1
Modification
of
Hazardous
Waste
Program
Adding
Mercury­
Containing
Equipment
to
the
Universal
Waste
Rule
RCRA­
2004­
0012
I.
In
Support
of
the
Rulemaking
Thirty­
six
commenters
on
the
proposal
expressed
their
general
support
for
this
rulemaking
to
add
mercury­
containing
equipment
to
the
federal
universal
waste
program.
Some
of
those
commenters
included
suggestions
in
their
comments
to
improve
the
proposal;
those
suggestions
will
be
addressed
in
the
remainder
of
this
document.

II.
Comments
on
the
Definition
of
Mercury­
Containing
Equipment
Many
of
the
public
comments
received
were,
one
way
or
another,
focused
on
how
mercury­
containing
equipment
was
defined
in
the
proposal.
Those
comments
and
EPA's
responses
to
them
are
laid
out
in
this
section.

(
1)
Comment:
Six
commenters
suggested
that
EPA
should
put
mercury­
containing
equipment
and
mercury
thermostats
in
the
same
category
of
universal
waste
to
avoid
confusion
and
duplicative
labeling
and
reporting
by
generators
of
both
materials
(
3.1.6
&
3.2.4).

Response:
EPA
agrees
with
the
commenters
and
is
finalizing
one
set
of
universal
waste
management
requirements
that
applies
to
both
MCE
and
thermostats.
Because
the
new
MCE
regulations
apply
to
a
broad
category
of
waste
mercury­
containing
materials,
including
mercury
thermostats,
the
existing
requirements
for
mercury
thermostats
have
been
incorporated
into
the
final
MCE
sections
so
that
no
substantive
changes
have
been
made
to
the
existing
waste
mercury
thermostat
requirements.

Specifically,
in
section
273.9,
EPA
is
defining
MCE
to
specifically
include
mercury
thermostats,
and
in
sections
273.13
and
273.33,
EPA
is
replacing
the
requirements
for
mercury
thermostats
with
requirements
for
mercury­
containing
equipment.
However,
EPA
is
providing
alternative
labeling
requirements
for
MCE
that
consist
only
of
thermostats.
In
sections
273.14(
d)
and
27334.(
d),
large
and
small
quantity
handlers
will
be
permitted
to
continue
to
label
shipments
containing
only
UW
mercury
2
thermostats
as,
for
example,
"
Universal
Waste
 
Mercury
Thermostats"
rather
than
as
MCE
to
avoid
unnecessary
burden
on
generators
due
to
labeling
requirements.

(
2)
Comment:
One
commenter
noted
that
the
proposed
rule
did
not
include
a
definition
of
ampule
and
suggested
that
it
should
(
3.2.10a).

Response:
EPA
agrees
with
the
comment
and
has
defined
"
ampule"
in
section
273.9
as
"
an
airtight
vial
made
of
glass,
plastic,
metal,
or
any
combination
of
these
materials."

(
3)
Comment:
One
commenter
pointed
out
that
some
of
the
mercury­
containing
equipment
mentioned
in
the
examples
and
used
commonly
in
the
marketplace
does
not
have
mercury
in
ampules,

but
in
open­
ended
tubes.
Another
suggested
that
EPA
amend
the
rule
to
allow
a
handler
to
remove
mercury
from
equipment
when
it
is
not
in
an
ampule,
provided
the
handler
follows
appropriate
management
standards
(
3.2.2
&
3.1.13).

Response:
EPA
agrees
that
the
mercury
in
some
of
the
examples
of
MCE
discussed
in
the
preamble,
such
as
manometers
and
barometers,
is
not
enclosed
in
ampules.
Although
these
items
were
presented
as
examples,
there
is
no
specific
discussion
of
the
difference
between
handling
devices
with
ampules
and
those
without
ampules.
In
the
final
rule,
EPA
has
clarified
that
items
without
ampules
are
included
in
its
definition
of
MCE.
To
assure
the
safety
of
the
handlers
and
of
the
public,
EPA
has
included
specific
management
standards
for
MCE
without
ampules.
Thus,
the
handler
may
remove
the
open
housing
from
the
MCE,
but
must
immediately
seal
the
open
housing
containing
the
mercury
when
it
is
removed
from
the
device.
Unsealed
housings
of
mercury
are
not
allowed
to
be
managed
as
universal
waste,
as
they
might
easily
spill
and
contaminate
an
area.
If
the
entire
device
is
managed
as
MCE
(
i.
e.,

the
housing
is
not
removed),
it
must
be
managed
in
a
container
that
is
closed,
structurally
sound,

compatible
with
the
contents
of
the
device,
and
reasonably
designed
to
prevent
the
escape
of
mercury
into
the
environment
by
volatilization
or
any
other
means.

