as being eligible for this proposed exclusion from solid waste. Note, however, that as discussed in Section IV of today's preamble, any solvent contaminated industrial wipe which will be reused as a wipe can be managed under the conditions for reusable wipes even if it was manufactured for one time use. Likewise, any solvent contaminated industrial wipe not being sent for reuse must be DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 65 managed as a disposable industrial wipe.

EPA believes that the conditions proposed for management of disposable solventcontaminated industrial wipes, described in detail above, in addition to ensuring that wipes don't pose a substantial hazard, are what generators and handlers would do in handling valuable commodities. Because of this, EPA is proposing many of the same conditions for the exclusion from the definition of solid waste for reusable wipes as we are proposing for the exclusion from the definition of hazardous waste for disposable industrial wipes. Nevertheless, in several places where it is appropriate, as described below, we are proposing different conditions for reusable wipes.

This section details a number of proposed conditions that specifically would ensure that reusable solvent contaminated industrial wipes are handled as valuable commodities, such as the condition that industrial wipes must not contain free liquids and the container conditions for accumulation, transportation, and handling of solvent contaminated industrial wipes. Solvent spillage from free liquids or leaking containers would increase the costs of managing industrial wipes incurred by laundries both during transportation and at the cleaning plant, thus devaluing the overall worth of reusable industrial wipes. In addition, free liquids arriving with the wipes would require laundries to incur the increased costs of disposing or otherwise managing the contaminated solvents, again reducing the overall value of the reusable industrial wipes.

Additionally, because of the flammable nature of many of the solvents to which this proposal applies, proper containers and the reduction of free liquids reduces the fire hazard posed by industrial wipes. We believe that companies which value their industrial wipes would be likely to manage them in a manner that protects their facility from fire damage and that protects them from loss of value, which would occur if the wipes were to catch on fire.

Some laundries recover solvents from the industrial wipes, but their economic interest lies principally in the wipes themselves. Management of free liquids to ensure compliance with DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 66 pretreatment standards established by local sewer authorities and to guard against fire hazards could increase overall operating costs. However, conditions that ensure the use of appropriate containers and that restrict the amount of solvents coming into the laundries, as described above,

always enhance the value of solvent contaminated industrial wipes to the laundries.

V. C. 2. Applicable Solvents Unlike the proposed exclusion from the definition of hazardous waste for industrial wipes sent for disposal in municipal or other non hazardous waste landfills, which is not applicable to 11 of the listed solvents, the proposed exclusion from the definition of solid waste is applicable to wipes contaminated with all hazardous solvents. The central question in solid waste determinations is whether the material has been discarded and, therefore, because EPA believes reusable industrial wipes containing any of the solvents listed in Table 1 would be commodity like when generators meet the proposed conditions, the conditional exclusion from the definition of solid waste would apply to wipes contaminated with all hazardous solvents.

V. C. 3. Proposed Conditions for Initial Storage and Accumulation V. C. 3. a. Proposed Condition The proposed conditional exclusion from the regulatory definition of solid waste would apply to solvent contaminated industrial wipes at the point where the generator ceases using them. If the wipes are managed according to the proposed conditions, they are not considered solid waste.

The first condition the industrial wipes must meet is an accumulation condition. For the exclusion from the definition of solid waste, EPA is proposing the same performance based onsite management condition as for the exclusion of disposable industrial wipes from the definition DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 67 of hazardous waste: for reusable industrial wipes, when wipes are discarded, the user must place them in a non leaking, covered container. This condition is more fully described above in Section V. B. 2.

One point that would differ for reusable solvent contaminated industrial wipes is that under an exclusion from the definition of solid waste, speculative accumulation would apply for these materials. This means that in any calendar year, 75 percent of the material accumulated for recycling must actually be recycled. If this percentage of recycling is not fulfilled, the material becomes classified as a solid waste. The speculative accumulation provision ensures that materials that have been excluded from the definition of solid waste, such as solvent contaminated industrial wipes, are not collected indefinitely under that exclusion instead of being recycled. However,

because of the business practices between industrial launderers and users of reusable industrial wipes described above, we believe that excluded reusable industrial wipes will be traveling between users and the laundries often enough that the speculative accumulation provision will not be a concern.

Currently, management standards for accumulation of reusable industrial wipes differ from state to state due to varying state policies. Some states require that the reusable wipes be handled as hazardous waste prior to laundering, some require the use of best management standards or the use of closed containers, and other states simply exclude reusable industrial wipes from meeting any requirements. However, some trade associations and industrial laundries already encourage their members and customers to use closed or sealed containers during storage and transportation of solvent contaminated wipes.

EPA believes that the proposed condition, designed to minimize loss of solvents into the environment, ensures responsible management of the wipes in a manner that is commodity like by preventing the loss of wipes, preventing the loss of solvent which could be recovered and reused,

and protecting against risks from fires. At the same time, by being performance based, this DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 68 approach allows for a wide variety of containers to be acceptable for accumulation of reusable wipes.

V. C. 3. b. Other Option As with disposable industrial wipes, EPA is considering not requiring a RCRA specific condition to be met for accumulation of reusable solvent contaminated industrial wipes and instead relying on OSHA regulations and any other applicable statutes. This option is fully described above in section V. B. 2. b.

V. C. 3. c. Request for Comment We request comment on our proposed conditions for accumulating reusable solventcontaminated industrial wipes in covered containers while at the generator's facility as well as the option of not proposing a RCRA standard, but relying on the OSHA regulations.

V. C. 4. Proposed Conditions for Containers Used for Transportation V. C. 4. a. Proposed Condition For transportation of reusable industrial wipes, we are proposing that facilities that transport reusable solvent contaminated industrial wipes off site to an industrial laundry, a dry cleaner, or a facility that removes solvents from industrial wipes prior to cleaning must do so in containers that are designed, constructed and managed to minimize loss to the environment; this is the same condition we are proposing for disposable industrial wipes that are conditionally excluded from the definition of hazardous waste. We believe this condition reflects the manner in which a commodity would be transported because it minimizes the possibility that valuable material would be spilled, lost or damaged during transportation. DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 69 This condition is more fully described above in Section V. B. 3. Its main advantage is that it allows for flexibility while assuring that losses are minimized.

V. C. 4. b. Plastic and Cloth Bags Used reusable wipes are often transported from the generator to the laundry in either plastic or cloth bags and throughout the development of this proposal, there has been much discussion with stakeholders about the use of such bags for transportation of industrial wipes and for management of them once they arrive at the laundry. Stakeholders have asked whether these bags could continue to be used under the proposed exclusion from the definition of solid waste.

EPA has chosen to propose a performance standard for this condition because it provides industry the ability to be creative in developing less expensive ways to reach a desired outcome. A performance standard allows for use of a wide variety of containers so many generators could continue with current practices. For example, while we would consider closed, sealed,

impermeable containers to meet this condition, plastic or cloth bags that were cinched shut could also potentially meet this condition. Cinched bags would reduce exposed surface area and evaporative loss and, provided no free liquids were present, might not allow liquid solvents to leak. However, at any time that hazardous solvents are spilled or leaked during transportation, we would consider this to be disposal of a hazardous waste and those managing the industrial wipes at the time the spill occurred would be responsible for cleaning up the spill and returning the wipes to compliance with the conditions of the exclusion ( i. e., the performance standard).

V. C. 4. c. Other Options For reusable industrial wipes, EPA is considering two additional alternatives during transportation: ( 1) requiring transportation of the industrial wipes in impermeable closed containers, or ( 2) the addition of a provision that allows wipes containing less than five grams of DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 70 solvent to be transported without any management standards.

EPA initially considered proposing that all generators of reusable industrial wipes would be required to transport them in impermeable, " closed" containers ( e. g., containers with the lids screwed on). Representatives of the industrial laundries ( the Uniform Textiles Trade Association)

questioned the need to require closed containers because they believe it would require them to purchase new and larger trucks for storage during transit. In addition, they expressed concern that those transporting industrial wipes would not be able to determine if free liquids were present within a closed container with a lid screwed on without further handling of the container and wipes. Unlike checking the bottom of a bag for liquids, unsealing these containers would be time consuming and would expose more of the solvents to the air. In addition, they argue that if the transporters of the wipes are unable to determine at the time of pick up whether there are free liquids in the container, this may result in an unnecessary burden falling on the handlers were free liquids to arrive at their site. Based on these concerns, we are not proposing this alternative, but believe the approach taken in today's proposed regulation addresses these concerns and will ensure protection of human health and the environment.

The second alternative, regarding allowing wipes that contain less than five grams of solvent to be transported without management controls, is more fully described above in section V. B. 3. b.

V. C. 4. d. Request for Comment We request comment on the proposed transportation condition, the alternatives considered, and on the ability of cloth bags to meet the proposed performance standard.

V. C. 5. Proposed Condition for Transportation to Laundry, Dry Cleaner, or Handler DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 71 V. C. 5. a. Proposed Condition Today, we are proposing that generators meet the " no free liquids" condition prior to solvent contaminated reusable industrial wipes being transported off site to be cleaned for reuse or being laundered on site. This is the same as the condition for disposable industrial wipes being transported for disposal at a non land disposal facility, such as a municipal solid waste combustor,

and is consistent with what state programs have required for their exclusions for reusable industrial wipes. For wipes to meet the federal " no free liquid" condition, no liquid solvent could drip from the wipes when sent off site. In addition, no free liquids could be present in the bottom of the container in which the wipes are transported.

EPA has tentatively concluded that the " dry" condition, proposed as a condition for disposable industrial wipes going to municipal or other non hazardous waste landfills, is overlystringent for the management of reusable industrial wipes. We believe this to be the case because,

throughout the solvent removal and cleaning process, the conditions established for eligibility for the exclusion from the definition of solid waste are already consistent with the existing hazardous waste regulations. For example, solvents removed prior to cleaning at a laundry must be managed as hazardous waste. In addition, solvent discharges to POTWs are allowed under the wastewater exclusion found at 40 CFR 261.4( a)( 2). Local POTWs have the authority to set limits applicable to individual indirect dischargers to prevent releases and to prevent interference with operations at the POTW; solvent discharges are often subject to these limits.

We believe the " no free liquids" condition helps ensure that reusable industrial wipes that are saturated with solvent are partially reclaimed before they are shipped for cleaning or laundry and helps ensure that they are handled as valuable commodities by reducing the risk of losing valuable wipes as the result of fires caused by ignitable solvents. Therefore, it may lead to resource conservation by encouraging recovery of solvent by the generator. DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 72 The " no free liquids" condition is more fully described above in Section V. B. 6. As mentioned in that section, solvents removed from wipes are solid wastes and may be characteristic or listed hazardous wastes and must be managed accordingly.

For reusables going to laundries, dry cleaners and industrial wipes handlers, we are not proposing a labeling condition that parallels the one described in Section V. B. 4. for disposable industrial wipes. EPA decided not to propose a labeling condition in this case because the commodity like nature of reusable wipes means that, in general, laundries have agreements with their customers and already know what is in the containers of wipes that arrive. Therefore,

containers of reusable industrial wipes do not require a label to provide this information or to notify the transporters or laundries how the wipes should be handled. EPA believes that because these materials are managed as commodities by the generators and the handlers, previously existing business documents should provide sufficient information to ensure proper handling.

