No. 43528 (Amendment): Rule R315-262. Hazardous Waste Generator Requirements

(Amendment)

DAR File No.: 43528
Filed: 02/14/2019 03:40:51 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

In May of 2015, the U.S. Department of Transportation (DOT) announced a national recall of airbag inflators manufactured by Takata due to a defect which has resulted in 15 deaths and at least 250 injuries in the U.S. as of August 2018. This recall affects 19 vehicle manufactures with approximately 60,000,000 to 70,000,000 airbag inflators scheduled for recall. A Preservation Order issued by DOT in February 2015 required Takata to preserve all recalled airbag inflators. EPA issued a memorandum in June of 2017 stating that the recalled airbag inflators were not subject to hazardous waste regulations while being held under the Preservation Order. The EPA clarification states that the recalled inflators would be considered a solid waste once the order was lifted. Airbag inflators meet both the ignitability and reactivity hazardous waste characteristics and therefore, would need to be managed as a hazardous waste. In April of 2018, the Preservation Order was amended requiring Takata to keep only a certain percentage of the inflators allowing the remainder to be disposed. The amended order no longer requires affected vehicle manufacturers to send their recalled airbag inflators to Takata thus allowing the manufacturers to dispose of the inflators on their own. DOT has determined that it is imperative that the recall of these airbag inflators be accelerated because the risk of serious injury or death increases over time because the inflators become more unstable as they age and are exposed to high absolute humidity. It is believed that these rule changes will assist in facilitating the recall acceleration by exempting the collection of airbag waste from hazardous waste requirements so long as certain conditions are met. These rule changes became effective at the federal level on 11/30/2018.

Summary of the rule or change:

Subsection R315-262-14(a)(5)(xi) was added. This added subsection provides the option for a very small quantity generator deliver airbag waste to an airbag collection facility or a designated facility subject to the requirements of Subsection R315-261-4(j).

Statutory or constitutional authorization for this rule:

Section 19-6-106
Section 19-6-104
Section 19-6-105

Anticipated cost or savings to:

the state budget:

These rule changes will not affect the state budget because no state governmental agency is a vehicle manufacturer subject to provisions of the recall of Takata airbag inflators.

local governments:

These rule changes will not affect any local government because no local governments are vehicle manufacturers subject to provisions of the recall of Takata airbag inflators.

small businesses:

There are 385 car dealerships (NAICS 4411) in Utah that are small businesses that could be involved in removing and disposing of airbag inflators. These dealerships make up 80.5% of the dealerships in Utah. Most car dealerships are currently very small quantity generators of hazardous waste. With the removal of the DOT Preservation Order protections, a dealership would be required to manage the removed airbag inflators as hazardous waste which could result in dealerships becoming small quantity generators of hazardous waste. These dealerships would in turn incur the costs associated with being small quantity generators (e.g. packaging and labeling, recordkeeping, personnel training, storage, and shipping). Due to the exemptions provided by these rule changes, dealerships will not incur these costs and therefore, could see a cost savings of approximately $81.55 per year. Data to assist in making this determination was obtained from the EPA document entitled "Economic Assessment of the Safe Management of Recalled Airbags Interim Final Rule" dated October 2018.

persons other than small businesses, businesses, or local governmental entities:

It is anticipated that if there are any persons other than small businesses, businesses, or local governments that are involved in removing airbag inflators these persons would see a cost savings with the adoption of these rule changes. However, the data is not available and would be too costly to acquire in order to be able to make a determination as to who these persons are and what the fiscal impact could be, if any.

Compliance costs for affected persons:

It is anticipated that there will be no additional compliance costs for affected persons due to the adoption of these rule changes because these changes exempt persons removing airbag inflators from having to comply with several provisions that already exist in rule thus reducing the cost of compliance.

