[Federal Register Volume 83, Number 231 (Friday, November 30, 2018)]
[Rules and Regulations]
[Pages 61552-61563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25892]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, and 262

[EPA-HQ-OLEM-2018-0646; FRL9986-91-OLEM]


Safe Management of Recalled Airbags

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule with request for comments.

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SUMMARY: The Environmental Protection Agency (EPA) is issuing this 
interim final rule in response to the urgent public health issue posed 
by recalled Takata airbag inflators still installed in vehicles. With 
this rule, EPA is facilitating a more expedited removal of defective 
Takata airbag inflators from vehicles by dealerships, salvage yards and 
other locations for safe and environmentally sound disposal by 
exempting the collection of airbag waste

[[Page 61553]]

from hazardous waste requirements so long as certain conditions are 
met. The Agency is also seeking comment on this interim final rule.

DATES: This interim final rule is effective on November 30, 2018. 
Comments must be received on or before January 29, 2019. Under the 
Paperwork Reduction Act (PRA), comments on the information collection 
provisions must be received on or before January 29, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2018-0646, at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Office of Resource Conservation and 
Recovery, Materials Recovery and Waste Management Division, MC 5304P, 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
DC 20460, Tracy Atagi, at (703) 308-8672, ([email protected]).

SUPPLEMENTARY INFORMATION: 

Preamble Outline

I. General Information
II. Statutory Authority
III. When will this interim final rule be effective?
IV. Background Information
    A. Regulation of Airbag Modules and Airbag Inflators Under RCRA
    B. Background on the Takata Inflator Recalls
    C. Damage Incidents Related to Airbag Inflator Recycling
    D. Impact of Takata Bankruptcy and the Amended Preservation 
Order on Management of Takata Inflators
V. Rationale for Conditional Exemption for Collection of Airbag 
Waste
VI. Summary of Requirements of the Conditional Exemption for 
Collection of Airbag Waste
    A. Applicability of Conditional Exemption
    B. Limits on Accumulation Times and Quantities at Airbag Waste 
Handlers
    C. Packaging, Labeling and Transportation Requirements for 
Airbag Waste Handlers
    D. Tracking and Recordkeeping Requirements for Airbag Waste 
Handlers
    E. Prohibition on Reuse of Defective Airbag Modules and Airbag 
Inflators
VII. State Authorization
VIII. Statutory and Executive Order (E.O.) Reviews

I. General Information

A. Does this action apply to me?

    This action applies to entities that manage airbag waste (i.e., 
discarded airbag modules and airbag inflators) that are subject to 
hazardous waste regulations. The dealerships performing the Takata 
recall work constitute the majority of the facilities that will be 
impacted by this rule. These dealerships fall under NAICS code 441: 
Motor Vehicle and Parts Dealers. EPA estimates that about 15,256 
dealerships may be affected by this rule. Other potentially affected 
entities include those in NAICS code 336: Transportation Equipment 
Manufacturing, and in NAICS code 562: Waste Management and Remediation 
Services.

B. Why is EPA issuing an interim final rule?

    Section 553(b)(B) of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedures are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. EPA has determined that 
there is good cause for issuing this interim final rule without prior 
proposal and opportunity for comment because such notice and 
opportunity for comment would be impracticable and contrary to the 
public interest. Specifically, prompt promulgation of this rule without 
delay is necessary to protect human health and the environment by 
facilitating the urgent removal of dangerously defective Takata airbag 
inflators from vehicles, and by preventing defective Takata airbag 
inflators from scrap vehicles from being reused, while maintaining 
protection of human health and the environment during airbag waste 
collection, storage and disposal.
    In its November 3, 2015 Coordinated Remedy Order, the U.S. 
Department of Transportation (DOT) National Highway Traffic Safety 
Administration (NHTSA) found that it was imperative to accelerate the 
rate of the recalls because ``[e]ach airbag inflator with the capacity 
to rupture, as the recalled Takata inflators do, presents an 
unreasonable risk of serious injury or death . . . Since the propensity 
for rupture increases with the age of the inflator, and increases even 
more when the vehicle has been exposed to consistent long-term HAH 
[high absolute humidity] conditions, the risk for injurious or lethal 
rupture increases with each passing day.'' \1\ This report emphasizes 
that as the inflators get older, each day that passes brings forth an 
increased danger. In addition, as noted in a November 15, 2017 report 
prepared by the Independent Monitor for the Takata Restructuring on The 
State of the Takata Recalls, ``[t]he words `grenade' and `ticking time 
bomb' accurately convey the lethal potential of these defective 
inflators.'' \2\
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    \1\ National Highway Traffic Safety Administration (NHTSA), 
Coordinated Remedy Order, November 3, 2015, Docket No. NHTSA-2015-
0055, paragraph 32. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/nhtsa-coordinatedremedyorder-takata.pdf.
    \2\ The Independent Monitor of Takata and the Coordinated Remedy 
Program, The State of the Takata Airbag Recalls, November 15, 2017, 
page 1, paragraph 1. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/the_state_of_the_takata_airbag_recalls-report_of_the_independent_monitor_112217_v3_tag.pdf.
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    Delaying promulgation of this rule through notice and comment 
procedures would be impracticable and contrary to the public interest 
because such a delay would further increase the risk of death or 
serious injury by slowing down the removal of defective Takata airbag 
inflators from vehicles and impeding the collection of defective airbag 
inflators from salvage yards and other locations (and increasing the 
potential for defective airbag inflators in scrap vehicles to be 
reused). This existing risk has now increased significantly since the 
date of the 2015 NHTSA report because of recent events that further 
heighten the urgency to accelerate the recall.
    First, more time has passed since the date of the 2015 NHTSA study, 
and as noted in that study and reiterated in the 2017 study by the 
Independent Monitor, each passing day brings forth more danger. The 
danger is greater today than in 2015 because of the increased age of 
the inflators.
    Second, with the recent amendment to DOT's Preservation Order on 
April 12, 2018, and with Takata's restructuring due to bankruptcy 
finalized on February 21, 2018, vehicle manufacturers no longer have to 
send recalled inflators to Takata warehouses

[[Page 61554]]