V. C. 5. b. Other Option EPA is also considering a " no free liquids when wrung" condition instead of the " no free liquids" condition. This condition would differ from what we are proposing in that it would require that each wipe, when hand wrung at any time after its use until it is laundered, could not drip solvent. See section V. B. 6. b. for further description of this option.

V. C. 5. c. Request for Comment We request comment on the " no free liquids" condition and the " no free liquids when wrung" option as well as on whether EPA should include a labeling requirement as a condition for sending reusable wipes to laundries or industrial wipes handlers. In addition, we also specifically request comment on the information submitted by the Association of Nonwoven Fabrics Industry and the Secondary Materials and Recycled Textiles Association regarding whether to place a DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 73 specific limit on either the maximum amount of solvent or the concentration of solvent on reusable wipes sent to a laundering or dry cleaning facility or a numerical limit on the number of shop towels launderers or dry cleaners can accept on an annual basis for cleaning.

V. C. 5. d. How Can Generators Meet the " No Free Liquids" Condition?

The measures that a generator can take to meet a " no free liquids" condition are the same for reusable wipes as for disposable wipes. For more information on these measures, see Section V. B. 6. d. above.

V. C. 5. e. Request for Comment EPA is taking comment on our proposed approach to determining if the " no free liquids"

condition is being met. Additionally, we request comment on whether there are other approaches EPA should have considered in this proposal.

V. C. 6. " Exotic" Solvents In the process of developing this proposed rulemaking, the Agency has learned that there are new, " exotic" solvents on the market, such as terpenes and citric acids, that, while labeled as non hazardous, could actually be flammable. Some stakeholders have suggested that we propose to allow generating facilities to add water to the containers used to transport their industrial wipes off site when these facilities are using one of these " exotic" solvents. For more information on this issue see Section V. B. 7. above. In that section, we also request information and comments on these solvents, and on whether special conditions should be established for " exotic" solvents.

V. C. 7. Generators That Remove Solvent from Industrial Wipes DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 74 V. C. 7. a. Regulatory Status of Removed Solvent Any solvent removed from an industrial wipe by a generator when using solvents in conjunction with industrial wipes may be subject to regulation as a hazardous waste. Therefore,

the generating facility must determine whether the solvent removed from the industrial wipe is listed as a hazardous waste or exhibits a characteristic of a hazardous waste as defined in 40 CFR Part 261, and, if so, manage it according to prescribed RCRA regulations under 40 CFR Parts 260 268 and 270.

V. C. 7. b. Regulatory Status of Solvent Removal Technologies Under today's proposed exclusion from the definition of solid waste, the solventcontaminated wipes would not be a solid or a hazardous waste at the time they undergo solventremoval Therefore, as discussed in Section V. B. 8. b., solvent removal technologies would not be considered treatment under RCRA and such operations, whether they were conducted at generating or handling facilities would not be considered to be treating hazardous waste and would not require a RCRA permit.

V. C. 8. Proposed Conditions for Intra Company Transfers V. C. 8. a. Proposed Condition EPA is proposing that wipes can qualify for the exclusion from the definition of solid waste when transferring solvent contaminated reusable industrial wipes containing " free liquids,"

provided the transfer is between facilities within the same company, and the receiving facility has a solvent extraction and/ or  recovery process that removes enough solvent from industrial wipes for them to meet the " no free liquid" condition. Generators must transport the industrial wipes in containers that are designed, constructed, and managed to minimize loss to the environment. This DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 75 provision encourages use of technologies that remove more solvent than processes such as hand wringing would; it is an effort to increase solvent recovery and resource conservation, as well as a way to minimize solvent going into laundries' wastewater or into landfills. As we are proposing a similar condition for conditionally excluded industrial wipes going to disposal, more detailed discussion of this provision as well as other options EPA is considering can be found above in Section V. B. 9. Note, however, that reusable solvent contaminated wipes would not be required to meet the labeling requirement described in that section, as labels are not required for reusable wipes elsewhere.

V. C. 8. b. Request for Comment EPA seeks comment on whether intra company shipments of industrial wipes containing free liquids should be allowed under the conditions of the exclusion from the definition of solid waste and whether this provision would be likely to facilitate the recovery of hazardous solvents.

EPA also seeks comment both on whether the additional conditions should be included and on whether we should expand the provision to allow industrial wipes, under the conditional exclusion from the definition of solid waste, to be sent in with free liquids to third party solvent extraction facilities not within the same company. Both options are discussed in Section V. B. 9.

V. C. 9. Proposed Conditions for Management at Handling Facilities V. C. 9. a. Proposed Condition As described for disposable industrial wipes, generators would have the primary responsibility for assuring that their industrial wipes meet the conditions for the proposed exclusion from the definition of solid waste. Additionally, handling facilities which receive and process reusable industrial wipes, such as industrial laundries, would also need to meet certain minimum conditions for the wipes to remain excluded from the definition of solid waste. The first DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 76 condition is a container standard for the time between when the industrial wipes arrive on site and when the facility first introduces them into their process. The laundry's process begins when the laundry begins to handle the wipes. For example, at many laundries, the wipes are sent through a counting machine first, before they are cleaned, to record how many wipes the generator has sent to be cleaned. In this example, wipes would enter the handling process when they are counted.

We are proposing today that, to qualify for the exclusion from the definition of solid waste for industrial wipes, the wipes would have to be stored either ( a) in containers that are designed,

constructed and managed to minimize loss to the environment that would meet the transportation condition in today's proposal, or ( b) in non leaking covered containers that would meet the generator accumulation conditions in today's proposal. From site visits, we expect that at the laundries, the solvent contaminated industrial wipes will generally remain in the containers in which they were transported. However, in the case where a facility chooses to transfer the industrial wipes into another container before the wipes enter the handling process, we are proposing that industrial wipes meeting the generator condition, placement in a non leaking covered container, would also maintain the exclusion from the definition of solid waste.

Handling facilities would also not be allowed to mismanage free liquids. For example, an industrial laundry may not introduce free liquids into their laundering process. A shipment of industrial wipes would be considered to contain free liquids either if solvent drips from the wipes or if there are free liquids in the bottom of the container of wipes. Facilities that happen to receive solvent contaminated industrial wipes in containers with free liquids ( unless they are being transported intra company) would be required to either ( a) return the container ( with the wipes and liquid) to the user as soon as practicable ( e. g., with the next scheduled delivery), or ( b)

recover and properly manage any liquid solvent that arrives at the facility under federal or state hazardous waste regulations. When returning the wipes and liquids to the user, the laundry would have to transport them in the containers that meet the original shipment conditions, but would not DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 77 be required to use a hazardous waste manifest.

The conditions of this proposal would require a laundry or handling facility to take necessary steps to return the wipes to compliance with the conditions of the exclusion, as described above. The mismanagement of free liquid solvents by the laundry, either by illegal disposal, by adding them to the wash, or other means, would be a violation of the conditions of the exclusion. If the exclusion is not maintained by either of the ways described above, we would consider the wipes and solvent to be a solid waste and possibly a hazardous waste and would consider the laundry to be mismanaging the wipes and/ or free liquids. In addition, because the generator is originally responsible for the existence of the free liquids in wipes, it would also be potentially responsible for wipes having lost the exclusion at the handler despite the wipes being out of the generator's control at that moment.

The objective of this condition is to address situations where free liquids arrive at a handling facility such as an industrial launderer, either ( a) because of percolation and gravity effects during transportation, causing the solvents to sink and saturate the wipes at the bottom of any given container; or ( b) because of mismanagement of the wipes by the generator. We believe that over time this approach will ensure that wipes are handled in the most efficient manner possible to minimize the need to return wipes and free liquids to users' facilities.

V. C. 9. b. Request for Comment EPA seeks comment on the above conditions for reusable industrial wipes managed at handling facilities to be excluded from the definition of solid waste. EPA also requests comment on whether laundries receiving shipments of wipes that contain free liquids should be required to submit a notification to the state or EPA region implementing RCRA to inform them that the " no free liquids" condition, and therefore a condition of the exclusion, had not been met. DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 14Three years is the standard period of time that EPA usually requires for the maintenance of records 78 V. D. Recordkeeping EPA is not proposing any specific recordkeeping requirements for either the proposed exclusion from the definition of hazardous waste for disposable industrial wipes or for the proposed exclusion from the definition of solid waste for reusable industrial wipes, since 40 CFR 261.2( f) already requires persons to provide appropriate documentation that would demonstrate that the industrial wipes are not a solid waste, or are excluded from the hazardous waste regulations.

Nevertheless, we are considering whether specific recordkeeping requirements should be included in the conditions to qualify for the exclusions proposed today for the purpose of improving implementation by the relevant regulatory authority. We are asking for comment on a number of related issues. For example, should EPA require generators to keep basic information,

such as the number or volume of industrial wipes generated, where the industrial wipes were sent,

and how many shipments were sent off site? In addition, should EPA require generators to certify that their shipments of industrial wipes meet either the " no free liquids" or the " dry" condition, as appropriate, and maintain those records for three years? 14 Finally, should EPA require that the generators certify that their employees are adequately trained to manage wipes stored and handled on site through compliance with generator employee training and emergency response requirements in 40 CRF Part 262. Should those records be maintained for three years if such requirements were ultimately promulgated? We request information on whether the certification could easily be added onto regular business records such as a transporter's pick up sheets or shipping papers. In addition, would such a provision increase the likelihood that generators would ensure that the processes, techniques or technologies they use would meet the applicable " no free liquids" or " dry" condition?

EPA also seeks comment on whether industrial laundries, dry cleaners, and industrial DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 79 wipes handling and disposal facilities should be required to certify the condition of wipes that arrive at their facility, such as whether or not they contain free liquids. If the wipes contain free liquids, should handlers be required to record what steps they took to address this problem ( such as documenting whether they removed the free liquids and properly managed the solvents or returned the saturated wipes and free liquids to the generator) and maintain these records for three years? In addition, EPA seeks comment on whether, when returning industrial wipes to their customers, handlers should be required to use a " streamlined" manifest to reflect the type of solvents enclosed, the weight or volume of the free liquids, the date and destination of the shipment, and acknowledgment of receipt by the generator.

Finally, EPA requests comment on whether the inclusion of these recordkeeping requirements in the rule would improve compliance with the conditions of the rule and, therefore,

improve implementation of the provisions of the rule.

V. E. Enforcement Under today's proposed rule, reusable industrial wipes are excluded from the definition of solid waste and disposable industrial wipes are excluded from the definition of hazardous waste if certain accumulation, transportation, and handling conditions are met. The party operating under either conditional exclusion will be responsible for maintaining the exclusion by ensuring that all the conditions are met. In the event that a condition is not met, the party managing the wipes at that time will need to remedy the situation as soon as possible in order not to jeopardize the exclusion. Facilities taking advantage of the exclusion that fail to meet one or more of its conditions may be subject to enforcement action, and the wipes may be considered to be hazardous waste from the point of their generation ( i. e., from the point when the generator had finished using them). EPA could choose to bring an enforcement action under RCRA § 3008( a)

for all violations of the hazardous waste requirements occurring from the time the industrial wipes are generated through the time they are finally disposed of, reclaimed, or reused. States could DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 80 choose to enforce for violations of state hazardous waste requirements under state authorities.

EPA believes that this approach, which treats solvent contaminated industrial wipes that do not conform to the conditions of the exclusions as either solid waste or hazardous waste from their point of generation, provides generators, disposers, and other handlers with an incentive to handle the industrial wipes in a manner that prevents the loss of the exclusion. It also encourages each person to take appropriate steps to see that others in the management chain handle the industrial wipes so that they are legitimately disposed of, reclaimed, or reused.

For example, if a laundry operating under the exclusion from the definition of solid waste receives a barrel of reusable industrial wipes containing free liquids and mixes them with other industrial wipes without removing the free liquids, then those industrial wipes would not be excluded. Likewise, if a municipal solid waste landfill disposes of industrial wipes containing a prohibited solvent such as trichloroethylene, the disposables would not be excluded. In both cases,

EPA and an authorized state could choose to bring an enforcement action against those in the management chain, including the generator, transporter, and/ or receiving facility, for violations of applicable RCRA hazardous waste requirements. In these cases, the material would be a hazardous waste from the time the generator first generated it.

As with any violation, EPA and authorized states would have enforcement mechanisms available that range in severity. In addition, EPA and authorized states would have flexibility in applying these mechanisms to the various responsible parties. Enforcing agencies would use their discretion to select the enforcement mechanisms and the parties that are appropriate to a specific case and its factual circumstances. Some of the enforcement mechanisms include sending a notice of violation, ordering that the situation be remedied, or assessing fines or other penalties as appropriate.

Generators and recycling, disposal, or handling facilities claiming the exclusion must be DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 81 able to demonstrate to the appropriate regulatory agency that the conditions of the exclusion are being met. In an enforcement action, the facility claiming the exclusion bears the burden of proof pursuant to 40 CFR § 261.2( f), to demonstrate conformance with the conditions specified in the regulation. For disposable industrial wipes, the burden of proof falls on the generator, commercial transporter, municipal solid waste landfill, municipal waste combustor, combustion facility, or handling facility claiming the exclusion, and for reusable industrial wipes, it falls on the generator,

laundry, dry cleaner, or handling facility claiming the exclusion.

Additionally, the exclusions in today's rule would not affect the obligation to promptly respond to and remediate any releases that may occur of solvents and wipes managed within the exclusion. If, for example, a hazardous solvent is spilled or released, then the solvent would be discarded. Any management of the released material not in compliance with the applicable federal and state hazardous waste requirements could result in an enforcement action. For example, a person who spilled or released a hazardous solvent, and failed to immediately clean it up, could potentially be subject to enforcement for illegal disposal of the waste. The waste could also potentially be addressed through enforcement orders, such as orders under RCRA § 3013 and 7003.

V. F. Alternative Options to the Approach in Today's Proposed Rule The approach taken in today's proposed rule, the exclusion from the regulatory definition of hazardous waste for disposable wipes and the exclusion from the regulatory definition of solid waste for reusable wipes, is one of a few that EPA is considering. The others are described below.

V. F. 1. Exclusion from the Definition of Hazardous Waste for Disposable and Reusable Solvent

Contaminated Industrial Wipes We are considering an option that would exclude reusable industrial wipes from the DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 82 regulatory definition of hazardous waste rather than exclude them from the regulatory definition of solid waste, using the same conditions as those specified in today's proposed rule. This approach would not differentiate the regulatory status of solvent contaminated industrial wipes whether they are being sent for recycling or for disposal.

Under this approach, the provisions of the rule concerning disposable solventcontaminated industrial wipes would remain the same as in today's proposed option. For reusable solvent contaminated industrial wipes, the conditions for complying with the rule would be the same as in today's proposed option, but the reusable solvent contaminated industrial wipes would remain solid wastes ( though not hazardous wastes) when the conditions were met.

Some stakeholders, particularly laundries and other handlers of reusable wipes, are strongly opposed to this option. They believe that they manage a commodity rather than a waste and argue that an exclusion from the definition of hazardous waste would inappropriately classify them under the regulatory definition of solid waste. These stakeholders are also concerned that if contaminated wipes being laundered and reused were to be considered a solid waste by EPA, they may become subject to state solid waste fees if states were to decide to collect such fees.

EPA requests comment on the appropriateness of this option relative to today's proposal.

V. E. 2. Exclusion from the Definition of Hazardous Waste for All Disposable Solvent

Contaminated Industrial Wipes Under a Single Set of Conditions An additional option we are considering would provide an exclusion from the definition of hazardous waste for all disposable wipes under the same conditions. The option affects only the exclusion from the definition of hazardous waste proposed today; all provisions for reusable solvent contaminated industrial wipes described in Section V. C. would remain the same. Under this option, the Agency would not differentiate between wipes managed in municipal and other DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 83 non hazardous waste landfills or non landfill facilities   the conditions necessary for industrial wipes to obtain an exclusion from hazardous waste regulations would be the same for both types of management. For example, solvent contaminated wipes would not need to be " dry" prior to landfill disposal; rather, they would be required to contain no free liquids.

We are carefully considering this option, since it would be simpler and easier to implement and would simplify the regulations for generators of solvent contaminated disposable industrial wipes. However, we are concerned with this option because it would allow solvents that may pose an environmental and human health risk to be placed in municipal or other non hazardous waste landfills without meeting the 5 gram condition ( i. e., the " dry" condition) that would reduce risks. The Agency requests comment on this approach and on the assumptions we used in our landfill risk screening analyses. Specifically, are there assumptions or parameters that should be modified to reflect a more accurate estimate of the level of risk posed by contaminated wipes in landfills?

VI. Additional Benefit of the Proposed Rule: Fostering Pollution Prevention In addition to regulatory reform in response to stakeholder concerns, we believe this proposed rule will foster pollution prevention and recycling opportunities by encouraging users of disposable industrial wipes who desire less stringent management requirements to use alternative solvents, use less solvent, or remove solvents to achieve the " no free liquids" or " dry" conditions.

For instance, generators desiring to dispose of wipes in municipal or other non hazardous waste landfills must use solvents other than the 11 specified F listed spent solvents and must reduce the amount of solvent which is contained in them to a " dry" state. In many instances, reduction and/ or substitution can result in overall cost savings to a company. In a recent study, the Chemical Strategies Partnership found that the cost of managing chemicals ranges from $ 1 to $ 10 for every dollar of chemical purchased. These management costs include liability, safety training,

compliance efforts, and collection and disposal costs that would not accrue to the company if they DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 15See Chemical Strategies Partnership Manual, Tools for Optimizing Chemical Management. Copies can be obtained by email at: inquiry@ csp. sfex. com or www. chemicalstrategies. org.

84 were purchasing a non hazardous solvent. 15 A company could also achieve savings if they were to reduce the amount of solvent they use to meet the conditions of this proposed rule.

EPA strongly encourages companies to examine the feasibility of using less solvent and/ or substituting non hazardous solvents for hazardous solvents. Various industry and government sources might be able to assist in identifying alternative sources. ( See, for instance, EPA's Design for the Environment website at www. epa. gov/ dfe or contact your EPA region or state for technical assistance.)

This proposed rule would also have the potential to increase pollution prevention because it may increase the incentive to control the amount of solvent applied to industrial wipes. For example, the use of less solvent might make it easier to meet the conditions of either exclusion. In addition, generators using significant amounts of solvent on their disposable wipes would need to extract the solvent using an advanced solvent extraction process in order to meet the proposed " dry" or " no free liquids" conditions, increasing the likelihood of additional solvent reuse and recovery. Opportunities already exist in the marketplace to recover and reuse the extracted solvent by either establishing an on site solvent extraction process or by sending the industrial wipes to an off site solvent extraction facility. Technologies have emerged that primarily dry clean contaminated materials and, once dry cleaned, recover excess spent solvents through reclamation.

Such technologies may offer alternatives to generators for recycling or reusing both the spent solvents and the used industrial wipes. In many instances, use of these technologies can result not only in opportunities to reduce pollution, but also to reduce disposal costs.

VII. Risk Screening Analysis VII. A. Introduction DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 85 The discussion below summarizes the Agency's risk screening analysis for disposable and reusable industrial wipes. For specifics regarding the risk analysis or details on how it was conducted, please see the background documents in the docket for today's proposed rulemaking,

particularly the risk screening assessment document, " Estimating Risk from Disposal of Solvent Contaminated Shop Towels and Wipes in Municipal Landfills," March 1999.

As previously stated, several stakeholders have argued that disposing of industrial wipes containing small amounts of solvent in municipal or other non hazardous waste landfills would not pose a substantial hazard to human health and the environment and have submitted rulemaking petitions to the Agency on this matter. Similarly, they argued that disposal of treatment residues, such as ash from incineration of disposable wipes and sludges from wastewater treatment at laundries washing industrial wipes, would not pose a substantial hazard.

In response to these arguments, EPA conducted risk screening analyses for the following scenarios to evaluate the potential risks to human health and the environment:

° Direct landfilling of disposable industrial wipes ° Landfilling of combustor ash generated from burning disposable industrial wipes in a municipal waste combustion facility, and ° Landfilling of industrial laundry wastewater treatment sludges generated from washing reusable industrial wipes VII. B. What Analyses Did EPA Do?

EPA first estimated risks from exposure to the 30 F listed solvents commonly used on industrial wipes assuming they were directly disposed of in an unlined municipal landfill. We looked at potential risks from inhalation of the solvents volatilizing from the landfill, from ingestion of groundwater contaminated by solvents leaching from the landfill, and from inhalation DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 86 of solvent vapors released from contaminated groundwater during showering and other uses. We evaluated exposure to solvents volatilizing from landfills using a partitioning model to determine solvent releases and an air dispersion model to determine the air concentration at a point of exposure 75 meters from the landfill. The partitioning model estimates what fraction of the total mass of solvent degrades, volatilizes, leaches, and adheres to the material in the landfill.

The evaluation of risks from groundwater incorporated previous probabilistic analyses of groundwater fate and transport to determine the relative concentrations of contaminants in the landfill leachate and at a nearby well. The 5th percentile value from the distribution of results,

which is a conservatively low ratio of leachate concentration to well concentration ( i. e., indicates a high well concentration relative to a given leachate concentration), was used for the analysis.

The results of the probabilistic groundwater analyses were combined with partitioning model results, which determined the initial leachate concentrations, and with standard default exposure assumptions, which determined the exposure to individuals from the calculated well concentrations.

The exposure evaluation examined the sensitivity of the results to different parameters such as the size of the landfill and climatic conditions. EPA determined that the most sensitive set of conditions was exposure to children due to releases to groundwater from a small landfill in a wet climate. This worst case scenario was used to estimate maximum allowable daily loadings for each solvent, based on not exceeding specified risk levels.

In particular, to evaluate risks, EPA used health benchmarks from its Integrated Risk Information System ( IRIS), supplemented with other sources as necessary. Benchmarks for noncarcinogenic solvents are presented as reference doses ( RfD) for exposures through ingestion and as reference air concentrations ( RfC) for exposures through inhalation. These are concentrations which are considered to be protective of human health; therefore, the calculated exposures were compared directly to these values to determine whether there was a potential DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 87 human health risk for the noncarcinogenic solvents. For carcinogens, IRIS presents cancer slope factors, which are used to calculate risk as a function of exposure dose. For this analysis, EPA used the exposure dose corresponding to a cancer risk of 1 in 100,000 ( 10 5) as the health benchmark for an acceptable cancer risk level.

We initially evaluated disposal of industrial wipes from one generating facility sent to one landfill. EPA then evaluated various factors, such as the number of facilities likely to use one landfill for disposal, percentage of facilities using F listed solvents, and the percentage of facilities sending their disposable industrial wipes to landfills rather than combustors in order to extrapolate the results from the initial analysis into results which would be representative of potential actual exposures.

EPA's second analysis estimated risks from disposal of ash from incinerators burning disposable industrial wipes. EPA assumed that 99.99% of the solvent was destroyed in the incinerator ( with the remainder going into the ash) to derive a solvent loading in ash for each of the 30 F listed solvents. We then used the same landfill analysis described above to determine how much solvent would be partitioned to leachate, transported to the receiving well, and exposed to the receptor. As in the above landfill analysis, EPA then calculated what the allowable solvent loadings to an incinerator could be to determine which listed solvent ash residues could safely be disposed of in a municipal or other non hazardous waste landfill.

EPA's third analysis was of potential risks from disposal of sludge from wastewater treatment at laundries which clean solvent contaminated industrial wipes. For this analysis, we used the maximum of a very limited number of wastewater concentrations collected from industrial laundries by the Office of Water as part of their effluent guidelines development process. We estimated the sludge concentrations of different solvents using a partitioning model to estimate the mass of solvent in the wastewater that partitions to air, water, and sludge. Since we had wastewater data for only a limited number of solvents, we extrapolated that data to the DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 88 other solvents. Once we had a solvent loading in the sludge going to a landfill, we used the same analysis described above to estimate risks.

Finally, EPA examined potential ecological risks by estimating solvent concentrations in surface water streams which are affected by groundwater contamination from landfills with solvent wastes. These estimated concentrations were then compared to available water quality criteria. The analysis was very conservative in that 100% of the solvent in groundwater was assumed to be discharged into a small stream; however, water quality criteria were available for only ten of the solvents, so the other 20 were not evaluated for ecological risks. More information on the analysis can be found in the Technical Background Document for this proposal, available in the Docket.

VII. C. What Were the Results of the Analyses, and What Do they Mean?

VII. C. 1. Disposable Solvent Contaminated Industrial Wipes Managed in Landfills The results of the risk screening analysis for each solvent are presented as a comparison of the allowable loading to a landfill ( based on meeting the previously described risk thresholds) with the projected loadings under two possible conditions: 1) untreated industrial wipes and, 2)

industrial wipes treated by a technique such as centrifuging which was assumed to remove 90% of the solvent. The detailed results are presented below in Table 8 and show that:

° 16 listed solvent constituents would not exceed risk thresholds, even without treatment,

° 8 additional listed solvent constituents would not exceed the risk thresholds if wipes were processed by solvent extraction, and ° 6 remaining listed solvent constituents would exceed the risk thresholds even if wipes were processed by solvent extraction. DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 89 As indicated earlier, there are a number of conservative factors included in the analysis.

Factors which would tend to increase our estimate of risk include the use of the 5th percentile value from the distribution of ratios of leachate concentrations to well concentrations, the assumption of a small landfill in a wet climate, and the assumption that the receptor for inhalation risks is only 75 meters from the landfill. On the other hand, the use of standard default exposure assumptions, as well as some of the loading assumptions were based on best estimates, not conservative assumptions. While EPA has not done a comprehensive sensitivity analysis of all risk factors, the analysis is generally consistent with the Agency policy of using high end risk estimates ( above the 90th percentile, but on the real risk distribution) as one factor in its decision making.

Another factor to note is that there is considerable uncertainty in a large number of the parameters used in the analysis. For example, there was wide variability in the estimates of how much solvent would be on each industrial wipe; the estimates of how many facilities would use a particular landfill were based on general demographic data; and the fate and transport models, as well as some of the health benchmarks, have some degree of uncertainty. While the Agency has not conducted a detailed quantitative uncertainty analysis, it is likely that the range of the uncertainty in this risk analysis covers an order of magnitude or more. The Agency specifically solicits comments on the results and the assumptions and decisions made in conducting the risk screening analysis. More information on the analysis can be found in the Technical Background Document for this proposal, available in the Docket.

Table 8. Evaluation of Solvent Contaminated Disposable Wipes for Landfilling CAS No. Constituent ( RCRA Waste Codes) Loading to meet the health benchmark ( kg/ day, per landfill) Loading ( kg/ day, per landfill) Loading Assuming Centrifuging ( kg/ day, per landfill) Conclusiona Noncarcinogens DRAFT DO NOT QUOTE OR CITE DELIBERATIVE CAS No. Constituent ( RCRA Waste Codes) Loading to meet the health benchmark ( kg/ day, per landfill) Loading ( kg/ day, per landfill) Loading Assuming Centrifuging ( kg/ day, per landfill) Conclusiona 90 67 64 1 Acetone ( F003) 1.73 4.32 0.432 Centrifuge required 71 36 3 Butanol ( F003) 1.61 1.88 0.188 Centrifuge required 75 15 0 Carbon disulfide ( F005) 0.62 1.03 0.103 Centrifuge required 108 90 7 Chlorobenzeneb ( F002) and ( D021) 0.36 1.03 0.103 Centrifuge required 108 94 1 Cyclohexanone ( F003) 64.55 1.88 0.188 Acceptable 1319 77 3 Cresols ( F004) and ( D026) b 0.41 1.03 0.103 Centrifuge Required 75 71 8 Dichlorodifluoromethane ( F001) 2.16 1.03 0.103 Acceptable 95 50 1 1,2 Dichlorobenzene ( F002) and ( U070) 12.84 1.03 0.103 Acceptable 141 78 6 Ethyl acetate ( F003) 16.17 2.26 0.226 Acceptable 100 41 4 Ethyl benzene ( F003) 11.95 1.88 0.188 Acceptable 60 29 7 Ethyl ether ( F003) 4.30 1.03 0.103 Acceptable 110 80 5 2 Ethoxyethanol ( F005) 3.82 1.03 0.103 Acceptable 78 83 1 Isobutyl alcohol ( F005) 4.31 1.88 0.188 Acceptable 67 56 1 Methanol ( F003) 5.90 3.20 0.320 Acceptable 78 93 3 Methyl ethyl ketone ( F005) ( D035) 0.32 3.67 0.367 Unacceptable 108 10 1 Methyl isobutyl ketone ( F003) 0.03 1.03 0.103 Unacceptablec 98 95 3 Nitrobenzene ( F004) and ( U169) 0.043 1.03 0.103 Unacceptable 110 86 1 Pyridine ( F005) ( D038) 0.006 1.03 0.103 Unacceptable 127 18 4 Tetrachloroethylene ( F002) b ( D039) 5.83 4.42 0.442 Acceptable DRAFT DO NOT QUOTE OR CITE DELIBERATIVE CAS No. Constituent ( RCRA Waste Codes) Loading to meet the health benchmark ( kg/ day, per landfill) Loading ( kg/ day, per landfill) Loading Assuming Centrifuging ( kg/ day, per landfill) Conclusiona 91 108 88 3 Toluene ( F005) 2.14 5.08 0.508 Centrifuge required 71 55 6 1,1,1 Trichloroethane ( F002) 15.81 9.02 0.902 Acceptable 76 13 1 1,1,2 Trichlorotrifluoroethane ( F002) 403.37 5.17 0.517 Acceptable 75 69 4 Trichlorofluoromethane ( F002) and ( U121) 16.05 3.48 0.348 Acceptable 1330 20 7 Xylenes ( total) ( F003) 6.18 1.88 0.188 Acceptable Carcinogens 71 43 2 Benzene ( F005) ( D018) b 0.24 1.03 0.103 Centrifuge required 56 23 5 Carbon tetrachloride ( F001) ( D019) b 3.0 1.03 0.103 Acceptable 75 09 2 Methylene chloride ( F002) 0.39 9.54 0.954 Unacceptable 79 46 9 2 Nitropropane ( F005) 0.003 1.03 0.103 Unacceptable 79 01 6 Trichloroethylene ( F002) ( D040) b 27.66 1.03 0.103 Acceptable 79 00 5 1,1,2 Trichloroethane ( F002) 0.83 1.03 0.103 Centrifuge Required a For this analysis, the human health benchmarks were a hazard quotient of 1 for a non carcinogen or a carcinogenic risk of 10 5. Values above these numbers were deemed to pose an unacceptable risk to human health. b One of those constituents which cannot be disposed of in a municipal or other non hazardous waste landfill under today's proposal because they exhibit the toxicity characteristic instead of because of the outcome of the risk screening analysis. For further discussion, see Section V. B. 5. c Methyl isobutyl ketone is listed for its characteristic of ignitability and, therefore, when it is mixed with solid waste, is no longer considered hazardous waste unless it continues to display its characteristic. Therefore, although this risk screening analysis lists MIBK as Unacceptable, a wipe containing it can be disposed of in a municipal or other non hazardous waste landfill if it meets the other conditions.

VII. C. 2. Ash from Incineration of Disposable Solvent Contaminated Industrial Wipes Managed in Landfills DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 16 See " 8/ 15/ 02 letter from Bourdeau to Dellinger;" " Assessing Management of Sludge Generated by Industrial Laundries," EPA OSW, May 9, 2000; and our final risk screening analysis document, " Estimating the Risk from the Disposal of Solvent Contaminated Shop Towels and Wipes in Municipal Landfills," USEPA, March 1999.

92 Even though the analysis of risks from disposing of incinerator ash in landfills was conservative by assuming that all of the solvent that was not destroyed went into the ash ( as opposed to some of it being emitted from the stack) and that the ash was from a small combustion unit ( meaning that a higher percentage of the total amount of material being burned consisted of wipes), the analysis still indicated that none of the solvents would exceed the health benchmarks if the ash were disposed of in a landfill.

VII. C. 3. Sludge from Wastewater Treatment at Industrial Laundries and Managed in Landfills This analysis indicated that only one constituent, 2 nitropropane, would be present in sludge at a level which would reach the allowable health benchmark. Even for this highly toxic solvent, the loading in sludge ( 0.004 kg/ day) just barely exceeded the allowable loading ( 0.0033 kg/ day). In this case, the exposure route of concern is inhalation of the solvent which has volatilized from the landfill. For the reasons previously cited ( receptor only 75 meters from the landfill, selection of the highest wastewater concentration value, etc.), we believe that a more rigorous risk assessment would determine that 2 nitropropane would not have exceeded the allowable loading for sludge from wastewater treatment.

An August 15, 2002 letter from representatives of the Association of Nonwoven Fabrics Industry ( INDA) and the Secondary Materials and Recycled Textiles Association ( SMART)

provides information that suggests that the amount of solvent in reusable industrial wipes is substantially greater than the amount EPA used in conducting our risk screening analysis for this proposed rulemaking. 16 Based on this information, the letter questions whether a specific concentration limit should be placed on the amount of solvent remaining in reusable industrial wipes rather than relying on the " no free liquids" condition. It also suggests that most of this DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 17 EPA's Office of Research and Development is currently in the process of developing a new toxicity assessment for trichloroethylene which is likely to result in an increased level of health effects.

