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                        Environmental Justice Analysis
                    of the Definition of Solid Waste Rule 
                                       
                                       
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                           DRAFT FOR PUBLIC COMMENT
                                       
                                       
                                 June 30, 2011
                                       
                                       
                 Office of Solid Waste and Emergency Response
                     U.S. Environmental Protection Agency
                           1200 Pennsylvania Avenue
                             Washington D.C. 20460
                                       
                                       
Executive Summary

To achieve the goals of Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, EPA must consider environmental justice when developing a regulation.  Because decisions involving a regulation must be informed by a consideration of a number of different issues, an environmental justice analysis is one of several analyses the Agency uses when developing regulations.  The environmental justice analysis may be qualitative and/or quantitative and is designed to provide the appropriate information on disproportionately high and adverse impacts to minority and/or low-income populations to decision-makers.  To the extent an environmental justice analysis reveals potential disproportionately high adverse impacts on minority and/or low-income populations, this result can affect how EPA uses its policy discretion in pursuing specific regulatory options or engaging the public in the implementation of regulations.

In October 2008, EPA published the Definition of Solid Waste (DSW) final rule which, among other things, sought to increase the levels of hazardous secondary materials recycling.[,]   Recycling hazardous secondary materials fulfills two goals of the Resource Conservation and Recovery Act (RCRA) by reducing the consumption of raw materials and by reducing the volume of waste materials that must be treated and disposed. Recycling can mean less air, water, and soil pollution caused by extracting, refining, and processing of raw materials.  However, the goals of resource conservation and waste reduction must never occur at the expense of one of the other fundamental goal of RCRA:  protecting human health and the environment from hazardous waste management.

The 2008 DSW final rule revised the definition of solid waste under RCRA for certain types of hazardous secondary materials being recycled.  The hazardous secondary materials recycled under the DSW final rule would no longer be regulated as hazardous waste, as long as certain conditions were met.  The intended effect of the DSW rule was to encourage safe recycling of hazardous secondary material and answer long-standing questions about the RCRA definition of solid waste.

In January 2009, the Sierra Club submitted an administrative petition requesting EPA revoke the DSW rule.  The petition raised a number of issues questioning the protectiveness of the rule, particularly for minority and low-income communities.  In June 2009, EPA held a public meeting asking for comment on the issues raised in the petition. Many of the commenters echoed Sierra Club's concern about potential disproportionate impacts to minority and low-income communities from the rule, and the adequacy of EPA's analysis of the potential for these impacts under the 2008 DSW final rule. Under the 2008 DSW final rule, EPA determined that the conditions of the rule would prevent any increase in risk, and therefore there would be no disproportionate adverse impacts to minority or low-income communities.  However, the 2008 analysis did not take into account whether the conditions of the rule would operate as effectively in the real world as the more detailed requirements of the RCRA hazardous waste regulations.  

In response to comments by Sierra Club and other stakeholders, EPA committed to producing an expanded analysis of the potential disproportionate impacts of the 2008 DSW final rule.  A draft methodology for the analysis was shared with the public in January 2010, and three public roundtable discussions were held to discuss the draft methodology.  EPA considered the comments raised in those discussions and conducted the new analysis.

The methodology for the DSW environmental justice analysis consists of six steps:
                                       
                         Summary of DSW EJ Methodology
                                       
Step 1:  Hazard characterization

Includes two phases:  (1) identifying potential hazards that could pose risks to human health and the environment from the recycling of hazardous secondary materials, including accidental releases of hazardous constituents and (2) analyzing the likelihood of such hazards occurring under the requirements of the DSW exclusions as compared to the pre-2008 DSW hazardous waste regulations.
Step 2:	Identification of potentially affected communities
Modeling the locations of facilities (including potential new facilities) that are likely to choose to take advantage of the 2008 DSW final rule.
Step 3:	Demographics of potentially affected communities
Mapping the location of the facilities modeled in Step 2 and identifying the demographics (e.g., minority population and income level) of the surrounding communities.
Step 4: Identifying other factors that affect vulnerability in  potentially affected communities 
Identifying important vulnerability factors. These include factors that may increase the likelihood of "damages" (i.e., release of contamination to any environmental media or abandoned materials that require cleanup, injury to a person such as a worker or resident, or damage to property such as a fire), such as the likelihood that a facility is sited within a community, or the likelihood of health risks in the event of releases. Examples include the presence of other pollution sources and any information about the public health of the surrounding population.
Step 5: Information synthesis: assessment of disproportional impact
Synthesizing all the information to characterize whether the DSW rule will facilitate the occurrence of any adverse impacts and whether some population groups (e.g., minority or low income populations) would be overrepresented in the impacted communities.
Step 6: Identification of potential preventive and mitigation strategies
Identifying potential strategies to prevent non-compliance and releases to the environment and also strategies to mitigate any impacts identified under Step 5.

The draft environmental justice analysis of the DSW rule was peer reviewed, and then revised based on peer review comments.  The next steps will be to obtain public comments on the revised draft analysis as part of a new proposal requesting comment on further revisions to the definition of solid waste.   Below is a summary of findings from the revised draft analysis.

Finding 1:  Hazardous Secondary Material Recycling Does Pose Significant Potential Hazards

The first step of the DSW environmental justice analysis methodology is hazard characterization, which includes both identifying the potential hazards that discarded hazardous secondary materials recycling could pose to human health and the environment, and evaluating the likelihood of such hazards resulting in increased risk under the 2008 DSW final rule. EPA conducted the first part of the hazard assessment, identifying the potential hazards that discarded hazardous secondary materials recycling could pose to human health and the environment, independent of any presumption or consideration of health and safety or regulatory controls.  In the second part of the hazard assessment, EPA considered such controls in conjunction with the hazards identified in the first part to assess the likelihood of such hazards resulting in increased risk.

Hazardous secondary materials sent to recycling are physically and chemically similar, if not identical, to many of the hazardous wastes sent for treatment and disposal.  The most commonly recycled hazardous secondary materials are spent solvents and electric arc furnace dust (which is recycled to reclaim metals).  Spent solvents present particular management challenges associated with storage of liquids containing volatile organic chemicals and include both halogenated and non-halogenated organic chemicals, which represent a broad range of chemicals and associated hazards.  Electric arc furnace dust is usually in a solid state and presents a different management challenges, including storage in waste piles and the potential for wind-blown dust, and can contain high concentrations of toxic metals.   

These two classes of hazardous secondary materials (as well as other hazardous secondary materials that are recycled) can pose risks via a wide variety of exposure routes and include a range of potential adverse health effects, both carcinogenic and non-carcinogenic, and a potential for acute impacts such as fire and explosions for certain types of hazardous secondary materials, such as solvents.

Finding 2: Possibility of Hazards from Hazardous Secondary Materials Recycling Adversely Impacting Human Health and the Environment is Increased under the 2008 DSW Final Rule

The second part of the hazard characterization step  -- determining whether these hazards could result in increased risk to human health and the environment  -- is a complex issue because of the interactions between how the regulations are written and how they are implemented.  Under the 2008 DSW final rule, EPA presumed that the conditions of the rule would prevent any increase in risk.  In particular, the condition that the hazardous secondary materials be "contained" was intended to address this issue, because if the material is not released to the environment, then there would be no increased exposure, and therefore no increased risk. 

However, what the 2008 analysis failed to take into account was whether the conditions of the rule  -- including the "contained" standard  -- would operate as effectively in the real world as the more detailed requirements of the RCRA hazardous waste regulations.  One of the most common criticisms of the January 2010 draft environmental justice methodology was that it glossed over some of the important protections of the hazardous waste regulations, particularly public participation requirements, which were not considered under the 2008 DSW final rule.

A more detailed comparative analysis of the regulatory requirements under the 2008 DSW final rule with the hazardous waste regulations reveals potentially significant gaps in environmental protection under the 2008 DSW final rule.  Examples of these gaps include the absence of measures to ensure compliance, incentives to accumulate larger volumes of hazardous secondary materials, the potential for increased releases such as during storage and transportation of waste, the lack of prescriptive standards for waste storage and containment, potential issues associated with the interstate transport of HSM for recycling, and reduction in access to information and the opportunity for public participation.  The specific gaps vary depending on the baseline scenario and the post-DSW scenario being considered, and in some cases, there is also a potential for increased benefits, primarily from resource conservation and from reduced transportation distances.  

            Summary of Potential Impacts of the 2008 DSW Final Rule
                      Under Different Recycling Scenarios
                           Hazardous Waste Baseline
                                       
                                 DSW Practices
                         Summary of Potential Impacts
         Scenario 1:  Generator continues current recycling practices
Generator recycles material onsite under hazardous waste regulations 
                                       
Generator recycles material onsite under generator-controlled exclusion 
Potential  increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures
Generator sends material offsite for recycling to RCRA-permitted facility under hazardous waste regulations

Generator sends material offsite for recycling at a  RCRA-permitted facility under transfer-based exclusion
Potential  increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures

No change in risk at recycling facility.
Generator exports material under hazardous waste regulations for recycling in another country

Generator exports material under the transfer-based exclusion for recycling in another country
Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures.

No change in risk at recycling facility.
  Scenario 2:  Generator switches from off-site disposal to on-site recycling
Generator sends material offsite to a RCRA permitted facility for  treatment followed by landfilling under hazardous waste regulations

Generator recycles material onsite under generator-controlled exclusion 
Potential  increased risk to human health and the environment at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures

Potential  reduced transportation risk due to switch from off-site disposal to on-site recycling

Potential reduced risk in communities surrounding existing off-site treatment/disposal facilities.

Potential increased resource conservation benefits due to switch from disposal to recycling and reduction of miles traveled.


 Scenario 3: Generator switches from off-site disposal to off-site recycling 
                      under the control of the generator
Generator sends material offsite to a RCRA permitted facility for  treatment followed by landfilling under hazardous waste regulations

Generator sends material offsite for recycling at a facility that it controls under generator-controlled exclusion
Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures.

Potential increased risk in communities surrounding generator off-site recycling facilities

Potential increased resource conservation benefits due to switch from disposal to recycling and reduction of miles traveled (if distance to reclamation facilities is closer).

Potential reduced risk in communities surrounding existing off-site treatment/disposal facilities.
Scenario 4: Generator switches from off-site disposal to off-site recycling at RCRA-permitted facility
Generator sends material offsite to a RCRA permitted facility for treatment followed by landfilling under hazardous waste regulations

Generator sends material offsite for recycling at a  RCRA-permitted facility under transfer-based exclusion
Potential  increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures

Potential increased resource conservation benefits due to switch from disposal to recycling and reduction of miles traveled (if distance to reclamation facilities is closer).

Potential increased resource conservation benefits due to switch from disposal to recycling.

Potential reduced risk in communities surrounding existing off-site treatment/disposal facilities.




Scenario 5: Generator switches from off-site disposal to off-site recycling at a U.S. facility without a RCRA permit
Generator sends material offsite to a RCRA permitted facility for treatment followed by landfilling under hazardous waste regulations

Generator sends material offsite for recycling at a facility in the United States without a RCRA permit under transfer-based exclusion
Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures.

Potential increased risk at recycler due to longer accumulation times, greater quantities, lack of explicit preventative measures.

Potential increased resource conservation benefits due to switch from disposal to recycling.

Potential reduced risk in communities surrounding existing off-site treatment/disposal facilities.
Scenario 6: Generator switches from off-site disposal to exporting for recycling
Generator sends material offsite to a RCRA permitted facility for treatment followed by landfilling under hazardous waste regulations

Generator exports material under the transfer-based exclusion for recycling in another country
Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures.

Potential increased risk at recycler due to longer accumulation times, greater quantities, lack of explicit preventative measures.

Potential increased resource conservation benefits due to switch from disposal to recycling.

Potential reduced risk in communities surrounding existing off-site treatment/disposal facilities.
Scenario 7: Generator switches from off-site recycling at a facility without a permit to another type of recycling under the 2008 DSW final rule
Generator sends material offsite for recycling at a facility in the United States without a RCRA permit under hazardous waste regulations

Generator sends material offsite for recycling at a  facility under generator-controlled exclusion, or

Generator exports material under the transfer-based exclusion for recycling in another country, or

Generator sends material offsite for recycling at a RCRA permitted facility under transfer-based exclusion, or

Generator sends material offsite for recycling at a facility in the United States without a RCRA permit under transfer-based exclusion.











Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures.

Potential increased risk at new recycler due to longer accumulation times, and greater quantities accumulated.

Potential reduced risk at new recycler due to "contained" standard, legitimacy condition and (for the transfer-based exclusions) reasonable efforts audit and financial assurance conditions.

Potential reduced risk in communities surrounding previously used off-site recycling facility.
Scenario 8:  Generator switches from off-site recycling at a RCRA-permitted facility or exporting waste for recycling to another type of recycling under the 2008 DSW final rule
Generator sends material offsite for recycling to RCRA-permitted facility under hazardous waste regulations or exporting waste for recycling in another country

Generator reclaims material onsite under generator-controlled exclusion, or

Generator sends material offsite for recycling at a facility that it controls under generator-controlled exclusion, or

Generator sends material offsite for recycling at a facility in the United States without a RCRA permit under transfer-based exclusion, or

Generator exports material under the transfer-based exclusion for recycling in another country
 Same as corresponding scenarios 2  -  6, but with no resource conservation benefits.


Finding 3:  Many of the Communities Potentially Impacted by this Increase in Risk of Adverse Impacts are Minority and Low-Income Communities, and in Some Cases the Populations Potentially Impacted are Disproportionately Minority and/or Low Income 
      
The second and third steps of the DSW environmental justice analysis methodology together help determine whether the potential adverse impacts detailed above are likely to occur disproportionately in minority and low-income communities.  

The second step of the methodology identified facilities that can represent the facilities that are likely to take advantage of the 2008 DSW final rule.  These facilities are grouped into four different categories:  
   1.  Facilities that have already notified EPA that they will be managing hazardous secondary materials under the 2008 DSW final rule (hereafter referred to as "notification facilities"); 
   2.  Facilities in EPA's An Assessment of Environmental Problems Associated with Recycling of Hazardous Secondary Materials, many of which operated under exclusions or reduced regulations (hereafter referred to as "damage case facilities");
   3. Hazardous waste facilities that are likely to recycle under the rule, including hazardous waste generators producing more than a truckload (25 tons) of recyclable hazardous secondary materials annually, and hazardous waste recyclers (hereafter referred to as "hazardous waste facilities"); and
       
   4. Facilities currently recycling non-hazardous industrial waste (e.g., antifreeze) that could most easily switch or expand to recycling under the 2008 DSW final rule (hereafter referred to as non-hazardous industrial waste facilities").

The third step characterized the demographics of the communities within a three kilometer radius around these facilities, and determined whether they were disproportionately minority or low-income compared to the nation as a whole, and compared to the population in the state.  Disproportionality was evaluated both at the community and at the population level.

For the community-level analysis, the question is whether the communities in a facility category had a higher or lower percentage of minority and/or low-income population as compared to the comparison population (i.e., national or state population).  In general, some communities will have a higher percentage than the comparison population and some will have a lower percentage.   As long at these differences have a regular distribution, they would not indicate disproportionate impact.  However, if the number of communities with a higher percentage of minority and/or low-income population is greater than that of the comparison populations, then there is a potential for disproportionate impact. The higher the average difference between the potentially affected communities and the comparison group, the greater the potential disproportionality.

In the chart below, the only category that consistently demonstrates the potential for disproportionate impact are the damage case facilities.  For both the national and the state comparison populations, more than 50% of the damage case facilities are located in communities with minority and low-income populations that have a higher representation than the comparison populations.  In addition, the average difference in these cases (i.e., the average amount that the damage case facilities have a higher-than-average percentage of minorities or low-income populations) ranges from 6-8%.


        Community-Level Analysis of Potential Disproportionate Impacts 
            of 2008 DSW Rule to Minority and Low-Income Communities
         Highlighted Values Indicate Potential Disproportionate Impact


National Comparison
% communities with higher minority representation
(average difference)
National Comparison
% communities with higher low-income representation
(average difference)
State Comparison
% communities with higher minority representation
(average difference)
State
Comparison
% communities with higher low-income representation
(average difference)
Notification Facilities
(40 total)
                                     7.5%
                                   (-20.7%)
                                     32.5%
                                    (-2.0%)
                                  50.0% (IA)
                                    (3.1%)
                                  20.0% (NJ)
                                   (-11.0%)
                                  31.3% (PA)
                                    (-2.3%)
                                  64.0% (IA)
                                    (1.7%)
                                    0% (NJ)
                                    (-3.7%)
                                   50% (PA)
                                    (2.6%)
Damage Case Facilities 
(217 total)
                                      53%
                                    (8.2%)
                                      65%
                                    (5.9%)
                                     55.8%
                                    (8.2%)
                                      69%
                                    (6.7%)
Hazardous Waste Facilities
(2,677 total)
                                      42%
                                    (0.9%)
                                      48%
                                    (1.5%)
                                     47.9%
                                    (4.0%)
                                     50.6%
                                    (1.8%)
Non-Hazardous Industrial Waste Facilities
(25 total)
                                      36%
                                    (-5.0%)
                                      40%
                                    (-0.5%)
                                      36%
                                   (-2.55%)
                                      44%
                                    (-0.3%)

The population-level analysis examines the demographics of the total potentially affected population as compared to the total comparison population to determine (1) whether there is a substantially greater probability of members in a population group of concern (minority or low-income) being present as compared to members of the comparison population, and (2) whether members of the population group of concern comprised a substantially greater proportion of the potentially affected population than the comparison populations.  These two comparisons are referred to as (1) the Affected Population Ratio, and (2) the Demographic Ratio.  In both cases, if the ratio is greater than 1.0, then there is a potential for disproportionate impact to the population of concern, and the larger the ratio, the greater the disproportionality.  


       Population-Level Analysis of Potential Disproportionate Impacts 
            of 2008 DSW Rule to Minority and Low-Income Communities
Highlighted Values Indicate Potential Disproportionate Impact to Population of Concern
           All Results Statistically Significant (p-value <0.05)

National Comparison
Minority Population

Affected Population Ratio

Demographic Ratio
National Comparison
Low-Income Population

Affected Population Ratio

Demographic Ratio
State 
Comparison
Minority Population

Affected Population Ratio

Demographic Ratio
State 
Comparison
Low-Income Population

Affected Population Ratio

Demographic Ratio
Notification Facilities
(40 total)
                                     0.70
                                       
                                     0.76
                                     1.05
                                       
                                     1.04
                                   1.80 (IA)
                                   1.76 (IA)
                                       
                                   1.02 (NJ)
                                   1.01 (NJ)
                                       
                                   1.46 (PA)
                                   1.47 (PA)
                                   1.34 (IA)
                                   1.32 (IA)
                                       
                                   0.64 (NJ)
                                   0.65 (NJ)

                                   1.74 (PA)
                                   1.63 (PA)
Damage Case Facilities 
(217 total)
                                     2.87
                                       
                                     1.86
                                     1.98
                                       
                                     1.80
                                     2.59
                                       
                                     1.64
                                     2.04
                                       
                                     1.90
Hazardous Waste Facilities
(2,677 total)
                                     1.90
                                       
                                     1.80
                                     1.39
                                       
                                     1.50
                                     1.94
                                       
                                     2.04
                                     1.47
                                       
                                     1.83
Non-Hazardous Industrial Waste Facilities
(25 total)
                                     1.19
                                       
                                     1.12
                                     1.16
                                       
                                     1.14
                                     1.34
                                       
                                     1.20
                                     1.17
                                       
                                     1.15


The population-level analysis shows a greater incidence of potential disproportionate impact to minority and low-income populations than the community-level analysis.  For the population-level analysis, the potential for disproportionate impact (i.e., ratios greater than one) occur under all categories, while the community-level analysis exhibits the potential for disproportionate impact only in the damage case facility category.  This difference can occur when the population of those communities that do have a greater percentage of minority or low-income individuals also have a significantly higher total population that those communities that do not.   In other words, for all categories of facilities except the damage case facilities, the facilities of concern do not appear to be disproportionately located in minority or low-income communities, but the facilities that are located in minority and low-income communities have the potential to impact much larger populations than those which are not, resulting in an overall potential disproportionate impact to minority and low-income populations as a whole.

Finding 4:   Underlying Vulnerabilities Traditionally Associated with Minority and Low-Income Communities Pose the Potential to Exacerbate Potential Adverse Impacts of the DSW Rule

 In addition to considering the potential for the 2008 DSW final rule to result in adverse impacts that disproportionately affect minority and low-income communities, the DSW EJ analysis also considers other factors that could affect the impacts of the rule, based on categories from EPA's interim guidance on incorporating environmental justice into rulemaking. These factors are described under five broad categories: (1) susceptible populations, (2) multiple and cumulative effects, (3) unique exposure pathways, (4) ability to participate in the decision-making process, and (5) physical infrastructure. All of these factors have the potential to exacerbate the potential for adverse impacts to minority and low-income communities, but two of these factors are of particular concern to the 2008 DSW final rule: ability to participate in the decision-making process, and multiple and cumulative effects.

Ability to Participate in the Decision-Making Process

A key element of environmental justice is ensuring that all people have an opportunity for meaningful involvement in decision-making which may impact them.  Certain groups may not have historically participated in decision-making because of economic (e.g., income), social (e.g., language barriers, education levels, distrust of government), and infrastructural reasons (e.g., access to public transportation).  In addition, community organizations representing such groups may face higher barriers to participation than government or private sector entities.  For example, taking advantage of existing public participation mandates may require a significant investment of community resources or volunteer effort, while government and private sector entities may have more resources or paid staff to perform these functions.  A critical concern is whether, and the extent to which, communities have the ability to influence the types and number of regulated activities taking place in their community as well as the requirements, conditions, and parameters by which such activities must operate (e.g., permit conditions).  Under the 2008 DSW final rule, facilities claiming an exclusion must submit an initial and biennial notification to EPA or the state, providing general facility information and describing hazardous secondary material types and activities under the exclusion.  

However, under the 2008 DSW final rule this information is not made directly available to potentially affected communities, and facilities and regulators are not required to solicit or consider community input into the decision-making process as is the case with RCRA permitted facilities.  Thus by removing the RCRA permitting requirement for facilities that manage excluded hazardous secondary materials, the 2008 DSW final rule also removed one of the key provisions for allowing communities to participate in the regulatory process (at least as it concerns the management of the hazardous secondary materials excluded under the rule).  Communities with lower participation levels may experience greater adverse impacts from environmental decision-making because their input has not been considered fully, particularly if competing interests are set forth more effectively.  This effect is most likely to occur in communities that have traditionally been excluded from the decision-making process.

Multiple and Cumulative Effects

Minority, low-income, and indigenous communities that have been affected by multiple pollution sources may be at risk for increased health consequences.  Potential sources of pollution can include, for example, industrial facilities, landfills, transportation-related air emissions, poor housing conditions (e.g., lead-based paint), leaking underground tanks, pesticides, and incompatible land uses.  In particular, releases of contaminants that may occur over long periods of time, such as leaking septic tanks or underground storage tanks, may be less likely to be diagnosed quickly, and tend to be addressed more slowly, and thus pose a higher health risk, in low income communities.  

An analysis of the cumulative effects from multiple stressors can provide a more complete evaluation of a population's health risks from pollutants.  For example, an analysis of discrete stressors and effects on a population might conclude that nearby pollution sources are within regulatory limits; however, an analysis of cumulative effects might determine that a person's collective exposure to a contaminant from multiple sources exceeds a health-based limit.

An examination of the facilities that have notified under the 2008 DSW final rule shows that multiple environmental hazards are a potential concern for communities around these facilities.  All have multiple facilities reporting to EPA, either under RCRA, the Clean Air Act (CAA), or Comprehensive Environmental Response, Compensation and Liability Act, (CERCLA - also known as Superfund) within a three-kilometer radius of the facility.  Twenty-six of the forty facilities had communities with cancer rates greater than the 80th percentile, and twenty-seven showed a greater than the 80th percentile in neurological hazard rates.  Twenty-seven facilities also had no hospital facilities within the three kilometer area.

Finding 5:  There are Potential Preventative and Mitigative Steps that EPA Could Explore to Address the Potential Adverse Impacts to Minority and Low-Income Communities

The sixth and final step of the DSW environmental justice analysis is to identify potential strategies to prevent non-compliance and releases to the environment and to mitigate potential adverse impacts that have been identified in the analysis. 

1. Regulatory Changes

Regulatory changes to the 2008 DSW final rule were made according to EPA's authority under RCRA to regulate discarded material. As discussed in the preamble to the 2008 DSW final rule, EPA used the concept of discard as the central organizing idea behind the October 2008 revisions to the definition of solid waste. 
 
As stated in RCRA section 1004(27), "solid waste" is defined as "... any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material...resulting from industrial, commercial, mining and agricultural activities." In exercising its discretion in the 2008 DSW final rule to define what constitutes "discard" for hazardous secondary materials reclamation in the 2008 DSW final rule, EPA included an explanation of how each provision of the final rule relates to discard (73 FR 64676 - 64679). 

While the concept of discard also is the central organizing principle in this proposed rule since EPA only has authority under RCRA to regulate materials that have been discarded, the Federal Register notice announcing the June 2009 public meeting identified areas or opportunities to revise the 2008 DSW final rule in ways that could increase environmental protection, including in environmental justice communities, while still appropriately defining when a hazardous secondary material being reclaimed is a solid waste and subject to hazardous waste regulation (74 FR 25202). 

The purpose of the new 2011 DSW proposal is to provide notice and the opportunity to comment on potential regulatory revisions to address the potential for adverse impacts to human health and the environment from discarded material, including disproportionate impacts to minority and low income communities.

In particular, the proposed withdrawal of the transfer-based exclusion and its replacement with an alternative Subtitle C standard would be one way of addressing the concerns regarding third-party recyclers, including the impact of longer accumulation times, the lack of preventative measures under the containment standard, the lack of public participation requirements, the lack of RCRA air standards, and concerns regarding certain transportation issues. In addition, the proposed codification of the "contained" standard would be one way of addressing the lack of preventative measures and the lack of RCRA air standards under the generator-controlled exclusion. Proposed additional recordkeeping requirements for speculative accumulation and legitimacy would help ensure that hazardous secondary material is being legitimately recycled and not simply discarded through over-accumulation and abandonment, and recordkeeping under the tolling and same-company provisions will help ensure that the hazardous secondary materials meet their intended destinations.

2. Implementation Measures

In addition to considering regulatory changes to address potential adverse impacts of the 2008 DSW final rule, EPA can take steps in implementing the 2008 DSW rule that would help mitigate any potential adverse impacts. These steps include closely monitoring the facilities notifying under the 2008 DSW final rule, making information about the DSW facilities available to the public, and working with the states and EPA Regions to ensure they have the information they need to ensure compliance with the provisions of the rule, and making available to the public information about the facilities that have notified. EPA has begun this process for the states and territories currently operating under the 2008 DSW final rule and plans to continue these efforts in order to help prevent potential adverse impacts at the same time that revisions to the rule are under consideration.

                               Table of Contents

1	Introduction	1
1.1	Background	1
1.2	EPA Response to Peer Review Comments	2
1.2.1	Immediate revisions that have already been incorporated into this document	4
1.2.2	Revisions deferred until after the public comments are received.	4
1.2.3	Revisions EPA does not agree with or otherwise not intend to pursue	5
1.2.4	Comments that EPA has determined are not applicable	5
	1.3 Purpose and Organization of Document	6
2	Hazard Characterization	7
2.1	Overview of Scenarios under the DSW Exclusion	7
2.2	General Hazards Associated with Hazardous Secondary Material	13
2.2.1	Types and Quantities of Hazardous Secondary Materials	13
2.2.2	Hazardous Properties of HSMs:  Solvents and Electric Arc Furnace Dust	15
2.2.3	Media, Exposure Route, and Health Effects Hazard Associated with Recycling of HSM	16
2.2.4	Hazards Associated with Recycling of HSM	22
2.3	Regulatory Comparison - Summary of Comparative Results by Facility Type and Scenario	29
2.4	Summary of Comparative Results by Facility Type and Scenario	37
2.5	Likelihood of Hazards under Scenarios	46
2.5.1	Potentially Increased Hazards under DSW Exclusions	46
2.5.2	Potential Reductions and Transfers of Hazards by Facility Type and Scenario	68
2.5.3	Other Impacts	70
3	Identification of Potentially Affected Communities	74
3.1	Facilities that Have Already Notified EPA that They Will Be Managing Hazardous Secondary Materials under the 2008 DSW Final Rule (40 CFR § 260.42)	74
3.2	Facilities Currently Generating or Managing Hazardous Secondary Materials that May Choose to Operate under the DSW Rule	75
3.2.1	Facilities Currently Managing Recyclable Hazardous Wastes	75
3.2.2	Facilities Currently Generating Recyclable Hazardous Wastes	78
3.2.3	Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule	80
3.3	Facilities Not Currently Generating or Managing Hazardous Secondary Materials  that May Choose to Reclaim them  under the 2008 DSW Final Rule	81
4	Analysis of Demographics of Potentially Affected Communities	82
4.1	Demographic Data Sources	82
4.2	Methodology	84
4.2.1	Selection of EJ Characteristics for Analysis	84
4.2.2	Areal Apportionment Method	84
4.2.3	Comparison of Demographic Characteristics of Affected Population versus Comparison Population	85
4.2.4	Statistical Analysis	86
4.3	Statistical Comparison of Demographic Characteristics of Affected Population versus Comparison Population	86
4.4	Results of Demographic Analysis	88
4.4.1	Notification Facilities	89
4.4.2	Damage Case Facilities	96
4.4.3	Hazardous Waste Facilities	99
4.4.4	Non-Hazardous Industrial Waste Facilities	105
5	Other Factors that Affect Vulnerability in Communities	108
5.1	Overview of Factors that Affect Vulnerability	108
5.1.1	Susceptible Populations	108
5.1.2	Multiple and Cumulative Effects	108
5.1.3	Unique Exposure Pathways	110
5.1.4	Ability to Participate in Decision-Making Process	110
5.1.5	Physical Infrastructure	111
5.2	Summary of Analysis of Factors that Affect Vulnerability for 40 Notification Facilities	112
6	Conclusions	117
6.1	Information Synthesis: Assessment of Disproportionate Impact	117
6.1.1	Hazardous Secondary Material Recycling Does Pose Significant Potential Hazards	117
6.1.2	Possibility of Hazards from Hazardous Secondary Materials Recycling Adversely Impacting Human Health and the Environment Is Increased under the 2008 DSW Final Rule	117
6.1.3	Many of the Communities Potentially Impacted by this Potential Increase in Risk of Adverse Impacts are Minority and Low-Income Communities, and in Some Cases the Populations Potentially Impacted Are Disproportionately Minority and/or Low Income	130
6.1.4	Underlying Vulnerabilities Traditionally Associated with Minority and Low-Income Communities Pose the Potential to Exacerbate Potential Adverse Impacts of the DSW Rule	133
6.2	Potential Preventative and Mitigative Steps that EPA Could Explore to Address the Potential Adverse Impacts to Minority and Low-Income Communities	135
6.2.1	Regulatory Changes	135
6.2.2	Implementation Measures	136


Attachment A. Comparison of Regulatory Requirements under DSW to RCRA and Other Federal Regulations	A-1
Attachment B. Waste and Facility Classification Methodology	B-1
Attachment C. Waste Code Group Methodology	C-1
Attachment D. Methodology for Identifying Potentially Recyclable Hazardous Wastes	D-1
Attachment E. Statistical Calculations	E-2
Attachment F. Acronyms and Abbreviations..........................................................................F-1
Attachment G. Glossary............................................................................................................G-1


                                List of Tables

Table 1.1.  Summary of DSW EJ Methodology	2
Table 2.1.  Scenarios under Baseline and DSW Exclusions	7
Table 2.2.  Summary of Potential Hazards	20
Table 2.3.  Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by Scenario	35
Table 2.4.  Potential Incremental Hazards under DSW Rule: Generators	51
Table 2.5.  Potential Incremental Hazards under DSW Rule: Transporters	55
Table 2.6.  Potential Incremental Hazards under DSW Rule: Intermediate and Reclamation Facilities	62
Table 2.7.  Potential Reduction in Hazards under DSW Rule	69
Table 4.1.  Data Source Files from the 2000 U.S. Census Used for the DSW EJ Analysis	80
Table 4.4.1.1.  National Demographic Comparison for Notification Facilities	88
Table 4.4.1.2.  DSW Rule National Demographic Comparison Analysis of Statistical Significance for Notification Facilities	88
Table 4.4.1.3.  Iowa Demographic Comparison for Notification Facilities	89
Table 4.4.1.4.  DSW Rule Iowa Demographic Comparison Analysis of Statistical Significance for Notification Facilities	89
Table 4.4.1.5.  New Jersey Demographic Comparison for Notification Facilities	90
Table 4.4.1.6.  DSW Rule New Jersey Demographic Comparison Analysis of Statistical Significance for Notification Facilities	90
Table 4.4.1.7.  Pennsylvania Demographic Comparison for Notification Facilities	91
Table 4.4.1.8.  DSW Rule Pennsylvania Demographic Comparison Analysis of Statistical Significance for Notification Facilities	91
Table 4.4.1.9.  Urban Demographic Comparison for Notification Facilities	92
Table 4.4.1.10.  DSW Rule National Demographic Comparison Analysis of Statistical Significance (Urban) for Notification Facilities	92
Table 4.4.1.11.  Rural Demographic Comparison for Notification Facilities	93
Table 4.4.1.12.  DSW Rule National Demographic Comparison Analysis of Statistical Significance (Rural) for Notification Facilities	93
Table 4.4.2.1.  National Demographic Comparison for Damage Case Facilities	95
Table 4.4.2.2  DSW Rule National Demographic Comparison Analysis of Statistical  Significance for Damage Case Facilities	95
Table 4.4.2.3.  State Demographic Comparison for Damage Case Facilities	96
Table 4.4.3.1.  National Demographic Comparison for Hazardous Waste Facilities	98
Table 4.4.3.2.  National Demographic Comparison Analysis of Statistical Significance for Hazardous Waste Facilities	98
Table 4.4.3.3.  State Demographic Comparison for Hazardous Waste Facilities	99
Table 4.4.3.5.  Urban Demographic Comparison for Hazardous Waste Facilities	100
Table 4.4.3.7.  Rural Demographic Comparison for Hazardous Waste Facilities	101
Table 4.4.4.1.  National Demographic Comparison for Non-Hazardous Industrial Waste Facilities	103
Table 4.4.4.2.  National Demographic Comparison Analysis of Statistical Significance for Non-Hazardous Industrial Waste Facilities	103
Table 4.4.4.3.  State Demographic Comparison for Non-Hazardous Industrial Waste Facilities	104
Table 5.1.  Other Factors that Affect Vulnerability in Communities Affected By Recycling Notification Facilities	111
Table A-1.  Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of  Hazardous Secondary Materials under DSW Generator-Controlled Exclusion	A-14
Table A-2.  Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of	A-41
Table A-3.  Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material Intermediate and Reclamation Facilities under DSW Transfer-Based Exclusion	A-64
      

                                                                               
                                                                               
                                                                               
                                                                               
                                                                               
                                                                               
                                                                               
                                                                               
                                                                               

Introduction
Background
On October 30, 2008, the U.S. Environmental Protection Agency (EPA) published final revisions to the definition of solid waste that excludes certain hazardous secondary materials from regulation under Subtitle C of the Resource Conservation and Recovery Act (RCRA), as amended (73 FR 64663).  Specifically, EPA amended 40 CFR Part 261 to provide that hazardous secondary materials (HSMs) reclaimed under the control of the generator are not solid wastes if specified requirements are met.  EPA also amended Part 261 to provide that HSMs that are generated and then transferred to another person for the purpose of reclamation, including exports, are not solid waste, provided that specified conditions are met.  In addition, EPA finalized other amendments to address particular issues (e.g., established standards in Part 260 to enable a person to apply to EPA for a formal determination that a HSM is not discarded (i.e., non-waste) and therefore not a solid waste).  
On January 29, 2009, the Sierra Club submitted an administrative petition to EPA requesting that the definition of solid waste (DSW) rule be repealed.  The petition argues that the revised regulations are unlawful and that they increase threats to public health and the environment without producing compensatory benefits and, therefore, should be repealed.  In addition, the petition disagrees with the Agency's findings that the rule would have no adverse environmental impacts, including no adverse impact to minority or low-income communities.
Under the 2008 DSW final rule, EPA determined that the conditions of the rule would prevent any increase in risk, and therefore there would be no disproportionate adverse impacts to minority or low-income communities.  However, the 2008 analysis did not take into account whether the conditions of the rule would operate as effectively in the real world as the more detailed requirements of the RCRA hazardous waste regulations.  One of the most common criticisms of the January 2010 draft environmental justice methodology was that it glossed over some of the important protections of the hazardous waste regulations, particularly public participation requirements.
After receiving the petition and communicating with stakeholders, EPA committed to conducting an expanded analysis of the environmental justice (EJ) impacts of the 2008 DSW final rule.  This draft analysis is presented in this document.
      4.2 Overview of Approach
The Agency published the Draft Environmental Justice Methodology for the Definition of Solid Waste Final Rule, which lays out a general approach for analyzing EJ issues under the 2008 DSW final rule, in January of 2010.  EPA modified the methodology through interaction with the general public and other stakeholders.  The methodology also adheres to existing Federal and EPA-specific guidance on how to incorporate EJ into the Agency's process for developing regulations and how to conduct analyses that incorporate EJ considerations.  This includes, in particular, EPA's Action Development Process and Interim Guidance on Considering Environmental Justice During the Development of an Action.  The methodology includes six steps, as described in Table 1.1.

Table 1.1.  Summary of DSW EJ Methodology
               Overview of DSW Environmental Justice Methodology
Step 1:  Hazard characterization

Includes two phases:  (1) identifying potential hazards that could pose risks to human health and the environment from the recycling of hazardous secondary materials, including sudden and non-sudden accidental releases of hazardous constituents and (2) analyzing the likelihood of such hazards occurring under the requirements of the DSW exclusions as compared to the pre-2008 DSW hazardous waste regulations.
Step 2:	 Identification of potentially affected communities
Modeling the locations of facilities (including potential new facilities) that are likely to choose to take advantage of the DSW rule.
Step 3:	 Demographics of potentially affected communities
Mapping the location of the facilities modeled in Step 2 and identifying the demographics (e.g., minority population and income level) of the surrounding communities.
Step 4:  Identifying other factors that affect vulnerability in  potentially affected communities 
Identifying important vulnerability factors. These include factors that may increase the likelihood of "damages" (i.e., release of contamination to any environmental media or abandoned materials that require cleanup, injury to a person such as a worker or resident, or damage to property such as a fire), such as the likelihood that a facility is sited within a community, or the likelihood of health risks in the event of releases. Examples include the presence of other pollution sources and any information and data about the public health of the surrounding population.
Step 5:  Information synthesis: assessment of disproportional impact
Synthesizing all the information to characterize whether the DSW rule will facilitate the occurrence of any adverse impacts and whether some population groups (e.g., minority or low income populations) would be overrepresented in the impacted communities.
Step 6:  Identification of potential preventive and mitigation strategies
Identifying potential strategies to prevent non-compliance and releases to the environment and also strategies to mitigate any impacts identified under Step 5.
This document describes the approach and results of Steps 1 through 5.  The draft analyses and results presented in this report will be used to inform the identification of potential preventive and mitigation strategies under Step 6.

EPA Response to Peer Review Comments

From December 2010 to January 2011, Eastern Research Group, Inc. (ERG), an EPA contractor, organized and facilitated an independent letter peer review of  EPA's Preliminary Draft Definition of Solid Waste Final Rule Environmental Justice Analysis, following the guidelines in EPA's Peer Review Handbook, Third Edition (http://www.epa.gov/peerreview/). 
In the first stage of this process, ERG searched for and identified qualified candidates who, collectively, met the following technical selection criteria provided by EPA and who had no conflict of interest in performing the review: 
   * Knowledge, expertise, and experience with conducting Environmental Justice analyses
   * Familiarity with RCRA
   * Expertise in statistics
   * Familiarity with EPA's Solid Waste Rule
After EPA confirmed that the credentials of the pool of candidate reviewers proposed by ERG fulfilled EPA's selection criteria, ERG then selected three experts from this pool to conduct the review:
   * Dr. Dorothy M. Daley, University of Kansas
   * Dr. Deeohn Ferris, Sustainable Community Development Group, Inc.
   * Dr. Diane S. Henshel, Henshel EnviroComm Consulting and Indiana University
ERG provided the reviewers with a charge prepared by EPA, which asked for their individual comments on the various aspects of the document, and with review instructions prepared by ERG. Reviewers were also provided with EPA's Interim Guidance on Considering Environmental Justice During the Development of an Action, as well as a link to EPA's web site (http://www.epa.gov/epawaste/hazard/dsw/rulemaking.htm) for additional background information.
Reviewers then worked independently over a four-week period to prepare individual written comments, which they submitted to ERG. ERG checked the reviewers' written comments to ensure that each reviewer had provided a substantive response to each charge question within their area of expertise. ERG did not edit the reviewers' comments in any way, but did format reviewers' comments as needed for consistency in this final peer review summary report. 
In general, the reviewers thought that the Draft Definition of Solid Waste Final Rule Environmental Justice Analysis adequately reviews, presents, analyzes, and summarizes the available data. 

All reviewers offered suggestions for improving the readability of the document, including adding a glossary and list of abbreviations and acronyms, making the transition from different sections more clear, and better explaining the figures. Two of the three reviewers said that the potential regulatory scenarios were plausible. The third reviewer noted that the "unlikely" scenario of a generator switching from managing hazardous secondary material within the United States to exporting it for recycling under the DSW rule was not necessarily unlikely and thought that the potential impacts in foreign countries should be discussed. The reviewer also offered two additional scenarios for EPA to consider: (1) a generator that consistently functions in violation of the regulations and (2) a generator that goes out of business after accumulating hazardous secondary materials. 

One reviewer noted that the document did not include any discussion or analysis of the implications of each assumption for total exposure and estimated changes in risk values for the potential environmental justice communities. Another reviewer suggested taking the example situations and quantifying the potential impact on the neighboring community. 

The reviewers offered suggestions for improvements, but generally agreed with EPA's analysis of demographics of potentially affected communities. Two reviewers said that comparing potentially affected areas to non-affected areas would be useful. Two reviewers said that comparing host metropolitan areas for facilities would be useful. One reviewer suggested that at least one other stressor, such as TRI facilities or road density, should be added to the analysis. One reviewer suggested assessing the environmental justice impacts of the baseline (RCRA's approach to recycling and disposal).

EPA's initial response to each of the peer review comments can be found in Appendix H to this document.   EPA's responses fall into four general categories:
   1. Immediate revisions that have already been incorporated into this document.
   2. Decisions deferred until after the public comments are received.
   3. Revisions EPA does not agree with or otherwise not intend to pursue.
   4. Comments that are "not applicable" either because they are  general comments not requiring a response, or because they are comments pertaining to the 2008 DSW final rule rather on the analysis
If the public would like to commit on how EPA addressed the peer review comment or on what additional analyses EPA should perform, these commits should be submitted to docket number EPA-HQ-RCRA-2010-0742 as part of the comments on the upcoming proposal.  Information on how to submit comments can be found at www.regulations.gov or in the Federal Register notice for the new 2011 DSW proposal.

Immediate revisions that have already been incorporated into this document

The majority of revisions that have already been incorporated into this document are editorial and formatting changes to improve consistency and readability.  Other changes include clarifications of terms and analytic approaches to make the analysis more transparent.  For a full list of revisions that have done in response to peer review comments, see Attachment H.

Revisions deferred until after the public comments are received.
In many cases, EPA has deferred a decision on making a suggested revision until the Agency receives public comments on the new proposal.   EPA's decision to defer these changes is based on a consideration of the need to use resources efficiently and the need to incorporate public comments into the development of the environmental justice analysis.

Most of the deferred revisions are ones that would affect the demographic analysis presented in Chapter 4 of this report.  Because reviewers generally agreed with EPA approach to this analysis, EPA has determined that it is adequate for the purposes of obtaining public comment.    In order to make efficient use of resources, EPA plans to make all adjustments to the analysis at the same time (responding to both peer review and public comments).   Examples of adjustments EPA will consider include:

   * Perform the demographic analysis using different radius lengths besides 3 kilometers
   * Use twice the poverty level, instead of the poverty level, to designate "low income" populations
   * Consider other toxic stressors, such as TRI facilities, in a cluster analysis
   * Consider additional damage cases in the analysis
For a full list of revisions that EPA has deferred until after EPA receives public comment can be found in Attachment H.


Revisions EPA does not agree with or otherwise not intend to pursue

In a few cases, EPA does not plan to make revisions in response to comment either because the Agency does not agree with the comment, or because the Agency has already determined that such a revision is not feasible giving the timeframe and resources available.  Examples of such revisions include:

   * Perform a separate baseline analysis of environmental justice impacts of RCRA Subtitle C.   EPA did not pursue this because the regulatory comparison between hazardous waste regulations and the 2008 DSW rule already includes a qualitative discussion of the baseline impacts at hazardous waste, since the discussion includes the benefits of the 2008 DSW rule (which would mirror the "impacts" of hazardous waste regulations).  In addition, hazardous waste facilities are one of the categories in the demographic analysis. To address this comment, EPA added discussion to make this clearer.

   * Perform a quantitative risk analysis at an "example" DSW facility.  EPA did not pursue this because it would be too difficult to pick "example" scenarios that would cover the range of possibilities, and the analysis would be too sensitive to potential bias in upfront assumptions.

   * Verify the coordinates of the DSW facilities using Global Positioning System (GPS)  EPA did not pursue this because it is not feasible giving the time and resources available.  EPA addressed this comment by noting the potential inaccuracies in the facility addresses.
For a full list of revisions that EPA does not intend to pursue can be found in Attachment H.

Comments that EPA has determined are not applicable

In some cases EPA has determined a comment is not applicable because either it is a general statement that does not require a response, or because it is a comment that is more specific to the 2008 DSW final rule than to the analysis itself.  For a full list of comments that EPA has determined are not applicable, see Attachment H.



      4.2 Purpose and Organization of Document
This report presents EPA's draft analysis of EJ issues under the 2008 DSW final rule, which has been performed in accordance with the DSW EJ Analysis Methodology presented in Table 1.1.  The remainder of this report is organized as follows:
Chapter 2 describes the hazards associated with HSMs when generated and managed under the 2008 DSW final rule.  It first describes the types, quantities, and health hazards associated with HSMs and the types of hazards (e.g., releases) that could occur at generator, transporter, and intermediate, and reclaimer facilities managing such materials.  It then presents a qualitative analysis that compares the control of these hazards under the 2008 DSW final rule to the hazardous waste regulations (i.e., baseline).  The chapter examines all reasonably likely scenarios in which HSMs may potentially be generated, transported, and reclaimed under the baseline and 2008 DSW final rule, and qualitatively assesses their potential impacts and hazards respectively, and identifies potential incremental hazards and hazard reduction the 2008 DSW final rule.
Chapter 3 identifies those facilities that already have claimed the DSW exclusion (i.e., facilities that have submitted a notification to EPA or the state), and that may be likely to manage waste under the DSW exclusion.  EPA believes that facilities most likely to claim the exclusion are those that are currently generating or reclaiming their HSM under the existing hazardous waste regulations.  In addition, some facilities currently recycling non-hazardous industrial waste that is similar in character and/or composition to HSMs have equipment and processes that may be easily adapted to recycling HSMs, and therefore may be likely to begin recycling HSMs under the DSW exclusion.
Chapter 4 presents an analysis of demographic data about the communities surrounding the facilities identified in Chapter 3.  EPA performed the analysis by examining the demographics of the community surrounding each facility, including race, income level, and children under five years old.  EPA then compared the demographics of each community to those at the national and state levels, and by urban and rural communities, to identify communities that may potentially have EJ concerns.
Chapter 5 describes other factors that could affect the vulnerability of communities, such as populations susceptible to DSW hazards, multiple and cumulative effects of releases and contamination, and unique exposure pathways.  
Chapter 6 summarizes the conclusions from the EJ draft analysis described in this report.
      
Types of Exclusions Established by October 2008 DSW Final Rule
   *    Generator-Controlled Exclusion (GCE) - Materials that are generated and transferred to another company for legitimate reclamation under specific conditions;
   *    Transfer-Based Exclusion (TBE) - Materials that are generated and legitimately reclaimed under the control of the generator (i.e., generated and reclaimed on-site, by the same company, or under "tolling" agreements); and
   *    Petition-Based Exclusion (PBE)- Materials that EPA or an authorized state determines to be non-wastes through a case-by-case petition process.

Hazard CharacterizationOverview of Scenarios under the DSW Exclusion
This section describes the scenarios that EPA used to identify and analyze the hazards associated with managing HSM under the hazardous waste regulations (the baseline) and DSW exclusions.  Generators, transporters, and intermediate and reclamation facilities may manage HSMs in several different ways both under existing hazardous waste regulations, referred to as the baseline, and under the 2008 DSW exclusions.  Each scenario represents a different combination (or set of combinations) of baseline and DSW practices.  The baseline practices reflect ways that generators and facilities are managing HSMs under the existing hazardous waste regulations (i.e., before they claim an exclusion).  The DSW practices reflect ways that these same generators and facilities are managing, or might manage, HSMs after they claim an exclusion under the 2008 DSW final rule.  
EPA developed these scenarios based on input from EPA staff with expertise in hazardous waste generation, recycling, and the provisions of the DSW rule. EPA first reviewed the current state of generation of recyclable hazardous wastes and management practices for those waste, including on-site and off-site storage, transportation, treatment, disposal, and recycling.  For off-site recycling, EPA considered recycling in both domestic and foreign facilities.  EPA then analyzed each provision of the DSW rule and identified how it might impact generation and management practices.  This analysis included reviewing comments on the proposed rule and comments submitted during the litigation process as well as the judgment of EPA staff.  EPA then grouped the possible changes in hazardous waste generation and management resulting from the rule into 8 scenarios based on observed similarities.
Under the 2008 DSW final rule, EPA promulgated three types of conditional exclusions from the Subtitle C hazardous waste regulations for persons who generate or reclaim HSMs.  These are described in the box to the right.  EPA established different requirements for each type of exclusion.  These different requirements are expected to affect how each type of generator/facility modifies its generation and management of HSMs based on the type of exclusion claimed.  The scenarios below were developed based on the expected impacts of the Generator-Controlled Exclusion (GCE) and Transfer-Based Exclusion (TBE), and each scenario describes whether it is applicable to facilities operating under the GCE, TBE, or both.  Petition-Based Exclusions are not considered in this analysis because they are granted on a case-by-case basis, and the exact nature of such exclusions cannot be determined until petitions are granted.  At the time this report was prepared, no petitions for a non-waste exclusion under the 2008 DSW rule had been submitted.  The type of exclusion claimed under each scenario is used in Section 2.4 of this report to help compare the regulatory framework between hazardous waste regulations and the 2008 DSW final rule.
For each scenario, EPA also considered whether the facility is permitted under RCRA, and the descriptions below identify the potential RCRA-permit status of the facility.  The RCRA permit status of facilities under each scenario is used in Section 2.4 of this report to help compare the regulatory framework between the hazardous waste regulations and the 2008 DSW final rule.
EPA has identified the following eight scenarios that it considers likely to occur.  Note that EPA identified additional potential scenarios, but deemed them unlikely to occur.  These scenarios are briefly described at the end of this section, but are not addressed further in this document.
Scenario 1:  Generator continues current recycling practices under GCE or TBE.  This scenario involves a generator that has been reclaiming its HSM under the hazardous waste regulations, and opts to continue these practices under either the GCE or TBE.  This could include, for example, a generator that reclaims onsite under the baseline and claims the GCE to continue reclaiming onsite, or a generator that exports its HSM under the baseline and claims the TBE to continue exporting the HSM.
Scenario 2:  Generator switches from off-site treatment/disposal to on-site reclamation.  This scenario involves a generator that has been shipping its HSM to an off-site Treatment, Storage, or Disposal Facility (TSDF) for treatment then /disposal under the hazardous waste regulations, but opts to reclaim that HSM onsite under the GCE. 
Scenario 3:  Generator switches from off-site treatment/disposal to off-site recycling under the control of the generator.  This scenario involves a generator that has been shipping its HSM to an offsite TSDF for treatment followed by /disposal under the hazardous waste regulations, but opts to ship that HSM to an offsite facility that it controls for reclamation under the GCE.  
Scenario 4:  Generator switches from off-site treatment/disposal to off-site recycling at a RCRA-permitted facility.  This scenario involves a generator that has been shipping its HSM to an offsite TSDF for treatment followed by /disposal under the hazardous waste regulations, but opts to ship that HSM to an offsite RCRA-permitted TSDF for reclamation under the TBE.  
Scenario 5:  Generator switches from off-site treatment/disposal to off-site recycling at a U.S. facility without a RCRA permit.  This scenario involves a generator that has been shipping its HSM to an offsite TSDF for treatment followed by disposal under the hazardous waste regulations, but opts to ship that HSM to an offsite facility in the United States without a RCRA permit for reclamation under the TBE.  
Scenario 6:  Generator switches from off-site disposal to exporting for recycling.  This scenario involves a generator that has been shipping its HSM to an offsite TSDF for disposal under the hazardous waste regulations, but opts to ship that HSM to for recycling to a facility outside the United States for reclamation under the TBE.  
Scenario 7:  Generator switches from off-site recycling at a facility without a permit  to another type of recycling under the 2008 DSW final rule.  This scenario involves a generator that has been shipping its HSM for reclamation to an offsite TSDF in the United States without a RCRA permit under the hazardous waste regulations, but opts to have the hazardous secondary material reclaimed at a different type of facility under the TBE.  This could include, for example, a generator that ships HSM offsite for reclamation at a TSDF in the United States without a RCRA permit in the baseline, but changes its practice to ship the HSM offsite for reclamation at a RCRA permitted facility under the TBE, or changes its practice to export the HSM for reclamation at a recycling facility outside the U.S. under the TBE.
Scenario 8:  Generator switches from off-site recycling at a RCRA-permitted facility or exporting waste for reclamation to another country to another type of recycling under the 2008 DSW final rule.  This scenario involves a generator that has been shipping its HSM to an offsite RCRA-permitted TSDF or exporting it to a foreign reclamation facility under the hazardous waste regulations, but opts to have the HSM l reclaimed at a different type of facility under the GCE or TBE.  This could include, for example, a generator that HSM changes its practice to reclaim the hazardous secondary material onsite or at an offsite facility (without a permit) under its control, and claims the GCE.  The generator may also choose to ship its HSM offsite for reclamation at either a recycling facility in the United States without a RCRA permit or a reclamation facility outside the United States and claim the TBE.  Similarly, a generator that exports HSM for reclamation at a reclamation facility outside the United States in the baseline, may change its practice to reclaim the HSM onsite or at an offsite facility under its control, and claim the GCE.  The generator may also choose to ship its HSM offsite for reclamation at either a RCRA-permitted TSDF or a recycling facility in the United States without a RCRA permit and claim the TBE.  
Unlikely Scenarios:  As mentioned above, EPA identified additional potential scenarios that it deemed unlikely to occur. These unlikely scenarios include:
A generator that has been reclaiming HSMs onsite under the hazardous waste regulations, but opts to ship that HSM to an offsite facility that it controls for reclamation under the GCE.  EPA believes this scenario is unlikely because switching from on-site recycling to off-site recycling is likely to result in additional transportation costs.  Generators that make this type of change are unlikely to do so as a result of the 2008 DSW final rule.
A generator that has been reclaiming HSMs  onsite under the hazardous waste regulations, but opts to ship that HSM  to an offsite RCRA-permitted TSDF, an offsite recycling facility  in the United States without a RCRA permit, or a reclamation facility  outside the United States for reclamation under the TBE.  EPA believes this scenario is unlikely because switching from on-site recycling to off-site recycling is likely to result in additional transportation costs.  Generators that make this type of change are unlikely to do so as a result of the 2008 DSW final rule.
 Both of these unlikely scenarios are based largely on the assumption that transportation costs would discourage generators from switching from on-site to off-site reclamation under the exclusions.  Although HSM under the exclusions is no longer a hazardous waste, it likely would still qualify as a DOT hazardous material and be subject to transportation requirements similar to those applicable to hazardous waste.  Because of this, EPA assumes that, in general, generators under the exclusions face the same general level of transportation costs as under the baseline, and therefore are unlikely to find a financial benefit to switching to off-site reclamation.
 In addition, other factors may also discourage these generators from switching to off-site reclamation.  EPA assumes that generators currently reclaiming HSM on site have invested time and resources to purchase and operate reclamation equipment.  The costs and inconvenience of shutting down such operations and dismantling and removing the equipment could be a disincentive to switching to off-site reclamation.  In addition, some generators' reclamation activities and equipment may be highly integrated into their manufacturing or other processes, such that a change in HSM management would be infeasible or impractical.  For example, some generators may be operating distillation units and feeding the distillate back into production processes as a key ingredient.  Further, some generators may have pre-existing agreements to receive HSM from off-site sources for reclamation or to supply the reclaimed HSM to third parties. 
 EPA recognizes that these assumptions may not apply to all generators performing reclamation on site.  EPA acknowledges that, in some instances, generators may have sufficient incentive to switch to off-site reclamation.  For example, if the cost of off-site reclamation is low enough, these lower costs could offset the additional costs of transportation and other costs associated with switching to off-site reclamation, and provide the generator with an incentive to switch to off-site reclamation.  
Table 2.1.  Scenarios under Baseline and DSW Exclusions
                                   Baseline
                                       
                                 DSW Practices
         Scenario 1:  Generator continues current recycling practices
Generator reclaims material onsite under hazardous waste regulations 
                                       
Generator reclaims material onsite under GCE 
Generator sends material offsite for reclamation to RCRA-permitted facility under hazardous waste regulations

Generator sends material offsite for reclamation at a  RCRA-permitted facility under TBE
Generator exports material under hazardous waste regulations for reclamation in another country

Generator exports material under the TBE for reclamation in another country
 Scenario 2:  Generator switches from off-site disposal to on-site reclamation
Generator sends material offsite to a RCRA permitted facility for incineration or landfilling under hazardous waste regulations

Generator reclaims material onsite under GCE 
Scenario 3: Generator switches from off-site disposal to off-site recycling under the control of the generator
Generator sends material offsite to a RCRA permitted facility for incineration or landfilling under hazardous waste regulations

Generator sends material offsite for reclamation at a facility that it controls under GCE
Scenario 4: Generator switches from off-site disposal to off-site recycling at a RCRA-permitted facility
Generator sends material offsite to a RCRA permitted facility for incineration or landfilling under hazardous waste regulations

Generator sends material offsite for reclamation at a  RCRA-permitted facility under TBE
Scenario 5: Generator switches from off-site disposal to off-site recycling at a U.S. facility without a RCRA permit
Generator sends material offsite to a RCRA permitted facility for incineration or landfilling under hazardous waste regulations

Generator sends material offsite for reclamation at a facility in the United States without a RCRA permit under TBE
Scenario 6: Generator switches from off-site disposal to exporting for recycling
Generator sends material offsite to a RCRA permitted facility for incineration or landfilling under hazardous waste regulations

Generator exports material under the TBE for reclamation in another country
Scenario 7: Generator switches from off-site recycling at a facility without a permit to another type of recycling under the 2008 DSW final rule
Generator sends material offsite for reclamation at a facility in the United States without a RCRA permit under hazardous waste regulations

   *  Generator sends material offsite for reclamation at a  facility under GCE, or
   *  Generator exports material under the TBE for reclamation in another country, or
   *  Generator sends material offsite for reclamation at a RCRA permitted facility under TBE, or
   *  Generator sends material offsite for reclamation at a facility in the United States without a RCRA permit under TBE
Scenario 8:  Generator switches from off-site recycling at a RCRA-permitted facility or exporting waste for recycling to another type of recycling under the 2008 DSW final rule
Generator sends material offsite for reclamation to RCRA-permitted facility under hazardous waste regulations 

   *  Generator reclaims material onsite under GCE, or
   *  Generator sends material offsite for reclamation at a facility that it controls under GCE, or
   *  Generator sends material offsite for reclamation at a facility in the United States without a RCRA permit under TBE, or
   *  Generator exports material under the TBE for reclamation in another country
Generator exports material under hazardous waste regulations for reclamation in another country

   *  Generator reclaims material onsite under GCE, or
   *  Generator sends material offsite for reclamation at facility under GCE, or
   *  Generator sends material offsite for reclamation at a RCRA permitted facility under TBE, or
   *  Generator sends material offsite for reclamation at a facility in the United States without a RCRA permit under TBE
General Hazards Associated with Hazardous Secondary Material
This section describes the general hazards associated with HSMs when managed by recycling.  In this section, EPA presents the potential hazards associated with HSMs independent of health and safety and regulatory controls that might be placed on HSMs.  Communities in which generation, transportation, or reclamation of HSM under the DSW rule is conducted may be at risk of exposure to the hazards associated with HSM.  Section 2.2.1 identifies the types, quantities, and properties of HSM that are generated and reclaimed nationally and describes their chemical and physical properties.  Because of the wide variety of HSMs that may be recycled, not all of them are addressed in this section.  Section 2.2.1 also identifies the types of HSMs that are the focus of this section, and provides the reasoning behind why these materials were selected based on their quantities and properties.  
Section 2.2.2 contains a description of the hazards associated with selected HSMs based on their properties.  While this section focuses on the hazards associated with these HSMs, the EJ analysis presented in this report covers all HSMs that may be recycled under the DSW exclusions.
Section 2.2.3 describes the processes associated with the generation, storage, and recycling of the selected HSMs, and how those processes can result in potential hazards to human health and the environment. 
Types and Quantities of Hazardous Secondary Materials
This section describes the types, quantities, and properties of HSMs.  evaluated  It identifies the types and quantities of HSMs  generated, and using that information, identifies two specific HSMs  that are the selected as the focus of this report -- spent solvents and electric arc furnace dust.   It also describes the quantities and characteristics of these two wastes that resulted in their selection as a focus of this report.  
For the selected wastes, Section 2.2.2 describes their properties, including the potential human health and environmental hazards they pose, contamination pathways, and human health effects.  
            Types and Quantities of Hazardous Secondary Material
Each year, many types of hazardous waste are recycled, each possessing distinct quantities and properties.  In 2007, the most recent year for which comprehensive information about the generation and management of hazardous waste is available, over 370 types of hazardous waste codes contained in 40 CFR 261 were recycled.  These waste codes include a wide variety of materials, including aqueous streams, referred to as wastewaters, streams that contain organic liquids, or physically solid materials, referred to as nonwastewaters.  These materials also include a wide variety of wastes from manufacturing and other processes, and they contain many different chemicals, including halogenated organic compounds, nonhalogenated organic compounds, metals, and other contaminants.  
In 2007, about 16,000 facilities generated 32.3 million tons of hazardous waste.  Of this, some 2 million tons were recycled.  Figure 1 shows the waste codes associated with the largest amounts of recycled hazardous wastes in 2007 were electric arc furnace dust and spent solvents.  



EPA's An Assessment of Environmental Problems Associated With Recycling of Hazardous Secondary Materials (hereafter referred to as the Environmental Problems Study; U.S. EPA, 2007) contains information about environmental damage cases and the types of potential hazards from the mismanagement of HSMs.  The most common types of secondary materials associated with the damage cases evaluated in the Environmental Problems Study were scrap metals (17%), used oil (15%) solvents (14%) and non-ferrous metals (13%).
EPA selected two materials, solvents and electric arc furnace dust, as a focus of this report because they represent a relatively large amount of HSMs that would be eligible for exclusion under the 2008 DSW final rule, as well as represent a variety of characteristics of HSMs, as described below.
Specifically, solvent wastes were selected as a focus of this report because of their prevalence in the damage cases documented in the Environmental Problems Study, the large amount of solvents currently recycled, and the potential hazards posed by solvents.  The potential hazards posed by solvents are discussed in the Section 2.2.2.  In addition, solvents that are recycled are typically in a liquid state, and usually contain volatile organic chemicals, which present particular management challenges associated with the storage of liquids and fugitive air emissions.  Solvents also include both halogenated and nonhalogenated organic chemicals, which represent a broad range of chemicals and associated hazards.   
Electric arc furnace dust is a focus of this report because it was the most commonly recycled material in 2007.  In addition, selecting electric arc furnace dust complements the selection of solvent wastes because these two types of HSMs represent a variety of characteristics of HSMs.  Electric arc furnace dust is usually in a solid state and presents different management challenges than liquid solvents.  For example, electric arc furnace dust may be stored in waste piles, while solvents are generally stored in tanks or drums.  Electric arc furnace dust is also often present as a dust, which presents hazards associated with wind-blown dust.  In addition, this HSM contains metals, a class of potential contaminants that is generally considered to pose hazards different from the organic chemicals found in solvents.  By selecting solvents and electric arc furnace dust, this report can assess a variety of potential hazards and management challenges.  The potential hazards associated with solvents and electric arc furnace dust and their recycling are discussed further below.    
Other secondary materials associated with damage cases, including scrap metals and used oil, are not a focus of this report because they are already covered by exclusions or special management standards and their regulation and management are not expected to be significantly impacted by the 2008 DSW final rule.  Non-ferrous metals are not a focus because they are less prevalent in the damage cases than solvents, and are not currently recycled in the quantities similar to electric arc furnace dust.   In addition, some HSM containing non-ferrous metals, such as mercury lamps and mercury-containing equipment, are also covered under the Universal Waste regulations, which facilitate the environmentally sound collection and proper recycling or treatment of these wastes.  The management of hazardous wastes already subject to the Universal Waste standards is not expected to be impacted by the 2008 DSW final rule as wastes subject to full hazardous waste regulatory controls prior to the DSW rule promulgation.  Lead-acid batteries are similarly not a focus of this report because they are also subject to the Universal Waste standards. 
Hazardous Properties of HSMs:  Solvents and Electric Arc Furnace Dust
This section provides an overview of the hazardous properties of the two HSMs that are the focus of this study: solvents and electric arc furnace dust.  It discusses the media, exposure routes, and health effects to understand the hazardous properties of these HSMs and how they can impact human health and the environment.  It then presents an overview of the health effects associated with solvents and electric arc furnace dust, including the specific health effects associated with selected chemicals they contain, including whether they are expected to present a fire or explosion hazard.  
The chemicals used as solvents can generally be classified into two broad groups: halogenated volatile organics and nonhalogenated volatile organics.  The chemicals within these groups tend to share similar characteristics, manufacturing processes, uses, and health effects.  Because these groups contain a variety of chemicals, this report identifies a single chemical from each group that is generally representative of the characteristics and health effects of the group, and describes the specific health effects for them.  More detailed information about the health effects for other solvent chemicals can be found in other sources, such as EPA's Integrated Risk Information System (IRIS) at http://www.epa.gov/IRIS/ and the Agency for Toxic Substances and Disease Registry website (http://www.atsdr.cdc.gov/ ).  
For electric arc furnace dust, the health effects are expected to be related to the toxic metals it contains.  40 CFR Part 261, Appendix VII, "Basis for Listing Hazardous Waste," indicates that electric arc furnace dust is listed as hazardous because of lead, hexavalent chromium and cadmium.  This report describes the health effects associated with each of these metals.
Other hazardous properties of other secondary materials commonly associated with damage cases, such as scrap metals, used oil, non-ferrous metals, mercury lamps and mercury-containing equipment, and lead-acid batteries are not a focus of this report because they are already covered by exclusions or special management standards when recycled, and their management is not expected to be impacted by the 2008 DSW final rule.
Media, Exposure Route, and Health Effects Hazard Associated with Recycling of HSM
Exposure Routes by Media

Contaminated Soil:
   * Dermal (skin contact with contaminated soil)
   * Oral (ingestion of contaminated soil)
   * Inhalation (volatilization of contaminants from soil)
   * Eye (windblown dust, volatilization of contaminants from soil)

Contaminated Air:
   * Inhalation
   * Eye

Contaminated Water:
   * Oral (ingestion of contaminated water)
   * Dermal (skin contact with contaminated water)
   * Inhalation (volatilization of contaminants from water)
   * Eye (volatilization of contaminants from water)

Toxic wastes are characterized using risk assessment; therefore this section uses terminology that is common in risk assessment.  A risk assessment usually begins with hazard identification, which is the process of determining whether exposure to a chemical agent can cause an increase in the incidence of a particular adverse health effect (e.g., cancer, birth defects) and whether the adverse health effect is likely to occur in humans. Exposure assessment includes the identification of which media, such as soil, air, or water, might come into contact with humans or other receptors.  The media affects the exposure routes, such as inhalation or skin contact, that should be considered.  The exposure route affects the type of symptoms the exposed person or other receptor experiences.  For example, contamination in air could result in inhalation exposures that have respiratory effects, while contamination in water could result in ingestions that have gastrointestinal effects.  For each example hazard within a category, the most prevalent exposure media are discussed below, as well as the health effects associated with different exposure routes.  The media, exposure routes, and health effects are important to determining the extent to which recycling under the DSW rule impacts the communities in which HSM generation, transportation, and reclamation occur.Exposure Media (air, water, and soil) - Accidents and improper handling of HSMs have the potential to contaminate water, air, and soil.  Of the recycling related damage cases, soil and groundwater contamination events accounted for 77% of cases, surface water contamination accounted for 17% of cases, and releases to the air accounted for 11% cases. 
Exposure Route - Exposure routes include inhalation, dermal (skin), eye, and ingestion (oral).  The frequency and duration of potential exposure are also an important consideration.  For example, acute exposures are short term, high dose exposures, while chronic exposures are long term, lower dose exposures.
Health Effects  -  Ignitable and reactive wastes pose physical hazards, such as explosion and fire which have the potential to directly cause bodily harm.  Explosions and fire can also create exposure pathways for chemical exposures and sources of environmental contamination.  For example, toxic fumes from a fire can have effects on a population nearby and toxic releases from the event can result in longer term lower level exposures that may be related to chronic effects.  
Toxic wastes also can cause other types of adverse human health effects which EPA breaks into two broad categories: cancer and non-cancer.  The non-cancer health effects can be classified according to what biological system or organ is affected; for example, developmental, reproductive, neurological, immune system, circulatory system, liver, gastrointestinal, or other effects.  Health effects can also have clinical descriptions, such as blurred vision, nausea, and headache.  In general the sometimes extensive list of clinical symptoms can be grouped based on what biological system is being affected to cause the symptom set.
Solvents
Solvents may contaminate soil or groundwater from leaks, spills or other releases.  Because they tend to be volatile, they also are likely to be released to the air by advection and dispersion into the atmosphere.  Solvents may cause exposure by all of the routes considered in this report, including inhalation, dermal (skin), eye, and ingestion (oral).  Solvent chemicals may have both acute and chronic health effects, and may be ignitable or explosive, presenting fire hazards.
Examples of Halogenated Solvents Uses:
* Brake cleaners
* Dry cleaning
* Food processing 
* Household cleaners
* Metal cleaning 
* Synthesis of other chemicals
* Water repellants
* Silicone lubricants
* Spot removers