for long-term storage but may now send them directly for disposal. EPA 
is encouraging this through today's conditional exemption, since long-
term storage of recalled inflators can make the defect more dangerous. 
These recalled inflators that are sent directly to disposal are not 
covered by the amended Preservation Order and thus are regulated as 
hazardous waste, whereas in the past they were not regulated as waste 
under the original Preservation Order. As a result, many automobile 
dealers and other entities who continue to replace recalled airbag 
inflators at the current rate of repair could become subject to 
additional hazardous waste generator requirements in 40 CFR part 262, 
which would impose additional regulatory obligations on the dealers' 
and salvage vendors' management of the inflators. Through our 
conversations with DOT, the automobile manufacturers, automotive 
salvage vendors, and other affected stakeholders, EPA has learned that 
imposing full generator requirements on automobile dealers and salvage 
vendors who lack the expertise and experience in managing hazardous 
waste would result in the slowdown, rather than the necessary 
acceleration, of the recall effort, resulting in even greater harm to 
human health and the environment.\3\
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    \3\ EPA 2018. Compilation of Stakeholder Meeting Summaries 
Regarding RCRA Regulation of Airbag Waste.
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    This rule is intended to assist the automobile dealers and other 
entities in their handling of the airbags, and ensure delivery of the 
airbags to facilities that can more expertly manage these airbags in 
order to accelerate the recall. Thus, it is essential that there be no 
delay in promulgating this rule.
    Third, there have continued to be deaths as recently as 2018 as a 
result of Takata airbag explosions. On January 1, 2018, there was a 
death in Malaysia \4\, and before that, on July 13, 2017, a death in 
Australia \5\ as well as another on July 19, 2017 in Florida \6\ as a 
result of defective Takata airbags.
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    \4\ Confirmed Rupture of Takata Driver's Airbag Inflator in 
Malaysia on January 1, 2018 (Jan. 30, 2018), https://www.honda.com.my/corporate/press_release_details/660/Confirmed-Rupture-of-Takata-Driver%E2%80%99s-Airbag-Inflator-in-Malaysia-on-January-1,-2018.
    \5\ Takata Recall: Sydney man was due to replace airbag two days 
before fatal accident (last updated Sept. 6, 2018), https://www.theguardian.com/world/2018/sep/07/takata-recall-sydney-man-was-due-to-replace-airbag-two-days-before-fatal-accident.
    \6\ 20th death from faulty Takata airbags reported by Honda 
(Dec. 20, 2017), https://www.cbsnews.com/news/20th-death-from-faulty-takata-air-bags-reported-by-honda/.
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    Finally, with respect to the effective date, EPA finds that it has 
good cause to make the revisions immediately effective under section 
553(d) of the Administrative Procedure Act (APA), 5 U.S.C. 553(d), and 
section 3010(b) of RCRA, 42 U.S.C. 6930(b). Section 553(d) provides in 
pertinent part that final rules shall not become effective until 30 
days after publication in the Federal Register, ``except . . . a 
substantive rule which grants or recognizes an exemption or relieves a 
restriction . . . or as otherwise provided by the agency for good 
cause''. RCRA section 3010(b) has similar provisions for an immediate 
effective date. It provides for an immediate effective date, rather 
than the usual six month period, for ``(1) a regulation with which the 
Administrator finds the regulated community does not need six months to 
come into compliance . . . . or (3) other good cause found and 
published with the regulation,'' among other exceptions.
    The purpose of section 553(d) of the APA is to ``give affected 
parties a reasonable time to adjust their behavior before the final 
rule takes effect.'' Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. 
Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 
(8th Cir. 1977) (quoting legislative history). Similarly, as noted 
above, whether the regulated community needs a period of time to come 
into compliance is relevant to the application of RCRA section 3010(b). 
Because this rule grants a conditional exemption from certain RCRA 
hazardous waste requirements, it qualifies for the APA exemption for 
any rule that ``recognizes or grants an exemption or relieves a 
restriction'' as well as the RCRA exemption for any rule for which 
``the regulated community does not need six months to come into 
compliance.''
    Moreover, EPA has determined that for purposes of both the APA and 
RCRA effective date provisions, there is good cause for making this 
final rule effective immediately. In determining whether good cause 
exists to waive the 30-day effective date under the APA, an agency 
should ``balance the necessity for immediate implementation against 
principles of fundamental fairness which require that all affected 
persons be afforded a reasonable amount of time to prepare for the 
effective date of its ruling.'' Gavrilovic, 551 F.2d at 1105. EPA has 
also applied this balancing test to the RCRA effective date provision 
for purposes of this rule. This rule facilitates a more expedited 
removal of defective Takata airbag inflators from vehicles by 
dealerships, salvage yards and other locations for safe and 
environmentally sound disposal by exempting the collection of airbag 
waste from hazardous waste requirements so long as certain conditions 
are met. Because this action provides an exemption to certain 
requirements that automobile dealers and other parties would otherwise 
need to follow under RCRA, and because this exemption is optional, the 
regulated community does not need time to prepare for this rule. 
Specifically, as further discussed in this preamble, the conditions for 
the exemption mirror how recalled airbag modules and airbag inflators 
have been managed under the DOT Preservation Order during the past 
three years, and therefore no additional time is needed to start 
operating under the exemption. In contrast, the necessity of immediate 
implementation is great, as previously discussed.
    As a result, EPA is making this interim final rule effective upon 
publication.

II. Statutory Authority

    These regulations are promulgated under the authority of sections 
2002, 3001, 3002, 3003, 3004, 3006, 3010, and 3017 of the Solid Waste 
Disposal Act of 1965, as amended by the Resource Conservation and 
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA). This statute is commonly referred to 
as ``RCRA.''

III. When will this interim final rule be effective?

    The revisions to 40 CFR 260.10, CFR 261.4 and CFR 262.14 become 
effective on November 30, 2018.

IV. Background Information

A. Regulation of Airbag Modules and Airbag Inflators Under RCRA

    An airbag module is a fully assembled unit including both the 
airbag inflator and the fabric cushion. An airbag inflator is the small 
metal canister within the airbag module that generally houses explosive 
propellant and an initiator. The airbag module is deployed when the 
airbag inflator receives an electronic pulse from a vehicle's crash 
sensor. In properly functioning airbag modules that use a gas 
generating system, chemical propellant contained in an airbag inflator 
unit burns in a fast and controlled manner, quickly emitting an inert 
gas through vents in the canister out into the airbag module, which 
inflates the cushion. Airbag modules across the automobile safety 
industry utilize explosive propellants for rapid response to an 
automobile accident.
    Most airbag inflators use oxidizers as part of the gas generating 
composition of

[[Page 61555]]

the propellant and, therefore, when discarded, would meet the 
definition of ignitable hazardous waste under the RCRA hazardous waste 
regulations at 40 CFR 261.21(a)(4), which states that a solid waste 
exhibits the characteristic of ignitability if, ``[i]t is an 
oxidizer.'' \7\ In addition, due to the explosive propellant component, 
discarded airbag modules and airbag inflators meet the definition of 
reactive hazardous waste at 40 CFR 261.23(a)(6), which states that a 
solid waste exhibits the characteristic of reactivity if, ``[i]t is 
readily capable of detonation or explosive reaction if it is subjected 
to a strong initiating source or if heated under confinement.'' \8\ The 
deployment of airbag inflators generally results in the depletion of 
the ignitable and/or reactive components to cause the release of inert 
gas, after which the inflators would no longer exhibit the ignitable or 
reactive characteristics under the RCRA regulations.
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    \7\ Ignitable hazardous waste carries the waste code D001.
    \8\ Reactive hazardous waste carries the waste code D003.
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    Airbag modules and airbag inflators that exhibit hazardous waste 
characteristics under 40 CFR part 261 subpart C may be exempt from 
hazardous waste regulations under certain scenarios, as summarized in 
an EPA memorandum signed on July 19, 2018.\9\ As the memo explains, the 
applicable RCRA hazardous waste regulations for airbag modules and 
airbag inflators depend on the type of device, and how it is managed. 
However, it is important to note that, as the memo explains, recalled 
Takata airbag modules and airbag inflators removed from vehicles do not 
qualify for the exemptions and exclusions available to non-recalled 
airbag modules and airbag inflators because, as described in this 
preamble, the Takata recalled airbag inflators cannot be safely reused 
or deployed.
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    \9\ U.S. EPA, Regulatory Status of Automotive Airbag Inflators 
and Fully Assembled Airbag Modules, July 19, 2018.
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B. Background on the Takata Inflator Recalls