93 solvent will end up in the sludge that is generated from the treatment of wastewater from industrial launderers and will present more of a risk than EPA's risk screening assessment would indicate. Accordingly, the Agency is evaluating the issues raised in the letter to determine if there is a need to impose additional conditions to address risks posed by the disposal in municipal or other non hazardous waste landfills of sludges generated by industrial laundries.

VII. C. 4. Ecological Assessment The analysis projected that none of the solvents would exceed their respective water quality criteria despite the conservative assumptions that all of the solvent released in landfill leachate would reach a small stream.

VII. D. What External Review was Done of the Risk Screening Analysis?

In addition to conducting and reviewing the risk screening analysis internal to EPA, three independent experts provided an external peer review of the analysis of risks from constituents once they had been disposed of in a landfill. These reviewers did not evaluate the assumptions behind the loadings of solvents assumed to be sent to the landfill.

These reviewers indicated that the analysis could over predict risk because 1) the partitioning model accounts for too little degradation in a landfill, 2) degradation once a constituent leaves the landfill is not considered, and 3) the toxicity of trichloroethylene17 may be overestimated. On the other hand, the reviewers indicated that the analysis could under predict risks because 1) parameters other than the ones for a which a sensitivity analysis was conducted could be more sensitive in predicting risk, 2) effects from solubilization by organic compounds were not considered, 3) additional exposure pathways could contribute additional risk, and 4) the DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 94 carcinogenicity of tetrachloroethylene was not considered. The peer reviewers full comments are presented in the docket. EPA has not yet addressed these comments, but will address them in concert with addressing public comments on the risk screening analysis, including the public's comments on the peer reviewers' comments.

In addition, the Integrated Waste Services Association commented on the analysis of risks from ash disposal. They found the analysis overly conservative; however, since the analysis did not indicate any risks from this waste, EPA does not believe it is necessary at this time to further refine this part of the risk analysis since further refinement would not change our general conclusions.

We request comment on the risk screening analysis discussed in this section of the preamble and discussed in more detail in Section xx of the Technical Background Document. In particular, we seek comment concerning:

 the assumptions used in each of these analyses; i. e., landfill, ash and sludges  the data used in modeling risks  the methodology used in each of these analyses  conclusions and recommendations  the comments provided by the three external peer reviews  or any specific aspect of the risk screening analyses.

VIII. History and Relationship to Other Rulemakings VIII. A. Proposed Effluent Guidelines for Industrial Laundries On December 17, 1997, EPA proposed to establish pretreatment standards and effluent DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 18The proposed effluent guidelines would have established numerical limitations that are based on technology treatment of industrial laundry wastewater for 11 priority and non conventional pollutants. These standards were based on a determination of the degree to which pollutants pass through or interfere with POTWs; the best available technology economically achievable for Pretreatment Standards for Existing Sources; and the best demonstrated available control technology for Pretreatment Standards for New Sources. The proposal also provided regulatory relief for facilities which launder less than 1 million pounds of incoming laundry per calendar year and less than 255,000 pounds of industrial wipes.

95 limitations guidelines ( ELGs) for industrial laundries ( 62 FR 66181). 18 In conducting investigations of effluents discharged from industrial laundries to support the development of the proposed rulemaking, EPA found that the effluent from many industrial laundries contain concentrations of solvents known from site visits to be used in conjunction with industrial wipes identified as generators of solvent contaminated wipes. Under the proposed effluent guideline rule, EPA proposed to limit the discharge of certain pollutants from existing and new industrial laundries into U. S. waters and POTWs. The proposed rule applied to " any facility that launders industrial textile items from off site as a business activity."

On August 18, 1999, EPA published a Federal Register notice withdrawing its proposed rule for the industrial laundry sector ( 64 FR 45072). EPA's primary basis for the withdrawal was that indirect discharges from industrial laundries contain very small amounts of toxic pollutants that are not removed by POTWs. Comments on the proposed rule and subsequent data collection resulted in the following conclusions: ( 1) laundry discharges are not as toxic as estimated at proposal, ( 2) POTWs provide better treatment of the toxic pollutants remaining in laundry discharges than estimated at proposal, and ( 3) many former problems have been resolved by local pretreatment authorities.

EPA concluded that to the extent isolated problem discharges occur, existing pretreatment authority allows local POTWs to respond to problems effectively. Local POTWs have the authority to set local limits for individual indirect dischargers to prevent ( 1) pass through of pollutants through the POTW into waters of the U. S. and ( 2) interference both with POTW operations and sludge disposal options. EPA's pass through analysis for the rulemaking DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 96 determined that there is not significant pass through of pollutants from industrial laundries to waters of the U. S. EPA also concluded that removing certain organic pollutants from industrial wipes before they are washed would be a better way to control their presence in effluent discharges.

VIII. B. Hazardous Waste Listing Determination for Spent Solvents Five hazardous waste listings for specific spent solvents have been promulgated by EPA to date: F001, F002, F003, F004, and F005. These listings are found in 40 CFR 261.31. The criteria used by the Agency to determine whether or not a waste is hazardous are explained in the December 31, 1985 Federal Register notice ( 50 FR 53316). This rule also applies to P and Ulisted commercial chemical products that correspond with the F001 F005 listings when those products are spilled and, therefore, become waste.

The December 1985 Federal Register notice amended the original solvent listings to include spent solvent mixtures when the solvent, before it is used, contains 10 percent or more of total listed solvents. In addition, the notice clarified that the listings apply to " spent" solvents

those that are no longer fit for use without being regenerated, reclaimed, or otherwise processed,

and clarified that the listings cover only solvents used for their solvent properties ( i. e., " to solubilize ( dissolve) or mobilize other constituents").

On November 19, 1998, EPA published a determination not to list as hazardous wastes 14 chemicals that are used as solvents. These 14 chemicals are cumene, phenol, isophorone,

acetonitrile, furfural, epichlorohydrin, methyl chloride, ethylene dibromide, benzyl chloride,

pdichlorobenzene 2 methoxyethanol, 2 methoxyethanol acetate, 2 ethoxyethanol acetate, and cyclohexanol. EPA determined that waste solvents containing these chemicals are often hazardous wastes because they exhibit a characteristic under 40 CFR Part 261, Subpart C, or because they contain other solvent wastes that are listed as hazardous and, therefore, did not believe it was DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 97 necessary to list them separately. However, in some cases, EPA determined that the solvent waste did not meet the criteria for listing as a hazardous waste. For additional detail regarding the technical basis for the decision, see 63 FR 64371, November 19, 1998.

IX. State Authorization IX. A. Applicability of Rule in Authorized States Under section 3006 of RCRA, EPA may authorize qualified states to administer their own hazardous waste programs in lieu of the federal program within the state and to issue and enforce hazardous waste permits. Following authorization, EPA retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although authorized states have primary enforcement responsibility. The standards and requirements for state authorization are found at 40 CFR Part 271.

Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 ( HSWA), a state with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the federal program in that state. The federal requirements no longer applied in the authorized state, and EPA could not issue permits for any facilities in that state, since only the state was authorized to issue RCRA permits. When new, more stringent federal requirements were promulgated, the state was obligated to enact equivalent authorities within specified time frames. However, the new federal requirements did not take effect in an authorized state until the state adopted the federal requirements as state law.

In contrast, under RCRA section 3006( g) ( 42 U. S. C. 6926( g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized states at the same time that they take effect in unauthorized states. EPA is directed by DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 98 the statute to implement these requirements and prohibitions in authorized states, including the issuance of permits, until the state is granted authorization to do so. While states must still adopt HSWA related provisions as state law to retain final authorization, EPA implements the HSWA provisions in authorized states until the states do so.

IX. B. Effect on State Authorizations The proposed conditional exclusions would not be HSWA regulations. Therefore, the conditional exclusions would not be immediately effective in authorized states. They would be applicable only in those states that do not have final authorization for the base ( non HSWA)

portion of the RCRA program.

Authorized states are required to modify their programs only when EPA enacts federal requirements that are more stringent or broader in scope than existing federal requirements.

RCRA section 3009 allows the states to impose standards more stringent than those in the federal program ( see also 40 CFR 271.1). Therefore, authorized states may, but are not required to,

adopt federal regulations, both HSWA and non HSWA, that are considered less stringent than previous federal regulations. Today's proposed conditional exclusion from the definition of hazardous waste for disposable solvent contaminated industrial wipes is considered less stringent than the existing federal regulations because it would exclude certain materials now regulated by RCRA Subtitle C. Thus, states, except as described below, would not be required to adopt the conditional exclusion from the definition of hazardous waste if the proposal is finalized. However,

because EPA believes that today's proposal is a better approach to controlling industrial wipes,

the Agency would encourage states to adopt this rule, if promulgated, as soon as possible.

The current federal policy with regard to reusable solvent contaminated industrial wipes has been to defer the determination of their regulatory status to the states and EPA regions. This deferral has resulted in the development of various state programs. Today's proposal is generally DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 99 consistent with these state policies. However, it is possible that conditions that would be imposed by the proposed rule could be more stringent than some existing state programs. As a result, these authorized states would be required to modify their programs when we promulgate a final rule.

We seek comment on whether states consider the conditions posed by today's proposed rule to be more stringent than their current approaches to regulating reusable solvent contaminated industrial wipes.

X. Statutory and Executive Order Reviews X. A. Economic Analysis X. A. 1. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 ( 58 FR 51735), the Agency must determine whether this regulatory action is " significant" and, therefore, subject to formal review by the Office of Management and Budget ( OMB) and to the requirements of the Executive Order, which include assessing the costs and benefits anticipated as a result of the proposed regulatory action. The Order defines " significant regulatory action" as one that is likely to result in a rule that may ( 1)

have an annual effect on the economy of $ 100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment,

public health or safety, or state, local, or tribal governments or communities; ( 2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; ( 3)

materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or ( 4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Pursuant to the terms of Executive Order 12866, the Agency has determined that today's proposed rulemaking is a " significant regulatory action" because it raises novel legal or policy issues and because of its significance to a large number of interested stakeholders. DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 100 X. A. 2. Affected Economic Sub Sectors We estimated the potential national economic impacts of today's proposal. Our " Economics Background Document" is available for public review and comment from the RCRA Docket ( see public access instructions at the introduction to this notice). The document presents the methodology, detailed computation spreadsheets, and sources of the data applied in our economic analysis. We welcome the general public and affected industries to provide us with comments and questions about our economic analysis, in the interest of improving the key data elements and assumptions.

The scope of the expected economic impacts modeled in our study includes ( i) potential cost savings, as well as ( ii) potential implementation costs, for both the " disposable" and " reusable" industrial wipes markets. Our economic study models these impacts as potentially affecting seven economic sectors ( manufacturing, retail trade, information, administrative services, other services, public administration, and transportation & utilities). These economic sectors consist of 15 economic sub sectors, representing 121 industries which we suspect may in part or in whole generate or manage spent solvent industrial wipes in the U. S. economy. As enumerated in an introductory section of this notice, most of the industries which use industrial wipes are in the manufacturing sector, and use industrial wipes primarily for degreasing and cleaning operations.

