Number of hospitals  -  Some groups, such as inner city residents or indigenous populations, might not live near a hospital and therefore have to travel longer distances for medical care; this may limit the frequency and quality of care they receive.  Communities with more hospitals have a wider selection of medical resources from which to choose; they can select the type and quality of health care appropriate for their particular needs. This factor is examined in Section 5.2.
Medically underserved  -  Some groups may differ in the level and quality of health care they traditionally receive.  This may be due to cultural differences, treatment disparities stemming from socio-economic barriers (e.g., lack of insurance) or other factors.  This factor is examined in Section 5.2.
Summary of Analysis of Factors that Affect Vulnerability for 40 Notification Facilities
EPA has compiled data on some of the factors described above to characterize the vulnerabilities of communities potentially affected by the 2008 DSW rule.  Specifically, EPA has compiled these data on the communities surrounding the 40 notification facilities.  While EPA does not have information to know whether or not these results would reflect or represent all of the facilities that may eventually have claimed an exclusion under the 2008 DSW final rule, EPA believes it provides preliminary information regarding the possible extent of multiple exposures to the 40 notification facilities. EPA did not analyze factors that affect vulnerability for communities around damage case facilities because these facilities represent historical hazards, and may not be indicative of facilities that will generate and manage HSM under the 2008 DSW rule in the future.  In addition, EPA did not analyze factors that affect vulnerability for communities around hazardous waste facilities and non-hazardous industrial waste facilities because these analyses were beyond the scope of this analysis.  The results of this data collection are summarized in Table 5.1.
Because of the potential for adverse impacts to communities located around DSW facilities, each of the factors described in Section 5.1 has the potential to exacerbate those adverse impacts.  While EPA has not attempted to quantify or determining the potential disproportionality of every possible factors, Table 5.1 does demonstrate that some communities around DSW facilities are potentially affected by these factors.

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

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

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

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

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

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

                                 DSW Practices
                         Summary of Increases in Risks
                        Summary of Reductions in Risks
         Scenario 1:  Generator continues current recycling practices
Generator recycles material onsite under hazardous waste regulations

Generator recycles material onsite under generator-controlled exclusion
Potential  increased risk at generator due to longer accumulation times, greater quantities, lack of explicit preventative measures.  Potential increased risks include fires/explosions, environmental contamination and human exposure, mismanaged residues, and abandoned materials.
Potential reduced risk at small generators of abandoned materials due to more frequent
reporting and increased data on generator activities,
HSM quantities and types.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Generator reclaims material onsite under generator-controlled exclusion, or

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

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

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

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

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

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

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

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

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

National Comparison
Minority Population

Affected Population Ratio

Demographic Ratio
National Comparison
Low-Income Population

Affected Population Ratio

Demographic Ratio
State
Comparison
Minority Population

Affected Population Ratio

Demographic Ratio
State
Comparison
Low-Income Population

Affected Population Ratio

Demographic Ratio
Notification Facilities
(40 total)
                                     0.70

                                     0.76
                                     1.05

                                     1.04
                                   1.80 (IA)
                                   1.76 (IA)

                                   1.02 (NJ)
                                   1.01 (NJ)

                                   1.46 (PA)
                                   1.47 (PA)
                                   1.34 (IA)
                                   1.32 (IA)

                                   0.64 (NJ)
                                   0.65 (NJ)

                                   1.74 (PA)
                                   1.63 (PA)
Damage Case Facilities
(217 total)
                                     2.87

                                     1.86
                                     1.98

                                     1.80
                                     2.59

                                     1.64
                                     2.04

                                     1.90
Hazardous Waste Facilities
(2,677 total)
                                     1.90

                                     1.80
                                     1.39

                                     1.50
                                     1.94

                                     2.04
                                     1.47

                                     1.83
Non-Hazardous Industrial Waste Facilities
(25 total)
                                     1.19

                                     1.12
                                     1.16

                                     1.14
                                     1.34

                                     1.20
                                     1.17

                                     1.15

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

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

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

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

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

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

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

               Comparison of Regulatory Requirements under 2008 DSW Final Rule to RCRA and Other Federal Regulations

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

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

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

Table A-1.  Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of
Hazardous Secondary Materials under DSW Generator-Controlled Exclusion
Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators
DSW Generator-Controlled Exclusion (GCE) and Other Federal Regulations:  Hazardous Secondary Material Generators
    Notes (e.g., issues regarding applicability, comments on comparability)
                       Large Quantity Generators (LQGs)
                       Small Quantity Generators (SQGs)

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

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

 The GCE also allows generators to manage HSM in land-based units, unlike the HWRs, which require a permit or interim status that prescribe facility and unit-specific standards.
4. Air Emissions
HWRs: LQGs must comply with standards to control air emissions.  These include standards for the design, operation, monitoring, testing, and recordkeeping of: