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

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

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

5.  Emergency Preparedness and Response
HWRs: LQGs must:
   *    Have emergency equipment (e.g., alarms, fire protection, spill containment);
   *    Designate an emergency coordinator; and
   *    Have an emergency plan to address any release or other emergency, and emergency procedures for:
   -     Notifying onsite and offsite personnel;
   -     Controlling the emergency (e.g., identifying, assessing and containing the release); and
   -     Taking other actions as specified (e.g., ensuring proper management of recovered material). (40 CFR 262.34 and Part 265, Subparts C and D)
HWRs: SQGs must:
   *    Have emergency equipment (e.g., alarms, fire protection, spill containment);
   *    Designate an emergency coordinator; and
   *    Respond to any emergency (e.g., extinguish fires, contain and clean up releases, notify offsite emergency personnel as applicable).  (40 CFR 262.34 and Part 265, Subpart C)

GCE:  No comparable provisions
The GCE does not include provisions on emergency preparedness and response.  However, materials under the GCE that are no longer contained in a unit (i.e., released) and not immediately recovered would no longer be excluded.  They would need to be cleaned up and be subject to Subtitle C regulation if hazardous, including the HWR preparedness and response requirements, as applicable.

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

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

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

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

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

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

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

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

The SPCC requirements set forth generally comparable elements as the HWRs for emergency preparedness and response for oil discharges.  This includes emergency equipment, personnel responsibilities for addressing discharges, training, and emergency plans/procedures (e.g., countermeasures for discharge response and cleanup, notification to offsite agencies/personnel).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Hazard Communication Standard (HazCom) requires familiarization and training on emergency recognition, hazards, and protective measures, which is comparable to the topics of HWR training for SQGs.  However, they are somewhat less rigorous than the HWR training requirements for LQGs.  There is no schedule for follow-up training under HazCom.  Therefore, HazCom training is not comparable to the HWRs for LQG training.

A generator must comply with these regulations for any chemicals which could pose a physical or health hazard in the work place, except for hazardous waste.  Generators would be subject to these requirements for their excluded materials, as well as other chemicals that are not hazardous waste (e.g., chemical products).
7. Reporting and Recordkeeping
HWRs: Reporting to EPA on waste management activities:
   *    Notification (40 CFR  262.12)
   *    Biennial report for LQGS only (40 CFR 262.41)
   *    Exception report (40 CFR 262.42)
HWRs: Recordkeeping for three years (40 CFR 262.40)
GCE:  Initial and Biennial notifications (40 CFR 260.42)
The HWR and GCE have comparable requirements for initial and biennial submittals in regard to frequency and types of information submitted.  However, the GCE biennial notification requirement applies to generators regardless of size.  The HWR's biennial reporting requirement applies only to LQGs.

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

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

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

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

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

Note that some excluded materials may not qualify as a DOT hazardous material.  They would not need to be transported in accordance with the hazardous materials regulations.
9. Exports
HWRs: Reporting under 40 CFR Part 262, Subpart E or H:
   *    Perform notice and consent
   *    Submit annual report
   *    Keep records
GCE: No comparable provisions for exports.

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

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

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

Table A-2.  Comparison of Federal Regulations Applicable to Generators of Hazardous Waste and Generators of
       Hazardous Secondary Materials under DSW Transfer-Based Exclusion
Hazardous Waste Regulations (HWRs) and Other Federal Regulations: Hazardous Waste Generators
DSW Transfer-Based Exclusion (TBE) and Other Federal Regulations:  Hazardous Secondary Material Generators
    Notes (e.g., issues regarding applicability, comments on comparability)
                       Large Quantity Generators (LQGs)
                       Small Quantity Generators (SQGs)

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

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

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

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

5. Emergency Preparedness and Response
HWRs: LQGs must:
   *    Have emergency equipment (e.g., alarms, fire protection, spill containment);
   *    Designate an emergency coordinator; and
   *    Have an emergency plan to address any release or other emergency, and emergency procedures for:
   -     Notifying onsite and offsite personnel;
   -     Controlling the emergency (e.g., identifying, assessing and containing the release); and
   -     Taking other actions as specified (e.g., ensuring proper management of recovered material). (40 CFR 262.34 and Part 265, Subparts C and D)
HWRs: SQGs must:
   *    Have emergency equipment (e.g., alarms, fire protection, spill containment);
   *    Designate an emergency coordinator; and
   *    Respond to any emergency (e.g., extinguish fires, contain and clean up releases, notify offsite emergency personnel as applicable).  (40 CFR 262.34 and Part 265, Subpart C)

TBE:  No comparable provisions
The TBE does not include provisions on emergency preparedness and response.  However, materials under the TBE that are no longer contained in a unit (i.e., released) and not immediately recovered would no longer be excluded.  They would need to be cleaned up and be subject to Subtitle C regulation if hazardous, including the HWR preparedness and response requirements, as applicable.