Today's proposal could potentially affect 13 of these 15 sub sectors as generators of spent solvent industrial wipes. These 13 sub sectors consist of a total of 471,000 facilities, 13.2 million employees, and $ 2.7 trillion in annual revenues. Ninety six percent of the companies affected are small businesses and they own 83% of the facilities in these sub sectors. We estimate that a subset of 215,000 of these facilities use RCRA regulated solvents in conjunction with industrial wiping operations. Introducing an uncertainty range of 50% to 100% as to how many states may ultimately adopt these program changes and counting only facilities which may be regulated as DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 101 " small quantity" or " large quantity" generators ( according to the calendar month waste generation quantity categories defined in the RCRA hazardous waste regulations at 40 CFR 262)

produces an estimated range of 63,000 to 153,000 potentially affected spent solvent industrial wipes generators.

In addition to generators of industrial wipes, up to 1,175 industrial laundries supply and launder reusable industrial wipes, employing 60,000 workers and earning $ 2.9 billion in annual revenue ( of which $ 408 million is from the industrial wipes business). Industrial launderers are primarily small businesses ( 94%) which operate 47% of this industry's facilities. Furthermore, up to 10,600 solid waste management establishments ( which have 210,000 employees, earn $ 31 billion in annual revenue, and are 95% small business owned) could also be affected by these proposed changes. Introducing an uncertainty range of 50% to 100% for state adoption of these changes produces an estimated range of 590 to 1,175 industrial laundries, and 5,300 to 10,600 solid waste management establishments potentially affected by the proposed regulations. Adding these ranges together produces a total estimated count of 68,000 to 164,000 potentially affected solvent industrial wipes generator and management facilities.

X. A. 2. a. Industrial Wipes Market We estimate the size of the U. S. industrial wipes market at 9.6 billion wipes used in 2001.

Our economic study characterizes this market as consisting of two sub markets of industrial wipes products with respective annual market share of 88% reusable wipes ( 8.5 billion uses) and 12%

disposable wipes ( 1.1 billion sold). In some industrial wiping operations, these two product lines may be price competitive substitutes, but other factors such as lint content, absorbency, and durability often outweigh price as a factor in determining wipes selection for any particular industrial wiping operation.

X. A. 2. b. Economic Analysis Framework DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 102 The proposed rule will affect these two sub markets differentially relative to the current regime because of the significant difference in the current state level and EPA regional level regulatory status of each respective sub market category. Spent disposable industrial wipes are currently managed as RCRA hazardous waste, whereas reusable industrial wipes are not usually managed as RCRA hazardous wastes or even solid wastes, depending on state regulations.

Consequently, an exclusion from RCRA hazardous waste regulation is expected to provide the disposable wipes market with an annual net cost savings benefit relative to current RCRA regulatory compliance costs, whereas the solid waste exclusion will not provide the reusable wipes market with similar economic benefit, depending on the extent of free liquid solvents captured and recycled from solvent contaminated reusable industrial wipes.

For the purpose of estimating this differential economic impact outcome and potential net national economic effect on the industrial wipes market, our economic study included modeling the anticipated induced shift in respective wipes market share, resulting from direct cost savings and direct implementation cost pass through on the respective wipes prices ( i. e., on wipes' life cycle usage costs, including costs of spent wipes disposal). In support of modeling induced market impacts, our economics study presents the findings of a meta analysis of published ownand cross price elasticity of demand coefficients, as applied in our study for purpose of simulating potential changes in wipes' market share. Our economic analysis also examined the potential composite outcome of direct and induced impacts of the solid waste exclusion on the industrial laundry industry, as suppliers of reusable industrial wipes.

Because we do not have exact information for every key data element applied, the economic study presents a sensitivity analysis over a " lower bound", " most likely", and "

upperbound range in numerical values assigned to key baseline and exclusion compliance parameters,

such as number of facilities using solvent wipes, percentage of solvent wipes not currently stored and transported in closed containers, percentage of solvent wipes generated which are not " dry"

( i. e., contain less than five grams solvent per wipe), price elasticity of demand for industrial DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 19EPA's cost estimates assumed that generators would transport solvent contaminated wipes to laundries in closed containers despite the proposed performance standard. If industry can find cheaper methods of meeting the performance standard, the costs of reusable wipes management will be less than this estimate.

103 wipes, percentage of states which may adopt the proposed exclusions, and percentage of solvent wipes containers containing free liquids.

X. A. 2. c. Impact Estimation Findings The anticipated national net effect of the proposal is to provide the U. S. economy with $ 28 million to $ 72 million in average annual net benefits, consisting of four impact components:

( 1) $ 13 million to $ 20 million in annualized incremental cost for compliance with the conditions of the exclusions ( e. g., costs for purchasing accumulation and transportation containers for used industrial wipes); ( 2) $ 40 million reduction in annual direct costs for RCRA regulatory compliance; ( 3) $ 8 million to $ 36 million per year in avoided air pollution from increase in capture of free liquid solvents from used industrial wipes; and ( 4) $ 0.3 million to $ 9 million per year in avoided fire damages to facilities from spontaneous combustion of solvent contaminated industrial wipes. Compared to annualized implementation costs as a numerical ration, the $ 8 million to $ 85 million in annualized total benefits represent a benefit cost ration of 2.4 to 6.5. The annualized net benefits consist of $ 33 million to $ 37 million to generators for managing spent disposable industrial wipes and an uncertainty range of $ 35 million in annual benefits to $ 4 million in annual cost to generators managing reusable industrial wipes ( depending upon the extent these costs may be shared with industrial laundries and the extent of reuse of captured solvents). 19 The induced market impact simulated in the economic analysis estimates a potential 53 percent to 59 percent decrease in the life cycle unit cost for using disposable industrial wipes ( taking into account the cost of new wipes purchase plus spent wipes disposal), and a 0 percent to 17 percent increase in the effective unit cost of reusable wipes, associated with a potential induced reduction in reusable wipes' national market share of 3 percent to 15 percent for the fraction of DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 104 the industrial wipes market potentially affected by the exclusions.

For purpose of evaluating potential disproportionate adverse impacts on small business,

the economics study evaluated the extent to which the incremental costs to the reusable market may affect small industrial laundries. Our study estimates that 0 percent to 3 percent ( 0 to 16) of the 275 to 551 affected industrial wipes laundry establishments owned by small businesses may experience average annualized implementation cost impacts at or above 3 percent of annual revenues.

In addition to these estimates of direct implementation impacts, EPA estimates $ 8 million to $ 36 million in annual environmental and human health benefits associated with the capture of free liquid solvent and $ 0.3 million to $ 9 million in annual benefits in avoided fire damages associated with spontaneous combustion of solvent wipes. Therefore, we estimate $ 8 million to $ 45 million in other benefits. Comparison of the total annualized benefits to the annualized direct implementation costs yields $ 50 million to $ 90 million in net benefits and a benefit cost ration of 7.1 to 15.3.

X. A. 3. Economic Impact of Today's Other Proposed Exclusion Options For the reasons explained below and in the " Economics Background Document," we did not prepare a separate quantitative estimate of each of the following alternative options, because they are expected to fall incrementally within or near the impact estimation range for the main option. Below we describe the potential impacts of each of these options in qualitative terms.

X. A. 3. a. Exclusion from the Definition of Hazardous Waste for Disposable and Reusable Solvent Contaminated Industrial Wipes This option would exclude both disposable and reusable solvent contaminated industrial DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 105 wipes from the definition of hazardous waste instead of making a distinction between the types of wipes and excluding disposable industrial wipes from the definition of hazardous waste while excluding reusable solvent contaminated industrial wipes from the definition of solid waste. No aspect of the proposed rule would change for generators and handlers of disposable wipes.

Generators and handlers of reusable solvent contaminated wipes would be managing a solid waste under this option, but would be subject to the same conditions as those proposed today for the exclusion from the definition of solid waste and, therefore, anticipated net cost savings for this option would remain the same relative to the main option proposed today.

X. A. 3. b. Exclusion for all Disposable Solvent Contaminated Industrial Wipes Under a Single Set of Conditions This option would not differentiate between disposable wipes managed at a landfill compared to a non landfill facility. Disposable solvent contaminated wipes would be excluded from hazardous waste regulations provided the wipes were stored in covered containers while onsite and so long as the wipes do not contain free liquids prior to sending them off site in closed containers that are marked " Excluded Solvent Contaminated Wipes."

Under this option, greater regulatory relief would occur for generators of disposable industrial wipes relative to the main option because ( 1) they would not have to meet the " dry"

condition that is proposed under our main option and ( 2) they would not have to worry about the types of solvent they used. Therefore, some number of generators would not have to spend additional resources to meet this " dry" condition ( relative to the " no free liquids" condition), or switch to other solvents if they so desired to manage their wipes in a municipal or other nonhazardous waste landfill.

X. B. Paperwork Reduction Act DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 106 The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget ( OMB) under the Paperwork Reduction Act,

44 U. S. C. 3501 et seq. The Information Collection Request ( ICR) document prepared by EPA has been assigned EPA ICR number [ insert EPA ICR number].

The information requirements established for this action, and identified in the Information Collection Request ( ICR) supporting today's proposed rule, are largely a self implementing process. This process would ensure that: ( i) handlers of solvent contaminated industrial wipes are held accountable to the proposed requirements of the conditional exclusions; and ( ii) state inspectors can verify compliance when needed. For example, the proposal would require that solvent contaminated industrial wipes contain no free liquids prior to being transported off site by generators for subsequent management. The conditions would also require generators to properly label all containers of wipes sent for disposal.

In estimating ICR burden, EPA used the current state policies as the baseline since most states have specific policies addressing these materials. ICR burden is reduced because generators of solvent contaminated wipes obtain regulatory relief from existing Subtitle C hazardous waste regulatory requirements, such as use of a manifest in transporting these materials off site to a handling facility.

EPA has carefully considered the burden imposed upon the regulated community by the proposed regulation. We estimate a burden savings of 48,000 hours and approximately $ 1.9 million annually. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 107 respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, EPA has established a public docket for this ICR under Docket ID Number RCRA 2003 0004. The public docket is available for viewing at the RCRA Docket in the EPA Docket Center ( EPA/ DC), EPA West, Room B102, 1301 Constitution Ave.,

NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8: 30 a. m. to 4: 30 p. m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is ( 202) 566 1744, and the telephone number for the RCRA Docket is ( 202) 566 0270. An electronic version of the public docket is available through EPA Dockets ( EDOCKET) at http:// www. epa. gov/ edocket. Use EDOCKET to submit or view public comments, access the index listing of the contents of the public docket, and to access those documents in the public docket that are available electronically. Once in the system, select " search," then key in the docket ID number RCRA 2003 0004. Also, you can send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after [ Insert date of publication in the Federal Register], a comment to OMB is best assured of having its full effect if OMB receives it by [ Insert date 30 days after publication in the Federal Register]. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal. DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 108 X. C. Regulatory Flexibility Act The Regulatory Flexibility Act ( RFA) as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For the purposes of assessing the impacts on small entities of today's rule, small entity is defined as ( 1) a small business as defined by the Small Business Administration at 13 CFR 121.201; ( 2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and ( 3) a small organization that is any not for profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's proposed rule on small entities, EPA certifies that this action will not have a significant economic impact on a substantial number of small entities. We have determined that about 83 percent of the 63,000 to 153,000 establishments in the 13 industries which use industrial wipes and which are potentially affected by today's proposed rulemaking are owned and operated by small companies. In addition, approximately 47 percent of the 1,200 industrial laundry establishments which supply reusable industrial wipes are owned by small companies. Based on the economic analysis summarized elsewhere in this preamble, we have estimated that ( i) a relatively small proportion of potentially affected small businesses ( i. e., 3 percent or 16 small industrial laundries) may be adversely impacted by this proposed solid waste exclusion at or above a 3 percent threshold of annual business receipts ( revenues). DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 109 Although this proposed rule will not have a significant impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this rule on small entities. In addition to the economic analysis, we conducted outreach activities to ensure that small business interests were informed of our potential actions, and to solicit input and comment from small business interests during our development of the proposal. We had a number of meetings with small business stakeholders, including representatives of the industrial laundries trade associations,

to discuss the formulation of this proposed rule, and to obtain small business feedback. In these meetings, stakeholders expressed concerns about the implementation of this rule, and asked questions about the conditions being considered for the proposed regulation.