Comments by the department head on the fiscal impact the rule may have on businesses:

It is not anticipated that these rule changes will have a negative fiscal impact on any business involved in the removal of airbag inflators. Most car dealerships are currently very small quantity generators of hazardous waste. With the removal of the DOT Preservation Order protections, a dealership would be required to manage the removed airbag inflators as hazardous waste which could result in dealerships becoming small quantity generators of hazardous waste. These dealerships would in turn incur the costs associated with being small quantity generators (e.g. packaging and labeling, recordkeeping, personnel training, storage, and shipping). It is believed that these rule changes will assist in accelerating the removal of these dangerous airbag inflators. This is accomplished by exempting those businesses involved in the removal of airbag inflators from several of the regulatory requirements which results in a cost savings to those businesses.

Alan Matheson, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Environmental Quality
Waste Management and Radiation Control, Waste ManagementRoom Second Floor
195 N 1950 W
SALT LAKE CITY, UT 84116-3097

Direct questions regarding this rule to:

Rusty Lundberg at the above address, by phone at 801-536-4257, by FAX at 801-536-0222, or by Internet E-mail at rlundberg@utah.gov
Thomas Ball at the above address, by phone at 801-536-0251, by FAX at , or by Internet E-mail at tball@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

04/01/2019

This rule may become effective on:

04/15/2019

Authorized by:

Alan Matheson, Executive Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2019

FY 2020

FY 2021

State Government

Local Government

Small Businesses

Non-Small Businesses

Other Person

Total Fiscal Costs:

Fiscal Benefits

State Government

Local Government

Small Businesses

$31,395

Non-Small Businesses

$7,605

Other Persons

Total Fiscal Benefits:

$39,000

Net Fiscal Benefits:

$39,000

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described in the narrative. Inestimable impacts for Non - Small Businesses are described in Appendix 2.

Appendix 2: Regulatory Impact to Non - Small Businesses

There are 75 car dealerships (NAICS 4411) in Utah that are non-small businesses. These dealerships make up 19.5% of the dealerships in Utah. Most car dealerships are currently very small quantity generators of hazardous waste. With the removal of the DOT Preservation Order protections, a dealership would be required to manage the removed airbag inflators as hazardous waste which could result in dealerships becoming small quantity generators of hazardous waste. These dealerships would in turn incur the costs associated with being small quantity generators (e.g. packaging and labeling, recordkeeping, personnel training, storage, and shipping). Due to the exemptions provided by these rule changes, dealerships will not incur these costs and therefore, could see a cost savings of approximately $101.40 per year.

Data to assist in making this determination was obtained from the EPA document entitled "Economic Assessment of the Safe Management of Recalled Airbags Interim Final Rule" dated October 2018.

The head of the Department of Environmental Quality, Alan Matheson, has reviewed and approved this fiscal analysis.

R315. Environmental Quality, Waste Management and Radiation Control, Waste Management.

R315-262. Hazardous Waste Generator Requirements.

R315-262-14. General -- Conditions For Exemption for a Very Small Quantity Generator.

(a) Provided that the very small quantity generator meets all the conditions for exemption listed in Section R315-262-14, hazardous waste generated by the very small quantity generator is not subject to the requirements of Rules R315-124, 262 (except Sections R315-262-10 through R315-262-14) through R315-268, and R315-270, and the notification requirements of section 3010 of RCRA and the very small quantity generator may accumulate hazardous waste on site without complying with such requirements. The conditions for exemption are as follows:

(1) In a calendar month the very small quantity generator generates less than or equal to the amounts specified in the definition of ''very small quantity generator'' in Section R315-260-10;

(2) The very small quantity generator complies with Subsections R315-262-11(a) through (d);

(3) If the very small quantity generator accumulates at any time greater than 1 kilogram (2.2 lbs) of acute hazardous waste or 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in Section R315-261-31 or Subsection R315-261-33(e), all quantities of that acute hazardous waste are subject to the following additional conditions for exemption:

(i) Such waste is held on site for no more than 90 days beginning on the date when the accumulated wastes exceed the amounts provided in Subsection R315-262-14(a)(3); and

(ii) The conditions for exemption in Subsections R315-262-17(a) through (g).