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

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

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

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

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

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

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

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

The SPCC requirements set forth generally comparable elements as the HWRs for emergency preparedness and response for oil discharges.  This includes emergency equipment, personnel responsibilities for addressing discharges, training, and emergency plans/procedures (e.g., countermeasures for discharge response and cleanup, notification to offsite agencies/personnel).

A generator must prepare an SPCC Plan if it meets specified applicability criteria (e.g., a non-transportation-related facility with aboveground oil storage capacity of more than 1,320 gallons that could reasonably be expected to discharge petroleum-based solvents to navigable waters or adjoining shorelines in quantities that may be harmful).   These criteria would not apply to certain types of generators (e.g., sites that are not near navigable waters, do not generate/store oil-related substances, or meet minimum storage capacity thresholds).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Hazard Communication Standard (HazCom) requires familiarization and training on emergency recognition, hazards, and protective measures, which is comparable to the topics of HWR training for SQGs.  However, they are somewhat less rigorous than the HWR training requirements for LQGs.  There is no schedule for follow-up training under HazCom.  Therefore, HazCom training is not comparable to the HWRs for LQG training.

A generator must comply with these regulations for any chemicals which could pose a physical or health hazard in the work place, except for hazardous waste.  Generators would be subject to these requirements for their excluded materials, as well as other chemicals that are not hazardous waste (e.g., chemical products).
7. Reporting and Recordkeeping
HWRs: Reporting to EPA on waste management activities:
   *    Notification (40 CFR  262.12)
   *    Biennial report for LQGs only (40 CFR 262.41)
   *    Exception report (40 CFR 262.42)
HWRs: Recordkeeping for three years (40 CFR 262.40)
TBE:  Reporting on hazardous secondary material activities:
   *    Initial and biennial notifications (40 CFR 260.42)
   *    Records of reasonable efforts if requested (40 CFR 261.4(a)(24)(v)(C))
TBE: Recordkeeping for three years:
   *    Records of reasonable efforts (40 CFR 261.4(a)(24)(v)(C))
   *    Records of offsite shipments and confirmations of receipt (40 CFR 261.4(a)(24)(v)(D) and (E))
The HWR and TBE have comparable requirements for initial and biennial submittals in regard to frequency and types of information submitted.  However, the TBE biennial notification requirement applies to generators regardless of size.  The HWR's biennial reporting requirement applies only to LQGs.
The TBE does not require exception reporting or recordkeeping.
The TBE includes records of reasonable efforts performed by the generator to ensure that reclamation is legitimate and the excluded material will be managed in a protective manner.  This is not required by the HWR.
8. Offsite Transportation
HWRs: Shipments must be manifested (40 CFR 262, Subpart B) and comply with DOT requirements for packing, labeling, marking, and placarding (40 CFR 262.30-.33)
TBE: Recordkeeping of offsite shipments and confirmations of receipt (40 CFR 261.4(a)(24)(v)(D)) and compliance with DOT packing requirements (40 CFR 261.4(a)(24)(ii))
The HWRs and TBE are comparable in regard to packing requirements and tracking of shipments from generator to reclaimer.  Refer to "Other Federal Regulations" below for an additional discussion.
Other Federal Regulations:
HMTA:  A generator would be subject to regulations under the HMTA if it transported, or offered for transportation, a DOT hazardous material, i.e., a material that 1) is listed in the Table in 49 CFR 172.101 (e.g., compounds), 2) is listed in the Appendices to the Table in 172.101, or 3) meets one or more of the hazard classifications (e.g., flammable liquid).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The SPCC requirements set forth generally comparable elements as the HWRs for emergency preparedness and response for oil discharges.  This includes emergency equipment, personnel responsibilities for addressing discharges, training, and emergency plans/procedures (e.g., countermeasures for discharge response and cleanup, notification to offsite agencies/personnel).