As part of these outreach efforts, the Agency held a meeting with members of the small business community on August 10, 1998. Following EPA's presentation, the stakeholders attending the meeting discussed potential issues and concerns they envisioned could arise with regard to the implementation of the Agency's preliminary options, particularly with regard to the ability of small businesses to comply with the options. Participants provided their initial reactions to the preliminary options, identified potential issues of concern and, in some cases, offered potential changes or improvements. A summary of the August 10, 1998 meeting can be found in the docket for today's proposed rulemaking.

We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.

X. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 ( UMRA), P. L. 104 4, establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local,

and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 110 with " federal mandates" that may result in expenditures by state, local, and tribal governments, in the aggregate, or to the private sector, of $ 100 million or more in any one year.

Before a federal regulatory agency such as EPA promulgates a rule for which a written statement is needed, section 205 of the UMRA generally requires the agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most costeffective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Today's proposed rule contains no federal mandates ( under the regulatory provisions of Title II of the UMRA) for state, local, or tribal governments. In addition, EPA has determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments. Furthermore, today's proposed regulation will not impose incremental costs in excess of $ 100 million to the private sector, or to state, local, or tribal governments in the aggregate, in any one year, as based on the findings of the " Economics Background Document,"

described elsewhere in this preamble.

Thus, today's proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA. DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 111 X. E. Executive Order 13132: Federalism Executive Order 13132, entitled    Federalism'' ( 64 Federal Register 43255, August 10,

1999), requires EPA to develop an accountable process to ensure " meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications." " Policies that have federalism implications'' is defined in the Executive Order to include regulations that have " substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government."

This proposed rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This proposed rule would provide a net reduction in RCRA regulatory burden to generators and handlers of solvent industrial wipes. For the proposed exclusions, both the annual direct implementation costs to affected private sector entities and the potential impact on annual state government revenues do not exceed the " substantial" compliance cost threshold defined in this Executive Order. This proposal would preempt state and local law that is less stringent for solvent contaminated wipes. Under the RCRA, 42 U. S. C. 6901 to 6992k,

the relationship between the states and the national government with respect to hazardous waste management is established for authorized state hazardous waste programs, 42 U. S. C. 6926 ( section 3006), and retention of state authority, 42 U. S. C. 6929 ( section 3009). Under section 3009 of RCRA, states and their political subdivisions may not impose requirements less stringent for hazardous waste management than the national government. Thus, Executive Order 13132 does not apply to this rule.

However, to incorporate the state perspective in the proposal, Agency personnel met with state representatives from the Association of State and Territorial Solid Waste Management DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 112 Officials ( ASTSWMO) in July of 1998 to review, discuss and obtain feedback from them on EPA thinking at the time. The state representatives recommended that solvent contaminated reusable wipes contain no free liquids when transported off site to an industrial laundry or dry cleaner and that the wipes be transported in closed containers that meet DOT requirements. Similarly, most states recommended that disposable wipes continue to be regulated under RCRA Subtitle C ( hazardous waste) regulations. The states continued to participate on the workgroup developing today's proposal and their input was received and considered throughout the regulation development process.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, EPA specifically solicits comments on this proposed rule from state and local officials.

X. F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments Executive Order 13175, entitled " Consultation and Coordination with Indian Tribal Governments" ( 65 Federal Register 67249, November 6, 2000), requires EPA to develop an accountable process to ensure " meaningful and timely input by Tribal officials in the development of regulatory policies that have tribal implications."

EPA has concluded that this proposed rule may have tribal implications to the extent that generating facilities on tribal lands using solvent contaminated industrial wipes or handlers of these materials located on tribal lands could be affected. However, this proposed rule will neither impose substantial direct compliance costs on tribal governments nor preempt tribal law.

EPA did not consult directly with representatives of Tribal governments early in the DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 20 " Representatives of Tribal governments" include non elected officials of Tribal governments and representative authorized national organizations.

113 process of developing this regulation. 20 However, as described above, EPA did conduct an extensive outreach process with industry, including small business. Thus, we believe we have captured concerns that also would have been expressed by representatives of Tribal governments.

EPA specifically solicits additional comment on this proposed rule from Tribal officials.

X. G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks Executive Order 13045 ( 62 Federal Register 19885, April 23, 1997) applies to any rule that ( 1) is determined to be " economically significant" as defined under Executive Order 12866,

and ( 2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonable alternatives considered by the Agency.

The proposed rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. EPA believes that to the extent that this proposal will not increase exposure of solvents to the public, adults or children.

The public is invited to submit or identify peer reviewed studies and data, of which the Agency may not be aware, that assess results of early life exposure to solvent contaminated industrial wipes. DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 114 X. H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution,

or Use This proposed rule is not subject to Executive Order 13211, " Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use" ( 66 Federal Register 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

X. I. National Technology Transfer Advancement Act Section 12( d) of the National Technology Transfer and Advancement Act of 1995 (" NTTAA"), Pub L. No. 104 113, § 12( d) ( 15 U. S. C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e. g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This proposed rulemaking involves environmental monitoring or measurement consistent with the Agency's Performance Based Measurement System ( PBMS). EPA Proposes not to require the use of specific, prescribed analytic methods. Rather, the Agency plans to allow the use of any method that meets the prescribed performance criteria. The PBMS approach is intended to be more flexible and cost effective for the regulated community; it is also intended to encourage innovation in analytical technology and improved data quality. EPA is not precluding the use of any method, whether it constitutes a voluntary consensus standard or not, as long as it meets the performance criteria specified. DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 115 EPA welcomes comment on this aspect of the proposed rulemaking and, specifically,

invites the public to identify potentially applicable voluntary consensus standards and to explain why such standards should be used in this regulation.

APPENDIX A I. General Description of the Industrial Wipes Industry I. K. Types of Industrial Wipes The term " industrial wipes" as used in this preamble represents a heterogeneous group of products which come in a wide variety of types and brands to meet a broad range of application needs. The major division is between reusable shop towels, which are laundered or dry cleaned and used again, and disposable wipes and rags that are used for a limited number of applications and then discarded. Disposable wipes include both non woven wipes and woven rags. The universe of materials affected by this proposed rule encompasses both reusable and disposable industrial wipes which are used by numerous industries in conjunction with solvents to clean surfaces, parts, accessories, and equipment. Industrial wipes are distinguished by their respective composition, durability, uses, and disposal methods.

The Agency has chosen to use the term " industrial wipe" throughout the preamble for the sake of simplicity. However, because of the many terms currently used throughout industry to identify industrial wipes, EPA believes it is helpful to provide an explanation of industry terms to set forth the Agency's understanding as we developed this proposal:

An industrial shop towel is a woven textile consisting of cotton or polyester blends. These materials are reusable items and are generally laundered or dry cleaned a number of times before they have outlived their useful life and must be discarded. Shop towels are rented by industrial DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 116 launderers to manufacturing, automotive, chemical, and other similar facilities to use for heavyduty cleaning and wiping. Soiled shop towels are either washed or dry cleaned at commercial laundry facilities.

An industrial wipe is a non woven towel consisting of wood pulp, polyester blends or 100 percent polypropylene. These materials come in all sizes and thicknesses. They generally are designed for one time use and are used to wipe small quantities of solvents off hands, tools,

equipment, or floors.

An industrial rag is a non homogeneous material consisting of cotton or polyester blends.

Rags are made from old clothing or from cloth remnants from textile mills, and vary in size and type of fabric.

Paper towels also are sometimes used in conjunction with solvents in the workplace.

These materials are made from wood pulp with binders.

The wipe suitable for each application depends on a number of factors. The amount of lint allowed in a task plays a large role, because some electronic or printing applications cannot tolerate any lint, while other applications can tolerate large amounts of lint. Absorbent capacity is also another important factor in some tasks, while not in others. Durability is important in some tasks, such as those that require heavy scrubbing, while often not important in tasks where lint or absorbency is more important. Durability does not only refer to the physical strength of the wipe,

towel, or rag, but also to its ability to withstand strong solvents.

III. B. Additional Data Additional data collected from site visits, literature searches, and industry include information regarding the numbers of wipes used daily, types of solvents used, type of operation DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 117 ( i. e., whether cleaning operations involve the use of small or considerable amounts of solvent per wipe); preference for disposable versus reusable wipes; and estimated total volumes of wipes used annually. A detailed discussion of these findings can be found in the Technical Background Document for this proposed rule as well as other documents supporting this rule that are found in the Docket. Key findings include:

° Number of wipes used daily by a facility can vary from 50 to 6,000.

° Many facilities appear to use ignitable only solvents ( D001) that could be classified as characteristically hazardous when the wipes no longer can be used; most facilities also appear to use solvent blends consisting of two or more constituents ° Most industrial sectors appear to only use a small amount of solvent per wipe: auto body repair; electronics; furniture manufacturers; fabricated metals; and organic and inorganic chemical manufacturers. Conversely, the printing sectors, automobile manufacturers, parts of the military, and defense industries often use large amounts of solvent on each wipe.

° Using wipes sales and usage volume figures provided by wipes suppliers and industry users, coupled with US Bureau of Census counts of related facilities, EPA estimates that approximately 9.6 billion industrial wipes are used by industry annually ( 88 percent reusable wipes and 12 percent disposable wipes) in 13 different industries. EPA further estimates that approximately 3.8 billion of these industrial wipes are used in conjunction with solvents in industrial cleaning and degreasing operations.

APPENDIX B February 14, 1994 DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 118 MEMORANDUM SUBJECT: Industrial Wipers and Shop Towels under the Hazardous Waste Regulations FROM: Michael Shapiro, Director Office of Solid Waste TO: Waste Management Division Directors Regions I X We have received numerous questions about the regulatory status of used industrial wipers and shop towels (" wipers") under the Resource Conservation and Recovery Act ( RCRA)

regulations from the users and launderers of these wipers, and the regulatory agencies responsible for implementing the RCRA regulations. In addition, manufacturers, marketers and users of non reusable wipers i. e., wipers that are not laundered, such as paper or other on textile products)

have been requesting clarification on the status of these materials as well. The purpose of this memorandum is to update you on this issue, and to reaffirm our policy regarding the regulatory status of these materials.