    In May 2015, the U.S. Department of Transportation (DOT) announced 
a national recall of airbag inflators manufactured by Takata due to a 
defect in their phase-stabilized ammonium nitrate (PSAN) propellant, 
which has resulted in fifteen deaths and at least 250 injuries in the 
U.S. as of August 2018.\10\ These airbag inflator recalls constitute 
the largest automotive recall in U.S. history, with 19 vehicle 
manufacturers affected and approximately 65-70 million airbag inflators 
scheduled to be recalled by December 2019. Of these affected airbag 
inflators, 50 million inflators in an estimated 37 million vehicles 
were recalled as of August 2018 and the remaining inflators will be 
recalled by December 2019.\11\ Included in this number are tens of 
thousands of ``Alpha'' airbag inflators, which have a significantly 
higher risk of rupture due to a manufacturing defect resulting in low-
density propellant in addition to the propellant defect described 
below. Nine of the 15 fatalities in the U.S. were caused by Alpha 
airbag inflators.\12\
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    \10\ National Highway Traffic Safety Administration (NHTSA), 
Takata Recall Spotlight. https://www.nhtsa.gov/equipment/takata-recall-spotlight.
    \11\ Id.; National Highway Traffic Safety Administration 
(NHTSA), The State of Takata Recalls, https://www.nhtsa.gov/recall-spotlight/state-takata-recalls.
    \12\ National Highway Traffic Safety Administration (NHTSA), 
Takata ``Alpha'' Airbags Pose Increased Risk, https://www.nhtsa.gov/recalls/takata-alpha-air-bags-pose-increased-risk.
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    On November 3, 2015, the National Highway Traffic Safety 
Administration (NHTSA) issued a Coordinated Remedy Order that set forth 
the requirements and obligations of certain motor vehicle manufacturers 
and the airbag manufacturer, Takata, in connection with the recall and 
remedy of certain types of Takata airbag inflators.\13\ In its 
Coordinated Remedy Order, NHTSA found that it was imperative to 
accelerate the rate of the recalls because ``[e]ach airbag inflator 
with the capacity to rupture, as the recalled Takata inflators do, 
presents an unreasonable risk of serious injury or death. . . . Since 
the propensity for rupture increases with the age of the inflator, and 
increases even more when the vehicle has been exposed to consistent 
long-term HAH [high absolute humidity] conditions, the risk for 
injurious or lethal rupture increases with each passing day.'' \14\
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    \13\ National Highway Traffic Safety Administration (NHTSA), 
Coordinated Remedy Order, November 3, 2015, Docket No. NHTSA-2015-
0055. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/nhtsa-coordinatedremedyorder-takata.pdf.
    \14\ Ibid, paragraph 32.
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    The PSAN propellant used in the recalled Takata airbag inflators 
degrades over time when moist propellant is exposed to long-term daily 
temperature cycling. Moisture from the air adsorbs to PSAN particles, 
changing the structure of the propellant and causing the inflator to 
over-pressurize during deployment.\15\ In some cases, this over-
pressurization causes the metal canister to rupture, producing 
shrapnel-like metal shards during airbag inflation. To mitigate these 
effects, Takata began manufacturing PSAN airbag inflators containing 
desiccant to prevent the adsorption of moisture to the PSAN particles. 
While some inflators with desiccant have been recalled, others are 
still under evaluation and may or may not be recalled in the 
future.\16\
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    \15\ National Highway Traffic Safety Administration (NHTSA), 
Expert Report of Harold R. Blomquist, Ph.D., May 4, 2016. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/expert_report-hrblomquist.pdf.
    \16\ National Highway Traffic Safety Administration (NHTSA), New 
Takata recall involves Nissan, Ford, and Mazda vehicles, https://www.nhtsa.gov/recall-spotlight/new-takata-recall-involves-nissan-ford-and-mazda-vehicles.
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    A 2015 Safety Data Sheet (SDS) for Takata pyrotechnic automotive 
safety devices, including airbag modules and airbag inflators, 
describes the hazards of the devices, including an ``[i]nitiation 
hazard of an uncontrolled activation of the safety device due to: Fire; 
heat; electrostatic discharge; inductions through electromagnetic 
radiation; or, excessive mechanical load'' and a ``[b]urn hazard when 
there is direct contact with pyrotechnic safety device during 
activations.'' \17\ The firefighting measures described in the SDS 
include evacuating personnel and emergency responders for 1500 feet 
(\1/3\ mile). In the event of spilled material from damaged devices, 
the SDS recommends that an explosive expert conduct the cleanup using 
anti-static equipment.
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    \17\ Takata Safety Data Sheet (SDS)--Pyrotechnic Automotive 
Safety Devices, January 2015.
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    Propagation and bonfire testing results submitted to EPA by Takata 
provides further information regarding the hazards posed by recalled 
Takata inflators.\18\ In September 2016, a third-party company 
performed sympathetic propagation testing on two types of recalled 
Takata airbag inflators for Takata. The testing generally consisted of 
bundling several inflators together and deploying the center inflator 
in order to observe the effects of deployment on the surrounding 
inflators. The results of the testing showed that deployment of one 
inflator does not cause deployment of surrounding inflators. In some 
tests, the center inflator fragmented, but it still did not cause 
surrounding inflators to deploy or fragment, although some superficial 
damage to the surrounding inflators did occur. In April 2017, a third-
party company performed the UN 6(c) external fire (bonfire) test on 
recalled Takata airbag inflators in individual fiberboard boxes. The 
inflators did not mass detonate when exposed to fire, but they did 
initiate, as

[[Page 61556]]

would be expected when inflators are exposed to temperatures generated 
by this type of fire. In some cases, they were propelled from their 
initial locations of rupture, throwing fragments beyond the initial 
location of the inflator.
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    \18\ Testing information was submitted as confidential business 
information (CBI). The summary of results in this preamble does not 
contain CBI.
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C. Damage Incidents Related to Airbag Inflator Recycling

    While non-Takata airbag inflators do not present the same shrapnel-
producing defect as recalled Takata airbag inflators, these airbag 
inflators can still present an explosive risk when processed or 
recycled, as demonstrated by recent incidents at two facilities. In 
February 2015, an explosion and fire occurred at one airbag 
manufacturing and recycling facility as two workers handled airbag 
inflators that had been processed in an incinerator prior to recycling 
the metal.\19\ In that incident, one worker was hospitalized with head 
injuries and burns. In March 2018, a large explosion at a different 
airbag recycling facility in the dedicated airbag recycling area killed 
one worker and seriously injured another.\20\ This explosion is 
suspected to have been caused by the ignition of aluminum dust, which 
was created in the process of shredding airbag inflators. These 
incidents demonstrate the characteristically hazardous nature of waste 
airbag inflators and their component materials and the potential risk 
they pose to human health during processing.
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    \19\ U.S. EPA, Autoliv Promontory Facility (20 June 2017), July 
24, 2018.
    \20\ Tennessee Occupational Safety and Health Administration, 
Redacted Report: Lighting Resources LLC Explosion on March 14, 2018, 
August 16, 2018.
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D. Impact of Takata Bankruptcy and the Amended Preservation Order on 
Management of Takata Inflators

2015 Preservation Order
    A Preservation Order issued by DOT and signed by Takata in February 
2015 required all recalled airbag inflators be preserved intact, except 
for those utilized for testing purposes. Takata was required to take 
all reasonable and appropriate steps designed to prevent the partial or 
full destruction, alteration, deletion, shredding, incineration or loss 
of recalled or returned inflators, ruptured inflators and any other 
inflators under the recalls. The recalled Takata inflators were 
organized into categories of inflators that must be preserved. Ruptured 
inflators from field events were required to be preserved in a locked, 
secured, climate-controlled area, except for testing, inspection or 
analysis purposes. Recalled or returned inflators were also to be kept 
in a locked, secured and climate-controlled area.
EPA June Memorandum
    In the June 23, 2017 memorandum, EPA clarified that the recalled 
Takata airbag inflators are not subject to RCRA Subtitle C regulatory 
requirements while they are being held under the 2015 DOT Preservation 
Order because EPA does not consider materials being stored pending 
judicial proceedings or investigations to be ``discarded.'' This 
interpretation is consistent with previous interpretations EPA has 
taken on similar materials, such as seized fireworks held as evidence 
and materials from aircraft accidents subject to investigation, where 
such items would otherwise be considered hazardous 
waste.21 22 Additionally, EPA clarified that Takata recalled 
airbag inflators would be considered ``used'' (i.e., spent materials), 
and therefore a solid waste, once the preservation requirements are 
lifted. When the recalled Takata airbag inflators are discarded as a 
solid waste, EPA believes that they meet both the ignitability and 
reactivity hazardous waste characteristics.\23\
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    \21\ U.S. EPA, Explosives Presenting an Immediate Safety Threat 
and Explosives Stored During Analysis, August 11, 1988. RCRA Online 
11363.
    \22\ U.S. EPA, Management of Aircraft Remains from Catastrophic 
Loss Events, January 6, 2014. RCRA Online 14881.
    \23\ Ignitable waste code D001 (40 CFR 261.21(a)(4)). Reactive 
waste code D003 (40 CFR 261.23(a)(6)).
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Impact of Takata Bankruptcy on Recall Procedures
    Takata's U.S. subsidiary, TK Holdings Inc., filed for Chapter 11 
bankruptcy on June 25, 2017, and received U.S. court approval for its 
plan on February 21, 2018.\24\ Takata's manufacturing assets were sold 
to Key Safety Systems, another automobile safety system manufacturer, 
and the money from the sale was used to settle debts and legal claims. 
A small portion of the company emerged from bankruptcy and has a 
section dedicated to facilitating the replacement of recalled airbag 
inflators.\25\ Takata's plan sets aside funds designated for the 
removal, handling and eventual disposal of recalled airbag inflators 
received before the effective date of the bankruptcy, April 10, 2018, 
and states that Takata will continue to provide replacement airbag 
inflators until the recall process is finished, expected in 2020.\26\ 
Takata will also continue to receive recalled airbag inflators for 
storage prior to testing or eventual disposal after April 10, 2018, 
although it is not required to do so. EPA's understanding is that 
Takata will charge the automobile manufacturers to cover the costs 
associated with storage and eventual disposal of these inflators 
received after April 10, 2018. These costs include the overhead 
expenses associated with Takata managing the collection, storage, and 
disposal of airbag inflators, including wages and benefits for their 
workers that are involved in handling and coordinating the movement of 
the inflators. Prior to the bankruptcy effective date, Takata accepted 
and managed these inflators from the affected vehicle manufacturers 
free of charge.
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    \24\ Prime Clerk, Takata TK Holdings Inc Bankruptcy Case 
Information, https://restructuring.primeclerk.com/takata/Home-Index.
    \25\ To avoid confusion, the entities responsible for managing 
the Takata airbag inflator recalls, including Takata's post-
bankruptcy successor company TK Global, will collectively be 
referred to as ``Takata'' in this preamble.
    \26\ U.S. Bankruptcy Court--District of Delaware, Fifth Amended 
Joint Chapter 11 Plan of Reorganization of TK Holdings Inc. and its 
Affiliated Debtors, filed February 20, 2018.
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2018 Amended Preservation Order
    The April 12, 2018 Amendment to the February 25, 2015 Preservation 
Order and Testing Control Plan, issued by the U.S. DOT's NHTSA, 
requires Takata to preserve certain airbag inflators that are the 
subject of an ongoing defect investigation by NHTSA and the subject of 
private litigation.\27\ The Amendment also requires Takata to implement 
a control plan for the inspection, testing, or analysis of those 
inflators.
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    \27\ National Highway Traffic Safety Administration (NHTSA), 
Amendment to the February 25, 2015 Preservation Order and Testing 
Order Control Plan, April 12, 2018, EA15-001 (formerly PE14-016). 
https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/preservation_order_amendment_public_-_april_12_2018-tag.pdf.
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    The original 2015 Preservation Order required Takata to preserve 
indefinitely all affected airbag inflators, while the 2018 Amendment 
enables Takata to reduce the number of preserved airbag inflators by 
requesting the release of certain inflators from the Preservation Order 
allowing them to be disposed in compliance with all applicable 
regulations, including RCRA. The Amended Order also requires Takata to 
account for returned foreign and other ammonium-nitrate containing 
inflators. The Amendment applies to Takata airbag inflators removed 
from vehicles as a result of recalls affecting the 19 vehicle 
manufacturers.
    The terms of the Amendment require Takata to track all airbag 
inflators in its possession by unique serial number and set aside at 
least 5% of inflators,