(
4)
Comment:
One
commenter
suggested
that
the
definition
of
mercury­
containing
equipment
should
be
kept
broad
to
promote
recycling
and
decrease
disposal
(
3.2.1).

Response:
EPA
believes
that
the
definition
of
MCE
in
the
final
rule,
which
includes
MCE
with
ampules
as
well
as
MCE
without
ampules,
when
certain
further
management
standards
are
3
followed,
will
allow
much
MCE
to
be
managed
under
the
universal
waste
program,
which
will
increase
collection
and
proper
disposal,
while
being
protective
of
human
health
and
the
environment.

(
5)
Comment:
One
commenter
stated
that
EPA
should
not
allow
equipment
with
mercury
not
in
ampules
to
be
universal
waste
(
3.2.10b).

Response:
EPA
disagrees
with
this
comment
for
two
reasons:
(
1)
appropriate
limits
on
nonampule
MCE
and
appropriate
management
requirements
will
be
protective
of
human
health
and
the
environment,
and
(
2)
encouraging
proper
management
of
more
MCE
through
the
universal
waste
program
will
maximize
the
benefits
achieved
by
adding
MCE
to
universal
waste.
Therefore,
EPA
has
decided
to
allow
mercury
not
in
ampules
to
be
managed
as
universal
waste
when
the
handler
meets
certain
additional
management
requirements
designed
to
protect
human
health
and
the
environment.

Whole
waste
MCE,
ampules
of
mercury
removed
from
MCE,
and
mercury
in
its
original
housing
that
has
been
removed
from
the
bigger
piece
of
equipment
and
immediately
sealed
with
an
air­
tight
seal
are
all
allowed
to
be
managed
under
the
final
universal
waste
rule.
To
protect
from
releases
of
mercury
to
the
environment,
the
management
standards
require
that
handlers
of
universal
waste
MCEs
must
contain
any
MCE
that
shows
evidence
of
leakage,
spillage,
or
damage
that
could
cause
leakage
under
reasonably
foreseeable
circumstances.
In
addition,
standards
for
managing
ampules
and
sealed
original
housings
must
meet
the
requirements
in
273.13(
c)(
2)(
i)
through
(
viii)
or
273.33
(
c)(
2)(
i)
through
(
viii),
which
are
designed
to
prevent
leaking
of
mercury
and
to
clean
up
any
releases
in
the
event
that
MCE
does
leak.

(
6)
Comment:
One
commenter
suggested
that
there
be
unique
and
more
stringent
management
standards
for
unsealed
devices
because
harm
to
human
health
and
the
environment
is
more
likely
from
them
(
3.1.5).

Response:
As
stated
above,
EPA
agrees
with
this
position
and
has
designed
the
management
standards
in
this
rule
to
prevent
releases
to
the
environment
from
mercury
in
ampules
and
mercury
not
in
ampules.
For
an
open­
ended
tube
of
mercury
to
qualify
as
universal
waste
it
must
be
the
original
housing
for
the
mercury
in
the
mercury­
containing
device
and
it
must
be
sealed
immediately
upon
removal
with
an
air­
tight
seal
so
that,
like
an
ampule,
mercury
will
not
escape
from
it.

(
7)
Comment:
Two
commenters
objected
to
the
phrase
"
necessary
for
its
operation"
in
the
definition
of
mercury­
containing
equipment
(
3.2.3).
4
Response:
EPA
agrees
with
the
comment
and
has
changed
the
definition
of
MCE
in
the
final
rule
to
say
"
MCE
means
a
device
or
part
of
a
device
(
including
thermostats,
but
excluding
batteries
and
lamps)
that
contains
elemental
mercury
integral
to
its
function."
This
phrase
clarifies
that
the
mercury
must
be
part
of
the
function
of
the
device
for
it
to
be
included
in
the
universal
waste
rule;
that
is,
if
the
mercury
is
in
the
device
accidentally,
or
the
device
is
contaminated
with
mercury
from
another
source,

that
device
would
not
be
universal
waste
and
must
be
managed
under
full
subtitle
C
regulation.