Solvents can generally be divided between halogenated and non-halogenated based on their use and potential hazards.  For halogenated and nonhalogenated solvents, the sections below describe the chemicals typically contained in them, and the hazards associated with an example that is representative of the type of solvent.
            Halogenated Solvents
Agents - Halogenated solvents used in degreasing include: tetrachloroethylene (PERC), trichloroethylene, methylene chloride, 1,1,1-trichloroethane, carbon tetrachloride, and chlorinated fluorocarbons.
Dry cleaning solvents and brake cleaners include halogenated solvents, such as: tetrachloroethylene (PERC), trichloroethylene, methylene chloride, 1,1,1-trichloroethane, 1,1,2-trichloroethane, 1,2,2-trifluoroethane, ortho-dichlorobenzene, trichlorofluoromethane, 1,1,2-trichloroethane, and chlorobenzene.
Example agent - tetrachloroethylene (PERC). 
Environmental Fate  -  Tetrachloroethylene is volatile and releases can be airborne.  When released into the subsurface, it may contaminate soil and groundwater.  Releases to surface soil and water may also volatilize resulting in releases to the atmosphere.  Soil and water bacteria will break it down slowly, so in soil and subsurface water, it may last for months to years.  When released into the atmosphere, it may be moderately degraded by reaction with photochemically produced hydroxyl radicals. 
Environmental Toxicity  -  Based on fish studies, tetrachloroethylene is expected to be toxic to aquatic life.  It does bioaccumulate in fish to a limited extent. Chronic and acute effects on plants, birds, or land animals have not been determined, but appear to be low.
Acute Exposure Human Health Effects  -  
Inhalation  -  Irritating to the upper respiratory tract. Giddiness, headache, intoxication, nausea and vomiting may follow the inhalation of large amounts, while massive amounts can cause breathing arrest, liver and kidney damage, and death. Concentrations of 600 parts per million (ppm) and more can affect the central nervous system after a few minutes. 
Ingestion  -  Not highly toxic by this route because of low water solubility. Used as an oral dosage for hookworm (1 to 4 ml).  Causes abdominal pain, nausea, diarrhea, headache, and dizziness. 
Skin Contact  -  Causes irritation to the skin. Symptoms include redness, itching, and pain. May be absorbed through the skin with possible systemic effects. 
Eye Contact  -  Causes irritation, redness, and pain. 
Aggravation of Pre-existing Conditions  -  Persons with pre-existing skin disorders or eye problems or impaired liver or kidney function may be more susceptible to the effects of this substance. The use of alcoholic beverages enhances the toxic effects.
Chronic exposure human health effects  -  May cause liver, kidney or central nervous system damage after repeated or prolonged exposures.  Reasonably anticipated to be a human carcinogen based on animal studies. 
Fire - Not considered to be a fire hazard, but becomes hazardous in a fire situation because of vapor generation and possible degradation to phosgene (highly toxic) and hydrogen chloride (corrosive). Vapors are heavier than air and collect in low-lying areas. 
Explosion - Not considered an explosive hazard. Containers may explode, however, when involved in a fire.
            Non-Halogenated Solvents
Agents- Paint thinners include: acetone, xylene, ethyl acetate, ethyl benzene, ethyl ether, methyl isobutyl, ketone, n-butyl alcohol, cyclohexane, and methanol.
Carburetor dip cleaner includes: cresols, cresylic acid, and nitrobenzene.
Lacquer thinners include: toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine, benzene, 2-ethoxyethanol, and 2-nitropropane.
Example agent - benzene. Environmental Fate  -  When released to the soil or water, benzene will rapidly begin to volatilize.  However, benzene also migrates in soil and in groundwater.  Its airborne levels can be reduced by rain or water spray.  Benzene in the atmosphere will photo-degrade with a calculated half-life of 13.4 days.  This is accelerated in polluted atmospheres containing nitrogen or sulfur oxides.  By-products include phenol, nitrophenols, nitrobenzene, formic acid, and peroxyacetyl nitrate. It is a "precursor" hydrocarbon leading to the formation of photochemical smog.  Benzene biodegrades in soils and ground waters (half-life 16-28 days) under aerobic conditions.  Limited degradation occurs under anaerobic conditions. 
Environmental Toxicity  -  Benzene has high acute toxic effects on aquatic life. Long-term effects on marine life can mean shortened lifespan, reproductive problems, lower fertility and changes in appearance or behavior. It can cause death in plants and roots and damage to the leaves of many agricultural crops.
Acute exposure human health effects 
   * Inhalation  -  Excessive inhalation may result in heartbeat irregularities and adverse central nervous system effects, including headache, sleepiness, dizziness, nausea, loss of coordination, and in extreme conditions, coma and/or death. Additional adverse inhalation effects may also include long-term damage to the blood forming system, kidney and liver damage, and/or cancer (leukemia).
Ingestion  -  Ingestion of benzene may result in adverse central nervous system effects, including headache, sleepiness, dizziness, nausea, loss of coordination, and in extreme conditions, coma and/or death.  Ingestion may also cause kidney and liver damage and blood disorders.  Small amounts, if aspirated into the lungs, may cause mild to severe pulmonary injury.
Skin  -  Benzene may be rapidly absorbed through the skin.  Prolonged and/or repeated skin contact may cause mild to severe irritation/dermatitis and chemical blistering.  Prolonged contact may also cause skin sensitization and secondary skin infections.
Eye  -  Contact with liquid and high concentrations of vapors are irritating to the eyes.
Chronic exposure human health effects  -  Long-term exposure has been associated with certain types of leukemia. The International Agency for Research on Cancer (IARC) and the Occupational Safety and Health Administration (OSHA) consider benzene to be a human carcinogen.  EPA has classified benzene as a Group A, known human carcinogen for all routes.  Chronic exposures have been reported to cause bone marrow abnormalities and adverse blood effects, including anemia. Progressive deterioration of the hematopoietic function expressed as a decrease in absolute lymphocyte count is the most sensitive indicator of benzene exposure.  Benzene also may cause fetotoxicity and teratogenicity. Chromosomal aberrations have been noted in animal tests.
Fire and container explosion hazards are serious when benzene is exposed to heat or flame. Vapor is heavier than air and may spread long distances. Distant ignition and flashback are possible.  Flammable liquid and vapor can accumulate static charge which can form an ignitable vapor-air mixture in a storage tank. Benzene will float on water and may travel to distant locations and/or spread fire.
Electric arc furnace dust
Agents- Electric arc furnace dust is comprised of a variety of metals, including iron, cadmium, zinc, calcium oxide, magnesium oxide, lead, silicone, manga -  -  - nese, copper, chromium, and aluminum.  This review focuses on electric arc furnace dust generally, as well as the hazards of hexavalent chromium, lead, and cadmium because these are the constituents for which electric arc furnace dust was listed as a hazardous waste.  The specific composition of electric arc furnace dust varies depending upon the type of material production from which it was generated (e.g., carbon steel or stainless steel manufacturing) and furnace additives.  
Environmental Fate[8]  -  Based on its various constituents, electric arc furnace dust is expected to be hazardous to the environment, and toxic to fish, animals, and plants.  It is also likely to persist in the environment for a long time, due to the insoluble and non-biodegradable nature of the toxic metals it contains.  Individual constituents (e.g., cadmium) may bioaccumulate in organisms via dissolved metal in the water column or through consumption of prey containing bioaccumulated metals.
Acute exposure human health effects
   * Inhalation  -  Respiratory tract irritation and/or sensitization (development of an allergy or sensitivity to a substance) may occur from acute inhalation exposure. 
   * Ingestion  -  Though ingestion is unlikely, it can lead to abdominal pain, vomiting, fever, and diarrhea.  Ingestion of large amounts can also elevate lead levels in the body; however, most health effects occur only after prolonged exposure to lead (see below).  
   * Eye  -  Electric arc furnace dust can cause irritation or inflammation of the eye; rubbing the eye upon exposure can damage the cornea.
   * Dermal  -  Electric arc furnace dust can cause irritation, skin lesions, and/or allergic reactions of the skin. 
Chronic exposure human health effects  -  Excessive, repeated exposure to electric arc furnace dust may cause allergic sensitization in the form of dermatitis and asthma, lung inflammation and damage (e.g., pneumonia, bronchitis, and siderosis [chronic inflammation of the lung]), nasal perforation and nasal cavity damage, eye inflammation, permanent central nervous system damage, kidney damage, liver damage, gout (inflammation of the joints), and lead poisoning.  The carcinogenicity of electric arc furnace dust as a whole has not been determined, though hexavalent chromium may cause cancer.  Furthermore, a study by Garaj-Vrhovac et al. indicates that electric arc furnace dust can cause DNA damage.   
Fire  -  Electric arc furnace dust is not flammable.
Explosion[11]  -  Accumulation of dust can lead to explosion if near an ignition source. 
Hexavalent Chromium  -  Inhalation: Chronic exposure via inhalation to hexavalent chromium may develop asthma or other respiratory problems, such as coughing, wheezing, chronic sneezing, bronchitis, and nasal perforation (holes).  Intermediate and chronic occupational exposure to hexavalent chromium may cause death due to noncancerous respiratory disease.  Occupational (work) exposure to hexavalent chromium can cause abdominal pain, nausea, and vomiting, most likely due to ingestion from breathing through the mouth.  Workers exposed to hexavalent chromium have experienced severe liver effects, such as cirrhosis.  Eye exposure to aerosols or dusts may cause eye effects, such as conjunctivitis (inflammation of the inner membrane of the eyelids).  High-level acute exposure to hexavalent chromium may lead to dizziness, headache, and weakness.  Workers exposed to hexavalent chromium have experienced changes in hormones and complications during pregnancy.  Occupational exposure to hexavalent chromium may also cause respiratory system cancers, primarily in the bronchi and nose.  
Ingestion: Ingestion of hexavalent chromium may lead to death.  Subjects who died of oral exposure experienced various symptoms, including respiratory effects, such as severe bronchitis and pulmonary edema (fluid in the lungs), cardiopulmonary effects, such as lowered blood pressure and heart rate, and gastrointestinal effects, such as nausea and vomiting.  Acute ingestion may also affect the blood, leading to effects, such as anemia.  Kidney damage and liver damage (evidenced by symptoms, such as jaundice) may occur upon acute, high-level oral exposure.  In humans, evidence of cancer from oral exposure is mixed, while hexavalent chromium has caused cancer in animals.  Chronic dermal exposure may lead to ulcerated skin, dermatitis, and burns. 
Lead  -  Generally, the toxicity of lead does not depend on the route of exposure (e.g., inhalation or ingestion).  Chronic exposure to high levels of lead may cause cerebrovascular disease, increased blood pressure and other cardiovascular problems, gastrointestinal effects, anemia (a blood disorder with symptoms, such as weakness and fatigue), dental caries (cavities) in children, kidney effects, lowered IQ and other neurotoxic effects (e.g., dizziness, memory loss), and hormonal effects.
Cadmium  -  Inhalation: Short-term, high-level inhalation exposure to cadmium can cause death in humans several days after exposure, ultimately caused by respiratory failure or other respiratory disease.  In general, inhalation exposure to large amounts of cadmium causes extreme respiratory irritation, which initially may begin with mild irritation of throat and mucous membranes, but up to 10 hours later becomes more severe with flu-like symptoms, such as chills and cough.  Several days later, symptoms include wheezing, persistent cough, malaise, anorexia, nausea, and abdominal pain.  The initial flu-like symptoms do not occur with a low-level, chronic exposure to cadmium.  However, chronic inhalation exposure over years can lead to decreases in lung function, emphysema and dyspnea (shortness of breath), or possibly death.  Lung function may recover after time, if exposure is removed.  There is some evidence that bones may be affected (e.g., through the development of osteoporosis) after chronic exposure to cadmium.  Cadmium is strongly linked to kidney effects when exposure levels are high, while there is weak evidence that cadmium can affect the immune system.  Animal studies show that inhaled cadmium can affect the offspring of exposed mothers by lowering their body weight, their ability to survive, and their neurobehavioral function (e.g., motor activity).  Long-term exposure to cadmium may cause cancer, most likely in the lung.   
Ingestion: Ingesting large quantities of cadmium can cause death.  High oral cadmium exposure has been associated with cardiovascular effects, such as heart attack and high blood pressure.  Human and animal studies show that large ingested amounts of cadmium cause gastrointestinal disturbances, such as nausea, vomiting, and abdominal cramps.  Cadmium ingestion can cause anemia if dietary iron intake is low.  Oral exposure is also associated with bone and kidney effects and neurological effects, such as lowered IQ.  Reproductive effects similar to those seen after inhalation exposure may occur, but information on effects in offspring of orally-exposed animals/humans is limited.   Most cancer studies have not found an increase in cancer among people or animals exposure orally to cadmium.  Cadmium has been shown to cause DNA damage. 
Hazards Associated with Recycling of HSM
This section describes some of the general activities that facilities commonly perform in handling HSMs, as well as some of the potential exposure media that may be associated with them.  These hazards may impact the communities in which these facilities are located.  The facilities described in this section include:
Generators of HSM
Transporters of HSM
Intermediate and reclamation facilities of HSM
Note that the descriptions in this section are intended to be general and do not capture all of the different handling practices and hazards that may occur at a given site.  
This section also uses the hazard information from Section 2.2.2 to identify potential hazards associated with the activities identified in this section. These hazards are being considered independently of any regulation to mitigate the potential effects of these hazards.  Regulatory considerations are discussed in Section 2.3.
Potential hazards for solvents and electric arc furnace dust (K061) are summarized in Table 2.2.
Table 2.2.  Summary of Potential Hazards 
                                 Facility Type
                                      HSM
                                     Fire
                                   Explosion
                                     Soil
                                     Water
                                      Air
                          Particulate Wind Dispersal
                           Residues from Reclamation
Generators
Solvents
                                       
                                       
                                       
                                       
                                       
                                       
                                       

Electric Arc Furnace Dust
                                       
                                       
                                       
                                       
                                       
                                       
                                       
Transporters
Solvents
                                       
                                       
                                       
                                       
                                       
                                       
                                       

Electric Arc Furnace Dust
                                       
                                       
                                       
                                       
                                       
                                       
                                       
Intermediate/ reclamation facilities
Solvents
                                       
                                       
                                       
                                       
                                       
                                       
                                       

Electric Arc Furnace Dust
                                       
                                       
                                       
                                       
                                       
                                       
                                       

            Generators
            Activities
A generator may generate HSM from a variety of activities, such as manufacturing, processing, cleaning, degreasing, and service industries.  Figure 1 above shows the most commonly recycled HSMs.  Generators may temporarily accumulate HSM at or near the point of generation (e.g., in containers) before transferring them to another location on-site (e.g., to centralized accumulation), or they may be transferred to another location on-site immediately after it is generated.  HSM may be transferred on-site using manual equipment (e.g., a hand trolley or cart), machinery (e.g., forklift or truck), or piping, tanks and other interconnected equipment or means of conveyance. 
At centralized accumulation areas on-site, HSM may be held in containers, tanks, or other units.  Various operations also are performed (e.g., opening and closing containers to add HSM, filling tanks using piping or portable equipment).  Periodically, off-site transporters will collect the HSM for offsite transportation.  Some generators do not operate centralized accumulation areas; rather, the off-site transporter collects the HSM at or near the point of generation.
Some generators reclaim their HSM on-site.  For solvents, distillation is the process used most frequently to recycle spent solvents.  The process separates chemicals by the addition of heat, which causes the more volatile compounds, typically the solvent to be recovered, to vaporize.  The vaporized solvent is then condensed back into liquid and reused.  This process results in a residue that may contain solvents or other chemicals and may require subsequent management as a hazardous waste.   Systems used for on-site distillation may include fixed or mobile trailer systems brought to the facility by a vendor.  
When electric arc furnace dust is recycled on-site, the recycling typically consists of collecting electric arc furnace emissions in a bag filter, conveying dust to a hopper, physically processing it by briquetting and feeding it back into the electric arc furnace that generated the waste.  Prior to recycling, it may be stored in bins, drums, other containers, or waste piles.
            Potential Hazards
Following are possible hazards associated with the generator activities described above for solvents and electric arc furnace dust:
Solvents
Fires and explosions.  Solvent wastes, especially non-halogenated solvents are often highly flammable, and can ignite to create fires and explosions.  Because solvents also tend to be volatile, air emissions may ignite to cause fires and explosions if ignited, resulting in injury or property damage.  Fires and explosions may also evolve other toxic or hazardous gasses. 
Volatile organic air emissions during accumulation and transportation on-site.  Under certain conditions, solvents held in tanks or containers could volatilize and escape to the atmosphere through open container lids, uncovered tanks, leaks (e.g., from valves and pumps) and vents, container breathing (a process that can cause air containing solvents to move out of a container or tank as the air in a container expands and contracts due to changes temperature), and waste transfer.    
Wind dispersal of particulate matter during accumulation and transportation on-site.  Wind dispersal can occur if the HSM is in the form of a dust or small, dry particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts).  Soil or other solid media contaminated with solvents may be susceptible to wind dispersal.
Soil, groundwater, and air contamination from liquid releases during accumulation and transportation on site.  During accumulation, a number of factors could lead to a release, such as tank overflows or overtopping; leaks from damaged or deteriorated containers or tanks; complete failure of tank or container integrity; and run on/run off from the storage area.  During transfer, releases could include spills, overflows, and leaks from human error or deterioration of transport equipment (e.g., leaking pipes).  Solvent wastes are susceptible to such releases since they are commonly in la liquid state.  
Air emissions from reclamation.  The solvent reclamation processes described above use the addition of heat to accomplish desired chemical reactions (e.g., vaporization of organics, melting of metals).  These processes can produce air emissions from various locations, such as stacks, equipment leaks, and vents.
Residues from on-site reclamation.  The reclamation processes described above could result in a hazardous waste that requires further treatment before land disposal in accordance with RCRA Subtitle C.
Electric Arc Furnace Dust
Fires and explosions.  Accumulation of dust can lead to an explosion if near an ignition source.
Wind dispersal of particulate matter during accumulation and transportation on site.  Wind dispersal can occur if the HSM is in the form of a dust or small, dry particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts). Electric arc furnace dust in particular might be susceptible to wind dispersal during accumulation or transfer, since it is often present in dust form, and may be stored in uncovered waste piles. 
Soil and groundwater contamination can occur.  During transfer, spills due to human error or deterioration of transport equipment.
            Transporters
            Activities
HSM may be shipped off-site by a variety of modes (e.g., highway, rail, water).  The most prevalent is by highway using a wide variety of trucks (e.g., vacuum trucks or trailers, pump tankers, vans, dump trucks, tractor trailers).  A transporter may pick up loads from multiple generators (i.e., less than truck load shipments) or it may pick up a full truckload from a single generator.  During a shipment, a transporter may perform various activities, such as consolidating, re-routing or transferring shipments.
            Potential Hazards
Following are possible hazards associated with the transportation activities described above for solvents and electric arc furnace dust:
General (both solvents and electric arc furnace dust)
Vehicle air emissions.  Transportation vehicles emit pollution as a result of combustion of fuel and fuel evaporation.  Primary air pollutants include carbon monoxide, hydrocarbons, nitrogen oxides, and particulate matter.  These pollutants can lead to adverse health effects in children and adults and worsen environmental problems (e.g., increasing the amount of greenhouse gases in the atmosphere).
Traffic accidents.  Accidents involving trucks containing HSM may result in releases of the HSM.  This can result in contamination of soil and water, air emissions, fires, and explosions.  In addition, accidents during the transport of HSM may cause fatalities, injuries and property damage even if the HSM is not released.
Traffic congestion and noise.  Transportation vehicles can contribute to increased levels of traffic congestion and noise along the transportation route.  These effects can worsen the quality of life of people working or residing nearby.
Solvents
Fires and explosions.  Solvent wastes are often flammable, and can ignite to create fires and explosions.  Because solvent HSM also tends to be volatile, air emissions may cause fires and explosions if ignited, causing injury or property damage.  Fires and explosions may also evolve other toxic or hazardous gasses. 
Volatile air emissions.  During loading, unloading, and transport, volatile air emissions may escape from valves, pumps, hoses, tank trucks, drums, and other containers.  Under certain conditions, solvents held in tank trucks or drums could volatilize and escape to the atmosphere through open container lids, uncovered tanks, leaks and vents, container breathing (a process that can cause air containing solvents to move out of a container or tank as the air in a container expands and contracts due to changes in temperature), and container filling (as the air in a container is displaced by the liquid added to the container).  Under some conditions, volatile air emissions may ignite to cause fires and explosions.  
 Electric Arc Furnace Dust 
Fires and explosions.  Accumulation of dust can lead to explosion if near an ignition source. 
Air emissions of metals.  During the electric arc furnace dust recycling process, the high temperatures used may cause volatile metals, such as lead and zinc to volatilize and be emitted in the flue gas from the facility.
Wind dispersal of particulate matter during loading and transportation.  Wind dispersal can occur if the HSM is in the form of a dust or small, dry particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts). Electric arc furnace dust in particular might be susceptible to wind dispersal during loading or transfer, since it is often present in dust form.
      Intermediate and Reclamation Facilities
            Activities
Intermediate and reclamation facilities periodically receive HSM from off-site sources.  The HSM may be placed in storage units at the facility until it is ready for reclamation or transfer to a reclamation facility.  Facilities may store the HSM in containers, tanks, waste piles, or other units in accordance with applicable regulations.  
In addition, processing of the HSM may be performed before reclamation. This may include, for example, aggregation/consolidation of the HSM to facilitate the reclamation process, filtration of other physical processes to remove impurities, or other processing steps.  This may be performed in tanks, containers or other equipment.  HSM may be transported from on-site storage and processing units to the reclamation unit using machinery (e.g., trucks) or pipes, tanks, and other equipment.
For solvents, distillation is the process used most frequently to recycle spent solvents.  The process separates chemicals by the addition of heat, which causes the more volatile compounds, typically the solvent to be recovered, to vaporize.  The vaporized solvent is then condensed back into liquid and reused.  This process results in a residue that may contain solvents or other chemicals and may require subsequent management as a hazardous waste.   
Off-site management of electric arc furnace dust is most frequently conducted using processes to separate and recover metals, such as High Temperature Metals Recovery (HTMR).  In the HTMR process, electric arc furnace dust is mixed with coal or coke, the mixture is pelletized, and heated in a furnace to reduce iron and nickel oxides.  The resulting material is then fed to an electric arc furnace, where volatile metals, such as lead and zinc are removed from the flue gas, and metal and slag are separated and removed.
            Potential Hazards
The hazards for off-site recycling facilities are generally the same as those for on-site recycling processes, which are described above in Section 3.2.1.
Solvents
Fires and explosions.  Solvent wastes are often flammable, and can ignite to create fires and explosions.  Because solvent HSM also tends to be volatile, air emissions may cause fires and explosions if ignited, causing injury or property damage.  Fires and explosions may also evolve other toxic or hazardous gasses. 
Volatile organic air emissions during accumulation and transportation on-site.   Under certain conditions, solvents held in tanks or containers could volatilize and escape to the atmosphere through open container lids, uncovered tanks, leaks and vents, container breathing (a process that can cause air containing solvents to move out of a container or tank as the air in a container expands and contracts due to changes in temperature), and container filling (as the air in a container is displaced by liquid added to the container).  Under some conditions, volatile air emissions may ignite to cause fires and explosions.  
Wind dispersal of particulate matter during accumulation and transportation on-site.  Wind dispersal can occur if the HSM is in the form of a dust or small, dry particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts). Soil or other solid media contaminated with solvents may be susceptible to wind dispersal.
Soil, groundwater, and air contamination from liquid releases during accumulation and transportation on-site.  During accumulation, a number of factors could lead to a release, such as tank overflows or overtopping, leaks from damaged or deteriorated containers or tanks, complete failure of tank or container integrity, and run on/run off from the storage area.  During transfer, releases could include spills, overflows, and leaks from human error or deterioration of transport equipment (e.g., leaking pipes).  Solvent wastes are susceptible to such releases since they are commonly in a liquid state.  
Air emissions from reclamation.  The solvent reclamation processes described above use the addition of heat to accomplish the desired chemical reactions (e.g., vaporization of organics, melting of metals).  These processes can produce air emissions from various locations, such as stacks, equipment leaks, and process vents.
Residues from on-site reclamation.  The reclamation processes described above could result in a hazardous waste that requires further treatment before land disposal in accordance with RCRA Subtitle C.
Electric Arc Furnace Dust
Fires and explosions.  Accumulation of dust can lead to explosion if near an ignition source.
Wind dispersal of particulate matter during accumulation and transportation on-site.  Wind dispersal can occur if the HSM is in the form of a dust or small, dry particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts). Electric arc furnace dust in particular might be susceptible to wind dispersal during accumulation or transfer, since it is often present in dust form, and may be stored in waste piles. 
Soil and groundwater contamination can occur.  During transfer, spills due to human error or deterioration of transport equipment.  
            References:
U.S. EPA (2007) An Assessment of Environmental Problems Associated With Recycling of Hazardous Secondary Materials.  (EPA-HQ-RCRA-2002-0031-0355). http://www.regulations.gov/search/Regs/home.html#documentDetail?R=09000064801f3efb 
U.S. EPA (2008) Definition of Solid Waste Final Rule. Federal Register Volume 73 Page 64663. October 30, 2008. http://www.epa.gov/wastes/hazard/dsw/index.htm 
U.S. EPA Hazardous Waste List
http://www.epa.gov/epawaste/hazard/wastetypes/listed.htm
(link to 40 CFR §261.31 contains specific chemicals)
CDC (2010a) National Report on Human Exposure to Environmental Chemicals, Halogenated solvents - http://www.cdc.gov/exposurereport/data_tables/HalogenatedSolvents_ChemicalInformation.html 
Other halogenated solvents - 
http://www.cdc.gov/exposurereport/data_tables/OtherHalogenatedSolvents_ChemicalInformation.html 
ATSDR Toxic Substances Portal
Main page to access Tox Profiles
http://www.atsdr.cdc.gov/toxprofiles/index.asp#bookmark05 
Source: Delisting Petition For Treated K061, Max Environmental Technologies, Inc. (Hazardous Waste Management Services), Yukon, PA, CEC Project 210966, 11/2003. http://www.depweb.state.pa.us/pubpartcenter/lib/pubpartcenter/EQB/2004/yukon_delisting_petition.pdf

Regulatory Comparison - Summary of Comparative Results by Facility Type and Scenario
DSW Regulations Compared to Full Subtitle C Regulation

Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste Exclusions
   *    Generator-Controlled Exclusion
   *    Transfer-Based Exclusion
Clean Air Act (CAA)
   * CAA Title V Air Quality Permitting Process
   * CAA Standards for Area Sources Not Subject to Title V Permit
   * Chemical Accident Prevention Provisions
Clean Water Act (CWA)
   *    Oil Pollution Prevention
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 
   *    Release Notification (RQs)
Emergency Planning and Community Right-to-Know Act (EPCRA) 
   *    Release Notification 
Hazardous Materials Transportation Act (HMTA) 
   *    Overview and Applicability
   *    Hazardous Materials Regulations
   *    Transportation of Hazardous Materials; Driving and Parking Rules
Occupational Safety and Health Act (OSH Act)
   *    Process Safety Management of Highly Hazardous Chemicals
   *    Hazardous Waste Operations and Emergency Response
   *    Hazard Communication



This section presents the results of EPA's comparison of the full RCRA Subtitle C hazardous waste regulations (baseline scenario) to the federal regulations applicable to facilities operating under the 2008 DSW final rule; in addition, this comparison also includes the Clean Air Act (CAA), the Clean Water Act, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Emergency Planning and Community Right-to-Know Act (EPCRA), the Hazardous Materials Transportation Act (HMTA), and the Occupational Safety and Health Administration (OSHA).  EPA compared the regulatory requirements under each of the scenarios described in Section 2.1 of this report for the three types of facilities that could manage HSMs under the 2008 DSW final rule:   1. Generators
   2. Transporters
   3. Intermediate and Reclamation Facilities
This section describes the key regulatory differences applicable to each type of facility (i.e., generator, transporter, and intermediate and reclamation facilities) under the baseline and 2008 DSW scenarios, identifies the possible consequences of these differences, and indicates, under which of the 8 scenarios these differences and consequences could occur.  It also notes where the differences are dependent on whether the DSW exclusion is the TBE or the GCE.  The summary of comparative results is presented in a table that summarizes the regulatory differences and consequences by facility type and scenario.
This section only summarizes the key regulatory differences that may lead to a change in impacts to human health and the environment under the 2008 DSW rule. A more detailed comparative analysis of the regulatory provisions is presented in Attachment A.
DSW Scenarios
   1. Generator continues current recycling practices 
   2. Generator switches from off-site disposal to on-site reclamation 
   3. Generator switches from off-site disposal to off-site recycling under the control of the generator 
   4. Generator switches from off-site disposal to off-site recycling at a RCRA-permitted facility 
   5. Generator switches from off-site disposal to off-site recycling at a U.S. facility without a RCRA permit 
   6. Generator switches from off-site disposal to exporting for recycling 
   7. Generator switches from off-site recycling at a facility without a permit to another type of recycling under the 2008 DSW final rule 
   8. Generator switches from off-site recycling at a RCRA-permitted facility or exporting waste for recycling to another type of recycling under the 2008 DSW final rule

            Generators
Following is a discussion of the key differences and consequences in the federal regulation of generators of hazardous waste and generators of HSM under the DSW exclusions.
The DSW exclusions allow generators to accumulate HSM on-site for longer periods of time than the hazardous waste regulations, which could lead to greater quantities being accumulated at any given time (All scenarios).  The hazardous waste regulations and the DSW exclusions set forth time limits for generators to accumulate HSM on-site.  Specifically, the hazardous waste regulations require generators to ship hazardous waste off-site every 90 or 180/270 days (depending on generator size and type of activity involved), whereas the DSW exclusions require generators to recycle (or ship for recycling) 75% of their hazardous secondary material within one calendar year.  This means that generators under the DSW exclusions could accumulate 75% of their HSM on-site for a calendar year and 25% for potentially longer periods.  In addition, the DSW exclusions do not include a quantity limit for on-site accumulation, in contrast to the hazardous waste regulations for small quantity generators (SQGs).  
The DSW exclusions require that material be "contained," but do not prescribe specific technical standards for containment in contrast to the hazardous waste regulations (All scenarios).  The hazardous waste regulations and the DSW exclusions require containment of HSM in the unit.  The hazardous waste regulations prescribe specific design, installation, operating, and closure standards to address containment (e.g., storage limits, standards for container and tank design, operation, and inspection frequency).  Prescriptive requirements tend to facilitate inspection and enforcement, which helps to prevent releases.  The DSW exclusions do not include prescriptive requirements.  The DSW exclusions allow more flexibility in how HSMs can be contained.  Some generators and facilities under the DSW exclusions may choose to follow the hazardous waste regulations for their units, particularly if they operate other units that are subject to the hazardous waste regulations.  
In addition, the GCE allows generators to manage their HSM in land-based units (e.g., surface impoundments, piles) but the exclusion does not prescribe containment standards. The hazardous waste regulations do not allow generators to manage hazardous waste in land-based units, unless they have a permit or interim status, which prescribe facility and unit design, operating and other standards.
Regulatory Requirements Considered
   * Legitimate Recycling
   * Storage Time Limit
   * Containment
   * Air Emissions
   * Emergency Preparedness and Response
   * Personnel Training
   * Reporting and Recordkeeping
   * Offsite Transportation 
   * Exports
   * Regulation of Residues
   * Security
   * Financial Assurance
   * Requirement for a Permit 
   * Public Involvement


The DSW exclusions do not include requirements for generators to control air emissions from their operations, in contrast to the hazardous waste regulations (All scenarios).  While the DSW exclusions require containment of the HSM, they do not include explicit requirements for control of air emissions.  The hazardous waste regulations prescribe specific design, operating, and other standards for controlling air releases from process vents, equipment leaks, and storage units by large quantity generators, whereas the DSW exclusions do not include such prescriptive requirements.   Some generators operating under the DSW exclusions may be required to get a permit under the CAA regulations.  Where facilities are subject to the CAA, requirements to control air emissions are comparable to the hazardous waste regulations.  However, facilities not subject to the CAA permitting requirements would not be required to provide a comparable level of control for air emissions from process vents, leaks, and storage units as the hazardous waste regulations. 
As a result of the DSW exclusions, some generators may change in status under the hazardous waste regulations and be subject to less stringent hazardous waste regulation (All scenarios).  Under the hazardous waste regulations, a site that generates hazardous waste must determine its generator status by counting the quantity of hazardous waste that it produces during any given calendar month:
It is a large quantity generator (LQG) if it generates 1,000 kg or more of hazardous waste in a calendar month, 1 kg or more of acute hazardous waste in a calendar month, or 100 kg or more of any residue, soil, waste or other debris resulting from the cleanup of any acute hazardous waste. 
It is a small quantity generator (SQG) if it generates greater than 100 kg but less than 1,000 kg of hazardous waste in a calendar month. 
It is a conditionally exempt small quantity generator (CESQG) if it generates less than 100 kg of hazardous waste in a calendar month. 
LQGs are generally subject to more stringent requirements than SQGs.  For example, LQGs must prepare and follow a contingency plan for emergencies, conduct recurring personnel training on emergency procedures, and comply with the full breadth of tank systems standards and air emission controls as applicable, whereas SQGs do not.  SQGs are subject to more stringent requirements than CESQGs, who are exempt from the hazardous waste regulation, provided they meet certain requirements.
A generator operating under a DSW exclusion would not be required to count its excluded HSM in determining its generator status under the hazardous waste regulations.  As a result, the generator may change to a different status (e.g., from LQG to SQG or CESQG) because it would have less hazardous waste to count and therefore would be subject to less stringent hazardous waste requirements.   
Generator on-site reclamation may be less stringently regulated under the generator-controlled exclusion than the hazardous waste regulations (Scenarios 1, 2 and 8).  The hazardous waste regulations require LQG reclaimers to comply with the air emission controls (e.g., for process vents on reclamation units).  In addition, generators that reclaim hazardous waste on-site are required to obtain a permit if they store the waste for longer than 90 days for LQGs, or 180/270 days for SQGs (depending on type of activity involved), pending reclamation.  The permitting process requires public involvement.  The GCE does not include prescriptive requirements for air emissions; rather it requires that the material be "contained."  It also does not require a permit or public involvement.  In addition, it allows generators to manage their HSM in land-based units without a permit or interim status, unlike the hazardous waste regulations, which require a permit or interim status for the management of hazardous waste in land-based units.
The hazardous waste regulations and transfer-based exclusion require comparable procedures for exports (Scenario 1).  The hazardous waste regulations require an exporter of hazardous waste to fulfill the notice-and-consent requirements prior to export, submit an annual report summarizing export activities, and keep specified records.  The TBE also requires generators to perform notice-and-consent, annual reporting, and recordkeeping.   It also requires generators to perform reasonable efforts to audit the reclaimer.  Note that the GCE does not address exports because it requires that the material be generated and reclaimed within the U.S. and territories.  
Some generators may switch from off-site reclamation or treatment/disposal at a RCRA-permitted facility to reclamation under the generator-controlled exclusion, which does not require a permit (Scenarios 2, 3 and 8).  Some generators may divert their HSM from off-site reclamation or treatment then disposal at a RCRA-permitted facility to on-site reclamation.  RCRA-permitted facilities are subject to prescriptive standards/conditions covering the design, construction, operation, financial assurance, emergency preparedness, and closure of the facility.  They also are subject to public involvement in the permitting process.  The GCE does not require prescriptive standards, a permit, or public involvement.  In addition, it allows generators to manage their HSM in land-based units without a permit or interim-status.  Reclaimers and treatment and disposal facilities must have a permit to manage hazardous waste in land-based units. 
Reclamation under the generator-controlled exclusion is not subject to the "derived-from rule," as is reclamation under the hazardous waste regulations (Scenarios 1, 2, 3 and 8).  The hazardous waste regulations state that any material derived from a listed hazardous waste is also a listed hazardous waste.  This is called the "derived-from" rule.  It means that residues from the reclamation of a listed hazardous waste are they themselves that listed hazardous waste.  The GCE does not address how residues from the reclamation process should be managed and is therefore not comparable to the hazardous waste regulations in this regard.  As a result, generators under the exclusion could identify residuals to be a new point of generation for the purposes of applying the hazardous waste determination requirements of 40 CFR 262.11.  This raises the possibility that some residuals from the recovery process that were considered hazardous under full RCRA Subtitle C regulation would no longer be considered hazardous once they exit recovery units operated under the 2008 DSW final rule, provided they do not exhibit a characteristic.  As a result, such wastes could exit Subtitle C regulation.
The DSW exclusions require all generators to notify EPA of their HSM generation and management activities biennially, whereas the hazardous waste regulations require biennial reporting only for LQGs (All Scenarios).  The hazardous waste regulations and DSW exclusions have comparable requirements for initial and biennial submittals in regard to frequency and types of information submitted.  However, the DSW notification requirement applies to generators regardless of size.  The biennial reporting requirement in the hazardous waste regulations applies only to LQGs.  Notifications or other types of reporting helps the regulatory agency to plan and prioritize inspections, making enforcement more effective and potentially increasing compliance.
            Transporters
Following is a discussion of the key differences and consequences in the federal regulation of hazardous waste shipments and shipments of DSW-excluded HSMs.
Offsite transport of DSW-excluded material that qualifies as a DOT hazardous material is generally subject to transportation-related regulation comparable to hazardous waste shipments (Scenarios 1, 3, 4, 5, 6, 7, and 8).  The DOT regulations set forth requirements for DOT hazardous material shipments in regard to the use of shipping papers, packaging, labeling, marking, placarding, parking, and driving.  The DOT regulations apply to all hazardous wastes, as well as other materials, including commercial products, that qualify as a DOT "hazardous material."  A material qualifies as a DOT hazardous material if it 1) is listed in the Table in 49 CFR 172.101 (e.g., compounds), 2) is listed in the Appendices to the Table in 49 CFR 172.101, or 3) meets one or more of the hazard classifications (e.g., flammable liquid).  
Following is a further discussion of the DOT requirements with regard to the generator-controlled exclusion and the transfer-based exclusion:
Generator-Controlled Exclusion. Prior to and during offsite transport, hazardous HSMs GCE that qualify as a DOT hazardous material would be subject to comparable transportation requirements as hazardous waste in regard to packing, labeling, marking, placarding, parking and driving.  Specifically, the DOT regulations apply similarly to hazardous waste and other types of DOT hazardous materials, such as excluded hazardous secondary material, in regard to these activities.  An exception, however, is that the excluded material would not be subject to the hazardous waste manifest requirements for chain-of-custody tracking and confirmation of receipt. 
Transfer-Based Exclusion.  Onsite handling and offsite shipments of HSMs that qualify as a DOT hazardous material would be TBE subject to DOT regulation and must comply with comparable transportation requirements as hazardous waste in regard to packaging, labeling, marking, placarding, parking, driving, and tracking.  Note that the TBE requires recordkeeping of all off-site shipments by the generator and reclamation facility and a confirmation of receipt must be sent from the reclaimer to the generator.  These recordkeeping and transmittal requirements are comparable to the hazardous waste manifest requirements for chain-of-custody tracking and confirmation of receipt.
Onsite handling and offsite transportation of DSW-excluded material that no longer qualifies as a DOT hazardous material would not be subject to regulation comparable to hazardous waste shipments (Scenarios 1, 3, 4, 5, 6, 7, and 8).  Under the generator-controlled exclusion or transfer-based exclusion, transportation requirements for excluded HSMs GCE  the TBE that do not qualify as a DOT hazardous material would not be comparable to those for hazardous waste in regard to packing, labeling, marking, placarding, parking or driving (or tracking, for shipments under the GCE).  An excluded material would not need to comply with the DOT regulations if it is not listed in the Table in 49 CFR 172.101, is not listed in (or otherwise does not exceed its reportable quantity in) the Appendices to the table, and does not meet any hazard classification.  
Further, the Reportable Quantities (RQs) contained in 49 CFR part 172 that trigger the DOT hazardous materials requirements are potentially different for hazardous waste and non-waste.  A material-specific RQ is used to determine whether a hazardous waste or other hazardous substances must comply with the DOT requirements (i.e., if the hazardous substance exceeds its RQ, it must comply).  In some cases the RQ for a hazardous waste would be lower because it is a hazardous waste than the RQ if the material were not considered a hazardous.  In these cases, a greater quantity of material would be required to exceed the RQ if the material were a non-waste.  This could result in some excluded materials not triggering the RQ requirements (at the lower level) and therefore not needing to comply with RQ-related DOT packaging and other regulations.
The generator-controlled exclusion does not require tracking of off-site shipments, in contrast to the hazardous waste regulations (Scenarios 3 and 8).  The hazardous waste regulations require the manifesting of all off-site shipments, which provides for chain-of-custody tracking of shipments and generator confirmation that the shipment has been received by the designated facility.  By contrast, the DSW GCE does not require tracking of shipments (e.g., from the generating site to an off-site reclamation facility owned by the generator) or recordkeeping that could serve a comparable purpose.  Further, if the shipment were subject to DOT regulation, a shipping paper must accompany it.  However, the destination facility need not keep a copy of it for three years or transmit to the original generator site (or place in its company files) confirmation of receipt.  Therefore, a generator making off-site shipments under the GCE would not be documenting that its excluded material reached the intended destination intact, as is required by the manifest regulations.
            Intermediate and Reclamation Facilities
Following is a discussion of the key differences and consequences in the federal regulation of hazardous waste storage facilities and HSM intermediate and reclamation facilities under the TBE.
Reclamation under the transfer-based exclusion is not subject to the "derived-from rule," as is reclamation under the hazardous waste regulations (Scenarios 1, 4, 5, 6, 7 and 8).  The hazardous waste regulations state that any material derived from a listed hazardous waste is also a listed hazardous waste.  This is called the "derived-from" rule.  It means, for example, that residues from the reclamation of a listed hazardous waste remain that listed hazardous waste.  The TBE states that residuals must be managed as hazardous waste if they exhibit a characteristic or are listed.  Hence, the derived-from rule does not apply to the residuals from the reclamation of hazardous secondary materials under the DSW exclusion.  This means that the residuals exiting the reclamation unit constitutes a new point of generation for the purposes of applying the hazardous waste determination requirements of 40 CFR 262.11.  If the residuals exhibit a hazardous characteristic, or they themselves are a listed hazardous waste, they would be considered hazardous wastes (unless otherwise exempted) and would have to be managed accordingly. If they did not exhibit a hazardous characteristic, or were not themselves a listed hazardous waste, they would need to be managed in accordance with applicable state or federal requirements for non-hazardous wastes.
The provisions on residuals under the TBE are intended to clarify that residuals from reclamation are subject to the waste characterization requirements and cannot simply be discarded as non-hazardous waste.  However, designating the residuals as a newly generated waste raises the possibility that some residuals from the recovery process that were considered hazardous under full RCRA Subtitle C regulation would no longer be considered hazardous upon exiting recovery units operated under the 2008 DSW final rule.
Some hazardous secondary materials may be diverted from off-site reclamation, treatment then disposal at a permitted facility under the hazardous waste regulations to off-site reclamation under the transfer-based exclusion, which is allowable without a RCRA permit; however, generator audits are required in those cases (Scenarios 5 and 8).  Permitted facilities are subject to prescriptive permit requirements and self-imposed conditions covering the design, construction, operation, financial assurance, closure, and post-closure of the facility and hazardous waste management units.  They also are subject to public involvement during the permitting process.  Reclamation under the TBE would be subject to fewer requirements, including no requirement for a permit or public involvement.  Thus, reclamation under the exclusion is not subject to emergency preparedness and response, personnel training, or prescriptive requirements for containment.  However, the TBE requires the generator to perform a "reasonable efforts" audit of facilities that do not have a RCRA permit covering management of the material.  The generator audit must focus on specified areas (e.g., the reclaimer's compliance history).  In addition, facilities must obtain financial assurance.  In general, however, facilities under the TBE would be subject to fewer prescriptive requirements, no public involvement, and possibly less regulatory oversight than permitted facilities.
The transfer-based exclusion requires that material be "contained," but does not prescribe specific standards for containment in contrast to the hazardous waste regulations (Scenarios 5 and 8).  The hazardous waste regulations and TBE require containment of the HSMs in the unit.  The hazardous waste regulations prescribe specific design, installation, operating, closure and post-closure standards to address containment.   Prescriptive requirements could facilitate inspection and enforcement, which could help to prevent releases.  The TBE does not contain prescriptive requirements for containment.  The exclusion requires that the material be managed in a manner that is at least as protective as that employed for analogous raw material and be contained.  As such, the TBE is performance oriented and allows more flexibility in how hazardous secondary materials can be managed and contained.  
The transfer-based exclusion does not include standards for controlling air emissions from process vents, equipment leaks, or storage units in contrast to the hazardous waste regulations (Scenarios 5 and 8).  While the DSW transfer-based exclusions require containment of HSMs, they do not include explicit requirements for control of air emissions whereas the hazardous waste regulations set forth prescriptive design, operating and other standards to control air releases from process vents, leaks, and storage units.  The TBE does not include such prescriptive requirements.  
Some reclaimers operating under the DSW exclusions may be required to get a permit under the CAA regulations.  Where such facilities are subject to the CAA, requirements to control air emissions are comparable to the hazardous waste regulations.  However, facilities not subject to CAA permitting would not be required to provide a comparable level of control of air emissions from process vents, leaks, and storage units as the hazardous waste regulations. 
Some hazardous secondary material may be diverted from permitted off-site facilities to being exported for reclamation under the transfer-based exclusion, which does not require a permit.  However, the importing facility must pass generators' "reasonable efforts" audit (Scenario 6 and 8).  As described above, permitted facilities are subject to prescriptive permit requirements covering the design, construction, operation, air emission controls, financial assurance, closure and post-closure of the entire facility.  They also are subject to public involvement during the permitting process.  Under the TBE, the HSM may be exported to a foreign facility, which is not subject to a permit or public involvement.  However, the exclusion would require generators to make reasonable efforts to audit the facility before exporting the material to a foreign facility.
Some hazardous secondary materials may be diverted from unpermitted off-site reclaimers under the hazardous waste regulations to different off-site reclaimers under the transfer-based exclusion (Scenario 7).  Under the hazardous waste regulations, reclaimers that do not store hazardous waste pending reclamation are not subject to the prescriptive hazardous waste requirements (e.g., for design, operation, financial assurance, closure of the facility or units), except as otherwise specified.  They also are not subject to a hazardous waste permit or public involvement.  
Under the TBE, off-site reclaimers are, among other things: 
Required to manage the HSM in a manner that is at least as protective as analogous raw material, contain the material, have financial assurance, and keep specified records.  In addition, unless it has a RCRA permit covering management of the material, it must pass a generator audit before it can receive the generator's material.
Allowed to store HSM without a permit or prescriptive standards, unlike hazardous waste reclaimers, which are subject to a permit if they store HSM. 
The TBE generally includes more stringent requirements than the hazardous waste regulations for reclaimers that do not store the HSM before reclamation.  It includes less stringent requirements for reclaimers that store the HSM before reclamation.
Summary of Comparative Results by Facility Type and Scenario
Table 2.3 summarizes the key regulatory differences and consequences described in Section 2.3.  They are summarized by facility type and scenario.
Table 2.3.  Key Differences in Regulatory Requirements Between Hazardous Waste Regulations (HWRs) and DSW Exclusions by Scenario
                                   Scenarios
                                 Generators[b]
                                 Transporters
                    Intermediate and Reclamation Facilities
1. Generator continues current reclamation practices (where allowed under DSW)[c]
HSM can be accumulated on-site for longer periods of time under exclusions, resulting in potentially greater aggregate quantities on-site at any given time

Exclusions require containment, but do not include prescriptive standards, whereas HWRs are prescriptive

GCE allows management of HSM in land-based units without a permit or interim-status, unlike HWRs

Generators could change in status (e.g., LQG to SQG) as a result of exclusions and be subject to less stringent HWRs

Export procedures under HWRs  and TBE are comparable

Unlike HWRs, the GCE does not extend "derived-from" rule to residuals potentially resulting in materials exiting Subtitle C

DSW exclusions require all generators to notify EPA biennially, whereas HWRs require biennial reporting only  for LQGs
When transported offsite, excluded HSMs that qualify as DOT hazardous material would be subject to DOT transportation regulations that are comparable to HWRs 

Some excluded material may no longer qualify as a DOT hazardous material and be subject to DOT transportation regulations (e.g., no standards for packaging, marking, labeling)
There is no change in storage methods or recycling practices for HSM that has been diverted from off-site RCRA permitted facility under HWRs to off-site RCRA permitted facility under TBE 

The GCE and TBE do not extend "derived-from" rule to residuals, as do HWRs, potentially resulting in residuals exiting Subtitle C
2. Generator switches from off-site treatment then disposal at a RCRA facility to on-site reclamation under generator-controlled exclusion 
HSM can be accumulated on-site for longer periods of time under GCE, resulting in potentially greater quantities on-site at any given time

The GCE requires HSM to be "contained," but does not include prescriptive standards, whereas  HWRs are prescriptive

GCE allows management of HSM in land-based units without a permit or interim-status, unlike HWRs

Generators could change in status (e.g., from LQG to SQG) as a result of exclusion and be subject to less stringent hazardous waste regulation

Off-site management at permitted facility is more stringently regulated than reclamation under the GCE (e.g., no permit or public involvement is required) 

The GCE does not extend "derived-from" rule to residuals of reclamation, as do the HWRs, potentially resulting in some materials exiting RCRA Subtitle C

DSW exclusions require all generators to notify EPA biennially, whereas HWRs require biennial reporting only LQGs
N/A
N/A
3. Generator switches from off-site disposal at a RCRA facility to off-site reclamation under generator-controlled exclusion[d] 


HSM can be accumulated on-site for longer periods of time under GCE, resulting in potentially greater quantities on-site at any given time

The GCE requires HSM to be "contained," but does not include prescriptive standards, whereas  HWRs are prescriptive

GCE allows management of HSM in land-based units without a permit or interim-status, unlike HWRs

Generators could change in status (e.g., from LQG to SQG) as a result of exclusions and be subject to less stringent hazardous waste regulation

Off-site management at permitted facility is more stringently regulated than reclamation under the GCE (e.g., no permit or public involvement is required) 

The GCE does not extend "derived-from" rule to residuals of reclamation, as do the HWRs, potentially resulting in some materials exiting RCRA Subtitle C

DSW exclusions require all generators to notify EPA biennially, whereas HWRs require biennial reporting only LQGs

Excluded materials that qualify as DOT hazardous material would be subject to comparable DOT transportation regulations as hazardous waste, except that the GCE does not require manifest or other tracking of off-site shipments to same-company reclaimer or between tolling contractor and toll manufacturer 

Some excluded material may no longer qualify as a DOT hazardous material and be subject to DOT transportation regulations (e.g., no standards for packaging, marking, labeling)

N/A
4. Generator switches from off-site disposal at a RCRA facility to off-site permitted reclamation at a U.S. facility under transfer-based exclusion 
HSM can be accumulated on-site for longer periods of time under exclusion, resulting in potentially greater quantities on-site at any given time

The TBE requires HSM to be "contained," but does not include prescriptive standards, whereas HWRs are prescriptive

Generators could  change in status (e.g., from LQG to SQG) as a result of exclusion and be subject to less stringent hazardous waste regulation

DSW exclusions require all generators to notify EPA biennially, whereas HWRs require biennial reporting only LQGs
Excluded materials that qualify as DOT hazardous material would be subject to comparable DOT transportation regulations as hazardous waste

Some excluded material may no longer qualify as a DOT hazardous material and be subject to DOT transportation regulations (e.g., no standards for packaging, marking, labeling) 



There is no change in storage methods or recycling practices under the exclusion (offsite recycler still RCRA permitted) 

The TBE does not extend "derived-from" rule to residuals of reclamation, as do the HWRs, potentially resulting in some materials exiting Subtitle C
5. Generator switches from off-site disposal at a RCRA facility to off-site reclamation at a U.S. facility without a RCRA permit under transfer-based exclusion
HSM can be accumulated on-site for longer periods of time under exclusions, resulting in potentially greater quantities on-site at any given time

The TBE requires HSM to be "contained," but does not include prescriptive standards, whereas HWRs are prescriptive

Generators could change in status (e.g., from LQG to SQG) as a result of exclusions and be subject to less stringent hazardous waste regulation

DSW exclusions require all generators to notify EPA biennially, whereas HWRs require biennial reporting only LQGs
Excluded materials that qualify as DOT hazardous material would be subject to comparable DOT transportation regulations as hazardous waste 

Some excluded material may no longer qualify as a DOT hazardous material and be subject to DOT transportation regulations (e.g., no standards for packaging, marking, labeling) 


Facilities under the TBE would not have a permit and thus would be less stringently regulated than permitted facilities (e.g., no public involvement, fewer prescriptive requirements).  However, facilities must pass "reasonable efforts" audit and obtain financial assurance under TBE  

TBE requires HSM to be "contained" and managed in a manner that is at least as protective as that employed for analogous raw material, but does not include prescriptive standards, whereas HWRs are prescriptive

The TBE does not extend "derived-from" rule to residuals of reclamation, as do the HWRs, potentially resulting in some materials exiting RCRA Subtitle C
6. Generator switches from off-site disposal at a RCRA facility to exporting for reclamation under transfer-based exclusion

HSM can be accumulated on-site for longer periods of time under exclusion, resulting in potentially greater quantities on-site at any given time

The TBE requires HSM to be "contained," but does not include prescriptive standards, whereas HWRs are prescriptive

Generators could change in status (e.g., from LQG to SQG) as a result of exclusions and be subject to less stringent hazardous waste regulation

Export procedures under HWRs  and TBE are comparable 

DSW exclusions require all generators to notify EPA biennially, whereas HWRs require biennial reporting only LQGs
Excluded materials that qualify as DOT hazardous material would be subject to comparable DOT transportation regulations as hazardous waste 

Some excluded material may no longer qualify as a DOT hazardous material and be subject to DOT transportation regulations (e.g., no standards for packaging, marking, labeling)

Facilities that receive imports under the TBE are not required to obtain a permit.  However, facility must pass "reasonable efforts" audit under TBE 

The TBE does not extend "derived-from" rule to residuals, as do the HWRs, potentially resulting in materials exiting Subtitle C 

7. Generator switches from off-site reclamation at a facility without a permit (no storage) to offsite reclamation under transfer-based exclusion[e]
HSM can be accumulated on-site for longer periods of time under exclusions, resulting in potentially greater quantities on-site at any given time

The TBE requires HSM to be "contained," but does not include prescriptive standards, whereas HWRs are prescriptive

Generators could change in status (e.g., from LQG to SQG) as a result of exclusions and be subject to less stringent hazardous waste regulation

Export procedures under HWRs  and TBE are comparable 

DSW exclusions require all generators to notify EPA biennially, whereas HWRs require biennial reporting only LQGs
Excluded materials that qualify as DOT hazardous material would be subject to comparable DOT transportation regulations as hazardous waste 

Some excluded material may no longer qualify as a DOT hazardous material and be subject to DOT transportation regulations (e.g., no standards for packaging, marking, labeling)

The TBE is more stringent than the HWRs in situations where HSM is not stored before reclamation (e.g., the TBE requires financial assurance, containment, protective management and generator audit, whereas HWRs do not require a permit, financial assurance, etc.).  However, the HWRs are more stringent in some aspects than the TBE in situations where the HSM is stored before reclamation (e.g., the HWRs require a permit, whereas the TBE does not).  

The TBE does not extend "derived-from" rule to residuals of reclamation, as do the HWRs, potentially resulting in some materials exiting Subtitle C 
8. Generator switches from off-site reclamation at a RCRA facility to another type of reclamation under the 2008 DSW final rule
Refer to Scenarios 2 through 6 for regulatory differences and consequences applicable to Scenario 8.  Scenarios 2 through 6 involve generators switching from off-site permitted disposal to another type of reclamation under the DSW exclusions.  Scenario 8 involves generators switching from off-site permitted reclamation to another type of reclamation under DSW exclusions.  As such, Scenarios 2 through 6 include the same types of regulatory differences and consequences as Scenario 8.

[a] Abbreviations include the following: HSM = hazardous secondary material; HWRs = hazardous waste regulations; GCE = generator-controlled exclusion; TBE = transfer-based exclusion; LQGs = large quantity generators; SQGs = small quantity generators.  
[b] Under the GCE, generators may perform reclamation on-site or send it off-site to a same-company reclaimer or toll manufacturer under its control.  This column addresses these off-site facilities (i.e., same-company reclaimers and toll manufacturers) as generators.
[c] This scenario includes generators that continue their current practices under the exclusions by either reclaiming on-site, shipping to a permitted, off-site reclamation facility, or exporting the material for reclamation.
[d] This scenario includes generators switching from off-site disposal to sending the material to either a same-company reclaimer or toll manufacturer under the GCE. 
[e] This scenario includes generators switching from off-site reclamation at a facility without a permit to another type of reclamation under the TBE, including either off-site reclamation at a RCRA-permitted facility, off-site reclamation at a facility without a permit, or export of the material to a company in another country.

Likelihood of Hazards under Scenarios
This section presents EPA's analysis of the likelihood of changes in hazards under the 2008 DSW final rule for each type of facility (generators, transporters, and intermediate and reclamation facilities) and each scenario described in Section 2.1.  The analysis was based on the changes in management practices for HSM described in Section 2.1, the hazards identified in Section 2.2., and the regulatory comparison presented in Section 2.3.  The discussion includes a description of each hazard, and whether the likelihood of the hazard is increased, decreased, or might be transferred between communities.  Potentially increased hazards are discussed in section 2.55.1, while section 2.55.2 presents EPA's discussion of potential reductions and transfers of hazards.
Potentially Increased Hazards under DSW Exclusions
EPA analyzed the information in the preceding sections of this report to determine whether the hazards associated with the generation, transportation and reclamation of HSM would potentially increase under the DSW exclusions.  EPA considered hazards to increase where it determined that either the probability of the hazard occurring or the potential magnitude of the hazard increased.  In some cases, the hazard may increase at one facility, while decreasing at another facility.  For example, changing the management of their HSM from off-site incineration to on-site reclamation is likely to increase potential hazards at the reclamation facility, while decreasing them at the incineration facility.  This section discusses only the potential increases in hazards.  Potential decreases in hazards are discussed in section 2.55.2.
This analysis was based on the changes in management practices for HSM described in the Scenarios in Section 2.1, the general hazards associated with the generation, transportation, storage, and reclamation of HSM presented in Section 2.2, as well as the regulatory differences between the hazardous waste regulations and DSW exclusions identified in Section 2.3.  Through this analysis of hazards, EPA determined that these regulatory differences (e.g., differences in stringency and scope), and the resulting changes in behavior by facilities generating and managing HSM, could result in an increase in potential hazards under the DSW exclusions.  EPA presents this analysis for generators, transporters, and intermediate and reclamation facilities.  For each type of hazard, the scenarios from Section 2.1 under which it might increase are identified. 
            Generators
Fires and Explosions (Scenarios 1 through 8).  Some HSM, such as solvents, are often flammable, and can ignite to create fires and explosions.  HSM may also contain volatile chemicals, which can be released to the air, and if flammable, these air emissions may cause fires and explosions if ignited, causing injury or property damage.  Fires and explosions may also involve other toxic or hazardous gasses.  Fire and explosion hazards under the DSW exclusions could increase for generators because of the following:
HSM can be accumulated longer, and potentially greater quantities can be accumulated   on-site.   A longer accumulation period means that there is a greater likelihood for release of the HSM.  For example, there is greater likelihood that solvents could be inadvertently commingled in a container or storage area with incompatible materials and wastes, such as oxidizers, which could cause an explosion or fire hazard.  There is also a greater likelihood that solvents could be stored near ignition sources (e.g., open flames) or be stored in excessive heat, which could increase fire and explosion hazards.  Longer storage also increases the likelihood that drums or other containers could leak due to corrosion, accidents, or other causes over time.  The leaked material could then volatilize or be exposed to an ignition source, resulting in a fire or explosion.
Greater accumulation quantities also mean that the magnitude of a potential fire or explosion could be greater.  Generators could also be responsible for managing a greater number of tanks and containers to contain the greater volume or may overload/overfill storage units while attempting to manage the greater volume using existing tank and container capacity, which could make it more difficult to ensure the HSM is contained.  For example, the generator may need to spend more effort to make sure the covers of a greater number of containers are kept tightly closed to prevent the escape of potentially combustible vapors.
No explicit containment standards.  The DSW exclusions do not include explicit standards for containment of HSM in tanks and containers, in contrast to the hazardous waste regulations.  In addition, the GCE allows management of HSM in land-based units without a permit or interim-status, unlike the HWRs.  Consequently, generators might not take the same steps to minimize the potential for fires and explosions.  The hazardous waste regulations prescribe specific design and operating standards and air emission controls for tanks and containers, including keeping these units tightly covered and using vent systems (e.g., fixed roof, flares) if needed.  In addition, the HWRs require that certain units be provided with a means to protect against the formation and ignition of vapors within the tank if the waste being stored or treated is ignitable or reactive.  These controls, which could be helpful in preventing fires and explosions and the emission of potentially combustible vapors to the atmosphere, are not specifically required under the DSW exclusions.  The hazardous waste regulations also include procedures for segregating reactive, ignitable and incompatible wastes, and for locating ignitable and reactive wastes at least 15 meters from the facility's property line, which can reduce the likelihood of fires and explosions, or reduce the risk of them impacting nearby properties and individuals on those properties.  Finally, unlike the hazardous waste regulations, the DSW exclusions allow generators to accumulate their HSM in land-based units, including surface impoundments and waste piles, provided the HSMs are contained in such land-based units.  The hazardous waste regulations, on the other hand, provide that only permitted and interim-status facilities can operate these land-based units, and they must follow explicit requirements for containment of the waste during operation, closure and post-closure care.  The DSW exclusions do not require explicit containment requirements for these or other unit types.
Generator drop in status.  A generator operating under a DSW exclusion would not be required to count its excluded HSM in determining its generator status.  As a result, the generator's classification may change from a LQG to a SQG or CESQG because it would have less hazardous waste to count toward its monthly total and therefore be subject to less stringent hazardous waste requirements.  For example, SQGs are subject to less stringent requirements for tank systems, the control of air emissions, personnel training, contingency planning and emergency procedures.  As a result, a generator that drops from LQG to SQG generally would become less stringently regulated in regard to the prevention and control of fire and explosion hazards.  Examples of regulatory differences between LQGs and SQGs that might impact fire and explosion hazards include:
The SQG's HSM and hazardous waste would no longer be subject to air emission controls that are designed to prevent the escape of potentially combustible vapors from containers and tanks.
The SQG would not be required to provide ongoing personnel training in emergency procedures (e.g., fire control), or to maintain a contingency plan that spells out these procedures and identifies the location of emergency equipment (e.g., fire equipment). 
Some LQGs and SQGs could become CESQGs under the exclusion. CESQGs generally are not subject to the full hazardous waste regulations provided they meet certain requirements.
Generator on-site reclamation under the GCE may be less stringently regulated than permitted reclamation or treatment then disposal under the hazardous waste regulations.  Unlike the hazardous waste regulations, the GCE does not require a permit, public involvement, or explicit HSM management requirements.  For example, the GCE does not require generators to follow explicit standards for containment (e.g., no explicit standards for secondary containment, run-on/run-off controls, and inspections), contingency planning or procedures, or personnel training for emergencies (e.g., how to address fires and explosions).  If HSM is diverted from permitted reclamation or treatment then disposal under the hazardous waste regulations to reclamation under the GCE, there is no assurance that the generator will carry out comparable activities.  
HSM could be increasingly diverted from hazardous waste management and disposal to on-site reclamation under the GCE.  On-site reclamation could increase the risk of fires and explosions at generator facilities due to increased volumes accumulated and air emissions from reclamation processes, the use of heat in reclamation processes, and the potential mixing of wastes for reclamation.  For example, the reclamation of solvents typically involves the use of distillation, which requires the application of heat.  Solvents generally become more volatile as the temperature increases, which could lead to greater air emissions that, if not adequately captured, recovered or destroyed could be a source for a fire or explosion.    
Soil and Water Contamination (Scenarios 1 through 8).  During on-site accumulation, HSM releases can occur from factors, such as spills due to human error or deterioration of equipment; tank overflows or overtopping; leaks from damaged or deteriorated containers or tanks; complete failure of tank or container integrity; and run on/run off from the storage area.  During on-site transfer, releases could include spills, overflows, and leaks from human error or deterioration of transport equipment (e.g., leaking pipes).  Solvent wastes are especially susceptible to such releases since they are commonly in a liquid state.  Soil and water contamination hazards under the DSW exclusions could increase because of the following:
HSM can be accumulated longer, and potentially greater quantities can be accumulated on-site.   A longer accumulation period means that there is a greater likelihood for inadvertent mismanagement of the HSM, such as spills and leaks due to human error or equipment malfunction.  There is also a greater likelihood that over time, accumulation units could deteriorate due to corrosion, accidents, or mishandling, which could cause a release.  
Further, greater accumulation quantities mean there is greater likelihood that accumulation units could be filled beyond capacity and release HSM from overtopping.  In addition, a greater quantity of HSM to be managed could make it more difficult for the generator to contain and detect releases, and the potential magnitude of a release could be greater.  
No explicit containment standards.  The DSW exclusions do not include explicit standards for containment of HSM in tanks, containers, containment buildings and land-based units as do the hazardous waste regulations.  The hazardous waste regulations, for example, include land-based unit design requirements for liners and leachate collection and removal systems, dikes, and run-on/run-off systems.  They also include operating controls and practices to prevent spills and overflows (e.g., maintenance of sufficient freeboard in uncovered tanks), as well inspection requirements (e.g., tank owner/operators must inspect overfill/spill control equipment and tanks to detect corrosion and releases).  Because the DSW exclusion does not include such explicit requirements, there is less assurance that generators will adopt comparable controls and procedures to prevent release and respond to them if they occur.  Finally, unlike the hazardous waste regulations, the DSW exclusions allow generators to accumulate their HSM in land-based units including surface impoundments and waste piles, provided the HSMs are contained in such land-based units.  However, the DSW exclusions do not require explicit containment requirements for these or other unit types.  The use of land-based units may increase the likelihood of releases to soil, groundwater, and surface water.  For example, precipitation and run-on/runoff from land-based units may cause contaminants to leach or be carried out of the unit and contaminate environmental media.
Generator drop in status.  A generator under a DSW exclusion would not be required to count its excluded HSM in determining its generator status under the hazardous waste regulations; and therefore, it could drop in status (e.g., from LQG to SQG) and be subject to less stringent requirements.  Examples of regulatory differences between LQGs and SQGs include:
SQGs would no longer need to comply with as many explicit tank design and operating requirements (e.g., liner, leachate collection and removal system, controls and practices to prevent spills and overflows).
SQGs would no longer need to provide ongoing personnel training in emergency procedures (e.g., response to groundwater contamination), or to maintain a contingency plan that spells out these procedures and identifies the location of emergency equipment.
Some LQGs and SQGs could become CESQGs under the exclusion.  CESQGs generally are not subject to the full hazardous waste regulations provided they meet certain requirements.
Generator on-site reclamation under the GCE may be less stringently regulated than permitted reclamation or treatment then disposal under the hazardous waste regulations.  Unlike the hazardous waste regulations, the GCE does not require a permit, public involvement, or explicit HSM management requirements.  For example, the GCE does not require generators to follow explicit standards for containment (e.g., no explicit standards for secondary containment, run-on/run-off controls, or inspections), contingency planning or procedures, or personnel training for emergencies (e.g., how to address groundwater releases).  If HSM is diverted from permitted reclamation or disposal under the hazardous waste regulations to reclamation under the GCE, there is no assurance that the generator will carry out comparable activities.  
HSM could be increasingly diverted from off-site hazardous waste management to on-site reclamation under the GCE.  The additional processing required for on-site reclamation could result in more releases to soil and water at generator facilities.  For example, recycling by distillation of a solvent may require filtration, distillation, condensation, or other processing.  As the solvent is passed through the pipes, valves, and other equipment used in the distillation process, the likelihood of a release through leaks and spills increases.  
Volatile Air Emissions (Scenarios 1 through 8).  Volatile organic air emissions can occur during accumulation and transportation on-site.  For example, solvents held in tanks or containers could volatilize and escape to the atmosphere through open container lids, uncovered tanks, leaks and vents, breathing losses, and container filling and emptying.  Volatile emission hazards under the DSW exclusions could increase because of the following:
HSM can be accumulated longer, and potentially greater quantities can be accumulated on-site.  A longer accumulation period could increase the inadvertent mismanagement of the HSM, such as leaving container lids off of containers, which would allow greater escape of emissions.  In addition, it is possible that there could be greater opening and closing of tanks and containers as HSM is added, transferred, and removed from units.  There is also a greater likelihood that accumulation units could deteriorate due to corrosion, accidents, or mishandling, which could cause a release.  In addition, a greater quantity of HSM to be managed could make it more difficult for the generator to contain and detect releases, and the potential magnitude of a release would be greater.  
No explicit containment standards.  The DSW exclusions do not include explicit standards for containment of volatile organic emissions as do the hazardous waste regulations.  For example, LQGs may need to install a fixed roof to help control air pollutant emissions from tanks, or use containers that meet applicable DOT regulations.  Because the exclusions do not include explicit requirements, there is less assurance that generators will follow controls that will be comparable to the hazardous waste requirements.
Generator drop in status.  A generator under a DSW exclusion would not be required to count its excluded HSM in determining its generator status under the hazardous waste regulations; therefore, it could change its regulatory status (e.g., from LQG to SQG) and be subject to less stringent requirements. For example, SQGs would no longer need to comply with air emission controls described above.  This could result in increased air emissions.
Generator onsite HSM management prior to on-site reclamation under the GCE may be less stringently regulated than permitted reclamation or treatment then disposal under the hazardous waste regulations.  Unlike the hazardous waste regulations, the GCE does not require a permit, public involvement, or explicit HSM management requirements.  For example, the GCE does not require generators to follow explicit standards for containment (e.g., no explicit standards for secondary containment, run-on/run-off controls, or inspections), contingency planning or procedures, or personnel training for emergencies (e.g., how to address fires).  If HSM is diverted from permitted reclamation or disposal under the hazardous waste regulations to reclamation under the GCE, there is no assurance that the generator will carry out comparable activities. 
HSM could be increasingly diverted from hazardous waste management and disposal to on-site reclamation under the GCE.  The additional processing required for on-site reclamation could result in more air emissions at generator facilities.  For example, recycling by distillation of a solvent may require filtration, distillation, condensation, or other processing.  As the solvent is passed through the pipes, valves, and other equipment used in the distillation process, volatile emissions from fittings, valves, and process equipment could increase.  In addition, many reclamation processes, such as distillation of solvents, require the application of heat.  Solvents generally become more volatile as the temperature increases, which could lead to greater air emissions.  Changes in temperature can also increase breathing losses from tanks and equipment, leading to increased air emissions.
Particulate Wind Dispersal (Scenarios 1 through 8).  Wind dispersal can occur during accumulation and on-site movement of the HSM if the HSM is in the form of a dust or small, dry particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts).  For example, electric arc furnace dust might be susceptible to wind dispersal, since it is often present in dust form and may be stored in land-based units such as waste piles.  Wind dispersal hazards under the DSW exclusions could increase because of the following:
HSM can be accumulated longer, and potentially greater quantities can be accumulated on-site.  A longer accumulation period means that there is a greater likelihood for inadvertent mismanagement of the HSM, such as failure to ensure waste piles are covered or wet to control dust.  Further, greater accumulation quantities mean there is greater likelihood that accumulation units could be filled beyond capacity and release HSM.  In addition, a greater quantity of HSM to be managed could make it more difficult for the generator to contain and detect releases, and the potential magnitude of a release could be greater.  
No explicit containment standards.  The DSW exclusions do not include explicit standards for control of wind dispersal of particulates as do the hazardous waste regulations.  For example, generators must keep their containers closed when not filling or emptying them.  In addition, tank systems of LQGs must have wind dispersal controls, if needed.  Further, the GCE allows generators to manage their HSM in land-based units without a permit or interim status, unlike the HWRs.  The GCE does not prescribe wind dispersal controls for land-based units as do the HWRs.  For example, the HWRs require that surface impoundments be designed and operated to prevent wind and wave action.  Because the exclusions do not include explicit requirements, there is less assurance that generators will follow controls that will be comparable to the hazardous waste management unit requirements.
Generator drop in status.   A generator under a DSW exclusion would not be required to count its excluded material in determining its generator status under the hazardous waste regulations; therefore, it change its regulatory status (e.g., from LQG to SQG) and be subject to less stringent requirements. For example, SQGs would no longer need to comply with the wind dispersal requirements for tanks, which only apply to LQGs.
Residues from Reclamation (Scenarios 1 through 3 and 8).  Reclamation processes (e.g., distillation and high temperature metals recovery) could result in a hazardous waste residue that requires further treatment before land disposal in accordance with the RCRA Subtitle C regulations.  The hazardous waste regulations state that any material derived from a listed hazardous waste is also a listed hazardous waste.  This is called the "derived-from" rule.  It means, for example, that residues from the reclamation of a listed hazardous waste remain that listed hazardous waste.  The GCE does not address how residues from the reclamation process should be managed and is therefore not comparable to the hazardous waste regulations in this regard.  As a result, generators under the exclusion could identify the point at which residuals exit the unit to be a new point of generation for the purposes of applying the hazardous waste determination requirements of 40 CFR 262.11.  This raises the possibility that some residuals from the recovery process that were considered hazardous under full RCRA Subtitle C regulation would no longer be considered hazardous when exiting recovery units operated under the DSW rule, unless such residue was also a listed hazardous waste.  As a result, such wastes could exit Subtitle C regulation.
Abandoned Materials (Scenarios 1 through 3 and 8).  A significant number of the environmental damage cases evaluated by the Agency involve abandoned materials.  EPA believes that bankruptcies and other business failures were responsible for a number of the cases involving abandoned materials.  Abandoned HSMs under the DSW exclusions could increase because of the following:
HSM can be accumulated longer, and potentially greater quantities can be accumulated on-site.  A greater accumulation quantity could mean that the quantity of material abandoned could be greater, increasing the magnitude of problems associated with abandoned materials, such as the extent of contamination of environmental media and cleanup costs.  For example, a generator acting under the 2008 DSW final rule could go out of business with potentially greater quantities of accumulated, non-processed, and possibly not appropriately contained HSM on the property.  
Generator on-site reclamation under the GCE may be less stringently regulated than permitted reclamation or disposal under the hazardous waste regulations.  The GCE does not require financial assurance for reclamation under the generator's control.  Similarly, the hazardous waste regulations do not require financial assurance for generators that perform reclamation in their 90- and 180-day tanks and containers.  In this respect, the likelihood for abandonment of materials due to financial hardship under the GCE and the hazardous waste regulations is comparable.  However, unlike the hazardous waste regulations, the GCE does not require a permit, public involvement, or explicit HSM management standards.  The hazardous waste regulations do require generators to obtain a permit if they store their hazardous waste for longer than 90 days for LQGs or 180/270 days for SQGs (depending on type of activity involved), pending reclamation on-site.  These generators would be subject to a number of permit conditions that would reduce the likelihood of abandoned materials (e.g., financial assurance requirements, corrective action, closure notification and plans).  Hence, the likelihood for abandonment of HSMs due to financial hardship under the GCE is not comparable to the hazardous waste regulations when the HSM is stored (for more than 90 or 180/270 days,  depending on generator size and type of activity involved), pending on-site reclamation.

Table 2.4.  Potential Incremental Hazards under DSW Rule: Generators
                   Regulatory Differences under DSW Rule[a]
                         Potential Incremental Hazards
                                       
                                Fire/ Explosion
                           Soil/Water Contamination
                            Volatile Air Emissions
                          Particulate Wind Dispersal
                           Residues from Reclamation
                              Abandoned Materials
Scenario 1:  Generator continues current reclamation practices[b]
HSM accumulated longer, potentially greater quantities on-site
                                       X
                                       X
                                       X
                                       X
                                       
                                       X
No explicit containment standards
                                       X
                                       X
                                       X
                                       X
                                       
                                       
Potential generator change in regulatory status
                                       X
                                       X
                                       X
                                       X
                                       
                                       
On-site generator reclamation potentially less stringently regulated 
                                       X
                                       X
                                       X
                                       X
                                       
                                     X[c]
No derived-from rule, listed residues potentially exit Subtitle C
                                       
                                       
                                       
                                       
                                       X
                                       
Scenario 2: Generator switches from off-site disposal to on-site reclamation
HSM accumulated longer, potentially greater quantities on-site
                                       X
                                       X
                                       X
                                       X
                                       
                                       X
No explicit containment standards
                                       X
                                       X
                                       X
                                       X
                                       
                                       
Potential generator change in regulatory status
                                       X
                                       X
                                       X
                                       X
                                       
                                       
On-site generator reclamation potentially less stringently regulated 
                                       X
                                       X
                                       X
                                       X
                                       
                                       X
No derived-from rule, listed residues potentially exit Subtitle C
                                       
                                       
                                       
                                       
                                       X
                                       
Scenario 3: Generator switches from off-site disposal to off-site recycling under the control of the generator[d]
HSM accumulated longer, potentially greater quantities on-site
                                       X
                                       X
                                       X
                                       X
                                       
                                       X
No explicit containment standards
                                       X
                                       X
                                       X
                                       X
                                       
                                       
Potential generator change in regulatory status
                                       X
                                       X
                                       X
                                       X
                                       
                                       
Scenario 4 through 8: Generator switches to off-site recycling
HSM accumulated longer, potentially greater quantities on-site
                                       X
                                       X
                                       X
                                       X
                                       
                                       
No explicit containment standards
                                       X
                                       X
                                       X
                                       X
                                       
                                       
Potential generator change in regulatory status
                                       X
                                       X
                                       X
                                       X
                                       
                                       
On-site generator reclamation potentially less stringently regulated 
                                       X
                                       X
                                       X
                                       X
                                       
                                       X
No derived-from rule, listed residues potentially exit Subtitle C
                                       
                                       
                                       
                                       
                                       X
                                       
[a] These differences were identified by comparing the federal regulations applicable to hazardous waste generators and generators of DSW-excluded materials. See Section 2.3 of this report for additional information.
[b] Abandonment of HSMs could be more likely to occur under the GCE than hazardous waste regulations for reclaimers that store their HSM pending reclamation. 
[c] This scenario includes generators that continue their current practices under the exclusions by either reclaiming on-site, shipping to a permitted, off-site reclamation facility, or exporting the material for reclamation.
[d] This scenario includes generators switching from off-site disposal to sending the material to either a same-company reclaimer or toll manufacturer under the GCE. 
[e] This scenario includes generators switching from off-site reclamation at a facility without a permit to another type of reclamation under the TBE, including either off-site reclamation at a RCRA-permitted facility, off-site reclamation at a facility without a permit, or export of the material to a company in another country.