Ongoing Efforts There are currently several activities within EPA that may affect wipers. The Definition of Solid Waste Task Force, as part of their dialogue with industry, environmental groups, State agencies, and EPA Regions, has been evaluating the RCRA regulations affecting launderable and disposable wipers. In addition, OSW has been dealing with the issue of wipers as we continue our efforts with the Hazardous Waste Identification Rule. As you may recall, EPA requested and received comment on alternative approaches for addressing wipers contaminated with listed solvent ( May 20, 1992 Federal Register; 57 FR 21474); this proposal was later withdrawn.

Finally, the Office of Water will be gathering data to support the development of effluent DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 119 guidelines for industrial launderers, which handle certain types of reusable wipers.

Status of Used Wipers Whether or not the used wipers are hazardous waste under the RCRA regulations has been a recurring question. Because there are many applications of wipers, we cannot at this time make any generic statements that all wipers are hazardous waste, or that all are not. A material that is a solid waste is by definition hazardous waste if it either 1) meets one of the listings in 40 CFR Part 261, Subpart D, or 2) exhibits one or more of the characteristics described in 40 CFR Part 261, Subpart C. Because there are no explicit listings for " used wipers" in Part 261, Subpart D, a wiper can only be defined as listed hazardous waste if the wiper either contains listed waste, or is otherwise mixed with hazardous waste. Whether or not a used wiper contains listed hazardous waste, is mixed with listed hazardous waste, only exhibits a characteristic of hazardous waste, or is not a waste at all, is dependent on site specific factors; this is not a new policy. As a result, any determinations or interpretations regarding this diverse and variable wastestream should be made by the regulatory agency ( i. e., EPA Region or State) implementing the RCRA program for a particular State. This has been our long standing policy.

One of EPA's concerns in determining whether the hazardous waste regulations apply to wipers in specific cases should be to prevent situations where someone is improperly disposing of spent solvents ( or other hazardous wastes) by mixing them in with wipers, and then sending the wipers to a laundering facility or municipal landfill. This activity is clearly not allowed under the federal regulations. However, wipers that merely pick up incidental amounts of solvents may be handled in a number of ways. I have enclosed policy documents from several States and one EPA Region regarding the identification and/ or management of wipers, that provide examples of how some implementing agencies have developed workable approaches to this issue. If you have additional information, or have questions, please contact Charlotte Mooney or Ross Elliott at ( 202) 260 8551. DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 120 Enclosures ( 4)

cc: RCRA Enforcement Branch Chiefs, Regions I X Regional Counsel, Regions I X List of Subjects 40 CFR Part 260 Administrative practice and procedure, Confidential business information, Hazardous materials, Recycling, Reporting and record keeping, Waste treatment or disposal.

40 CFR Part 261 Environmental protection, Hazardous waste, Recycling, Reporting and record keeping requirements, Waste treatment and disposal.

_______________________________________ _________________

Christine T. Whitman, Administrator Dated For the reasons set out in the preamble, title 40, Chapter I of the Code of Federal Regulations,

parts 260 and 261, are proposed to be amended as follows: DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 121 PART 260   HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL 1. The authority citation for part 260 continues to read as follows:

Authority: 42 U. S. C. 6905, 6912( a), 6921 6927, 6930, 6934, 6935, 6937, 6938, 6939, and 6974.

Subpart B   Definitions 2. Section 260.10 is amended by adding in alphabetical order the definitions of Disposable industrial wipe, Industrial wipe, Industrial wipes handling facility, Intra company transfer of industrial wipes, No free liquids, Reusable industrial wipe, and Solvent extraction to read as follows:

Section 260.10 Definitions ***********

Disposable industrial wipe means an industrial wipe that is disposed after use without being sent to a laundry or dry cleaner for cleaning and reuse.

***********

Industrial wipe, as used in this subpart, means non woven industrial wipes made of wood pulp or polyester blends; industrial shop towels, a woven textile made of cotton or polyester blends; and industrial rags, non homogenous materials consisting of cotton or polyester blends.

Industrial wipes of all kinds are used for a variety of purposes, including removing small quantities of solvents from machinery parts, hands, tools, and the floor.

***********

Industrial wipes handling facility means a facility that removes solvents from industrial wipes prior to them being sent either to a laundry or dry cleaner for cleaning or to a municipal or other non hazardous waste landfill that meets the standards under 40 FR Part 257 Subpart B, DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 122 municipal waste combustor, or other combustion facility.

**********

Intra company transfer of industrial wipes means the off site transportation of industrial wipes from a generator facility to another generator owned facility that has a solvent extraction and/ or recovery process for the purpose of removing sufficient solvent to ensure that the wipes contain no free liquids or less than 5 grams of solvent, as appropriate.

**********

No free liquids, as used in 40 CFR 261.4( a)( 24) and 40 CFR 261.4( b)( 19), means that no liquid solvent may drip from industrial wipes, and that there is no liquid solvent in the container holding the wipes. Wipes that have been subjected to solvent extraction are presumed to contain no free liquids.

**********

Reusable industrial wipe means an industrial wipe that after being used is sent to a laundry or dry cleaner for cleaning and reuse.

***********

Solvent extraction, as used in 40 CFR 261.4( a)( 24) and 40 CFR 261.4( b)( 19), means an advanced extraction process such as mechanical wringers, centrifuges, or any other similarly effective method to remove solvent from industrial wipes.

PART 261   IDENTIFICATION AND LISTING OF HAZARDOUS WASTE 3. The authority for part 261 continues to read as follows:

Authority: 42 U. S. C. 6905, 6912( a), 6921, 6922, 6924( y), and 6838.

Subpart A   General 4. Subpart 261.4( a) is amended by adding new paragraph ( a)( 24) to read as follows: DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 123 Section 261.4 Exclusions ( a) * * *

( 24) Industrial wipes that are recycled under certain conditions Industrial wipes that are sent to an industrial laundry, to a dry cleaner for cleaning, or to an industrial wipes handling facility when they contain an F listed spent solvent, a corresponding spilled P or U listed commercial chemical product, or when they exhibit the hazardous characteristic of ignitability, corrosivity, reactivity or toxicity when that characteristic results from the F listed spent solvent or corresponding P or U listed commercial chemical products,

provided that the conditions specified below are satisfied by the facility claiming the exclusion:

( i) Solvent contaminated industrial wipes must be accumulated, stored and managed in nonleaking covered containers;

( ii) Solvent contaminated industrial wipes, if transported off site, must be transported in containers that are designed, constructed, and managed to minimize loss to the environment;

( iii) When laundered or dry cleaned on site or transported off site to a laundry, dry cleaner, or industrial wipes handling facility, solvent contaminated industrial wipes must contain no free liquids or must have been treated by solvent extraction, except as stated in 261.4( a)( 24)( iv) of this part. Any liquids removed from the industrial wipes must be managed according to the regulations found under 40 CFR 261 268 and 270 if discarded;

( iv) Intra company transfer of solvent contaminated industrial wipes containing free liquids may occur provided that the following conditions are satisfied:

( A) the transfer must occur in order to remove sufficient solvent from the industrial wipes DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 124 so they meet the " no free liquids" condition; and ( B) the receiving facility must manage the extracted solvent according to regulations found under 40 CFR 261 268 and 270;

( v) Laundries, dry cleaners and industrial wipes handling facilities must manage the solventcontaminated industrial wipes in non leaking covered containers or in containers that are designed, constructed, and managed to minimize loss to the environment before the industrial wipes enter the handling process; and ( vi) If free liquids are in containers that arrive at a laundry, dry cleaner, or industrial wipes handling facility, the receiving facility must either:

( A) remove the free liquids and manage them according to the regulations found under 40 CFR 261 268 and 270; or ( B) return the closed container with the wipes and free liquids to the generator as soon as reasonably practicable, but no later than the next scheduled delivery.

( vii) Industrial laundries and dry cleaners may dispose of sludge from cleaning industrial wipes in solid waste landfills if the sludge does not exhibit a hazardous waste characteristic.

***********

5. Subpart 261.4( b) is amended by adding new paragraph ( b)( 19) to read as follows:

Subpart 261.4 Exclusions ( b) * * *

( 19) Industrial wipes that are discarded when managed under certain conditions. DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 125 Industrial wipes that are sent for disposal to a municipal waste landfill or other non hazardous waste landfill that meets the standards under 40 FR Part 257 Subpart B, to a municipal waste combustor or other combustion facility, or to an industrial wipes handling facility when they contain an F listed spent solvent, a corresponding spilled P or U listed commercial chemical product, or when they exhibit the hazardous characteristics of ignitability, corrosivity, reactivity,

or toxicity when that characteristic results from the F listed spent solvent or corresponding P or U listed commercial chemical products, providing that the conditions specified below are satisfied by the facilities claiming the exclusion:

( i) Solvent contaminated industrial wipes must be accumulated, stored, and managed in nonleaking covered containers;

( ii) Solvent contaminated industrial wipes, if transported off site, must be transported in containers that are designed, constructed, and managed to minimize loss to the environment;

( iii) Solvent contaminated industrial wipes, if transported, must be transported in containers labeled " Exempt Solvent Contaminated Wipes;"

( iv) When transported to a municipal waste landfill or other non hazardous waste landfill that meets the standards under 40 FR Part 257 Subpart B, solvent contaminated industrial wipes:

( A) must contain less than 5 grams of solvent each, or must have been treated by solvent extraction; and ( B) must not contain the following solvents: 2 nitropropane, nitrobenzene, methyl ethyl ketone ( MEK), methylene chloride, pyridine, benzene, cresols ( o, m, p), carbon tetrachloride, chlorobenzene, tetrachloroethylene, trichloroethylene;

( v) When transported to a municipal waste combustor, other combustion facility, or industrial wipes handling facility, solvent contaminated industrial wipes must not contain free liquids or DRAFT DO NOT QUOTE OR CITE DELIBERATIVE 126 must have been treated by solvent extraction. Any liquids removed from the wipes must be managed as hazardous wastes according to regulations found under 40 CFR 261 268 and 270 if disposed;

( vi) Intra company transfer of solvent contaminated industrial wipes containing free liquids can occur provided that the following conditions are satisfied:

( A) the transfer must occur in order to remove sufficient solvent from the industrial wipes so they meet the 5 gram condition or the " no free liquids" condition, as appropriate; and ( B) the receiving facility must manage the extracted solvent according to regulations found under 40 CFR 261 268 and 270;

( vii) Combustion and industrial wipes handling facilities must manage solvent contaminated industrial wipes in non leaking covered containers or in containers that are designed, constructed,

and managed to minimize loss to the environment before the industrial wipes enter the handling process; and ( viii) If free liquids are in containers that arrive at combustion and industrial wipes handling facilities, the receiving facility must:

( A) remove the free liquids and manage them as hazardous wastes according to regulations found under 40 CFR 261 268 and 270; or ( B) return the closed container with the industrial wipes and free liquid to the generator as soon as reasonably practicable, but no later than the next scheduled delivery;

( xi) Combustion facilities may dispose of residuals from combustion of industrial wipes in solid waste landfills if residuals do not exhibit a hazardous waste characteristic.