[[Page 61557]]

proportionate to the overall number of inflators received from each 
State and of each type of inflator, for future analysis. The Amendment 
allows Takata to submit Disposal Designations to NHTSA, identifying a 
specific quantity of inflators to be released from preservation and 
disposed. The designated inflators are considered released from the 
Preservation Order fifteen business days after NHTSA's confirmation of 
receipt of the Disposal Designation.
    Although the affected vehicle manufacturers may choose to contract 
with Takata's post-bankruptcy reorganized entity to transport and store 
recalled airbag inflators, they are not required to do so by the 
Preservation Order or Amendment. If a vehicle manufacturer chooses to 
contract with the Takata entity, the Takata entity must preserve those 
airbag inflators under the terms of the Preservation Order, and 
therefore those airbag inflators are not solid wastes per EPA's June 
23, 2017 memorandum as described above. However, a vehicle manufacturer 
may choose not to contract with the Takata entity for a variety of 
reasons, including increased cost, increased liability, and slower 
disposal, in which case those airbag inflators would not be covered by 
the Preservation Order or Amendment, and would be considered discarded 
when removed from the vehicle.

V. Rationale for Conditional Exemption for Collection of Airbag Waste

    In its 2015 Coordinated Remedy Order pertaining to the Takata 
airbag recalls, DOT found that it was imperative to accelerate the rate 
of the recalls because ``[e]ach airbag inflator with the capacity to 
rupture, as the recalled Takata inflators do, presents an unreasonable 
risk of serious injury or death. . .Since the propensity for rupture 
increases with the age of the inflator, and increases even more when 
the vehicle has been exposed to consistent long-term HAH [high absolute 
humidity] conditions, the risk for injurious or lethal rupture 
increases with each passing day.'' \28\
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    \28\ National Highway Traffic Safety Administration (NHTSA), 
Coordinated Remedy Order, November 3, 2015, Docket No. NHTSA-2015-
0055. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/nhtsa-coordinatedremedyorder-takata.pdf.
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    Since the original order was issued by DOT, the affected vehicle 
manufacturers have been working steadily to remove the recalled Takata 
airbag inflators from vehicles. As discussed earlier, because of DOT's 
Preservation Order, the recalled airbag inflators have not been 
regulated as hazardous waste and have instead been safely collected, 
transported as hazardous materials and stored under the Preservation 
Order.
    With the amendment to DOT's Preservation Order and with Takata's 
restructuring due to bankruptcy, vehicle manufacturers may now dispose 
of recalled inflators that are not covered by the amended Preservation 
Order directly, rather than sending them to the Takata warehouses for 
long-term storage. This approach is preferable from a public health and 
environmental protection perspective both because it reduces the volume 
of inflators in long-term storage and because it is more efficient in 
freeing up resources spent on handling and storage that can be spent 
directly on the recalls themselves.
    However, because this subset of recalled inflators is not subject 
to the DOT Preservation Order, they would be regulated as hazardous 
waste. As a result, many automobile dealers and other entities who 
continue to replace recalled airbag inflators at the current rate of 
repair would become subject to additional hazardous waste generator 
requirements in 40 CFR part 262, which would impose additional 
regulatory obligations on the dealers' and salvage vendors' management 
of the inflators.
    Most automobile dealers and salvage vendors are currently in the 
category of ``Very Small Quantity Generators'' of hazardous waste. By 
managing hazardous airbag waste, the dealers and salvage vendors would 
likely generate sufficient amounts of hazardous waste (on a monthly 
basis) to become subject to increased regulations associated with 
higher generator categories for which dealers and salvage vendors 
typically have not had experience, familiarity, or expertise. Imposing 
these increased generator obligations on dealers and salvage vendors 
would result in a much less efficient, effective and environmentally 
protective approach to the urgent, time-critical recall effort. Through 
our conversations with DOT, the automobile manufacturers, automotive 
salvage vendors, and other affected stakeholders, EPA has learned that 
imposing full generator requirements on automobile dealers and salvage 
vendors who lack the expertise and experience in managing hazardous 
waste might result in the slowdown, rather than the necessary 
acceleration, of the recall effort, resulting in greater harm to human 
health and the environment.\29\ The automobile manufacturers are 
worried that, because of their lack of familiarity and expertise with 
full RCRA hazardous waste generator regulations and the additional 
costs related to the management of hazardous waste in these higher 
generator categories, if the dealers were to become fully regulated 
small or large quantity generators due to handling recalled airbag 
waste, they may slow down or stop removing recalled airbag inflators 
altogether. In addition, some stakeholders have expressed their concern 
of a lack of hazardous waste transportation capacity, especially in 
more sparsely populated rural areas of the country. As hazardous waste 
generators, dealers would be required to use certified hazardous waste 
transporters, which are less numerous and more expensive than standard 
hazardous material transporters used to transport recalled inflators 
under the DOT preservation order. Thus, placing full hazardous waste 
generator requirements on dealers or salvage yards would not be the 
most efficient or environmentally protective approach for the above 
reasons. In contrast, as explained in the following section, an airbag 
waste collection facility under the control of a vehicle manufacturer 
or their authorized representative or under the control of an 
authorized party administering a remedy program in response to the 
recalls or a designated facility as defined in 40 CFR 260.10, has 
greater expertise and familiarity in properly managing hazardous waste.
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    \29\ EPA 2018. Compilation of Stakeholder Meeting Summaries 
Regarding RCRA Regulation of Airbag Waste.
---------------------------------------------------------------------------