(
8)
Comment:
Two
commenters
suggested
that
EPA
clarify
that
mercury­
containing
equipment
is
not
a
solid
waste
when
sent
to
a
reseller
for
further
evaluation
of
whether
it
is
usable
in
its
current
condition
(
3.2.6).

Response:
The
MCE
universal
waste
rule
does
not
change
the
waste
identification
requirements
under
RCRA.
Due
to
the
wide
variety
of
situations
that
the
commenter's
broad
scenario
covers,
EPA
cannot
make
a
determination
about
whether
MCE
would
or
would
not
be
waste
in
any
given
situation.

(
9)
Comment:
One
commenter
suggested
that
to
preclude
regulating
large
devices
and
to
reduce
the
costs
of
the
rule,
the
wording
of
§
273.4(
b)(
2)
describing
devices
that
aren't
regulated
as
hazardous
waste
be
changed
from
"
Mercury­
containing
equipment
that
is
not
a
hazardous
waste"
to
"
Equipment
or
devices
from
which
the
mercury­
containing
equipment
and
components
have
been
removed"
(
3.1.4).

Response:
EPA
agrees
that
it
is
valuable
to
clarify
that
part
273
for
MCEs
does
not
apply
to
items
from
which
all
ampules
or
open
housings
of
mercury
have
been
removed.
However,
we
see
this
category
as
additional
to
and
independent
of
"
Mercury­
containing
equipment
that
is
not
a
hazardous
waste."
Therefore,
the
final
rule
includes
section
273.4(
b)(
3):
"
Equipment
or
devices
from
which
the
mercury­
containing
components
have
been
removed."

(
10)
Comment:
One
commenter
asked
how
the
universal
waste
regulations
would
apply
to
electronic
devices
with
mercury­
containing
lamps
providing
backlighting
for
crystal
displays.
The
commenter
suggested
that
if
EPA
proceeds
with
the
universal
waste
rule
for
mercury­
containing
devices,
handlers
should
have
the
option
of
managing
these
displays
as
universal
waste
lamps
or
as
universal
waste
mercury­
containing
equipment
(
3.1.10).
5
Response:
It
is
the
generator's
responsibility
to
determine
if
waste
meets
the
definition
of
MCE
 
a
device
that
contains
elemental
mercury
integral
to
its
function.
The
definition
of
MCE
expressly
excludes
mercury­
containing
lamps.
Based
on
the
commenter's
description
of
electronic
devices
with
mercury­
containing
lamps,
it
is
not
likely
that
it
would
meet
the
definition
of
MCE.
EPA
also
suggests
that
the
generator
look
for
collection
programs
for
electronics
waste.

(
11)
Comment:
One
commenter
stated
that
switches
used
in
electronic
products
should
be
universal
waste
to
the
extent
that
they
are
solid
or
hazardous
waste
(
3.1.11).

Response:
The
Agency
believes
the
final
definition
of
MCE
adequately
addresses
this
type
of
equipment.
Thus,
switches
would
be
universal
waste
MCEs
if
they
meet
the
definition:
a
device
or
part
of
a
device
that
contains
elemental
mercury
integral
to
its
function.
Any
other
type
of
switch
would
be
out
of
the
scope
of
this
rulemaking.

(
12)
Comment:
One
commenter
asked
that
EPA
provide
more
specific
guidance
regarding
which
mercury­
containing
equipment
wastes
fail
the
toxicity
test
(
3.1.14).

Response:
It
is
the
generator's
responsibility,
under
40
CFR
262.11,
to
determine
if
the
material
they
are
generating
is
a
hazardous
waste.
This
rule
does
not
change
that
existing
requirementnt
in
any
way.
Because
of
the
differing
natures
of
the
materials
that
may
fall
into
the
category
of
universal
waste
mercury­
containing
equipment,
the
generator
is
in
the
best
position
to
judge
if
their
waste
is
universal
waste.

(
13)
Comment:
Two
commenters
stated
that
it
is
not
clear
if
the
relief
valve
and
pipe
attached
to
a
mercury­
containing
gas
regulator
would
be
universal
waste
and
suggested
that
they
should
be
considered
as
universal
waste
(
3.2.5).