            Transporters
Fires and Explosions (Unlikely for all Scenarios).  Some HSM, such as solvents, contain volatile chemicals, which can be released to the air, and if flammable, these air emissions may cause fires and explosions if ignited, causing injury or property damage.  Fires and explosions may also evolve other toxic or hazardous gasses.  
HSM that is flammable or explosive would qualify as a DOT hazardous material and be subject to comparable DOT regulation (e.g., for packaging, labeling, marking, placarding, parking and driving) when transported offsite,), regardless of whether the material is regulated as hazardous waste or DSW-excluded material.  Note, however, that the DSW exclusions do not require the use of a manifest or other document that provides RCRA waste codes at 40 CFR Part 261.  All hazardous waste offsite shipments must be accompanied by a manifest that includes waste codes.  Waste codes could be helpful to emergency responders in fully characterizing the hazards of a released material and taking appropriate response action during a fire or explosion.  However, the DOT hazardous material requirements are specifically designed to help emergency responders to characterize the hazards of materials being transported, so it is unlikely that the lack of waste codes would seriously impede an emergency response. 
Volatile Air Emissions, Soil, Water, and Particulate Wind Dispersal (Scenarios 1, 3, 4, 5, 6, 7, 8).  During loading, unloading, and transport, volatile air emissions from solvents may escape from valves, pumps, hoses, tank trucks, drums, and other containers.  Under certain conditions, solvents held in tank trucks or drums could volatilize and escape to the atmosphere (e.g., through open container lids, uncovered tanks, leaks and vents).  Leaks and spills during transfer of HSM, leaky or improperly closed containers, or accidents could result in release of HSM to loading area soil, groundwater, or surface water.  Further, wind dispersal of HSM (e.g., electric arc furnace dust) can occur if it is in the form of a dust or small, dry particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts).  For example, dust in hopper rail cars or roll-off dumpsters that are not properly covered could blow out and result in inhalation exposures (when traveling through communities) and/or contaminate the surrounding environment during transport.  Contaminated soil or other solid media may also be susceptible to resuspension and wind dispersal.
HSM under the exclusions that qualify as a DOT hazardous material would be subject to generally comparable transportation requirements as hazardous waste in regard to packing, labeling, marking, placarding, parking and driving. Specifically, the DOT regulations impose comparable requirements on hazardous waste as it does on other types of DOT hazardous materials in regard to these activities.  Therefore, such DOT-regulated shipments of hazardous waste and excluded material would address releases of materials in comparable ways.
However, excluded HSM that does not qualify as a DOT hazardous material would not be subject to transportation requirements that are comparable to hazardous waste in regard to packing, labeling, marking, placarding, parking or driving, or reporting releases of RQs to the National Response Center.  Transporters of such excluded HSM would not be required to follow comparable procedures to address potential releases of materials, including vapors, liquids, solids, or particulate matter.  For example, transporters might use less expensive packaging that is more likely to leak or be ruptured in an accident, contaminating soil and water, or releasing volatile emissions.  
Abandoned Materials (Scenario 3).  A shipment of HSM may be abandoned during transit for a number of reasons.  Abandonment could occur, for example, if there is a transportation accident and released/contaminated materials are left by the roadside, the transporter cannot find the destination facility, or the transporter otherwise decides not to fulfill its obligation to deliver the HSM.  EPA established the hazardous waste manifest system as a means of ensuring that hazardous wastes are tracked from "cradle to grave."  Under the manifest system, each party to the shipment must sign and keep a copy of the manifest and the generator must be notified of its receipt by the destination facility, increasing each party's accountability over the shipment and reducing the likelihood of abandoned shipments.  The GCE does not include a requirement for a hazardous waste manifest.  Where generators reclaim HSM under the GCE, but the generation and reclamation facilities are in different locations, the HSM must be transported offsite.  Similarly, generators may transport HSMs to an unaffiliated offsite reclaimer under the TBE.  In such cases, the likelihood of HSM being abandoned could increase.


Table 2.5.  Potential Incremental Hazards under DSW Rule: Transporters
Regulatory Differences under DSW Rule[a]
                         Potential Incremental Hazards

                                Fire/Explosion
    Volatile Air, Emissions, Soil/ Water Contamination,  and Wind Dispersal
                              Abandoned Materials
Scenario 1:  Generator continues current reclamation practices[b]
No waste codes on shipping papers
                                       
                                       

HSM that no longer qualifies as DOT hazardous material or triggers RQ
                                       
                                       X

Scenario 2: Generator switches from off-site disposal to on-site reclamation
Not applicable
Scenario 3: Generator switches from off-site disposal to off-site recycling under the control of the generator[c]
No waste codes on shipping papers
                                       
                                       

HSM that no longer qualifies as DOT hazardous material or triggers RQ
                                       
                                       X

No tracking document required


                                       X
Scenario 4: Generator switches from off-site disposal to off-site recycling at a RCRA-permitted facility
No waste codes on shipping papers
                                       
                                       

HSM that no longer qualifies as DOT hazardous material or triggers RQ
                                       
                                       X

Scenario 5: Generator switches from off-site disposal to off-site recycling at a U.S. facility without a RCRA permit
No waste codes on shipping papers
                                       
                                       

HSM that no longer qualifies as DOT hazardous material or triggers RQ
                                       
                                       X

Scenario 6: Generator switches from off-site disposal to exporting for recycling
No waste codes on shipping papers
                                       
                                       

HSM that no longer qualifies as DOT hazardous material or triggers RQ
                                       
                                       X

Scenario 7: Generator switches from off-site recycling at a facility without a permit to another type of recycling under DSW[d]
No waste codes on shipping papers
                                       
                                       

HSM that no longer qualifies as DOT hazardous material or triggers RQ
                                       
                                       X

Scenario 8: Generator switches from off-site recycling at a RCRA-Permitted facility to another type of recycling under DSW
No waste codes on shipping papers
                                       
                                       

HSM that no longer qualifies as DOT hazardous material or triggers RQ
                                       
                                       X

[a] These differences were identified by comparing the federal regulations applicable to hazardous waste shipments and shipments of DSW-excluded materials. See Section 2.3 of this report for additional information.
[b] This scenario includes generators that continue their current practices under the exclusions by either reclaiming on-site, shipping to a permitted, off-site reclamation facility, or exporting the material for reclamation.
[c] This scenario includes generators switching from off-site disposal to sending the material to either a same-company reclaimer or toll manufacturer under the GCE. 
[d] This scenario includes generators switching from off-site reclamation at a facility without a permit to another type of reclamation under the TBE, including either off-site reclamation at a RCRA-permitted facility, off-site reclamation at a facility without a permit, or export of the material to a company in another country.

            Intermediate and Reclamation Facilities
Fires and Explosions (Scenarios 1 and 4 through 8).  Some HSM, such as solvents, are often flammable, and can ignite to create fires and explosions.  HSM may also contain volatile chemicals, which can be released to the air, and if flammable, these air emissions may cause fires and explosions if ignited, causing injury or property damage.  Fires and explosions may also evolve other toxic or hazardous gasses.  Fire and explosion hazards under the DSW exclusions could increase because of the following:
Change from RCRA-permitted to unpermitted management facilities (Scenarios 1, 5, and 8).  Some HSMs may be diverted from off-site reclamation or disposal at a facility permitted under the hazardous waste regulations to off-site reclamation, which does not require a permit.  Permitted facilities are subject to prescriptive permit requirements covering the design, construction, operation, financial assurance, closure and post-closure of the facility, including hazardous waste management units.  They also are subject to public involvement in the permitting process.  Reclamation under the DSW exclusion would be subject to fewer requirements, including no requirement for a permit or public involvement.  For example, reclamation under the exclusion is not subject to emergency preparedness and response, personnel training, or prescriptive requirements for containment.  These requirements could reduce the likelihood of fires and explosions, reduce their magnitude, or increase the ability of facilities to respond to them and reduce the damage caused.  
No explicit containment standards (Scenarios 1, 5, and 8).  The hazardous waste regulations and TBE require containment of HSM in the unit.  The hazardous waste regulations prescribe design, installation, operating, closure and post-closure standards to address containment, whereas the TBE does not.  The exclusion requires that the HSM be managed in a manner that is at least as protective as that employed for analogous raw material and be contained.  As such, the TBE allows more flexibility in how HSMs can be managed and contained.  These controls, which could be helpful in preventing fires and explosions and the emission of potentially combustible vapors to the atmosphere, are not specifically required under the DSW exclusions. 
No explicit standards for controlling air emissions (Scenarios 1, 5, and 8).  The TBE does not include standards for controlling air emissions from process vents, equipment leaks, or storage units as do the hazardous waste regulations.  While the DSW exclusions require containment of HSM, they do not include explicit requirements for control of air emissions. The hazardous waste regulations and TBE require containment of HSM in the unit.  The hazardous waste regulations set forth prescriptive design, operating and other standards to control air releases for process vents, leaks and storage units.  The TBE does not include prescriptive requirements.  These controls, which could be helpful in preventing fires and explosions and the emission of potentially combustible vapors to the atmosphere, are not specifically required under the DSW exclusions. 
HSM could be increasingly diverted from hazardous waste management to reclamation under the TBE (Scenarios 1 and 4 through 8).  Increased reclamation could increase the risk at reclamation sites of fires and explosions due to increased air emissions, the use of heat in reclamation processes, and the potential mixing of wastes for reclamation.  For example, the reclamation of solvents typically involves the use of distillation, which requires the application of heat.  Solvents generally become more volatile as the temperature increases, which could lead to greater air emissions that could be a source for a fire or explosion.    
Soil and Water Contamination (Scenarios 1 and 4 through 8).  Soil and groundwater contamination from HSM releases can occur during accumulation and transportation on- site.  During accumulation, a number of factors could lead to a release (e.g., run-off from the storage area, tank overflows, leaks from damaged or deteriorated containers or tanks, or complete failure of tank).  During transfer, releases could include spills, overflows, and leaks from human error or deterioration of transport equipment (e.g., leaking pipes).  For example, solvents are susceptible to such releases since they are commonly in a liquid state.  Soil and water contamination hazards under the DSW exclusions could increase because of the following:
Change from RCRA-permitted to unpermitted management facilities (Scenarios 1, 5, and 8).  Some HSMs may be diverted from off-site reclamation or disposal at a permitted facility under the hazardous waste regulations to off-site reclamation under the TBE, which does not require a permit.  Permitted facilities are subject to prescriptive permit requirements covering the design, construction, operation, financial assurance, closure and post-closure of the facility, including hazardous waste management units.  They also are subject to public involvement in the permitting process.  Reclamation under the TBE would be subject to fewer requirements, including no requirement for a permit or public involvement.  For example, reclamation under the exclusion is not subject to emergency preparedness and response, personnel training, or prescriptive requirements for containment.  These requirements could reduce the likelihood of leaks and spills that could result in soil or water contamination, reduce their magnitude, or increase the ability of facilities to respond to them and reduce the damage caused.  
No explicit containment standards (Scenarios 1, 5, and 8).  The hazardous waste regulations and TBE require containment of HSM in the unit.  The hazardous waste regulations prescribe specific design, installation, operating, closure and post-closure standards to address containment, whereas the TBE does not.  The exclusion requires that the material be managed in a manner that is at least as protective as that employed for analogous raw material and be contained.  As such, the TBE allows more flexibility in how HSMs can be managed and contained.  These controls, which could reduce the likelihood of leaks and spills that could result in soil or water contamination, reduce their magnitude, or increase the ability of facilities to respond to them and reduce the damage caused, are not specifically required under the DSW exclusions. 
HSM could be increasingly diverted from hazardous waste management to reclamation under the TBE (Scenarios 1 and 4 through 8).  Increased reclamation could increase the risk at reclamation sites of leaks and spills that could result in soil or water contamination or increase their magnitude.  The additional processing required for on-site reclamation could result in more releases to soil and water.  For example, recycling by distillation of a solvent may require filtration, distillation, condensation, or other processing.  As the solvent is passed through the pipes, valves, and other equipment used in the distillation process, the likelihood of a release through leaks and spills increases.  
Volatile Air Emissions (Scenarios 1 and 4 through 8). Volatile organic air emissions can be released during accumulation, transportation, and reclamation on-site.  Under certain conditions, solvents held in tanks or containers could volatilize and escape to the atmosphere (e.g., through open container lids, uncovered tanks, leaks and vents, and breathing losses).  This also could occur during the reclamation process.  Volatile emission hazards under the DSW exclusions could increase because of the following:
Change from RCRA-permitted to unpermitted management facilities (Scenarios 1, 5, and 8).  Some HSMs may be diverted from off-site reclamation or disposal at a permitted facility under the hazardous waste regulations to off-site reclamation under the TBE, which does not require a permit.  Permitted facilities are subject to prescriptive permit requirements covering the design, construction, operation, financial assurance, closure, and post-closure of the facility, including hazardous waste management units.  They also are subject to public involvement in the permitting process.  Reclamation under the TBE would be subject to fewer requirements, including no requirement for a permit or public involvement.  For example, reclamation under the exclusion is not subject to emergency preparedness and response, personnel training, or prescriptive requirements for containment.  These requirements could reduce the likelihood of volatile air emissions or reduce their magnitude.  
No explicit containment standards (Scenarios 1, 5, and 8).  The hazardous waste regulations and TBE require containment of HSM in the unit.  The hazardous waste regulations have explicit design, installation, operating, closure, and post-closure standards to address containment, whereas the TBE does not.  The exclusion requires that the HSM be managed in a manner that is at least as protective as that employed for analogous raw material and be contained.  As such, the TBE allows more flexibility in how HSMs can be managed and contained.  These controls, which could be helpful in preventing volatile air emissions, are not specifically required under the DSW exclusions. 
No explicit standards for controlling air emissions (Scenarios 1, 5, and 8).  The TBE does not include standards for controlling air emissions from process vents, equipment leaks, or storage units as do the hazardous waste regulations.  While the DSW exclusions require containment of HSM, they do not include explicit requirements for control of air emissions. The hazardous waste regulations and TBE require containment of HSM in the unit.  The hazardous waste regulations set forth explicit design, operating and other standards to control air releases for process vents, leaks and storage units.  These controls, which could be helpful in preventing volatile air emissions, are not specifically required under the DSW exclusions. 
HSM could be increasingly diverted from hazardous waste management to reclamation under the TBE (Scenarios 1 and 4 through 8).  The additional processing required for on-site reclamation could result in more air emissions at reclamation sites.  For example, recycling by distillation of a solvent may require filtration, distillation, condensation, or other processing.  As the solvent is passed through the pipes, valves, and other equipment used in the distillation process, volatile emissions from fittings, valves, and process equipment could increase.  In addition, many reclamation processes, such as distillation of solvents, require the application of heat.  Solvents generally become more volatile as the temperature increases, which could lead to greater air emissions.  Changes in temperature can also increase breathing losses from tanks and equipment, leading to increased air emissions.
Particulate Wind Dispersal (Scenarios 1 and 4 through 8).  Wind dispersal can occur if the HSM is in the form of a dust or small, dry particles, adequate controls are not in place, and certain climatic conditions prevail (e.g., strong wind gusts).  Soil or other solid media contaminated with solvents or other contaminants may be susceptible to wind dispersal.  Electric arc furnace dust in particular might be susceptible to wind dispersal because it is often present in dust form and may be stored in waste piles.  Wind dispersal contamination hazards under the DSW exclusions could increase because of the following:
Change from RCRA-permitted to unpermitted management facilities (Scenarios 1, 5, and 8).  Some HSMs may be diverted from off-site reclamation or disposal at a permitted facility under the hazardous waste regulations to off-site reclamation under the TBE, which does not require a permit.  Permitted facilities are subject to explicit permit requirements covering the design, construction, operation, financial assurance, closure, and post-closure of the facility and hazardous waste management units.  They also are subject to public involvement in the permitting process.  Reclamation under the TBE would be subject to fewer requirements, including no requirement for a permit or public involvement.  For example, reclamation under the exclusion is not subject to emergency preparedness and response, personnel training, or explicit requirements for containment.  These requirements could reduce the likelihood of wind dispersal of HSM, reduce their magnitude, or increase the ability of facilities to respond to them and reduce the damage caused.  
No explicit containment standards (Scenarios 1, 5, and 8).  The hazardous waste regulations and TBE require containment of HSM in the unit.  The hazardous waste regulations contain explicit design, installation, operating, closure and post-closure standards to address containment, whereas the TBE does not.  The exclusion requires that the HSM be managed in a manner that is at least as protective as that employed for analogous raw material and be contained.  As such, the TBE allows more flexibility in how HSMs can be managed and contained.  These controls, which could reduce the likelihood of wind dispersal of HSM, or increase the ability of facilities to respond to them and reduce the damage caused, are not specifically required under the DSW exclusions. 
Residues from Reclamation (Scenarios 1 and 4, 5, 7, and 8). Reclamation processes (e.g., distillation and high temperature metals recovery) could result in a hazardous waste residue that requires further treatment before land disposal in accordance with the RCRA Subtitle C regulations.  The hazardous waste regulations state that any material derived from a listed hazardous waste is also a listed hazardous waste.  This is called the "derived-from" rule.  It means, for example, that residues from the reclamation of a listed hazardous waste are listed hazardous waste.  The GCE does not address how residues from the reclamation process should be managed and is therefore not comparable to the hazardous waste regulations in this regard.  As a result, generators under the exclusion could identify residuals to be a new point of generation for the purposes of applying the hazardous waste determination requirements of 40 CFR 262.11.  This raises the possibility that some residuals from recovery process that were considered hazardous under full RCRA Subtitle C regulation would no longer be considered hazardous for recovery units operated under the DSW rule, unless such residue was also a listed hazardous waste.  As a result, such wastes could exit Subtitle C regulation.
Abandoned Materials (Scenarios 5 and 8).  A significant number of the environmental damage cases evaluated by the Agency involve abandoned materials.  EPA believes that bankruptcies and other business failures could be responsible for a number of these cases.  Abandoned materials at intermediate and reclamation sites under the DSW exclusions could increase because of the following:
The TBE requires facilities to obtain financial assurance for closure and accidents.  By obtaining financial assurance, a facility is demonstrating that even if events beyond its control make its operations uneconomical, funds will be available to clean up abandoned materials.
      These requirements are more stringent than the hazardous waste regulations that apply to reclaimers that do not store the hazardous waste pending reclamation; such reclaimers are not required to obtain financial assurance.  In addition, they are comparable to the financial assurance requirements applicable to permitted reclaimers.  However, permitted reclaimers also are subject to other requirements that could prevent abandonment of HSM, including corrective action during each permit renewal.  They also are subject to periodic inspections by EPA and state regulatory personnel.
HSM could be increasingly diverted from hazardous waste management to reclamation under the TBE, which may result in greater quantities accumulated on- site at these facilities.  A greater accumulation quantity could mean that the quantity of HSM abandoned could be greater, increasing the magnitude of problems associated with abandoned materials, such as the extent of environmental contamination and cleanup costs.



Table 2.6.  Potential Incremental Hazards under DSW Rule: Intermediate and Reclamation Facilities
                   Regulatory Differences under DSW Rule[a]
                         Potential Incremental Hazards

                                Fire/ Explosion
                           Soil/Water Contamination
                            Volatile Air Emissions
                          Particulate Wind Dispersal
                           Residues from Reclamation
                              Abandoned Materials
Scenario 1:  Generator continues current reclamation practices[b]
Change from RCRA-permitted to unpermitted management facilities
                                       X
                                       X
                                       X
                                       X
                                       
                                       
No explicit containment standards
                                       X
                                       X
                                       X
                                       X
                                       
                                       
No explicit standards for controlling air emissions
                                       X
                                       
                                       X
                                       
                                       
                                       
HSM increasingly diverted from hazardous waste management and disposal to reclamation under the TBE
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
No derived-from rule, listed residues potentially exit Subtitle C
                                       
                                       
                                       
                                       
                                       X
                                       
Scenario 2: Generator switches from off-site disposal to on-site reclamation
Not applicable
                                       
                                       
                                       
                                       
                                       
                                       
Scenario 3: Generator switches from off-site disposal to off-site reclamation under the control of the generator[c]
Not applicable
                                       
                                       
                                       
                                       
                                       
                                       
Scenario 4: Generator switches from off-site disposal to off-site recycling at a RCRA-permitted facility
HSM increasingly diverted from hazardous waste management and disposal to reclamation under the TBE
                                       X
                                       X
                                       X
                                       X
                                       X
                                       
No derived-from rule, listed residues potentially exit Subtitle C
                                       
                                       
                                       
                                       
                                       X
                                       
Scenario 5: Generator switches from off-site disposal to off-site recycling at a U.S. facility without a RCRA permit
Change from RCRA-permitted to unpermitted management facilities
                                       X
                                       X
                                       X
                                       X
                                       
                                       
No explicit containment standards
                                       X
                                       X
                                       X
                                       X
                                       
                                       
No explicit standards for controlling air emissions
                                       X
                                       
                                       X
                                       
                                       
                                       
HSM increasingly diverted from hazardous waste management and disposal to reclamation under the TBE
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
No derived-from rule, listed residues potentially exit Subtitle C
                                       
                                       
                                       
                                       
                                       X
                                       
Scenario 6: Generator switches from off-site disposal to exporting for reclamation
HSM increasingly diverted from hazardous waste management and disposal to reclamation under the TBE
                                       X
                                       X
                                       X
                                       X
                                       X
                                       
No derived-from rule, listed residues potentially exit Subtitle C
                                       
                                       
                                       
                                       
                                       
                                       
Scenario 7: Generator switches from off-site reclamation at a facility without a permit to another type of recycling under DSW[d]
HSM increasingly diverted from hazardous waste management and disposal to reclamation under the TBE
                                       X
                                       X
                                       X
                                       X
                                       X
                                       
No derived-from rule, listed residues potentially exit Subtitle C
                                       
                                       
                                       
                                       
                                       X
                                       
Scenario 8: Generator switches from off-site reclamation a RCRA-Permitted facility to another type of recycling under DSW
Change from RCRA-permitted to unpermitted management facilities
                                       X
                                       X
                                       X
                                       X
                                       
                                       
No explicit containment standards
                                       X
                                       X
                                       X
                                       X
                                       
                                       
No explicit standards for controlling air emissions
                                       X
                                       
                                       X
                                       
                                       
                                       
HSM increasingly diverted from hazardous waste management and disposal to reclamation under the TBE
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
No derived-from rule, listed residues potentially exit Subtitle C
                                       
                                       
                                       
                                       
                                       X
                                       

[a] These differences were identified by comparing the federal regulations applicable to storage facilities operating under the hazardous waste regulations  and intermediate/reclamation facilities operating under the DSW exclusions. See Section 2.3 of this report for additional information.
[b] This scenario includes generators that continue their current practices under the exclusions by either reclaiming on-site, shipping to a permitted, off-site reclamation facility, or exporting the material for reclamation.
[c] This scenario includes generators switching from off-site disposal to sending the material to either a same-company reclaimer or toll manufacturer under the GCE. 
[d] This scenario includes generators switching from off-site reclamation at a facility without a permit to another type of reclamation under the TBE, including either off-site reclamation at a RCRA-permitted facility, off-site reclamation at a facility without a permit, or export of the material to a company in another country. 
Potential Reductions and Transfers of Hazards by Facility Type and Scenario
            Generators
Abandoned Materials (All Scenarios).  The hazardous waste regulations and DSW exclusions have comparable requirements for initial and biennial submittals in regard to frequency and types of information submitted, such as quantities and types of HSM.  However, the biennial reporting requirement in the hazardous waste regulations applies only to LQGs.  The DSW notification requirement applies to generators regardless of amount of waste generated.   
Under the DSW exclusions, EPA and state regulators will have a greater knowledge of the types and quantities of HSM being generated and managed by SQGs.  They could use this information when developing compliance activities, such as inspections and outreach, resulting in better compliance and reduced risk of abandoned materials.   In addition, a greater knowledge of HSM types and quantities at these smaller sites will give regulators a better idea of how to remove and clean up HSM in a protective manner if it were abandoned.  The biennial notification requirement, along with the requirement for sites to notify EPA if they cease to operate under the exclusions, will give regulators an indication when these SQGs are closing or have closed so that the regulators can take appropriate action at these sites at that time (e.g., compliance assistance) to ensure the HSM is not abandoned.  The information submitted in notifications is also publicly available.  The general public can use this information to better understand the generation and management of HSM in their communities.  
            Transporters
Reduction in Transportation Accidents, Pollution, Traffic and Noise (Scenarios 1 through 8).  Following are potential changes under the DSW exclusion that could result in a reduced frequency of off-site shipments from generator sites and a resulting decrease in transportation hazards:
Longer generator accumulation periods are allowed, reducing the number of shipments made to reclaimers (Scenarios 1, 3, 4, 5, 6, 7, 8). Under 40 CFR part 262, LQGs and SQGs are prohibited from accumulating hazardous waste on-site for more than 90 or 180/270 days (depending on type of activity involved),, respectively, without a permit or interim status.  SQGs also must ensure that the quantity of hazardous waste accumulated on-site does not exceed 6,000 kilograms.  To avoid exceeding these accumulation limits, generators may need to make numerous off-site shipments of hazardous waste during the year (e.g., less than every 90 days for LQGs).
      Generators operating under an exclusion of the DSW final rule are not subject to the 40 CFR part 262 generator standards, including the accumulation volume or time limits, for their HSMs managed under the rule.  Rather, these generators would manage their materials in accordance with the 2008 DSW final rule.  In regard to on-site accumulation, they must ensure that their HSMs are not "speculatively accumulated."  This means that a generator accumulating HSM must be able to show that, during a calendar year, the amount of such material that is recycled or transferred to a different site for recycling is at least 75% by weight or volume of the amount of the HSM present at the beginning of the period.
      This speculative accumulation provision gives generators greater flexibility to determine the appropriate timing of their off-site shipments.  This could allow them to take advantage of economies of scale in transporting their HSM   In general, unit transportation costs decrease as the amount of material transported increases.  Generators that make fewer, larger shipments will pay less in transportation costs than those that must rely on more, smaller shipments for the same amount of waste.  
      For example, a generator that had to make four small off-site shipments each year under the 90-day clock might be able to make one or two larger off-site shipments each year under the DSW exclusion, provided the speculative accumulation provision is satisfied.  
      Fewer shipments would result in a reduction in the total number of trucks on the road and a decrease in the total number of miles traveled by trucks carrying the HSM.  This would cause a corresponding decrease in the incidence of transportation-related accidents, and adjacent community exposures to air emissions from the waste on the roads, air emissions from truck operation, and traffic.  
      These hazard reductions could occur, for example, when generators switch from off-site reclamation under the hazardous waste regulations to off-site reclamation under the 2008 DSW final rule.  They also could occur when generators switch from off-site treatment and disposal under the hazardous waste regulations to off-site reclamation under the DSW final rule.  
Generators may switch to on-site reclamation, reducing or eliminating their off-site shipments of HSM (Scenarios 2 and 8). Some generators might opt to switch from off-site treatment, disposal or reclamation under the hazardous waste regulations to on-site reclamation under the rule.  On-site reclamation could reduce the number of off-site shipments each year.  For example, the generator would not need to ship its reclaimed materials offsite within the 90 days (for LQGs) or 180/270 days (for SQGs) as required for hazardous waste.  Rather, it could ship the HSM off-site less frequently.  Less frequent shipments could result in a corresponding decrease in the incidence of transportation-related accidents, air emissions from the waste on the roads, air emissions from truck operation, and traffic.  
Change in generator status results in fewer off-site shipments of all hazardous waste produced by that facility (Scenarios 1 through 8).  A generator that reclaims on-site or off-site under the rule might change its generator status and thereby make fewer off-site hazardous waste shipments each year.  For example, a generator that drops from being a LQG to a SQG would be able to ship its hazardous wastes off-site under the 180/270-day clock instead of every 90 days.  Fewer off-site shipments could result in the hazard reductions described above.
            Intermediate and Reclamation Facilities
Releases from Reclamation (Scenario 7).  The TBE requires facilities to obtain financial assurance for closure and accidents.  By obtaining financial assurance, a facility is demonstrating that even if the facility declares bankruptcy, funds will be available to clean up abandoned HSMs.  These requirements are more stringent than the hazardous waste regulations that apply to reclaimers that do not store the hazardous waste pending reclamation; such reclaimers are not required to obtain financial assurance.  The financial assurance requirements will decrease the likelihood that the economic burden for the cleanup of abandoned materials will fall on the public.
In addition, the TBE requires generators to make reasonable efforts to evaluate a reclamation facility before shipping excluded material to it when the facility's management of the HSM would not be addressed under a RCRA Part B permit or interim-status standard.  The hazardous waste regulations do not require such reasonable efforts.  For example, the TBE requires generators to determine that the facility has not been classified as a significant non-complier with RCRA Subtitle C and that it has the equipment and trained personnel to safely recycle the HSM.  The generator must affirmatively answer these and other questions listed at  40 CFR 261.4(a) (24) (v)(B) for the facility.  EPA expects these determinations by generators to motivate reclaimers to improve their environmental performance (e.g., properly train their personnel) and address outstanding violations and prevent future ones.  These efforts also will help to ensure that the HSMs are managed at facilities that are qualified to reclaim them safely.  In this respect, the TBE could reduce environmental hazards in comparison with the hazardous waste regulations for reclamation facilities that are not subject to a RCRA permit.   EPA recognizes that not all generators will have the same ability to perform efforts audits, and the efficacy of these efforts will depend on their ability.  For example, small or independent generators may have fewer financial resources or staff to use to conduct such audits, and may be more likely to miss indications that reclaimers are not legitimately recycling HSM. 
Abandoned Materials (Scenario 7).  EPA believes that bankruptcies and other business failures (intended or unintended) could be responsible for abandonment of HSM at a number of former reclamation facilities. Abandoned materials at intermediate and reclamation sites under the 2008 DSW final rule could increase due to reduced regulatory requirements under the DSW exclusions.  However, the TBE requires facilities to obtain financial assurance for closure and accidents.  The financial assurance demonstrates that even if a facility goes into bankruptcy, funds will be available to clean up abandoned materials, and the financial burden for cleanup will not fall on the public.  These requirements are more stringent than the hazardous waste regulations that apply to reclaimers that do not store the hazardous waste pending reclamation; such reclaimers are not required to obtain financial assurance.  
Other Impacts
Environmental Hazards from Hazardous Waste Treatment and Disposal (Scenarios 2 through 6).  The 2008 DSW final rule could make reclamation more appealing than treatment and disposal for some generators.  For example, the rule would lessen the barriers to reclamation, such as regulatory burdens and manifesting/permitting costs, and thereby make reclamation more cost-competitive.  In addition, the rule lessens the stigma associated with reclaiming "hazardous waste" since the material to be reclaimed is considered to be "hazardous secondary material."  As a result, HSMs might be diverted increasingly from treatment and disposal to reclamation under the 2008 DSW final rule.  This could shift hazards associated with the management of HSM from some communities to others.  For example, a reduction of hazards in one community (e.g., HSM diverted away from a distant incinerator) could translate to an increase in hazards in another community (e.g., HSM redirected to a nearby reclaimer using distillation).
Greater reclamation could reduce the quantity of hazardous wastes sent to incineration, burning for energy recovery, and landfilling.  This could reduce the amount of emissions from incinerators, boilers and industrial furnaces reducing emissions of hazardous air pollutants and greenhouse gasses.  It could also reduce the risk of contamination of groundwater and air emissions from landfills. However, there could be some offsetting environmental impacts from increased reclamation.  For example, there could be air emissions and increased energy use from such reclamation methods as solvents distillation.  
Environmental Hazards from Mining Operations and Air Pollution from Energy Usage (Scenarios 2 through 6).  As indicated earlier, HSMs might be diverted increasingly from treatment and disposal to reclamation under the 2008 DSW final rule.  As the quantity of a reclaimed material increases, the demand for the corresponding virgin material could decrease.  This in turn could result in a reduction in the exploration, development, extraction, refining and processing of the virgin material, which could help to preserve the natural environment and generate less air, water, and soil pollution associated with extraction and processing activities.  For example, etchant suppliers could increasingly receive and recycle electroplating sludge from printed circuit board manufacturers, lessening the demand for copper from mining and the associated environmental footprint and effects of mining operations. 
In addition, when increasing quantities of HSMs are reclaimed, less energy might be needed to extract, transport, and process the raw materials.  When energy demand decreases, fewer fossil fuels are burned and less contaminants from energy generation and material transportation are emitted into the atmosphere.  For example, less energy is normally needed to re-melt metals for recycling than to produce virgin metal from ore; hence, less greenhouse gases and other air emissions could be generated from recycling than using raw materials to produce similar products.  
Finally, some manufacturing plants generate large quantities of waste while producing a "virgin" product.  These wastes must be managed in accordance with applicable solid and hazardous waste regulations, which could involve incineration and landfilling. Greater reclamation could reduce the demand for virgin products, and hence, lessen the generation of solid and hazardous wastes from their manufacturing.


Table 2.7.  Potential Reduction in Hazards under DSW Rule
                         Differences under DSW Rule[a]
                         Potentially Decreased Hazards
                                       
Transportation Accidents, Pollution, Traffic, Noise
         Releases  from Reclamation (e.g., fires, soil contamination)
                              Abandoned Materials
               Environmental Hazards from Treatment and Disposal
                        Air Pollution from Energy Usage
                 Environmental Hazards from Mining Operations
Scenario 1:  Generator continues current reclamation practices[b]
Longer generator accumulation periods, fewer off-site shipments of HSM
                                       X
                                       
                                       
                                       
                                       
                                       
Change in generator status, fewer shipments of hazardous waste
                                       X
                                       
                                       
                                       
                                       
                                       
Biennial notifications from SQGs to EPA under DSW exclusions 
                                       
                                       
                                       X
                                       
                                       
                                       
Scenario 2: Generator switches from off-site disposal to on-site reclamation
Change in generator status, fewer shipments of hazardous waste
                                       X
                                       
                                       
                                       
                                       
                                       
HSM increasingly diverted from treatment and disposal to on-site reclamation under exclusion
                                       X
                                       
                                       
                                       X
                                       
                                       
Reduced mining and energy use because of increased reclamation
                                       
                                       
                                       
                                       
                                       X
                                       X
Biennial notifications from SQGs to EPA under DSW exclusions
                                       
                                       
                                       X
                                       
                                       
                                       
Scenario 4: Generator switches from off-site disposal to off-site recycling at a RCRA-permitted facility
Longer generator accumulation periods, fewer off-site shipments of HSM
                                       X
                                       
                                       
                                       
                                       
                                       
Change in generator status, fewer shipments of hazardous waste
                                       X
                                       
                                       
                                       
                                       
                                       
Scenario 7: Generator switches from off-site reclamation at a facility without a permit to another type of recycling under DSW[d]
Longer generator accumulation periods, fewer off-site shipments of HSM
                                       X
                                       
                                       
                                       
                                       
                                       
Change in generator status, fewer shipments of hazardous waste
                                       X
                                       
                                       
                                       
                                       
                                       
HSM increasingly diverted from unpermitted reclamation under HWRs to reclamation under the TBE, which may be more stringent
                                       
                                       X
                                       X
                                       
                                       
                                       
Biennial notifications from SQGs to EPA under DSW exclusions
                                       
                                       
                                       X
                                       
                                       
                                       
Scenario 8: Generator switches from off-site reclamation a RCRA-Permitted facility to another type of recycling under DSW
Longer generator accumulation periods, fewer off-site shipments of HSM
                                       X
                                       
                                       
                                       
                                       
                                       
Change in generator status, fewer shipments of hazardous waste
                                       X
                                       
                                       
                                       
                                       
                                       
Biennial notifications from SQGs to EPA under DSW exclusions
                                       
                                       
                                       X
                                       
                                       
                                       
[a] These differences were identified by comparing the federal regulations and potential consequences under the hazardous waste regulations and the DSW exclusions.
[b] This scenario includes generators that continue their current practices under the exclusions by either reclaiming on-site, shipping to a permitted, off-site reclamation facility, or exporting the material for reclamation.
[c] This scenario includes generators switching from off-site disposal to sending the material to either a same-company reclaimer or toll manufacturer under the GCE. 
[d] This scenario includes generators switching from off-site reclamation at a facility without a permit to another type of reclamation under the TBE, including either off-site reclamation at a RCRA-permitted facility, off-site reclamation at a facility without a permit, or export of the material to a company in another country.



Identification of Potentially Affected Communities
This section identifies the facilities that may likely begin recycling HSMs under the 2008 DSW final rule.  These facilities include:
      1. Facilities that have already notified EPA that they will be managing HSMs  under the 2008 DSW final rule;
      2. Facilities currently generating or managing HSMs that may choose to operate under the 2008 DSW final rule; and
      3. Facilities not currently generating or managing HSMs that may choose to begin reclaiming them under the 2008 DSW final rule.
EPA conducted its EJ analysis on the facilities identified in this Section.  The EJ analysis is described in Section 4 of this report.  For each of the above categories, EPA identified key information about the facilities needed to conduct the EJ analysis, such as their location and quantities and types of HSMs generated and managed.  
Facilities that Have Already Notified EPA that They Will Be Managing Hazardous Secondary Materials under the 2008 DSW Final Rule (40 CFR § 260.42)
As of August 30, 2010, 40 facilities submitted notifications to EPA that they would manage their HSM under the 2008 DSW final rule (hereafter referred to as "notification facilities").  These include facilities from Iowa, New Jersey, Pennsylvania, and the Virgin Islands.  Because the 2008 DSW final rule is deregulatory in nature, it is only effective in states and territories that are not authorized to implement their own RCRA base programs, and those states with authorized programs that modify their programs to adopt it.  As of August 30, only New Jersey and Pennsylvania have adopted the 2008 DSW final rule.  The RCRA hazardous waste program in Iowa and the Virgin Islands are not authorized to implement their own programs.  
This report examines the 40 facilities that notified as of August 30, 2010 that they are following the 2008 DSW final rule.  EPA maintains a list of notification facilities at http://www.epa.gov/epawaste/hazard/dsw/notify-sum.pdf.  For each of the 40 notification facilities, EPA compiled information from data sources, such as their notification forms and other environmental reporting data sources, such as the RCRA Site Identification (Site ID) Forms of the most recent Biennial Report (BR) filed by the facility between 2001 and 2007.  If the facility did not file a 2001-2007 BR, EPA obtained information from the Handler Module in RCRAInfo or from the Facility Registry System (FRS) database in Envirofacts (at http://www.epa.gov/enviro/html/fii/fii_query_java.html).  
From these data sources, EPA compiled the following information:  
         * Facility location address (i.e., street address, city, State, and zip code);
         * Primary North American Industry Classification System (NAICS) code and NAICS code description.
EPA then compiled information on facility location coordinates (i.e., latitude and longitude) from the FRS database in Envirofacts.  Where such data were not available from these sources, EPA used the facility address and geocoding software to identify the facility latitude and longitude.  EPA recognizes that facility addresses and location coordinate information sometimes are not the same as the location in which HSM generation, storage, or reclamation activities might occur.  For example, the FRS may have location information for a corporate headquarters rather than production and processing facilities.  However, field investigation of potentially thousands of facility locations to verify and correct GIS coordinates was beyond the scope of this analysis.  
The success rate of the geocoding is dependent on the quality of the location address data.  The most accurate coordinates were obtained when the street address could be recognized and located by the geocoding software.  Generally, about 70 to 80 percent of the addresses were recognized and located by the geocoding software.  In instances in which addresses could not be geocoded (e.g., inaccurate or missing street addresses, PO boxes or rural routes), EPA used internet searches of company websites or internet business listings to obtain more specific facility location addresses or facility coordinates.    
EPA further determined whether any of the notification facilities was one of the 219 damage cases, including the 218 damage cases included in the Environmental Problems Study or the one additional damage case identified by EPA based on information received after promulgation of the 2008 DSW final rule.  Based on this review, none of the 40 notification facilities is a damage case facility.
Facilities Currently Generating or Managing Hazardous Secondary Materials that May Choose to Operate under the DSW Rule
EPA identified the facilities that are currently generating or managing recyclable hazardous wastes (including intermediate storage facilities) that may be likely to begin operating under the 2008 DSW final rule.  EPA assumed that these facilities may choose to operate under this rule, regardless of whether the State is likely to adopt the rule.  This assessment was made based on a review of each facilities hazardous waste generation and management activities as reported in the 2007 RCRA Hazardous Waste Biennial Report, which is the most comprehensive and current information available about such activities.  For this analysis, EPA assumed that facilities that currently manage HSMs by recycling, or that generate recyclable hazardous wastes at large enough quantities to make it economically justifiable, would switch to reclamation under the 2008 DSW final rule.  
Facilities Currently Managing Recyclable Hazardous Wastes
Facilities that currently manage hazardous wastes may begin recycling them under the 2008 DSW final rule.  This includes facilities that are currently reclaiming hazardous wastes under the hazardous waste regulations that may switch to recycling under the 2008 DSW final rule.  It also includes facilities that manage hazardous wastes by other management methods, such as incineration or solidification/stabilization that may switch to reclamation under the 2008 DSW final rule.  
To identify and collect information about facilities currently managing recyclable hazardous waste that may begin managing them under the DSW exclusions, EPA conducted the following steps:
      1. Compiled information on hazardous wastes managed by facilities.  To compile information on hazardous wastes managed by facilities (i.e., wastes generated and managed on-site, and wastes received from off-site for management), EPA collected information from Section 2 (On-site Management) of Waste Generation and Management (GM) and from Waste Received from Off-site (WR) Forms of the BR.  This allowed EPA to capture facilities that filed a BR, reporting their own hazardous waste management activities.  In addition, EPA referred to Section 3 (Off-Site Shipment) of the GM Forms to identify any hazardous waste management facility that did not file a BR, but is reflected in a generator's BR.  From these data sources, EPA compiled the following information, as applicable:
         * Reporting year;
         * Biennial Report form (i.e., GM or WR);
         * Page and subpage number;
         * Source code (GM Form only);
         * Source code description (GM Form only);
         * Form code;
         * Form code description;
         * Classification as wastewater or nonwastewater;
         * EPA hazardous waste codes representing the waste;
         * Waste code group;
         * Waste description;
         * On-site or off-site management indicator;
         * Management method code;
         * Management method code description;
         * Quantity of hazardous waste managed, by management method code;
         * Indicator of whether the hazardous waste was managed through recycling activities (i.e., recycled); and
         * Indicator of whether the waste is considered a "recyclable hazardous waste."
         In classifying the wastes as "wastewaters" or "nonwastewaters," EPA used a methodology that relies on some of the data reported to the BR to determine if such waste is a wastewater or nonwastewater.  Attachment C-1 describes this methodology.
         The waste code group is a single, mutually exclusive code assigned to the waste.  It was created to help avoid double counting of waste streams with multiple hazardous waste codes.  Attachment C-2 presents the logic that was used to define these waste code groups.
         For purposes of this analysis, "recycling" activities are those associated with the management of wastes using one of the following management methods:  metals recovery (BR management method code H010), solvents recovery (BR management method code H020), and other recovery (BR management method code H039).
         In determining whether a waste is considered a "recyclable hazardous waste," EPA used the methodology developed for the (Regulatory Impact Analysis) RIA of the 2008 DSW final rule.  Attachment C-3 describes the RIA methodology.  Note that this methodology was only applied to HSMs managed through methods other than recycling (i.e., methods other than metals recovery, solvents recovery, and other recovery). All HSMs reported as recycled were assumed to be recyclable regardless of their characteristics. 
      2. Identified facilities that manage recyclable hazardous wastes.  EPA identified facilities currently managing recyclable hazardous wastes by referring to data compiled under Step 1.  EPA identified recyclable hazardous wastes based on the characteristics of those wastes, as well as the amount of HSM generated.  EPA generally considered HSMs that could be identified as acids based on their source or form codes as recyclable.  For other HSMs, EPA identified those that appeared to be solvent or metal-bearing materials based on the source codes, form codes, management method codes, or other information.  In general, solvent and metal-bearing materials that were identified as production process nonwastewaters were considered recyclable, while other types of HSMs were not considered recyclable.  For example, wastewaters generally tend to be dilute waste streams with low levels of materials and generally are not recycled because insufficient material can be recovered to make the recycling economically feasible.  Additionally, cleanup wastes and treatment residuals generally are contaminated with other materials, such as soil or other solids that often render recycling infeasible.  EPA's approach to identifying recyclable materials generally follows the approach used in the RIA prepared in support of the 2008 DSW final rule.  A detailed description of the methodology applied for this analysis is contained in Attachment C.
      3. Compiled information about location coordinates.  EPA then compiled information on facility location coordinates (i.e., latitude and longitude) from the FRS database in Envirofacts.  Where such data were not available, EPA used the facility address and geocoding software to identify the facility latitude and longitude.  EPA recognizes that facility addresses and location coordinate information sometimes are not the same as the location in which HSM generation, storage, or reclamation activities might occur.  For example, the FRS may have location information for a corporate headquarters rather than production and processing facilities.  However, field investigation of potentially thousands of facility locations to verify and correct GIS coordinates was beyond the scope of this analysis.  The success rate of the geocoding is dependent on the quality of the location address data.  The most accurate coordinates were obtained when street addresses could be recognized and located by the geocoding software.  Generally, about 70 to 80 percent of the addresses can be recognized and located by the geocoding software.  In instances where addresses could not be geocoded (e.g., inaccurate or missing street addresses, PO boxes or rural routes), EPA used internet searches of company websites or internet business listings to obtain more accurate facility location addresses or facility coordinates.
      4. Excluded facilities that submitted notification to EPA indicating that they would be managing hazardous secondary materials under the DSW Rule.  From the list of facilities developed, EPA identified and excluded those facilities that already notified EPA that they would be managing HSMs under the 2008 DSW final rule, since these facilities are being analyzed under Section 3.1 of this document ("Facilities that Have Already Notified EPA that They Will Be Managing Hazardous Secondary Materials under the 2008 DSW Final Rule").
Facilities Currently Generating Recyclable Hazardous Wastes
Facilities that currently generate hazardous wastes may begin recycling them under the 2008 DSW final rule.  This includes facilities that are currently recycling hazardous wastes under the hazardous waste regulations that may switch to recycling them under the 2008 DSW final rule.  It also includes facilities that manage hazardous wastes by other management methods, such as incineration or solidification/stabilization that may switch to recycling under the 2008 DSW final rule.  
To identify and collect information about facilities currently managing recyclable hazardous waste that may begin managing them under the DSW exclusions, EPA performed the following steps:
      1. Compiled information on hazardous wastes generated by the facilities.  To compile information on hazardous wastes generated by facilities and on the management methods associated with each of these materials, EPA collected information from Section 1 (Generation), Section 2 (On-site Management), and Section 3 (Off-site Shipment) of the GM Forms.  From these data sources, EPA compiled the following information:
         * Reporting year;
         * Biennial Report form (i.e., GM);
         * Page and subpage number;
         * Source code;
         * Source code description;
         * Form code;
         * Form code description;
         * Classification as wastewater or nonwastewater;
         * EPA hazardous waste codes representing the waste;
         * Waste code group;
         * Waste description;
         * Quantity of hazardous waste generated; 
         * On-site or off-site management indicator;
         * Management method code;
         * Management method code description;
         * Quantity of recyclable hazardous waste managed, by management method code;
         * Indicator of whether the waste was managed through recycling activities (i.e., recycled); and
         * Indicator of whether the waste is considered a "recyclable hazardous waste."
         In classifying the waste as a "wastewaters" or "nonwastewaters," EPA used a methodology that relies on some of the data reported to the BR to determine if the waste is a wastewater or nonwastewater.  Attachment C-1 describes this methodology.
         The waste code group is a single, mutually exclusive code assigned to the wastes.  It was created to help avoid double counting of waste quantities for waste streams with multiple hazardous waste codes.  Attachment C-2 presents the logic that would be used to define these waste code groups.
         For purposes of this analysis, "recycling" activities are those associated with the management of wastes using one of the following management methods:  metals recovery (BR management method code H010), solvents recovery (BR management method code H020), and other recovery (BR management method code H039).
         In determining whether a waste is considered a "recyclable hazardous waste," EPA used the methodology developed for the RIA of the DSW Rule.  Attachment C-3 describes the RIA methodology.  Note that this methodology only applied to wastes managed through methods other than recycling (i.e., methods other than metals recovery, solvents recovery, and other recovery).   
      2. Identified facilities that generate recyclable hazardous wastes.  EPA identified facilities currently generating recyclable hazardous wastes by referring to data compiled under Step 1.  EPA identified recyclable hazardous wastes based on the characteristics of those materials, and the amount generated.  EPA generally considered wastes that could be identified as acids based on their source or form codes as recyclable.  For other wastes, EPA identified those wastes that appeared to be solvent or metal-bearing based on source codes, form codes, management method codes, or other information.  In general, solvent and metal-bearing materials that were identified as production process nonwastewaters were considered recyclable, while other types of wastes were not considered recyclable.  For example, wastewaters generally tend to be dilute wastes with low levels of recyclable materials and generally are not recycled because insufficient material is recovered to make the recycling economically feasible.  Cleanup wastes and treatment residuals generally are contaminated with other materials, such as soil or other solids that often render recycling infeasible.  EPA's approach to identifying recyclable materials generally follows the approach used in the RIA prepared in support of the 2008 DSW final rule.  A detailed description of the methodology applied for this analysis is contained in Attachment C.
      3. Compiled information about location coordinates.  EPA then compiled information on facility location coordinates (i.e., latitude and longitude) from the FRS database in Envirofacts.  Where such data were not available, EPA used the facility address and geocoding software to identify the facility latitude and longitude.  EPA recognizes that facility addresses and location coordinate information sometimes are not the same as the location in which HSM generation, storage, or reclamation activities might occur.  For example, the FRS may have location information for a corporate headquarters rather than production and processing facilities.  However, field investigation of potentially thousands of facility locations to verify and correct GIS coordinates was beyond the scope of this analysis.  The success rate of the geocoding is dependent on the quality of the location address data.  The most accurate coordinates were obtained when street addresses could be recognized and located by the geocoding software.  Generally, about 70 to 80 percent of the addresses can be recognized and located by the geocoding software.  In instances in which addresses could not be geocoded (e.g., inaccurate or missing street addresses, PO boxes or rural routes), EPA used internet searches of company websites or internet business listings to obtain more accurate facility location addresses or facility coordinates.
      4. Excluded facilities that submitted notification to EPA indicating that they would be managing hazardous secondary materials under the DSW Rule.  From the list of facilities developed, EPA identified and excluded facilities that already notified EPA that they would be managing HSMs under the DSW Rule, since these facilities are being analyzed under Section 3.1 of this document ("Facilities that Have Already Notified EPA that They Will Be Managing Hazardous Secondary Materials under the 2008 DSW Final Rule").
Facilities Currently Generating or Managing Hazardous Wastes that May Choose to Operate under the DSW Rule
Not all facilities that currently generate or manage recyclable hazardous wastes will choose to begin to do so under the 2008 DSW final rule.  EPA believes that facilities will primarily choose to do so when it is less expensive to recycle their hazardous wastes under the 2008 DSW final rule than to manage them under the hazardous waste regulations.  EPA assumed that all facilities currently generating or managing hazardous waste by recycling will continue to manage those wastes by recycling under the DSW exclusion.  For facilities using other management methods, EPA identified which facilities may choose to operate under the 2008 DSW final rule based on the amount of recyclable hazardous waste generated or managed by the facility.  Facilities that generate or manage more than a truckload of recyclable hazardous waste (25 tons) annually are assumed to begin managing that waste by recycling under the 2008 DSW final rule (hereafter referred to as "hazardous waste facilities").
Facilities that generate or manage less than a truckload (25 tons) of waste in a calendar year were assumed to be unlikely to conduct activities under the 2008 DSW final rule.  For facilities that manage their wastes off-site, transportation costs are usually a significant factor in waste management costs.  In addition, the costs of transporting a full truckload are usually significantly less than those for a partial truckload per unit of material shipped.  EPA assumed that the higher unit transportation costs associated with less than truckload shipments would outweigh the additional costs needed to meet the legitimacy criteria of the 2008 DSW final rule.  For facilities that manage their wastes on-site, EPA assumed that the expense associated with purchasing, installing, starting up, and operating an on-site hazardous waste recycling unit for less than truckload amounts of waste annually would make on-site recycling economically infeasible.
Transporters haul materials in many different types of vehicles, including tankers, 18-wheel box and flatbed trucks, and vacuum tankers.  DOT regulations specify that trucks must weigh less than 80,000 pounds, which, when the weight of the tractor is factored in, leaves a maximum of 50,000 pounds, or 25 tons, for material.  For liquid shipments, tanker trucks have a capacity of 7,000 gallons, which (depending on the density of the liquid), translates to roughly 24 tons.  Based on this, EPA assumed that a full truckload of hazardous waste would contain about 25 tons of waste.  However, the actual amount of hazardous waste in a full truckload will vary based on factors such as the density of the waste, the packaging, and other factors.  Of the 10,229 facilities that generated potentially recyclable waste in 2007, some 2,755 generated truckload quantities of potentially recyclable hazardous wastes (i.e., >= 25 tons of potentially recyclable hazardous wastes).  
Facilities Not Currently Generating or Managing Hazardous Secondary Materials  that May Choose to Reclaim them  under the 2008 DSW Final Rule
In addition to facilities currently generating or managing hazardous waste, some facilities that do not currently generate or manage hazardous waste may begin recycling HSM under the 2008 DSW final rule.  EPA identified commercial facilities that currently manage nonhazardous industrial waste using processes similar to those used for hazardous waste recycling as those most likely to begin reclaiming HSM under the 2008 DSW final rule.  These include recyclers of used oil, antifreeze, scrap metals, and precious metals.  Because these facilities likely can begin accepting HSMs for recycling with few modifications to their current processes, these facilities face few barriers to begin reclaiming HSMs under the 2008 DSW final rule.  EPA assumed that such facilities would begin reclaiming HSM under the 2008 DSW final rule for this analysis.  EPA did not identify other types of facilities not currently generating or managing hazardous wastes that may begin reclaiming HSM under the 2008 DSW final rule.  
EPA identified commercial non-hazardous industrial waste recycling facilities by identifying used oil, antifreeze, scrap metal, and precious metal recycling facilities in the following data sources:
         # EPA databases (e.g., Wastewise Database, TRI);
         # Department of Energy's report entitled "Used Oil Re-Refining Study to Address Energy Policy Act of 2005 Section 1838;" 
         # Chartwell's "Directory & Atlas of Solid Waste Disposal Facilities;"
         # Waste Business Journal Databases;
         # Hazardous Waste Consultant; and
         # Internet research (e.g., State Web sites, company Web sites); and
EPA then excluded:
         * Facilities that submitted notification to EPA indicating that they would be managing HSMs under the 2008 DSW final rule;
         * Facilities that reported generating or managing hazardous wastes in 2007 to the hazardous waste BR
         * Facilities that appeared to conduct only physical separation and processing rather than recycling, such as scrap metal shredders.
EPA then compiled general information about the facilities from the data sources listed above.   The information compiled included the types of waste recycled and facility address.  EPA then performed geocoding using facility location address information.  EPA recognizes that facility addresses and location coordinate information sometimes are not the same as the location in which HSM generation, storage, or reclamation activities might occur.  For example, the FRS may have location information for a corporate headquarters rather than production and processing facilities.  However, field investigation of potentially thousands of facility locations to verify and correct GIS coordinates was beyond the scope of this analysis.  

Analysis of Demographics of Potentially Affected Communities
EPA analyzed the demographics of the potentially affected communities identified through the activities described in Section 3 of this report.  The demographics analyzed included racial minorities, children under five, and people with income below the poverty level.  EPA determined the demographics for the population within a 3-km radius around each facility.  EPA then compared these demographics to those for the state in which the facility was located, and also for the nation as a whole.
Demographic Data Sources
U.S. EPA collected demographic data from the U.S. Census Bureau's 2000 Decennial Database, including Summary File 1 (SF 1) and Summary File 3 (SF 3).  The SF 1 data provides information at the most precise level available to the public, the block level.  Each block is approximately the size of a city block.  SF 3 provides data at the next most precise level, the block group level.  Each block group is comprised of several blocks.  SF 1 data is based on data collected from all persons and households within the block.  SF 3 data is a sample data of generally 1 in 6 households within a block group that includes information about more characteristics of the people and households surveyed.  EPA conducted its analysis using the most precise data set available for the characteristics analyzed.  SF 1 data was used for the following demographics:
   * Population;
   * Population density; 
   * Minority population; 
   * American Indian and Alaska Native (AIAN) population; and
   * Children under five years of age  
SF 1 does not include data on the number of Americans below poverty.  Therefore SF3 data was used for analysis of this demographic.  Because SF3 data for county populations and population density can be different than SF1 data for the same location, EPA also used SF3 population and population density information for analyses related to the poverty level.  
All demographic variables were further divided into urban and rural populations.  The U.S. Census Bureau defines urban in several ways.  EPA used their most general and easily applicable definition, which is, "all territory, population and housing units in urbanized areas and in places of more than 2.500 persons outside of urbanized areas."  This encompasses all regions with a population density greater than 1,000 people per square mile with a minimum residential population of 50,000 people.  All areas that meet these criteria are considered urban for this analysis, and all other areas are considered rural.
When determining what defined minority population, EPA first identified the population with the Census racial category "White alone, not Hispanic or Latino."  The minority population was then calculated by subtracting this number from the total population.  The American Indian and Alaska Native (AIAN) population is based on Census data for those with this category alone or in combination with any other category.  



Table 4.1.  Data Source Files from the 2000 U.S. Census Used for the DSW EJ Analysis
 
                              Summary File 1 Data
                              Summary File 3 Data
                                       
                               Total Population
                              Population Density
                              Minority Population
                 American Indian and Alaska Native Population
                              Children Under Five
                               Total Population
                              Population Density
                        Population Below Poverty Level
National Total
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
National Urban
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
National Rural
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
State Total
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
State Urban
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
State Rural
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
County Total
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
County Urban
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
County Rural
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X
                                       X



Methodology
This section describes the methodology used to develop the EJ Analysis for the 2008 DSW final rule, including selection of the EJ characteristics for analysis, using the areal apportionment method to determine the characteristics of the communities surrounding each facility, and conducting a statistical analysis of these results to determine how the demographic characteristics compare to those on a state and national level, in both urban and rural communities.  
Selection of EJ Characteristics for Analysis
EPA selected minority, American Indian and Alaska Native, children under five, and below poverty as demographics for the analysis.  These demographics were selected based on the Sierra Club petition, comments received in response to this petition and during public forums discussing the 2008 DSW final rule and EJ analysis, and a review of past EJ analyses conducted by EPA and other entities, including:
* EPA's "Environmental Justice Smart Enforcement Assessment Tool" (EJ SEAT);
* EPA's "Toolkit for Assessing Potential Allegations of Environmental Justice" (EJ Toolkit); and;
* Chapter 3 of "Toxic Wastes and Race at Twenty - 1987-2007: Grassroots Struggles to Dismantle Environmental Racism in the United States," prepared by the United Church of Christ, document the work by Dr. Paul Mohai and Dr. Robin Saha.
Areal Apportionment Method
In order to perform the analysis of the demographic makeup of potentially affected communities, EPA used the ESRI geospatial software ArcMap.  Geographic coordinate points (latitude, longitude) were imported into the program and projected onto a U.S. map using a North American Datum 1983 projection, which accounts for the natural curvature of the Earth. The underlying data used in the ArcMap program was the 2000 U.S. Census data, as described in Section 4.1. Once the buffers were created around each facility, data was extracted at the block level for SF1 data for the total population, minority population, American Indian/Alaska Native (AIAN) population, and children under five, and at the block group level for SF3 data for population below poverty.  To extract all the relevant demographic data, decennial census data from the SF1 and SF3 datasets were converted to feature layers on top of a national map. Once the map was created, a model was created from the ModelBuilder application in ArcToolbox to create the algorithm for the analysis.
For the Environmental Justice analysis, EPA used a three-kilometer buffer for each facility (notification, damage case, hazardous waste, and non-hazardous waste) as an approximation of the potential area that could be affected by an acute release scenario (such as a fire or explosion) at a reclamation facility.  While some EJ analysis use other buffer distances, such as 1- or 2-km buffers, assessment of multiple buffers is beyond the scope of this analysis.  For each facility, EPA used ArcMap to draw a 3-km radius around the facility, and determined the demographic characteristics of the communities within that circle.  Each 3-km radius encompassed discrete or partial census blocks or block groups, and some census blocks or block groups were only partially within the circle.  EPA estimated the demographics of the population within each circle using the Areal Apportionment Method (AAM) also known as the area-weighted method.  
The population numbers for each demographic category were not a simple sum of the population contained in every block or block group intersected by the buffer. It was a weighted sum in which the population in the block or block group was multiplied by the proportion of area contained with the buffer region.  For example, if 100% of the block was contained within the buffer region than 100% of the population was tallied; however, if 50% of the block was contained within the buffer then only 50% of that population was tallied.  If the buffer contained three block groups, one completely contained and the others partially contained the calculation would be the following:
      Block group 1: Total population of 50, 100% contained in buffer
      Block group 2: Total population 50, 50% contained in buffer
      Block group 3: Total population 30, 30% contained in buffer
Total population for the buffer = (1 * 50) + (0.5 * 50) + (0.3 * 30) = 84
The degree of hazards presented by HSM generation and management activities are typically related to the distance of receptors from the HSM.  EPA used the areal apportionment method because it provides an estimate of the socioeconomic characteristics close to specific locations, such as facilities addresses.  The Census data used for this analysis is based on administratively determined boundaries including census blocks and block groups.  The Census blocks and block groups can vary significantly in size and shape.  When used for EJ analyses, they may provide inaccurate results, particularly when they are large or irregularly shaped, resulting in inclusion of populations that are not within the 3-km radius EPA used for this analysis.  
While AAM will not provide the exact characteristics of the populations within the 3-km radius, it provides an adjustment for the limitations of available census data and the geographic boundaries provided by the census.  EPA considered other methods, such as including the entire population of all census blocks or block groups where any part of it was contained within the 3-km radius, and including only those where the entire area of the block or block group was contained within the 3-km radius.  However, these methods do not adjust for census blocks or block groups that cross the 3-km boundary and have areas (and associated populations) both inside and outside the 3-km radius, some of which could be potentially large.  In addition, the AAM approach used by EPA for this analysis is consistent with other EJ tools and analyses, including those discussed in Section 4.2.1.   AAM assumes that all populations are equally distributed within a block or block group.  An accurate analysis of the impact of this assumption could not be conducted with the information available from the sources used for this analysis.
  
Comparison of Demographic Characteristics of Affected Population versus Comparison Population 
The demographics of the population within a 3-km area of each facility were compared to those at a national and state level.  The national-level comparison is intended to capture any regional disproportionality (for example, if the potentially affected communities are all located in states with minority and/or low-income populations that are higher than the national average).  The state-level comparison is intended to capture any disproportionality occurring within the state.  (In most cases, the RCRA program is implemented by the state.)
In addition, comparisons were done for urban and rural populations to check if the tendency to locate industrial facilities in urban populations was a factor.  For urban and rural comparisons, the demographics for the population within the 3-km zone around each facility were compared to those for the total urban or rural population for the state in which the facility was located.  Where the 3-km zone contained both urban and rural populations, the overall population density for the 3-km zone calculated, and if it was found to meet the U.S. Census definition of urban (greater than 1,000 persons per square mile), the entire population within the 3-km zone was considered to be urban.  For some facilities, the 3-km area around it included populations from other states.  For the state comparisons, the populations in other states were included as if they were in the state in which the facility was located. Most facilities analyzed were not in areas with large AIAN populations.  EPA did not analyze facilities on tribal lands as a separate category.

Statistical Analysis
The next section describes the approach used for defining the affected and comparison populations for the demographic groups (i.e. minorities, American Indian/Alaska Native, persons below poverty or children under five) within a three-km buffer of each facility, and for comparing the demographic characteristics of the affected and comparison populations.
The affected populations are those within the 3-km buffer zones around the facilities analyzed.  The comparison population is the population selected for comparison with the affected population to evaluate whether there is a significant difference between them with respect to demographic characteristics.  This implies that it is a group of people that could have been equally likely to be affected if the facility was in alternative location.  For this analysis, different comparison populations are considered, including state populations, national populations, and urban and rural populations for the state in which the facility is located.
For comparison of urban and rural populations, if the three-km buffer for the facility was located in a majority urban area, then the entire affected population was considered to be urban, otherwise it was considered to be rural. 
Statistical Comparison of Demographic Characteristics of Affected Population versus Comparison Population
As described above, the goal of this disparity analysis was to assess two comparisons:  
   a) Whether there was a substantially greater probability of members in a population group (e.g., minority populations) being affected than members of a comparison population group (i.e., non-Hispanic White), and 
   b) Whether members of the population group of interest (e.g., minority population) comprised a substantially greater proportion of the affected population than of the non-affected  population in the selected buffer regions.
This document refers to comparison (a) as the "Affected Population Ratio" and comparison (b) as the "Demographic Ratio."  The methodology for calculating these ratios is described in Attachment E.
EPA tested these comparisons for statistical significance to identify the probability that the observed differences could have arisen due to chance.  A statistical significance test result can be expressed either as a probability (p-value) that an outcome could have been the result of chance, or as the number of standard deviations from the mean value. For individual counties, states, and the nation as a whole, EPA conducted two statistical tests for significance, the Kendall test and Fisher's Exact test.  The Kendall test is the standard test for large samples.  Fisher's Exact test is conditional on the total numbers of affected, non-affected, demographic group G, and non-demographic group G populations (Kendall and Stuart, 1973 sections 33.19 and 33.20). Attachment E includes the methodology used to calculate the results of these tests.  
For variables with a normal distribution, approximately 95% of the values are within two standard deviations of the mean, so this indicates that there would be only a 5% or less probability of a value outside this range.   EPA also calculated the corresponding number of standard deviations (SD) based on each test.  Attachment E includes the methodology used to calculate the number of standard deviations.  The SD indirectly provides a statistical test since the SDs have a standard normal distribution under the hypothesis of homogeneity (i.e., no ethnic group disparity), for large samples (i.e., when n is large). 
Fisher's Exact test tests whether there is a difference between Group G and other people in their probability of being inside the boundary area.  The smaller the p-value (i.e., the closer to zero), the stronger the difference, also shown is the equivalent number of standard deviations based on a standard normal distribution.  In some cases the Fisher's Exact tests cannot be calculated.  Kendall test results are provided when the Fisher's Exact test p-values are too small to compute readily (e.g., below 10[-300]), which in turn prevents computation of "equivalent" SD values.  The Kendall test results provide a close approximation of the Fisher's Exact test results.  These statistics provide information about the statistical significance of any observed disparity.
To summarize and evaluate the disparities for different states two additional statistical procedures were used. As detailed in Attachment E, the Mantel-Haenszel method was to estimate a common Affected Population Ratio (APR) and a common Demographic Ratio (DR), under the assumption that all states have the same underlying ratios.  These ratios are weighted averages of the state-specific ratios.  They differ from the nationwide Affected Population Ratio and Demographic Ratio because they only include states that have at least one facility and because the statistical calculation is different.  As detailed in Attachment E, the Cochran-Mantel-Haenszel test, a generalization of the standard chi-square test, was used to test the null hypothesis of no disparity in every state against the alternative hypothesis of a disparity in one or more states. The p-value for this test is provided. 
EPA selected these statistical analyses and tests based on technical literature and their historical use in EJ analyses and Title VII discrimination cases[,][,][,].   
Results of Demographic Analysis
This section contains the results for the demographic analyses for the DSW EJ analysis.  This analysis focused on four sets of facilities:
                  1.         Results for notification facilities; the results are presented in Section 4.3.1.  
                  2.         Results for damage case facilities; the results are presented in Section 4.3.2.
                  3.         Results for hazardous waste facilities; the results are presented in Section 4.3.3.
                  4.         Results for non-hazardous industrial waste facilities; the results are presented in Section 4.3.4.

For each set of facilities, bar charts, demographic comparison tables, and statistical analysis tables are presented.  The bar charts provide a histogram for each demographic analyzed of the percentage of the populations around each facility that show the indicated demographic.  For example, Figure 4.4.1.1 shows information about the % minority, % AIAN, % below poverty, and % children under 5 for the communities with a 3-km radius around the notification facilities.  About 55% of the communities around notification facilities had a minority population between 0 and 10%, 18% of them had a minority population between 11 and 20% in the surrounding communities, 10% of the facilities had between 21 and 30% minority populations, another 10% had between 31 and 40%, 5% had between 41 and 50%, while 2% had between 51 and 60%.  
The demographic comparison tables present the analyses discussed in Section 4.2.3.  For example, Table 4.4.1.1 compares the % minority, % AIAN, % below poverty, % children under 5, % Black or African American, % Asian, % Native Hawaiian and Other Pacific Islander, and % Some Other Race for the communities with a 3-km radius around the notification facilities to the corresponding national % .  This table shows that for the 40 notification facilities, 3 had a % minority in the community around the facility greater than the national % minority, while 37 had a % minority less than the national %, and none had the same percentage.  The mean difference between the % minority in the communities around notification facilities and the national % was -20.68% (meaning on average, the % minority in communities around notification facilities was 20.68% less than the national average) while the median difference was -26.33%.For each demographic comparison table, a statistical analysis table presents the analyses discussed in Section 4.3.  For example, Table 4.4.1.2 shows the results of analysis of statistical significance of the national demographic comparison for the notification facilities.  Where values could not be computed, the table shows "N/A".  For a description of why values could not be computed in all cases please see Section 4.3 and Attachment E.
Notification Facilities 
This section presents the demographic results for the 40 notification facilities as of July 30, 2010.  This includes facilities in Iowa, Pennsylvania, and New Jersey.  The demographics for the notification facility in the Virgin Islands were not reviewed for this report.  
The demographics were analyzed at a national and state-wide level.  In addition, the demographics were compared at an urban and rural level.  
For the national level analyses, the demographics analyzed included six race or ethnicity categories, including minority, American Indian and Alaska Native, Black or African American, Native Hawaiian or other Pacific Islander, Hispanic or Latino, or some other race.  These race and ethnicity categories are those identified by the U.S. Census for 2000.  In addition, demographics for persons below the poverty level income and children under five years of age were analyzed.  EPA also conducted statistical analysis at the national level to determine the significance of selected results, including minority, American Indian and Alaska Native, persons below poverty, and children under five.
State level analyses are presented for each state individually.  In addition, urban, and rural results presented are based on a comparison of the demographics for each facility to the overall urban and rural populations for the state in which the facility is located.  
EPA acknowledges that a selection bias may exist for the notification facilities.  The statistical analyses focus on whether the population demographics near each group of facilities are different from the population demographics elsewhere in the same state or in the US as a whole. The factors that influence whether a facility chooses to be a "notification" facility, or whether a facility becomes a damage case, might include the population demographics near the facility, but might also include other factors such as the state or region, the type or size of the facility, or other factors.  EPA did not investigate these additional factors that might influence whether facilities become notification facilities.  EPA analyzed the notification facilities separately from other facility categories, in part, to isolate factors that might result in a selection bias.  