A facility must prepare an SPCC Plan if it meets specified applicability criteria (e.g., a non-transportation-related facility with aboveground oil storage capacity of more than 1,320 gallons that could reasonably be expected to discharge petroleum-based solvents to navigable waters or adjoining shorelines in quantities that may be harmful).   These criteria would not apply to certain types of facilities (e.g., facilities that are not near navigable waters, do not store oil-related substances, or meet minimum storage capacity thresholds).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Hazard Communication Standard (HazCom) requires familiarization and training on emergency recognition, hazards, and protective measures.  These provisions less rigorous than the HWR training requirements for facilities.  There is no schedule for follow-up training under HazCom.  Therefore, HazCom training is not comparable to the HWR training requirements.

A facility must comply with these regulations for any chemicals which could pose a physical or health hazard in the work place, except for hazardous waste.  Facilities under the TBE would be subject to these requirements for their excluded materials, as well as other chemicals that are not hazardous waste (e.g., chemical products).
7. Reporting and Recordkeeping
HWRs: Reporting to EPA:
   *    Notification (40 CFR  264.11)
   *    Biennial report (40 CFR 264.75)
   *    Manifesting reports (40 CFR 264.72 and 264.76)
HWRs: Operating record (40 CFR 264.73)
TBE: Initial and biennial notification (40 CFR 260.42) and recordkeeping of all shipments received onsite and received onsite and sent offsite  (40 CFR 261.4(a)(24)(vi)(A))
The HWR and TBE have comparable requirements for initial and biennial submittals in regard to frequency and types of information submitted.
The TBE does not require recordkeeping comparable to an operating record.
8. Financial Assurance
HWRs: Financial assurance must be obtained (40 CFR Part 264, Subpart H)
TBE: Financial assurance must be obtained (40 CFR 261.4(a)(24)(vi)(F))
The HWR and TBE include comparable requirements for financial assurance.
9. Regulation of Residues
HWRs: Derived-from rule applies to residues from reclamation (40 CFR 261.3(c))
TBE: Residuals must be managed as hazardous waste if they exhibit a characteristic or are listed (40 CFR 261.4(a)(24)(vi)(E))
The derived-from' rule does not apply to residuals from the reclamation of hazardous secondary materials excluded under the TBE.  These residuals are a new point of generation for the purposes of applying the hazardous waste determination requirements of 40 CFR 262.11.  If the residuals exhibit a hazardous characteristic, or they themselves are a listed hazardous waste, they would be considered hazardous wastes (unless otherwise exempted) and would have to be managed accordingly. If they did not exhibit a hazardous characteristic, or were not themselves a listed hazardous waste, they would need to be managed in accordance with applicable state or federal requirements for non-hazardous wastes.

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

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

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

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

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

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

For unpermitted DSW facilities, no comparable requirements.