    A related but separate issue involves airbag modules and airbag 
inflators scavenged from scrapped automobiles. One vendor company has 
been involved in the collection of Takata airbag modules from the 
approximately 6,000 salvage yards in the United States. The company was 
approached by one automobile manufacturer after they discovered a 
number of injuries were caused by recalled Takata airbag inflators 
recovered from salvage yards and installed in other vehicles. The 
salvage vendor worked with the automobile manufacturer, DOT, and the 
independent monitor to put together a program to retrieve airbag 
modules containing recalled airbag inflators before the inflators can 
be removed and placed in another vehicle because at that point, they 
are virtually untraceable. The vendor collects the airbag and brings 
them to a central location where they undergo a validation step to 
determine whether they are definitively recalled airbag inflators. This 
validation includes using visual aids and scanning all VIN and serial 
numbers. The vendor also supplies specifically designed packaging and 
handles the

[[Page 61558]]

transportation for the airbag modules. Once a pallet of validated 
airbag modules is collected (approximately 100-110 pieces), the pallet 
is sent for disposal and a certificate of destruction is provided. The 
airbag modules are transported in compliance with DOT hazardous 
materials regulations. According to this vendor, if the airbag modules 
must be handled as RCRA hazardous waste when removed from a vehicle in 
the salvage yard, the salvage yards would likely stop removing them.
    Due to the potential for the replacement of defective Takata airbag 
inflators to slow down with the application of full RCRA generator 
requirements, EPA has determined that modified RCRA requirements are 
appropriate for automobile dealers, salvage yards, and other entities 
that are removing the recalled airbag inflators and facilitating the 
recalls.
    As discussed earlier, any potential delay to the recalls presents 
an immediate public health threat, increasing the chances of death or 
serious injury due to a defective airbag deploying in a vehicle. 
Moreover, the system for managing the recalled airbag modules and 
inflators under the DOT Preservation Order over the last three years 
has provided for protection of human health and the environment during 
collection and transport of the airbag modules and inflators. Under the 
recalls, each individual recalled inflator is tracked by vehicle 
identification number, and subject to DOT packaging and transportation 
regulations. Vehicle manufacturers work with their dealers to make sure 
that the recalled inflators are quickly moved offsite and not over-
accumulated, and have a strong incentive from a liability perspective 
to continue to do so in the future.
    The conditions for the exemption promulgated by this rule mirror 
how recalled airbag modules and airbag inflators have been managed 
under the DOT Preservation Order during the past three years, except 
that instead of going to long-term storage under the Preservation 
Order, the collected airbag waste will be sent for safe disposal at a 
RCRA facility designated to receive hazardous waste per 40 CFR 260.10. 
Thus, exempting the collection of airbag waste from RCRA requirements, 
provided certain conditions are met, will result in an increase in 
protection of public health by facilitating the recalls, allowing the 
current airbag waste collection system to continue to safely collect 
the recalled inflators, and sending them directly to appropriate 
disposal facilities rather than to long-term storage facilities under 
the Preservation Order.
    As previously explained in other rulemakings, EPA has authority 
under RCRA to issue conditional exclusions from the hazardous waste 
regulations. EPA has previously interpreted RCRA section 3001(a) to 
authorize the issuance of ``conditional exemptions'' from the 
requirements of RCRA Subtitle C, where it determines that ``a waste 
might pose a hazard only under limited management scenarios, and other 
regulatory programs already address such scenarios.'' 62 FR at 6636 
(February 12, 1997); 66 FR at 27222-27223 (May 16, 2001). The final 
rule takes a similar approach to those earlier rules.
    Section 3001(a) requires that EPA decide whether a waste ``should 
be subject to'' the requirements of RCRA Subtitle C. Hence, RCRA 
section 3001 authorizes EPA to determine when subtitle C regulation is 
appropriate. EPA has consistently interpreted section 3001 of RCRA to 
give it broad flexibility in developing criteria for hazardous wastes 
to enter or exit the Subtitle C regulatory system.
    RCRA section 1004(5) further supports EPA's interpretation. This 
interpretation has also been upheld upon judicial review. See, e.g., 
Military Toxics Project v. EPA, 146 F. 3d 948 (DC Cir. 1998) (upholding 
conditional exemption for storage of military munitions, based on EPA 
determination that such wastes are subject to binding standards that 
meet or exceed RCRA standards, in addition to an institutional 
oversight process.) EPA has interpreted the statutory definition of 
hazardous waste in RCRA section 1004(5)(B) as incorporating the idea 
that a waste that is otherwise hazardous does not require regulation 
under RCRA so long as it is properly managed.
    EPA has most recently provided a full discussion of EPA's authority 
for conditional exclusion from RCRA Subtitle C requirements in the 
preamble in its final rule entitled Hazardous Waste Management System: 
Conditional Exclusion for Carbon Dioxide (CO2) Streams in Geologic 
Sequestration Activities, 79 FR 350, 353-354 (January 3, 2014). 
Consistent with that rule, and other rules involving conditional 
exemptions, EPA has determined in this rule, as discussed above, that 
exempting the collection of airbag waste from RCRA requirements, 
provided certain conditions are met, will result in an increase in 
protection of public health by facilitating the recalls and allowing 
the current airbag waste collection system to continue to safely 
collect the recalled inflators. It is important to note, however, that 
this conditional exemption only applies to the storage and transport of 
airbag waste during collection. The final disposition of the hazardous 
airbag waste continues to be regulated under applicable RCRA Subtitle C 
hazardous waste regulations.
    EPA has received requests from stakeholders to unconditionally 
exempt airbag modules and inflators from RCRA hazardous waste 
regulations.\30\ However, EPA has determined, based on the nature of 
the waste and the damage cases that have occurred at airbag recycling 
facilities, an exemption for the final disposition of airbag waste 
would not be protective of human health and the environment. While the 
collection of intact airbag modules and inflators by vehicle 
manufacturers or their authorized representatives according to DOT 
requirements can be done safely without imposing RCRA requirements 
beyond the conditions of the exemption discussed in this preamble, 
processing the airbag inflator, which requires treatment of the 
ignitable and reactive propellant inside the inflator, is another 
matter. As discussed earlier, there have been at least two explosions 
at airbag recycling facilities, including one that resulted in a 
fatality, and in the case of the recalled Takata airbag inflators, the 
degraded nature of the propellant makes the potential for explosive 
reactions even worse. The protections provided by a RCRA Subtitle C 
hazardous waste permitted facility, including personnel training, 
inspections, contingency planning and emergency response, and an 
informed community through public participation address the risk of 
explosion from the end-of-life management of the collected airbag 
waste.
---------------------------------------------------------------------------

    \30\ EPA 2018. Compilation of Stakeholder Meeting Summaries 
Regarding RCRA Regulation of Airbag Waste.
---------------------------------------------------------------------------

    EPA solicits comment on the conditional exemption for airbag waste, 
including the applicability of the exemption and the specific 
requirements of this conditional exemption as explained in this 
preamble. EPA will consider these comments in determining whether any 
additional revisions to the regulation of airbag waste are necessary in 
the future.

VI. Summary of Requirements of the Conditional Exemption for the 
Collection of Airbag Waste

A. Applicability of Conditional Exemption

    The new airbag waste conditional exemption found at 40 CFR 261.4(j) 
applies to all airbag waste (i.e., airbag modules and airbag inflators) 
collected from auto dealers or other airbag waste handlers for the 
purpose of safe

[[Page 61559]]

disposal. Entities that generate airbag waste under the conditional 
exemption are referred to as ``airbag waste handlers'' and can include 
automobile dealers, independent repair facilities, collision centers, 
and salvage and scrap yards.
    The vast majority of items affected by the conditional exemption 
will be Takata airbag waste. As of August 2018, an estimated 50 million 
defective airbag inflators were under recall in approximately 37 
million U.S. vehicles, with the potential for more recalls to be issued 
in the future.
    However, EPA has determined that the conditional exemption should 
also apply to the collection of non-Takata airbag waste for the purpose 
of disposal, provided that the conditions of the exemption are met. 
Managing all airbag waste under the same protective requirements will 
avoid confusion, increase efficiency and will help prevent non-Takata 
airbag waste from being diverted into the municipal waste stream. 
Because non-Takata airbag waste is expected to be a much smaller volume 
waste than the recalled Takata airbag waste, in many cases automobile 
dealers that generate hazardous waste would be below the Very Small 
Quantity Generator threshold of 100 kilograms/month, which under the 
federal RCRA requirements in 40 CFR 262.14 would allow the non-Takata 
airbag waste to be disposed of in the municipal wastestream. Including 
these materials under the airbag waste conditional exemption is more 
protective of human health and the environment because it would 
encourage their disposal at hazardous waste management facilities. To 
make it clear that VSQGs have the option of managing their airbag waste 
under the airbag waste conditional exemption and sending their airbag 
waste to an airbag waste collection facility or a designated facility 
subject to the requirements of 40 CFR part 261.4(j), EPA is including a 
conforming change to the VSQG regulations at 40 CFR 262.14(a)(xi). 
(Note that the airbag waste conditional exemption does not prevent the 
airbag modules or airbag inflators from being managed under other 
applicable exemptions as explained in the July 2018 memo referenced in 
section IV.A. in this preamble) In addition, EPA also requests comment 
on expanding the applicability of the airbag waste exemption to include 
other similar propellent-actuated devices and their components. It 
would be helpful if commenters include detailed information on these 
additional wastestreams, including descriptions of the wastestreams, 
volumes generated, risks posed and current management practices.