                                       
           Figure 4.4.1.1.  Demographics for Notification Facilities
                                       
                                       
                                       

Table 4.4.1.1.  National Demographic Comparison for Notification Facilities
 
     Number of Facilities with % Demographics Greater Than Area Comparison
      Number of Facilities with % Demographics Less Than Area Comparison
       Number of Facilities with % Demographics Equal to Area Comparison
                                Mean Difference
                               Median Difference
                                  % Minority
                                       3
                                      37
                                       0
                                    -20.68%
                                    -26.33%
                                % Below Poverty
                                      13
                                      27
                                       0
                                    -1.95%
                                    -3.89%
                               % American Indian
                                       0
                                      40
                                       0
                                    -1.27%
                                    -1.34%
                         % Children 5 Years and Under
                                      32
                                       8
                                       0
                                     0.78%
                                     0.74%
                         % Black or African American 
                                      10
                                      30
                                       0
                                    -4.85%
                                    -10.70%
                                   % Asian 
                                       6
                                      34
                                       0
                                    -2.21%
                                    -3.29%
                 % Native Hawaiian and Other Pacific Islander 
                                       1
                                      39
                                       0
                                    -0.24%
                                    -0.25%
                               % Some Other Race 
                                       3
                                      37
                                       0
                                    -4.49%
                                    -5.79%
                                  % Hispanic 
                                       3
                                      37
                                       0
                                    -9.61%
                                    -11.88%


Table 4.4.1.2.  DSW Rule National Demographic Comparison Analysis of Statistical Significance for Notification Facilities
                               Demographic Group
                          Affected Population Ratio 
                              Demographic Ratio 
                           Fisher Exact Test P-value
                  Equivalent No.  of Standard Deviations (SD)
                            Probability (Affected)
                            Kendall Test Statistic
                             Kendall Test P-Value
Minority (all except non-Hispanic whites)
                                                                        0.68644
                                                                        0.75962
                                                                            N/A
                                                                            N/A
                                                                        0.00209
                                                                        -123.07
                                                                             ~0
Persons below poverty
                                                                        1.04874
                                                                        1.04271
                                                                       8.28E-33
                                                                          11.93
                                                                        0.00205
                                                                          12.00
                                                                       3.48E-33
American Indians and Alaska Natives
                                                                        0.44680
                                                                        0.44993
                                                                            N/A
                                                                            N/A
                                                                        0.00209
                                                                         -51.40
                                                                             ~0
Children under age 5
                                                                        0.97325
                                                                        0.97497
                                                                       1.99E-07
                                                                           5.20
                                                                        0.00209
                                                                          -5.18
                                                                       2.19E-07
                                       
                                       
Table 4.4.1.3.  Iowa Demographic Comparison for Notification Facilities
 
                             Iowa-Level Comparison
 
     Number of Facilities with % Demographics Greater Than Area Comparison
      Number of Facilities with % Demographics Less Than Area Comparison
       Number of Facilities with % Demographics Equal to Area Comparison
                                Mean Difference
                               Median Difference
                                  % Minority
                                       7
                                       7
                                       0
                                     3.14%
                                                                          0.00%
                                % Below Poverty
                                       9
                                       5
                                       0
                                     1.66%
                                                                          1.49%
                               % American Indian
                                       0
                                      14
                                       0
                                    -0.49%
                                                                         -0.53%
                         % Children 5 Years and Under
                                      14
                                       0
                                       0
                                     2.08%
                                     1.88%






                                       
Table 4.4.1.4.  DSW Rule Iowa Demographic Comparison Analysis of Statistical Significance for Notification Facilities
                               Demographic Group
                          Affected Population Ratio 
                              Demographic Ratio 
                           Fisher Exact Test P-value
                  Equivalent No.  of Standard Deviations (SD)
                            Probability (Affected)
                            Kendall Test Statistic
                             Kendall Test P-Value
Minority (all except non-Hispanic whites)
                                                                        1.80337
                                                                        1.75639
                                                                             ~0
                                                                            N/A
                                                                        0.04190
                                                                          70.94
                                                                             ~0
Persons below poverty
                                                                        1.33562
                                                                        1.31367
                                                                      1.06E-213
                                                                          31.20
                                                                        0.04039
                                                                          32.44
                                                                      8.62E-231
American Indians and Alaska Natives
                                                                        1.10201
                                                                        1.10621
                                                                       4.57E-03
                                                                           2.84
                                                                        0.04190
                                                                           2.87
                                                                       4.09E-03
Children under age 5
                                                                        1.12103
                                                                        1.11786
                                                                       3.06E-25
                                                                          10.38
                                                                        0.04190
                                                                          10.55
                                                                       5.35E-26
                                       
                                       
                                       
Table 4.4.1.5.  New Jersey Demographic Comparison for Notification Facilities
 
                          New Jersey-Level Comparison
 
     Number of Facilities with % Demographics Greater Than Area Comparison
      Number of Facilities with % Demographics Less Than Area Comparison
       Number of Facilities with % Demographics Equal to Area Comparison
                                Mean Difference
                               Median Difference
                                  % Minority
                                       2
                                       8
                                       0
                                    -11.04%
                                                                        -14.77%
                                % Below Poverty
                                       0
                                      10
                                       0
                                    -3.69%
                                                                         -3.60%
                               % American Indian
                                       2
                                       8
                                       0
                                    -0.27%
                                                                         -0.39%
                         % Children 5 Years and Under
                                       7
                                       3
                                       0
                                     0.46%
                                     0.62%






                                       
                                       
Table 4.4.1.6.  DSW Rule New Jersey Demographic Comparison Analysis of Statistical Significance for Notification Facilities
                               Demographic Group
                          Affected Population Ratio 
                              Demographic Ratio 
                           Fisher Exact Test P-value
                  Equivalent No.  of Standard Deviations (SD)
                            Probability (Affected)
                            Kendall Test Statistic
                             Kendall Test P-Value
Minority (all except non-Hispanic whites)
                                                                        1.02002
                                                                        1.01341
                                                                       9.65E-05
                                                                           3.90
                                                                        0.02001
                                                                           3.90
                                                                       9.50E-05
Persons below poverty
                                                                        0.63593
                                                                        0.65123
                                                                            N/A
                                                                            N/A
                                                                        0.01990
                                                                         -42.85
                                                                             ~0
American Indians and Alaska Natives
                                                                        1.20658
                                                                        1.21020
                                                                       2.57E-10
                                                                           6.32
                                                                        0.02001
                                                                           6.51
                                                                       7.32E-11
Children under age 5
                                                                        0.94612
                                                                        0.94857
                                                                       1.68E-08
                                                                           5.64
                                                                        0.02001
                                                                          -5.60
                                                                       2.09E-08
                                       

Table 4.4.1.7.  Pennsylvania Demographic Comparison for Notification Facilities
 
                         Pennsylvania-Level Comparison
 
     Number of Facilities with % Demographics Greater Than Area Comparison
      Number of Facilities with % Demographics Less Than Area Comparison
       Number of Facilities with % Demographics Equal to Area Comparison
                                Mean Difference
                               Median Difference
                                  % Minority
                                       5
                                      11
                                       0
                                    -2.27%
                                                                         -9.14%
                                % Below Poverty
                                       8
                                       8
                                       0
                                     2.56%
                                                                          1.07%
                               % American Indian
                                       1
                                      15
                                       0
                                    -0.25%
                                                                         -0.32%
                         % Children 5 Years and Under
                                      14
                                       2
                                       0
                                     1.12%
                                     1.27%






                                       
                                       
Table 4.4.1.8.  DSW Rule Pennsylvania Demographic Comparison Analysis of Statistical Significance for Notification Facilities
                               Demographic Group
                          Affected Population Ratio 
                              Demographic Ratio 
                           Fisher Exact Test P-value
                  Equivalent No.  of Standard Deviations (SD)
                            Probability (Affected)
                            Kendall Test Statistic
                             Kendall Test P-Value
Minority (all except non-Hispanic whites)
                                                                        1.46523
                                                                        1.37643
                                                                             ~0
                                                                            N/A
                                                                        0.02416
                                                                          87.44
                                                                             ~0
Persons below poverty
                                                                        1.73464
                                                                        1.63336
                                                                             ~0
                                                                            N/A
                                                                        0.02379
                                                                         114.85
                                                                             ~0
American Indians and Alaska Natives
                                                                        1.45628
                                                                        1.46994
                                                                       1.92E-53
                                                                          15.39
                                                                        0.02416
                                                                          16.41
                                                                       1.70E-60
Children under age 5
                                                                        1.11977
                                                                        1.11497
                                                                       2.14E-52
                                                                          15.23
                                                                        0.02416
                                                                          15.48
                                                                       4.41E-54
                                       


Table 4.4.1.9.  Urban Demographic Comparison for Notification Facilities
 
     Number of Facilities with % Demographics Greater Than Area Comparison
      Number of Facilities with % Demographics Less Than Area Comparison
       Number of Facilities with % Demographics Equal to Area Comparison
                                Mean Difference
                               Median Difference
% Minority
                                                                              8
                                                                             11
                                                                             21
                                                                          1.06%
                                                                         -2.41%
% Below Poverty
                                                                             11
                                                                              7
                                                                             22
                                                                          3.08%
                                                                          1.95%
% American Indian, Alaskan Native
                                                                             10
                                                                              9
                                                                             21
                                                                          0.08%
                                                                          0.11%
% Children Under 5
                                                                             11
                                                                              8
                                                                             21
                                                                          0.21%
                                                                          0.29%
                                       

Table 4.4.1.10.  DSW Rule National Demographic Comparison Analysis of Statistical Significance (Urban) for Notification Facilities
                               Demographic Group
                          Affected Population Ratio 
                              Demographic Ratio 
                           Fisher Exact Test P-value
                  Equivalent No.  of Standard Deviations (SD)
                            Probability (Affected)
                            Kendall Test Statistic
                             Kendall Test P-Value
Minority (all except non-Hispanic whites)
                                                                        0.63987
                                                                        0.73342
                                                                            N/A
                                                                            N/A
                                                                        0.00224
                                                                        -139.67
                                                                             ~0
Persons below poverty
                                                                        1.15212
                                                                        1.13116
                                                                      7.65E-243
                                                                          33.28
                                                                        0.00213
                                                                          33.88
                                                                      1.42E-251
American Indians and Alaska Natives
                                                                        0.54980
                                                                        0.55235
                                                                            N/A
                                                                            N/A
                                                                        0.00224
                                                                         -35.50
                                                                      4.58E-276
Children under age 5
                                                                        0.95535
                                                                        0.95825
                                                                       4.85E-16
                                                                           8.12
                                                                        0.00224
                                                                          -8.07
                                                                       7.28E-16
                                       
                                       
Table 4.4.1.11.  Rural Demographic Comparison for Notification Facilities
 
     Number of Facilities with % Demographics Greater Than Area Comparison
      Number of Facilities with % Demographics Less Than Area Comparison
       Number of Facilities with % Demographics Equal to Area Comparison
                                Mean Difference
                               Median Difference
% Minority
                                                                             18
                                                                              1
                                                                             21
                                                                         17.59%
                                                                         13.31%
% American Indian, Alaskan Native
                                                                              7
                                                                             14
                                                                             19
                                                                         -0.07%
                                                                         -0.11%
% Children Under 5
                                                                             14
                                                                              7
                                                                             19
                                                                          0.22%
                                                                          0.22%
% Below Poverty
                                                                             10
                                                                             12
                                                                             18
                                                                          0.60%
                                                                         -0.43%
                                       
                                       
Table 4.4.1.12.  DSW Rule National Demographic Comparison Analysis of Statistical Significance (Rural) for Notification Facilities
                               Demographic Group
                          Affected Population Ratio 
                              Demographic Ratio 
                           Fisher Exact Test P-value
                  Equivalent No.  of Standard Deviations (SD)
                            Probability (Affected)
                            Kendall Test Statistic
                             Kendall Test P-Value
Minority (all except non-Hispanic whites)
                                                                        0.63788
                                                                        0.66953
                                                                            N/A
                                                                            N/A
                                                                        0.00152
                                                                         -38.60
                                                                             ~0
Persons below poverty
                                                                        0.52947
                                                                        0.55745
                                                                            N/A
                                                                            N/A
                                                                        0.00176
                                                                         -49.69
                                                                       0.00E+00
American Indians and Alaska Natives
                                                                        0.21126
                                                                        0.21486
                                                                            N/A
                                                                            N/A
                                                                        0.00152
                                                                         -35.94
                                                                      8.67E-283
Children under age 5
                                                                        1.03348
                                                                        1.03140
                                                                       1.63E-02
                                                                           2.40
                                                                        0.00152
                                                                           2.41
                                                                       1.59E-02
                                       
Damage Case Facilities
     This section presents the demographic results for the 217 damage case facilities.  The demographics were analyzed at a national and state level.  The demographics analyzed included minority, American Indian and Alaska Native, persons below poverty level income, and children under five years of age.  In addition, a statistical analysis was conducted at the national level to determine the significance of the results.  State level analyses are based on a comparison of the demographics for each facility to the overall populations for the state in which the facility is located.
     
              Figure 4.4.2.1. Demographics for Damage Case Facilities
     
     
     
     
Table 4.4.2.1.  National Demographic Comparison for Damage Case Facilities
 
     Number of Facilities with % Demographics Greater Than Area Comparison
      Number of Facilities with % Demographics Less Than Area Comparison
       Number of Facilities with % Demographics Equal to Area Comparison
                                Mean Difference
                               Median Difference
                                  % Minority
                                      115
                                      102
                                       0
                                     8.18%
                                     2.92%
                                % Below Poverty
                                      142
                                      75
                                       0
                                     5.92%
                                     3.74%
                       % American Indian, Alaska Native
                                      64
                                      153
                                       0
                                    -0.11%
                                    -0.57%
                         % Children 5 Years and Under
                                      118
                                      99
                                       0
                                     0.01%
                                     0.08%






     
     
Table 4.4.2.2  DSW Rule National Demographic Comparison Analysis of Statistical 
Significance for Damage Case Facilities
                               Demographic Group
                          Affected Population Ratio 
                              Demographic Ratio 
                           Fisher Exact Test P-value
                  Equivalent No.  of Standard Deviations (SD)
                            Probability (Affected)
                            Kendall Test Statistic
                             Kendall Test P-Value
Minority (all except non-Hispanic whites)
                                                                        2.87394
                                                                        1.86337
                                                                             ~0
                                                                            N/A
                                                                        0.02712
                                                                       1,536.00
                                                                             ~0
Persons below poverty
                                                                        1.97568
                                                                        1.80578
                                                                             ~0
                                                                            N/A
                                                                        0.02659
                                                                         787.97
                                                                             ~0
American Indians and Alaska Natives
                                                                        0.97121
                                                                        0.97085
                                                                       2.21E-22
                                                                           9.73
                                                                        0.02712
                                                                          -9.69
                                                                       3.36E-22
Children under age 5
                                                                        0.98874
                                                                        0.98921
                                                                       1.63E-15
                                                                           7.97
                                                                        0.02712
                                                                          -7.96
                                                                       1.79E-15
      
Table 4.4.2.3.  State Demographic Comparison for Damage Case Facilities
 
     Number of Facilities with % Demographics Greater Than Area Comparison
      Number of Facilities with % Demographics Less Than Area Comparison
       Number of Facilities with % Demographics Equal to Area Comparison
                                Mean Difference
                               Median Difference
                                  % Minority
                                      121
                                      96
                                       0
                                     8.18%
                                     4.18%
                                % Below Poverty
                                      150
                                      67
                                       0
                                     6.74%
                                     5.24%
                       % American Indian, Alaska Native
                                      107
                                      110
                                       0
                                    -0.01%
                                    -0.01%
                         % Children 5 Years and Under
                                      116
                                      101
                                       0
                                     0.05%
                                     0.18%






     
                                       
Table 4.4.2.4  State Demographic Comparison Analysis of Statistical 
Significance for Damage Case Facilities

                               Demographic Group
                          Affected Population Ratio 
                              Demographic Ratio 
                        Cochran-Mantel-Haenszel P-value
Minority (all except non-Hispanic whites)
                                                                       2.589046
                                                                       1.640755
                                                                             ~0
Persons below poverty
                                                                       2.041337
                                                                       1.901897
                                                                             ~0
American Indians and Alaska Natives
                                                                       1.071715
                                                                       1.075276
                                                                       1.2E-120
Children under age 5
                                                                       0.981033
                                                                       0.981294
                                                                       1.97E-42

                                                                               
                                                                               
                                                                               
Hazardous Waste Facilities 
This section presents the demographic results for 2,677 facilities that reported generating or managing hazardous wastes in 2007 that may choose to operate under the 2008 DSW final rule (hazardous waste facilities).  The demographics were analyzed at a national and state-wide level.  In addition, the demographics were compared at an urban and rural level.  
For the national level analyses, the demographics analyzed included minority, American Indian and Alaska Native, persons below poverty level income, and children under five years of age.  EPA also conducted statistical analysis at the national level to determine the significance of selected results, including minority, American Indian and Alaska Native, persons below poverty, and children under five.
State, urban, and rural results presented are based on a comparison of the demographics for each facility to the overall state, or state urban and rural populations for the state in which the facility is located.  
                                          
            Figure 4.4.3.1. Demographics for Hazardous Waste Facilities
     




Table 4.4.3.1.  National Demographic Comparison for Hazardous Waste Facilities
 
     Number of Facilities with % Demographics Greater Than Area Comparison
      Number of Facilities with % Demographics Less Than Area Comparison
       Number of Facilities with % Demographics Equal to Area Comparison
                                Mean Difference
                               Median Difference
                                  % Minority
                                     1,136
                                     1,541
                                       0
                                     0.86%
                                    -6.01%
                                % Below Poverty
                                     1,286
                                     1,391
                                       0
                                     1.47%
                                    -0.48%
                       % American Indian, Alaska Native
                                      510
                                     2,167
                                       0
                                    -0.32%
                                    -0.64%
                         % Children 5 Years and Under
                                     1,422
                                     1,255
                                       0
                                     0.16%
                                     0.08%






     
     
Table 4.4.3.2.  National Demographic Comparison Analysis of Statistical
Significance for Hazardous Waste Facilities
                               Demographic Group
                           Affected Population Ratio
                               Demographic Ratio
                           Fisher Exact Test P-value
                  Equivalent No.  of Standard Deviations (SD)
                            Probability (Affected)
                            Kendall Test Statistic
                             Kendall Test P-Value
Minority (all except non-Hispanic whites)
                                                                        1.90237
                                                                        1.80019
                                                                             ~0
                                                                            N/A
                                                                        0.26228
                                                                       3,261.18
                                                                             ~0
Persons below poverty
                                                                        1.39409
                                                                        1.50456
                                                                             ~0
                                                                            N/A
                                                                        0.25859
                                                                       1,213.27
                                                                             ~0
American Indians and Alaska Natives
                                                                        0.69881
                                                                        0.63465
                                                                            N/A
                                                                            N/A
                                                                        0.26228
                                                                        -363.41
                                                                             ~0
Children under age 5
                                                                        1.03565
                                                                        1.04546
                                                                             ~0
                                                                            N/A
                                                                        0.26228
                                                                          89.64
                                                                             ~0
                                          
                                          
Table 4.4.3.3.  State Demographic Comparison for Hazardous Waste Facilities
 
     Number of Facilities with % Demographics Greater Than Area Comparison
      Number of Facilities with % Demographics Less Than Area Comparison
       Number of Facilities with % Demographics Equal to Area Comparison
                                Mean Difference
                               Median Difference
                                  % Minority
                                     1,282
                                     1,395
                                       0
                                     3.98%
                                    -0.93%
                                % Below Poverty
                                     1,354
                                     1,323
                                       0
                                     1.80%
                                     0.08%
                       % American Indian, Alaska Native
                                     1180
                                     1,497
                                       0
                                    -0.04%
                                    -0.07%
                         % Children 5 Years and Under
                                     1,446
                                     1,231
                                       0
                                     0.18%
                                     0.13%






     



Table 4.4.3.4  DSW Rule State Demographic Comparison Analysis of Statistical 
Significance for Hazardous Waste Facilities
                               Demographic Group
                          Affected Population Ratio 
                              Demographic Ratio 
                        Cochran-Mantel-Haenszel P-value
Minority (all except non-Hispanic whites)
                                                                    1.936274897
                                                                    2.044116269
                                                                             ~0
Persons below poverty
                                                                    1.465870832
                                                                    1.827905054
                                                                             ~0
American Indians and Alaska Natives
                                                                    0.979481817
                                                                    0.967933377
                                                                    1.0644E-126
Children under age 5
                                                                    1.050498787
                                                                     1.08002965
                                                                             ~0

     


Table 4.4.3.5.  Urban Demographic Comparison for Hazardous Waste Facilities
 
     Number of Facilities with % Demographics Greater Than Area Comparison
      Number of Facilities with % Demographics Less Than Area Comparison
       Number of Facilities with % Demographics Equal to Area Comparison
                                Mean Difference
                               Median Difference
                                  % Minority
                                      902
                                      765
                                       0
                                     6.81%
                                     2.48%
                                % Below Poverty
                                      899
                                      722
                                       0
                                     2.71%
                                     1.16%
                       % American Indian, Alaska Native
                                      884
                                      783
                                       0
                                     0.12%
                                     0.02%
                         % Children 5 Years and Under
                                      893
                                      774
                                       0
                                     0.15%
                                     0.13%






     



Table 4.4.3.6  DSW Rule Urban Demographic Comparison Analysis of Statistical 
Significance for Hazardous Waste Facilities
                               Demographic Group
                          Affected Population Ratio 
                              Demographic Ratio 
                        Cochran-Mantel-Haenszel P-value
Minority (all except non-Hispanic whites)
                                                                       1.717148
                                                                       1.836249
                                                                             ~0
Persons below poverty
                                                                       1.409003
                                                                       1.829035
                                                                             ~0
American Indians and Alaska Natives
                                                                       1.057927
                                                                       1.106797
                                                                             ~0
Children under age 5
                                                                       1.029881
                                                                       1.052575
                                                                             ~0



Table 4.4.3.7.  Rural Demographic Comparison for Hazardous Waste Facilities
 
     Number of Facilities with % Demographics Greater Than Area Comparison
      Number of Facilities with % Demographics Less Than Area Comparison
       Number of Facilities with % Demographics Equal to Area Comparison
                                Mean Difference
                               Median Difference
                                  % Minority
                                      598
                                      412
                                       0
                                     7.01%
                                     1.26%
                                % Below Poverty
                                      543
                                      513
                                       0
                                     1.24%
                                     0.15%
                       % American Indian, Alaska Native
                                      324
                                      686
                                       0
                                    -0.66%
                                    -0.27%
                         % Children 5 Years and Under
                                      670
                                      340
                                       0
                                     0.58%
                                     0.51%










Table 4.4.3.8  Rural Demographic Comparison Analysis of Statistical 
Significance for Hazardous Waste Facilities
                               Demographic Group
                          Affected Population Ratio 
                              Demographic Ratio 
                        Cochran-Mantel-Haenszel P-value
Minority (all except non-Hispanic whites)
                                                                       2.009832
                                                                       1.841061
                                                                             ~0
Persons below poverty
                                                                       1.183461
                                                                         1.1821
                                                                             ~0
American Indians and Alaska Natives
                                                                       0.723588
                                                                       0.710313
                                                                             ~0
Children under age 5
                                                                       1.127013
                                                                       1.134586
                                                                             ~0

                                                                               
                                                                               
                                                                               
      
Non-Hazardous Industrial Waste Facilities
This section presents the demographic results for 25 facilities not currently generating or managing hazardous wastes that may choose to begin reclaiming HSM under the 2008 DSW final rule (non-hazardous industrial waste facilities).  The demographics were analyzed at a national and state level.  The demographics analyzed included minority, American Indian and Alaska Native, persons below poverty level income, and children under five years of age.  In addition, a statistical analysis was conducted at the national level to determine the significance of the results.  State level analyses are based on a comparison of the demographics for each facility to the overall populations for the state in which the facility is located.  
     Figure 4.4.3.1.  Demographics for  Non-Hazardous Industrial Waste Facilities 
Table 4.4.4.1.  National Demographic Comparison for Non-Hazardous Industrial Waste Facilities
 
     Number of Facilities with % Demographics Greater Than Area Comparison
      Number of Facilities with % Demographics Less Than Area Comparison
       Number of Facilities with % Demographics Equal to Area Comparison
                                Mean Difference
                               Median Difference
% Minority
                                       9
                                      16
                                       0
                                    -4.95%
                                    -11.62%
% American Indian, Alaskan Native
                                       1
                                      24
                                       0
                                    -0.79%
                                    -0.88%
% Children Under 5
                                      10
                                      15
                                       0
                                     0.04%
                                    -0.79%
% Below Poverty
                                      10
                                      15
                                       0
                                    -0.45%
                                    -1.98%
     
     
     
     
Table 4.4.4.2.  National Demographic Comparison Analysis of Statistical
Significance for Non-Hazardous Industrial Waste Facilities
                               Demographic Group
                          Affected Population Ratio 
                              Demo-graphic Ratio 
                           Fisher Exact Test P-value
                  Equivalent No.  of Standard Deviations (SD)
                            Probability (Affected)
                            Kendall Test Statistic
                             Kendall Test P-Value
Minority (all except non-Hispanic whites)
                                                                        1.18887
                                                                        1.12364
                                                                             ~0
                                                                            N/A
                                                                        0.00189
                                                                          60.13
                                                                             ~0
Persons below poverty
                                                                        1.15970
                                                                        1.13811
                                                                      6.25E-297
                                                                          36.83
                                                                        0.00192
                                                                          37.51
                                                                      5.76E-308
American Indians and Alaska Natives
                                                                        0.45624
                                                                        0.45943
                                                                            N/A
                                                                            N/A
                                                                        0.00189
                                                                         -48.01
                                                                             ~0
Children under age 5
                                                                        1.00282
                                                                        1.00264
                                                                       6.03E-01
                                                                           0.52
                                                                        0.00189
                                                                           0.52
                                                                       6.04E-01
     
     
     
Table 4.4.4.3.  State Demographic Comparison for Non-Hazardous Industrial Waste Facilities
 
     Number of Facilities with % Demographics Greater Than Area Comparison
      Number of Facilities with % Demographics Less Than Area Comparison
       Number of Facilities with % Demographics Equal to Area Comparison
                                Mean Difference
                               Median Difference
% Minority
                                       9
                                      16
                                       0
                                    -2.55%
                                    -5.36%
% Below Poverty
                                      11
                                      14
                                       0
                                    -0.26%
                                    -2.11%
% American Indian, Alaskan Native
                                      10
                                      15
                                       0
                                    -0.12%
                                    -0.16%
% Children Under 5
                                      12
                                      13
                                       0
                                     0.25%
                                    -0.05%


      

Table 4.4.4.4  State Demographic Comparison Analysis of Statistical 
Significance for Non-Hazardous Industrial Waste Facilities
                               Demographic Group
                          Affected Population Ratio 
                              Demographic Ratio 
                        Cochran-Mantel-Haenszel P-value
Minority (all except non-Hispanic whites)
                                                                       1.347097
                                                                       1.206525
                                                                             ~0
Persons below poverty
                                                                       1.169246
                                                                       1.146543
                                                                             ~0
American Indians and Alaska Natives
                                                                       0.834828
                                                                       0.834945
                                                                       2.72E-27
Children under age 5
                                                                       1.035238
                                                                       1.033043
                                                                       1.69E-10



Other Factors that Affect Vulnerability in Communities
Environmental justice means that all people, regardless of race, color, national origin, or income, receive fair treatment and equal environmental protection, and have the opportunity for meaningful involvement in decisions that will affect the environment and/or the health of their community.  The previous chapters of this report present a detailed analysis of a number of indicators related to the facilities and surrounding communities that could be impacted under the 2008 DSW final rule.  However, because of the broad and encompassing definition of EJ, there are many other ways to examine factors that could affect the vulnerabilities of communities.
This chapter examines a number of additional factors that could affect the vulnerabilities of communities under the 2008 DSW final rule.  Section 5.1 identifies and briefly describes some additional factors not analyzed in the previous chapters, while Section 5.2 summarizes data that EPA has compiled on some of these factors to characterize the vulnerabilities of communities surrounding the 40 notification facilities.
Overview of Factors that Affect Vulnerability
This section identifies additional factors that could affect a community's vulnerability under the rule.  These factors are described under four broad categories:
   * Susceptible Populations
   * Multiple and Cumulative Effects
   * Unique exposure pathways
   * Ability to Participate in the Decision-Making Process
   * Physical Infrastructure
   
While this report does not attempt to quantify all the potential factors that could affect a community's vulnerability to environmental pollutants, the following discussion is intended to give an overview of other considerations that may apply in some cases.  The health of community can be looked at in many ways.  EPA selected specific factors for analysis based on their relevance to the risks associated with HSM reclamation and the availability of information about those factors from reliable information sources such as the EJView tool.
Susceptible Populations
Susceptible populations are groups that are at a relatively high risk of suffering the adverse effects of environmental hazards. Certain factors may render different groups less able to resist or tolerate an environmental stressor.  These susceptibility factors may be intrinsic in nature (e.g., based on age, sex, genetics, and race).  For example, young children, pregnant women, nursing mothers, and the elderly may be more likely to suffer health consequences from a toxic chemical exposure than healthy adults.  The proximity of children under five to facilities that may begin operating under the 2008 DSW final rule is presented in Section 4, although there are likely other types of susceptible populations in these communities as well.
Multiple and Cumulative Effects
Minority, low-income, and indigenous communities that have been impacted by multiple environmental hazards may be at risk for increased adverse health consequences.  Environmental hazards can include, for example, industrial facilities, landfills, transportation-related air pollution, poor housing, leaking underground tanks, pesticides, and incompatible land uses.  An analysis of the cumulative effects from multiple stressors can provide a more complete evaluation of a population's health risks from pollutants.  For example, an analysis of discrete stressors and effects on a population might conclude that nearby pollution sources are within regulatory limits; however, the cumulative effects might result in a person's aggregate exposure to a particular contaminant from multiple sources exceeding a health-based limit.
Some factors may provide data on the potential sources of cumulative stress, such as the total number of facilities that may emit environmental pollutants.  Other factors may provide data on environmental conditions that could cause stress (e.g., transport routes, such as water or air quality or meteorological conditions).  Finally, other factors may provide data on potential or actual human exposures to stressors, such as health data.  Examples of factors include the following:
   Existing Pollution Sources
Number of facilities reporting to EPA  -  EPA's Envirofacts database keeps track of regulated facility data from 14 data systems.  Examples are listed below.  The number of regulated facilities within a community can indicate the number or proximity of pollution sources.  
Resource Conservation and Recovery Act Information (RCRAInfo)  -  contains information on facilities that generate, transport, treat, store or dispose of hazardous waste.  This factor is examined in Section 5.2.  
Air Facility System (AFS) - contains compliance and permit data for stationary sources regulated by EPA, state and local air pollution agencies. This factor is examined in Section 5.2.  
Comprehensive Environmental Response, Compensation & Liability Information System (CERCLIS)  -  contains information on hazardous waste sites, potentially hazardous waste sites and remedial activities across the nation, including sites that are on the National Priorities List (NPL) or being considered for the NPL.  This factor is examined in Section 5.2.  
   Environmental Quality Factors
Non-Point Source Air Emissions - The CAA requires EPA to set National Ambient Air Quality Standards (NAAQSs) for pollutants considered harmful to public health and the environment. EPA has set NAAQSs for six principal pollutants, which are called "criteria" pollutants (e.g., carbon monoxide, ozone, particulate matter).  In addition, the CAA requires EPA to identify and list all air pollutants (not already identified as criteria pollutants) that "may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible or incapacitating reversible illness." For each hazardous air pollutant (HAP) identified, EPA was to then promulgate national emissions standards for hazardous air pollutants (NESHAPs).  The quantity of these pollutants in the local atmosphere can help to indicate cumulative air hazards.   This factor is examined in Section 5.2 for a limited number of criteria pollutants and HAPs.
   Health-Related Factors
Cancer  -  The threat of cancer can be measured based on the total cancer risk per million, by tract or county, as determined by the 2002 National-Scale Air Toxics Assessment (NATA).  NATA is EPA's ongoing comprehensive evaluation of air toxics in the U.S.  EPA developed the NATA as a state-of-the-science screening tool for State/Local/Tribal Agencies to prioritize pollutants, emission sources and locations of interest for further study in order to gain a better understanding of risks.  NATA assessments do not incorporate refined information about emission sources, but rather, use general information about sources to develop estimates of risks which are more likely to overestimate impacts than underestimate them.  NATA provides estimates of the risk of cancer and other serious health effects from breathing (inhaling) air toxics in order to inform both national and more localized efforts to identify and prioritize air toxics, emission source types, and locations which are of greatest potential concern in terms of contributing to population risk.  This factor is examined in Section 5.2.
Non-cancer  -  The threat of a non-cancer illness (neurological or respiratory) can be measured based on the sum of hazard quotients that affect the same target organ, by tract or county, as determined by the 2002 NATA.  See above for a description of NATA.  This factor is examined in Section 5.2.
Unique Exposure Pathways
Other susceptibility factors may stem from unique pathways for exposure.  For example, certain lifestyle patterns may present unique exposure pathways, such as relative source contributions for people that get a significant portion of their diet from food they grow or catch themselves.  For example, some indigenous peoples that use fishing and hunting to provide food for their families may be more susceptible to contaminants found in the natural environment, such as chemicals that bioaccumulate in flora or fish.  Section 4 of this report includes information about the American Indian and Alaska native populations in proximity to facilities that may generate or manage HSM under the 2008 DSW final rule.  While this does not automatically correspond to individuals experiencing unique exposures pathways, it does indicate that such exposures might occur.  
Ability to Participate in Decision-Making Process
A key element of environmental justice is ensuring that all people have an opportunity for meaningful involvement in decision-making.  Certain groups may not have participated in decision making historically because of economic (e.g., income), social (e.g., language barriers, education levels, distrust of government), and structural reasons.  A critical concern is whether, and the extent to which, communities have the ability to influence the types and number of regulated activities taking place in their community, as well as the requirements, conditions, and parameters by which they must operate (e.g., permit conditions).  
Under the 2008 DSW final rule, facilities claiming an exclusion must submit an initial and biennial notification to EPA or the state, providing general facility information and describing the HSM types and activities.  Thus, under both the existing hazardous waste regulations and the 2008 DSW rule, EJ communities have a similar ability to identify the facilities that are recycling HSM in their communities, and the types and amounts of waste recycled.  
However, the existing hazardous waste regulations require some hazardous waste recycling facilities to get a RCRA permit.  Permitted facilities are subject to public involvement during the permitting process, and facilities and regulators are required to solicit and consider community input into the permitting decision-making process.  Under the 2008 DSW final rule, HSM reclaimers may not be subject to permitting requirements, and EJ communities may not have the same opportunities be informed about the siting and permitting of HSM reclaimers and participate in the decision-making process.  Thus, by removing the RCRA permitting requirement, the 2008 DSW final rule also inadvertently removed one of the key provisions allowing the community to participate in the regulatory process.  Communities with lower participation levels may experience greater adverse impacts because their input has not been considered fully, particularly if competing interests are set forth more effectively.  This effect is most likely to occur in communities that have traditionally been excluded from the decision making process. However, not all hazardous waste recycling facilities are required to get permits under the hazardous waste regulations.  EPA did not analyze the impact of the 2008 DSW rule on permitting in EJ communities.  
In addition to the permitting process, the DSW Rule requires that generators make reasonable efforts to ensure that their hazardous secondary materials are safely and legitimately recycled.  When HSM reclaimers are located in EJ communities, and the generators of the wastes are small businesses, the generators' ability to conduct reasonable efforts determinations may be impacted.   Not all generators will have the same ability to perform reasonable efforts audits, and the efficacy of these efforts will depend on the ability of the generator.  For example, small or independent generators may have fewer financial resources or staff to use to conduct such audits, and may be more likely to miss indications that reclaimers are not legitimately recycling HSM. EPA did not analyze whether HSM reclaimers managing waste from small or independent generators were more likely to be located in EJ communities.
There are a number of factors that can measure the ability of a community to gain access to information or to meaningfully participate in the decision-making process.  There also are factors that can measure whether and how well the community appears to be able to participate in the environmental decision-making process.  Examples of possible factors include the following:  
Education level  -  Persons with less education may be generally less likely to participate in environmental decision-making.  Because of less education, they may not be able to fully understand the information in local newspapers, notices, and other written media.  They may also be less informed about events within their communities.  This factor is examined in Section 5.2.
English literacy  -  People who cannot speak or read English well may be less informed about activities of interest in their community because they cannot fully understand the information in local newspapers, broadcasts, notices, and other media, unless such information has been translated into a language that they are comfortable with.  A lack of English literacy is an indicator that members of the community are immigrants or foreign born.  Immigrant status, particularly new immigrants and undocumented workers and residents may experience significant communication barriers to participating in decision making.  This factor is examined in Section 5.2.
Communication channels  -  Some regulations require that regulated entities issue public announcements of their proposed actions and solicit public comments.  Without such communication channels, meaningful community involvement is less likely.  
Physical Infrastructure
The physical infrastructure of a community can contribute to making some residents more vulnerable to environmental hazards.  Physical infrastructure can include, for example, public buildings (proximity to hospitals), safe drinking water, sewage treatment, public transportation, and communication systems (e.g., telephones, Internet access).  Access to such infrastructure may affect a community's ability to avoid exposures to harmful pollutants or, if they are already exposed, to detect the exposure, get proper treatment, or take other mitigating steps.
For example, some groups or communities have insufficient access to health care facilities.  Those without access may go undiagnosed and untreated.  People without easy access to health care facilities include those without health insurance and those unable to travel to health care facilities.  For example, low-income groups and some elderly and disabled individuals, with limited or no access to private transportation, may need public transportation to access health care facilities.  If nearby public transportation does not exist, they may not be able to receive the level of health care that they need.
Examples of possible factors include the following:  
Number of hospitals  -  Some groups, such as inner city residents or indigenous populations, might not live near a hospital and therefore have to travel longer distances for medical care; this may limit the frequency and quality of care they receive.  Communities with more hospitals have a wider selection of medical resources from which to choose; they can select the type and quality of health care appropriate for their particular needs. This factor is examined in Section 5.2.
Medically underserved  -  Some groups may differ in the level and quality of health care they traditionally receive.  This may be due to cultural differences, treatment disparities stemming from socio-economic barriers (e.g., lack of insurance) or other factors.  This factor is examined in Section 5.2.
Summary of Analysis of Factors that Affect Vulnerability for 40 Notification Facilities
EPA has compiled data on some of the factors described above to characterize the vulnerabilities of communities potentially affected by the 2008 DSW rule.  Specifically, EPA has compiled these data on the communities surrounding the 40 notification facilities.  While EPA does not have information to know whether or not these results would reflect or represent all of the facilities that may eventually have claimed an exclusion under the 2008 DSW final rule, EPA believes it provides preliminary information regarding the possible extent of multiple exposures to the 40 notification facilities. EPA did not analyze factors that affect vulnerability for communities around damage case facilities because these facilities represent historical hazards, and may not be indicative of facilities that will generate and manage HSM under the 2008 DSW rule in the future.  In addition, EPA did not analyze factors that affect vulnerability for communities around hazardous waste facilities and non-hazardous industrial waste facilities because these analyses were beyond the scope of this analysis.  The results of this data collection are summarized in Table 5.1.
Because of the potential for adverse impacts to communities located around DSW facilities, each of the factors described in Section 5.1 has the potential to exacerbate those adverse impacts.  While EPA has not attempted to quantify or determining the potential disproportionality of every possible factors, Table 5.1 does demonstrate that some communities around DSW facilities are potentially affected by these factors. 

In particular, an examination of the facilities that have notified under the 2008 DSW final rule shows that multiple environmental hazards are a potential concern for communities around these facilities.  All have multiple facilities reporting to EPA, either under RCRA, the Clean Air Act (CAA), or Comprehensive Environmental Response, Compensation and Liability Act, (CERCLA - also known as Superfund) within a three-kilometer radius of the facility.  Twenty-six of the forty facilities had communities with cancer rates greater than the 80th percentile, and twenty-seven showed a greater than the 80th percentile in neurological hazard rates.  Twenty-seven facilities also had no hospital facilities within the three kilometer area.

In addition, as noted in Section 5.1, one of the specific potential impacts of the 2008 DSW final rule is that facilities and regulators are not required to solicit or consider community input into the decision-making process regarding DSW facilities, as is the case with RCRA permitted facilities.  Thus by removing the RCRA permitting requirement for facilities that manage excluded hazardous secondary materials, the 2008 DSW final rule also removed one of the key provisions for allowing communities to participate in the regulatory process (at least as it concerns the management of the hazardous secondary materials excluded under the rule).  Communities with lower participation levels may experience greater adverse impacts from environmental decision-making because their input has not been considered fully, particularly if competing interests are set forth more effectively.  This effect is most likely to occur in communities that have traditionally been excluded from the decision-making process.

Table 5.1.  Other Factors that Affect Vulnerability in Communities Affected By Recycling Notification Facilities
                                   Facility
              Ability to Participate in Decision Making Process 
                            Physical Infrastructure
                        Multiple and Cumulative Effects

              Percent of Population (Within 3 km of the Facility)
   Transportation and Health Care Availability
(Within 3 km of the Facility)
Health Risks 
(Persons per Million Expected to Contract Disease Over a 70 Year Period Within the County of the Facility)
Non-Point Source Air Emissions 
(Tons Per Year Within the County of the Facility) 
     Number of Facilities Reporting to EPA 
(Within 3 km of the Facility)
                                     Name
                                     City
                                     State
                    Education Less than High School Diploma
                             Non-English Speaking
                              Number of Hospitals
                             Medically Underserved
                                    Cancer
                              Neurological Hazard
                              Respiratory Hazard
                                Carbon Monoxide
                                    Ammonia
                                Nitrogen Oxide
                        Particulates (size < 10 μm)
                       Particulates (size < 2.5 μm)
                                Sulfur Dioxide
                          Volatile Organic Compounds
                                     RCRA
                                      AFS
                                    CERCLIS
Curries 12th St NW Facility IA0000362905
MASON CITY
                                      IA
                                     16.5%
                                     3.8%
                                       1
                                      No
                          21.75  (70.5 Percentile)
                           .04  (68.5 Percentile)
                           1.67  (71.6 Percentile)
                                     1,339
                                     2,634
                                      258
                                     5,121
                                     1,008
                                      322
                                     1,200
                                      78
                                      22
                                       1
Curries 9th Street Facility IAD043490150
MASON CITY
                                      IA
                                     15.6%
                                     4.1%
                                       1
                                      No
                          21.75  (70.5 Percentile)
                           .04  (68.5 Percentile)
                           1.67  (71.6 Percentile)
                                     1,339
                                     2,634
                                      258
                                     5,121
                                     1,008
                                      322
                                     1,200
                                      94
                                      36
                                       1
Diamond Vogel Paint Co., Inc. IAD055803423
BURLINGTON
                                      IA
                                     20.0%
                                     3.4%
                                       2
                                      Yes
                          32.37  (90.4 Percentile)
                           .08  (93.4 Percentile)
                           1.01  (52.3 Percentile)
                                      592
                                      569
                                      287
                                     4,143
                                      677
                                      329
                                      914
                                      45
                                      21
                                       1
Fres-co System USA, Inc IAR000007013
RED OAK
                                      IA
                                     27.0%
                                     4.3%
                                       0
                                      No
                          14.31  (32.6 Percentile)
                           .03  (40.4 Percentile)
                           .58  (31.1 Percentile)
                                      137
                                     1,367
                                      51
                                     2,865
                                      499
                                      60
                                      261
                                      26
                                       9
                                       0
Iowa Contract Fabricators Inc IA0000990762
RICEVILLE
                                      IA
                                     22.3%
                                     7.5%
                                       2
                                      No
                          11.34  (14.2 Percentile)
                            .02  (17 Percentile)
                           .28  (14.5 Percentile)
                                      497
                                     2,123
                                      70
                                     3,424
                                      647
                                      71
                                      223
                                       3
                                       3
                                       0
Iowa Mold Tooling Company Inc IAD005286539
GARNER
                                      IA
                                     11.1%
                                     1.6%
                                       1
                                      No
                          12.42  (19.2 Percentile)
                           .03  (52.2 Percentile)
                           .41  (21.2 Percentile)
                                      597
                                     2,484
                                      67
                                     4,588
                                      846
                                      60
                                      553
                                      11
                                       5
                                       0
John Deere Davenport Works IAD073489726
DAVENPORT
                                      IA
                                     8.0%
                                     4.1%
                                       0
                                      No
                          33.17  (91.1 Percentile)
                           .09  (95.3 Percentile)
                           2.34  (81.4 Percentile)
                                     1,071
                                     1,964
                                     1,037
                                     8,066
                                     1,251
                                     1,040
                                     2,990
                                      35
                                      11
                                       0
John Deere Des Moines Works IAD069624500
ANKENY
                                      IA
                                     5.4%
                                     6.9%
                                       1
                                      No
                          26.04  (81.2 Percentile)
                            .2  (98.7 Percentile)
                           2.56  (83.7 Percentile)
                                     2,587
                                     1,642
                                     1,717
                                    16,882
                                     2,479
                                     3,003
                                     7,512
                                      18
                                      16
                                       1
John Deere Dubuque Works IAD005269527
DUBUQUE
                                      IA
                                     16.9%
                                     2.9%
                                       0
                                      No
                          23.75  (76.2 Percentile)
                           .05  (74.2 Percentile)
                           1.56  (69.3 Percentile)
                                     2,452
                                     4,603
                                      561
                                     8,248
                                     1,477
                                      739
                                     2,368
                                       7
                                       3
                                       2
John Deere Engine Works IAD000678094
WATERLOO
                                      IA
                                     8.8%
                                     8.2%
                                       1
                                      No
                          27.95  (84.4 Percentile)
                           .04  (72.1 Percentile)
                           2.13  (78.6 Percentile)
                                     2,642
                                     2,245
                                      687
                                     7,244
                                     1,351
                                      853
                                     3,007
                                      25
                                      14
                                       0
John Deere Waterloo Works IAD000805168
WATERLOO
                                      IA
                                     19.9%
                                     5.2%
                                       0
                                      No
                          27.95  (84.4 Percentile)
                           .04  (72.1 Percentile)
                           2.13  (78.6 Percentile)
                                     2,642
                                     2,245
                                      687
                                     7,244
                                     1,351
                                      853
                                     3,007
                                       7
                                       5
                                       0
Siegwerk USA Co IAD078096732
DES MOINES
                                      IA
                                     30.7%
                                     16.1%
                                       2
                                      Yes
                          26.04  (81.2 Percentile)
                            .2  (98.7 Percentile)
                           2.56  (83.7 Percentile)
                                     2,587
                                     1,642
                                     1,717
                                    16,882
                                     2,479
                                     3,003
                                     7,512
                                      208
                                      141
                                       0
Siegwerk USA Co IAR000007377
DES MOINES
                                      IA
                                     9.0%
                                     6.2%
                                       0
                                      No
                          26.04  (81.2 Percentile)
                            .2  (98.7 Percentile)
                           2.56  (83.7 Percentile)
                                     2,587
                                     1,642
                                     1,717
                                    16,882
                                     2,479
                                     3,003
                                     7,512
                                      34
                                      46
                                       1
Vogel Paint & Wax Co Inc IAD007276728
ORANGE CITY
                                      IA
                                     16.8%
                                     5.1%
                                       1
                                      No
                          20.62  (66.4 Percentile)
                           .04  (70.6 Percentile)
                           .46  (24.6 Percentile)
                                     1,309
                                    13,326
                                      187
                                     7,169
                                     1,306
                                      226
                                     1,117
                                      10
                                       7
                                       0
Aleris Rolled Products, Inc NJD051415909
CLAYTON
                                      NJ
                                     19.9%
                                     6.7%
                                       0
                                      Yes
                            32.12 (90.1 Percentile)
                             .05 (81.8 Percentile)
                             4.08 (93 Percentile)
                                     4,428
                                      688
                                      797
                                     3,015
                                      842
                                      389
                                     6,882
                                      41
                                       5
                                       1
Aluminum Shapes LLC NJD002338267
CAMDEN
                                      NJ
                                     22.3%
                                     12.6%
                                       0
                                      No
                          39.26  (95.8 Percentile)
                           .07  (91.7 Percentile)
                           5.09  (95.8 Percentile)
                                     3,166
                                      720
                                     1,497
                                     2,978
                                      670
                                      504
                                     6,803
                                      187
                                      47
                                      12
Anadigics, Inc. NJR000036301
WARREN
                                      NJ
                                     7.6%
                                     21.2%
                                       0
                                      No
                            33.08 (90.9 Percentile)
                             .06 (85.4 Percentile)
                            4.39 (93.9 Percentile)
                                     2,055
                                      538
                                     1,047
                                     3,214
                                      560
                                      272
                                     3,907
                                      38
                                       3
                                       0
Melton Sales & Service NJD981483035
BORDENTOWN
                                      NJ
                                     16.2%
                                     9.9%
                                       0
                                      No
                            33.54 (91.7 Percentile)
                             .06 (87.7 Percentile)
                            4.94 (95.4 Percentile)
                                     6,877
                                      960
                                     1,351
                                     4,869
                                     1,330
                                      454
                                    10,554
                                       7
                                       2
                                       1
Melton Sales & Service NJR000075796
BURLINGTON
                                      NJ
                                     14.9%
                                     11.8%
                                       1
                                      No
                            33.54 (91.7 Percentile)
                             .06 (87.7 Percentile)
                            4.94 (95.4 Percentile)
                                     6,877
                                      960
                                     1,351
                                     4,869
                                     1,330
                                      454
                                    10,554
                                      49
                                       9
                                       0
Safety-Kleen Systems, Inc (Linden Facility) NJD002182897
LINDEN
                                      NJ
                                     22.9%
                                     32.3%
                                       0
                                      No
                            51.24 (98.8 Percentile)
                            0.11 (96.1 Percentile)
                            7.49 (98.6 Percentile)
                                     1,889
                                      692
                                     1,632
                                     1,600
                                      379
                                      602
                                     8,419
                                      380
                                      71
                                       3
Sancoa International NJD986629491
LUMBERTON
                                      NJ
                                     8.0%
                                     7.9%
                                       0
                                      No
                          33.54  (91.7 Percentile)
                           .06  (87.7 Percentile)
                           4.94  (95.4 Percentile)
                                     6,877
                                      960
                                     1,351
                                     4,869
                                     1,330
                                      454
                                    10,554
                                      10
                                       2
                                       0
Siegfried USA Incorporated NJD064344575
PENNSVILLE
                                      NJ
                                     22.5%
                                     6.5%
                                       0
                                      Yes
                          28.42  (85.1 Percentile)
                           .04  (72.9 Percentile)
                           3.19  (88.2 Percentile)
                                     2,366
                                      784
                                      226
                                     1,583
                                      448
                                      156
                                     1,481
                                      13
                                       3
                                       0
Veolia ES Technical Solutions LLC NJD002454544
MIDDLESEX
                                      NJ
                                     16.6%
                                     29.8%
                                       1
                                      No
                            42.44 (97.1 Percentile)
                             0.08 (94 Percentile)
                             5.89 (97 Percentile)
                                     2,313
                                     1,110
                                     2,352
                                     4,212
                                      624
                                      688
                                    11,328
                                      207
                                      41
                                       8
Viking Yacht Company NJD002482545
NEW GRETNA
                                      NJ
                                     21.2%
                                     4.4%
                                       0
                                      No
                          33.54  (91.7 Percentile)
                           .06  (87.7 Percentile)
                           4.94  (95.4 Percentile)
                                     6,877
                                      960
                                     1,351
                                     4,869
                                     1,330
                                      454
                                    10,554
                                       2
                                       1
                                       0
BAE Systems, Land & Armaments PAD003025418
YORK
                                      PA
                                     20.8%
                                     3.5%
                                       0
                                      No
                            38.59 (95.3 Percentile)
                            0.09 (94.9 Percentile)
                            4.15 (93.3 Percentile)
                                    10,384
                                     3,488
                                     1,904
                                    17,754
                                     3,425
                                     1,940
                                     8,496
                                       9
                                       3
                                       0
Carpenter Technology Corporation PAD002344315
READING
                                      PA
                                     34.6%
                                     31.6%
                                       1
                                      Yes
                            39.16 (95.7 Percentile)
                             .08 (93.1 Percentile)
                            3.29 (88.7 Percentile)
                                     8,000
                                     4,298
                                     1,802
                                    14,280
                                     2,690
                                     2,367
                                    10,315
                                      156
                                      34
                                       0
Cherokee Pharmaceuticals, LLC PAD003043353
RIVERSIDE
                                      PA
                                     20.1%
                                     5.2%
                                       0
                                      No
                            23.91 (76.6 Percentile)
                             .08 (93.8 Percentile)
                            2.04 (77.3 Percentile)
                                     3,940
                                     1,628
                                      409
                                     4,675
                                      911
                                      800
                                     1,785
                                      19
                                       5
                                       0
Erie Plating Co PAD005031448
ERIE
                                      PA
                                     22.1%
                                     11.8%
                                       4
                                      No
                            28.53 (85.3 Percentile)
                            0.06 (88.9 Percentile)
                            1.32 (63.2 Percentile)
                                     2,570
                                      822
                                     1,631
                                     7,677
                                     1,279
                                     2,032
                                     9,674
                                      206
                                      38
                                       0
International Metals Reclamation Company, Inc PAD087561015
ELLWOOD CITY
                                      PA
                                     17.6%
                                     3.9%
                                       0
                                      No
                            26.33 (81.9 Percentile)
                             0.06 (84 Percentile)
                            1.97 (76.4 Percentile)
                                     1,512
                                      610
                                      451
                                     3,661
                                      647
                                      577
                                     2,071
                                      41
                                      16
                                       0
Jerr-Dan Corp PAD047518014
GREENCASTLE
                                      PA
                                     20.1%
                                     3.1%
                                       0
                                      Yes
                            21.25 (68.6 Percentile)
                            0.05 (73.7 Percentile)
                            1.75 (73.2 Percentile)
                                     3,371
                                     4,933
                                      531
                                     8,056
                                     1,420
                                      596
                                     3,645
                                      15
                                       2
                                       0
Jerr-Dan Corp Wrecker Div PAR000029769
GREENCASTLE
                                      PA
                                     24.5%
                                     3.8%
                                       0
                                      Yes
                            21.25 (68.6 Percentile)
                             .05 (73.7 Percentile)
                            1.75 (73.2 Percentile)
                                     3,371
                                     4,933
                                      531
                                     8,056
                                     1,420
                                      596
                                     3,645
                                      28
                                      12
                                       0
John Maneely Co Wheatland Tube Division PAD004322863
SHARON
                                      PA
                                     21.0%
                                     4.6%
                                       0
                                      Yes
                            22.01 (71.4 Percentile)
                            0.07 (90.1 Percentile)
                            1.58 (69.6 Percentile)
                                     2,184
                                     1,036
                                      644
                                     6,286
                                     1,049
                                      797
                                     3,290
                                      49
                                       4
                                       2
John Maneely Co Wheatland Tube Division PAD004338091
WHEATLAND
                                      PA
                                     29.0%
                                     4.4%
                                       0
                                      No
                            22.01 (71.4 Percentile)
                            0.07 (90.1 Percentile)
                            1.58 (69.6 Percentile)
                                     2,184
                                     1,036
                                      644
                                     6,286
                                     1,049
                                      797
                                     3,290
                                      39
                                      12
                                       1
John Maneely Co Wheatland Tube Division PAR000038067
WHEATLAND
                                      PA
                                     25.4%
                                     5.6%
                                       0
                                      No
                            22.01 (71.4 Percentile)
                            0.07 (90.1 Percentile)
                            1.58 (69.6 Percentile)
                                     2,184
                                     1,036
                                      644
                                     6,286
                                     1,049
                                      797
                                     3,290
                                      42
                                      12
                                       1
Johnson Matthey Emissions Control Technologies PAD980829287
WAYNE
                                      PA
                                     2.9%
                                     13.0%
                                       0
                                      No
                            39.04 (95.6 Percentile)
                             .08 (92.6 Percentile)
                            5.61 (96.5 Percentile)
                                     3,689
                                      337
                                     1,902
                                     5,456
                                     1,144
                                     2,034
                                    10,014
                                      47
                                       6
                                       0
Johnson Matthey Emissions Control Technologies PAR000519322
SMITHFIELD
                                      PA
                                     27.6%
                                     2.9%
                                       0
                                      Yes
                            26.6 (82.5 Percentile)
                            0.04 (67.6 Percentile)
                            1.78 (73.3 Percentile)
                                     3,522
                                      424
                                      633
                                     4,885
                                      900
                                     1,097
                                     2,749
                                       6
                                       1
                                       0
Piezo Kinetics Inc PAR000036772
BELLEFONTE
                                      PA
                                     19.3%
                                     4.0%
                                       0
                                      No
                            26.15 (81.6 Percentile)
                             .05 (80.1 Percentile)
                            1.91 (75.4 Percentile)
                                     6,428
                                      953
                                      603
                                     7,483
                                     1,457
                                     1,147
                                     2,911
                                      18
                                       7
                                       0
Spectrum Control Technology Inc PAD043882323
STATE COLLEGE
                                      PA
                                     5.0%
                                     16.2%
                                       0
                                      No
                            26.15 (81.6 Percentile)
                            0.05 (80.1 Percentile)
                            1.91 (75.4 Percentile)
                                     6,428
                                      953
                                      603
                                     7,483
                                     1,457
                                     1,147
                                     2,911
                                      48
                                      13
                                       0
Triangle Circuits PAD981037377
OAKMONT
                                      PA
                                     13.8%
                                     5.6%
                                       0
                                      No
                            63.86 (99.5 Percentile)
                            0.12 (96.9 Percentile)
                            5.34 (96.1 Percentile)
                                     8,744
                                      499
                                     5,159
                                     8,770
                                     2,071
                                     5,179
                                    22,416
                                      108
                                      36
                                       0
World Resources Company PAD981038227
POTTSVILLE
                                      PA
                                     25.1%
                                     4.7%
                                       0
                                      No
                            22.08 (71.9 Percentile)
                             .07 (90.9 Percentile)
                            1.87 (74.8 Percentile)
                                    11,143
                                      998
                                      768
                                     6,657
                                     1,404
                                     2,018
                                     3,623
                                      23
                                       9
                                       1
Source - EPA EJView tool





















Conclusions
Information Synthesis: Assessment of Disproportionate Impact
The purpose of Step 5 of the DSW environmental justice analysis methodology is to synthesize all the information to characterize whether the 2008 DSW final rule will facilitate the occurrence of any adverse impacts and whether some population groups (e.g., minority or low income populations) would be overrepresented in the impacted communities.  Below is a summary of the major conclusions from the first four steps of the analysis, as discussed in Chapters 2  -  4 of this report.
Hazardous Secondary Material Recycling Does Pose Significant Potential Hazards
As discussed in detail in Chapter 2 of this report, the first step of the DSW environmental justice analysis methodology is hazard characterization, which includes describing the chemical and other properties of hazardous secondary materials and identifying aspects of their management that could pose hazards to human health and the environment.
Hazardous secondary materials sent to recycling are physically and chemically similar, if not identical, to many of the hazardous wastes sent for treatment and disposal.  The most commonly recycled hazardous secondary materials are spent solvents and electric arc furnace dust (which is recycled to reclaim metals).  Spent solvents present particular management challenges associated with storage of liquids containing volatile organic chemicals and include both halogenated and non-halogenated organic chemicals, which represent a broad range of chemicals and associated hazards.  Electric arc furnace dust is usually in a solid state and presents a different management challenges, including storage in waste piles and the potential for wind-blown dust, and can contain high concentrations of toxic metals.   
These two classes of hazardous secondary materials (as well as other hazardous secondary materials that are recycled) can pose risks via a wide variety of exposure routes and include a range of potential adverse health effects, both carcinogenic and non-carcinogenic, and a potential for acute impacts such as fire and explosions for certain types of hazardous secondary materials, such as solvents.
Possibility of Hazards from Hazardous Secondary Materials Recycling Adversely Impacting Human Health and the Environment Is Increased under the 2008 DSW Final Rule
As discussed in Chapter 2, the second part of the hazard characterization step  -- determining whether these hazards could result in increased risk to human health and the environment under the 2008 final rule -- is a complex issue because of the interactions between how the regulations are written and how they are implemented.  Under the 2008 DSW final rule, EPA presumed that the conditions of the rule would prevent any increase in risk.  In particular, the condition that the hazardous secondary materials be "contained" was intended to address this issue, because if the material is not released to the environment, then there would be no increased exposure, and therefore no increased risk. 

However, what the 2008 analysis failed to take into account was whether the conditions of the rule  -- including the "contained" standard  -- would operate as effectively in the real world as the more detailed requirements of the RCRA hazardous waste regulations.  One of the most common criticisms of the January 2010 draft environmental justice methodology was that it glossed over some of the important protections of the hazardous waste regulations, particularly public participation requirements, which were not considered under the 2008 DSW final rule.
A more detailed comparative analysis of the regulatory requirements under the 2008 DSW final rule with the hazardous waste regulations reveals potentially significant gaps in environmental protection under the 2008 DSW final rule, particular the absence of measures to ensure compliance, incentives to accumulate larger volumes of hazardous secondary materials, the potential for increased releases such as during storage and transportation of waste, the lack of prescriptive standards for waste storage and containment, and reduction in access to information and the opportunity for public participation.  The specific gaps and resulting potential risks vary depending on the baseline scenario and the post-DSW scenario being considered  In general, potential increased risks under the rule at HSM generators and recyclers include fires/explosions, environmental contamination and human exposure, mismanaged residues, and abandoned materials.  
In a number of the scenarios examined, potential risks increased at generator and recycler sites under the rule.  A number of factors caused risks to increase, such as the rule's lack of explicit containment and other preventative requirements and the potential for greater quantities of HSM to be accumulated and managed by generators and recyclers.  Potential incremental risks include fires/explosions, environmental contamination and human exposure (i.e., from releases and other accidents), mismanaged residues, and abandoned materials.  There also are some changes in risks from transportation under the rule.  There would be fewer offsite shipments from generators, potentially resulting in fewer accidents and less traffic, pollution and noise.  However, some HSM may no longer be regulated as DOT hazardous material, which could result in fewer protective measures taken during shipment.     In some cases, there is also a potential for increased benefits, primarily from resource conservation and from reduced transportation distances.  
             Summary of Potential Impacts the 2008 DSW Final Rule
                      under Different Recycling Scenarios
Hazardous Waste Baseline
                                       
                                 DSW Practices
                         Summary of Increases in Risks
                        Summary of Reductions in Risks
         Scenario 1:  Generator continues current recycling practices
Generator recycles material onsite under hazardous waste regulations 
                                       
Generator recycles material onsite under generator-controlled exclusion 
Potential  increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures.  Potential increased risks include fires/explosions, environmental contamination and human exposure, mismanaged residues, and abandoned materials. 
Potential reduced risk at small generators of abandoned materials due to more frequent
reporting and increased data on generator activities, 
HSM quantities and types.

Potential reduced risk of non-compliant behavior at small generators and permit-exempt recyclers due to greater reporting and self-disclosure.

Generator sends material offsite for recycles to RCRA-permitted facility under hazardous waste regulations

Generator sends material offsite for recycling at a  RCRA-permitted facility under transfer-based exclusion
Potential  increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures.  Potential increased risks include fires/explosions, environmental contamination and human exposure, mismanaged residues, and abandoned materials. 

Potential increased risk during transportation if HSM no longer qualifies as DOT hazardous material or does not trigger RQ.  Potential increased risks include environmental contamination and potential human exposure. 

No change in risk at recycling facility.
Potential reduced risk at small generators of abandoned materials due to more frequent
reporting and increased data on generator activities, 
HSM quantities and types.

Potential reduced risk during transportation due to less frequent offsite shipments of HSM.  Potential reduced risks include fewer transportation accidents, and less pollution, traffic and noise.

Potential reduced risk of non-compliant behavior at small generators due to greater reporting and self-disclosure
Generator exports material under hazardous waste regulations for recycling reclamation in another country

Generator exports material under the transfer-based exclusion for recycling in another country
Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures. Potential increased risks include fires/explosions, environment contamination and human exposure, mismanaged residues, and abandoned materials. 

Potential increased risk during transportation if HSM no longer qualifies as DOT hazardous material or does not trigger RQ.  Potential increased risks include environmental contamination and potential human exposure. 

No change in risk at recycling facility.
Potential reduced risk at small generators of abandoned materials due to more frequent
reporting and increased data on generator activities, 
HSM quantities and types.

Potential reduced risk of non-compliant behavior at small generators due to greater reporting and self-disclosure

Potential reduced risk during transportation due to less frequent offsite shipments of HSM.  Potential reduced risks include fewer transportation accidents, and less pollution, traffic and noise.
 Scenario 2:  Generator switches from off-site disposal to on-site reclamation
Generator sends material offsite to a RCRA permitted facility for  treatment followed by landfilling under hazardous waste regulations

Generator recycles material onsite under generator-controlled exclusion 
Potential increased risk to human health and the environment at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures.  Potential increased risks include fires/explosions, environmental contamination and human exposure, mismanaged residues, and abandoned materials. 


Potential reduced risk in communities surrounding existing off-site treatment/disposal facilities.


Potential reduced risk at small generators of abandoned materials due to more frequent
reporting and increased data on generator activities, 
HSM quantities and types.

Potential reduced risk of non-compliant behavior at small generators due to greater reporting and self-disclosure

Potential reduced risk during transportation due to less frequent offsite shipments of HSM.  Potential reduced risks include fewer transportation accidents, and less pollution, traffic and noise.

Potential increased resource conservation and environmental benefits due to greater quantities of HSM being reclaimed and less environmental damage from mining and energy consumption.
Scenario 3: Generator switches from off-site disposal to off-site recycling under the control of the generator
Generator sends material offsite to a RCRA permitted facility for  treatment followed by landfilling under hazardous waste regulations

Generator sends material offsite for recycling at a facility that it controls under generator-controlled exclusion
Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures.  Potential increased risks include fires/explosions, environmental contamination and human exposure, and abandoned materials. 

Potential increased risk during transportation if HSM no longer qualifies as DOT hazardous material, does not trigger RQ, and/or is not accompanied by a tracking document.  Potential increased risks include environmental contamination and potential human exposure, and abandoned materials. 
Potential increased risk in communities surrounding generator off-site recycling facilities


Potential reduced risk in communities surrounding existing off-site treatment/disposal facilities.
Potential reduced risk at small generators of abandoned materials due to more frequent
reporting and increased data on generator activities, 
HSM quantities and types.

Potential reduced risk of non-compliant behavior at small generators due to greater reporting and self-disclosure

Potential reduced risk during transportation due to less frequent offsite shipments of HSM.  Potential reduced risks include fewer transportation accidents, and less pollution, traffic and noise.

Potential increased resource conservation and environmental benefits due to greater quantities of HSM being reclaimed and less environmental damage from mining and energy consumption
Scenario 4: Generator switches from off-site disposal to off-site recycling at RCRA-permitted facility
Generator sends material offsite to a RCRA permitted facility for treatment followed by landfilling under hazardous waste regulations

Generator sends material offsite for recycling at a  RCRA-permitted facility under transfer-based exclusion
Potential  increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures.  Potential increased risks included fires/explosions, environmental contamination and human exposure, and abandoned materials. 

Potential increased risk during transportation if HSM no longer qualifies as DOT hazardous material or does not trigger RQ.  Potential increased risks include environmental contamination and potential human exposure. 



Potential reduced risk in communities surrounding existing off-site treatment/disposal facilities.




Potential reduced risk at small generators of abandoned materials due to more frequent
reporting and increased data on generator activities, 
HSM quantities and types.

Potential reduced risk of non-compliant behavior at small generators due to greater reporting and self-disclosure

Potential reduced risk during transportation due to less frequent offsite shipments of HSM.  Potential reduced risks include fewer transportation accidents, and less pollution, traffic and noise.

Potential increased resource conservation and environmental benefits due to greater quantities of HSM being reclaimed and less environmental damage from mining and energy consumption
Scenario 5: Generator switches from off-site disposal to off-site recycling at a U.S. facility without a RCRA permit
Generator sends material offsite to a RCRA permitted facility for treatment followed by landfilling under hazardous waste regulations

Generator sends material offsite for recycling at a facility in the United States without a RCRA permit under transfer-based exclusion
Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures.  Potential increased risks include fires/explosions, environmental contamination and human exposure, and abandoned materials. 

Potential increased risk during transportation if HSM no longer qualifies as DOT hazardous material or does not trigger RQ.  Potential increased risks include environmental contamination and potential human exposure. 

Potential increased risk at recycler due to longer accumulation times, greater quantities, lack of explicit preventative measures.  Potential increased risks include fire/explosion, environmental contamination, and human exposure. 


Potential reduced risk in communities surrounding existing off-site treatment/disposal facilities.
Potential reduced risk at small generators of abandoned materials due to more frequent
reporting and increased data on generator activities, 
HSM quantities and types.

Potential reduced risk during transportation due to less frequent offsite shipments of HSM.  Potential reduced risks include fewer transportation accidents, and less pollution, traffic and noise.


Potential reduced risk at recycler due to requirements for financial assurance and generator audits of recyclers under transfer-based exclusion.  Potential reduced risks include fewer releases from reclamation and reduced frequency of

Potential reduced risk of non-compliant behavior at small generators and permit-exempt recyclers due to greater reporting and self-disclosure

Potential increased resource conservation and environmental benefits due to greater quantities of HSM being reclaimed and less environmental damage from mining and energy consumption

Scenario 6: Generator switches from off-site disposal to exporting for recycling
Generator sends material offsite to a RCRA permitted facility for treatment followed by landfilling under hazardous waste regulations

Generator exports material under the transfer-based exclusion for recycling in another country
Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures.  Potential increased risks include fires/explosions, environmental continuation and human exposure, and abandoned materials. 

Potential increased risk during transportation if HSM no longer qualifies as DOT hazardous material or does not trigger RQ.  Potential increased risks include environmental contamination and potential human exposure. 

Potential increased risk at recycler due to greater quantities of HSM  being received.  Potential increased risks include fires/explosions, environmental contamination and human exposure. 


Potential reduced risk in communities surrounding existing off-site treatment/disposal facilities.
Potential reduced risk at small generators of abandoned materials due to more frequent
reporting and increased data on generator activities, 
HSM quantities and types.

Potential reduced risk of non-compliant behavior at small generators due to greater reporting and self-disclosure

Potential reduced risk during transportation due to less frequent offsite shipments of HSM.  Potential reduced risks include fewer transportation accidents, and less pollution, traffic and noise.

Potential increased resource conservation and environmental benefits due to greater quantities of HSM being reclaimed and less environmental damage from mining and energy consumption

Scenario 7: Generator switches from off-site recycling at a facility without a permit to another type of recycling under the 2008 DSW final rule
Generator sends material offsite for recycling at a facility in the United States that recycles without a RCRA permit under hazardous waste regulations

Generator sends material offsite for reclamation at a  facility under generator-controlled exclusion, or

Generator exports material under the transfer-based exclusion for reclamation in another country, or

Generator sends material offsite for reclamation at a RCRA permitted facility under transfer-based exclusion, or

Generator sends material offsite for reclamation at a facility in the United States without a RCRA permit under transfer-based exclusion.











Potential increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures.  Potential increased risks include fires/explosions, environmental contamination and human exposure, and abandoned materials. 

Potential increased risk during transportation if HSM no longer qualifies as DOT hazardous material or does not trigger RQ.  Potential increased risks included environmental contamination and potential human exposure. 

Potential increased risk at new recycler due to longer accumulation times, and greater quantities accumulated.  Potential increased risks include fires/explosions, environmental contamination and human exposure, and mismanagement of residues under GCE.

Potential reduced risk at new recycler due to "contained" standard, legitimacy condition and (for the transfer-based exclusions) reasonable efforts audit and financial assurance conditions.

Potential reduced risk in communities surrounding previously used off-site recycling facility.
Potential reduced risk at small generators of abandoned materials due to more frequent
reporting and increased data on generator activities, 
HSM quantities and types.

Potential reduced risk of non-compliant behavior at small generators due to greater reporting and self-disclosure

Potential reduced risk during transportation due to less frequent offsite shipments of HSM.  Potential reduced risks include fewer transportation accidents, and less pollution, traffic and noise.

Potential reduced risk at recycler due to requirements for financial assurance and generator audits of recyclers under transfer-based exclusion.  Potential reduced risks include fewer releases from reclamation and reduced frequency of abandoned materials.

Potential increased resource conservation and environmental benefits due to greater quantities of HSM being reclaimed and less environmental damage from mining and energy consumption
Scenario 8:  Generator switches from off-site recycling at a RCRA-permitted facility or exporting waste for recycling to another type of recycling under the 2008 DSW final rule
Generator sends material offsite for reclamation to RCRA-permitted facility under hazardous waste regulations or exporting waste for reclamation in another country

Generator reclaims material onsite under generator-controlled exclusion, or

Generator sends material offsite for reclamation at a facility that it controls under generator-controlled exclusion, or

Generator sends material offsite for reclamation at a facility in the United States without a RCRA permit under transfer-based exclusion, or

Generator exports material under the transfer-based exclusion for reclamation in another country
 Same as corresponding scenarios 2  -  6
 Same as corresponding scenarios 2  -  6, but with no resource conservation benefits.




Many of the Communities Potentially Impacted by this Potential Increase in Risk of Adverse Impacts are Minority and Low-Income Communities, and in Some Cases the Populations Potentially Impacted Are Disproportionately Minority and/or Low Income 

The second and third steps of the DSW environmental justice analysis methodology together help determine whether the potential adverse impacts detailed above are likely to occur disproportionately in minority and low-income communities.  
The second step of the methodology identified facilities that can represent the facilities that are likely to take advantage of the 2008 DSW final rule.  These facilities are grouped into four different categories:  
   1. Notification facilities;
   2. Damage case facilities;
   3. Hazardous waste facilities; and
   4. Non-hazardous industrial waste facilities
The third step characterized the demographics of the communities within a three kilometer radius around these facilities, and determined whether they were disproportionately minority or low-income compared to the nation as a whole, and compared to the population in the state.  Disproportionality was evaluated both at the community and at the population level.
For the community-level analysis, the question is whether the communities in a facility category had a higher or lower percentage of minority and/or low-income population as compared to the comparison population (i.e., national or state population).  In general, some communities will have a higher percentage than the comparison population, some will have a lower percentage.  As long at these differences have a regular distribution, they would not indicate disproportionate impact.  However, if the number of communities with a higher percentage of minority and/or low-income population is greater than that of the comparison populations, then there is a potential for disproportionate impact. The higher the average difference between the potentially affected communities and the comparison group, the greater the potential disproportionality.
In the chart below, the only category that consistently demonstrates the potential for disproportionate impact are the damage case facilities.  For both the national and the state comparison populations, more than 50% of the damage case facilities are located in communities with minority and low-income populations that have a higher representation than the comparison populations.  In addition, the average difference in these cases (i.e., the average amount that the damage case facilities have a higher-than-average percentage of minorities or low-income populations) range from 6-8%.
Notification facilities tend to be located in communities with a lower percentage of minority and low income residents than the national population.  This is also true when compared to the state population in PA and NJ for minorities and for NJ for low income residents.  Notification facilities were located in communities with higher percent minority population than state levels in IA, and a higher percentage of low income residents than the state level in IA and PA.  

        Community-Level Analysis of Potential Disproportionate Impacts 
            of 2008 DSW Rule to Minority and Low-Income Communities
         Highlighted Values Indicate Potential Disproportionate Impact


National Comparison
% communities with higher minority representation
(average difference)
National Comparison
% communities with higher low-income representation
(average difference)
State Comparison
% communities with higher minority representation
(average difference)
State
Comparison
% communities with higher low-income representation
(average difference)
Notification Facilities
(40 total)
                                     7.5%
                                   (-20.7%)
                                     32.5%
                                    (-2.0%)
                                  50.0% (IA)
                                    (3.1%)
                                  20.0% (NJ)
                                   (-11.0%)
                                  31.3% (PA)
                                    (-2.3%)
                                  64.0% (IA)
                                    (1.7%)
                                    0% (NJ)
                                    (-3.7%)
                                   50% (PA)
                                    (2.6%)
Damage Case Facilities 
(217 total)
                                      53%
                                    (8.2%)
                                      65%
                                    (5.9%)
                                     55.8%
                                    (8.2%)
                                      69%
                                    (6.7%)
Hazardous Waste Facilities
(2,677 total)
                                      42%
                                    (0.9%)
                                      48%
                                    (1.5%)
                                     47.9%
                                    (4.0%)
                                     50.6%
                                    (1.8%)
Non-Hazardous Industrial Waste Facilities
(25 total)
                                      36%
                                    (-5.0%)
                                      40%
                                    (-0.5%)
                                      36%
                                   (-2.55%)
                                      44%
                                    (-0.3%)

The population-level analysis examines the demographics of the total potentially affected population as compared to the total comparison population to determine (1) whether there is a substantially greater probability of members in a population group of concern (minority or low-income) being present as compared to members of the comparison population, and (2) whether members of the population group of concern comprised a substantially greater proportion of the potentially affected population than the comparison populations.  These two comparisons are referred to as (1) the Affected Population Ratio, and (2) the Demographic Ratio.  In both cases, if the ratio is greater than 1.0, then there is a potential for disproportionate impact to the population of concern, and the larger the ratio, the greater the disproportionality.