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

5.	Summary of Federal Regulations
This section summarizes the federal regulations that are compared and discussed in this appendix.  These include the following:
      5.1	Resource Conservation and Recovery Act (RCRA) Hazardous Waste Regulations
           5.1.1	Hazardous Waste Generator Standards
           5.1.2	Hazardous Waste Storage Standards
      5.2	Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste Exclusions
           5.2.1 	Generator-Controlled Exclusion
           5.2.2	Transfer-Based Exclusion
      5.3	Clean Air Act (CAA)
           5.3.1	CAA Title V Air Quality Permitting Process
           5.3.2	CAA Standards for Area Sources Not Subject to Title V Permit
     5.3.3	Chemical Accident Prevention Provisions
      5.4	Clean Water Act (CWA)  -  Oil Pollution Prevention
      5.5	Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)  -  Release Notification
      5.6	Emergency Planning and Community Right-to-Know Act (EPCRA)  -  Release Notification
      5.7	Hazardous Materials Transportation Act of 1975 (HMTA)
      	5.7.1	Overview and Applicability
      	5.7.2	Hazardous Materials Regulations
            5.7.3	Transportation of Hazardous Materials; Driving and Parking Rules
      5.8	Occupational Safety and Health Act (OSH Act)
            5.8.1	Process Safety Management of Highly Hazardous Chemicals
            5.8.2	Hazardous Waste Operations and Emergency Response
            5.8.3	Hazard Communication
      5.1	Resource Conservation and Recovery Act (RCRA) Hazardous Waste Regulations
Subtitle C of the Resource Conservation and Recovery Act (RCRA), as amended, authorizes EPA to develop and implement a national hazardous waste regulatory program.  EPA has established hazardous regulations at 40 CFR Parts 260 through 279.  Following is a summary of some of the regulations applicable to hazardous waste generators and storage facilities.
      5.1.1	Hazardous Waste Generator Standards (40 CFR Part 262)
A hazardous waste generator is any person, by site, whose act or process produces hazardous waste or whose act first causes a hazardous waste to become subject to regulation.  Generators are divided into three categories based on the quantity of waste they produce during the month:
   * A large quantity generator (LQG) is a site that generates 1,000 kg or more of hazardous waste in a calendar month, 1 kg or more of acute hazardous waste in a calendar month, or 100 kg or more of any residue, soil, waste or other debris resulting from the cleanup of any acute hazardous waste. (261.5(e) and 262.34(a))
   * A small quantity generator (SQG) is a site that generates greater than 100 kg but less than 1,000 kg of hazardous waste in a calendar month. (262.34(d))
   * A conditionally exempt small quantity generator (CESQG) is a site that generates no more than 100 kg of hazardous waste in a calendar month. (261.5(a))
LQGs and SQGs must comply with the standards of 40 CFR Part 262, as applicable.  Following is a summary of some of the generator standards.
      Legitimate Recycling
EPA has issued policy statements to clarify legitimate recycling under the RCRA hazardous waste program.  In particular, EPA issued a memorandum on April 26, 1989, that consolidated preamble statements concerning legitimate recycling that had been articulated previously into a list of criteria to be considered in evaluating legitimacy [OSWER directive 9441.1989(19)]. This memorandum has been a primary source of guidance for the regulated community and for implementing agencies in distinguishing between legitimate and sham recycling.
As explained in the memorandum, a legitimacy determination involves evaluating case-specific information to determine whether or not a secondary material being recycled is in effect being used as a commodity, rather than as a waste.  The memorandum identified six criteria to be considered in evaluating this fundamental question, explaining that each recycling scenario is likely to require a case-specific evaluation. The memorandum further explained that, depending on the case-specific facts and circumstances, certain criteria may weigh more heavily than others in making legitimacy determinations.
In addition, 40 CFR 261.2(f) provides that respondents in an enforcement action who raise a claim that a certain material is not a solid waste must demonstrate that there is a known market or disposition for the material and that they meet the terms of the exclusion or exemption, as specified.
      Storage Time Limit
Generators must comply with the storage time limits at 40 CFR 262.34, as specified:
   * LQGs may accumulate hazardous waste onsite for 90 days or less without a permit or interim status, provided that specified standards are met. (262.34(a))
   * SQGs may accumulate hazardous waste onsite for 180 days or less without a permit or interim status, provided that the quantity of waste accumulated onsite never exceeds 6,000 kg and other standards are met, as specified.  If the SQG's waste must be transported 200 miles or more for offsite treatment, storage, or disposal, it may accumulate the hazardous waste onsite for 270 days or less without a permit or interim status, provided that specified standards are met. (262.34(d) and (e))
	Containment
40 CFR 262.34(a) and (d) provide that LQGs and SQGs may accumulate their hazardous waste in containers and tanks in accordance with 40 CFR Part 265, Subparts I and J, respectively.  In addition, LQGs may accumulate their hazardous waste in containment buildings in accordance with 40 CFR Part 265, Subpart DD.  The purpose of these standards is to contain the waste in the unit, among other things.  Section 5.2 of this appendix gives examples of some of these standards.
	Air Emission Standards
40 CFR 262.34(a) requires LQGs to comply with the air emission standards for containers and tanks at 40 CFR Part 265, Subparts AA, BB, and CC, as applicable.  SQGs are not subject to these subparts.  Section 5.2 of this appendix summarizes the Subpart AA through CC requirements.
Emergency Preparedness and Response
Emergency Equipment.  40 CFR 262.34(a) and (d) require LQGs and SQGs to comply with the preparedness and prevention requirements of 40 CFR Part 265, Subpart C.  Subpart C requires that they be equipped with, test, and maintain emergency equipment, including internal and external communications and alarm systems, fire control equipment, and water, if needed for the hazards posed by waste handled at the facility.
Emergency Plan and Response.  40 CFR 262.34(a) requires LQGs to comply with the contingency plan and emergency procedures of 40 CFR Part 265, Subpart D.  Subpart D requires that they designate an emergency coordinator and have a contingency plan designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water.  The emergency coordinator must carry out the following procedures whenever there is a fire, release, and explosion:
   * Notify onsite and offsite personnel/agencies as specified;
   * Identify, assess, and control releases, fires or explosions and related hazards;
   * Take other actions as specified (e.g., ensure treatment, storage, or disposal of recovered waste).
40 CFR 262.34(d) requires SQGs to designate an emergency coordinator and post emergency information next to the telephone (e.g., location of fire extinguisher).  In the event of a fire, explosion or other release, the emergency coordinator must notify appropriate offsite personnel/agencies and control/clean up to the fire, release or other emergency (e.g., contain the flow of hazardous waste).
Personnel Training
40 CFR 262.34(a) requires LQGs to comply with the personnel training requirements of 40 CFR 265.16.  LQGs must provide initial training and annual review, which teach facility personnel to perform their duties in a way that ensures the facility's compliance with applicable RCRA requirements.  It must ensure, at a minimum, that personnel are able to respond effectively to emergencies.  Specified records must be kept.
40 CFR 262.34(d) requires SQGs to ensure that all employees are thoroughly familiar with proper waste handling and emergency procedures relevant to their responsibilities during normal facility operations and emergencies.
Reporting and Recordkeeping
Notification.  Under 40 CFR 262.12, a generator must not treat, store, dispose of, transport, or offer for transportation, hazardous waste without having received an EPA identification number from EPA.  The generator may obtain an ID number by submitting a Site Identification Form (EPA Form 8700-12) to EPA.
Biennial Report.  40 CFR 262.41 requires LQGs to prepare and submit a Biennial Report to EPA by March 1 of each even numbered year.  The Biennial Report must be submitted on EPA Form 8700 - 13A and include information about the generator, hazardous wastes generated, onsite management, and offsite shipments.  SQGs are not required to submit a Biennial Report.
Exception Report.   Under 40 CFR 262.42, a generator must submit an Exception Report to EPA if has not received a copy of the manifest from the designated facility within 45 days (for LQGs) or 60 days (for SQGs) of the date the waste was accepted by the initial transporter.  The Exception Report must explain the generator's efforts to locate the waste and the results of those efforts.
Recordkeeping.  40 CFR 262.40 requires generators to retain the following documents for three years:
   * Manifests;
   * Biennial Report (LQGs only); and
   * Results of waste analyses, tests, and other determinations.
      Offsite Transportation
Manifest System.   Under 40 CFR Part 262, Subpart B, generators must prepare a hazardous waste manifest for all offsite shipments, give it to initial the transporter, and retain a copy.  The transporter must ensure that the manifest accompanies the shipment to the designated facility and retain a copy.  The designated facility must note discrepancies, retain a copy and send a copy back to the generator to confirm receipt.
Department of Transportation (DOT) Requirements.  40 CFR 262.30 through 262.33 require generators to comply with the following DOT requirements for the waste before it is transported offsite:
   * Packaging requirements at 49 CFR Parts 173, 178, and 179; and
   * Labeling, marking, and placarding requirements at 49 CFR Part 172.
      Exports
Under 40 CFR Part 262, Subparts E and H, a primary exporter must provide notice to EPA of its intent to export hazardous waste.  The shipment cannot take place until the receiving country consents (e.g., tacit or written) to the shipment.  The primary exporter must comply with the requirements for use of a tracking document (e.g., manifest), as specified.  In addition, exports to countries in the Organization for Economic Cooperation and Development must occur under the conditions of a contract, as specified.  The primary exporter must file an annual report by March 1 of each year to EPA, summarizing the types, quantities, frequency, and ultimate disposition of all hazardous waste exported.  The primary exporter must keep a copy of specified documents (e.g., each notification, annual report).