B. Limits on Accumulation Times and Quantities at Airbag Waste Handlers

    Based on information provided by automobile manufacturers, 
automobile dealers limit the quantity of recalled airbag modules and 
inflators stored onsite. According to one automobile manufacturer, 
guidance provided by Takata requires that dealers ship out the recalled 
airbag inflators that have been removed from vehicles every two weeks, 
or when the quantity reaches 200 inflators (i.e., a small 
truckload).\31\
---------------------------------------------------------------------------

    \31\ EPA 2018. Compilation of Stakeholder Meeting Summaries 
Regarding RCRA Regulation of Airbag Waste, Appendix 1.
---------------------------------------------------------------------------

    Limiting the quantity and accumulation times at airbag waste 
handlers for airbag waste prevents over-accumulation and limits the 
potential hazards posed by the inflators in case of a fire. Under the 
airbag waste exemption finalized in this action, airbag waste handlers 
are allowed to accumulate up to 250 airbag modules or airbag inflators 
for up to 180 days, whichever comes first. Limiting the quantity of 
airbag modules and airbag inflators accumulated onsite to 250 (i.e., a 
little over one small truckload) allows the dealer and other airbag 
waste handlers to prepare one truckload for shipping while continuing 
to accumulate airbag waste for future shipments. The 180-day timeframe 
is based on the small quantity generator limits in 40 CFR 262.16, and 
addresses the future situation when the Takata recalls near completion, 
resulting in a slower turn-around in recalled inflators accumulated at 
the dealer. At that point it may take much longer to reach the 250-item 
limit, and the 180-day time limit ensures storage does not extend 
indefinitely, and that the airbag waste is safely disposed and not 
abandoned.

C. Packaging, Labeling and Transportation Requirements for Airbag Waste 
Handlers

    During accumulation under the airbag waste exemption, airbag waste 
must be packaged in a container designed to address the risk posed by 
the airbag waste. Such a container would help reduce the potential for 
the airbag waste to react in case of a fire, and also reduce the 
projectile hazard if the defective Takata airbag inflators were to 
deploy. In most cases, this container would be the same container that 
the replacement airbag part was shipped in to the airbag handler, or, 
in the case of salvage yards, the container provided by the salvage 
recovery vendor. However, any container that meets DOT requirements for 
transporting the airbag items would meet the terms of the conditional 
exemption. Each container must be labeled ``Airbag Waste--Do Not 
Reuse.''
    Airbag waste must be shipped directly to either (1) a designated 
facility as defined in 40 CFR 260.10, or (2) an airbag waste collection 
facility in the United States under the control of a vehicle 
manufacturer or their authorized representative, or under the control 
of an authorized party administering a remedy program in response to a 
recall under the National Highway Traffic Safety Administration. Airbag 
waste collection facilities may include part supply centers/parts 
distribution centers or any other facility authorized by vehicle 
manufacturers to collect their airbag waste and hold it for more than 
10 days. (Airbag waste held at a transfer facility for less than 10 
days is considered to be in transport and only subject to the DOT 
transportation regulations). Because the airbag waste is not subject to 
hazardous waste generator requirements under 40 CFR part 262 while at 
the airbag waste handler, the designated facility or the airbag waste 
collection facility that accepts the airbag waste from the airbag waste 
handler is considered the hazardous waste generator for the purposes of 
40 CFR part 262 as the person whose act first causes a hazardous waste 
to become subject to the generator regulations.

D. Tracking and Recordkeeping Requirements for Airbag Waste Handlers

    As a condition for exemption from RCRA hazardous waste 
requirements, airbag waste handlers must maintain at the facility and 
make available upon inspection certain records that document off-site 
shipments of airbag waste for a period of three years to help verify 
the airbag waste went to an appropriate destination. Specifically, for 
each shipment of airbag waste, the handler must maintain documentation 
of the date of each shipment, the name of each transporter, the type 
and quantity of airbag waste (i.e., airbag modules or airbag inflators) 
shipped, and the name and address of the destination facility or airbag 
waste collection facility. This recordkeeping requirement may be 
fulfilled by ordinary business records, such as bills of lading, 
including electronic records. In addition, airbag waste handlers are 
required to maintain confirmations of receipt from the designated 
facility or airbag waste collection facility in order to verify that 
the airbag waste reached its intended destination and was not diverted. 
These receipts must be

[[Page 61560]]

maintained at the airbag waste handler for a period of three years. 
Specifically, the airbag waste handlers must maintain documentation of 
receipt that includes the name and address of the designated facility 
or airbag waste collection facility, the type and quantity of airbag 
waste (i.e., airbag modules or airbag inflators) received, and the date 
which it was received. The Agency is not requiring a specific template 
or format for confirmations of receipt and anticipates that routine 
business records (e.g., financial records, bills of lading, copies of 
DOT shipping papers, electronic confirmations of receipt, etc.) could 
contain the appropriate information sufficient for meeting this 
requirement. Note that these recordkeeping requirements will be 
implemented under an emergency Information Collection Request (ICR). 
Based on the public comments received on this rule, EPA will publish a 
separate revised ICR. See Section VIII.C in this preamble.

E. Prohibition on Reuse of Defective Airbag Modules and Airbag 
Inflators

    While used airbag modules and used airbag inflators are not solid 
waste when reused for their intended purpose, in the case of airbag 
modules and airbag inflators that are subject to a recall under the 
National Highway Traffic Safety Administration, such reuse is not 
allowed under RCRA. Reuse of recalled Takata inflators is particularly 
dangerous due to the shrapnel producing defect that can cause death or 
serious injury when the airbag is deployed, even when the vehicle 
accident would otherwise be considered minor. As noted in a report by 
the Takata Independent Monitor, salvaged Takata inflators may pose an 
even greater risk than other defective Takata inflators due to possible 
exposure to high heat and humidity for an extended time in the scrap 
vehicles. In one case, a vehicle that was repaired with a salvaged 
Takata airbag inflator was involved in a minor accident. The resulting 
shrapnel from deployment of the defective resulted in serious injury to 
the driver. The family owning the car had no reasonable way of knowing 
that it contained a defective inflator.\32\ Any person who reuses a 
defective inflator or causes it to be reused may therefore be placing 
another person in imminent danger of death or serious injury. Such a 
reuse would not meet the definition of legitimate recycling in 40 CFR 
260.43 and would be considered sham recycling under 40 CFR 261.2(g). 
Specifically, because the defective airbag modules and airbag inflators 
cannot serve as an effective substitute for a commercial product, and 
do not otherwise provide a useful contribution per 40 CFR 260.43(a)(1), 
their reuse is considered to be sham recycling and prohibited under the 
hazardous waste regulations.
---------------------------------------------------------------------------

    \32\ National Highway Traffic Safety Administration (NHTSA), The 
State of Takata Airbag Recalls--Report of the Independent Monitor, 
November 15, 2017. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/the_state_of_the_takata_airbag_recalls-report_of_the_independent_monitor_112217_v3_tag.pdf.
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VII. State Authorization

A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize a qualified state to 
administer and enforce a hazardous waste program within the state in 
lieu of the federal program, and to issue and enforce permits in the 
state. A state may receive authorization by following the approval 
process described in 40 CFR 271.21 (see 40 CFR part 271 for the overall 
standards and requirements for authorization). EPA continues to have 
independent authority to bring enforcement actions under RCRA sections 
3007, 3008, 3013, and 7003. An authorized state also continues to have 
independent authority to bring enforcement actions under state law.
    After a state receives initial authorization, new federal 
requirements and prohibitions promulgated under RCRA authority existing 
prior to the 1984 Hazardous and Solid Waste Amendments (HSWA) do not 
apply in that state until the state adopts and receives authorization 
for equivalent state requirements. In contrast, under RCRA section 
3006(g) (42 U.S.C. 6926(g)), new federal requirements and prohibitions 
promulgated under HSWA provisions take effect in authorized states at 
the same time that they take effect in unauthorized states. As such, 
EPA carries out the HSWA requirements and prohibitions in authorized 
states, including the issuance of new permits implementing those 
requirements, until EPA authorizes the state to 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. Under RCRA section 3009, 
states may impose standards that are more stringent or broader in scope 
than those in the federal program (see also 40 CFR 271.1(i)). 
Therefore, authorized states are not required to adopt new federal 
regulations that are considered less stringent than previous federal 
regulations or that narrow the scope of the RCRA program. Previously 
authorized hazardous waste regulations would continue to apply in those 
states that do not adopt ``deregulatory'' rules.

B. Effect on State Authorization of Interim Final Rule

    The regulations finalized in this interim final rule are not 
promulgated under the authority of HSWA. Thus, the standards will be 
applicable on the effective date only in those states that do not have 
final authorization of their base RCRA programs. Moreover, authorized 
states are required to modify their programs only when EPA promulgates 
federal regulations that are more stringent or broader in scope than 
the authorized state regulations. For those changes that are less 
stringent, states are not required to modify their program. Pursuant to 
section 3009 of RCRA, states may impose more stringent regulations than 
the federal program. This rule eliminates specific hazardous waste 
requirements that would otherwise apply to airbag waste (airbag modules 
and airbag inflators) managed under the conditional exemption, and 
therefore, these changes are less stringent than the federal program 
and authorized states are not required to adopt them. However, if a 
state were, through implementation of state waiver authorities or other 
state laws, to allow compliance with the provisions of the conditional 
exemption in advance of adoption or authorization, EPA would not 
generally consider such implementation a concern for purposes of 
enforcement or state authorization. Of course, the state could not 
implement the requirements in a way that was less stringent than the 
federal requirements in this rule.

VIII. Statutory and Executive Order (E.O.) Reviews

A. Executive Order 12866: Regulatory Planning and Review & Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. This rule has 
been determined significant because it raises novel legal or policy 
issues arising out of a legal mandate, the President's priorities or 
the principles set forth in the Executive Order. Any changes made in 
response to OMB recommendations have been documented in the docket. The 
EPA prepared an economic analysis of the potential costs and benefits 
associated with this action. This analysis, ``Economic Assessment of 
the Safe Management of Recalled Airbags Rule'',

[[Page 61561]]

is available in the docket. This analysis estimates the impacts of the 
rule relative to two separate baseline scenarios. The first baseline 
scenario assumes that all aspects of the Preservation Order established 
between Takata and the Department of Transportation in February 2015 
and amended in April 2018 will remain in effect until the completion of 
the recall process. The alternative baseline scenario assumes the 
removal of the Preservation Order provisions that allow dealerships to 
disregard the volume of recalled airbag inflators when determining 
their hazardous waste generator status (e.g., LQG) under RCRA. For each 
baseline and for the rule, EPA created a monthly schedule in order to 
estimate the number of airbag inflators shipped, accumulated, and 
disposed of by affected entities. EPA then assigned unit costs for 
storage, transport, management, and disposal of airbag inflators for 
each scenario to estimate the cost savings associated with this 
regulation. The cost impacts of the rule were then calculated as the 
difference between post-rule costs and costs under each baseline 
scenario. In summary, this regulatory action is expected to result in a 
total cost savings between $7.6 million and $56.9. million for the 
duration of the Takata recalls, resulting in an estimated annual cost 
savings of $1.7 million to $13.0 million per year (discounted at 7%).

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is considered an Executive Order 13771 deregulatory 
action. Details on the estimated cost savings of this final rule can be 
found in EPA's analysis of the potential costs and benefits associated 
with this action.

C. Paperwork Reduction Act (PRA)

    The information collection activities in this rule have been 
granted emergency approval by the Office of Management and Budget (OMB) 
under the PRA. The Information Collection Request (ICR) that has been 
approved by OMB was assigned EPA ICR number 2589.02 and OMB Control 
Number 2050-0221. You can find a copy of the ICR in the docket for this 
rule, and it is briefly summarized here.
    The collection of information is necessary in order to ensure that 
the hazardous waste airbag modules and airbag inflators exempted under 
this rule are safely disposed of and that defective airbag modules and 
airbag inflators are not reinserted into vehicles where they would pose 
an unreasonable risk of death or serious injury. Information collection 
activities include requiring affected entities maintain copies of 
shipping records and confirmations of receipt for three years.
    In addition to the emergency ICR which will implement the 
requirements for up to six months, EPA is also developing an ICR based 
on comments received on this rulemaking. Towards this goal, pursuant to 
section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and 
information to enable it to: (i) Evaluate whether the collection of 
information is necessary for the proper performance of the functions of 
the Agency, including whether the information will have practical 
utility; (ii) evaluate the accuracy of the Agency's estimate of the 
burden of the collection of information, including the validity of the 
methodology and assumptions used; (iii) enhance the quality, utility, 
and clarity of the information to be collected; and (iv) minimize the 
burden of the collection of information on those who are to respond, 
including through the use of appropriate automated electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology, e.g., permitting electronic submission of 
responses. EPA will consider the comments received and amend the ICR as 
appropriate.
    Respondents/affected entities: The respondents will primarily be 
composed of automobile dealerships. These dealerships fall under NAICS 
code 441: Motor Vehicle and Parts Dealers.
    Respondent's obligation to respond: The recordkeeping requirements 
for the interim final rule consist of maintaining at the airbag handler 
for no less than three years records of (1) all off-site shipments and 
(2) confirmations of receipt of airbag waste. The recordkeeping 
requirements may be fulfilled by ordinary business records, such as 
bills of lading, and are intended to allow the Agency to verify that 
the airbag waste reaches its intended destination and is not diverted 
back into vehicles. The statutory authority to require the 
recordkeeping activities derives from sections 2002, 3001, 3002, 3003, 
3004, 3006, 3010, and 3017 of the Solid Waste Disposal Act of 1965, as 
amended by the Resource Conservation and Recovery Act of 1976 (RCRA), 
as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA).
    Estimated number of respondents: EPA estimates that there will be 
15,256 respondents per year.
    Frequency of response: EPA estimates that average facility will 
make 3 relevant shipments per year over a 5-year period. The facilities 
must retain documentation for each shipment.
    Total estimated burden: 4,200 hours (per year). Burden is defined 
at 5 CFR 1320.3(b).
    Total estimated cost: $130,791 (per year), includes $0 annualized 
capital or operation & maintenance costs.
    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 the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB 
approves this ICR, the Agency will announce that approval in the 
Federal Register and publish a technical amendment to 40 CFR part 9 to 
display the OMB control number for the approved information collection 
activities contained in this final rule.

D. Regulatory Flexibility Act

    This action is not subject to the RFA. The RFA applies only to 
rules subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. 
The APA exempts from notice and comment requirements rules for which an 
Agency finds ``for good cause'' that notice and an opportunity to 
comment are ``impracticable, unnecessary, or contrary to the public 
interest.'' The Agency is invoking this exemption to address exigent 
public health issues associated with the Takata airbag recalls.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The action imposes 
no enforceable duty on any state, local, or tribal governments or the 
private sector.

F. Executive Order 13132: Federalism

    This action 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.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action does not have substantial direct 
effects on one or more Indian tribes, on the relationship

[[Page 61562]]

between the Federal Government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian tribes.