Response:
The
Agency
believes
the
final
definition
of
MCE
adequately
addresses
this
type
of
equipment.
Thus,
if
these
parts
of
the
MCE
are
ancillary
parts
of
spent
MCE
that
contain
mercury
not
contained
in
an
ampule,
such
as
the
valve
at
the
end
of
a
tube
in
a
pressure
device,
they
can
be
managed
as
universal
waste
if
they
are
managed
in
a
container,
as
specified
in
the
final
rule
under
40
CFR
273.13(
c)(
1)
or
40
CFR
273.33(
c)(
1),
to
minimize
the
chance
of
any
escape
of
mercury
into
the
environment.
6
(
14)
Comment:
One
commenter
stated
that
anti­
tamper
devices
attached
to
meters
and
pressure
and
temperature
correcting
devices
should
also
be
universal
waste
(
3.2.8).

Response:
The
Agency
believes
the
final
definition
of
MCE
adequately
addresses
this
type
of
equipment.
Thus,
if
these
devices
are
ancillary
parts
of
spent
MCE
that
contain
mercury
not
contained
in
an
ampule,
they
can
be
managed
under
universal
waste
if
they
are
managed
in
a
container,
as
specified
in
the
final
rule
under
273.13(
c)(
1)
or
273.33(
c)(
1),
to
minimize
the
chance
of
any
escape
of
mercury
into
the
environment
due
to
their
management.

(
15)
Comment:
One
commenter
requested
that
EPA
clarify
in
the
preamble
the
general
application
of
the
regulations
to
automobile­
related
devices,
for
example,
convenience
light
switches
(
3.2.12).

Response:
EPA
has
included
an
automobile
switch
example
in
the
final
rule;
the
rule
is
applicable
to
auto
switches
that
meet
the
definition
of
an
MCE.

(
16)
Comment:
One
commenter
stated
that
EPA
should
identify
a
class
of
equipment
that
qualifies
as
universal
waste
under
this
rule
instead
of
just
giving
examples
(
3.2.7).

Response:
EPA
believes
that
by
defining
MCE
as
"
a
device
or
part
of
a
device
(
including
thermostats,
but
excluding
batteries
and
lamps)
that
contains
elemental
mercury
integral
to
its
function,"

it
has
identified
a
class
of
equipment
that
qualifies
as
universal
waste.
Examples
are
included
in
the
preamble
language
to
assist
the
regulated
community
in
determining
if
their
waste
is
eligible
to
be
managed
under
the
universal
waste
rule.

(
17)
Comment:
One
commenter
suggested
that
the
list
of
MCE
in
the
preamble
should
clearly
be
examples,
and
not
an
all­
inclusive
list
(
3.2.9).

Response:
EPA
believes
that
by
defining
MCE
as
"
a
device
or
part
of
a
device
(
including
thermostats,
but
excluding
batteries
and
lamps)
that
contains
elemental
mercury
integral
to
its
function,"

it
has
identified
a
class
of
equipment
that
qualifies
as
universal
waste.
Examples
are
included
in
the
preamble
language
to
assist
the
regulated
community
in
determining
if
their
waste
is
eligible
to
be
managed
under
the
universal
waste
rule
but
are
not
the
only
types
of
MCE
that
qualify
as
universal
waste.
7
(
18)
Comment:
One
commenter
wrote
that
EPA
should
add
a
de
minimis
cutoff
for
equipment
with
to
provide
guidance
on
what
equipment
might
fail
the
Toxicity
Characteristic
Leaching
Procedure
(
TCLP)
(
for
example,
less
than
1%
mercury
by
weight)
(
3.2.11).

Response:
It
is
the
generator's
responsibility,
under
40
CFR
262.11,
to
determine
if
the
waste
they
are
generating
is
a
hazardous
waste.
This
rule
does
not
change
that
requirement
in
any
way.

Because
of
the
differing
nature
of
materials
that
may
fall
into
the
category
of
universal
waste
mercurycontaining
equipment,
EPA
is
unable
to
tell
generators
whether
or
not
their
specific
waste
would
be
a
hazardous
waste.