      Regulation of Residues
40 CFR 261.3(c) provides that any material derived from a listed hazardous waste is also a listed hazardous waste.
      Enforcement and Compliance
EPA's National Program Manager (NPM) Guidance for Fiscal Year 2010 establishes performance expectations and activities related to the LQG universe for the EPA Regions and states.  It requires that they annually inspect at least 20% of the LQG universe, so that the entire universe is inspected in five years unless approval to deviate from this requirement is approved.
	5.1.2	Hazardous Waste Storage Standards (40 CFR Parts 264 and 265)
A facility that treats, stores of disposes of hazardous waste must comply with the technical requirements of 40 CFR Part 264 or 265.  Part 264 establishes requirements for treatment, storage or disposal facilities (TSDFs) that have received a RCRA permit under Part 270.  Part 265 establishes requirements for TSDFs that are under interim status until either a RCRA permit is issued or closure and post-closure responsibilities are fulfilled.  Following is a summary of some of the requirements applicable to facilities that store hazardous waste.
      Legitimate Recycling
Section 5.1 summarizes the requirements and policy related to the legitimate recycling of hazardous waste.
 	Containment
Facilities must store their hazardous waste in containers, tanks, surface impoundments, waste piles, or containment buildings in accordance with 40 CFR Part 264 or 265, Subparts I, J, K, L, or DD, respectively.  The purpose of these standards is to contain the waste, among other things.  Following are examples of standards for the design, operation, inspection, and closure/post-closure of these units.
   Design Standards
   * Liners and leachate collection and removal systems
   * Air emission controls
   * Other control measures (e.g., dikes, run-on/run-off systems)
   Operating Standards
         *       Controls and practices to prevent spills and overflows (e.g., maintenance of sufficient freeboard in uncovered tanks)
         *       Controls to prevent wind dispersal of particulate matter
         *       Special procedures for storing ignitable, reactive waste, and incompatible waste (e.g., waste segregation)
   Monitoring and Inspection Standards
   * Periodic inspections to detect leaks and ensure the unit is in good working order (e.g., at least weekly for containers)
   * Periodic monitoring of leakage rates from surface impoundments and waste piles
   Closure and Post-Closure Care Standards
   * Removal or decontamination of all waste residues, contaminated containment system components, contaminated soils, and structures/equipment contaminated with waste
   * Elimination of free liquids
   * Performance of post-closure care, if applicable (e.g., maintenance and monitoring)
	Air Emission Standards
EPA has established air emission standards at 40 CFR Parts 264 and 265, Subparts AA, BB, and CC.  They apply to LQG and TSDF containers, tanks, and other units as specified.  They are summarized below.
	Air Emission Standards for Process Vents at 40 CFR Parts 264 and 265, Subpart AA
Parts 264 and 265, Subpart AA applies to process vents associated with distillation, fractionation, thin-film evaporation, solvent extraction, or air or steam stripping operations that manage hazardous wastes with organic concentrations of at least 10 parts per million by weight (ppmw), if these operations are conducted in specified units (e.g., units subject to permitting requirements).  Facilities must design, operate, monitor, and maintain their process vents to either 1) reduce total organic emissions from all affected process vents at the facility below specified levels or 2) reduce, by use of a control device, total organic emissions from all affected process vents at the facility by 95 weight percent.
Air Emission Standards for Equipment Leaks at 40 CFR Parts 264 and 265, Subpart BB
Parts 264 and 265, Subpart BB applies to equipment that contains or contacts hazardous wastes with organic concentrations of at least 10 percent by weight that are managed in specified unit types (e.g., units subject to permitting requirements).  Facilities must comply with the design, operation, inspection, monitoring, testing, maintenance, and recordkeeping standards for specified types of equipment (e.g., pumps, compressors, pressure relief devices).
Air Emission Standards for Tanks, Surface Impoundments, and Containers at 40 CFR Parts 264 and 265, Subpart CC
Parts 264 and 265, Subpart CC applies to tanks, surface impoundments, and containers, except as otherwise specified.
Tanks.  Facilities must control air pollutant emissions from tanks in accordance with Tank Level 1 or Tank Level 2 controls, as specified (e.g., installing a fixed roof).
Surface Impoundments.  Facilities must control air pollutant emissions from surface impoundments by using either a floating membrane cover or a cover that is vented through a closed-vent system to a control device, as specified.
Containers.  Facilities must control air pollutant emissions from containers in accordance with Container Level 1, 2, or 3 standards (e.g., use of containers that meet applicable DOT regulations).
Emergency Preparedness and Response
Emergency Equipment.  Facilities must comply with the preparedness and prevention requirements of Subpart C of 40 CFR Parts 264 and 265.  Subpart C requires that they be equipped with, test, and maintain emergency equipment, including internal and external communications and alarm systems, fire control equipment, and water, if needed for the hazards posed by waste handled at the facility.
Emergency Plan and Response.  Facilities must comply with the contingency plan and emergency procedures of Subpart D of 40 CFR Parts 264 and 265.  Subpart D requires that they designate an emergency coordinator and have a contingency plan designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water.  The emergency coordinator must carry out procedures for responding to fires, releases, and explosions, including:
   * Notify onsite and offsite personnel/agencies as specified;
   * Identify, assess, and control releases, fires or explosions and related hazards;
   * Taking other actions as specified (e.g., ensure treatment, storage, or disposal of recovered waste).
Security
Facilities must prevent the unknowing entry, and minimize the possibility for the unauthorized entry, of persons or livestock onto the active portion of the facility, unless specified otherwise, as required by 40 CFR 264.14 and 265.14. This must include a surveillance system or barrier (e.g., fence).
      Personnel Training
Facilities must comply with the personnel training requirements of 40 CFR 264.16 or 265.16.  Facilities must provide initial training and annual review, which teach facility personnel to perform their duties in a way that ensures the facility's compliance with applicable requirements.  It must ensure, at a minimum, that personnel are able to respond effectively to emergencies.  Specified records must be kept.
Reporting and Recordkeeping
Notification.  Under 40 CFR 264.11 and 265.11, every facility must apply to EPA for an EPA identification number in accordance with the EPA notification procedures.
Biennial Report.  40 CFR 264.75 and 265.75 require facilities to prepare and submit a single copy of a biennial report to EPA by March 1 of each even numbered year.  The report must include information about the facility, wastes received (e.g., from offsite) , management and disposal methods.
Discrepancy Report.  40 CFR 264.71 and 265.71 require a facility that receives an offsite shipment to note discrepancies between the waste and manifest.  The facility must attempt to reconcile the discrepancy.  If it cannot, it must submit a Discrepancy Report to EPA within 15 days, explaining the discrepancy and efforts to resolve it.
Recordkeeping.  40 CFR 264.73 and 265.73 require facilities to record and maintain the following information in an operating record (e.g., waste and unit descriptions, emergency incidents, inspection/monitoring results, notices and certifications).
      Financial Assurance
40 CFR Parts 264 and 265, Subpart H requires facilities to have and maintain a cost estimate for closure and, if applicable, post-closure.  They also must obtain financial assurance for closure and, if applicable, post-closure.
In addition, facilities must maintain liability coverage for sudden accidental occurrences of at least $1 million per occurrence with an annual aggregate of at least $2 million.  Facilities with a surface impoundment, landfill, land treatment facility, or disposal miscellaneous unit as specified also must maintain liability coverage for non-sudden accidental occurrences in an amount of at least $3 million per occurrence with an annual aggregate of at least $6 million.
Subpart H identifies a variety of financial instruments for these purposes (e.g., trust fund, surety bond).
      Regulation of Residues
40 CFR 261.3(c) provides that any material derived from a listed hazardous waste is also a listed hazardous waste.
      Requirement for a Permit
40 CFR Part 270 requires a facility owner/operator to obtain a permit to treat, store or dispose of hazardous waste.  Owner/operators must have a permit during the active life (including closure period) of their hazardous waste management units.  Owner/operators of surface impoundments, landfills, land treatment units, and waste pile units also must have post-closure permits, unless they demonstrate closure by removal or decontamination s specified.  The permit specifies the requirements to which the facility is subject.
      Public Involvement in the Permit Process
The RCRA permitting process is laid out at 40 CFR Parts 124 and 270. Following its basic elements, including public involvement methods:
   * Applicant holds a public meeting with the public prior to submitting the Part B RCRA permit application to EPA (e.g., to explain its facility).
   * The facility submits a Part A and Part B permit application to EPA or authorized state permitting agency that contains the information required in Part 270, Subpart B.
   * Permitting agency will issue a public notice that an application has been received and where it is available for public review.  The agency will review the application for completeness and send a written notification to the applicant indicating whether the application is complete.
   * Once an application is complete, the agency will tentatively decide whether to issue or deny the permit.  If it decides to issue a permit, it will prepare a draft permit that contains requirements and conditions as specified.  If it decides to deny the permit, it will issue a notice of intent to deny.
   * The permitting agency will provide public notice of its intent to issue or deny the permit, along with a fact sheet.  The notice must be circulated in specified media (e.g., local papers, etc.) and allow at least 45 days for public comment.