(4) If the very small quantity generator accumulates at any time 1,000 kilograms (2,200 lbs) or greater of non-acute hazardous waste, all quantities of that hazardous waste are subject to the following additional conditions for exemption:

(i) Such waste is held on site for no more than 180 days, or 270 days, if applicable, beginning on the date when the accumulated waste exceed the amounts provided in Subsection R315-262-14(a)(4);

(ii) The quantity of waste accumulated on site never exceeds 6,000 kilograms (13,200 lbs); and

(iii) The conditions for exemption in Subsections R315-262-16(b)(2) through (f).

(5) A very small quantity generator that accumulates hazardous waste in amounts less than or equal to the limits in Subsections R315-262-14(a)(3) and (4) shall either treat or dispose of its hazardous waste in an on-site facility or ensure delivery to an off-site treatment, storage, or disposal facility, either of which, if located in the U.S., is:

(i) Permitted under Rule R315-270;

(ii) In interim status under Rules R315-265 and 270;

(iii) Authorized to manage hazardous waste by a state with a hazardous waste management program approved under 40 CFR 271;

(iv) Permitted, licensed, or registered by a state to manage municipal solid waste and, if managed in a municipal solid waste landfill is subject to Rules R315-301 through R315-320;

(v) Permitted, licensed, or registered by a state to manage non-municipal non-hazardous waste and, if managed in a non-municipal non-hazardous waste disposal unit, is subject to the requirements in Rules R315-301 through R315-320 or 40 CFR 257.5 through 257.30;

(vi) A facility which:

(A) Beneficially uses or reuses, or legitimately recycles or reclaims its waste; or

(B) Treats its waste prior to beneficial use or reuse, or legitimate recycling or reclamation;

(vii) For universal waste managed under Rule R315-273, a universal waste handler or destination facility subject to the requirements of Rule R315-273;

(viii) A large quantity generator under the control of the same person as the very small quantity generator, provided the following conditions are met:

(A) The very small quantity generator and the large quantity generator are under the control of the same person as defined in Section R315-260-10. "Control,'' for the purposes of Subsection R315-262-14(a)(5)(viii), means the power to direct the policies of the generator, whether by the ownership of stock, voting rights, or otherwise, except that contractors who operate generator facilities on behalf of a different person as defined in Section R315-260-10 shall not be deemed to "control'' such generators.

(B) The very small quantity generator marks its container(s) of hazardous waste with:

(1) The words "Hazardous Waste"' and

(2) An indication of the hazards of the contents, examples include, but are not limited to:

(I) the applicable hazardous waste characteristic(s), i.e., ignitable, corrosive, reactive, toxic;

(II) hazard communication consistent with the Department of Transportation requirements at 49 CFR part 172 subpart E, labeling, or subpart F, placarding;

(III) a hazard statement or pictogram consistent with the Occupational Safety and Health Administration Hazard Communication Standard at 29 CFR 1910.1200; or

(IV) a chemical hazard label consistent with the National Fire Protection Association code 704.

(ix) Reserved

(x) Reserved

(xi) For airbag waste, an airbag waste collection facility or a designated facility subject to the requirements of Subsection R315-261-4(j).

(b) The placement of bulk or non-containerized liquid hazardous waste or hazardous waste containing free liquids (whether or not sorbents have been added) in any landfill is prohibited.

(c) A very small quantity generator experiencing an episodic event may generate and accumulate hazardous waste in accordance with Sections R315-262-230 through 233 in lieu of Sections R315-262-15, 16, and 17.

KEY: hazardous waste, generators

Date of Enactment or Last Substantive Amendment: [~~August 31, 2017~~]2019

Authorizing, and Implemented or Interpreted Law: 19-6-105; 19-6-106