       Population-Level Analysis of Potential Disproportionate Impacts 
            of 2008 DSW Rule to Minority and Low-Income Communities
Highlighted Values Indicate Potential Disproportionate Impact to Population of Concern
           All Results Statistically Significant (p-value <0.05)

National Comparison
Minority Population

Affected Population Ratio

Demographic Ratio
National Comparison
Low-Income Population

Affected Population Ratio

Demographic Ratio
State 
Comparison
Minority Population

Affected Population Ratio

Demographic Ratio
State 
Comparison
Low-Income Population

Affected Population Ratio

Demographic Ratio
Notification Facilities
(40 total)
                                     0.70
                                       
                                     0.76
                                     1.05
                                       
                                     1.04
                                   1.80 (IA)
                                   1.76 (IA)
                                       
                                   1.02 (NJ)
                                   1.01 (NJ)
                                       
                                   1.46 (PA)
                                   1.47 (PA)
                                   1.34 (IA)
                                   1.32 (IA)
                                       
                                   0.64 (NJ)
                                   0.65 (NJ)

                                   1.74 (PA)
                                   1.63 (PA)
Damage Case Facilities 
(217 total)
                                     2.87
                                       
                                     1.86
                                     1.98
                                       
                                     1.80
                                     2.59
                                       
                                     1.64
                                     2.04
                                       
                                     1.90
Hazardous Waste Facilities
(2,677 total)
                                     1.90
                                       
                                     1.80
                                     1.39
                                       
                                     1.50
                                     1.94
                                       
                                     2.04
                                     1.47
                                       
                                     1.83
Non-Hazardous Industrial Waste Facilities
(25 total)
                                     1.19
                                       
                                     1.12
                                     1.16
                                       
                                     1.14
                                     1.34
                                       
                                     1.20
                                     1.17
                                       
                                     1.15

The population-level analysis shows a greater incidence of potential disproportionate impact to minority and low-income populations than the community-level analysis.  For the population-level analysis, the potential for disproportionate impact (i.e., ratios greater than one) occur under all categories, while the community-level analysis exhibits the potential for disproportionate impact only in the damage case facility category.  This difference can occur when the populations of those communities that do have a greater percentage of minority or low-income individuals also have a significantly higher total population than those communities that do not.  In other words, for all categories of facilities except the damage case facilities, the facilities of concern do not appear to be disproportionately located in minority or low-income communities, but the facilities that are located in minority and low-income communities have the potential to impact much larger populations than those which are not, resulting in an overall potential disproportionate impact to minority and low-income populations as a whole.
The level of statistical significance (p-value) depends on the size of the difference as well as the total population analyzed. Thus the same Affected Population or Demographic Ratio could be non-significant for a small number of facilities or a small state or region, but highly significant for a larger number of facilities or when data from multiple states are pooled. The Affected Population and Demographic Ratios are presented as an indicator of the statistical significance of the results. 
The analysis includes comparisons of data at county, state, and national levels to help assess the sensitivity of the results to sample size.  The notification facilities were located in only a small number of states, and therefore EPA analyzed each individual state.  For other facility types, facilities were located in a large number of states, which presented challenges for presenting the information concisely.  While EPA conducted analyses for each state in which a facility was located, EPA aggregated the state-level comparison data into a single table for each facility category to streamline the presentation of the results.  
In regions with few Blacks, or few minorities, the minority population comparisons may be less important than the comparisons of low income populations because a larger percentage of the low income community may be White, non-Hispanics in such areas.  Results for both minority and low-income populations are presented for each analysis.
Affected Population Ratios are presented in this chapter to help readers determine the statistical significance of the results presented.  They are also used in the calculation of the Fischer's Exact test and Kendall test. 
The statistical analyses for race differences focus on comparing minority (i.e., all populations except White, Non-Hispanic) and the minority sub-population of American Indian or Alaska Native (AIAN) with White Non-Hispanic populations.  For the notification facilities, EPA analyzed some minority and key subpopulations, including minority, AIAN, Black or African American, Native Hawaiian or other Pacific Islander, Hispanic or Latino, or some other race.  These race and ethnicity categories are those identified by the U.S. Census for 2000.  Additional analyses of other racial or ethnic groups for damage cases, hazardous waste facilities, and non-hazardous industrial waste facilities are beyond the scope of this effort.
Underlying Vulnerabilities Traditionally Associated with Minority and Low-Income Communities Pose the Potential to Exacerbate Potential Adverse Impacts of the DSW Rule
As discussed in Chapter 5 of this report, other factors can increase the vulnerability in potentially affected communities to the potential adverse impact of the 2008 DSW final rule. These factors are described under five broad categories: (1) Susceptible Populations, (2) Multiple and Cumulative Effects, (3) Unique Exposure Pathways, (4) Ability to Participate in the Decision-Making Process, and (5) Physical Infrastructure. 
All of these factors have the potential to exacerbate the potential for adverse impacts to minority and low-income communities, but two of these factors are of particular concern to the 2008 DSW final rule: Ability to Participate in the Decision-Making Process, and Multiple and Cumulative Effects

Ability to Participate in the Decision-Making Process
A key element of environmental justice is ensuring that all people have an opportunity for meaningful involvement in decision-making which may impact them.  Certain groups may not have historically participated in decision-making because of economic (e.g., income), social (e.g., language barriers, education levels, distrust of government), and infrastructural reasons (e.g., access to public transportation).  In addition, community groups may face higher barriers to participation than government or private sector entities.  For example, taking advantage of existing public participation mandates may require a significant investment of community resources or volunteer effort, while government and private sector entities may have more resources or paid staff to perform these functions.  A critical concern is whether, and the extent to which, communities have the ability to influence the types and number of regulated activities taking place in their community as well as the requirements, conditions, and parameters by which such activities must operate (e.g., permit conditions).  Under the 2008 DSW final rule, facilities claiming an exclusion must submit an initial and biennial notification to EPA or the state, providing general facility information and describing hazardous secondary material types and activities under the exclusion.  
However, under the 2008 DSW final rule this information is not made directly available to potentially affected communities, and facilities and regulators are not required to solicit or consider community input into the decision-making process as is the case with RCRA permitted facilities.  Thus by removing the RCRA permitting requirement for facilities that manage excluded hazardous secondary materials, the 2008 DSW final rule also removed one of the key provisions for allowing communities to participate in the regulatory process (at least as it concerns the management of the hazardous secondary materials excluded under the rule).  Communities with lower participation levels may experience greater adverse impacts from environmental decision-making because their input has not been considered fully, particularly if competing interests are set forth more effectively.  This effect is most likely to occur in communities that have traditionally been excluded from the decision-making process.
Multiple and Cumulative Effects
Minority, low-income, and indigenous communities that have been affected by multiple pollution sources may be at risk for increased health consequences.  Potential sources of pollution can include, for example, industrial facilities, landfills, transportation-related air emissions, poor housing conditions (e.g., lead-based paint), leaking underground tanks, pesticides, and incompatible land uses.  An analysis of the cumulative effects from multiple stressors can provide a more complete evaluation of a population's health risks from pollutants.  For example, an analysis of discrete stressors and effects on a population might conclude that nearby pollution sources are within regulatory limits; however, an analysis of cumulative effects might determine that a person's collective exposure to a contaminant from multiple sources exceeds a health-based limit.
An examination of the facilities that have notified under the 2008 DSW final rule shows that multiple environmental hazards are a potential concern for communities around these facilities.  All have multiple facilities reporting to EPA, either under RCRA, the Clean Air Act (CAA), or Comprehensive Environmental Response, Compensation and Liability Act, (CERCLA - also known as Superfund) within a three-kilometer radius of the facility.  Twenty-six of the forty facilities had communities with cancer rates greater than the 80th percentile, and twenty-seven showed a greater than the 80th percentile in neurological hazard rates.  Twenty-seven facilities also had no hospital facilities within the three kilometer area.

 Potential Preventative and Mitigative Steps that EPA Could Explore to Address the Potential Adverse Impacts to Minority and Low-Income Communities
The sixth and final step of the DSW environmental justice analysis is to identify potential strategies to prevent non-compliance and releases to the environment and to mitigate potential adverse impacts that have been identified in the analysis.
Regulatory Changes

Regulatory changes to the 2008 DSW final rule were made according to EPA's authority under RCRA to regulate discarded material. As discussed in the preamble to the 2008 DSW final rule, EPA used the concept of discard as the central organizing idea behind the October 2008 revisions to the definition of solid waste. 

 As stated in RCRA section 1004(27), "solid waste" is defined as "... any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material...resulting from industrial, commercial, mining and agricultural activities." In exercising its discretion in the 2008 DSW final rule to define what constitutes "discard" for hazardous secondary materials reclamation in the 2008 DSW final rule, EPA included an explanation of how each provision of the final rule relates to discard (73 FR 64676 - 64679). 

While the concept of discard also is the central organizing principle in this proposed rule since EPA only has authority under RCRA to regulate materials that have been discarded, the Federal Register notice announcing the June 2009 public meeting identified areas or opportunities to revise the 2008 DSW final rule in ways that could increase environmental protection, including in environmental justice communities, while still appropriately defining when a hazardous secondary material being reclaimed is a solid waste and subject to hazardous waste regulation (74 FR 25202). The purpose of today's proposal is to provide notice and the opportunity to comment on potential regulatory revisions to address the potential for adverse impacts to human health and the environment from discarded material, including disproportionate impacts to minority and low income communities.

In particular, the proposed withdrawal of the transfer-based exclusion and its replacement with an alternative Subtitle C standard will address the concerns regarding third-party recyclers, including the impact of longer accumulation times, the lack of preventative measures under the containment standard, the lack of public participation requirements, the lack of RCRA air standards, and concerns regarding certain transportation issues. In addition, the proposed codification of the "contained" standard also addresses the lack of preventative measures and the lack of RCRA air standards under the generator-controlled exclusion. Proposed additional recordkeeping requirements for speculative accumulation and legitimacy would help ensure that hazardous secondary material is being legitimately recycled and not simply discarded through over-accumulation and abandonment, and recordkeeping under the tolling and same-company provisions will help ensure that the hazardous secondary materials meet their intended destinations.
Implementation Measures
EPA acknowledges that reclamation of HSM under the 2008 DSW Rule may not be as effective in ensuring protection of human health and the environment as regulation as a hazardous waste.  In addition to considering regulatory changes to address potential adverse impacts of the 2008 DSW final rule, EPA can take non-regulatory steps to help mitigate the potential adverse impacts.  These steps include closely monitoring the facilities notifying under the 2008 DSW final rule, making information about the DSW facilities available to the public, and working with states and EPA Regions to ensure they have the information they need to ensure compliance with the provisions of the rule, and making available to the public information about the facilities that have notified.  In particular, Tribes, including Inuits, may need additional resources to staff and implement the DSW Rule. EPA has begun this process for the states and territories currently operating under the 2008 DSW final rule, and plans to continue these efforts in order to help prevent potential adverse impacts at the same time that revisions to the rule are under consideration. 
EPA did not assess whether the DSW Rule considers the affects of tracking, monitoring and enforcement across multiple state lines or whether HSW transport will operate smoothly across multiple state programs.   However, offsite transport of DSW-excluded material that qualifies as a DOT hazardous material is generally subject to transportation-related regulation comparable to hazardous waste shipments.  DOT regulation of hazardous material transport is national in scale and therefore similar regulatory controls are likely to be in place throughout interstate transport.  


                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
               Comparison of Regulatory Requirements under 2008 DSW Final Rule to RCRA and Other Federal Regulations
 
1.	Introduction
This appendix presents a comparison of the federal regulations applicable to 1) generators and permitted storage facilities operating under the federal hazardous waste regulations and 2) generators, intermediate facilities, and reclamation facilities operating under the 2008 Definition of Solid Waste (DSW) final rule.  The purpose of the comparison is to determine if the federal regulations applicable to generators and facilities operating under the 2008 DSW final rules are "comparable" to the federal regulations applicable to hazardous waste generators and permitted storage facilities operating under the federal hazardous waste regulations.  For purposes of this analysis, a regulation is "comparable" to another regulation if they both have the same general objectives and apply to the same types of facilities.
Section 2 of this appendix describes the methodology used to develop the comparison, Section 3 summarizes the key findings of the comparison, Section 4 presents the tables used to compare the regulations, and Section 5 presents a summary of the federal regulations included in the comparison.  
2.	Methodology
EPA developed three tables for purposes of comparing the federal regulations:
   * Table 1 compares the federal regulations applicable to generators of hazardous waste and generators of hazardous secondary material under the generator-controlled exclusion.
   * Table 2 compares the federal regulations applicable to generators of hazardous waste and generators of hazardous secondary material under the transfer-based exclusion.
   * Table 3 compares the federal regulations applicable to hazardous waste storage facilities and hazardous secondary material intermediate and reclamation facilities under the transfer-based exclusion.
Each table includes three columns.  Column 1 of the tables presents the hazardous waste regulations and other federal regulations applicable to hazardous waste generators or storage facilities.  Column 2 presents the conditions and requirements of the 2008 DSW final rule and other federal regulations applicable to hazardous secondary material generators and facilities operating under the exclusions.  Column 3 briefly compares these regulations to determine if the federal regulations applicable to generators and facilities operating under the 2008 DSW final rule (Column 2) are comparable to the federal regulations applicable to hazardous waste generators and permitted storage facilities operating under the federal hazardous waste regulations (Column 1).
To prepare the tables, EPA first reviewed the federal hazardous waste regulations and identified those requirements most relevant to the generation, storage, and reclamation of hazardous secondary material (e.g., storage time limits for generators).  EPA then summarized these requirements in Column 1 of the tables and included a heading above each requirement (or group of requirements) to briefly describe it (e.g., "storage time limit," "personnel training").
EPA then reviewed the 2008 DSW final rule to see if they contain any conditions or requirements that generally correspond to the hazardous waste requirements in the table.  EPA summarized the exclusions' requirements and conditions in Column 2 of the table where relevant, to present a side-by-side comparison of the hazardous waste requirements and corresponding DSW conditions and requirements.  In Column 3 of the table, EPA briefly examines the hazardous waste requirements and the DSW conditions and requirements to clarify the extent to which they are comparable.
In addition, EPA reviewed other federal regulations to determine if they contain requirements that have a similar objective as these hazardous waste and the 2008 DSW requirements (e.g., federal regulations that require personnel training and/or emergency response similar to the hazardous waste regulations).  EPA summarized these federal requirements in the tables where appropriate.  Specifically, if a federal requirement applies to generators and/or storage facilities operating under the hazardous waste regulations, it is summarized in Column 1 of the tables, where relevant.  If it applies to generators and/or facilities operating under the 2008 DSW final rule, it is summarized in Column 2 of the tables, where relevant.  In Column 3 of the tables, EPA briefly discusses the extent to which these federal requirements are comparable to the relevant hazardous waste requirements. 
3.	Summary of Key Findings
Following is a summary of the findings of the comparative analysis presented in the tables of Section 4 of this Appendix.  The findings are summarized under the headings used in the comparative tables.  
      3.1	Legitimate Recycling
EPA has set forth criteria for determining legitimate recycling under the hazardous waste regulations and the 2008 DSW final rule.  Refer to Section 5.1 of this appendix for a summary of the legitimacy requirements and policies under the hazardous waste regulations and Sections 5.2.1 and 5.2.2 for the legitimacy requirements and conditions under the 2008 DSW final rule.
 	3.2	Storage Time Limit
The hazardous waste regulations and the 2008 DSW final rule set forth time limits for generators to accumulate hazardous secondary material on-site.  However, the 2008 DSW final rule allows generators to accumulate hazardous secondary material on-site for longer periods of time.  In addition, the 2008 DSW final rule does not include a quantity limit for on-site accumulation, as do the hazardous waste regulations for small quantity generators.  
 	3.3	Containment
The hazardous waste regulations and the 2008 DSW final rule require containment of hazardous secondary material in the unit.  The hazardous waste regulations prescribe design, operating, and other standards for containment (e.g., standards for container integrity, periodic inspections).  Prescriptive requirements could facilitate inspection and enforcement, which could help to prevent releases.  On the other hand,  the 2008 DSW final rule does not include prescriptive requirements -- rather, it provides a general performance standard.  As such, the 2008 DSW final rule allows more flexibility in how hazardous secondary materials can be contained.  This could result in less protective containment than the hazardous waste regulations.  However, some generators and facilities under the exclusions may choose to follow the hazardous waste regulations for their units anyways, particularly those that are otherwise subject to the hazardous waste regulations.
In addition, the GCE allows generators to manage their HSM in land-based units (e.g., surface impoundments, piles) but the exclusion does not prescribe containment standards. The hazardous waste regulations do not allow generators to manage hazardous waste in land-based units, unless they have a permit or interim status, under which they must comply with prescriptive design, operating and other unit-specific standards.

	3.4	Air Emissions
Some generators and facilities under the hazardous waste regulations and the 2008 DSW final rule may be subject to the federal Clean Air Act (CAA) regulatory program for air emissions from stationary sources.  Under the CAA program, the states and EPA issue operating permits to certain "major" stationary sources of hazardous air pollutants (HAPs) under 40 CFR Parts 70 and 71.  A major source is a source that emits more than 10 tons per year (TPY) of any single HAP or more than 25 TPY of HAPs in total.  A number of smaller sources (e.g., "area" sources) also may be required to obtain a permit under the federal program.  In addition, area sources not subject to a Title V permit may still be subject to CAA regulation, depending on the applicability provisions of the particular rule.  The area source would be required to notify EPA (or the delegated state agency) whether it is subject to the regulation, typically 120 days following promulgation of a CAA rule applicable to that source,  
Some generators and facilities under the 2008 DSW final rule may be subject to CAA requirements that control air emissions from process vents, equipment leaks, or storage units in a manner that is comparable to the hazardous waste regulations.  For example, 40 CFR Part 63, Subparts OO, PP and QQ require air emission controls for tanks, containers, and surface impoundments, respectively, at facilities subject to a CAA permit, as specified.  These subparts impose the same types of requirements as the hazardous waste regulations for process vents, equipment leaks and storage units (e.g., design, operating, monitoring standards).
However, there are two important differences between the CAA regulations and hazardous waste regulations.  First, their applicability to the regulated universe differs in some respects.  For example, many of the CAA regulations apply to specified industries.  EPA has issued rules covering over 80 categories of major industrial sources, such as chemical plants, oil refineries, aerospace manufacturers, and steel mills, as well as categories of smaller sources, such as dry cleaners, commercial sterilizers, secondary lead smelters, and chromium electroplating facilities.  The hazardous waste regulations apply to all facilities regardless of industry.  Therefore, some generators and facilities under the 2008 DSW final rule may not be subject to the CAA regulations.  For example, an autobody shop that generates solvent waste and sends it to a reclaimer under the DSW rule that was not be considered a "major" source under CAA would likely not be subject to CAA regulations for air emissions from stationary sources.  Second, some CAA regulations apply to the overall emissions for an entire facility facility, but not necessarily to its individual process vents, leaks and storage units.  This will depend on the particular CAA regulation in question.  For example, at a facility that is considered a "major" source under CAA and also conducts reclamation of solvent under the DSW rule, their CAA permit may apply limits to the overall site emissions, and not to the specific solvent recovery unit.  By contrast, the hazardous waste regulations include requirements that apply specifically to process vents, equipment leaks, and storage units, as specified.  Because of these differences, it is likely that a number of generators and facilities under the 2008 DSW final rule will not be subject to air emission controls comparable to the hazardous waste regulations for process vents, equipment leaks, or storage units.
      3.5	Emergency Preparedness and Response
The hazardous waste regulations require generators and storage facilities to prepare for and respond to emergencies.  The 2008 DSW final rule, on the other hand, does not require emergency preparedness and response.  However, materials managed under the 2008 DSW final rule that are no longer contained in a unit (i.e., released) and not immediately recovered would no longer be excluded.  They would need to be cleaned up and be subject to full Subtitle C regulation if hazardous, including the preparedness and response requirements of the hazardous waste regulations, as applicable.  
In addition, other federal regulations may require emergency preparedness and response at generators and facilities operating under the hazardous waste regulations and the 2008 DSW final rule:
   * CAA Chemical Accident Prevention Provisions.  40 CFR Part 68 requires a stationary source (e.g., a building, plant) that meets applicable criteria to develop and implement a risk management program.  As part of the program, the stationary source must either develop an emergency response program (i.e., for facility personnel to respond) or make arrangements with off-site response organizations.
   * Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)/Emergency Planning and Community Right-to-Know Act (EPCRA) Notification.  40 CFR Parts 302 and 355 require facilities to immediately notify the National Response Center and local/state officials (if applicable) of a release of a hazardous substance or extremely hazardous substance equal to or exceeding its reportable quantity. 
   * Clean Water Act (CWA) Oil Pollution Prevention.  40 CFR Part 112 requires a non-transportation-related facility that meets specified criteria to perform emergency planning and response for oil discharges, including development of a Spill Prevention, Control, and Countermeasure (SPCC) Plan.  The SPCC Plan must address such elements as discharge prevention measures; countermeasures for discharge discovery, response, and cleanup; and personnel responsibilities (e.g., for addressing discharges).  
   * Occupational Safety and Health Act (OSH Act).  The Process Safety Management (PSM) Standards (29 CFR 1910.119) and Hazardous Waste Operations and Emergency Response (HAZWOPER) Standards (29 CFR 1910.120(p)(8) and (q)) require facilities meeting specified criteria either to develop and follow an emergency response program (i.e., for facility personnel to respond) or to prepare an evacuation plan for the entire plant (i.e., for off-site personnel to respond).  In addition, the Hazard Communication Standard (HazCom) (29 CFR 1910.1200) requires a facility to provide information to its employees about any chemical (except hazardous waste) which is a physical or health hazard to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training (e.g., hazards detection, emergency procedures).    
Each of the above regulations requires a level of emergency preparedness and/or response that is at least partially comparable to the hazardous waste regulations.  However, it is likely that these regulations will not provide a level of emergency preparedness and protection that is comparable to the hazardous waste regulations for all generators and facilities under the 2008 DSW final rule.  This is explained further below: 
         *       The Chemical Accident Prevention Provisions and Oil Pollution Prevention regulations (i.e., SPCC Plan requirements) apply to a targeted universe of facilities; therefore, a number of generators and facilities under the 2008 DSW final rule may not be subject to them.  The Chemical Accident Prevention Provisions apply to facilities that that have more than a threshold quantity of a "regulated substance."  The provisions list 140 toxic and flammable substances subject to regulation.  Generators and facilities that do not have any of these 140 chemicals above the quantity thresholds would not be subject to these provisions.  
      The requirement for an SPCC Plan under the Oil Pollution Prevention regulations generally applies to non-transportation-related facilities with aboveground oil storage capacity of more than 1,320 gallons that could reasonably be expected to discharge oil to navigable waters or adjoining shorelines.  Hence, these criteria would not apply to generators and facilities that are not expected to discharge oil to navigable waters or adjoining shorelines, do not generate or store oil-related substances, or meet minimum storage capacity thresholds.
   * The Chemical Accident Prevention Provisions, PSM Standard, and HAZWOPER Standard give facilities the option of either developing an emergency response program or making alternative arrangements (e.g., evacuation plans, arrangements with off-site authorities).  Facilities that opt to make alternative arrangements are not required to address a number of the elements required by the hazardous waste regulations particularly for large quantity generators and storage facilities (e.g., procedures and equipment for containing and cleaning up a release).
   * The definition of "emergency response" under the Chemical Accident Prevention Provisions, PSM Standard, and HAZWOPER Standard applies to releases that threaten safety or health (i.e., fire, explosion, or chemical exposure).  This definition does not necessarily encompass environmental contamination to the same extent as the hazardous waste regulations.  As such, generators and facilities subject to these regulations may not be prepared for, or respond to, a release of a hazardous substance that contaminates the environment, but does not threaten human health (e.g., spills or leaks surface water or to the ground that may also contaminate groundwater, that are not in the vicinity of employees at the facility).  On the other hand, the hazardous waste regulations require emergency preparedness and response for any emergencies affecting human health or the environment.
   * The HAZWOPER Standard for emergency response programs at 29 CFR 1910.120(p)(8) applies only to generators of hazardous waste and permitted or interim-status hazardous waste facilities.  Hazardous waste generators and facilities are required to have an emergency response program or evacuation plan to address emergencies in the area where hazardous waste is stored or disposed of.  As such, generators and facilities under the 2008 DSW final rule would not necessarily be subject to this standard (i.e., unless they otherwise qualify as a hazardous waste generator or facility).  Note, however, that generators and facilities under the 2008 DSW final rule would be subject to the HAZWOPER Standard at 29 CFR 1910.120(q).  This standard requires an emergency response program or evacuation plan if the facility requires an emergency response for a release of a hazardous substance from personnel outside of the immediate area of the release (e.g., designated onsite personnel or offsite response agencies).
 	3.6	Personnel Training
The hazardous waste regulations require large quantity generators and storage facilities to provide recurrent training on emergencies, at a minimum.  Small quantity generators must provide employee familiarization.  The 2008 DSW final rule does not require personnel training or familiarization.  However, some generators and facilities under the 2008 DSW final rule may nonetheless qualify as a hazardous waste generator or storage facility and therefore be subject to the hazardous waste regulations' training requirements.  Portions of the hazardous waste regulations' personnel training may be relevant to handling the excluded materials (e.g., familiarization on chemical hazards, emergency response).  
In addition, other federal regulations require personnel training at generators and facilities under the hazardous waste regulations and the 2008 DSW final rule:
   * CAA Chemical Accident Prevention Provisions.  40 CFR Part 68 sets forth training requirements for stationary sources (e.g., buildings, plants) that meet applicable criteria.  Facilities with a process eligible for Program 1 (e.g., has not had accidental release of a regulated substance within the past five years with off-site consequences as specified) need not provide training.  Facilities with a process subject to Program 2 or 3 (e.g., has had accidental release of a regulated substance from a process within the past five years with off-site consequences as specified) must provide recurring personnel training on operations and emergency procedures. 
   * CWA Oil Pollution Prevention.  40 CFR Part 112 requires a non-transportation-related facility that meets specified criteria to provide personnel training on topics, such as operation and maintenance of facility and equipment to prevent discharges, discharge procedure protocols, and elements of the SPCC Plan.  
   * Hazardous Materials Transportation Act (HMTA) Hazardous Materials Regulations (HMR).  49 CFR Part 172, Subpart H requires a facility that employs "hazmat employees" to provide initial and recurrent training.  The training must cover general awareness/familiarization, function-specific training, safety, security awareness, and in-depth security.  A hazmat employee is a person who is involved in the transportation of Department of Transportation (DOT) hazardous materials as specified (e.g., loading, preparation for transportation, operation of a transportation vehicle).  
   * OSH Act.  The Process Safety Management (PSM) Standard (29 CFR 1910.119) and Hazardous Waste Operations and Emergency Response (HAZWOPER) Standard (29 CFR 1910.120(p) and (q)) require facilities either to train their employees on their emergency response program or, if they have opted to develop an evacuation plan instead of an emergency response program, they must train their employees on evacuations.  In addition, the Hazard Communication (HazCom) Standard (29 CFR 1910.1200) requires familiarization and training on emergency recognition, hazards, and protective measures.
Each of the above regulations requires personnel training that is at least partially comparable to the hazardous waste regulations.  However, it is likely that a number of generators and facilities under the 2008 DSW final rule will not be subject to personnel training requirements that are fully comparable to the hazardous waste training requirements, as explained below:  
   * The Chemical Accident Prevention Provisions and Oil Pollution Prevention regulations apply to a targeted universe of facilities or activities, and hence, a number of generators and facilities under the 2008 DSW final rule may not be subject to them.  The Chemical Accident Prevention Provisions apply to facilities that that have more than a threshold quantity of a "regulated substance."   The provisions list 140 toxic and flammable substances subject to regulation.  Generators and facilities that do not have any of these 140 chemicals above the quantity thresholds would not be subject to these provisions. The HMR requires training of "hazmat employees" (i.e., a person who is involved in the transportation of DOT hazardous materials as specified).  In a number of cases, HMR training may be at least partially comparable to training under the hazardous waste regulations, particularly for small quantity generators.  However, the HMR training requirements are not as prescriptive as the hazardous waste regulations for large quantity generators and storage facilities; therefore, it is uncertain that HMR training would address comparable topics as the hazardous waste regulations for large quantity generators and storage facilities.  In addition, it is important to note that, if a facility employs personnel that are not "hazmat" employees, such employees would not be required to receive HMR training.  For example, some facilities use outside contractors to prepare and ship their hazardous secondary material off-site.  
   * The PSM and HAZWOPER Standards require facilities to train their employees on emergencies.  Facilities that have prepared an emergency response program must train employees on how to implement it.  This would generally be comparable to the hazardous waste training required of generators and storage facilities under the hazardous waste regulations.  However, facilities that have opted to develop an evacuation plan instead of an emergency response program are required to train employees on evacuations only.  Such training would not cover a number of elements required by the hazardous waste regulations particularly for large quantity generators and storage facilities (e.g., use of emergency equipment, how to respond to fires and groundwater contamination).
   * The HazCom Standard requires facilities to familiarize and train their employees on emergency recognition, hazards, and protective measures.  However, HazCom has limited training requirements with regard to emergency procedures.  The employer must provide employees with training on recognizing hazardous incidents and how to evacuate during an emergency.  In this regard, HazCom training may be comparable to training under the hazardous waste regulations particularly for small quantity generators.  However, the hazardous waste regulations require large quantity generators and storage facilities to provide more extensive training on emergencies (e.g., use of emergency equipment, how to respond to fires and groundwater contamination).  These topics may be outside the scope of a facility's HazCom training.  
 	3.7	Reporting and Recordkeeping
The hazardous waste regulations require generators and storage facilities to notify EPA to receive an EPA identification number.  In addition, large quantity generators and storage facilities must submit a Biennial Report describing their hazardous wastes and activities.  The 2008 DSW final rule requires each generator and facility to submit an initial and biennial notification describing its hazardous secondary materials and activities under the exclusion.  Therefore, the hazardous waste regulations and the 2008 DSW final rule include comparable initial and biennial notification requirements.
In addition, the hazardous waste regulations and DSW transfer-based exclusion require generators and facilities to maintain specified information as necessary to demonstrate compliance.
 	3.8	Off-site Transportation
The hazardous waste regulations require the manifesting of all off-site shipments (i.e., chain-of-custody tracking of shipments) and compliance with applicable DOT regulations for packing, labeling, marking, and placarding of shipments.  The DSW generator-controlled exclusion does not include requirements for off-site shipments (e.g., shipments from the generating site to a reclamation facility owned by the same generator).  The DSW transfer-based exclusion includes requirements for packing, recordkeeping of shipments from the generator to the reclaimer, and transmittal of confirmation of receipt from the facility to the generator.
In addition, the DOT regulations set forth requirements for DOT hazardous materials in regard to the use of shipping papers, packing, labeling, marking, placarding, parking, and driving, among other things.  The DOT regulations apply to all hazardous wastes, as well as other materials that qualify as a DOT "hazardous material."  A material qualifies as a DOT hazardous material if it 1) is listed in the Table in 49 CFR 172.101 (e.g., compounds), 2) is listed in the Appendices to the Table in 172.101, or 3) meets one or more of the hazard classifications (e.g., flammable liquid).  
Following is a further discussion of the DOT requirements regarding each exclusion under the 2008 DSW final rule:
   * Generator-Controlled Exclusion.  Hazardous secondary materials under the generator-controlled exclusion that qualify as a DOT hazardous material would be subject to comparable transportation requirements as hazardous waste in regard to packing, labeling, marking, placarding, parking and driving.  Specifically, the DOT regulations apply similar to hazardous waste and other types of DOT hazardous materials, such as excluded material, in regard to these activities.  However, the excluded material would not be subject to comparable requirements for off-site tracking.  Under the DOT regulations, a shipping paper must accompany a shipment of DOT hazardous material.  The shipper and transporter must keep a copy, but the destination facility need not keep a copy or transmit a confirmation of receipt to the generator.  Therefore, the generator would not know whether its excluded material reached the intended destination intact, as is required by the hazardous waste manifest regulations.
   * Transfer-Based Exclusion.  Hazardous secondary materials under the transfer-based exclusion that qualifies as a DOT hazardous material would be subject to comparable transportation requirements as hazardous waste in regard to packing, labeling, marking, placarding, parking, driving, and tracking.  Note that the transfer-based exclusion requires recordkeeping of all off-site shipments by the generator and reclamation facility and a confirmation of receipt must be sent from the reclaimer to the generator.  These recordkeeping and transmittal requirements are comparable to the hazardous waste manifest requirements for chain-of-custody tracking and confirmation of receipt. 
In addition, it is important to note that excluded hazardous secondary materials under the generator-controlled exclusion or transfer-based exclusion that do not qualify as a DOT hazardous material would not be subject to comparable transportation requirements as hazardous waste in regard to packing, labeling, marking, placarding, parking or driving (or tracking, for shipments under the generator-controlled exclusion).  That is, an excluded material would not be a DOT hazardous material subject to regulation if it is not listed in the Table in 49 CFR 172.101, is not listed in (or otherwise does not exceed its reportable quantity in) the Appendices to the table, and does not meet any hazard classification.  
Further, the Reportable Quantities (RQs) contained in 49 CFR part 172 that trigger the DOT hazardous materials requirements are potentially different for hazardous waste and non-waste.  A material-specific RQ is used to determine whether a hazardous waste or other hazardous substances must comply with the DOT requirements (i.e., if the hazardous substance exceeds its RQ, it must comply).  In some cases the RQ for a hazardous waste would be lower because it is a hazardous waste than the RQ if the material were not considered a hazardous.  In these cases, a greater quantity of material would be required to exceed the RQ if the material were a non-waste.  This could result in some excluded materials not triggering the RQ requirements (at the lower level) and therefore not needing to comply with RQ-related DOT packaging and other regulations.
	3.9	Exports
The hazardous waste regulations require an exporter of hazardous waste to notify EPA about their intention to export waste and receive EPA consent prior to export.  They must also submit an annual report summarizing export activities, including the amount and types of waste exported and the facilities receiving the waste.  In addition, the facility must  keep records describing the waste exported.  
Under the generator-controlled exclusion, exports are not allowed, and the HSM must be reclaimed within the U.S.  
The transfer-based exclusion allows generators to export excluded material and requires them to notify EPA about their intention to export waste and receive EPA consent prior to export.  They must also submit an annual report summarizing export activities, including the amount and types of waste exported and the facilities receiving the waste.  In addition, the facility must  keep records describing the waste exported.  .  Therefore, the hazardous waste regulations and transfer-based exclusion include generally comparable export requirements.
 	3.10	Regulation of Residues
The hazardous waste regulations state that any material derived from a listed hazardous waste is also a listed hazardous waste.  This is called the "derived-from" rule.  It means, for example, that residues from the reclamation of a listed hazardous waste are listed hazardous waste.  
The generator-controlled exclusion does not address how residues from the reclamation process should be managed under the regulations and is therefore not comparable to the hazardous waste regulations in this regard.
The transfer-based exclusion states that residuals must be managed as hazardous waste if they exhibit a characteristic or are listed.  Waste is characteristic if it exhibits one of the four characteristics defined in 40 CFR Part 261 Subpart C - ignitability (D001), corrosivity (D002), reactivity (D003), and toxicity (D004 - D043).  Listed wastes are specific wastes that EPA determined are hazardous. These wastes are incorporated into lists published by the Agency. These lists are organized into three categories: 
                  1.         The F-list (non-specific source wastes). This list identifies wastes from common manufacturing and industrial processes, such as solvents that have been used in cleaning or degreasing operations, and can be found in the regulations at 40 CFR §261.31.  
                  2.         The K-list (source-specific wastes). This list includes certain wastes from specific industries, such as petroleum refining or pesticide manufacturing, andcan be found in the regulations at 40 CFR §261.32. 
                  3.         The P-list and the U-list (discarded commercial chemical products). These lists include specific commercial chemical products in an unused form. Some pesticides and some pharmaceutical products become hazardous waste when discarded. Wastes included on the P- and U-lists can be found in the regulations at 40 CFR §261.33.
Hence, the derived-from' rule does not apply to the residuals from the reclamation of hazardous secondary materials under the exclusion.  This means that residuals are a new point of generation for the purposes of applying the hazardous waste determination requirements of 40 CFR 262.11.  If the residuals exhibit a hazardous characteristic, or they themselves are a listed hazardous waste, they would be considered hazardous wastes (unless the material is excluded from the definition of hazardous waste under 40 CFR 261.4(b) or a waste not subject to hazardous waste regulation under 40 CFR 261.5, 261.6, 261.7, 261.8, or 261.9;) and would have to be managed accordingly. If they did not exhibit a hazardous characteristic, or were not themselves a listed hazardous waste, they would need to be managed in accordance with applicable state or federal requirements for non-hazardous wastes.
These provisions on residuals under the transfer-based exclusion are intended to clarify that residuals from reclamation are subject to waste characterization requirements and cannot simply be discarded as non-hazardous waste.  However, designating the residuals as a new point of generation raises the possibility that a residual containing a listed waste might not be determined to be a hazardous waste.  As a result, such wastes could exit Subtitle C regulation, contrary to the intent of the derived-from rule.
      3.11	Security
The hazardous waste regulations require storage facilities to prevent the unknowing and unauthorized entry of persons and livestock onto the active portion of the facility.  The transfer-based exclusion does not address security at facilities. 
      3.12	Financial Assurance
The hazardous waste regulations and transfer-based exclusion require facilities to have and maintain a cost estimate and obtain financial assurance for closure.  In addition, facilities must have and maintain liability coverage for sudden accidental occurrences and, if applicable, non-sudden accidental occurrences.  A variety of financial instruments are identified for these purposes (e.g., trust fund, surety bond).  Therefore, the hazardous waste regulations and transfer-based exclusion have comparable financial assurance requirements for closure and accidental occurrences.
      3.13	Requirement for a Permit
The hazardous waste regulations require storage facilities, including facilities that store hazardous waste prior to reclamation, to obtain a hazardous waste permit that includes requirements for facility and unit design, construction, operation, closure, and post-closure care, as applicable.  In addition, any facility that manages hazardous waste in a land-based unit is subject to the requirement for a permit.  By contrast, the generator controlled exclusion allows generators to manage HSM in land-based units without a permit.  
The transfer-based exclusion requires facilities either to obtain a RCRA permit and manage hazardous secondary materials in the permitted units or comply with its conditions and pass an audit by the generators.  Generators must make reasonable efforts to ensure that their hazardous secondary materials will be safely and legitimately managed and reclaimed.
The RCRA permit and transfer-based exclusion share some key similarities, but there also are some key differences.  Examples include the following:  
   * Similarities.  A hazardous waste permit and transfer-based exclusion impose requirements on facilities to ensure protective operation (e.g., permit requirements, exclusion conditions).  In addition, a hazardous waste permit and the transfer-based exclusion rely on similar processes for compliance assurance (e.g., state inspections and reviews of facility submittals).  Whereas a state may inspect storage facilities more often than facilities under the exclusion, the exclusion requires generator audits to supplement the state's compliance oversight and assure compliance.  Finally, a hazardous waste permit and the transfer-based exclusion both require financial assurance for closure and sudden and non-sudden occurrences.
   * Differences.  A hazardous waste permit can be revoked or denied to prevent facility operation.  Under the transfer-based exclusion, a generator audit does not result in denial of the ability to operate.  However, a generator must not send its materials to a facility that fails its audit, essentially denying the facility the ability to manage the materials under the exclusion.  In addition, states have a lead role in administering the hazardous waste permitting and enforcement process.  Under the transfer-based exclusion, states and generators both have important roles to evaluate facility compliance.  
      3.14	Public Involvement
The hazardous waste regulations require storage facilities, including facilities that store hazardous waste prior to reclamation, to undergo the hazardous waste permitting process, which includes public involvement (e.g., public notice and comment on draft permits).  
Under the generator controlled exclusion, a generator that manages HSM in land-based units would not be subject to the permitting process, which differs from the hazardous waste regulations.  Under the transfer-based exclusion, a permit is not needed for storage of excluded materials.  As a result, such facilities could operate and store the materials under the exclusion without public involvement.   
	3.15	Enforcement
The HWRs include prescriptive generator and facility standards (e.g., labeling, container integrity), which facilitate inspections and enforcement actions.  The GCE and TBE do not include prescriptive requirements.  Therefore, it may be more difficult for regulator and facility personnel to inspect for compliance under these exclusions.

4.	Comparative Tables
Following are tables that compare federal regulations applicable to 1) generators and permitted storage facilities operating under the federal hazardous waste regulations and 2) generators, intermediate facilities, and reclamation facilities operating under the 2008 DSW final rule.  The purpose of the comparison is to determine if the federal regulations applicable to generators and facilities operating under the 2008 DSW final rule are comparable to the federal regulations applicable to hazardous waste generators and permitted storage facilities operating under the federal hazardous waste regulations. 
Three tables are presented:
   * Table 1 compares the federal regulations applicable to generators of hazardous waste and generators of hazardous secondary material under the generator-controlled exclusion.
   * Table 2 compares the federal regulations applicable to generators of hazardous waste and generators of hazardous secondary material under the transfer-based exclusion.
   * Table 3 compares the federal regulations applicable to hazardous waste storage facilities and hazardous secondary material intermediate and reclamation facilities under the transfer-based exclusion.


Table A-1.  Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 
Hazardous Secondary Materials under DSW Generator-Controlled Exclusion 
Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators
DSW Generator-Controlled Exclusion (GCE) and Other Federal Regulations:  Hazardous Secondary Material Generators
    Notes (e.g., issues regarding applicability, comments on comparability)
                       Large Quantity Generators (LQGs)
                       Small Quantity Generators (SQGs)
                                       
                                       
1. Legitimate Recycling
HWRs: EPA has issued policy statements to clarify legitimate recycling (e.g., in Federal Register notices).  In addition, respondents in an enforcement action who raise a claim that a certain material is not a solid waste must demonstrate that there is a known market or disposition for the material and that they meet the terms of the exclusion or exemption, as specified. (40 CFR 261.2(f))  
GCE: Reclamation of the material must be legitimate, as specified at §260.43 (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)(v)).  40 CFR 260.43 spells out the legitimacy criteria that must be met. 
EPA has set forth criteria for determining legitimate recycling under the HWRs and DSW rule.  The DSW rule codifies these criteria for the exclusions, which provides greater clarity and enforceability.  
2. Storage Time Limit
HWRs:  LQG cannot accumulate waste onsite for more than 90 days without a permit or being in compliance with the interim status standards.  (40 CFR 262.34)
HWRs:  SQG cannot accumulate waste onsite for more than 180 or 270 days without a permit or being in compliance with the interim status standards and must not exceed 6,000 kg onsite. (40 CFR 262.34)
GCE: Generator must recycle (or ship for recycling) 75% of the hazardous secondary material within 1 calendar year and meet other criteria as specified. (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)(iii))
The GCE allows generators to accumulate hazardous secondary material onsite for longer periods of time than the HWRs.  In addition, the GCE does not include a quantity limit for onsite accumulation, as does the HWRs for SQGs.

3. Containment
HWRs: Generator must meet design, operating, inspection, and closure standards for containers, tanks,  containment buildings, and drip pads.  Generators cannot accumulate HSM in land-based units without a permit or interim status. (40 CFR 262.34 and Part 264, 265, and 270)
GCE: Hazardous secondary material must be contained.  Generators can manage HSM in land-based units (e.g., surface impoundments piles). (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)(i))
The HWRs and GCE require containment of hazardous secondary material in the unit.  The HWRs prescribe design, operating, and other standards for containment, whereas the GCE does not.  As such, the GCE allows more flexibility in how hazardous secondary materials can be contained.  This could result in more or less effective containment than the HWRs, depending on the containment methods used by the generator under the exclusion.  In addition, prescriptive requirements may be more conducive to inspection and enforcement, which could help to prevent a release.

 The GCE also allows generators to manage HSM in land-based units, unlike the HWRs, which require a permit or interim status that prescribe facility and unit-specific standards.
4. Air Emissions
HWRs: LQGs must comply with standards to control air emissions.  These include standards for the design, operation, monitoring, testing, and recordkeeping of:
   *    Process vents associated with specified treatment technologies (40 CFR Parts 264 and 265, Subpart AA);
   *    Equipment leaks (40 CFR Parts 264 and 265, Subpart BB); and
   *    Emissions from tanks, surface impoundments, and containers (40 CFR Parts 264 and 265, Subpart CC).
HWRs: No air emission standards for SQGs.
GCE: Hazardous secondary material must be contained.  (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)(i))
The HWRs and GCE require containment of hazardous secondary material in the unit.  The HWRs prescribe design, operating, and other standards for control of air emissions, whereas the GCE does not.  As such, the GCE allows more flexibility in how hazardous secondary materials can be contained.  This could result in more or less effective containment than the HWRs, depending on the containment methods used by the generator under the exclusion.  In addition, see "Other Federal Regulations" below for additional discussion.
Other Federal Regulations:
CAA (Air Emission Standards):  The states and EPA issue operating permits to certain "major" stationary sources of hazardous air pollutants (HAPs) under 40 CFR Parts 70 and 71.  A major source is a source that emits more than 10 tons per year (TPY) of any single HAP or more than 25 TPY of HAPs in total.  A limited number of smaller sources (e.g., "area" sources) also may be required to obtain a permit under the federal program.  

In addition, EPA has established technical standards for the control of air emissions from stationary sources, which permit writers include in a permit to control emissions as appropriate.   Some of these standards could address air emissions from process vents, equipment leaks, tanks and other units.  Potentially applicable standards can be found in various parts of 40 CFR, such as: 
   *    Part 60: "Standards of Performance for New Stationary Sources (NSPS)."  This part regulates emissions from stationary sources of criteria pollutants for which EPA has established National Ambient Air Quality Standards (NAAQS); and
   *    Part 63: "National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Categories." This part regulates emissions of hazardous air pollutants (HAPs) from source categories.  

These parts set forth design, operating, monitoring, testing, and/or recordkeeping standards, as specified.
The federal CAA permitting and technical standards could potentially address air emissions from process vents, equipment leaks, and/or storage units at some of the facilities operating under the GCE.  These CAA standards include comparable types of controls as the HWRs, e.g., design, operating, and monitoring.  However, the CAA permitting and technical standards under the federal program would not apply to facilities that:
   * Have emissions below specified thresholds (e.g., emit less than 10 TPY of any single HAP or 25 TPY of HAPs in total); or
   * Do not meet other applicability criteria (e.g., are not in a regulated industry).

5.  Emergency Preparedness and Response
HWRs: LQGs must:
   *    Have emergency equipment (e.g., alarms, fire protection, spill containment);
   *    Designate an emergency coordinator; and
   *    Have an emergency plan to address any release or other emergency, and emergency procedures for:
   -     Notifying onsite and offsite personnel;
   -     Controlling the emergency (e.g., identifying, assessing and containing the release); and
   -     Taking other actions as specified (e.g., ensuring proper management of recovered material). (40 CFR 262.34 and Part 265, Subparts C and D)
HWRs: SQGs must:
   *    Have emergency equipment (e.g., alarms, fire protection, spill containment);
   *    Designate an emergency coordinator; and
   *    Respond to any emergency (e.g., extinguish fires, contain and clean up releases, notify offsite emergency personnel as applicable).  (40 CFR 262.34 and Part 265, Subpart C)
   
GCE:  No comparable provisions
The GCE does not include provisions on emergency preparedness and response.  However, materials under the GCE that are no longer contained in a unit (i.e., released) and not immediately recovered would no longer be excluded.  They would need to be cleaned up and be subject to Subtitle C regulation if hazardous, including the HWR preparedness and response requirements, as applicable.  

In addition, see "Other Federal Regulations" below for additional discussion.
Other Federal Regulations:
CAA (Chemical Accident Prevention): A facility that is a stationary source that has more than a threshold quantity of a "regulated substance" in a process (e.g., storage) must develop and implement a risk management program, including a Risk Management Plan (RMP).  Facilities with a process subject to Program 2 or 3 (e.g., a process that has had an accidental release within the past five years with offsite consequences as specified) must prepare an emergency response program that includes an emergency plan (e.g., procedures for notifying offsite parties, providing medical treatment, responding to an accidental release), emergency response equipment, and personnel training. 

However, a facility whose employees will not respond to the release need not prepare an emergency response program if it makes alternative arrangements.  It must either be included in its community emergency response plan or coordinate response actions with the local fire department.  There also must be a mechanism for notifying emergency responders. 

Note that the Chemical Accident Prevention provisions list 140 toxic and flammable regulated substances subject to regulation, with threshold quantities ranging from 500 to 20,000 pounds.  (40 CFR Part 68.)



The Chemical Accident Prevention provisions for an emergency response program set forth generally comparable elements as the HWRs for SQG and LQG preparedness and prevention (e.g., an emergency plan, emergency equipment, and coordination with offsite responders).  

The provisions for alternative arrangements are not comparable to the HWRs for LQGs or SQGs.  They do not require emergency equipment, an emergency plan, or basic efforts by onsite personnel to control the emergency (e.g., extinguishing a fire).

Note that a generator would be subject to the Chemical Accident Prevention provisions if it has more than a threshold quantity of a Part 68-regulated substance in a process (e.g., storage).  Only a subset of these facilities (e.g., those subject to Program 2 or 3) would be required to have an emergency response or evacuation plan.
CERCLA/EPCRA (Emergency Notification):  
   *    A generator must immediately notify the National Response Center (NRC) of a release of a CERCLA hazardous substance (including hazardous waste) equal to or exceeding its reportable quantity in any 24-hour period.  (40 CFR Part 302)
   *    A generator must immediately notify the NRC and local/state officials of a release of a reportable quantity of any extremely hazardous substance (EHS) or CERCLA hazardous substance (including hazardous waste).  (40 CFR Part 355)

These CERCLA/EPCRA provisions require notification to offsite personnel as do the HWRs.  These notification provisions could effectively address some emergencies (e.g., if local responders respond immediately and control the emergency, such as local fire or hazmat personnel).

However, they do not require emergency equipment, onsite coordination, or basic efforts to control an emergency (e.g., containing and cleaning up the release).  Therefore, these provisions are not comparable to the HWRs for preparedness and response.
CWA (Oil Pollution Prevention):  A generator that is a "non-transportation-related facility" that could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities and that meets other applicability criteria must perform emergency planning and response for oil discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan.  The SPCC Plan must address such elements as discharge prevention measures; countermeasures for discharge discovery, response, and cleanup; personnel responsibilities (e.g., for addressing discharges); and plans and procedures for responding to discharges.  (40 CFR Part 112) 


The SPCC requirements set forth generally comparable elements as the HWRs for emergency preparedness and response for oil discharges.  This includes emergency equipment, personnel responsibilities for addressing discharges, training, and emergency plans/procedures (e.g., countermeasures for discharge response and cleanup, notification to offsite agencies/personnel).
  
A generator must prepare an SPCC Plan if it meets specified applicability criteria (e.g., a non-transportation-related facility with aboveground oil storage capacity of more than 1,320 gallons that could reasonably be expected to discharge petroleum-based solvents to navigable waters or adjoining shorelines in quantities that may be harmful).   These criteria would not apply to certain types of generators (e.g., sites that are not near navigable waters, do not generate/store oil-related substances, or meet minimum storage capacity thresholds). 
OSH Act (Process Safety Management): A facility that has a process (e.g., use, storage, handling) which involves a "highly hazardous chemical" at or above the specified quantity must have an evacuation plan for the entire plant addressing evacuation procedures, alarm systems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed by facility personnel who remain to operate critical equipment before evacuation. The facility also would need to handle small releases.  Highly hazardous chemicals include toxic and reactive highly hazardous chemicals which present a potential for a catastrophic event at or above the threshold quantity. (29 CFR 1910.38 and 1910.119) 
The Process Safety Management provisions require generally comparable elements as the HWRs for SQG preparedness and response.  The evacuation plan must include onsite response coordination, offsite notification, alarms, and handling of small releases.  However, the PSM provisions are not generally comparable to the HWR requirements for LQG preparedness and response.  The PSM provisions do not require a plan for the facility to control/contain the emergency.

A facility must comply with these regulations if it meets the specified applicability criteria (e.g., if it accumulates a highly hazardous chemical onsite above its threshold quantity).  Section 1910.119, Appendix A, lists approximately 140 toxic and reactive highly hazardous chemicals subject to regulation.

OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)):  Generators of hazardous waste must have an emergency response program if it is required by EPA or state to have its employees engage in emergency response or if it directs its employees to engage in emergency response.  Generators must prepare emergency response program that includes an emergency response plan (e.g., personnel roles, coordination with outside parties, emergency alerting and response, emergency equipment), training for emergency response employees, and procedures for handling emergency incidents (e.g., alarms).  (29 CFR 1910.120(p)(8))

If the generator will evacuate employees and will not allow them to assist in the response, it need not prepare a response program.  Rather, it must prepare an evacuation plan for the entire plant.  The plan must address evacuation procedures, alarm systems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed by facility personnel who remain to operate critical equipment before evacuation.  The generator also would need to have procedures for handling small releases.  (29 CFR 1910.38 and 1910.120(p)(8))
29 CFR 1910.120(p)(8) does not apply to sites that are not hazardous waste generators or TSDFs.
Facilities that do not qualify as a hazardous waste generator would not be subject to 29 CFR 1910.120(p)(8).  However, some generators under the GCE may nonetheless qualify as an LQG or SQG based on the quantity of hazardous waste generated and be subject to 29 CFR 1910.120(p)(8).  Portions of the emergency response program under 29 CFR 1910.120(p)(8) could apply to excluded materials at such a site (e.g., availability of emergency response equipment, such as absorbent, if needed).  

Note that the emergency response requirements under 1910.120(p)(8) are comparable to the requirements at 1910.120(q), which are presented below.    
OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)):  A facility is required to establish an emergency response program if it has employees who are responsible for emergency response operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous waste) without regard to the location of the hazard (e.g., anywhere at the facility), such as designated response employees.  The program must include an emergency response plan (e.g., personnel roles, emergency equipment, and coordination with outside parties, emergency alerting and response), training for emergency response employees, and procedures for handling emergency incidents. (29 CFR 1910.120(q))

If the facility will evacuate employees and will not allow employees to assist in response, it need not prepare an emergency response plan.  It must prepare an evacuation plan for the entire plant.  The plan must address evacuation procedures, alarm systems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed by facility personnel who remain to operate critical equipment before evacuation.  (29 CFR 1910.38 and 1910.120(q))
The HAZWOPER regulations require generally comparable elements as the HWRs for LQG and SQG preparedness and response.  This includes, for example, an emergency response plan, emergency equipment, and onsite coordination of emergency responses. 

In addition, the evacuation plan is generally comparable to the HWR requirements for SQG preparedness and response.  The evacuation plan must include onsite response coordination, offsite notification, and alarms.  However, the evacuation plan is not comparable to the HWR requirements for LQG preparedness and response.  The plan does not include sufficient procedures for the facility to address (e.g., control) emergency.

Note that 29 CFR 1910.120(q) would not apply to generators under the GCE unless they have onsite response personnel, as specified.  
OSH Act (Hazard Communication): Facilities must provide information to their employees about any chemical (except hazardous waste) which is a physical or health hazard to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training (e.g., hazards detection, emergency procedures).  Hazardous wastes are exempt from these provisions.  (29 CFR 1910.1200).


A generator under the GCE would be subject to the Hazard Communication Standard (HazCom) for any excluded material and other chemicals that pose a physical or health hazard.  (A generator of hazardous waste would not be subject to 1910.1200 for its hazardous waste, but for non-waste chemicals.)

However, the HazCom provisions do not require emergency equipment, coordination with offsite personnel, or basic actions to control an emergency.  Rather, they require information sharing and training.  As such, these provisions are not comparable to the HWR requirement for LQG or SQG preparedness and response.
6. Personnel Training
HWRs: LQGs must provide personnel training and SQGs must provide familiarization on emergency response and job duties.  At a minimum, this must address emergency procedures.  LQGs must provide recurrent training.  (40 CFR 262.34 and 265.16)
GCE: No comparable provisions.
The GCE does not include provisions on personnel training.  However, some generators under the exclusion may nonetheless qualify as a LQG or SQG based on the quantity of hazardous waste they generate during the month and therefore be subject to the HWR.  Portions of the HWR personnel training may be relevant to handling the excluded materials (e.g., familiarization on chemical hazards).  In addition, see "Other Federal Regulations" below for additional discussion.
Other Federal Regulations:
CAA (Chemical Accident Prevention): A facility that is a stationary source that has more than a threshold quantity of a "regulated substance" in a process (e.g., storage) must develop and implement a risk management program, including a Risk Management Plan (RMP).  

Facilities with a process eligible for Program 1 (e.g., has not had accidental release of a regulated substance within the past five years with offsite consequences as specified) are not required to provide training.  Generators with a process subject to Program 2 or 3 (e.g., has had accidental release of a regulated substance from a process within the past five years with offsite consequences as specified) must provide recurring personnel training on operations and emergency procedures. (40 CFR Part 68)

The Chemical Accident Prevention provisions require facilities in Program 2 and 3 to provide recurring personnel training on job operations and emergency procedures.  These topics are generally comparable to those required by the HWRs for LQG and SQG training.  

A generator would be subject to the Chemical Accident Prevention provisions if it has more than a threshold quantity of a Part 68-regulated substance in a process (e.g., storage).  Note that only a subset of these facilities would need to provide training (i.e., facilities in Program 1 are exempt from training requirements).  Note that Part 68 lists 140 toxic and flammable regulated substances, with threshold quantities ranging from 500 to 20,000 pounds.
CWA (Oil Pollution Prevention):  A generator that is a "non-transportation-related facility" that could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities and that meets other applicability criteria must perform emergency planning and response for oil discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan.  The Plan must provide for personnel training on topics such as operation and maintenance of facility and equipment to prevent discharges, discharge procedure protocols, and elements of the Plan. (40 CFR Part 112) 
A generator's SPCC Plan would address comparable topics as the HWRs for ongoing personnel training for oil. This includes operation and maintenance of the facility and equipment, discharge procedures, and how to carry out the SPCC Plan.  

A generator must prepare an SPCC Plan if it meets the specified applicability criteria (e.g., a non-transportation-related facility with aboveground oil storage capacity of more than 1,320 gallons that could reasonably be expected to discharge petroleum-based solvents to navigable waters or adjoining shorelines in quantities that may be harmful).
HMTA (Hazardous Materials Transportation): A generator would be subject to regulation under the HMTA (including the personnel training requirements as applicable) if it transported, or offered for transportation, a DOT hazardous material, i.e., a material that 1) is listed in the Table in 49 CFR 172.101 (e.g., compounds), 2) is listed in the Appendices to the Table in 172.101, or 3) meets one or more of the hazard classifications (e.g., flammable liquid).  
Part 172 provides that all RCRA hazardous wastes are DOT hazardous materials, as specified.  A hazardous secondary material excluded from the definition of solid waste is neither a solid nor hazardous waste; therefore, it would not qualify as a DOT hazardous material on the basis of being a hazardous waste.  Rather, an excluded material would qualify as a DOT hazardous material if it is otherwise listed in Part 172 (e.g., as a compound or element) or meets a hazard class.  It is possible that some excluded materials will not qualify as a DOT hazardous material.  This includes material that is not listed and does not meet any hazard class.

A generator that employs "hazmat employees" must provide initial and recurrent training.  A hazmat employee is a person who is involved in the transportation of DOT hazardous materials as specified (e.g., loading, preparation for transportation, operation of a transportation vehicle).  The training must cover general awareness/familiarization, function-specific training, safety, security awareness, and in-depth security.  In particular, the safety training must include emergency response information (i.e., information that can be used in the mitigation of an incident involving hazardous materials, such as health hazards, risks of fire/explosions, methods for handling fires/spills). (49 CFR 172, Subpart H)  
Generators under the GCE that employ hazmat employees must train them on a recurrent basis as required by 49 CFR Part 172, Subpart H.  The training must address function-specific, safety and emergency response topics, among other things.  These topics are generally comparable to the topics required by the HWRs for LQG and SQG training as they pertain to transportation-related activities.

Generators whose employees are not involved in transportation activities (e.g., because they do not make offsite shipments, contractors are used to prepare/transport the material, or the material is not DOT hazardous material) would not qualify as hazmat employees and not receive such training.
OSH Act (Process Safety Management): A generator that has a process (e.g., use, storage, handling) which involves a "highly hazardous chemical" at or above specified quantity must provide initial and refresher training of personnel involved in operating a process (e.g., job-related operating procedures, health hazards, emergency operations, evacuations).  (29 CFR 1910.119)
The Process Safety Management provisions require initial and refresher training on topics related to job-related operations and emergencies.  These topics are generally comparable to the topics required by the HWRs for LQG and SQG training.

A generator must comply with the Process Safety Management provisions if it meets the specified applicability criteria (e.g., a generator that accumulates a highly hazardous chemical onsite above its threshold quantity).
OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)):  Generators must have an emergency response program if it is required by EPA or state to have its employees engage in emergency response or if it directs its employees to engage in emergency response.  The program must include training on emergency response (e.g., elements of the response plan, standard operating procedures, and procedures for handling emergency incidents).  These provisions apply to hazardous waste generators and TSDFs only.  (29 CFR 1910.120(p)(8))
29 CFR 1910.120(p)(8) does not apply to sites that are not hazardous waste generators or TSDFs.
Under the GCE, generators that do not otherwise qualify as a hazardous waste generator would not be subject to 29 CFR 1910.120(p)(8).  29 CFR 1910.120(p)(8) applies only to hazardous waste generators and TSDFs. 

On the other hand, generators under the exclusion that continue to be LQGs or SQGs under the HWRs would be subject to 29 CFR 1910.120(p)(8).  Some of the training topics under the 29 CFR 1910.120(p)(8) could be relevant to the excluded material.  These provisions require training on operating and emergency procedures.  These topics are generally comparable to the topics required by the HWRs for SQG training.  However, these provisions do not require recurrent training, as do the HWRs for LQG training.  Therefore, they are not comparable to the HWRs for LQG training.
OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)):  A facility is required to establish an emergency response program if it has employees who are responsible for emergency response operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous waste) without regard to the location of the hazard (e.g., anywhere at the facility).  The facility's program must provide initial and recurrent training as relevant to personnel responsibilities (e.g., first responder, on scene incident commander).  This includes, for example, hazard detection, responsibilities for emergency response, and safety. (29 CFR 1910.120(q))



The HAZWOPER regulations require initial and recurrent training on hazard detection, emergency response, and safety, among other things.  These topics are comparable to the topics required by the HWRs for LQG and SQG training, as it relates specifically to emergency response personnel.  A generator must comply with the HAZWOPER regulations if it meets the specified applicability criteria (e.g., a generator that has employees responsible for responding to onsite releases regardless of location).
OSH Act (Hazard Communication): Employers must provide information to their employees about any chemical which is a physical or health hazard to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training.  Employees must be informed of operations in their work area where hazardous chemicals are present, among other things.  Employee training must include methods and observations for detecting releases, hazards in the work area, and measures employees can take to protect themselves (e.g., emergency procedures). (29 CFR 1910.1200)



The Hazard Communication Standard (HazCom) requires familiarization and training on emergency recognition, hazards, and protective measures, which is comparable to the topics of HWR training for SQGs.  However, they are somewhat less rigorous than the HWR training requirements for LQGs.  There is no schedule for follow-up training under HazCom.  Therefore, HazCom training is not comparable to the HWRs for LQG training.
 
A generator must comply with these regulations for any chemicals which could pose a physical or health hazard in the work place, except for hazardous waste.  Generators would be subject to these requirements for their excluded materials, as well as other chemicals that are not hazardous waste (e.g., chemical products).
7. Reporting and Recordkeeping
HWRs: Reporting to EPA on waste management activities:
   *    Notification (40 CFR  262.12)
   *    Biennial report for LQGS only (40 CFR 262.41)
   *    Exception report (40 CFR 262.42)
HWRs: Recordkeeping for three years (40 CFR 262.40)
GCE:  Initial and Biennial notifications (40 CFR 260.42) 
The HWR and GCE have comparable requirements for initial and biennial submittals in regard to frequency and types of information submitted.  However, the GCE biennial notification requirement applies to generators regardless of size.  The HWR's biennial reporting requirement applies only to LQGs. 

The GCE does not require exception reporting or recordkeeping.
8. Offsite Transportation
HWRs: Shipments must be manifested (40 CFR 262, Subpart B) and comply with DOT requirements for packing, labeling, marking, and placarding (40 CFR 262.30-.33)
GCE: No comparable provisions

The GCE does not include transportation.  See "Other Federal Regulations" below for additional discussion.
Other Federal Regulations: 

HMTA:  A generator would be subject to regulation under the HMTA if it transported, or offered for transportation, a DOT hazardous material, i.e., a material that 1) is listed in the Table in 49 CFR 172.101 (e.g., compounds), 2) is listed in the Appendices to the Table in 172.101, or 3) meets one or more of the hazard classifications (e.g., flammable liquid).  

RCRA hazardous wastes are DOT hazardous materials because they are listed in Part 172.  A hazardous secondary material excluded from the definition of solid waste is neither a solid nor hazardous waste; therefore, it would not qualify as a DOT hazardous material on the basis of being a hazardous waste.  Rather, an excluded material would qualify as a DOT hazardous material if it is otherwise listed in Part 172 (e.g., as a compound or element) or meets a hazard classification.  It is possible that some excluded materials will not qualify as a DOT hazardous material.  This includes a hazardous secondary material that is not listed and does not meet any hazard class.  

Shipments of DOT hazardous materials (including hazardous waste) must comply with applicable transportation provisions.  This includes, for example, the regulations for shipping papers (or manifest), packing, labeling, marking and placarding (49 CFR Parts 171-180), as well as requirements for driving and parking (49 CFR Part 397).
Excluded materials qualifying as a DOT hazardous material would be subject to transportation requirements comparable to hazardous waste, except for tracking of shipments.  Under the HWRs, a manifest is required to track the waste from generator to designated facility and a confirmation of receipt is sent from the facility to the generator.  The hazardous materials regulations do not require transmittal of confirmation.

Note that some excluded materials may not qualify as a DOT hazardous material.  They would not need to be transported in accordance with the hazardous materials regulations.
9. Exports
HWRs: Reporting under 40 CFR Part 262, Subpart E or H:
   *    Perform notice and consent
   *    Submit annual report
   *    Keep records
GCE: No comparable provisions for exports.
    
The GCE does not include comparable provisions for notice and consent for exports.  This is because the exclusion requires that the material be generated and reclaimed within the U.S. and territories.
10. Regulation of Residues
HWRs: Derived-from rule applies to residues from reclamation (40 CFR 261.3(c))
GCE: No comparable provisions
The GCE does not include generator regulations for residues from reclamation.  
11. Requirement for a Permit
HWRs: RCRA permit is required for managing hazardous waste in land-based units. (40 CFR Part 270)
GCE: No comparable provisions
The HWRs require a permit for managing HSM in land-based units.  The permit would prescribe facility and unit-specific standards (e.g., design, operation, emergency prevention).  In addition, public involvement would be required as part of the permitting process.  The GCE allows generators to manage HSM in land-based units without a permit. 
12.  Public Involvement in Permit Process
HWRs: Facility managing hazardous waste in land-based units must undergo RCRA permitting process, which includes public involvement (e.g., public notice and comment for draft permit decision; public hearing if requested). (40 CFR Part 270 and 124)
GCE:  No comparable provisions
Generator that manage HSM under the GCE in land-based units would not be subject to public involvement requirements, unlike  the HWRs.
Other Federal Regulations:


Facilities managing hazardous secondary materials may be subject to other permitting programs that include public involvement.  Examples include the Clean Air Act (CAA) operating permitting program and Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permitting program.
Facilities under GCE may be subject to the CAA NPDES, and/or other permitting programs.  If so, the public may have an opportunity to comment on aspects of their draft permit that relate to management of the excluded material.
13. Enforcement and Compliance
HWRs: EPA's National Program Manager (NPM) Guidance for Fiscal Year 2010 provides that the EPA Regions and states must annually inspect at least 20% of the LQG universe, so that the entire universe is inspected in five years.
HWRs: No comparable guidance. 
GCE:

HWRs: The HWRs include prescriptive generator standards (e.g., labeling, container integrity), which could facilitate inspections and enforcement actions.
GCE: The GCE does not include prescriptive standards, but performance based requirements. 
It may be more difficult for regulators and facilities to inspect for compliance under the GCE because it does not spell out prescriptive standards.  This differs from the HWRs , which lay out prescriptive standards. 


Table A-2.  Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of 
       Hazardous Secondary Materials under DSW Transfer-Based Exclusion 
Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators
DSW Transfer-Based Exclusion (TBE) and Other Federal Regulations:  Hazardous Secondary Material Generators
    Notes (e.g., issues regarding applicability, comments on comparability)
                       Large Quantity Generators (LQGs)
                       Small Quantity Generators (SQGs)
                                       
                                       
1. Legitimate Recycling
HWRs: EPA has issued policy statements to clarify legitimate recycling (e.g., in Federal Register notices).  In addition, respondents in an enforcement action who raise a claim that  a certain material is not a solid waste must demonstrate that there is a known market or disposition for the material and that they meet the terms of the exclusion or exemption, as specified (40 CFR 261.2(f)).  
TBE: Reclamation of the material must be legitimate, as specified at §260.43 (261.4(a)(24)(iv)).   40 CFR 260.43 spells out the legitimacy criteria that must be met.  Generator must perform reasonable efforts to ensure proper and legitimate recycling by reclaimer, as specified (40 CFR 261.4(a)(24)(v)(B))
EPA has set forth consistent criteria on legitimate recycling under the HWR and DSW rule.  The DSW rule codifies these criteria for the exclusions, which provides greater clarity and enforceability.  In addition, a generator's reasonable efforts under the TBE reinforce the criteria and encourage compliance by reclaimers.
2. Storage Time Limit
HWRs:  LQG cannot accumulate waste for more than 90 days without a permit or being in compliance with the interim status standards. (40 CFR 262.34)
HWRs:  SQG cannot accumulate waste for more than 180 or 270 days without a permit or being in compliance with the interim status standards; must not exceed 6,000 kg onsite. (40 CFR 262.34)
TBE: Generator must recycle (or ship for recycling) 75% of the hazardous secondary material within 1 calendar year and meet other criteria as specified. (261.4(a)(24)(i))
The TBE allows generators to accumulate hazardous secondary material onsite for longer periods of time than the HWRs.  In addition, the TBE does not include a quantity limit for onsite accumulation, as does the HWRs for SQGs.
3. Containment
HWRs: Generator must meet design, operating, inspection, and closure standards for containers, tanks, and containment buildings. (40 CFR 262.34 and Part 265, Subparts I, J, and DD)
TBE: Hazardous secondary material must be contained (40 CFR 261.4(a)(24)(v)(A))
Both the HWRs and TBE require containment of hazardous secondary material in the unit.  The HWRs prescribe design, operating, and other standards for containment, whereas the TBE does not.  As such, the TBE allows greater flexibility in how hazardous secondary materials can be contained.  This could result in more or less effective containment than the HWRs, depending on the containment methods used by the generator under the exclusion.  In addition, prescriptive requirements may be more conducive to inspection and enforcement, which could help to prevent a release.
4. Air Emissions
HWRs: LQGs must comply with standards to control air emissions.  These include standards for the design, operation, monitoring, testing, and recordkeeping of:
   *    Process vents associated with specified treatment technologies (40 CFR Parts 264 and 265, Subpart AA);
   *    Equipment leaks (40 CFR Parts 264 and 265, Subpart BB); and
   *    Emissions from tanks, surface impoundments, and containers (40 CFR Parts 264 and 265, Subpart CC).
HWRs: No air emission standards for SQGs.
TBE: Hazardous secondary material must be contained.  (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)(i))
The HWRs and TBE require containment of hazardous secondary material in the unit.  The HWRs prescribe design, operating, and other standards for containment of air emissions, whereas the TBE does not.  As such, the TBE allows more flexibility in how hazardous secondary materials can be contained.  This could result in more or less effective containment than the HWRs, depending on the containment methods used by the generator under the exclusion.  In addition, see "Other Federal Regulations" below for additional discussion.
Other Federal Regulations:
CAA:  The states and EPA issue operating permits to certain "major" stationary sources of hazardous air pollutants (HAPs) under 40 CFR Parts 70 and 71.  A major source is a source that emits more than 10 tons per year (TPY) of any single HAP or more than 25 TPY of HAPs in total.  A limited number of smaller sources (e.g., "area" sources) also may be required to obtain a permit under the federal program.  

In addition, EPA has established technical standards for the control of air emissions from stationary sources, which permit writers include in a permit to control emissions as appropriate.   Some of these standards could address air emissions from process vents, equipment leaks, tanks and other units.  Potentially applicable standards can be found in various parts of 40 CFR, such as: 
   *    Part 60: "Standards of Performance for New Stationary Sources (NSPS)."  This part regulates emissions from stationary sources of criteria pollutants for which EPA has established National Ambient Air Quality Standards (NAAQS); and
   *    Part 63: "National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Categories." This part regulates emissions of hazardous air pollutants (HAPs) from source categories.  

These parts set forth design, operating, monitoring, testing, and/or recordkeeping standards, as specified.
The federal CAA permitting and technical standards could potentially address air emissions from process vents, equipment leaks, and/or storage units at some of the facilities operating under the TBE.  These CAA standards include comparable types of controls as the HWRs, e.g., design, operating, and monitoring.  However, the CAA permitting and technical standards under the federal program would not apply to facilities that:

   * Have emissions below specified thresholds (e.g., emit less than 10 TPY of any single HAP or 25 TPY of HAPs in total); or
   * Do not meet other applicability criteria (e.g., are not in a regulated industry).