III
Comments
on
the
Regulatory
Requirements
in
the
Proposed
Rule
(
19)
Comment:
One
commenter
wrote
that
EPA
should
require
that
processors
and
manufacturers
using
materials
from
electronic
devices
and
appliances
have
sufficient
training
to
identify
and
properly
manage
mercury­
containing
wastes
(
3.1.16).

Response:
Training
is
included
in
the
universal
waste
standards.
A
handler
of
universal
waste
must
ensure
that
"
employees
removing
ampules
of
mercury
are
thoroughly
familiar
with
proper
waste
mercury
handling
and
emergency
procedures,
including
transfer
of
mercury
from
containment
devices
to
appropriate
containers"
(
273.13(
c)(
2)(
vi)
&
273.33(
c)(
2)(
vi)).
The
Agency
believes
this
requirement
addresses
the
commenter's
concerns.

(
20)
Comment:
Two
commenters
wrote
that
when
ampules
of
mercury
are
removed
from
a
larger
piece
of
equipment
to
be
managed
as
universal
waste,
only
the
weight
of
the
ampules
removed
for
universal
waste
management
should
be
counted
towards
the
5,000
kilogram
threshold
for
a
large
quantity
handler
of
universal
waste,
not
the
weight
of
the
larger
piece
of
equipment.
Section
VI
(
a)
of
the
preamble
to
the
final
rule
clarifies
this
point.
(
3.1.3).

Response:
EPA
agrees
that
if
an
ampule
or
other
housing
has
been
removed
from
mercurycontaining
equipment
for
management
as
universal
waste,
the
entire
weight
of
that
equipment
does
not
have
to
be
counted
toward
the
5,000
kg
limit.

(
21)
Comment:
Two
commenters
stated
that
because
different
universal
wastes
are
typically
managed,
handled,
stored
and
transported
separately,
EPA
should
modify
the
definition
of
small
8
quantity
handler
of
universal
waste
to
allow
accumulation
of
5,000
kg
of
each
universal
waste,
not
total
universal
waste
(
3.1.2).

Response:
This
comment
is
beyond
the
scope
of
this
rulemaking.
EPA
did
not
propose
any
amendment
to
the
definition
of
"
small
quantity
handler."
The
only
purpose
of
the
proposal
was
to
add
MCE
to
the
federal
list
of
universal
wastes.

(
22)
Comment:
One
commenter
requested
that
EPA
further
discuss
the
nature
of
mercury
destination
facilities
and
the
requirements
designed
to
ensure
proper
management
by
such
facilities
(
3.1.15).

Response:
The
universal
waste
rule
requires
that
mercury­
containing
devices
be
sent
to
the
same
destination
facilities
they
would
be
sent
to
under
full
subtitle
C
regulation.
The
land
disposal
restriction
(
LDR)
standard
for
treatment
of
nonwastewaters
expected
to
exhibit
the
toxicity
characteristic
for
mercury
and
containing
260
mg/
kg
or
more
of
total
inorganic
mercury,
as
mercury­
containing
equipment
is
expected
to
contain,
is
RMERC,
retorting
mercury
for
recovery.
Other
LDR
standards
can
be
found
at
40
CFR
268.40.

IV.
Comments
on
Creating
a
Conditional
Exclusion
for
MCE
Instead
[
3.3]

(
23)
Comment:
EPA
received
several
comments
that
it
should
develop
a
conditional
exclusion
from
the
definition
of
solid
waste
for
mercury­
containing
equipment
rather
than
add
it
to
the
universal
waste
program
with
the
goal
in
mind
to
encourage
recycling
of
these
items.(
3.3.1
&
3.3.2)

Response:
EPA
did
not
propose
a
conditional
exclusion
from
the
definition
of
solid
waste
for
mercury­
containing
equipment.
Thus,
these
comments
are
beyond
the
scope
of
this
final
rulemaking.

V.
Comments
on
Duplicative
Notification
[
3.4]

EPA's
proposed
rule
solicited
comment
on
a
change
to
the
universal
waste
notification
requirements.

Section
273.32(
b)(
5)
required
large
quantity
handlers
of
universal
waste
to
include
a
statement
indicating
that
the
handler
is
accumulating
more
than
5,000
kg
of
universal
waste
at
one
time
and
a
list
of
the
types
of
universal
waste
accumulated
above
this
quantity
when
they
sent
notification
to
the
Regional
Administrator.
EPA
proposed
to
eliminate
the
requirement
to
send
a
list
of
types
of
waste
9
because
it
seemed
redundant
with
another
required
list
of
types
of
universal
wastes
managed
by
the
handler
in
section
273.32(
b)(
4)).
The
requirement
in
'
273.32(
b)(
5)
did
not
identify
the
amounts
of
each
waste
being
generated
because
the
5,000
kg
limit
for
being
a
large
quantity
handler
takes
into
account
all
universal
wastes
accumulated
by
a
handler,
not
a
particular
type.
.

(
24)
Comment:
Sixteen
commenters
agreed
that
the
existing
provision
is
duplicative
and
not
useful
(
3.4.2).

Response:
EPA
agrees
and
is
eliminating
the
duplicative
notification
requirements,
as
proposed.

(
25)
Comment:
Two
commenters
noted
that
although
EPA
described
this
change
in
the
preamble
to
the
proposal,
the
change
was
not
made
to
the
proposed
regulatory
language
in
section
273.32(
b)

(
3.4.1).

Response:
To
implement
this
change
as
it
was
discussed
in
the
preamble
to
the
proposal,

EPA
has
fixed
this
and,
in
the
final
rule,
has
removed
the
requirement
from
the
regulatory
text
at
40
CFR
273.32(
b)(
5).

(
26)
Comment:
EPA
received
one
comment
that
it
should
add
volume
reporting
requirements
to
the
universal
waste
program
(
3.4.3).

Response:
EPA
does
not
believe
that
additional
reporting
requirements
are
warranted
under
the
federal
universal
waste
program
because
of
existing
requirements
for
large
quantity
handlers
of
universal
waste
to
notify
the
Regional
Administrator
if
they
accumulate
more
than
5,000
kilograms
of
universal
waste.

(
27)
Comment:
EPA
received
one
comment
that
this
requirement
is
useful
to
a
state
in
collecting
information
on
the
universal
waste
at
a
facility.

Response:
Because
the
information
duplicates
information
submitted
elsewhere,
EPA
is
removing
it,
as
proposed.
It
should
be
noted,
however,
that
states
may
choose
to
have
more
stringent
hazardous
waste
requirements
than
the
federal
regulations.
Thus,
if
a
state
finds
this
information
useful,

it
may
choose
to
incorporate
this
requirement
into
its
universal
waste
program.
10
(
28)
Comment:
EPA
received
two
comments
that
it
should
eliminate
the
notification
requirement
that
requires
a
breakdown
in
the
individual
categories
of
universal
waste
handled
by
a
large
quantity
handler
altogether.

Response:
EPA
believes
that
because
the
wastes
being
handled
are
hazardous
wastes,
it
is
important
for
the
EPA
to
be
notified
of
the
types
of
wastes
managed
at
a
facility
so
it
is
able
to
provide
appropriate
assistance
and
oversite.
Thus,
EPA
is
not
eliminating
this
requirement
in
40
CFR
273.32(
b)(
4),
just
the
duplicative
requirement
in
40
CFR
273.32(
b)(
5).

VI
Comments
on
State
Implementation
(
29)
Comment:
Three
commenters
requested
that
EPA
encourage
all
the
states
to
pick
up
the
universal
waste
rules
so
the
full
potential
in
reducing
burden
can
be
realized
(
3.1.7).

Response:
EPA
strongly
encourages
all
states
to
adopt
the
universal
waste
program
as
part
of
their
strategies
to
keep
hazardous
materials
out
of
municipal
waste
streams.
Specific
to
this
rule,
EPA
is
encouraging
states
to
adopt
the
universal
waste
regulations
for
MCE.
Some
states
are
already
in
the
process
of
adding
MCE
to
their
lists
of
universal
wastes.

(
30)
Comment:
One
commenter
requested
that
EPA
clarify
that
states
that
currently
allow
mercury
containing
equipment
in
universal
waste
are
not
in
violation
of
RCRA
delegations
(
3.1.12).

Response:
Under
the
existing
universal
waste
program,
states
are
permitted
to
add
wastes
that
are
not
in
the
federal
regulations
to
their
own
universal
waste
lists
and,
therefore,
states
that
currently
include
MCE
in
their
universal
waste
program
do
not
violate
RCRA
delegations
(
60
FR
25537,

May
11,
1995).

(
31)
Comment:
One
commenter
disagreed
with
a
portion
of
the
rationale
for
the
rule
regarding
the
sixth
criterion
at
273.81(
f)
[
that
regulation
of
a
material
as
universal
waste
will
increase
the
likelihood
that
the
waste
will
be
diverted
from
non­
hazardous
waste
management
systems
to
recycling,
treatment,

or
disposal
in
compliance
with
subtitle
C
of
RCRA].
The
commenter
stated
that
because
the
streamlined
universal
waste
tracking
regulations,
which
do
not
require
a
manifest,
may
or
may
not
improve
any
improper
disposal
activities
practiced
by
some
generators,
given
that
some
states
still
require
a
manifest
for
these
materials
(
3.1.8).
11
Response:
EPA
strongly
encourages
states
to
adopt
a
universal
waste
rule
if
they
have
not
already
done
so
and
to
add
MCE
to
their
lists
of
universal
wastes
if
they
already
have
a
universal
waste
rule.
However,
even
if
a
generator
must
still
prepare
a
manifest
in
order
to
ship
universal
wastes
through
states
that
do
not
have
a
universal
waste
program,
there
are
other
benefits
from
the
universal
waste
program
that
will
make
it
likely
that
more
of
these
wastes
will
be
collected
and
sent
for
proper
disposal.

These
benefits
include
the
accumulation
requirements
and
time
limits
under
the
universal
waste
rule,

which
are
less
burdensome
requirements
for
these
materials
than
full
subtitle
C
regulation.

VII.
Comments
Otherwise
Not
Specified
[
3.5]

EPA
received
several
public
comments
on
typographical
errors
or
topics
that
did
not
fit
in
any
other
subcategory.
Those
are
listed
in
this
section.

(
32)
Comment:
Within
the
definition
of
"
universal
waste,"
MCE
should
be
listed
as
subsection
"(
5)"
in
§
273.9
"
Universal
Waste
means...",
rather
than
as
subsection
"(
e)"
(
3.5.1).

Response:
EPA
agrees
with
the
commenter
and
has
changed
the
regulatory
language
in
the
final
rule
to
reflect
this
numbering.

(
33)
Comment:
EPA
should
change
section
273.14(
f)
to
read
as
follows
:

"(
f)
Waste
mercury­
containing
equipment...."
[
rather
than
"
Mercury­
containing
equipment"
(
3.5.2).

Response:
EPA
agrees
with
the
commenter
that
the
proposed
numbering
was
incorrect
and
has
changed
the
regulatory
language
to
reflect
this
comment.

(
34)
Comment:
Mercury­
containing
equipment
deserves
regulation
as
a
hazardous
waste.
It
should
be
subject
to
subparts
E
and
H
of
Part
262
regarding
export
[
notification,
reporting,

recordkeeping,
international
agreements,
OECD
requirements]
(
3.5.6).

Response:
Part
273
contains
general
export
requirements
for
all
universal
waste,,
rather
than
separate
requirements
for
each
type
of
universal
waste.
Therefore,
although
export
requirements
were
not
specifically
included
in
the
regulatory
text
in
the
June
12,
2002
Federal
Register
notice
proposing
this
rule,
by
adding
MCE
to
part
273,
they
also
become
subject
to
the
export
requirements
in
this
part.
12
Export
requirements
for
small
quantity
handlers
of
universal
waste
are
found
at
40
CFR
273.20
and
export
requirements
for
large
quantity
handlers
of
universal
waste
are
found
at
40
CFR
273.40.

(
35)
Comment:
EPA
received
one
comment
that
it
should
provide
guidance
on
filling
out
the
US
DOT
Description
field
for
the
manifest
for
generators
in
states
that
recognize
mercury­
containing
equipment
as
universal
waste
but
shipping
through
states
that
do
not.
Because
they
are
not
federal
hazardous
wastes,
DOT
would
identify
them
as
hazardous
substances
only
if
they
meet
the
DOT
definition
of
hazardous
substance.
EPA
should
suggest
that
generators
use
the
following
phrases
on
the
manifest:
(
1)
"
Mercury
containing
equipment
­
non­
DOT
regulated";
(
2)
"
Mercury
containing
equipment
­
non­
DOT
regulated.
State
of
__
regulated
hazardous
waste
only."
(
3.5.3)

Response:
Because
of
the
wide
variety
of
mercury­
containing
equipment
that
might
be
managed
under
the
provisions
of
the
universal
waste
rule
and
the
different
shipment
situations
handlers
may
face,
EPA
cannot
be
certain
that
any
given
device
would
or
would
not
meet
DOT's
definition
of
a
hazardous
substance.
As
that
decision
must
be
made
by
the
transporter
of
the
item,
EPA
will
not
suggest
language
to
be
used
on
the
manifest
for
federal
universal
wastes
in
states
that
do
not
recognize
them.