   * The permitting agency will hold a public hearing whenever it receives written notice of opposition to a draft permit and a request for a hearing, as specified.  Whenever possible, it will schedule a hearing at a location convenient to the nearest population center to the proposed facility.
   * After the close of the public comment period, the agency will either issue or deny the permit.  It also must prepare a written response to comments and make it publicly available.
      EPA/State Oversight and Enforcement
RCRA section 3007(c) requires annual inspections of federal TSDFs.  RCRA section 3007(d) requires annual inspections of state and local TSDFs.  RCRA section 3007(e) requires that other TSDFs be inspected no less than every 2 years.
EPA's National Program Manager (NPM) Guidance for Fiscal Year 2010 establishes performance expectations and activities related to the TSDF universe for the EPA Regions and states.  It requires that they inspect at least once every two years each operating TSDF, as required under RCRA section 3007(e), i.e., 50% of the TSDF universe annually.  It also requires the EPA Regions to annually inspect each TSDF operated by states or local governments as required under RCRA section 3007(d).
      5.2	Resource Conservation and Recovery Act (RCRA) Definition of Solid Waste Exclusions
      5.2.1	Generator-Controlled Exclusion (40 CFR 261.2(a)(2)(ii) and 261.4(a)(23))
The generator-controlled exclusion excludes from the definition of solid waste those hazardous secondary materials which remain under the control of the generator when legitimately reclaimed.  The exclusion can be claimed for materials that are:
   * Generated and reclaimed at the generating facility;
   * Generated and reclaimed at different facilities, if the reclaiming facility is controlled by the generator or if both the generating facility and the reclaiming facility are controlled by a person as defined in 40 CFR 260.10; and
   * Generated pursuant to a written contract between a tolling contractor and a toll manufacturer and is reclaimed by the tolling contractor.  A tolling contractor means a person who arranges for the production of a product or intermediate made from specified unused materials through a written contract with a toll manufacturer.  Toll manufacturer means a person who produces a product or intermediate made from specified unused materials pursuant to a written contract with a tolling contractor.
The conditions and requirements of the exclusion are summarized below.
	Legitimate Recycling
The generator-controlled exclusion requires the reclamation of hazardous secondary material to be legitimate, as specified under 40 CFR 260.43.
40 CFR 260.43(a) provides that persons regulated under 40 CFR 260.34 or claiming to be excluded from hazardous waste regulation under sections 261.2(a)(2)(ii), 261.4(a)(23), (24), or (25) because they are engaged in reclamation must be able to demonstrate that the recycling is legitimate.  Hazardous secondary material that is not legitimately recycled is discarded material and is a solid waste.  In determining if their recycling is legitimate, persons must address the requirements of 40 CFR 260.43(b) and must consider the requirements of 40 CFR 260.43(c).
40 CFR 260.43(b) provides that legitimate recycling must involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process, and the recycling process must produce a valuable product or intermediate as specified.
40 CFR 260.43(c) identifies factors that must be considered in making a determination as to the overall legitimacy of a specific recycling activity.  These factors relate to how the generator and reclaimer should manage the material (e.g., as a valuable commodity) and how closely the product of the recycling process resembles analogous products.  In making a determination that a hazardous secondary material is legitimately recycled, persons must evaluate all factors and consider legitimacy as a whole.  If, after careful evaluation of these other considerations, one or both of the factors are not met, then this fact may be an indication that the material is not legitimately recycled.  However, the factors do not have to be met for the recycling to be considered legitimate.  In evaluating the extent to which these factors are met and in determining whether a process that does not meet one or both of these factors is still legitimate, persons can consider other relevant factors.
      Storage Time Limit
The generator-controlled exclusion requires that the material not be speculatively accumulated, as defined in  40 CFR 261.1(c)(8).   40 CFR 261.1(c)(8) provides that a material is "accumulated speculatively" if it is accumulated before being recycled.  A material is not accumulated speculatively, however, if the person accumulating it can show that the material is potentially recyclable and has a feasible means of being recycled; and that -- during the calendar year (commencing on January 1) -- the amount of material that is recycled, or transferred to a different site for recycling, equals at least 75 percent by weight or volume of the amount of that material accumulated at the beginning of the period.
      Containment
The generator-controlled exclusion requires that the material be contained.
      Air Emission Standards
The generator-controlled exclusion requires that the material be contained.
Emergency Preparedness and Response
The generator-controlled exclusion does not require emergency preparedness and response.
Personnel Training
The generator-controlled exclusion does not require personnel training.
Reporting and Recordkeeping