H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Section 5-502 of Executive Order 13045 provides that in emergency 
situations, or where the Agency is required by law to act more quickly 
than normal review procedures allow, the Agency shall comply with the 
Executive Order to the extent practicable. This action is being issued 
under a good cause exemption of notice and comment rulemaking under the 
APA to address an emergency situation associated with defective airbag 
inflators and risks to public health. The rule will remove potential 
regulatory impediments associated with the Takata airbag recalls. The 
recalls address explosion risks associated with faulty airbag 
deployment which could cause (and have caused) serious harm to 
passengers in vehicles, including children.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This rulemaking simply removes 
potential regulatory impediments associated with the Takata airbag 
recalls; therefore, by itself, this rulemaking will not have any effect 
on the supply, distribution or use of energy.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action is not subject to Executive Order 
12898 (59 FR 7629, February 16, 1994) because the rule increases 
protection of human health and the environment by removing potential 
regulatory impediments associated with the Takata airbag recalls while 
ensuring safe management and disposal of airbag waste. The recalls 
address explosion risks associated with faulty airbag deployment which 
could cause (and have caused) serious harm to passengers, including 
passengers from minority and low-income communities.

M. Congressional Review Act

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. The CRA allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and comment rulemaking procedures are 
impracticable, unnecessary or contrary to the public interest (5 U.S.C. 
808(2)). The EPA has made a good cause finding for this rule as 
discussed in Section I.B. of this preamble, including the basis for 
that finding.

List of Subjects

40 CFR Part 260

    Environmental protection, Administrative practice and procedure, 
Definitions, Hazardous waste.

40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Solid waste.

40 CFR Part 262

    Environmental protection, Hazardous waste, Generator Standards.

    Dated: November 13, 2018.
Andrew Wheeler,
Acting Administrator.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is 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, 6935, 
6937, 6938, 6939 and 6974.

Subpart B--Definitions

0
2. Section 260.10 is amended by adding in alphabetical order 
definitions for ``Airbag waste'', ``Airbag waste collection facility'', 
and ``Airbag waste handler'' to read as follows:


Sec.  260.10  Definitions

* * * * *
    Airbag waste means any hazardous waste airbag modules or hazardous 
waste airbag inflators.
    Airbag waste collection facility means any facility that receives 
airbag waste from airbag handlers subject to regulation under Sec.  
261.4(j) of this chapter, and accumulates the waste for more than ten 
days.
    Airbag waste handler means any person, by site, who generates 
airbag waste that is subject to regulation under this chapter.
* * * * *

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 261.4 is amended by adding reserved paragraph (i) and adding 
paragraph (j) to read as follows:


Sec.  261.4  Exclusions.

* * * * *
    (j) Airbag waste. (1) Airbag waste at the airbag waste handler or 
during transport to an airbag waste collection facility or designated 
facility is not subject to regulation under parts 262 through 268, part 
270, or part 124 of this chapter, and is not subject to the 
notification requirements of section 3010 of RCRA provided that:
    (i) The airbag waste is accumulated in a quantity of no more than 
250 airbag modules or airbag inflators, for no longer than 180 days;
    (ii) The airbag waste is packaged in a container designed to 
address the risk posed by the airbag waste and labeled ``Airbag Waste-
Do Not Reuse'';
    (iii) The airbag waste is sent directly to either:
    (A) An airbag waste collection facility in the United States under 
the control of a vehicle manufacturer or their authorized 
representative, or under the control of an authorized party 
administering a remedy program in response to a recall under the 
National Highway Traffic Safety Administration, or
    (B) A designated facility as defined in 40 CFR 260.10;
    (iv) The transport of the airbag waste complies with all applicable 
U.S. Department of Transportation regulations in 49 CFR part 171 
through 180 during transit;
    (v) The airbag waste handler maintains at the handler facility for 
no less than three (3) years records of all off-site shipments of 
airbag waste and all confirmations of receipt from the receiving 
facility. For each shipment, these records must, at a minimum, contain 
the name of the transporter and date of the shipment; name and address 
of receiving facility; and the type and quantity of airbag waste (i.e., 
airbag modules or airbag inflators) in the shipment. Confirmations of 
receipt must include the name and address of the

[[Page 61563]]

receiving facility; the type and quantity of the airbag waste (i.e., 
airbag modules and airbag inflators) received; and the date which it 
was received. Shipping records and confirmations of receipt must be 
made available for inspection and may be satisfied by routine business 
records (e.g., electronic or paper financial records, bills of lading, 
copies of DOT shipping papers, or electronic confirmations of receipt).
    (2) Once the airbag waste arrives at an airbag waste collection 
facility or designated facility, it becomes subject to all applicable 
hazardous waste regulations, and the facility receiving airbag waste is 
considered the hazardous waste generator for the purposes of the 
hazardous waste regulations and must comply with the requirements of 40 
CFR part 262.
    (3) Reuse in vehicles of defective airbag modules or defective 
airbag inflators subject to a recall under the National Highway Traffic 
Safety Administration is considered sham recycling and prohibited under 
40 CFR 261.2(g).

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

0
5. The authority citation for part 262 continues to read as follows:

    Authority:  42 U.S.C. 6906, 6912, 6922-6925, 6937, 6938 and 
6939g.

Subpart A--General

0
6. Section 262.14 is amended by revising paragraphs (a) introductory 
text and (a)(5) to read as follows:


Sec.  262.14  Conditions for exemption for a very small quantity 
generator.

    (a) Provided that the very small quantity generator meets all the 
conditions for exemption listed in this section, hazardous waste 
generated by the very small quantity generator is not subject to the 
requirements of parts 124, 262 (except Sec. Sec.  262.10 through 
262.14) through 268, and 270 of this chapter, and the notification 
requirements of section 3010 of RCRA and the very small quantity 
generator may accumulate hazardous waste on site without complying with 
such requirements. The conditions for exemption are as follows:
* * * * *
    (5) A very small quantity generator that accumulates hazardous 
waste in amounts less than or equal to the limits in paragraphs (a)(3) 
and (4) of this section must either treat or dispose of its hazardous 
waste in an on-site facility or ensure delivery to an off-site 
treatment, storage, or disposal facility, either of which, if located 
in the U.S., is:
    (i) Permitted under part 270 of this chapter;
    (ii) In interim status under parts 265 and 270 of this chapter;
    (iii) Authorized to manage hazardous waste by a state with a 
hazardous waste management program approved under part 271 of this 
chapter;
    (iv) Permitted, licensed, or registered by a state to manage 
municipal solid waste and, if managed in a municipal solid waste 
landfill is subject to part 258 of this chapter;
    (v) Permitted, licensed, or registered by a state to manage non-
municipal non-hazardous waste and, if managed in a non-municipal non-
hazardous waste disposal unit, is subject to the requirements in 
Sec. Sec.  257.5 through 257.30 of this chapter;
    (vi) A facility which:
    (A) Beneficially uses or reuses, or legitimately recycles or 
reclaims its waste; or
    (B) Treats its waste prior to beneficial use or reuse, or 
legitimate recycling or reclamation;
    (vii) For universal waste managed under part 273 of this chapter, a 
universal waste handler or destination facility subject to the 
requirements of part 273 of this chapter;
    (viii) A large quantity generator under the control of the same 
person as the very small quantity generator, provided the following 
conditions are met:
    (A) The very small quantity generator and the large quantity 
generator are under the control of the same person as defined in Sec.  
260.10 of this chapter. ``Control,'' for the purposes of this section, 
means the power to direct the policies of the generator, whether by the 
ownership of stock, voting rights, or otherwise, except that 
contractors who operate generator facilities on behalf of a different 
person as defined in Sec.  260.10 of this chapter shall not be deemed 
to ``control'' such generators.
    (B) The very small quantity generator marks its container(s) of 
hazardous waste with:
    (1) The words ``Hazardous Waste''; and
    (2) An indication of the hazards of the contents (examples include, 
but are not limited to, the applicable hazardous waste 
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard 
communication consistent with the Department of Transportation 
requirements at 49 CFR part 172 subpart E (labeling) or subpart F 
(placarding); a hazard statement or pictogram consistent with the 
Occupational Safety and Health Administration Hazard Communication 
Standard at 29 CFR 1910.1200; or a chemical hazard label consistent 
with the National Fire Protection Association code 704);
    (ix)-(x) [Reserved]
    (xi) For airbag waste, an airbag waste collection facility or a 
designated facility subject to the requirements of Sec.  261.4(j) of 
this chapter.
* * * * *
[FR Doc. 2018-25892 Filed 11-29-18; 8:45 am]
 BILLING CODE 6560-50-P