(
36)
Comment:
In
studies
performed
by
California
EPA's
Department
of
Toxic
Substances,

mercury
was
only
detected
in
groundwater
at
two
landfill
sites
at
concentrations
just
above
the
MCL.

(
3.5.4)

Response:
These
findings
are
heartening
from
an
environmental
standpoint,
but
EPA
does
not
believe
they
provide
a
basis
for
not
adding
MCE
to
the
universal
waste
program.
Regardless
of
the
presence
or
absence
of
heavy
metals
in
groundwater
at
landfill
sites,
it
is
still
desirable
to
divert
wastes
containing
these
constituents
from
landfill
disposal
and
recycle
them
to
the
greatest
extent
practicable.

(
37)
Comment:
EPA
should
use
the
information
in
NEWMOA's
Interstate
Mercury
Education
and
Reduction
Clearinghouse
to
identify
all
the
products
that
would
be
affected
by
the
proposal
and
to
track
future
impacts
of
the
rule.
(
3.5.5)

Response:
Thank
you
for
the
information
on
NEWMOA's
Clearinghouse.
EPA
hopes
to
monitor
the
impacts
of
its
rule
on
mercury
waste
to
determine
if
the
rule
is
achieving
its
goals.
13
(
38)
Comment:
EPA
received
one
comment
that
dental
waste
amalgam
should
also
be
made
a
universal
waste.
(
3.5.8)

Response:
Adding
dental
waste
amalgam
to
the
federal
list
of
universal
wastes
is
beyond
the
scope
of
this
rulemaking.

(
39)
Comment:
EPA
received
one
comment
requesting
that
EPA
preempt
the
ability
for
state
programs
to
be
more
stringent
than
the
federal
program
in
the
case
of
transportation
of
universal
waste
because
it
would
result
in
uniform
nationwide
rules
that
could
facilitate
development
of
a
recycling
infrastructure.
(
3.5.9)

Response:
This
proposal
sought
only
to
add
mercury­
containing
equipment
to
the
federal
list
of
universal
wastes.
Section
3009
of
the
Resource
Conservation
and
Recovery
Act
(
RCRA),
42
U.
S.
C.

§
6929,
expressly
preserves
the
ability
of
states
to
impose
more
stringent
requirements
than
those
in
federal
regulations
promulgated
under
RCRA.

(
40)
Comment:
One
commenter
stated
that
if
EPA
has
the
authority
to
require
that
mercurycontaining
equipment
be
labeled
so
users
know
if
they
need
to
worry
about
hazardous
waste
regulations,

it
should.
(
3.5.7)

Response:
Requiring
manufacturers
to
label
their
products
falls
outside
of
EPA's
jurisdiction
under
RCRA.
The
Agency
encourages
handlers
of
MCE
to
contact
manufacturers
to
get
information
about
products
to
use
in
making
waste
determinations
and
in
deciding
which
items
meet
the
definition
of
MCE.

(
41)
Comment:
One
commenter
felt
that
the
proposed
rule
implies
that
disposing
non­
hazardous
mercury
containing
equipment
in
non­
hazardous
waste
management
units
is
improper
disposal
and
that
if
EPA
expects
that
hazardous
and
non­
hazardous
mercury­
containing
equipment
may
be
managed
as
universal
waste,
it
should
state
so
plainly
(
3.1.9).

Response:
Non­
hazardous
MCE
is
not
required
to
be
managed
under
the
federal
hazardous
waste
regulations,
including
universal
waste
regulations.
This
rule
does
not
change
that.
Generators
may
choose
to
handle
technically
non­
hazardous
MCE
under
universal
waste
to
avoid
sampling
and
separation
of
similar
wastes.
Diversion
of
these
wastes
from
municipal
disposal
is
a
stated
goal
of
the
universal
waste
program.