5. Emergency Preparedness and Response
HWRs: LQGs must:
   *    Have emergency equipment (e.g., alarms, fire protection, spill containment);
   *    Designate an emergency coordinator; and
   *    Have an emergency plan to address any release or other emergency, and emergency procedures for:
   -     Notifying onsite and offsite personnel;
   -     Controlling the emergency (e.g., identifying, assessing and containing the release); and
   -     Taking other actions as specified (e.g., ensuring proper management of recovered material). (40 CFR 262.34 and Part 265, Subparts C and D)
HWRs: SQGs must:
   *    Have emergency equipment (e.g., alarms, fire protection, spill containment);
   *    Designate an emergency coordinator; and
   *    Respond to any emergency (e.g., extinguish fires, contain and clean up releases, notify offsite emergency personnel as applicable).  (40 CFR 262.34 and Part 265, Subpart C)
   
TBE:  No comparable provisions
The TBE does not include provisions on emergency preparedness and response.  However, materials under the TBE that are no longer contained in a unit (i.e., released) and not immediately recovered would no longer be excluded.  They would need to be cleaned up and be subject to Subtitle C regulation if hazardous, including the HWR preparedness and response requirements, as applicable.  

In addition, see "Other Federal Regulations" below for additional discussion.
Other Federal Regulations:
CAA (Chemical Accident Prevention): A facility that is a stationary source that has more than a threshold quantity of a "regulated substance" in a process (e.g., storage) must develop and implement a risk management program, including a Risk Management Plan (RMP).  Facilities with a process subject to Program 2 or 3 (e.g., a process that has had an accidental release within the past five years with offsite consequences as specified) must prepare an emergency response program that includes an emergency plan (e.g., procedures for notifying offsite parties, providing medical treatment, responding to an accidental release), emergency response equipment, and personnel training. 

However, a facility whose employees will not respond to the release need not prepare an emergency response program if it makes alternative arrangements.  It must either be included in its community emergency response plan or coordinate response actions with the local fire department.  There also must be a mechanism for notifying emergency responders. 

Note that the Chemical Accident Prevention provisions list 140 toxic and flammable regulated substances subject to regulation, with threshold quantities ranging from 500 to 20,000 pounds.  (40 CFR Part 68.)



The Chemical Accident Prevention provisions for an emergency response program set forth generally comparable elements as the HWRs for SQG and LQG preparedness and prevention (e.g., an emergency plan, emergency equipment, and coordination with offsite responders).  

The provisions for alternative arrangements are not comparable to the HWRs for LQGs or SQGs.  They do not require emergency equipment, an emergency plan, or basic efforts by onsite personnel to control the emergency (e.g., extinguishing a fire).

Note that a generator would be subject to the Chemical Accident Prevention provisions if it has more than a threshold quantity of a Part 68-regulated substance in a process (e.g., storage).  Only a subset of these facilities (e.g., those subject to Program 2 or 3) would be required to have an emergency response or evacuation plan.
CERCLA/EPCRA (Emergency Notification):  
   *    A generator must immediately notify the National Response Center (NRC) of a release of a CERCLA hazardous substance (including hazardous waste) equal to or exceeding its reportable quantity in any 24-hour period.  (40 CFR Part 302)
   *    A generator must immediately notify the NRC and local/state officials of a release of a reportable quantity of any extremely hazardous substance (EHS) or CERCLA hazardous substance (including hazardous waste).  (40 CFR Part 355)

These CERCLA/EPCRA provisions require notification to offsite personnel as do the HWRs.  These notification provisions could effectively address some emergencies (e.g., if local responders respond immediately and control the emergency, such as local fire or hazmat personnel).

However, they do not require emergency equipment, onsite coordination, or basic efforts to control an emergency (e.g., containing and cleaning up the release).  Therefore, these provisions are not comparable to the HWRs for preparedness and response.
CWA (Oil Pollution Prevention):  A generator that is a "non-transportation-related facility" that could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities and that meets other applicability criteria must perform emergency planning and response for oil discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan.  The SPCC Plan must address such elements as discharge prevention measures; countermeasures for discharge discovery, response, and cleanup; personnel responsibilities (e.g., for addressing discharges); and plans and procedures for responding to discharges.  (40 CFR Part 112) 


The SPCC requirements set forth generally comparable elements as the HWRs for emergency preparedness and response for oil discharges.  This includes emergency equipment, personnel responsibilities for addressing discharges, training, and emergency plans/procedures (e.g., countermeasures for discharge response and cleanup, notification to offsite agencies/personnel).
  
A generator must prepare an SPCC Plan if it meets specified applicability criteria (e.g., a non-transportation-related facility with aboveground oil storage capacity of more than 1,320 gallons that could reasonably be expected to discharge petroleum-based solvents to navigable waters or adjoining shorelines in quantities that may be harmful).   These criteria would not apply to certain types of generators (e.g., sites that are not near navigable waters, do not generate/store oil-related substances, or meet minimum storage capacity thresholds). 


OSH Act (Process Safety Management): A facility that has a process (e.g., use, storage, handling) which involves a "highly hazardous chemical" at or above the specified quantity must have an evacuation plan for the entire plant addressing evacuation procedures, alarm systems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed by facility personnel who remain to operate critical equipment before evacuation. The facility also would need to handle small releases.  Highly hazardous chemicals include toxic and reactive highly hazardous chemicals which present a potential for a catastrophic event at or above the threshold quantity. (29 CFR 1910.38 and 1910.119) 

 




The Process Safety Management provisions require generally comparable elements as the HWRs for SQG preparedness and response.  The evacuation plan must include onsite response coordination, offsite notification, alarms, and handling of small releases.  However, the PSM provisions are not generally comparable to the HWR requirements for LQG preparedness and response.  The PSM provisions do not require a plan for the facility to control/contain the emergency.

A facility must comply with these regulations if it meets the specified applicability criteria (e.g., if it accumulates a highly hazardous chemical onsite above its threshold quantity).  Section 1910.119, Appendix A, lists approximately 140 toxic and reactive highly hazardous chemicals subject to regulation.

OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)):  Generators of hazardous waste must have an emergency response program if it is required by EPA or state to have its employees engage in emergency response or if it directs its employees to engage in emergency response.  Generators must prepare emergency response program that includes an emergency response plan (e.g., personnel roles, coordination with outside parties, emergency alerting and response, emergency equipment), training for emergency response employees, and procedures for handling emergency incidents (e.g., alarms).  (29 CFR 1910.120(p)(8))

If the generator will evacuate employees and will not allow them to assist in the response, it need not prepare a response program.  Rather, it must prepare an evacuation plan for the entire plant.  The plan must address evacuation procedures, alarm systems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed by facility personnel who remain to operate critical equipment before evacuation. The generator also would need to have procedures for handling small releases.  (29 CFR 1910.38 and 1910.120(p)(8))
29 CFR 1910.120(p)(8) does not apply to sites that are not hazardous waste generators or TSDFs.
Facilities that do not qualify as a hazardous waste generator would not be subject to 29 CFR 1910.120(p)(8).  However, some generators under the TBE may nonetheless qualify as an LQG or SQG based on the quantity of hazardous waste generated and be subject to 29 CFR 1910.120(p)(8).  Portions of the emergency response program under 29 CFR 1910.120(p)(8) could apply to excluded materials at such a site (e.g., availability of emergency response equipment, such as absorbent, if needed).  

Note that the emergency response requirements under 1910.120(p)(8) are comparable to the requirements at 1910.120(q), which are presented below.   
OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)):  A facility is required to establish an emergency response program if it has employees who are responsible for emergency response operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous waste) without regard to the location of the hazard (e.g., anywhere at the facility), such as designated response employees.  The program must include an emergency response plan (e.g., personnel roles, emergency equipment, and coordination with outside parties, emergency alerting and response), training for emergency response employees, and procedures for handling emergency incidents. (29 CFR 1910.120(q))

If the facility will evacuate employees and will not allow employees to assist in response, it need not prepare an emergency response plan.  It must prepare an evacuation plan for the entire plant.  The plan must address evacuation procedures, alarm systems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed by facility personnel who remain to operate critical equipment before evacuation.  (29 CFR 1910.38 and 1910.120(q))
The HAZWOPER regulations require generally comparable elements as the HWRs for LQG and SQG preparedness and response.  This includes, for example, an emergency response plan, emergency equipment, and onsite coordination of emergency responses. 

In addition, the evacuation plan is generally comparable to the HWR requirements for SQG preparedness and response.  The evacuation plan must include onsite response coordination, offsite notification, and alarms.  However, the evacuation plan is not comparable to the HWR requirements for LQG preparedness and response.  The plan does not include sufficient procedures for the facility to address (e.g., control) emergency.

Note that 29 CFR 1910.120(q) would not apply to generators under the TBE unless they have onsite response personnel, as specified.  
OSH Act (Hazard Communication): Facilities must provide information to their employees about any chemical (except hazardous waste) which is a physical or health hazard to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training (e.g., hazards detection, emergency procedures).  Hazardous wastes are exempt from these provisions.  (29 CFR 1910.1200).


A generator under the TBE would be subject to the Hazard Communication Standard (HazCom) for any excluded material and other chemicals that pose a physical or health hazard.  (A generator of hazardous waste would not be subject to 1910.1200 for its hazardous waste, but for non-waste chemicals.)

However, the HazCom provisions do not require emergency equipment, coordination with offsite personnel, or basic actions to control an emergency.  Rather, they require information sharing and training.  As such, these provisions are not comparable to the HWR requirement for LQG or SQG preparedness and response.
6. Personnel Training
HWRs: LQGs must provide personnel training and SQGs must provide familiarization on emergency response and job duties.  At a minimum, this must address emergency procedures.  LQGs must provide recurrent training.  (40 CFR 262.34 and 265.16)
TBE: No comparable provisions.
The TBE does not include provisions on personnel training.  However, some generators under the exclusion may nonetheless qualify as a LQG or SQG based on the quantity of hazardous waste they generate during the month and therefore be subject to the HWR.  Portions of the HWR personnel training may be relevant to handling the excluded materials (e.g., familiarization on chemical hazards).  In addition, see "Other Federal Regulations" below for additional discussion.
Other Federal Regulations:
CAA (Chemical Accident Prevention): A facility that is a stationary source that has more than a threshold quantity of a "regulated substance" in a process (e.g., storage) must develop and implement a risk management program, including a Risk Management Plan (RMP).  

Facilities with a process eligible for Program 1 (e.g., has not had accidental release of a regulated substance within the past five years with offsite consequences as specified) are not required to provide training.  Generators with a process subject to Program 2 or 3 (e.g., has had accidental release of a regulated substance from a process within the past five years with offsite consequences as specified) must provide recurring personnel training on operations and emergency procedures. (40 CFR Part 68)

The Chemical Accident Prevention provisions require facilities in Program 2 and 3 to provide recurring personnel training on job operations and emergency procedures.  These topics are generally comparable to those required by the HWRs for LQG and SQG training.  

A generator would be subject to the Chemical Accident Prevention provisions if it has more than a threshold quantity of a Part 68-regulated substance in a process (e.g., storage).  Note that only a subset of these facilities would need to provide training (i.e., facilities in Program 1 are exempt from training requirements).  Note that Part 68 lists 140 toxic and flammable regulated substances, with threshold quantities ranging from 500 to 20,000 pounds.
CWA (Oil Pollution Prevention):  A generator that is a "non-transportation-related facility" that could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities and that meets other applicability criteria must perform emergency planning and response for oil discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan.  The Plan must provide for personnel training on topics such as operation and maintenance of facility and equipment to prevent discharges, discharge procedure protocols, and elements of the Plan. (40 CFR Part 112) 
A generator's SPCC Plan would address comparable topics as the HWRs for ongoing personnel training for oil. This includes operation and maintenance of the facility and equipment, discharge procedures, and how to carry out the SPCC Plan.  

A generator must prepare an SPCC Plan if it meets the specified applicability criteria (e.g., a non-transportation-related facility with aboveground oil storage capacity of more than 1,320 gallons that could reasonably be expected to discharge petroleum-based solvents to navigable waters or adjoining shorelines in quantities that may be harmful).
HMTA (Hazardous Materials Transportation): A generator would be subject to regulation under the HMTA (including the personnel training requirements as applicable) if it transported, or offered for transportation, a DOT hazardous material, i.e., a material that 1) is listed in the Table in 49 CFR 172.101 (e.g., compounds), 2) is listed in the Appendices to the Table in 172.101, or 3) meets one or more of the hazard classifications (e.g., flammable liquid).  
Part 172 provides that all RCRA hazardous wastes are DOT hazardous materials, as specified.  A hazardous secondary material excluded from the definition of solid waste is neither a solid nor hazardous waste; therefore, it would not qualify as a DOT hazardous material on the basis of being a hazardous waste.  Rather, an excluded material would qualify as a DOT hazardous material if it is otherwise listed in Part 172 (e.g., as a compound or element) or meets a hazard class.  It is possible that some excluded materials will not qualify as a DOT hazardous material.  This includes material that is not listed and does not meet any hazard class.

A generator that employs "hazmat employees" must provide initial and recurrent training.  A hazmat employee is a person who is involved in the transportation of DOT hazardous materials as specified (e.g., loading, preparation for transportation, operation of a transportation vehicle).  The training must cover general awareness/familiarization, function-specific training, safety, security awareness, and in-depth security.  In particular, the safety training must include emergency response information (i.e., information that can be used in the mitigation of an incident involving hazardous materials, such as health hazards, risks of fire/explosions, methods for handling fires/spills). (49 CFR 172, Subpart H)  
Generators under the TBE that employ hazmat employees must train them on a recurrent basis as required by 49 CFR Part 172, Subpart H.  The training must address function-specific, safety and emergency response topics, among other things.  These topics are generally comparable to the topics required by the HWRs for LQG and SQG training as they pertain to transportation-related activities.

Generators whose employees are not involved in transportation activities (e.g., because they do not make offsite shipments, contractors are used to prepare/transport the material, or the material is not DOT hazardous material) would not qualify as hazmat employees and not receive such training.
OSH Act (Process Safety Management): A generator that has a process (e.g., use, storage, handling) which involves a "highly hazardous chemical" at or above specified quantity must provide initial and refresher training of personnel involved in operating a process (e.g., job-related operating procedures, health hazards, emergency operations, evacuations).  (29 CFR 1910.119)
The Process Safety Management provisions require initial and refresher training on topics related to job-related operations and emergencies.  These topics are generally comparable to the topics required by the HWRs for LQG and SQG training.

A generator must comply with the Process Safety Management provisions if it meets the specified applicability criteria (e.g., a generator that accumulates a highly hazardous chemical onsite above its threshold quantity).
OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)):  Generators must have an emergency response program if it is required by EPA or state to have its employees engage in emergency response or if it directs its employees to engage in emergency response.  The program must include training on emergency response (e.g., elements of the response plan, standard operating procedures, and procedures for handling emergency incidents).  These provisions apply to hazardous waste generators and TSDFs only.  (29 CFR 1910.120(p)(8))
29 CFR 1910.120(p)(8) does not apply to sites that are not hazardous waste generators or TSDFs.
Under the TBE, generators that do not otherwise qualify as a hazardous waste generator would not be subject to 29 CFR 1910.120(p)(8).  29 CFR 1910.120(p)(8) applies only to hazardous waste generators and TSDFs. 

On the other hand, generators under the exclusion that continue to be LQGs or SQGs under the HWRs would be subject to 29 CFR 1910.120(p)(8).  Some of the training topics under the 29 CFR 1910.120(p)(8) could be relevant to the excluded material.  These provisions require training on operating and emergency procedures.  These topics are generally comparable to the topics required by the HWRs for SQG training.  However, these provisions do not require recurrent training, as do the HWRs for LQG training.  Therefore, they are not comparable to the HWRs for LQG training.
OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)):  A facility is required to establish an emergency response program if it has employees who are responsible for emergency response operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous waste) without regard to the location of the hazard (e.g., anywhere at the facility).  The facility's program must provide initial and recurrent training as relevant to personnel responsibilities (e.g., first responder, on scene incident commander).  This includes, for example, hazard detection, responsibilities for emergency response, and safety. (29 CFR 1910.120(q))



The HAZWOPER regulations require initial and recurrent training on hazard detection, emergency response, and safety, among other things.  These topics are comparable to the topics required by the HWRs for LQG and SQG training, as it relates specifically to emergency response personnel.  A generator must comply with the HAZWOPER regulations if it meets the specified applicability criteria (e.g., a generator that has employees responsible for responding to onsite releases regardless of location).
OSH Act (Hazard Communication): Employers must provide information to their employees about any chemical which is a physical or health hazard to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training.  Employees must be informed of operations in their work area where hazardous chemicals are present, among other things.  Employee training must include methods and observations for detecting releases, hazards in the work area, and measures employees can take to protect themselves (e.g., emergency procedures). (29 CFR 1910.1200)



The Hazard Communication Standard (HazCom) requires familiarization and training on emergency recognition, hazards, and protective measures, which is comparable to the topics of HWR training for SQGs.  However, they are somewhat less rigorous than the HWR training requirements for LQGs.  There is no schedule for follow-up training under HazCom.  Therefore, HazCom training is not comparable to the HWRs for LQG training.
 
A generator must comply with these regulations for any chemicals which could pose a physical or health hazard in the work place, except for hazardous waste.  Generators would be subject to these requirements for their excluded materials, as well as other chemicals that are not hazardous waste (e.g., chemical products).
7. Reporting and Recordkeeping
HWRs: Reporting to EPA on waste management activities:
   *    Notification (40 CFR  262.12)
   *    Biennial report for LQGs only (40 CFR 262.41)
   *    Exception report (40 CFR 262.42)
HWRs: Recordkeeping for three years (40 CFR 262.40)
TBE:  Reporting on hazardous secondary material activities:
   *    Initial and biennial notifications (40 CFR 260.42)
   *    Records of reasonable efforts if requested (40 CFR 261.4(a)(24)(v)(C))
TBE: Recordkeeping for three years:
   *    Records of reasonable efforts (40 CFR 261.4(a)(24)(v)(C))
   *    Records of offsite shipments and confirmations of receipt (40 CFR 261.4(a)(24)(v)(D) and (E))
The HWR and TBE have comparable requirements for initial and biennial submittals in regard to frequency and types of information submitted.  However, the TBE biennial notification requirement applies to generators regardless of size.  The HWR's biennial reporting requirement applies only to LQGs. 
The TBE does not require exception reporting or recordkeeping.
The TBE includes records of reasonable efforts performed by the generator to ensure that reclamation is legitimate and the excluded material will be managed in a protective manner.  This is not required by the HWR.
8. Offsite Transportation
HWRs: Shipments must be manifested (40 CFR 262, Subpart B) and comply with DOT requirements for packing, labeling, marking, and placarding (40 CFR 262.30-.33)
TBE: Recordkeeping of offsite shipments and confirmations of receipt (40 CFR 261.4(a)(24)(v)(D)) and compliance with DOT packing requirements (40 CFR 261.4(a)(24)(ii))
The HWRs and TBE are comparable in regard to packing requirements and tracking of shipments from generator to reclaimer.  Refer to "Other Federal Regulations" below for an additional discussion.
Other Federal Regulations:
HMTA:  A generator would be subject to regulations under the HMTA if it transported, or offered for transportation, a DOT hazardous material, i.e., a material that 1) is listed in the Table in 49 CFR 172.101 (e.g., compounds), 2) is listed in the Appendices to the Table in 172.101, or 3) meets one or more of the hazard classifications (e.g., flammable liquid).  

RCRA hazardous wastes are DOT hazardous materials because they are listed in Part 172.  A hazardous secondary material excluded from the definition of solid waste is neither a solid nor hazardous waste; therefore, it would not qualify as a DOT hazardous material on the basis of being a hazardous waste.  Rather, an excluded material would qualify as a DOT hazardous material if it is otherwise listed in Part 172 (e.g., as a compound or element) or meets a hazard classification.  It is possible that some excluded materials will not qualify as a DOT hazardous material.  This includes a hazardous secondary material that is not listed and does not meet any hazard class.  

Shipments of DOT hazardous materials (including hazardous waste) must comply with applicable transportation provisions.  This includes, for example, the regulations for shipping papers (or manifest), packing, labeling, marking and placarding (49 CFR Parts 171-180), as well as requirements for driving and parking (49 CFR Part 397).
Excluded materials under the TBE that qualify as a DOT hazardous material would be subject to transportation requirements comparable to hazardous waste.  (See the above requirement for offsite tracking.)  

Note that some excluded materials may not qualify as a DOT hazardous material.  They would not need to be transported in accordance with the regulations under the HMTA.
9. Exports
HWRs: Reporting under 40 CFR Part 262, Subpart E or H:
   * Perform notice and consent
   * Submit annual report
   * Keep records
TBE: reporting under 40 CFR 261.4(a)(25):
   *    Perform notice and consent
   *    Submit annual report
   *    Keep records
The HWRs and TBE include comparable requirements for notice and consent, annual reporting, and recordkeeping for exports.
10. Regulation of Residues
HWRs: Derived-from rule applies to residues from reclamation (40 CFR 261.3(c))
TBE: No comparable provisions
The TBE does not include generator regulations for residues from reclamation.  This is because generators are required to send their excluded materials offsite for reclamation.
11. Enforcement and Compliance
HWRs: EPA's National Program Manager (NPM) Guidance for Fiscal Year 2010 provides that the EPA Regions and states must annually inspect at least 20% of the LQG universe, so that the entire universe is inspected in five years.
HWRs: No comparable guidance.
TBE: No comparable guidance.



Table A-3.  Comparison of Federal Regulations Applicable to Hazardous Waste Storage Facilities and Hazardous Secondary Material Intermediate and Reclamation Facilities under DSW Transfer-Based Exclusion
Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Storage Facilities
DSW Transfer-Based Exclusion (TBE) and Other Federal Regulations:  Hazardous Secondary Material Intermediate and Reclamation Facilities
    Notes (e.g., issues regarding applicability, comments on comparability)
1. Legitimate Recycling
HWRs: EPA has issued policy statements to clarify legitimate recycling (e.g., in Federal Register notices).  In addition, respondents in an enforcement action who raise a claim that  a certain material is not a solid waste must demonstrate that there is a known market or disposition for the material and that they meet the terms of the exclusion or exemption, as specified (40 CFR 261.2(f))
TBE: Reclamation of the material must be legitimate, as specified at §260.43 (40 CFR 261.4(a)(24)(iv)).   40 CFR 260.43 spells out the legitimacy criteria that must be met.  Facility must perform reasonable efforts to ensure proper and legitimate recycling by reclaimer, as specified (40 CFR 261.4(a)(24)(v)(B))
EPA has set forth consistent criteria on legitimate recycling under the HWR and DSW rule.  The DSW rule codifies these criteria, which provides greater clarity and enforceability.  In addition, a generator's reasonable efforts under the TBE reinforce the criteria and encourage compliance by reclaimers.

2. Containment
HWRs: Facility must meet storage design and operating standards for hazardous waste management units (e.g., containment, inspections) (40 CFR Part 264, Subparts I-L and DD)
TBE:  Facility must manage material in a manner that is at least as protective as that employed for analogous raw material and must be contained (40 CFR 261.4(a)(24)(vi)(D))
Both the HWRs and TBE require containment of hazardous secondary material in the unit.  The HWRs prescribe design, operating, and other standards for containment, whereas the TBE does not.  As such, the TBE allows greater flexibility in how hazardous secondary materials can be managed and contained.  This could result in more or less effective containment than the HWRs, depending on the containment methods used by facilities under the exclusion.  In addition, prescriptive requirements may be more conducive to inspection and enforcement, which could help to prevent a release.
3. Air Emissions
HWRs: Facility must meet air emission standards for storage (40 CFR Part 264, Subparts AA-CC) and recycling (40 CFR Part 264, Subparts AA and BB)
TBE:  Facility must manage material in a manner that is at least as protective as that employed for analogous raw material and must contained (40 CFR 261.4(a)(24)(vi)(D))
Both the HWRs and TBE require containment of hazardous secondary material in the unit.  The HWRs prescribe design, operating, and other standards for containment, whereas the TBE does not.  As such, the TBE allows greater flexibility in how hazardous secondary materials can be managed and contained.  This could result in more or less effective containment than the HWRs, depending on the containment methods used by facilities under the exclusion.  In addition, see "Other Federal Regulations" below for additional discussion.
Other Federal Regulations:
CAA:  The states and EPA issue operating permits to certain "major" stationary sources of hazardous air pollutants (HAPs) under 40 CFR Parts 70 and 71.  A major source is a source that emits more than 10 tons per year (TPY) of any single HAP or more than 25 TPY of HAPs in total.  A limited number of smaller sources (e.g., "area" sources) also may be required to obtain a permit under the federal program.  

In addition, EPA has established technical standards for the control of air emissions from stationary sources, which permit writers include in a permit to control emissions as appropriate.   Some of these standards could address air emissions from process vents, equipment leaks, tanks and other units.  Potentially applicable standards can be found in various parts of 40 CFR, such as: 
   *    Part 60: "Standards of Performance for New Stationary Sources (NSPS)."  This part regulates emissions from stationary sources of criteria pollutants for which EPA has established National Ambient Air Quality Standards (NAAQS); and
   *    Part 63: "National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Categories." This part regulates emissions of hazardous air pollutants (HAPs) from source categories.  

These parts set forth design, operating, monitoring, testing, and/or recordkeeping standards, as specified.
The federal CAA permitting and technical standards could potentially address air emissions from process vents, equipment leaks, and/or storage units at some of the facilities operating under the TBE.  These CAA standards include comparable types of controls as the HWRs, e.g., design, operating, and monitoring.  However, the CAA permitting and technical standards under the federal program would not apply to facilities that:

   * Have emissions below specified thresholds (e.g., emit less than 10 TPY of any single HAP or 25 TPY of HAPs in total); or
   * Do not meet other applicability criteria (e.g., are not in a regulated industry).

4. Emergency Preparedness and Response
HWRs: Facilities must:
   *    Have emergency equipment (e.g., alarms, fire protection);
   *    Designate an emergency coordinator; and
   *    Have an emergency plan to address any release or other emergency, and emergency procedures for:
   -     Notifying onsite and offsite personnel;
   -     Controlling the emergency (e.g., identifying, assessing and containing the release); and
   -     Taking other actions if specified (e.g., ensuring proper management of recovered material). (40 CFR Part 264, Subpart C and D)
TBE:  No comparable provisions
The TBE does not include provisions on emergency preparedness and response.  However, materials under the TBE that are no longer contained in a unit (i.e., released) and not immediately recovered would no longer be excluded.  They would need to be cleaned up and be subject to Subtitle C regulation if hazardous, including the HWR preparedness and response requirements, as applicable.  

In addition, see "Other Federal Regulations" below for additional discussion.
Other Federal Regulations:
CAA (Chemical Accident Prevention): A facility that is a stationary source that has more than a threshold quantity of a "regulated substance" in a process (e.g., storage) must develop and implement a risk management program, including a Risk Management Plan (RMP).  Facilities with a process subject to Program 2 or 3 (e.g., a process that has had an accidental release within the past five years with offsite consequences as specified) must prepare an emergency response program that includes an emergency plan (e.g., procedures for notifying offsite parties, providing medical treatment, responding to an accidental release), emergency response equipment, and personnel training. 

However, a facility whose employees will not respond to the release need not prepare an emergency response program if it makes alternative arrangements.  It must either be included in its community emergency response plan or coordinate response actions with the local fire department.  There also must be a mechanism for notifying emergency responders. 

Note that the Chemical Accident Prevention provisions list 140 toxic and flammable regulated substances subject to regulation, with threshold quantities ranging from 500 to 20,000 pounds.  (40 CFR Part 68.)



The Chemical Accident Prevention provisions for an emergency response program set forth generally comparable elements as the HWRs for facility preparedness and prevention (e.g., an emergency plan, emergency equipment, and coordination with offsite responders).  

The provisions for alternative arrangements are not comparable to the HWRs for facilities.  They do not require emergency equipment, an emergency plan, or basic efforts by onsite personnel to control the emergency (e.g., extinguishing a fire).

Note that a facility would be subject to the Chemical Accident Prevention provisions if it has more than a threshold quantity of a Part 68-regulated substance in a process (e.g., storage).  Only a subset of these facilities (e.g., those subject to Program 2 or 3) would be required to have an emergency response or evacuation plan.
CERCLA/EPCRA (Emergency Notification):  
   *    A facility must immediately notify the National Response Center (NRC) of a release of a CERCLA hazardous substance (including hazardous waste) equal to or exceeding its reportable quantity in any 24-hour period.  (40 CFR Part 302)
   *    A facility must immediately notify the NRC and local/state officials of a release of a reportable quantity of any extremely hazardous substance (EHS) or CERCLA hazardous substance (including hazardous waste).  (40 CFR Part 355)

These CERCLA/EPCRA provisions require notification to offsite personnel as do the HWRs.  These notification provisions could effectively address some emergencies (e.g., if local responders respond immediately and control the emergency, such as local fire or hazmat personnel).

However, they do not require emergency equipment, onsite coordination, or basic efforts to control an emergency (e.g., containing and cleaning up the release).  Therefore, these provisions are not comparable to the HWRs for preparedness and response.
CWA (Oil Pollution Prevention):  A facility that is a "non-transportation-related facility" that could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities and that meets other applicability criteria must perform emergency planning and response for oil discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan.  The SPCC Plan must address such elements as discharge prevention measures; countermeasures for discharge discovery, response, and cleanup; personnel responsibilities (e.g., for addressing discharges); and plans and procedures for responding to discharges.  (40 CFR Part 112) 


The SPCC requirements set forth generally comparable elements as the HWRs for emergency preparedness and response for oil discharges.  This includes emergency equipment, personnel responsibilities for addressing discharges, training, and emergency plans/procedures (e.g., countermeasures for discharge response and cleanup, notification to offsite agencies/personnel).
  
A facility must prepare an SPCC Plan if it meets specified applicability criteria (e.g., a non-transportation-related facility with aboveground oil storage capacity of more than 1,320 gallons that could reasonably be expected to discharge petroleum-based solvents to navigable waters or adjoining shorelines in quantities that may be harmful).   These criteria would not apply to certain types of facilities (e.g., facilities that are not near navigable waters, do not store oil-related substances, or meet minimum storage capacity thresholds). 


OSH Act (Process Safety Management): A facility that has a process (e.g., use, storage, handling) which involves a "highly hazardous chemical" at or above the specified quantity must have an evacuation plan for the entire plant addressing evacuation procedures, alarm systems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed by facility personnel who remain to operate critical equipment before evacuation. The facility also would need to handle small releases.  Highly hazardous chemicals include toxic and reactive highly hazardous chemicals which present a potential for a catastrophic event at or above the threshold quantity. (29 CFR 1910.38 and 1910.119) 

The Process Safety Management provisions require generally comparable elements as the HWRs for facility preparedness and response.  The evacuation plan must include onsite response coordination, offsite notification, alarms, and handling of small releases.  However, the PSM provisions are not generally comparable to the HWR requirements for facility preparedness and response.  The PSM provisions do not require a plan for the facility to control/contain the emergency.

A facility must comply with these regulations if it meets the specified applicability criteria (e.g., if it accumulates a highly hazardous chemical onsite above its threshold quantity).  Section 1910.119, Appendix A, lists approximately 140 toxic and reactive highly hazardous chemicals subject to regulation.

OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)):  Permitted and interim-status TSDFs are required to have a safety and health program designed to identify, evaluate and control safety and health hazards for the purpose of employee protection, to provide for emergency response, and to address other elements as specified (e.g., material handling program, training).  It also must have an emergency response program, including the development of an emergency response plan (e.g., personnel roles, emergency alerting and response, emergency equipment), training for emergency response employees, and procedures for handling emergency incidents (e.g., alarms).  (29 CFR 1910.120(p))
Facilities must have an emergency response program if it is required by EPA or state to have its employees engage in emergency response or if it directs its employees to engage in emergency response.  The program must include an emergency response plan (e.g., personnel roles, coordination with outside parties, emergency alerting and response, emergency equipment), training for emergency response employees, and procedures for handling emergency incidents (e.g., alarms).  These provisions apply to hazardous waste generators and TSDFs only.  These provisions are not applicable if all workers are evacuated.  (29 CFR 1910.120(p)(8))
29 CFR 1910.120(p) does not apply to sites that are not permitted or interim-status TSDFs.
Under the TBE, facilities that do not otherwise qualify as a permitted or interim-status TSDF would not be subject to 29 CFR 1910.120(p).  However, some facilities under the exclusion may nonetheless be subject to a permit or interim status because of their management of hazardous waste and be subject to 29 CFR 1910.120(p).  Portions of the emergency response program under 29 CFR 1910.120(p) could apply to excluded materials at such a site (e.g., availability of emergency response equipment, such as absorbent, if needed).  

Note that the emergency response requirements under 1910.120(p) are comparable to the requirements at 1910.120(q), which are presented below.   
OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)):  A facility is required to establish an emergency response program if it has employees who are responsible for emergency response operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous waste) without regard to the location of the hazard (e.g., anywhere at the facility), such as designated response employees.  The program must include an emergency response plan (e.g., personnel roles, emergency equipment, and coordination with outside parties, emergency alerting and response), training for emergency response employees, and procedures for handling emergency incidents. (29 CFR 1910.120(q))

If the facility will evacuate employees and will not allow employees to assist in response, it need not prepare an emergency response plan.  It must prepare an evacuation plan for the entire plant.  The plan must address evacuation procedures, alarm systems, personnel responsibilities, evacuation training, offsite notification, and procedures to be followed by facility personnel who remain to operate critical equipment before evacuation.  (29 CFR 1910.38 and 1910.120(q))
The HAZWOPER regulations require generally comparable elements as the HWRs for preparedness and response.  This includes, for example, an emergency response plan, emergency equipment, and onsite coordination of emergency responses.  However, the evacuation plan is not comparable to the HWR requirements.  The plan does not include sufficient procedures for the facility to address (e.g., control) emergency.

Note that 29 CFR 1910.120(q) would not apply to facilities under the TBE unless they have onsite response personnel, as specified.  
OSH Act (Hazard Communication): Facilities must provide information to their employees about any chemical (except hazardous waste) which is a physical or health hazard to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training (e.g., hazards detection, emergency procedures).  Hazardous wastes are exempt from these provisions.  (29 CFR 1910.1200).


A facility under the TBE would be subject to the Hazard Communication Standard (HazCom) for any excluded material and other chemicals that pose a physical or health hazard.  (A TSDF managing hazardous waste would not be subject to 1910.1200 for its hazardous waste, but for non-waste chemicals.)

However, the HazCom provisions do not require emergency equipment, coordination with offsite personnel, or basic actions to control an emergency.  Rather, they require information sharing and training.  As such, these provisions are not comparable to the HWR requirements for preparedness and response.
5. Security
HWRs: Prevention of unauthorized entry (40 CFR 264.14)
TBE:  No comparable provisions
Facilities under the TBE would not be required to prevent unauthorized entry, as is the case under the HWRs.
6. Personnel Training
HWRs: Personnel training on emergency response and job duties must be conducted.  At a minimum, this must include training on emergency procedures.  Facilities must provide recurrent training.  (40 CFR 264.16)
TBE: No comparable provisions.
The TBE does not include provisions on personnel training.  However, some facilities under the exclusion may nonetheless be subject to a permit or interim-status standards because of their hazardous waste management activities.  Portions of the HWR personnel training may be relevant to handling the excluded materials (e.g., familiarization on chemical hazards).  In addition, see "Other Federal Regulations" below for additional discussion.
Other Federal Regulations:
CAA (Chemical Accident Prevention): A facility that is a stationary source that has more than a threshold quantity of a "regulated substance" in a process (e.g., storage) must develop and implement a risk management program, including a Risk Management Plan (RMP).  

Facilities with a process eligible for Program 1 (e.g., has not had accidental release of a regulated substance within the past five years with offsite consequences as specified) are not required to provide training.  Facilities with a process subject to Program 2 or 3 (e.g., has had accidental release of a regulated substance from a process within the past five years with offsite consequences as specified) must provide recurring personnel training on operations and emergency procedures. (40 CFR Part 68)

The Chemical Accident Prevention provisions require facilities in Program 2 and 3 to provide recurring personnel training on job operations and emergency procedures.  These topics are generally comparable to those required by the HWRs for facility training.  

A facility would be subject to the Chemical Accident Prevention provisions if it has more than a threshold quantity of a Part 68-regulated substance in a process (e.g., storage).  Note that only a subset of these facilities would need to provide training (i.e., facilities in Program 1 are exempt from training requirements).  Note that Part 68 lists 140 toxic and flammable regulated substances, with threshold quantities ranging from 500 to 20,000 pounds.
CWA (Oil Pollution Prevention):  A facility that is a "non-transportation-related facility" that could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in harmful quantities and that meets other applicability criteria must perform emergency planning and response for oil discharges, including a Spill Prevention, Control, and Countermeasure (SPCC) Plan.  The Plan must provide for personnel training on topics such as operation and maintenance of facility and equipment to prevent discharges, discharge procedure protocols, and elements of the Plan. (40 CFR Part 112) 
A facility's SPCC Plan would address comparable topics as the HWRs for ongoing personnel training for oil. This includes operation and maintenance of the facility and equipment, discharge procedures, and how to carry out the SPCC Plan.  

A facility must prepare an SPCC Plan if it meets the specified applicability criteria (e.g., a non-transportation-related facility with aboveground oil storage capacity of more than 1,320 gallons that could reasonably be expected to discharge petroleum-based solvents to navigable waters or adjoining shorelines in quantities that may be harmful).
OSH Act (Process Safety Management): A facility that has a process (e.g., use, storage, handling) which involves a "highly hazardous chemical" at or above the specified quantity must provide initial and refresher training of personnel involved in operating a process (e.g., job-related operating procedures, health hazards, emergency operations, evacuations).  (29 CFR 1910.119)
The Process Safety Management provisions require initial and refresher training on topics related to job-related operations and emergencies.  These topics are generally comparable to the topics required by the HWRs for LQG and SQG training.

A facility must comply with these regulations if it meets the specified applicability criteria (e.g., a facility that accumulates a highly hazardous chemical onsite above its threshold quantity).
OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)):  Facilities must have an emergency response program if it is required by EPA or state to have its employees engage in emergency response or if it directs its employees to engage in emergency response.  The program must include, among other things, training on job duties and emergency response (e.g., elements of the response plan, procedures for handling emergency incidents).  Training on job duties must be recurrent training.  These provisions apply to hazardous waste TSDFs only.  (29 CFR 1910.120(p))
29 CFR 1910.120(p) does not apply to facilities that are not hazardous waste TSDFs.
Facilities that are not subject to a permit or interim status would not be subject to 29 CFR 1910.120(p)(8).  However, facilities under the exclusion may continue to manage hazardous waste under a permit or interim status and be subject to 29 CFR 1910.120(p).  Some of the training topics under the 29 CFR 1910.120(p) could be relevant to the excluded material.  These provisions require training on job duties and emergency procedures.  These topics are generally comparable to the topics required by the HWRs.  However, these provisions do not require recurrent training on emergency response, as do the HWRs for facilities.  Therefore, they are not comparable to the HWR training requirements.
OSH Act (Hazardous Waste Operations and Emergency Response (HAZWOPER)):  A facility is required to establish an emergency response program if it has employees who are responsible for emergency response operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous waste) without regard to the location of the hazard (e.g., anywhere at the facility).  The facility's program must provide initial and recurrent training as relevant to personnel responsibilities (e.g., first responder, on scene incident commander).  This includes, for example, hazard detection, responsibilities for emergency response, and safety. (29 CFR 1910.120(q))



The HAZWOPER regulations require initial and recurrent training on hazard detection, emergency response, and safety, among other things.  These topics are comparable to the topics required by the HWRs for facilities, as it relates specifically to emergency response personnel.  A facility must comply with these regulations if it meets the specified applicability criteria (e.g., a facility that has employees responsible for responding to onsite releases regardless of location).
OSH Act (Hazard Communication): Employers must provide information to their employees about any chemical which is a physical or health hazard to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training.  Employees must be informed of operations in their work area where hazardous chemicals are present, among other things.  Employee training must include methods and observations for detecting releases, hazards in the work area, and measures employees can take to protect themselves (e.g., emergency procedures). (29 CFR 1910.1200)



The Hazard Communication Standard (HazCom) requires familiarization and training on emergency recognition, hazards, and protective measures.  These provisions less rigorous than the HWR training requirements for facilities.  There is no schedule for follow-up training under HazCom.  Therefore, HazCom training is not comparable to the HWR training requirements.
 
A facility must comply with these regulations for any chemicals which could pose a physical or health hazard in the work place, except for hazardous waste.  Facilities under the TBE would be subject to these requirements for their excluded materials, as well as other chemicals that are not hazardous waste (e.g., chemical products).
7. Reporting and Recordkeeping
HWRs: Reporting to EPA:
   *    Notification (40 CFR  264.11)
   *    Biennial report (40 CFR 264.75)
   *    Manifesting reports (40 CFR 264.72 and 264.76)
HWRs: Operating record (40 CFR 264.73)
TBE: Initial and biennial notification (40 CFR 260.42) and recordkeeping of all shipments received onsite and received onsite and sent offsite  (40 CFR 261.4(a)(24)(vi)(A))
The HWR and TBE have comparable requirements for initial and biennial submittals in regard to frequency and types of information submitted.  
The TBE does not require recordkeeping comparable to an operating record.
8. Financial Assurance
HWRs: Financial assurance must be obtained (40 CFR Part 264, Subpart H)
TBE: Financial assurance must be obtained (40 CFR 261.4(a)(24)(vi)(F))
The HWR and TBE include comparable requirements for financial assurance.
9. Regulation of Residues
HWRs: Derived-from rule applies to residues from reclamation (40 CFR 261.3(c))
TBE: Residuals must be managed as hazardous waste if they exhibit a characteristic or are listed (40 CFR 261.4(a)(24)(vi)(E))
The derived-from' rule does not apply to residuals from the reclamation of hazardous secondary materials excluded under the TBE.  These residuals are a new point of generation for the purposes of applying the hazardous waste determination requirements of 40 CFR 262.11.  If the residuals exhibit a hazardous characteristic, or they themselves are a listed hazardous waste, they would be considered hazardous wastes (unless otherwise exempted) and would have to be managed accordingly. If they did not exhibit a hazardous characteristic, or were not themselves a listed hazardous waste, they would need to be managed in accordance with applicable state or federal requirements for non-hazardous wastes.

The TBE provisions on residuals were included to clarify that residuals from reclamation are subject to waste characterization requirements and cannot simply be discarded as non-hazardous waste.  However, designating the residuals as a new point of generation raises the possibility that a residual containing a listed waste might not be characterized as such (e.g., because the listed waste is below detectable levels).  As a result, such listed wastes could exit Subtitle C regulation, contrary to the intent of the derived-from rule.
10. Requirement for a Permit
HWRs: RCRA permit is required for storage. (40 CFR Part 270)
TBE: Facility must either obtain RCRA permit and manage hazardous secondary materials in the permitted units (40 CFR Part 270) or must comply with TBE conditions and pass an audit by the generator, who makes reasonable efforts to ensure their hazardous secondary material will be safely and legitimately managed. (40 CFR 261.4(a)(24)(v)(B))
The RCRA permit and TBE share some key similarities and differences, e.g.:

Similarities
   * RCRA permit and TBE impose requirements on facilities to ensure protective operation (e.g., RCRA permit conditions, TBE conditions);
   * RCRA permit and TBE rely on similar processes for compliance assurance (e.g., state inspections and reviews of facility submittals).  Whereas a state may inspect TSDFs more often than TBE facilities, the TBE requires generator audits to supplement state's compliance oversight and assure compliance.
   * RCRA permit and TBE both require financial assurance for closure and sudden and non-sudden occurrences.

Differences
   * RCRA permit can be revoked or denied to prevent facility operation.  Under the TBE, generator audit does not result in denial of ability to operate.  Rather, generators must not send materials to a facility that fails an audit, essentially denying it the ability to manage the materials under the exclusion.
   * States have lead role in administering the RCRA permitting and enforcement process. Under the TBE, states and generators both have lead roles to evaluate facility compliance. 
11. Public Involvement in Permit Process
HWRs: Facility must undergo RCRA permitting process, which includes public involvement (e.g., public notice and comment for draft permit decision; public hearing if requested). (40 CFR Part 270 and 124)
TBE:  Facility must either undergo RCRA permitting process, including public involvement, or be subject to generator audits.  Generator audits do not involve the general public.
The TBE is not comparable to the HWRs for public involvement.  Under the HWRs, a facility must obtain a permit to store hazardous secondary materials.  The RCRA permitting process includes public involvement.   Under the TBE, a permit is not needed for storage of excluded materials.  As a result, the facility could operate and store the materials under the TBE without public involvement.   

In addition, see "Other Federal Regulations" below for additional discussion.
Other Federal Regulations:
Facilities managing hazardous secondary materials may be subject to other permitting programs that include public involvement.  Examples include the Clean Air Act (CAA) operating permitting program and Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permitting program.
Facilities under the TBE may be subject to the CAA, NPDES, and/or other permitting programs.  If so, the public may have an opportunity to comment on aspects of their draft permit that relate to management of the excluded material.  For example, a draft CAA operating permit may include requirements related to the control of air emissions from storage tanks holding excluded materials.  The public could comment on these aspects of the proposed permit.
12. EPA/State Oversight and Enforcement
HWRs: RCRA section 3007(c) requires annual inspections of federal TSDFs.  RCRA section 3007(d) requires annual inspections of state and local TSDFs.  RCRA section 3007(e) requires that other TSDFs be inspected no less than every 2 years.

EPA's National Program Manager (NPM) Guidance for Fiscal Year 2010 establishes performance expectations and activities related to the TSDF universe for the EPA Regions and states:
   *    Inspect at least once every two years each operating TSDF; and
   *    Annually inspect each TSDF operated by states or local governments (for Regions only).

The HWRs include prescriptive standards for facilities, including the requirement for a permit, which could facilitate inspections and enforcement actions. 
TBE:  For RCRA-permitted facilities, requirements would be the same.  

For unpermitted DSW facilities, no comparable requirements.

The TBE does not include prescriptive standards, but performance based requirements. 
It may be more difficult for regulators and facilities to inspect for compliance under the TBE because it does not spell out prescriptive standards.  This differs from the HWRs, which lay out prescriptive standards.


5.	Summary of Federal Regulations
This section summarizes the federal regulations that are compared and discussed in this appendix.  These include the following:
      5.1	Resource Conservation and Recovery Act (RCRA) Hazardous Waste Regulations
           5.1.1	Hazardous Waste Generator Standards
           5.1.2	Hazardous Waste Storage Standards
      5.2	Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste Exclusions
           5.2.1 	Generator-Controlled Exclusion
           5.2.2	Transfer-Based Exclusion
      5.3	Clean Air Act (CAA)
           5.3.1	CAA Title V Air Quality Permitting Process
           5.3.2	CAA Standards for Area Sources Not Subject to Title V Permit
     5.3.3	Chemical Accident Prevention Provisions
      5.4	Clean Water Act (CWA)  -  Oil Pollution Prevention
      5.5	Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)  -  Release Notification
      5.6	Emergency Planning and Community Right-to-Know Act (EPCRA)  -  Release Notification
      5.7	Hazardous Materials Transportation Act of 1975 (HMTA) 
      	5.7.1	Overview and Applicability
      	5.7.2	Hazardous Materials Regulations
            5.7.3	Transportation of Hazardous Materials; Driving and Parking Rules
      5.8	Occupational Safety and Health Act (OSH Act) 
            5.8.1	Process Safety Management of Highly Hazardous Chemicals
            5.8.2	Hazardous Waste Operations and Emergency Response
            5.8.3	Hazard Communication
      5.1	Resource Conservation and Recovery Act (RCRA) Hazardous Waste Regulations
Subtitle C of the Resource Conservation and Recovery Act (RCRA), as amended, authorizes EPA to develop and implement a national hazardous waste regulatory program.  EPA has established hazardous regulations at 40 CFR Parts 260 through 279.  Following is a summary of some of the regulations applicable to hazardous waste generators and storage facilities.
      5.1.1	Hazardous Waste Generator Standards (40 CFR Part 262)
A hazardous waste generator is any person, by site, whose act or process produces hazardous waste or whose act first causes a hazardous waste to become subject to regulation.  Generators are divided into three categories based on the quantity of waste they produce during the month:
   * A large quantity generator (LQG) is a site that generates 1,000 kg or more of hazardous waste in a calendar month, 1 kg or more of acute hazardous waste in a calendar month, or 100 kg or more of any residue, soil, waste or other debris resulting from the cleanup of any acute hazardous waste. (261.5(e) and 262.34(a))
   * A small quantity generator (SQG) is a site that generates greater than 100 kg but less than 1,000 kg of hazardous waste in a calendar month. (262.34(d))
   * A conditionally exempt small quantity generator (CESQG) is a site that generates no more than 100 kg of hazardous waste in a calendar month. (261.5(a))
LQGs and SQGs must comply with the standards of 40 CFR Part 262, as applicable.  Following is a summary of some of the generator standards.
      Legitimate Recycling
EPA has issued policy statements to clarify legitimate recycling under the RCRA hazardous waste program.  In particular, EPA issued a memorandum on April 26, 1989, that consolidated preamble statements concerning legitimate recycling that had been articulated previously into a list of criteria to be considered in evaluating legitimacy [OSWER directive 9441.1989(19)]. This memorandum has been a primary source of guidance for the regulated community and for implementing agencies in distinguishing between legitimate and sham recycling.
As explained in the memorandum, a legitimacy determination involves evaluating case-specific information to determine whether or not a secondary material being recycled is in effect being used as a commodity, rather than as a waste.  The memorandum identified six criteria to be considered in evaluating this fundamental question, explaining that each recycling scenario is likely to require a case-specific evaluation. The memorandum further explained that, depending on the case-specific facts and circumstances, certain criteria may weigh more heavily than others in making legitimacy determinations. 
In addition, 40 CFR 261.2(f) provides that respondents in an enforcement action who raise a claim that a certain material is not a solid waste must demonstrate that there is a known market or disposition for the material and that they meet the terms of the exclusion or exemption, as specified.  
      Storage Time Limit
Generators must comply with the storage time limits at 40 CFR 262.34, as specified:
   * LQGs may accumulate hazardous waste onsite for 90 days or less without a permit or interim status, provided that specified standards are met. (262.34(a))
   * SQGs may accumulate hazardous waste onsite for 180 days or less without a permit or interim status, provided that the quantity of waste accumulated onsite never exceeds 6,000 kg and other standards are met, as specified.  If the SQG's waste must be transported 200 miles or more for offsite treatment, storage, or disposal, it may accumulate the hazardous waste onsite for 270 days or less without a permit or interim status, provided that specified standards are met. (262.34(d) and (e))
	Containment
40 CFR 262.34(a) and (d) provide that LQGs and SQGs may accumulate their hazardous waste in containers and tanks in accordance with 40 CFR Part 265, Subparts I and J, respectively.  In addition, LQGs may accumulate their hazardous waste in containment buildings in accordance with 40 CFR Part 265, Subpart DD.  The purpose of these standards is to contain the waste in the unit, among other things.  Section 5.2 of this appendix gives examples of some of these standards.
	Air Emission Standards
40 CFR 262.34(a) requires LQGs to comply with the air emission standards for containers and tanks at 40 CFR Part 265, Subparts AA, BB, and CC, as applicable.  SQGs are not subject to these subparts.  Section 5.2 of this appendix summarizes the Subpart AA through CC requirements.
Emergency Preparedness and Response
Emergency Equipment.  40 CFR 262.34(a) and (d) require LQGs and SQGs to comply with the preparedness and prevention requirements of 40 CFR Part 265, Subpart C.  Subpart C requires that they be equipped with, test, and maintain emergency equipment, including internal and external communications and alarm systems, fire control equipment, and water, if needed for the hazards posed by waste handled at the facility.
Emergency Plan and Response.  40 CFR 262.34(a) requires LQGs to comply with the contingency plan and emergency procedures of 40 CFR Part 265, Subpart D.  Subpart D requires that they designate an emergency coordinator and have a contingency plan designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water.  The emergency coordinator must carry out the following procedures whenever there is a fire, release, and explosion:
   * Notify onsite and offsite personnel/agencies as specified;
   * Identify, assess, and control releases, fires or explosions and related hazards;
   * Take other actions as specified (e.g., ensure treatment, storage, or disposal of recovered waste).
40 CFR 262.34(d) requires SQGs to designate an emergency coordinator and post emergency information next to the telephone (e.g., location of fire extinguisher).  In the event of a fire, explosion or other release, the emergency coordinator must notify appropriate offsite personnel/agencies and control/clean up to the fire, release or other emergency (e.g., contain the flow of hazardous waste).
Personnel Training
40 CFR 262.34(a) requires LQGs to comply with the personnel training requirements of 40 CFR 265.16.  LQGs must provide initial training and annual review, which teach facility personnel to perform their duties in a way that ensures the facility's compliance with applicable RCRA requirements.  It must ensure, at a minimum, that personnel are able to respond effectively to emergencies.  Specified records must be kept.
40 CFR 262.34(d) requires SQGs to ensure that all employees are thoroughly familiar with proper waste handling and emergency procedures relevant to their responsibilities during normal facility operations and emergencies.
Reporting and Recordkeeping
Notification.  Under 40 CFR 262.12, a generator must not treat, store, dispose of, transport, or offer for transportation, hazardous waste without having received an EPA identification number from EPA.  The generator may obtain an ID number by submitting a Site Identification Form (EPA Form 8700-12) to EPA.
Biennial Report.  40 CFR 262.41 requires LQGs to prepare and submit a Biennial Report to EPA by March 1 of each even numbered year.  The Biennial Report must be submitted on EPA Form 8700 - 13A and include information about the generator, hazardous wastes generated, onsite management, and offsite shipments.  SQGs are not required to submit a Biennial Report.
Exception Report.   Under 40 CFR 262.42, a generator must submit an Exception Report to EPA if has not received a copy of the manifest from the designated facility within 45 days (for LQGs) or 60 days (for SQGs) of the date the waste was accepted by the initial transporter.  The Exception Report must explain the generator's efforts to locate the waste and the results of those efforts. 
Recordkeeping.  40 CFR 262.40 requires generators to retain the following documents for three years:
   * Manifests;
   * Biennial Report (LQGs only); and
   * Results of waste analyses, tests, and other determinations.
      Offsite Transportation
Manifest System.   Under 40 CFR Part 262, Subpart B, generators must prepare a hazardous waste manifest for all offsite shipments, give it to initial the transporter, and retain a copy.  The transporter must ensure that the manifest accompanies the shipment to the designated facility and retain a copy.  The designated facility must note discrepancies, retain a copy and send a copy back to the generator to confirm receipt.
Department of Transportation (DOT) Requirements.  40 CFR 262.30 through 262.33 require generators to comply with the following DOT requirements for the waste before it is transported offsite:
   * Packaging requirements at 49 CFR Parts 173, 178, and 179; and
   * Labeling, marking, and placarding requirements at 49 CFR Part 172.
      Exports
Under 40 CFR Part 262, Subparts E and H, a primary exporter must provide notice to EPA of its intent to export hazardous waste.  The shipment cannot take place until the receiving country consents (e.g., tacit or written) to the shipment.  The primary exporter must comply with the requirements for use of a tracking document (e.g., manifest), as specified.  In addition, exports to countries in the Organization for Economic Cooperation and Development must occur under the conditions of a contract, as specified.  The primary exporter must file an annual report by March 1 of each year to EPA, summarizing the types, quantities, frequency, and ultimate disposition of all hazardous waste exported.  The primary exporter must keep a copy of specified documents (e.g., each notification, annual report).  
      Regulation of Residues
40 CFR 261.3(c) provides that any material derived from a listed hazardous waste is also a listed hazardous waste.
      Enforcement and Compliance
EPA's National Program Manager (NPM) Guidance for Fiscal Year 2010 establishes performance expectations and activities related to the LQG universe for the EPA Regions and states.  It requires that they annually inspect at least 20% of the LQG universe, so that the entire universe is inspected in five years unless approval to deviate from this requirement is approved.  
	5.1.2	Hazardous Waste Storage Standards (40 CFR Parts 264 and 265)
A facility that treats, stores of disposes of hazardous waste must comply with the technical requirements of 40 CFR Part 264 or 265.  Part 264 establishes requirements for treatment, storage or disposal facilities (TSDFs) that have received a RCRA permit under Part 270.  Part 265 establishes requirements for TSDFs that are under interim status until either a RCRA permit is issued or closure and post-closure responsibilities are fulfilled.  Following is a summary of some of the requirements applicable to facilities that store hazardous waste.
      Legitimate Recycling
Section 5.1 summarizes the requirements and policy related to the legitimate recycling of hazardous waste.
 	Containment
Facilities must store their hazardous waste in containers, tanks, surface impoundments, waste piles, or containment buildings in accordance with 40 CFR Part 264 or 265, Subparts I, J, K, L, or DD, respectively.  The purpose of these standards is to contain the waste, among other things.  Following are examples of standards for the design, operation, inspection, and closure/post-closure of these units.
   Design Standards 
   * Liners and leachate collection and removal systems
   * Air emission controls
   * Other control measures (e.g., dikes, run-on/run-off systems)
   Operating Standards  
         *       Controls and practices to prevent spills and overflows (e.g., maintenance of sufficient freeboard in uncovered tanks)
         *       Controls to prevent wind dispersal of particulate matter
         *       Special procedures for storing ignitable, reactive waste, and incompatible waste (e.g., waste segregation)
   Monitoring and Inspection Standards 
   * Periodic inspections to detect leaks and ensure the unit is in good working order (e.g., at least weekly for containers)
   * Periodic monitoring of leakage rates from surface impoundments and waste piles
   Closure and Post-Closure Care Standards   
   * Removal or decontamination of all waste residues, contaminated containment system components, contaminated soils, and structures/equipment contaminated with waste
   * Elimination of free liquids
   * Performance of post-closure care, if applicable (e.g., maintenance and monitoring)
	Air Emission Standards
EPA has established air emission standards at 40 CFR Parts 264 and 265, Subparts AA, BB, and CC.  They apply to LQG and TSDF containers, tanks, and other units as specified.  They are summarized below.
	Air Emission Standards for Process Vents at 40 CFR Parts 264 and 265, Subpart AA
Parts 264 and 265, Subpart AA applies to process vents associated with distillation, fractionation, thin-film evaporation, solvent extraction, or air or steam stripping operations that manage hazardous wastes with organic concentrations of at least 10 parts per million by weight (ppmw), if these operations are conducted in specified units (e.g., units subject to permitting requirements).  Facilities must design, operate, monitor, and maintain their process vents to either 1) reduce total organic emissions from all affected process vents at the facility below specified levels or 2) reduce, by use of a control device, total organic emissions from all affected process vents at the facility by 95 weight percent.  
Air Emission Standards for Equipment Leaks at 40 CFR Parts 264 and 265, Subpart BB
Parts 264 and 265, Subpart BB applies to equipment that contains or contacts hazardous wastes with organic concentrations of at least 10 percent by weight that are managed in specified unit types (e.g., units subject to permitting requirements).  Facilities must comply with the design, operation, inspection, monitoring, testing, maintenance, and recordkeeping standards for specified types of equipment (e.g., pumps, compressors, pressure relief devices).  
Air Emission Standards for Tanks, Surface Impoundments, and Containers at 40 CFR Parts 264 and 265, Subpart CC
Parts 264 and 265, Subpart CC applies to tanks, surface impoundments, and containers, except as otherwise specified.
Tanks.  Facilities must control air pollutant emissions from tanks in accordance with Tank Level 1 or Tank Level 2 controls, as specified (e.g., installing a fixed roof).  
Surface Impoundments.  Facilities must control air pollutant emissions from surface impoundments by using either a floating membrane cover or a cover that is vented through a closed-vent system to a control device, as specified.
Containers.  Facilities must control air pollutant emissions from containers in accordance with Container Level 1, 2, or 3 standards (e.g., use of containers that meet applicable DOT regulations).
Emergency Preparedness and Response
Emergency Equipment.  Facilities must comply with the preparedness and prevention requirements of Subpart C of 40 CFR Parts 264 and 265.  Subpart C requires that they be equipped with, test, and maintain emergency equipment, including internal and external communications and alarm systems, fire control equipment, and water, if needed for the hazards posed by waste handled at the facility.
Emergency Plan and Response.  Facilities must comply with the contingency plan and emergency procedures of Subpart D of 40 CFR Parts 264 and 265.  Subpart D requires that they designate an emergency coordinator and have a contingency plan designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water.  The emergency coordinator must carry out procedures for responding to fires, releases, and explosions, including:
   * Notify onsite and offsite personnel/agencies as specified;
   * Identify, assess, and control releases, fires or explosions and related hazards;
   * Taking other actions as specified (e.g., ensure treatment, storage, or disposal of recovered waste).
Security
Facilities must prevent the unknowing entry, and minimize the possibility for the unauthorized entry, of persons or livestock onto the active portion of the facility, unless specified otherwise, as required by 40 CFR 264.14 and 265.14. This must include a surveillance system or barrier (e.g., fence).
      Personnel Training
Facilities must comply with the personnel training requirements of 40 CFR 264.16 or 265.16.  Facilities must provide initial training and annual review, which teach facility personnel to perform their duties in a way that ensures the facility's compliance with applicable requirements.  It must ensure, at a minimum, that personnel are able to respond effectively to emergencies.  Specified records must be kept.
Reporting and Recordkeeping
Notification.  Under 40 CFR 264.11 and 265.11, every facility must apply to EPA for an EPA identification number in accordance with the EPA notification procedures.
Biennial Report.  40 CFR 264.75 and 265.75 require facilities to prepare and submit a single copy of a biennial report to EPA by March 1 of each even numbered year.  The report must include information about the facility, wastes received (e.g., from offsite) , management and disposal methods.
Discrepancy Report.  40 CFR 264.71 and 265.71 require a facility that receives an offsite shipment to note discrepancies between the waste and manifest.  The facility must attempt to reconcile the discrepancy.  If it cannot, it must submit a Discrepancy Report to EPA within 15 days, explaining the discrepancy and efforts to resolve it.
Recordkeeping.  40 CFR 264.73 and 265.73 require facilities to record and maintain the following information in an operating record (e.g., waste and unit descriptions, emergency incidents, inspection/monitoring results, notices and certifications).
      Financial Assurance
40 CFR Parts 264 and 265, Subpart H requires facilities to have and maintain a cost estimate for closure and, if applicable, post-closure.  They also must obtain financial assurance for closure and, if applicable, post-closure.  
In addition, facilities must maintain liability coverage for sudden accidental occurrences of at least $1 million per occurrence with an annual aggregate of at least $2 million.  Facilities with a surface impoundment, landfill, land treatment facility, or disposal miscellaneous unit as specified also must maintain liability coverage for non-sudden accidental occurrences in an amount of at least $3 million per occurrence with an annual aggregate of at least $6 million.
Subpart H identifies a variety of financial instruments for these purposes (e.g., trust fund, surety bond).
      Regulation of Residues
40 CFR 261.3(c) provides that any material derived from a listed hazardous waste is also a listed hazardous waste.
      Requirement for a Permit
40 CFR Part 270 requires a facility owner/operator to obtain a permit to treat, store or dispose of hazardous waste.  Owner/operators must have a permit during the active life (including closure period) of their hazardous waste management units.  Owner/operators of surface impoundments, landfills, land treatment units, and waste pile units also must have post-closure permits, unless they demonstrate closure by removal or decontamination s specified.  The permit specifies the requirements to which the facility is subject.  
      Public Involvement in the Permit Process
The RCRA permitting process is laid out at 40 CFR Parts 124 and 270. Following its basic elements, including public involvement methods:
   * Applicant holds a public meeting with the public prior to submitting the Part B RCRA permit application to EPA (e.g., to explain its facility).
   * The facility submits a Part A and Part B permit application to EPA or authorized state permitting agency that contains the information required in Part 270, Subpart B.  
   * Permitting agency will issue a public notice that an application has been received and where it is available for public review.  The agency will review the application for completeness and send a written notification to the applicant indicating whether the application is complete.
   * Once an application is complete, the agency will tentatively decide whether to issue or deny the permit.  If it decides to issue a permit, it will prepare a draft permit that contains requirements and conditions as specified.  If it decides to deny the permit, it will issue a notice of intent to deny.
   * The permitting agency will provide public notice of its intent to issue or deny the permit, along with a fact sheet.  The notice must be circulated in specified media (e.g., local papers, etc.) and allow at least 45 days for public comment.
   * The permitting agency will hold a public hearing whenever it receives written notice of opposition to a draft permit and a request for a hearing, as specified.  Whenever possible, it will schedule a hearing at a location convenient to the nearest population center to the proposed facility.  
   * After the close of the public comment period, the agency will either issue or deny the permit.  It also must prepare a written response to comments and make it publicly available.
      EPA/State Oversight and Enforcement
RCRA section 3007(c) requires annual inspections of federal TSDFs.  RCRA section 3007(d) requires annual inspections of state and local TSDFs.  RCRA section 3007(e) requires that other TSDFs be inspected no less than every 2 years. 
EPA's National Program Manager (NPM) Guidance for Fiscal Year 2010 establishes performance expectations and activities related to the TSDF universe for the EPA Regions and states.  It requires that they inspect at least once every two years each operating TSDF, as required under RCRA section 3007(e), i.e., 50% of the TSDF universe annually.  It also requires the EPA Regions to annually inspect each TSDF operated by states or local governments as required under RCRA section 3007(d).  
      5.2	Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste Exclusions  
      5.2.1	Generator-Controlled Exclusion (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23))  
The generator-controlled exclusion excludes from the definition of solid waste those hazardous secondary materials which remain under the control of the generator when legitimately reclaimed.  The exclusion can be claimed for materials that are:  
   * Generated and reclaimed at the generating facility;
   * Generated and reclaimed at different facilities, if the reclaiming facility is controlled by the generator or if both the generating facility and the reclaiming facility are controlled by a person as defined in 40 CFR 260.10; and
   * Generated pursuant to a written contract between a tolling contractor and a toll manufacturer and is reclaimed by the tolling contractor.  A tolling contractor means a person who arranges for the production of a product or intermediate made from specified unused materials through a written contract with a toll manufacturer.  Toll manufacturer means a person who produces a product or intermediate made from specified unused materials pursuant to a written contract with a tolling contractor.
The conditions and requirements of the exclusion are summarized below.
	Legitimate Recycling
The generator-controlled exclusion requires the reclamation of hazardous secondary material to be legitimate, as specified under 40 CFR 260.43.  
40 CFR 260.43(a) provides that persons regulated under 40 CFR 260.34 or claiming to be excluded from hazardous waste regulation under sections 261.2(a)(2)(ii), 261.4(a)(23), (24), or (25) because they are engaged in reclamation must be able to demonstrate that the recycling is legitimate.  Hazardous secondary material that is not legitimately recycled is discarded material and is a solid waste.  In determining if their recycling is legitimate, persons must address the requirements of 40 CFR 260.43(b) and must consider the requirements of 40 CFR 260.43(c).
40 CFR 260.43(b) provides that legitimate recycling must involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process, and the recycling process must produce a valuable product or intermediate as specified.
40 CFR 260.43(c) identifies factors that must be considered in making a determination as to the overall legitimacy of a specific recycling activity.  These factors relate to how the generator and reclaimer should manage the material (e.g., as a valuable commodity) and how closely the product of the recycling process resembles analogous products.  In making a determination that a hazardous secondary material is legitimately recycled, persons must evaluate all factors and consider legitimacy as a whole.  If, after careful evaluation of these other considerations, one or both of the factors are not met, then this fact may be an indication that the material is not legitimately recycled.  However, the factors do not have to be met for the recycling to be considered legitimate.  In evaluating the extent to which these factors are met and in determining whether a process that does not meet one or both of these factors is still legitimate, persons can consider other relevant factors.
      Storage Time Limit
The generator-controlled exclusion requires that the material not be speculatively accumulated, as defined in  40 CFR 261.1(c)(8).   40 CFR 261.1(c)(8) provides that a material is "accumulated speculatively" if it is accumulated before being recycled.  A material is not accumulated speculatively, however, if the person accumulating it can show that the material is potentially recyclable and has a feasible means of being recycled; and that -- during the calendar year (commencing on January 1) -- the amount of material that is recycled, or transferred to a different site for recycling, equals at least 75 percent by weight or volume of the amount of that material accumulated at the beginning of the period. 
      Containment
The generator-controlled exclusion requires that the material be contained.
      Air Emission Standards
The generator-controlled exclusion requires that the material be contained.
Emergency Preparedness and Response
The generator-controlled exclusion does not require emergency preparedness and response.
Personnel Training
The generator-controlled exclusion does not require personnel training.
Reporting and Recordkeeping
The generator-controlled exclusion requires notification to EPA in accordance with 40 CFR 260.42.  40 CFR 260.42 requires hazardous secondary material generators, tolling contractors, toll manufacturers, reclaimers, and intermediate facilities managing hazardous secondary materials which are excluded from regulation under  40 CFR 261.2(a)(2)(ii), 261.4(a)(23), (24), or (25) to send a notification prior to operating under the exclusion(s) and by March 1 of each even numbered year thereafter to EPA using EPA Form 8700 - 12.  The form must include the following types of information:
   * Information about the claimant and exclusion being claimed;
   * Description of the materials to be managed under the exclusion (e.g., quantity); and
   * Description of management methods.
      Offsite Transportation
The generator-controlled exclusion does not include provisions for offsite transportation.
      Exports
The generator-controlled exclusion does not include provisions for exporting material outside the U.S.  The exclusion requires that the material be generated and reclaimed within the United States or its territories.
      Regulation of Residues
The generator-controlled exclusion does not address how residues from the reclamation process should be managed under RCRA.
      5.2.2	Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste Transfer-Based Exclusion (40 CFR 261.4(a)(24) and (25))
The transfer-based exclusion excludes from the definition of solid waste those hazardous secondary materials that are generated and subsequently transferred to another company or person for the purpose of legitimate reclamation.  The conditions and requirements of the exclusion are summarized below.
      5.2.2.1	Hazardous Secondary Material Generators (40 CFR 261.4(a)(24) and (25))
      Legitimate Recycling
40 CFR 261.4(a)(24)(iv) requires that the reclamation of the material be legitimate, as specified under 40 CFR 260.43.  Section 2.1 of this appendix on RCRA summarizes the requirements for legitimate recycling under 40 CFR 260.43.
In addition,  40 CFR 261.4(a)(24)(v)(B) requires that, prior to arranging for transport of hazardous secondary materials to a reclamation facility (and any intermediate facility) where the management of the hazardous secondary materials is not addressed under a RCRA Part B permit or interim status standards, the generator must make reasonable efforts to ensure that each reclaimer intends to properly and legitimately reclaim the hazardous secondary material and not discard it, and that each facility will manage the hazardous secondary material in a manner that is protective of human health and the environment.  Reasonable efforts must be repeated at a minimum of every three years.   40 CFR 261.4(a)(24)(v)(B) sets forth a series of questions about the facility that the generator must affirmatively answer.  Section 3.2.10 of this appendix on RCRA presents these questions. 
      Storage Time Limit
40 CFR 261.4(a)(24)(i) provides that the material must not be speculatively accumulated, as defined in  40 CFR 261.1(c)(8).  Section 2.2 of this appendix on RCRA summarizes the speculative accumulation provisions of  40 CFR 261.1(c)(8).
      Containment
40 CFR 261.4(a)(24)(v)(A) requires that the material be contained.
      Air Emission Standards
40 CFR 261.4(a)(24)(v)(A) requires that the material be contained.
Emergency Preparedness and Response
The transfer-based exclusion does not include provisions for emergency preparedness and response.
Personnel Training
The transfer-based exclusion does not require personnel training.
Reporting and Recordkeeping
Reporting.  The transfer-based exclusion requires notification to EPA in accordance with 40 CFR 260.42.  Section 2.7 of this appendix on RCRA summarizes the notification requirement and types of information that must be submitted.
The generator must also make documentation and certification of its reasonable efforts available upon request by a regulatory authority within 72 hours, or within a longer period of time as specified by the regulatory authority, as required by  40 CFR 261.4(a)(24)(v)(C). 
Recordkeeping.  40 CFR 261.4(a)(24)(v)(C) requires the generator to maintain for a minimum of three years documentation and certification that reasonable efforts were made for each reclamation facility and, if applicable, intermediate facility where the management of the hazardous secondary materials is not addressed under a RCRA Part B permit or interim status standards prior to transferring hazardous secondary material.  The certification statement must include specified information.
 40 CFR 261.4(a)(24)(v)(D) and (E) require the generator to maintain at the generating facility for no less than three years records of all offsite shipments of hazardous secondary materials and confirmations of receipt from each reclaimer and, if applicable, each intermediate facility for all offsite shipments of hazardous secondary materials.
      Offsite Transportation
40 CFR 261.4(a)(24)(ii) requires the material not be handled by any person or facility other than the hazardous secondary material generator, the transporter, an intermediate facility or a reclaimer, and, while in transport, not be stored for more than 10 days at a transfer facility, and be packaged according to applicable Department of Transportation regulations at 49 CFR Parts 173, 178, and 179 while in transport.
 40 CFR 261.4(a)(24)(v)(D) requires the generator to maintain at the generating facility for no less than three years records of all off-site shipments of hazardous secondary materials. For each shipment, these records must, at a minimum, contain the following information: 
   * Name of the transporter and date of the shipment; 
   * Name and address of each reclaimer and, if applicable, the name and address of each intermediate facility to which the hazardous secondary material was sent; and
   * The type and quantity of hazardous secondary material in the shipment.
 40 CFR 261.4(a)(24)(v)(E) requires the generator to maintain at the generating facility for no less than three years confirmations of receipt from each reclaimer and, if applicable, each intermediate facility for all off-site shipments of hazardous secondary materials.  Confirmations of receipt must include the following information:
   * Name and address of the reclaimer (or intermediate facility);
   * Type and quantity of the hazardous secondary materials received; and
   * Date which the hazardous secondary materials were received. 
This requirement may be satisfied by routine business records (e.g., financial records, bills of lading, copies of DOT shipping papers, or electronic confirmations of receipt).
      Exports
40 CFR 261.4(a)(25) provides that hazardous secondary material that is exported from the United States and reclaimed at a reclamation facility located in a foreign country is not a solid waste, provided that the hazardous secondary material generator complies with the applicable requirements of  40 CFR 261.4(a)(24)(i) - (v) (excepting paragraph (a)(24)(v)(B)(2) for foreign reclaimers and foreign intermediate facilities).  The generator also must comply with  40 CFR 261.4(a)(25).  
Under  40 CFR 261.4(a)(25), the generator must notify EPA of an intended export before the hazardous secondary material is scheduled to leave the United States, as specified.  The export of hazardous secondary material is prohibited unless the receiving country consents (written or tacit) to the intended export.  When the receiving country consents to the receipt of the export, EPA will send an Acknowledgment of Consent (AOC) to the generator.  An AOC must accompany the shipment.  The generator must file an annual report with EPA no later than March 1 of each year, summarizing the types, quantities, frequency and destination of all materials exported.  The generator must keep a copy of the AOC and comply with the notification requirements of 40 CFR 260.42.  Section 2.7 of this appendix on RCRA summarizes the types of information that must be submitted under 40 CFR 260.42.
      Regulation of Residues
The transfer-based exclusion does not include regulations for generators to manage the residues of reclamation.  Under the exclusion, the materials must be generated and subsequently sent to an offsite facility for reclamation.
      5.2.2.2	Intermediate and Reclamation Facilities (40 CFR 261.4(a)(24))
      Legitimate Recycling
40 CFR 261.4(a)(24)(iv) requires that the reclamation of the material be legitimate, as specified under 40 CFR 260.43.  In addition, generators must make reasonable efforts as applicable to ensure that each facility intends to properly and legitimately reclaim the hazardous secondary material and not discard it, and that each facility will manage the hazardous secondary material in a manner that is protective of human health and the environment.  Section 5.2.2.1 of this appendix summarizes the requirements for legitimate recycling. 
 	Containment
40 CFR 261.4(a)(24)(vi)(D) requires the reclaimer and intermediate facility to manage the hazardous secondary material in a manner that is at least as protective as that employed for analogous raw material and must be contained.  An ``analogous raw material'' is a raw material for which a hazardous secondary material is a substitute and serves the same function and has similar physical and chemical properties as the hazardous secondary material.
      Air Emission Standards
Section 3.2.2 of this appendix on RCRA summarizes the requirement to contain the material.
Emergency Preparedness and Response
The transfer-based exclusion does not include requirements for emergency preparedness and response.
Security
The transfer-based exclusion does not include requirements for security.
      Personnel Training
The transfer-based exclusion does not require personnel training.
Reporting and Recordkeeping
Reporting.  The transfer-based exclusion requires notification to EPA in accordance with 40 CFR 260.42.   Section 2.7 of this appendix on RCRA summarizes the notification requirement and types of information that must be submitted.
Recordkeeping.  40 CFR 261.4(a)(24)(vi)(A) requires the reclaimer and intermediate facility to maintain at their facility for no less than three years records of all shipments of hazardous secondary material that were received at the facility and, if applicable, all shipments of hazardous secondary materials that were received and subsequently sent offsite from the facility for further reclamation. 
      Financial Assurance
40 CFR 261.4(a)(24)(vi)(F) requires the reclaimer and intermediate facility to have financial assurance as required under Subpart H of 40 CFR Part 261.
Subpart H requires facilities to have and maintain a cost estimate for closure.  They also must obtain financial assurance for closure.
In addition, facilities must have and maintain liability coverage for sudden accidental occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at least $2 million. A facility with land-based units used to manage hazardous secondary materials must have and maintain liability coverage for nonsudden accidental occurrences in the amount of at least $3 million per occurrence with an annual aggregate of at least $6 million.
Subpart H identifies a variety of financial instruments for these purposes (e.g., trust fund, surety bond).
      Regulation of Residues
40 CFR 261.4(a)(24)(vi)(E) provides that any residuals that are generated from reclamation processes must be managed in a manner that is protective of human health and the environment. If any residuals exhibit a hazardous characteristic according to Subpart C of 40 CFR Part 261, or if they themselves are specifically listed in Subpart D of 40 CFR Part 261, such residuals are hazardous wastes and must be managed in accordance with the applicable requirements of 40 CFR Parts 260 through 272.
      Requirement for a Permit
The transfer-based exclusion does not require the intermediate or reclamation facility to obtain a permit.  However, if the facility does not have a permit, it must undergo reasonable efforts by generators that intend to send their material to it, as required by  40 CFR 261.4(a)(24)(v)(B).  The generators must affirmatively answer all of the following questions for each reclamation facility and any intermediate facility:
   * Does the available information indicate that the reclamation process is legitimate pursuant to 40 CFR 260.43?
   * Does the publicly available information indicate that the reclamation facility and any intermediate facility that is used by the hazardous secondary material generator notified the appropriate authorities of hazardous secondary materials reclamation activities pursuant to 40 CFR 260.42 and have they notified the appropriate authorities that the financial assurance condition is satisfied per  40 CFR 261.4(a)(24)(vi)(F)?
   * Does publicly available information indicate that the reclamation facility or any intermediate facility that is used by the hazardous secondary material generator has not had any formal enforcement actions taken against the facility in the previous three years for violations of the RCRA hazardous waste regulations and has not been classified as a significant non-complier with RCRA Subtitle C?  If the reclamation facility or any intermediate facility that is used by the hazardous secondary material generator has had a formal enforcement action taken against the facility in the previous three years for violations of the RCRA hazardous waste regulations and has been classified as a significant non-complier with RCRA Subtitle C, does the hazardous secondary material generator have credible evidence that the facilities will manage the hazardous secondary materials properly?
   * Does the available information indicate that the reclamation facility and any intermediate facility that is used by the hazardous secondary material generator have the equipment and trained personnel to safely recycle the hazardous secondary material?
   * If residuals are generated from the reclamation of the excluded hazardous secondary materials, does the reclamation facility have the permits required (if any) to manage the residuals?  If not, does the reclamation facility have a contract with an appropriately permitted facility to dispose of the residuals?  If not, does the hazardous secondary material generator have credible evidence that the residuals will be managed in a manner that is protective of human health and the environment?
      Public Involvement in the Permit Process
The transfer-based exclusion does not include methods for public involvement.  
      5.3	Clean Air Act (CAA)
This section gives an overview of the Clean Air Act (CAA) regulation of emissions from stationary sources.  It also describes the CAA regulations related to chemical accident prevention.  A "stationary source" means any building, structure, facility, or installation which emits or may emit any air pollutant (e.g., factories, manufacturing plants).  
      5.3.1	CAA Title V Air Quality Permitting Process 
Title V of the Clean Air Act authorizes EPA to establish minimum elements to be included in all state and local operating permit programs and then assist the state and local governments in developing their programs.  Most Title V permits are issued by state and local permitting authorities under 40 CFR Part 70.  However, EPA also issues some Title V permits (e.g., to sources in Indian country) under Part 71.  The permit program involves public participation.  Draft Title V permits issued by authorized state agencies are published for public review and comment prior to issuance of a permit.  
All "major" stationary sources emitting certain air pollutants are required to obtain Title V operating permits.  A major source for hazardous air pollutants is defined as a source that emits more than 10 tons per year of any single Hazardous Air Pollutant (HAP) or more than 25 tons per year of HAPs in total.  In addition, a limited number of area sources (i.e., sources that do not meet the criteria for a major source) also may be required to obtain a permit under the federal regulatory program, e.g.:  
   * Hazardous waste combusters;
   * Portland cement manufacturers;
   * Mercury cell chlor-alkali plants;
   * Secondary lead smelters;
   * Carbon black production;  
   * Chemical manufacturing: chromium compounds; 
   * Primary copper smelting;
   * Secondary copper smelting;
   * Nonferrous metals area sources;
   * Glass manufacturing; and
   * Electric arc furnace (EAF) steelmaking facilities.
Title V operating permits contain air emissions permit limits, control requirements, and operating requirements for regulated air emissions sources.  Potentially applicable requirements that could be included in a permit can be found in various parts of 40 CFR, such as: 
   * Part 60: "Standards of Performance for New Stationary Sources (NSPS)."  This part regulates emissions from stationary sources of criteria pollutants for which EPA has established National Ambient Air Quality Standards (NAAQS); and
   * Part 63: "National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Categories."  This part regulates emissions of hazardous air pollutants (HAPs) from source categories.  
The table below gives examples of CAA technical standards that could be included in a permit to control air emissions.  These standards could potentially apply to some facilities claiming a DSW exclusion and address emissions from process vents, equipment leaks, and/or emissions from tanks, surface impoundments and containers.  
Also, state agencies have the regulatory authority to issue permits to minor sources of air emissions.  Emissions thresholds for the definition of "minor source" vary among state regulatory programs.
            Examples of Technical Standards under the Clean Air Act
Standards of Performance for New Stationary Sources at  40 CFR Part 60
Subpart Ka -- Standards of Performance for Storage Vessels for Petroleum Liquids.  The provisions of this subpart apply to each petroleum liquids storage vessel which has a storage capacity greater than 151,412 liters (40,000 gallons)  
Subpart Kb -- Standards of Performance for Volatile Organic Liquid Storage Vessels (Including Petroleum Liquid Storage Vessels). The provisions of this subpart apply to each volatile organic liquids storage vessel with a capacity greater than or equal to 75 cubic meters (m[3]) (approx. 20,000 gallons)  
Subpart VV and Subpart VVa -- Standards of Performance for Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry. The provisions of this subpart apply to affected facilities in the synthetic organic chemicals manufacturing industry, including production of chemical compounds as specified. These subparts include design, operating and other standards applicable to process vents and equipment leaks.
Subpart NNN -- Standards of Performance for Volatile Organic Compound (VOC) Emissions From Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation Operations. The provisions of this subpart apply to distillation unit vent streams and to combinations of a distillation unit and its associated recovery systems at facilities in the synthetic organic chemical manufacturing industry.  
National Emission Standards for Hazardous Air Pollutants from Source Categories at 40 CFR Part 63
Subpart F -- National Emission Standards for Organic Hazardous Air Pollutants From the Synthetic Organic Chemical Manufacturing Industry. The provisions of this subpart apply to facilities that manufacture as a primary product one or more of the synthetic organic chemicals listed in the subpart, as specified.
Subpart G -- National Emission Standards for Organic Hazardous Air Pollutants From the Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater.  The provisions of this subpart apply to synthetic organic chemical manufacturing industry facilities that are covered under Part 63, Subpart F (above).
Subpart H -- National Emission Standards for Organic Hazardous Air Pollutants for Equipment Leaks. The provisions of this subpart apply to synthetic organic chemical manufacturing industry facilities that are covered under Part 63, Subpart F (above).  
Subpart DD -- National Emission Standards for Hazardous Air Pollutants from Off-Site Waste and Recovery Operations.  The provisions of this subpart apply to facilities that are major sources of hazardous air pollutants and that receive "offsite material" for treatment (e.g., a waste or used solvent). 
Subparts OO, PP, QQ, WW  -  National Emission Standards for Tanks (Level 1), Containers, Surface Impoundments, and Storage Vessels (Level 2).  These subparts apply to the control of air emissions for the specified unit types for which another subpart of Parts 60-63 references the use of these subparts for such air emission control.
Subpart TT -- National Emission Standards for Equipment Leaks -- Control Level 1 and Subpart UU -- National Emission Standards for Equipment Leaks -- Control Level 2.  The provisions of these subparts apply to the control of air emissions from equipment leaks for which another subpart references the use of these subparts for such air emission control.

	5.3.2	CAA Standards for Area Sources Not Subject to Title V Permit
Area sources not subject to a Title V permit may still be subject to CAA regulation, depending on the applicability provisions of the particular regulation.  The area source would be required to notify EPA (or the delegated state agency) typically 120 days following promulgation, whether it is subject to the regulation.  The table below gives examples of CAA regulations that could apply to area sources that are exempt from a permit.  Some of these regulations could apply to the types of facilities that could claim a DSW exclusion.  For more information on area sources and applicable regulations, go to: http://www.epa.gov/ttn/atw/area/compilation.html.
      5.3.3	Chemical Accident Prevention Provisions
The Clean Air Act authorizes requirements for owner/operators of stationary sources concerning the prevention of accidental releases.  These requirements are codified at 40 CFR Part 68, "Chemical Accident Prevention Provisions." An owner/operator of a stationary source (e.g., a building or plant) that has more than a threshold quantity of a regulated substance in a process (e.g., storage) must comply with Part 68.  "Regulated substances" are toxic and flammable substances with threshold quantities listed in section 68.130.  There are 140 regulated substances with threshold quantities ranging from 500 to 20,000 pounds. 
Part 68 requires the owner/operator of a stationary source to develop a risk management plan (RMP) that describes the facility's risk management program. The RMP is made available to federal, state, and local government agencies and the public.  The owner/operator must develop its risk management program in accordance with the following program requirements:
   * Program 1:  Processes which would not affect the public in the case of a worst-case release and with no accidents with specified offsite consequences within the past five years are eligible for Program 1.
   * Program 2:  Processes not eligible for Program 1 or subject to Program 3 are placed in Program 2.
   * Program 3:  Processes not eligible for Program 1 and meeting other requirements (e.g., they are classified in one of ten specified North American Industrial Classification System (NAICS) codes) are placed in Program 3.
Following is a summary of the Part 68 requirements relevant to this analysis.
      Emergency Preparedness and Response
Owner/operators of a stationary source with a process eligible for Program 1 must designate a point of contact for emergency response and at least make arrangements with local response authorities.  
Owner/operators of a stationary source with a process subject to Program 2 or 3 have the option of either developing an emergency response program or making alternative arrangements, as follows:
   1.	Alternative Arrangements.  Owner/operators whose employees will not respond to accidental releases of regulated substances need not prepare an emergency response program provided that they meet the following:
      * For stationary sources with any regulated toxic substance held in a process above the threshold quantity, the stationary source is included in the community emergency response plan developed under 42 U.S.C. 11003 (i.e., the Emergency Planning and Community Right-To-Know Act of 1986);
      * For stationary sources with only regulated flammable substances held in a process above the threshold quantity, the owner or operator has coordinated response actions with the local fire department; and
      * Appropriate mechanisms are in place to notify emergency responders when there is a need for a response.
   2.	Emergency Response Program.  Owner/operators subject to Program 2 or 3 that do not make the above alternative arrangements must develop an emergency response program for protecting human health and the environment.  The emergency response program must include an emergency response plan that includes procedures for informing the public and local emergency response agencies about accidental releases, documentation for administering proper first-aid and emergency medical treatment as necessary, and procedures/measures for emergency response after an accidental release of a regulated substance.  It also must include procedures for using and maintaining emergency response equipment, personnel training in relevant procedures, and procedures to update the plan.  
      Personnel Training
Owner/operators of a stationary source with a process eligible for Program 1 are not required to conduct personnel training.  Owner/operators of a stationary source with a process subject to Program 2 or 3 must conduct initial and refresher training for personnel that operate a process.  The training must cover specified elements (e.g., normal operations, emergency shutdown and operations).  In addition, owner/operators must train their personnel in relevant procedures under their emergency response program (i.e., if the owner/operator develops an emergency response program instead of making alternative arrangements, as described above).
      5.4	Clean Water Act (CWA) -- Oil Pollution Prevention
The Clean Water Act authorizes requirements to prevent the discharge of oil from non-transportation-related onshore and offshore facilities into or upon the navigable waters of the United States or adjoining shorelines and other areas as specified.   These requirements are codified at 40 CFR Part 112, "Oil Pollution Prevention."
Part 112 establishes requirements for the preparation and implementation of Spill Prevention, Control, and Countermeasure (SPCC) Plans. SPCC Plans are designed to complement existing laws, regulations, rules, standards, policies, and procedures pertaining to safety standards, fire prevention, and pollution prevention rules. The purpose of an SPCC Plan is to form a comprehensive federal/state spill prevention program that minimizes the potential for discharges. The SPCC Plan must address all relevant spill prevention, control, and countermeasures necessary at the specific facility.  
In general, facilities subject to the SPCC requirements are non-transportation-related, have aboveground oil storage capacity of more than 1,320 gallons and completely buried oil storage capacity of 42,000 gallons or less, and could reasonably be expected to discharge oil to navigable waters or adjoining shorelines in quantities that may be harmful.  "Oil" means oil of any kind or in any form (e.g., petroleum, fuel oil, sludge, synthetic oils, mineral oils, oil refuse, or oil mixed with wastes other than dredged spoil).  
	Emergency Preparedness and Response
The SPCC Plan must detail the equipment, workforce, procedures, and steps to prevent, control, and provide adequate countermeasures to a discharge.  The Plan must address specified topics, such as:
   * Discharge prevention measures;
   * Countermeasures for discharge discovery, response, and cleanup; 
   * Containment and/or diversionary structures and equipment;
   *    Personnel responsibilities (e.g., for addressing discharges, offsite notifications);
   * Plans and procedures for responding to discharges.
      Personnel Training
Facilities must provide train their oil-handling personnel in the operation and maintenance of equipment to prevent discharges, discharge procedure protocols, applicable pollution control laws and regulations, general facility operations and the contents of the facility SPCC Plan. The facility must schedule and conduct discharge prevention briefings for its oil-handling personnel at least once a year to assure adequate understanding of the SPCC Plan for that facility. Such briefings must highlight and describe known discharges or failures, malfunctioning components, and any recently developed precautionary measures.
      5.5	Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)  -  Release Notifications
Notification requirements for releases of a reportable quantity of a hazardous substance are authorized under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) and Title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA).  Notification requirements are codified in 40 CFR Part 302, "Designation, Reportable Quantities, and Notification."
	Emergency Preparedness and Response
Section 302.6 requires that any person in charge of a vessel or an offshore or an onshore facility must, as soon as he or she has knowledge of any release of a hazardous substance (including any hazardous waste) from such vessel or facility in a quantity equal to or exceeding the reportable quantity (RQ) determined by Part 302 in any 24-hour period, immediately notify the National Response Center.  Such releases are also subject to state and local reporting under Section 304 of the Emergency Planning and Community Right-to-Know Act (EPCRA), also known as Title III of SARA. 
      5.6	Emergency Planning and Community Right-to-Know Act (EPCRA)  -  Release Notifications
Emergency planning and notification requirements for "extremely hazardous substances" (EHSs) are authorized under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) and EPCRA (also known as Title III of SARA).  Emergency planning and notification requirements for EHSs are codified at 40 CFR 355.  Part 355 is titled, "Emergency Planning and Notification."
	Emergency Preparedness and Response
Part 355 requires a facility to comply with its emergency release notification requirements if it produces, uses, or stores a hazardous chemical and releases a reportable quantity (RQ) of any extremely hazardous substances (EHS) or of a hazardous substance as defined by CERCLA (including any hazardous waste) at the facility.  The facility must immediately notify the community emergency coordinator for the local emergency planning committee of any area likely to be affected by the release as well as the State Emergency Response Commission of any state likely to be affected by the release.  The facility also must submit a follow-up notification as soon as practicable after the release to provide updated information. 
      5.7	Hazardous Materials Transportation Act of 1975 (HMTA)
      5.7.1	Overview and Applicability
The transportation of hazardous materials is regulated by the Hazardous Materials Transportation Act (HMTA), which is administered by the U.S. Department of Transportation (DOT).  HMTA provides DOT with a broad mandate to regulate the transport of hazardous materials, with the purpose of adequately protecting the U.S. against risk to life and property, which is inherent in the commercial transportation of hazardous materials.
DOT regulations that govern the transportation of hazardous materials are applicable to any person who transports, ships, causes to be transported or shipped, or who is involved in any way with the manufacture or testing of hazardous materials packaging or containers.  DOT regulations set forth packaging, handling, labeling, marking, placarding, operational, and routing standards.   These regulations include, among others:
   * Hazardous Materials Regulations; and
   * Transportation of Hazardous Materials; Driving and Parking Rules.
Following is a summary of these standards.
      5.7.2	Hazardous Materials Regulations
DOT's Hazardous Materials Regulations (HMR) are contained in 49 CFR Parts 100 through 180.  These regulations pertain to all modes of shipment (e.g., highway, air).  Following is a summary of selected regulations as relevant to this analysis.
	Personnel Training
49 CFR 172, Subpart H requires hazmat employers to train hazmat employees to perform duties under the HMR.  Training must be refreshed periodically and training records retained by the employer.  The training must cover general awareness/familiarization, function-specific training, safety, security awareness, and in-depth security, as specified.  In particular, their training on safety must include emergency response information (i.e., information that can be used in the mitigation of an incident involving hazardous materials, such as health hazards, risks of fire/explosions, methods for handling fires/spills).  
A "hazmat employer" is a person who employs or uses at least one hazmat employee and who is involved the transportation of hazardous materials as specified.  
A "hazmat" employee is a person who is employed by a hazmat employer or self-employed and who is involved in the transportation of hazardous materials as specified (e.g., loading, preparation for transportation, operation of a transportation vehicle).
      Offsite Transportation
Part 171 lays out general information, regulations and definitions.  It defines "hazardous materials" as those materials designated by the Secretary of the Department of Transportation as posing an unreasonable threat to the public and the environment.  The term "hazardous materials" includes all of the following: 1) hazardous substances, 2) hazardous wastes, 3) marine pollutants, 4) elevated temperature material, 5) materials identified in 49 CFR 172.101, and 6) materials that meet the defining criteria for hazard classes and divisions in contained in 49 CFR Part 173 (e.g., Class 1 explosives, Class 2 gases).
Part 172 lists and classifies those materials which the Department of Transportation has designated as hazardous materials for purposes of transportation and prescribes the requirements for shipping papers, package marking, labeling, and transport vehicle placarding applicable to the shipment and transportation of those hazardous materials.  Following is a summary of some of its subparts:
   * Subpart B  -  Table of Hazardous Materials and Special Provisions.  This table (located in §172.101) designates the materials listed therein as hazardous materials for the purpose of transportation of those materials.  The purpose of the table is to assign proper shipping names, class and division, and guidance for packaging and handling requirements for hazardous materials.  Note:  Additional hazardous materials are listed in Appendix A and B to section 172.101.
   * Subpart C  -  Shipping Papers.  The shipping document for hazardous materials must be prepared by the shipper and contain the proper shipping name, the hazard class or division of the material(s), ID number, and where appropriate, the packing group.  No shipper may transport a hazardous material unless it is accompanied by a shipping paper.  The shipper must certify and retain the shipping paper for 2 years.  Carriers must check to ensure that the material offered by the shipper is properly described, carry the shipping paper during transportation, and retain a copy for 2 years.  
   * Subpart D  -  Markings.  The basic marking requirement consists of the proper shipping name and ID number of the hazardous materials contained in a package.  Markings should be durable and not be obscured.  Additional marking requirements apply depending on the material.  Shippers may not offer and carriers may not transport unless the hazardous material markings apply to the material contained in the package.
   * Subpart E  -  Labeling.  Anyone who offers for transportation or transports a hazardous material must ensure that the package is properly labeled with the appropriate hazard class or division number.
   * Subpart F  -  Placarding.  Anyone who offers for transportation or transports a hazardous material must comply with applicable placarding requirements.  Each bulk packaging, freight container, unit load device, transport vehicle, or rail car containing any quantity of a hazardous material must be placarded on each side and each end with the applicable placarding requirements (specified in 49 CFR 172.504).
   * Subpart G  -  Emergency Response Information.  An emergency response number must be monitored at all times during transportation and at facilities where hazardous materials are loaded for transportation, stored incidental to transportation, or otherwise handled during any phase of transportation.  Emergency response information must appear on the shipping paper, describing the hazards of the material and procedures to be used in mitigation of an incident.
   * Subpart I  -  Security Plans.  Each employer must establish and implement a security plan and train their relevant employees on the security plan.
Parts 173 through180 lay out general requirements for shipments and packagings.  They also set forth requirements applicable to particular modes of transportation (e.g., rail, public highway).
      5.7.3	Transportation of Hazardous Materials; Driving and Parking Rules
49 CFR Part 397 is titled, "Transportation of Hazardous Materials, Driving and Parking Rules."  Part 397 applies to each motor carrier engaged in the transportation of hazardous materials by a motor vehicle that must be marked or placarded under 49 CFR Part 172, as specified.  These rules apply to each officer or employee who performs supervisory duties related to the transportation of hazardous materials and each person who operates the vehicle containing the hazardous materials. 
	Offsite Transportation
Subpart A of Part 397 provides that a motor vehicle that contains hazardous materials other than explosive materials and which is located on a public street or highway must be attended by its driver, unless the driver is performing duties that are incident and necessary as operator of the vehicle.  A motor vehicle which contains an explosive material must be attended at all times by its driver or a qualified representative of the motor carrier that operates it, except as otherwise specified.  In addition, a motor vehicle that contains hazardous materials other than explosive materials must not be parked near the traveled portion of a public street or highway.  A motor vehicle which contains explosive materials must not be parked under the circumstances specified in the rule (e.g., near or within a tunnel).
Subpart C of Part 397 provides that, for Non-Radioactive Hazardous Materials (NRHM), motor carriers must comply with State and Indian Tribe NRHM routing.  Placarded and marked vehicles that are not subject to NRHM routing from either a State or Indian Tribe must avoid heavily populated areas, tunnels, and other specified areas.  Deviations are allowed where no practical alternative exists or to reach terminals, rest and fueling stops, etc.  Deviations for operating convenience are not allowed.
      5.8	Occupational Safety and Health Act (OSH Act) 
The Occupational Safety and Health (OSH) Act was enacted to "assure safe and healthful working conditions for working men and women."  The OSH Act establishes the Occupational Safety and Health Administration (OSHA) at the federal level and applies to private sector workers in the U.S. with few exceptions (e.g., the self-employed).  It does not cover employees of state and local governments, except in states that have their own occupational safety and health plans that cover these workers.  It also does not cover worker conditions that are regulated under worker safety or health requirements of other federal agencies.  OSHA has established occupational safety and health regulations at 29 CFR Part 1910.
      5.8.1	Process Safety Management of Highly Hazardous Chemicals
OSHA established requirements for preventing or minimizing the consequences of catastrophic releases of toxic, reactive, flammable, or explosive chemicals at 29 CFR 1910.119, "Process Safety Management of Highly Hazardous Chemicals."  This standard applies to a process (e.g., use, storage, and handling) which involves 1) a chemical listed in Appendix A of section 1910.119 at or above the specified threshold quantity or 2) a flammable liquid or gas as defined in 29 CFR 1910.1200(c) that is onsite in one location in a quantity of 10,000 pounds or more, except as specified.  These chemicals are referred to as "highly hazardous chemicals."  Relevant requirements are described below.
	Emergency Preparedness and Response
The employer must establish and implement an evacuation plan for the entire plant.  The plan must include procedures for reporting a fire or other emergency; emergency evacuation, including type of evacuation and exit route assignments; operating critical plant operations before evacuation; accounting for all employees after evacuation; and performing rescue or medical duties.  In addition, the plan must include procedures for handling small releases.  
Employers covered under this standard may also be subject to the hazardous waste and emergency response provisions contained in 29 CFR 1910.120 (a), (p) and (q).
      Personnel Training
The employer must provide initial and recurrent training to each employee involved in operating a process.  Employees must be trained in an overview of the process and in operating procedures as specified (e.g., safety systems and functions).  The training must include emphasis on the specific safety and health hazards, emergency operations including shutdown, and safe work practices applicable to the employee's job tasks.  In addition, employers must train their employees on the implementation of an evacuation plan.
      5.8.2	Hazardous Waste Operations and Emergency Response (HAZWOPER)
OSHA established "Hazardous Waste Operations and Emergency Response" (HAZWOPER) at 29 CFR 1910.120.  29 CFR 1910.120(p) includes requirements that apply permitted and interim-status treatment, storage, and disposal facilities (TSDFs).  In addition, hazardous waste generators must comply with 29 CFR 1910.120(p)(8) regarding an emergency response program, as specified.  29 CFR 1910.120(q) includes requirements that apply to emergency response operations for releases of, or substantial threats of releases of, hazardous substances (including hazardous waste) without regard to the location of the hazard.  The term "emergency response" a response effort by employees from outside the immediate release area or by other designated responders (i.e., mutual aid groups, local fire departments, etc.) to an occurrence which results, or is likely to result, in an uncontrolled release of a hazardous substance. Responses to incidental releases of hazardous substances where the substance can be absorbed, neutralized, or otherwise controlled at the time of release by employees in the immediate release area, or by maintenance personnel are not considered to be emergency responses within the scope of this standard. Responses to releases of hazardous substances where there is no potential safety or health hazard (i.e., fire, explosion, or chemical exposure) are not considered to be emergency responses.  
      5.8.2.1	HAZWOPER Requirements at 29 CFR 1910.120(p)
29 CFR 1910.120(p) requires permitted and interim-status TSDFs to develop and implement a safety and health program that includes specified elements (e.g., medical surveillance, decontamination, emergency response).  These provisions do not apply to hazardous waste generators, except for emergency preparedness and response (i.e., 1910.120(p)(8)).  Specifically, generators who are required by the EPA or state agency to have their employees engage in emergency response or who direct their employees to engage in emergency response must comply with the requirements for an emergency response program.  Relevant requirements are described below.
	Emergency Preparedness and Response
Employers must develop and implement either an emergency response program or an evacuation plan.  Employers that develop an emergency response program must have an emergency response plan that includes specified elements (e.g., personnel roles, emergency recognition and prevention, personal protective equipment, emergency equipment).  Such plans need not duplicate any of the subjects fully addressed in the employer's contingency planning required by permits, such as those issued by the U.S. Environmental Protection Agency.  In addition, the employer must also follow procedures for handling emergency incidents (e.g., offsite reporting).  
Employers who will evacuate their employees from the worksite location when an emergency occurs and who do not permit any of their employees to assist in handling the emergency are exempt from the requirements for an emergency response program.  Rather, they must establish and implement an evacuation plan for the entire plant.  The plan must include procedures for reporting a fire or other emergency; emergency evacuation, including type of evacuation and exit route assignments; operating critical plant operations before evacuation; accounting for all employees after evacuation; and performing rescue or medical duties.  
   Personnel Training
Employers must provide initial and annual refresher training that is part of the employer's safety and health program. The training must be designed to enable employees to perform their assigned duties and functions in a safe and healthful manner so as not to endanger themselves or other employees.
In addition, employers must provide training for emergency response employees.  Such training must include the elements of the emergency response plan, standard operating procedures the employer has established for the job, the personal protective equipment to be worn and procedures for handling emergency incidents.
      5.8.2.2	HAZWOPER Requirements at 29 CFR 1910.120(q)
29 CFR 1910.120(q) sets forth requirements for emergency response programs for hazardous substance releases.  Relevant requirements are described below.
	Emergency Preparedness and Response
Employers must develop and implement either an emergency response program or an evacuation plan.  Employers that develop an emergency response program must have an emergency response plan that includes specified elements (e.g., personnel roles, emergency recognition and prevention, personal protective equipment, emergency equipment).  The employer must also follow procedures for handling emergency response (e.g., personnel responsibilities), training, medical surveillance, protective clothing, and post-emergency response operations.
Employers who will evacuate their employees from the danger area when an emergency occurs, and who do not permit any of their employees to assist in handling the emergency are exempt from the requirements for an emergency response program.  Rather, they must establish and implement an evacuation plan for the entire plant.  The plan must include procedures for reporting a fire or other emergency; emergency evacuation, including type of evacuation and exit route assignments; operating critical plant operations before evacuation; accounting for all employees after evacuation; and performing rescue or medical duties.  
	Personnel Training
Employers must provide initial and refresher training on emergency response.  The training must be based on the duties and function to be performed by each responder of an emergency response organization (e.g., first responders, hazardous materials technicians).  Topics to be covered by the training differ based on an employee's duties and functions.  Examples of topics include:
   * An understanding of what hazardous substances are, and the risks associated with them in an incident;
   * An understanding of the potential outcomes associated with an emergency created when hazardous substances are present;
   * The ability to recognize the presence of hazardous substances in an emergency;
   * The ability to identify the hazardous substances, if possible; and
   * The ability to realize the need for additional resources, and to make appropriate notifications to the communication center.
      5.8.3	Hazard Communication 
OSHA established "Hazard Communication" (HazCom) at 29 CFR 1910.1200.  The purpose of the HazCom Standard is to ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees.  This transmittal of information is to be accomplished by means of comprehensive hazard communication programs, which are to include container labeling and other forms of warning, material safety data sheets and employee training.  
The HazCom Standard applies to any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency.  The term "hazardous chemicals" means any chemical which is a physical hazard or a health hazard.  However, the HazCom Standard does not apply to RCRA hazardous waste.  
Relevant requirements are described below.
	Emergency Preparedness and Response
HazCom addresses emergency preparedness and response through information dissemination and training, described below.
	Personnel Training
Employers must provide specified information and training to employees.  Specifically, employees must be informed of the requirements of the HazCom Standard, any operations in their work area where hazardous chemicals are present, and the location and availability of the written hazard communication program, including the required list(s) of hazardous chemicals, and material safety data sheets required by this section.
Employers must provide training that includes, at least: 
   * Methods and observations that may be used to detect the presence or release of a hazardous chemical in the work area (such as monitoring conducted by the employer, continuous monitoring devices, visual appearance or odor of hazardous chemicals when being released;
   * The physical and health hazards of the chemicals in the work area;
   * The measures employees can take to protect themselves from these hazards, including specific procedures the employer has implemented to protect employees from exposure to hazardous chemicals, such as appropriate work practices, emergency procedures, and personal protective equipment to be used; and
   * The details of the hazard communication program developed by the employer.

                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
               Waste and Facility Classification Methodology
     Classification of Wastes as "Wastewaters" or "Nonwastewaters"
      Classification of waste streams into wastewaters" and "nonwastewaters" is important because wastewaters are generally dilute streams with low levels of recoverable material and are generally not amenable to recycling.  In classifying wastes as "wastewaters" or "nonwastewaters," it is important to consider that:  (1) the only concrete regulatory definition of wastewater under RCRA is specific to the Land Disposal Restrictions (LDR) Program (40 CFR Part 268) and (2) the Biennial Report does not contain a data element that indicates positively whether a hazardous waste is wastewater or nonwastewater according to this or any other definition.  Thus, EPA used a methodology that relies on some of the data reported to the Biennial Report to determine if a waste is a wastewater or nonwastewater.  The methodology uses both the form code and the management method code to make a reasonable judgment as to whether a particular waste is a wastewater or nonwastewater.  
      Note, that, in some instances, a waste may be managed using more than one type of management method (i.e., the waste may be associated with more than one management method code).  As a result, this waste may be classified as both a wastewater and a nonwastewater.  To ensure consistency in the classification of the wastes when dealing with generated and/or managed waste, the methodology was applied in two steps.  First, EPA applied the methodology to managed wastes.  Then, EPA applied the methodology to generated wastes, based on data developed for the managed wastes.   
      A detailed description of the methodology that was used to classify wastes as "wastewaters" or "nonwastewaters" is provided below.
Classification of Managed Wastes 
      To classify managed wastes, EPA used the following methodology:
      # If the waste  is represented by one of the following waste form codes, it was classified as a "wastewater:"
      
                                   Form Code
                             Form Code Description
                                     W101
Very dilute aqueous waste containing more than 99% water 
                                     W103
Spent concentrated acid 
                                     W105
Acidic aqueous wastes less than 5% acid
                                     W107
Aqueous waste containing cyanides
                                     W110
Caustic aqueous waste without cyanides
                                     W113
Other aqueous waste or wastewaters
                                     W119
Other inorganic liquid (specify in comments)
      
      # If the waste  lacks a waste form code that would support a wastewater or nonwastewater designation, but is managed using one of the following management methods, it was classified as "wastewater:"

                            Management Method Code
                      Management Method Code Description
                                     H071
Chemical reduction with or without precipitation
                                     H073
Cyanide destruction with or without precipitation
                                     H075
Chemical oxidation
                                     H076
Wet air oxidation
                                     H077
Other chemical precipitation with or without pre-treatment
                                     H081
Biological treatment with or without precipitation
                                     H082
Adsorption
                                     H083
Air or steam stripping
                                     H103
Absorption
                                     H121
Neutralization only
                                     H122
Evaporation
                                     H123
Settling or clarification
                                     H124
Phase separation
                                     H134
Deepwell or underground injection (with or without treatment)
                                     H135
Discharge to sewer (Publicly Owned Treatment Works [POTW] or surface water (National Pollutant Discharge Elimination System [NPDES] with prior storage - with or without treatment)

      # If the waste had not been classified as a wastewater in the previous steps, it was classified as "nonwastewater."

Classification of Generated Wastes 
      
      As described above, in some instances, a generated waste may be managed using more than one type of management method.  As a result, this waste may be classified as both a wastewater and a nonwastewater.  For example, a waste  represented by form code W604 (i.e., paint or ink sludges, still bottoms in sludge form) that is managed using H081 (i.e., biological treatment with or without prior precipitation) and H112 (i.e., macro-encapsulation prior to disposal at another site) would be classified as both a wastewater and nonwastewater; the portion of the waste  managed using H081 would be classified as a wastewater, while the portion of the waste  managed using H112 would be classified as a nonwastewater.
      
      Based on the above considerations and to ensure consistency with the classification of the managed wastes, the following approach was followed in classifying generated wastes as "wastewaters" or "nonwastewaters:"
      
      # If a managed waste was classified as "wastewater" only, the generated waste was also classified as "wastewater."
      
      # If a managed waste was classified as "nonwastewater" only, the generated waste was also classified as "nonwastewater."

      # If a managed waste  was classified as both "wastewater" and "nonwastewater:"
         
      o             Estimated the quantity of wastewater and nonwastewater associated with the waste. 
         
      o             Compared the estimated waste quantities and, based on the greater quantity, classified the waste as either "wastewater" or "nonwastewater."

      o             In instances in which the wastewater and nonwastewater quantities were the same, EPA referred to the form code to make a determination.  Wastes represented by the following form codes were classified as "wastewaters," While the remaining wastes were classified as "nonwastewaters."  

                                   Form Code
                             Form Code Description
                                     W101
Very dilute aqueous waste containing more than 99% water 
                                     W103
Spent concentrated acid 
                                     W105
Acidic aqueous wastes less than 5% acid
                                     W107
Aqueous waste containing cyanides
                                     W110
Caustic aqueous waste without cyanides
                                     W113
Other aqueous waste or wastewaters
                                     W119
Other inorganic liquid (specify in comments)


                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
               Waste Code Group Methodology
                                       
                                       

      Facilities may report multiple EPA hazardous waste codes for each waste, which can pose problems with double-counting when analyzing the data by waste code.  To make this type of analysis more manageable, a methodology was developed to map waste code combinations into a single, unique code that applies to the entire waste stream.  These mutually exclusive codes are referred to as "waste code groups."

      In general, the methodology prioritizes waste codes that provide the most specific information regarding what makes the waste hazardous.  Most waste code groups correspond to an EPA hazardous waste code, indicating that either the waste does not include any similar or more specific waste codes (e.g., wastes that only include a single waste code).  The remaining waste code groups correspond to "families" of codes, indicating that a group of similar waste codes comprise the most specific waste codes reported (e.g., wastes  with multiple Toxicity Characteristic (TC) Metals [D004-D011] may be assigned the code "TCMT").
      
      The waste code group methodology consists of 27 steps that were implemented in a step-wise manner, following an established hierarchical order.  That is, if a waste's waste codes met the criteria at a given step, it was assigned to the corresponding waste code group for that step and the methodology ended.  However, if a waste's waste codes did not meet the criteria for the step, the methodology continued to the next step until the waste was assigned to a waste code group.  
      
      A detailed description of the logic used to define the waste code groups and assign individual waste streams to each of these groups is provided below, and summarized in Exhibit C-2. 

Wastes Represented by a Single EPA Hazardous Waste Code
      
      1. The waste was assigned to the waste code group associated with the reported EPA hazardous waste code.
   
         Example:	A waste represented by "D001," was assigned to the "D001" waste code group.

Wastes  Represented by Multiple EPA Hazardous Waste Codes

      2. If the list of waste codes representing the waste included "LABP" (or Lab Packs), the waste was assigned to the "LABP" waste code group.  Note that, in addition to the "LABP" waste code, the list of waste codes for this waste could include any K, F, U, P, or D waste code(s).  
      
         Example:	A waste represented by "D003;D011;LABP;P104;P106," was assigned to the "LABP" waste code group.

      3. If the list of waste codes representing the waste included "F039," the waste  was assigned to the "F039" waste code group.  Note that, in addition to the "F039" waste code, the list of waste codes for this waste could include any K, F, U, P, or D waste code(s).  
      
         Example:	A waste represented by "F039;K027;U221;U223," was assigned to the "F039" waste code group.

      4. If the list of waste codes representing the waste included a single K waste code, the waste was assigned to the waste code group associated with the reported K waste code.  Note that, in addition to the reported K waste code, the list of waste codes for this waste could include any F, U, P, or D waste code(s).  

         Example:	A waste represented by "D004;D007;F032;F035;K001," would be assigned to the "K001" waste code group.

      5. If the list of waste codes representing the waste included multiple K048-K052 waste codes, the waste was assigned to the "KPET" waste code group.  Note that, in addition to the reported K048-K052 waste codes, the list of waste codes for this waste could include any F, U, P, or D waste code(s).  The list of waste codes may not include any other K code.  
   
         Example:	A waste represented by "D001;D003;D018;F037;K050;K051," was assigned to the "KPET" waste code group.
   
      6. If the list of waste codes representing the waste included multiple K waste codes (other than multiple K048-K052 wastes codes), the waste was assigned to the "KXXX" waste code group.  Note that, in addition to the reported K waste codes, the list of waste codes for this waste could include any F, U, P, or D waste code(s).
   
         Example:	A waste represented by "D018;K171;K172;U220," was assigned to the "KXXX" waste code group.
   
      7. If the list of waste codes representing the waste included a single F waste code (other than F039), the waste  was assigned to the waste code group associated with the reported F waste code.  Note that, in addition to the reported F waste code, the list of waste codes for this waste  could include any U, P, or D waste code(s).  
   
         Example:	A waste represented by "D001;D002;D003;F002;U044," was assigned to the "F002" waste code group.

      8. If the list of waste codes representing the waste included multiple F001-F005 waste codes, the waste was assigned to the "F1_5" waste code group.  Note that, in addition to the reported F001-F005 waste codes, the list of waste codes for this waste could include any U, P, or D waste code(s).  The list of waste codes may not include any other F code.  
   
         Example:	A waste represented by "D001;D039;F001;F005," was assigned to the "F1_5" waste code group.
   
      9. If the list of waste codes representing the waste includes multiple F006-F009 waste codes, the waste  was assigned to the "F6_9" waste code group.  Note that, in addition to the reported F006-F009 waste codes, the list of waste codes for this waste could include any U, P, or D waste code(s).  The list of waste codes may not include any other F code.  
   
         Example:	A waste represented by "D003;D008;F007;F008;P106," was assigned to the "F6_9" waste code group.

      10. If the list of waste codes representing the waste included multiple F010-F012 waste codes, the waste was assigned to the "F10_12" waste code group.  Note that, in addition to the reported F010_-F012 waste codes, the list of waste codes for this waste could include any U, P, or D waste code(s).  The list of waste codes may not include any other F code.  
   
         Example:	A waste represented by "D003;F010;F011," was assigned to the "F10_12" waste code group.

      11. If the list of waste codes representing the waste includes multiple F020-F028 waste codes, the waste  was assigned to the "F20S" waste code group.  Note that, in addition to the reported F020-F028 waste codes, the list of waste codes for this waste could include any U, P, or D waste code(s).  The list of waste codes may not include any other F code.  
         
         Example:	A waste  represented by "D037;D042;F021;F027," was assigned to the "F20S" waste code group.

      12. If the list of waste codes representing the waste included multiple F032-F035 waste codes, the waste was assigned to the "F30S" waste code group.  Note that, in addition to the reported F032-F035 waste codes, the list of waste codes for this waste could include any U, P, or D waste code(s).  The list of waste codes may not include any other F code.  
         
         Example:	A waste represented by "F032;F034," was assigned to the "F30S" waste code group.

      13. If the list of waste codes representing the waste included multiple F037-F038 waste codes, the waste was assigned to the "PSLU" waste code group (i.e., petroleum sludges).  Note that, in addition to the reported F037-F038 waste codes, the list of waste codes for this waste could include any U, P, or D waste code(s).  The list of waste codes may not include any other F code.  
         
         Example:	A waste represented by "D018;F037;F038," was assigned to the "PSLU" waste code group.

      14. If the list of waste codes representing the waste included multiple F waste codes (other than the combination of F waste codes noted above), the waste was assigned to the "FMIX" waste code group.  Note that, in addition to the reported F waste codes, the list of waste codes for this waste could include any U, P, or D waste code(s).

         Example:	A waste represented by "D001;D026;F003;F032;U188," was assigned to the "FMIX" waste code group.

      15. If the list of waste codes representing the waste included a single U waste code and no P waste codes, the waste was assigned to the waste code group associated with the reported U waste code.  Note that, in addition to the reported U waste code, the list of waste codes for this waste could include any D waste code(s).  

         Example:	A waste represented by "D002;U001," was assigned to the "U001" waste code group.

      16. If the list of waste codes representing the waste included multiple U waste codes and no P waste codes, the waste was assigned to the "UMIX" waste code group.  Note that, in addition to the reported U waste codes, the list of waste codes for this waste could include any D waste code(s).  

         Example:	A waste represented by "D001;U118;U162," was assigned to the "UMIX" waste code group.

      17. If the list of waste codes representing the waste  included a single P waste code and no U waste codes, the waste was assigned to the waste code group associated with the reported P waste code.  Note that, in addition to the reported P waste code, the list of waste codes for this waste  could include any D waste code(s).    

         Example:	A waste represented by "D001;D003;D004;P001," was assigned to the "P001" waste code group.

      18. If the list of waste codes representing the waste included a combination of U and P waste codes, the waste was assigned to the "U&PS" waste code group.  Note that, in addition to the reported U and P waste codes, the list of waste codes for this waste could include any D waste code(s).  

         Example:	A waste represented by "D001;P022;P098;P119;U239," was assigned to the "U&PS" waste code group.

      19. If the list of waste codes representing the waste includes multiple P waste codes and no U waste codes, the waste was assigned to the "PMIX" waste code group.  Note that, in addition to the reported P waste codes, the list of waste codes for this waste could include any D waste code(s). 
      
         Example:	A waste represented by "P012;P105;P119," was assigned to the "PMIX" waste code group.
   
      20. If the list of waste codes representing the waste  included a single D waste code and one or more invalid waste codes, the waste  was assigned to the waste code group associated with the reported D waste code.  

         Example:	A waste represented by "0000;D008," was assigned to the "D008" waste code group.

      21. If the list of waste codes representing the waste included one of the D004-D017 waste codes and one or more of the D001-D003 waste codes, the waste  was assigned to the waste code group associated with the reported D004-D017 waste code.  The list of waste codes could not include any other D code.  

         Example:	A waste represented by "D001;D002;D007," was assigned to the "D007" waste code group.

      22. If the list of waste codes representing the waste included multiple D004-D011 waste codes and one or more of the D001-D003 waste codes, the waste  was assigned to the "TCMT" waste code group (i.e., TC metals).  The list of waste codes could not include any other D code.  

         Example:	A waste represented by "D001;D007;D008," was assigned to the "TCMT" waste code group.

      23. If the list of waste codes representing the waste included multiple D012-D017 waste codes and one or more of the D001-D003 waste codes, the waste was assigned to the "PEST" waste code group (i.e., TC pesticides).  The list of waste codes could not include any other D code.  

         Example:	A waste represented by "D016;D017," was assigned to the "PEST" waste code group.

      24. If the list of waste codes representing the waste  included one or more of the D018-D043 waste codes and one or more of the D001-D003 waste codes, the waste  was assigned to the "TCORICR" waste code group (i.e., TC organic with ignitable, corrosive, or reactive).  The list of waste codes could not include any other D code.  

         Example:	A waste represented by "D001;D018," was assigned to the "TCORICR" waste code group.

      25. If the list of waste codes representing the waste included multiple D018-D043 waste codes, the waste was assigned to the "TCOR Only" waste code group (i.e., TC organics only).  The list of waste codes could not include any other D code.  

         Example:	A waste represented by "D019;D022," was assigned to the "TCOR Only" waste code group.

      26. If the list of waste codes representing the waste included multiple D001-D003 waste codes, the waste  was assigned to the "ICR" waste code group (i.e., ignitable, corrosive, or reactive).  The list of waste codes could not include any other D code.  

         Example:	A waste represented by "D001;D003," was assigned to the "ICR" waste code group.

      27. If the list of waste codes representing the waste included multiple D waste codes (other than the combination of D codes noted above), the waste stream was assigned to the "DMIX" waste code group.  
      
         Example:	A waste represented by "D002;D004;D011;D028;D035," was assigned to the "DMIX" waste code group.
                                       
                                       
                  Exhibit C-1:  Waste Code Group Methodology
                                  Step Number
                     Reported EPA Hazardous Waste Code(s)
                               Waste Code Group
                                       
                                 Most Specific
                                 Waste Code(s)
                   Other Waste Code(s)
that May Be Present 

                                       1
Single waste code
None
Same waste code as reported
                                       2
Lab packs with no identified code (i.e., "LABP")
Any K, F, U, P, or D waste code(s)
LABP
                                       3
F039
Any K, F, U, P, or D waste code(s)
F039
                                       4
Single K code
Any F, U, P, or D waste code(s)
Single K code
                                       5
K048-K052 combinations only
Any F, U, P, or D waste code(s)
No other K waste codes
KPET
                                       6
K code combinations
Any F, U, P, or D waste code(s)
KXXX
                                       7
Single F code
Any U, P, or D waste code(s)
Single F code
                                       8
F001-F005 combinations
Any U, P, or D waste code(s)
No other F waste codes
F1_5
                                       9
F006-F009 combinations
Any U, P, or D waste code(s)
No other F waste codes
F6_9
                                      10
F010-F012 combinations
Any U, P, or D waste code(s)
No other F waste codes
F1012
                                      11
F020-F028 combinations
Any U, P, or D waste code(s)
No other F waste codes
F20S 
                                      12
F032-F035 combinations
Any U, P, or D waste code(s)
No other F waste codes
F30S
                                      13
F037/F038 combinations
Any U, P, or D waste code(s)
No other F waste codes
PSLU (Petroleum sludges)
                                      14
Any other F mixtures
Any U, P, or D waste code(s)
FMIX
                                      15
A single U code
Any D waste code(s)
No P waste codes
The U code
                                      16
U mixtures
Any D waste code(s)
No P waste codes
UMIX
                                      17
A single P code
Any D waste code(s)
No U waste codes
The P code
                                      18
U and P mixtures
Any D waste code(s)
U&PS
                                      19
P mixtures
Any D waste code(s)
PMIX
                                      20
A single D code
Any invalid code
The D code
                                      21
Any single D004-D017 code
One or more D001-D003 code
The D code (D004-D017)
                                      22
D004-D011 combinations
One or more D001-D003 code
TCMT (TC Metals)
                                      23
D012-D017 combinations
One or more D001-D003 code
PEST (TC Pesticides)
                                      24
One or more D018-D043 code
One or more D001-D003 code
TCORICR (TC organic with ICR)
                                      25
D018-D043 combinations
None
TCOR Only (TC organics only)
                                      26
D001-D003 combinations only
None
ICR (Ignitable, Corrosive, or Reactive)
                                      27
Any other D mixtures
None
DMIX
                                          
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
               Methodology for Identifying Potentially Recyclable Hazardous Wastes
                                       
                                       

The Regulatory Impact Analysis (RIA) developed for the Definition of Solid Waste (DSW) Rule uses a two-step data screening (i.e., data selection) process or methodology to identify potentially recyclable hazardous wastes.  This methodology is applied to wastes reported to the Biennial Report that are managed through methods other than recycling (i.e., methods other than metals recovery, solvents recovery, or other recovery).

      A detailed description of the methodology for identifying potentially recyclable hazardous wastes is provided below. 

Step 1:	Primary screening criteria to identify wastes disposed of containing constituents of potential commodity value

	The first data screening step is structured according to each of the three Biennial Report recycling methods:  metals recovery, solvent recovery, and other recovery.  Each materials recovery method is categorized as a "commodity group" according to the respective types of materials involved in each of these three recovery methods.   EPA identified and assigned the screening codes based on determining whether each of the codes pertained to metals, solvents, or to other types of materials contained in the wastes which might be amenable for recovery in the three commodity groups.  

Possible Metals Recovery
   
         #          If the waste  is represented by one of the following waste form codes, it is assigned to this commodity group:
      
                                   Form Code
                             Form Code Description
                                     W107
Aqueous waste containing cyanides
                                     W117
Waste liquid mercury
                                     W303
Ash
                                     W304
Slags, drosses, and other solid thermal residues
                                     W307
Metal scale, filings and scrap (including metal drums)
                                     W312
Cyanide or metal cyanide bearing solids, salts or chemicals
                                     W316
Metal salts or chemicals not containing cyanides
                                     W501
Lime and/or metal hydroxide sludges and solids with no cyanides
                                     W505
Metal bearing sludges (including plating sludge) not containing cyanides
                                     W506
Cyanide-bearing sludges
      
         #          If the waste  is not associated with any of the above waste form codes, but is represented by one of the following source codes, it is assigned to this commodity group:

                                  Source Code
                            Source Code Description
                                      G03
Plating and phosphating (electro- or non-electroplating or phosphating)
                                      G04
Etching (using caustics or other methods to remove layers or partial layers)

         #          If the waste  is not associated with any of the above waste form or source codes, but is represented by one of the following EPA hazardous waste codes, it is assigned to this commodity group:

                                  Waste Code
                            Waste Code Description
                                     D005
Barium
                                     D006
Cadmium
                                     D007
Chromium
                                     D008
Lead
                                     D009
Mercury
                                     D010
Selenium
                                     D011
Silver
                            F006, F007, F008, F009
Metal electroplating
                               F010, F011, F012
Metal heat treating
                                     F019
Sludge from conversion coating of aluminum
                                     F035
Inorganic wood preservative waste (arsenic or chromium)
                               K002, K003, K004,
                            K005, K006, K007, K008
Inorganic pigment mfg sludge & residues (listed for chromium)
                               K064, K065, K066,
                               K069, K086, K100
Lead- or chromium-bearing
                                     K061
Iron & steel mfg emission dust
                               K071, K073, K106,
                               K176, K177, K178
Inorganic chemical manufacturing
                                  K171, K172
Petroleum refining spent catalysts

         #          Note that, if the waste stream is represented by waste form code W312 (cyanide or metal cyanide bearing solids, salts or chemicals) and EPA hazardous waste code K088 (aluminum production spent potliners), it is moved from Commodity Group #1 (Possible Metals Recovery) to Commodity Group #3 (Possible Other Recovery).  Wastes that fit this description are generally not recycled by metals recovery, but by other recovery processes.  

Possible Solvents Recovery

         #          If the waste  is represented by one of the following waste form codes, it is assigned to this commodity group:
      
                                   Form Code
                             Form Code Description
                                     W202
Concentrated halogenated (e.g., chlorinated) solvent
                                     W203
Concentrated non-halogenated (e.g., non-chlorinated) solvent
                                     W204
Concentrated halogenated/ non-halogenated solvent mixture
                                     W209
Paint, ink, lacquer, or varnish
                                     W211
Paint thinner or petroleum distillates
      
         #          If the waste  is not associated with any of the above waste form codes, but is represented by one of the following source codes, it is assigned to this commodity group:

                                  Source Code
                            Source Code Description
                                      G01
Dip, flush or spray rinsing (using solvents to clean or prepare parts or assemblies for further processing - i.e. painting or assembly)
                                      G06
Painting and coating (manufacturing, building, or maintenance)

         #          If the waste  is not associated with any of the above waste form or source codes, but is represented by one of the following EPA hazardous waste codes, it is assigned to this commodity group:

                                  Waste Code
                            Waste Code Description
                                  F001, F002,
                               F003, F004, F005
Spent solvents
                                  F024, F025
Chlorinated aliphatic manufacturing
                                     K086
Solvent washes of ink equipment

Possible Other Recovery (Carbon Regeneration and Sodium Fluoride)

         #          If the waste  is represented by  the following waste form code, it is assigned to this commodity group:
      
                                   Form Code
                             Form Code Description
                                     W310
Filters, solid adsorbents, ion exchange resins and spent carbon (spent carbon only)
      
         #          If the waste  is not associated with  the above waste form code, but is represented by the following EPA hazardous waste code, it is assigned to this commodity group:

                                  Waste Code
                            Waste Code Description
                                     K088
Aluminum production spent potliners (sodium fluoride)

         #          Note that, if the waste is represented by waste form code W312 (cyanide or metal cyanide bearing solids, salts or chemicals) and EPA hazardous waste code K088 (aluminum production spent potliners), it is moved from Commodity Group #1 (Possible Metals Recovery) to Commodity Group #3 (Possible Other Recovery).  Wastes that fit this description are generally not recycled by metals recovery, but by other recovery processes.  

Step 2:	Secondary screening criteria (physical quality)

	The purpose of these secondary screening criteria is to introduce a consideration of the anticipated physical quality of the waste.  The secondary screening criteria consist of six elements as follows:

(1)       Remove wastes that were residuals from hazardous waste management processes.  Residuals generated by either (a) current materials recovery operations (H010, H020, H039), (b) energy/fuel recovery operations (H050, H061), or (c) thermal destructive treatment processes (H040), are assumed not to have a high content of recoverable material and are assumed will continue to be disposed.  This corresponds to removing wastes with source code G25.  Wastes that are disposed of with RCRA waste codes F006 and F007 were retained because these potentially recoverable wastes were often reported using this source code because they are derived from wastewater treatment processes.

(2)       Remove wastes generated from industrial processes that are not continuous (e.g., those generated from remediation or one-time industrial activities).  The material values from these wastes are less likely to be recoverable given they are not generated in a controlled process environment (i.e., remediation wastes involve spills and releases to the environment).  Given their one-time nature of generation, generators are unlikely to go through the notification process to the Agency for an exclusion from the definition of solid waste for a one-time waste generation event.  This corresponds to removing baseline disposal data records corresponding to three sets of non-continuous source codes:  (a) spills and accidental releases G31, G32, G33, G39, (b) remediation of past contamination G41, G42, G43, G44, G45, G49, and (c) non-periodic activities G12, G15, G19.
      
(3)       Remove wastes with waste descriptions containing the word "debris" from the data set.  The material values from these wastes are less likely to be recoverable given they are not generated in a controlled process environment.  Given their one-time nature of generation, generators are unlikely to go through the notification process to the Agency for an exclusion from the definition of solid waste for a one-time waste generation event.

            
(4)       Remove wastes with waste descriptions indicating they are "rinsewaters" or "groundwaters" to ensure the physical makeup of the waste (i.e., the minimal recoverable material concentration) is technically sufficient for recovery.  These dilute aqueous-based wastes typically do not contain recoverable fractions of valuable materials.  This screening criterion was only applied to wastes with no reported form code.  Normally wastes like these would have a reported form code of W101-- very dilute aqueous waste containing more than 99% water and W105-- acidic aqueous wastes with less than 5% acid.

(5)       Remove some miscellaneous wastes: 

         #               On-site Commodity Group #2 quantities were primarily managed by non-beneficial incineration (H040), or by beneficial energy recovery (H050), or beneficial fuel blending (H061).  For the purposes of the RIA, it was assumed that facilities that generate and managed wastes on site via beneficial energy or fuel recovery (i.e., H050 or H061) will not change to a materials recovery process under the 2008 DSW final rule exclusions.  All these processes require relatively large on-site capital investments and air pollution control permitting costs, which make it less likely that on-site H040, H050 or H061  wastes will switch over to materials recovery under the 2008 DSW final rule. .  This corresponds to removing wastes corresponding to on-site management involving H040, H050 and H061.  Note, however, that the RIA does not remove wastes corresponding to off-site management involving H040, H050, and H061.
        
         #               All records with form code W310 not containing the word "carbon" or "charcoal" in the waste description were deleted.  This is necessary because the definition of the W310 physical/chemical form code allows reporting together in this single code for four different types of materials:  (1) filters, (2) solid adsorbents, (3) ion exchange resins, and (4) spent carbons.  Because of the lack of characterizing data on the other three waste types -- filters, solid adsorbents, and ion exchange, only spent carbon from these four waste types is evaluated.

(6)       Because of the fact there are tens of thousands of individual wastes  in the Biennial Report for any given data year, it was beyond the time and resource constraints of the RIA to individually examine each narrative comment for wastes  containing the "other" code sub-categories.  This corresponds to removing wastes for H129 "other treatment."  The "other" form codes already were removed by their exclusion from the "primary" screening selection criteria.

                                       
                                       
                                       
                                       
               Statistical Calculations

Affected Population Ratio

The Affected Population Ratio is calculated as follows. 

There is a disparity if pr1/pr2 != 1,

where 		

pr1			=	prob(within 3-km of facility | in demographic group)

pr2			=	prob(within 3-km of facility | not in demographic group)

pr1/pr2			=	the Affected Population Ratio.

Demographic Ratio

The Demographic Ratio is calculated as follows:

There is a disparity if pr3/pr4 != 1, 

where

pr3		=	prob(in demographic group | within 3-km of facility)

pr4		=	prob(in demographic group | not within 3-km of facility).

pr3/pr4		=	the Demographic Ratio.

Fisher Exact Test

The Fisher Exact test is calculated as follows (Kendall and Stuart, 1973, sections 33.19 and 33.20):
The Fisher Exact Test calculates the probability that the demographic distributions of the affected and non-affected populations are as or more extreme than the observed counts. Let H be the total number in the demographic group and N be the total number not in the demographic group. Let A be the total number living within 3 km of a facility and let U be the total number not living within 3 km of a facility. Let x be the number of persons in the demographic group that also live within 3 km of a facility. Given the values of H, N, A, and U, the Fisher Exact Test probability (p-value) is twice the sum of the probabilities of all possible x values equal to or above the observed x (but cannot be more than 1). When some of H. N, A, and U are too large, the software is unable to compute the p-value which is reported as "N/A" and in such cases the Kendall Test results can be used as a good approximation.

Kendall Test

      The Kendall test is calculated as follows (Kendall and Stuart 1973, sec 33.22):
      
      Std Error (pr1-pr2) 	= 	[q(1-q){n/(n-1)}{(1/H + 1/N)} ]1/2

   SD			=	(pr1-pr2)/[ Std Error (pr1-pr2)]
				=	(pr1-pr2)/[ q(1-q){n/(n-1)}{(1/H + 1/N)}]1/2, 
      
where		n = total population, 
      	q = total within 3-km of facilities/n, 
      	H = total in demographic group, and 
      	N = total not in demographic group, and
 	SD = the number of standard deviations that the difference (pr1-pr2) is away from 0, the value indicating no disparity under the null hypothesis. 

Mantel-Haenszel Common Relative Risk

The procedure developed by Mantel and Haenszel (see Agresti, 2002) was used to estimate the overall Affected Population Ratio and Demographic Ratio for all states that have one or more facilities. Assume that all the states have the same underlying Affected Population Ratio. Using the notation in the above table, the Affected Population Ratio for a given state is estimated by {a / (a + b)} / {c / (c +d)}. The common Affected Population Ratio is estimated using the formula

Common Affected Population Ratio = {∑ a(c + d) / n} / {∑ c(a + b) / n},

where each sum is over all the tables for the individual states. It can be shown that this value is a weighted average of the state-specific Affected Population Ratios.

In a similar manner, the Demographic Ratio for a given state is estimated by {a / (a + c)} / {b / (b +d)}. The common Demographic Ratio is estimated using the formula

Common Demographic Ratio = {∑ a(b + d) / n} /  {∑ b(a + c) / n},

where each sum is over all the tables for the individual states. It can be shown that this value is a weighted average of the state-specific Demographic Ratios.

Cochran-Mantel-Haenszel Test

The procedure developed by Cochran, Mantel and Haenszel (see Cochran, 1954 and Mantel and Haenszel, 1959) was used to test whether there was a disparity in one or more of the states that have one or more facilities. The null hypothesis is that the underlying Threshold Risk Ratio is equal to one for all the states, which is mathematically the same as saying that the underlying Demographic Ratio is equal to one for all the states, which in turn is the same as the null hypothesis that the location (within or not within 3 km of a facility) and demographic group are statistically independent for each and every state. The statistical test is mathematically identical to the Kendall test if there is only one state that has a facility.

Using the same notation as above, the test statistic is:

χ[2] = ∑ {a  -  (a+b)(a+c)/n}[2] / ∑ {(a+b)(a+c)(b+d)(c+d)/(n3  -  n[2])}

The sum is over all the state tables. The p-value is the probability that a chi-square distribution with 1 degree of freedom exceeds χ[2].

References

Agresti, A. 2002. Categorical Data Analysis, Second Edition, New York, John Wiley and Sons.

Cochran, W. G. 1954. Some methods for strengthening the common χ[2] tests. Biometrics 10: 417-451.

Kendall, M.G. and A. Stuart. 1973. The advanced theory of statistics, Third Edition. Griffin. London.

Mantel, N. and W. Haenszel. 1959. Statistical aspects of the analysis of data from retrospective studies of diseases. J. Natl. Cancer Inst. 22: 714-748.


Acronyms and Abbreviations


A
AFS
Air Facility System
AIAN
American Indian/Alaska Native

B
BR
Biennial Report

C
CAA
Clean Air Act
CERCLA
Comprehensive Environmental Response, Compensation and Liability Act
CERCLIS
Comprehensive Environmental Response, Compensation and Liability Information System
CESQG
Conditionally Exempt Small Quantity
CWA
Clean Water Act

D
DNA
Deoxyribonucleic acid
DOT
Department of Transportation
DR
Demographic Ratio
DSW
Definition of Solid Waste 

E
EAF
Electric arc furnace
EHS
Extremely Hazardous Substance 
EJ
Environmental Justice
EJ SEAT
Environmental Justice Smart Enforcement Assessment Tool
EJ Toolkit
Toolkit for Assessing Potential Allegations of Environmental Justices
EPA
Please see U.S. EPA
EPCRA
Emergency Planning and Community Right-to-Know Act

F
FR
Federal Register
FRS
Facility Registry System

G
GCE
Generator-Controlled Exclusion
GIS
Geographic Information Systems 
GM
Waste Generation and Management

H
HAP
Hazardous Air Pollutant
HAZWOPER
Hazardous Waste Operations and Emergency Response
HazCom
Hazard Communication Standard 
HMR
Hazardous Materials Regulations
HMTA
Hazardous Materials Transportation Act
HSM
Hazardous Secondary Material
HTMR
High Temperature Metals Recovery 
HWR
Hazardous Waste Regulation

I
IARC
International Agency for Research on Cancer
IRIS
Integrated Risk Information System

K
K061
Electric arc furnace dust

L
LDR
Land Disposal Restrictions 
LQG
Large quantity generator

N
NAAQS
National Ambient Air Quality Standards
NAICS
North American Industry Classification System
NATA
National-Scale Air Toxics Assessment
NBR
National Biennial Report
NESHAP
NPDES
National Emissions Standards for Hazardous Air Pollutants
National Pollutant Discharge Elimination System
NPL
National Priorities List
NPM
National Program Manager
NRC
National Response Center
NRHM
Non-Radioactive Hazardous Materials
NSPS
New Source Performance Standards

O
OECA
Office of Enforcement and Compliance
ORCR
Office of Resource Conservation and Recovery
OSHA
Occupational Safety and Health Administration
OSH Act
Occupational Safety and Health Act
OSWER
Office of Solid Waste and Emergency Response

P
PBE
Petition-Based Exclusion
PC
Priority Chemical
PERC
POTW
Tetrachloroethylene
Publicly Owned Treatment Works
ppm
Parts per million 
ppmw
Parts per million by weight
PR
Population ratio
PSM
Process Safety Management

R
RCRA
Resource Conservation and Recovery Act
RCRAInfo
Resource Conservation and Recovery Act Information
RIA
Regulatory Impact Analysis
RMP
Risk Management Plan
RQ
Reportable Quantities 

S
SD
Standard Deviation
SF
Summary File
Site ID
Site Identification
SOCMI
Synthetic Organic Chemical Manufacturing Industry
SPCC
Spill Prevention, Control, and Countermeasure
SQG
Small quantity generators

T
TBE
Transfer-Based Exclusion
TPY
Tons per Year
APR
Affected Population Ratio
TSDF
Treatment, Storage, or Disposal Facility

U
U.S.
United States
U.S. EPA
United States Environmental Protection Agency

V
VOC
Volatile Organic Compound

W
WR
Waste Received from Off-site


Glossary


A
Air Facility System
Contains compliance and permit data for stationary sources regulated by EPA, state and local air pollution agencies
American Indian Alaska Native
A Census Bureau term that refers to these entity types: American Indian reservation, American Indian off-reservation trust land, Oklahoma tribal statistical area, joint use area, American Indian tribal subdivision, tribal designated statistical area, state designated American Indian statistical area, Alaska Native Regional Corporation, Alaska Native village, Alaska Native village statistical area.

B
Biennial Report
All generators and treatment, storage, and disposal (TSD) facilities who handle hazardous waste are required to report to the EPA Administrator at least once every two years. The data collected is used to create the National Biennial Resource Conservation and Recovery Act (RCRA) Hazardous Waste Report. This data is processed within the RCRA Information (RCRAInfo) database.
Block group
A statistical subdivision of a census tract. A block group (BG) consists of all tabulation blocks whose numbers begin with the same digit in a census tract; for example, for Census 2000, BG 3 within a census tract includes all blocks numbered between 3000 and 3999. The block group is the lowest-level geographic entity for which the Census Bureau tabulates sample data from the decennial census.

C
Census Block
An area bounded by visible and/or invisible features shown on Census Bureau maps. A block is the smallest geographic entity for which the Census Bureau collects and tabulates 100-percent decennial census data.
Clean Air Act
Comprehensive federal law that regulates air emissions from stationary and mobile sources. 
Clean Water Act
Establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters
Comprehensive Environmental Response, Compensation and Liability Act
Known as CERCLA or Superfund, provides a Federal "Superfund" to clean up uncontrolled or abandoned hazardous waste sites as well as accidents, spills, and other emergency releases of pollutants and contaminants into the environment.
Comprehensive Environmental Response, Compensation and Liability Information System
CERCLIS is EPA's inventory of abandoned, inactive, or uncontrolled hazardous waste sites regulated under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  It records information about all aspects of hazardous waste sites from initial discovery to listing on the National Priorities List (NPL).
Conditionally Exempt Small Quantity Generator
Generate 100 kilograms or less per month of hazardous waste, or 1 kilogram or less per month of acutely hazardous waste

D
D001
Ignitable waste
D007
Chromium waste
D008
Lead waste 
Damages
The likelihood of harm or injury to property or a person resulting in loss of value or the impairment of usefulness
Damage Case Facility
Facilities that highlighted in EPA's An Assessment of Environmental Problems Associated with Recycling of Hazardous Secondary Materials
Definition of Solid Waste 
A solid waste is any discarded material that is not excluded under §261.4(a) or that is not excluded by a variance granted under §§260.30 and 260.31 or that is not excluded by a non-waste determination under §§260.30 and 260.34.
Definition of Solid Waste Rule
The DSW rule creates specific conditions for recycling hazardous secondary materials under the Resource Conservation and Recovery Act (RCRA).
Definition of Solid Waste Final Rule (2008)
Revision of the Definition of Solid Waste under RCRA for certain types of hazardous secondary materials being recycled

E
EJ Toolkit
Toolkit for Assessing Potential Allegations of Environmental Justices
Emergency Planning and Community Right-to-Know Act
Establishes requirements for Federal, state and local governments, Indian Tribes, and industry regarding emergency planning and "Community Right-to-Know" reporting on hazardous and toxic chemicals.
Environmental Justice
The fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. 
Environmental Justice Smart Enforcement Assessment Tool  
Created by EPA's Office of Enforcement and Compliance Assurance to serve as a consistent methodology that would enable OECA to identify communities or areas experiencing disproportionate environmental and public health burdens for the purposes of enhancing and focusing OECA's enforcement and compliance in those areas. 

F
F003
Spent non-halogenated solvents
F005
Spent non-halogenated solvents
F006
Wastewater treatment sludges
F037
Petroleum refinery primary sludges 
F1_5
Mixture of F001-F005
Facility Registry System
FRS is a centrally managed database that identifies facilities, sites or places subject to environmental regulations or of environmental interest.

G
Generator-Controlled Exclusion
Materials that are generated and transferred to another company for legitimate reclamation under specific conditions
Geographic Information System
 A computer system for the input, storage, processing, applications development, retrieval, and maintenance of information about the points, lines, and areas that represent the streets and roads, rivers, railroads, geographic entities, and other features on the surface of the Earth - information that previously was available only on paper maps.

H
Hazard Communication Standard
The HCS became effective in 1986. A fundamental premise of the HCS is that employees who may be exposed to hazardous chemicals in the workplace have a right to know about the hazards and how to protect themselves
Hazardous Air Pollutant
HAPs are pollutants that are known or suspected to cause cancer or other serious health effects, such as reproductive effects or birth defects, or adverse environmental effects.
Hazardous Materials Regulations
HMRs are issued by the Pipeline and Hazardous Materials Safety Administration and govern the transportation of hazardous materials by highway, rail, vessel, and air.  The HMR address hazardous materials classification, packaging, hazard communication, emergency response information and training.
Hazardous Materials Transportation Act
Its primary objective is to provide adequate protection against the risks to life and property inherent in the transportation of hazardous material in commerce by improving the regulatory and enforcement authority of the Secretary of Transportation.
Hazardous Secondary Materials
The DSW rule defines hazardous secondary materials (HSM) as those materials that would be classified as hazardous waste, if discarded. HSMs can be stored for longer periods of time than hazardous materials, but must meet various criteria such as 75% of the material must be recycled each year. 
Hazardous Waste Facilities
Likely to recycle under the DWS Final Rule, including hazardous waste generators producing more than a truckload (25 tons) of recyclable hazardous secondary materials annually, and hazardous waste recyclers 
Hazardous Waste Operations and Emergency Response
Refers to five types of hazardous waste operations conducted in the United States under OSHA Standard 1910.120 "Hazardous Waste Operations and Emergency Response." The standard contains the safety requirements employers must meet in order to conduct these operations.

