exposure levels for mercury;
(vi) Ensures that employees removing ampules are thoroughly
familiar with proper waste mercury handling and emergency procedures,
including transfer of mercury from containment devices to appropriate
containers;
(vii) Stores removed ampules in closed, non-leaking containers that
are in good condition;
(viii) Packs removed ampules in the container with packing
materials adequate to prevent breakage during storage, handling, and
transportation;
(3) A small quantity handler of universal waste mercury-containing
equipment that does not contain an ampule may remove the open original
housing holding the mercury from universal waste mercury-containing
equipment provided the handler:
(i) Immediately seals the original housing holding the mercury with
an air-tight seal to prevent the release of any mercury to the
environment; and
(ii) Follows all requirements for removing ampules and managing
removed ampules under paragraph (c)(2) of this section; and
(4) (i) A small quantity handler of universal waste who removes
mercury-containing ampules from mercury-containing equipment or seals
mercury from mercury-containing equipment in its original housing must
determine whether the following exhibit a characteristic of hazardous
waste identified in 40 CFR part 261, subpart C:
(A) Mercury or clean-up residues resulting from spills or leaks
and/or
(B) Other solid waste generated as a result of the removal of
mercury-containing ampules or housings (e.g., the remaining mercury-
containing device).
(ii) If the mercury, residues, and/or other solid waste exhibits a
characteristic of hazardous waste, it must be managed in compliance
with all applicable requirements of 40 CFR parts 260 through 272. The
handler is considered the generator of the mercury, residues, and/or
other waste and must manage it in compliance with 40 CFR part 262.
(iii) If the mercury, residues, and/or other solid waste is not
hazardous, the handler may manage the waste in any way that is in
compliance with applicable federal, state or local solid waste
regulations.
* * * * *
0
18. Section 273.14 is amended by revising paragraph (d) to read as
follows:
Sec. 273.14 Labeling/marking.
* * * * *
(d) (1) Universal waste mercury-containing equipment (i.e., each
device), or a container in which the equipment is contained, must be
labeled or marked clearly with any of the following phrases:
``Universal Waste--Mercury Containing Equipment,'' ``Waste
[[Page 45522]]
Mercury-Containing Equipment,'' or ``Used Mercury-Containing
Equipment.''
(2) A universal waste mercury-containing thermostat or container
containing only universal waste mercury-containing thermostats may be
labeled or marked clearly with any of the following phrases:
``Universal Waste--Mercury Thermostat(s),'' ``Waste Mercury
Thermostat(s),'' or ``Used Mercury Thermostat(s).''
* * * * *
Subpart C--Standards for Large Quantity Handlers of Universal Waste
0
19. Section 273.32 is amended by revising paragraphs (b)(4) and (b)(5)
to read as follows:
Sec. 273.32 Notification.
* * * * *
(b) * * *
(4) A list of all the types of universal waste managed by the
handler (e.g., batteries, pesticides, mercury-containing equipment, and
lamps); and
(5) A statement indicating that the handler is accumulating more
than 5,000 kilograms of universal waste at one time.
0
20. Section 273.33 is amended by revising paragraph (c) to read as
follows:
Sec. 273.33 Waste management.
* * * * *
(c) Mercury-containing equipment. A large quantity handler of
universal waste must manage universal waste mercury-containing
equipment in a way that prevents releases of any universal waste or
component of a universal waste to the environment, as follows:
(1) A large quantity handler of universal waste must place in a
container any universal waste mercury-containing equipment with non-
contained elemental mercury or that shows evidence of leakage,
spillage, or damage that could cause leakage under reasonably
foreseeable conditions. The container must be closed, structurally
sound, compatible with the contents of the device, must lack evidence
of leakage, spillage, or damage that could cause leakage under
reasonably foreseeable conditions, and must be reasonably designed to
prevent the escape of mercury into the environment by volatilization or
any other means.
(2) A large quantity handler of universal waste may remove mercury-
containing ampules from universal waste mercury-containing equipment
provided the handler:
(i) Removes and manages the ampules in a manner designed to prevent
breakage of the ampules;
(ii) Removes the ampules only over or in a containment device
(e.g., tray or pan sufficient to collect and contain any mercury
released from an ampule in case of breakage);
(iii) Ensures that a mercury clean-up system is readily available
to immediately transfer any mercury resulting from spills or leaks of
broken ampules from that containment device to a container that meets
the requirements of 40 CFR 262.34;
(iv) Immediately transfers any mercury resulting from spills or
leaks from broken ampules from the containment device to a container
that meets the requirements of 40 CFR 262.34;
(v) Ensures that the area in which ampules are removed is well
ventilated and monitored to ensure compliance with applicable OSHA
exposure levels for mercury;
(vi) Ensures that employees removing ampules are thoroughly
familiar with proper waste mercury handling and emergency procedures,
including transfer of mercury from containment devices to appropriate
containers;
(vii) Stores removed ampules in closed, non-leaking containers that
are in good condition;
(viii) Packs removed ampules in the container with packing
materials adequate to prevent breakage during storage, handling, and
transportation;
(3) A large quantity handler of universal waste mercury-containing
equipment that does not contain an ampule may remove the open original
housing holding the mercury from universal waste mercury-containing
equipment provided the handler:
(i) Immediately seals the original housing holding the mercury with
an air-tight seal to prevent the release of any mercury to the
environment; and
(ii) Follows all requirements for removing ampules and managing
removed ampules under paragraph (c)(2) of this section;
and
(4) (i) A large quantity handler of universal waste who removes
mercury-containing ampules from mercury-containing equipment or seals
mercury from mercury-containing equipment in its original housing must
determine whether the following exhibit a characteristic of hazardous
waste identified in 40 CFR part 261, subpart C:
(A) Mercury or clean-up residues resulting from spills or leaks
and/or
(B) Other solid waste generated as a result of the removal of
mercury-containing ampules or housings (e.g., the remaining mercury-
containing device).
(ii) If the mercury, residues, and/or other solid waste exhibits a
characteristic of hazardous waste, it must be managed in compliance
with all applicable requirements of 40 CFR parts 260 through 272. The
handler is considered the generator of the mercury, residues, and/or
other waste and must manage it in compliance with 40 CFR part 262.
(iii) If the mercury, residues, and/or other solid waste is not
hazardous, the handler may manage the waste in any way that is in
compliance with applicable federal, state or local solid waste
regulations.
0
21. Section 273.34 is amended by revising paragraph (d) to read as
follows:
Sec. 273.34 Labeling/marking.
* * * * *
(d) (1) Mercury-containing equipment (i.e., each device), or a
container in which the equipment is contained, must be labeled or
marked clearly with any of the following phrases: ``Universal Waste--
Mercury Containing Equipment,'' ``Waste Mercury-Containing Equipment,''
or ``Used Mercury-Containing Equipment.''
(2) A universal waste mercury-containing thermostat or container
containing only universal waste mercury-containing thermostats may be
labeled or marked clearly with any of the following phrases:
``Universal Waste--Mercury Thermostat(s),'' ``Waste Mercury
Thermostat(s),'' or ``Used Mercury Thermostat(s).''
* * * * *
[FR Doc. 05-15437 Filed 8-4-05; 8:45 am]
BILLING CODE 6560-50-P