I
Integrated Risk Information System
a human health assessment program that evaluates quantitative and qualitative risk information on effects that may result from exposure to environmental contaminants

K
K061
Electric arc furnace dust
K088
Spent potliners
K171
Spent hydrotreating catalyst
KXXX
Mixture of K waste code wastes

L
Land Disposal Restrictions
LDR program ensures that toxic constituents present in hazardous waste are properly treated before hazardous waste is land disposed
Large quantity generator
LQG generate 1,000 kilograms per month or more of hazardous waste, or more than 1 kilogram per month of acutely hazardous waste.

N
National Ambient Air Quality Standards
Standards established by EPA under authority of the Clean Air Act (42 U.S.C. 7401 et seq.) that apply for outdoor air throughout the country.  Primary standards set limits to protect public health, including the health of "sensitive" populations such as asthmatics, children, and the elderly. Secondary standards set limits to protect public welfare, including protection against decreased visibility, damage to animals, crops, vegetation, and buildings.
National Emissions Standards for Hazardous Air Pollutants
NESHAPS are stationary source standards for hazardous air pollutants.
National Priorities List
The list of national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States and its territories. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation.
 National Response Center
The NRC is the sole federal point of contact for reporting all hazardous substances and oil spills.  The NRC receives all reports of releases involving hazardous substances and oil that trigger the federal notification requirements under several laws.
National-Scale Air Toxics Assessment
U.S. EPA developed the NATA as a state-of-the-science screening tool for State/Local/Tribal Agencies to prioritize pollutants, emission sources and locations of interest for further study in order to gain a better understanding of risks.
New Source Performance Standards
Section 111 of the Clean Air Act authorized the EPA to develop technology based standards which apply to specific categories of stationary sources. These standards are found in 40 CFR Part 60. The NSPS apply to new, modified and reconstructed affected facilities in specific source categories such as manufacturers of glass, cement, rubber tires and wool fiberglass.
Non-hazardous Industrial Waste Facilities
Facilities not currently generating or managing hazardous wastes that may choose to begin reclaiming hazardous secondary materials under the 2008 DSW Final Rule
North American Industry Classification System
The standard used by Federal statistical agencies in classifying business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy.
Notification Facility
Facility that has notified EPA that it will be managing hazardous secondary materials under the 2008 DSW Final Rule

O
Occupational Safety and Health Act
The primary federal law which governs occupational health and safety in the private sector and federal government in the United States.

P
Petition-Based Exclusion
Materials that EPA or an authorized state determines to be non-wastes through a case-by-case petition process.
Process Safety Management
The major objective of process safety management (PSM) of highly hazardous chemicals is to prevent unwanted releases of hazardous chemicals especially into locations that could expose employees and others to serious hazards. An effective process safety management program requires a systematic approach to evaluating the whole chemical process.

R
Resource Conservation and Recovery Act
The (RCRA) gives EPA the authority to control hazardous waste from the "cradle-to-grave." This includes the generation, transportation, treatment, storage, and disposal of hazardous waste. RCRA also set forth a framework for the management of non-hazardous solid wastes.
Resource Conservation and Recovery Act Information
RCRAInfo is EPA's comprehensive information system that supports the Resource Conservation and Recovery Act (RCRA) of 1976 and the Hazardous and Solid Waste Amendments (HSWA) of 1984 through the tracking of events and activities related to facilities that generate, transport, and treat, store, or dispose of hazardous waste. RCRAInfo allows RCRA program staff to track the notification, permit, compliance, and corrective action activities required under RCRA.
Risk Management Plan  (RMP)
The RMP database stores the risk management plans reported by companies that handle, manufacture, use, or store certain flammable or toxic substances, as required under section 112(r) of the Clean Air Act (CAA).
Rural
All territory, population, and housing units located outside of urbanized areas and urban clusters.

S

Spill Prevention, Control, and Countermeasure Plan  
The Spill Prevention, Control, and Countermeasure (SPCC) rule includes requirements for oil spill prevention, preparedness, and response to prevent oil discharges to navigable waters and adjoining shorelines. The rule requires specific facilities to prepare, amend, and implement SPCC Plans. The SPCC rule is part of the Oil Pollution Prevention regulation, which also includes the Facility Response Plan (FRP) rule.
Small Quantity Generator
SQG generate more than 100 kilograms, but less than 1,000 kilograms, of hazardous waste per month.

T
Transfer-Based Exclusion
Materials that are generated and legitimately reclaimed under the control of the generator

U
Urban
For Census 2000, all territory, population, and housing units in urbanized areas and urban clusters.
Urban Cluster
A densely settled area that has a census population of 2,500 to 49,999.
Urbanized Area
A densely settled area that has a census population of at least 50,000.

V
Volatile Organic Compound
VOCs are organic chemical compounds whose composition makes it possible for them to evaporate under normal indoor atmospheric conditions of temperature and pressure.


          Attachment H:  EPA Initial Response to Peer Review Comments
                                       
                              Charge Question No.
                                  Comment No.
                                   Reviewer
                                    Comment
                                 EPA Response
2d
87
Henshel
Section 2.3 p 30, third paragraph down  -  This paragraph needs rewriting to make it clearer.  A particularly difficult sentence is sentence 3, and the logic between sentences 3 and 4 may be faulty.  If a material's reporting quantity is lower when it is characterized as hazardous waste then if it is characterized as non-waste, as written in sentence 3, then a smaller quantity would be needed before it exceeds the reportable quantity as a hazardous waste compared to as a non-waste, not a larger quantity (as currently written in sentence 3).  But this does mean that if the implementation of the DSW results in what would otherwise be considered hazardous waste being now considered non-waste, then indeed more of the same material (now classified as "non-waste") would be required to trigger reporting requirements then would have been true if the material were classified as hazardous waste
EPA rewrote the paragraph pertaining to the reporting of hazardous versus non-hazardous waste to ensure greater clarity and consistency.
2d
88
Henshel
 P 32, end of second full paragraph.  A "reasonable" effort is not defined or discussed.  Without such discussion or clarification, a "reasonable" effort remains so open to interpretation that a phone call to the foreign facility owner and asking for assurances of safety would more than satisfy that requirement, and yet not provide any real assurance that the community and workers in the foreign facility would be protected from hazardous exposures.
EPA clarified the use of the term "reasonable effort" by adding an explanatory sentence.
2d
90
Henshel
 As an example of a need to define terms and abbreviations, K061 is used in the footnote on page 27 (footnote 25) without any explanation of the meaning of the term.
EPA added a definition of the term in parenthesis to help clarify its meaning. 
2d
91
Henshel
When requirements or criteria are referred to, it is important to specify and list those requirements or criteria, in the text, a footnote, or an inserted box.  An example of such a referral to insufficiently explained and detailed requirements are on the top of page 28.  The details about the "SQG" requirements are lacking.
EPA provided the definition and criteria to differentiate between a SQG and LQG.
5b
165
Ferris
What are "structural" reasons as stated in section 5.1.4?  
EPA added explanatory sentences to clarify structural reasons that certain groups do not participate in the decision-making process.
6c
197
Henshel
Table numbers are not provided.
EPA inserted table numbers for reference. 
6c
200
Henshel
P 123 Multiple and Cumulative Effects  - note the numbers with % above 70% (most) and above 60% (all but a few!!!)  -  and a cumulative frequency chart might make a nice and very visually effective summary of these observations.
EPA will defer further consideration of additional diagrams and analyses until after publication of the 2011 proposed rule.
ESa
34
Henshel
In addition, the last sentence on page ix (starts "In addition,...") is unclear and needs  rewriting.  Similarly the last sentence on page xi needs additional clarity. 
TEPA revised the paragraph to add clarity and increase readability. 
Ga
7
Henshel
1) A glossary, 2) Remembering to define every acronym the first time it is used in every chapter, and in the legend for every table, 3) A list of abbreviations and acronyms
EPA added acronym definitions in the text and provided a glossary and a list of abbreviations and acronyms in an appendix.
Gb
12
Daley
A list of acronyms would be extremely helpful. 
EPA added acronym definitions in text and provided a glossary and a list of abbreviations and acronyms in an appendix.
Gb
15
Henshel
Needed improvements for clarity: As mentioned above, it would be very helpful for the general reader to provide a Table of Abbreviations/Acronyms and a Glossary, in addition to remembering to follow some other basic rules of clear communication as outlined above (Readability).   
EPA added acronym definitions in text and provided a glossary and a list of abbreviations and acronyms in an appendix.
Ga
8
Henshel
A few diagrammatic algorithms that could help explain two complexities:  1)  The regulations that apply under each condition that increases exposure under the new 2008 DSW.  This algorithm could be bilaterally symmetrical  -  taking the reader through the process, and when there is a change that occurs due to the regulations, the algorithm can identify the regulations in play and not in play for each set of exposure conditions (as in longer stored waste materials, transport exposure, etc).  One side of the symmetrical algorithm would identify regulations in play before the new 2008 DSW regulations, and the other side would identify the regulations in play after the new 2008 DSW regulations. 2)  A second algorithm that would be useful would be to outline the framework, the process used to analyze the environmental justice concerns about the 2008 DSW rules.  This algorithm could then tersely identify each step in the process and the implications for the outcomes of each step.
EPA determined that additional diagrams and algorithms would not add clarity to the topic, and may further confuse the reader.  EPA will defer further consideration of additional diagrams and algorithms until after publication of the 2011 proposed rule.
Gb
10
Daley
For the most part, the information in the report is clearly presented. There are, however, some areas that could be improved. While Figure 1 is informative, the other figures in the report make little sense to me. They either need additional explanation, or they should be removed. Figure 4.41.1 is an example of the type of bar chart that can be confusing. Perhaps if the base category of White/Non-Hispanic was added, the figure would make more sense. As it is now, these figures detract rather than add to the report.
EPA added an explanation to Section 4.4.
1a
48
Ferris
1.3  minor typo -- see "HSMHSMs"
Typographical errors were corrected.
2d
86
Henshel
Page 3 Inset.  Typo or residual undeleted "("  in explanation for Generator-Controlled Exclusion
Typographical errors were corrected.
2d
89
Henshel
p 32 end of the second bullet there's a typo, a misplaced period.
Typographical errors were corrected.
6c
199
Henshel
P121  -  7[th] line down in paragraph  -  typo  -  higher total population than.... I believe was intended.
Typographical errors were corrected.
Gb
13
Daley
Also, there are also several typos and minor mistakes that should be addressed. These include: 
(1) Page iv  -  under the hazardous waste baseline, second row, "recycles" should be changed to "recycling" 
(2) Page 2, sec 1.3, bullet 1  -  "HSMHSMs" should be changed to "HSM" 
(3) Page 10, top of the page: "as a focus" is written twice. One occurrence should be deleted. 
(4) Page 81, section 4.2.3  -  "area" should be added after "a 3 km" 
(5) Page 91, section 4.42  -  lists 219 damage case facilities. There are only 217 reported in the analysis. Either explain the missing cases, or fix a typo.  
(6) Attachment A,  page A-2, section 1. Toward the end of the first paragraph, should read "regulation if" not "regulation is". 
Typographical errors were corrected.
2d
92
Henshel
The discussion about reportable quantities (second full paragraph down on page 30) needs to be written more clearly.  The third sentence in that paragraph is particularly problematic.
EPA revised the paragraph to add clarity and increase readability. 
3c
104
Daley
The report however, could be edited to more clearly explain this approach. The text on Page 80 and 81 should be streamlined. First, the agency should suggest that the 3 km buffer is reasonable given the potential for acute exposure from accidental releases. Then, this should be followed by a discussion of the area apportionment method. As it reads now, it is a bit confusing. 
EPA clarified the language in Section 4.2.2 and reorganized it to make discussion of the areal apportionment method more transparent.
4c
122
Daley
Yes, it is fine. It would be beneficial to have some discussion of the assumption behind this method. As noted on Page 80, the areal apportionment method assumes all populations are equally distributed in the block or block group. This assumption will not hold in practice. Therefore, some indication of how this assumption influences the analysis would be useful. Given the population distribution in the nation, how might this assumption bias the analysis?  I am not suggesting that the agency change their approach, only that they articulate the implication of this assumption. 
EPA added language to clarify the assumptions underlying the areal apportionment method.
Gb
16
Henshel
In addition, the excessive use of acronyms makes the document very hard for any lay reader to read.  It makes the document hard to read for even an expert, as one must constantly look for the meaning of the new acronyms that pop up pages after they have been defined.  It would be helpful, should the acronyms stay in such a density, to provide a list of acronyms used on each page in a footnote at the bottom of each page.
EPA added acronym definitions in the text and provided a glossary and a list of abbreviations and acronyms in an appendix.
Gb
17
Henshel
 The Wind Dispersal category would be better (and less confusingly) labeled as "Particulate [or Dust] Wind Dispersal."
EPA changed table and section heading to "Particulate wind dispersal."
Ga
4
Henshel
Content: The environmental justice assessment process undergone was a reasonably thorough approach to assessing environmental justice concerns associated with the 2008 DSW rule.  However, there was a lot of repetition that seemed to involve just copying and pasting the same statements and phrases over and over again, and rarely elaborated in depth.  
EPA deleted repetitive sentences when not needed for clarity.
Gb
18
Henshel
There is no need to repeat the exact same phrases multiple times without additional elaboration.
EPA deleted repetitive sentences when not needed for clarity.
1a
45
Ferris
The term "damages" in Step 4 could be explicitly defined. Presumably, the language that follows the term "damages" is explanatory but that is somewhat unclear.
EPA added the definition of damages to Table 1.1. The names of the categories of facilities were revised for consistency throughout the document.
2c
69
Daley
As mentioned earlier, it would be helpful if the report clarified the definition of a damage case or damage facility. As noted on page 10, the analysis highlights solvent wastes because of their prevalence in damage cases. A definition and some references to RCRA damage cases would be helpful, even if provided in a footnote. 
EPA added a footnote to the damage cases study and revised the names of the categories of facilities for consistency throughout document.
5a
162
Ferris
What is the universe of industrial facilities that may be generators of HSW and how do they factor into this analysis?  How do industrial facilities factor into the potential impacts analysis?
EPA added language on industrial facilities and how they factor into the analysis to Section 5.2.2.
ESa
25
Daley
Considering the complexity of the document, the Executive Summary is relatively clear and easy to read. The "Summary of Potential Impacts" is very helpful. It is important to note, however, that the findings in the executive summary are not properly numbered: the executive summary lists findings 1, 3, and 4, omitting 2. The table and paragraph describing "Community Level Analysis of Potential Disproportionate Impacts" is difficult to follow. It would be helpful if the Environmental Protection Agency (EPA) could identify and describe the four types of facilities in this analysis more consistently. For example, the text on page vii could be edited to include the following language connecting the text to the community analysis tables: 
"The second step of the methodology identified facilities that can represent the facilities that are likely to take advantage of the 2008 DSW final rule. These facilities are grouped into four different categories: (1) facilities that have already notified under the 2008 DSW final rule[Notification facilities], (2) hazardous waste facilities that are likely to recycle under the rule (including hazardous waste generators producing more than a truckload (25 tons) of recyclable hazardous secondary materials annually, and hazardous waste recyclers) to use the rule [Hazardous Waste Facilities], (3) facilities from the environmental problems study (many of which operated under exclusions or reduced regulations)[Damage Facilities], and (4) facilities currently recycling non-hazardous industrial waste (e.g., antifreeze) that could most easily switch or expand to recycling under the 2008 DSW final rule [Non-Industrial Hazardous Waste Facilities]."
EPA added the missing header for Finding 2 as well as revised the names of the categories of facilities for consistency throughout the document.
ESa
26
Daley
It is difficult to understand where the categories in the Table on page X come from. They should be clearly labeled in the text and - table categories: the ordering in the text and the table should be consistent.
EPA revised the names of the categories of facilities for consistency throughout the document.
ESa
27
Daley
 Also, it would be helpful to define "damage facilities". 
EPA added the definition of damages to Table 1.1, and revised the names of the categories of facilities for consistency throughout the document.
ESa
31
Ferris
Summary of DSW EJ Methodology is clear and concise with a couple of exceptions. The term "damages" in Step 4 could be explicitly defined. Presumably, the language that follows the term "damages" is explanatory but that is somewhat unclear.
EPA added the definition of damages to Table 1.1, and revised the names of the categories of facilities for consistency throughout the document.
ESa
33
Henshel
The executive summary is readable.  The executive summary needs to include definitions of terms used (for example, "notification facilities," "damage case facilities," etc).  
EPA added the definition of damages to Table 1.1, and revised the names of the categories of facilities for consistency throughout the document.
ESb
40
Ferris
Does EPA plan to establish a definition or explanation of what constitutes legitimate recycling and/or recycler-facility?  This could serve as notice to generators, receivers, recyclers that the exemptions and exclusions are accompanied by affirmative duties that include compliance with statutes and regulations?
EPA added the definition of damages to Table 1.1, and revised the names of the categories of facilities for consistency throughout the document.
1a
47
Ferris
Readers reviewing the synopsis of the Sierra Club petition would be informed by an abbreviated specific list of issues identified by the Club (instead of "raised a number of issues about the protectiveness of the rule..."
EPA provided a link to the Sierra Club petition.
ESa
30
Ferris
Readers reviewing the synopsis of the Sierra Club petition in this summary (or, in the relevant section below) would be informed by an abbreviated specific list of issues identified by the Club (instead of the more generalized ""raised a number of issues about the protectiveness of the rule...' -- especially since the language of the rule emphasizes that a number of commenters "echoed"...concern..."
EPA provided a link to the Sierra Club petition.
1a
46
Ferris
Does "Information" in Step 5 include data?  Perhaps strengthening the language to "Data and Information..." is more supportive of the Agency's rationale.
EPA clarified that "information" includes data.
ESa
32
Ferris
Does "Information" in Step 5 include data?  Perhaps strengthening the language to "Data and Information..." is more supportive of the Agency's rationale.
EPA clarified that "information" includes data.
2
53
Ferris
The transition to this section should be clear.  It's not clear that this section is distinct from the prior rule discussion (the "Introduction").  This is a graphics issue.
EPA inserted a page break before Section 2 to be consistent with formatting of other sections.
3
93
Ferris
The transition to this section should be clear. It's not clear that this section is distinct from the prior rule discussion. This is a graphics issue.
EPA inserted a page break before Section 2 to be consistent with formatting of other sections.
4
108
Ferris
The transition to this section should be clear. It's not clear that this section is distinct from the prior rule discussion. This is a graphics issue.
EPA inserted a page break before Section 2 to be consistent with formatting of other sections.
5
156
Ferris
The transition to this section should be clear. It's not clear that this section is distinct from the prior rule discussion. This is a graphics issue.
EPA inserted a page break before Section 2 to be consistent with formatting of other sections.
6
174
Ferris
The transition to this section should be clear. This is a graphics issue.
EPA adjusted the formatting for section headers to make the transition to different sections more clear.
6c
202
Henshel
1.      page A-4  -  second paragraph  -  last line  -  "typically 120 days following promulgation" of what?
EPA added clarifying language to Section 3.4.
6c
203
Henshel
2.      Page A-4 still  -  last paragraph  -  5 lines down  -  please add examples here to each type of industry not subject to CAA regulation under the 2008 DSW rule.
EPA added clarifying language to Appendix A.
6c
204
Henshel
3.      Page A-6 third bullet  -  clarify if you mean leaks to only ground, to surface water, or also leaching to ground water  -  ie clarify
EPA added clarifying language to Appendix A.
6c
205
Henshel
4.      Page A-7 last bullet  -  capitalize OSH.
Typographical errors were corrected.
6c
206
Henshel
5.      Page A-8 first bullet  -  a great example of spaghetti writing.  Spaghetti writing makes the report more difficult to read for everyone, especially the lay person.
EPA added clarifying language to Appendix A.
6c
207
Henshel
6.      Page A-9 top of the page.  A mention of the differences in monitoring would be appropriate here.
The section at the top of A-9 discusses reporting and recordkeeping.  EPA determined that a discussion of monitoring would be out of place here.
6c
208
Henshel
7.      Page A-10  -  second full paragraph (starts... "Further...") -  This paragraph needs some clarification, and needs rewriting.
EPA added clarifying language to Appendix A.
6c
209
Henshel
8.      Page A-10 section 3.9 second two paragraphs.  These paragraphs are very unclear, and also seem to be internally inconsistent, as written.  Clarify in these paragraphs what is included in each type of exclusion.  A good example of a clearly written paragraph is the next paragraph (first paragraph of 3.10).  This paragraph includes a short but clear definition which enables the reader to comprehend the information provided more readily.  The reader does not have to go searching for the definition, which helps reduce reader confusion.
EPA added clarifying language to Appendix A.
6c
210
Henshel
9.      Page A-10 last paragraph, first sentence.  Add clarifying phrases  -  what kind of characteristics, and where are these listed.
EPA added clarifying language to Appendix A.
6c
211
Henshel
10.  Page A-11. First paragraph needs a sentence inserted clarifying what could be exempted.  Second paragraph needs clarification in the middle sentence  -  specify briefly or provide example (in parentheses) for conditions under which listed waste may not be determined to be hazardous waste.
EPA added clarifying language to Appendix A.
6c
212
Henshel
11.  Table A-11 page A-13 middle column, middle section  -  This is too dense for the average reader referring only to CFR citations and statutes (in inconsistent style no less).  Provide details or names for these sections and their overall regulation titles in clear, jargon-free writing.
No action was taken because the level of detail requested cannot be presented in a table.
6c
213
Henshel
12.  Table A-11  -  Overall  -  this table (and the report) lacks any discussion of the implication of these changes due to the adoption of the 2008 DSW rule.  An example might be to evaluate the implication of leaking containers, which (under the current vagueness of the 2008 DSW ruling language) might not be caught for up to 2 years, or maybe longer.  What kinds of exposures might be increased to what diameter population under this scenario?
No action was taken because the level of detail requested cannot be presented in a table The addition of an example, such as leaky containers would result in an inconsistent level of detail in the table. 
6c
214
Henshel
13.  Page A -17  -  why the changed font size in column 1?
EPA made fonts consistent throughout the table.
6c
215
Henshel
14.  Page A-18.  Last paragraph in column 1.  Include a list of the 140 toxic and flammable regulated chemicals referred to here, and elsewhere in the report.  The easiest way to handle this might be a footnote, or adding the list to the appendices, and referring to the inserted list (footnote, endnote, or appendix) here and whenever else this list is referenced.
A reference to the CFR section where the chemicals are listed is provided.  
6c
216
Henshel
15.  Page A-21 first column, second line  -  missing an article ("the" or "a") between "above" and "specified quantity".
EPA edited the table to include the missing articles.
6c
217
Henshel
16.  Page A-26  -  last column, first paragraph  -  this section (and its text tie-in) is just calling out for a discussion of the implications of lack of required training on personnel at the facility if exposures indeed rise.
Additional discussion would not fit into table format.  No action was taken.
6c
218
Henshel
17.  Page A-29 first column  -  need a space between paragraphs.
EPA added spaces between paragraphs throughout the document for consistency. 
6c
219
Henshel
18.  Page A-30 third column, first word "these" needs clarification  -  to which regulations is the writer referring.  Do not expect the lay audience to know for sure.  Same point for page A-32 third column, last paragraph, second line and again page A-33 second line.
EPA adjusted the language in all places on the table where this occurs.
6c
220
Henshel
19.  Page A-34 third column second paragraph.  This very statement again seems to call out for a discussion of the implications of the lack of record keeping and exception reporting.  It is NOT sufficient to point out that the 2008 DSW rule changes the recording and record keeping requirements.
No action was taken as implications are discussed in the main body of the report.
6c
221
Henshel
20.  Page A-35 first column middle paragraph  -  clarify, provide more detail.  Similarly third column second paragraph  -  specify which excluded materials may not qualify as a DOT hazardous material, and provide some discussion of the potential implications of this from an EJ perspective.
No action was taken as implications are discussed in the main body of the report
6c
222
Henshel
21.  Page A-36 third column second paragraph  -  this again needs further discussion here and in the text on the possible implication of this change due to the 2008 DSW rules.  Specifically, would any residues from reclamation ever be potentially hazardous and NOT get identified as such through the 2008 DSW process.
No action was taken as implications are discussed in the main body of the report.
6c
223
Henshel
22.  Page A-37 GCE: is something missing here?  Seems like it.
EPA added the missing text.
6c
224
Henshel
23.  Page A-49 right hand column, second paragraph  -  use the full citation, not the abbreviated citation.  The full citation (ie using the same citation format throughout) is more understandable to the lay person.
EPA replaced the abbreviated citation with the full citation throughout the document.
6c
225
Henshel
24.  Page A-52 right column, top line "an SPCC" fix typo
Typographical errors were corrected.
6c
226
Henshel
25.  Page A-61 middle column, top paragraph.  Keep citation format consistent and summarize the legitimacy criteria in this paragraph, a footnote, or the next paragraph.
EPA made the citation format consistent throughout the document.  The table format does not have sufficient space for discussion of legitimacy criteria.
6c
227
Henshel
26.  Page A-63 right column.  Provide examples of potential problematic emissions that don't meet threshold criteria and don't meet other applicability criteria.  It would be great if the implications of the resultant exposure (were this to occur) be determined quantitatively, maybe at the mean/lower assumption (9.5 TPY single type HAP) and high assumption (24.95 TPY mixed HAP) levels.
Due to insufficient space in table format, examples were not given.  EPA will defer additional analyses until after publication of the 2011 proposed rule. 
6c
228
Henshel
27.  Page A-64  -  right hand column  -  No one in this report is discussed how much might be released before anything would trigger the need to determine if a cleanup is needed.  Surely this would help explore the potential for a significant disproportionate impact occurring?
There is insufficient space in the table format to address this issue.
6c
229
Henshel
28.  Page A-68, right column, last sentence.  Where is the "note below"?  Probably better to put the note in a footnote on the same page or in the right hand column immediately after this paragraph.
EPA removed the reference to the "note below." 
6c
230
Henshel
29.  Page A-82 on  -  It is great to have the summary of the Federal Regulations here.  However, the formatting and depth of each discussion is not consistent and needs to be made so.  For example, the most readable formats start with a sentence or two that talks about the relevant regulation(s) more broadly, and then includes a sentence that explains the relevance of the regulation to this report/study.
EPA will defer large-scale format changes until after publication of the 2011 proposed rule.
6c
231
Henshel
30.  Page A-83 Second paragraph under "Legitimate recycling"  -  include a brief summary of the six criteria referred to here (and elsewhere) and not clearly defined.  The listing could be in the paragraph, in an offset list, in a separated inset box, or in a footnote.
There is insufficient space in the table format to address this issue.
6c
232
Henshel
31.  Page A-84  Top of the page  -  provide details about standards in 262.34 (d) and (e).  They are not clearly described anywhere.  Also maintain a consistent formatting for citations.
There is insufficient space in the table format to address this issue.
6c
233
Henshel
32.  Page A-94 Exports first paragraph last two sentences  -  a) remember to keep citations in consistent format.  B) To make this document most readable, summarize these requirements briefly.
All citations were updated to ensure a consistent format.  Requirements appear to be summarized adequately.
6c
234
Henshel
33.  Page A-96  -  No where is there a discussion of at what point in a chain of non-compliance would the chain of permission stop and oversight identify a problem that needs to be addressed.
This as an enforcement and compliance issue that would need to be addressed by individual EPA Regional or authorized state agencies.
6c
235
Henshel
34.  Page A-99 bullets under 5.3.3  In each bullet, first identify the key factors that determine whether processes fit as Program 1, 2 or 3 (i.e. defined for the appropriate bullet).  These three was to characterize a process are never clearly defined throughout this whole document.  This would seem to be the place to put those definitions.
EPA will defer large-scale format changes until after publication of the 2011 proposed rule.
6c
236
Henshel
35.  Page A-106 5.8.2 line 3  -  TSDFs is an acronym that is never defined.
EPA added acronym definitions in the text and provided a glossary and a list of abbreviations and acronyms in an appendix.
6c
237
Henshel
36.  Appendix B is good to have, as is Appendix C and D.  Note that in Appendix B, and in a few other places, the writer uses the personal "we" instead of a noun.  This is formal writing and should not include any first person (personal) pronouns anywhere in the document.  Search to find the "we"s and rewrite to replace the personal pronoun with a clearer sentence using the impersonal 3rd person or noun.
EPA eliminated the use of "we" throughout the document.
6c
238
Henshel
37.  Page B-2 first paragraph.  Need to add a sentence that explains why it is important to understand what a "wastewater" versus a "nonwastewater" is.
Clarifying language was added to page B.2.
6c
239
Henshel
38.  Page B-3 table bottom:  POTW and NPDES is not defined here or elsewhere in the document.  Acronyms are best spelled out the first time they are used in any given chapter, and still it is kind to the read to provide a Table of Acronyms and Abbreviations, and spelling out of all acronyms in footnotes for any table in which they are used.
EPA added acronym definitions in the text and provided a glossary and a list of abbreviations and acronyms in an appendix.
6c
240
Henshel
39.  Appendix C is written like an abbreviated technical reference manual, but without the definitions usually included in such a manual.  Most of this section reads like a jargonfest, and is not accessible to the lay reader.  
EPA will defer large-scale format changes until after publication of the 2011 proposed rule.
6c
241
Henshel
a.       Identify all acronyms and abbreviations.  There's two in the second paragraph.
EPA added acronym definitions in the text and provided a glossary and a list of abbreviations and acronyms in an appendix. The second acronym is a reference code from the database used to develop the hazardous waste facility estimates, and has no direct English language definition.
6c
242
Henshel
b.      In the introductory section, explain by the K, F, U, P and D codes represent, how they are used, and how understanding the coding was needed for the environmental justice analyses.
Information was added to glossary.
6c
243
Henshel
c.       Explain all codes that have no other referent to explain them.  For example, on page C-5 top line, F037-F038 codes are referred to without placing them in any context or defining what these codes cover.
Information was added to glossary
6c
244
Henshel
d.      Table C-1 needs some additional explanation before it will be easily read by the lay reader.
EPA will defer large-scale format changes until after publication of the 2011 proposed rule.
6c
245
Henshel
40.      Appendix D is written in a way that is essentially understandable.  However in two places, where groups are moved from the logical grouping to a not as obvious grouping, explanation is needed for why the move was made.  These points are on Page D-3 bottom of the page, and on Page D-5 top of the page.
EPA added explanatory sentences to clarify the change in grouping.
6c
246
Henshel
41.      Appendix E needs some clarifying verbiage written in easy to understand English.  The two ratios could, for example, be easily explained by one or two sentences.  The description of the tests are more theoretical in places.  Specific places that clarification is needed includes:
A new description of the Fischer's Exact test was provided.
6c
247
Henshel
a.       Page E-9 bottom of the last Fisher Exact Test paragraph, there is no explanation for why or when the minus sign is removed, nor where the minus sign is likely to show up and why.
A new description of the Fischer's Exact test was provided.
6c
248
Henshel
b.      Page E-10  -  it is not clear what the tables are for the various states.  Add clarifying language.
A new description of the Fischer's Exact test was provided.
6c
249
Henshel
Since these tests are not always run (but should be) the verbiage should include an explanation of why they are not run in some situations in the analysis and are run in other, apparently similar situation.
A new description of the Fischer's Exact test was provided.
Gb
19
Henshel
In no scenario was there a consideration of generators who consistently function in violation of the regulations once they start handling waste under the 2008 DSW rule.  As there are such companies, this would seem to be a scenario to include, or at least discuss, in an EJ analysis.
EPA expanded the discussion of compliance under DSW vs. HW regulations.
Gb
20
Henshel
No scenario considered the possibility of the impact on the community if a generator acting under the 2008 DSW rules goes out of business with accumulated, non-processed, possibly not appropriately contained excluded hazardous material waste on the property.  Yet this situation would only happen (legally) under the 2008 regulations, not under the previous HSM regulations.
EPA added a discussion of generators going out of business to Section 2.5.1 of document.
1a
50
Ferris
In addition to the advantage of adhering to RCRA's decades old cradle-to-grave protective framework, consider whether requiring a streamlined notice and record-keeping process for generators, receivers and recyclers of HSM benefit EPA and states e.g., monitoring, as well as data that shows the environmental and economic benefits of HSW exclusions?
N/A (comment on 2008 DSW rule)
2b
65
Daley
Without adequate record-keeping and environmental protection safeguards (streamlined requirements would not be objectionable), the international export exclusion/scenario is troubling re potential releases, impacts, whether or not the recipient nation has genuine knowledge of the contents and consents to the receiving the export; see e.g., Circle of Poison and pesticide regulation. 
EPA expanded the discussion of exports in the scenarios.
6c
190
Ferris
Should record-keeping include quantities of HSW generated?  This data would be useful for emergency planning and response as well as helpful to determining economic and environmental benefit.
N/A (comment on 2008 DSW rule)
2a
57
Daley
Yes, the scenarios clearly define how EPA thinks facilities may react to the rule. Table 2.1 is particularly useful in outlining the baseline and potential changes based on the DSW Exclusions. I would however, like to know how the EPA developed these scenarios. Are these based on professional experience, or did the agency talk with the regulated community to get a sense of potential reactions to the DSW Exclusions?   If it is the latter, could the report provide more detailed information regarding the feedback from the regulated community?  If it is the former, it would add value to outline some of the ways in which that experience shaped the discussion / selection of the scenarios. 
EPA added discussion of how scenarios were chosen to Section 2.1.
2a
60
Henshel
What is lacking overall from the analysis, from the Hazard Characterization step onward, is any discussion or analysis of the implications (i.e secondary consequences) of each of these assumptions (about the possibility of increased exposure) for total exposure and estimated changes in risk values for the potential EJ communities (ie those communities within 3 km of each facility, according to this report).
EPA added language throughout Section 2 on the possibility of increased exposure to communities as a result of hazards identified.
2c
73
Ferris
Does worker training (e.g., protection standards, labeling, handling) or the lack of it at relevant/specified facilities factor into the EPA hazard analysis?
Worker training is discussed in the regulatory comparison section.  No further action was required.
2c
74
Ferris
Does emergency response and planning, the existence or lack of these programs, factor into the EPA hazard analysis?  Similarly, does eliminating the requirement for a Manifest (or some version of a tracking mechanism) factor into possible increases or reductions in the emergency response preparedness and planning, enforcement or compliance monitoring?  
Both emergency planning and the manifest are discussed in the regulatory comparison section. No further action was required.
2c
77
Ferris
Does the EPA hazard analysis factor imposition (or not) of container integrity and container management standards into the determination of the potential or actual hazards associated with higher storage volumes, and/or higher concentrations of HSW?  What constitutes a safe "container?"  Does the analysis factor in whether making storage subject to controls, environmental monitoring and inspections increases or reduces community protection?
EPA added language to sections discussing storage that applied to containers.
2b
66
Henshel
a.      Unlikely" scenario 1: If the cost of recycling off-shore (Africa, China) are low enough, these lower costs will offset the additional costs of transportation to get the now excluded hazardous waste (which costs less also as an excluded waste, and one for which the same expensive containers do not have to be bought).  This is a reasonable scenario (not unlikely) unless the EPA provides calculations to prove that the costs of transportation would never be overcome by the reduced costs of recycling in Africa or China.  It is also disturbing that there is insufficient discussion and analysis of EJ concerns for the locations of the recycling plant and no discussion and analysis of EJ concerns for the locations where recycling is carried out in another country.  (This last sentence applies as well to the whole report.)
EPA elaborated on exports given existing scenarios rather than creating a new scenario only focused on exports of wastes to other countries. 
2c
72
Ferris
Intervening prior to a release is clearly preferable  -  the possibility of enforcement action prior to a release would be protective and more likely in the event that there are clear regulations e.g., storage limitations, labeling requirements and requirements related to the integrity of storage containers and areas.
EPA added discussion on preventive enforcement to the enforcement section. 
6c
187
Ferris
Is there sufficient analysis of the impacts of storing HSW in land-based units such as pits, ponds and lagoons. Should standard RCRA regulatory controls apply where HSW is stored in such land-based units?
EPA added language about the impacts of land-based storage units in the storage section.
2c
79
Henshel
Toxicity information: When applicable, endocrine disruption toxicity is not even mentioned.  Developmental toxicity of heavy metals would also seem to be an important, very sensitive effects indictor to mention.
Further research indicated that specific contaminates discussed did not include endocrine disruptors.
2c
80
Henshel
p 19 top of the page. There isn't mention of fugitive emissions (leaks at valves, escape at points of transfer) as part of the way in which hazardous materials/waste can be released.
The section described by the commenter discussed the activities that involve HSM.  Associated hazards, including fugitive emissions, are discussed on the following page.
4g
142
Daley
There is considerable selection bias or selection effect in the "notification" facilities and likely also in the damage facilities. It is likely that these early adopters (notification facilities) are significantly different (and non-randomly distributed) compared to the three remaining categories. Damage facilities are also likely to be systematically different. I am not sure exactly how to address this, but it seems like something that the agency needs to consider. Perhaps analyzing a comparison group of randomly selected and/or "matched" facilities could be useful, in addition to the broader state and national comparisons. 
EPA added discussion on selection bias for both "notification" facilities and for "damage" facilities to Section 4.4.1.
6c
198
Henshel
Population level analysis table results seem to show that there is a numbers (sample size) bias in the level of statistical significance.  Once the notification facilities used in the analysis are pooled, or incorporate facilities from other states as will, to increase sample size, chances are that these results will also be significant in a pooled state analysis.  Thus the need to do both pooled state, and divided state, to assess how much of the sensitivity might be sample size.  It is also important to note that in regions with few Blacks, or few minorities, the minority population comparisons are always less of a driver than the low income analysis, as in these regions, are larger percentage of the low income community is white.  This is true in Indianapolis, where there is a significantly large percentage of poor whites.  In Northwest Indiana, however, there are more minorities, and minority population comparisons drive the EJ analysis results as strongly, or more strongly, than the low income analysis.
Discussion on the affects of uniform population distribution on the analysis was added to Section 6.1.4.
ESa
35
Henshel
The summary of Finding 4 should include some discussion of the other three categories not discussed in the executive summary (example, susceptible populations).  You might include leaking septics in the list on the top of page xiii (under multiple and cumulative effects), as leaking septics are more likely to be addressed more slowly, and thus pose a higher health risk, in low income communities.
Discussion on leaking septic tanks was added to the Executive Summary.  Discussion of additional vulnerability factors was not provided because analyses for these were not available.
5a
160
Ferris
Where does immigrant status factor into vulnerability factors?
Addition discussion on the immigrant status and English literacy was added to Section 5.1.4.
5c
171
Ferris
Immigrant status, particularly new immigrants and undocumented workers and residents constitute an important additional factor.
Addition discussion on the immigrant status and English literacy was added to Section 5.1.4.
5c
173
Henshel
Other health endpoints to consider include: low birth weight as a measure of embryonic development; some measure of endocrine disruption including, and particularly, thyroid disruption, although other endocrine function indices should also be considered, such as diabetes; and some measure of IQ in children, if this is available.
Review of the specific contaminants reviewed in Section 2 indicated that none were endocrine disruptors.  Other factors such as low birth weight will require additional analysis.  EPA will defer additional analyses until after publication of the 2011 proposed rule.
2c
78
Ferris
Intermediate facilities and off-site HSM self policing may not be effective as a means to ensure protection of health and the environment in communities whether disproportionately affected or not.
EPA added additional discussion on strategies to mitigate impacts.
6c
201
Henshel
The proposed regulatory and implementation measures section needs solid expansion.  It's truly pitiful right now.  It should also be noted that without regulatory clarification of some of the weaknesses in the 2008 DSW rule, enforcement is only as strong as the environmental consciousness of the administration.  Even with revised regulation, enforcement and oversight is susceptible to political influence, just somewhat less so. Monitoring is not as much a part of the 2008 DSW rule, so how could monitoring data be used to help ensure facilities are not creating more of an exposure hazard for their communities under the new rule?
EPA expanded on the discussion of proposed regulatory and implementation measures in Section 6 in order to add clarity.
3c
106
Henshel
Other environmental justice analyses have used other diameters to define the proximate neighborhoods.  On studies of Indianapolis, especially, we have tested multiple diameters (all smaller than 3 km  -  0.5, 1 and 2 km) and typically found 2 km to be a good cut-off to define proximate communities.  It would seem that this question should be answered in the study, that is, that the study design would test multiple possible diameters (or donuts) around the facilities and determine which diameter provides the most sensitive distinction. It is quite possible that different types of facilities would have different cut-off diameters, based on differences in potential for dispersal/distribution of (excluded) hazardous waste (i.e. as liquid solvent waste or dust).
EPA determined that a 3-km radius is commonly used in EJ analyses. EPA will defer additional analyses, such as the sensitivity of the analysis to the diameter of the radius, until after publication of the 2011 proposed rule. 
3c
107
Henshel
In conducting similar EJ analyses, using TRI facilities, we discovered that we had to truthed the facility addresses to the GPS coordinates by on the ground determination of whether the address listed for the facility was actually the address of the releasing facility or the address of company offices.  Even when the two buildings were on the same campus, and not separated by miles, the difference between the buildings (between the addresses) could be a significant distance (on a mile long campus, they could be a mile apart), and thus could affect which neighborhoods were included in the proximate circle.  From the information provided in chapter 3 about the methods used for obtaining GPS coordinates, it appears that this truthing was never done or even attempted for this analysis.  No efforts were apparently made to ascertain whether the listed address referred to the hazardous materials processing location or to the main offices.
EPA added language in Section 3 noting that verification of GIS coordinates was beyond the feasible scope of this analysis.
4g
144
Henshel
No  -  see comments above about problems with addresses linked to facilities that have corporate offices away from the processing facilities, even when the two buildings are on the same campus.
EPA added language in Section 3 noting that verification of GIS coordinates was beyond the feasible scope of this analysis.
4d
128
Henshel
It is also appropriate to use the more commonly used cut-off of 2x the poverty line, since even families at 2x the poverty line are struggling just to provide food and shelter these days.  The census determined poverty line (that is, above or below the threshold) does not include childcare costs, as one example of the kind of critical expenditures that enable both parents to work.  Thus it would be appropriate to test poverty threshold versus 2x*poverty threshold as the criteria for determining bias in representation of low income populations with regard to proximity to the HSM or DSW facilities.
EPA will defer additional analyses, such as alternative demographic characteristics, until after publication of the 2011 proposed rule. 
4e
135
Henshel
The analysis should be broken out by state for all the analyses, and similarly, the notification facility results could be summed across states, as was done for the other types of facilities, even though the states covered are small in number compared to the total number of states represented in the analyses for the other facilities.  That discrepancy should be pointed out in the legend.  Yet there needs to be some way to compare across analyses.  Only summing across states for most, and separating out one subset of data makes it hard to compare across results.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4d
125
Daley
Yes. A statistical analysis of these results is an appropriate method to understand patterns in administrative and community level data. These patterns can reflect social and environmental disparities and the EPA can consider these patterns for future decision making. Note however, that the analysis presented in Chapter 4 did not include a comparison between community (3 km buffer area) and county level characteristics. State, national, and urban and rural were examined, but county information was not analyzed in this section of the report. County level information and analysis would have added value to this report. 
EPA will defer additional analyses until after publication of the 2011 proposed rule.
6c
183
Daley
In addition, it would be helpful to have county level comparisons for the community analysis. I am less certain that this addition would significantly change the conclusions, but it may strengthen the recommendations.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
Gb
11
Daley
Why are urban and rural comparison omitted for the damage case facilities?  Consistent analysis across categories is important. If the analysis cannot be performed for some reason, an explanation in the text would be helpful.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4e
137
Henshel
The first set of analyses for each facility type would be better and more clearly represented by box and whisker plots.  When using box and whisker plots, it is important to explain (for the lay audience) what data is represented in each part of the plots at some point in the chapter.  With that explanation, the box and whisker plots provide more information for the comparisons, and provide a visual sense of variability and bias around the means.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4h - 2
148
Daley
Option 2 has the strongest potential to add to the ability of the agency to draw inferences from their data sources. If statistical analysis indicates systematic socioeconomic and demographic differences in area with and without facilities, then this provides even stronger evidence of the distributional affects of decision making. In addition to this, it would be ideal if the agency could model cumulative environmental stressors in communities in a more integrated fashion. Rather than simply noting multiple stressors in the notification areas, provide some indication of cumulative stressors in the other categories as well (damage case facilities, hazardous waste, and non-hazardous industrial waste). 
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4h - 2
149
Ferris
The reviewer is uncertain if this analysis will yield additional useful information other than another take on areas where disproportionate impacts occur.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4h - 2
150
Henshel
Yes  -  this provides a better comparison group  -  a counterfactual.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4h - 3
151
Daley
See 2. above.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4h - 3
152
Ferris
This comparison may yield information about metropolitan areas where disproportionate impacts exist.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4h - 3
154
Ferris
Do host metropolitan areas factor in rural areas where capacity, including staffing, to oversee HSM facilities may be more limited compared to urban and suburban areas.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4h - 3
155
Henshel
Yes, this also would be a very appropriate comparison to include.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4d
127
Henshel
Yes, statistical methods are appropriate in general.  However, a more sensitive analyses seems to be to break the demographics up (quartiles, quintiles) into some binned division of the total range, create donuts around the facility, and run the analyses as a regression of the demographics against proximity.  You are able to detect (significantly) more subtle shifting of demographics over time.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
Gb
21
Henshel
The methods for analysis of environmental justice impacts (as in biases in the siting) are not  as sensitive as might be obtained with using regression analysis and grouping the data into maybe quartiles rather than doing all analyses on data that has only been divided into two categories  (ie equivalent of yes/no data).
EPA will defer additional analyses until after publication of the 2011 proposed rule.
Ga
2
Daley
To fully understand the differential impact of the 2008 DSW final rule on low income and minority communities and populations, it would be helpful to have a meaningful baseline analysis. What if continuing to regulate HSM under RCRA has even greater environmental justice impacts?  The report and analysis do not provide that information. So, there is no way to identify if the 2008 DSW rule  -  while likely to have disproportional impacts  -  is an improvement over current reclamation and disposal practices under RCRA. I recognize this analysis would entail considerable work, but if HSM regulated under RCRA currently has even greater environmental justice impacts, then this would be very important to know this as decision making proceeds. 
EPA believes that the regulatory comparison between hazardous waste regulations and the 2008 DSW rule already includes a qualitative discussion of the baseline impacts at hazardous waste, since the discussion includes the benefits of the 2008 DSW rule (which would mirror the "impacts" of hazardous waste regulations).  In addition, hazardous waste facilities are one of the categories in the demographic analysis. To address this comment, EPA added discussion to make this clearer.
Gc
22
Daley
It seems like the document is quite thorough. As noted in my response to question Ga, the document would be improved by a assessing the Environmental Justice impacts of the baseline  -  or RCRA's approach to HSM recycling and disposal. 
Such baseline analysis is already captured in regulatory comparison and in the analysis of hazardous waste generators and recycling facilities.  EPA added discussion to make this clearer.
4b
118
Ferris
In disproportionately affected communities, the issue is not whether there will be impacts; rather the issue is what the full extent of the hazard impacts will be.
N/A
Ga
1
Daley
My overall assessment is that the report manages to present a very complex decision making process and analysis in a fairly clear and accessible fashion. The discussion of potential hazards and exposure pathways seems clear and complete. The eight scenarios are clearly laid out. There report is quite detailed. The main points seem to be that the 2008 Draft Solid Waste Final Rule (DSW) enables generators to store more hazardous secondary material (HSM) for a longer period of time, and provides no prescriptive standards to ensure safe containment. Transporters of waste and intermediate and reclamation facilities are also impacted in ways not necessarily analyzed in the initial consideration of the rule change. Decreased transparency and public participation provisions combined with deregulation of hazardous secondary material to encourage reclamation is likely to have differential impacts across the county. The findings from this report present the EPA with a challenge. Recycling hazardous secondary material presents significant health and environmental hazards, and the 2008 rule change is not uniformly health protective. According to this analysis, some communities will be more impacted than others, and this differential impact has direct environmental justice implications.
N/A 
Ga
5
Henshel
In addition, the analysis never included taking the example situations (places where greater exposure by the neighbors could occur, for example) and quantifying the potential impact on the neighboring community (maybe within the 3 km diameter defined "proximity to site" area).  Using the basic approaches for predictive risk assessment, one would take the real situation, make assumptions for the average and high end of the range for the increased exposure situation, calculate the potential increased exposure to the chemicals, and then calculate the potential for increased risk, with average and high end assumptions.  At least one such scenario calculated for each situation identified as potentially increasing exposure under the new regulations would be helpful in determining just how critical revising the regulations would be.  It would have been even better to then recalculate the exposure and risk inherent in at least a few scenarios with the assumptions made under the recommendations for revision of the 2008 DSW rule, weak and non-specific as those recommendations were.
Assessment of the full extent of the impacts would require a formal risk assessment.  EPA did not pursue this because it would be too difficult to pick "example" scenarios that would cover the range of possibilities, and the analysis would be too sensitive to potential bias in upfront assumptions..
3
95
Ferris
Diversion of materials from the waste stream is beneficial (although on it face, without safeguards, reclamation falls short of environmental justice) and should be accompanied by adequate protections for health and the environment.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
ESb
39
Ferris
The benefits (per language in the Scenarios) don't balance the potential negative impacts. This could be more clearly set forth or demonstrated. Although the reviewer does not express agreement that any benefits would offset the potential hazards or actual hazards, more clarity or quantification of benefits would strengthen the analysis.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4d
129
Henshel
Given the neighborhoods in which these facilities are placed, it would seem to be appropriate to at least consider other toxic stressors, such as TRI facilities or road density as part of the EJ analysis looking at cumulative exposure potential (based on permit data for the HSM/potential DSW facilities for maximal exposure estimates).
EPA will defer additional analyses until after publication of the 2011 proposed rule.
5a
157
Daley
Yes. The agency has identified a wide range of stressors that can shape individual and community vulnerability. Additional resources that the agency could consider  - particularly if they embark on a more detailed county level comparison  -  include the county health rankings (http://www.countyhealthrankings.org/). 
EPA will defer additional analyses until after publication of the 2011 proposed rule.
5c
170
Daley
If the country level examination is pursued, the agency might be able to rely upon data compiled under the country health rankings. Otherwise, the data presented in the report seems adequate. 
EPA will defer additional analyses until after publication of the 2011 proposed rule.
6c
195
Henshel
Table 5.1 would allow for a very nice small cluster analysis (or principal component analysis) to look at which emissions and types of facilities link with which endpoints, and (using maybe MANOVA) incorporating transportation and health care availability would be interesting as confounding variables.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
2b
62
Daley
Is there a significant possibility that small businesses could be more vulnerable to sham recycling if many won't have the capacity and staffing to thoroughly assess recyclers?
EPA added discussion of "reasonable efforts" audits.  The supplementary text was added to Sections 2.5.2 and 5.1.4.
2c
70
Ferris
The selection of electric arc furnace dust and solvent wastes as national HSM proxies appears sound based on the analysis. Excluding used oil, non-ferrous metals and scrap metals from the hazard analysis, although associated with "damages cases?"
EPA added discussion on hazard characterization to Section 2.2.2.
3a
97
Ferris
Are the facilities that gave notice located; in disproportionately affected communities or not?  The recycling exclusions should not exacerbate impacts or exposures in these communities. A troubling compliance history could signal future endangerment of the health and the environment.
EPA added to the discussion in Section 6.1.4 to clarify the results of demographic analysis for notification facilities.  
3b
99
Daley
I cannot comment directly on whether or not the annual marker of 25 tons of recyclable material is appropriate. The report provided limited justification for this cut off point, and while it seems reasonable, someone with more applied experience in waste management and reclamation may think otherwise
EPA added language to 3.2.3 to explain the 25-ton cut-off, and how the number of facilities might change with a 1-ton and 100-ton cut off. 
3b
100
Ferris
Is the 25-ton threshold empirical?
EPA added language to 3.2.3 to explain the 25-ton cut-off, and how the number of facilities might change with a 1-ton and 100-ton cut off.
4b
116
Ferris
Have either the absence of these protections or the "real world" limitations on a community's ability to publicly participate been evaluated as an impact upon low income communities and communities of color?
EPA added discussion on public participation to the executive summary and conclusions.
4b
120
Ferris
Potential impacts associated with transportation of HSW warrant a closer look.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4e
132
Henshel
 There is a lot of detail provided for some of the analyses.  Other analyses (producing some of the results listed in the tables) do not have such clear or extensive or sometimes even any clear statement of how some calculations were made.  At the very least, a clear, jargonless description of how each column in each table was determined should be evident in the text in proximity to the tables.
EPA added additional descriptions to Section 4.
4e
133
Henshel
There needs to be an explanation of why some Fisher's analytical results are listed as N/A.
EPA added additional descriptions to Section 4.
5a
161
Ferris
Should whether the generator is a small business factor into community vulnerability?  For example, some small businesses could be less likely due to capacity to conduct in-depth due diligence or examinations of HSW facilities or how their wastes are recycled.
EPA added discussion on this topic to 2.5.2 and 5.1.4.
5b
166
Ferris
Ability to participate in the decision making process is a stated environmental justice vulnerability; however, this section states explicitly (in clear contradiction) that community input is not required of facilities or regulators.
EPA added discussion on this topic to 2.5.2 and 5.1.4.
6c
184
Daley
Finally, the report would also benefit from a clear assessment of compliance under RCRA and the DSW final rule. If there are no prescriptive standards for storing waste while waiting to reclaim/recycle, are facilities more likely to have accidents?  
EPA added discussion on this topic to the Executive Summary and Conclusions sections.
6c
193
Ferris
Tribes, including Inuits, will need additional resources to staff and implement the DSW Rule. Should more cases on Native lands be included in the damages cases analysis?
EPA added discussion about Tribal representation to Section 4.2.2.
ESb
37
Ferris
The "Summary of Potential Impacts...Under Different Recycling Scenarios" is clear however the accuracy of the presumptions is challenged by the language on its face. Pursuant to Hazard Characterization, EPA demonstrates and discusses the highly hazardous nature of the 2 main sources of reclaimed hazardous secondary materials (hereafter HSM) upon which much of the Draft DSW Rule analysis is based in addition to the storage hazards including leaks, fires and explosions. Container standards do not appear to compare with the highly hazardous nature of the 2 main sources upon which much of the Draft DSW Rule analysis is based.
EPA added discussion to the Executive Summary.
4a
109
Daley
The census data that the EPA uses for this analysis is standard. Improvements would include relying upon the 2010 census numbers to more accurately reflect community composition. If possible, it would be ideal to be able to rely upon the American Community Survey (ACS) to obtain more detailed and temporal information on community change. However, I am not sure that the sample size for the ACS are adequate for this facility based approach. It may be that by drilling down to the facility level and relying upon survey rather than census data, introduces too much variability. 
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4b
121
Henshel
The same methods and break outs should have been carried out for all analyses.  There should not have been different protocols and analyses used for some types of facilities and not for others.  There should have been a break out of asian, black, other minority, and possibly immigrant populations for all facilities.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4e
136
Henshel
The same set of demographics should be tested for all types of facilities for all types of analyses.  There is no justification for cutting back to 4 categories of analysis for some analyses, and none is given.
EPA added descriptions of why additional demographics were analyzed for notification facilities. 
4f
140
Ferris
Would assessment of an additional number of damages case affect the assumptions? 
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4h - 3
153
Ferris
Has EPA evaluated additional damages cases?  Is the pool of 218 adequate to reveal the widest reasonable range of damages, potential damages and types of comparisons?
EPA will defer additional analyses until after publication of the 2011 proposed rule.
6c
182
Daley
An environmental justice analysis of current regulatory practices for those states and facilities not adopting the 2008 DSW Final Rule would be helpful and may provide guidance if regulatory changes to the DSW rule are likely. The assumption seems to be that the status quo before the rule is neutral for communities of concern. Given the weight of the evidence in the environmental justice literature, this is not likely a reasonable assumption.
EPA will defer additional analyses until after publication of the 2011 proposed rule.
6c
188
Ferris
Does the DSW Rule consider the affects of tracking, monitoring and enforcement across multiple state lines or, nationally, whether HSW transport will operate smoothly across multiple state programs?  Is there favorable or negative impact on interstate commerce?
EPA added discussion on the analysis of interstate tracking, monitoring and enforcement in the conclusions section of the report. 
6c
191
Ferris
Has EPA assessed profitability and the viability of end-use markets for various HSW and facilities?  Would lack of markets affect, encourage or discourage a facility from taking steps and investing in protecting health and the environment?
EPA will defer additional analyses until after publication of the 2011 proposed rule.
1a
43
Daley
Yes, the Introduction is clear. It is easy to follow and well organized.
N/A
1a
44
Ferris
Summary of DSW EJ Methodology is clear and concise with a couple of exceptions.
N/A
1a
49
Ferris
In view of the complexity of what is explained, Scenarios are clear
N/A
1a
51
Ferris
The threat of post facto CERCLA liability is not interchangeable with up-front environmental protection standards and requirements. This reviewer does not presume that the entire regulated community is villainous; however, any vigor/rigor that a generator, receiver, recycler might invest in environmental protection could wane as oversight and compliance requirements are reduced or eliminated. 
N/A
1a
52
Henshel
No complaints.
N/A
2a
58
Ferris
The description of potential scenarios is clear.
N/A
2a
59
Ferris
The chart situated in the "Overview" section, which describes the 3 relevant exclusions is clear and concise. The applicability of RCRA (or not) is readily discernible from the scenarios.
N/A
2b
61
Daley
These scenarios seem plausible. They are described in clear and logical detail. 
N/A
2c
67
Henshel
Two other possible scenarios to address are listed above under "general comments".
N/A
2c
68
Daley
Yes, EPA's analysis of the types and quantities of hazardous secondary material is clear. Figure 1 provides a clear justification for the focus on solvents and electric arc furnace dust. 
N/A
2d
81
Daley
It seems as if EPA has noted many of the differences between hazardous waste regulations and the changes stemming from the 2008 Draft Solid Waste (DSW) Final Rule. Table 2.3 is a very detailed description of the eight likely scenarios and their impact on generators, transporters, and intermediate reclamation facilities. This material clearly communicates that there is likely to be substantial changes in the accumulation and storage of hazardous secondary material (HSM). 
N/A
2d
85
Ferris
Audits of reclaimers are not the same as or superior to periodic inspections or other agency oversight.
N/A
3a
96
Daley
EPA's approach to identifying facilities that are likely to begin recycling hazardous secondary material seems reasonable. I cannot think of another category to include. Out of the categories presented (already notified; damage facilities; currently generating hazardous secondary material, and facilities that may easily expand or switch to reclamation because of the DSW final rule), the last three categories seem more useful to understanding likely environmental justice impacts. With only 40 facilities providing notification at the time of the report, it is likely that "street level" implementation will be driven by the larger population of facilities rather than early adopters. 
N/A
3a
98
Henshel
no comment, outside this reviewer's area of expertise
N/A
3b
101
Henshel
no comment, outside this reviewer's area of expertise
N/A
3c
102
Daley
EPA is defining a community as a 3 kilometer circle or buffer around one of the facilities included in this analysis. The agency then uses census information to apportion socio-economic and demographic ratios within this radius. This method is superior to simply using standard census divisions such as census tracts, blocks, or even zip code aggregation. 
N/A
3c
103
Daley
The operational definition of "a community" is challenging and the environmental justice literature has numerous empirical studies at different levels of analysis, sometimes providing conflicting and competing results. Thus, using a measure of community with stronger measurement validity is important. Like all measurements, this is not a perfect representation of "a community", but it is a much improved measure over more traditional approaches, i.e., studies that rely upon preexisting census designations to ascertain community characteristics. Increasingly, a 3 kilometer radius is becoming a standard approach to improving the precision of community measures in environmental justice and public health research. 
N/A
3c
105
Ferris
EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing cutting edge demographic analysis. Their work shows increasing disproportionality, for example, nationally, people of color now make up the majority of those living within 3-km of such facilities and that where facilities cluster they make up over two-thirds. These are the highest concentrations of people of color ever reported from a national study of the distribution of hazardous waste facilities. Furthermore, when applying their recommended statistical analysis, it was found that racial disparities persist even when controlling for socioeconomic factors such as income, housing values, education, and employment status.
N/A
4a
111
Henshel
Using census data is standard protocol for many EJ analyses.
N/A
4b
114
Ferris
Without RCRA status or Treatment, Storage and Disposal (TSD) protections, communities will many facilities are not required to get a permit, provide notice and opportunity to comment, address public input, monitor or be subject to protective container standards or storage time limits. These are baseline historic protections that, while they do exist, as regards most environmental statutes, they haven't been updated to reflect the "real world" since original passage.
N/A
4b
115
Ferris
Furthermore, taking advantage of existing public participation mandates commonly requires a massive investment of usually volunteer community resources to engage in a process that is time consuming and expensive and in which, comparatively, the private sector and government stakeholders have extensive resources and dedicated staff.
N/A
4c
124
Henshel
It appears, yes.
N/A
4e
130
Daley
The statistical analysis seems to be properly done. As far as I can tell, these are conditional probability calculations. It is a relatively straightforward and simple approach. While I am not a statistician, it seems like a reasonable way to approach the analysis. It provides the agency with two types of information: the chances that a facility exists in a buffer area given the demographic and socio-economic composition (threshold risk),  and the probability of a particular demographic or socioeconomic composition given the likelihood of facilities (the demographic ratio). 
N/A
4f
138
Daley
Yes, I think the assumptions are accurately presented. Footnotes 34  -  37 are important components in the analysis. The report very clearly outlines data sources and how the information is aggregated together. As already noted, the distributional assumptions of the areal apportionment method should be more fully explained.
N/A
4f
139
Ferris
Assumptions appear accurate; however at this reading, this reviewer cannot determine whether they are thorough.
N/A
4f
141
Henshel
[No response provided]
N/A
4g
143
Ferris
Uncertainties in the data input in the analysis appear to be appropriate.
N/A
4h - 1
145
Daley
See 2. below.
N/A
4h - 1
146
Ferris
The reviewer is uncertain if this analysis will yield additional useful information without an assessment of additional cases.
N/A
4h - 1
147
Henshel
Your meaning is not fully clear in this question, and it is not clear what analyses you would do to address this question, and how you would break up the data.  I am also concerned that the number of facilities in each group might then be so small as to really decrease power to detect significant differences.
N/A
5a
158
Ferris
The description of other factors that may affect vulnerability is accurate.
N/A
5a
159
Ferris
The DSW Rule contains sound baseline vulnerability factors.
N/A
5a
163
Henshel
[No response provided]
N/A
5b
164
Ferris
The broader discussion is helpful. The report is complex, removing the broader discussion will not simplify the report tremendously. The broader discussion, however adds thoughtful detail and clearly communicates the challenges confronting public and private decision makers. 
N/A
5b
167
Ferris
The section is clear that lower participation levels can translate into experiencing greater negative impacts since "their input has not been considered fully, particularly if competing interests are set forth more effectively."  
N/A
5b
169
Henshel
It is better to keep the discussion broader.  In this kind of document, it is important to include the negative results as well as the positive results.
N/A
5c
172
Ferris
Unfunded mandates would affect EPA ability to ensure compliance if enforcement is left to states that don't have the budget to inspect, monitor, notify the public or implement public involvement.
N/A
6a
175
Daley
Yes, the conclusions seem to stem directly from the analysis presented in the report. 
N/A
6a
176
Ferris
The analysis and conclusions are extensive.
N/A
6a
178
Henshel
Yes, the results support EPA's conclusions, but likely not as well, currently, as they might with more extensive EJ analysis carried out on the data.
N/A
6b
179
Daley
Yes, I think the agency has clearly differentiated between the community level analysis  -  comparing the 3 km buffer area to state, national and urban and rural areas, and the population level analysis  -  exploring the threshold risk ratio and the demographic ratio for a larger set of categories (minority, poverty, American Indian and Alaska Native, and children under 5). 
N/A
6b
180
Ferris
The differences between community level and population level analysis are clear.
N/A
6b
181
Henshel
I think so, but I am not fully sure that my answer comes from the readability and clarity of the explanations  -  I suspect my familiarity with the information is affecting my comfort with the descriptions.
N/A
ESa
28
Ferris
The Executive Summary is very clear and readable.
N/A
ESa
29
Ferris
The material is complex and dense which is to be expected in an agency rulemaking.
N/A
ESb
36
Daley
Yes, the Executive Summary provides an accurate summary of the more detailed material presented in the report. 
N/A
ESb
42
Henshel
See above comments.  But yes, the Executive Summary does provide a reasonably accurate view of the findings and conclusions of this analysis.
N/A
Ga
3
Ferris
Generally, the DSW Rule is read-able and clear.
N/A
Gb
14
Ferris
Generally, information in the DSW Rule presented is clear and appears to be accurate.
N/A
Gc
23
Ferris
The DSW Rule is an extensive document with significant analysis and extensive data.
N/A
Gc
24
Henshel
This is a nice review of the data.  This is a nice first analysis.  Improvements can be made.  This question is a perfect example of the redundancy that could be avoided.
N/A
Ga
6
Henshel
Readability.  Unfortunately, this document is pretty standard for an EPA document.  If the audience is only technical, the document is usable and readable. If the audience is intended to be the EJ communities and include a non-technical audience, this document is dense and difficult to read.  There is also a lot of "spaghetti" logic  -  explanations that are internally referencing without sufficient definition of terms or acronyms.  The document is missing some key components that would make it more readable.  These include:
N/A
Ga
9
Henshel
Utility.  This analysis and report does demonstrate that there already is a bias in the location of the facilities that already produce hazardous waste, and this includes a bias in the facilities that might utilize this rule to increase storage time and volume of exempted otherwise hazardous materials.  The environmental justice analysis could have been more complete.  Further discussion of other approaches are included below. The report does make reasonably recommendations for some of the ways that the environmental justice concerns might by reduced, although the discussion of these abbreviated comments was both vague and needed elaboration. 
EPA will defer additional analyses until after publication of the 2011 proposed rule.
4b
112
Daley
Yes. The EPA has selected appropriate characteristics to analyze in this report. I think it would be a stronger analysis if along with "children under five", "adults over 65" were included in the detailed analysis in chapter 4. Given the demographic transitions of the baby boomers into an elderly population, it will become more critical to understand differential exposure for susceptible  populations at both ends of the spectrum. 
EPA will defer additional analyses until after publication of the 2011 proposed rule.
6c
196
Henshel
The chapter analyses seem to be ignoring the risk ratio data. Since the "full" set of analyses (ie Fishers Exact Test, for example) did not actually carry out the full set of analyses (separating out Black and Asian, for example), it seems that the results might have been stronger with the additional analyses.
Discussion of risk ratio data was added to the statistical analysis section.
4e
134
Henshel
 Why are the same charts repeated twice?  Is this necessary?
Additional discussion was added to Section 4 to clarify charts.
4a
110
Ferris
EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing cutting edge demographic analysis. Their work shows increasing disproportionality, for example, nationally, people of color now make up the majority of those living within 3-km of such facilities and that where facilities cluster they make up over two-thirds. These are the highest concentrations of people of color ever reported from a national study of the distribution of hazardous waste facilities. Furthermore, when applying their recommended statistical analysis, it was found that racial disparities persist even when controlling for socioeconomic factors such as income, housing values, education, and employment status.
N/A
4c
123
Ferris
EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing cutting edge demographic analysis. Their work shows increasing disproportionality, for example, nationally, people of color now make up the majority of those living within 3-km of such facilities and that where facilities cluster they make up over two-thirds. These are the highest concentrations of people of color ever reported from a national study of the distribution of hazardous waste facilities. Furthermore, when applying their recommended statistical analysis, it was found that racial disparities persist even when controlling for socioeconomic factors such as income, housing values, education, and employment status.
N/A
4d
126
Ferris
EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing cutting edge demographic analysis. Their work shows increasing disproportionality, for example, nationally, people of color now make up the majority of those living within 3-km of hazardous waste facilities and that where facilities cluster they make up over two-thirds. These are the highest concentrations of people of color ever reported from a national study of the distribution of hazardous waste facilities. Furthermore, when applying their recommended statistical analysis, it was found that racial disparities persist even when controlling for socioeconomic factors such as income, housing values, education, and employment status.
N/A
4e
131
Ferris
EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing cutting edge demographic analysis. Their work shows increasing disproportionality, for example, nationally, people of color now make up the majority of those living within 3-km of hazardous waste facilities and that where facilities cluster they make up over two-thirds. These are the highest concentrations of people of color ever reported from a national study of the distribution of hazardous waste facilities. Furthermore, when applying their recommended statistical analysis, it was found that racial disparities persist even when controlling for socioeconomic factors such as income, housing values, education, and employment status.
N/A
2
54
Ferris
The discussion of hazards associated with mainly the 2 selected vectors is clear. Hazards are extensive in contrast to reducing the levels of regulatory oversight provided by RCRA. Should all 4 legitimacy factors should be mandatory in view of the hazards?  What about release reporting?  Should releases be grounds for losing exclusion and HSW status?  How is a significant release determined?
N/A (comment on 2008 DSW rule)
2
55
Ferris
In view of the stated hazards, could managing HSW as a valuable commodity influence the generator, receiver, recycler and affect compliance?  This goes to the concept of legitimacy. Would the mandating a showing of economic value militate in favor of safeguards against releases, spillage?
N/A (comment on 2008 DSW rule)
2
56
Ferris
If wastes that are going to be recycled as hazardous as wastes that are not recycled, are both equally likely to be mishandled?  Are the regulatory and enforcement tools provided by the DSW Rule commensurate with the task of ensuring compliance?
N/A (comment on 2008 DSW rule)
3
94
Ferris
Does the large number of damages cases support granting the transfer-based exclusion?
N/A (comment on 2008 DSW rule)
2b
63
Daley
The DSW Rule could inadvertently encourage mismanagement while transitioning materials into the recycling stream. Does the Rule apply where HSW is recycled into even more toxic products?
N/A (comment on 2008 DSW rule)
2b
64
Daley
Should notice be the hazard quid pro quo for the exclusions which provide the benefit of different (reclamation), streamlined treatment of HSW?
N/A (comment on 2008 DSW rule)
2c
71
Ferris
How and when does enforcement after a "significant" release occur?  How is the determination made as to what constitutes a significant release?  Which party has the burden of proof?  It would seem that placing the burden of proof on the party that causes or is responsible for the release should bear the burden of proof opposed to, for example, the governmental entity.
N/A (comment on 2008 DSW rule)
2c
75
Ferris
Would streamlined, but standardized HSW reporting on a Manifest or comparable document be feasible, e.g., for state and local government, the industry?
N/A (comment on 2008 DSW rule)
2c
76
Ferris
Compliance with financial assurance can be a high hurdle given conditions imposed by the environmental insurance market. All parties under this rule should be required to comply with financial assurance. Would requiring management standards for reclamation facilities that don't have RCRA permits strengthen the DSW Rule by increasing or reducing the potential for environmental releases and/or disproportionate negative impacts?
N/A (comment on 2008 DSW rule)
2d
82
Ferris
The threat of post facto CERCLA liability is not interchangeable with up-front environmental protection standards, notice and record-keeping requirements. Streamlined record, keeping, tracking and monitoring would contribute to ensuring that toxic wastes are not dumped illegally dumped in disproportionately affected communities and would contribute to ensuring that HSW is safely delivered to the recycling facility.
N/A (comment on 2008 DSW rule)
2d
83
Ferris
The DSW Rule could be characterized, to some extent, as industry self-certification on HSW, which contrasts sharply with RCRA's historic cradle-to-grave framework and preventative approach to hazardous waste management and disposal.
N/A (comment on 2008 DSW rule)
2d
84
Ferris
Generators and third party reclaimers must file notices  -  they should be required or the HSW should be treated as hazardous waste.
N/A (comment on 2008 DSW rule)
4b
113
Ferris
Is the preventative approach a reasonable starting point when evaluating harm to the environment and public health.
N/A (comment on 2008 DSW rule)
4b
117
Ferris
Notice requirements inform communities, the public and municipalities about how HSW is being managed and recycled. How would the public learn about releases, spillage without notice, monitoring, recordkeeping; how would they advocate safeguards or alternatives?  Streamlined requirements would be preferable to none.
N/A (comment on 2008 DSW rule)
4b
119
Ferris
Should recyclers be required to demonstrate a history of compliance prior to benefiting from the exclusions?  
N/A (comment on 2008 DSW rule)
5b
168
Ferris
Does the importance and/or benefit of recycling override the value of public participation especially where disproportionality is an issue?  Additionally, the studies show that facilities which have notified already show multiple facilities, higher disease incidence and a dearth of hospitals in the 3-km area.
N/A (comment on 2008 DSW rule)
6a
177
Ferris
Arguably, DSW Rule conclusions supporting exclusion of HSW from RCRA protections are not thoroughly supported by the analysis as it pertains, in particular, to multiple (disproportionate?) impacts, potential hazards and public participation.
N/A (comment on 2008 DSW rule)
6c
185
Ferris
Specific and explicit storage timeframes and container requirements would facilitate safer handling by reducing the prospects for potential explosions, spills and other uncontrolled releases of HSM.
N/A (comment on 2008 DSW rule)
6c
186
Ferris
Off-site reclamation  -  regulatory safeguards that ensure proper management of HSW while on-site and during shipment are important.
N/A (comment on 2008 DSW rule)
6c
189
Ferris
What constitutes "reasonable effort" is not clear. This may not be a sufficiently high bar to deter mismanagement of HSW and could encourage high risk conduct.
N/A (comment on 2008 DSW rule)
6c
192
Ferris
Does the DSW Rule facilitate broad adoption by the states and state implementation?
N/A (comment on 2008 DSW rule)
6c
194
Ferris
Encouraging recycling should be possible while retaining a reasonable assurance of regulatory protection for health and the environment. 
N/A (comment on 2008 DSW rule)
ESb
38
Ferris
The Scenarios chart shows several instances involving movement or activity related to HSM where it appears that various historic RCRA safeguards are not required see e.g., certain scenarios under Scenario 3; Scenario 5; Scenario 6; Scenario 7; Scenario 8) without, it could be said, on balance, assuring a regulatory atmosphere that influences the regulated community to handle HSW in ways that prevent hazards. Comparatively, streamlined notice and recordkeeping would both facilitate emergency planning and response and protect human health and the environment.
N/A (comment on 2008 DSW rule)
ESb
41
Ferris
Regarding DSW Rule controversies about disproportionate negative impacts and exposures, would these communities feel more protected (versus adding to the burden of already cumulative pollution) if HSW were handled similar to those substances categorized under Universal Wastes?
N/A (comment on 2008 DSW rule)


                                       
